Public Officers Law

Public Officers Law
Chapter One DEFINITIIONS, DISTINCTIONS, AND CLASSIFICATIONS Meaning of office. Position or function by virtue of which a person has some employment in the affairs of another, whether selected by appointment or election, whether appointed during the pleasure of appointing power or for fixed term. Meaning of public office. Right, authority, and duty created and conferred by law, for a given period, an individual is vested with some portion of the sovereign functions of the government, to be exercised for the benefit of the public. It is also a charge, station or employment conferred by appointment or election by a government. Purpose and nature of public offices. 1. common good and not for profit, honor, or private interest 2. in the interest and for the benefit of the people, and belongs to them. Nature of public office is inconsistent with either property or contract. It is a responsibility not a right. Public office, as a public trust. 1. holders regarded as public servants powers delegated are held in trust for the people and are to be exercised in behalf of the government or of all citizens. It extends within the range of duties of his office. 2. holders subject to highest standards of accountability and service he is accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. It exacts from him standards not generally demanded or required from ordinary citizens. It should not be a means to promote his personal interests. Only justification for his continuance is his ability to advance public ends and contribute to the public welfare
Public office, not property. 1. holder subject to removal or suspension according to law it is not the property of the holder. He is not denied due process when the office is abolished before the expiration of his term; or by passing a statute limiting his compensation. 2. holder without vested right in any public office no one has a vested right over any public office he holds, much less a vested right to an expectancy of holding public office. Except Constitutional offices (special immunity as regards salary and tenure), no one has any vested right to an office or its salary. 3. holders right in nature of privilege entitled to protection right to office is recognized as a privilege entitled to the protection of the law When there is a dispute concerning ones constitutional right to security of tenure, public office is deemed analogous to property in a limited sense. 4. holders right personal to him it is not a property which passes to his heirs upon death. It cannot be inherited.
Everybody is somebodys fool.
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Public Officers Law
ILLUSTRATIVE CASE: A subsequent law changes the tenure of offices of justices and auxiliary justices of the peace. Held: though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If this right is to be taken away by statute, the terms should be clear in which the purpose is stated. Public office, not a contract. 1. creates no contractual relation between holder and the public - the incumbent is not under contract so as to withdraw his tenure, salary, and the like, from the control of the legislature, or to preclude the legislature from abolishing the office 2. 3. exists by virtue of some law it is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it generally entitles holder to compensation entitled to compensation for the performance of his public duties when the law attaches it to the office. If no salary is provided by law, incumbent is presumed to have accepted it without pay and cannot recover anything for service rendered by him. Public contract Will of the contracting parties subject to limitations of law Obligations only upon persons who entered the same
Public office and public contract distinguished. Public office As to creation Incident of sovereignty As to object Carrying out of sovereign as well as governmental functions affecting even persons not bound by the contract Tenure, duration, continuity and duties connected therewith; continuing and permanent
As to subject matter and scope
Limited duration and specific objects; terms define and limit duration and obligations, neither party may depart therefrom without consent of the other
Public office and public employment distinguished. Public office Public employment Key considerations In a sense employment; Every public every public office an employment is not an employment office
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Public Officers Law
Manner of creation and nature of duties
Created by law, with duties cast on the incumbent which involve exercise of sovereign power
Lacks one or more of the foregoing considerations
Essential elements of a public office. 1. created by the constitution, law or agency 2. invested with an authority to exercise some portion of the sovereign power for public interest 3. powers and functions are defined by the constitution, law or legislative authority 4. duties are performed independently, without control of a superior power other than law, unless they are those of a subordinate 5. continuing and permanent in nature Creation of public office. 1. generally constitutional or statutory provision or by authority conferred by it 2. by congress except the constitution, creation is primarily a legislative function a. in the exigencies of government it is necessary to create and define new duties, legislature has the discretion b. office created by the legislature is within the power of that body, may prescribe mode of filling the office, powers and duties by the President offices in the executive department, Presidents power of control may justify him to inactivate functions of a particular office. President has continuing authority to reorganize administrative structure of the OP.
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Modification or abolition of public offices. Power to create involves power to destroy. And the power to create extends to fix the number of positions and salaries of the holders. This power is inherently legislative. 1. offices created by Congress Congress may control, modify or abolish the office whenever such course may seem necessary, expedient or conducive to the public good. Power extends to consolidation of offices. When the public need ceases to exist, there is no obligation to continue the office. It is solely within the judgment of the governing authority to determine abolishment. 2. offices created by the Constitution may be modified or abolished by the people through a constitutional provision. Such are beyond the power of the legislature to alter or discontinue.
Exercise of sovereign powers and functions. 1. one of the most important criteria of public office there is an implied authority to exercise some portion of the sovereign power of the State in making, executing or applying the law.
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Public Officers Law
2. 3.
authority conferred by law public office means exercise of some portion of the sovereign power by enacting laws, executing them, or adjudicating controversies in the exercise of power extent of authority not material it is the duties of his office which make him a public officer and not the extent of his authority
Tenure and duration. 1. existence of definite tenure not material duration of tenure need not be for a fixed period. Absence of a definite tenure does not necessarily preclude a position or employment from constituting a public office 2. 3. continuance of office holder not material element of continuance, duties attached to the position continue though the office holder be changed, cannot be considered indispensable permanence of office not material if other elements are present, it can make no difference whether there can be but one act or series of acts to be done. But something more permanent than a single transaction or transitory act is commonly required to make the position a public office
Meaning of officer/public officer/employee. 1. officer connected with an office; one who holds public office is a public officer. When theres no office, there is no public officer. He can be elected or appointed, has designation or title given to him by law, and exercises functions concerning the public 2. under the Admin Code, employee is any person in the service of the government a. b. officer person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government when with reference to a person having authority to do a particular act or perform a particular function, officer includes any government employee having authority to do the act or exercise that function
Officer and employee distinguished. 1. in the law of public officer officer of greater importance, dignity and independence of his position, required to take an official oath, sometimes give an official bond, and called to account as a public officer for misfeasance or nonfeasance. He must be invested by law with a portion of the sovereign power, and authorized to exercise functions either of an exec, leg or judicial character. A subordinate or inferior is nonetheless an officer. 2. under the RPC public officer by election or appointment, the person takes part in the performance of public functions in the government, performs public duties as an employee
Meaning of public official. An officer of the government itself, his duly authorized acts are acts of the government. It is used synonymously with public officer. Classification of public offices/public officers.
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as to nature of functions: a. civil office/r b. military office/r as to creation a. constitutional office/r b. statutory office/r as to the department of government to which it belongs a. legislative office/r b. executive office/r c. judicial office/r as to branch of government served a. national office/r b. local office/r as to whether exercise of discretion is required a. quasi-judicial office/r require exercise of judgment b. ministerial office/r duty to execute the mandates lawfully issued, of their superior as to compensation a. lucrative office, office of profit or office coupled with an interest salary, compensation or fees are attached. Amount of salary supposed to be an adequate compensation and fixes the character of the office as a lucrative one b. honorary office no compensation is attached and is supposed to be accepted merely for public good
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Office of trust require exercise of discretion. Public officer either de jure or de facto. Chapter Two ELIGIBILITY AND QUALIFICATIONS
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Chapter 3: Acquisition of Right or Title to Office
A. In general Meaning of eligibility/eligible/ineligibility/ineligible. 1. eligibility state or quality of being legally fit or qualified to be chose. It is of a continuing nature and must exist both at the commencement and during occupancy of an office. 2. eligible legally fit or qualified to hold an office. Person who obtains a passing grade in a civil service exam or is granted a civil service eligibility, and whose name is entered in the register of eligibles 3. ineligibility lack of the qualifications prescribed by law for holding public office 4. ineligible a. legally or otherwise disqualified to hold an office b. disqualified to be elected to an office c. disqualified to hold an office, if elected or appointed to it d. a person disqualified to hold an office note: mere certification does not amount to an appointment to a position, nor does it ensure appointment Meaning of qualification. 1. endowment or accomplishment that fits one for office 2. act required by law to be done, like official oath or bond, before entering upon the performance of duties. Congress may determine eligibility and qualifications. Nature of right to hold public office. 1. not a natural right it exists only because and by virtue of some law creating and conferring it qualifications must be complied with by persons seeking that office. One must be eligible and possess the qualifications prescribed by law. Election or appointment of one who is ineligible or unqualified gives him no right to hold office 2. not a constitutional right it is a political privilege which depends upon the favor of the people, coupled with reasonable conditions for the public good. He must comply with reasonable, lawful and non-discriminatory terms laid down by law.
Power of Congress to prescribe qualifications. 1. in general Congress is generally empowered to prescribe the qualifications provided it does not exceed its constitutional powers or impose conditions of eligibility inconsistent with constitutional provision. It must always have a rational basis. Qualifications must not be too detailed as to amount to making an appointment which is an executive function 2. where office created by congress congress can deal with the subject of qualifications and disqualifications provided it does not impinge upon any express provision of the constitution
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where office created by the Constitution where the Constitution establishes specific eligibility requirements, they are exclusive. where qualifications prescribed by the Constitution qualifications are not self-executing. They are mere announcements of general principles requiring legislation for their enforcement. Where the Constitution has prescribed certain qualifications, Congress may prescribe additional qualifications unless it is prohibited.
ILLUSTRATIVE CASE: An unqualified person was appointed in an acting capacity. Held: An unqualified person cannot be appointed even in an acting capacity Power of Congress to prescribe disqualifications. Congress has the right to provide disqualifications. But it may not add disqualifications where the Constitution has provided them in a way as to indicate that the disqualifications provided shall embrace all that are to be permitted. When the Constitution has attached a disqualification, Congress cannot remove. ILLUSTRATIVE CASE: Act adds grounds of disqualification of a Supreme Court Justice. Held: No act of the legislature repugnant to the Constitution can become a law. The Constitution provides how a court will be composed and how it may sit in judgment. Construction of restrictions on eligibility. 1. presumption in favor of eligibility unless excluded by some legal disqualification, all persons are normally and equally eligible to public office 2. 3. basis of presumption constitutional and statutory provisions which tend to limit the candidacy of any person for public office must be construed in favor of the right of the voters to exercise their choice, and construed strictly. rule of liberal construction right to public office should be strictly construed against ineligibility. The right of a citizen to hold office is the general rule, ineligibility the exception But it does not mean that courts should give an unreasonable construction in order to uphold the right of one to hold office. Time of possession of qualifications. 1. where time specified by Constitution or law necessary qualifications must be possessed at the time specified by law 2. where Constitution or law is silent a. some courts eligibility means capacity of holding office and if qualified at the time of commencement of the term, disqualification at the time of appointment is immaterial
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b. c. 3.
other courts conditions of eligibility must exist at the time of election or appointment and existence only at the time of commencement of term is not sufficient to qualify him for office where provision refers to holding office, the qualifications are to be determined at the time of the commencement of the term rather than at the time of the election
when qualifications must always exist a. eligibility is of a continuing nature and must exist at the commencement of the term and during the occupancy of the office b. c. the will of the people as expressed through the ballot cannot cure the vice of ineligibility especially if mistakenly believed that the candidate is qualified Qualifications of Elective Officials (not of candidates) does not specify any time when the candidate must possess qualifications
Removal of disqualification during term. Some courts hold that such removal validates the title of the incumbent, while others take the contrary view, depending on the nature of the disqualification, the mode of removing it, the time at which it is removed, etc. ILLUSTRATIVE CASE: Elected mayor was less than the minimum age requirement of 23 when proclaimed elected. Held: Good faith does not cure a candidates ineligibility although it might be a good defense in a criminal prosecution. B. Particular Qualifications and Disqualifications Qualifications usually required of public officers. Qualifications are a continuing requirement and must be possessed not only at the time of appointment but also during the officers entire tenure. 1. citizenship aliens are not eligible to public office unless the privilege is extended to them by statute the qualifications prescribed for elective office cannot be erased by the electorate alone. 2. 3. age the age limit for certain offices may be placed beyond the period of majority. The fact that the candidate was elected will not make the age requirement directory nor will it validate his election right to suffrage where the law is silent, it is to be understood that only electors are eligible. But there is a view that all persons are equally eligible to office who are not excluded by legal disqualification, and if not excluded, persons not electors may be appointed to office
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residence domicile and residence are synonymous. Both import the intention to reside in a fixed place, and personal presence in that place, coupled with conduct indicative of such intention education - statutes prescribe educational qualifications when they reasonably relate to the specialized demands of the office, enabling the holder to properly and intelligently perform the duties of the office ability to read and write no constitutional prohibition against it, especially where it has a reasonable relationship to the duties of the position political affiliation civil service examination ensure that such appointment is made only according to merit and fitness to perform the duties and assume the responsibilities of the positions
Religious qualifications prohibited. The Constitution provides that no religious test shall be required for the exercise of civil or political right. A religious test is one demanding avowal or repudiation of certain religious beliefs before the performance of an act. Power of Congress to impose property qualifications. 1. view that law is constitutional unless prohibited by the Constitution, a legislature has the power to impose property qualifications upon office holders. 2. view that law is unconstitutional it is some sort of economic gerrymandering which runs afoul of the equal protection and due process clauses. There is no rational between qualifications for administering public affairs and ownership of real property. It is inconsistent with the essence and nature of the republican system. Social justice presupposes equal opportunity for all.
