Professional Documents
Culture Documents
Justin Isidoro
PUBLIC OFFICE
Definition
Public office is frequently used to refer to
(nature) the right, authority, and duty,
(origin) created and conferred by law,
(duration) by which, for a given period either fixed by law or enduring at the
pleasure of creating power,
an individual is invested with some portion of the sovereign functions of
government,
(purpose) to be exercised by that individual for the benefit of the public
[Fernandez and De Lima v. Sto. Tomas (116418, March 7, 1995)].
order to promote efficiency in the public service is limited in scope and cannot be extended
to other matters not embraced therein. Therefore, an executive order depriving the Courts
of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is
null and void, as Congress alone has the "power to define, prescribe and apportion the
jurisdiction of the various courts." (U.S.T. v. Board of Tax Appeals)
Public Employment
Public Office
PUBLIC OFFICERS
Definition
RA 6713
(CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND
EMPLOYEES):
"Public Officials" includes elective and appointive officials and employees,
permanent or temporary, whether in the career or non-career service,
including military and police personnel, whether or not they receive
compensation, regardless of amount.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees), one may be considered a public
official whether or not one receives compensation, thus:
Public Officials include elective and appointive officials and employees, permanent
or temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.
Khan, Jr. and Malabanan v. Office of the Ombudsman (125296, July 20, 2006)
Public officers are those endowed with the exercise of sovereign executive, legislative or
judicial functions.
In the case of officers/employees in GOCCs, they are deemed public officers if their
corporations are tasked to carry out governmental functions.
Public Officer
- A person whose duties, not being of a clerical or manual nature, involve the exercise
of discretion in the performance of functions of government.
- When used with reference to person having authority to do particular act or perform
particular function, officer includes government employee, agent or body, having the
authority to do the act or exercise that function.
Public Employee
Public Officer
Classification
A. As to Creation
(1) Constitutional
(2) Statutory
D. As to Nature of functions
(1) Civil
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(2) Military
G. As to Compensation
(1) Lucrative
(2) Honorary
DE FACTO OFFICERS
Definition
An officer de facto is one who has the reputation of being the officer he
assumes to be, and yet is not a good officer in point of law. He must have
acted as an officer for such length of time, under color of title and under such
circumstances of reputation or acquiescence by the public and public authorities, as
to afford a presumption of appointment or election, and induce people, without
inquiry, and relying on the supposition that he is the officer he assumes to be, to
submit to or invoke his action [Torres v. Ribo (L-2051, May 21, 1948)].
Rationale
The de facto doctrine was formulated, not for the protection of the de facto officer
principally, but for the protection of the public and individuals who get involved in the
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official acts of persons discharging the duties without being lawful officers [Monroy v.
CA (L-23258, July 1, 1967)]
Elements
In Tuanda v. Sandiganbayan (110544, Oct. 17, 1995), the Supreme Court provided for
the elements of de facto officership, to wit: [DCA]
1. There must be a de jure office;
2. There must be color of right or general acquiescence by the public; and
3. There must be actual physical possession of the office in good faith.
De Jure De Facto
De Facto Intruder
Salary/ Compensation
GENERAL RULE: No right to compensation. A de facto officer cannot sue for the recovery of
salary, fees or other emoluments attached to the office, for the duties he has performed. His
acts, as far as he himself is concerned, are theoretically void. MORE SO, the rightful
incumbent may recover from the de facto officer the salary received by the latter during his
wrongful tenure, even though he entered into the office in good faith and under color of title
(Monroy v CA).
EXCEPTIONS:
Where there is no de jure public officer, the officer de facto who in good faith has had
possession of the office and has discharged the duties pertaining thereto is legally
entitled to the emoluments of the office.
One who becomes a public officer de facto in good faith and renders the services
required of the office may recover the compensation.
When the de jure officer assumed another position under protest for which she was also
compensated, in the case of Gen. Manager [Philippine Ports Authority v. Monserate (April
17, 2002)]
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-A de facto officer, not having good title, takes the salaries at his risk and must
account to the de jure officer (when theres one) for whatever salary he received
during the period of his wrongful tenure, even if he occupied the office in good faith.
-BUT HERE, the de jure officer assumed another position under protest, for which she
received compensation. Thus, while her assumption to the said position and her
acceptance of the corresponding emoluments do not constitute abandonment of her
rightful office, she cannot recover full back wages for such. She is only entitled to
back pay differentials between the salary rates for the lower position she assumed
and the position she is rightfully entitled to.
The de facto officer may be liable for all penalties imposed by law for any of the following
acts:
(a) usurping or unlawfully holding office;
(b) exercising the functions of public office without lawful right;
(c) not being qualified for the public office as required by law.
The de facto officer cannot excuse his responsibility for crimes committed in his official
capacity by asserting his de facto status.
VACANCIES
Kinds
1. Original
2. Absolute
3. Accidental
4. Constructive
A. ELECTION
Special Election is one which is held when there is failure of election on the
scheduled date of regular election in a particular place or which is conducted to fill up
certain vacancies, as provided by law (e.g. to fill in vacancy in office before the
expiration of the term for which incumbent was elected)
B. APPOINTMENT
An appointment to a public office is the unequivocal act of designating or
selecting by one having the authority therefor of an individual to discharge
and perform the duties and functions of an office or trust.
The appointment is deemed complete once the last act required of the appointing
authority has been complied with and its acceptance thereafter by the appointee in order
to render it effective.
The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
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himself who is best qualified among those who have the necessary qualifications and
eligibilities.
* On whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity
of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of elective
officials to other government posts.
YES. Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
The section expresses the policy against the concentration of several public positions
in one person, so that a public officer or employee may serve full-time with dedication
and thus be efficient in the delivery of public services. The subject proviso directs the
President to appoint an elective official, i.e., the Mayor of Olongapo City, to other
government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since
this is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par.,
Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may
be most beneficial to the higher interest of the body politic is of no moment.
reemployment of those separated from the service, and appointment of outsiders who
have appropriate civil service eligibility, but not necessarily in this order.
It cannot be said that private respondent was an outsider. Although directly employed
by the City Health Department, she actually worked at the CCMC prior to her
appointment to the subject position. Besides, even, if she was an outsider, the law does
not prohibit the employment of persons from the private sector so long as they have the
appropriate civil service eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by
promotion, the concept of "next in rank" does not impose any mandatory or peremptory
requirement to appoint the person occupying the next lower position in the occupational
group of the office. What the Civil Service Law and the Administrative Code of 1987
provide is that if a vacancy is filled up by the promotion, the person holding the position
next in rank thereto "shall be considered for promotion." In other words, one who is
"next in rank" to a vacancy is given preferential consideration for promotion to the
vacant position, but it does not necessarily follow that he alone and no one else can be
appointed. There is no vested right granted the next in rank nor a ministerial duty
imposed on the appointing authority to promote the holder to the vacant position.
An appointment, whether to a vacancy or to a newly created position, is essentially
within the discretionary power of whomsoever it is vested. Once a candidate possesses
the minimum qualities required by law, sufficient discretion, if not plenary, is granted to
the appointing authority. Whom to appoint among those qualified is an administrative
question involving considerations of wisdom for the best interest of the service which
only the appointing authority can decide.
of its choice. It merely restored the appointment of private respondent who was first
appointed to the contested position.
Private respondent assumed and performed the duties and functions of the position
as Supply Officer I and received the compensation and benefits of the said position in
accordance with the mandate of the Civil Service Law. The acts of the head of a
department or office making the appointment and the Commissioner of Civil Service
acting together, though not concurrently, but consecutively, are necessary to make an
appointment complete, the permanent appointment extended to private respondent,
under the circumstances of the case, is deemed complete. As such, she is entitled to the
protection of the law against unjust removal.
