Public Officers Edited

7/31/2019 Public Officers Edited

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PUBLIC OFFICERS

PUBLIC OFFICE AND OFFICERS

Public Office

Definition

A public office is the right, authority andduty created and conferred by law, by which fora given period, either fixed by law or enduringat the pleasure of the appointing power, anindividual is invested with some portion of thesovereign functions of the government, to beexercised by him for the benefit of thepublic. (Mechem)

Purpose and Nature

A public office is created to effect the endfor which government has been instituted whichis the common good; not profit, honor, or

private interest of any person, family or class ofpersons (63 A Am Jur 2d 667)

Nature: (1) A public office is a public trust.(Art. XI, Sec. 1, 1987 Consti)

(2) It is a responsibility and not aright. (Morfe v. Mutuc)

Elements

(1) Must be created either by (a) the Constitution, (b) theLegislature, or (c) a municipality or other body throughauthority conferred by the Legislature;

(2) Must possess a delegation of a portion of the sovereignpower ofgovernment, to be exercised for the benefit of thepublic;

(3) The powers conferred and the duties discharged mustbe defined, directly or impliedly by the Legislature orthrough legislative authority;

(4) The duties must be performed independently andwithout control of asuperior power other than the law;

Exception: If the duties are those of an inferior orsubordinate office, created or authorized by theLegislature and by it placed under the generalcontrol of a superior office or body;

(5) Must have some permanency and continuity

Note: This is not to be applied literally. The Boardof Canvassers is a public office, yet its duties areonly for a limited period of time.

(cf. Barney v. Hawkins)

Public Officer v. Public Employment

Public employment is broader thanpublic office. All public office is publicemployment, but not all public employmenis a public office.

Generally, a position is a publicoffice when it is created by law, with dutiescast upon the incumbent which involve theexercise of some portion of the sovereignpower, and in the performance of which thepublic is concerned. Public employment isa position which lacks one or more of theforegoing elements.

Public Office v. Public Contract

Public Office PublicContract

Creation Incident ofsovereignty

Originatesfrom will ocontractingparties

Object Carrying out ofsovereign aswell asgovernmentalfunctionsaffecting evenpersons notbound by thecontract

Obligationsimposedonly uponthe personswho enteredinto thecontract

SubjectMatter

Tenure,duration,

continuity

Limitedduration

Scope Duties that aregenerallycontinuing andpermanent

Duties arevery specificto thecontract

Wheredutiesaredefined

The law Contract

No vested right to public office

GENERAL RULE: A public office, beinga mere privilegegiven by the statedoes not vest anyrights in the holdeof the office. Thisrule applies whenthe law is clear.

EXCEPTION: When the lawis vague, the


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persons holding ofthe office isprotected and heshould not bedeprived of hisoffice.

Segovia v. Noel

It is a fundamental principle that apublic office cannot be regarded as theproperty of the incumbent and that a publicoffice is not a public contract. Nonetheless,Act. No. 3107 should be given aprospective effect in the absence oflegislative intent to the contrary. Althoughthere is a vested right to an office, whichmay not be disturbed by legislation, yet theincumbent has, in a sense, a right to hisoffice. If that right is to be taken away bystatute, the terms should be clear.

Agcaoili v. Suguitan

The Supreme Court held thatAgcaoili had not ceased to be a justice ofthe peace by operation of Act No.3107. The Segovia ruling was reiterated,i.e. Act No. 3107 should be givenprospective effect only, as there was noexpress statement making the lawapplicable retroactively.

Public Office not property

A public office is not the property ofthe public officer within the provision of theConstitution against deprivation of propertywithout due process of law or within anagreement in a treaty not to impair theproperty or rights of private individuals.

Exceptions:

(1) In quo warrantoproceedings relating to thequestion as to which of 2 personsis entitled to a public office

(2) In an action forrecovery of compensationaccruing by virtue of

the public office

Cornejo v. Gabriel

Due process is violated only if anoffice is considered property. However, apublic office is not property within theconstitutional guaranties of due process. Itis a public trust or agency. As public

officers are mere agents and not rulers othe people, no man has a proprietary ocontractual right to an office. Every officeaccepts office pursuant to law and holdsoffice as a trust for the people whom herepresents.

Abeja v. Tanada

Public office being personal, thedeath of a public officer terminates his righto occupy the contested office andextinguishes his counterclaim fodamages. His widow and/oheirscannot be substituted in thecounterclaim suit.

Modes of Creation of Public Office

(1) by the Constitution(2) by statute / law(3) by a tribunal or body to which the

power to create the office has beendelegated

Scope and Extent of Power of legislature

GENERAL RULE: The creation of apublic office is primarily a legislativefunction.

Exceptions:(1) where the offices are created by theConstitution;

(2) where the Legislature delegates such power.

Delegation of power to create public office

Q: What is the effect where an office iscreated pursuant to illegally delegatedpowers?

A: The office would have noexistence.

U.S.T. v. Board of Tax Appeals

The authority given to thePresident to "reorganize within one yeathe different executive departmentsbureaus and other instrumentalities of theGovernment" in order to promote efficiencyin the public service is limited in scope andcannot be extended to other matters notembraced therein. Therefore, an executiveorder depriving the Courts of First Instanceof jurisdiction over cases involving recoveryof taxes illegally collected is null and void


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as Congress alone has the "power todefine, prescribe and apportion thejurisdiction of the various courts."

Methods of Organizing offices

(1) Single-head: one head assisted bysubordinates. Swifter decision and

actions but may sometimes behastily made.

(2) Board System: collegial body informulating polices and implementing

programs. Mature studies anddeliberations but may be slow in

responding to issues and problems.

Modification and Abolition

GENERAL RULE:The power to create an office includes thepower to modify or abolish it. (i.e., this is

generally a legislative function)

EXCEPTIONS:

(1) Where the Constitution prohibits suchmodification / abolition;(2) Where the Constitution gives the people thepower to modify or abolish the office;

Ocampo v. Secretary of Justice

The legislative power to create acourt carries with it the power to abolish

it. When the court is abolished, anyunexpired term is abolished also.

Zandueta v. De la Costa

RULE: When a public officialvoluntarily accepts an appointmentto an office newly created by law --which new office is incompatiblewith the former -- he will beconsidered to have abandoned hisformer office.

Exception: When the non-acceptance of the newappointment would affect publicinterest, and the public official isthereby constrained to accept.

Estoppel to deny existence of office

Q: When is a public officer estopped fromdenying that he has occupied a publicoffice?

A: When he has acted as a publicofficer, esp. where he has received

public monies by virtue ohis office.

Public OfficerVolunteer Service under RA 6713

Definition

A public officer is one who performs publicfunctions / duties of government by virtue ofdirect provision of law, popular election, orappointment by competent authority. His dutiesinvolve the exercise of discretion in theperformance of the functions of thegovernment, and are not of a merely clerical omanual nature. (See Sec. 2 (14), E.O. 292)

Note: For the purpose of applyingthe provisions of the Revised Pena

Code, employees, agents, or subordinate officialsof any rank or class, who perform public duties inthe government or in any of its branches shall bedeemed as public officers.

Illustrations:

In the case of Maniego v. People, a laborerwho was in charge of issuing summons andsubpoenas for traffic violations in a judge's salawas convicted for bribery under RPC 203. Thecourt held that even temporary performance opublic functions is sufficient to constitute a person

as a public official.

In the case of People v. Paloma, a sorter andfiler of money orders in the Auditor's Office of theBureau of Posts was convicted for infidelity in thecustody of documents. The court pointed out thathe sorting and filing of money orders in the Bureauof Posts is obviously a public function or duty.

Who are not considered public officers?

Special policemen salaried by a private entity

and patrolling only the premises of such privateentity (Manila Terminal Co. v. CIR);

Concession forest guards (Martha LumbeMill v. Lagradante);

Company cashier of a private corporation

owned by the government (Tanchoco v. GSIS)


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May a person be compelled to accept a publicoffice?

GENERAL RULE: NO.

EXCEPTIONS:

(1) When citizens are required, under conditionsprovided by law,to render personal military or civilservice (Sec. 4, Art. II, 1987 Const.);

(2) When a person who, having been elected bypopular election to a public office, refuses withoutlegal motive to be sworn in or to discharge theduties of said office (Art. 234, RPC; Note: thepenalty shall be either arresto mayor, or a fine notexceeding P 1,000.00, or both)

No presumption of power

Villegas v. Subido

Nothing is better settled in the lawthan that a public official exercises power,not rights. The government itself is merelyan agency through which the will of thestate is expressed and enforced. Itsofficers therefore are likewise agentsentrusted with the responsibility ofdischarging its functions. As such, there isno presumption that they are empowered toact. There must be a delegation of such

authority, either express or implied. In theabsence of a valid grant, they are devoid ofpower.