Qualifications prescribed by the Constitution for certain officers. 1. President and Vice-President natural-born citizen, registered voter, read and write, at least 40 years old, resident of the Philippines for at least 10 years immediately preceding the elections 2. 3. 4. 5. senators natural-born, at least 35, read and write, registered voter, resident for not less than 2 years immediately preceding the day of the election members of the house of representatives natural-born, at least 25, read and write, registered voter of district (except party-list), resident thereof for not less than 1 year members of the supreme court and lower collegiate court natural-born, at least 40 (SC), judge or engaged in the practice of law in the Philippines for 15 years or more, proven competence, integrity, probity and independence chairman and commissioners of CSC natural-born, at least 35, proven capacity for public administration, not been a candidate for any elective position before appointment
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chairman and commissioners of Comelec natural-born, at least 35, college degree, not candidate for election. Majority must be members of the Philippine bar engaged in the practice of law for at least 10 years chairman and commissioners of COA natural-born, at least 35, CPA with not less than 10 years of auditing experience, or members of the Philippine bar engaged in the practice of law for at least 10 years, not candidate for election. At no time shall all members be of the same profession chairman and members of CHR natural-born, at least 40, majority are members of the bar ombudsman and his deputies natural-born, at least 40, proven probity and independence, members of the Philippine bar, not candidates for election. Ombudsman 10 years or more judge or practice of law
Qualifications prescribed by law for certain officers. 1. department secretaries citizens, not less than 25 2. 3. 4. 5. CA justices same qualifications for SC justices RTC judges natural-born, at least 35, 10 years practice of law or held public office requiring practice of law MTC, MuTC, MCTC judges natural-born, at least 39, 5 years practice of law or has held public office requiring admission to practice law elective local officials a. citizen, registered voter, resident for at least 1 year, read and write Filipino or local language b. c. d. e. f. 6. governor, vice, sanghuniang panlalawigan, mayor, vice, sangguniang panglunsod (urbanized cities) at least 23 mayor, vice, sanggunian (independent component cities) at least 21 sangguniang panglunsod or bayan at least 18 punong barangay or sangguniang barangay 18 sangguniang kabataan 15 to 21
members of the Board of Election Inspectors good moral character, irreproachable reputation, registered voter, never convicted of election offense or pending information, speak and write English or local dialect
Disqualifications to hold public office. Those who lack any of the qualifications are ineligible or disqualified from holding such office. Appointment of ineligible a nullity.
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1. 2. 3. 4. 5.
mental or physical incapacity blind not necessarily disqualified unless expressly stated. Idiot is disqualified (ah hello!) misconduct or crime when it involves an ordinance, it must involve a certain degree of evil doing, immoral conduct, corruption, malice, etc impeachment punishment limited to removal from office and disqualification to hold any office. The penalties attached are merely incidental to the protection of the people as a body politic removal or suspension from office law can attach ineligibility to suspension or removal but where there is no constitutional or statutory declaration of ineligibility, courts may not impose disability. previous tenure of office a. President no re-election b. Chairmen and commissioners of CSC, Comelec, COA, Ombudsman, deputies no reappointment, OB cannot run for office immediately after consecutive terms a. VP not more than 2 b. Senator not more than 2 c. Member of the house not more than 3 d. Elective local officials, except barangay, not more than 3 holding more than one office no protected right to hold incompatible office. Limitations on the right to hold more than one office: a. President, VP, Cabinet/deputies not hold any other office or employment during tenure b. Congress not hold any other office in the government without forfeiting his seat. If accepts other employment during his term (not tenure), he forfeits his seat c. SC not designated to any agency performing quasi-judicial or administrative functions d. ConComs no other office or employment during tenure e. OB same as ConComs f. Appointive official no other office or employment in the government g. Armed forces in active service cannot be appointed or designated in civilian capacity Accept a second office, deemed vacated the first.
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relationship with appointing power- appointments based solely on merit and fitness uninfluenced by any personal or filial consideration. Nepotism prohibited. office newly created or the emoluments of which have been increased no appointment of member of congress to an office which may have been created or the emoluments increased during term for which he was elected
10. being an elective official not eligible for appointment or designation in any capacity to any public office or position during his tenure (not term). He may be appointed but he forfeits his seat.
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11. having been a candidate for any elective position lost in the last elections, cannot be appointed to government office or GOCC 12. under the local government code persons disqualified from running for any elective local position: a. sentenced by final judgment for crimes involving moral turpitude punishable by 1 or more years of imprisonment, within 2 years after serving sentence b. c. d. e. f. g. removed from office as a result of an administrative case convicted by final judgment for violating oath of allegiance to the Philippines dual citizenship fugitive from justice in criminal or non-political cases here or abroad permanent residents of foreign countries insane or feeble-minded
With respect to the appointment of elective and appointive local officials and candidates who lost: a. not eligible for appointment or designation in any capacity to any public office during his tenure. Unless otherwise allowed, no elective or appointive local official shall hold any other office or employment in the government. b. except losing candidates in baranagy elections, no losing candidate shall, within 1 year of loss, be appointed to any office in the government Chapter Three ACQUISITION OF RIGHT OR TITLE TO OFFICE
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Public Officers Law
Chapter 4: Powers, Duties, and Norms of Conduct of Public Officers
A. In General Modes of commencing official relations. By election or appointment Meaning of appointment. 1. appointment act of designation by the executive officer to whom power has been delegated, of the individual who is to exercise the powers and functions of a given office 2. 3. it is equivalent to filling a vacancy appoint nomination or designation of an individual to an office
Where appointing power resides. 1. inherently belongs to the people belongs where the people have chosen to place it by their Constitution or laws 2. entrusted to designated elected and appointed public officials properly belonging to the executive department, may also be made by Congress or the courts as an incident to the discharge of their functions
Appointing power generally regarded as an executive function. 1. where power exercised by executive department power to appoint an executive function, creation of public office a legislative function 2. where power exercised by other departments does not encroach on any other branch especially if necessary to enable them to maintain their independent existence
The exclusive right to exercise the power of appointment is not included in the general grant of power to the executive. Power to appoint discretionary. 1. power of courts to review appointment unless gravely abused, courts will not attempt to control and cannot be the subject of mandamus a. may listen to suggestions and recommendations but the power to select is vested alone in the officers authorized to appoint, limited to the candidates having qualifications b. c. appointing power has the right of choice, deciding for himself who is best qualified among those who have the necessary qualifications. It is without liability if exercised in good faith. The choice of an appointee is a political and administrative decision calling for considerations of wisdom, conveniences, interests of service, etc. In appointment or promotion, consider not only civil service eligibilities but also performance, education, work experience, training, etc.
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The task of appointment is essentially discretionary and cannot be controlled even by the courts. Once the power of appointment is exercised, the appointment cannot be revoked anymore, except for cause. 2. power of the CSC to revoke appointment no power to revoke on the ground that someone is more qualified, and no power to substitute its own choice. But when the appointment is void from the beginning due to fraud, commission is empowered to take appropriate action on all appointments and other personal actions
ILLUSTRATIVE CASES: 1. Law provides for drawing of lots by district judges as a means of determining the districts to which they may be assigned. Held: The Legislature has no power to enact laws which expressly or impliedly diminish the authority of the Chief Executive 2. 3. Secretary of education appointed respondent instead of petitioner who was recommended by the director of public schools. Held: the power to appoint is discretionary and absent a showing that in the exercise of the right of choice there was an abuse of discretion, the court will not even attempt to substitute its own discretion. Appointee was not recommended as required by 13 of the law. Held: It is immaterial whether the recommendation is mandatory or directory. The appointment is sanctioned by the law.
Power may be absolute or conditional. 1. absolute choice of the appointing authority if it falls upon an eligible person, is conclusive. No further consent or approval is necessary 2. conditional assent or approval by some other officer is necessary to complete the appointment. Appointment may be complete only when such assent or confirmation is given.
In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office or invoke security of tenure. Tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law to complete the appointment does not render the requirements ineffective and unenforceable. Restrictions on the power to appoint. 1. generally persons should possess the prescribed qualifications and be selected solely with a view to the public welfare a. exercise power of appointment with disinterested skills and in a manner primarily for the benefit of the public b. power of appointment cannot forestall the rights and prerogatives of a successor by making a prospective appointment to fill an office where the appointees term is not to begin until the appointing powers own term has expired 2. under the Constitution a. spouses, relatives within 4th civil degree of consanguinity or affinity of the president b. 2 months before next presidential elections except temporary appointments c. congress may vest appointment of officers lower in rank in the president alone d. SC shall appoint all officials of the judiciary
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e. f. g. h. i. j. k. 3.
Members of the SC and judges appointed by then president alone ConComs shall appoint their officials Members of the CSC, Comelec, COA appointed without re-appointment, vacancy only for unexpired term No appointment of losing candidate within 1 year from loss Elective official cannot be appointed or designated to any public office during his tenure, no appointive official shall hold any other office in the government Officials of the Office of the ombudsman appointed according to civil service law Ombudsman and deputies appointed by the president
under existing laws congress may add qualifications and disqualifications but it is not within its power to supersede or alter them
No valid appointment when the office is not vacant. When appointment deemed complete. 1. not subject to confirmation power of appoint is absolute, appointee determined, no further consent or approval is necessary. Formal evidence of appointment may issue at once 2. 3. subject to confirmation commission can issue only when such assent or confirmation is obtained. Appointment becomes complete when the last act required by law of the appointing power has been performed. approval by the CSC positions to the civil service must be submitted to the CSC for approval a. b. appointee is a qualified service eligible CSC has no choice but to attest to the appointment, subject to the condition that if the commissioner would later on reject the appointment by reason of lack of eligibility, appointment shall lapse despite attestation acts of appointing power and approval of the CSC acting together though not concurrently, are necessary to make an appointment complete. In classified positions, appointment must be approved by the commission to protect self against unjust removal
Confirmation or attestation of the appointment by the CSC does not complete the appointment by merely assures the eligibility of the appointee 4. effects of completed appointment right to office vests in the person appointed and he has the absolute unconditional power of accepting or rejecting it.
Acceptance of appointment. 1. not necessary to completion or validity of appointment appointment is sole act of those vested with the power to appoint, acceptance is the sole act of the appointee. When there is no express provision to the contrary, appointees acceptance not necessary to complete appointment 2. necessary to possession of office acceptance not necessary to give appointment validity, chosen individual cannot be deemed to be fully possessed of its rights and privileges until he has accepted it. Acceptance necessary to enable appointee to have full possession, enjoyment and responsibility of an office
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appointee cannot impose his own conditions for acceptance of a public office. Form of acceptance. 1. express verbally or in writing 2. implied enters upon the exercise of duties and functions Obligation of elected or appointed individual to accept office. 1. generally not subject to compulsion GR is that a person may not be compelled to accept a public office. Except: a. Constitution defend the state, render military or civil service b. RPC refuse without legal motive to be sworn in c. Male inhabitants to assist in the protection of the peace and order of the community 2. obligation in the nature of social duty avail self of services of the government, has a duty to bear his share of the public burdens
Necessity of written appointment. 1. view that appointment should be evidenced in writing because appointment affects the public, and not merely private rights, and should be authenticated in a way that the public may know when and in what manner the duty has to be performed 2. Contrary view right of the appointee to be inducted depends upon the fact of appointment and not upon his ability to establish that fact where the law does not prescribe the manner in which the appointing power shall make the appointment, nor direct that any written evidence of the action be furnished to the appointee
ILLUSTRATIVE CASE: Petitioner claims title to the public office from his oath and confirmation as against a subsequent ad interim appointee to the same office. Held: His designation was ACTING chairman and this designation is revocable and temporary in character. It cannot ripen into a permanent appointment even if it was subsequently confirmed by the commission on appointments because confirmation presupposes a valid nomination, which isnt present in the case at bar. Revocation of appointment. 1. where appointment is final and complete an appointment to an office, once made and complete, is not subject to reconsideration or revocation. If revocation is made, it must be before appointment is completed, to be successful 2. where appointee has assumed position upon assumption into office, he acquires a legal right which is protected by statute and the constitution. It cannot be taken away from him either by revocation or removal except for cause and with notice and hearing. Unless the appointment is an absolute nullity or fraud, the irregularity must be deemed cured by the probational and absolute appointment of the appointee and should be considered conclusive 3. where protestant more qualified than appointee the appointing power cannot effect the removal of the appointee by rescinding or revoking the appointment after it is complete on the ground merely that the protestant is more qualified than the first appointee, subject to the condition that the first appointee should possess the minimum qualifications of law.
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B. Appointments by the President Power of appointment of the President. The power of the President to appoint officers in the government is conferred upon him by the Constitution. There are 4 groups of officials whom the President is authorized to appoint: 1. heads of departments, ambassadors, public ministers and consuls, officers of the armed forces from rank of colonel, and other officers whose appointments are vested in him in the Constitution. 2. all other officers whose appointments are not otherwise provided by law and refer to officers to be appointed to lower offices created by congress where the latter omits to provide for appointment to said office 3. those whom the president may be authorized by law to appoint such as heads of GOCCs, heads of bureaus, and other officials 4. other officers lower in rank whose appointments the congress by law vests in the president alone Confirmation of appointments by Commission on Appointments. 1. only those in (1) are appointed with consent or confirmation of the CoA 2. Under the Constitution, the President appoints members of the SC, judges from a list prepared by the Judicial and Bar Council. The same is true when the VP is appointed as member of the cabinet 3. Chair and members of the CHR are to be appointed by the President without need of confirmation by the CoA Appointments by other officials. Lower in rank officers subordinate to those enumerated in whom respectively the power of appointment may be vested. Appointments of minor employees may be vested in them also. Kinds of Presidential appointments. 1. regular made while congress is in session. Mere nominations subject to the confirmation of the CoA 2. ad interim made while congress is not in session or during recess 3. permanent last until they are lawfully terminated 4. temporary or acting until a permanent appointment is issued those required to be submitted to the CoA are either regular or ad interim but both are permanent in nature. Those appointments without the participation of CoA cannot be ad interim appointments. Temporary appointments are those made within 2 months before the next presidential elections and made only to executive positions when continued vacancies will prejudice service or endanger public safety. Ad interim appointments. 1. under the constitution, CoA approves major appointments only when congress is in session. Recess appointments cease upon rejection by the CoA or at the adjournment of the next session of congress 2. president exercises special prerogative in making ad interim appointments and is bound to be prudent, to ensure approval either by previous consultation or thereafter explaining the reason for the selection.
