CHAPTER 1 CONCEPT OF THE PUBLIC OFFICE LAW OF PUBLIC OFFICERS – – deals with public office, its creation, modification and dissolution, as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitions and liabilities, and the modes of terminating their official relations. Officer – Officer – person person whose duties involve the exercise of discretion in the performance of functions of the government Elements of Public Office 1. Created by law or by authority of law 2. Possess a delegation of a portion of o f the sovereign powers of the government to be exercised for the benefit of the public 3. Powers are defined by the legislature or through legislative authority 4. Duties be performed independently and without control of a superior power other than the law 5. With permanence and continuity Sources of Public Office (Creation) 1. Constitution (Office of the President, Legislature, Supreme Court) 2. Statutes (SEC, local government offices) 3. Authority of law Characteristics of public office 1. A public trust. It must be discharged discharged not for his own personal benefit but for the public. 2. Not a hereditable possession. It must be relinquished upon expiration of term. 3. Not a property and is outside the commerce of man. It cannot be subject of contract. 4. Not protected by the due process clause
CHAPTER 2 REQUIREMENTS FOR PUBLIC OFFICE Selection for Public Office 1. Appointment – choice – choice of the public functionaries is made by the particular officer designated by the Constitution or the law. 2. Election – choice – choice is made by the enfranchised citizenry through the exercise of their suffrages. Who can be appointed by the President under the Constitution? (Nos. Constitution? (Nos. 1-4 requires confirmation) 1. Heads of the executive departments
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2. Ambassadors, other public ministers ministers and consuls 3. Officers of the armed forces from the rank of colonel or naval captain 4. Other officers whose appointments are vested in him by the Constitution 5. Other officers of the government whose appointments are not provided for by law 6. Those whom he may be authorized by law to appoint APPOINTMENT – act of designation by the appointing officer, body or board, to whom that power has been delegated, of the individual who is to exercise the functions of a given office. Connotes permanency Results in security of tenure Executive in nature. The power of appointment is vested by the Constitution in the President. Requires acceptance by the appointee to make it complete DESIGNATION – DESIGNATION – mere mere imposition of new duties on the officer to be performed by him in a special manner. Temporariness Does not entitle the person designated to security of tenure as he occupies the position only in an acting capacity Legislative in nature Doctrine of qualified agency – agency – the the acts of the secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved by the Chief Executive, presumptively the acts of the Chief Executive. Limitations on the President’s power to appoint 1. Confirmation by the legislature 2. Spouse and relatives by consanguinity or affinity within the 4 th civil degree 3. No appointments within 2 months before the next presidential election 4. Appointees must possess required qualifications When the appointee is qualified and all other legal requirements are satisfied, the Civil Service Commission (CSC) has no choice but to attest to the appointment in accordance with the law. CSC is not empowered to determine the kind of appointment extended by the appointing officer. CSC is only limited to approving or reviewing the appointment, and in determining whether or not the appointee possess the qualifications and requisite or eligibility.
Presidential Appointees: Positions Appointees: Positions in Career Executive Service (Undersecretary, Regional Director) Appointed by Ombudsman: Ombudsman: position position in Graft Investigation Officer Can an individual be compelled c ompelled to accept an appointive office? YES, if it is in connection with the the defense of State. ELECTION – ELECTION – mode mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through the selection by them of the functionaries who will represent then therein. VACANCY – when – when there is no person lawfully authorized to assume and exercise at present the duties of the office. 1. Original – Original – office office is created and no one has as yet been chosen to fill it. 2. Constructive – Constructive – incumbent incumbent has no legal right to the office and may be legally replaced by another. 3. Accidental – Accidental – incumbent incumbent is separated by resignation, death, removal or abandonment. 4. Absolute – Absolute – when when the terms has expired and no successor has legally qualified to replace him. QUALIFICATION 1. Disqualification - Lack of disqualification is itself a qualification - Pardon based on innocence, ipso facto, restores him to office. But pardon not based on innocence requires re-application - Forbidden office . No Senator or member of the HoR be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. - A defeated candidate may not not be appointed or re-appointed to any office in the Government or any GOCC GOCC within one year from the date of the election. - No person may be appointed to the CSC is he was candidate in the lection immediately preceding his appointment - Incompatible office. The President, VPres., the members of the Cabinet, and their deputies shall not, unless otherwise provided in the Constitution hold any other office or employment during their tenure. - No elective official shall be eligible for appointment or designation in any capacity during his tenure - Candidate who is a green card holder must have waived his status as a permanent resident of immigrant of a foreign country - Natural born citizens who have been naturalized as citizens of a foreign country may re-acquire Philippine citizenship upon taking a prescribed oath of allegiance to RP 2|Law on Public Officers Reviewer
2. Who may prescribe qualifications - Constitution - Statute - Qualifications may not be changed by private agreement 3. Limitations on the power of the legislature to prescribe qualifications a. Legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution b. Legislature may prescribe only general qualifications c. Qualifications must be relevant to the office which they are prescribed Qualifications are continuing requirements and so must be possessed not only on the date of selection or assumption but for the full duration of the officer‘s incumbency.
CHAPTER 3 DE FACTO OFFICERS De Facto Doctrine It is not only the acts of the lawful officer that are regarded as valid and binding. Insofar as third persons are concerned, legal effect is also accorded to certain acts of a person whose title is presumptively legitimate or has no valid title to the position he holds. Rationale
Members of the public dealing with government are not supposed to verify credentials of every functionary exercising public functions. They have the right to presume he is the officer he assumes to be.