Classification of Public Offices and Public Officers

Creation

(1)Constitutional(2)Statutory

Public Body Served

(1)National(2)Local

Department of government to which their functionspertain

(1)Legislative(2)Executive(3)Judicial

Nature of functions

(1)Civil(2)Military

Exercise of Judgment or discretion

(1)Quasi-judicial(2)Ministerial

Legality of Title to office

(1) De Jure(2) De Facto

Compensation

(1) Lucrative(2) Honorary

DE FACTO OFFICERS

De Facto Doctrine

Q: What is the de facto doctrine?

A: It is the principle which holds that aperson, who, by the proper authority, isadmitted and sworn into office is deemed tobe rightfully in such office until:

(a) by judicial declaration in a proper proceeding heis ousted therefrom; or(b) his admission thereto is declared void.

Q: What is the purpose for the doctrine?

A: It is to ensure the orderly functioning ofgovernment. The public cannot afford tocheck the validity of the officer's title eachtime they transact with him.

De Facto Officer defined

Q: When is a person a de facto officer?

A: Where the duties of the office areexercised under any of the followingcircumstances:

(1) Without a known appointment or election, buunder such circumstances of reputation oacquiescence as were calculated to induce peoplewithout inquiry, to submit to or invoke his actionsupposing him to the be the officer he assumed tobe; or

(2) Under color of a known and valid appointmenor election, but where the officer has failed toconform to some precedent requirement ocondition (e.g., taking an oath or giving a bond);


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(3) Under color of a known election orappointment, void because:

(a) the officer was not eligible;(b) there was a want of power in theelecting or appointing body;(c) there was a defect or irregularity in itsexercise;such ineligibility, want of power, or defectbeing unknown to the public.

(4) Under color of an election or an appointment byor pursuant to a public, unconstitutional law, beforethe same is adjudged to be such.

Note: Here, what is unconstitutional is not the actcreating the office, but the act by which the officeris appointed to an office legally existing. (Norton v.County of Shelby)

Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites (1) Existence of a dejureoffice;

(2) mustpossessthe legalqualifications forthe officein

question;

(3) must belawfullychosen tosuchoffice;

(4) musthavequalifiedhimself toperform

the dutiesof suchofficeaccordingto themodeprescribed by law.

(1) De jureoffice;

(2) Color ofright orgeneralacquiescence by thepublic;

(3) Actual

physicalpossessionof the officein goodfaith

Basis ofAuthority

Right: he hasthe lawfulright / title tothe office

Reputation: Has thepossession andperforms the

duties undecolor of rightwithout beingtechnicallyqualified in alpoints of law toact

How ousted Cannot beousted.

Only by a direcproceeding(quowarranto); notcollaterally

Validity ofofficial acts

Valid, subjectto exceptions(e.g., theywere donebeyond thescope of hisauthority, etc.)

Valid as to thepublic until suchtime as his titleto the office isadjudgedinsufficient.

Rule onCompensation

Entitled tocompensationas a matter ofright;

The principleof "no work,no pay" is notapplicable tohim.

Entitled toreceivecompensationonly during thetime when node jure officer isdeclared;

He is paid onlyfor actuaservicesrendered byhim.

Officer De Facto v. Intruder

De Facto Intruder

Nature Officer underany of the 4circumstancesdiscussedunder Part II(above).

One who takespossession oan office andundertakes toact officiallywithout anyauthority,either actual o

apparent

Basis ofauthority

Color of rightor title to office

None. He hasneither lawfutitle nor coloof right or titleto office.

Validity of"official" acts

Valid as to thepublic untilsuch time ashis title to the

Absolutelyvoid; they canbe impeachedat any time in


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office isadjudgedinsufficient

anyproceeding(unless anduntil hecontinues toact for so longa time as toafford apresumption ofhis right to act)

Rule oncompensation

Entitled toreceivecompensationonly during thetime when node jure officeris declared;

He is paid onlyfor actualservicesrendered by

him.

Not entitled tocompensationat all.

Q: Can an intruder / usurper ripen into a defacto officer?

A: Yes. With the passage of time, apresumption may be created in the mindsof the public that the intruder has a right toact as a public officer.

Q: Is good faith a factor in the ripening of

intruder status into de facto status?

A: Yes. HOWEVER, it must be noted thatthe good faith must be on the part ofthe public; not on the part of the intruder.

Elements of a De Facto Officership

(1) De jure office(2) Color of right or general acquiescence

by the public;(3) Actual physical possession of the office

in good faithNote: This is not absolutely true. An intruder /usurper may ripeninto a de facto officer.

Examples of De Facto Officers

A judge who continued to exercise his dutiesafter his appointment was disapproved by theCA according to a newspaper report, but beforereceiving the official notification regarding therejection of his appointment (Regala v. Judgeof CFI);

A lawyer instructed by the Acting ProvinciaGovernor to file an information for homicidewhere the latter had no authority to designatehim as assistant fiscal, and where the DOJ hadnot authorized him to act as such (People vPenesa);

A third-ranking councilor who is designated toact as mayor by an officer other than the properappointing authority prescribed by law, andlacking the consent of the Provincial Board(Codilla v. Martinez)

Examples of those not considered as De FactoOfficers

A judge who has accepted anappointment as finance secretary andyet renders a decision after havingaccepted such appointment (Luna vRodriguez);

A judge whose position has alreadybeen abolished by law, and yepromulgates a decision in a criminacase after the abolition and over theobjection of the fiscal (People v. So)

Legal Effect of Acts of De Facto Officers

As regards the officers themselves

GENERAL RULE:

A party suing or defending in his own righas apublic officer must show that he is anofficerde jure. It is not sufficient that he bemerely a de factoofficer.

As regards the public and third persons

GENERAL RULE:The acts of a de factoofficer are valid as tothird persons and the public until his title tooffice is adjudged insufficient.

Official Acts of De Facto Officers not subject tocollateral attack

RULE: The title of a de facto officer andthe validity of hisacts cannot be collaterally questioned in proceedings to which heis not a party, or which were noinstituted to determine the veryquestion.

REMEDY: Quo warranto proceed


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Who may file:

(1) The person who claims to be entitled tothe office;(2) The Republic of the Philippines,represented by

(a) the Solicitor-General; or(b) a public prosecutor

Nueno v. Angeles

In this case, there were four (4)petitioners seeking to oust six (6) BoardMembers. The Court held that this couldnot be done unless all 4 of them wereentitled to the offices of the 6.

Liabilities of De Facto Officers

The liability of a de facto officer isgenerally held to be the same degree

of accountability for official acts as thatof a de jure officer.

The de facto officer may be liable for

all penalties imposed by law for any ofthe following acts:

(a) usurping or unlawfully holdingoffice;

(b) exercising the functions ofpublic office without lawfulright;

(c) not being qualified for the

public office as required by law.

The de facto officer cannot excusehis responsibility for crimes committedin his official capacity by asserting hisde facto status.

ELIGIBILITY AND QUALIFICATIONS

Definition

Eligibility, which is the term usually used inreference to the Civil Service Law, refers

to the endowment / requirement / accomplishmentthat fits one for a public office.

Qualification generally refers to the endowment /act which a person must do before

he can occupy a public office.

Power to Prescribe Qualifications

GENERAL RULE:

Congress is empowered to prescribe thequalifications for holding public officesubject to the following restrictions:

Congress cannot exceed itsconstitutional powers;

Congress cannot imposeconditions of eligibility inconsistenwith constitutional provisions;

The qualification must begermane to the position("reasonable relation" rule);

Congress cannot prescribequalifications so detailed as topractically amount to making anappointment. (Legislativeappointments are unconstitutionaand therefore void for being ausurpation of executive power.);

Where the Constitutionestablishes specific eligibilityrequirements for aparticular constitutional office, theconstitutional criteria are exclusiveand Congress cannot add tothem exceptif the Constitutionexpressly or impliedly gives thepower to set qualifications.

Q: What legislative enactments are tantamount tolegislative appointments?

A:

Extensions of the terms of office othe incumbents;

The People's Court Act, whichprovided that the President coulddesignate Judges of First InstanceJudges-at-large of First Instance orCadastral Judges to sit as substituteJustices of the Supreme Court intreason cases without them necessarilyhaving to possess the required

constitutional qualifications of a regulaSupreme Court Justice. (Vargas vRilloraza);

A proviso which limits the choices othe appointing authority to only oneeligible, e.g. the incumbent Mayor oOlongapo City (Flores v. Drilon);

A legislative enactment abolishing aparticular office and providing for theautomatic transfer of the incumbenofficer to a new office


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created (contemplated in Manalang v.Quitoriano);

A provision that impliedly prescribesinclusion in a list submitted by theExecutive Council of the Phil. MedicalAssociation as one of the qualificationsfor appointment; and which confinesthe selection of the members of theBoard of Medical Examiners to the 12persons included in the list (Cuyegkengv. Cruz) ;

Manalang v. Quitoriano

Congress cannot either appoint a public officeror impose upon the President the duty to appointany particular person to an office. The appointingpower is the exclusive prerogative of the President,upon which no limitations may be imposed byCongress, except those resulting from:

(1) the need of securing the concurrence of the

Commission on Appointments; and

(2) the exercise of the limited legislative power toprescribe the qualifications to a given appointiveoffice.