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Reason: ad interim appointments contradict theory of checks and balances. Grant of power is justifiable only on the theory of an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. Temporary or acting appointments. 1. GR: power to appoint vested in the President includes the power to make temporary or acting appointments 2. 3. acting appointment cannot be confirmed by the CoA because confirmation presupposes a valid nomination or ad interim appointment. temporary appointment is an acting appointment. He has no fixed tenure and his employment can be terminated at the pleasure of the appointing power without hearing or cause. But such cannot be used to evade security of tenure Ad interim appointment is permanent in nature though it may be recalled or revoked by the President before confirmation 4. an unqualified person cannot be appointed even in an acting capacity
Designations. Mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. It is revocable and temporary for it does not confer upon the deignee security of tenure in all the position which he occupies in an acting capacity only. There being no appointment issued, he is not entitled to compensation for that position. Steps in the appointing process. 1. nomination exclusive prerogative of the president but may listen to recommendations and advice of others ILLUSTRATIVE CASE The statute provides that the chairman and members of the board need only be designated by the respective department heads to sit ex officio without the necessity of new appointments. Held: in order to be designated, the must already be holding positions in the offices mentioned by the law. No new appointments are necessary. 2. confirmation appointment vested in the president, confirmation vested in congress a. no appointment until confirmed b. intent is to strike a balance between the president and congress. President cannot participate in CoA and CoA cannot review presidential appointments c. in confirmation, CoA does not choose the appointee
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d. 3.
confirmation cannot be reconsidered after the President has been notified of the confirmation and has completed the appointment
Issuance of commission commission is the written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. It is a written evidence of appointment a. No constitutional provision requiring the president to issue a commission though it is an evidence of appointment b. Elective officials need no commission as his right is established by the result of the election C. Appointments in the Civil Service
The Civil Service System. 1. scope embraces all branches, subdivision, instrumentalities and agencies of the government 2. purpose application of the merit system. Designed to eradicate the system of making appointments primarily for political considerations, to eliminate the element of partisanship and personal favoritism, establish a merit system of fitness and efficiency
Classification of positions in the Civil Service. 1. career service characterized by: a) entrance based on merit and fitness determined by competitive exams or highly technical qualifications; b) security of tenure; c) opportunity for advancement to higher career positions. It includes: a. open career positions for appointments to which prior qualification in an appropriate exam is required b. closed career positions which are scientific or highly technical which shall establish their own merit system c. positions in the Career Executive Service d. career officers other than those in (c) who are appointed by the president e. commissioned officers and enlisted men of the AFP which shall maintain a separate merit system f. personnel of GOCCs who do not fall under the non-career service g. permanent laborers 2. non-career service characterized by: a) entrance on bases other than usual test of merit and fitness; b) tenure which is limited to a period specified by law or which is co-terminous with that of the appointing power or at his pleasure. It includes: a. elective officials and their personal or confidential staff b. department heads who hold positions at the pleasure of the president, including their staff c. contractual personnel d. emergency and seasonal personnel casual where and when employment is not permanent but occasional, unpredictable, sporadic and brief in nature
3.
Classes of positions in the career service. 1. three major levels a. clerical, trades, crafts, custodial service involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than 4 years of college
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b. c. 2.
professional, technical and scientific positions non-supervisory or supervisory capacity requiring at least 4 years of college up to Division Chief level Career Executive Service
requirement of competitive examinations entrance to level (a) and (b) is through competitive exams, open to those inside and outside the service who meet the minimum qualifications. Entrance to a higher level does not require previous qualifications. Entrance to (c) is prescribed by the Career Executive Service Board. Within the same level, no need to take the exams for promotion provided he has previously passed the exams
Constitutional classification. 1. competitive appointments are made according to merit and fitness to be determined by competitive exams 2. non-competitive appointments do not have to take into account merit and fitness as determined by competitive exams. Policy-determining, primarily confidential, highly technical in nature.
Determination of merit and fitness by competitive examinations. 1. exams to be competitive must be given under an objective standard of grading; must conform to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary 2. 3. examination must be competitive in substance, not merely in form an oral exam may be competitive where tests of manual or professional skill are necessary, provided the exam questions are such as to bet determine the practical and technical qualifications of the applicants to perform the duties of the position to be filled.
Exemption from rule of non-competitive positions. Policy-determining, primarily confidential and highly technical positions are exempted from merit and fitness requirement but they are not exempt from the protection that they will only be removed or suspended on just cause. 1. 2. policy-determining occupant is vested with the power or formulating policies for the government primarily confidential occupant enjoys more than the ordinary confidence in his aptitude of the appointing power but bears primarily close intimacy which insures freedom of intercourse without embarrassment (ooohhh! Intercourse without embarrassment) or freedom from misgiving of betrayal of personal trust on confidential matters of the state. Termination justified on the ground of loss of confidence because their cessation from office involves no removal but merely the expiration of the term of office. 3. highly technical occupant is required to possess skills or training in the supreme or superior degree
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It is the nature of the functions of the position that determines whether it is policy-determining, primarily confidential or highly technical. Qualification standards in the Civil Service. Degree of qualifications shall be determined by the appointing authority on the basis of the qualification standards for the particular position. 1. use of qualification standards a) as basis for civil service exams for positions in the career service; b) as guides in the appointment and other personnel actions in the adjudication of protested appointments; c) in determining training needs; d) as aid in inspection and audit of the agencies personnel work programs. establishment, administration and maintenance of qualification standards qualification standards shall be administered in such manner as to continually provide incentives to officers towards professional growth and foster the career system in the government service approval of qualification standards approval of qualification standards by the commission is required since it is the central personnel agency of the government entrusted with the enforcement of laws relative to the selection, promotion, and discipline of civil servants offsetting of deficiencies even if the appointee possesses the required eligibility, there would be an abuse of discretion if the other qualifications are not satisfied. When necessary, education, experience or training may be used interchangeably to offset deficiencies except the required eligibility. Offsetting rests upon the sound discretion of the appointing authority
2. 3. 4.
Kinds of appointment in the career service. 1. permanent issued to a person who meets all the requirements for the position to which he is appointed; lasts until lawfully terminated 2. temporary or acting issued to a person who meets all the requirements of the position except the appropriate civil service eligibility; shall not exceed 12 months. Appointee may be replaced sooner if a qualified civil service eligible becomes available
Instances of Temporary Appointment. 1. where the appointee does not possess the required civil service eligibility, the appointment is temporary. Subsequent acquisition of the required eligibility will not make a temporary appointment regular or permanent 2. provisional (temporary) appointee one with civil service eligibility but different from that which is appropriate to the position for which he was appointed. The law give him the privilege of occupying the position in the absence of an eligible and until the availability of an appropriate eligible is certified. appointment by the president of someone to fill an executive office during the absence or incapacity of the incumbent as long as the appointee has not passed any civil service exam, the nature of the appointment is always temporary where the appointment is subject to the consent and approval of the municipal council, there is no complete appointment to speak of; at most, pending compliance with the condition, the appointee is holding only a temporary and conditional appointment
3. 4. 5.
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6. 7.
regular government employee who has been illegally suspended or dismissed is entitled to be reinstated; there is no vacancy to which an incumbent can be permanently appointed, his appointment being considered temporary and has to give way to the employee whose right to office has been recognized one designated as officer in charge does not have any vested right over the position nor even tenure in office
Separation of temporary employees. An appointment which is temporary in nature can be terminated or withdrawn at the pleasure of the appointing power, without notice or hearing, and regardless of grounds or reasons. The fact that the appointment of an employee is classified as temporary does not grant a blanket authority to the appointing power to remove him at any time without cause where the appointment is for a definite period. Qualification in an appropriate examination. 1. temporary appointment of non-eligibles in the absence of eligibles when there is an eligible actually available for appointment, no person who not an eligible shall be appointed in a temporary capacity to any vacant position except when the immediate filling of the vacancy is urgently required in the public interest, in which case, temporary appointments of non-eligibles may be made in the absence of eligibles actually and immediately available. 2. 3. appointment to a position requiring lower eligibility a person with an eligibility acquired by successfully passing an exam shall be qualified for a position requiring lower eligibility if he possesses the other requirements for appointment. issuance/revocation of certificate of eligibility power to issue a certificate of eligibility carries with it the power to revoke a certificate for being null and void, and it may do so without notice and hearing
Approval/recall of appointments by the Civil Service Commission. 1. appointments required to be approved approve all appointments, whether original or promotional, to positions in the civil service except presidential appointments, AFP, police, jail guards, etc., and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications 2. 3. right of appointee to a hearing in case of disapproval when the disapproval is based on non-conformity, there is no need for a hearing. The respondent is given the opportunity to be heard during his petition for reconsideration effectivity of appointment until disapproval appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties and shall remain effective until it is disapproved by the commission, without prejudice to liability of the appointing authority for appointments issued in violation of law.
Where favorable approval or certification is required and the same is not given, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can be recalled or withdrawn by the appointing authority. Until an appointment is completed, one cannot invoke security of tenure.
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4.
criterion to be employed the commission has authority to check whether or not the appointee possess the appropriate civil service eligibility or the required approved qualifications. If he does, his appointment must be approved; if not, it should be disapproved. No other criterion may be employed by it when it acts on appointments. extent of commissions authority limited to reviewing appointments, approving or disapproving them in the light of the requirements. It does not have the power to make the appointment itself or to direct the appointing power to change the employment status. attestation of appointment the commission can only inquire into the eligibility of the person chosen to fill the position. Once the function is discharged, its participation in the appointment process ceases. The only purpose of attestation is to determine whether the appointee possesses the required eligibility; no more than that is left to the commission. keeping of records of all appointments all appointments requiring approval must be submitted within 30 days of issuance, otherwise, the appointment becomes ineffective after 30 days recall of appointment recall of an appointment initially approved may be done only when the approval and appointment are proven to be in disregard of applicable provisions of the civil service law. a. Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan b. Failure to pass the agencys selection/promotion board c. Violation of existing collective agreements between management and employees relative to promotion d. Violation of other existing civil service law, rules and regulations
5. 6.
7. 8.
Appointment through certification. Issued to a person who has been selected from a list of qualified persons certified by the commission from an appropriate register of eligibles, and who meets all the other requirements of the position. Will serve 6 months probationary period and shall undergo a thorough character investigation in order to acquire permanent status. He may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the 6 months. Action appealable to the commission.
D. Vacancy Meaning of vacancy. When an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise powers and perform his duties. Existence of physical vacancy not essential. An office may be vacant when it is occupied by one who is not a de jure officer or by one who is holding over. Although there is no physical vacancy in the office exists, there is still a vacancy in the sense that the appointing power may proceed to fill the office by chooseing a successor.
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Appointment to a non-vacant position. There can be no appointment to a non-vacant position. The incumbent must have been lawfully removed or his appointment validly terminated before one could validly install a successor. Classification of vacancy. 1. ordinary office is created and no one has been appointed to fill it 2. 3. 4. constructive when incumbent has no legal right or claim to continue in office and can be legally replaced by another functionary accidental when the incumbent, having died, resigned or been removed, there is no one in esse discharging the duties of the office absolute term of an incumbent having expired and the latter not having held over, no successor is in being who is legally qualified to assume the office.
Causes of vacancy. 1. death, permanent disability, removal from office or resignation of the incumbent. If acceptance of resignation is necessary, there is no vacancy until accepted. When illegally suspended or dismissed, office never becomes vacant. Resignation or removal must be valid to create a vacancy 2. abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching age limit, and recall. Also, failure by chosen person to accept or qualify for office
Filling of anticipated vacancies. 1. generally appointment legal a prospective appointment to fill an anticipated vacancy is legal in the absence of express law forbidding it. It vests title to the office in the appointee 2. where appointment to take effect after expiration of appointing power appointing power cannot forestall the rights and prerogatives of their successors by appointing successors to offices expiring after it power to appoint has itself expired.
E. Qualifying to Office Qualification (as an act) to an office. To do some act termed qualification by which he shall signify his acceptance of the office and his undertaking to execute the trust confided in him. It is presumed that all conditions necessary to qualifying for a public position have been fulfilled before the appointee takes office. Effect of failure to qualify.
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Deemed evidence of a refusal of office. If afterwards supplied, would not ordinarily be deemed ipso facto a rejection of the office. A person appointed to an office who fails to qualify is regarded as a de facto officer. Oath of office for public officers. Oath outward pledge where one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says. 1. 2. 3. under the constitution president, VP, acting president before entering their offices. Same requirement for other public officers under the administrative code of 1987 before entering upon the discharge of his duties, take an oath or affirmation under the local government code upon assumption to office, subscribe an oath or affirmation of office in prescribed form, filed with the local chief executive. Copy of such preserved in the individual personnel records file
Necessity of oath of office. It is mere incident to the office. Must be done within a specified time. It is generally construed to be merely directory and mere delay in taking the oath, if it be afterwards taken with approval of the public authorities, while it may be a ground for forfeiture while delay continues, when the oath is taken, the delay is deemed valid. Officers authorized to administer oaths. 1. notaries, members of the judiciary, secretaries of congress, secretaries of departments, bureau directors, etc 2. may be administered by another officer whose duties require presentation to him of any statement under oath Except notaries, shall charge no fee, and are not obliged to administer oaths or execute certificates save in matter of official business. Public officers and employees required to give bonds. Accountable public officials or those to whom are entrusted the collection and custody of public money, and public ministerial offices whose actions may affect the rights and interests of individuals. Nature of official bonds. 1. in the nature of indemnity bond and in effect, a contract between the officer and the government, binding the officer to discharge the duties of his office. 2. 3. 4. an obligation binding sureties to make good the officers default creates a primary contractual obligation between the injured party and the officer and the surety merely collateral security for the performance of the officers duty.
Necessity of giving official bonds. 1. requirement, a mere incident of office determines the character of the position, like an oath
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2.
where time prescribed within which to give bond a. when time couched in explicit language that it is merely directory and not mandatory failure to give bond does not ipso facto work a forfeiture of office especially when not due to his fault, but it is a ground for forfeiture. b. time is expressly made a condition office deemed vacated when the required bond is not given within the time fixed by law. F. De Facto Officers
The de facto doctrine. A person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until, by judicial declaration, he is ousted therefrom, or his admission thereto is declared void. Basis and reason for the doctrine. Fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to the office could be open to question. De facto officer defined. One who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law. He is one where the duties of the office are exercised: 1. without a known appointment or election but under such circumstances of reputation or acquiescence calculated to induce people, without inquiry, to submit or to invoke his action, supposing him to be the officer he assumed to be 2. 3. 4. under color of a known or valid appointment or election but has failed to conform to some precedent requirement or condition under color of a known election or appointment, void because he was eligible or want of power in the appointing body or defect or irregularity in the exercise, and such facts are known to the public under color of an election or appointment by or pursuant to a public, unconstitutional law, before the same is declared as such.