The conclusion of respondent Commission in the questioned decision that private
respondent is more qualified than petitioner merely supports the validity of the
restoration of private respondent to her previously approved appointment considering
that she meets the prescribed qualification standards required of the position of Supply
Officer I and the appropriate civil service eligibility.
It is well-settled that once an appointment is issued and the moment the appointee
assumes a position in the civil service under a completed appointment, he acquires a
legal, not merely equitable right (to the position), which is protected not only by statute,
but also by the Constitution, and cannot be taken away from him either by revocation of
the appointment, or by removal, except for cause, and with previous notice and hearing.
When the appointing power has once acted and the appointee has accepted the
office and done what is required of him upon its acceptance, his title to the office
becomes complete, and he can then be removed only in the regular way. The appointing
power cannot effect his removal indirectly by rescinding or revoking his appointment
after it is complete.
There is thus reasonable ground for the rule that the moment the discretionary power
of appointment has been exercised and the appointee assumed the duties and functions
of the position, the said appointment cannot be revoked by the appointing authority on
the ground merely that the protestant is more qualified than the first appointee, subject
however to the condition that the first appointee should possess the minimum
qualifications required by law. Otherwise, the security of tenure guaranteed by Article IX-
B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the
appointing authority is allowed to flip-flop in exercising its discretionary power of
appointment.
Different Classes of Employees in the Public Sector, i.e. government civil servants
[Chua vs. CSC (G.R. No. 88979; February 7, 1992)]
Who are regular employees? Labor Code in Art. 280 deems an employment regular where
the employee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer. No equivalent definition can be
found in P.D.No. 807 or in the Administrative Code of 1987. The Early Retirement Law itself
(Rep. Act No. 6683) merely includes such class of employees (regular employees) in its
coverage, unmindful that no such specie is employed in the public sector.
The fact that private respondent obtained civil service eligibility later on is of no
moment as his having passed the supervising security guard examination, did not ipso
facto convert his temporary appointment into a permanent one. In cases such as the one
at bench, what is required is a new appointment since a permanent appointment is not a
continuation of the temporary appointment these are two distinct acts of the
appointing authority.
Binamira vs Garrucho
- Appointment or designation involves exercise of discretion which cannot be delegated.
Even if it be assumed that the power could be exercised by Minister of Tourism, it could be
recalled by the President.
- Designation is considered only an acting or temporary appointment, which does not confer
security of tenure.
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Sarmiento vs Mison
- 4 groups of officers whom the President shall appoint:
(a) heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
whose appointments are vested in him in this Constitution
(b) all other officers of the Government whose appointments are not otherwise
provided for by law
(c) those whom the President may be authorized by law to appoint
(d) officers lower in rank whose appointments the Congress may by law vest in the
President alone.
- Confirmation by COA is required only for presidential appointees that are within the 1 st
group of officers.
- Case at bar: Confirmation of COA is not needed in appointment of Commissioner of Bureau
of Customs because a bureau head is not among those within the first group of
appointments where consent of COA is required.
Bautista vs Salonga
- Confirmation of COA is not needed in appointment of Chairman of Commission of Human
Rights because such appointment is not vested in the President in the Constitution. The
President appoints Chairman of CHR pursuant to EO 163 (CHR Chairman is thus within the
3rd group of officers)
Calderon vs Carale
- Confirmation by COA is required only for presidential appointees that are within the 1 st
group of officers as mentioned in Sarmiento vs Mison.
- Congress may not expand the list of appointments needing confirmation.
- Case at bar: RA 6715, which requires the COA confirmation in appointments of NLRC
Chairman and Commissioners, transgresses Sec. 16, Art. VII. The appointments of NLRC
Chairman and Commissioners do not need COA confirmation because they fall under the 3rd
group of officers.
Tarrosa vs Singson
- affirmed the ruling in Calderon vs Carale
- Case at bar: Appointment of Central Bank Governor does not need COA confirmation.
Flores vs Drilon
- A law which limits the President to only one appointee is an encroachment to the
prerogative of the President because appointment involves discretion to choose who to
appoint.
- CSC is without authority to revoke an appointment because of its belief that another
person was better qualified, which is an encroachment on the discretion vested solely in the
appointing authority.
- The permanent appointment made by the appointing authority may not be reversed by
CSC and call it temporary.
Pobre vs Mendieta
- The vacancy in the position of Chairman of the Professional Regulation Commission cannot
be filled by the Senior Associate Commissioner by operation of law (or by succession)
because it will deprive the President of the power to appoint the Chairman.
Co-terminous employees:
Provisional Appointees:
The Provincial Board of Cebu vs. CFI (GR 34695; 7 March 1989)
Issue: Whether or not provisional appointees may be considered as temporary employees
made in the absence of eligibles.
Held: Yes. The law clearly speaks of temporary employees in the classified service made in
the absence of eligibles whose appointments require approval by the Provincial Board. On
the other band, the law defining a provisional appointment contemplates that such
appointments are made because of the absence of appropriate eligibles to the positions to
which they are appointed. What the law considers a provisional appointment refers to an
appointee with a civil service eligibility but other than an appropriate one for the position to
which he was appointed." A provisional appointment is terminable only upon the
certification of an appropriate eligible since such an appointment takes into account that the
appointee should necessarily be an eligible who is supposed to have a permanent
appointment and the nature of the work is such that only eligibles may perform the same."
In other words, a provisional appointee does not have the appropriate eligibility to the
position but the law gives him the privilege of occupying the position in the absence of an
eligible and until the availability of an appropriate eligible is certified. There is no question
therefore, that the appointments in question are covered by Section 2081 of the
Administrative Code requiring the approval of the Provincial Board.
Limitations
1. Prohibition against appointment within 1 year after losing in an election;
2. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure (Section 7, Art IX-B, Constitution);
3. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in the Constitution, hold any other
office or employment during their tenure (Sec. 13, Art. VII, Constitution);
4. The spouse and relatives by consanguinity or affinity within the fourth civil degree of
the President shall not, during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries (Sec. 13, Art. VII,
Constitution).
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5. No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries,
during his term without forfeiting his seat (Sec. 13, Art. VI, Constitution).
6. No Senator or Member of the House of Representatives shall be appointed to any
office which may have been created or the emoluments thereof increased during the
term for which he was elected (Sec. 13, Art. VI, Constitution).
7. The Members of the Supreme Court and of other courts established by law shall not
be designated to any agency performing quasi-judicial or administrative functions
(Sec. 12, Article VIII, Constitution).
8. No member of a Constitutional Commission shall, during his tenure, hold any other
office or employment (Sec. 2, Art. IX-A, Constitution).
9. Members of Constitutional Commissions, Ombudsman and his Deputies must not
have been candidates for any elective office in the immediately preceding election.
10. The Ombudsman and his Deputies shall serve for a term of seven years without
reappointment. They shall not be qualified to run for any office in the election
immediately succeeding their cessation from office (Sec. 11, Art. XI, Constitution).
11. Members of the Constitutional Commissions shall serve for a term of seven years
without reappointment (Art. IX, Constitution).
12. Rule against Nepotism.
Designation
Designation Appointment
Nerito Santos as the permanent city engineer of Cabanatuan City. Petitioner was the
incumbent city engineer of Palayan City when he was designated as Acting City Engineering
of Cabanatuan City. There is a difference between an appointment and a designation.
Appointment is the selection by the proper authority of an individual who is to exercise the
functions of an office. Designation, on the other hand, connotes merely the imposition of
additional duties, upon a person already in the public service by virtue of an earlier
appointment or election. A mere "designation" does not confer upon the designee security
of tenure in the position or office which he occupies in an "acting" capacity only.
