Csc.reviewer

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CHAPTER I: DEFINITION, DEFINITION, DISTINCTIONS DISTINCTIONS AND CLASSIFICATIONS OF PUBLIC OFFICERS Public Public Office Office- the right, right, authorit authority y and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the the plea pleasu surre of the appo appoin inti ting ng powe power, r, an individual in invested with some portion of the sovereig sovereign n functio function n of the governm government ent , to be exercised exercised by him for the benefit of the public. RADLAPSOBEP

employees must at all times be accountable to the people, serve them with utmost responsibility responsibility,, integrity, integrity, loyalty and efficiency, efficiency, act act with with patr patrio ioti tism sm and and just justic ice, e, and and lead lead modest lives.” (Sir said to memorize this)

Kinds of accountability: 1. 2. 3. 4.

compliance finances managerial results

Kinds of sanctions for wrong-doing: 1.

Notes: Q: Why “some portion” only? A: Becaus Because e of the princ principl iple e of separa separatio tion n of powers. Cannot vest all 3 powers in just one office. Q: What are are sovereign sovereign functions? functions? A: They are legislative, executive or judicial. Q: Are public school teachers teacher s public officers? A: Yes. They exercise exercise an executive executive function by implementing laws on education.

administrativewrong-do -doer is removed from office 2. civil civil-- wrong wrong-do -doer er pays pays damag damages es 3. crimi criminal nal-- wrong wrong-do -doer er goes goes to jail jail

Public office is not a property right:

1. The holder of the office is subject to remov removal al or suspen suspensio sion n accor accordin ding g to law: •

Purpose and nature of public office:

He is not denied due process if his offic office e is aboli abolishe shed d befor before e his his ter term expi expirres or if he is removed or suspended according to law

1. It is is for for effec effectin ting g the the commo common n good good •

2. It is a publ public ic trust trust (inco (incons nsis iste tent nt with ith either a property or contract right) 3. It is a respo responsi nsibil bility ity and and not not a right right •

What does “public trust” mean? 1. The The holde holderr of the offic office e is regar regarde ded d as a public servant 2.

The powers of his office are to be exercised in behalf of the government and all citizens

3. The The publi public c offic officer er is subj subjec ecte ted d to the highest standards of accountability and service 4. He shall shall at all time times s upho uphold ld pub public lic interest

Art. XI Section 1 of Constitution: “Public office office is a publi public c trust. trust. Publi Public c office officers rs and and

He is not denied due process by the the passag ssage e of sta statute tute limiting or reducing his compensation He has no property right in the books and papers pertaining to his office

2. Holder is without vested right in any public office •

Exc Excepti eptio on: Cons Consti titu tuti tion ona al offices that provide for special immunity regarding salary and tenure

Due process clause- cannot be invoked except as to: 1. secu securi rity ty of tenu tenurre 2. salary salary,, when when provi provided ded by law 3. Holder Holder right right is is pers persona onall to him

Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER (wala na kaming maisip na title.bahala ka na sa blank na yan)

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and permanent

It is not property that passes to his heirs upon his death Public Office: 1.

SEGOVIA VS NOEL Jus Justi tice ce of the the Peace eace assa assail ils s a law law limiting his tenure of office (“shall serve until 65 year ears old” ld” inste nstead ad of “duri uring good behavi behavior”) or”).. The law was was given given retr retroac oactiv tive e effect so when he turned 65, he was ousted via quo warranto proceedings. Though there is no vested right in an offi office ce,, if the righ rightt is to be tak taken away away by statute, the terms should be clear as to the purpose of abolition of the office.

2.

3.

1. It crea create tes s no cont contra ract ctua uall obli obliga gati tion on between the holder of the office and the public 2. The off office ice exi exists sts by by virtue virtue of of some some law, law, it is not a natural right

Every public office is an employment Char haracter cteriz ized ed by delegati delegation on of sove sovere reig ign n powers to the holder Created by law

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Object

Subject Matter/Scop e

Duties are continuing

Limited duration/Obje

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3.

Not every public employment is an office No delegation or exerci exercise se of sovereign powers Created by contract of employment

The Constitution By law A body or agency to which the power to create the office has been delegated

3. Its powe powers rs and and functi functions ons are are defi defined ned by by the Constitution, or by law, or through legislative authority 4.

Public Contract

Incident of sovereignty Originates from will of contracting parties Governmental functions/affe Imposes cts even obligations perso ersons ns not not only upon bound by contracting contract parties

1.

2. It must must be inve invest sted ed with with autho authori rity ty to exercise some portion of the sovereign power of the state to be exercised for public interest

The The duti uties perta ertaiining ning ther theret eto o are are perf perfor orme med d inde indepe pend nden entl tly, y, with withou outt control of a superior power other than law •

Creation

Public Employment:

1. It is crea create ted d by by-

3. alth althou oug gh the the hol holder of the the office fice is entitled to compensation, the salary is a mere incident and forms no part of the office Public Office

are

Essential elements of a public office:

Under Under the Const Constitu itutio tion, n, membe members rs of the judiciary judiciary enjoy security of tenure tenure during during good behavior behavior.. Congres Congress s is prohib prohibited ited from from passing a law re-organizing the judiciary when it undermines their security of tenure.

Public office is not a contract:

cts specific

Exception: an inferior or subo suborrdina dinate te offi office cerr who who is placed by legislature under the genera generall contr control ol of a superi superior or officer or body

5. It is continuing and permanent and not occasional or intermittent

Creation of public office: 1. Gene Genera rall lly, y, by some some Const Constit ituti ution onal al or stat statuto utory ry prov provis isio ion n or by auth author orit ity y conferred conferred by statute 2.

By Co Congress


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Crea Creati tion on of publ public ic offi office ces s is primarily a legislative function

acts are those of the govt.

When When an office office is creat created ed by Congress, that office is wholly within the power of Congress

3. By the the Pres Presid iden ent, t, with with respe espect ct to bure bureau aus, s, agen agenci cies es or offi office ces s in the the exec execut utiv ive e depa depart rtme ment nt (Sou (Sourrce of power: power: Admin. Code, which grants grants to “continuing authority to the President “continuing reorganize the administrative administrative structure of the Office of the President” ) Public offices, how abolished or modified: 1. Wher Where e offi office ce is creat created ed by Congr Congres ess, s, that that body body may may abol abolis ish h , contr control ol or modi modify fy it, it, unle unless ss proh prohib ibit ited ed by the the Constitution

executive, legisl legislati ative ve judicial functions

or

PRECLARO VS CB Not all contractual employees of the govt. are public officers. To be such, the following must concur: 1. he must must be hire hired d becau because se of his his skill skills s which is not possessed by anyone in the contracting agency; 2. 3.

the hiring agency must exercise minimal control over him; the the cont contra ract ct mus must not not last ast for for more ore than one (1) year

Classification Classification of public offices

2. Where

office is created by the Cons Consti titu tuti tion on,, it may may be modi modifi fied ed or abol abolis ishe hed d by the the peop people le thro throug ugh h a Constituti Constitutional onal provis provision. ion. It is beyond beyond the the powe powerr of Cong Congrress ess to alte alterr or abolish.

1.

As to na nature a) Civi Civill offi office cers rs-- cove covers rs executive, executive, legislative and judicial

b) Military

officersincludes all offices in the armed forces that solely involve military functions

How are sovereign powers exercised?

1. By enacting laws (legislative); or 2. Executing laws (executive); or 3. Adjudicating Adjudicating controversies controversies (judicial)

2.

a) Constitutional

Tenure and duration:

office officersrs- creat created ed by the Constitution

1. Need Need not not be for for a fix fixed ed peri period od;; may be at the pleasure of the appointing power

b) Stat Statut utor ory y

offi office cers rs-Cong ongress ess has has full ull control as its creator

2. Conti ontinu nuan anc ce of office ice hold holde er is not not material; but continuance of the duties attached to the office is indispensable 3. Perm Perman anen ence ce of offi office ce is not not requ requir ired ed,, however, something more than a single transaction is required required Public official

Public officer

- an officer of - requ requir ired ed to the govt. take an oath, itself give a bond - auth author oriz ized ed his duly to exercise authorized either

As to creati eation on

Public Employee - position has less less dign dignit ity, y, importance and independence

3.

As to govt govt.. depar epartm tme ent to which hich it belongs a) Legi Legisl slat ativ ive e offi office cers rs b) Exec Execut utiv ive e off offic icer ers s c) Judi Judici cial al off offic icer ers s

4. As to branc branch h of of gov govt. t. serv served ed


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a) Nati Nation ona al

off officers cers-includes any office in the nation national/ al/cen centra trall govt.

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Locall b) Loca

offi office cers rs-- any any office in the political subdivisions like regi regions ons,, provi province nces, s, cities, municipalities, municipalities, barangays, etc.

5. As to to exer exercis cise e of discr discreti etion on a) Quas Quasii-ju judi dici cial al offi office cerrrequir requires es exerc exercise ise of judgment b) Ministerial officer cerexecu executes tes mandat mandates es lawfully issued by his superior officer

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b) Honorarycompensation

with with with no

CHAPTER II. ELIGIBILITY AND QUALIFICATIONS •

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Eligibility state or quality of being legally fitted/qualified fitted/qualified to be chosen a continuing nature must must exist exist both both at commen commencem cement ent and during occupancy of office Eligible legally fitted/qualified fitted/qualified to hold office Admin Code Obtained Obtained passing grade in CS  exam Granted CS eligibility  Name Name ente entere red d in regi regist ster er of  eligibles Ineligibility lack of qualifications prscribed by Const of applicable law for holding public office Ineligible Legally or otherwise disqualified to hold an office

Qualification endowment or accomplishment that makes one fit for office an act which is required prior to assuming office Nature of Right to Hold Public Office Not a natural right exists only by virtue of a law creating or conferring the right Not a constitutional right A political privilege w/c depends upon the favor of the people Power ower of Congr ongres ess s Qualifications

to

Pres rescrib cribe e

Congr Congress ess presc prescrib ribes es GEN GEN RULL RULLE: E: qualifications Restrictions: 1. subj subjec ectt to Con Const stit itut utio ion n 2. rati ration onal al basi basis: s: nexu nexus s bet. req req’t ’t and duties of the position

6. As to comp compen ensa sati tion on a) Lucr ucrative office office/co /coupl upled ed an interestsalary

Disqualified Disqualified to be elected to office Disqualified to hold an office, if elected or appointed to it

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if the the offi office ce was was crea create ted d by Cong Congrress, ess, Congress may prescribe qualifications if the Constitution prescribes qualifications, qualifications, Congr ngress ess may prescr escriibe add addition tional al qualifications qualifications unless prohibited if the office office is creat created ed by Consti Constituti tution, on, Congress has no power to require different qualifications

Ignacio v Banate If law is clear as to qualification, then an unqual unqualifi ified ed person person cannot cannot be appoin appointed ted even in an acting capacity. Power ower of Congr ongres ess s Disqualifications

to

Pres rescrib cribe e

GEN RULE: Congress can prescribe Except: 1. when hen Cons onsti says ays disq isqual ualifica ficati tio ons provided are exclusive 2. when when Consti Consti attached attached disqu disquali alific ficati ation, on, such cannot be removed. Vargas v Rilloraza No act act of the the legi legisl slat atur ure e repu repugn gnan antt to Constitution can become law. The method of appointment of an SC justice provided by the Constitution is mandatory. Thus, the


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provision provision in the Act that added grounds for for disqualification disqualification is unconstitutional.

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Con Constru truction tion of Rest estric riction tions s on Eligibility presumption of eligibility basis: right of voters to exercise their  choice  righ rightt to aspi aspire re and and to hold hold publ public ic office - right to public office is strictly construed against ineligibility ineligibility righ rightt to publ public ic offi office ce shou should ld be stri strict ctly ly construed against ineligibility ineligibility

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Time of Possession of Qualifications Qualifications if time specified by Consti/law – must be possessed at that time

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if time time not specified specified:: resort resort to statutory statutory construction

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2 Possibilities:

o o

1. For eligibility for office time of election or appointment time time of commen commencem cement ent of term term or induction into office

2. For holding of office time time of commen commencem cement ent of term term or o indu induct ctio ion n into into offi office ce duri during ng the the continuance of the incumbency -

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BUT always: elig eligib ibil ilit ity y to publ public ic offi office ce is of a o continuing nature will will of the the peop people le as expr expres esse sed d o thr throug ough the the ballo allott cann canno ot cur cure ineligibility

Remov Removal al of disqu disquali alific ficati ations ons durin during g term not yet settled some held that removal removal validate validates s title of the incumbent; others take contrary view

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Qual Qualif ific icat atio ions ns usua usuall lly y requ requir ired ed of public officers Citizenship Gen princ rinciiple: le: ali aliens ens are are not not o elig eligib ible le to publ public ic offi office ce unle unless ss staute extends privilege to them. age suffrage gen rule: only electors are eligible o if law is silent silent:: only only electo electors rs are are o eligible if not not spec specif ific ical ally ly excl exclud uded ed by o consti consti/la /law w: person persons s not electo electors rs may be appointed/elected appointed/elected residence synonymous w/domicile w/domicile o pers persona onall pres presen ence ce,, inte intent ntio ion n to o resid reside e and conduc conductt indica indicativ tive e of intention education literacy/ ability to read and write political affiliation civil service exam religio religious us beliefs beliefs or opinions opinions cannot cannot o be made a test of political right and privilege o relig religiou ious s test: test: demand demands s avowa avowall or repudiation repudiation of religious beliefs before the performance of any act SC has held in Pamil v Teleron that a priest cannot be elected as mayor. But if it were decided today, it would be overturned as Admin Admin Code of 87 does does not prohib prohibit it the election of ecclesiastics to municipal office anymore.

Power of Congress to impose property qualification Gen Rule: not allowed as it is offensive to equal protection, social justice, republicanism and democracy Qualification prescribed by Consti for certain officials All must be Natural-born citizens

Castañeda v Yap Elected mayor was less than the minimum age requir requirement ement of 23 when proclaimed proclaimed elected. Losing party is not estopped from questi questioni oning ng the eligi eligibil bility ity of winne winnerr as a candidate’s ineligibility is always subject to question.

Ag e Pres &VP

40 yr s up on el ec

Resi den cy 10 yrs

Others Regist ered voter Can read and write


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tio n da y 35 yr s up on el ec tio n da y 25 yr s up on el ec tio n da y

Senators

Represen tatives

Member s of Suprem e Court

A g e 4 0 y r s

s u p 2 yrs

1 yr

Regist ered voter Can read and write

Chair & Comm of Com on Human Rights Ombuds man & Deputie s

Regist ered voter Can read and write

3 5 y r s

Chair & Comm of Com on Audit

3 5 r s

Dept Secretari es

Others At least15yrs judge/lawyer Competence, integ ntegrrity ity probity ity, independence

CA Justices

Capa Capaci city ty for for publ public ic admin Not candidate in preceding preceding elections

u p

College degree holders Not candidate in preceding preceding elections Majority must be membe members rs of Phil Phil Bar w/ 10 yrs practice

3 5 y r

CPA or lawyers w/ 10 yrs practice Not candidate in preceding preceding elections

4 0 y r s

Membe Members rs of the Bar w/ 10 yrs practice Possess probity, independence Not candidate in preceding preceding elections

Quali Qualific ficati ation on prescr prescribe ibed d by Law for certain officials

u p Chair & Comm of COMELE C

Majority must be members of the Bar Qualifications provided by law

u p

u p Chair & Comm of Civil Service

At no time shall all 3 belong to same profession

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A ge 2 5y rs u p 4 0 yr s u p

RTC Judges

3 0y rs u p

MTC, MetTC, MCTC Judges

3 0y rs u p

Others Fil citizen

At least15yrs judge/lawyer Competence, integr integrity ity prob probity ity,, independence (same as SC justice) Must be lawyers w/ at least 10 yrs practice or Held Held public public offic office e w/ requires membership in Phil bar Must be lawyers w/ at least 5 yrs practice or Held Held public public offic office e w/ requires membership in Phil bar

Elective local officials Citizens (natural-born or o naturalized) Registe egistere red d voter voter in place place where where o intending to be elected Able to read/wr read/write ite Filipino ilipino or any o dialect



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Gove Goverrnor, nor, VG, VG, SP Members, Mayor, VM of highly urbanized Cities Mayo Mayors rs,, VM of Other Municipalities/ Cities SP/SB members Brgy officials SK

Age on election day 23yrs up

21yrs up

18yrs up At least 15 but not more than 21

Lapinid v CSC CSC has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain/review if the appointee possesses the required required qualifications. Department Head or appointing authority is vested with the sound discretion of determining who among several l candidates for a vacant position has the best qualifications. Formal qualifications: age, number of academic units in a certain course, seminars attended, etc., Informal qualifications: intangibles as resourcefulness, team spirit, courtesy. initiative, loyalty, ambition, prospects for the future, and best interests of the service -

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Disqualifications Disqualifications to Hold Public Office Sources: Consti and Statutes Gen Gen Rule: ule: if lacki acking ng qual ualifi ificati catio ons prescribed by Consti/Law, ineligible/disqualified Othe Otherr univ univer ersa sall lly y acce accept pted ed caus causes es for for disqualification: mental or physical incapacity reme remedy dy:: judi judici cial al decl declar arat atio ion n of o incapacity secured by other officers misconduct or crime (see Chapter VIII) impeachment remov removal al or suspen suspensio sion n from from office office (see (see Chapter VIII) previous tenure of office consecutive terms holding more than one office relationship with appointing power office newly created or the emoluments of which have been increased being an elective official

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having been a candidate for any elective position under the Local Government Code sentenced by final judgment for an o offense involving moral turpitude, or for for an offe offens nse e puni punish shab able le by one one year or more of imprisonment within 2 years after serving sentence o removed from office as a result of an administrative administrative case o conv convic icte ted d by fina finall judg judgme ment nt for for viola violatin ting g oath oath of alleg allegian iance ce to the Republic o dual citizenship fugitive from justice o o perm perman anen entt resi reside dent nts s in a fore foreig ign n country o insane or feeble-minded

CLU v Executive Secretary The prohibition against holding dual or multip multiple le offic offices es or employ employmen mentt under Sec 13, Art VII of Consti must not be construed as applying to posts occupi occupied ed by the Execu Executiv tive e offic official ial specifie specified d therein therein without without additiona additionall compen mpens sati ation in an ex-of x-offi fic cio capacity as provided by law and as required by the primary functions of the said official’s office. The reason is that that thes these e post posts s do not not comp compri rise se “any other office” w/in the contempla contemplation tion of the constituti constitutional onal proh prohib ibit itio ion n but but are are prop proper erly ly an impositi imposition on of additiona additionall duties duties and functions on said official. The term “primary” used to describe func functi tion ons s refer efers s to the the orde orderr of importance and thus refer to chief Impeac Impeachme hment: nt: a speci species es of disci discipli plinar nary y or p r i ncip nc ipa a l func fu ncti tio o ns. ns . (ex (e x . D O proce proceedi eding ng again against st public public offic officers ers but TC Secr Se cret etar ary y acti ac ting ng as chai ch rman an of unique because highly politicized. airm Maritime Industry Authority) Covers: 1. Presid esiden entt & VP 2. SC Ju Justices 3. Member Members s of of Cons Consti ti Commis Commissio sions ns 4. Ombudsman Natur Nature: e: admini administr strati ative ve proce proceed eding ing but Congress the trial body is not an admin agency. Hence, it is sui generis. Quantum Quantum of evidence: evidence: Congress Congress decides. decides. Last Last impe impeac achm hmen entt it was was “cle “clear ar and and convincing evidence”. No revie eview w by SC as the the auth author orit ity y of impeachment court is mandated by Consti. (sole authority) NOTE: NOT These hese disqua squali lifficat icatiions ons are discussed in detailGeof*Golda*Reeza*Sandi in other chapters. So, to avoid repetition, I just enumerated in this section.


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2. Wher here power ower is exerc ercised ised by othe otherr departments when when Cong Congrress ess or the the cour courts ts mak makes appoi appointm ntment ents, s, it should should be taken taken as an inci incide dent nt to the the disc discha harrge of func functi tion ons s within their respective spheres thes these e appo appoin intm tmen ents ts are are nece necess ssar ary y to enable the departments to maintain their independent existence does not involve an encroachment upon the function of any other branch

Chapter 3 ACQUISITION OF RIGHT OR TITLE TO OFFICE A. In General

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Power of courts to review appointment 1. unless gravely abused, the courts will not attempt to control the power to appoint

Modes of Commencing Official Relations obtained only in the manner prescribed by the Constitution or by law 1. election 2. appointment Appointment act of designation by the officer / board / bod body to whom hom that that power ower has has been een dele delega gate ted, d, of the the indi indivi vidu dual al who who is to exer exercis cise e the powers powers and functi functions ons of a given office the the nomi nomina nati tion on or desi design gnat atio ion n of an individual to an office

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Notes: When other departments exercise the power of appointment, they are still exercising an inherently executive power.

1. Inherently belongs to the people people are the source of government, the power of selecting persons for public office thus inherently belongs to them

2. May be entrusted to designated elected and appointed public officials

Nature of the appointing power 1. Rule: Appointment is an executive executive function whet whethe herr exerci ercise sed d by the the execut ecutiv ive, e, legislative, or judicial officers

2. writ writ of mand mandam amus us cann cannot ot be applied for to compel the exercise of the discretion to appoint

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3. The right to choose those qualified for the position is a prerogative of the appoint ointiing power that that may may be availed of without liability, provided however, that it is exercised in good faith and not in a malicious, harsh, oppr oppres essi sive ve,, vind vindic icti tive ve or want wanton on manner, or out of malice or spite. whom to appoint is a political or admini minist strrativ ative e quest uestiion invol nvolv ving ing considerations of wisdom and the interests of the service 4. Head of office is usually the best person to determine who is qualified for the position for he is familiar with the the orga organi niza zati tion onal al stru struct ctur ure e and and environmental circumstances within which the appointee must function.

Power of CSC to revoke appointments 1. As long as the appointee possesses the qualification qualification required required by the law, the Commission has no authority to: a. revoke an appointment on the ground that another person is more qualified



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persuasive in character, not binding upon the party to whom it is made.

b. direct the appointment of a substitute of its choice or a successful protestant

Obiter: One whose claim is predicated predicated solely upon a more or less remote possibility that, in the event an office should be declared vacant, he may may be the the reci ecipient ient of the the appointment, has no cause of action against the office holder.

2. If the appointment is void from the beginn beginning ing becaus because e of fraud fraud on the part of the appointee or because it was issued issued in violat violation ion of law, law, the Commission may: a. recall or b. revok revoke e said said appoi appointm ntment ents s

Concepcion v. Paredes Law Law prov provid ided ed that that judg judges es shal shalll exch exchan ange ge districts, through lots, every 5 years and that no judge shall continue to serve in a district in which he has been serving for 5 years. The Philippine Legislature has no power to enact enact laws laws which which expr express essly ly or implie impliedly dly diminish the authority conferred by the Act of Congress on the Chief Executive. In the CAB, the appointing power will not exercise exercise judgment, but rather perform a ministerial act in approving the appointment dete deterrmine mined d by chan chance ce whic which h has has been been substituted for executive judgment.

Reyes v. Abeleda person on next next-i -innNext-In-R Next-In-Rank ank Rule: Rule: A pers rank, competent and qualified to hold the position, is entitled to a vacancy occurring in any competitive or classified position in the government. If there are 2 or more persons under equal circum circumsta stance nces, s, senior seniority ity must must be given given preference.

Notes: It does not necessarily follow that that the the next next-i -inn-ra rank nk shou should ld be app appointe inted d. Being eing nex next-in t-in-r -ran ank k endows one with merely a right to be considered, not a right to automatically be appointed.

Cuyungkeng vs. Cruz Inclusion in the list of recommendees is not one of the qualifications to be appointed. In addi additi tion on,, said said list list woul would d cons consti titu tute te a reduction and impairment of the appointing powe powerr vest vested ed in the the Presid esiden entt by the the Constitution. At most, the recommendation is merel erely y an adv advice, ice, exho xhortati tatio on or indorsement, nt, which is essentially

Power of Appointment may be: -

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1. Absolute choi choice ce of the the appo appoin inti ting ng auth author orit ity y is conclusive if it falls upon an eligible person. no further further consent consent or appr approva ovall is necessary the the comm commis issi sion on (for (forma mall evid eviden ence ce of appointment) may issue at once 2. Conditional assent or approval by some other officer or body is nec necess essary ary to comp omplete ete the the appointment examp example: le: Presi Presiden dentt can appoi appoint nt certai certain n with the the cons consen entt of the the public public officers officers with Commission on Appointments - The tolerance, acquiescence or mistake of the the prop proper er offi offici cial als s resul esulti ting ng in nonnonobservance of the requirements of law or rules rules to compl complete ete the appoin appointme tment nt does does not rende renderr the requi require remen ments ts ineff ineffect ectiv ive e and unenforceable.-

Restrictions Restrictions on the power to appoint. 1. General rules a.

Appointee should possess the prescribed qualifications. b. He shou should ld be sele select cted ed sole solely ly with with a view to the public welfare. appointin appointing g power power should should exerc exercise ise o power to appoint with disinterested skill and in a manner primarily for the benefit of the public c. It is agai agains nstt publi public c polic policy y to permi permitt an officer having an appointing power to use such power to confer an office on himself. d. One cannot make a prospective appointment to fill an office where the appointee’s term is not to begin until the appointing power’s own term has expired. 2. Restrictions imposed by the Constitution


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a. Spouses Spouses and relativ relatives es by consangui consanguinity nity or affinity with within in the the four fourth th civi civill degr degree ee of the the President cannot be appointe nted, during that President’s tenure, as: Members of the ConCom o Office of the Ombudsman o Secr Secret etar arie ies, s, unde unders rsec ecre reta tari ries es,, o chair chairmen men or heads heads of bureau bureaus s or offices, offices, includin including g GO/CC GO/CC and their subsidiaries b. Prohibited midnight appointments are those: made two months immediately before the next presidential elections up to the end of his term made made by the the Presid esiden entt or the the Acti Acting ng president except if these are temporary appointments to executive positions when continued continued vacancies vacancies will prejudi prejudice ce public public service or endanger public safety c. Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the court, or in the heads of depa depart rtme ment nts, s, agen agenci cies es,, comm commis issi sion ons, s, or boards. d. Officials and employees in the judiciary may be appoint ointed ed by the the Supr upreme eme Cour ourt in accordance with the Civil Service Law. - same same rule rule for for thos those e in the the Offi Office ce of the the Ombudsman, other that the Deputies

g. Political lame ducks are prohibited: a candidate who has lost in any election cannot be appointe nted, o within one year after such election o to any office in the governm government ent or any GO/CC GO/CC or any of their subsidiaries

-

h. Elective officials are not eligible: for for appo appoin intm tmen entt or desi design gnati ation on in any any capaci capacity ty to any public public office office or posit position ion during his tenure i. Appointive officials shall not hold: any any other other offi office ce or empl employ oyme ment nt in the the government or any subdivision, agency or instrumentality thereof, including GO/CC or their subsidiaries subsidiaries UNLESS otherwise allowed by law or by the primary functions of his position -

j. Ombudsman and his Deputies appointed by the President President from a list of at least 6 nominees prepared by the Judicial and Bar Council from a list of 3 nominees for every vacancy thereafter no need for confirmation must be filled within 3 months after they occur

When Appointment Complete

Deemed

The appoi appointme ntment nt become becomes s compl complete ete -- The when the last act required of the appointi appointing ng power power is perform performed. ed. Until Until the process process is completed completed,, the appointee appointee can clai claim m no vest vested ed righ rightt in the the offi office ce nor nor invoke security of tenure. --

e. Members of the Supreme Court and judges of lower court: appointed by the President President must come from a list of at least 3 nominees prepared by the Judicial and Bar Council for every vacancy does not need confirmation confirmation lower lower court court judges judges’’ appoi appointm ntment ents s must must issue within 90 days from the submission of the list f. ConComs shall appoint: members without reappointment appointment to any o vacanc vacancy y shall shall be only only for the unexpired term of the predecessor no appointment or o designation in the a temporary or acting capacity officials and employees in accordance with law

is

1. If appointment is not subject confirmation comm commis issi sion on (for (forma mall evid eviden ence ce o appointment) may issue at once.

to of

2. Appointments subject to confirmation confirmation comm commis issi sion on can can issu issue e only only when when o confirmation confirmation is obtained

-

-

3. Appointments Appointments to positions positions in the Civil Civil Servic Service e must must be submit submitted ted to the CSC for approval if appo appoin inte tee e is qual qualif ifie ied d civi civill serv servic ice e eligible, CSC has no choice but to attest the appointment attest attestati ation on or confir confirmat mation ion does does o not not comp comple lete te the the appo appoin intm tmen entt



11


since such attestation, although an essent essential ial part part of the appoi appointi nting ng process process,, serves serves merely merely to assure assure the eligibility of the appointee -

-

if appointee appointee later found ineligib ineligible, le, CSC CSC may reject appointment and appointment shall lapse despite the attestation

4. Effects of completed appointment a. No new or furthe furtherr appoi appointm ntment ent could could be made ade to a positi sitio on alr already eady fill filled ed by a previously completed appointment which had been been accept accepted ed by the appoi appointe ntee e throug through h a valid qualification and assumption of its duties. b. Havin aving g onc once mad made the the app appointm intmen ent, t, appointin appointing g officer’s officer’s power over the office office is terminated in all cases where by law the officer is not removable by him. c. Right to office vests in the person appointed and he has the absolute unconditional power of accepting or rejecting it.

Tomali v. CSC An appointment to a position in the civil service is required to be submitted to the CSC for approval in order to determine, in main, whether the propose proposed d appointee appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment. Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective. With Withou outt the the favo favora rabl ble e cert certif ific icat atio ion n or approval of the Commission, in cases when such approval is required, no title to the office can yet be deemed to be per permane anently ntly veste ested d in favor avor of the the appointee, and the appointment can still be recalled recalled or withdrawn withdrawn by the appointing appointing authority. Unti Untill an appoint ointme ment nt has has becom ecome e a comp comple lete ted d act, act, it woul would d lik likewis ewise e be precipitate to invoke the rule on security of tenure.

-

Acceptance of Appointment Appointment 1. not necessary to completion or validity of appointment becaus because e appoin appointme tment nt is the sole sole act of those vested with the power to make it

-

when the appointing power does every act within his power to make such appointment, his functions with respect to the appoint appointmen mentt are are at an end and the appointment is complete whether accepted or refused. 2. necessary to possession of office necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office ( PER) appointee cannot impose his conditions for the acceptance of a public office

Form of Acceptance 1. Express verbally o in writing o taking oath o posting of bond o 2. Implied o exercise of duties and functions o note: mere seeking for the office or the consent to be voted or appointed, thou though gh it may may impl imply y a prom promis ise e to accept if elected or appointed, does not not of itse itself lf amou amount nt to an actu actual al acceptance of the office

Is an indi indivi vidu dual al appo appoin inte ted d or elec electe ted d to offi office ce comp compel elle led d to acce accept pt such such appo appoin intm tmen entt or election? General Rule: No, a person may not be comp compel elle led d to acce accept pt a publ public ic office. (involuntary servitutude?) Exceptions: 1. Consti: The Government may call upon the people to defend the State and, and, in the fulfil fulfillme lment nt there thereof of,, all citi citize zens ns may may be requ requir ired ed,, unde underr conditions provided by law, to render personal military or civil service . 2. Revised Penal Code: Persons who havin aving g been been elec electe ted d by publ ublic election to a public office may suffer the penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both: - for refusal without legal motive to be sworn in or discharge the duties of said office Heal Heal the world world point point:: must must accept accept obligation because it is a social duty. MECHEM: Regardless of the question of whether a man can be compelled to accept a public office, or can be



12


punished for not accepting it, is clear that every person person who enters enters into into civil society and avails himself of the benef enefiits and protec otecti tion on of the the government, must owe to society or to the public, at least a social duty to bear his share of the public burdens, by accepting and performing, under reasonable circumstances, the duties of those those public public offices offices to which which he may be lawfully chosen.

Is a written necessary? -

appointment

YES. Valencia v. Peralta: It would be unfortunate if the title to the office of one upon whose offic official ial acts acts public public inter interest ests s and priv private ate righ rights ts hing hinged ed,, did did or coul could d be made made to depend upon the verbal declarations and statements of the person having the power to make the appointment, to be proved by parol and liable to be forgotten, misunders misunderstood tood or misrepor misreported, ted, subject subject to all the contingencies and infirmitites which are incident to verbal evidence by parol, so pregnant of mischief and misfortune as to have led to the enactment of the statute of frauds.

NO. - The right of the appointee to be inducted into into office office depe depend nds s upon upon the the fact fact of appoin appointme tment nt and and not not upon upon his abilit ability y to establish that fact by the production of a written written appointm appointment ent where where the law does not not pres prescr crib ibe e the the mann manner er in whic which h the the appointing power shall make the appointme appointment, nt, nor direct that any written evidence of his action shall be furnished to the person appointed. (Mechem) - Ykalina v. Oricio: President is authorized to make an appointment, and nothing is said as to the manner in which he shall make it, it may be contained in written memorandum or merely oral. Venecia v. Peralta Petitioner was given a temporary appointment. Even if he took an oath as an ad interim officer, he cannot claim title to the position in the absence of proof that he was actually extended that appointment. The The bett better er rule rule requ requir ires es some some kind kind of written memorial that could render title to public office indubitable.