De Facto Officer
Chief Justice Butler – one whose acts, though not those of a lawful officer, the law upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties were exercised: (1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or (2) Under color of a known and valid valid appointment or election, but where the
Presidential Appointees: Positions Appointees: Positions in Career Executive Service (Undersecretary, Regional Director) Appointed by Ombudsman: Ombudsman: position position in Graft Investigation Officer Can an individual be compelled c ompelled to accept an appointive office? YES, if it is in connection with the the defense of State. ELECTION – ELECTION – mode mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through the selection by them of the functionaries who will represent then therein. VACANCY – when – when there is no person lawfully authorized to assume and exercise at present the duties of the office. 1. Original – Original – office office is created and no one has as yet been chosen to fill it. 2. Constructive – Constructive – incumbent incumbent has no legal right to the office and may be legally replaced by another. 3. Accidental – Accidental – incumbent incumbent is separated by resignation, death, removal or abandonment. 4. Absolute – Absolute – when when the terms has expired and no successor has legally qualified to replace him. QUALIFICATION 1. Disqualification - Lack of disqualification is itself a qualification - Pardon based on innocence, ipso facto, restores him to office. But pardon not based on innocence requires re-application - Forbidden office . No Senator or member of the HoR be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. - A defeated candidate may not not be appointed or re-appointed to any office in the Government or any GOCC GOCC within one year from the date of the election. - No person may be appointed to the CSC is he was candidate in the lection immediately preceding his appointment - Incompatible office. The President, VPres., the members of the Cabinet, and their deputies shall not, unless otherwise provided in the Constitution hold any other office or employment during their tenure. - No elective official shall be eligible for appointment or designation in any capacity during his tenure - Candidate who is a green card holder must have waived his status as a permanent resident of immigrant of a foreign country - Natural born citizens who have been naturalized as citizens of a foreign country may re-acquire Philippine citizenship upon taking a prescribed oath of allegiance to RP 2|Law on Public Officers Reviewer
2. Who may prescribe qualifications - Constitution - Statute - Qualifications may not be changed by private agreement 3. Limitations on the power of the legislature to prescribe qualifications a. Legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution b. Legislature may prescribe only general qualifications c. Qualifications must be relevant to the office which they are prescribed Qualifications are continuing requirements and so must be possessed not only on the date of selection or assumption but for the full duration of the officer‘s incumbency.
CHAPTER 3 DE FACTO OFFICERS De Facto Doctrine It is not only the acts of the lawful officer that are regarded as valid and binding. Insofar as third persons are concerned, legal effect is also accorded to certain acts of a person whose title is presumptively legitimate or has no valid title to the position he holds. Rationale
Members of the public dealing with government are not supposed to verify credentials of every functionary exercising public functions. They have the right to presume he is the officer he assumes to be.
De Facto Officer
Chief Justice Butler – one whose acts, though not those of a lawful officer, the law upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties were exercised: (1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or (2) Under color of a known and valid valid appointment or election, but where the
officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond);
ousted from it
(3) Under color of a known known election or appointment, void because: (a) the officer officer was not eligible; (b) there was a want of power in the electing or appointing body; (c) there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. (4) Under color of an election election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such ((State State v. Carroll). DISTINCTIONS
How ousted
Validity of official acts
Rule on Compensation
De Jure vs. De Facto De Jure Officer
(1)
Requisites
Existence of a de jure office;
(2) must possess the legal qualifications for the office in question; (3) must be lawfully chosen to such office; (4) must have qualified himself to perform the duties of such office according to the mode prescribed by law.
De Facto Officer
(1) De jure office;
(2) Color of right or general acquiescen ce by the public; (3) Actual physical possession of the office in good faith
Title
Has lawful title to the office
Has imperfect or colorable title only
Possession of Office
Has not been able to take possession of it or has been
Actually possesses the office
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Cannot be ousted except for justifiable reasons
Valid, subject to exceptions (e.g., they were done beyond the scope of his authority, etc.) Entitled to compensation as a matter of right; The principle of "no work, no pay" is not applicable to him.
Only by a direct proceeding (quo warranto); not collaterally Valid as to the public until such time as his title to the office is adjudged insufficient. Entitled to receive compensation only during the time when no de jure officer claims the office; He renders service in good faith.
Examples of De Facto Officers: Officers :
1. a person who has been declared winner by the court or by the COMELEC in an election protest and assumed office based thereon and who has thereafter been adjudged not entitled to the office is a de facto officer because he exercised the duties of the elective office under color of election thereto and is thus entitled to the emoluments of the office; not a usurper because a usurper is one who undertakes to act officially without any color or right 2. a judge who resigned in his position is considered de facto officer until he is formally notified of the acceptance of his resignation, for a resignation to be effective must be accepted by the officer authorized to accept it 3. a person appointed to a position during the period that the incumbent, who was removed therefrom, was litigating his action for reinstatement, may be considered a de facto officer 4. a person who acts and discharges the office pursuant to an appointment w/c requires approval by another officer or office, such as the Civil Service Commission, is a de facto officer until the appointment is finally approved or disapproved » if approved, he becomes a de jure officer; if disapproved, disapproved, he becomes an usurper 5. an elected officer who has h as been proclaimed and has assumed office but was later on ousted in an election protest or quo warranto is a de facto officer during the time he held the office
Usurper
one who usurps an office and undertakes to act officially without any color of right, as distinguished from a de facto officer who exercises the duties of an office under a color of appointment or election
election or appointment, irregular or informal
however
Q: Can an intruder / usurper ripen into a de facto officer? A: Yes. With the passage of time, a presumption may be created in the minds of the public that the intruder has a right to act as a public officer.
De Facto vs. Intruder
Q: Is good faith a factor in the ripening of intruder status into de facto status? De Facto
Nature
Basis of authority
Validity of "official" acts
Rule on compensation
Intruder One who takes possession of Officer under an office and any of the 4 undertakes to circumstances act officially discussed without any under Part II authority, (above). either actual or apparent None. He has neither Color of right lawful title or title to nor color of office right or title to office. Absolutely void; they can be impeached at Valid as to the any time in public until any such time as proceeding his title to the (unless and office is until he adjudged continues to insufficient act for so long a time as to afford a presumption of his right to act ) Entitled to receive compensation only during the time when no de jure officer is declared; paid only for actual services rendered by him.
Not entitled to compensation at all.
Color of Authority
the possession of an office and discharging of duties derived from an
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A: Yes. HOWEVER, it must be noted that the good faith must be on the part of the public; not on the part of the intruder.