A de facto officer is one in possession of an office in the open exercise of its functions under color of an election or appointment even though election or appointment may be irregular. De jure officer defined. One who has a lawful right to the office but who has either been ousted from it or who has never actually taken possession of it. Requirements to become officer de jure. 1. possess the legal qualification for the office in question 2. lawfully chosen to such office
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3.
qualified himself to perform the duties of the office according to the mode prescribed by law.
Officer de jure and officer de facto distinguished. De jure De facto Rests on a right Rests on reputation Lawful title or right to the office Under color of right without being technically qualified in all points Cannot be removed in a direct Can be ousted in a direct proceeding proceeding against him Usurper or intruder defined. One who takes possession of the office and undertakes to acct officially without any color of right or authority, either actual or apparent.
Officer de facto and usurper distinguished. De facto usurper Color of right or title to the office Neither lawful title nor color of right to the title Assumes to exercise functions Assumes to act as an officer where where public does not know his lack public knows or ought to know that of title or authority he is a usurper Removed only in a direct May be ousted at any time in any proceeding against him proceeding All acts otherwise legitimate are Acts absolutely null and void valid in so far as 3rd persons are concerned Usurper may grow into an officer de facto if his assumption of office is acquiesced. ILLUSTRATIVE CASE: Appointment of petitioner as acting vice mayor was by-passed by the national assembly. Held: his ad interim appointment ceased or expired upon the adjournment of the session of the national assembly. Double occupancy of a single office. 1. 2 different persons cannot occupy and exercise the same office at the same time. There can be no de jure and de facto at the same time 2. wen the de jure is also the de facto, lawful title and possession are united.
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Elements of de facto officership. 1. there must be a de jure office 2. there must be a color of right or general acquiescence by the public the de facto office must have some appearance of a right to the office. The nonexistence of any general reputation or recognition as a public officer may be enough to prevent the courts from giving such status to one who claims to hold the office there must be actual physical possession of the office in good faith physical possession and control, good faith, under color of right or title, faithful exercise of the functions of the office
3.
Instances of de facto officers. Please see pages 116-118 of the book. Office created under an unconstitutional statute. 1. view that occupant not even officer de facto because an unconstitutional law is not law and therefore confers no rights, imposes no duties, affords no protection, creates no office, etc. 2. contrary view the incumbent, for the sake of the public policy and the protection of private rights, will be recognized as an officer de facto until the unconstitutionality of the act has been judicially determined.
Legal effects of acts of de facto officers. Depends on whether such officers are attempting to justify themselves, or whether the rights of third persons and the public are involved. 1. as regards the officers themselves party defending right as a public officer must show that he is an officer de jure. The acts of the de facto as far as himself is concerned are void, and a de facto officer cannot justify his acts a binding or valid in any suit to which he is a party. This is to discourage the seizure of public offices. Officer is bound to know whether he is a legal officer or if he attempts to exercise the duties of an officer without authority. 2. as regards the public and third persons GR: acts of de facto valid as to third persons and the public until his title is adjudged to be insufficient. Third persons cannot always investigate the right of one assuming to hold an important office.
Proceedings to try right or title of a de factor officer. Title of an officer de facto, and the validity of his acts, cannot be collaterally questioned in proceedings to which he is not a party. 1. 2. quo warranto may be instituted only by the person who claims to be entitled to the office, or by the State he must set forth the name of the person entitled to the office, and that of the defendant (de jure or usurper) and all other persons who claim a right to the office.
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3.
entitled to due process and security of tenure
Right to compensation of a de facto officer. 1. General rule de facto cannot maintain an action to recover compensation on the theory that the acts of a de facto as far as himself is concerned are void 2. exception de facto in good faith, renders the required service, may recover for the time he rendered service. If lawfully paid to the de facto, the de jure cannot recover. De facto not entitled to compensation when he is merely designated. Liabilities of a de facto officer. 1. same degree of accountability for official acts as a de jure and cannot escape liability because he was not qualified or he failed to give a bond 2. 3. 4. though acts are valid and binding as to 3rd persons, he may be liable for penalties imposed by law for usurping or unlawfully holding office cannot excuse responsibility for crimes committed in his official capacity by asserting that he is de facto rightful incumbent may recover from de facto the salary received even though de facto in good faith and under color of title Chapter Four POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
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Chapter 5: Rights and Privileges of Public Officers
Source of powers and authority of public office. The people, directly or through representatives, create offices and agencies as they deem desirable for the administration of the public function. They declare in what manner and by what persons they shall be exercised. They prescribe the quantum of power attached to the office and the conditions. Authority of public officer not presumed. Officers are agents entrusted with responsibility of discharging its functions. There is no presumption of authority. In the absence of a valid grant, they are devoid of power. Authority of public officer and private agents distinguished. Private agents authority classified according to nature, effect, universal or special. The same does not apply to public officers. Universal authority of a public officer cannot exist. Some authorities are general in nature, some are limited and special. Ascertainment of authority of public officer. It is presumed that all persons having occasion to deal with public officers have knowledge of his authority. They must see to it that the authority is sufficient for the assumed purposes. There is no apparent authority in a public officer. The public must ascertain the scope of authority, and are chargeable with notice of the contents of the law conferring that authority. But every citizen has the right to assume that a public officer charged by law with certain duties knows his duties and performs the same in accordance with the law. Scope of power of a public officer. 1. expressly conferred by law under which he has been appointed or elected 2. expressly annexed to the office by law which created it or some other law referring to it 3. attached to the office as incidents to it Generally, the powers are prescribed by the Constitution or statutes. They only have those powers expressly granted to them. If broader powers are desirable, must be conferred by the proper authority; cannot be merely assumed nor created by the courts. ILLUSTRATIVE CASES: 1. A lawyer in the DOJ was temporarily detailed to assist the city fiscal of Manila with the same powers and functions of an assistant fiscal. Held: a lawyer invested with the same authority as an attorney general or SolGen is presumed to be competent to be entrusted with any of the duties devolving on a prosecuting attorney, due to the higher standard of training and experience required. 2. The Public Service Commission imposed a fine on a radio company for failure to render service expected of a radio operator Held: A public official must locate in the statute relied upon a grant of power before he can exercise it. It may be implied. Absent such requisite, no warrant exists for the assumption of authority.
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Territorial limitation of authority of public officers. 1. limited to territory where law has effect authority cannot exist in places where the law has no effect 2. action at a place not authorized by law ordinarily invalid where public officer authorized by law to perform his office at a particular place, action at a place not authorized by law is invalid.
Duration of authority. 1. duration of term can exercise no authority before his term begins or after it has terminated 2. where officer chosen to act in reference to a particular subject his powers exhaust themselves in the acting, and having once acted he is henceforth functus officio and can neither act again in reference to the same subject matter nor undo what he has done.
Construction of grant of powers. Express grants of power are subject to a strict interpretation and will be construed as conferring those powers only which are expressly imposed or necessarily implied. Classification of powers and duties. 1. from their nature a. ministerial absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. No judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law Ministerial act one which a person performs on a given statement of facts, and in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety or impropriety of the act done His only duty is obedience and he cannot excuse himself by undertaking to show the unconstitutionality or irregularity of the proceeding. b. discretionary those that necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion arises when the act may be performed in one of two or more ways, either of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it will be performed. 2. from the standpoint of the obligation of the officer to perform his powers and duties a. mandatory powers are construed to be mandatory although the language may be permissive, where they are for the benefit of the public b. permissive statutory provisions define the time and mode in which public officers will discharge their duties. Mere authorization to perform an act does not impose a mandatory duty upon a public official. If the act does not affect third persons and is clearly beneficial to the public, permissive words will not be construed as mandatory.
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3.
from the standpoint of the relationship of the officer to his subordinates a. power of control power of an officer to manage, direct or govern what a subordinate had done in the performance of duties and to substitute his judgment for that of the latter. He lays down the rules in the doing of an act and if he is not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or do the act himself. b. power of supervision power of mere oversight over an inferior body. He sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. He may order the work undone or re-done but he cannot prescribe his own manner for doing the act.
Ministerial and discretionary powers distinguished. 1. nature of the act character of duty determined by the nature of the act to be performed and not by the office of the performer. 2. exercise of discretion key distinction is whether the duty is mandatory or whether the act complained of involves policy making or judgment a. not discretionary involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required b. ministerial act nothing is left to the discretion of the person who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law
Meaning of discretion. Act or liberty to decide according to the principles of justice and ones ideas of what is right and proper under the circumstances, without willfulness or favor. According to the dictates of their own judgment and conscience, uncontrolled by the judgment and conscience of others. Exercise of discretion limited. It is limited by the legal construction, to the evident purpose of the act, and to what is known as sound and legal discretion, excluding all arbitrary, capricious, inquisitorial and oppressive proceedings. By such exercise of discretion, an officer may decide either way, and though mistaken, still be right in the sense of being exempt from liability. ILLUSTRATIVE CASES: 1. hindi ko maintindihan 2. 3. City refused to allow the opening of a cafeteria in the city market. Held: the granting of license rests on the sound discretion of the mayor and refusal on his part to grant the privilege cannot be the subject of mandamus. the name of the provincial building was substituted with the name President Garcia Hall. Held: Putting of the sign President Garcia Hall on the BUILDING is contrary to RA 1059 though the naming of the session hall as such is not.
Remedy to compel exercise of duty.
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Where there is a clear duty imposed and an unnecessary and unreasonable delay occurs, courts will intervene by mandamus. If the duty is purely ministerial, courts will require specific action; if purely discretionary, mandamus will require action only. Delegation of discretionary powers. Proper execution of the office requires the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and discretion. Unless authorized, he has no power to delegate his duties to another. ILLUSTRATIVE CASE: The assistant district engineer and chief clerk represented the district engineer and the district superintendent of schools in the board of canvassers. Held: An officer to whom a discretion is entrusted cannot delegate it to another. The powers of the board are not purely ministerial. Delegation of ministerial powers. Where the act is purely of a mechanical executive or ministerial in nature, the performance of duties of this nature ma, unless expressly prohibited, be properly delegated to another. But where the law expressly requires the act to be performed by the officer in person, it cannot, though ministerial, be delegated to another. Time to perform official acts. 1. where no time stated in the statute performed within a reasonable time. 2. where time stated in the statute in the absence of a language prohibiting the performance of an act at other than the time stated, such is merely directory and not mandatory, unless the nature of the act or the language of the law clearly intends to limit the power of the officer.
Ratification of unauthorized acts. 1. act of a public officer may not be binding if exercised defectively but his acts may be ratified a. does not apply where there is want of power to perform the original act b. merely voidable and can be rendered valid 2. 3. in the absence of ratification, state is not estopped by the unauthorized or illegal acts of its agents superior officers have the authority to ratify but they are restricted to the ratification of acts and contracts which they themselves were empowered to make
Judicial review of official acts. 1. where the act involves exercise of discretionary power officer is sole and exclusive judge of the existence of those facts. Judiciary will not interfere in the absence of abuse in discretion, or fraud or corruption that vitiates consent
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2. 3.
where act involves performance of purely ministerial duty when performance is refused, he could be compelled by mandamus for its performance. W hen such duty is threatened to be violated by some positive official act, an injunction may be had to prevent it where act reviewed done without jurisdiction it is for the courts to finally determine whether a public officer acted within the scope of his authority
Norms of conduct of public officials and employees. 1. public office is a public trust must at all time be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives 2. standards of personal conduct a. b. c. commitment to public interest public interest over personal interest. Al government sources must be employed and used effectively, efficiently, honestly and economically professionalism highest degree of excellence, professionalism, intelligence and skill. There must be utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage justness and sincerity remain true to the people at all times. Must act with justness and sincerity and not discriminate against anyone. Must respect the rights of others and shall refrain from doing acts contrary to law, good morals, good customs, public policy, etc. They shall not extend or dispense undue favors except with respect to appointments of relatives in confidential positions political neutrality provide service to everyone without unfair discrimination and regardless of party affiliation or preference responsiveness to the public extend prompt, corteous, and adequate service. Provide information on their policies and procedures in a clear and understandable language, openness of information, conduct public consultation and hearing, encourage suggestions, simplify and systemize policy, rules, procedures, avoid red tape, etc nationalism and patriotism to be loyal to the Republic and the Filipino people at all times, promote the use of locally-produced goods, encourage appreciation and pride of country and people. Must maintain and defend the countrys sovereignty against foreign intrusion commitment to democracy maintain public accountability, manifest by the deeds the supremacy of the civilian over the military. Must uphold the constitution and put loyalty to country above loyalty to person or party simple living modest lives. Must not indulge in extravagant or ostentatious display of wealth. Must live within the officials visible means of income as correctly disclosed
d. e.
f. g. h. 3.
duties of the CSC adopt positive measures to promote: a. observance of these standards including information dissemination of programs and workshops b. continuing research on measures which provide positive motivation to public officials
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System of incentives and rewards. This system is established to motivate and inspire public servants to uphold the highest standards of ethics. 1. criteria employees who have demonstrated exemplary service and conduct on the basis of their observance of norms of personal conduct: a. years of service b. quality and consistency of performance c. obscurity of the position d. level of salary e. unique and exemplary quality of achievement f. risk or temptation inherent in the work g. any similar circumstances or consideration form of incentives and rewards a. bonus b. citation c. directorship in GOCCs d. local and foreign scholarship grants e. paid vacations f. automatic promotion to next higher position, provided, if there is no next higher position or it is not vacant, position be included in the next budget except when creation will cause organizational distortion. Where no next higher position immediately available, salary increase equivalent to next higher position. When a new position is created, that which is vacated is deemed abolished.
2.
The grant of awards shall be governed by the merit and fitness principle. 3. Committee on awards responsibilities: a. Periodic, continuing review of performance of officials b. Establish system of annual incentives and rewards c. Determine the form of rewards to be granted d. Formulate and adopt rules to govern the conduct of activism, including guideline for evaluating nominees, and mechanism for recognizing the awardees in public ceremonies, and the creation of sub-committees.