Revocation

-

1. General General Rule: Once appointment appointment to an offi office ce is made made and and comp comple lete te,, it is not not subject reconsideration or revocation revocation appoi appointee ntee become becomes s entitl entitle e to the offic office e (has security of tenure) Exception: when the officer is removable at will of the appointing power

Notes: This is an improperly placed exception because if the officer is removable at will of the appo appoin inti ting ng powe power, r, what what happ happen ens s is not not a revocation but a termination of term 2. Where appointee has assumed position revocation can no longer be had; remedy would be a removal for cause with notice and hearing once the appointee assumes a position in the civil service, he acquires a legal, not merely an equitable right cert certa ain irregul egula ariti ities in said said o appointment may even be deemed cured by the subsequent probational and absolute appointment of the appointee the presence presence of a more more qualifie qualified d person person cannot cannot be a groun ground d for the appoi appointe ntee’s e’s removal provided that the latter possesses the minimum qualifications required by law -

B. Appointments By The President Four Groups of Officials whom President is Authorized to Appoint (CONST. Art VII, sec. 16) 1. must have the consent of the Commissi Commission on on Appointme Appointments nts (exclus (exclusive ive list) - Cong Congrress ess cann canno ot, by law, law, requir uire conf confir irma mati tion on of appo appoin intm tmen ents ts of othe otherr officers. o heads of executive departments ambassadors o other public ministers and consuls o officers of the armed forces from the o rank of colonel or naval captain o regular members of the JBC o Chairman and Commissioners of the CSC Chairman and Commissioners of the o o COMELEC



13

(wala na kaming maisip na title.bahala ka na sa blank na yan) o

Chairman and Commissioners of the COA Members of the regional consultative commission

2. all other officers officers whose appointme appointments nts are not otherwise provided provided by law e.g. e.g. offic offices es creat created ed by Congr Congress ess-o where Congress omits to provide for appointment or Congress has provided an o unco uncons nsti titu tuti tion onal al way for for suc such appointments

o

o

o

-

3. those whom the President may be authorized by law to appoint e.g. heads of GOCCs, undersecretaries, undersecretaries, bureau heads/etc. heads of the SEC and the Insurance Commission don’t need confirmation becaus because e they they are are now consid consider ered ed civil service officers whose appointm ntments are to be made according to merit and fitness Cha Chairm irman and and Memb embers ers of the the Commission on Human Rights

4. other officers lower in rank whose appo appoin intm tmen ents ts the the Cong Congre ress ss by law law vests in the President alone (or in the courts courts,, in the heads heads of depart departmen ments, ts, agencies, commissions or boards) lower in rank: officers subordinate to those enumerated officers in whom respectively the power of appointment may be vested: heads of executi executive ve departmen departments, ts, o agencies, commissions, and boards o does not include heads of bureaus and offices offices not mentione mentioned d in the Cons onsti as amon among g thos those e to be appointed by the President President who are subordinates subordinates of Cabinet members  thei theirr appo appoin intm tmen ents ts are are vested in the President Kinds of Presidential Appointments Appointments 1. 2. 3. 4.

o

o

o

Regular Ad Interim Permanent Tempo empora rary ry or or acti acting ng

1. Regular thos those e made made whil while e Cong Congre ress ss is in session mere nominations subject ect to confirmation 2. Ad Interim those made while Congress is not in session or during its recess, whether such recess is:

voluntary: that which takes place before the adjournment of Congress, like a Christmas recess comp compul ulso sory ry:: when when Cong Congrress ess  adjourns reces recess s appoi appointm ntment ent power power keeps keeps in operation the business of government when Congress is not in session this this type type of appo appoin intm tmen entt shal shalll be effective upon rejection by the COA, or if not acted upon, at the adjournment of the next session, regular or special, of Congress President exercises a special prerogative and is bound to be prudent to insu insure re appr approv oval al of his his sele select ctio ion n either by previous consultation with the members of the COA or by thereafter explaining to them the reason for such selection. WHY? WHY? Becaus Because e an ad interi interim m o appoin appointme tment nt contr contrad adict icts s the theory of checks and balances in that it permits the executive alone to make an appointment perm perman anen entt and and effe effect ctiv ive e in char charac acte terr with withou outt prev previo ious us scrutiny and concurrence of the legislati legislative ve power, power, acting acting thru the COA 

o

o

o

NOTE: An ad interim appointment is nevert neverthel heless ess perman permanent ent in natur nature e and not a mere temporary or acting appointment, notwithstanding that it is subject to confirmation by the COA. MALI si de Leon Leon when when he Notes: MALI said: However, it may be recalled or revo revok ked by the the Pres Presid iden entt befo before re confirmation. Beca Becaus use e it is perm perman anen ent, t, it tak takes effe effect ct imme immedi diat atel ely y. Even Even befo before re conf confir irma mati tion on,, the the appo appoin intm tmen entt is deemed deemed comple complete. te. Remed Remedy y would would therefore be removal.

Rosales vs. Yenko The original original ad interim interim appointmen appointmentt was neve neverr relea elease sed d by the the Offi ffice of the the Presi Presiden dent. t. The ad interi interim m appoin appointme tment nt being incomplete, there was in fact and in law no ad interim appointment that could be validly transmitted to and acted upon by the Commission on Appointments.



14


-

o

o

o

o

o

3. Permanent thos those e which hich terminated

last last

unti untill

lawf awfully ully

4. Temporary or Acting those which last until a permanent permanent appointment is made An acti acting ng app appointm intmen ent, t, being ing essentially temporary or provisional provisional in char charac acte ter, r, cann cannot ot be vali validl dly y confirme confirmed d by the CO COA A because because the confir confirmat mation ion presu presupp ppose oses s a valid valid ad interim nomination or appointment Officer in an acting capacity has no personality to bring a quo warranto acti action on agai agains nstt the the perma ermane nent nt appointee to the position since the former is not entitled to the office. Has no fixed tenure of office and can be terminated at the pleasure of the appointing power

Steps in the Appointing Process (for (for posi positi tion ons s subj subjec ectt to conf confir irma mati tion on Commission on Appointments)

-

Where no new appointments are necess necessary ary,, and offic official ials s occupy occupy anothe anotherr posi positi tion on in an ex-of ex-offi fici cio o capa capaci city ty,, the the President is not deprived of his constitutional power to make appointments even if Congress prescribes which officials should occupy said ex-officio positions.

1. appointments which are required to be submitted tothe Commission on Appo Appoin intm tmen ents ts are are eith either er regu regula larr or ad interim; both are permanent in nature

-

Designation mere imposition of new or additional duties upon an officer to be performed by him in a spec specia iall mann manner er whil while e he perf perfor orms ms the the function of his permanent office presupposes that the officer is already in service by virtue of an earlier appointment revocable and temporary in character for it does not confer upon the designee securi security ty of tenur tenure e in all the posit position ion or offi office ce which hich he occu occupi pies es in an acti acting ng capacity only

1. Nomination exclu exclusiv sive e prer preroga ogativ tive e of the Presi Presiden dentt which which no limita limitatio tion n may be impose imposed d by Congress, except those resulting from the need need of securi securing ng the concur concurre rence nce of the COA and from the exercise of the limited legi egislat slativ ive e power ower to prescr escrib ibe e the the qualifications qualifications to a given appointive office

Rafael v. EACIB

Points to Remember:

-

by

1) nomination 2) confirmation 3) issuance of commission

Temporary orary appointees appointees still still Notes: Temp enjo enjoy y secu securi rity ty of tenu tenurre, albe albeit it a limited one.

2. Appointments that are for the President solely to make without the participation of the COA cannot be ad interim appointments. - The President’s voluntary act of submitting such appointments to the COA and and the the latt latter er’s ’s act act of conf confir irmi ming ng or rejecting the same would be without or in excess of jurisdiction.

Jurisprudence: Jurisprudence: There being no appointment issue issued, d, desig designat nation ion does does not entitl entitle e the officer designated to receive the salary of the position. (? Can law provide otherwise?)

Officials who sit ex officio merely perform duties duties in the Board Board in additi addition on to those those they already already perform perform under their original original appointments. The They y can can be cons consid ider ered ed as mere merely ly on detail, subject to recall by their respective chiefs. -

-

2. Confirmation power belongs to Congress A confirmation must be distinguished from the appointment itself, for in confirming the appo appoin intm tmen ent, t, the the CO COA A does does not not in any any sense choose the appointee. The act is not an exercise of an executive function and since it is not legislative in character, it need not be performed at a regular session of Congress. (second part from AmJur—not too sure about that since prev previo ious us stat statem emen entt says says that that powe powerr belongs to Congress)



15


-

3. Issuance of a commission the written written evidence evidence of the appointment, appointment, but not the appointment itself define defined d as the writte written n author authority ity from from a competent source given to the officer as his warrant for the exercise of powers and duties of the office to which he is commissioned

Commissions (appointive vs. elective officials) officials) 1. elected officers issu issuan ance ce of a comm commis issi sion on is mer merely ely a minist ministeri erial al act becaus because e his right right to the offic office e is estab establis lished hed by the result result of the electi election on and does not depend depend upon his getting a commission 2. appointed officers usually requires a commission

-

C. Appointments in the Civil Service -

Scope of the Civil Service All branches, subdivisions, inst instru rume menta ntali liti ties es,, and and agen agenci cies es of the the Government including GOCCs with original charter

* Consti Consti intends intends to extend extend the requir requirement ements s and benefits of the Civil Service System over the admin administ istrat rative ive person personnel nel of the entir entire e government—national and local—including the military establishment (de Leon).

Care Career er serv servic ice e incl includ udes es:: (was (wasn’ n’tt really included in class discussion but has been asked “in the bar”) i. open open career career posit position ions s for for appoi appointm ntment ents s qualification in an appropriate examination required ii. closed career positions which are scientific or highly technical in nature faculty and academic staff of state colleges and universities scie scient ntif ific ic and and tech techni nica call posi positi tion ons s in scientifi scientific c and resear research ch institution institutions s which which shal shalll esta establ blis ish h and and main mainta tain in thei theirr own own merit system iii. Positions in the Career Executive Service Undersecretary Assistant Secretary Bureau Director Assistant Bureau Director Chief of Department Service Other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President -

iv. Career officers appointed by the President Foreign Service Officers in the Department of Foreign Affairs

-

v. Commissioned officers and enlisted men of the the Arme Armed d Force orces s whic which h shal shalll main mainta tain in a separate merit system vi. Personnel of GO/CC whet whethe herr perf perfor ormi ming ng gove govern rnme ment ntal al or proprietary functions do not fall under the non-career services -

Purpose of the Civil Service system - to enable the national and local government and all its instrumentali instrumentalities ties and agencies agencies to render more efficient services to the public by enab enabli ling ng them them to obta obtain in effi effici cien entt publ public ic servants. Classification of Positions in the Civil Service 1. Car Career eer Serv Servic ice e 2. Non-c Non-car aree eerr serv servic ice e

1. career service a. entr entra ance nce based sed on mer merit and and fitness to be determined as far as practica practicable ble by competiti competitive ve exami aminati natio ons or based ased on highly technical qualifications b. secu securi rity ty of tenu tenurre c. oppo opport rtun unit ity y for for adva advanc ncem emen entt to higher career positions

vii. Permanent laborers whether skilled, semi-skilled, or unskilled

-

2. non-career service a. entr entran ance ce on base bases s othe otherr than than usual test of merit and fitness b. tenure limited to: 1. a peri period od speci specifie fied d by by law law or 2. a period co-t o-terminous with appointing authority or 3. subject to pleasure of appointing authority or 4. a peri period od limi limited ted to the the dura duratio tion n of a particular project for which pur purpose emp employ loyment ment was made Non-career service includes:


“ __________________________ ______________________________________ ____________” ”

16


i. elec electi tive ve offi offici cial als s and and confidential staffs

thei theirr pers person onal al or

3.

vi. casual employees employment is not permanent occasional occasional,, unpredic unpredictable table,, sporadic, sporadic, and brief in nature

-

-

-

-

-

2. professional, technical and scientific positions non-superv non-supervisor isory y or supervis supervisory ory capacity capacity requiring at least 4 years of college work up to Division Chief Level competitive exams required open open to thos those e insi inside de and and outs outsid ide e the the service who meet the minimum qualification requirements requirements

Executive

1. competitive: according to merit and fitn fitnes ess s to be dete deterrmine mined d as far far as practicable by competitive examinations -

1. clerical, trades, crafts, and custodial service positions non-professional non-professional or subprofessional subprofessional work in a non-supervisory or supervisory capacity requi requirin ring g less less than than 4 years years of colle collegia giate te studies competitive exams required open open to thos those e insi inside de and and outs outsid ide e the the service who meet the minimum qualification requirements requirements

Career

Entr Entran anc ce to a hig higher her lev level does does not not requir require e previou previous s qualific qualifications ations in the lower level. 2. With Within in the same same level level,, no civi civill servi service ce examination is required for promotion to a high higher er posi positi tion on in one one or more more related occupational groups. but must have passed the o examination for the level Cons onstit titutio ution nal Cla Classif sificat icatio ion n of Positions in the Career Service

v. emergency and seasonal employee

1. clerical, trades, crafts, and custodial service positions 2. professional, technical and scientific positions 3. positions in the Career Executive Executive Service

the

1.

those whose employment in the government is in accordance with a special contract to undertake a specific work or job requi requirin ring g specia speciall or techni technical cal skill skills s 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 with a minimum direct direction ion or superv supervisi ision on from from the hiring hiring agency

Clas Classe ses s of Posi Positi tion ons s in the the Care Career er Service

in

Points to Remember:

ii. depart departmen mentt heads heads and other other offici officials als of cabinet who hold positions at the pleasure of the the Pres Presid iden entt and and thei theirr pers person onal al or confidential staffs iii. chairmen and members of commissions and boards with fixed terms of office and their personal or confidential staff v. contractual personnel, or

-

positions Service

On competitive examinations: substitutes for the uncontrolled will of the appointing power insures that appointments to office is made from from among among those who, by examinati examination, on, have have show shown n them themse selv lves es to be the the best best qualified

A competitive examination: a. must be given under an objective standard of grading b. must must conf confor orm m to meas measur ures es or standards which are sufficiently obje object ctiv ive e to be capa capabl ble e of being challenged and reviewed, reviewed, whe when nece neces ssary sary,, by other ther examiners of equal ability and experience c. must be competitive in substance, not merely in form d. even even oral oral exam examin inati ation ons s may be be cons consid ider ered ed obje object ctiv ive e if the the questions are such as to best deter determin mined ed the pract practica icall and technical technical qualific qualificatio ations ns of the app applic licants ants to perfo erforrm the the duti duties es of the the posi positi tion on to be filled 2. non-competitive

o

a. policy-determining occupant is vested with the power of for formula mulati ting ng poli polici cies es for for the the government or any of its agencies,



17


subdivisions, instrumentalities (e.g. Cabinet member)

o

o

o

o

An examination of the provisions of BP 337 reveals no intention by the legislature to remov emove e the the conf confid iden enti tial al natu naturre of the the position of city legal officer. officer. What it does, is to merely specify the various qualifications, qualifications, power powers s and duties duties of a city city legal legal offic officer er which which were were not enumer enumerate ated d under under R.A. R.A. 5185.

b. primarily confidential denotes not only confidence in the aptit aptitude ude of the appoin appointee tee for the duties duties of the office office but prima primaril rily y close lose inti intima macy cy whic hich insur nsures es freedom of [discussion and delegati delegation on and reporti reporting] ng] without without embarra embarrassme ssment nt or freedom freedom from from misgivings of betrayals of personal trus trustt or conf confid iden enti tial al matte matters rs of state (Delos Santos v. Mallare) e.g. private secretary or a confidential agent Note: It is the nature of the position which finally determines whether a position is primarily confidential. When When a ter termina minati tion on of offi offici cial al relation occurs because of loss of conf confid iden ence ce,, what what occu occurs rs is an expiration expiration of the term of office.

Tria v. Chairman Cha irman Effe Effect cts s of char charac acte teri rizi zing ng a posi positi tion on as "primarily confidential:" o rende renders rs inapp inapplic licab able le the ordin ordinary ary requirement of filling up a position in the Civil Service on the basis of merit and fitness as determined by competitive examinations termin terminati ation on can be justif justified ied on the o ground of loss of confidence because in that that case case thei theirr cess cessat atio ion n from from offic office e involv involves es no remov removal al but the expiration expiration of their term of office A posi positi tion on in the the Civi Civill Serv Servic ice e may may be considered primarily confidential: when the President of the Philippines, o upon upon recom recommen mendat dation ion of the CSC, CSC, has has decl declar ared ed that that posi positi tion on to be primarily confidential; or o when the position, given the character of the duties and functions attached to it, is primarily confidential in nature.

c. highly technical in nature o

o

occupant is required to possess skills or training in a superior degree natu naturre of funct unctiions ons deter eterm mine ine characteristic of position On classifications: classifications: 1. Executive pronouncements can be no more more than than initia initiall deter determin minati ation on that that are are not not conc conclu lusi sive ve in case case of conflict.

2. Whethe Whetherr or not the classifi classificat cation ion of a positi position on is reall really y in accor accordan dance ce with with the Cons Consti titu tuti tion on is ulti ultima mate tely ly a judi judici cial al question.

Griño v. CSC The The fact fact that that the positi position on of provi provinci ncial al attorney has already been classified as one under the career service and certified as permanent by the CSC cannot conceal or alter its highly confidential nature. Thi This s bein being g the the case case,, and and foll follow owin ing g the the prin princi cipl ple e that that the tenu tenure re of an offi offici cial al holding holding a primaril primarily y confident confidential ial position position ends upon loss of confidence, respondent was not dismissed or removed from office when when his servi services ces were were termin terminate ated. d. His term merely expired.

Hilario v. CSC

-

Quali Qualific ficati ation on standa standards rds in the Civil Service expresses the minimum requirements for a class of positions in terms of: education o training o experience o civil service eligibility o physical fitness o other her qualities required for o successful performance dete deterrmine mined d by the the appo appoin inti ting ng o autho uthorrity ity on the the basis asis of the the qual qualif ific icat atio ion n stan standa dard rds s for for the the particular position with with the the assi assist stan ance ce and and  approval of the CSC and in consultation with the Wage and Positio Position n Classifi Classificatio cation n Office o offs offset etti ting ng of defi defici cien enci cies es may may be allo allowe wed, d, inte interc rcha hang ngin ing g stan standa dard rds s allowed and this rests upon the sound discreti discretion on of the appointi appointing ng authority authority who is in the best position to determine



18


the the need needs s of his his offi office ce and and how how to satisfy those needs Use of qualification qualification standards a. as basis for civil service examinations b. as guides in the appointment and other person personnel nel action actions s in the adjud adjudica icatio tion n of protested appointments c. in determining training needs and d. as aid in the inspection and audit of the agencies’ personnel work programs programs

Kinds Kinds of Appoin Appointm tment ent in the the Career Career Service

o

o o o

o

o o

o

o

o

1. Permanent issu issued ed to a pers person on who who meet meets s all all requirements lasts until lawfully terminated entitled to security of t enure a permanen permanentt appointm appointment ent is N0T a continuation of a temporary appointment

2.Temporary/ 2.Temporary/ Acting meets all requir requirements ements except except civil civil service eligibility not to exceed 12 months appointee may be replace sooner if a qual ualifie ified d civil ivil serv serviice eli eligibl ible becomes available  but remember, remember, if there’s there’s a civil civil servic service e eligi eligible ble availa available ble,, nonnonelig eligib ible le cann cannot ot be appo appoin inte ted d even in a temporary capacity can be terminated at the pleasure of the appointing power can can be tran transf sfer erre red d or reas reassi sign gned ed without violating the constitutionally guaranteed right to security of tenure | Note Consti prov prov: temporar temporary y employees in the Government shall be given such protection as may be provided by law.| Note Note how however ever that that appo appoin inti ting ng auth author orit ity y does does not not have have blan blanke kett authority to remove such employee at any time without cause where the appointment is for a definite period.

Points to Remember

1. What characterizes an appointment as permanent or temporary is not the nature of the the posi positi tion on but but the the natu naturre of the the appoi appointm ntment ent exten extended ded,, which which,, in turn, turn, depends on the eligibility of the appointee of his lack of it -2. A person with a civil service eligibility shall be qualified for a position requiring a lower eligibility if he possesses the other requi require remen ments ts for appoin appointme tments nts to such such position. 3. If the certificate issued by the CSC is null and void, it may revoke it on said ground without notice and hearing to the examinee concerned, applying the rule res ipsa loquitor,

Province of Camarines Sur vs. CA The fact that private respondent obtained civil civil servic service e eligib eligibil ility ity later on is of no moment. His having passed the supervising securi security ty guard guard exami examinati nation on did did not ipso ipso facto facto convert convert his temporar temporary y appointme appointment nt into a permanent one. What What is requi require red d is a new appoint appointmen mentt since since a perman permanent ent appoin appointme tment nt is not a continuation of the temporary appointment.

Gloria v. De Guzman Mere designation does not confer upon the designee designee security security of tenure to a position position held in an acting capacity only. Expiration of term is not illegal dismissal. Not being a permanen permanentt appointme appointment, nt, the desig designat nation ion of a positi position on cannot cannot be the subj subjec ectt of a case case for for reins einsta tate teme ment nt.. Reinstatement is technically issuance of a new new appo appoin intm tmen entt whic which h is esse essent ntia iall lly y discretionary.

The CSC and Its Role on Appointments in the Civil Service 1. Approv Approval al requir required ed in all appointme appointments, nts, wheth hether er orig riginal nal or promoti motio onal nal, to positions in the civil service EXCEPT: a. presidential appointments b. members of the: Armed Forces of the Philippines o Police forces o Firemen o


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19

C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER (wala na kaming maisip na title.bahala ka na sa blank na yan) o

Jail guards

2. Appointee need not be previously heard if the disapproval is based on its nonconformity to applicable provisions of the law and on the qualifications of the appointee. CSC may recal recalll appoin appointme tment nt on its own own initiative and review the same de novo Appoin Appointee tee has right right to file file a motio motion n for recons reconsid idera eratio tion n and there there challe challenge nge its approval

-

3. An appointment to the civil service is required to be submitted to the Comm Commis issi sion on for for appr approv oval al in orde orderr to determine whether the proposed proposed appointee is qual qualif ifie ied d to hold hold the the posi positi tion on and and whether or not the rules pertinent to the process of appointment are followed. IRR of Admin Admin Code: an appoi appointm ntment ent not submit submitted ted to the Commis Commissio sion, n, within within 30 days from the date of the issuance which shall be the date appearing on the face of the instrument, shall be ineffective. No title can then yet be deemed to o be permanently vested in favor of the appointee and the appointment can still still be recalled recalled or withdrawn withdrawn by the appointing authority

4. Power is merely limited to the question of whether or not the appointee is qualified. not not auth autho orized ized to curta urtail il the the o discretion discretion of the appointing official has has no powe powerr of appo appoin intm tmen entt o except over its own personnel nor does it have the authority to review the appoi appointm ntment ents s made made by other other offices o may however order the reins instate tateme ment nt of an ill illegal egally ly demoted or dismissed employee 5. Comm Commis issi sion on must must keep eep a recor ecord d of all all appointment of all officers and employees in the civil service. 6. Section 10, Rule V of Omnibus Implementing Rules of RAC of 87: an appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting awaiting the approval approval of his appointm appointment ent by the Commission. 6. OIR of RAC RAC 87 enumerates grounds for recall even if appointment initially approved: approved:

a. non-compliance with the procedures/criteria provided provided in the agency’s Merit Promotion Plan b. fail failur ure e to pass pass thr through ough Selection/Promotion Board

the the

agen agency cy’s ’s

c. Violati Violation on of existing existing collective collective agreemen agreementt between management and employees relative to promotion d. violation of other existing civil service law, rules, and regulations

Appointment Appointment through certification issued to a person who has been selected from a list of qualified persons certified by the the Comm Commis issi sion on from from an appr approp opri riat ate e register register of eligibles eligibles (i.e. list of names of those who passed competitive exami examinat nation ions) s) and who meets meets all other other requirements requirements of th e position -

The persons certification must: o

o

appointed

through

Serve Serve a prob probati ationa onary ry period period of 6 mont months hs foll follow owin ing g thei theirr orig origin inal al appointments Must undergo a thorough character invest investiga igatio tion n in order order to acquir acquire e permanent civil service status

D. Vacancy when when an offi office ce is empt empty y and and with withou outt a legally legally qualifie qualified d incumbent incumbent appointed appointed or elected to it with a lawful right to exercise its powers and duties

An office may be vacant when it is occupied by one who: 1. is not a de jure officer 2. is a mere mere usurper 3. is holding over Wher Where e a regu regula larr empl employ oyee ee is ille illega gall lly y dismi dismisse ssed, d, transf transfer erred red or demote demoted, d, his position does not become vacant.

Classification of Vacancy

o

1. Original when an office is created and no one has been appointed to fill it

o

2. Constructive when when the the incu incumb mben entt has has no lega legall right right or claim claim to contin continue ue in offic office e



20


and and can can another

o

be lega legall lly y

repla eplace ced d

by

o o

3. Accidental when the incumbent dies, resigns or is removed -

o

4. Absolute when when the the ter term of an incu incumb mben entt expire expires s and no successor successor is legally legally qualified to the office

Causes of vacancy o death o permanent disability removal from office o resignation of the o incumbent o abandonment o expiration of term conviction of crime o o impeachment conviction acceptance of incompatible o office o creation of a new office o reaching the age limit o recall failure of person chosen to o acce accept pt of qual qualif ify y for for the the office

o

o

-

-

Filling of anticipated vacancies: 1. Legal if the appointment is to take effect during the term of the appointing authority appointing officer must be empowered to do so no law must forbid it

2. Not legal if appoi appointm ntment ent is to take take effect effect after the expiration of term of appointing power - Note Note howe howeve verr that that juri jurisp spru rude denc nce e says says:: successor MAY recall the appointment E. Qualifying to Office

o

o

Qual Qualif ific icat atio ion n (as (as an act) act) to an office an act act by whic which h an appo appoin inted ted or elective official signifies his acce accept ptan ance ce of the the offi office ce and and his his unde undert rtak akin ing g to exec execut ute e the the trus trustt confided in him. Generally consists of: Takin Taking, g, subscrib subscribing, ing, filing filing of an  official oath  If requi equirred by law, law, post postin ing g of bond Effect of failure to qualify 

-

refusal of the office does not become an officer de jure; regarded as officer de facto

Oath an outward outward pledge pledge whereby whereby one formall formally y calls upon God to witness the truth of what he says. Not indisp indispens ensab able; le; mere mere incid incident ent to the office office and constitutes constitutes no part of the office itself If requ requir ired ed by stat statute ute,, usua usuall lly y mere merely ly directory Oath-taking is mandatory for: President o Vice-President o Acting President o Public officers and employees o Consti: to uphold and o defend the Constitution Admin dmin Code Code:: inc. inc. ever every y o member of the armed forc orces— es—to upho upholld and and defend the Constitution  Bear Bear true true faith faith and allegi allegianc ance e to it  Obey the laws, legal orders and decrees of duly constituted authorities  Faithfully dischar harge to the best of his ability his duties  Voluntarily assumes the obligation imposed by his oath oath of offi office ce without without mental mental reser reserva vatio tion n or purpose of evasion elective elective and appointiv appointive e local local official officials s o and employees officers authorized to administer oaths notaries public o members of the judiciary o clerks of court o sec secreta etary of eithe itherr Hous ouse of the the Congress of the Philippines Secretaries Secretaries of departments o o Bureau directors Registrars of deeds o o


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21


o o

o

Provi Provinci ncial al gover governor nors s and lieuten lieutenant ant governors City mayors Any other officer in the service of the gove govern rnme ment nt whos whose e appo appoin intm tmen entt is vested in the President Officer whose duties, as defined by law or regulati regulation, on, require require presenta presentation tion to him of any statement under oath

Bonds required for: accountab accountable le public public officersofficers- those o to whom are entrusted the collec collectio tion n and custod custody y of public public money public public minis minister terial ial offic officers ers whose whose o actions may affect the rights and interests of individuals -

-

in the nature of an indemnity bond rather than a penal or forfeiture bond. o A contract between the officer and the government Binds Binds the sureti sureties es to make make good good o the officer’s default Not Not for for the the bene benefi fitt of the offi office ce o holde holder, r, but for the prote protecti ction on of public interest

-

-

De facto officer: one who is in possession of an offi office ce in the the open open exer exerci cise se of its its functions under color of an election or an appointment even though such election or appointment may be irregular. Elements of De Facto Officership 1. There must must be a de jure office. office.

-

-

failure to provide bond, even when time is prescribed, prescribed, merely constitutes a ground for forfeiture, and not forfeiture of the office ipso facto except except of of course course if the giving giving of o the bond is prescribed as a condition precedent to the right to the office  if so, so, offi office ce rega regard rded ed as vacated when the required bond is not given within the time limited by law

-

De facto doctrine: a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfull rightfully y in such office office until, until, by judicial declaration in a proper proceeding, he is ousted ousted therefr therefrom, om, or his admission admission thereto is declared void. Spring Springs s from from the fear of the chaos that would result from multiple and repetitious suits suits challe challengi nging ng every every action action taken taken by every official whose claim to office could be open to question

2. There must be a color of right or general acquiescence by the public. may consist in an election or appointment, or in holding over the expiration of one’s term, or acquiescence by the public in the acts of such officer for such length of time as to raise raise the presu presumpt mption ion of colora colorable ble right by election or appointment. 3. Ther There e must must be actu actual al phys physic ical al possession of the office in good faith. must also be accompanied by the faithful exercise of the functions of the officer and dischar discharge ge of its duties, duties, since since possessi possession on alone makes the possessor a mere intruder or usurpe usurperr whose whose acts acts in the offic office e are are wholly void.

De jure officer: one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. Requir Requireme ements nts to become become office officerr de jure 1. must possess the legal qualifications for the office 2. must be lawfully chosen to such office 3. must have qualified himself to perform the duties of such office according to the mode prescribed prescribed by the Constitution of law

F. De Facto Officers -

Seeks to protect the public by insuring the order orderly ly functi functioni oning ng of the gover governme nment nt despite technical defects in title to office

-

one who who tak takes Usurper Usurper or intruder: intruder: one possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. not an officer at all for any purpose

De Jure officer right

De Facto officer reputation



22


lawfu awfull rig right ht or ti title tle

posses ssessi sion on of off office; ice; performance performance of duties

cannot be removed in a direct proceeding

may be ousted in a direct proceeding

De facto officer

Usurper

colo colorr of of rig right ht or titl title e

no lawf lawful ul titl title e nor nor colo colorr of right or title

public does not know his lack of title or

public knows he is merely a usurper

may be removed only in a direct proceeding

can be ousted at any time in any proceeding proceeding

acts are valid

acts are absolutely null and void

1.

Acts to de de facto facto offic officers ers are valid, valid, just just like those of a de jure one, until the title to office is adjudged as insufficient. 2. Third Third pers persons ons have have a right right to assum assume e that the officer is legally qualified. qualified. 3. Also, Also, the the de fact facto o offic officer er is esto estopp pped ed from from taking taking advan advantag tage e of his own want of title.

Proceedings to Try Right or Title of De Facto Officer  The time to office and the validity of acts cts of a de facto acto offi fficer cer cannot be attacked collaterally. These must be questioned in a  direct proceeding where such are the main issues. Quo Warranto 1. a special remedy for questioning title to office

o

Barte v. Dichoso B was issued an ad interim appointment as Acting Acting Vice Vice Mayor Mayor. His appointmen appointmentt was later bypassed by the National Assembly and B was subsequently informed that a new designation was under consideration. Well-settled is the rule that a public officer having the capacity to act on behalf of the Gove Goverrnmen nmentt in whom whom the the exer exerci cise se of sovereignty is vested has to be chosen in the manner manner and form form provi provided ded by law. law. Otherwise, he would be a plain usurper of official functions.

Lega Legall Effe Effect cts s of Acts Acts of De Facto acto Officer As regards the officers themselves 1. Acts Acts of a de fact facto o offic officer er as as far far as he he himself is concerned are void. 2. The The part party y defen defendi ding ng his/h his/her er righ rightt to office must show that s/he is a de jure officer, not just de facto. 3. This This is to disco discoura urage ge seizu seizure re of of public public offices. 4. The The occup occupan antt must must know know whethe whetherr or not he is legally entitled to office.

As As rega regard rds s persons

the

publ ublic

and and

thir third d

o

2. It may be filed only by: the person claiming-title to the office or the RP represented by the SolGen or public prosecutor. This is because the law presumes  an officer to have legally occupied a post and that official duty has been regularly performed. This is in line with the constitutional rights of an officer to due process process and securi security ty of tenure.

3. Petitioner in a quo warranto proceeding must set forth the name of the defendant occu occupa pant nt and and the the name name of the the pers person on claiming title to the office. Others who also claim title to office may be made parties to deter determin mine e their their respe respecti ctive ve right rights s in the same action.

Right to Compensation of a De Facto Officer General Rule: A de facto officer, unlike a de jure officer, cannot maintain an action to recover salaries, fees, emoluments on the theory that acts of a de facto officer as far as he himself is concerned are void. Exceptions: In the absence of bad faith on the part of the officer, s/he may


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23


recover recover compensat compensation ion due to for for serv servic ices es rend render ered ed as de facto officer. When the government in good faith has relied on the officer's color of title and paid the de facto officer salary, the de jure officer cannot claim the same compensation.

Exception to the Exception: If the officer was not appointed but merely designated to an office, there gener enera ally lly can be no add additi itiona onal compensati compensation on for the 'perfor 'performance mance of additional functions. Liabilities of a De Facto Facto Officer A de facto officer has the same degree of liability a de jure officer. 1. may may be liabl able for all pena penalltie ties for for unlawfully holding an office. 2. S/he S/he cannot cannot excus excuse e respon responsib sibili ility ty for a crime committed in official capacity by asserting that s/he is merely a de facto officer.

Two persons (whether both de facto, or one de jure jure and and the othe otherr de fact facto) o) cann cannot ot occupy the same office at the same time whe when the the law provi ovides for for onl only one one incumbent for that office. If the de jure officer is also de facto, legal title and possession to the office is united. There can be no other de facto officer to that office. If 2 de facto officers, each under a claim of righ right, t, occu occupy py a post post,, the the owne ownerr who who appears to have the better legal title will be recognized.

-

-

Thus, occupant is a usurper whose acts are invalid. View 2: Occupant recognized as de facto until judicial determination of the unconstitutionality of the act. This is for reasons of public policy and for the protection of private rights. Otherwise, there will be uncertainty, chaos, inconvenience and hardship to litigants.

CHAPTER IV: POWERS, DUTIES AND NORMS OF CONDUCT OF PUBLIC OFFICERS What What is the the sour source ce of powe powerr of pu publ blic ic offices? 1. The The peo peopl ple e the thems msel elve ves s •

•

Double Occupancy of a Single Office

Offices Created under Unconstitutional Unconstitutional Statute

-

an

View 1: Occupant is not even a de facto officer. This is because an unconstitutional law is not law; it confers no rights; imposes no duties, affords no protection; it creates no office; it is inoperative.

Either Either dire directl ctly y or thru thru Congr Congress ess,, the people create public offices The Their ir will will find finds s expr xpressi ession on Constitution and the laws

in

the the

Notes: 1. The publ public ic is char charged ged with with noti notice ce of the the para parame mete ters rs of auth author orit ity y of publ public ic officers 2. No one one is excus excused ed fro from m comply complying ing with with the law because of ignorance

Scope of power of a public officer: 1. expr expres essl sly y conf confer erre red d by the law under under which he was appointed 2. expr express essly ly annex annexed ed to the the office office by by the law that created it or some other law referring to it 3. attach attached ed to the the offic office e as inci incide dent nt to it it

LO CHAM VS OCAMPO A lawyer lawyer in the DOJ DOJ was temporar temporaril ily y detailed to assist the City Fiscal of Manila with



24


the same powers and functions as the Asst. fiscal. Pwede o hindi?

Classification of powers and duties: Pwede. Pwede. The Revised evised Admin Administ istrat rative ive Code gives the DOJ Secretary power to appoint any lawyer to temporarily assist a fiscal and exercise exercise the fiscal’s functions.

1.

Nature •

Why so? Because the duties of a public office include those which are essential to the accomplishment of the main purpose for which the the offi office ce was was crea create ted d or whic which, h, alth althou ough gh inci incide dent ntal al,, are are ger germane mane to the the prin princi cipa pall purpose.

•

Mini Minist ster eria iall- invo involv lves es mere merely ly exec execut utio ion n of a spec specif ific ic duty duty arising from fixed facts; cannot use own judgment Disc Discrretio etiona nary ry-requi equirre the the exercise of reason and disc discrretio etion n as to how how an act act should be done

RCPI VS SANTIAGO The The Publ ublic Serv ervice Commi ommiss ssio ion n impose imposed d a fine fine on RCPI RCPI for failur failure e to rende renderr servic service e expec expected ted of a radio radio opera operator tor.. RCPI CPI alleges PSC lacks power to impose the fine. The The powe powerr is neit neithe herr expr expres essl sly y nor nor impl implie iedl dly y gran grante ted d to the the PSC PSC in the the Publ Public ic Service Act. Thus it has no power to impose the fine. A publ public ic offi office cerr must must loca locate te in the the statute relied upon a grant of power before he can exercise it. The grant need not be express.