Cuyegkeng v. Cruz

The power of appointment vested in thePresident by the Constitution connotes necessarilya reasonable measure of freedom, latitude, ordiscretion in the exercise of the power to chooseappointees.

Flores v. Drilon

Where only one can qualify for the posts inquestion, the President is precluded fromexercising his discretion to choose whom toappoint. Such supposed power of appointment,sans the essential element of choice, is no power atall and goes against the very nature itself ofappointment.

Time of Possession of Qualifications

Q: When must the qualifications bepossessed?

A:Where the time is specified by theConstitution or law: At the time specified

Where the Constitution or law issilent:

There are 2 views:

(1) qualification must be at the time ocommencement of term or induction intooffice;

(2) qualification / eligibility must exist at thetime of the election or appointment

* Eligibility is a continuing nature, and mustexist throughout the holding of the publicoffice. Once the qualifications are lostthen the public officer forfeits the office.

Castaneda v. Yap

Knowledge of ineligibility of a candidateand failure to question such ineligibility before orduring the election is not a bar to questioning sucheligibility after such ineligible candidate has wonand been proclaimed. Estoppel will not apply insuch a case.

Frivaldo v. COMELEC

The citizenship requirement must be meonly on election day. While the Local GovernmenCode requires one year residency immediatelypreceding election day and the prescribed age onelection day, no date is specified focitizenship. The purpose of the citizenshiprequirement is to ensure leaders owing allegianceto no other country. Such purpose is not thwartedbut instead achieved by construing the requiremento apply at time of proclamation and at the start ofthe term.

Qualifications usually prescribed

a) President (Sec. 2, Art. VI, Constitution)Vice President (Sec. 3, Art. VII, Constitution)

Natural-born citizen

40 years old on day of election

resident of the Philippines for at least 10 yrsimmediately preceding election day

b) Senator (Sec. 3, Art. VI, Constitution)


35 years old on day of election able to read and write

registered voter

resident of the Philippines for not less thantwo years immediately preceding election day

c) Congressmen (Sec. 6, Art. VI, Constitution)


25 years old on day of election

able to read and write


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registered voter in district in which he shall beelected

resident thereof for not less than one yearimmediately preceding election day

d) Supreme Court Justice

Natural born citizen

at least 40 years old

15 years or more a judge or engaged in lawpractice

of proven CIPI (competence, integrity, probity

and independence)

e) Civil Service Commissioners (Sec. 1 [1], Art. IXB.Constitution)


35 years old at time of appointment

proven capacity for public administration

not a candidate for any elective position inelections immediately preceding appointment

f) COMELEC Comm. (Sec. 1[1], Art. IXC)



college degree holder

not a candidate for elective position inelection immediately preceding appointment

chairman and majority should be members ofthe bar who have been engaged in the practiceof law for at least 10 years (See Cayetano v.Monsod)

g) COA Commissioners



CPA with >10 year of auditing experience or

Bar member engaged in practice of law for atleast 10 years

Not have been candidates for electiveposition in elections immediately precedingappointment

Practice of law means any activity, in or out of court,which requires the application of law, legal

procedure, knowledge, training andexperience. Generally, to practice law is to givenotice or render any kind of service which requiresthe use in any degree of legal knowledge or skill.

Aquino v. COMELEC:Residency of not less than 1 year prior to the

elections for the position of Congressman. Inelection law, residence refers to domicile, i.e. theplace where a party actually or constructively hashis permanent home, where he intends toreturn. To successfully effect a change ofdomicile, the candidate must prove an actual

removal or an actual change of domicile. Here, iwas held that leasing a condominium unit in thedistrict was not to acquire a new residence ordomicile but only to qualify as a candidate.

Marcos v. COMELEC:Domicile, which includes the twin elements ofactual habitual residence, and animus manendi, theintention of remaining there permanently. It washeld that domicile of origin is not easily lost, andthat in the absence of clear and positive proof of asuccessful change of domicile, the domicile oforigin should be deemed to continue.

Religious Test or Qualification

No religious test shall be required for theexercise of civil or political rights. (Art. III, Sec. 51987 Constitution)

FORMATION OF OFFICIAL RELATION

Modes of Commencing Official Relation

(a) Election

(b) Appointment

(c) Others:(i) Succession by operation olaw;

(ii) Direct provision of law, e.g. exoficio officers

Election: Selection or designation by apopular vote

Appointment

Definition

Q: Distinguish between designationand appointment.

Designation Appointment

Definition Impositionofadditionalduties uponan existingoffice

Selection oan individuato occupy acertain publicoffice by oneauthorized bylaw to makesuchselection

Extent of Limited Comprehens


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Powers ve

Security oftenure?

No. Yes.

Whendeemedabandonment of prior

office

Assumptionof adesignatedposition is

not deemedabandonment of the1

stposition

Assumptionof a2

ndappointive

position is

usuallydeemedabandonment of the firstoffice.

Nature of Appointing Power

The power to appoint is intrinsically anexecutive act involving the exercise ofdiscretion. (Concepcion v. Paredes)

The power and prerogative to a vacantposition in the civil service is lodged withthe appointing authority.

Constitutional Provisions

Q: Who can the President nominate andappoint with the consent of the

Commission on Appointments?

A:

Heads of the executivedepartments (Art. VII, Sec. 16,

1987 Const.);

Ambassadors (ibid);

Other public ministers andconsuls (ibid);

Officers of the armed forcesfrom the rank or colonel ornaval captain (ibid);

Other officers whoseappointments are vested in him

by the Constitution (ibid),including ConstitutionalCommissioners (Art. IX-B, Sec.1 (2) for CSC; Art. IX-C, Sec. 1(2) for COMELEC; Art. IX-D,Sec. 1 (2) for COA).

Q: Who can the Presidentappoint without the need for CAapproval?

A:All other officers of the governmenwhose appointments are not otherwiseprovided for by law;

Those whom he may be authorized by law toappoint;

Members of the Supreme Court;

Note: To be appointed from a list of aleast 3 nominees prepared by the Judicial and BaCouncil (Art. VIII, Sec. 9, 1987 Const.)

Judges of lower courts;

Note: To be appointed from a list of aleast 3 nominees prepared by the Judicial and BaCouncil (Art. VIII, Sec. 9, 1987 Const.)

Ombudsman and his deputies

Note: To be appointed from a list of aleast 6 nominees prepared by the Judicial and BaCouncil, and from a list of 3 nominees for everyvacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

Q: Does the President have thepower to make appointments when

Congress is in recess?

A:Yes. However, such appointments shall beeffective only until:

(1) disapproval by the Commission onAppointments; or

(2) the next adjournment of the Congress (Sec16, Art. VII, 1987 Const.)

Q: What is the effectivity of appointments extendedby an ActingPresident?

A: Such appointments shall remain effective unlessrevoked by the elected President within 90 daysfrom his assumption or reassumption ooffice. (Sec. 14, Art. VII, 1987 Const.)

Qualification Standards and Requirements undethe Civil Service Law

Qualification Standards:

Express the minimum requirements for aclass of positions in terms of education , trainingand experience, civil service eligibility, physicafitness, and other qualities required for successfuperformance. (Sec. 22, Book V, EO 292)

A statement of the minimumqualifications of a position which shall


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include education, experience, training, civilservice eligibility, and physicalcharacteristics and personalitytraitsrequired by the job. (Sec. 2, Rule IV,Omnibus Rules)

With respect to a particular position, suchqualification standards shall serve as the basis forthe determination by the appointing authority of thedegree of qualifications of an officer or employee(ibid);

Shall be used as basis for civil serviceexaminations for positions in the career service,as guides in appointment and other personnelactions, in the adjudication of protestedappointments, in determining training needs, andas aid in the inspection and audit of the agencies'personnel work programs (ibid);

Shall be administered in such manner as tocontinually provide incentives to officers andemployees towards professional growth and foster

the career system in the government service (ibid);

It shall be the responsibility of thedepartments and agencies to establish,administer and maintain the qualificationstandards on a continuing basis as anincentive to career advancement. (Sec. 7,Rule IV, Omnibus Rules)

Their establishment, administration, andmaintenance shall be the responsibility ofthe department / agency, with the assistance andapproval of the CSC and in consultation with the

Wage and Position Classification Office (ibid);

Whenever necessary, the CSC shallprovide technical assistance todepartments and agencies in thedevelopment of their qualificationstandards. (Sec. 5, Rule IV, OmnibusRules)

Shall be established for all positions inthe 1

stand 2

ndlevels (Sec. 1, Rule IV, Omnibus

Rules);

Political Qualifications for an Office

GENERAL RULE: Politicalqualifications are not required for publicoffice.