Appointment may be defined as the selection, by the authority vested with the power, of
an individual who is to exercise the functions of a given office. When completed, usually with
its confirmation, the appointment results in security of tenure for the person chosen unless
he is replaceable at pleasure because of the nature of his office. Designation, on the other
hand, connotes merely the imposition by law of additional duties on an incumbent
official . . . It is said that appointment is essentially executive while designation is legislative
in nature.
Designation may also be loosely defined as an appointment because it likewise involves
the naming of a particular person to a specified public office. That is the common
understanding of the term. However, where the person is merely designated and not
appointed, the implication is that he shall hold the office only in a temporary capacity and
may be replaced at will by the appointing authority. In this sense, the designation is
considered only an acting or temporary appointment, which does not confer security of
tenure on the person named.
Even if so understood, that is, as an appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed. . . Appointment involves the exercise of
discretion, which because of its nature cannot be delegated."
Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City
merely imposed upon him the additional function of the City Engineer of Cabanatuan City on
top of his regular duties as City Engineer of Palayan City. He may claim security of tenure as
City Engineer of Palayan City but he may not lay such a claim to the position of City
Engineering of Cabanatuan City for he holds no appointment to the latter office.
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CIVIL SERVICE
Scope
The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters
[1987 Philippine Constitution, Art. IX-B Sec. 2(1)].
Objective
[1987 Philippine Constitution, Art. IX-B Sec. 3] The Civil Service Commission, as the central
personnel agency of the Government, shall:
establish a career service
adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service
strengthen the merit and rewards system
integrate all human resources development programs for all levels and ranks,
institutionalize a management climate conducive to public accountability
submit to the President and the Congress an annual report on its personnel programs
Career Service
Characteristics [MAS]
(1) entrance based on merit and fitness to be determined as far as practicable by
competitive examinations or based on highly technical qualifications;
(2) opportunity for advancement to higher career positions;
(3) security of tenure
Inclusions[OCoPo-CoCo-PaPa]
(1) Open Career positions for appointment to which prior qualification in an
appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature; these
include the faculty and academic staff of state colleges and universities, and
scientific and technical positions in scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent
rank as may be identified by the Career Executive Service Board, all of whom are
appointed by the President.
(4) Career officers, other than those in the Career Executive Service, who are
appointed by the President, such as the Foreign Service Officers in the
Department of Foreign Affairs;
(5) Commission officers and enlisted men of the Armed Forces which shall maintain
a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether performing
governmental or proprietary functions, who do not fall under the non-career
service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
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Non-Career Service
Characteristics
The Non-Career Service, on the other hand, is characterized by: [OC]
(1) entrance on bases other than those of the usual tests of merit and fitness
utilized for the career service; and
(2) tenure which is limited to a period specified by law, or which is coterminous with
that of the appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose employment was made.
Inclusions
Included in the non-career service are: [ESC-CEC]
1. elective officials and their personal or confidential staff;
2. secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed terms of office and
their personal or confidential staff;
4. contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job requiring
special or technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year and
performs or accomplishes the specific work or job, under his own responsibility
with a minimum of direction and supervision from the hiring agency.
5. emergency and seasonal personnel.
6. Casual where and when employment is not permanent but occasional,
unpredictable, sporadic and brief in nature
Proximity Rule
- Absent the declaration of the CSC that a position is primarily confidential, when by
the nature of the functions of the office there exists close intimacy between the
appointee and appointing power which ensures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state.
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Personnel Actions
1. Promotion movement from one position to another with increase in duties and
responsibilities as authorized by law and usually accompanied by an increase in pay.
Next In Rank rule the person next in rank shall be given preference in promotion
when the position immediately above his is vacated.
- the appointing authority still exercises discretion and is not bound by this rule,
although he is required to specify the special reason/s for not appointing the
officer next-in-rank. This means that the one who is next-in-rank is given only
preferential consideration for promotion; but it does not follow that he alone and
no one else can be appointed.
Qualified next-in-rank refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy proposed to be filled
and who meets the requisites for appointment thereto as previously determined by
the appointing authority and approved by the Commission.
2. Certification a person is selected from a list of qualified persons certified by the CSC
from an appropriate register of eligible, and who meets all the qualifications
prescribed for the position.
3. Transfer movement from one position to another which is of equivalent rank, level
or salary without break in service
- May be imposed as an administrative penalty
- When transfer amounts to removal:
(a) Unconsented transfer which results to promotion/demotion that aims to lure
the employee away from his permanent position
(b) A transfer that aims by indirect method to terminate services or to force
resignation
Promotion Transfer
Scalar ascent of a senior officer or Lateral movement from one position to
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6. Detail movement of an employee from one agency to another without the issuance
of an appointment, and shall be allowed only for a limited period in the case of
employees occupying professional, technical and scientific positions.
- See Borres v. Canonoy (GR L-31641)
2. Although appointed by the Chairman, ISS members do not directly report to the Office of
the Chairman in the performance of their official duties. An ISS member is subject to the
control and supervision of an Area Supervisor who, in turn, only implements the directives of
the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the
Board of Directors. Obviously, as the lowest in the chain of command, private respondent
does not enjoy that "primarily close intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of the
corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class
possess a technical skill or training in the supreme or superior degree, which is the sense in
which "highly technical" is, we believe, employed in the Constitution. There are hundreds of
technical men in the classified civil service whose technical competence is not lower than
that of a city engineer. As a matter of fact, the duties of a city engineer are eminently
administrative in character and could very well be discharged by non-technical men
possessing executive ability.
Dean Sta. Maria contended that the transfer is unjust, unfair, unconstitutional, and
contrary to law, and, therefore, null and void."
Issue: Whether petitioners transfer was valid.
Held: No. The transfer of the petitioner amounts to a removal.
(a) The contract of employment of a dean of a college of the University of the Philippines
has a term of 5 years and enjoys security of tenure. He cannot be removed except for
a just cause. Unless sooner terminated does not mean terminable at will.
(b) Transfer, promotion, demotion, distinguished; transfer amounting to removal - A
transfer is a "movement from one position to another which is of equivalent rank,
level or salary, without break in service." Promotion is the "advancement from one
position to another with an increase in duties and responsibilities as authorized by
law, and usually accompanied by an increase in salary." A transfer that results in
promotion or demotion, advancement or reduction or a transfer that aims to "lure the
employee away from his permanent position", cannot be done without the employee's
consent. For that would constitute removal from office. Indeed, no permanent unless
the officer or employee is transfer can take place unless the officer of the employee is
first removed from the position held, and then appointed to another position. When an
officer is reduced in rank or grade and suffers a big cut in pay, he is demoted; and
when he is demoted, he is removed from office. But a demotion means something
more than a reduction in salary: there may be a demotion in the type of position
though the salary may remain the same. A transfer that aims by indirect method to
terminate services or to force resignation also is removal.
(c) Transfer of college dean of UP to another position with a deans rank, without his
consent, is removal - A college dean holding an appointment with a fixed term stands
on a different plane. He cannot, without his consent, be transferred before the end of
his term. He cannot be asked to give up his post. Nor may he be appointed as dean of
another college. Much less can he be transferred to another position even if it be
dignified with a dean's rank.
- (1) Deanship in a university, being an academic position which requires learning,
ability and scholarship, is more exalted than that of a special assistant who merely
assists the President, as the title indicates. The special assistant does not make
authoritative decisions.
(2) The position of dean is a line position where the holder makes authoritative
decisions in his own name and responsibility. A special assistant does not rise above
the level of staff position.
(3)The position of dean is created by law, the university charter, and cannot be
abolished even by the Board of Regents. That of special assistant, upon the other
hand, is not so provided by law; it was a creation of the university president.