Territorial limitation of authority:

2. Obli Obliga gati tion on to to per perfo form rm •

•

Perm Permiss issive ive-- design designed ed merely merely to secure secure order, order, uniformi uniformity, ty, system system and dispat dispatch ch in publi public c busine business; ss; does does not not affe affect ct 3rd persons; persons; not beneficial to the public

3. Relatio Relationship nship officer officer to his subordi subordinates nates •

1. Limi Limite ted d to ter territo ritory ry wher where e the law has has effect 2.

Mandatory- if for the benefit of the public public or individu individuals; als; intended intended for the protection of citizens

Actio Action n in a plac place e not cove covere red d by law law is is invalid

Power of control- power to manage, direct, direct, govern, govern, or set aside, aside, alter alter modi modify fy what what a subo subord rdin inat ate e had had done done and and to subs substit titut ute e his his own own judg judgmen ment; t; this this power power to redo redo or undo is discretionary discretionary

Power of supervisionmere oversi oversight ght;; merely merely sees sees to it that that the the rule rules s are are foll follow owed ed;; cann cannot ot prescribe the manner for doing an act Discretion- “the act or the liberty to decide according to the principles of justice and one’s ideas ideas of what what is right right and and prope properr unde underr the circumstances without willfulness or favor.” •

Duration of authority: 1. Public Public offic officer er cannot cannot exer exercis cise e authorit authority y before his term begins and after it has terminated 2. If offi office cerr was appo appoin inte ted d to perfo perforrm a single act, he becomes functus officio once he has acted on that particular subject

Limita Limitatio tion n to discre discretio tionn- must not be arbitrary, capricious, inquisitorial or oppressive. oppressive.

Construction Construction of grant of powers: Strict interpretation. Only those which are expres expressly sly imposed imposed or necessari necessarily ly implied implied will be deemed to have been granted.

If mandatory- uses the word “shall”


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25


If discretionary- uses the word “may” If duty uty is partl artly y mini iniste sterial rial and and discretionary, discretionary, mandamus will NOT lie.

partly tly

LAMB VS PHIPPS After many years of faithful service to the government, Lamb retired and accounted for all all govt. ovt. property erty and fund unds in his his possession. Auditor Phipps refused to sign his clearance because of an alleged danger of a probable suit by a creditor of the govt. Does Phipps have legal duty to sign the clearance? Yes. Lamb’s accounts are balanced. However, However, Lamb failed to exhaust exhaust the admi admini nist stra rati tive ve remed emedy y of appe appeal al to the the Governor-General. When the final decision of a question is left by law to the executive branch, the courts will not interfere until the remedy in that that branc branch h has has been been exha exhaus uste ted d or is not not always there.

APRUEBA VS GANZON Cafeteria Cafeteria owners and operator operators s filed filed suit against the mayor for his refusal to allow the opening of the cafeteria. They claim it is the mayor’s ministerial duty to allow them to opera erate a cafet afeter eriia sinc ince they they hav have no delinquency in rentals and have complied with health regulations. regulations. Mayor has discretion to renew permit to operate or not. Thus he cannot be subject to mandamus. The discretion to renew or not is part of police power.

MIGUEL VS ZULUETA Prov Provin inci cial al engi enginee neerr put put “Pres Presid iden entt Garcia Garcia Hall” Hall” on the façade façade of the provi provinci ncial al capitol instead of just in a renovated session hall therein. May he be compelled by mandamus to remove the sign? Yes. es. Bec Because ause the the law law expressly ssly prohibits the naming of public buildings after living persons. The object of mandamus is to procure observance of the law.

Mandamus- the remedy to compel action of a public official who is in unreasonable delay in exercising his clear duty imposed by law.

1. If the duty duty sough soughtt is purely purely mini ministe steri rial, al, the courts will require the public officer concerned to perform a specific action (ex. “Sign the clearance of Lamb.”) 2. If the duty duty is purel purely y disc discrretio etiona nary ry,, the the courts by mandamus will require action only (ex. “Decide now what to do with Lamb’s clearance.”)

Can discretionary powers be delegated? No. No. Becaus Because e the presu presump mptio tion n is that that the office officerr who was was grant granted ed the power was chosen chosen for for his compet competenc ence e to exer exercis cise e that that judgment. Exception: if the power power to substi substitut tute e another in his place has been granted to him.

TORRES VS RIBO The The asst, asst, distri district ct engine engineer er and chief chief clerk clerk repr represe esente nted d the distr district ict engine engineer er and divi divisi sion on supe superi rinte ntend nden entt of scho school ols s in the the provincial Board of Canvassers. This cannot be done. done. The members members of the the Boar Board d are are desi design gnat ated ed by law law. No one one outside this enumerated list can serve in the Boar Board d beca becaus use e its its powe powers rs are are not not pure purely ly ministerial.

When deleg delegati ation on allowed

is

When is it not allowed

Ministerial act

Discretionary

When there is no express prohibition

When When powe powerr to delegate is granted to the officer

When the law requi equire res s the the act to be done done by the the officer himself

When power delegate granted

no to is

When must official acts be performed? 1. Where Where the the law law stat states es no no timetime- must must be performed performed within a reasonable time 2. Where Where the the law forb forbid ids s the perfo perform rmanc ance e of the act at any other time than that providedprovided- the time is mandatory



26


3. Wher Where e the the law law prov provid ides es for for the the time time but does not prohibit doing the act at any other timetime is directory only

•

Ratification of unauthorized acts:

•

Rules1.

The state is not estopped by the unau unauth thor oriz ized ed or ille illega gall acts acts of its its agents agents.. Howeve Howeverr these these acts acts may be ratified •

•

Ratif Ratific icati ation on does does not apply apply if the act was absolutely VOID at the time it was done, i.e. the principal (state) itself could not have lawfully done the act, or it could could not have have been been lawf lawfull ully y done by anyone If the act was merely voidable, it can can be rend render ered ed vali valid d by ratification

2. Where Where super superior ior offi officer cers s have auth authori ority ty to ratify acts of their inferiors, they are restr restrict icted ed to ratifi ratificat cation ion of acts acts and contracts which such superior officers are themselves empowered to make

mandam mandamusus- if the person person will sustain personal injury by the offic officers ers’’ refus refusal al to act; or injunction- if the person will sustain sustain personal personal injury injury for which adequate compen compensat sation ion cannot cannot be had in law

Standard Standard of personal personal conduct for public public officials and employees (from the Code of Conduct and Ethical Standards) 1. 2. 3. 4. 5. 6. 7. 8.

Commit Commitmen mentt to public public inter interest est prof profes essi sion onal alis ism m Just Justne ness ss and and sin since ceri rity ty Poli Politi tica call neu neutr tral alit ity y Respo Responsi nsiven veness ess to the public public Nation Nationali alism sm and patri patrioti otism sm Comm Commit itme ment nt to to demo democr crac acy y Simp imple livi iving

Dutie Duties s of the Civil Civil Servic Service e Commi Commissi ssion on with respect to the above standards: 1.

Promote their observance by dissemin disseminating ating informa information tion program programs s and and work worksh shop ops s auth author oriz izin ing g meri meritt increases

AMERICAN TOBACCO CASE An officer can delegate the power to hear hear,, but but not not to deci decide de case cases s as the the latt latter er involv involves es the use of perso personal nal judgm judgment ent and appointment to the position has been based on his personal qualifications. qualifications. To hold otherwise would be to violate an individual’s right to procedural procedural due process.

2. Contin Continue ue resear research ch and exper experime imenta ntatio tion n on meas measur ures es that that prov provid ide e posi positi tive ve moti motiva vati tion on to publ public ic offi office cers rs and and employees employees in raising raising general level of observance of these standards

System of incentives and rewards: 1.

Judicial review of official acts:

Criteria• •

1.

where act involves exercise of discreti discretionary onary power power-- judiciar judiciary y will not interfere unless there is: • • •

arbitrary decision abuse of discretion fraud or corruption that vitiates the action taken

2. wher here act act inv involves lves perf erform ormanc ance of purely purely ministerial ministerial dutyduty- can be either either compelled or restrained by:

• • •

•

•

Years of service Qual Qualit ity y and and cons consis iste tenc ncy y of performance Obscurity of position Level of salary Unique Unique and exempl exemplary ary quality quality of achievement Risk of temptation inherent in work; and Any Any simi simila larr circ circum umst stan ance ce or consid considera eratio tion n in favor favor of the awardee



27


2. Form Forms s of ince incenti ntives ves and and rewa reward rdss• • • •

• •

Bonuses Citations Directorship in GOCC Local ocal and and fore foreig ign n scho schola lars rshi hip p grants Paid vacations Automatic promotion to next higher position suitable to his qualifications. If none is available, salary salary increase increase equivalent equivalent to the next higher position.

2. Where Where perso personal nal inter interest est is invo involve lvedd- he cannot have an adverse interest in any contract which he executes in behalf of the public Duty to make financial disclosure: Art. XI Sec. 17 Constitution- “a public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth…”

MORFE VS MUTUC Duties Duties of public public officers as trustees trustees for the public: In general, his duty does NOT include risk riskin ing g or givi giving ng up his his life life or incu incurrring ring permanent disability. However, when the need to do that becomes necessary, then the need for for him him to sacr sacrif ific ice e is incr increa ease sed d so as to preserve the peace and enforce the laws.

The The cons consti titu tuti tion onal alit ity y of the the lega legall requ requir irem emen entt on gove govern rnme ment nt offi offici cial als s and and employees employees to submit submit a sworn sworn declarati declaration on of financial financial conditions, conditions, assets, assets, and liabilit liabilities ies is questioned as being allegedly in violation of a person’s person’s right to due process, process, an oppres oppressive sive exercise of police power, unlawful invasion of right right to priv privacy acy,, unreas unreasona onable ble searc search h and seiz seizur ure, e, viol violat ates es proh prohib ibit itio ion n agai agains nstt self self-incrimination, and insults personal integrity. The The law is presu presumed med valid. valid. But let’s let’s indulge petitioner’s specific allegations:

General duties:

1.

1. Obey Obey all all law law foun found d in statu staturre book books s until until its consti constitut tution ional ality ity is judici judiciall ally y passed upon in a proper proceeding 2.

Accept and continue office when elected elected or appointed appointed.. Any attempt to resign does not relieve him of obligation to perform until a successor is appointed

3. Acce Accept pt bur burde den n of offi office ce 4. Be dili dilige gent nt,, use use reaso easona nabl ble e skil skilll and and dili dilige genc nce, e, util utiliz ize e publ public ic fund funds s and and prop proper erty ty lik like a good good fath father er of the the family 5. Make Make the best best avail availabl able e appoin appointme tments nts,, exer exerci cise se ordi ordina nary ry car care to see see that that subordinates perform their duties Ethical duties: 1. As to outs outsid ide e acti activi viti ties es-- refra efrain in from outside outside activiti activities es when they interfer interfere e with his official official duties. Congress Congress has power to ascertain what activities are inconsistent with his official duties

The aim of the law is to curtail cor corrupt ruptio ion, n, thus thus it is for for the the publ public ic good. This exercise of police power is valid

2. The stand standar ard d of due due proces process s is freed freedom om from arbitrariness. In this case, given the harsh harsh reali realitie ties s of greed greed in public public service, the law is reasonable 3.

Right ight to privacy acy is sub subject ect to sta state control in cases of public servants

4. Right Right again against st unreas unreasona onable ble sear search ch and seizure seizure is limited limited to safeguar safeguarding ding the sanctity of the home and the privacy of communication and correspondence correspondence 5. Guar Guaran ante tee e agai agains nstt self self-i -inc ncri rimi mina nati tion on requ requir ires es exis existe tenc nce e of actu actual al case cases s criminal, civil or administrative before it can be invoked 6. AS to alleg allegati ation on that that it insult insults s integr integrity ity of public officials, court cannot inquire into the wisdom of the legislation due to separation of powers

Spec Specif ific ic du duti ties es of pu publ blic ic offi offici cial als s and and employees:


“ __________________________ ______________________________________ ____________” ”

28

C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER (wala na kaming maisip na title.bahala ka na sa blank na yan) •

1. Act prom prompt ptly ly on lett letter ers s and and reque equest st-within 15 days from receipt • •

•

If the communication is within the jurisdiction of the office and is routi outine ne-- writ write e a lett letter er of acknowled acknowledgment gment saying saying it will be acted upon and specify the date ate when. hen. If not not routi outine ne,, infor inform m them them of action actions s to be taken, or require documents if necessary If outside its jurisdiction- refer the letter to the proper agency, and acknowledge the letter by means of note or letter, attach the letter of referral

2. Subm Submit it annu annual al perf perfor orma manc nce e repo report rtsswithin 45 working days from the end of the year

•

Leg Legal cons constr trai aint nts s restraining orders

such uch

as

Fault, failure failure or negligenc negligence e of the party concerned Force majeure

Who Who ma may y sign sign the the writ writte ten n acti action on or declaration of a public office? General rule: it must contain not more than 3 initials or signatures. In the absence of the duly authorized signatory: 1. If there there is only only one one offici official al next-i next-in-r n-rank ank,, he is automatically the signatory 2. If ther there e are are 2 or mor more e next-i next-in-r n-rank ank,, the head of the department shall prescribe throug through h an office office order order the order order of priority 3.

If there is no official next-in-rank present and available, the head shall desig designat nate e an offic officer er-in -in-ch -char arge ge from from among those next lower in rank

3.

Process documents expeditiously

and

papers

4.

Act immediately on personal transactions

the

public’s

Public disclosure of statements of assets and liabilities:

5. Make ake docum ocume ents nts acces ccessi sib ble to the the public

Disclosur Disclosure e includes includes those of spouses spouses and of unmarried children under 18 living in the household.

Processing of papers and documents: Processing must be within reasonable time from preparation thereof. Determination of reasonable time: 1. Whe Where the the law law pres presc cribes ibes a peri eriod, od, then it shall be followed

1. Statem Statement ent of of Assets Assets and and Liabi Liabilit lities ies and and Financial Disclosure- includes all public empl employ oyee ees s and and offi offici cial als s except cept if honorary, laborers, casual or temporary •

i.

2. Whe Where no perio eriod d is presc escrib ribed, ed, the the depa depart rtme ment nt head head shal shalll issu issue e rule rules s prescri prescribing bing what is reasonab reasonable le time, taking into account: •

•

•

ii. ii. iii. iii.

Nature, simplicity or complexity of the subject matter

iv. iv.

Completeness or inadequacy of requirements or data or information Lack Lack of resou resourc rces es caused caused by cir circums cumsta tanc nces es beyo beyond nd the the agency’s of officer’s control

Conte Con tent nts s-

v.

•

information on real prop proper erty ty and and its its fair fair market value; pers person onal al pr proper operty ty and and its acquisition cost; all all othe otherr asse assets ts suc such h as investments; fina financ ncia iall liab liabil ilit itie ies s current and long-term; all all busi usines ness inte interrest and financial connections

When Whe n to file i.

within 30 days after assumption of office;


“ __________________________ ______________________________________ ____________” ”

29


ii.

on or bef before ore Apri Aprill 30 every year thereafter; iii. within 30 days after separation from service •

Where Whe re to file -

3. Acces Accessib sibili ility ty of docume documentsntsAvaila Available ble for copying copying and reproduction at all reasonable hours Availa Available ble for copying copying and repr eproduc oducti tion on withi ithin n 10 working days after filing Any Any pers person on who who want wants s a copy shall pay reasonab reasonable le fee Availa Available ble to the public public for 10 years years after after filing. filing. After After that that,, may may be dest destrroyed oyed unless needed in an investigation 4. Prohi Prohibi bited ted actsacts- it shal shalll be unlawfu unlawfull for any any perso erson n to obta obtain in or use use any any statement filed for: •

•

i. President, VP and constituti constitutional onal official officialsswith the National Office of the Ombudsman ii. Senators and congressmen- with the secretaries of the senate and the house iii. iii. Just Justic ices es-- with with the the cler clerk k of the SC iv. Judgescourt administrator v. All All nati nation onal al execut ecutiv ive e officials such as memb member ers s of cabi cabine nett and heads of GOCC GOCCsswith with the Office Office of the President vi. Regional and local officials both appointive and elective and employees of GOCCswith the Deputy Ombudsman in their respective regions vii. ii. Officer icers s of the the Armed med Force orces s from from rank rank of colonel or naval captain- with the OP. If below below said ranks, with the Deputy Ombu Ombuds dsma man n in thei theirr respective regions viii. viii. All All other other public public offic official ials s and and empl employ oyee eess- with with the CSC •

Authority in favor of Ombudsman to obtain from all appropriate govt. agenci agencies es docume documents nts that that show assets, liabilities and business interests in previ previous ous yearsyears- all publi public c offi offici cial als s and and empl employ oyee ees s must must file file this this docu docume ment nt within 30 days from assumption of office

2. Ide Identif ntific ica atio tion

and discl isclos osur ure e of th relat elativ ives es-- up to 4 civil civil degre degree e or consanguinity or affinity

•

•

•

•

Any purpose contrary to morals or public policy; or Any commerc commercial ial purpose than by news and communica communications tions media media for dissem dissemina inatio tion n to the genera generall public

5. Revie eview w and and comp compli lian ance ce proc proced edur ures es-the the follo ollow wing ing have ave auth author orit ity y to determine the above statements have been properly properly accomplished: •

•

• •

Congressthe designated committees, subject to approval by majori majority ty vote vote of either either senate senate or house Executive dept.heads of departments, agencies, offices Judicial dept.- chief justice Consti Constituti tutiona onall Commis Commissio sions ns and OfficesOffices- their respect respective ive chairman chairman and members

Transparency of transactions and access to information: It is the the respo espons nsib ibil ilit ity y of head heads s of departments, offices and agencies to establish measur measures es that that will will ensure ensure transp transpar arenc ency y in public transactions in their respective respective offices. Ever Every y offi office ce information, except if:

shal shalll

prov provid ide e

offi offici cial al



30


1. it must must be kept kept secr secret et in the the inter interest est of of nati nation onal al defe defens nse e or secu securi rity ty or the the conduct of foreign affairs 2. disclo disclosur sure e will will put the the life life and safe safety ty of an individual in imminent danger 3. the the infor nform mati ation soug sought ht falls alls within thin esta establ blis ishe hed d priv privil ileg ege, e, i.e. i.e. cabi cabine nett sess sessio ions ns,, SC deli delibe bera rati tion ons, s, trad trade e secrets, etc. 4. information comprises drafts of decision, decision, orders, orders, rulings, rulings, memorand memoranda, a, etc. 5. infor informat mation ion is person personal, al, discl disclosu osure re will will constitute invasion of right of privacy 6. invest investig igato atory ry record records s where where disclo disclosur sure e will•

•

•

•

•

inte interf rfer ere e with with enfo enforc rcem emen entt proceedings deprive a person of right to fair trial discl isclos ose e the the identi entity ty of a confidential source unjustifiably disclose investigative techniques prematurely disclose information such as: i. cur currenci encies es,, secu securi riti ties es,, commodities, which will likely likely lead to financia financiall speculation ii. a proposed official action not yet disclosed to the the publ public ic,, wher where e disclosure may frustrate its implementation

Reforms systems:

on

public

•

•

-

-

Right to Compensation •

-

•

•

•

-

-

administrative

1. Conduc Conductt value value devel develop opmen mentt prog program rams s 2. Cond Conduc uctt prof profes essi sion onal al prog progra rams ms lik like technical trainings 3. Cond Conduc uctt stud studie ies s and and analys analyses es or work work systems 4. Deve Develo lop p and and make make avai availa labl ble e a serv servic ice e guide for the transacting public 5. Cons Consul ultt the the publi public c for feedb feedbac acks ks and suggestions 6. Conduc Conductt resear research ch and exper experime imenta ntatio tion n on innovative programs programs 7. Design Designate ate a resi residen dentt Ombud Ombudsma sman n 8. Consul Consultt and and dial dialog ogue ue with with staff staff

CHAPTER V. RIGHTS AND PRIVILEGES In General

right incident to public office conferred by Consti and law right as a citizen some must be curtailed due to the public character of employment: o not entitled entitled to same protection protection from publications (privacy) requi equire red d to refra efrain in for form cert certai ain n o political or business activity howe howeve ver, r, gove govern rnme ment nt must must show show that that restraints rationally relate to enhancement of public service

-

power of Congress to fix compensation not inherently and exclusively legislative in character may be delegated to other bodies unless Consti expressly or impliedly prohibits it admin admin boards boards may fix compensat compensation ion w/in statutory limitations and such discretionary discretionary actions is ordinarily not reviewable by the courts it is not an element of public office merely an incident of public office attaches to the office, not the officer objective: so that public officials will give due attent attentio ion n to their their duties duties & perfor perform m them better.

Forms of Compensation compensation pay for doing all that may be o required, required, whether in the form of fixed salary, per diems, commissions salary personal compensation to be paid for o his services generally, a fixed annual or periodical o payment depending on the time and not the amount of service vs. wages which are given to officers o of lower degree of employment and paid per day or week per-diem daily allowance given for each day an o officer or employee is away from the home base usuall usually y a reimb reimburs urseme ement nt for extra extra o expenses the the nome nomenc ncllatur ature e given iven is not not o controlling; controlling; will not be considered per diem if given in the nature of remun remunera eratio tion n or compen compensat sation ion for full time work o not not deem deemed ed sala salary ry in rela relati tion on to Const Constii prov provisi ision on that that no change change in


“ __________________________ ______________________________________ ____________” ”

31


-

-

•

-

-

-

•

-

-

the compen compensat sation ion of office officers rs shall shall affect the salary of any officer during his existing term honorarium o something given not as a matter of obliga obligatio tion, n, but in appr appreci eciati ation on for services rendered o voluntary voluntary donation donation in consider consideration ation for for servi ervice ces s which hich admi admitt of no compensation of money emoluments profit arising from the office o does not refer to fixed salary alone o but includes such fees and compensati compensation on as the incumbent incumbent is, by law, entitled to receive

Basis of the Right to Compensation creation of law (not contractual in nature) for services rendered but but not not for for thos those e rende endere red d unde underr o unconstitutional statute or provision provision thereof legal title to office o General Rule: one without legal title to office office either either by appoin appointme tment nt or electi election on is not entitl entitled ed to recov recover er salary amou amount nt of comp compen ensa sati tion on:: fact factor ors s of responsibilities responsibilities and qualifications deter determin mining ing factor factor:: natur nature e of an o official’s position o it is the the offic ficial’ ial’s s Grad rade that that determines his salary, not the other way around. Recovery of Compensation Compensation from the government o generally, de jure cannot recover that was has been paid to de facto unless the the gove goverrnment nment cont contin inue ues s to pay pay even after notice of adjudication adjudication in favor of the de jure in cases where there is no de jure, o even a de facto may recover compensation if: in good faith has possession of the office has discharged the duties from the de facto o after notice of adjudication in favor of de jure, the latter can recover from the de facto if tenure tenure is "wro "wrongf ngful" ul",, de jure jure can o recover o if he became de facto in GF and has rendered the services, de jure cannot recover

-

from the intruder or usurper can recover o intruder/usurper

from

the

Gen Rule (Monse (Monserr rrati ati case): case): A de facto facto officer that assumes office when there is a de jure officer assumes such office at his

Rodriguez vs. Tan One who has been proclaimed winner of an election and had assumed office but was later ousted because of an election protest was a de facto officer hence entitled to the compensation. The There re is no de jure jure offi office cerr unti untill afte afterr procl proclama amatio tion n (deci (decisio sion n on the prote protest) st).. Hence, de facto is entitled to the salary.

Monroy vs. CA Where a mayor withdrew his certificate of candidacy, he does not resume his post as mayor. Therefore he cannot be entitled to the compensation attached to said office. Mayor was ordered to reimburse the vicemayor. •

-

-

-

Salary not subject to Compensation Salary Salary of a public public officer/ officer/empl employee oyee may not, by garnishment, attachment, or order of execution, be seized before being paid to him and appropriated for payment of his debts. Why? o while while the money is still still with the disbursi disbursing ng officer, officer, it's still public funds o public policy - will be fatal to public service o tantam tantamoun ountt to a suit suit again against st the government Garnishment: a species of attachment for reaching credits belonging to the judgment debtor owing to him from a stranger to a litigation. De la Victoria v Burgos The The salary salary check check of a gover governme nment nt official does not belong to him before it is physically delivered to him. Until that time, the checks belong to the



32


gover governme nment. nt. Accor Accordi dingl ngly, y, befor before e there is actual delivery of the check, the payee has no power over it. Thus, he cann cannot ot assi assign gn it with withou outt the the consent of the government. Rationale: the functions and services of the state cannot be allowed to be para paraly lyze zed d by or disr disrup upte ted d by the the diversio diversion n of public public funds from their legiti legitimat mate e and speci specific fic object objects s as appropriated by law.

-

-

-

-

De la Victoria v Burgos: even if salary is not in cash, the doctrine still applies. What matters is the fact of delivery. In case of ATM’s, the point when the bank credited the money to the employee’s account is determinative at whic which h poin pointt publ public ic •

-

-

-

Agreements Affecting Compensation Compensation invali invalid d as agains againstt publi public c polic policy y wher where e it tends to pervert such compensation to a pur purpose othe otherr than than for whic hich it was intended and to interfere with the officer's free and unbiased judgment in relation to the dirties of his office. The following have reference to unperformed services: o Agreement to accept, or acceptance of less or other than legal compensation-illegal, compensation-illegal, whether made in good faith or not Sale, assignment, or barter of salaryo prohibited as against public policy. Dividing Dividing compensati compensation on with othersotherso invalid if it amounts to an anti antici cipa pato tory ry assi assign gnme ment nt of the the emoluments emoluments of office; office; public public policy policy forbi forbids ds assign assignmen ments ts of salari salaries es or fees fees befor before e they they are are earned earned.. Such Such bargains create no legal obligation. Effects: can recover salary notwithstanding accept acceptanc ance e of lesser lesser compen compensat sation ion and that he is party to an illegal contract. The moment the salary becomes private property property,, the public public official official/empl /employee oyee is free to contract.

•

-

Proh Prohib ibit itio ion n Agai Agains nstt Dimi Diminu nuti tion on of Salary Congress has absolute power to fix or alter the compensation of public officers, except as provided by the Constitution.

•

-

-

•

-

-

The Constituti Constitution on prohibi prohibits ts Congres Congress s from from reducing the salary of certain constitutional offi office cers rs duri during ng thei theirr term term or tenu tenurre to secure their independence: President and Vice President (Art VI, Sec.6) Chie Chieff Just Justic ice, e, Asso Associ ciat ate e Just Justic ices es of the the Supreme Court, and judges of lower courts (Art VIII, Sec. 10) Chairmen and members of the Constitutional Commissions (Art. IX-A, Sec. 3) Ombudsman and his Deputies (Art. XI, Sec. 10 and Art. VI, Sec. 10) Cong Congre ress ss may may incr increa ease se the the sala salari ries es of Senators Senators and congress congressmen men but such will not take effect until after the expiration of the full term of the members of Congress approving such increase.

Prohibition Against Rece eceiving Additional, Double, or Indirect Compensation Const Consti, i, Art. Art. IX-B IX-B,, Sec. Sec. 8: No electi elective ve or appointive public officer or employee shall recei eceive ve addi additi tion onal al,, doub double le,, or indi indirrect ect compen mpens sati ation, on, unl unless ess specif ecifiicall cally y authorized by law, nor accept without the conse consent nt of the Cong Congre ress ss,, any any pres presen ent, t, emolument, office, or title of any kind from any foreign government. Pens Pensio ions ns or grat gratui uiti ties es shal shalll not not be consid consider ered ed as additi additiona onal, l, doubl double, e, or indirect compensation. The prohibition does not apply in the ff. cases: o Payment is specifically authorized by Jaw in individual instances where it appears just and necessary. Additional Additional compensation is received o not from govern governmen mentt or any of its entities. Double Double Appointm Appointments: ents: Where Where there there o are two distinct distinct offices, offices, but officer officer may draw the salary attached to the 2nd position only when he is specifically authorized by law.

Free Voluntary Service to the Government Refers to services rendered by persons who are in government without pay or compensation. Requirements: o Issuance of an appropriate document; Fitness and suitability for the duties o and responsibilities of the particular position; and



33


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Compliance nepotism.

with

the

rule

on

Functions or Services that Volunteers can Perform o Advisor Advisory, y, consultanc consultancy/co y/counsel unseling, ing, reco recomm mmen enda dato tory ry,, prof profes essi sion onal al services, services, staff staff work i.e resear research, ch, and humanitarian

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Applicable laws and rules-RA6713 Code of Conduct Conduct and Ethical Ethical Standard Standards s for Public Public Officials and Employees and Implementing Rules

-

Exemptions of volunteers o fili filing ng of state tateme ment nts s of ass assets ets, liab liabiiliti lities es,, and and net net worth orth,, and and financial disclosures disclosures o requirement requirement on divestment eligibility requirements o o security of tenure

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Prohibitions o Exercising supervisory functions over personnel; Exer Exerci cisi sing ng func functi tion ons s or posi positi tion ons s o involving national security; Access Access to confident confidential ial or classifi classified ed o information unless authorized by the proper authorities; Occupying regular plantilla positions; o Havi Having ng such such serv servic ices es cred credit ited ed as o gove goverrnmen nmentt serv servic ice e and and avai availi ling ng themselves of retirement benefits; Using facilities and resources of the o office for partisan political purposes; Receiving any pecuniary benefit (i.e., o hono honora rari ria, a, allo allowa wanc nces es,, & othe otherr perquisites) perquisites) in office.

o

-

The The righ rightt to prot protec ecti tion on of temp tempor orar ary y employees o give given n such such prot protec ecti tion on as may may be established by law [Art. IX-B, sec. 2 (6)]1. they do not enjoy security of tenure o but the provis provision ion cited above above aims that that they they would would be prote protecte cted d from from indisc indiscrim rimina inate te dismi dismissa ssals ls and that that their their separ separati ation on or repla replacem cement ent is made only for justifiable reasons.

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Freedo reedom m of membe members rs of Congr Congress ess from from arrest and from being questioned Consti, Art VI, Sec.11: A Senator or o Member of the House of Representatives shall, in all offenses puni punish shab able le by not not more more than than six six years years impri imprison sonmen ment, t, be privi privileg leged ed from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

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Rights Under the Constitution Constitution The right to self-organization self-organization incl includ udes es the the righ rightt to for form labo laborr o organizations or unions and the right to collectiv collective e negotiati negotiation on (Congres (Congress s has yet to define this concept and provide a mechanism to carry out the constitutional intent). excludes the right to bargain o collectiv collectively ely with the governm government ent or to engage in concerted activities, i.e., rig right to stri trike sinc since e ter terms and and conditions of government employment are fixed by law.

The right not to be removed or suspended except for cause provided by law o implicit is the existence of a charge, due hearing, and finding of guilt by the proper authority.

People v Jalosjos Jal Jalo osjos sjos ask asked that that he be fully ully allowed allowed to fully fully discharg discharge e duties duties as congres congressman sman despite despite his convictio conviction n as on a non-baila non-bailable ble offense. offense. Court Court held held that that gover governme nment nt offic official ials s are are subject subject to law. law. The performance performance of legitimate and even essential duties has never been an excuse to free a pers person on from from pris prison on.. His His righ rightt to discharge his functions is suspended for a cause provided by law – conviction of a crime.

Other Rights •

Mass actions actions done outside outside of gov’t office hours hours may be allowed and not deemed deemed prohibited prohibited so long as such would not result in disruption of work.

Rights under the Civil Service Decree and the Administrative Code

-

The right to preference preference in promotion: The Next-in-Rank Rule

1

Temporary employees of the Government shall be given such protection as may be provided by law.



34


o

o

If the vaca acancy is not filled by prom promot otio ion, n, it shal shalll be fill filled ed by: by: transfer, reinstatement, reemployment, reemployment, appointment. Qualified next-in-rank employee can appeal to the secretaries or heads of agen agenci cies es incl includ udin ing g GOCC GOCCs s with ith original charters  MSPB  CSC CA  SC within 30 days from receipt of decision by the aggrieved party Qualif Qualified ied nextnext-inin-ran rank k refer refers s to an employee appointed on a permanent basi asis to a positi sitio on previ evious ously determined to be next-in-rank to the vacanc vacancy y suppos supposed ed to be filled filled and who meets the requisites for appointment as previously deter eterm mined ined by the the app appointi inting ng auth author orit ity y and and app approved ved by the the Commission.

o

o

Applies Applies only in cases of promoti promotion; on; neit neithe herr gran grants ts a vest vested ed righ rightt nor nor imposes a ministerial duty. One who is next-in-rank is given only preferential consideration.

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Reason for rule Assumption is employee has gained o not not only only supe superi rior or skil skills ls,, but but also also grea greate terr dedi dedica cati tion on to the publ public ic service.

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Discretion Discretion of appointing authority o Appointing authority is given discretion to fill the vacancy among several alternatives: promotion, transfer, reemployment, appointment.

Meram vs Edralin

The law merely gives the right to be considered. One should not expect automatic promotion as the appointing authority will still exercise his discretion.

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The The righ rightt to pres presen entt comp compla lain ints ts and and grievances incl includ udes es the the righ rightt to have have them them o adjudicat adjudicated ed expedit expeditiousl iously, y, resolved resolved at the the lowe lowest st poss possib ible le leve levell and and appeal to higher authorities. The right not to be suspended or dismissed except for cause as provided by law and after due process The right to organize o Government employees shall not be discrimi discriminated nated against against in respect respect of their employment by reason of their membership and participation in the normal activities of their organizations. o Gove Goverrnmen nmentt inte interf rfer eren ence ce in the the esta estab blishme shment nt,, funct unctiioni oning, ng, or admi admini nist strratio ation n of gover vernmen nmentt employ employees ees organ organiza izatio tions ns throug through h acts designed to place such organ organiza izatio tions ns under under the contr control ol of government authority.

Next-In-Rank Rule Not a mandatory requirement requirement

The The appoi appointee ntee is nine nine or ten salary salary ranges ranges below elow the the nex next-i t-in-r n-rank person rsonne nell. Her Her appo ppointme ntmen nt was was based sed on err erroneo neous cons onsider iderat atiions ons (blo (blood od tie ties, influ nfluen ence ce,, ethnic/regional affiliations). Under Civil Service Law, Law, appoin appointme tment nt should should be based based on merit merit and fitness and should never depend on how intima intimate te a friend friend or how close closely ly relat related ed an appointee is to the powers that be. Thus, the next-in-rank deserved to be appointed to the vacated position. •

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Personnel Actions Accord According ing to the Civil Civil Service Service Decree, it deno denote tes s the the move moveme ment nt or prog progre ress ss of personnel in the civil service. They must be in accordance with the rules, stan standa dard rds, s, and and regul egulat atio ions ns as may may be promulgated promulgated by the Commission.

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Appointment Appointment through Certification o Issu Issued ed to a pers person on from from a list list of qualified persons certified by the CSC from from an appr approp opri riat ate e regis egiste terr of eligible eligibles s (i.e. (i.e. those those who passed the competitive exams) and who meets all all the the other other requ requir irem emen ents ts of the the position.