Evaluation of nominees may be assisted by technical experts. 4. secretariat
Any department may institute its own rewards program in addition to the ones provided. Duties of public officers as trustees for the public. 1. In general sacrifice necessary for the safety and happiness of human society, and the need of his sacrifice is increased in the case of officers appointed to preserve peace and enforce laws
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a. b. c. d. e. 2.
Duty to obey the law Duty to accept and continue in office Duty to accept burden of office Duty as to diligence and care Duty in choice and supervision of subordinates
ethical duties bound to perform honestly, faithfully, and to the best of his ability, and to act primarily for the benefit of the people a. b. duty as to outside activities refrain from outside activities that interfere with the proper discharge of their duties duty where personal interest is involved not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of the public
Duty to make financial disclosure. To maintain public confidence, to avoid conflicts of interest, and to provide the citizens with information concerning a public officers financial affairs, and thus enable to public to better judge his integrity and fitness for office. ILLUSTRATIVE CASE: The constitutionality of the legal requirement of government officials to submit sworn declaration of financial conditions, assets and liabilities is questioned. Held: the aim of the statute is to curtail or minimize opportunities of corruption and to maintain the standard of honesty in the public service, and to promote morality in public administration. Thus, its aim is the public good. Specific duties of public officials and employees. 1. act promptly on letters and requests respond within 15 working days upon receipt, contain the action taken on the request 2. 3. 4. 5. submit annual performance reports within 45 working days from end of the year, render a full and complete report of performance and accomplishments. Report shall be available to the public. Report of compliance submitted to the CSC process documents and papers expeditiously must be processed and completed within a reasonable time from preparation, must contain not more than 3 signatories act immediately on the publics personal transactions must attend to anyone who wants to avail himself of the services of their offices, act promptly and expeditiously make documents accessible to the public
Actions on requests and petitions. 1. GR: when a request or petition can be disposed of promptly and expeditiously, must do so immediately. In no case shall it be beyond 15 working days from receipt.
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2.
written requests within 15 working days upon receipt, provided that: a. communication is within jurisdiction of the agency, officer must: i. write acknowledgement if matter merely routinary ii. matter non-routinary write acknowledgment, action to be taken and other additional requirements when all have been submitted back to him, inform the party of the action to be taken and when such action can be expected. b. communication outside the jurisdiction: i. refer letter to proper office ii. acknowledge the communication, inform party of referral to proper department proper office must act on the communication within 15 working days.
Processing of papers and documents. 1. when law prescribes a period, the same shall be followed 2. when no period prescribed in the law issue action within a reasonable time, considering the following factors: a. nature, simplicity or complexity of the subject matter b. completeness or inadequacy of requirements or of data and information necessary for the decision c. lack of resources caused by circumstances beyond the control of the department d. legal constraints e. fault, failure or negligence of the party concerned which renders decision or action not possible or premature f. fortuitous event or force majeure Signing of any written action or decision. Must contain not more than 3 initials. The head of department shall prescribe rules on the proper authority to sign in the absence of the regular signatory: 1. only one official next-in-rank automatically be the signatory 2. 2 or more next-in-rank appropriate office prescribe order 3. no next-in-rank head shall designate an OIC Public disclosure of statements of assets and liabilities. An obligation to accomplish and submit declarations under oath, including that of the spouse and unmarried children under 18. 1. statement of assets and liabilities and financial disclosure except those in honorary capacity a. contents i. real property, improvements, acquisition costs, assessed value, FMV ii. personal property, acquisition cost iii. all other assets like investment, cash on hand or in banks, stocks, bonds iv. financial liabilities, current and long-term v. all business interests and financial connections, names and addresses of such
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b.
c.
when to file i. within 30 days after assumption of office ii. on or before April 30 of every year iii. within 30 days after separation from service where to file: i. President, VP, ConComs National Office of the Ombudsman ii. Congress secretaries of Congress, Justices Clerk of SC, judges court administrator, national executive officials office of the president iii. Regional and local officials deputy ombudsman in their respective regions iv. Officers of the armed forces office of the president, below said ranks deputy ombudsman A copy of the statement shall be filed with their respective departments.
d. 2. 3.
authority in favor of ombudsman officials shall execute necessary authority in favor of the ombudsman to obtain documents that may show their assets, liabilities and net worth, other business and financial connections
identification and disclosure of relatives identify relatives in the government accessibility of documents a. statements made available for inspection b. made available for copying or reproduction c. pay reasonable fee to cover the cost of reproduction and mailing and certification d. available to the public e. execute authority in favor of the Ombudsman prohibited acts obtain or use any statement a. for any purpose contrary to morals or public policy b. for any commercial purpose other than by news and media communication for dissemination to the general public review and compliance procedures determine is properly accomplished a. Congress designated committees, subject to approval by affirmative vote of majority of each house b. Executive department heads of departments, subject to approval by secretary of DOJ c. Judicial department chief justice d. ConComs and other constitutional officers chairmen, office of the ombudsman ombudsman
4.
5.
Transparency of transactions and access to information. 1. ensure transparency of public transactions establish measures and standards that will ensure transparency of and openness in public transactions in their offices
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2.
provide official information provide information to any requesting public except: a. information must be kept secret in the interest of national defense or security or conduct of foreign affairs b. put the life and safety of someone in imminent danger c. information falls within the concepts of privileged information d. it comprises of drafts of decisions, orders, rulings, policy-decisions e. it would disclose information of a personal nature and would constitute unwarranted invasion of privacy f. it would disclose investigatory records compiled for law enforcement purposes, or the production of records would: i. interfere with enforcement proceedings ii. deprive a person of a right to fair trial or impartial adjudication iii. disclose identity of a confidential source iv. unjustifiably disclose investigative techniques and procedures g. it would disclose information, premature disclosure would: i. lead to significant financial speculations or significantly endanger the stability of any financial institution ii. it would significantly frustrate implementation of proposed official action establish information systems effect the widest possible dissemination of information, and such information systems must inform the public: a. policies, rules, procedures b. work programs, projects, performance targets c. performance reports d. all other documents
3.
Such information cannot be used to build public image or advance his own personal interest. Reforms on public administrative systems. 1. conduct value development programs include a. ethical and moral values b. rights, duties and responsibilities of public servants c. nationalism and patriotism d. justice and human rights e. democracy in a free and just society f. Philippine history, culture, tradition g. Socio-economic conditions Continuing refresher courses to promote a high standard of ethics in public service shall be conducted. 2. 3. conduct professional, etc. programs enhance to the highest degree, professionalism, excellence, intelligence and skills in the performance and discharge of duties and responsibilities conduct studies and analyses of work systems a. identify systems and procedures that lead or contribute to negative bureaucratic behaviors b. simplify rules and procedures to avoid red tape
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c. 4. 5. 6. 7. 8.
devise or adopt systems and procedures that promote official and employee morale and satisfaction
develop and make available a service guide workflow chat showing procedures or flow of documents. Aims to institutionalize a management climate conducive to public accountability consult the public for feedbacks and suggestions Conduct research and examination provide motivation to officials in raising the level of observance of public service ethical standards designate a resident ombudsman act immediately on all requests for public assistance consult and dialogue with staff
Chapter Five RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
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Chapter 6: Disabilities and Inhibitions of Public Officers
A. In General Rights incident to public office. Measured by the Constitution or law under which he was elected or appointed. Rights as a citizen. 1. protection from publication commenting on his fitness and the like generally entitled to same protections accorded to citizens. However, by virtue of his employment, he is not entitled to the same protection from publications commenting on his fitness and the like 2. engaging in certain political and business activities may require officials to suspend or refrain from certain political or business activities when such activities are deemed inconsistent with their public status and duties B. Right to Compensation Power of Congress to fix compensation. 1. power primarily but not exclusively legislative in character creation of public office and assignment of compensation primarily a legislative function. Constitutional offices, compensation subject to provisions of the Constitution, thus limiting the power of Congress 2. power may be delegated subject to statutory limitation power to fix compensation may be delegated to other governmental bodies. Compensation must be within the statutory limitations prescribed by congress and not ordinarily subject to review by the courts.
Compensation, not an element of public office. Merely an incident to the office and attaches to the office and not to the officer. Forms of compensation defined and distinguished. 1. compensation pay for doing all that may be required of the official, whether in the form of a fixed salary or wages, per diems, fees, commissions, or perquisite of whatsoever character 2. salary personal compensation to be paid to him for his services. Generally a fixed annual or periodical payment depending on the time, not on the amount, of services. Salary Given to officers of higher degree of employment Compensation per annum Wages Lower degree of employment Day by day or week by week
3. per diem compensation for days actually spent in the performance of duties. Daily allowance given for each day an officer is away from homebase. Reimbursement for extra expenses by the official in the performance of duties Intended to cover cost of lodging and subsistence when they are outside of their permanent station. Not deemed as salary within the constitutional provision of no change in compensation. It is not a fee until classified as such.
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honorarium something given not as a matter of obligation but in appreciation of services rendered, voluntary donation in consideration of services rendered which admit of no compensation of money 4. where compensation is paid under the fee system, or on the basis of amount of business done, or of public money passing through the officers hands, a maximum sum may be fixed beyond which the officer cannot receive any emoluments 5. emoluments profit arising from the office, that which is received as compensation for services or annexed to the office as salary, fee, perquisite. Not only salaries but also other fees that the official is entitled to. Allowance included Basis of right to compensation. 1. creation of law public office is not a contract or property right but a public trust. Right to compensation exists as the creation of law and belongs to him not by force of contract but because the law attaches to the office 2. 3. 4. 5. services rendered right to compensation out of services rendered. It cannot be taken away by a subsequent law but he cannot recover compensation for services not performed. There is also no compensation for an office under an unconstitutional statute creating it. compensation fixed by law if there is no compensation fixed by law, the officer is presumed to have accepted the office to serve gratuitously legal title to office one without legal title to office by lawful appointment, election or qualification is not entitled to recover salary or compensation amount of compensation nature of the position should be the determining factor in fixing the salary, the grade depends upon the nature of the position (level of difficulty, responsibilities, qualification requirements) relative to that of another position. It is the officials grade that determines the salary. It is the law that fixes the grade.
Recovery of compensation. Action to recover compensation belongs to the person who has the true title to the office 1. from the government de jure officer cannot recover from the government salary which has been paid to a de facto officer. Emoluments must go to the person who actually rendered the service unless the contrary is provided if the government continues to pay the de facto officer after notice of adjudication of protest in favor of de jure officer, latter may recover from the government. When there is no de jure officer, de facto officer in good faith possession of the office, and has discharged the duties, is entitled to the emolument, and may recover salary or compensation 2. from the de facto officer de jure officer can recover either from the government or de facto officer for services rendered after favorable result in adjudication of title to the office
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one who becomes a de facto officer is good faith and renders services required is entitled to emoluments of the office. 3. from the intruder or usurper one who intrudes or usurps has no right to salary
ILLUSTRATIVE CASES: 1. duly elected senator seeks reimbursement of salaries paid to de facto officer Held: de facto officer entitled to compensation for services rendered. Emoluments must go to the person who rendered the services. 2. vice mayor who became mayor seeks reimbursement of salaries paid to former mayor who has ceased as rightful occupant Held: General rule is that rightful incumbent may recover from de facto officer the salaries received during wrongful tenure.
Salary not subject to garnishment. Garnishment species of attachment for reaching credits belonging to judgment debtor owing to him from a stranger to a litigation. Salary of public officer may not, by garnishment, attachment, order of execution, be seized before being paid to him because: 1. while still in the hands of disbursing officer, it is still property of the government 2. public policy forbids such practice 3. garnishment or attachment of salary is tantamount to a suit against the state in its own court Agreements affecting compensation. Compensation given as remuneration for services and to enable incumbent to focus on duties and perform them better. Agreement by public officer respecting his compensation is invalid when it tends to pervert such compensation to a purpose other than that for which it was intended, and it interferes with the officers free and unbiased judgment in relation to duties. After services are rendered and the compensation earned, the officer can ordinarily be contract with respect to such compensation. 1. 2. 3. agreement to accept or acceptance of less or other than legal compensation illegal whether in good faith or not as compensation is generally fixed by law to ensure faithful and satisfactory performance of duty sale, assignment, or barter salary or emoluments are not proper subjects of sale or barter. Such have a tendency to impair the efficiency of those in the office and therefore prejudice the interests of the public dividing compensation with others it is invalid where the officer shares compensation with someone who helped him get appointed for office, or with a partner. If it amounts to anticipatory assignment, it is likewise invalid. The rule is otherwise when the agreement is on how to dispose of the said compensation after it is earned.
If there is an agreement to receive less compensation, the officer can still recover the balance. Prohibition against diminution of salary. Unless otherwise authorized, Congress has absolute power to fix salaries. Under the Constitution, once Congress ahs fixed the salary, it may no longer reduce the salary of any of the officers during his term or tenure.
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Prohibition against receiving additional, double, or indirect compensation. Does not apply: 1. payments of additional, double or indirect compensation to a particular officer is specifically authorized when just and necessary. The prohibition is aimed against giving extra compensation through executive or administrative order 2. 3. additional compensation is received not from the government or entity there are two distinct offices, each of which has its own duties and compensation. Prohibition is against double compensation not double appointments and the performance of functions of more than one office. Pensions and gratuities not considered double compensation. Free voluntary service to the government. Free voluntary service services rendered by persons who are in government without pay or compensation. 1. requirements of free voluntary service a. issuance of an appropriate document b. fitness and suitability for the duties and responsibilities of the particular position c. compliance with the rule on nepotism functions or services that volunteers can perform a. advisory b. consultancy or counseling c. recommendatory d. professional services e. staff work f. humanitarian applicable laws and rules covered by Code of Conduct and Ethical Standards for Public Officials and Employees, and IRR on: a. rewards and incentives b. norms of conduct and ethical standards c. duties and obligations of public officers and employees d. prohibitions and sanctions enumerated in the IRR e. civil and criminal liability exemptions exempted from filing statement of assets and liabilities, financial disclosures, divestment, appropriate eligibility requirement, no security of tenure prohibitions
2.
3.
4. 5.