Petitioners assailed these directives by filing the instant petition claiming that said section
violates the equal protection clause, infringed on their security of tenure, undermined the
appointing authority of the COMELEC and was not germane to the subject matter stated in
the title of the law. Basically, petitioners assailed the validity of the said section.
Issue: Whether the reassignment to different stations constitute infringement on
petitioners security of tenure.
Held: No. The Court held that Section 44 of RA 8189 enjoys the presumption of validity in
the absence of any ground to invalidate it; that the equal protection clause of the
Constitution allows a valid classification and that the singling out of election officers to
ensure impartiality of election officers does not violate the equal protection clause; that the
guarantee of security of tenure is not infringed where transfer of employees is mandated by
law; that the COMELEC, as a government agency tasked with the implementation and
enforcement of election laws, is duty bound to comply with RA 8189 on transfer of election
officers; that Section 44 of RA 8189 is related to the subject matter of the law, which is
registration; and finally, in the absence of clear showing of grave abuse of discretion,
respect is due to co-equal departments of the government in matters entrusted to them by
the Constitution.
that. To regain her former post as assistant city treasurer, she must reapply and undergo the
usual procedure required for a new appointment.
Held: Yes.
Every civilized country recognizes, and has therefore provided for, the
pardoning power to be exercised as an act of grace and humanity, in proper cases.
Without such a power of clemency, to be exercised by some department or
functionary of a government, a country would be most imperfect and deficient in its
political morality and in that attribute of Deity whose judgments are always tempered
with money.
the general rule that while a pardon has generally been regarded as blotting
out the existence of guilt so that in the eyes of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does
not erase the fact of the commission of the crime and the conviction thereof. Pardon
frees the individual from all the penalties and legal disabilities and restores to him all
his civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender
LAW ON PUBLIC OFFICERS 35
Justin Isidoro
regains his eligibility for appointment to public office which was forfeited by reason of
the conviction of the offense. But since pardon does not generally result in automatic
reinstatement because the offender has to apply for reappointment, he is not entitled
to back wages.
But, stated otherwise, if the pardon is based on the innocence of the
individual, it affirms this innocence and makes him a new man and as
innocent; as if he had not been found guilty of the offense charged. When a
person is given pardon because he did not truly commit the offense, the
pardon relieves the party from all punitive consequences of his criminal act,
thereby restoring to him his clean name, good reputation and unstained
character prior to the finding of guilt.
In the case at bar, petitioner was found administratively liable for
dishonesty and consequently dismissed from the service. However, he was
later acquitted by the trial court of the charge of qualified theft based on
the very same acts for which he was dismissed. The acquittal of petitioner
by the trial court was founded not on lack of proof beyond reasonable
doubt but on the fact that petitioner did not commit the offense imputed to
him. Aside from finding him innocent of the charge, the trial court
commended petitioner for his concern and dedication as a public servant.
Verily, petitioner's innocence is the primary reason behind the grant of
executive clemency to him, bolstered by the favorable recommendations for
his reinstatement by the Ministry of Transportation and Communications
and the Civil Service Commission.
Petitioner's automatic reinstatement to the government service
entitles him to back wages. This is meant to afford relief to petitioner who
is innocent from the start and to make reparation for what he has suffered
as a result of his unjust dismissal from the service. To rule otherwise would
defeat the very intention of the executive clemency, i.e., to give justice to
petitioner. Moreover, the right to back wages is afforded to those with have
been illegally dismissed and were thus ordered reinstated or to those
otherwise acquitted of the charges against them. There is no doubt that
petitioner's case falls within the situations aforementioned to entitle him to
back wages.
Further, it is worthy to note that the dismissal of petitioner was not the result
of any criminal conviction that carried with it forfeiture of the right to hold public
office, but is the direct consequence of an administrative decision of a branch of the
Executive Department over which the President, as its head, has the power of control.
The President's control has been defined to mean "the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the performance
of his duties and to the judgment of the former for the latter." In pardoning petitioner
and ordering his reinstatement, the Chief Executive exercised his power of control
and set aside the decision of the Ministry of Transportation and Communications. The
clemency nullified the dismissal of petitioner and relieved him from administrative
liability. The separation of the petitioner from the service being null and void, he is
thus entitled to back wages.
appointment as Board Secretary II, was dismissed therefrom because of loss of confidence.
This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question,
therefore, that her dismissal as Board Secretary II could not have been the subject of the
petition for mandamus and reinstatement filed before respondent Judge. The fact is that
private respondent's assignment as "Coordinator for Extension Services" was a mere
designation. Not being a permanent appointment, the designation to the position cannot be
the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be
validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would
not be possible because the position is not provided for in the PSCA plantilla. The PSCA
could not have made any valid appointment for this inexistent position. This could very well
be the reason why she was merely designated as Coordinator. As a mere designee, she
could not have acquired any right to the position even if the position existed. At any rate, a
mere "designation" does not confer upon the designee security of tenure in the position or
office which he occupies in an acting capacity only.
* Reappointment cannot be compelled against appointing authority - The fact that
private respondent Cerillo passed the requisite Civil Service Examination after the
termination of her temporary appointment is no reason to compel petitioners to reappoint
her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be
considered by the appointing authority are: performance, degree of education, work
experience, training, seniority, and, more importantly, as in this case, whether or not the
applicant enjoys the confidence and trust of the appointing power. As We said earlier, the
position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not
only confidence in the aptitude of the appointee for the duties of the office but primarily
close intimacy which ensures freedom from misgivings of betrayals of personal trust or
confidential matters of state." In other words, the choice of an appointee from among those
who possessed the required qualifications is a political and administrative decision calling
for considerations of wisdom, convenience, utility and the interests of the service which can
best be made by the Head of the office concerned.
* Writ of Mandamus, not applicable; Reinstatement as discretionary - Reinstatement is
technically issuance of a new appointment which is essentially discretionary, to be
performed by the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. Such exercise of
the discretionary power of appointment cannot be controlled, not even by the Court as long
as it is exercised properly by the appointing authority. Consequently, it cannot be the
subject of an application for a writ of mandamus.
* Id.; Termination of Employment; Expiration of term not illegal dismissal - To the
question was the termination of the services of the petitioners legal or not?, the only answer
is there was not termination to speak of. Termination presupposes an overt act committed
by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian
(Loleng) gave notice to the petitioners of the expiration of their respective contracts,
Petitioners appointment or employment simply expired either by its very own terms, or
because it may not exceed one year, but most importantly because the PAFCA was
dissolved and replaced by the PSCA.
consideration of the verbal complaints that respondent Parages had been molesting Chinese
businessmen in Cebu and the fact that his performance was not satisfactory.
Respondent declined the detail on the ground that the order was illegal. A petition for
prohibition and injunction was filed by private respondent at the Court of First Instance of
Cebu but while the same was pending, petitioner Acting Mayor, charged him with
insubordination and neglect of duty in the Police Commission through the City Board of
Investigators and ordered the suspension of respondent. Hence, the latter amended his
petition to include the prayer that his suspension be declared illegal. The trial court
rendered its decision declaring the detail order illegal and therefore null and void for being
contrary to Section 90 of Republic Act No. 3857 (Revised Charter of the City of Cebu) and to
the constitutional protection of security of tenure. The order of suspension was likewise held
illegal and immediate reinstatement of respondent was ordered.
Issue: Whether the detail order was valid.
Held: Yes. The power of petitioner as Mayor of Cebu City to detail must necessarily be
deemed included in his power of control and supervision over different departments as
provided in Sections 19 and 32 of the Revised Charter of Cebu. The constitutional provision
on security of tenure is not in point as a temporary detail is neither removal, suspension nor
transfer when made in the interest of public service.
Qualifications
Scope of Qualifications
1. Citizenship
* Aliens are not eligible to public office unless the privilege is extended to them by
statute.