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Promotion Move Moveme ment nt fro from one one posi positi tion on to o anothe anotherr with with an incre increase ase in duties duties and responsibilities and accompanied by an increase in salary. o Factors actors consid consider ered: ed: perfo perform rmanc ance, e, training, ng, educa ucation, fitness, personality, potential



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Transfer Move Moveme ment nt from from one one posi positi tion on to o another which is of equivalent rank, leve level, l, or sala salary ry with withou outt brea break k in service involving the issuance of an appointment o An empl employ oyee ee may may appe appeal al to the the Commission if he believes that there is no justification for his transfer. Movement from non-career service to o the the caree areerr ser service ice shal hall not be considered a transfer. A temporary temporary transfer is permiss permissible ible o even even withou withoutt the employ employee' ee's s prior prior consent except when it is made as a prior step to his removal or is used as a scheme to lure him away from his permanent position or is designed to indir indirect ectly ly termin terminate ate his servic service e or force his resignation.

substa substanti ntial al change change in title, title, rank rank and sala salary ry(( look look into into the the 'nat 'natur ure e of the the appointment) 2. a tran transf sfer er carri carried ed out under under a spec specif ific ic statute that empowers the head of an agency agency to period periodic icall ally y reass reassign ign the empl employ oyee ees s and and offi office cers rs in orde orderr to improve the service of the energy 3. tran transf sfer er or reas reassi sign gnme ment nt of an offic officer er pend pendin ing g the the dete deterrmina minati tion on of an administrative charge against him; 4. the the trans transfe ferr of an emplo employe yee e from from his alle allege ged d stat statio ion n to the the main main offi office ce,, effe effect cted ed in good ood fait faith h and in the the interest of the service pursuant to Sec. 32 of the Civil Service Act. -

Reinstatement Any person who has been o permanently appointed to a position in the career service and who has, through no delinquency or misconduct uct, been separated there therefr from, om, may be reins reinstat tated ed to a position in the same level for which he is qualified.

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Reemployment o Appl Applie ies s to thos those e who who have have been been permanen permanently tly appointed appointed to positions positions in the career service and who have been separated as a result of reduction in force and of reorganization.

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Detail o Movement of an employee from one depar departme tment nt or agenc agency y to anothe anotherr without the issuance of an appo appoin intm tmen ent; t; shal shalll only only be for for a limited period in the case of employees employees occupying occupying profess professional ional,, technical, and scientific positions. Employee may appeal to CSC if he o believes detail is without justification; pendi pending ng appeal appeal,, decisi decision on shall shall be executo executory ry unless unless otherwise otherwise ordere ordered d by the Commission.

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Reassignment Movement Movement from from one organiza organizationa tionall o unit to another in the same department which does not involve a reductio reduction n in rank, rank, status, status, or salary, salary, other herwise it is tantamount to construct constructive ive removal removal in violation violation of his right to security of tenure.

Vinzons-Chato v Natividad BIR organ organiza izatio tion n was stream streamlin lined. ed. Blas was transferred from Cagayan to Pampanga. His transfer did not entail any diminution in rank, salary, status and responsibilities. His transfer was part of of a na n ationwide reshuffle reshuffle/rea /reassig ssignment nment.. To sustain sustain that his transfer constitutes demotion because it was not to his liking would subordinate gov’t projects to individual preferences of civil service employees. This negates the principle that public office is a public trust trust and that that it is not the priv private ate preserve of any person.

Divinagracia vs Sto. Tomas A tra transf nsfer that that resul esults ts in promoti motio on or demo demoti tion on,, adva advanc ncem emen entt or reduc educti tion on or a transfer that aims to 'lure the employee away from his permanent position,' cannot be done with withou outt the the empl employ oyee ees' s' cons consen ent. t. For that that would, constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the the posi positi tion on held held,, and and then then appo appoin inte ted d to another position. EXCEPTIONS (TO THE RULE THAT UNCO UN CONS NSEN ENTE TED D TRAN TRANSF SFER ER AMOU AMOUNT NTS S TO REMOVAL): 1. Where the appointment does not indicate a specific station, an employee may may be tra transf nsferr erred or assi assig gned ned provide vided d the the tra transf nsfer affe affect cts s no



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(wala na kaming maisip na title.bahala ka na sa blank na yan) •

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Rights under the Revised Government Service Insurance Act

o

Covered: o All All gove govern rnme ment nt empl employ oyee ees s upon upon assump assumptio tion n to offic office e pursua pursuant nt to a valid valid appoin appointme tment nt or electi election on and oath of office o Barangay Barangay and Sanggunia Sanggunian n Official Officials s who receive basic pay Elective Officials during their term o

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Excluded: Uniformed members of the AFP and o the PNP and those not receiving basic pay or salary All covered employees mandated to o pay contributions except members of the Judiciar Judiciary y and the Constitut Constitutional ional Commissioners. Benefits: o Retirement Separation o o Unem Unemp ploy loyment ment Separation Disability o Survivorship o Funeral o o Life Insurance

or

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Gratuity Donation; an act of pure liberality on o the part of the State o Benefits Benefits accruing accruing under GSIS GSIS policy policy are not gratuities; they are contr ntractu actual al obliga ligati tio ons of the the gover governme nment. nt. The insur insured ed pays pays for for said said poli policy cy by mean means s of requ requir ired ed salary deductions. o Vacation acation leave, leave, sick leave, leave of abse absenc nce e with with pay pay: thes these e are are not not gratuities, either. These are forms of compensation for services rendered.

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Pension More than an act of generosity; it is o an act of justice emanating from the desir desire e to prov provide ide,, though though tardil tardily, y, adequate compensation for services already rendered for which one had not received complete and adequate rewar reward d at the time time when when servic services es were rendered. o Benefits accruing under a government service insurance policy are are not gratu gratuiti ities es but contra contractu ctual al obligations of the government.

Retirement paid paid to memb member er w/ at leas leastt 15 yrs yrs of service at least 60yrs old not receiving monthly pension benefit from permanent total disability

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Pension Defined Regular allowances paid to an individual or group of individuals by the government in considera consideration tion of services services rendered, rendered, or in recognition of merit, civil or military. Nature and Purpose of Pension Not Not a grat gratui uity ty,, but but a form form of defe deferrred red compensation for services performed. performed. Right Right commences commences upon retire retirement ment o and becomes an enforceable obligation in court. Parta Partake kes s of retai retained ned wages wages for a doubl double e purpose:

Pension and Gratuity Distinguished

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Inv Involunt lunta ary

Rabor abor Case Case:: (ove (overt rtur urne ned d Cena Cena case case)) employees who have reached the compulsory age of retirement (60yrs) but has less than 15 yrs of service is given 1 year extension extension to complete complete the requir required ed 15yrs. 15yrs. This 1 year year limit limit on exten extensio sion n is

To To entice entice or encourage encourage faithful and compe competen tentt employ employees ees to enter enter or remain in the service. To allow llow emp employee oyees s who hav have become become incapaci incapacitated tated by illness illness or accident to continue discharging his duties to retire from the service with a relative financial security, allowing young younger er and more more vigor vigorous ous persons to take their place.

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Construction Construction of Retirement Laws General Rule: Retirement laws or statutes creating o pensions, being remedial in char haracte acterr, sho should uld be libe iberal rally construed and applied in favor of the persons intended to be benefited by them. All doubts as to the intent of the law o should should be resol resolved ved in favor favor of the retiree. Note Note:: SC, SC, in the the inte intere rest st of libe libera rall cons constr truc ucti tion on,, allo allows ws seem seemin ing g exce except ptio ions ns to fixe fixed d reti retirremen ementt rules, rules, provi provided ded there there are are ample ample reaso easons ns behi behind nd each each gran grantt of exception. Exception:



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The doctrine of liberal construction of retir retireme ement nt laws laws cannot cannot be applie applied d where the clear intent of the applicable law and rules are demons demonstra trably bly again against st the retir retiree' ee's s claim.

Tantuico v Domingo Regardless of petitioner’s monetary liability to the gov’t gov’t that that may be disco discover vered ed from from the audit audit concer concernin ning g his accoun accountab tabili ility ty as CO COA A chairman, chairman, his retirem retirement ent benefits benefits cannot be withheld under retirement law. Pension is a bounty flowing from the graciousness of the gov’t intended to reward past past serv servic ices es and and prov provid ide e pens pensio ione nerr with with means to support himself and family. If such gratuity could not be attached or levied upon upon execu executio tion, n, the appro appropri priati ation on of it by administrative action would lead to the same prohibited result.

Santiago v. COA Retir Retireme ement nt laws laws should should be interp interpre reted ted libera liberally lly in favor favor of the retir retiree ee becaus because e thei theirr inte intent ntio ion n is to provide ide for his his sustenance, sustenance, and hopefull hopefully, y, even comfort, comfort, when when he no long longer er has has the the stam stamin ina a to continue earning his livelihood. After devoting the best years of his life to public service, he deserves the apprecia appreciation tion of a grateful grateful government government as best concretely concretely expressed expressed in a generous generous retirement gratuity commensurate with the value and length of his services. . . He shou should ld be able able to luxu luxuri riat ate e in the the thought that he did his task well, and was rewarded for it.

Allarde v. COA The provisions of Sec. 3, PD No. 1438 are clear clear.. . .inasm .inasmuch uch as the law limits limits the comp comput utat atio ion n of the the lump lump sum sum to 'the 'the highes highestt monthl monthly y salary salary plus plus the highes highestt monthly aggregate of transportation, living and representation allowances. allowances. . .' It is understood that other allowances are excl exclud uded ed.. Incl Inclus usio io uniu unius s est est excl exclus usio io alterius. Note: SC says honorarium is therefore not included in the computation of retirement benefits.

GSIS v. CSC

No deductions were made from the salaries of the the Viceice-Go Gove vern rnor or duri during ng a shor shortt inter interre regnu gnum m befor before e and after after which which she had been been recei receivin ving g a fixe fixed d salary salary. She neverthele nevertheless ss wants to avail avail of retirem retirement ent benefits benefits during during said interreg interregnum num despite despite having failed to make contributions to the GSIS. SC says that since (1) basis for retirement benefits is service to the government, (2) contr contract act betwee between n GSIS GSIS and gover governme nment nt empl mploye oyee is vir virtual tually ly a contr ontrac actt of adhes adhesio ion, n, (3) (3) sour source ce of GSIS GSIS is soci social al legislation, then the situation in this case can be rectified by allowing petitioner to avail of the retirement benefits and simply deducting a reasonable amount corres correspond ponding ing to the contribut contributions ions which which should should have have been been deduct deducted ed during during the interregnum.

Conte v. COA Benefits provided under SSS Resolution No. 56 are NOT considered simply as financial assistance for retiring employees but as a supplementary retirement plan proscribed proscribed by RA No. 4968. Said RA bars the creation of any insurance or retirement plan — other than the GSIS – for government officers and employees, in order to prevent the undue and iniquitous proliferation proliferation of such plans. It is simply beyond dispute that the SSS had no authority to maintain and implement such retirement plan, part partic icul ular arly ly in the the face face of stat statut utor ory y prohi prohibit bition ion;; SSS SSS cannot cannot,, in the guise guise of rule-m rule-maki aking, ng, legisl legislate ate or amend amend laws laws or worse, render them nugatory.

Brion v. South Philippine Union Mission of the Seventh Day Adventist Church The conditions for eligibility for retirement must be met only at the time or retirement; these conditions conditions are not continuing continuing ones which which must must be compl complied ied with even even after after one has retired. SDA no longer longer exerc exercises ises control over the employee's conduct because his employ employmen mentt has alread already y been been deemed deemed terminated. As SDA chose not to include in its General Confere Conference nce Working orking Policy Policy an analogous analogous provision limiting/prohibiting a



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retir etiree ee/p /pen ensi sion oner er from from enga engagi ging ng in competitive business; it cannot, for its lack of foresi foresight ght,, now seek seek to extri extricat cate e itself itself fro from a mess messy y situa ituati tion on thr throug ough the the assistance of the Court. •

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Right to Reimbursement and Indemnity. Right of public officer to reimbursement reimbursement for legitimat legitimate e charges charges incurred incurred on the public public acco accoun untt and and (1) (1) not not cove coverred by publ public ic offi office cer' r's s sala salary ry or comm commis issi sion on,, (2) (2) not not attributable to his own neglect or default. Right of public officer to be indemnified by public public for conseq consequen uences ces of acts acts he was was expressly or impliedly required to perform upon the public account. Righ Rightt to Salary

Rein Reinst stat atem emen entt

and and

Back Back

Reinstatement Resto Restorat ratio ion n to a state state or condit condition ion o from which one had been removed or separated. One who is reinstated assumes the o position he had occupied prior to the dismissal. Backwages A form form of relie elieff that that rest restor ores es the the o income income that was lost by reaso reason n of unlawful dismissal. Wher Where e remo remova vall or susp suspen ensi sion on was was lawf lawful ul,, offi office cerr is not not enti entitl tled ed to compensation for the period during whic which h he was was so susp suspen ende ded d or separated, in accordance with the principle of "as he works, he shall earn". Wher Where e remo remova vall or susp suspen ensi sion on was was unlawf unlawful, ul, office officerr can recov recover er the full full amount amount of his unpaid unpaid salary salary notwit notwithst hstand anding ing that that during during said said period of his removal or suspension, the salary was paid to another appointee.

speak eaking ing, his his posit ositiion nev never became vacant and he is consider considered ed as not having left the office. Duty of plaintiff seeking reinstatement is to prove his right to the office when he was dispossessed ther theref efro rom. m. Ille Illega gall lly y dism dismis isse sed d empl employ oyee ee/o /off ffic icia iall is enti entitl tled ed to reinstat reinstatement ement and the rights rights and privileges accruing by virtue of said office. If reinstatement is no longer feasible or cannot be enforced, he should be entitled to a comparable posi positi tion on,, if feas feasib ible le;; he is also also entitled to back salaries Public officer/employee has the duty to act with with reaso reasonab nable le dilig diligenc ence e in asserting his right to reinstatement. Pardon Pardon does not ipso facto facto restor restore e a convicted felon to public office. If he wants to regain his former post, he must re-apply and undergo the usual procedure procedure required required for new appointment.

Tan Jr v OP Tan was exonerated and reinstatement was order ordered. ed. OP howeve howeverr did did not make make any award for back salaries. Based on principle “no work, no pay”. SC held(citing Cristobal v Melchor) that when a gov’ gov’tt offi offici cial al or empl employ oyee ee/o /offfici ficial al in the the clas classi sifi fied ed civi civill serv servic ice e has has been been ille illega gall lly y dismi dismisse ssed d and his reins reinstat tateme ement nt has been been ordered, ordered, for all legal purposes, he is considered considered as not not havi having ng lef left his his offi office ce so that that he is entitled to all rights and privileges that accrue to him by virtue of the office that he held. Back salaries is limited to 5 years.

Gloria v CA Right to back salaries: Two situations

Where Where suspen suspende ded d employ employee ee is later later found innocent, backwages may be allo allowe wed d for for the the peri period od when when an employee was not allowed to work without his fault.

A. For preven eventi tive ve susp uspensi nsion pend ending ing investigation even if employee is exonerated – No! because because of princi principl ple e of “NO WORK NO PAY!!!!”

Where Where anothe anotherr was appoin appointed ted to the position position of the illegall illegally y dismissed dismissed or susp uspend ended emp employee oyee,, the the aggrieved employee is entitled to backwages because legally

MECHEM MECHEM:: An offic officer er who has lawful lawfully ly been been suspen suspended ded from from his office office is not entitl entitled ed to compensation for the period during which he was suspended even though it be subsequently determined that the cause for which he was



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suspended was insufficient. The reason is that sala salary ry and and per perquis quisit ites es are are the the rewa reward rd of expr express ess or implie implied d servi services ces and there therefor fore e cannot belong to one who could not lawfully perform such services. B. For preventive suspension pending appeal if employee is exonerated – yes! because he is penal enaliized zed even even befor efore e his his sente entenc nce e is confirmed

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PAGCOR v Salas It is already a settled rule that backwages may be granted to those who have been ille illega gall lly y dism dismis isse sed d and and cons conseq eque uent ntly ly ordered reinstated, or to those acquitted of the the char harge aga agains inst them them.. Howev owever er,, backwages cannot exceed five years.

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Suspension (as disciplinary measure) -

Lawful

Unlawful -

No reins reinstat tateme ement nt reinstatement No backwages backwages

Entitl Entitled ed

to and

if indispensable in the proper conduct of the office, the records belong to the public if not not requi equirred by taw taw and and are are o prepared by the officer apart from his offi offici cial al duti duties es,, and and they they are are not not indispensable in the proper conduct of the the offi office ce,, offi office cerr acqu acquir ires es a property right. Same rules apply with respect to inve invent ntio ions ns.. What Whatev ever er inve invent ntio ion n publ public ic employ employee ee concei conceives ves and perfec perfects ts is his individual property unless: he mere merely ly prod produc uced ed what what he was was o employed to invent o he was was otherw otherwise ise employ employed ed to use his inventive faculties. o

Right to Recover Reward for Performance of Duty General Rule: A public officer will not be permitted o to recover a reward offered by the public for the performance of an act which was part of his official duty. Exception: Wher Where e law law expr expres essl sly y auth author oriz izes es o recovery. Reason: o Unethical to be rewarded for dirties for for whic which h you you have have alre alread ady y been been compensated.

if anot anothe herr pers person on appo appoin inte ted d to your your position? If you win case, oust that person! Position never became vacant. If offic fice is abo abolish lishe ed? comparable position.

Reins einsta tate te

to

May one waive his right to renstatement? Yes!

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Righ Rightt to Prope roperrty, ty, Devi evices ces, and Inventions Title to public office carries with it the right to the insignia and property thereof. Refer to the facts of the case in settling the questi question on of whethe whetherr or not recor records ds,, etc belong to the public.



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Source of Prohibition Under the Constitution

Officers Covered President

Chapter 6 Table When the prohibition apply During their tenure

Disabilities and Inhibitions Shall not hold any other office or employment unles unless s Consti Consti provi provides des otherwise shal shalll not not profession

prac practi tice ce

any any

othe otherr

shall shall not participate participate,, directly directly or indirectly in any business shall not be financially interested, dire direct ctly ly or indi indire rect ctly ly,, in any any contract with, or in any franchise or specia speciall privil privilege ege grnate grnated d by the government or any subdivision, agency or instrumentality thereof including any gov govern ernment ent owned ned or contr controll olled ed corpo corporat ration ion or their their subsidiaries shall shall strict strictly ly avoid avoid confli conflict ct of interest interest in the conduct conduct of their office *** canno cannott appoin appointt his spouse spouse and relatives by consanguinity or affinity within the 4th civil degree to certain positions Consti Article 6, section 13 cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution


“ ______________________________________” C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER

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Vice President

During their tenure

-- same as President except ***-cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Members of the Cabinet and their deputies and assistants

During their tenure


Senator or Member of the House of Representative

During his term if he violates violates provisio provision, n, he may forfeit seat member of Congress shall not be eligible for appo appoin intm tmen entt to such such office office even if he resigns or loses loses his seat seat before before the end of his term

Cannot hold any other office or employment in the Government, or any subdiv subdivisi ision on,, agency agency,, or instrumentality thereof, including GO/CC or their subsidiaries Cann Cannot ot pers person onal ally ly appe appear ar as coun counse sell befo before re any any cour courtt of justi justice ce or befor before e the Electo Electoral ral

“ ______________________________________”

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Vice President

During their tenure


Members of the Cabinet and their deputies and assistants

During their tenure


Senator or Member of the House of Representative

During his term if he violates violates provisio provision, n, he may forfeit seat member of Congress shall not be eligible for appo appoin intm tmen entt to such such office office even if he resigns or loses loses his seat seat before before the end of his term

Cannot hold any other office or employment in the Government, or any subdiv subdivisi ision on,, agency agency,, or instrumentality thereof, including GO/CC or their subsidiaries Cann Cannot ot pers person onal ally ly appe appear ar as coun counse sell befo before re any any cour courtt of justi justice ce or befor before e the Electo Electoral ral Tribun Tribunals, als, or quasi-jud quasi-judicial icial and other administrative bodies Shall not directly or indirectly, be inte intere rest sted ed fina financ ncia ially lly in any any contract with, or in any franchise or specia speciall privil privilege ege grante granted d by the Government, or any subdivision, agency, or instrumentality thereof, including any GO/CC or its subsidiary.


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financ financial ial inter interest est:: that that which which involves involves financial financial invest investme ment nt or busine business ss out of which a member of Cong Congre ress ss is to deri derive ve profit or gain

Shall not intervene in any matter before any office of the Gover Governme nment nt for his pecuni pecuniary ary bene benefi fitt or wher where e he may may be called upon to act on account of his office Cannot hold incompatible offices -

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any kind kind of offic ffice e or employment in the govt. xxx any other office of emplo employm yment ent:: includ includes es any position position in the govt outside Congress, inc includ luding ing ex-0ff -0ffic icio io membersh membership ip of any noncong congre ress ssio iona nall body body,, committee or commission in any guise whatsoever,

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financ financial ial inter interest est:: that that which which involves involves financial financial invest investme ment nt or busine business ss out of which a member of Cong Congre ress ss is to deri derive ve profit or gain

Shall not intervene in any matter before any office of the Gover Governme nment nt for his pecuni pecuniary ary bene benefi fitt or wher where e he may may be called upon to act on account of his office Cannot hold incompatible offices -

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any kind kind of offic ffice e or employment in the govt. xxx any other office of emplo employm yment ent:: includ includes es any position position in the govt outside Congress, inc includ luding ing ex-0ff -0ffic icio io membersh membership ip of any noncong congre ress ssio iona nall body body,, committee or commission in any guise whatsoever, unles unless s the 2 nd office office of employment employment is connected with or in aid of legislative duties note: note: may hold another another office by the automati automatically cally forfeits forfeits his elective office

Cannot hold forbidden offices Cannot Cannot be appointed appointed to -



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any any offi office ce whic which h may may have been created or the emol emolum umen ents ts ther thereo eof f increased during the term for which he was elected cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution Memb Members ers of the Consti Constitut tution ional al Commission

During During their their conti continua nuance nce in office office

Cannot Cannot hold hold any other office office of employment Cannot engage in the practice of any any profe professi ssion on or in the active active manag manageme ement nt or contro controll of any business which in anyway may be affected affected by the functions functions of his office Cannot be financially i nterested, dire direct ctly ly or indi indire rect ctly ly,, in any any contract with, or in any franchise or priv privil ileg ege e gran grante ted d by the the Government, any of its subd subdiv ivis isio ions ns,, agen agenci cies es,, or in alit alitie ie incl includ udin in


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any any offi office ce whic which h may may have been created or the emol emolum umen ents ts ther thereo eof f increased during the term for which he was elected cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution Memb Members ers of the Consti Constitut tution ional al Commission

During During their their conti continua nuance nce in office office

Cannot Cannot hold hold any other office office of employment Cannot engage in the practice of any any profe professi ssion on or in the active active manag manageme ement nt or contro controll of any business which in anyway may be affected affected by the functions functions of his office Cannot be financially i nterested, dire direct ctly ly or indi indire rect ctly ly,, in any any contract with, or in any franchise or priv privil ileg ege e gran grante ted d by the the Government, any of its subd subdiv ivis isio ions ns,, agen agenci cies es,, or inst instru rume ment ntal alit itie ies, s, incl includ udin ing g GO/CC or their subsidiaries cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution



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Members Members of the Supreme Supreme Court and other courts

Cann Cannot ot be desi design gnat ated ed to any any agency performing quasi-judicial or administrative functions cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Officer Officer or employee employee in the civil service Any elective official

During their tenure

Cann Cannot ot enga engage ge,, dire direct ctly ly or indirectly indirectly,, in any electionee electioneering ring or partisan political campaign Not eligible fo f or ap a ppointment or or design designati ation on in any capaci capacity ty to any public office or position Elective publi c offi ce cer or employee: cannot accept without the consen consentt of Congre Congress, ss, any present, present, emolumen emolument, t, office, office, or title of any kind from any foreign government Elective publi c offi ce cer or employ loyee: ee: cann cannot ot receiv ceive e addit addition ional, al, double double or indire indirect ct compensation

“ ______________________________________”

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Members Members of the Supreme Supreme Court and other courts

Cann Cannot ot be desi design gnat ated ed to any any agency performing quasi-judicial or administrative functions cannot, cannot, directly directly or indirectly indirectly,be ,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Officer Officer or employee employee in the civil service Any elective official

During their tenure

Cann Cannot ot enga engage ge,, dire direct ctly ly or indirectly indirectly,, in any electionee electioneering ring or partisan political campaign Not eligible fo f or ap a ppointment or or design designati ation on in any capaci capacity ty to any public office or position Elective publi c offi ce cer or employee: cannot accept without the consen consentt of Congre Congress, ss, any present, present, emolumen emolument, t, office, office, or title of any kind from any foreign government

Any appointive official

Elective publi c offi ce cer or employ loyee: ee: cann cannot ot receiv ceive e addit addition ional, al, double double or indire indirect ct compensation unl es ess specificall y authorized by law pensions or gratuities not contemplated by law Cannot hold any other office or employm employment ent in the Governme Government nt or any subdiv subdivisi ision on,, agency agency or instrumentality thereof, including GO/C GO/CC C corp corpor orat atio ions ns or thei theirr subsidiaries unless allowed by law or -


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-

when when requ requir ired ed by the the primary primary functions functions of his posit position ion cannot cannot accep acceptt witho without ut the consen consentt of Congre Congress, ss, any prese present, nt, emolument, office, or title of any any kind kind from from any any foreign government

appo appoin inti tive ve publ public ic offi office cerr or employee: cannot accept without the consen consentt of Congre Congress, ss, any present, present, emolumen emolument, t, office, office, or title of any kind from any foreign government

Member Member of the armed forces forces in the active service

appo appoin inti tive ve publ public ic offi office cerr or employ loyee: ee: cann cannot ot receiv ceive e addit addition ional, al, double double or indire indirect ct compensation unl es ess specificall y authorized by law pensi ensio ons or gra gratuit tuitie ies s not not contemplated by law Shal Shalll not not enga engage ge dire direct ctly ly or indirectly in any partisan political activity, except to vote Cannot be appointed or designated in any capacity to a

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-

when when requ requir ired ed by the the primary primary functions functions of his posit position ion cannot cannot accep acceptt witho without ut the consen consentt of Congre Congress, ss, any prese present, nt, emolument, office, or title of any any kind kind from from any any foreign government

appo appoin inti tive ve publ public ic offi office cerr or employee: cannot accept without the consen consentt of Congre Congress, ss, any present, present, emolumen emolument, t, office, office, or title of any kind from any foreign government

Member Member of the armed forces forces in the active service

Ombudsman

appo appoin inti tive ve publ public ic offi office cerr or employ loyee: ee: cann cannot ot receiv ceive e addit addition ional, al, double double or indire indirect ct compensation unl es ess specificall y authorized by law pensi ensio ons or gra gratuit tuitie ies s not not contemplated by law Shal Shalll not not enga engage ge dire direct ctly ly or indirectly in any partisan political activity, except to vote Cannot be appointed or designated in any capacity to a civilian position in the Governme Government nt including including GO/CC GO/CC or any of their subsidiaries cannot, directly or indirectly,be granted granted any loan, loan, guaranty, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution



47


Unde Underr the the Civi Civill Serv Servic ice e Decr Decree ee

Offi Office cerr or emplo employe yee e in the civil civil service

Cann Cannot ot enga engage ge,, dire direct ctly ly or indirectly, in any partisan political acti activi vity ty or tak take part part in any any election except to vote Cannot Cannot use his official official authority authority or influence to coerce the political activ activity ity of any other person person or body

Member of the armed forces

Any Any electi elective ve public public office officerr or employee

Cannot be detailed or re-assigned withi ithin n 3 mont months hs befo before re any any election Cannot engage, directly or indirectly, in any partisan political acti activi vity ty or tak take part part in any any election except to vote Cannot Cannot use his official official authority authority or influence to coerce the political activ activity ity of any other person person or body Cann Cannot ot rece receiv ive e addi additio tiona nall or doub double le comp compen ensa satio tion n unle unless ss specifically authorized by law Cann Cannot ot acce accept pt,, with withou outt the the conse consent nt of the Presi Presiden dent, t, any any

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Unde Underr the the Civi Civill Serv Servic ice e Decr Decree ee

Offi Office cerr or emplo employe yee e in the civil civil service

Cann Cannot ot enga engage ge,, dire direct ctly ly or indirectly, in any partisan political acti activi vity ty or tak take part part in any any election except to vote Cannot Cannot use his official official authority authority or influence to coerce the political activ activity ity of any other person person or body Cannot be detailed or re-assigned withi ithin n 3 mont months hs befo before re any any election Cannot engage, directly or indirectly, in any partisan political acti activi vity ty or tak take part part in any any election except to vote

Member of the armed forces

Any Any electi elective ve public public office officerr or employee

Any appoi ppoint ntiv ive e employee

offic fficer er

or

Cannot Cannot use his official official authority authority or influence to coerce the political activ activity ity of any other person person or body Cann Cannot ot rece receiv ive e addi additio tiona nall or doub double le comp compen ensa satio tion n unle unless ss specifically authorized by law Cann Cannot ot acce accept pt,, with withou outt the the conse consent nt of the Presi Presiden dent, t, any any prese present, nt, emolum emolument ent,, office office or title of any kind from any state Cannot receive additional or double compensation unless specifically authorized by law Cann Cannot ot acce accept pt,, with withou outt the the conse consent nt of the Presi Presiden dent, t, any any prese present, nt, emolum emolument ent,, office office or title of any kind from any state Cannot be assigned to perform

Laborers


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clerical duties Unde Underr Code

the the

Loca Locall

Gove Govern rnme ment nt

Any local governm government ent official official or employee

Prohibited business pecuniary interest Practice of profession

and

Partisan political activity -- see main part of reviewer for specific provisions -Under the Civil Code

Public officers and employees

Justic Justices, es, atto attorn rney eys, s,

judges judges,, prose prosecut cuting ing cler clerks ks of cour courts ts,,

Cannot acquire by purchase, even even at a publ public ic or judi judici cial al auction, either in person or thru the media mediatio tion n of anothe anotherr the property of: the State or any subdivision thereof or any GO/CC or institution the the admi admini nist stra rati tion on of which has been entrusted to them appl applie ies s to judg judges es and and government experts who, in any manner whatsoev whatsoever, er, take take part in the sale Property and rights in litigation or levied upon -

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48


clerical duties Unde Underr Code

the the

Loca Locall

Gove Govern rnme ment nt

Any local governm government ent official official or employee

Prohibited business pecuniary interest Practice of profession

and

Partisan political activity -- see main part of reviewer for specific provisions -Under the Civil Code

Public officers and employees

Justic Justices, es, judges judges,, prose prosecut cuting ing atto attorn rney eys, s, cler clerks ks of cour courts ts,, officers and employees connected with the administration of justice

Cannot acquire by purchase, even even at a publ public ic or judi judici cial al auction, either in person or thru the media mediatio tion n of anothe anotherr the property of: the State or any subdivision thereof or any GO/CC or institution the the admi admini nist stra rati tion on of which has been entrusted to them appl applie ies s to judg judges es and and government experts who, in any manner whatsoev whatsoever, er, take take part in the sale Property and rights in litigation or levied upon an execution befor before e the court court within within whose hose juri jurisd sdic icti tion on or territo territory ry they they exerc exercise ise their respective functions incl ud udes the act of acquiring by assignment shall shall apply apply to lawyer lawyers, s, with respect to t he he property and rights which may be the object of any


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Under nder the the Cen Centr tral al Bank ank Ac Act

Gover overno norr of of Ba Bangko gko Sen Sentr tral al Full time members of Monetary Board

Personnel of the CB

the

litiga litigatio tion n in which which they they may take part by virtue of their profession appl applic icab able le to sale sales s in legal redemption, compromises and renunciations

May not acc accept ept any other ther employm employment, ent, whether whether public public or priv privat ate, e, remu remune nera rate ted d or ad honorem honorem,, with the exceptio exception n of positions in eleemosynary, civic, cultural and religious organizations - may also be designated by the Presi reside dent nt to repr repres esen entt the the interest interest of the the Govern Government ment or other other gover governme nment nt agenci agencies es in matte atters rs conn connec ecte ted d with with or affe affect ctin ing g the the econ econom omy y or the the financial system of the country Cannot be officer, director, employee employee or stockholde stockholderr of any institution subject to supervision or exam examina inatio tion n by the Bangk Bangko o Sentral except non-stock savings and loan loan asso ssociati iatio ons and prov provid iden entt fund funds s orga organi nize zed d

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-

Under nder the the Cen Centr tral al Bank ank Ac Act

Gover overno norr of of Ba Bangko gko Sen Sentr tral al Full time members of Monetary Board

the

Personnel of the CB

litiga litigatio tion n in which which they they may take part by virtue of their profession appl applic icab able le to sale sales s in legal redemption, compromises and renunciations

May not acc accept ept any other ther employm employment, ent, whether whether public public or priv privat ate, e, remu remune nera rate ted d or ad honorem honorem,, with the exceptio exception n of positions in eleemosynary, civic, cultural and religious organizations - may also be designated by the Presi reside dent nt to repr repres esen entt the the interest interest of the the Govern Government ment or other other gover governme nment nt agenci agencies es in matte atters rs conn connec ecte ted d with with or affe affect ctin ing g the the econ econom omy y or the the financial system of the country Cannot be officer, director, employee employee or stockholde stockholderr of any institution subject to supervision or exam examina inatio tion n by the Bangk Bangko o Sentral except non-stock savings and loan loan asso ssociati iatio ons and prov provid iden entt fund funds s orga organi nize zed d exclusively for employees of the Bank and except as otherwise otherwise provided in the act cannot request or receive any gift, present or pecuniary or material benefit for himself or another, from any institution subject to supervision or examination by the Bank



50


must must not reveal in any manner, manner, except under order of the Court, the Congress or any government office or agency xxx any info inform rmat atio ion n rela relati ting ng to the the condition or business of any such institution prohibite prohibited d from borrowin borrowing g from any any such such instit instituti ution on unless unless the loan is adequately secured, fully disclosed to the Monetary Board and and furthe furtherr subjec subjectt to furthe furtherr rules and regulatio regulations ns prescribe prescribed d by the Board Unde Underr the the Nati Nation onal al Revenue Code

Inte Intern rnal al

Officer or employee of the BIR

May suffer the penalty of fine, or impr impris ison onme ment nt,, or both both,, upon upon conviction: makes known any info inform rmat atio ion n rega regard rdin ing g busi busine ness ss,, inco income me,, or estate estate of any taxpay taxpayer, er, the secret secrets, s, operat operation ion,, style or work, or apparatus of any manufacturer or produce producer, r, or confident confidential ial


50


must must not reveal in any manner, manner, except under order of the Court, the Congress or any government office or agency xxx any info inform rmat atio ion n rela relati ting ng to the the condition or business of any such institution prohibite prohibited d from borrowin borrowing g from any any such such instit instituti ution on unless unless the loan is adequately secured, fully disclosed to the Monetary Board and and furthe furtherr subjec subjectt to furthe furtherr rules and regulatio regulations ns prescribe prescribed d by the Board Unde Underr the the Nati Nation onal al Revenue Code

Inte Intern rnal al

Officer or employee of the BIR

May suffer the penalty of fine, or impr impris ison onme ment nt,, or both both,, upon upon conviction: makes known any info inform rmat atio ion n rega regard rdin ing g busi busine ness ss,, inco income me,, or estate estate of any taxpay taxpayer, er, the secret secrets, s, operat operation ion,, style or work, or apparatus of any manufacturer or produce producer, r, or confident confidential ial information regarding the business of any taxpayer, knowledge knowledge of which which was acqui acquired red by him in the disch discharg arge e of his offici official al duties cann cannot ot be inte intere rest sted ed,, directly directly or indirectly indirectly,, in the manufacture, sale or importation of any article subject to excise taxes or



51


in the the manu manufa fact ctur ure e or repair o sale of any dye for the print iin ng, or makin aking g of sta stamp, or labels Under the Anti-Graft and Corrupt Practices Act

Public officers

Influence another PO to perform an act constituting a violation of lawful rules and regulations or an offense in connection with the official duties of the latter or allowing himself to be influenced to commit such violation or offense Requesti Requesting ng or receiving receiving any gift or benefit in connection with any contract contract or transactio transaction n between between the government government and any other party where the public officer in his his offi offici cial al capa capaci city ty has has to interv intervene ene under the law; law; or in consideration for the help given or to be given for securi securing ng or obtaining any government license of permit Causing any undue injury to any party, including the government government

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in the the manu manufa fact ctur ure e or repair o sale of any dye for the print iin ng, or makin aking g of sta stamp, or labels Under the Anti-Graft and Corrupt Practices Act

Public officers

Influence another PO to perform an act constituting a violation of lawful rules and regulations or an offense in connection with the official duties of the latter or allowing himself to be influenced to commit such violation or offense Requesti Requesting ng or receiving receiving any gift or benefit in connection with any contract contract or transactio transaction n between between the government government and any other party where the public officer in his his offi offici cial al capa capaci city ty has has to interv intervene ene under the law; law; or in consideration for the help given or to be given for securi securing ng or obtaining any government license of permit Causing any undue injury to any party, including the government government or givi giving ng any any priv privat ate e part party y unwarranted benefit, advantage, or preference in the discharge of his official functions Enteri tering ng,, on beh behalf of the the government, into any contract or tran transa sact ctio ion n mani manife fest stly ly and and grossly grossly disadvan disadvantageo tageous us to the same, whether or not the public offi office cerr prof profit ited ed or will will prof profit it


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thereby Havin Having g financ financial ial or pecuni pecuniary ary interest in any business, contract or tran transa sact ctio ion n in whic which h he is prohibited by the Consti or by law from having any interest Becoming interested, for personal gain, or having material interest in any transaction transaction requiring requiring the approval of a aboard or comm commit itte tee e of whic which h he is a member, even if he votes against the same or does not participate in the the actio action n of the the boar board d or committee Appr Approv ovin ing g or gran granti ting ng any any lice licens nse, e, perm permit it,, priv privile ilege ge or benefi benefitt in favor favor of any person person known to him to be not qualified or legally entitle to such license.