Requisites of a De Jure Office
(1) Existence of a de jure office; (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith 1. Existence of a De Jure Office GR: There is no de facto officer where there is no de jure office. There is NO SUCH THING AS A DE FACTO OFFICE. If the office itself is defective or void, there is no de facto officer due to lack of a de jure office. If only the manner of filling the office is unconstitutional, holder is a de facto officer. 2. Color of Title Derived from reputation or acquiescence or from an invalid appointment or election (also Color of Authority) Continues as long as the defect in the appointment or election is unknown to the public All official acts are valid for all legal purposes even after appointment or election is disapproved 3. Physical Possession of the Office Without this requisite, discharge of powers and duties of the office will not be possible Ceases to exist when the office has been vacated by the de jure officer or has been abolished
Effects of Acts of De Facto Officers
GR: Actsultra vires are not binding. OnlyThe lawful acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient
As to compensation
GR: De Facto officer cannot claim a salary and other compensation for services rendered by him and may be required to pay it back if he has collected such salary when de jure officer claims the office. EXP: The De Facto officer may claim or retain salaries IF: 1. He rendered services in GOOD FAITH 2. There is NO DE JURE OFFICER claiming the office
Service, those GOCC‘s under the Corporation Code are governed by the Labor Code
Members of Civil Service are regulated by the following: Article IX (B) of the Constitution The Civil Service Decree The Administrative Code of 1987 pertinent principles under the Law of Public Officers
The Civil Service Commission
Challenge to a De Facto Officer
GR : The incumbency of a de facto officer acts may not be challenged collaterally or in an action to which he is not a party but in a direct proceeding where title to the office will be the principal issue
REMEDY : Quo warranto proceedings
Who may file: (1) The person who claims to be entitled to the office; (2) The Republic of the Philippines, represented by (a) the Solicitor-General; or (b) a public prosecutor.
CHAPTER 4 THE CIVIL SERVICE Civil Service
Provided by: The Constitution ―embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including governmentowned and controlled corporations with original charters‖ ―with original charters‖ - means that GOCC‘s refer to corporations chartered by special law as distinguished from those under the Corporation Code; its employees are covered by under the Civil
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administers the Civil Service government‘s central personnel agency designated to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants composed of a Chairman & Two Commissioners who shall be: 1. natural-born citizens of the Philippines 2. at least 35 years of age at the time of their appointment 3. with proven capacity for public administration 4. must NOT have been candidates for any elective position in the elections preceding their appointment Chairmen and commissioners are appointed by the President with the consent of the Commission on Appointment for a term of seven (7) years and may be removed ONLY by impeachment
Objectives The Constitution provides that public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and justice, and lead modest lives. To insure and promote the constitutional mandate that appointments in the Civil Service shall be made according to merit and fitness To promote responsiveness and courtesy in the civil service; strengthen the merit and rewards system; integrate all human resources development programs for all levels and ranks; and institutionalize a management climate conducive to public accountability
Scope The following are covered by The Civil Service: 1. branches 2. subdivisions 3. instrumentalities
4. agencies of the Government 5. government-owned and controlled corporations with original charters e.g.: Duty Free, Phil. Tourism Authority, Philippine Amusement and Gaming Corporation ◦ The Civil Service and labor laws and
procedures, whenever applicable shall be followed in resolutions of complaints, grievances and cases involving gov‘t employees ◦ Inter-union and Intra-union conflicts shall be under original and exclusive authority of the Bureau of Labor Relations ◦ Public charitable institutions, although performing public functions are not government agencies and, thus, are not covered by the Civil Service
5. Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; 6. Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the noncareer service; and 7. Permanent laborers, whether skilled, semiskilled, or unskilled. 2. NON-CAREER SERVICE - characterized by: (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure1 which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made
Classifications of Positions 1. Career Service 2. Non-Career Service 1. CAREER SERVICE - characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.
Career Service includes:
1. Open Career positions for appointment to which prior qualification in an appropriate examination is required; 2.
Closed Career positions which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;
3.
Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;
4. Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; 6|Law on Public Officers Reviewer
Non-Career Service includes:
1. Elective officials and their personal or confidential staff ; 2. Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff(s); 3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; 4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and
1
The security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a CESO may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as the compensation is according to CES rank and not on the basis of the position or office occupied.
5. Emergency and seasonal personnel Eligibility
Must be possessed by an individual that he may be legally fit or qualified to be appointed in government service, subject to constitutional exceptions Examinations are taken to acquire eligibility e.g.: board and bar examinations granted to summa cum laude, magna cum laude and cum laude graduates of 4-year degree courses under certain conditions Once acquired, it may be availed by the eligible any time Non-eligible CANNOT be appointed
Appointments
Made only according to merit and fitness EXCEPT to positions which are:
Policy-determining Primarily confidential Highly technical
by competitive examination.
May be PERMANENT or TEMPORARY 1. permanent — issued to a person who meets the requirements for the position to which he is appointed, including appropriate eligibility prescribed, in accordance with the provisions of laws, rules and standards promulgated in pursuance thereof; may serve a probationary period of 6 months and may be dismissed for unsatisfactory conduct or want of capacity-appealable to the Commission
2. temporary — In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment is issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve (12) months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available;
◦ Temporary appointees may be terminated
anytime even without cause. They have NO FIXED TENURE ( Abrot v. CA) ◦ Acceptance of a temporary appointment divests the temporary appointee of the constitutional security of tenure even if he 7|Law on Public Officers Reviewer
is a civil service eligible (Tolentino v. De Jesus) A temporary appointee cannot ask to be ◦ reinstated to his former permanent position if his temporary appointment is not renewed (Romualdez III v. CSC) ◦ Temporary appointment cannot become automatically permanent after the temporary appointee acquires civil service eligibility (Maturan v. Maglana) Temporary Appointment Issued upon prior authorization of the Commission of Civil Service with the provisions of Civil Service Law to a person who has not qualified in an appropriate exam but otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and filling thereof is necessary in the interest of service and there is no appropriate register of eligibles at the time of appointment.