2. Age
3. Suffrage
4. Residence
5. Education
6. Ability to read and write
7. Political affiliation
* GENERAL RULE: Political qualifications are Not Required for public office.
* EXCEPTIONS:
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Duration of Qualifications
A. Where time is specified by Constitution or law:
- The candidate must possess the necessary qualifications at that time
B. Where the Constitution or law is silent
- Courts shall determine
C. When qualifications must always exist:
- Eligibility to public office is of a continuing nature and must exist at the
commencement of the term and during the occupancy of the office.
Under Section 39, RA 7160 (AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE
OF 1991) -
- and able to read and write Filipino or any other local language or dialect.
(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be:
- at least eighteen (18) years of age on election day.
a) President (Sec. 2, Art. VII, Constitution); Vice President (Sec. 3, Art. VII,
Constitution)
Natural-born citizen
40 years old on day of election
resident of the Philippines for at least 10 yrs. immediately preceding election
day
registered voter
able to read and write
Practice of law means any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. Generally, to practice law is to give
LAW ON PUBLIC OFFICERS 42
Justin Isidoro
notice or render any kind of service which requires the use in any degree of legal knowledge
or skill (Cayetano vs. Monsod).
is in the classified service a public function which may be performed by Filipino citizens
only. An applicant for admission to examination for entrance into the civil service must be a
citizen of the Philippines (Section 675 of the Revised Administrative Code). And after he had
qualified himself to be eligible for appointment to a civil service position and had been
appointed to such position, he must continue to be such citizen. A voluntary change of
citizenship or a change thereof by operation of law disqualifies him to continue holding the
civil service position to which he had qualified and had been appointed.
citizenship and reacquire Philippine citizenship, the petitioner should have done so in
accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and
PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. While Frivaldo does not invoke either of the first two
methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid
repatriation. He claims that by actively participating in the elections in this country, he
automatically forfeited American citizenship under the laws of the United States. Such laws
do not concern us here. The alleged forfeiture is between him and the United States as his
adopted country. It should be obvious that even if he did lose his naturalized American
citizenship, such forfeiture did not and could not have the effect of automatically restoring
his citizenship in the Philippines that he had earlier renounced. At best, what might have
happened as a result of the loss of his naturalized citizenship was that he became a
stateless individual. The argument that the petition filed with the Commission on
Elections should be dismissed for tardiness is not well-taken. The herein private
respondents are seeking to prevent Frivaldo from continuing to discharge his
office of governor because he is disqualified from doing so as a foreigner.
Qualifications for public office are continuing requirements and must be
possessed not only at the time of appointment or election or assumption of office
but during the officer's entire tenure. Once any of the required qualifications is
lost, his title may be seasonably challenged. If, say, a female legislator were to
marry a foreigner during her term and by her act or omission acquires his
nationality, would she have a right to remain in office simply because the
challenge to her title may no longer be made within ten days from her
proclamation? It has been established, and not even denied, that the evidence of
Frivaldo's naturalization was discovered only eight months after his proclamation
and his title was challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in this
country while owing exclusive allegiance to another country. The fact that he was elected by
the people of Sorsogon does not excuse this patent violation of the salutary rule limiting
public office and employment only to the citizens of this country. The qualifications
prescribed for elective office cannot be erased by the electorate alone. The will of the
people as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to
serve in the Republic of the Philippines, he must owe his total loyalty to this country only,
abjuring and renouncing all fealty and fidelity to any other state.
February 23, Gasgonia still was the rightful occupant of the position and was, therefore,
authorized to extend a valid promotional appointment.
Disqualifications from running for Elective Local Position (Section, 40, RA 7160):
[ORO-DFPI]
1) sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
2) Those removed from office as a result of an administrative case;
3) Those convicted by final judgment for violating the oath of allegiance to the Republic;
4) Those with dual citizenship;
5) Fugitives from justice in criminal or non-political cases here or abroad;
LAW ON PUBLIC OFFICERS 46
Justin Isidoro
6) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this
Code; and
7) The insane or feeble-minded.
A. Prohibited Transaction (Art. 215) Penalty shall be imposed upon any appointive
public officer who, during his incumbency, shall directly or indirectly become
interested in any transaction of exchange or speculation within the territory subject
to his jurisdiction.
B. Prohibited Interest (Art. 216) Penalty shall be imposed upon a public officer who
directly or indirectly, shall become interested in any contract or business in which it is
his official duty to intervene.
II. Effects of Penalties:
A. Effects of the penalties of perpetual or temporary absolute disqualification
(Art. 30) The penalties of perpetual or temporary absolute disqualification for
public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may
have held even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to
be elected to such office.
3. The disqualification for the offices or public employments and for the exercise
of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly
held.
B. Effect of the penalties of perpetual or temporary special disqualification
(Art. 31) The penalties of perpetual or temporal special disqualification for public
office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected;
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence according to the extent of such
disqualification.
C. Effect of the penalties of perpetual or temporary special disqualification for
the exercise of the right of suffrage (Art. 32) The perpetual or temporary
special disqualification for the exercise of the right of suffrage shall deprive the
offender perpetually or during the term of the sentence, according to the nature of
said penalty, of the right to vote in any popular election for any public office or to be
elected to such office.
Moreover, the offender shall not be permitted to hold any public office during the
period of his disqualification.
D. Effects of the penalties of suspension from any public office, profession or
calling, or the right of suffrage (Art. 33) The suspension from public office,
profession or calling, and the exercise of the right of suffrage shall disqualify the
offender from holding such office or exercising such profession or calling or right of
suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another having
similar functions during the period of his suspension.
Corrupt practices of public officers [Section 3, RA 3019 (Anti-Graft and Corrupt Practices
Act)]
In addition to acts or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are hereby declared to
be unlawful:
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Justin Isidoro
The person giving the gift, present, share, percentage or benefit referred to in
subparagraphs (b) and (c); or offering or giving to the public officer the employment
mentioned in subparagraph (d); or urging the divulging or untimely release of the
confidential information referred to in subparagraph (k) of this section shall, together
with the offending public officer, be punished under Section nine of this Act and shall
be permanently or temporarily disqualified in the discretion of the Court, from
transacting business in any form with the Government.
Effects of Violation
A. Impeachment (Sec. 2, Art. XI, Constitution)
* Who are subject to impeachment:
The President
the Vice-President
the Members of the Supreme Court
the Members of the Constitutional
Commissions
Ombudsman
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No. The intent of the framers of the Constitution was to impose a stricter prohibition on
the President and his official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Although Section 7, Article I-XB already contains a blanket prohibition against the holding
of multiple offices or employment in the government subsuming both elective and
appointive public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the Constitution itself. While
all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section
7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies
and assistants.
The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par.
(2), Article VII; or acting as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and
Bar Council by virtue of Section 8 (1), Article VIII.
* Whether the prohibition apply to positions held in ex officio capacity.
The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional compensation in an ex-officio
capacity as provided by law and as required by the primary functions of said officials' office.
The reason is that these posts do no comprise "any other office" within the contemplation of
the constitutional prohibition but are properly an imposition of additional duties and
functions on said officials. The term ex-officio means "from office; by virtue of office." Ex-
officio likewise denotes an "act done in an official character, or as a consequence of office,
and without any other appointment or authority than that conferred by the office." The
additional duties must not only be closely related to, but must be required by the official's
primary functions. If the functions required to be performed are merely incidental, remotely
related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet
official, such additional functions would fall under the purview of "any other office"
prohibited by the Constitution.
* Whether the respondents are obliged to reimburse the perquisites they have
received from the offices they have held pursuant to EO 284.