Exceptions:(1) Membership in the electoral tribunals of either

the House of Representatives or Senate (Art. VI,Sec. 17, 1987 Const.);

(2) Party-list representation;

(3) Commission on Appointments;

(4) Vacancies in the Sanggunian (Sec. 45, LocaGovernment Code)

Property Qualifications

In the cases of Maquera vBorra and Aurea v. COMELEC, the Supreme Courtstruck down R.A. 4421 which required candidatesfor national, provincial, city and municipal offices topost a surety bond equivalent to the one-yeasalary or emoluments of the position to which he isa candidate, which shall be forfeited in favor of thegovt. concerned if the candidate fails to obtain atleast 10% of the votes cast.

The Supreme Court held that propertyqualifications are inconsistent with the nature andessence of the Republican system ordained in ourConstitution and the principle of social justiceunderlying the same. The Court reasoned out that:

"Sovereignty resides in the peopleand all government authorityemanates from them, and this, inturn, implies necessarily that theright to vote and to be voted shallnot be dependent upon the wealthof the individual concerned. Socialjustice presupposes equalopportunity for all, rich and pooralike, and that, accordingly, noperson shall, by reason of poverty,be denied the chance to be elected

to public office."

Aliens not eligible to public office

This is self-explanatory.

Effect of removal of qualifications during the term

Q: What happens if the qualification is loswhich the officer is holding office?

A: The officer must be terminated.

Effect of pardon upon the disqualification to holdpublic office

GENERAL RULE: A pardonshall not work the restoration of the right to

hold public office. (Art. 36, Revised Penal Code)

Exceptions: (1) Where such right to hold publicoffice is expressly restored by the terms of thepardon (Art. 36, RPC);


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(2) When a person is granted pardon because hedid not commit the offense imputed to him (Garciav. Chairman, COA)

Rules governing effects of pardon:

(1) A public official who has been convicted of acrime but has been pardoned must secure areappointment before he / she can reassume his /her former position. (Monsanto v. Factoran)

Note: Acquittal is the only ground for automaticreinstatement of a public officer to his / her formerposition.(2) Pardon does not exempt the culprit frompayment of the civil indemnity imposed upon him /her by the sentence. (Art. 36, par. 2, RPC)(3) A convicted public official who has beenpardoned is not entitled to backpay and otheremoluments due to him during the period of hissuspension pendente lite. (Monsanto v. Factoran)

Discretion of appointing official

Discretion, if not plenary, at leastsufficient, should thus be granted to thoseentrusted with the responsibility ofadministering the officers concerned,primarily the department heads. They arein the most favorable position to determinewho can best fulfill the functions of theoffice thus vacated. Unless, therefore, thelaw speaks in the most mandatory andperemptory tone, considering all the

circumstances, there should be, as therehas been, full recognition of the wide scopeof such discretionary authority. (Reyes v.Abeleda)

Appointment is an essentially discretionarypower and must be performed by the officerin which it is vested according to this bestlights, the only condition being that theappointee should possess the qualificationsrequired by law. (Lapinid v. CSC)

The only function of the CSC is to review

the appointment in the light of therequirements of the Civil Service Law, andwhen it finds the appointee to be qualifiedand all other legal requirements have beenotherwise satisfied, it has no choice but toattest to the appointment. It cannot orderthe replacement of the appointee simplybecause it considers another employee tobe better qualified. (Lapinid v. CSC)

To hold that the Civil Service Law requiresthat any vacancy be filled by promotion,transfer, reinstatement, reemployment, or

certification in that order would betantamount to legislative appointmenwhich is repugnant to the Constitution. Therequirement under the Civil Service Lawthat the appointing power set forth thereason for failing to appoint the officer nexin rank applies only in cases of promotionand not in cases where the appointingpower chooses to fill the vacancy bytransfer, reinstatement, reemployment ocertification, not necessarily in thaorder. (Pineda v. Claudio)

The CSC is not empowered to change thenature of the appointment extended by theappointing officer, its authority being limitedto approving or reviewing the appointmenin the light of the requirements of the CiviService Law. When the appointee isqualified and all the legal requirements aresatisfied, the CSC has no choice but toattest to the appointment. (Luego v. CSC)

Appointment is a political question.

Where the palpable excess of authority orabuse of discretion in refusing to issuepromotional appointment would lead tomanifest injustice, mandamus will lie tocompel the appointing authority to issuesaid appointments. (Gesolgon v. Lacson)

Effectivity of Appointment

Q: When does an appointment take effect?

A: Immediately upon its issuance by theappointing authority. (Rule V, Sec. 10Omnibus Rules).

When appointment becomes complete, final andirrevocable

GENERAL RULE:An appointment, once made, is irrevocable andnot subject to reconsideration.

Qualification: Where the assent, confirmationor approval of some otherofficer or body is neededbefore the appointment may be issue and bedeemed complete.

Exceptions:(1) When the appointment is an absolute nullity(Mitra v. Subido);

(2) When there is fraud on the part of theappointee (Mitra v. Subido);

(3) Midnight appointments


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A completed appointment vests a legal

right. It cannot be taken away EXCEPT forcause, and with previous notice andhearing (due process).

Midnight appointments

A President or Acting President isprohibited from making appointments 2 monthsimmediately before the next presidential electionsand up to the end of his term. (Art. VII, Sec. 15,1987 Const.)

Exception: Temporary appointments to executivepositions when continued vacancies therein willprejudice public service or endanger public safety.

ASSUMPTION AND TERM OR TENURE OF OFFICE

Qualification to Office

Appointment and Qualification to OfficeDistinguished

Appointment and qualification to office areseparate and distinct things. Appointment is the actof being designated to a public office by theappointing authority. Qualification is the act ofsignifying one's acceptance of the appointiveposition. This generally consists of the taking /subscribing / filing of an official oath, and in certaincases, of the giving of an official bond, as requiredby law. (Mechem)

No one can be compelled to accept anappointment.

Lacson v. Romero

The appointment to a government postinvolves several steps: (1) the Presidentnominates; (b) the Commission onAppointments confirms the appointment; and(c) the appointee accepts the appointment byhis assumption of office. The first 2 steps aremere offers to the post but the last step restssolely with the appointee who may or may notaccept the appointment.

Borromeo v. Mariano

A judge may not be made a judge ofanother district without hisconsent. Appointment and qualification tooffice are separate and distinctthings. Appointment is the sole act of theappointee. There is no power which cancompel a man to accept the office.

Effect of Failure to Qualify

Failure to qualify is deemed evidenceof refusal of the office.

It is a ground for removal:

If qualification is acondition precedent:Failure to qualify ipso factodeemed rejection of theoffice

If not condition precedent: Failure is not ipsofactorejection

Justifiable reasons for delay inqualifying include sickness, accidentand other fortuitous events that excusedelay.

The Omnibus Election Code provides

that the officer must qualify (i.e., takehis oath of office and assumeoffice) within 6 months fromproclamation. Otherwise, the positionwill be deemed vacant.

Exception: If the non-assumption of office is due toa causebeyond his control.

Qualification is significant because idesignates when security of tenurebegins.

Oath of Office

An oath is an outward pledge whereby one

formally calls upon God to witness to the truth ofwhat he says or to the fact that he sincerelyintends to do what he says.

Although the law usually requires the taking oan oath, it is not indispensable. It is a mereincident to the office and constitutes no part of theoffice itself. However, the President, VicePresident and Acting President are required by theConstitution (Art. VII, Sec. 5) to take an oath oraffirmation before entering into the execution otheir office. Such oath-taking is mandatory.

Q: Who are authorized to administeoaths?

A: (1) Notaries public;(2) Judges;(3) Clerks of court;(4) Secretary of House / Senate;(5) Secretary of Exec. Departments(6) Bureau Directors;(7) Register of Deeds;(8) Provincial governors;(9) City mayors;(10) Municipal mayors;


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(11) Any other officer in the serviceof the government of thePhilippines

whose appointment is vestedin the President;(12) Any other officer whose duties,as defined by law or regulation,

require presentation to him ofany statement under oath

Q: Who are obliged to administer oaths inall instances, and not just in matters ofofficial business?

A: (1) Notaries public;(2) Municipal judges;(3) Clerks of court

Time of Taking the Oath of Office

A public officer must take his oath of officebefore entering upon the discharge of his duties.

Requalification

If a public officer is re-elected or re-appointed, he must take another oath and fulfill theother condition precedents before assumingoffice. The oath and other qualifications made priorto assumption of his previous office will not be validfor subsequent terms of office.

Giving of Bonds

Persons required to give bond

Q: Who are the public officers generallyrequired to give a bond?

A: (1) Accountable public officers or thoseto whom are entrusted thecollection and custody of publicmoney;

(2) Public ministerial officers whoseactions may affect the rights andinterests of individuals.

The bond is in the nature of an indemnitybond rather than a penal or forfeiture bond.

The bond is also an obligation bindingthe sureties to make good the officersdefault. It is required not for the benefit ofthe office holder, but for the protection ofthe public interest and is designed toindemnify those suffering loss or injury byreason of misconduct or neglect in office.