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a. b. c. d. e. f. g.
exercising supervisory functions over personnel exercising functions of positions involving national security having access to confidential or classified information unless authorized occupying regular plantilla positions having such services credited as government service and availing themselves of retirement benefits using facilities and resources of the office for partisan political purposes receiving any pecuniary benefit honoraria, allowance, other perquisites C. Other Rights
Personnel actions. Any action denoting the movement or progress of personnel in civil service. All personnel actions shall be in accordance with rules, standards and regulations as may be promulgated by CSC. 1. appointment through certification issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles, and who meets all the other requirements of the position 2. promotion movement from one position to another with an increase in duties and responsibilities as authorized by law. Usually accompanied by an increase in pay. Department/agency to another or organization unite to another in the same department/agency Factors considered: performance rating, education, training relevant to the duties of the position to be filled, work experience and outstanding accomplishments, physical fitness, attitude and personality traits which have a bearing on the position, potential or capability to perform the duties of the position and higher positions 3. transfer movement from one position to another which is equivalent in rank, lever, or salary without break in service involving the issuance of an appointment a. not considered disciplinary when made in the interest of public service. Employee must be informed of the reasons. if he believes there is no justification, appeal to the CSC b. c. 4. transfer may be from department to another or organizational unit to another in the same department. Non-career service to career service not a transfer temporary transfer is permissible even without employees prior consent but not when a preliminary step to removal or a scheme to lure him away from his permanent position, or designed to indirectly terminate him, or force resignation
reinstatement person permanently appointed in the career service who has, through no delinquency or misconduct, been separated therefrom, may be reinstated in the same level for which he is qualified a. CSC has authority to order reinstatement of someone who has been unlawfully demoted or dismissed b. Receipt of separation pay not fatal to appeal for reinstatement where his acceptance was dictated by economic necessity rather than desire to leave c. Award for damages limited to a maximum of 5 years
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d. 5. 6.
Where reinstatement involves exercise of sound judgment by appointing authority, absent clear right of employee, mandamus not available
reemployment names of persons appointed permanently in the career service and who have been separated as result of reduction in force and or organization, be entered in a list from which selection for reemployment shall be made detail movement from one department to another without issuance of an appointment and allowed only for a limited period in case employee is occupying professional technical and scientific positions. If he believes there is no justification, appeal to SCS. Pending appeal, decision to detail executory unless otherwise ordered by CSC reassignment one organization to another in the same department but shall not involve reduction in rank, status or salary. Otherwise, reassignment would constitute constructive dismissal. Reassignment no need for an appointment
7.
Right to reimbursement and indemnity. 1. when in the performance of his duties, he is required by law to incur expenses on the public account, not covered by his salary and not attributable to his own neglect or default, reasonable and proper amount forms a legitimate charge against public funds for which he should be reimbursed 2. officer is entitled to be indemnified against consequences of acts which he has been required to perform upon the public account, and which are not manifestly illegal and he does not know to be wrong
Right to reinstatement and back salary. Reinstatement and back salaries are separate and distinct reliefs given to an illegally dismissed official. Reinstatement restoration to a state from which one had been removed or separated. He assumes he had occupied prior to the dismissal. Back wages form of relief that restores the income that was lost by reason of unlawful dismissal 1. 2. where removal or suspension lawful an officer lawfully suspended or separated, although the cause for which he was suspended was insufficient, he is not entitled to compensation for the period of suspension or separation. No work, no pay. where removal or suspension lawful when removal or suspension was unlawful, or was prevented to work by no fault of his own, he entitled to back wages. Salary earned from other work during separation cannot be deducted from unpaid salaries
No work, no pay principle does not apply where it was sufficiently shown that he was wrongfully prevented from entering his office and carrying out his duties. He can recover his salary for the duration of separation. Immaterial that his appointment is temporary because what is material is the wrongful deprivation of office. 3. where suspended employee late found innocent back pay allowed but it must be shown that suspension or removal was unjustified or illegal. If he is not completely exonerated, he is not entitled to back pay
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4. 5. 6.
where another appointed to position of illegally dismissed or suspended employee new appointment not valid. At most, present incumbents occupancy is temporary. Claimant has a superior right and present incumbents removal is for a cause duty of plaintiff seeking reinstatement to prove his right to the office unless his right to the office is shown, his action must fail right to reinstatement to former or at least comparable position when illegally dismissed and reinstatement is later on ordered, he is considered as not having left his office and is entitled to all rights and privileges to accrue to him by virtue of his office. If possible, he must be reinstated to his former position duty to act with reasonable diligence in asserting right to reinstatement right may be lost by unreasonable delay in asserting his rights. Constitutional rights may be waived and in action for 1 year may be considered waiver or renunciation. Quo warranto and mandamus affecting titles to public office must be filed within 1 year from date of removal. Claim for back wages and damages must also be done within 1 year.
7.
8.
where pardon extended to convicted employee unless expressly grounded on innocence or right to public office expressly restored, pardon does not ipso facto restore a convicted felon to public office. It merely restores eligibility for appointment
Rights to property, devices, and inventions. 1. title to public office carries with it the right to insignia and property, during incumbency 2. whether records, discoveries, inventions, etc made or prepared by the officer during incumbency belong to the public office must be determined on a case to case basis a. where devices or records are indispensable in proper conduct of the office, cannot take as own property even though he prepared them and spend for them through his own funds b. 3. if devices not required by law, prepared by the officer apart from official duties and are not indispensable in the proper conduct of office, he may acquire property right, entitled to remove them upon leaving office
right to invention employee performing all duties assigned to him may exercise inventive faculties in any direction he chooses, with assurance that whatever invention there is will be his individual property, unless merely produced what he was employed to invent, or otherwise been employed to use his inventive faculties for the governments benefit.
Right to recover reward for performance of duty. Duty to execute functions of his office for compensation attached to it by law. Not permitted to recover reward offered by the public for performance of an act which was part of his official duty to perform, unless authorized by law. 1. informers reward under the NIRC does not extend to BIR officials, employees, other public official and their relatives
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2. for discovery and seizure of smuggled goods 15% of FMV of the smuggled and confiscated goods as cash reward. This is to encourage public and law enforcement officers to extend full cooperation in eradicating smuggling.
Chapter Six DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
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Chapter 7: Liability of Public Officers
A.Under the Constitution Prohibition against engaging in partisan political activities. Partisan politics acts designed to have a candidate elected or not, or to promote the candidacy of a person to a public office. Only career service employees are covered by this. Elective officials and cabinet members who are holding political offices are not embraced in the prohibition. ILLUSTRATIVE CASE: Defendant charged with electioneering by distributing leaflets supporting a candidate for mayor. Held: distributing leaflets is aiding a candidate which is prohibited by law. It was a solicitation of the electors vote of a candidate. Prohibition against appointment of elective officials. During his tenure in office, an elective official is disqualified for appointment or designation to any public office in the government. Appointment to the later office is void. Exception: valid appointment if he resigns his seat.
Prohibition against holding more than one position by appointive officials.

An appointive official may hold any other office only when allowed by law or required by his primary functions. When allowed by law, the positions may be totally unrelated to each other. When the functions are related, the prohibition does not apply even in the absence of an enabling law.
Prohibition against acceptance of any present from any foreign state.

The purpose is to discourage and prevent foreign influence in the affairs of our government. What is prohibited is the acceptance of a present officially offered by the government of the foreign state. But it is permissible for an official of the Philippines to accept a private or personal gift from the head of a foreign government. The prohibition is directed only against public officers and not private citizens.
Prohibition against receiving additional, double or indirect compensation.

Pensions and gratuities shall not be considered additional compensation.
Prohibition against appointment of members of the armed forces to certain positions.

Members of the armed forces in active duty are prohibited from being appointed or designated in any capacity to a civilian position.
Prohibition against grant of loan, guaranty or other form of financial accommodation.

No form of financial accommodation for any business purpose may be granted by any government-controlled bank to the President, VP, members of the cabinet, congress, SC, ConComs, Ombudsman, and any firm or entity in which the officials have a controlling interest. during their tenure. The purpose is to prevent the public officials from using their influence to secure a loan for personal benefit. The prohibition does not apply to personal loans or to firms wherein he has no controlling interest. B. Under Existing Laws
Prohibition imposed on civil service officers or employees.
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1.
political activity cannot engage in any partisan political activity or take part in any election except to vote nor shall use official authority or influence to coerce political activity of another person. This does not extend to expressing views on current political issues or from mentioning names of candidates whom he supports. Those holding political offices may take part in political activities but are prohibited from soliciting contributions from subordinates. additional or double compensation elective or appointive official cannot receive additional or double compensation unless authorized by law, nor can they accept any present, emolument, office or title of any kind from a foreign state unless consented by the President. limitation on employment of laborers laborers shall not be assigned to perform clerical duties prohibition on detail or reassignment no detail or reassignment within 3 months before any election nepotism
2. 3. 4. 5.
Prohibition imposed on local government officials. 1. prohibited business and pecuniary interest unlawful for any local government official or employee to: a. b. c. d. e. 2. engage in business transactions with LGU in which he is an official whereby money or property is to be transferred from the LGU to another person or firm hold interests in any cockpit or other games licensed by the LGU purchase real property forfeited in favor of the LGU for unpaid taxes or by virtue of a legal process be a surety for any person contracting with the LGU all other prohibitions relating to conduct of business provided for in the Code of Conduct and Ethical Standards
practice of profession a. b. governors, mayors prohibited from practicing their professions or engaging in any occupation other than exercise of functions as local chief executives sanggunian members may practice their professions or engage in any occupation except during session hours. Those who are members of the bar shall not: i. ii. iii. iv. appear as counsel before any court in any civil case where LGU is adverse party appear as counsel in criminal case where official of government is accused of an offense in relation to office collect any fee for appearance in administrative proceedings involving his LGU use property and personnel of the government except when sagnggunian member is defending interest of the government
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c. 3.
doctors may practice profession even during work hours only in occasions of emergency, provided that officials concerned do not derive monetary compensation
partisan political activity no local official in the career civil service shall engage in partisan political activity.
Elective officials can engage in partisan political activities but cannot solicit contributions from subordinates. Prohibition against purchase of certain property at public auction.
1. 2. public officers, the property of the State which has been entrusted to them; will apply to judges and government experts taking part in the sale justices, judges, prosecutors, etc., the property and rights in litigation or levied upon an execution; includes acquiring by assignment and shall also apply to lawyers with respect to property and rights which may be the object of litigation
Prohibited acts and transactions under the Anti-Graft and Corrupt Practices Act.
1. 2. 3. 4. 5. 6. 7. influencing another officer to perform an act which violates lawful rules or an offense connected to official duty, or allowing himself to be influenced; requesting or receiving any gift in connection with a government contract or transaction; or consideration for help to get license causing undue injury to any party or giving private party unwarranted benefit, advantage or preference entering, on behalf of the government, any contract manifestly and grossly disadvantageous to the same having financial or pecuniary interest in any business, contract or transaction in which he is prohibited by law from having any interest becoming interested, for personal gain, or having material interest in a transaction requiring approval of the board of which he is a member, whether he gives a favorable vote or not approving or granting license to anyone known to him as not qualified
Penalties: imprisonment, perpetual disqualification from office and confiscation or forfeiture. Those involved in fraud upon government property shall be preventively suspended.
Prohibited acts and transactions under the Code of Conduct and Ethical Standards.
Public officials appointive or elective 1. 2. financial and material interest not have any financial or material interest in any transaction requiring his approval outside employment and other activities related thereto during their incumbency shall not: a. b. c. own, control, manage or accept employment in any private enterprise regulated, supervised by his office unless expressly allowed by law engage in private practice of profession unless authorized by law, provided there is no conflict of interest recommend any person to a private enterprise that has transactions with his office
Prohibitions continue to apply for a period of 1 year after resignation, retirement, or separation from public office except (2), but cannot practice profession in connection with any matter before the office he used to occupy.
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3.
disclosure and/or misuse of confidential information not use or divulge, confidential or classified information officially known to him by reason of office and not made available to the public, either: a. further private interest or give undue advantage to anyone b. prejudice public interest solicitation or acceptance of gifts not solicit, accept any gift from any person in the course of their official duties a. gift thing or right disposed of gratuitously, or any act of liberality. Shall not include unsolicited gift of nominal or insignificant value not given in anticipation of any favor b. c. receiving any gift accepting a gift from a person other than member of his family even on family occasions and celebrations, Christmas, schwar-schwar loan simple loan and commodatum intended to ensure approval
4.
Congress must give consent to gifts and grants from foreign governments a. acceptance and retention by public official of a gift of nominal value received as souvenir or out of courtesy b. acceptance of gift in the nature of scholarship or fellowship grant or medical treatment c. acceptance of travel grants outside the Philippines of more than nominal value if acceptance is appropriate or consistent with interests of the Philippines, permitted by the head of office Ombudsman mandated to prescribe rules and regulations necessary to carry out the purpose in the abovementioned provisions.
Divestment.
1. public officials must avoid conflicts of interest at all times. When a conflict of interest arises, shall resign from his position in any private enterprise within 30 days from assumption of office or divest him of shareholdings within 60 days from assumption. If conditions for conflict of interest concur, divestment mandatory even if he has already resigned. requirement of divestment shall not apply to those who serve the government in honorary capacity nor to laborers and casual temporary workers Under the code: a. b. c. Conflict of interest public official is partner, stockholder, etc of a private corporation and interest therein may be opposed to the faithful performance of his duty substantial stockholder person who owns shares of stock sufficient to elect a director divestment transfer of title or disposal of interest in property and actually depriving or dispossessing oneself of his right or title to it in favor another person other than his relative
2. 3.