Provisional Appointment Given to a non-service eligible, is without a definite tenure and is dependent upon the pleasure of the appointing power
Republic Act 6850 – government employees holding career civil service positions appointed under provisional or temporary status who have rendered at least a total of 7 years of efficient service may be granted civil service eligibility to qualify them for permanent appointment in their positions Regular Appointment Made during the legislative session
Ad Interim Appointment Made during recess
Made only after the Made before nomination is confirmation of the confirmed by the Commission on Commission on Appointments Appointments Once confirmed, Shall cease to be valid continues until the end if disapproved by the of term of appointee Commission on Appointments or upon the next adjournment of Congress; Deemed ―by-passed through inaction of, and so disapproved impliedly by, the Commission on
Appointments
Note: The purpose of an ad interim appointment is only to prevent a hiatus in the discharge of official duties. Otherwise, immobilization of the public office will prejudice the people.
Next In Rank Rule
EXCEPTIONS The following positions are excepted from the requirement for competitive examinations:
1. Policy determining –one charged with the laying down of principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries Examples: cabinet member, head of a department 2. Primarily Confidential – denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state; or one declared so by the President upon recommendation of the Civil Service Commission Examples: private secretary, confidential agent 3. Highly Technical – requires the appointee thereto to possess technical skill or training in a superior degree
Nepotism
NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly
Promotion
Movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay May be from one department or agency to another, or from one organizational unit to another in the same department or agency Indispensable element: advancement from one position to another or an upward vertical movement of the employee‘s rank or position
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The person next in rank shall be given preference in promotion when the position immediately above his is vacated. The appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the ―special reason/s‖ for not appointing the officer next-in-rank. This means that the one who is next-in-rank is given only preferential consideration for promotion; but it does not follow that he alone and no one else can be appointed Remedy of a by-passed qualified nextin-rank: appeal initially to the department head
Qualified next-in-rank – refers to an employee appointed on a permanent basis to a position previously determined to be next-inrank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Commission.
Examples: City Legal Officer, Scientist
Increase in salary is only incidental but never determinative of whether promotion is bestowed
Favoritism toward relatives by the appointing authority; prohibited Prohibited Appointments: All appointments in the National, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or non-competitive service, made in favor of a relative of: 1. the appointing recommending authority 2. the chief of the bureau or office 3. the persons exercising immediately supervision over him Relations covered: extend to the third degree of consanguinity or affinity.
The following however, are exempt from the nepotism rule:
persons employed in a confidential capacity teachers physicians members of the Armed Forces of the Philippines
In each of these particular instances, a full report of the appointment is required to be made to the Civil Services Commission. Prohibition to President: The constitution provides that the spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or to the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Purpose of Prohibition against Nepotism:
To ensure that all appointments and other personnel actions in the 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 To take out of the discretion of the appointing or recommending authority the matter of appointing or recommending for appointment of a relative
2. Promotion (see previous page ^_^) 3. Transfer -
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movement from one position to another which is of equivalent rank, level or salary without break in service not considered disciplinary when made in the interest of public service Remedy if employee believes there is no justification for the transfer: appeal to the CSC May be from one department to another in the same department or agency Movement from non- career to career service is NOT a transfer When unconsented, results to removal Transfer
Movement from one position to another which is equivalent in rank, level or salary without break in service
Note: Charges of nepotism must be duly proved. Other Personnel Actions
All appointments in the career service shall be made ONLY according to merit and fitness to be determined, as far as practicable, by competitive examinations A non-eligible cannot be appointed to any position in the civil service whenever there is a civil service eligible actually available and ready to accept appointment
Personnel Action – any act denoting the movement or progress of personnel in the civil service, including appointment through: (1) (2) (3) (4) (5) (6) (7) (8) (9)
Certification Promotion Transfer Reinstatement Reemployment Detail Reassignment Demotion Separation
All of which shall be in accordance with the rules and regulations of the Civil Service Commission.
Lateral movement -
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Advancement from one position to another with an increase in duties and responsibilities as authorized by law, usually accompanied by an increase in salary Scalar ascent
Illegal transfer is tantamount to removal without cause EXCEPT when an officer is appointed ―at large‖ in which case he may be assigned or transferred to any station, as he is not entitled to stay permanently at any specific station Example: Regional Directors
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Request for transfer must be such that there is an intention to surrender a permanent office; it denotes relinquishment of an office in exchange for another office.
4. Reinstatement -
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1. Certification –issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles, and who meets all the other requirements of the position
Promotion
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conferred to a person who has been permanently appointed to a position in the career service and who has through no delinquency or misconduct, been separated therefrom technically the issuance of a new appointment which is essentially discretionary and cannot be controlled not even by the Court as long as it is exercised properly by the appointing authority (Gloria v. de Guzman) may not be asked for by an officer who was merely designated, a designation not being a permanent appointment (Gloria v. de Guzman)
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a convicted public official who has been pardoned is NOT automatically entitled to reinstatement. He must re-apply. (Monsanto v. Factoran )2
EXP - a pardoned elementary school principal, is after her pardon, for considerations of ―justice and equity‖ entitled to or eligible to the same position and, and not to the lower classroom teacher, there being no diminution in his rank (Sabello v. DECS) - If pardon is based on the innocence of the individual or if executive clemency is granted to cover the administrative charges for the same acts and he was acquitted for having been found not to have committed the offense imputed to him, he is restored to his office ipso facto upon issuance of the clemency. 5. Reemployment -
names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made
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8. Demotion -
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Purpose: To improve the competence of the civil service.
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7. Reassignment -
2
attitude
and
The Career and Personnel Development Plan shall contain the following:
6. Detail movement of an employee from one agency to another without the issuance of an appointment, and shall be allowed only for a limited period in the case of employees occupying professional, technical and scientific positions temporary in nature (Rep. v. CA) Power to control impliedly includes the power to detail (Borres v. Canonoy)
movement from one position to another which involves diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary If without cause, tantamount to removal
Personnel Development
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same agency, provided that such reassignment shall not involve a reduction in rank, status or salary If without a definite period or duration, violative of the security of tenure of a government employee Tantamount to a floating assignment if there is diminution in rank
an employee may be reassigned from one organizational unit to another in the
merit promotion performance evaluation in-service training (including foreign & local scholarships and training grants) job rotation suggestions and awards system other plans for employees‘ health, welfare, counselling, recreation and similar services
Employees have the right to present their complaints and grievances to the management which shall be resolved at the lowest possible level in the department or agency. They shall have the right to appeal to higher authorities. Each department or agency shall promulgate rules and regulations governing expeditious, fair and equitable adjustment of such complaints and grievances pursuant to the policies of the CSC.