Effect of Failure to Give Bond within the PrescribedPeriod

If not condition precedent:Failure to give bond merely constitutes a ground

for forfeiture of the office; it is not forfeiture of theoffice ipso facto.

IF condition precedent:Failure to give bond within the prescribed periodrenders the office vacant.

Term and Tenure of Office

Term of Office and Tenure of Office Distinguished

Term of Office Tenure of Office Dejure De facto

Fixed and definite period of time Period duringwhich the incumbentduring which the officer mayactually holds the office. It may beclaim to hold the

office as of right shorter than the term.

Alba v. Evangelista

It is only in those cases in which the officeis held at the pleasure of the appointing power andwhere the power of removal is exercisable at itsmere discretion that the officer may be removedwithout notice or hearing.

Power of the Legislature to Fix and Change the

Term of Office

RULES:

Where the term is fixedby the Constitution:

Congress has no power to alter the term.

However, such term of office can beshortened or extended

by the vote of the people ratifying aconstitutional amendment.

Where the termis not fixed: Congress may fix the terms oofficersother than those provided for in the Const.

Congress has the power to changethe tenure of officers holding officescreated by it. However, if the term islengthened and made to apply to theincumbents, this could be tantamount to alegislative appointment which is null andvoid.


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When Term of Office Dependent upon "Pleasure ofthe President"

Congress can legally and constitutionallymake the tenure of certain officials dependent uponthe pleasure of the President. (Alba v. Evangelista)

Where the office is held at the pleasure ofthe appointing power and such appointing powercan exercise the power of removal at his merediscretion, the public officer may be removedwithout notice or hearing. (Alba v. Evangelista)

No Vested Interest in Term of Office

Public office is a privilege revocable by thesovereignty at will. An incumbent cannot validlyobject to the alteration of his term since he has novested right in his office. (Greenshow v. U.S.)

Term of Office Not Extended by Reason of War

There is no principle, law or doctrine bywhich the term may be extended by reason ofwar. (Nueno, et al. v. Angeles)

Doctrine of Holdover

Q: What is the doctrine of hold-over?

A:A public officer whose term has expired orservices have been terminated is allowed tocontinue holding his office until his successor is

appointed or chosen and hadqualified. (Mechem)

Purpose of the Hold-Over Rule

Public interest. It is to prevent a hiatus inthe government pending the time when a successormay be chosen and inducted into office.

Holding-Over Rules

(1) Where the law provides for it:(2) The office does not become vacant

upon the expiration of the term if thereis no successor elected and qualified toassume it. Incumbent will hold-overeven if beyond the term fixed by law.

(3) Where the law is silent:

(4) Unless hold-over is expressly orimpliedly prohibited, incumbent mayhold-over.

(3) Where the Constitution limitsthe term of a public officer and

does not provide for hold-over: Holdover is not permitted.

Commencement of Term of Office

RULES:

(1) Where the time is fixed: Theterm will begin on the specified date.

(2) Where no time is fixed: Theterm will generally begin on thedate of the election or theappointment.

POWERS AND DUTIES OF PUBLIC OFFICERS

Source of Government Authority: The peoplethe sovereignty.

Scope of Powers of a Public Officer

Lo Cham v. Ocampo

The duties of a public office includes all thosewhich truly are within its scope:

(1) those which are essential to theaccomplishment of the main purpose for which theoffice was created; or

(2) those which, although incidental or collateralare germane to and serve to promote theaccomplishment of the principal purpose.

Territorial Extent of Powers of Public Officer

GENERAL RULE:Where a public officer is authorized by law toperform the duties of his office at a particular placeaction at a place not authorized by law is ordinarilyinvalid. (Note: This rule is applicable to all publicofficers whose duties are essentially local in naturee.g. judges.)

EXCEPTIONS:(1) Consuls;

(2) Police officers, who may arrest personsfor crimes committed outside Philippineterritory;

(3) Doctrine of hot pursuit

Duration of Authority of Public Officers


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The duration of the authority of public officers islimited to that term during which he is, by law, invested withthe rights and duties of the office.

Construction of Grant of Powers

Strict construction. Will be construed as conferringonly those powers which are expresslyimposed or necessarily implied.

Classification of Powers

Discretionary Ministerial

Definition Acts whichrequire theexercise ofreason indeterminingwhen, where,and how toexercise thepower

Acts which areperformed in agiven state offacts, in aprescribedmanner, inobedience to themandate of legalauthority, without

regard to or theexercise of hisown judgmentupon the proprietyor impropriety ofthe act done(Lamb v. Phipps)

Can bedelegated?

Generally, NO.

Exception: When the power tosubstitute /

delegate hasbeen given

Generally, YES.

Exception: When the lawexpressly requires

the act to beperformed by theofficer in personand / or prohibitssuch delegation

When ismandamusproper?

Only if the dutyto do somethinghas beendelayed for anunreasonableperiod of time.

In all cases.

Is publicofficerliable?

Generally notliableExceptions: if

there is fraud ormalice

Liable if dutyexercised contraryto the mannerprescribed by law.

Discretion; Discretionary PowerMinisterial Duty

Q: What is discretion?

A: Discretion, when applied to public functionariesmeans a power or right conferred upon them bylaw of acting officially in certain circumstancesaccording to the dictates of their own judgmenand conscience, uncontrolled by the judgmenor conscience of others. (Lamb v. Phipps)

Q: What is a ministerial act?

A: A purely ministerial act is one whichan officer or tribunal performs ina given state of facts, ina prescribed manner, in obedienceto the mandate of legaauthority, without regard to or theexercise of his own judgment uponthe propriety or impropriety of theact done. A ministerial act is oneto which nothing is left to thediscretion of the person who musperform. It is a simple, definiteduty arising under conditionsadmitted or proved to exist and

imposed by law. It is a precise actaccurately marked out, enjoinedupon particular officers for aparticular purpose. (Lamb vPhipps)

Lamb v. Phipps

Auditors and comptrollers, asaccounting officers, are generally regardedas quasi-judicial officers. They performmere ministerial duties only in cases where

the sum due is conclusively fixed by law opursuant to law. Except in such cases, theaction of the accounting officers uponclaims coming before them for settlemenand certification of balances found by themto be due, is not merely ministerial bujudicial and discretionary. Mandamus wiltherefore not issue.

Torres v. Ribo

The powers of the Board of Canvassersare quasi-judicial and thereforediscretionary.

Aprueba v. Ganzon

Mandamus will not issue to control orreview the exercise of discretion of a publicofficer where the law imposes on him theright or duty to exercise judgment inreference to any matter in which he isrequired to act.


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The privilege of operating a market stallunder license is not absolute but revocableunder an implied lease contract subject tothe general welfare clause.

Mandamus never lies to enforce theperformance of contractual obligations.

Miguel v. Zulueta

Public officers may properly becompelled by mandamus to remove orrectify an unlawful act if to do so is withintheir official competence.

Q: When will the writ of mandamus issue?

A:

To correct a gross abuse ofdiscretion, a palpable excess ofauthority resulting in manifest

injustice (Gesolgon v. Lacson);

Where the question ofconstitutionality is raised by thepetitioner (Cu Unjieng v. Patstone);

Q: When will the writ of mandamus neverissue?

A: (1) To control discretion;

(2) When another adequate remedy

exists;(3) To enforce the performance ofcontractual obligations, as in the issuanceof a license / permit (Aprueba v. Ganzon);

Q: In filing a mandamus suit, when does ataxpayer not have to show that he

has any legal or special interest inthe results of such suit?

A: When the question is one of public rightand the object of the mandamus is to

procure the enforcement of a publicduty, such as the observance of thelaw. (Miguel v. Zulueta)

Time of Execution of Powers

Where not indicated:Within a reasonable time

Where indicated: Merely directory

Exceptions:

(1) When there is something in the statute whichshows a different intent (Araphoe City v. UnionPac);

(2) Where a disregard of the provisions of the

statute would injuriously affect a public interest orpublic right;

(3) When the provision is accompanied by negativewords importing that the acts shall not be done inany other manner or time than that designated.

Ratification of Unauthorized Acts

If act was absolutely void at the time it wasdone: Cannot be ratified

If merely voidable Can be ratified and renderedvalid

Where superior officers have authority to ratifythe acts of their inferiors, they are restricted tothe ratification of acts and contracts which theythemselves are empowered to make.

It is not enough that the public officer actedbeyond his powers in order that he may be heldliable for damages. If the act committedis reasonably related to his duties and theofficer was in good faith, he will not be heldliable.

Government not estopped by the unauthorized orIllegal acts of officers

As between an individual and his governmentthe individual cannot plead the void act of anofficial to shield him from the demand of thegovernment that he (the individual) fulfill anobligation which he has contracted with thegovernment, after the benefits accruing to himas a result of that obligation have beenreceived. The government can neither beestopped nor prejudiced by the illegal acts of its

servants. (Government v. Galarosa)

Hilado v. Collector

A tax circular issued on a wrongconstruction of the law cannot give rise to avested right that can be invoked by a taxpayer.