Under the Code of Conduct and Ethical Standards

Public officials: includes elective and and appo appoin inti tive ve offi offici cial als s and and emplo employee yees s includ including ing those those in

Financial and material interest Outside Outside employm employment ent and other other

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thereby Havin Having g financ financial ial or pecuni pecuniary ary interest in any business, contract or tran transa sact ctio ion n in whic which h he is prohibited by the Consti or by law from having any interest Becoming interested, for personal gain, or having material interest in any transaction transaction requiring requiring the approval of a aboard or comm commit itte tee e of whic which h he is a member, even if he votes against the same or does not participate in the the actio action n of the the boar board d or committee Appr Approv ovin ing g or gran granti ting ng any any lice licens nse, e, perm permit it,, priv privile ilege ge or benefi benefitt in favor favor of any person person known to him to be not qualified or legally entitle to such license.

Under the Code of Conduct and Ethical Standards

Public officials: includes elective and and appo appoin inti tive ve offi offici cial als s and and emplo employee yees s includ including ing those those in government-owned government-owned or controlled corporations and their subs subsid idia iari ries es,, perm perman anen entt or temporary, whether in the career or non-care non-career er service, service, including including milita military ry and police police person personnel nel,, whet whethe herr or not not they they rece receiv ive e comp compen ensa sati tion on,, rega regard rdle less ss of amount

Financial and material interest Outside Outside employm employment ent and other other activities related thereto Disc Disclo losu sure re and/ and/or or misu misuse se confidential information

of

Solicitation or acceptance of gifts Divestme Divestment: nt: when a conflict conflict of interest arises, the public official or employee shall resign from his position position in any private business



53


enterprise within 30 days from his assumption of office and/or divest himself himself of his sharehold shareholdings ings or interest within 60 days from such assumption - divest divestmen mentt shall shall not apply to those who serve the government in an honora honorary ry capaci capacity ty nor to laborers laborers and casual casual temporary temporary workers

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enterprise within 30 days from his assumption of office and/or divest himself himself of his sharehold shareholdings ings or interest within 60 days from such assumption - divest divestmen mentt shall shall not apply to those who serve the government in an honora honorary ry capaci capacity ty nor to laborers laborers and casual casual temporary temporary workers



54


VI. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS A. Under the Constitution Disabilities of President, VicePresid President ent,, Member Members s of the Cabine Cabinet, t, and their Deputies and Assistants Prohibitions: o shal shalll not not hold hold any any othe otherr offi office ce or employment * Exception: where otherwise provided by the Constitution. o shall not practice any other profession. shal shalll not not part partic icip ipat ate, e, dire direct ctly ly or o indirectly, indirectly, in any business. shall shall not be financ financial ially ly inter interest ested, ed, o contract with any franchise or special privilege granted by

Exception: where otherwise provided by Disab abil ilit itie ies s of Pres Presid iden ent, t, VicePresid President ent,, Member Members s of the Cabine Cabinet, t, and their Deputies and Assistants Prohibitions: shal shalll not not hold hold any any othe otherr offi office ce or o employment Exception: where otherwis o be interested financially interested in any contra contract, ct, franch franchise ise or speci special al privilege granted by the Government intervene in any cause/matter before o any office of the Government for his pecuniary benefit. Prof. Prof. Carlota says highlight the fact that public office is a public trust. Disqu Disquali alific ficati ations ons to Hold Hold any Other Other Office or Employment in the


54


VI. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

Exception: where otherwise provided by Disab abil ilit itie ies s of Pres Presid iden ent, t, VicePresid President ent,, Member Members s of the Cabine Cabinet, t, and their Deputies and Assistants

A. Under the Constitution Disabilities of President, VicePresid President ent,, Member Members s of the Cabine Cabinet, t, and their Deputies and Assistants

Prohibitions: shal shalll not not hold hold any any othe otherr offi office ce or o employment Exception: where otherwis o be interested financially interested in any contra contract, ct, franch franchise ise or speci special al privilege granted by the Government intervene in any cause/matter before o any office of the Government for his pecuniary benefit. Prof. Prof. Carlota says highlight the fact that public office is a public trust.

Prohibitions: o shal shalll not not hold hold any any othe otherr offi office ce or employment * Exception: where otherwise provided by the Constitution. o shall not practice any other profession. shal shalll not not part partic icip ipat ate, e, dire direct ctly ly or o indirectly, indirectly, in any business. shall shall not be financ financial ially ly inter interest ested, ed, o contract with any franchise or special privilege granted by government/GOCCs strictly strictly avoid avoid conflict conflict of interest interest in o the conduct of their office, i.e. any interest which might make them tend to put personal nal interest over governmentalduties and responsibilities

Disqu Disquali alific ficati ations ons to Hold Hold any Other Other Office or Employment in the Government Incompatible Incompatible Office Includes any kind of o office/employment in the gover governme nment, nt, subdiv subdivisi ision, on, agency agency,, GOCCs GOCCs and subsid subsidiar iaries ies during during his term. Exception: when second employment is connected with or in aid of legislative activities Ratio Rational nale: e: need need to devote devote time time and atte ttentio ntion n to the the discha scharrge of legislative responsibilities

Purposes: insure officials mentioned will devote o their full time and attention to their official duties o prevent them from extending special favors to their own private busine businesse sses s that that come come under under their their official jurisdiction o assur assure e the public public that they they will will be faithful and dedicated in the performance performance of their functions

Forbidden Office o refers to any office created or the emol emolum umen ents ts of whic which h have have been been increased during the term for which he was elected, not merely during his tenure or period of actual incumbency. Note: permanently forbidden

Disabilities of Members of Congress -

Prohi Prohibit bition ions s with with rega regard rd to right right to hold hold other office/employment: office/employment: hold any other office or employment o in the the Gove Goverrnmen nment, t, GOCC GOCCs s and and subsidiaries, without forfeiting seat. o be appointed to any office which may have have been been crea create ted/ d/em emol olum umen ents ts thereof increased during the term for which he was elected. Proh Prohib ibit itio ion n with with rega regard rd to righ rightt to engage in certain activities personally appear as counsel before o any any cour ourt of justi ustice ce,, Elect lecto oral Trib Tribuna unals ls,, quasiquasi-jud judici icial al and other other administrative bodies.

-

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Prohibition against Financial Interest Appea Appearan rance ce as counse counsell befor before e Court Court of Justice, etc. Financial interest in any contract with the government Finan inanci cial al inte interrest: est: invo involv lves es fina financ ncia iall inve invest stme ment nt or busi busine ness ss out out of whic which h a member of Congress is to derive profit or gain. Financial interest in any special privilege by the Government Intervention in certain matters



55


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-

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-

-

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A civi civill serv servic ice e empl employ oyee ee is allo allowe wed d to expr expres ess s his his view views s on curr curren entt poli politi tica call problems problems or issues, or to mention the name of his candidate for public office, even if such such expr express ession ion of views views or mentio mention n of names may result in aiding one particular candidate.

Disabilities of Members of Constitutional Constitutional Commissions sam same as thos those e for Presid eside ent, nt, ViceicePreside President, nt, Members Members of Cabinet, Cabinet, and their Deputies and Assistants Proh Prohib ibit itio ion n agai agains nstt Desi Design gnat atio ion n of Members of Judiciary to Administrative Administrative Positions Consti Constituti tution: on: Membe Members rs of SC and other other cour courts ts shal shalll not not be desi design gnat ated ed to any any agency performing quasi-judicial functions or administrative functions. (Consti, VIII, Sec. 12: The Members of the Sup Supreme eme Cour ourt and and of other ther courts urts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Prof Prof.. Carlot Carlota's a's note: note: This This is no longer longer a jurisprudential rule because of the lessons we learned from martial law. Reasons: it violates the doctrine of separation o of powers it may compromise the o independence of the members in the performance nce of their judicial functions o with with so many many cases ases pend ending in courts, practice will result in further delay in th eir disposition Pro Prohibi ibitio tion Aga gain ins st Enga Engagi ging ng In Partisan Political Activities No officer or employee in the civil service shall engage, directly or indirectly, in any elec electi tion onee eerring ing or parti artisa san n polit olitiical cal campaign. (Consti, Art. IX-B, Sec. 2(4) Profess Professiona ionalism lism in the armed armed forces forces and adequate remuneration and benefits of its member members s shall shall be a prime prime concer concern n of t State. The armed forces shall be insulated from partisan politics. No member member of the milit military ary shall shall engage engage dir directl ectly y or indi indirrectl ectly y in any any part partis isan an political political activity, activity, except except to vote. [Consti, [Consti, Art. XVI, Sec. 5(3)]

-

Partisan political activity Acts Acts desig designed ned to have have a candi candidat date e o elec electe ted d or not, not, or to prom promot ote e the the candidacy of a person(s) to a public office.

-

Civil service o Refers only to career service. Elective officials and members of the Cabinet are not included.

People vs. De Venecia

On the other hand, a civil service employee who who cont contri ribu bute tes s mone money y for for elec electi tion on purposes violates the law because he "aids a candidate". Distribu Distributing ting leaflets leaflets openly openly supportin supporting g a candidat candidate e was undoubted undoubtedly ly "aiding" "aiding" such candidate. It was not merely mentioning the candidate he suppo supporte rted d or mere mere expr express ession ion of his opinion opinion on current current politica politicall proble problems ms but was a solicitation of the elector's vote in favor of a candidate.

-

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Prohib Prohibiti ition on Agains Againstt Appoin Appointm tment ent Of Elective Officials No electi elective ve offic official ial shall shall be eligib eligible le for appointment or designation in any capacity to any public office or position during his tenure. (Consti, IX, Sec. 7) The The disq disqua uali lifi fica cati tion on inca incapa paci cita tate tes s the the incumbent incumbent and renders renders his appointm appointment ent void, hence he does not forfeit his elective office. He may be appointed, provided he first resigns his seat. Prohibition Against Holding More than One Position By Appointive Officials General Rule: No appointive official shall hold any o other other office office or employ employmen mentt in the Gove Govern rnme ment nt or any any subd subdiv ivis isio ion, n, agenc agency y or instru instrumen mental tality ity there thereof, of, incl includ udin ing g gove govern rnme ment nt-o -own wned ed or cont contrrolle olled d corp corpor orat atio ions ns or thei theirr subsidiaries.

o

Exceptions: When allowed by law When allowed by the primary functions of his posit position ion (Const (Consti, i, Art. Art. IX-B IX-B,, Sec. 7) The rule aims to remedy problem of offic officia ials ls holdi holding ng multip multiple le positi positions ons which which prevent prevent them from from devoting devoting full time to their principal functions and and resul esultt in doub double le or mult multip iple le compensation.


“ __________________________ ______________________________________ ____________” ”

56


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In the case case of the Preside President, nt, ViceVicePres Presid iden ent, t, memb member ers s of Cabi Cabine net, t, deputi deputies es and assist assistant ants s may hold hold another office only when specifically authorized by the Constitution.

Prohibition against Acceptance of any Present, etc., from any Foreign State No elective or appointive public officer or employee shall accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. (Consti, Art. IX-B, Sec. 8) The prohibition is to prevent alien influence in domestic domestic affairs. affairs. What is prohibi prohibited ted is the the acce accept ptan ance ce of a pres present ent offi offici cial ally ly offer offered ed by the gover governme nment nt of a fore foreign ign stat state; e; henc hence e an offi offici cial al may may acce accept pt a private or personal gift. Prohibition against Receiving Additional, Double, or Indirect Compensation No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. Pens ensions ions or gratui atuiti ties es shal hall not not be cons consid ider ered ed as addi additi tion onal al,, doub double le,, or indirect indirect compensat compensation. ion. (Consti, (Consti, Art. IX-B, IX-B, Sec. 8) Prohib Prohibiti ition on aga again inst st Appoin Appointm tment ent of Memb Member ers s of the the Arme Armed d Force orces s to Certain Positions No memb member er of the the arme armed d forc forces es in the the acti active ve serv servic ice e shal shall, l, at any any time time,, be appointed or designated in any capacity to a civi civili lian an posi positi tion on in the Gove Goverrnmen nmentt including government-owned or controlled corporati corporations ons or any of their subsidiarie subsidiaries. s. (Const AXVI 85(4)) Behind this prohibition is the principle of civilian supremacy over the military. Proh Prohib ibit itio ion n agai agains nstt Gran Grantt of Loan Loan,, Guaranty Guaranty or other other Form Form of Financia Financiall Accommodation No loan, oan, guar uaranty, nty, or othe otherr form of financial accommodation for any business purp purpos ose e may may be gran grante ted, d, dir directl ectly y or indirect indirectly, ly, by any governm government-ow ent-owned ned or controlle controlled d bank or financial financial institution institution to the the Pres Presid iden ent, t, the the Vice Vice-P -Pre resi side dent nt,, the the Members of the Cabinet, the Congress, the Supre Supreme me Court Court,, and the Consti Constituti tutiona onall Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

UNDER EXISTING LAWS Prohibiti Prohibition on Imposed Imposed on Civil Civil Service Service Officers or Employees The The Civi Civill Serv Servic ice e Decr Decree ee prov provid ides es the the following prohibitions: Political activity o Engage in any partisan political activity or take part in any election except to vote, or use his official authority to coerc coerce e the politi political cal activi activity ty of any other person or body. Additional Additional or double compensation o o Limitation on employment of laborers laborers-- laborer laborers s whether whether skilled, skilled, semi-skilled or unskilled shall not be assigned to perform clerical duties Prohibition on detail or reassignment o within 3 months before any election Nepotism o Appointments in favor of a relative of the appointi appointing ng or recommen recommending ding auth author orit ity, y, or of the the chie chieff of the bureau or office, or of the persons exerci exercising sing immediate immediate supervisi supervision on over him

Prohibition Imposed Government Officials

On

Local

Prohibited business and pecuniary interest engage in business transaction with o the LGU in which he is an official interests interests in cockpit cockpit or other games o licensed by LGU purc urchase hase real eal estat state/ e/p property erty o forfeited in favor of LGU be a surety surety for person person contra contracti cting ng o with LGU o possess/ possess/use use public public property property of LGU for private purposes o othe otherr proh prohib ibit itio ions ns unde underr Code Code of Condu Conduct ct and Ethica Ethicall Standa Standard rds s for Public Public Official Officials s and Employees Employees,, and other laws Practice of profession o governors, governors, city and municipal mayors prohib hibited ited from practi actic cing ing the their profess essions ions or eng engage age in any any occupation o Sanggunian Members may pract practic ice e profe professi ssion, on, engage engage in occupation, teach in schools except during session hours o Sangg ngguni unian mem members ers who are are members of the Bar shall NOT



57


o

appear as counsel in case where LGU or any office of the government is the adverse party appear as counsel in any criminal case wherein an officer of national/ local government is accused of offense in relation to office collect fee for appearance in admini minis strat trativ ive e procee oceed dings ngs invo involv lvin ing g LGU LGU of whic which h he is an official use property/personnel of the gove goverrnmen nmentt exce except pt when when the the defending interest of the government Doctors may practice even during official hours only only on occasi occasions ons of emerg emergenc ency, y, provided ided that that the they deri erive no monetary compensation

Partisan political activity

Pro Prohibi ibitio tion agai ag ain nst Purc Purch hase ase Certain Property at Public Auction

-

o

require required d to limit limit their profess professiona ionall activities to those pertaining directly to their positions with the Bank

Personnel of the CB are prohibited from: being an officer, director, employee, o stockholder of any institution subject to supervision or examination by the CB reque requesti sting/ ng/re recei ceivin ving g any gift gift from from o inst instit itut ute e subj subjec ectt to supe superv rvis isio ion/ n/ examination of CB o revealing any info relating to condi conditio tion n or busine business ss of any such such institute borrowing from any such inst unless o adequately secured, fully disclosed to MB and subject to rules of MB. personnel of supervising and examining departments are prohibit prohibited ed from from borrow borrowing ing from from a bank bank under under their their superv supervisi ision on or examination

of

Public officers and employees Cann Cannot ot purch urcha ase gover vernmen nmentt o property the administration of which has been entrusted to them o Applie Applies s to judge judges s and gover governme nment nt experts who in any manner whatsoever take part in the sale Justi Justices ces,, judges judges,, prose prosecut cuting ing attor attorney neys, s, clerk clerks s of superi superior or and lower courts courts,, and other officers officers and employee employees s connected connected with administration of justice Cannot purchase property and rights o in liti itigati gatio on or levie evied d upo upon on execu executio tion n befor before e the court court withi within n whose jurisdiction jurisdiction or territor territory y they exercise their respective functions Incl Includ udes es the the act act of acqu acquir irin ing g by o assignment o Applie Applies s to lawyer lawyers s with with respe respect ct to property and rights which may be the object of any litigation in which they may may tak take part part by virt virtue ue of thei theirr profession (Art. 1491, Civil Code) The The prohi prohibit bition ion is applic applicabl able e to sales sales in lega legall redem edempt ptio ion, n, comp comprromis omises es and and renunciations. (Art. 1492, Civil Code)

Prohibitions Imposed on the Governor and Personnel of the Central Bank

Proh Prohib ibit itio ions ns Impo Impose sed d on Inte Intern rnal al Revenue Officers or Employees The The NIR NIRC impo impose ses s the the pena penalt lty y of fine fine,, imprisonment or both upon conviction of: officer/employee of BIR who divulges o to any person or makes known in any way way than than may be provi provided ded by law law informa information tion regard regarding ing the business, business, inco income me,, esta estate te of any any taxp taxpay ayer er,, knowledge of which was acquired by him in the discha discharg rge e of his officia officiall duties o inter internal nal reven revenue ue office officerr who who is or shall shall become become interested interested directly directly or indirectly in the manufacture, sale or importation of any article subject to excise tax or repair or sale of any dye for printing, or making of stamp, or labels.

Proh Prohib ibit ited ed Acts Acts and and Trans ransac acti tion ons s Unde Underr the the Anti Anti-g -gra raft ft and and Corr Corrup uptt Practices Act (Please see Table) Proh Prohib ibit ited ed Acts Acts and and Trans ransac acti tion ons s under the Code of Conduct and Ethical Standards Finan inanci cial al and and mate materi rial al inte intere rest st in any any transaction requiring the approval of their office

Outside interest of the Governor and fulltime Monetary Board members



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Outside Outside employmen employmentt and other activities activities related thereto during their incumbency: employment in any private o enterprise enterprise regulate regulated, d, supervis supervised ed or licensed by their office private private practice practice of their profession, profession, o unless allowed by law, provided it will not conflict with official functions o recommend any person to a position in a private enterprise which has a regular or pending official transaction with their office Prohi Prohibi bitio tions ns contin continue ue to apply apply for a period of one year after resignation, retirement, or separation from office. The prof profes essi sion onal al conc concer erned ned cann cannot ot practice his profession in connection with any matter before the office he used to be with within the same one-year period. Disclosur Disclosure e and/or and/or misuse misuse of confident confidential ial infor informat mation ion with with respe respect ct to infor informat mation ion officially known to them by reason of their office: to furth urther er priv privat ate e inte interrest/ est/ give give o undue advantage to anyone to prejudice the public interest o

Solici Solicitat tation ion or accept acceptanc ance e of gift gifts s in the cour course se of thei theirr off offici icial duti uties or in conn connec ecti tion on with with any any oper operat atio ion n bein being g regul regulate ated d by or transa transacti ction on affect affected ed by their office Gift o any any act act of libe libera rali lity ty,, not not incl includ udin ing g unso unsoli lici cite ted d gif gift of nomi nomina nall or insi insign gnif ific ican antt valu value e not not give given n in anticipation of or in exchange for a favor from a public official Receiving any gift o includ includes es act of accept accepting ing a gift gift from from pers person on othe otherr than than memb member er of fami family ly or rela relati tive ve,, even even on the the occasion of a family celebration or national festivity if the value of the gift is neither normal or insignificant, or the gift is given in antici anticipat pation ion or in excha exchange nge for a favor o

o

Loan cove covers rs simp simple le loan loan,, guar guaran ante tees es,, financial arrangements intended to ensure approval Gifts from foreign governments need consent of Congress

o

-

-

-

-

-

as souvenir or mark of courtesy scho schola lars rshi hip p or fell fellow owsh ship ip gran grantt or medical treatment travel grants Ombudsman is mandated to presc prescri ribe be regul regulati ations ons to carry carry out prov provis isio ions ns on gif gift. The The CSC CSC has has primary mary resp espons onsibi ibility ity for the the administr administration ation and enforceme enforcement nt of the Act.

Divestment A public public offic official ial or employ employee ee shall shall avoid avoid conflicts of interest at all times. When a conflict conflict of interest interest arises, he shall resign resign from from his position position in any private private business business ente nterpr rprise withi ithin n 30 days ays from his his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption. The same rule shall apply where the public offi offici cial al or empl employ oyee ee is a part partne nerr in a partnership. The requirement requirement of divestmen divestmentt shall shall not apply to those who serve the Government in an honorary capacity nor to laborers and casual or temporary workers. "Conflict of interest" aris arises es when when a publ public ic offi offici cial al or o employee is a member of a board, an officer, officer, or a substanti substantial al stockhold stockholder er of a private corporation or owner or has a sub substant tantiial inter nteres estt in a busine business, ss, and the inter interest est of such such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty. "Substantial stockholder" means any person who owns, directly o or indirectly, shares of stock suff suffic icie ient nt to elec electt a dir directo ectorr of a corporation. o Thi This s ter term shal shalll also also appl apply y to the the parties to a voting trust.

-

"Divestment” the transfer transfer of title title or dispo disposal sal of o interest interest in propert property y by voluntari voluntarily, ly, completely and actually depriving or dispossessing oneself of his right or titl title e to it in favo favorr of a pers person on or perso persons ns other other than than his spous spouse e and relatives as defined in this Act.

-

"Relatives" refers to any and all persons related o to a public official or employee within the fourth civil degree of



59


consangui consanguinity nity or affinity affinity,, including including bilas, inso and balae. -

1.

“Family of public officials or employees" o means their spouses and unmarried children under 18 years of age. (RA 6713)

CHAPTER VII: LIABILITIES OF PUBLIC OFFICERS

those who owe duty solely to the public- any breach is to be redressed by public prosecution. An individual has no right right of action action agains againstt the offic officer er even even if he is injur injured ed by the officer officer’s ’s action or inaction

2. those those who who owe owe some some degre degree e of duty duty to to indivi individua dualsls- indiv individu idual al has cause cause of action against the officer

General rule: official immunity Rationale: Main reason- the state may not be sued without its consent, and a suit against a public officer for his official acts is in effect a suit against the state as its purpose is to hold it ultimately liable. Corollary reasons: 1. Promo romoti tion on of fear fearle less ss,, vigo vigorrous ous and and effective effective administ administratio ration n of policies policies of govt. 2. Publ Public ic offic officer ers s and and employ employee ees s may may be unduly unduly hampered hampered and intimidat intimidated ed by suits in the discharge of their duties 3. Loss Loss of of time time in in such such act actio ions ns 4. Unfa Unfair irne ness ss of subj subjec ecti ting ng offi offici cial als s to personal personal liability liability for the acts of their subordinates 5. The ballo ballott and remo removal val pro proced cedur ures es are are more more appropri appropriate ate methods methods of dealing dealing with misconduct in public office

Exceptions to the general rule: 1. Suit Suit to enfo enforrce liab liabil ilit ity y for for pers person onal al torts- for reckless, malicious or corrupt acts 2.

Suit Suit to compe compell perfor performan mance ce of off offici icial al duty or restrain performance of an act•

•

•

to compel him to do an act required by law to restrain him from enforcing a law claimed to be unconstitutional; or to compel the govt. to pay damages from an already appropriated assurance fund; or to secu ecure a judgment that the impl implea eade ded d offi office cerr may may sati satisf sfy y himself with govt. assistance where the govt. itself has violated its own laws

3 kinds of liability of public officers and employees: 1. CivilCivil- the the erring erring offic officer er reimb reimburs urses es the injured party 2.

Criminal- the officer is punished criminally, may go to jail or pay a fine

3.

Admini minis stra trativ tive- impo mpositi sitio on of fine ine, repr reprima imand, nd, suspen suspensio sion, n, or remov removal al from from offic office e (Adm (Admini inistr strati ative ve liabi liabilit lity y discussed in next chapter)

Civil and criminal

Administrative

- Purpose is to punish

- Purpose is to protect the public services

- Prosecution in one is not a bar to another case

- Prosec secutio ution n her here does not bar criminal civil or criminal action

- Dism Dismis issa sall of case case does not bar administrative action

- Dismis Dismissal sal does does not bar criminal action for the same acts. Double jeopardy does not lie

- Finding of guilt (crimi (criminal nal)) or liabil liability ity (civil) does not nece necess ssar ary y resul esultt in same finding in administrative case

- Vice-versa. Vice-versa. Different degr degree ees s of guil guiltt are are required

- Prejudi Prejudicial cial question question appl applie ies s to crim crimin inal al and civil cases

No prejudicial ques questi tion on wher where e one one case is administrative and the other is either criminal or civil

2 classes of public officers:



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- Quan Quantu tum m of proo proof f required in civil cases: preponderance of evidence; evidence; in criminal: criminal: proof proof of guilt guilt beyond beyond reasonable doubt - rule rules s of proc proced edur ure e are strictly adhered to

requires due proce process: ss: partie parties s are are afforded fair and reasonable opportunity to explain their side or move for reconsideration

- Admin Admin:: substa substanti ntial al such evidencerelevant relevant evidence evidence as a reas reason onab able le mind mind might accept as adequate to support a conclusion - tech techni nica call rule rules s of procedur procedure e not strictly strictly applied - entitled only to administrative decis ecisio ion n based ased on substa substanti ntial al eviden evidence ce made of record and a reasonable oppo opport rtun unit ity y to meet meet the charges during the hearings

or if the act is done beyond the scope of his authority.

RAMA VS CA If the the publ public ic offi office ce is used used as a tool tool for for oppr oppress ession ion,, or the public public offic officer er commi commits ts a wrongful act, he is not protected by his office and he is personally liable. Another exception to immunity from liability for official acts: where the public officers are sued in their personal capacities.

When injured party may not be awarded damages: 1. If the the resul resultt compl complain ained ed of of would would have have occurred notwithstanding the misconduct of the public officer 2.

If the the inj injured ured party rty or his his atto attorrney ney contributed to the result in any degree by his own fault or neglect

CIVIL LIABILITY Requ Requis isit ites es for for reco recove very ry of dama damage ges s arising from acts of public officers:

Liabilities of different kinds of officials: 1. The The Pres Presid iden entt

1.

2.

damage to the complaining party pers person onal ally ly-- as dist distin ingu guis ishe hed d from from damage to individuals in general a wrong or violation of his right committed by the public officer- liability is based on quasi-delict

PHILIPPINE RACING CLUB VS BONIFACIO General rule: a public officer is not personally liable to one injured in consequence of an act performed within the scope of official authority and in line with his official duty. What What brin brings gs the the acts acts with within in his his offi offici cial al autho uthorrity ity? Not Not nece neces ssary sary that that they hey be prescribed by statute, or specifically requested by a supe superi rior or offi office cerr. Suff Suffic icie ient nt if done done in relat relation ion to matter matters s commi committe tted d by law to his control or supervision or that they have more or less connection to the dept. under whose authority the officer is acting.

To put him on trial trial is to put on trial the govt. itself. So the doctrine of state immunity applies with more force on him.

MOON VS HARRISON It is the duty of the head of state to enforce all laws until such time that they are legally declared unconstitutional. To make him liable in an action for damages for performance performance or non-performance of official duty would make him the judge as to when a law is or is not constitutional. 2. Legi Legisl slat ativ ive e offi offici cials als Consti. Art. VI Sec. 11- “A senator or member of the house shall, in all offenses punishable punishable by not not more more than than 6 year years s impr impris ison onme ment nt,, be privi privileg leged ed from from arrest arrest while while congre congress ss is in session… no member shall be questioned nor be held liable in any other place for any speech or debate in the congress or any committee thereof.”

DUMLAO VS CA Exception to the Philippine Racing Club general rule rule:: publ public ic offi office cerr is liab liable le if he caus caused ed damage by his act done with malice, bad faith

Reason Reason for for immunityimmunity- they were were chosen chosen by their constituents as best suited to represent them them.. The The perf perfor orma manc nce e of thei theirr duti duties es is something they owe to the public.



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Kinds of liability of ministerial officers:

3. Member Members s of of the the judici judiciary ary Reason for immunity- the law holds him to his duty to render judgment however erroneous or disastrous to either party. Exceptions: 1.

If acting in a ministerial capacity, and is careless or negligent

2.

If jud judge ren rend ders ers an an unj unjus ustt jud judg gment ment.. He may be held liable for dereliction of duty duty for for knowin knowingl gly y rende renderin ring g a mani manife fest stly ly unju unjust st judg judgme ment nt or inte interl rloc ocut utor ory y orde orderr by reaso eason n of inexcusable negligence or ignorance.

Test est if judg judgme ment nt or orde orderr is unju unjust st:: it is manifestly contrary to law or is not supported by the weight of evidence. Mere error in judgment does not give rise to liability. The remedy is an appeal pursuant to Rule 45 or 65 of the ROC.

a) nonnon-fe feas asa ance nce or neg neglect lect or refus efusa al without sufficient excuse to perform his legal duty b) misf misfea easa sanc nce e or fail failur ure e to use in the the performance of his duty that degree of care care,, skil skilll and and dili dilige genc nce e whic which h the the circumstances of the case reasonably demand c) malfeasance or the doing, either thr through ough igno ignora ranc nce, e, inat inatte tent ntio ion n or malice, or that which the officer has no lega legall righ rightt to do, do, as wher where e he acts acts withou withoutt any author authority ity whatso whatsoeve everr or exceeds or abuses his powers

6. Supe Superi rior or offic officer ers s with with respe respect ct to acts of their subordinates subordinates General rule: Not liable. This is to protect public officers from suits against another public serv servan antt for for acts acts whic which h he hims himsel elff has has not not engage engaged d in. No vicar vicario ious us liabil liability ity in public public service. Exceptions: a) b)

4. QuasiQuasi-jud judici icial al office officers rs Reason for immunity- same as members of judiciary. But if he acts ministerially, he may be liable liable for careless carelessness ness or negligen negligence ce like like any other ministerial officer.

c)

d)

MERCADO VS MEDINA e) Non-fe Non-feasa asance nce or dereli derelicti ction on of duty duty implies a willful omission or neglect of official duty, and not mere failure to do one particular thing.

f)

he neg negligently or wi willfully emp employs or retains unfit or improper persons he negligently or w ilillfully fails to require them the due conformity to the prescribed regulations he carelessly or negligently oversees, conducts or carries on the business of his office as to furnish opportunity for the default where h e h as as d ir irected, a ut uthorized or cooperated in the wrong done if the subordinate is paid b y th t he supe superi rior or offi office cerr volu volunt ntar aril ily y or privately clear sh showing of of ba bad fa faith, ma malice, gros gross s negl neglig igen ence ce or negl neglec ectt to perform perform duty within the period fixed by law

5. Mini Minist ster eria iall offic officer ers s General rule: liable if he neglects or fails to perfor perform m his minister ministerial ial duty at all, all, or if he performs it improperly. Qualified exception: proof of good faith, but this only serves to mitigate damages, because the general rule is that good faith and absence of malice constitut tute no defense for a ministerial officer.

7. Subo Subord rdin inat ates es General rule: same as for those higher in rank. If acting in good faith upon superior’s orders: not personally liable. Exception to this is if the act is unlawful.



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Liab Liabil ilit ity y for for tort torts: s: if offi office cerr exce exceed eds s his his author authority ity,, he is liabl liable e even even if his conduct conduct is committed in the course of his employment.

neglects neglects,, without without just cause, to perform perform his official official duty may file an action action for damages and and othe otherr reli relief ef with withou outt prej prejud udic ice e to any any disciplinary administrative action.’

QUIMSING VS LACHICA Law enforcing agents who acted in good faith are not liable for damages to persons claiming illegal arrest.

MABUTOL VS PASCUAL Absent bad faith, public officials are not liable for damages for performing a duty required by law to be done by them.

ESTEJO VS FERNANDO If a public officer exceeds the power conferred to him by law, he cannot shelter himself under the plea that he is a public agent acting under color of office. In the eyes of the law, his acts are wholly without authority.

PALMA VS GRACIANO As agai agains nstt citi cities es and and muni munici cipa pali liti ties es,, the the pros prosec ecut utio ion n of crim crimes es is not not a corp corpor orat ate e function, but governmental or political. In the exercise of such function, municipal corporations are nor responsible for the acts of their officers, except and only when, and only to the extent that they have acted by authority of the law and in conformity with the requisites prescribed in the law.

GENSON VS ADARLE A supervisor who tolerates his subordinates to moonlight on non-working days cannot be held liable for anything that happens on such days.

CARREON VS PROVINCE OF PAMPANGA When a public officer exceeds his authority, he may be held liable particularly for torts. This liability is even clearer when the act complained of involves corporate or proprietary functions rather than those strictly governmental in nature.