During their tenure in the questioned positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual services rendered. It has been held
that "in cases where there is no de jure officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled
to the emoluments of the office, and may in an appropriate action recover the salary, fees
and other compensations attached to the office. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the
questioned positions may therefore be retained by them.
Overall, Executive Order No. 284 is unconstitutional as it actually allows a member of the
cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department to hold multiple offices or employment in direct contravention of the express
LAW ON PUBLIC OFFICERS 53
Justin Isidoro
mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so,
unless otherwise provided in the 1987.
Respondent's contention that Sec. 7, Art. IX-B is an exception would defeat the obvious
legislative intent which is to prohibit cabinet members from holding multiple offices.
Since the ex officio member is prohibited from receiving additional compensation for a
position held in an ex officio capacity, so is his representative likewise restricted.
Issue [2]: Whether Section 1, Rule II of Administrative Order 2, providing that "The ex
officio members may designate their representatives to the Commission. Said
Representatives shall be entitled to per diems, allowances, bonuses and other benefits as
may be authorized by law." can be the basis of the representatives' claim for per diem.
Held [2]: NO. First, the administrative order itself acknowledges that payment of
allowances to the representatives must be authorized by the law, that is, the Constitution,
statutes and judicial decisions. However, the payment of such allowances is not allowed,
prohibited even. Second, the administrative order merely allows the ex officio members to
designate their representatives to NAC meetings but not to decide for them while attending
such meetings. Thus, although the administrative order does not preclude the
representatives from attending the NAC meetings, they may do so only as guests or
witnesses to the proceedings. They cannot substitute for the ex officio members for
purposes of determining quorum, participating in deliberations and making decisions. Lastly,
the Court disagrees with NAC's position that the representatives are de facto officers and as
such are entitled to allowances, pursuant to the pronouncement in Civil Liberties Union. The
representatives cannot be considered de facto officers because they were not appointed but
were merely designated to act as such. Furthermore, they are not entitled to something
their own principals are prohibited from receiving. Neither can they claim good faith, given
the express prohibition of the Constitution and the finality of our decision in Civil Liberties
Union prior to their receipt of such allowances.
Issue: Whether the respondent can lawfully run and be elected in an elective position as
stated herein.
Held: Yes. As section 431 of the Election Law, as amended by Commonwealth Act No. 233,
disqualified from voting only members in the active service of the Philippines Army and no
claim is made that this discrimination is violation of the Constitution, it follows that the
respondent, being in the reserve force, is not disqualified from voting. The respondent being
a qualified elector and the possession by him of the other qualifications prescribed for an
elective provincial office not being challenged, he is not ineligible to the office of provincial
governor to which he has been elected.
of a cockpit license during the material time, as alleged in the information, because he was
not a member of the Sangguniang Bayan.
Thus, petitioner, as then Mayor of Valencia, did not use his influence, authority
or power to gain such pecuniary or financial interest in the cockpit. Neither did he
intentionally hide his interest in the subject cockpit by transferring the
management thereof to his wife considering that the said transfer occurred
before the effectivity of the present LGC prohibiting possession of such interest.
Second, while possession of business and pecuniary interest in a cockpit licensed by the
local government unit is expressly prohibited by the present LGC, however, its illegality
does not mean that violation thereof necessarily involves moral turpitude or
makes such possession of interest inherently immoral. Under the old LGC, mere
possession by a public officer of pecuniary interest in a cockpit was not among the
prohibitions.
Lastly, it may be argued that having an interest in a cockpit is detrimental to public
morality as it tends to bring forth idlers and gamblers, hence, violation of Section 89(2) of
the LGC involves moral turpitude.
While it is a form of gambling, the morality thereof or the wisdom in legalizing it is not a
justiciable issue. In Magtajas v. Pryce Properties Corporation, Inc., it was held that:
Gambling is not illegal per se. While it is generally considered inimical to the
interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It
is left to Congress to deal with the activity as it sees fit.
Right to Office: The right to office is the right to exercise the powers of the office to the
exclusion of others.
Waiver of Rights: No public officer or employee acting for a public officer shall be
permitted to require an applicant for employment or any employee to sign any paper or
document whereby such applicant for employment waives any right or rights accruing to
him [Section 40, RA 2260 (Civil Service Act of 1959)].
Right to Present Grievances: Employees shall have the right to present their complaints
or grievances to management and have them adjudicated as expeditiously as possible in
the best interest of the agency, the government as a whole, and the employee concerned.
Such complaint or grievances shall be resolved at the lowest possible level in the
department or agency, as the case may, and the employee shall have the right to appeal
such decision to higher authorities [Sec. 35, PD 807 (Civil Service Decree)].
Self-Organization:
- The right of government employees to organize does not include the right to strike [SSSEA
vs. CA (GR 85279)].
- E.O. 292, Sec. 38: All government employees, including those in government-owned or
controlled corporations with original charters, can form, join or assist employees
organizations of their own choosing for the furtherance and protection of their interests.
They can also form, in conjunction with appropriate government authorities, labor-
management committees, work councils and other forms of workers participation schemes
to achieve the same objectives.
Security of Tenure:
- The constitutional provision on security of tenure does not distinguish between a regular
employee and a probationary employee. The only difference between the two employees is
that the probationary employees termination is based on the wider ground of failure to
comply with standards made known to them when they become probationary employees
[CSC vs. Magnaye, Jr. (GR 183337)].
- The right to security of tenure is not available to those employees whose appointments are
contractual and co-terminous in nature [CSC vs. Magnaye, Jr. (GR 183337)].
- While due process may be relied upon by public officials to protect their security of tenure
which, in a limited sense, is analogous to property, such fundamental right to security of
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Salary:
GENERAL RULES:
A public officer is not entitled to compensation for services rendered under an
unconstitutional statute or provision thereof.
Exception: If some other statute provides otherwise.
If no compensation is fixed by law, the public officer is assumed to have accepted
the office to serve gratuitously.
After services have been rendered by a public officer, the compensation thus
earned cannot be taken away by a subsequent law. However, he cannot recover
salary for a period during which he performed no services.
One without legal title to office either by lawful appointment or election and
qualification is not entitled to recover salary or compensation attached to the
office.
One who intrudes into or usurps a public office has no right to the salary or
emoluments attached to the office.
The Director of the Bureau of Commerce and Industry vs. Concepcion (GR L-
9031)
The salary due from the government to a public officer cannot, by garnishment, be
seized before being paid to him and appropriated to the payment of his judgment debts.
Money in the hands of public officers, although it may be due government employees, is
not liable to the creditors of these employees in the process of garnishment.
paid out of the funds appropriated for the office or agency concerned [EO 292 Book III,
Chapter 5, Section 2 (2)]
Kinds of Duties
Discretionary Ministerial
Liabilities
1. Executive Department
2. Legislative Department
3. Judicial Department
Three-fold responsibility
1. RPC
2. Civil Code
3. Administrative Code
Personal Liability
Preventive Suspension
a. CSC
b. Ombudsman
c. LGC
d. RA 3019
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There are two kinds of preventive suspension of civil service employees who are charged
with offenses punishable by removal or suspension: (1) preventive suspension pending
investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority is suspension or dismissal and,
after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No.
292).
Although it is held that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are exonerated,
they are entitled to compensation for the period of their suspension pending appeal if
eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a means of
enabling the disciplining authority to conduct an unhampered investigation. On the other
hand, preventive suspension pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated and the administrative decision
finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of
the suspension.
Hold-over principle:
- Concept: The concept of holdover when applied to a public officer implies that the
office has a fixed term and the incumbent is holding onto the succeeding term. It is
usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected
and qualified. Where this provision is found, the office does not become vacant upon
the expiration of the term if there is no successor elected and qualified to assume it,
but the present incumbent will carry over until his successor is elected and qualified,
even though it be beyond the term fixed by law.