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Accountability and Responsibility of Public Officersand Employees

Norm of Performance of Duties

Q: What are the standards of personal conductprovided for in Sec. 4, RA 6713?

A: (1) Commitment to public interest; (2) Professionalism;(3) Justness and sincerity;(4) Political neutrality;(5) Responsiveness to the public;(6) Nationalism and patriotism;(7) Commitment to democracy;(8) Simple living

RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

Right to Office

The right to office is the right to exercise the powers

of the office to the exclusion of others.

Right to Salary or Compensation

GENERAL RULES:

A public officer is not entitled to compensationfor services rendered under an unconstitutionalstatute or provision thereof.

Exception: If some other statute providesotherwise.

If no compensation is fixed by law, the publicofficer is assumed to have accepted the office toserve gratuitously.

After services have been rendered by a publicofficer, the compensation thus earned cannot betaken away by a subsequent law. However, hecannot recover salary for a period during which heperformed no services.

One without legal title to office either by lawfulappointment or election and qualification is notentitled to recover salary or compensation attachedto the office.

One who intrudes into or usurps a public officehas no right to the salary or emoluments attachedto the office.

Compensation not an element of public office

Compensation is not indispensable topublic office. It is not part of the office but merelyincident thereto. It is sometimes expressly

provided that certain officers shall receive nocompensation, and a law creating an office withoutany provision for compensation may carry with itthe implication that the services are to be renderedgratuitously.

Salary, Wages, and Per Diems Defined andDistinguished

Salary: time-boundWages: service-boundPer Diem: allowance for days actuallyspent for special duties

Salary of Public Officer Not Subject to Attachment

The salary of a public officer oemployee may not, by garnishmentattachment, or order of execution, beseized before being paid by him, andappropriated for the payment of hisdebts.

Money in the hands of public officersalthough it may be due governmenemployees, is not liable to the creditorsof these employees in the process ogarnishment because the sovereignState cannot be sued in its own courtsexcept by express authorization bystatute. Until paid over by the agent othe government to the person entitledto receive it, public funds cannot in anylegal sense be part of his effectssubject to attachment by legal process

(Director of Commerce and Industry vConcepcion)

Future or Unearned Salaries Cannot be Assigned

The salary or emoluments in public officeare not considered the proper subject of barter andsale. (22 R.C.L. 541)

Agreements Affecting Compensation Held Void

An agreement by a public officer respectinghis compensation may rightfully be considered

invalid as against public policy where it tends topervert such compensation to a purpose other thanthat for which it was intended, and to interfere withthe officer's free and unbiased judgment in relationto the duties of his office. (This is usually withreference to unperformed services and the salaryor fees attached thereto.)

Right to Recover Salary: De Jure Officer and DeFacto Officer

Monroy v. CA and del Rosario


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Where a mayor filed a certificate ofcandidacy for congressman then withdrewsuch certificate and reassumed the positionof mayor, thus preventing the vice-mayorfrom discharging the duties of the positionof mayor, the mayor should reimburse tothe vice-mayor, as the right rightfuloccupant of the position of mayor, thesalaried which he had received.

Rodriguez v. Tan

Where a duly proclaimed electiveofficial who assumes office is subsequentlyousted in an election protest, the prevailingparty can no longer recover the salary paidto the ousted officer. The ousted officer,who acted as de facto officer during hisincumbency, is entitled to thecompensation, emoluments andallowances which are provided for theposition.

Exception: If there was fraud onthe part of the de facto officerwhich would vitiate his election.

Q: When can the de jure officer recover from:

(a) the government?

When the government continues topay the de facto officer even after thenotice of adjudication of the protest in favorof the de jure officer.

(b) A de facto officer?

When notice of adjudication of thetitle to the de jure officer has been given,and the de facto officer still continues toexercise duties and receive salaries andemoluments.

(c) An intruder / usurper?

At all instances.

Additional or Double Compensation Prohibited

Q: Differentiate additional compensationfrom double compensation.

AdditionalDouble

There is only 1 position,but There are 2 positions,and with additional functionsand the public officer

is getting additionacompensation.

emoluments for both positions.

Q: Differentiate the 2 kinds of allowances.

CommutableReimbursable

Given by virtue of the position The public officemust presentwhether or not he incurred a receipor certification under expenses for which theallowance oath that such amount was spent isgiven. Received as a matter in ordethat the public officer of right. May recover themoney spent.

There is a conclusive presumptionthat it was spent.

RULES:

Pensions / gratuities are noconsidered as additional, double, oindirect compensation. (Sec. 8, Art. IXB, 1987 Constitution)

By its very nature, a bonus partakes oan additional remuneration ocompensation. (Peralta v. AuditoGeneral)

An allowance for expenses incident tothe discharge of the duties of office is

not an increase of salary, a perquisitenor an emolument of office. (Peralta vAuditor-General)

Can Public Officer Recover Salary for Period oSuspension?

RULES:

If preventively suspended: NO, hecannot recover salary.

BUT: If he is subsequently exoneratedhe can recover salary for the period of hispreventive suspension.

If he was given penalty ofremoval from officebut was YES, he can recover becausecompletelyexonerated upon he was completelyexonerated.appeal:

If he was given penalty ofremoval from officebut his NO, because he was still foundpenalty was commuted from guilty although thepenalty was removal to mere


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suspension, reduced. ordemotion:

If the suspension / removal from office is

unjustified: YES.

Q: In summary, when can payment ofsalaries corresponding to the period

when an employee was suspendedbe allowed?

A:(1) When he is found innocent of the charges

whichcaused his suspension;(2) When the suspension is unjustified (Abellera v.

City of Baguio)

ADMINISTRATIVE DISCIPLINE

Over Presidential Appointees

Olonan v. CSC

Administrative charges were filed against the PUPPresident and other officers for violations of RA 3019 withthe CSC. Olonan et.al. filed a motion to dismiss thecomplaint contending principally that the CSC has nojurisdiction to try and decide the case against her, shebeing a presidential appointee. The CA upheld Olonanscontention. There is nothing in the provisions of theConstitution or the Administrative Code of 1987 which givesthe CSC the power to discipline presidential appointees likepetitioner herein. Sec. 47(1), Book V of EO 292 whichprovides that a complaint may be filed directly with the

CSC by a private citizen against a government official oremployee in which case it may hear and decide the casemust be read together with Sec. 48 which is entitledProcedure in Administrative Cases Against Non-Presidential Appointees. The very subject of Sec. 48implicitly limits the scope of the CSCs jurisdiction inadministrative cases to non-presidential appointees andmakes patent the conclusion that the disciplinary authorityover presidential appointees lies elsewhere the Presidentas appointing power himself.

Power to Appoint Implies the Power to Remove;Exceptions

a) Justices of the Supreme Court (byimpeachment)b) Members of ConstitutionalCommissions (by impeachment)c) Ombudsman (by impeachment)d) Judges of inferior courts (disciplinary

or removal power vestedin the Supreme Court)

Bonifacio Sans Maceda v. Vasquez

A judge who falsifies his Certificate of Service isadministratively liable to the SC for serious misconduct andinefficiency under Sec. 1, Rule 140 of the Rules of Courand criminally liable to the State under the Revised PenaCode for his felonious act. Where a criminal complaintagainst a judge or other employee arises from theiradministrative duties, the Ombudsman must defer action onsaid complaint and refer the same to the SC fordetermination whether said judge or court employee hadacted within the scope of their administrative duties. Thusthe Ombudsman should first refer the matter to the SC fordetermination of whether the certificates reflected the truestatus of his pending case load, as the SC had thenecessary records to make such a determination. Art. VIIISec. 6 of the Constitution exclusively vests in the SCadministrative supervision over all courts and courpersonnel.

Dolalas v. Ombudsman-Mindanao

Citing the Maceda case, the SC power oadministrative supervision over judges and court personneis exclusive. Investigation by the Ombudsman violates the

specific constitutional mandate of the SC and underminesthe independence of the judiciary.

Over Non-Presidential Appointees

Grounds

Sec. 46(a), Book V of EO 292 provides thatNo officer or employee in the Civil Service shall besuspended or dismissed except for cause asprovided by law and after due process. Thegrounds constituting just cause are enumerated in

Sec. 46(b).

Jurisdiction

Original complaints may be filed: (a) directly withthe CSC or (b) with the Secretaries and heads oagencies and instrumentalities, provinces, cities andmunicipalities for officers and employees under theijurisdiction.

Decisions of Secretaries and heads of agencies andinstrumentalities, provinces, cities and municipalitiesshall be final in case the penalty imposed is suspension

for not more than thirty days or fine in an amount noexceeding thirty days salary.

In case the decision rendered by a bureau or officehead is appealable to the Commission, the same maybe initially appealed to the department and finally to theCommission and pending appeal, the same shall beexecutory except when the penalty is removal, in whichcase the same shall be executory only afterconfirmation by the Secretary concerned.