Liabilities under the Civil Code: Independent civil actions

Art. Art. 27: 27: “Any person person sufferin suffering g material material or moral loss because a public servant refuses or

Art. 32: (Malice or bad faith not required) “Any public public servant servant or any private individ individual ual who dire direct ctly ly or indi indire rect ctly ly obst obstru ruct cts, s, defe defeat ats, s, violates or in any manner impeded or impairs any any of the follow followin ing g righ rights ts and and libert liberties ies of another person shall be liable for damages: 1. free freedo dom m of reli religi gion on 2. free freedo dom m of of spe speec ech h 3. free freedo dom m to writ write e for the the pre press ss or to main mainta tain in a peri period odic ical al publication 4. freedom from arbitrary or illegal detention 5. free freedo dom m of of suff suffra rage ge 6. rig right agai again nst depr eprivati vatio on of property property without without due process process of law 7. right to just compensation when private property is taken for public use 8. righ rightt to equa equall prot protec ecti tion on 9. right to be secure in one’s per perso son, n, hous house, e, pape papers rs and and effects effects against against unreason unreasonable able search and seizure 10. liberty of abode and of changing it 11. privacy privacy of communicati communication on and correspondence 12. 12. right right to become become a member member of associatio associations ns for purposes purposes not contrary to law 13. right to take part in a peaceable assembly to petition the govt. for redress of grievances 14. right to be free from involu involunta ntary ry servi servitud tude e in any form 15. right of accused against excessive bail 16. right right of accused accused to be heard by by hims himsel elff and and coun counse sel, l, to be informed informed of nature nature and cause of accusation, to have speedy and public public trial, trial, to meet meet the witn witnes esse ses s face face to face face,, and and have have compu compulso lsory ry proce process ss to secure attendance of witnesses 17. freedom freedom from being being compelled compelled to be witness against himself, to confess guilt except as state witness



63


18. freedom freedom from excessive excessive fines, fines, cruel or unusual punishment 19. freedom freedom of access access to courts

Art. Art. 34: “When When a memb member er of a city or municip municipal al police police force force refuses refuses or neglects neglects to render aid or protection to any person in case of danger to life or property, property, such peace officer shall be primarily liable for damages, and the city or municipality subsidiarily liable.”

RIVERA VS MUNICIPALITY OF MALOLOS Befo Beforre a cont contra ract ct may may be vali validl dly y entered into by a municipality, the law requires that that there there must must first first be an appro appropr priat iation ion of municipal funds to meet the obligation, validly passed by the municipal council and approved by the municipal mayor.

RIVERA VS MACLANG ZULUETA VS NICOLAS Refusal of a fiscal to prosecute a case when after investigation he finds no sufficient evidence to establish a prima facie case is not a refus refusal al withou withoutt just just cause cause to perfor perform m an official duty. He is vested with discretion as to whether a prima facie case exists or not.

If the the acti action on is agai agains nstt the the publ public ic servan servantt in his persona personall capaci capacity ty and if the contract was executed invalidly by reason of non-co non-compl mplian iance ce with with the law or applic applicab able le municipal ordinances, he is personally liable.

Liability for unexplained wealth:

AMARO VS SUMAGUIT An action for damages under independent civil actions is not precluded by the the exis existe tenc nce e of othe otherr remed emedie ies s such such as administrative administrative complaint or criminal case.

VITAL-GOZON VS CA Under Article 27, a public servant may be liable liable for for moral moral damages damages as long long as the physic physical al suffer suffering ing,, mental mental anguis anguish, h, frig fright, ht, seri seriou ous s anxi anxiet ety, y, besm besmir irch ched ed repu reputa tati tion on,, wound ounde ed feel eelings, ngs, mora morall sho shock, soci socia al humiliati humiliation, on, etc suffere suffered d by the complaina complainant nt are the proximate result of the officer’s act or omission.

Liability on contracts executed in behalf of the govt: General rule: not liable Exceptions:

1379 (For (Forfei feitur ture e of Unexp Unexplai lained ned 1. RA 1379 Wealth We alth Act): Act): any propert property y manifestly manifestly out out of prop propor orti tion on to the the sala salary ry of a public public servan servantt is deemed deemed unlawf unlawfull ully y acquired

2. RA

3019 3019 (Ant (Antii-Gr Graf aftt and and Cor Corrupt rupt Practices Act): penalizes certain acts of public public serva servants nts and priva private te person persons s alike which constitute graft and corrupt practices

ALMEDA VS PEREZ The The proce proceedi edings ngs under under RA 1379 1379 are are civil civil in nature because it imposes merely forfeiture of unlawfull unlawfully y acquired acquired proper property ty.. The procedu procedure re outlined is that for a civil action. Thus, there is a petiti petition, on, answer, answer, and hearing. hearing. If it were were a criminal proceeding, there would be a reading of information, plea, and trial.

1. The public public servan servantt execu executes tes an unambiguous personal undert undertaki aking ng which which makes makes no ment mentiion of the the age agency ncy he serves

The There refo fore re the the amen amendm dmen ents ts soug sought ht setting forth newly-discovered newly-discovered acquisitions of the respondent may be inserted in the petition with withou outt obta obtain inin ing g his his cons consen entt (If (If it were were a crimin criminal al proce proceedi edings ngs,, amendm amendment ents s requi require re defendant’s consent).

2. The The contr contrac actt does does not indi indica cate te that it is executed by him in an official capacity

CABAL VS KAPUNAN

3.

The contract is grossly prejudicial to the govt. (criminal liability attaches)

Forf Forfeit eitur ure e in RA 1379 1379 partak partakes es of a penalty or punishment, punishment, since the proceedings proceedings are not to establish, recover, or redress private or civil rights, but to try or punish the persons charged.



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Thus, the right against selfincri incrimin minati ation on is avail availabl able, e, the proce proceedi edings ngs being quasi-criminal in nature.

RA 1379:

5. Liab Liabil ilit ity y for for acts acts done done unde underr dire direct ctio ion n of supe superi rior or offi office cerr- Relie elieve ved d from from liabi liabilit lity y if he notifi notified ed his superi superior or in writing of the illegality of the payment or disposition prior to that act. IN this case case,, the the supe superi rior or offi office cerr will will be primarily liable.

* As to procedureprocedure- civil (Almeda case) * As to substa substanti ntive ve rights rights-- crimi criminal nal (Cabal (Cabal); ); Cabal applies if the respondent is required to tak take the the stan stand d to divu divulg lge e his his asse assets ts and and properties properties not known to the court

Liability of accountable officers: 1. Bond Bond requir requireme ementnt- if his his duties duties per permi mitt or requi require re posse possessi ssion on or custod custody y of government funds or property 2.

Primary Primary and secondary secondary responsi responsibili bilityty•

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the the head head of the the agenc gency y is primar primaril ily y respo responsi nsible ble for all govt. funds or property pertaining to his agency persons entrusted with possession or custody of such fund funds s or prop proper erty ty shal shalll be immediately responsible to the head head of the the agen agency cy (eit (eithe herr party arty may may be liable able to the the govt.)

General liability for lawful expendit expenditure uress- personal personal liabilit liability y of the employee or officer directly responsible

ALBERT VS GANGAN The mere fact that a public officer is head of his agency does not mean that he is party ultimately liable simply because he was the final approving authority of the questioned transaction. It would be improbable for him to check all the details or voluminous paperwork in his agency. He relies mainly on recommendations of his subordinates in approving the transaction. A person who signs questioned transaction does not automatically become a conspirator in a crime. His knowledge of the cons conspi pira racy cy must must be prov proved ed by posi positi tive ve evidence. Requisites for liability: 1. ther there e must must a an expe expend ndit itur ure e of govt. govt. funds or use of govt. property 2. the exp expend enditu iture re is is in viol violati ation on of law law 3. the offic official ial is found found dire directl ctly y respon responsi sible ble for it

CRIMINAL LIABILITY General rule: no public official is above the law

4. Meas easure ure officers•

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acco accoun unta tab ble

For mone money y valu value e in case case of improper improper or unauthoriz unauthorized ed use by himself or anyone for whose acts acts he is respo responsi nsibl ble; e; or for losses, damages, or deteri deteriora oratio tion n occasi occasione oned d by neglig negligenc ence e in keepi keeping ng or use whet whethe herr or not not in his his actu actual al custody at the time Liable Liable for all all losses losses resul resultin ting g from from unlawful unlawful deposit, deposit, use or applic applicati ation on and for all losses losses attrib attributa utabl ble e to neglig negligenc ence e in keeping the funds

Exceptions: 1. If the proh prohib ibit ited ed act is nece necess ssar ary y for for the performance of their duties such as carryi carrying ng weapo weapons ns in the case of the police or military 2. Failu ailure re to perfo perform rm a duty duty comma command nded ed by law for causes beyond his control and performance is impossible The following are NOT available as defenses: 1. abse absenc nce e of corru corrupt pt inten intentt in an actio action n based on statutory penalty for misconduct such as taking illegal fees


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2. expir expirati ation on of of term term of of his his offic office e 3.

re-el re-elect ection ion does does not extin extingui guish sh crimin criminal al liability incurred in previous term

will illful ful neg neglect lect to give permitting violation of law 9.

recei eceip pts, ts,

Und Under the the Omni mnibus Elec Electi tion on Codeodeelection offenses

Crimes peculiar to certain public officers: MACADANGDANG VS SANDIGAN 1. Under Under the Revised evised Penal Penal Code Code •

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Malfeasance or misfeasance in offic office e (ex. (ex. Malici Malicious ous delay delay in admi admini nist strratio ation n of jus justic tice, bribery) Frauds rauds and illega illegall exact exaction ions s and transactions Malversation of public funds or property Infidelity of public officers Other offenses: offenses: disobedi disobedience, ence, refusal or assistance malt maltre reat atme ment nt of pris prison oner ers, s, abandonment of duties, usurpation of powers, unlawful appointments

Under the Anti-Gr -Graft and Corrupt Practices Act- bribery, a congressman acquir acquiring ing pecuni pecuniary ary inter interest est in any enterprise benefited by a law authored by him, etc.

Budget officer signed falsified vouchers for repair of govt. vehicles and made a request for allotment of funds without first ascertaining whether or not the repairs were needed. He is not liable. It was not his job to inspect the vehicles, his job was to certify as to the availability of funds. It does not follow that he was part of the conspiracy. conspiracy. He may have signed th the e papers routinely. He is not liable criminally, but his lack of car care may may be grou ground nd for for admi admini nist stra rati tive ve action.

ARIAS VS SANDIGAN Land assessed at P5 per sq. meter in 1973 was acquired by the govt. in 1978 for P80/sq. meter.

3. Under Under the the Code Code of of Condu Conduct ct and and Ethic Ethical al Standards

The convictio conviction n was erroneou erroneous. s. There There can be no over over-prici -pricing ng for the purpose purpose of a criminal conviction where no proof of such was adduced during the proceedings. proceedings.

4. Unde Underr the the Forfe orfeit itur ure e of Une Unexpla xplain ined ed Wealt ealth h ActActunla unlawf wful ully ly acqu acquir irin ing g property property or transfer transferring ring or conveying conveying any unlawfully acquired property

Furth urther er,, the the mere mere sign signat atur ure e of the the accused cannot be proof of conspiracy. Therese should be other ground than mere signature to sustain conspiracy and conviction.

5. Under Under the the Civil Civil Servi Service ce Decr Decreeee- makin making g any any appo appoin intm tmen entt or empl employ oyin ing g any any person in violation of the provisions of thi this decr ecree or commi ommits ts fraud or misre misrepr prese esenta ntatio tion n concer concerning ning other other civil matters or refuses to comply with such 6.

Under the Govt. Auditing Codeviolation of provisions of warrants and checks receivables for taxes, issuance of official receipts

7. Unde Underr the the Loca Locall Govt Govt.. Code Code 8. Under Under the Natl Natl.. Inter Internal nal Reve Revenue nue Code Code-extortion, willful oppression, knowingly demand demanding ing unauth unauthori orized zed paymen payment, t,

LLORENTE VS SANDIGAN Undue injury cannot be presumed even afte afterr a wron wrong g has has been been esta establ blis ishe hed. d. The The existence of undue injury must be proven as one of the elements of the crime. Undue injury- actual damage (akin to that in civil law). Bad faith- does not simply connote bad judgment. It imputes a dishonest purpose or some moral obliquity or conscious doing of a wrong. It partakes of the nature of a fraud. InactionInaction- is included included in “causing” “causing” the injury injury. Even Even passi passive ve acts acts may cause cause undue undue injury.



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BUNYE VS SANDIGAN The There re is no undu undue e inju injury ry wher where e the the comp compla lain inan ants ts have have neve neverr been been adve advers rsel ely y affe affect cted ed and and they they wer were not not disp displa lace ced d or prevented from operating their business. DUTERTE VS SANDIGAN

Act complained of is an office publication saying that a certain “Auring” was a disgrace to the office. It is a tort under CC Art. 2176. It is ultra vire vires s and not part part of official official duty, thus the respo espond nden ents ts are are liab liable le in thei theirr pers person onal al capacities.

3 elements in illegal transactions: 1. offend offender er is a publ public ic office officerr 2. the cont contrac ractt is enter entered ed into into in beha behalf lf of the govt. 3. the contract is manifestly disadvantageous disadvantageous to the govt.

VIII. TERMINATION OF OFFICIAL RELATIONS

If the assailed contract is no longer existent at the time the complaint is filed (such as when it ash been rescinded), then the 2nd element is absent/not established.

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Modes of Termination (remember MS. ERDRAA PRIACiR) Expiration of term or tenure Reaching age limit (retirement) Death or permanent disability disability Resignation Acceptance of incompatible office Abandonment Prescription to right of office Removal Impeachment Abolition of office Conviction of a crime Recall

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JAVELLANA VS DILG Javie Javiero ro and Catapa Catapang ng charg charged ed City City Engineer Engineer Divinagra Divinagracia cia with illegal illegal dismissa dismissal. l. Javiero and Catapang were represented in that case by Javellana Javellana,, a councilma councilman n of that city. city. Divinagracia questioned Javellana’s personality to represent J and C. The complaint for illegal dismissal filed by J and C against Divinagracia is in effect a suit against the city govt., their real employer, of which Javellana is councilor. councilor. Javellana cannot therefore represent an interest adverse to the govt.

Natural Causes TUZON VS CA Art. 27 of CC was meant to end the bribery system where a public official, for some flimsy excuse, delays or refuses the perfor performan mance ce of his duty duty until until he gets gets some some kind of bribe. The official is not liable where it does not appear that he stood to gain by the act complained of, or where records show that the ordinan inance ce or law law in quest uestiion has has been uniformly applied to all. In the absence of a judic judicial ial decisi decision on declar declaring ing a law invali invalid, d, its legality would have to be presumed.

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WYLIE VS RARANG

Expiration of Term of Office Unless Unless author authorize ized d to hold hold over, over, rights rights,, .duties and authority ipso facto cease Term Fixed and definite time prescribed by o law law or Cons Consti titu tuti tion on by which hich an officer may hold an office. It does not apply to appointive offices o at the the plea pleasu sure re of the the appo appoin inti ting ng power NonNon-re renew newal al of appo appoin intm tmen entt is a vali valid d mode of termination. Removal vs. Expiration of Term Removal: Oust officer before expiration of his o term



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Expiration of Term: o Where no term is fixed by law and the the incu incumb mbent ent is reli reliev eved ed by the the appo appoin inti ting ng powe power, r, it is as thou though gh Congress itself fixed the term. o Wher Where e an app appoint ointme ment nt is for a definite definite and renewab renewable le period, period, nonrenewal is an expiration of the term

Term vs. Tenure Term: time time during during which the office officerr may o claim to hold the office as a matter of righ rightt and and fix fixes the the inte interv rval al afte afterr which which the several several incumbents incumbents shall succeed one another not affected by hold over o Tenure: peri period od duri during ng whic which h o actually holds office Nueno vs. Angeles

confidential. In fact, he was a civil service eligible whose removal was illegal. •

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Fixed by the Constitution o beyo beyond nd the the powe powerr of Cong Congrress ess to affect tenure

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Not fixed by the Constitution o Congress may limit duration of term. Where Where terms terms are are presc prescrib ribed ed by law, law, publ public ic poli policy cy forb forbid ids s that that the the beginn beginning ing and expi expirat ration ion of the term be left to the discretion of the person holding the office or of the body having the appointing power. Budgetary authority cannot shorten the ter term of office ice by refus fusing ing to appropriate funds

The term of office is fixed by law and can’t be extended by reason of war.

Alba v. Alba

Cadiente vs. Santos The tenure tenure of official officials s holding holding primari primarilylyconfid confident ential ial positi positions ons ends ends upon upon loss loss of confidence. The termination of the services of the city legal officer by the mayor is not removal but expiration of term. NOTE NOT E in LocGo LocGov v: expr express ess prov provisi ision on that that legal officer's term is co-terminus with that of the local chief executive Prima Primari rily ly confid confident ential ial:: denote denotes s not only only confidence in the aptitude of the appointee for the duties duties of the office office but primari primarily ly close intimacy intimacy which which insures insures freedom freedom of intercour intercourse, se, without without embarra embarrassme ssment nt and freedom freedom from from misgivin misgivings gs of betrayal betrayals s of personal personal trust on confiden confidential tial matters of state.

Cristobal vs. Melchor The services of a private secretary in the offic office e of the Presi Presiden dentt were were termin terminate ated. d. Howe Howeve ver, r, no evid eviden ence ce was was addu adduce ced d to show show that that the the posi positi tion on was was prim primar aril ily y

Power of Congress to Fix, Shorten, or Lengthen Term

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Congress Congress can legally legally and constituti constitutionall onally y mak make the the tenu tenurre of cert certai ain n offi offici cial als s depe depend nden entt upon upon the the plea pleasu surre of the' the' President. The replace acement of the appointe ntee is not a removal but an expiration of term.

Commencement of Terms of Office Ordi Ordinar narily ily,, commen commencem cement ent is fixed fixed for some appreciable period after the election or appointment Where no time is fixed: o elective officers - date of election o appointive officersdate of appointment Runs "from" a certain date, the day of date is excluded

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Holding-over After Expiration of Term

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Hold-over status Term Term has expired o o Public officer continues to hold office until until his succes successor sor is appoin appointed ted or chosen

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Status of hold-over officer de jure: if hold-over is authorized o otherwise, de facto o

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Purpose: o To prevent a hiatus in the government Public Public interest interest requir requires es that public public o offices should be filled at all times, without interruption interruption

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unless unless such holding-ov holding-over er is expres expressly sly or impliedly prohibited ted, the incumb incumbent ent may contin continue ue to hold hold office. when the Constitution limits the term without providing for hold-over

vacancy; vacancy; only the courts courts can make his finding conclusive.

Acts or Neglect of Officer •

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Law GR: May holdover Holdover XCPT: CPT: when prohib prohibited ited

Constitution GR: No XCPT: CPT: None •

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Duldulao v. Ramos A muni munici cipa pali lity ty was was conv conver erte ted d into into the the provinc province e of Occidenta Occidentall Mindoro Mindoro.. The CFI Judge and the Register of Deeds continue to hold office in the absence of a contrary provi provisio sion. n. The law abhors abhors a vacuum vacuum;; to hold otherwise is to allow paralyzation of judicial functions. •

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By Resignation Right to resign is recognized. Offi Officer cer may hold-o hold-over ver until until succes successor sor is chosen Right Right must be decla declare red d in a much much more more restric restrictive tive manner so that public public officer officers s won’t throw off their responsibility at their own pleasure.

Office Created for the Accomplishment Accomplishment of a Specific Act The The office office termin terminate ates s and the offic officer' er's s authority ceases with the accomplishment of the purpose. For For examp example, le, the board board of canvas canvasser sers s is deemed functus officio with the proclamation proclamation of candidates. Reaching Age Limit Members of judiciary o Until 70 years old or beco ecome incapacitated to discharge the duties of the office. Other laws provide provide for compulso compulsory ry o retirement at the age of 65 years. NOTE: retirement will NOT render administrative case moot and academic. Death or Permanent Disability Death to be filled by one person only o office is vacant o 2 or more officers exercise authority the whole office is not vacant; survivor may execute the office unless joint action is expressly, required. Permanent Disability covers both mental or physical o appointing power will have to decide o whe whether ther the the disab sability ity create eated d

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Meaning of Resignation Formal renunciation or relinquishment of a public office Implies the incumbent expressing in some form, express express or implied, of the intention to surrender, renounce, relinquish his right to office office and the acceptance acceptance by competent competent and lawful authority Form of Resignation If requirement is provided by law, must be substantially complied with Otherw Otherwise ise,, resig resignat nation ion may be made made by any method indicative of the purpose. It need not be in writing and may be o oral or implied by conduct. What constitutes Resignation intention to relinquish a part of the term accompanied by an act of relinquishment relinquishment a written resignation must be signed by the party tendering it a writt written en resig resignat nation ion given given to the boar board d authorized to receive it and fill the vacancy is prima-facie but not conclusive evidence of the intent to relinquish RULES: 1. Resig Resignat nation ion must must be volun voluntar tary y. 2. There There must must be clea clearr inten intentio tion n to

Gonzales vs. Hernandez To constitute a complete and operative act of resig resignat nation ion,, the offic officer er or employ employee ee must show clear intention to relinquish or surrender his position xxx and there must be and acceptan acceptance ce by a compe competen tentt and lawful authority. In CAB, there was a conditional resignation and and sinc since e G's G's posi positi tion on in the the GSIS GSIS was was temp tempo orary rary in natu naturre, the there was no abandonment.

Ortiz vs. COMELEC


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Retirement laws are construed liberally in favor of the retiree. A courtesy resignation cannot properly be inte interp rpre rete ted d as resig esigna nati tion on in the the lega legall sense for it is not necessarily a reflection reflection of a public official's intention to surrender his position; rather, it manifests his submission to the will of the political authority and the appointing power.

At present, there is no more automatic resignation upon filing of candidacy. •

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Resignation revocable before acceptance. o Prior to acceptance, the resignation is not not comp comple lete te and and the the offi office cerr remains in office. The The rule rule rest rests s on the the dict dictat ates es of o public policy. policy. o The The acts acts of an offi office cerr befo before re the the official official notificati notification on of acceptanc acceptance e of his resignation are de facto.

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Form of Acceptance o By a formal declaration or o By the appointment of a successor o By due filing at proper office w/out ojection Punsalan vs. Mendoza M can validly reassume the governorship of Pampa ampang nga a afte afterr havi having ng tend tender ered ed his his resi esignati natio on sinc since e the the acti actio on on the the resigna resignation tion was held in abeyance abeyance by the Presid President ent and when the Presid President ent finally finally acte acted, d, he shel shelve ved d the the resig esigna nati tion on and and approved the KBL caucus recommendation for M to reassume the governorship.

Legaspi vs. Espina

The automatic and permanent loss of office of any any elec electi tive ve offi offici cial al who who runs runs for for an offic office e other other than than the one he is actual actually ly holding holding makes makes no excepti exception on for official officials s under suspension at the time they file their certificate of candidacy for another office.

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SIR: SIR: Intent Intention ion to volunta voluntari rily ly relin relinqui quish sh position is missing! To whom Resignation is Tendered to the person designated by statute in the absenc absences es of statut statutory ory dire directi ction, on, to the officer or body having authority to appoint his successor or to call an election to fill the office a resig esigna nati tion on tend tender ered ed to an impr improp oper er person or body is a nullity

Since petitioner thereby forfeited any right to the office of Mayor when he filed his certifica certificate te of candidacy candidacy for Congres Congressman, sman, his present petition seeking reinstatement to the office of Mayor has lost all basis.

Acceptance

Abandonment unlawful before acceptance. Perso Person n who abando abandons ns his offic office e to o the detriment detriment of the public service shall shall suffer suffer the penalt penalty y of arre arresto sto mayor. A resi resign gnat atio ion n is inop inoper erat ativ ive e and and o ineffective in the absence nce of acceptance. A public official may be deemed to o have relinquishe relinquished d his office due to his volunta voluntary ry abando abandonme nment nt of his office.

Estrada v Desierto

ERAP’s ERAP’s ersignat ersignation ion has to be determined determined from his acts and omissions or the totality of prior prior,, contempo contemporane raneous ous and posterior posterior facts and circumstantial evidence bearing a material material relevance relevance on the issue. issue. Using this this tota totali lity ty test test,, SC held held tha that Era Erap resigned.

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Sinc Since e 0's cour ourtes tesy resig signati natio on was accepted by the President he is deemed to have completed his term of office, hence, entitled to retirement retirement benefits.

Resig Resignat nation ion is a factu factual al questi question on and its elements are beyond quibble: there must be intent to resign and the intent must be coup couple led d by acts acts of reli relinq nqui uish shme ment nt.. Its Its vali validi dity ty is not not gove govern rned ed by any any form formal al requirement as to form. It can be IMPLIED! As long as resignation is clear, it must be given effect.

Necessity Resignation

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Repudiation of Resignation A resigna resignation tion is not effective effective although although a successor has been appointed to take the place of the first incumbent if the resignati resignation on has been transmitted transmitted without his consent The resignation of a public officer procured by fraud or by duress is voidable and may be repudiated. A resig resignat nation ion given given as an alter alternati native ve to have charges filed against the public officer may be repud repudiat iated, ed, for the resig resignat nation ion cannot be accepted as having been given voluntarily and willingly. Effect of Duress or Fraud When an employee employee resigns resigns from from service, service, there is a presumption presumption of voluntariness. If an offi office cerr char charge ged d with with misc miscon ondu duct ct chooses to resign when given the alternative to do so in lieu of termination, his resignation is not given under duress. If resignation is accepted, officer can repossess office if: 1. No pers person on yet yet appoi appointe nted d to offi office, ce, and 2. Appoin Appointin ting g autho authorit rity y conse consents nts to

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By Acceptance of an Incompatible or Prohibited Office He who, who, whil while e occu occupy pyin ing g one one offi office ce,, accepts another incompatible with the first, ipso ipso facto facto,, absol absolute utely ly vacate vacates s the first first office. If the the law law or Cons Consti titu tuti tion on forb forbid ids s the the accept acceptanc ance e by the public public offi officer cer of any other office, it is not a case of incompatibility incompatibility but of legal or constitutional prohibition. If the appointment to the latter office o is void because of disqualification or ineligibi ineligibility lity,, the appointee appointee does not forfeit his original office. When When Office Offices s are Incomp Incompati atible ble with with each other Incompatibility Incompatibility is to be found in the characte characterr of the offices offices and o their relation to each other o in the subord subordina inatio tion n of one to the other and in the nature nature of the functi functions ons and o duties which attach to them. Exce Except ptio ions ns to the the Rule Rule on Hold Holdin ing g Incompatible Offices Where the officer cannot vacate the first office by his own act, upon the principle

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that he will not be permitted to, as where the the law law requi equirres the the appr approv oval al of the the provincial board before a municipal official can resign. Wher Where e the the firs firstt offi office ce is held held unde underr a diff differ eren entt gove goverrnmen nmentt from from that that whic which h conferred the second Where Where the officer officer is expres expressly sly authorized authorized by law to accept another office and Where the second office is temporary.

By Abandonment of Office A publ ublic off office ice beco ecomes mes vacan acantt by abandonment and non-user. When an office is aban abando done ned, d, the the forme ormerr incu incumb mben entt cannot legally repossess it even by forcible reoccupancy. Meaning of Abandonment The voluntary relinquishment of an office by the holder holders s of all all right, right, title or claim claim with the intention of not reclaiming it, or terminating his possession and control. In ascertaining abandonment, intention is the first and paramount object of inquiry for there can be no abandonment without the intent to abandon. The failure to perform the duties pertaining to the the off office ice must must be with with acti activ ve or imputed intention on the part of the officer to relinquish the office. When there is Abandonment of Office When there is clear intention to abandon office (can be inferred from conduct) Acceptance of another office Failure to discharge duties of office or to claim or resume it Acquiescence by the officer in his wrongful removal Ther There e must must be concur concurren rence ce of intent intention ion and and over overtt acts acts from from whic which h it may may be inferr inferred ed that the public public officer officer concerne concerned d has has no mor more inter nteres est. t. Inten ntenti tion on is a question of fact. o Princi incip ples les nor normal mally governi erning ng abandonment of office should not be too strictly applied to cases occurring during war. war. Canonizado v Aguirre Petitioner, after accepting another position, sought reinstatement to his former position from from whic which h he was was remov emoved ed unde underr a provis provision ion of law which was subsequen subsequently tly declared declared violative to his constitutional right to security of tenure.



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His His appoint ointme ment nt and accep ccepta tanc nce e of another position is not deemed aban abando donm nmen ent. t. His His remov emoval al from from his his original position by virtue of a cons consti titu tuti tion onal ally ly infi infirm rm act act nece necess ssar aril ily y negates a finding of voluntary relinquishment. He was compelled to leave his former position. •

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Voluntary act

Resignation Voluntary act

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A requisite requisite for resignation resignation Not a requisite for abandonment

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SB of San Andres vs CA Resignation Resignation is an act of giving up or the act of an officer by which he declines his office and renounce further right to use it. It must include the following: 1. an inten intenti tion on to relin elinqu quis ish h part part of the term 2. an act act of of rel relin inqu quis ishm hmen entt 3. an accep acceptance tance by proper proper authority authority. There There was no resigna resignation tion in this this case as recor records ds are are beref bereftt of any evide evidence nce that that Antonio’s resignation was accepted by the proper authority. BUT there there was abandonm abandonment ent which is a volunt voluntary ary reli relinqu nquish ishmen mentt of an offic office e by the holder with the intention of terminating his possession and control thereof. It is a species of resignation. While resignation resignation is a formal relinquishment, abandonment is a voluntary voluntary relinqui relinquishmen shmentt through through a nonuser (a neglect to use a privilege/right privilege/right or to exercise exercise an easement of office. •

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Inst Instan ance ces s of Aban Abando donm nmne nent nt/N /Non on Abandonment dete deterrmini mining ng fact factor or is the the pres presen ence ce of intention to relinquish title

The The proce proceedi eding ng by quo warr warranto anto is the proper and appropriate remedy against a public public officer officer or employee employee for his ouster from from office office which which should should be commenced commenced withi within n one year after the cause cause of such such ouster or the right of the plaintiff to hold such office or position arose. Ratio Rational nale e for 1 yr period period:: title title to public public office should not be subjected to uncertainties but should be determined as speedily as possible.

Acts of the Government or the People

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By Prescription of Right to Office

Meaning of Removal Removal Removal entails the ouster of an incumbent before the expiration of his term. It impli implies es that that the offic office e exist exists s after after the ouster. Another term used is dismissal. What constitutes Removal Removal may be expressed or implied. Appointment to Another Office The The genera generall rule rule is that that where where an o officer may be removed by a superior offic officer er at the latter latter's 's pleas pleasur ure, e, the act act of remov emoval al is acco accomp mpli lish shed ed mere erely by the the appoint ointm ment ent of another officer in his place. In order der to render nder the the remov emova al o effective in all cases, the incumbent must be notified.

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Transfer to Another Office The transfer of an officer without his o conse consent nt is equiva equivalen lentt to his illega illegall removal or separation form the first office. A transfer requires a prior o appo appoin intm tmen entt and and acce accept ptan ance ce is indi ndispen spensa sab ble to comp omplete lete an appointment.

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Demotion The movement from one position to o another involving the issuance of an appo appoin intm tmen entt with with dimi diminu nuti tion on in duties, responsibilities, responsibilities, status or rank whic which h may may or may may not not invo involv lve e a reduction in salary. o Demotion to a lower position with a lower lower rate rate of compen compensat sation ion is also also equivalent to removal if no cause is shown for it



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Reassignment o The movement from one organizational unit to another in the depart departmen mentt or agency agency which which does does not not invo involv lve e a reduc educti tion on in rank rank,, status, or salary and does not require the issuan issuance ce of an appoi appointm ntment ent.. If done in good faith and in the interest of service, it is permissible and valid even even withou withoutt the employ employee’ ee’s s prior prior consent.

Legislative Regulation of Removal Congr Congress ess,, in vestin vesting g the appoi appointme ntment nt of officers of lower rank in the President President along or in the heads of departments, may limit and restric restrictt the power of remov removal al as it deems best for the public interest. Wher Where e the the Cons Consti titu tuti tion on pres prescr crib ibes es the the meth method od of remov emoval al and and the the caus causes es for for which which public public offic officers ers may be remov removed, ed, these methods and grounds are exclusive and it is beyond the power of Congress to remove incumbents in any other manner or for any other cause. Administ Administrativ rative e Liabilit Liability y Incurred Incurred in a Previous Term by an Elective Official Re-election of a public official extinguishes only the administrative but not the criminal liability incurred by him during his previous term of office. o His re-e e-election operates as a condonation of the officer's previous misconduct.

Where term of office not fixed by law. The general rule is that the power of o removal is incident to the power to appoint.

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Where term of office fixed by law. Implied power of summary removal is o not incident to the power of appointment. o It is the the fixi fixity ty of the the ter term whic which h dest destro roys ys the the powe powerr of remo remova vall at pleasure. This is true although the appointment is classified as temporary.

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It is abso absolu lute te when when it is vest vested ed in the the unlimited discretion of the removing officer to be exercised at such time and for such reasons as the latter may deem proper and sufficient.

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It is conditional when the time, the manner, or the reason is placed beyond the mere discretion of the removing officer. In any case, the power of removal cannot be exerc exercised ised without notice notice and hearing hearing where where the employ employee ee enjoys enjoys securi security ty of tenure.

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Carlots: There is no such thing as absolute power to remove!

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Removals Incident of Right of Appointment The power to remove is deemed lodged in the the same same body body or pers person on in whic which h the the power to appoint is vested.

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Where Where holding holding of position position at pleasur pleasure e of appo appoin inti ting ng powe powerr or subj subjec ectt to some some supervening event.

If the statute does not designate the term of the office, the appointee will hold only during the pleasure of the appoint ointiing power, er, and may be remov emoved ed at plea pleasu surre at any any time time without notice or hearing. Exercise of Power of Removal May be absolute or conditional. o

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Power of Removal of the President The The Const Constitu itutio tion n contai contains ns no provi provisio sion n expr expres essl sly y vest vestin ing g in the the Pres Presid iden entt the the power power to remove remove executi executive ve official officials s from from their posts. Neverthel Nevertheless, ess, the power power is possessed possessed by him him as it is implied lied form orm any of the the following: o from his power to appoint from from the the natu nature re of the the exec execut utiv ive e o power o from the President's duty to execute the laws from from the Presi Presiden dent's t's contr control ol of all o depar departme tments nts,, bureau bureaus s and office offices, s, and o from the provision that "no officer or employee in the Civil Service shall be remov removed ed or suspe suspende nded d excep exceptt for cause provided by law Civil Civil Service Service Officers Officers and Employee Employees s entitled to Security of Tenure Security of tenure means that an officer or employee in the civil service shall not be suspended suspended of dismisse dismissed d except except for cause as provided by law and after due process. The The Cons onstitu tituti tion on requir uires tha that the the appointments shall be made according to meri meritt and and fitn fitnes ess s and and that that remo remova vall or



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suspension shall be for cause provided by law. Remov emoval al for for caus cause e provid vided by law guarante ntees both substantive and procedural due process. Such cause as a general rule must o affect the functions or administration of the the offi office ce whic which h the the offi office cerr or employee holds or be connected with the perfo perform rmanc ance e of his duties duties and must be restricted to something of a substantia substantiall nature nature directly directly affecting affecting the rights and interests of the public. No complaint against a civil service officer or employ employee ee shall shall be given given due course course unless it is in writing and subscribed and sworn to by the complainant. Officer or employee must be o informed of the charges against him.

Guar Guaran ante tee e of Sec Securit urity y of ten tenure extends to both career and non-career positions Both are protected from removal/suspension without just cause and non-observance of procedural procedural due process. In case of primarily confidential employees, when when pleasu pleasure re turns turns into into disple displeasu asure re,, ,, incumbent is not removed or dismissed. dismissed. His term merely expires.