Discipline
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Thus, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must reapply and undergo the usual procedure required for a new appointment.
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Officers and employees in the Civil Service including those appointed to the policy-determining, primarily confidential and highly technical positions, enjoy security of tenure and may not be suspended or dismissed (except for just cause) but may be disciplined. Discipline shall be accorded to those who violate public trust and fail to serve with utmost responsibility, integrity, loyalty and efficiency and act with patriotism and justice and live modest lives.
A. Grounds for Discipline (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17)
dishonesty oppression neglect of duty misconduct disgraceful and immoral conduct being notoriously undesirable discourtesy in the course of official duties inefficiency and incompetence in the performance of official duties conviction of a crime involving moral turpitude falsification of official documents habitual drunkenness gambling refusal to perform official duty or render overtime service physical or mental incapacity due to immoral or vicious habits wilful refusal to pay just debts wilful failure to pay taxes due to the government habitual tardiness
Dishonesty -
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Gross negligence -
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negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with a conscious indifference to consequences in so far as other persons may be affected
Note: Causes which warrant dismissal of a civil servant need not necessarily be work-related or committed in the course of the performance of duty by the person charged.
intentionally making a false statement in any material fact, or practicing or attempting to practice any deception or fraud in securing his examination, registration, appointment or promotion. understood to imply a disposition to lie, cheat, deceive or defraud, untrustworthiness or lack of integrity
Misconduct in Office -
the manifest lack of adequate ability and fitness for the satisfactory performance of official duties by reason of the officer‘s vices or vicious habits has reference to any physical moral or intellectual quality, the lack of which substantially incapacitates one to perform the duties of an office Equivalent to ―inefficiency‖ Determined after a probation period of 6 months
may either be (1) simple misconduct; or (2) grave misconduct that which affects one‘s performance of his duties as an officer and not such only as affects his character as a private individual any unlawful conduct on the part of the person concerned generally means wrongful, improper or unlawful conduct motivated by premeditated, obstinate or intentional purpose does not necessarily imply corruption or criminal intent Grave misconduct : acts so corrupt or inspired by an intention to violate the law, or constitute a flagrant disregard of well-known rules; It is a transgression of some established definite rule of action, a forbidden act, a dereliction of duty, wilful in character and implies wrongful intent and not a mere error in judgment.
Incompetence in the Performance of Duty
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B. Jurisdiction -
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granted to the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities to investigate and decide matters involving disciplinary action against officers and employees decisions are final in case the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary decisions are initially appealed to the department and finally to the Commission and pending appeal shall be executory EXCEPT when the penalty is removal. The CSC decides upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days or fine in an amount exceeding thirty (30) days salary, demotion in rank or salary or transfer, removal or dismissal from office The CSC is the sole arbiter of controversies relating to civil service. Disciplinary cases and cases involving ―personnel actions‖ affecting employees in the civil service are under its exclusive jurisdiction. The Sandiganbayan shall exercise exclusive jurisdiction over ―Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations‖ (People v. Sandiganbayan)
D. Preventive Suspension Section 19, Rule II of the Uniform Rules on Administrative Cases in the Civil Service – empowers the proper disciplining authority to issue upon
C. Procedure -
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A complaint against a civil service official shall not be given in due course unless it is in writing and sworn to by the complainant EXP: in cases initiated by the proper disciplining authority, complaint need not be under oath an anonymous letter is not a complaint but the CSC may act on the same A complaint may be commenced even against a subordinate officer or employee and filed at any time with the CSC The withdrawal of the complaint does not result to its outright dismissal or discharge A Counter-Affidavit/Comment is required of the respondent 5 days after receipt of a formal charge and preliminary investigation shall be held 5 days after receipt of complaint. Failure to submit counter-affidavit shall be a waiver of said right If a prima facie case is established, a formal investigation shall follow even without request of respondent. Fifteen (15) days after conclusion of the formal investigation a report containing the material facts of the investigation shall be submitted to the Hearing Office. decisions rendered by heads of agencies for a penalty of suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary shall be FINAL and EXECUTORY However, if the penalty is suspension for more than thirty (30) days or fine in an amount exceeding thirty (30) days salary it shall only be FINAL after the lapse of 15 days, the period for filing a motion for reconsideration or appeal. Only one (1) M.R. is allowed on the following grounds: (1) new evidence has been discovered which materially affects the decision rendered (2) the decision is not supported by the evidence on record (3) errors of law or irregularities have been committed prejudicial to the interest of the movant.
(1) petition of the complainant; or (2) motu propio an order of preventive suspension to any subordinate officer or employee pending investigation if the charge involves: a. b. c. d. e.
dishonesty oppression grave misconduct neglect in the performance of duty if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from office
-Preventive Suspension may be issued to temporarily remove the respondent from the scene of misfeasance or malfeasance to preclude the possibility of exerting undue influence or pressure on the witness against him or tampering of documentary evidence on file with his Office. It is NOT a final determination of guilt. It does not require prior notice and hearing (not a violation of due process) since it is not a penalty but a preliminary step. Two kinds of preventive suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292). Section 63 of the Local Government Code of 1991
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single preventive suspension: shall not exceed sixty (60) days several administrative cases: shall not exceed ninety (90) days within a single year on the same grounds existing and known at the time of the first suspension
E. Decision If charges are not proved by preponderance of evidence, case shall be dismissed and the respondent
reinstated with back preventively suspended.
salaries
if
Right to Self-Organization
- It is not enough that an employee is exonerated of the charges against him; his suspension must likewise be unjustified. On the other hand, employees who are considered preventively suspended pending appeal are entitled to payment of their salaries if they are subsequently found innocent (and such suspension exceeds 90 days) (Gloria vs. CA).