Decisions imposing the penalty of suspension fomore than thirty days or fine in an amount exceeding


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officials may be preventively suspended for only sixty(60) days. If the case is filed in the Ombudsman, thelatter may impose a preventive suspension for a periodof six (6) months.

When the administrative case against the officer oremployee under preventive suspension is not finallydecided by the disciplining authority within the period ofninety (90) days after the date of suspension of therespondent who is not a presidential appointee, therespondent shall be automatically reinstated in theservice.

Penalty

In meting out punishment, the same penalties shallbe imposed for similar offenses and only one penaltyshall be imposed in each case.

The disciplining authority may impose the penalty ofremoval from the service, demotion in rank, suspensionfor not more than one year without pay, fine in anamount not exceeding six months salary, or reprimand.

(Sec. 46(d), Book V, EO 292)

If the respondent is found guilty of two or morecharges or counts, the penalty imposed should be thatcorresponding to the most serious charge or count andthe test may be considered as aggravatingcircumstances. (Sec. 17 of the Implementing CivilService Rules and Regulations)

A reprimand whether given by the Civil ServiceCommission or the head of department or agency shallbe considered a penalty. However, a warning or anadmonition shall not be considered a penalty. (Sec. 15

of the Implementing Civil Service Rules andRegulations)

Tobias v. Veloso

Reprimand is a penalty. In this case, policechief is not entitled to back wages as Sec. 16 of thePolice Act of 1966 expressly provides that asuspended member of the police force shall beentitled to his salary for the period of hissuspension upon exoneration. A reprimand is not

equivalent to an exoneration. It is more severe thanan admonition, which is considered a mild rebuke.A reprimand is administered to a person in fault byhis superior officer or a body to which he belongs. Itis an administrative penalty, although it may beslight form of punishment.

NOTE: A warning is an act or factof putting one on his guard; an admonition is a

gentle or friendly reproof or a mildrebuke; while a reprimand is aformal and public censure or asevere reproof.

Removal of Administrative Penalties or Disabilities

In meritorious cases and upon recommendation ofthe CSC, the President may commute or removeadministrative penalties or disabilities imposed uponofficers or employees in disciplinary cases, subject tosuch terms and conditions as he may impose in theinterest of the service.

Over Elective Officials

Impeachment

A verified complaint may be filed by any member ofthe House of Representatives or by any citizen upon aresolution of endorsement by any member thereof.

Complaint shall be included in the Order oBusiness within ten sessions days and referred to theproper Committee within three sessions daysthereafter.

The Committee, after hearing, and by a majorityvote of all its members, shall submit its report to theHouse within sixty session days from such referraltogether with the corresponding resolutions. Theresolution shall be calendared for consideration of theHouse within ten session days from receipt thereof.

A vote of at least one-third of all the members of theHouse shall be necessary either to affirm a favorableresolution with the Articles of Impeachment of theCommittee, or override its contrary resolution.

In case the verified complaint or resolution oimpeachment is filed by at least one-third of all themembers of the House, the same shall constitute theArticles of Impeachment, and trial by the Senate shalforthwith proceed.

The Senate shall have the sole power to try anddecide all cases of impeachment. When sitting for thapurpose, the Senators shall be on oath or affirmationWhen the President of the Philippines is on trial, theChief Justice of the Supreme Court shall preside, butshall not vote. No person shall be convicted without theconcurrence of two-thirds of all the members of the

Senate.

Judgment in cases of impeachment shall not extendfurther than removal from office and disqualification tohold office under the Republic of the Philippines, but theparty convicted shall nevertheless be liable and subjecto prosecution, trial and punishment according to law.

No impeachment proceedings shall be initiatedagainst the same official more than once within a periodof one year.


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Local Elective Officials (Sec. 60-68, Local GovernmentCode)

Grounds for Disciplinary Actions

(1) Disloyalty to the Republic of the Philippines

(2) Culpable violation of the Constitution

(3) Dishonesty, oppression, misconduct in office,gross negligence, ordereliction of duty

(4) Commission of any offense involving moralturpitude or an offense punishable by at leastprision mayor

(5)Abuse of authority

(6) Unauthorized absence for fifteen (15)consecutive days, except in the case ofmembers of the sangguniang panlalawigan,sangguniang panlungsod, sangguniangbayan, and sangguniang barangay

(7) Application for, or acquisition of, foreigncitizenship or residence or the status of

an immigrant of another country

(8) Such other grounds as may be provided in thisCode and other laws.

Procedure

(1) Verified Complaint

A verified complaint may be filed against any erring local

elective official and submitted to the following disciplinaryauthorities:

Office of the President -elective official of a province, a highly urbanized

city, an independent component city or componentcity;

Sangguniang panlalawigan -elective official of a municipality

Sangguniang panlungsod orsangguniang bayan -elective barangay official

(2) Answer

Within seven (7) days after the administrative complaintis filed, the Office of the President or the sanggunianconcerned, as the case may be, shall require therespondent to submit his verified answer within fifteen (15)days from receipt thereof

(3) Investigation

The investigation of the case shall be commencedwithin ten (10) days after receipt of such answer of therespondent.

However, no investigation shall be heldwithin ninety (90) days immediately prior to any locaelection, and no preventive suspension shall be imposedwithin the said period.

Preventive Suspension

Preventive suspension may be imposed:

a) By the President:if the respondent is an elective official of aprovince,a highly urbanized or an independencomponent city;

b) By the governor: if the respondent is anelective official of a component city or municipality; or

c) By the mayor: if the respondent is an electiveofficial of the barangay.

Preventive suspension may be imposed at any timeafter the issues are joined, when the evidence of guilt isstrong, and given the gravity of the offense, there isgreat probability that the continuance in office of therespondent could influence the witnesses or pose athreat to the safety and integrity of the records andother evidence.

However, any single preventive suspension of locaelective officials shall not extend beyond sixty (60days.

Furthermore, in the event that severaadministrative cases are filed against an electiveofficial, he cannot be preventively suspended for morethan ninety (90) days within a single year on the sameground or grounds existing and known at the time of thefirst suspension.

Upon expiration of the preventive suspension, thesuspended elective official shall be deemed reinstatedin office without prejudice to the continuation of theproceedings against him, which shall be terminatedwithin one hundred twenty (120) days from the time hewas formally notified of the case against him.

Note: The respondent officiapreventively suspended from office shall receive nosalary or compensation during such suspensionbut upon subsequent exoneration andreinstatement, he shall be paid full salary orcompensation including such emoluments accruingduring such suspension.

Note: No preventive suspensionshall be imposed within ninety (90) daysimmediately prior to any local election. If preventivesuspension has been imposed prior to the 90-day


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period immediately preceding local election, it shallbe deemed automatically lifted upon the start of theaforesaid period.

Rights of Respondent

The respondent shall be accorded full opportunityto appear and defend himself in person or by counsel, toconfront and cross-examine the witnesses against him, andto require the attendance of witnesses and the productionof documentary process of subpoena or subpoena ducestecum.

Form and Notice of Decision

The investigation of the case shall be terminatedwithin ninety (90) days from the start thereof.

Within thirty (30) days after the end of theinvestigation, the Office of the President or thesanggunian concerned shall render a decision in writingstating clearly and distinctly the facts and the reasonsfor such decision.

The penalty of suspension shall not exceed theunexpired term of the respondent or a period of six (6)months for every administrative offense, nor shall saidpenalty be a bar to the candidacy of the respondent sosuspended as long as he meets the qualificationsrequired for the office.

The penalty of removal from office as a result of anadministrative investigation shall be considered a bar tothe candidacy of the respondent for any electiveposition.

Administrative Appeals

Decisions in administrative cases may, within thirty(3) days from receipt thereof, be appealed to thefollowing:

a) The sanggunian panlalawigan in the case ofdecisions of:

(1) sangguniang panlungsod of component cities;and

(2) sangguniang bayan;

b) The Office of the President: in the case ofdecisions of:

(1) the sangguniang panlalawigan;(2) the sangguniang panlungsod of highly

urbanized cities;(3) the sangguniang panglungsod of independent

component cities.

Decisions of the Office of thePresident shall final and executory.

Execution Pending Appeal

An appeal shall not prevent a decision frombecoming final or executory. The respondent shall beconsidered as having been placed under preventivesuspension during the pendency of an appeal in the evenhe wins such appeal. In the event the appeal results in anexoneration, he shall be paid his salary and such otheemoluments during the pendency of the appeal.

TERMINATION OF OFFICIAL RELATIONS

Modes of Termination

1) Expiration of Term or Tenure of Office

a) End of a fixed termb) End of Pleasure where one holdsoffice at pleasure of appointing authorityc) Loss of confidence in primarilyconfidential employment

2) Reaching the age limit; Retirement3) Bona fide abolition of office4) Abandonment of office5) Acceptance of an incompatible office6) Resignation7) Resignation8) Removal for cause9) Temporary appointments termination10) Recall11) Impeachment12) Prescription of right to office13) Death

14) Conviction of crime where disqualification is anaccessory penalty15) Filing of certificate of candidacy16) Performance of act or accomplishment of purposefor which the office was created

Expiration of Term or Tenure of Office

End of Fixed Term

Upon the expiration of the officers term

unless he is authorized by law to hold over, hisrights, duties and authority as a public officer mustbe ipso factoterminated.