- Presumption: Absent an express or implied constitutional or statutory provision to
the contrary, an officer is entitled to stay in office until his successor is appointed or
chosen and has qualified. The legislative intent of not allowing holdover must be
clearly expressed or at least implied in the legislative enactment, otherwise it is
reasonable to assume that the law-making body favors the same.
- Purpose: This rule is demanded by the most obvious requirements of public policy,
for without it there must frequently be cases where, from a failure to elect or a refusal
or neglect to qualify, the office would be vacant and the public service entirely
suspended. Otherwise stated, the purpose is to prevent a hiatus in the government
pending the time when the successor may be chosen and inducted into office.
[Galarosa v. Valencia, 227 SCRA 728 (Nov. 11, 1993)]
b) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors
and city vice-mayors of component cities;
c) The sanggunian concerned, in the case of sanggunian members; and
d) The city or municipal mayor, in the case of barangay officials.
(b) Copies of the resignation letters of elective local officials, together with the action taken
by the aforesaid authorities, shall be furnished the Department of Interior and Local
Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority concerned
within fifteen (15) working days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon
presentation before an open session of the sanggunian concerned and duly entered in its
records: Provided, however, That this subsection does not apply to sanggunian members
who are subject to recall elections or to cases where existing laws prescribe the manner of
acting upon such resignations.
B. End of pleasure where one holds office at the pleasure of the appointing authority
Alba v. Evangelista
President can validly terminate tenure of Vice Mayor of Roxas City as the office
was created at the pleasure of the President. What is involved here is not the
question of removal, or whether legal cause should precede or not that of removal.
What is involved here is the creation of an office and the tenure of such office, which
has been made expressly dependent upon the pleasure of the President.
Fernandez v Ledesma
The Charter of Basilan City provides that the President shall appoint and may
remove at his discretion any of the citys officers, including its Chief of Police, with the
exception of the municipal judge, who may be removed only according to law. The
legislative intent is to make continuance in office dependent upon the pleasure of the
President. Congress has the power to vest such power of appointment. Further, A
public office is the right for a given period, either fixed by law or enduring at the
pleasure of the creating power. Alba v. Evangelista states that the replacement is
not removal, but an expiration of tenure, which is an ordinary mode of terminating
official relations. What is involved is not removal, or whether legal cause should
precede such removal, but the creation of an office and the tenure of such office,
which has been made expressly dependent upon the pleasure of the President.
Hernandez v. Villegas
Even officers and employees of the civil service occupying primarily confidential
positions are subject to the constitutional safeguard against removal or suspension
except for cause.
Official and employees holding primarily confidential positions continue only for so
long as confidence in them endures. The termination of their official relation can be
justified on the ground of loss of confidence because in that case, their cessation
from office involves no removal but merely the expiration of the term of office.
Ingles v. Mutuc
The statement that an officer holding a position which is primarily confidential in
nature is subject to removal at the pleasure of the appointing power is inaccurate.
Such statement (a mere obiter in the case of De los Santos v. Mallare), if detached
from the context of the decision in said case, would be inconsistent with the
constitutional command to the effect that no officer or employee in the Civil Service
shall be removed or suspended except for cause as provided by law, and it is
conceded that one holding in the government a primarily confidential positions is in
the Civil Service.
This should not be misunderstood as denying that the incumbent of a primarily
confidential position holds office at the pleasure only of the appointing power. It
should be noted however, that when such pleasure turns into displeasure, the
incumbent is not removed or dismissed from office - his term merely expires
in much the same way as an officer, whose right thereto ceases upon expiration of
the fixed term for which he had been appointed or elected is not and cannot be
deemed removed or dismissed therefrom, upon the expiration of said term. The
main difference between the former - the primarily confidential officer - and the latter
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is that the latters term is fixed or definite, whereas that of the former is not pre-fixed
but indefinite, at the time of his appointment or election, and becomes fixed and
determined when the appointing power expresses its decision to put an end to the
services of the incumbent. When this event takes place, the latter is not removed
or dismissed from officer - his term has merely expired.
Gray v. De Vera
President appointed Gray as Board secretary of the Peoples Homesite and
Housing Corporation but was later terminated through a board resolution due to loss
of confidence. SC reversed ruling that Grays appointment was a permanent one.
Although the President, EO 99, declared the position of secretary to the board of a
government corporation primarily confidential in nature, it does not follow that a
board secretary whose appointment was permanent may be removed from office
without a formal charge specifying the ground for removal and without giving him an
opportunity to be head. Such removal was illegal since there was no lawful cause for
removal.
By declaring that the position is primarily confidential in nature, the President
intended that the position be filled by an appointee of unquestioned honesty and
integrity. The act of Gray in reporting the boards act of mismanagement and
misconduct was in consonance with the honesty and integrity required for the
position.
Cario v. ACCFA
SC reversed termination of lawyers who were appointed as permanent employees
of ACCFA. That petitioners positions are primarily confidential is immaterial. The
Constitution merely excepts primarily confidential positions from the coverage of the
rule requiring appointments in the civil service to be made on the basis of merit and
fitness as determined from the competitive exams, but does not exempt such
positions from the operation of the principle that no officer or employee in the civil
service shall be removed or suspended except for cause as provided by law, which
recognizes no exception.
Compulsory Retirement
Unless the service is extended by appropriate authorities, retirement shall be
compulsory for an employee at least sixty-five (65) years of age with at least fifteen
(15) years of service; Provided that if he has less than fifteen (15) years of service, he
may be allowed to continue in the service in accordance with existing civil service
rules and regulations.
Retirement benefits
(1) the lump sum payment defined in RA No. 8291 payable at the time of
retirement plus an
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Justin Isidoro
old-age pension benefit equal to the basis monthly pension payable monthly for life,
starting upon expiration of the give-year (5) guaranteed period covered by the
lump sum; or
(2) cash payment equivalent to eighteen (18) months of his basic monthly
pension plus monthly pension for life payable immediately with no five-year (5)
guarantee.
Beronilla v GSIS
The compulsory retirement of government officials and employees upon
reaching the age of 65 years is founded on public policy which aims by it to
maintain efficiency in the government service and, at the same time, give to
the retiring public servants the opportunity to enjoy during the remainder of
their lives the recompenses for their long service and devotion to the
government, in the form of a comparatively easier life, freed from the rigors,
discipline and the exacting demands that the nature of their work and their
relations with their superiors as well as the public would impose on them.
Rabor v. CSC
At the age of 55, Rabor was hired as a government employee at the Davao
City Mayors Office in 1978. In 1991, he was advised to apply for retirement.
He was already 68 years old with 13 years of service. He requested that his
services be extended in order that he may complete the 15-year service
requirement. This was denied and Rabor claimed that the doctrine enunciated
in Cena v. CSC should be applied in his case.
SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No.
27, s. of 1990 cited in the decision in Cena v. CSC, provides that any request
for the extension of service of compulsory retirees to complete the 15-year
service requirement for retirement shall be allowed only to permanent
appointees in the career service who are regular GSIS members, and shall be
granted for a period not exceeding one (1) year. Cena further stated that the
authority to grant the extension was a discretionary one vested in the head of
the agency concerned. To reiterate, the head of the government agency
concerned is vested with discretionary authority to allow or disallow extension
of service of an employee who has reached 65 years old without completing
15 years of government service; this discretion to be exercised conformably
with CSC Memo Circular No. 27, s. of 1990.
Resignation
Recall
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* The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system
of decentralization with effective mechanisms of recall, initiative and referendum
(Sec. 3, Art. X, 1987 Constitution).
* Procedure for recall is provided in Sections 69-75 of the Local Government Code.