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Members of the Judiciary shall hold office during good behavior o until age 70 or become incapacitated to discharge the duties of th eir office. o For members of the Supreme Court, they should not have committed any of the offenses which are grounds for impeachment. For judg judges es of lowe lowerr cour courts ts,, the the o determination ion of the SC as to whether there has been a deviation or not not fro from the the requi equirrement ment is conc conclu lusi sive ve sinc since e it alon alone e has has the the power to order their dismissal. o Also note the provisions in the Canon of Judicial Ethics.

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Civil service officers or employees o shall not be removed or suspended except for cause provided by law. o The security of tenure in CES (except 1st & 2nd level level ee in civil civil servic service) e) pertains only to rank and not to the office or to the position to which they may be appointed.

Cause - means legal cause, cause, that provided provided by law. Gen Rule: cause must be related to the performance performance of functions of the public office. “for cause” means both substantial and procedural due process. Since there is no law which provides for “loss of confidence” as a ground for removal, that is not removal but expiration of term. Constitution does not distinguish. Thus, WON career/non-career, career/non-career, confidential or technical, such are subject to security of tenure. Power to remove connotes power to discipline. Sources of grounds for removal: 1. Consti 2. Civi Civill Ser Servi vice ce law law 3. Loc. oc. Gov’ Gov’tt Code Code

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Groun Grounds ds for Remov Removal al or Suspe Suspens nsion ion under the Constitution

Members of Congress Each House may punish members for o disorderly behavior and with concurrence of 2/3 of all its members, suspend or expel a member. o A pena enalty lty of sus suspensi ension on when hen imposed shall not exceed 60 days. President, Vice-president, Members of the Supr upreme eme Cour Courtt and Memb embers ers of the the Cons Consti titu tuti tion onal al Comm Commis issi sion ons s and and the the Ombudsman They may be removed from office, on o impeachment for and conviction of: culpable violation of the Constitution treason bribery graft and corruption other high crimes betrayal of public trust

De Leon v CA The mere fact that a position belongs to the Career Career Service Service does not automatic automatically ally confer security of tenure on its occupant even if he does not possess possess the requir required ed qualific qualification ations. s. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. Monte ontesa sa’s ’s appoint ointme ment nt did not not attai ttain n permanency. Not having taken the necessary



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CES exam to obtain the requisite eligibility, he did not at the time of his appointment up to present possess the needed eligibility position in the the CES. CES. His His appo appoin intm tmen entt was was mer merely ely temporary and thus, he can be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure.

Culpable violation of the Constitution Dishonesty, oppression, misconduct in office, neglect of duty Commission of offense involving moral turpitude or punishable by at least prision mayor (vs Civil Service law which requires conviction) Abuse of authority Unauthorized absences for 15 consecutive working days Appli Applicat cation ion or acquis acquisiti ition on of fore foreign ign citi citize zens nshi hip p or resid esiden ence ce or in immig mmigrrant ant statu tatus s of ano another ther country Other grounds provided by law

General v Roco Unde Underr Sec. Sec. 27(1 27(1)) of Civi Civill Serv Servic ice e Law Law and and Integrated Reorganization Plan, two requisites must occur in order that a CES employee may attain security of tenure: 1. CES CES elig eligib ibil ilit ity y 2. appoin appointme tment nt to appr approp opria riate te CES CES rank rank

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Thus a CES officer may be transfer transferred red or reassig reassigned ned from from one position to another without losing his rank which follows him wherever he is tran transf sfer erre red d or reas reassi sign gned ed.. No diminution of salary even if transferred transferred to a CES position w/ lower salary salary grade as he is compensated compensated according to CES rank and not on the basi basis s of the the posi positi tion on or offi office ce he occupies.

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Termination of Temporary Appointments temporary appointments can be term erminated at the pleasure of the appo appoin inti ting ng powe powerr with withou outt noti notice ce and and regardless of ground temp tempor orar ary y appo appoin inte tee e has has no tenur tenure e of office, therefore, strictly speaking there is no removal Term Term fixed by law allows allows the appointe appointee e to hold office office o until expiration of the period o the occupancy of anyone temporarily appointed is precarious and does not come within the contemplation of the Consti Constituti tutiona onall prohi prohibi bitio tion n agains againstt remov removal al or suspe suspensi nsion on excep exceptt for cause

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Removal emoval from from office office on the above above grou ground nds s must must be by orde orderr of the the proper court. The The Presid eside ent has has no power ower to remove elective local officials. Heads of LGU's may investigate and decide matters involving disciplinary actions against officers and employees under their jurisdiction.

Pablico v Villapando The The Offic Office e of the Presi Presiden dentt has no power power to remov remove e electe elected d offic official ials s sinc since e such such powe powerr is vest vested ed in the the proper courts as expressly provided in Sec 60 LGCode. There is a very clear clear legislat legislative ive intent to make make the power of removal a judicial prer preroga ogativ tive e as seen seen in the Senate Senate deliberations. Carlots: What is proper court? This is a weird decision. At what point should the court interfere? If we follow this ruling it would result in absurdity. 1st stage: admin proceedings. proceedings. nd 2 stage: judicial proceedings This would make the court a “rubber stamp” court as it would just implement the decision of admin agency. This is contrary to the function and nature of a Court.

Grounds for Disciplinary Action Under the Local Government Code Elective local officials may be o disciplined; o suspended; o remov removed ed on the follow following ing groun grounds ds committed while in office: Disloyalty to the republic

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(wala na kaming maisip na title.bahala ka na sa blank na yan) o o o

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Dishonesty Oppression Neglect of Duty Misconduct (do (doesn esn’t have to be related to office vs LGCode where it has to be misconduct in office) Disgraceful and immoral conduct Being notoriously undesirable Discourtesy Inefficiency and incompetence Receipt for personal use of a fee, gift or other valuable thing in connection with performance of official duties Convictio Conviction n of crime crime involving involving moral (vs LGCo LGCode de wher where e only only turpitude (vs commission is enough) Improper and unauthorized soli solici cita tati tion on of cont contri ribu buti tion on from from subo subord rdin inat ate e empl employ oyee ees s and and by teachers from school children Viola Violatio tion n of Civil Civil servic service e law, law, rules rules and regulations Falsification of official documents Frequent requent unauthoriz unauthorized ed absences absences or tardiness Habitual drunkenness Gambling Refus Refusal al to perfor perform m offici official al duty duty or overtime Disg Disgra race cefu ful, l, immo immora ral, l, dish dishone onest st conduct prior to entering the service Physical or mental incapacity Borrowing Borrowing money by superior officers from from subo subord rdin inat ated ed or lend lendin ing g by subordinates to superior officers Usurious lending Willf Willful ul failur failure e to pay pay just just debts debts or taxes Contracting loans of money Pursuit of private business, vocation or profession without the permission permission Insubordination Engaging in partisan politics Conduct prejudicial to best interest of the service Lobbying for personal interest or gain in legislative hall and offices without authority Promo Promotin ting g ticke tickett sales sales in behalf behalf of private enterprises Nepotism

General Rule: No compliant against a civil service o offi offici cial al shal shalll be give given n due due cour course se unless it is in writing and subscribed to and sworn to by complainant Exception: When complaint initiated by o disciplining authority it need not be

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in writing and subscribed and sworn to be given due course Penalties: Removal from service o Transfer o Demotion in rank o Suspen Suspensio sion n for not more more than than one o year without pay Fine in an amount not exceeding 6 o months' salary Reprimand o Same Same pena penalt lty y shal shalll be impo impose sed d for for simi simila larr offe offens nses es and and only only one one penalty shall be imposed in each case

Withdrawal of Complaint Rule: Withdrawal of the complaint does not have have the legal legal effec effectt of exone exonerat rating ing the respondent from administrative disciplinary action The The Supr Suprem eme e Cour Courtt does does not not look look with with favor the affidavit of retraction especially when it is executed as an afterthought Howeve However, r, where where an admini administr strati ative ve o case cannot proceed proceed without active active particip participation ation of complain complainant, ant, court may find itself without alternative but to dismiss the complaint.

Misconduct in Office Misconduct Transg Transgres ression sion of some establish established ed o and and defi defini nite te rule rule of acti action on mor more parti particul cularl arly, y, unlaw unlawful ful behav behavior ior or gross negligence by the public officer implies implies wrongful wrongful intent intent and not mere mere error of judgment must be such as to affect his perfor performan mance ce of his duties duties as an officer and not only as affects his character as a private individual o

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Relat elated ed to and and conn connec ecte ted d with performance performance of official duties amounting either to maladministration or willful, willful, intentional intentional neglect neglect and failur failure e to discha discharg rge e the duties duties of office other grounds grounds for discipli disciplinary nary action action may not be connected with performance performance of official duties if crim crime e invo involv lves es mora morall turp turpit itud ude, e, conv convic icti tion on by fina finall judg judgme ment nt is required Committed during a prior term



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an elective official cannot be removed for for admi admini nist stra rati tive ve misc miscon ondu duct ct committed during a prior term, his re-el re-elect ection ion to office office opera operates tes as condonation remo remova vall cann cannot ot exte extend nd beyo beyond nd the the ter term duri during ng whic which h the the alle allege ged d misconduct was committed if offici official al is not remov removed ed befor before e his term of office expires, he can no longer be removed on the theory that that each each term term is separa separate te from from other terms the above above rule rule has no applic applicati ation on to criminal cases pending against reelected public official neither does it appl apply y wher where e the the deci decisi sion on of remov removal al is served served befor before e the rereelection where it had become final for his failure to appeal o

Proved by substantial evidence

Remolana v CSC Dish Dishon ones esty ty is cons consid ider ered ed a grav grave e offe offens nse e punishable by dismissal under EO292. The rule is that dishonesty, in order to warrant dismissal need not be committed in the course of the performance performance of duty by the person charged. Rationale: if a government officer/employee is dishonest dishonest or is guilty of oppres oppression sion or grave grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. By reason of his office, he possess certain influence and power which hich rend enders ers the the victi ictim ms of his his gra grave misconduc misconduct, t, oppressi oppression on and dishones dishonesty ty less disposed and prepared prepared to resist and counteract his evil acts and actuations.

CSC v Lucas In grave misconduct uct, the elements of corr corrup upti tion on,, inte intent nt to viol violat ate e the the law, law, and and flagrant disregard for established rule must be manife manifest. st. These are are not prese present nt in CAB CAB as there was no proof of malicious intent which can classify misconduct as grave, For touching the the ankl ankles es and and thig thighs hs,, Luca Lucas s was was char charge ged d simple misconduct.

Palma vs. Fortich Mayor Mayor was administr administrativ atively ely charged charged and preventiv preventively ely suspended suspended based based solely solely on the filing of three separate criminal cases for acts of lasciviousness. The The groun ground d for filin filing g the admin administ istrat rative ive complaint and suspension is misconduct in office.

While it is true that the charge of act of lascivio lasciviousnes usness s ay involve involve moral moral turpitude turpitude but befor before e the provi provinci ncial al gover governor nor and boar board d may act and proce proceed ed agains againstt the publ public ic offi offici cial al,, a conv convic icti tion on by fina finall judg judgmen mentt must must prece precede de the filin filing g of the administrative administrative complaint. Palma case not yet overturned. The The nexu nexus s requ requir irem emen entt has has been been grea greatl tly y watered down. Carlots: One can bypass this nexus requirement. Charge the officer administr administrative atively ly under the Ombudsm Ombudsman an Law. Law. (Lastimosa v Vasquez) Thi This s is due due to the the fact fact that that Cons Consti titu tuti tion onal al provision provision defining the powers of Ombudsman is very broad. Also, the Ombudsman law itself has no nexus requirement as it does not distinguish between cases WON nexus exists.

Sarigumba vs. Pasok Deputy Sheriff who enforced a writ outside the region of the court which issued it and went out of his way to unduly favor a party in the case is guilty of misconduct which warrants removal from office. The The enfor enforcem cement ent of the writ writ is irre irregul gular ar because as an officer of the court he ought to have known that he cannot enforce the writ outside of the court's jurisdiction.

Nera vs. Garcia A clerk clerk (appointi (appointive ve officer officer)) was charged charged with malversation of funds belonging to a priv private ate enti entity ty,, befo before re he coul could d file file his his answer he was suspended without notice and hearing. The suspension is not illegal being ing mere erely preven eventi tiv ve and not a punishment or penalty. There There is nothing nothing improper improper in suspensio suspensions ns pending investigation. The fact that funds misappropr misappropriated iated was private and not connected to the performance of his duty will not affect the validity validity of the suspensio suspension n because because when the charg charge e is disho dishones nesty, ty, oppre oppressi ssion on or grav grave e misc miscon ondu duct ct,, ther there e is no need need to establish its connection to the duty.



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Ochate vs. Deling Mayor Mayor was was convi convicte cted d of slight slight physic physical al injuries injuries and charged charged with illegal illegal fighting fighting;; subsequently an administrative complaint was filed against him on the grounds of neglec neglectt of duty duty and convic convictio tion n by final final jud judg gment ment of cri crime invol nvolv ving ing mora oral turpitude. The The susp suspen ensi sion on of the the mayo mayorr on such such grounds is not valid because the acts or omis omissi sion ons s cann cannot ot be safe safely ly said said to be related related to the performance performance of his official official duties and he does not have to be Mayor to commit the offenses charged.

Laurel v CSC The position of Provincial Administrator is not prim primar aril ily y conf confid iden enti tial al as it belo belong ngs s to the the care career er serv servic ice. e. Henc Hence, e, it is subj subjec ectt to rule rule against against nepotism. nepotism. Designati Designation on is included included in the ban on nepotic nepotic appoint appointmen ments ts as it is a temporary appointment. To exempt designations would allow easy circumvention circumvention of the law and render such prohibitions prohibitions toothless.

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Nepotism Civil Service Decree prohibits all appoin appointme tments nts in the nation national al and local local governments or any branch or instrumentality made in favor of a relative of the: Appointing authority; o Recommending Recommending authority; o Chief of the bureau office; or o Person exercising immediate o supervision over the appointee. This restriction is not applicable to the case of a member of any family who, after his or her appointment, contracts marriage with someone in the same office or bureau.

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Relative: o Relat Related ed withi within n the third third degre degree e of either either consan consangui guinit nity y or of affini affinity ty.. Nepotism is a pernicious evil imp impedin eding g the the civil vil serv servic ice e and and efficiency of its personnel.

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Exemptions from operation of the rules of nepotism: Confidential employees o Teachers o o Physicians; and o Members of the AFP

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Purpose of the prohibition: prohibition: to ensure that all appointments and o other other person personnel nel actio actions ns in the civil civil service should be based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power.

The The purp purpos ose e is to tak take out out of the the discretion of the appointing authority the matter of appointing a relative.

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Grounds for Disciplinary Action under the Code ode of Con Condu duc ct and Eth Ethical ical Standards this this code code elucid elucidate ates s the State State polic policy y of prom promot otin ing g high high stan standa darrd of ethi ethics cs and and utmost responsibility in the public service The These se are are grou ground nds s for for admi admini nist stra rati tive ve disciplinary action and w/out prejudice to criminal and civil liabilities Directly/indirectl Directly/indirectly y having financial o and material inter terest in any transaction requiring the approval approval of his office. Ownin Ow ning/ g/con contr troll olling ing or accept accepting ing o employment in any private enterprise regulated/supervised by his office. Engaging in private practice unless o authorized o Recom ecomme mend ndin ing g a pers person on to any any position in a private enterprise w/c has regular/ pending transaction w/ his office unless mandated by law or int’l agreement. Disclosing/misusing Disclosing/misusing confidential or o clas classi sifi fied ed info inform rmat atio ion n offi offici cial ally ly know known n to him him by reaso eason n of his his office Soliciti Soliciting ng or accepting accepting in/dire in/directly ctly o any gift ift or favo favorr or any anythi thing w/mon w/moneta etary ry value value in connec connectio tion n w/his office except:  Unsolicited gifts w/nominal value Gift from family on a family  celebration  Nomi Nomina nall dona donati tion ons s from from peopl people e w/ no transa transacti ction on w/his office Dona Donati tion ons s from from priv privat ate e  orgs for


“ __________________________ ______________________________________ ____________” ”

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humanitarian/artistic purpose Dona Donati tion ons s from from gov’ gov’tt to  gov’t entities Gifts/ Gifts/gr grant ants s from from foreig foreign n  gov’ts and Congress consents Obta Obtain inin ing/ g/us usin ing g any any stat statem emen entt filed filed under this code for purpose purpose cont contra rary ry to mora morals ls and and publ public ic policy Unfair Unfair discrimi discrimination nation in rendering rendering public service Disloyalty to the Republic Failure ailure to act promptl promptly y on letters letters and and requ reques ests ts w/in w/in15 15 days days from from receipt Failure to process documents w/in reasonable time Failur ailure e to attend attend to anyone anyone who wants ants to avai availl hims himsel elff of the the services of the office Failure to file statement of assets and liabilities & disclosure of bus. Interests Failu ailurre to resig esign n from from priv privat ate e position w/in 30 days from assumpti assumption on of public public office office when conflict of interest arises or failure to divest of interest w/in 60days

Administrative Administrative Investigation of Elective Local Officials •

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Administrative Administrative offense Ever Every y act act or cond conduc uctt or omis omissi sion on w/c w/c amou amount nts s to, to, or cons consti titu tute tes, s, any any of the the grounds for disciplinary action, imposition of sus suspensi ension on is vali alid alth althou oug gh the the aggregate thereof exceeds 6 months and the unexpired portion of the official's term as long as the suspension imposed for each administrative offense and the successive service of suspension does not exceed the unexpi unexpire red d portio portion n of the term term of office office.. (Salalima vs. Guingona) Admin Administ istra rativ tive e Order Order 23 provi provides des that that admi admini nist stra rati tive ve disc discip ipli lina nary ry case cases s file filed d against elective local officials of provinces, high highly ly urba urbani nize zed d citi cities es,, inde indepe pend nden entt compon component ent cities cities,, compon component ent citie cities s and citi cities es and and muni munici cipa pali liti ties es with within in Metr Metro o ManiIa shall be acted upon by the OP, as the Disciplining Authority (DA). The The DA may may act act thru thru the the Exec Execut utiv ive e Secretary. Secretary of DILG is designated as Invest Investiga igatin ting g Author Authority ity (IA) (IA) who may

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constitute constitute an Investiga Investigating ting Committee Committee in the DILG. The law on suspension or removal of public officials should be strictly construed. Where the the DA is give given n only only the the auth author orit ity y to suspend and not to remove, it should not COMPLAIN T AGAINST ELECTIVE OFFICIAL OF:

BEFORE WHOM FILED:

VENUE IMPOSED OF BY: BY: HEARING S, INVESTIG ATION:

Province

Office of Place OP the where President official (OP), renders decision or hol holds shall be office final and executory Highly OP, Place OP Urbanized decision where City shall be official final and renders executory or hol holds office Independe OP, OP nt decision Componen shall be t City final and executory Componen OP, t City decision shall be final and executory Cities and Municipali ties w/in MMIa

OP, decision shall be final and executory

Governo r

OP

Municipalit Sanggunian Place Governo y g where r Panlalawiga Sangguni n (SPanlal (SPanlal), ), an appealable concerne to the OP d is located Bar Barang angay

Sangg nggunia unian n Place Mayor g where Panlungsod Sangguni (SPanlun) an or concerne Sanggunian d is g Bayan located (SB), decision shall Geof*Golda*Reeza*Sandi be final and executory


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be perm permit itte ted d to mani manipu pula late te the the law law by arbitrarily exercising the power to suspend in a manner that results in the removal of an elected official from office. (Salalima v. Guingona) •

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Initiation of Complaint by any private private individua individuall or governm government ent offi office cerr or empl employ oyee ee by fili filing ng a swor sworn n written complaint. motu propio by the OP or any government agency authorized by law to ensure LGUs act within their powers and functions. Filing of Complaint if offi offici cial al belo belong ngs s to LGU LGU with within in MMIa MMIa,, complaint is filed w/the OP, Malacanang. If LGU outside of MMIa, complaint may be filed filed with the Region Regional al Director Director of DILG, DILG, who shall transmit the same to the DILG Secretary within 48 hours from receipt. DILG Secretary will then transmit the same to the OP within 48 hours from receipt. The governor must be furnished a copy in case LGU concerned is a component city. Metro Metropo polit litan an Manila Manila Author Authority ity must must be furnished a copy in case LGU concerned is a city or municipality w/in MMIa. The DILG must be furnished a copy in all cases.

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Notice and Filing of Answer within 7 days after filing of complaint, DA shall shall requi require re offi officia ciall to submit submit verifi verified ed answ answer er.. answ answer er shal shalll be file filed d with with OP, OP, Mala Malaca cana nang ng,, if LGU LGU is withi ithin n MMIa. Ia. Othe Otherw rwis ise, e, it may may be file filed d with with DILG DILG Regional Director concerned. Transmittal Transmittal procedure in filing of complaint shall be followed. The complainant shall be furnished a copy of the answer. Preliminary investigation (PI) Within 48 hours from receipt of answer, the DA shall refer the complaint and answer to the IA, who shall commence investigation w/in 10 days from receipt. Withi thin 20 days from rece eceipt ipt of the the comp compllaint aint and and answ nswer, er, the the IA sha shall determine WON there is a prima facie case to warr arrant ant the the inst instiituti tutio on of form ormal administrative proceedings. proceedings. o If IA finds no such prima facie case, it shall submit its recommend recommendation ation to the DA for the motu propio dismissal of the case. No PI shal shalll be impo impose sed d with within in 90 days days immediately prior to a local election.

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Preventive Suspension (PS) PS may be imposed by the DA if officials belong to the ff. LGUs: o Provinces Highly urbanized cities o Independent component cities o Cities and municipalities within MMIa. o PS shall be imposed by the Governor if the offic officia iall belong belongs s to a compon component ent city city but only upon direct order of the DA and if the offi offici cial al is unde underr form formal al admi admini nist stra rati tive ve investigation by the OP. No PS shal shalll be impo impose sed d with within in 90 days days immediately prior to any local election. A PS impo impose sed d prio priorr to the the 90-d 90-day ay o period period shall shall automatica automatically lly be lifted lifted upon the start of the period. PS may be imposed: at any time after issues are joined o when the evidence of guilt is strong o given the gravity of the offense there o is great probability that the continuance in office of the respondent could: influence the witnesses or pose a threat to the safety and inte integr grit ity y of recor ecords ds and and othe otherr evidence. Any single PS shall not extend beyond 60 days. days. In case case of severa severall admin administ istrat rative ive cases are filed, PS cannot exceed 90 days within a single year on the same ground/s existing or known at the time of the first suspension. Upon Upon expi expira rati tion on of PS, PS, offi offici cial al shal shalll be deemed reinstated to office w/o prejudice to the the cont contin inua uati tion on of the the proc procee eedi ding ngs s against him. Proceedings shall be terminated within 120 days from time he was formally notified of case against him. o If delay in the proceedings is due to his fault fault,, neglec neglectt or reque request st (other (other than the appeal duly filed), duration of dela delay y shal shalll be excl exclud uded ed in the the computation of the time of termination of the case. Official shall rece eceive no salary or compensation during PS but upon subsequent exoneration and reins reinstat tateme ement, nt, his full full salary salary,, includ including ing accrued emoluments shall be paid. Formal Investigation (Fl) Unreaso Unreasonable nable delay to commence commence the Fl withi thin the the perio eriod d prescr scribed ibed in the the prel prelim imin inar ary y conf confer eren ence ce orde orderr by the the person/s assigned to investigate shall be a


“ __________________________ ______________________________________ ____________” ”

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grou ground nd for for admi admini nist stra rati tive ve disc discip ipli lina nary ry action. Fl shall be terminated by the IA w/in 90 days from start. Unreason Unreasonable able failure failure to complete complete Fl shall shall be a ground for administrative disciplinary action.

Decision Within 30 days after receipt of report and transmittal of records from the IA, the DA shall render a decision in writing, stating clearly and distinctly the facts and reasons for such decision. Respondent and interested parties shall be immediately furnished copies. Decision of the DA shall become final and executory after the lapse of 30 days from receipt, unless a Motion for Recon Reconsid sidera eratio tion n (MR) (MR) is filed filed within within the period. Only 1 MR shall be allowed, except in o meritorious cases. Filing ing of MR sha shall sus suspend end the the o running of the 30-day period. Appeal An appeal shall not prevent a decision from becoming final or executory. When there there is executi execution on pending pending appeal, the official shall be deemed to have been placed under PS during the pendency of an appeal, if the event he wins such appeal. In case appeal results in exoneration, the official shall be paid his full salary and all accrued emoluments during the pendency of the appeal. Imposition of Penalty (either Suspension or Removal) Penalty of suspension shall not exceed the unexpired term of the official or a period of 6 months for every administrative offense. o It shall not be a bar to the candidacy of the suspended official provided he meet meets s the the qual qualif ific icat atio ions ns for for the the office. Penal Penalty ty of remov removal al from from office office may be imposed by order of proper court or the DA, whichever acquires jurisdiction first, to the exclusion of the other. Removal as a result of administrative o investigation is a bar to the candidacy of the removed official for any elective position. Executive Clemency In meritorious cases and after his decision has has beco become me fina finall and and exec execut utor ory, y, the the Presi esident ent may comm commut ute e or remo emove

admin administ istrat rative ive penalt penalties ies or disabi disabilit lities ies impose imposed d upon upon local local electi elective ve offici officials als in administr administrative ative discipli disciplinary nary cases, cases, subject subject terms he may impose in the interest of the service.

A.O. 23

Complaint Motu proprio Notice to file answer (answer filed) Refer to Inv. Authority for PI

dismissal motu motu prop propri rio o recommended

Formal Inve Invest stig igat atio ion n Decision

Disciplining Authority Dismisses

Motion for Recon (once only) Appeal

Preventiv e sus ensi

Executio n Pending

Executive Clemency

Joson vs. Torres Rules ules on remov emoval al and and susp suspen ensi sion on of elective elective local officials officials are more more stringent stringent than those governing appointive appointive officials. When When an electi elective ve offic official ial is remov removed ed or suspended, the people are deprived of the services of the person they had elected. Thus, suspension and removal are imposed only after the elective official is accorded his right rights s and the eviden evidence ce agains againstt him strongly dictates their imposition.

Disciplinary Action Against Appointive Local Officials and Employees



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Investigation and adjudication of admi admini nist strrativ ative e compl ompla aints ints agains ainstt appointive local officials shall be governed by the Civil Service Law and other pertinent laws.

Preventive Suspension Local chief executives (LCE) may suspend any official or employee under his authority pend pendin ing g inve invest stig igat atio ion n for for a maxi maximu mum m period of 60 days, if the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duly, or if there is reason to believe that the respondent is guilty of the charge w/c would warrant his removal. Upon Upon expi expira rati tion on of PS, PS, offi offici cial al shal shalll be deem deemed ed reins einsta tate ted d to offi office ce with withou outt prej prejud udic ice e to the the cont contin inua uati tion on of the the proceedings proceedings against him. If delay in the proceedings is due to his fault, fault, neglect neglect or request, request, the duration duration of delay shall be excluded in the computation of the time of suspension. Administrative Administrative Investigation In any LGU, LGU, admin admin invest investig igati ation on may be conduc conducted ted by any person person or commit committee tee authorized by the LCE. o Such Such pers person on or comm commit itte tee e shal shalll conduc conductt hearin hearings gs and submit submit their their findings and recommendations to the LCE within 15 days from the conclusion of the hearings. Admin Admin cases cases shall shall be decid decided ed withi within n 90 days days from from time time when when resp respon onde dent nt was was formally notified of the charges. Disciplinary Jurisdiction The LCE may impose the ff. penalties: o removal, demotion in rank, o suspension for not more than 1 year o without pay, o fine not exceeding 6 months' salary, o reprimand or any other form of discipline. o If penalty is suspension without pay for not more than 30 days, LCE's decision shall be final. o If heav heavie ierr than than susp suspen ensi sion on of 30 days, decision of the LCE is appealable to the CSC. CSC shall decide the appeal within 30 o days from receipt

Execution Pending Appeal

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An appeal shall not prevent the execution of a decision of removal or suspension. In case of exonera exoneration, tion, official official or employee employee shall be reinstated to his position w/o loss of any rights pertaining to his office.

Disciplinary Disciplinary Jurisdiction of the CSC

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CSC has authority to administer the Civil Service and the power to exercise quasi judicial functions: o It has the power to hear and decide admin administ istrat rative ive disci discipl plina inary ry cases cases instituted directly with it or brought to it on appeal. It has the power to enforce or order o execution execution of its decisions, resolutions resolutions and orders.

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CSC CSC shall shall decid decide e upon upon appeal appeal all admin admin cases involving the imposition of a penalty of suspension for more than 30 days or a fine exceeding 30 days' salary, demotion in rank rank or sala salary ry or tran transf sfer er,, remov emoval al or dismissal from office.

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CSC is an agency within purview of the law with respect to its employees. (Enrique vs. CA)

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Complain Complaintt may be filed filed directly directly with the CSC by a private citizen. CSC may hear and decide the case or it may deputize any department, agency or official/s official/s to conduct an investigation. Resul esults ts of the the inve invest stig igat atio ion n must must be submitted to the CSC with the recommended penalty or any other action to be taken.

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Heads of departments, agencies, instru instrumen mental taliti ities, es, provi province nces, s, cities cities and munici municipal paliti ities es shall shall have have juris jurisdic dictio tion n to investig investigate ate and decide decide matters matters involvin involving g disc discip ipli lina nary ry acti action on agai agains nstt empl employ oyee ees s under their jurisdiction. jurisdiction. o Investigations may be entrusted to a regional director or similar officials. If the the deci decisi sion on incl includ udes es impo imposi siti tion on of suspension for not more than 30 days or fine not exceeding 30 days' salary, decision shall be final. If not, it is appealable to the CSC. Deci Decisi sion on may may be appe appeal aled ed firs firstt to the the departmen department, t, with the agency agency concerned concerned,, and then to the CSC. Pendi ending ng appe appeal al,, it shal shalll be exec execut utor ory y except when penalty is removal. Decision shall only be executory when confirmed by the dept or agency head concerned.



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An appeal shall not prevent a decision from becoming final or executory, and when the pena penalt lty y is susp suspen ensi sion on or remo remova val, l, the the offi offici cial al shal shalll be deem deemed ed to have have been been placed under PS during the pendency of an appeal, if the event he wins such appeal. Appeals, Appeals, where allowabl allowable, e, must be made by the "party "party adversely adversely affected" affected" by the decision

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GSIS vs. CSC The The author authority ity of a tribun tribunal al or agency agency to deci decide de case cases s is inut inutil ile e unle unless ss it also also incl includ udes es the the auth author orit ity y to execut ecute e its its jud judgm gmen ents ts,, unle unless ss the the law law othe otherw rwis ise e provides.

Mendez v. CSC This refers to the employee against whom the admin case was filed. The law does not contemplate a review of decisions exonerating officers from admin charges charges (meaning: (meaning: complain complainants ants cannot cannot appeal in the event the official charged is exonerated).

The above ruling was overturned when the SC held that the CSC had become a "party adversely affected" by the decision of the CA w/c w/c rever everse sed d the the CSC' CSC's s deci decisi sion on to remove the employee charged. As an aggrieved party adversely affected by the decision w/c seriously prejudiced the civil service, the CSC may appeal to the SC.

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Under PD 807 (Civil Service Decree)

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Commencement Commencement of Proceedings

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Admin Admin proceed proceedings ings may be commenced commenced against a subordinate officer or employee by: by: The The head head of the dept dept or offic office e of o equivalent rank or head of LGU, or chief of agency or regional director. o Or upon sworn written complaint of any other person.

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The The comp compla lain inan antt shal shalll subm submit it swor sworn n statements covering his testimony and his witnesses' testimony, with h is documentary evidence.

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If on the basis of such papers, no prima facie case is found, the DA shall dismiss the case.

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If there is a prima facie case: o The DA shall notify the respondent of the charges. o He shall be allowed to answer within 72 hours from receipt of such notice. He shall shall indica indicate te WON he elects elects a o formal investigation if his answer is insu insuff ffic icie ient nt for dism dismis issa sall of the charges. If his answer answer is found found satisf satisfact actory ory,, o the the char charge ges s agai agains nstt him him shal shalll be dismissed.

[The 2 cases were decided by the SC, in different divisions, divisions, in the same year (1999). The Mendez ruling was decided earlier.] •

CSC has no power to reconsider its decision which which has becom become e final final and execu executor tory, y, even in the event of discovery that such judgment may be erroneous. erroneous. Doct Doctri rine ne of fina finali lity ty of judg judgme ment nt o provi ovides des that that once nce a dec decisi ision become becomes s final final and execu executor tory, y, it is removed from the power and jurisdiction of the court w/c rendered it. This doctrine doctrine also applies applies to quasiquasio judicial agencies.

Summary procedure procedure is no longer allowed in hearing and deciding cases before the CSC. Sec. 40 of PD 807, which dispenses with the conduct of an investigation and allows imme immedi diat ate e remo remova vall base based d on cert certai ain n grounds, was already repealed by RA 6654. o Sec. 40 of PD 804 is unconstitutional to the the exte extent nt that that it depr depriv ives es the the employee employee procedu procedural ral due process process.. (Rosete vs. CA)

PROCEDURE IN ADMINISTRATIVE CASES AGAINST NON-PRESIDENTIAL APPOINTEES

Remedy of appeal may only be availed of when the employee charged is found guilty of the charges.

CSC vs. Dacoycoy

Mandamus is remedy to enforce an order of the CSC w/c has become final and executory.

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Formal Investigation Although no request for a formal inve invest stig igat atio ion n was was made made,, one one shal shalll be conducted if the merits of the case cannot be judi judici ciou ousl sly y deci decide ded d base based d on the the complaint and answer alone.



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Investigation shall be held not earlier than 5 days nor later than 10 days from receipt of answer and shall be finished within 30 days from the filing of th e charges. The DA shall render the decision within 30 days from the termination of the investigation or submission of the report of the investigator (must be submitted within 15 days from the termination). Direct evidence shall consist of the sworn statements statements and documents documents submitted in support of the complaint and answer, and additional evidence which was unavailable at the time of the filing of the pleadings mentioned. Respondent Respondent and complainant shall be o cross-examined on the basis of such direc irectt evi evidenc dence. e. Ther here may be redirect and recross-examinations. Both parties may choose to have counsel, require attendance of witnesses and make use use of subp subpoe oena na and and subp subpoe oena na duce duces s tecum. Investigat Investigation ion shall shall be conducted conducted only for the purpose of ascertaining the truth and without without necessari necessarily ly adhering adhering to technical technical rules. It shal shalll be cond conduc ucte ted d by the the DA or his his authorized representative. representative. The The phra phrase se "any "any othe otherr part party" y" shal shalll be understood to be a complainant other than the head of the dept or office of equivalent rank, or head of LGU, or chief of agency or regional director.