End of pleasure where one holds office at the pleasure othe appointing authority

Alba v. Evangelista

President can validly terminate tenure of ViceMayor of Roxas City as the office was created atthe pleasure of the President. What is involved hereis not the question of removal, or whether lega


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cause should precede or not that of removal. Whatis involved here is the creation of an office and thetenure of such office, which has been madeexpressly dependent upon the pleasure of thePresident.

Fernandez v Ledesma

The Charter of Basilan City provides that thePresident shall appoint and may remove at hisdiscretion any of the citys officers, including itsChief of Police, with the exception of the municipaljudge, who may be removed only according to law.The legislative intent is to make continuance inoffice dependent upon the pleasure of thePresident. Congress has the power to vest suchpower of appointment. Further, A public office isthe right for a given period, either fixed by law orenduring at the pleasure of the creating power.Alba v. Evangelista states that the replacement isnot removal, but an expiration of tenure, which is anordinary mode of terminating official relations. Whatis involved is not removal, or whether legal cause

should precede such removal, but the creation ofan office and the tenure of such office, which hasbeen made expressly dependent upon the pleasureof the President.

Loss of Confidence in Primarily Confidential Employment

Hernandez v. Villegas

Even officers and employees of the civil serviceoccupying primarily confidential positions aresubject to the constitutional safeguard againstremoval or suspension except for cause.

Official and employees holding primarilyconfidential positions continue only for so long asconfidence in them endures. The termination oftheir official relation can be justified on the groundof loss of confidence because in that case, theircessation from office involves no removal butmerely the expiration of the term of office.

Ingles v. Mutuc

The statement that an officer holding a positionwhich is primarily confidential in nature is subjectto removal at the pleasure of the appointing poweris inaccurate. Such statement (a mere obiterin thecase of De los Santos v. Mallare), if detached fromthe context of the decision in said case, would beinconsistent with the constitutional command to theeffect that no officer or employee in the CivilService shall be removed or suspended except forcause as provided by law, and it is conceded thatone holding in the government a primarilyconfidential positions is in the Civil Service.

This should not be misunderstood as denyingthat the incumbent of a primarily confidentiaposition holds office at the pleasure only of theappointing power. It should be noted however, thawhen such pleasure turns into displeasure, theincumbent is not removed or dismissed fromoffice - his term merely expires in much thesame way as an officer, whose right thereto ceasesupon expiration of the fixed term for which he hadbeen appointed or elected is not and cannot bedeemed removed or dismissed therefrom, uponthe expiration of said term. The main differencebetween the former - the primarily confidentiaofficer - and the latter is that the latters term isfixed or definite, whereas that of the former is notpre-fixed but indefinite, at the time of hisappointment or election, and becomes fixed anddetermined when the appointing power expressesits decision to put an end to the services of theincumbent. When this event takes place, the latteis not removed or dismissed from officer - histerm has merely expired.

Gray v. De Vera

President appointed Gray as Boardsecretary of the Peoples Homesite and HousingCorporation but was later terminated through aboard resolution due to loss of confidence. SCreversed ruling that Grays appointment was apermanent one. Although the President, EO 99declared the position of secretary to the board of agovernment corporation primarily confidential innature, it does not follow that a board secretarywhose appointment was permanent may beremoved from office without a formal charge

specifying the ground for removal and withougiving him an opportunity to be head. Such removawas illegal since there was no lawful cause forremoval.

By declaring that the position is primarilyconfidential in nature, the President intended thathe position be filled by an appointee ofunquestioned honesty and integrity. The act ofGray in reporting the boards act ofmismanagement and misconduct was inconsonance with the honesty and integrity requiredfor the position.

Cario v. ACCFA

SC reversed termination of lawyers who wereappointed as permanent employees of ACCFAThat petitioners positions are primarily confidentiais immaterial. The Constitution merely exceptsprimarily confidential positions from the coverage othe rule requiring appointments in the civil serviceto be made on the basis of merit and fitness asdetermined from the competitive exams, but doesnot exempt such positions from the operation of theprinciple that no officer or employee in the civi


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arise. The right itself disappeared with the abolishedoffice as an accessory following the principal.

Busacay v. Buenaventura

Busacay was laid off as toll collector when thebridge was destroyed. However, the bridge waslater reconstructed and opened to the public with anew collector being appointed. Busacay wasordered reinstated by the SC. To consider an officeabolished, there must have been an intention to doaway with it wholly and permanently. In the case atbar, there was never any thought of not rebuildingthe bridge. The collapse of the bridge did not workto destroy but only to suspend the position of tollcollector thereon, and upon its reconstruction andre-opening, the collectors right to the position wassimilarly and automatically restored.

Manalang v. Quitoriano

The National Employment Service was

established by R.A. No. 761 in lieu of thePlacement Bureau. Quitoriano was appointed asNES Commissioner in spite of the recommendationof the Labor secretary to appoint Manalang whowas the incumbent Director of the PlacementBureau. SC held that appoint of Quitoriano wasvalid. A removal implies that the office still exists.R.A. No. 761, creating NES, expressly abolishedthe Placement Bureau and, by implication, theoffice of the Director of the Placement Bureau. HadCongress intended the NES to be a mereenlargement of the Placement Bureau, it wouldhave directed the retention, not the transfer, of

qualified personnel to the NES. Manalang hasnever been NES Commissioner and thus could nothave been removed therefrom.

Abolition Must Be in Good Faith

As well settled to the rule that the abolition of an officedoes not amount to an illegal removal or separation of itsincumbent is the principle that, in order to be valid, theabolition must be made in good faith, not for personal orpolitical reasons, and not implemented in violation of law.

Briones v. Osmea

Briones and Rosagaran were employees in theOffice of the City Mayor since 1937 and 1940,respectively, In 1956, the City created 35 newpositions and abolished 32, of which the positionsof Briones and Rosagaran were included.Consequently, the two were terminated. SC heldthat the termination was not valid. While abolitiondoes not imply removal of the incumbent, this ruleis true only where the abolition is made in goodfaith. In other words, the right to abolish cannot beused to discharge employees in violation of the

Civil Service law nor can it be exercised forpersonal or political reasons.

Facundo v. Pabalan

There is no law which expressly authorizes amunicipal council to abolish the positions it hascreated. However, the rule is well-settled that thepower to create an office includes the power toabolish it, unless there are constitutional ostatutory rules providing otherwise. But the officemust be abolished in good faith.

Cruz v. Primicias

As well settled as the rule that the abolition of anoffice does not amount to an illegal removal of itsincumbent is the principle that, in order to be validthe abolition must be made in good faith. Where theabolition is made in bad faith, for political orpersonal reasons, or in order to circumvent theconstitutional security of tenure of civil serviceemployees, it is null and void. In the case at bar

while 22 positions were abolished, 28 new positionswith higher salaries were simultaneously createdNo charge of inefficiency is lodged againspetitioners. In truth and in fact, what respondentssought to achieve was to supplant civil serviceeligibles with men of their choice, whose tenurewould be totally dependent upon their pleasure anddiscretion.

Reorganization

Reorganization occurs where there is an alterationof the existing structure of government offices or units

therein, including the lines of control, authority andresponsibility between them to promote greater efficiencyto remove redundancy of functions, or to effect economyand make it more responsive to the needs of their publicclientele. It may result in the loss of ones position throughremoval or abolition of office. Reorganization of thegovernment may be required by law independently ofspecific constitutional authorization. But in order to be validit must also be done in good faith.

Board of Directors of PCSO v. Alandy

Alandy was the incumbent Assistant Genera

Manager of the PCSO. In 1954, Resolution No. 314was passed to reorganize the PCSO. The positionof Assistant General Manager was converted toGeneral Field Supervisor to which Alandy wasappointed. However, in 1955, the position oAssistant General Manager was again createdthrough Resolution No. 422 and a different personwas appointed to the position. SC invalidated thenew appointment and reinstated Alandy to hisposition as PCSO Assistant General ManagerWhat occurred here is that the position of AssistantGeneral Manager was not abolished but wasmerely converted to another position. As such, the


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conversion merely caused the giving of additionalfunctions to Alandy, who still held the position ofAssistant General Manager.

Dario v. Mison

In pursuance of its reorganization policy, Pres.Aquino issued EO 127 in 1987 which provided forthe reorganization of the Bureau of Customs.Pursuant to EO 127, Commissioner Misonterminated a total of 310 employees. Upon appeal,the CSC ordered the reinstatement of 283employees which was upheld by the SC. Thedismissal are not valid. There is no dispute thatpursuant to the Freedom Constitution and thevarious executive orders issued by Pres. Aquino,the different departments of government wereauthorized to carry on reorganization programs. Butthe nature and ext

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