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d. e.
relative 4th civil degree of consanguinity and affinity family of public officials spouses, unmarried children under 18
Chapter 7 LIABILITIES OF PUBLIC OFFICERS
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Chapter 8: Termination of Official Relations
C. Criminal Liability
Generally. No officer is above the law and all may be punished for criminal acts. Acting in official capacity will not relieve him from liability. However, public officers can be exempted by statues from certain crimes. He cannot be held liable for failure to perform duty when it is due to causes beyond his control. But absence of corrupt intent is no defense to an action against an officer for a statutory penalty for misconduct. Mere expiration of term will not prevent prosecution and punishment of public officer; nor re-election extinguishes criminal liability incurred by him during a previous term. Crimes peculiar to certain public officers. 1. revised penal code a. malfeasance and misfeasance in office b. frauds and illegal exactions and transactions c. malversation of public funds or property d. infidelity of public officers e. other offenses and irregularities committed by public officers. ILLUSTRATIVE CASE: Budget officer signed falsified vouchers for repair of government vehicles and made a request for the allotment of funds without ascertaining whether or not the repairs were needed. Held: There is no sufficient evidence to show that he is part of the conspiracy to the fraud. However, lack of care is signing the vouchers, though he is not a part to the fraud, is a ground for administrative liability. 2. 3. anti-graft and corrupt practices act penalty for violations in section 3 of RA 3019 is imprisonment for not less than 1 year nor more than 10 years, perpetual disqualification from public office, and confiscation or forfeiture of any prohibited interest or unexplained wealth. code of conduct and ethical standards a. b. c. 4. 5. fine not exceeding 6 months salary or suspension not exceeding 1 year or removal depending on gravity of offense. Violations of 7, 8, 9 punishable with imprisonment not exceeding 5 years or fine not exceeding 5,000 or both any violation proven shall be sufficient cause for removal or dismissal if no criminal prosecution is instituted against him private individuals who participated in conspiracy shall be subject to same penal liabilities as the public officials and shall be tried jointly
forfeiture of unexplained wealth act imprisonment not exceeding 5 years or fine not exceeding 10,000 or both, any public officer who shall transfer unlawfully acquired property civil service decree fine not exceeding 1,000 or imprisonment not exceeding 6 months or both when public officer makes appointments in violation of the rules, commits fraud, deceit, intentional misrepresentation of material facts, refuses or neglects duty
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6. 7. 8.
government auditing code fine not exceeding 1,000 or imprisonment not exceeding 6 months or both for violations of 67, 68, 89, 108 local government code imprisonment of 6 months and 1 day to 6 years or fine 3,000 to 10,000 or both when there is a violation of 89 NIRC a. b. c. extortion or willful oppression, knowingly demanding unauthorized payments, willful neglect to give receipts, etc. 50,000 to 10,000, imprisonment of 10 years to 15 years, plus perpetual disqualification to hold public office, vote, participate in public election unlawful divulgence of trade secrets or confidential information known to him in official capacity 5,000 to 18,000, 6 months to 5 years violation of withholding tax 5,000 to 10,000, imprisonment 6 months and 1 day to 2 years
9.
Ombibus election Code Chapter Eight TERMINATION OF OFFICIAL RELATIONS A. Specifically Upon expiration of term, rights, duties and authority ipso facto cease. Term fixed and definite time prescribed by law by which an officer may hold an office. Does not apply to appointive offices held at the pleasure of appointing power. In expiration of tenure, it is the right of the occupant himself to hold the office is terminated. Non-renewal of appointment at the end of the term is a valid form of termination. Removal and expiration of term distinguished. Remove oust officer from office before the expiration of term. 1. term of office not fixed by law and incumbent is relieved by appointing authority, legal effect is as if theres a term fixed. No removal but extinguishment of right to hold office upon expiration of term. appointment for a definite and renewable period, non-renewal not dismissal but expiration of term.
Modes of termination of official relations. Legal modes: 1. expiration of term or tenure of office; 2. reaching age limit (retirement); 3. death or permanent disability; 4. resignation; 5. acceptance of an incompatible office; 6. abandonment of office; 7. prescription of right to office; 8. removal; 9. impeachment; 10. abolition of office; 11. conviction of a crime; 12. recall. Absolution from criminal charge not a bar to administrative prosecution and vice versa. B. Natural Causes By expiration of term or office.
2.
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Law seeks to assure continuity in discharge of public trust; should not resign for transient reasons. Term and tenure distinguished. 1. Term of office time during which officer may claim to hold the office as of right; fixes interval of succession. Fixed period of time to hold office. Not affected by holding-over of incumbent after expiration of term. 2. Tenure period during which incumbent actually holds office.
Power of Congress to fix, shorter, or lengthen term. 1. where term fixed by the Constitution beyond the power of Congress to affect the tenure of constitutional office. But term can be changed by the vote of the people ratifying a constitutional amendment; amendment must clearly disclose intention to change term. 2. where term not fixed by the constitution Congress may limit the duration of the term of an office as it deems fit. But where the terms are prescribed by law, public policy forbids the beginning and expiration of terms be left to the discretion of person holding the office, or the body having the appointing power.
ILLUSTRATIVE CASES: 1. Petitioner claims right to office for being unable to serve for the full term due to the Japanese occupation. Held: Term of office fixed by law and cannot be extended by reason of war. 2. Under the law, the appointee shall hold office at the pleasure of the President. Held: Congress can legally and constitutionally make the tenure dependent upon the pleasure of the president, which is not a removal but an expiration of its tenure. Creation of office and the tenure of such office are dependent upon the pleasure of the President. Mayor dispensed with the services the City Legal Officer on the ground that the position was primarily confidential in nature. Held: Position primarily confidential in nature requiring utmost confidence on the part of the mayor to be extended to said officer. Tenure of such officials ends upon loss of confidence because their term of office lasts only as long as confidence in them endure; cessation involves no removal but an expiration of their term. The services of a private secretary in the office of the President were terminated but no evidence was adduced that his position was primarily confidential. Held: Work clerical in nature no evidence that is was primarily confidential and tenure not dependent upon the will of the appointing authority.
When Congress creates the office, it has the power to modify the term. Congress can also change the tenure of the officers holding offices which it created. Budgetary authority has no power th change the term of office fixed by the legislature by refusing to appropriate funds. Death or permanent disability. 1. Death of incumbent renders the office vacant. Upon his death, the public official ceases to hold office, and all rights, duties, obligations are extinguished. But if authority is exercised over two or more officers, death of one terminates his authority, leaves a vacancy but the entire office is not vacant. 2. Permanent disability covers both mental or physical disability. Appointing power will have to make the decision whether the condition of the public official has created a vacancy but a judicial determination of the fact is necessary to render it conclusive. C. Acts or Neglect of Officer
3.
4.
By resignation. The public officer has a right to resign but it is not to be taken as unqualified. It should not be used as an escape to evade administrative liability by the officer facing an administrative sanction. Meaning of resignation.
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Resignation formal renunciation or relinquishment of a public office. It implies an expression by the incumbent of the intention to surrender, renounce, and relinquish his right to the office and its acceptance by competent and lawful authority. Form of resignation. 1. Where law requires resignation to be made in a particular form, form must be substantially complied with. Where no form is prescribed, no particular mode is prescribed, resignation may be made by any method indicative of that purpose. What constitutes resignation. There must be an intention to relinquish part of the term, accompanied by act of relinquishment. There is an expression of the intention to surrender, renounce, and relinquish the office. ILLUSTRATIVE CASES: 1. Resignation was subject to result of appeal contesting employees dismissal. Held: To constitute a complete and operative act of resignation, the officer must show clear intention to relinquish or surrender his position and there must be acceptance of lawful authority. 2. Application for retirement benefits of a Commissioner of the COMELEC whose courtesy resignation was accepted by the President, was denied by the Commission. Held: Courtesy resignation cannot properly be interpreted as resignation in the legal sense for it is not necessarily reflective of an officers intention to surrender his position. It rather manifests his submission to the will of the appointing power. Eraps case. 2.
2.
If the law prohibits acceptance of another office, it is not incompatibility but a legal prohibition. If the second office is void, he does not forfeit his first office.
When offices incompatible with each other. Incompatibility is found in the character of the offices and their relation to one another. It exists: 1. conflict of duties and functions; 2. one is subordinate to the other and is subject to its supervisory power; 3. law declares incompatibility even though there is not inconsistency in the nature and functions of the offices. Exceptions to rule on holding incompatible offices. 1. where officer cannot vacate the first office by his own act 2. where first office is held under a different government 3. where officer is expressly authorized by law to accept another office 4. where second office is temporary. By abandonment of office. A public office may become vacant ipso facto by non-user or acquiescence. Abandonment may also result from intentional and completed relinquishment of any claim to the office. When an office is abandoned, the former incumbent cannot legally repossess it even by forcible re-occupancy. Meaning of abandonment. Abandonment voluntary relinquishment of an office by the holder of all right, title or claim thereto with the intention of not reclaiming it, or terminating his possession and control thereof. Intention is the first and paramount object of inquiry. There is no abandonment when there is no intention to abandon. When there is abandonment of office. 1. clear intention to abandon office abandonment must be total and absolute and under circumstances as to clearly indicate an absolute relinquishment. There must be a clear voluntary intention to abandon the office, and intention may be inferred from conduct. The elements, therefore, are: first, intention to abandon and second, overt acts by which intention is carried into effect.
3.
By acceptance of an incompatible or prohibited office. 1. It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. If while occupying one office, he accepts another which is incompatible with the first, ipso facto vacates the first office.
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2.
acceptance of another office 0 there must be deliberation and freedom of choice, either to keep the old office or renounce it for another. Acceptance of temporary appointment may show lack of intention to abandon. concurrence of overt acts and intention temporary absence is not sufficient. There must be concurrence of the intention to abandon and some overt acts from which it may be inferred that the officer has not more interest. failure to discharge duties of office, or to claim or resume it nonuser or neglect to use a right or privilege or to exercise an office. But this must not be strictly applied in times of war. Nonperformance is not abandonment where the non-performance results from temporary disability or from involuntary failure to perform. acquiescence by the officer there is abandonment when there is acquiescence by the officer in his wrongful removal or discharge.
Failure to perform duties must be with active or imputed intention on the part of the officer to relinquish office. Instances of abandonment. See pages 365-366 of the book. D. Acts of the Government or the People By removal. Removal may be arbitrary or for cause. It means the ouster of the incumbent before the expiration of his term. There may be notice and hearing. Dismissal from service is equivalent of the penalty of absolute perpetual disqualification from office in a criminal case. Power of removal of the President. Power of removal is implied from: 1. power to appoint 2. power to remove executive in nature 3. duty to execute laws 4. control of all departments 5. no officer in the CS shall be removed or suspended except for cause provided by law Presidential appointee in the career service comes under the disciplining authority of the president. Extend of the Presidents power of removal. 1. non-career officers exercising purely executive functions whose tenure not fixed by law removal with or without cause, Congress may not restrict power 2. quasi-legislative or quasi-judicial functions removed only on grounds provided by law 3. 4. 5. constitutional officers removable by impeachment not subject to power of removal by the President civil service officers only for cause temporary, provisional or acting appointments remove at pleasure, with or without cause
3.
4.
5.
ILLUSTRATIVE CASE: Petitioner, after accepting another position, sought reinstatement to his former position from which he was removed under a provision of law which was subsequently declared violative of his constitutional right to security of tenure. Held: The removal from their positions by virtue of a constitutionally infirm act necessarily negate a finding of voluntary relinquishment. Abandonment and resignation distinguished. Resignation and abandonment are incompatible and contradictory. Abandonment Relinquishment through non-user neglect to use a privilege or right to exercise an office Implies non-user but non-user does not itself imply abandonment Resignation Formal relinquishment Not a requisite of abandonment
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6.
offices created by law, at pleasure of the President not a removal but expiration of term. But where it is authorized that removal be at pleasure, removal may only be for cause appointments based on merit and fitness tenure co-terminous with appointing authority, or subject to his pleasure
Constitution, treason, bribery, graft and corruption, other high crimes, betrayal of public trust 3. members of the judiciary hold office during good behavior until 70 years old or become incapacitated. For those in the lower courts, determination of good behavior vests in the SC. Cessation from office due to death does not warrant dismissal of administrative complaint.
7.
Civil service officers and employees entitled to security of tenure. Security of tenure officer shall not be suspended or dismissed except for lawful cause and after due process. It is extended to both career and noncareer employees. Void appointment cannot give rise to security of tenure. 1. substantive aspect there must be sufficient ground for removal and only after due process is accorded. The cause must relate to the functions of the office and must be substantial in nature, directly affecting the rights and interests of the public. The guarantee of the Constitution is prevention of capricious exercise of power to dismiss. procedural aspect requires notice and opportunity to be heard before suspension or dismissal. The receipt of separation benefits by one who has been unlawfully removed does not preclude or estop him from assailing the termination of his services.
2.
Guarantee extends to both those in career and non-career positions. Non-career service protected from removal or suspension without just cause and non-observance of procedural due process. Appointed based on merit and fitness not removal at pleasure unless the cause of the separation is loss of confidence. Grounds for removal or suspension under the Constitution. 1. members of congress may be punished for disorderly behavior, concurrence of 2/3 of all members (suspension or expulsion). Suspension shall not exceed 60 days. 2. President, Vice. Supreme Court, ConCom, Ombudsman on impeachment for conviction of culpable violation of the
Grounds for disciplinary action under the Civil Service Law. 1. dishonesty 2. oppression 3. neglect of duty 4. misconduct 5. disgraceful and immoral conduct 6. being notoriously undesirable (ok, kung pangit ka, just cause pala un?) 7. discourtesy in the course of official duties 8. inefficiency and incompetence in the performance of official duties 9. receiving gift for personal use, given by someone in the hopes of receiving favor in return 10. conviction of a crime involving moral turpitude 11. improper or unauthorized solicitation of contribution 12. violation of existing civil service law 13. falsification of official documents 14. frequent unauthorized absences or tardiness 15. habitual drunkenness (ok, I guess hindi ako pwede sa civil service) 16. gambling prohibited by law (pinapatamaan akohaha) 17. refusal to perform official duty or render overtime service 18. disgraceful, immoral or dishonest conduct prior to entering service 19. physical or mental incapacity due to immoral or vicious habits 20. borrowing money by superiors, lending by subordinates 21. lending money at usurious interest 22. willful failure to pay just debts or taxes due to the government 23. contracting loans of money from persons with whom office of official has business relations 24. pursuit of private business without permission 25. insubordination 26. partisan politics by one holding non-political office 27. conduct prejudicial to the best interest of the service
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28. lobbying for personal interest or gains without authority 29. promoting sale of tickets not intended for charitable or public welfare. Complaint must be in writing and subscribed and sworn to by the complainant. Same penalties for similar offenses. One penalty in each case. Misconduct in office. Misconduct transgression of some established and definite rule of action; unlawful behavior or gross negligence. It is improper and wrong conduction, implying wrongful intent and not mere error of judgment. 3. 1. related to, and connected with, performance of official duties misconduct, misfeasance, malfeasance must have a direct relation and be connected with the performance of official duties, amounting to mal-administration or willful, intentional neglect and failure to discharge duties. It is committed in relation to the office of the accused and cannot exist without the office, the office being an element of the crime, perpetrated in the performance of duties. If it is a crime involving moral turpitude, conviction is necessary to be held administratively liable. 4. 2. committed during a prior term elected public official cannot be removed for offenses committed during a prior term, his election being a condonation. Removal cannot extend beyond the term during which the alleged misconduct was committed because each term is separate from other terms. The exception: criminal case pending against the re-elected public official. proved by substantial evidence clear and convincing proof on record that the official was motivated by wrongful intent, committed unlawful behavior in relation to his office, or transgressed some established and definite rules of action. 2.