- Heirs are NOT entitled to salaries of an accused who died pending resolution of the criminal case against him had his preventive suspension been lifted as a consequence of exoneration because his death resulted from dismissal of charges and not his acquittal(Malanyaon v. Lising).
F. Appeal -perfected... within fifteen (15) days from receipt of the decision upon the filing of a notice of appeal and the submission of three (3) copies of the appeal memorandum Proof of service of the appeal memorandum upon the disciplining office Proof of payment of the appeal fee Certification against forum shopping - Only one (1) petition for reconsideration is allowed on the following grounds: (1) new evidence has been discovered which materially affects the decision rendered (2) the decision is not supported by the evidence on record (3) errors of law or irregularities have been committed prejudicial to the interest of the movant. Failure to perfect an appeal within the reglementary period (15 days) renders the judgment FINAL and EXECUTORY. Supreme Court abandoned its prior decisions holding that Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges. Hence, as an aggrieved party, CSC may appeal the decision of CA to the SC (Supreme Court v. Dacoycoy).
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provided by: the Constitution includes those employed in the public and private sectors to form unions, associations, or societies for purposes not contrary to law and shall not be abridged Government employees‘ employment shall not be subject to the condition that they shall not join or shall relinquish their membership in employees‘ organizations. Civil servants are allowed to organize but ―employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands x x x‖ (Alliance of Government Workers v. Minister or Labor and Employment) Employees of GOCCs without original charters may avail themselves of the right to self-organization under the Labor Code. Those employed in GOCCs with original charters may do so on the basis of civil service laws, particularly EO 180.
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(1) Where the public officer may be regarded as a de facto officer.
AUTHORITY OF THE PUBLIC OFFICER
GILLERA VS. FERNANDEZ6 AYTONA VS. CASTILLO7
Authority of the public officer; where derived – FROM THE PEOPLE3 Authority of the public officer; where exercised GR: The public officer may exercise his powers ONLY WITHIN THE TERRITORIAL LIMITS OF HIS AUTHORITY and any act performed outside that area will be null and void.4 XPNs: (1) National Officers a member of the Cabinet President of the Philippines (2) Those who discharge their functions in a different state. Diplomats Delegates (3) Certain acts of judges Issuance of warrants of arrest which may be served anywhere in the Philippines. (4) Certain acts of local officers Mayor transacting official business in a different municipality of city on behalf of his municipality. 5
Note: An appointment made by the President to fill an anticipated vacancy occurring after his term will be invalid even if the appointment itself was made during his term.
Authority of the public officer; when exercised – ONLY DURING HIS TERM OF OFFICE GR : Any act performed by the public officer after his term of office will be considered invalid. XPNs:
3
This is in conformity with the constitutional principle that “the Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them.” ART. II, Sec. 1
(2) Where an officer is authorized to hold over. Note: The acts of an officer who is authorized to hold over continue to be valid until his successor is duly chosen and subsequently qualifies. Such an officer is regarded as de jure and all his acts have the same legal efficacy as those performed by him before the expiration of his fixed term.
Authority of a public officer; exercised – STRICTLY CONSTRUED
how
Why strict construction8? A representative government is a government of limited powers. Any doubt on this matter shall be resolved in favour of the public and against the exercise of the authority claimed.
6
An appointment extended by the President shortly before his term ended is valid provided it is a result of his deliberate action considering the qualifications and exigencies of the service. 7
Facts: Aytona one was of those appointed by outgoing president Garcia during the last minute of his term. Aytona was appointed as the ad interim governor of the Central Bank. When Macapagal took his office as the next president he issued Order No. 2 which recalled Aytona’s position and at the sam e time he appointed Castillo as the new governor of the Central Bank. Aytona then filed a quo warranto proceeding claiming that he is qualified to remain as the Central Bank governor and that he was validly appointed by the ex-president. Macapagal averred that the expresident’s appointments were scandalous, irregular, hurriedly done, contrary to law and the spirit of which, and it was an attempt to subvert the incoming presidency or administration.
Illustration: Powers of the President – ART. VII Legislature – ART. VI Supreme Court – ART. VIII Constitutional Commissions – ART. IX Powers of local officials – LGC of 1991 or by special charters Commissioner of Customs – Tariff and Customs Code of 1982 Bureaud Directors – Administrative Code of 1987 or laws creating their respective offices 4
Examples:
a judge cannot act outside his judicial district a mayor does not have jurisdiction outside his municipality
Issue: Whether or not Aytona should remain in his post. Held: Had the appointment of Aytona been done in good faith then he would have the right to continue office. Here, even though Aytona is qualified to remain in his post as he is competent enough, his appointment can nevertheless be revoked by the president. Garcia’s appointments are hurried maneuvers to subvert the upcoming administration and is set to obstruct the policies of the next president. As a general rule, once a person is qualified his appointment should not be revoked but in here it may be since his appointment was grounded on bad faith, immorality and impropriety. In public service, it is not only legality that is considered but also justice, fairness and righteousness.
5
It must be noted that despite his physical presence, he could not be temporarily succeeded by the vice-mayor.
8
Strict construction is especially true in cases involving private interests. E.g. those protected by the Bill of Rights
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Construction of powers Confer/grant those powers expressly imposed Confer/grant those powers necessarily implied (doctrine of necessary implication) Note: An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. These powers should not be extended by implication beyond what may be necessary for their just and reasonable execution. of necessary implication – states that all powers necessary to the exercise of the power expressly granted are deemed impliedly granted as well.
When
powers are invalidly exercised (1) Absolutely invalid acts of a public officer. (void acts) (2) Unauthorized acts of a public officer12.
Doctrine
Examples (Application of the doctrine):
ANGARA VS. ELECTORAL COMMISSION – The power of the Electoral Commission to hear and decide certain election cases carries with it the implied power to adopt rules of procedure to be observed in the conduct of these cases. Inherent powers – E.g. police power may be asserted by the national legislature despite the absence of constitutional vesture. Note: The actual exercise of the inherent powers of the state must be made with due regard for private rights. The exercise of such powers must always be liberally construed against the government.