Garcia v. COMELEC
SC upheld initiation of recall through the Preparatory Recall Assembly. Recall is a
mode of removal of a public officer by the people before the end of his term of office.
The peoples prerogative to remove a public officer is an incident to their sovereign
power, and in the absence of constitutional restraint, the power is implied in all
government operations. There are two reasons why a Preparatory Recall Assembly is
allowed: (1) to diminish the difficulty of initiating recall through direct action of the
people; (2) to cut down on expenses. Moreover, the Constitution does not provide for
any particularly mode of initiating recall elections. Initiation by the Preparatory Recall
Assembly may be considered as initiation of recall by the people, although done
indirectly through representatives. In any event, the composition of the Preparatory
Recall Assembly is politically neutral, so loss of confidence cannot be said to be
inspired by difference in political party affiliation.
Removal
Abandonment
* A public office may become vacant ipso facto by abandonment and non-user. When
an office is once abandoned, the former incumbent cannot legally repossess it even
by forcible re-occupancy.
* Abandonment must be total and absolute, and must be under such circumstances
as clearly to indicate an absolute relinquishment thereof. Moreover, the officer should
manifest a clear intention to abandon the office and its duties. Abandonment by
reason of acceptance of another office, in order to be effective and binding, must
spring from and be accompanied by deliberation and freedom of choice, either to
keep the old office or renounce it for another. Temporary absence is not sufficient.
Summers v. Ozaeta
Summers, a cadastral judge, assumed office as CFI judge due to an ad interim
appointment. However, the ad interim appointment was disapproved and
Summers now seeks to be reappointed as cadastral judge. SC held that Summers
voluntary acceptance of the position of CFI judge amounted to a waiver of his
right to hold the position of cadastral judge during the term fixed and guaranteed
by the Constitution. He accepted and qualified for the position of judge-at-large by
taking the oath of office of judge-at-large, and not merely of an acting judge-at-
large. The situation is one wherein he cannot legally hold two offices of similar
category at the same time.
Floresca v. Quetulio
Florescas refusal to assume his pre-war post as Justice of the Peace and his
subsequent acceptance of other employments without any pretense on his part
that he simultaneously continued to perform the functions of the Justice of the
Peace, clearly show deliberate abandonment of the latter office.
Ortiz v. De Guzman
Ortiz allowed three years to elapse since he was ousted from office without
having taken any steps to reclaim his former office. SC held that he cannot ask for
reinstatement. A public employee who voluntarily abandons his office for a long
time is estopped from asking for reinstatement. In order to constitute an
abandonment of office, it must be total, and under such circumstances as to
clearly indicate an absolute relinquishment. Temporary absence is not sufficient
where no statute fixes the period beyond which the absence must continue. In all
cases, the officer should manifest a clear intention to abandon the office and its
duties. Yet, this intention may be inferred from his conduct. If his acts and
statements are such as to clearly indicate absolute relinquishment, a vacancy will
be thereby created and no judicial determination is necessary. When once
abandoned, the former incumbent cannot legally repossess the office.
Villegas v. Subido
Villegas did not abandon his office as mayor of the City of Manila when he
assumed the position of Director of NAWASA because he had been merely
designated in an acting capacity and was not appointed to the said position.
Tan v. Gimenez
The fact that, during the time his appeal was pending and was thus deprived
of his office and salary, an employee sought employment in another branch of the
government does not constitute abandonment of his former position.
* He who, while occupying one office, accepts another office incompatible with the
first, ipso facto absolutely vacates the first office. That the second office is inferior to
the first does not affect the rule. And even though the title to the second office fails
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as where election is void, the rule is still the same, nor can the officer then regain the
possession of his former office to which another has been appointed or elected.
Abolition of office
* As a general rule, absent some Constitutional prohibition, Congress may abolish any
office it creates without infringing upon the rights of the officer or employee affected.
* To consider an office abolished, there must have been an intention to do away with
it wholly and permanently.
Busacay v. Buenaventura
Busacay was laid off as toll collector when the bridge was destroyed.
However, the bridge was later reconstructed and opened to the public with a new
collector being appointed. Busacay was ordered reinstated by the SC. To consider
an office abolished, there must have been an intention to do away with it wholly
and permanently. In the case at bar, there was never any thought of not
rebuilding the bridge. The collapse of the bridge did not work to destroy but only
to suspend the position of toll collector thereon, and upon its reconstruction and
re-opening, the collectors right to the position was similarly and automatically
restored.
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Manalang v. Quitoriano
The National Employment Service was established by R.A. No. 761 in lieu of
the Placement Bureau. Quitoriano was appointed as NES Commissioner in spite of
the recommendation of the Labor secretary to appoint Manalang who was the
incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano
was valid. A removal implies that the office still exists. R.A. No. 761, creating NES,
expressly abolished the Placement Bureau and, by implication, the office of the
Director of the Placement Bureau. Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have directed the retention, not
the transfer, of qualified personnel to the NES. Manalang has never been NES
Commissioner and thus could not have been removed therefrom.
letter and spirit of the two Constitutions and the statutes governing
reorganization, the said reorganizations (in these consolidated petitions) were set
aside. The letter-order was also set aside, and the Secretary of DECS was ordered
to restore petitioner Mendoza to his position as Schools Division Superintendent of
Surigao City without loss; of seniority rights and with back salaries reckoned from
the date of his termination.
Briones v. Osmea
Briones and Rosagaran were employees in the Office of the City Mayor since
1937 and 1940, respectively, In 1956, the City created 35 new positions and
abolished 32, of which the positions of Briones and Rosagaran were included.
Consequently, the two were terminated. SC held that the termination was not
valid. While abolition does not imply removal of the incumbent, this rule is true
only where the abolition is made in good faith. In other words, the right to abolish
cannot be used to discharge employees in violation of the Civil Service law nor
can it be exercised for personal or political reasons.
Facundo v. Pabalan
There is no law which expressly authorizes a municipal council to abolish the
positions it has created. However, the rule is well-settled that the power to create
an office includes the power to abolish it, unless there are constitutional or
statutory rules providing otherwise. But the office must be abolished in good faith.
Cruz v. Primicias
As well settled as the rule that the abolition of an office does not amount to
an illegal removal of its incumbent is the principle that, in order to be valid, the
abolition must be made in good faith. Where the abolition is made in bad faith, for
political or personal reasons, or in order to circumvent the constitutional security
of tenure of civil service employees, it is null and void. In the case at bar, while 22
positions were abolished, 28 new positions with higher salaries were
simultaneously created. No charge of inefficiency is lodged against petitioners. In
truth and in fact, what respondents sought to achieve was to supplant civil service
eligibles with men of their choice, whose tenure would be totally dependent upon
their pleasure and discretion.
Impeachment
* All other public officers and employees may be removed from office as provided by
law, but not by impeachment
* Sec. 66 of the Omnibus Election Code states that any person holding appointive
public offices or positions, including active AFP members, is considered ipso facto
resigned from office by the mere filing of certificate of candidacy.
* Only the moment and act of filing are considered. Once the certificate is filed, the
seat is forever forfeited and nothing, save a new election or appointment, can restore
the ousted official.
* Note: The following provisions have been repealed by Sec. 14 of R.A. 9006 (Fair
Election Act of 2001):
i. Sec. 67 of B.P. 881 which states that any elective official, whether
national or local, running for any office OTHER than one which he is
holding in a permanent capacity, except for President and Vice
President, shall be considered ipso facto resigned from office by the
mere filing of a certificate of candidacy.
ii. The first proviso of Sec. 11 of R.A. 8436 which states that "Any elective
official, running for any officer other than one which he is holding in a
permanent capacity, except for President and Vice-President, shall be
considered ipso facto resigned upon the start of the campaign period."
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