Held: grounds for suspension are: 1) those related to the discharge of functions; 2) those not connected with official functions when crime involving moral turpitude not connected with office, conviction is condition precedent to administrative action. Deputy sheriff enforced a writ outside the region of RTC which issued it and went out of his way to unduly favor a party to the case. Held: Guilty of misconduct as an officer of the court, he should have known that the writ may only be enforced in the region where the issuing court is located. Petitioner, a clerk (and appointive officer) was charged with malversation of funds belonging to the employees cooperative association, a private entity. Held: when guilty of neglect, the same must be in connection with his duty. When the charge is dishonest, oppression or grave misconduct, these need have no relation to the office. But rule is different with elective officials may not be summarily suspended unless his conduct and acts of irregularity have some connection with his office. Mayor was convicted of slight physical injuries, and charged with illegal cockfighting which took place in another municipality, resisting arrest. Held: misconduct must affect performance of duties as an officer and not those affecting his character as a private individual.
3.
ILLUSTRATIVE CASES: 1. Mayor was administratively charged and preventively suspended based solely on the filing of three separate criminal cases for acts of lasciviousness.
Nepotism. 1. CS Decree prohibits ALL appointments made in favor of a relative of: a. Appointing authority b. Recommending authority c. Chief of bureau or office d. Person exercising immediate supervision over the appointee Not applicable when marriage was contracted after they have already been in the service for some time. Relative means those related within 3rd degree of consanguinity or affinity.
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2.
In (c) and (d), it is immaterial who the appointing or recommending power is. It suffices that an appointment is extended in favor of a relative within the 3rd degree Exempted from rules of nepotism a. Persons employed in confidential capacity b. Teachers c. Physicians d. AFP
5.
direct evidence consists of sworn statements and documents without prejudice to presentation of additional evidence deemed necessary but unavailable at the time of the filing. There shall be a right to cross-examination. each party may avail services of counsel. Theres a right to subpoena and subpoena duces tecum. investigation only for purposes of ascertaining the truth and without necessarily adhering to technical rule. Investigation to be conducted by the disciplining authority. appeals within 15 days from receipt of decision unless petition for reconsideration is seasonably filed (to be decided within 15 days). Notice of appeal filed with disciplining authority, forward records of the case with notice of appeal to appellate authority, within 15 days. Notice of appeal shall state date of decision appeal, date of receipt, grounds relied upon. petition for reconsideration on the following grounds: a. newly discovered evidence b. decision not supported by evidence on record c. errors of law or irregularities have been committed prejudicial to the interest of the respondent
3.
6. 7.
Appeal by party adversely affected by the decision. Appeals, where allowable, shall be made by the party adversely affected by the decision. Judgment of exoneration is not appealable. In administrative cases, complainant is a mere witness of the State, and therefore, has no legal personality to interpose an appeal except where respondent failed to question the appeal. Procedure in administrative cases against non-Presidential appointees. 1. commenced against any officer or upon sworn, written complaint of any other person 2. complaint by another person submit sworn statements of his testimony and witnesses, documents. If prima facie case is not found to exist dismissal of the case. If prima facie case exists notify respondent of charges, in writing, attach copy of complaint with sworn statements and documents. Respondent allowed not less than 72 hours to answer in writing under oath, with supporting statements and documents, and whether he elects a formal investigation if answer is not satisfactory. If answer is satisfactory dismissal of the case. does not request formal investigation, one shall still be conducted because merits of the case cannot be decided without investigation investigation held not earlier than 5 days nor later than 10 days from receipt of answer; finished within 30 days. Decision rendered within 30 days from termination of investigation. 5-day bar rule indispensable because it enables the parties to explore possibility of clarifying the misunderstanding
8.
9.
Preventive suspension. 1. Kinds a. Pending investigation b. Pending appeal if penalty is suspension or dismissal, and after review, respondent is exonerated 2. preventive suspension pending investigation charge against official involves dishonesty, oppression or grave misconduct, neglect of duty, or reasons to believe that respondent is guilty of the charges which would warrant his removal from service. Designation of a replacement is not a requirement for preventive suspension
3. 4.
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a.
purpose of suspension prevent the officer from using his position and the powers and prerogatives of his office to intimidate or in any way influence a potential witness or destroy or tamper records, immaterial that no evidence to prove that respondent may use influence on witnesses or tamper with records. Sufficient that there exists the possibility. not violative of the constitution because it is not a penalty if investigation is not finished and decision not rendered within proper time automatic reinstatement. Is found innocent of the charges reinstated.
until modified or set aside, intervening period during which employee is not permitted to work cannot be argued as unjustified suspension 5. suspension from office under RA 3019, 13 accuses suspended from office during pendency of criminal case against him. No distinction as to permanent or temporary employee, career or noncareer service. Criminal prosecution not abated by an officers reelection. Preventive suspension mandatory upon determination of the validity of the information. Law does not require proof of guilt during pre-suspension hearing. All it secures is adequate opportunity to challenge validity or regularity of the proceedings against him. pre-condition for suspension existence of a valid information, determined at a pre-suspension hearing, whose purpose is to determine the validity of the information and either: suspend and try the case or not suspend and dismiss the case, or correct matters that impair the validity. Once validity is determined, it is the ministerial duty of the court to issue order for preventive suspension duration of suspension cannot be for an indefinite period or for an unreasonable length of time a. case decided before 90 days, suspension will last less than 90 days. If case not decided within 90 days, suspension cannot exceed 90 days. There must be automatic reinstatement. Exception: delay caused by the respondent exonerated employee not entitled to salaries unless suspension is unjustified
b. c.
3.
right to compensation where employee is exonerated a. no payment of salaries during suspension when suspension is pending investigation. There is compensation when suspension is pending appeal in the event that official is exonerated. when exoneration, suspension must be proved to be unjustified. Preventive suspension limited to 90 days unless delay in conclusion of investigation due to the fault of the respondent. Despite the fact that officer is meted out a reprimand, he should be given back his salaries during suspension
6.
b.
7.
c. 4.
preventive suspension pending appeal entitled to compensation for the period of the appeal if found innocent a. punitive although considered illegal if respondent is exonerated. He must be reinstated with full pay for the period of the suspension. If conviction is affirmed, period of suspension becomes part of the final penalty of suspension or dismissal. confirmation of dismissal by department secretary is executory pending appeal. Since dismissal remains valid 8.
b.
in the case of the PNP suspension from office charged with a grave offense where penalty is 6 years and 1 day or more, which will last until termination of the case. Suspension cannot be terminated before termination of the case in the case of local elective officials 60 days maximum suspension justifiable as respondent was elected by the people but
b.
9.
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suspension may be ordered only after preliminary requirements and exchanges have been completed 10. in the case of presidential appointees and other elective officials may raise due process questions if extended for an unreasonable length of time. 11. where suspension imposed by the Ombudsman continue until the case is terminated by not more that 6 months, without pay, except when delay due to the fault of the respondent 12. prior notice and hearing not required because preventive suspension is not a penalty 13. members of Congress covered by RA 3019 power of congress to discipline members is a punitive measure imposed upon determination by congress upon an erring member. RA 3019 talks about a preliminary, preventive measure imposed for misbehavior of a respondent as a member of congress. Schedule of administrative penalties. 1. A. Penalties for Grave Offenses dismissal a. dishonesty, gross neglect of duty b. grave misconduct c. being notoriously undesirable d. conviction of a crime involving moral turpitude e. falsification of official document f. physical or mental disability due to vicious habits g. engaging in partisan politics when holding non-political office h. receiving gift for personal use, given by someone in the hopes of receiving favor in return i. contracting loans of money from persons with whom office of official has business relations j. soliciting or accepting gifts which may affect functions of office k. disloyalty to the country and the people
2.
suspension 6 months and 1 day to 1 year (first offense), dismissal (second offense) a. oppression b. disgraceful and immoral conduct c. inefficiency and incompetence d. frequent unauthorized absences or tardiness e. refusal to perform official duty f. gross insubordination g. conduct grossly prejudicial to the best interest of the service h. financial and material interest (pecuniary or proprietary interest by which a person will gain or lose something) in any transaction requiring approval of office i. employment in a private enterprise regulated or licensed by his office unless expressly allowed by law j. practice of profession unless authorized by the constitution k. disclosing or misusing confidential information to further private interest or give undue advantage to anyone l. obtain or use any statement filed for purpose contrary to morals, public policy, etc other than for information dissemination to the general public B. Penalties for Less Grave Offenses
1.
suspension 1 month and 1 day to 6 months (first offense); dismissal (second offense) a. simple neglect of duty b. simple misconduct c. gross discourtesy in the course of official duties d. gross violation of existing Civil Service Law and rules of serious nature e. insubordination f. habitual drunkenness g. nepotism h. recommending any person to a position which has regular official transaction with his office unless mandated by law or international agreements i. unfair discrimination in rendering public service due to party affiliation or preference
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j. k.
failure to file sworn statements of assets and liabilities, etc failure to resign from position in private business with 30 days from assumption of office, or divest shareholdings C. Penalties for Light Offenses
2. 3.
offenses under RA 6713 one penalty for each case (one administrative case which may involve one or more charges) mitigating and aggravating circumstances may be considered. If found guilty of 2 or more charges, penalty to be imposed would be that corresponding to the most serious charge, the rest considered as aggravating. Second or third offense need not be the same offense previously committed E. Accessory Penalties
1.
reprimand (first offense); suspension 1 day to 30 days (second offense); dismissal (third offense) a. neglect of duty b. discourtesy c. improper or unauthorized solicitation of contribution d. violation of reasonable office rules e. gambling prohibited by law f. refusal to render overtime service g. disgraceful, immoral or dishonest conduct prior to entering service h. borrowing money by superiors, lending by subordinates i. lending money at usurious interest j. willful failure to pay just debts or taxes due to the government k. pursuit of private business without permission l. lobbying for personal interest or gains without authority m. promoting sale of tickets not intended for charitable or public welfare n. failure to act promptly on letters and requests o. failure to process documents and complete action on documents within reasonable time p. failure to attend to anyone who wants to avail of services of the office
1.
dismissal carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, disqualifications for reemployment in government service forced resignation forfeiture of leave credits and retirement benefits, disqualification for employment in government service for 1 year. Where resignation contains conditions of disqualifications regarding re-employment in a class of position, disqualified from re-employment in such positions Administrative liability and punishment not a bar to criminal prosecution. F. Removal of Administrative Penalties or Disabilities
2.
In meritorious cases and upon recommendation of the CSC, President may commute or remove administrative penalties and/or disabilities. The Sandiganbayan. 1. cases subject to its jurisdiction a. RA 3019 b. Title VIII of RPC c. Offenses or felonies in relation to office, penalty higher than prision correccional or imprisonment of 6 years or fine of 6000 2. officials and private individuals subjects to its jurisdiction exclusive, original jurisdiction over (a), (b), (c) where one or more
dishonesty, graft and corruption, malversation must be decided within 10 days from filing. D. Imposition and Determination of Penalties 1. offenses under PD 807 a. forced resignation instead of dismissal b. transfer, demotion, fine instead of suspension 1 month and 1 day to 1 year c. fine instead of suspension 1 day to 1 month
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of the accused are officials occupying schwar-schwar positions in the government (salary grade 27 schwar-schwar) 3. jurisdiction of ordinary courts none of the accused on salary grade 27, exclusive original jurisdiction of RTC, MTC, MTC, MuTC. MCTC Sandiganbayan exclusive appellate jurisdiction. Absence of allegation that offense committed in relation to official duty, must be tried in ordinary courts. The Ombudsman. 1. powers, functions, duties of Ombudsman a. investigate any act or omission of any public official when such act appears to be illegal, unjust, improper or inefficient b. direct to perform or expedite any act or duty required by law , to stop, prevent and correct any abuse or impropriety c. direct to take appropriate action against public official at fault, recommend removal, suspension, demotion, etc d. determines causes of inefficiency 2. officials subject to Ombudsman disciplinary authority all elective and appointive officials except those removable only by impeachment, members of congress and judiciary. Only body authorized to investigate officials removable by impeachment.
Held: Abolition of office also extinguishes right to that office. Abolition must not constitute removal without cause. Abolition of the position does not involve removal from office, and in the absence of political or personal motivation and where there is reasonable ground to abolish the position, the officer has no right to demand that he be kept on the payroll. Exception to abolishment is abolishing in bad faith. If the abolishment is void, incumbent is deemed never to have ceased to hold office. Abolition must be: in good faith, not for personal or political reasons or to circumvent incumbents security of tenure, not implemented in violation of law. Termination through reorganization. Reorganization alteration of the existing structure of government offices to promote greater efficiency, remove redundancy, effect economy. It may result in the loss of ones position through removal or abolition of office. It must be for a valid purpose and done in good faith. ILLUSTRATIVE CASE: Abolition of municipal positions was made as a mere subterfuge for removal. Held: There must be evidence of bad faith shown.
Removal from office and termination by abolition of an office distinguished. Removal office with an occupant who would thereby lose his position, implying that post subsists, one is merely separated therefrom Abolition after abolition, no occupant. No tenure to a non-existent office, the right disappeared with the abolished office. ILLUSTRATIVE CASE: Director of an abolished bureau claims that he was illegally removed by virtue of failure to appoint him head of the new office which replaced the abolished bureau.
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Public Officers Law

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