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A Petit Petition ion for Recon Reconsid sidera eratio tion n shall shall be based ONLY on the ff: o Newly Newly discov discover ered ed eviden evidence ce which which mate materi rial ally ly affe affect cts s the the deci decisi sion on rendered. Deci Decisi sion on is not not supp suppor orte ted d by the the o evidence on record. o Errors ors of law or irregula ulariti rities es prej prejud udic icia iall to the the inte interrest est of the the respondent. Only Only 1 Petit Petition ion for Recon Reconsi sider derati ation on shall be entertained. o o

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The 5-day bar rule is conducting the admin investigation is indispensable, and enables both parties to explor explore e the possibil possibility ity of clarify clarifying ing their problems problems and accords accords the defe defend ndan antt ther therei ein n adeq adequa uate te time time to prep prepar are e a suit suitab able le defe defens nse e in case case no settlement is obtained. •

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Allowable Appeals App Appeals eals sha shall be made by the the party rty adversely affected by the decision within 5 days from receipt of the decision unless a Petition for Reconsideration Reconsideration is seasonably file filed, d, whic which h shal shalll be deci decide ded d with within in 15 days. Notice of appeal shall be filed with the DA, whic which h shal shalll for forwar ward the the same same to the the appell appellate ate author authority ity within within 15 days days from from filing the notice. Only the respondent can appeal from the decision of the MSPB. (Mendoza vs. CSC) [The MSPB has been abolished]

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Under EO 26-A: All contested cases under the Admin Code shall be decided within 30 days from date of submission for resolution, unless a different period is provided for by special law. Where action is merely recom ecomme mend ndat ator ory y to imme immedi diat ate e superior or head of office, he shall submit such recommendation within 20 days from date of submission of the case for resolution. Approving officer shall have 10 days to decide the case. A case case is deem deemed ed subm submit itte ted d for for resolution upon expiration of period for filing filing of memorandum memorandum,, position position paper or last pleading required. Every officer charged with resolution of the the case case shal hall sub submit to his his superior within 10 days ff. the end of every every month month a sworn sworn statem statement ent of disposition disposition of cases. Only one MR shall be allowed, which shall be decided within 15 days from date of submission for resolution. Only opposition to such MR shall be the only pleading allowed, apart from the MR itself. Failure to submit such sworn stat statem emen entt of disp dispos osit itio ion n of case cases s shal shalll caus cause e the the w/ho w/hold ldin ing g of the the salary of the officer concerned, until he complies.

Merit System Protection Board •

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Predecessor Merit Systems Board Creating Law: PD # 1409 o Composition: Commissioner 2 Associate Commissioners Commissioners Appointing Power the Civil Service Commissioner (who o serves as the Executive Officer) Qualifications: same as RTC judges



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Removal: for cause as provided by law

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Renamed by: Administrative Code of 1987 Composition: o Chairman 2 Members

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Organization: part of the CSC

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Powers and Functions: hear and decide administrative cases o involving involving officers and employee employees s of the civil service decision is final except: involving dismissal or separation form the service (appealable to the CSC) hear hear and decide decide cases cases broug brought ht by o employees aggrieved by the determination of appointing auth author orit itie ies s invo involv lvin ing g pers person onne nell actions actions and violatio violations ns of the merit merit system tak take cogni ogniz zance ance of compla mplaiints nts o affecting functions of the CSC which are unacted upon by other agencies administe administerr oaths, oaths, issue issue subpoenas subpoenas,, o take testimony in any inquiry, punish for contempt (see notes for comment on this) promulg promulgate ate rules rules and regulati regulations, ons, o subject to approval of CSC, to carry out the functions of the board

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the jurisdic jurisdiction tion of the board board is exclusi exclusive, ve, excep exceptt for for CSC CSC jurisd jurisdict iction ion to hear hear and decide decide administr administrative ative discipl disciplinary inary cases instituted directly with it or on appeal (Sec 9(1) of the Civil Service Decree)

The powers of the CSC fina finall arbi rbiter ter over perso ersonn nne el actio ctionnempowered to review the decisions of the MSPB no power to review decisions exonerating exonerating officers and employees Rubenecia v CSC The change instituted by CSC Res. 93-2387 is valid. The functions of MSPB relating to the the dete deterrmina minati tion on of admi admini nist stra rati tive ve disciplinary cases were re-allocated to the Commis Commissio sion n itself itself.. These These change changes s were were prescribed by the Commission to stream streamli line ne the opera operatio tion n of CSC which which requi required red the simpl simplifi ificat cation ion of system systems, s, cutt cuttin ing g of red red tape tape,, and and elim elimin inat atio ion n of unnecessary bureaucratic layer.

MSPB MSPB was was gran grante ted d powe powerr of cont contem empt pt.. Hence, it is a quasi-judicial agency. However, However, (Rubene (Rubenecia cia v CSC) provides provides that admin cases pending on appeal before the MSPB be brought directly or elevated to CSC for for fina finall reso resolu luti tion on.. In effe effect ct,, MSPB MSPB was was deprived of jurisdiction. Carlots: Jurisdiction was vested on MSPB by law (PD1409). Thus only law can confer or deprive courts and quasi-judicial agencies of jurisdiction jurisdiction (Pelaez v Auditor General). CSC can only reorganize. But when pursuant to such, it ends up depriving a QJ agency of jurisdiction, jurisdiction, then such cannot be valid. •

Preventive Suspension

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Preve Preventi ntive ve Suspen Suspensio sion n (for (for regul regular ar administrative administrative investigations) o for civil civil service service employees employees charged charged with offenses punishable by removal or suspension

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Pending investigation Imposed by whom: proper disciplining authority Basis for imposition: ▪ When When the the char harge inv involves lves dishonesty dishonesty,, oppressi oppression, on, grave grave misc miscon ondu duct ct,, negl neglec ectt in the the performance performance of a duty If there are reasons to believe ▪ that the respondent is guilty of charges charges which which would would warrant warrant his removal from the service Designation of a replacement is not a require requirement ment to give effect effect to the preventive suspension Duration should not amount to a denial ▪ of due process ▪ cann cannot ot be for for an inde indefi fini nite te period ▪ cannot be for an unreasonable length of time shou should ld be co-e co-equ qual al with with the the ▪ period prescribed for describing admi admini nist stra rati tive ve disc discip ipli lina nary ry cases if case is decided in less than ▪ 90 days, duration is less than 90 days



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if case is decided in more than 90 days, should be a maximum of 90 days if not a presidential appointee: must be automatically reinstated after the days from the date date of suspen suspensio sion n from from office when the delay is due to the fault, negligence or petition of the respond respondent, ent, the period period of delay shall not be counted in computi uting the period of suspension

Preventive Suspension CSC Law 90 days LGCode 60 days Ombudsman Law 6 months Anti-graft Law 90 days PNP Law Until resolution of case Pending appeal Requisites: Penalty imposed on the ▪ respo responde ndent nt is suspen suspensio sion n or removal ▪ Respondent has been exonerated after review Purpose of Preventive Preventive Suspension To To prevent prevent the officer officer or employee employee o from from usin using g his his posi positi tion on,, and and the the powers and prerogatives of his office to intimida intimidate te or influence influence potential potential witnes witnesses ses,, or tamper tamper with with recor records ds which may be vital in the prosecution.

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Preventi Preventive ve Suspension Suspension is not violative violative of the Constitution Even before charges against him/her o are are hear heard d and and s/he s/he is give given n the the opportuni opportunity ty to prove prove his innocence, innocence, and the chance to file his answer to the administrative administrative complaint o It is not not a pena enalty lty, so it can be decre decreed ed after after charg charges es have have been been brought and under investigation suspended officer or employee remains enti entitl tle ed to the the cons onstitu tituti tion onal al presu presump mptio tion n of innoce innocence nce since since his/ his/he herr culp culpab abil ilit ity y must must stil stilll be established Right Right to Compensati Compensation on during during Preventi Preventive ve Suspension Sec. 52 of the present Civil Service o Law (EO 292) 292) has no provi provisio sion n for

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payment of salaries during suspension. Sec. Sec. 24 of the Ombusdm Ombusdman an Act Act of 1989 (RA 6770) states that prev preven enti tive ve susp suspen ensi sion on shal shalll be "without pay." No comp compen ensa sati tion on is due due for for the the peri period od of prev preven enti tive ve susp suspen ensi sion on pending investigation. Reasons: Reasons: Not receiving compensation even when exonerated is one of the sacrifices which hich hol holding a publ ublic offi ffice requires for the public good Preventive suspension is authorized by law so it is not unjustified An offic officer/ er/ emplo employee yee is allow allowed ed to recover compensation for the period of suspension pending appeal Requirements: the employee is exonerated exonerated ▪ suspension must be unjustified ▪ (not among the bases enumerated) Reasons: It is punitive ▪ he punish punishmen mentt is consid consider ered ed ▪ ille illeg gal if the the emp employ loyee is exone exonerat rated ed and the decisi decision on finding him guilty is reversed "But though an employee is considered under preventive susp suspen ensi sion on,, duri during ng the the peri period od of appe appeal al in the the even eventt he wins wins,, his his suspen suspensio sion n is unjust unjustifi ified ed becaus because e what the law authorizes is preventive suspension for a period not exce exceed edin ing g 90 days days.. Beyo Beyond nd that that peri period od,, the the susp suspen ensi sion on is ille illega gal. l. Hence, Hence, the employ employee ee is entitl entitled ed to reinstatement and full pay." Does Does “full “full pay" pay" mean mean for the entir entire e period of appeal, or just the excess over over 90 days days of the the sum sum of the period period of preve preventi ntive ve suspen suspensio sion n pending investigation and appeal? Amount of award or compensation should not exceed the equivalent of 5 years pay, at the rate last received before the suspension was imposed

Gen. Principles on Preventive Suspension 1. PS is not not a pena penalt lty y 2. There There is is no viol violati ation on of due due proc process ess if if one is preventively suspended with due process (notice and hearing). 3. Rules Rules applic applicabl able e to PS depend depends s on the law under which the proceedings are conducted. 4. Ther There e are are 2 typ types es of of PS: PS: Geof*Golda*Reeza*Sandi a. PS pen pendi ding ng inv inves esti tiga gati tion on b. PS pen pendi ding ng app appea eal. l.

“ __________________________ ______________________________________ ____________” ”

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Preventive Suspension (for admi admini nist stra rati tive ve char charge ges s befo before re the the Ombudsman) - RA 6770 (Ombudsman Act of 1989)

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Who may suspend: The Ombudsman o His/her deputy o

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Under what conditions: o evid eviden ence ce of guil uilt is str strong ong (as determined by the Ombudsman), and any of the following: o the charge involves dishonesty, ▪ oppressio oppression, n, grave grave misconduc misconductt or neglect in the performance of duty the the char charge ge woul would d warr warran antt a ▪ removal from the service the the resp respon onde dent nt's 's conti continu nued ed ▪ stay in office may prejudice the case filed against him

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Who may be suspen suspended ded:: Offic Officers ers under under Ombudsman's disciplinary authority: o All elective and appointive officials of the government, including members of the cabinet o Excluding: officials which may be removed only by impeachment members of Congress the Judiciary

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How is preventive suspension effected: pending investigation o duration: discretion of the o Ombudsman until the case is terminated maximum of 6 months unless the delay in the ▪ disposition of the case is due to the respondent's fault, negligence or petition ▪ period of delay not included in computing the 6-month period ▪ longer period of 6 months is to emphasize and implement the author authority ity of the Office Office of the Ombudsman over public officials and employees without pay o

no requi require remen mentt of prior prior notice notice and hearing because it is not a penalty

Preventi Preventive ve Suspen Suspension sion (for (for criminal criminal investiga investigation tions)s)- under under the Anti-Gra Anti-Graft ft and Corrupt Practices Act (RA3019)

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Mandatory under Section 13

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Requir equireme ements nts for the applic applicati ation on of this this provision that the accused is a public official, o whether: appointive or elective official permanent or temporary employee career or non-career that that ther there e be a prepre-su susp spen ensi sion on o hearing to deter etermi mine ne the the valid alidiity of the the information furnishes the court with a basis to: sus suspend end the the accu accus sed and ▪ proc procee eed d with with the the tria triall of the the case, or refus refuse e the suspen suspensi sion on of the ▪ accused and dismiss the case, or ▪ correct any part of the proce proceedi eding ng which which impai impairs rs its validity validity,, as when the accused asse assert rts, s, amon among g othe others rs,, the the right to preliminary investigation, or that the crime imputed does not constitute a specific specific crime crime warranti warranting ng the mandatory suspension, or that the infor informat mation ion is subjec subjectt to quashal based on Rule 117 it is the ministerial duty of the ▪ cour courtt to issu issue e the the orde orderr of preventive suspension once the valid validity ity of the infor informat mation ion's 's established ▪ that s/he be indicted under a valid information as determined in the presuspension hearing that the office from which s/he ▪ is suspended is any office s/he might concurrently be holding, and not necessarily the partic particula ularr office office under under which which s/he was charged

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Crimi Criminal nal prose prosecut cution ion is not necess necessari arily ly abated by an elective officer's reelection.

•

Preven Preventiv tive e Suspen Suspensio sion n Public Officers

for

Specif Specific ic



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Members of the PNP (under RA 6975) o under Sec 47, if charged with a grave offense (penalty is 6 yrs and 1 day or more) more) until until the termin terminati ation on of the case o Civil Service Law and IRR applicable only insofar as not inconsistent with RA 6975

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Local Local Electi Elective ve Offic Official ials s (under (under the Local Local Government Code, RA 7160) 60 days max o this is because: o respondent is elected by the people may be ordered only after "issues are joined" all preli prelimin minary ary requi require remen ments ts ▪ and and exch exchan ange ges s have have been been completed respo responde ndent nt had alread already y filed filed ▪ his counte counterr-affi -affidav davits its to the affid affidavi avits ts of the compla complaina inant nt and the complainant's witnesses

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Presidential Appointees and Other Elective Officials should not be unreasonably long (due o process questions) right to hold office after acquittal would have been nullified term could be shortened or appointee could could be remov removed ed withou withoutt cause cause establ establish ished ed after after heari hearing ng in the guise of preventive preventive suspension electo electorat rate e entitl entitled ed to the servic services es of the elective official of their choice would would be inflic inflicted ted with with injust injustice ice when the s/he is unable to perform his/her functions o Cons Consti titu tuti tion onal alit ity y of prev preven enti tive ve suspension of a member of Congress is still debatable

TO JUSTIFY … Eviden Evidence ce of guilt guilt must must It is enough that: be strong and 1. 1. there is 1. the charge a g. g. the reasonable officer or employee ground to should involve belie believe ve that that the dishonesty, respo responde ndent nt has oppre oppressi ssion, on, grave grave comm commit itte ted d the the misconduct or act or acts neglect in the complained of; performance o 2f. 2. evidence of duty; culpability is 2. the charges should strong war warrant rant remov emoval 3 al. 3. gravity of the from service; or offense so 3. the continued stay warrants; or in office o 4f. 4. the resp respon onde dent nt woul would d cont contin inua uanc nce e in preju prejudic dice e the case case office of the filed against him. respondent could could influe influence nce the witnesses or pose a threat to the the safe safety ty and and inte integr grit ity y of the the records and other evidence •

Removal Distinguished

Removal Duration

Hagad v Gozo-Dadole The 6-month 6-month preventi preventive ve suspensio suspension n without without pay under the Ombudsm Ombudsman an Act is not repugnant to the 60-day preventive suspension suspension in the LGC Preventi Preventive ve suspensio suspension n under Ombudsman Act

Preventive susp suspen ensi sion on LGC

unde underr

and

Nature

Suspension Suspension

Permanent Temporary disenfranchiseme stoppage of nt an official power and pay but if suspension is to continue until the end of the case, might be a virtual removal since the prosecution might take longer than the respondent's term of office Administrative Not a penalty penalty Only a measure of protection to insure proper and impartial conduct of an investigation



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Time of Impositio n

At the termination of the investigation or the final disposition disposition of the case

During the period of investigation Even before charges are heard o

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Schedule of Administrative Penalties The CSC has classifi classified ed penalties penalties for administr administrative ative offenses offenses under PD 807and 807and RA 6713: Grave Offenses o Dismissal Suspension from and 1 day to 1 year for for first irst offe offens nse, e, dism dismis issa sall for for second offense o Less Grave Offenses Suspension from 1 month and 1 day to 6 months for first offense, dismissal for second offense o Light Offenses Reprima rimand nd for for the the firs irst offens fense, e, suspension from 1 day to 30 days for the second offense, se, and dismissal for the third offense

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Imposition of Special Penalties o Offenses under PD 807 Forced resignation instead of dismissal Trans Transfer, fer, demotion demotion or fine instead instead of susp suspen ensi sion on from from 1 mont month h and and 1 day to 1 year Fine instead of suspension from 1 day to 30 days Offenses under RA 6713 o Only Only one one pena penalt lty y impo impose sed d for for each each case involving one or more charges or counts

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Determination of Penalties to be imposed Aggravating and mitigating o circumstances may be considered o If found guilty of two or more charges or counts, penalty imposed should be for the most serious charge or count and the rest are considered aggravating circumstances

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Accessory penalties o Dismissal Cancellation of eligibility eligibility Forfeiture of leave credits Forfeiture of retirement benefits Disquali Disqualificat fication ion for reemplo reemployment yment in the government service o Forced resignation Forfeiture of leave credits Forfeiture of retirement benefits

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Disqualification for employment in the government service for one year Disqualification for reemployment in a class or position in the government service if the resignation contains such condition Administrative penalty is not a bar to the convicti conviction on under general penal laws

Removal of Administrative Penalties Presid President ent may commute commute or remove remove o administrative penalties or disciplinary disciplinary cases Requirements: In meritorious cases and ▪ Upon recommen recommendati dation on of the the ▪ CSC Subje ubject ct to ter terms and and cond condiitio tions Presid sident ent may impos mpose e in the the interest of the service

THE SANDIGANBAYAN SANDIGANBAYAN •

Jurisdiction of the Sandiganbayan Sandiganbayan

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Subject Matter PD 1606, amended by RA 7975 and o RA 8249 o violations of RA 3019 (Anti-Graft and Corrupt Practices Act) and RA 1379 (Forf (Forfeit eitur ure e of Unlaw Unlawful fully ly Acqui Acquire red d Property) o crimes committed by public officers and employees under Title VIII of the RPC other offenses or felonies committed o by public officers and employees in relati elation on to thei theirr offi office ce wher where e the the penalty prescribed is high higher er than than pris prisio ion n corr correc ecci cion onal al or imprisonment of 6 years fine of P6000 civil and criminal cases filed pursuant to E01, E02, E014, and EO 14-A

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Persons PD 1606 sec 4(a) and (b) o in general, SG 27 or higher for other other governm government ent officers officers,, check enumeration in pages 462-463 priv privat ate e indi indivi vidu dual als s char charge ged d as cocoprincipals, accomplices, or accessories

•

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Excl Exclus usiv ive e orig origin inal al juri jurisd sdic icti tion on ordinary courts (RTC, MTC)

of

When none of the accused are:


“ __________________________ ______________________________________ ____________” ”

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER (wala na kaming maisip na title.bahala ka na sa blank na yan) o o

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occupying SG27 or higher positions military or PNP officers

When When ther there e is no alle allega gati tion on that that the the offense charged was necessarily connected with with the the discha scharrge of the the dutie uties s or functions of a public officer: must be direct relation between the o crime and the office offe offens nse e cann cannot ot exis existt with withou outt the the o public office

•

•

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SB has exclusive appellate jurisdiction over RTC decisions in exercise of: Original jurisdiction o o Appellate jurisdiction

Carlots: This is Obiter! Sandiganbayan had been removing public officers for years.

Offi fficial cials s sub ubje jec ct to disciplinary disciplinary authority

Ombu bud dsman sman

All elective and appointive officials Including: o Members of cabinet LGUs GOCCs and subsidiaries Excluding: o officials removed by impeachment members of Congress members of the Judiciary

The Ombudsman •

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Powers, Functions, and Duties of the Ombudsman Investigate (motu proprio or upon complaint complaint by any person) person) any apparently apparently illegal, unjust, improper, or inefficient act or omission of any public official, employee, office or agency Direct any such official to perfor perform, m, or exped expedite ite any act or o duty required by law or to stop stop,, prev preven entt and and cor correct rect any any o abuse or impropriety Direct the officer concerned to take appropriate action against a o public public offici official al or employ employee ee at fault fault and o to recommend his: removal suspension demotion fine censure prosecution and and to ensu ensure re comp compli lian ance ce of the the o above Determine Determine the cause of inefficie inefficiency, ncy, red tape, tape, misman mismanage agemen ment, t, fraud fraud and corruption and make recommendations for their their elimin eliminati ation on and the observ observanc ance e of high standards of ethics and efficiency

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By Impeachment

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Meaning a method of national inquest into the o conduct of public men

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Purpose of impeachment to protect the people (the State) from o official delinquencies or malfeasances o not the punishment of the offender penalt naltiies are incid nciden enta tall to the the o protection protection of the people

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How removed: o impeachment for and o conviction of impeachable offenses

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Impeachable offenses culpable violation of the constitution o treason o o bribery o graft and corruption o other high crimes o betrayal of public trust

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Officers removable by impeachment President o Vice-President o o Members of the Supreme Court Member mbers s of the the Cons onstitu tituti tio onal nal o Commission The Ombudsman o

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Procedure for impeachment o House House of Represe epresenta ntativ tives es initia initiates tes the case

Tapiador v Ombudsman The Ombudsman has no power to directly dismiss Tapiador from the BID. Under the Consti Constituti tution, on, the Ombud Ombudsma sman n can only only recommend the removal of an erring public official, to the official concerned.

Only Only Office Office of the Ombu Ombudsm dsman an ma may y inve invest stig igat ate e offi offici cial als s remo remova vabl ble e by impeachment


“ __________________________ ______________________________________ ____________” ”

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Senate sits as the court for trial of the case

occupant who would lose his posit position ion Post Post subs subsis ists ts and and occup ccupa ant is merely separated

Liability of convicted officer Removal from office o Disqualification Disqualification to hold any office o Lia Liable and and sub subject ect to crimin imina al o prosecution, trial, and punishment

Right to security of tenu tenurre does oes not exist in a non-existent office

Manalang vs. Quitoriano •

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By Abolition of Office

M, the the dire direct ctor or of a bure bureau au whic which h was was abol abolis ished hed clai claims ms that that he was was ille illega gall lly y removed by virtue of failure to appoint him head of the new office which replaced the abolished bureau.

Who has the power to abolish o General Rule: Congress may abolish, without infri nfring ngin ing g upo upon the the rights hts of employees or officers affected Exception: o President, when power is delegated to him/her LGU, when power is delegated to it People, when amending the Constitution When to exercise exercise the power anyt anytim ime, e, even even when when some someon one e is o occupying the office no deprivation of right of incumbent o because s/he has no contractual right or property interest in the office acce accep ptanc tance e of offi offic ce is with ith the the unde unders rsta tand ndin ing g that that it may may be abolished anytime tenure of office is not not affected affected by the Constitutional prohibition prohibition against the impairment of Contracts o security of tenure (no removal except except for for caus cause) e) does does not not prot protec ectt them them from from aboli abolitio tion, n, excep exceptt if there there is a provision prohibiting the abolition of the position What constitutes abolition intention to do away with it wholly o and permanently o not when the posit position ion is the same one one for formerl merly y held held but but bear bearin ing g a different name removal, which is ousting from office o before the expiration of the term and implie implies s the exis existenc tence e of the office office after the ouster

There has been no removal because M was never the director of the new office. The new office is separate from the old one, as the the law law abol abolis ishi hing ng the the old old offi office ce and and creating the new one allowed the "transfer" (whic (which h conno connotes tes a separ separate ate and disti distinct nct office) office) rather rather than "retenti "retention' on' of qualifie qualified d personnel.

Eugenio v CSC CSC CSC has has no powe powerr to abol abolis ish h the the CESB CESB.. It cann cannot ot be disp dispute uted d that that as the the CESB CESB was was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function. From its inception. the CESB was intended to be an autonomous entity, albeit admi admini nist stra rati tive vely ly atta attach ched ed to CSC. CSC. By said said attachment, CESB was not made to fall within the control of CSC for its reorganization. The purpose of attaching a functionally inter-related gover governme nment nt agency agency to anothe anotherr is to attain attain "policy and program coordination." -

Abol Abolit itio ion n must must not not cons consti titut tute e remo remova vall without cause o valid exercise of power of abolition made in good faith abs absenc ence of politi litic cal or pers ersona onal motivation (there is some reasonab reasonable le ground ground for abolishin abolishing g the position) not implemented in violation of law exception to valid exercise of power o to abolish done in bad faith

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Effect of a valid and bona fide abolition of office

Remov Removal al from from office office and termin terminati ation on by abolition distinguished

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Effect

Removal Abolition There is an No more office with an occupant



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deni denies es to an incu incumb mben entt righ rightt to security of tenure

The creation of a new office requiring huge outlay shortly before the abolition of their positi sition ons s show hows that that the the excuse cuse of economy and efficiency is unimpressive. unimpressive.

Basic Principles in Abolition 1. Congr Congress ess can can create create offi offices ces (plen (plenary ary power) 2. Corro Corrolar larily ily,, it has plen plenary ary pow power er to abolish 3. It is is subj subject ect to 2 lim limita itatio tions ns a. Can’t Can’t aboli abolish sh consti consti office offices s b. Cons Consti ti pre presc scri ript ptio ion n on

Fernandez v Sto. Tomas CSC CSC had had lega legall autho authori rity ty to re-a re-arr rran ange ge,, merge, merge, and rename rename some some of the admin admin Offi Office ces, s, and and allo alloca cate te/r /rea eass ssig ign n cert certai ain n functions from one Office to another. This was for "effecting changes in the orga organi niza zati tion on to stre stream amli line ne the the CSC’ CSC’s s operations and improve delivery of service. CSC has not abolished any public office as that that ter term is used used in the the law law of publ public ic officers. None of the "changes in organization" introduced carried with it or necessarily involved the termination of the relationship relationship of public employment between the the CSC CSC and and any of its offi offic cers ers and employees

Termination Through Reorganization -

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Definition o alteration of the existing structure of government government offices offices or units therein, therein, inc includ luding ing the the lines ines of contr ontro ol, authority and responsibility between them to: promote greater efficiency remove redundancy of functions effect economy make it more responsive to the needs of its public clientele

Buklod v Executive Secretary Gen Rule: the President has no authority to reorganize the executive department.

May result in loss of position through: removal or o abolition of office o

Exceptions: as far as bureaus, agencies or offic offices es in the execu executiv tive e depart departmen mentt are are concerned, the President’s power of control may justify him to: 1. inac inacti tiv vate ate the the funct unctiions ons of a particular office 2. cert certai ain n laws laws may may gra grant nt him him the broa broad d auth author orit ity y to carr carry y out out reorganization measures.

Validity of reorganization o examples: may be required by law independently of constitutional authorization must be based on a valid purpose must must not not resu result lt in remo remova vall with withou outt cause ause in viola iolati tio on of right to security of tenure a finding of reorganization in bad faith must be supported supported by substanti substantial al evidence (good faith is presumed) similarity of functions of old office and new office is bad faith in reorganization, there is no removal of incumbent

Gen Rule: A reorganization is carried out in good faith ith if it is for the the purp urpose ose of econom economy y or to make make bureau bureaucra cracy cy more more effici efficient ent.. In that that event, event, no dismis dismissal sal or separa separatio tion n actual actually ly occurs occurs becaus because e the position itself ceases to exist. And in that case case,, secu securi rity ty of tenu tenure re woul would d not not be Chinese Wall.

Briones vs. Osmena, Jr. The CFI declared that the abolition by the Munic Municipa ipall Board Board of the positi positions ons in the Office of the City Mayor were made without the approval of the Department Head as required by a Circular and by EO 506. The SC sustained the decision declaring the aboli abolitio tion n of the posit position ions s null null and void, void, beca becaus use e of the the fals falsit ity y of the the grou ground nds s (economy and efficiency) given by the MB when it abolished abolished the office, such that the abol abolit itio ion n was was a subt subter erfu fuge ge for for thei theirr removal without cause.

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By Conviction of a Crime Under the RPC, the conviction of a crime carries with it the penalties of perpetual or temporary absolute/special disqualification (Articles 30 and 31), even if the official was in an elective position if acquitted, should be reinstated Under Under the Civil Civil Servic Service e Decre Decree e (Secti (Section on 36(10 36(10]), ]), convic convictio tion n of a crime crime invol involvin ving g moral turpitude is a ground for disciplinary action.



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People vs. Consigna

o

Where Where the accuse accused d was acquit acquitted ted of the crim crime e of malv malver ersa sati tion on,, reins einsta tate teme ment nt should follow. As the court said, had he been convicted, he would have been denied of the right to reinstate reinstatement, ment, therefor therefore e if the converse converse wer were to tak take place lace (i.e. i.e. acc accused used is acquitted), he should be reinstated. Thi This s case case is not not to be cons consid ide ered as a precedent because here, there was a finding by the court of an absolute lack of evidence. The Daleon Daleon case, case, which which stated stated that that the court' court's s powers extend only to the finding of guilt or innocence of the accused, not the backwages and reinstatement, remains controlling. Other remedies should be left to proper proceedings.

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What constitutes conviction o As appear appearing ing in consti constitut tution ional al and statutory provisions should be taken to mean conviction in a trial court. o Court finding guilt beyond reasonable doubt followed by judgment upholding such finding A plea plea of guil guilty ty acce accept pted ed by the the o cour court, t, tog togethe etherr with ith sent senten enc ce, amounts to conviction Lack Lack or abse absenc nce e of proo prooff beyo beyond nd o reasonable doubt in a criminal case does not mean the absence of other evid eviden ence ce whic which h may may be deem deemed ed adequate in civil cases (pr (prepon eponde dera ranc nce e of evid eviden ence ce)) or administrative proceedings (substantial evidence).

o

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Perso erson n par pardone doned d may may appl apply y for for reappointment to the office forfeited by reason reason of convictio conviction n but the fact of his having having committed committed the offe offens nse e shou should ld be tak taken into into consi consider derati ation on when when evalua evaluatin ting g his eligibility eligibility to the public office. The The civi civill liab liabil ilit ity y of the the pers person on pardoned which arose from the crime he has has been been conv convic icte ted d of is not not extinguished by pardon

By Recall

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Definition o the procedure by which an elective office may be removed at any time during his term by the vote of the people at an election called for such person or at a general election.

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Purpose and nature of the power of recall o purpo purpose se of recal recalll is to provi provide de an effective speedy for the removal of an official who is not giving satisfactory service to the public, and whom whom the the (reg (regar ardl dles ess s of whet whethe herr offi offici cial al,, to his his own own perc percep epti tion on,, is discharging discharging his duty to the best of his abilities). grounded on loss of confidence of the o electorate in their public official o political in nature, not the exercise of a judicial function. source of power in a republic is the o peop people le,, ther theref efor ore e they they have have the the power to remove their officials.

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Recall of local elective officials Exercised by the registered voters of o a local government unit where official belongs

Effects of Pardon o o

Pardo ardon n gran grante ted d afte afterr conv convic icti tion on eras erases es the the pena enaltie lties s and and lega egal disa disabi bili liti ties es of an indi indivi vidu dual al and and restores a person to his civil rights Does Does not resto restore re the right right to public public office unless expressly restored by the pardon ▪ Must Must be stat stated ed in expr expres ess, s, explicit and positive language, and cannot be merely inferred inferred Pardo ardon n is grou ground nded ed on the the ▪ person's innocence However, eligibility for appointment to the same office is restored

May May be init initia iated ted by a prep prepar arat ator ory y recall assembly (PRA) found in every province, city, district and municipality Composition ▪ Provincial level: Mayors,  Vice mayors,  Sangg Sangguni unian an membe members rs  of muni munici cipa pali liti ties es and and component cities ▪ City level: All youth outh barang rangay ay  members, Sangguniang barangay  members in city



93

(wala na kaming maisip na title.bahala ka na sa blank na yan) ▪

▪

o

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Legislative district level Wher Where e Sang Sanggu guni nian ang g  Panlalawigan Panlalawigan members elected elected by district district:: All elective municipal officials in district  Wher Where e Sang Sanggu guni nian ang g Panlu Panlungs ngsod od membe members rs elected elected by district district:: All elective baranga ngay officials in the district Municipal level all all puno punong ng bara barang ngay ay  and Sangguniang barangay barangay members members in the municipality

May be initiated by registered voters of the local elective official subject to recall

In a public and conspicuous place For not not less less than than 10 days days nor nor more more tha than 20 days for for purp urposes ses of verification Upon the lapse of period, COMELEC or its repres representat entative ive shall shall announce announce accept acceptanc ance e of candi candidat dates es to the posi positi tion on and and prep prepar are e the the list list of candidate candidates s includin including g the name of the official sought to be recalled o

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Effectivity of recall o Upon the election and proclamation of a succ succes esso sorr who who gar garners ners the the highest number of votes. If official sought to be recalled wins, o he shall continue in office.

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Prohibition from resignation Electi Elective ve local local offic official ial sought sought to be o recal ecalle led d shal shalll not not be allo allowe wed d to resi esign whil hile reca ecall proces cess in progress.

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Limitations on recall o may may be cond conduc ucte ted d only only once once (1) (1) duri during ng the the ter term of the the elec electi tive ve official's term of office o no recall within 1 year from date of assumption of office o no recall 1 year immediately preceding a regular local election

Process of recall o

o

o

o

Initiation by: Majority of PRA members may convene in a publ public ic plac place e and and init initia iate te a recall recall proceedi proceeding ng against against elective elective official reca recall ll of prov provin inci cial al,, city city,, or ▪ muni munici cipa pall offi offici cial als s must must be initiated initiated through through a resoluti resolution on adopted by majority of all PRA members in a session called for that purpose 25% of the total number of registered voters in the LGU concerned (those who voted when the official sought to be recal recalled led was was electe elected) d) may petition for the initiation of a recall a written petition for recall must be dirt dirty y sign signed ed befo beforre the the elec electi tion on regi regist stra rarr in a publ public ic plac place e in the the presence of representative representative of the petitioner representative of official sought to be recalled

COMEL CO MELEC EC shall shall set the date date of the election, election, after filing of resoluti resolution on or petition not later than 30 days in the case of barangay, city and municipal officials 45 days days in the the case case of prov provin inci cial al officials

filed before the COMELEC COME CO MELE LEC C or its its duly duly auth author oriz ized ed representative shall cause publication of the petition



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RECALL CHART

Resolution of PRA

Petition for Recall by voters

Majority of PRA of

Signed by 25% registered voters

Filing w/ COMELEC Petition: Publication and Verification 

genuiness/authenticity of sigatures # of signatures Announce acceptance of candidate Prepare list of candidates Set date of election Election (2nd year) Effectivity of Recall Election & Proclamation Of Successor

Confidence affirmed & official continues in office

NOTE: RA 9244 – ABOLISHED PRA Hence, recall may be initiated by petition.



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The term limit limit for elective elective official officials s must be taken to refer to the right to be elec electe ted d as well well as the the righ rightt to serve in the same elective position. Consequently, it is not enough that he has served 3 consecutive terms, he must also have been elected to that that same same posi positi tion on for for the the same same number of times before disqualification can apply.

Claudio vs COMELEC The resolution of PRA was adopted w/in 1 yr prohibited period but filed w/in 1 yr allowable period. SC held that there are 3 limitations on periods where official may be subject to recall as imposed by Sec. 74 LGCode. 1. Par A proh prohib ibit its s the the hold holdin ing g of such election more than once during the term of office of the elective official. official. 2. Par B proh prohib ibit its s the the hold holdin ing g of such election w/in 1yr from the date official assumed office. 3. Par C proh prohib ibit its s the hol holdi ding ng of a recall election w/in 1yr imme immedi diat atel ely y prec preced edin ing g an election.

Bernas: “If one is elected to representative representative to serve the unexpired term of another, that unexpired term, term, no matter how short will be considered one term for purposes of computing the number of successive terms allowed.” This only applies to members of House of Represe epresenta ntativ tives es where where there there is no recall election provided.

Adormeo vs COMELEC


Csc.reviewer

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