An administrative officer may revoke, repeal or abrogate the acts or previous rulings of his predecessor in office. – The construction of a statute by those administering it is not binding on their successors if, thereafter, the latter becomes satisfied that a different construction should be given.
Doctrine
of qualified political agency – states that department secretaries may exercise powers delegated to them by the President subject to the latter‘s power of control.
Example (Application of the doctrine):
When powers are validly exercised (1) Authorized acts of a public officer9 (2) Acts of de facto officers 10 (3) The act of the public officer is not previously authorized but it is subsequently ratified by the government11.
SALCEDO VS. CA 13 FESTEJO VS. FERNANDO14 Note: The principle of estoppels does not operate against the government for the acts of its agents, and that it is never stopped by any mistake or error on their part. Kinds
of duties of public officers (1) Discretionary (2) Ministerial
Discretionary duty15 The officer is allowed to determine how and when it is to be performed and to decide this matter one way or the other and be right either way. The officer is allowed much leeway in arriving at a decision as the duty is conferred on him in recognition of his good sense or judgment. This discretionary duty is never meant to be absolute, uncontrolled, and unrestrained. No such power may be validly granted to any officer of the
9
Such acts will produce legal effect and be considered binding upon the government itself as the principal of the public officer. 10
Such acts will produce legal effect and be considered binding upon the government itself as the principal of the public officer. 11
By such ratification, the government will be deemed to have assumed whatever liabilities may arise from the act of the previously unauthorized public officer. ONLY VOIDABLE ACTS MAY BE RATIFIED. An absolutely invalid act cannot be validated by ratification. 12 Where the act was not authorized, it is the exclusive responsibility of the public officer who committed it. 13
Where the act was not authorized, it is the exclusive responsibility of the public officer who committed it. 14
The power of the President to reorganize the National Government may validly be delegated to his cabinet members exercising control over a particular executive department.
A bureau director appropriated a private lot and converted it to public use without paying the owner just compensation. The SC held that the suit was not filed against the state but against him in his private capacity for his unauthorized act. 15
Examples: Granting or withholding of a pardon by the President; methods of regulation by the Legislature; the court or other official’s discretion in the resolution of a question.
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government except perhaps in cases of national emergency.
XPNs: (When delegation is allowed) (1) When the power to substitute another in his (public officer’s) place has been given to him.
Exercise of discretionary duty
The public officer is expected to discharge it DIRECTLY and not through the intervening mind of another. (Why? The conferment of discretion is based on the good sense of judgment of the public officer.)
e.g. The President‘s power to conclude treatises (can be assigned to his subordinate). (2) In the case of the President of the Philippines, as he is not expected to discharge the totality of the executive powers conferred upon him.
GR: A discretionary duty cannot be delegated to another. Why? The presumption is that he is chosen because he was deemed fit and competent to exercise that judgment and discretion. AMERICAN TOBACCO CO VS. DIRECTOR OF PATENTS16
Why? It is physically impossible for him to do so. Q: May the exercise of discretion be compelled? A: If the public officer has been given the discretion to act or not to act upon a certain matter – NO, and his decision cannot be the subject of judicial reversal.
16
Facts: ATC et al filed before the Philippine Patent Office concerning the use of trade mark and trade name. ATC et al challenged the validity of Rule 168 of the “Revised Rules of Practice before the Philippine Patent Office in Trademark Cases” as amended, authorizing the Director of Patents to designate any ranking official of said office to hear “inter partes” proceedings. Said Rule likewise provides that “all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him.” These proceedings r efer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or service-mark, and cancellation of registration of a trade-mark or trade name pending at the Patent Office. Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decide inter partes case. Said objections were overruled by the Director of Patents, hence, the present petition for mandamus, to compel the Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers.
Issue: Whether or not the hearing done by hearing officers are within due process. Held: The SC ruled that the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. It is, however, required that to “give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the
e.g. A court may not compel a local legislative body to appropriate funds for the celebration of a town fiesta as this matter is entirely discretionary with the body.
If the duty is made imperative, as when a deadline is fixed for its discharge, and discretion is granted only as to the manner of its exercise – YES, and his duty may be compelled by judicial process.
MERALCO SECURITIES CORPORATION VS. SAVELLANO – Mandamus only lies to enforce the performance of a ministerial act or duty and not to control the performance of a discretionary power. Purely administrative and discretionary functions may not be interfered with by the courts. Mandamus may not be resorted to so as to interfere with the manner in which the discretion shall be exercised or to influence or coerce a particular determination. Discretion
– means the power or right conferred upon the office by law acting officially under certain circumstances according to the dictates of his own judgment and conscience and not controlled by the judgment or the conscience of others.
For all its wide latitude discretion is not totally unlimited. It is restricted by the very qualities that justified its conferment – the judgment and good sense of the delegate. Hence, if
determinations must consider and appraise the evidence which justifies them.”
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these are not employed in the discharge of the duty, that is, if the duty was performed arbitrarily or capriciously, or with disregard of rights, there results what is known as a grave abuse of discretion, which may be corrected in appropriate judicial proceeding 17. What may be required is general action only. This means that the public officer may not be required to discharge the imperative duty, but not in any specific manner. How he performs his duty is his own prerogative, and this may not be usurped by others from the delegate to which the people have seen fit to entrust it.
e.g. Where an administrative body simply refuses to take any action whatsoever, the court may issue a writ of mandamus to compel it to take some action, but should not attempt to prescribe the action to be taken and thereby control the discretion or judgment of the board of officer.
CAN BE COMPELLED. If the duty is made imperative, as when a deadline is fixed for its discharge, and discretion is granted only as to the manner of its exercise.
Can be compelled by judicial action. (Must be performed in any case.)
CANNOT BE COMPELLED. If the public officer has been given the discretion to act or not to act upon a certain matter.
Ministerial duty18 When the officer is given little latitude its discharge. When the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing is left for judgment or discretion. Practically a mechanical act.
Includes the authority to decide whether or not to act at all.
No similar option is allowed.
What is required is merely general action.
What may be required is specific action, that is, the particular duty imposed by law.
Can be a subject of a judicial review if there has been grave abuse of discretion.
Can be subject to judicial review if it is not exercised in accordance with the requirements of the law imposing it.
Arbitrary or capricious discharge of this duty amounts to grave abuse of discretion and may be ccorrected by certiorari.
Discharge of this duty may be corrected in an appropriate action, and the public officer will have no reason to complain.
Exercise of Ministerial Duty
Since the exercise of a ministerial duty does not require the employment of discretion or judgment, it is susceptible of delegation. What may be done by the delegate may be subdelegated by him to others. No particular qualification is required for the discharge of this kind of duty because the law itself defines with precision the occasion and manner of its exercise. A ministerial duty can be compelled by judicial action. The exercise of this duty is subject to judicial review and reversal if it is not exercised in accordance with the requirements of the law imposing it. What is required is a specific action that it particularly imposed by law.
CHAPTER 6 INHIBITIONS
Discretionary Duty
Ministerial Duty Inhibition
Generally it is not susceptible of delegation.
Susceptible of delegation.
– a restraint upon the public officer against the doing of certain acts which may legally be done by others. Note:
17
Example: A judge who denies a motion for postponement filed by a lawyer obviously ill at the time of the hearing. 18
Examples: Duty of the tax collector to acknowledge payment by issuing an official receipt ; duty of the COMELEC to give due course to a certificate of candidacy duly accomplished and seasonably filed.
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Crime is excluded. Prescribed either by the Constitution or by statute. May be general or specific.
Reason for inhibitions: The public officer is a steward who must perform his powers and duties for the benefit of the people and not for the enhancement of his own interests Inhibition
Disqualification
Restraint upon the public officer against the doing of certain acts which may legally be done by others
The lack of needed eligibility for a certain office.
Constitutional
appointive officials of the Executive Department to hold over positions in the government is unconstitutional. (3) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency or, or instrumentality thereof, including GOCCs or their subsidiaries, during his term without forfeiting his seat22. (4) No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any GOCC, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office23.
Inhibitions
(1) The President and the Vice-President shall not receive during their tenure any other emolument from the Government or any other source19. (2) The Pres., VP, the members of the Cabinet, their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. They shall not during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office20. Note: Civil Liberties Union vs. The Executive Secretary 21 – An EO allowing 19
Art. VII, Sec. 6 Art. VII, Sec. 13 21 Civil Liberties Union vs. Executive Secretary 20
FACTS: On 25 July 1987, Cory issued EO 284 which allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions subject to limitations set therein. The CLU excepted this EO averring that such law is unconstitutional. The constitutionality of EO 284 is being challenged by CLU on the principal submission that it adds exceptions to Sec 13, Art 7 other than those provided in the Constitution; CLU avers that by virtue of the phrase “unless otherwise provided in this Constitution,” the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (i) The VicePresident may be appointed as a Member of the Cabinet under Sec 3, par. (2), Article 7; and (ii) the Secretary of Justice is an exofficio member of the Judicial and Bar Council by virtue of Sec 8 (1), Article 8. ISSUE: Whether or not EO 284 is constitutional. HELD: Sec 13, Art 7 provides:
(5) No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or “Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.” It is clear that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution’s manifest intent and the people’s understanding thereof. In the light of the construction given to Sec 13, Art 7 in relation to Sec 7, par. (2), Art IX-B of the 1987 Constitution, EO 284 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than 2 positions in the government and government corporations, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Sec 13, Art 7 of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. 22
Art. VI, Sec. 13 Art. VI, Sec. 14
23
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control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries24. This inhibition applies as well to the Ombudsman and his deputies25.
hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries 30. (8) No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation31.
(6) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign26. Partisan
(9) No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure 32.
27
political activity – means active support for or affiliation with the cause of a political party or candidate.
Note:
PD 807, Sec. 4528 Santos vs. Yatco – Members of the Cabinet are exempted from this prohibition. Art. XVI, Sec. 529 - This inhibition applies only to active members of the AFP.
Constitutional
(7) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall
(1) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries. (2) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (3) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative function. (4) Appointees to the Constitutional Commissions must not have been candidates for any elective positions in the
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Art. IX, A, Sec.2 Art. XI, Sec. 8 26 Art. IX, B, Sec. 2(4); BP Blg. 881, Sec. 261(b) 27 Examples: Being a candidate for any elective office Being a delegate to any political convention Being an officer or member of any political committee, party or o rganization Delivering speeches, canvassing or soliciting of votes or political support or contributions for any political party or candidate Becoming actively identified with the success or failure of any candidate or candidates for election to public office 25
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Section 45. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. 29
The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote.
Disqualifications
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Art. IX, B, Sec. 7 Art. IX, B, Sec. 8 32 Art. XI, Sec. 16 31
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elections immediately preceding their appointment. (5) No candidate who has lost in any election shall, within 1 year after such election, be appointed to any office in the Government, or any GOCC or in any of its subsidiaries. Note: Brillantes vs, Yorac 33 Other Inhibitions (please see book)
1. to attract competent men to the government service 2. if adequate, will lessen the temptation for graft as there would be little need for the public officer to augment his income through illegal methods 3. to lend the necessary prestige to the office Source of Salary
Other
Disqualifications (please see book)
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Effects of violation
Sanctions for violation of the inhibition will depend upon the law imposing it or implementing the constitutional restriction. The restriction against a public official from using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which he intervened as a public official.
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CHAPTER 7 SALARY AND PERQUISITES
Purpose
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FACTS: In December 1989, a coup attempt occurred prompting the president to create a fact finding commission which would be chaired by Hilario Davide. Consequently he has to vacate his chairmanship of the COMELEC. Yorac was temporarily placed as his substitute. Brillantes then questioned such appointment urging that under Art 10-C of the Constitution “in no case shall any member of the COMELEC be appointed or designated in a temporary or acting capacity:. Brillantes claimed that the choice of the acting chairman should not be appointed for such is an internal matter that should be resolved by the members themselves and that the intrusion of the president violates the independence of the COMELEC as a constitutional commission.
Constitutional Limitations 1. The salaries of Senators and members of the House of Representatives shall be determined by law.36 2. The salaries of the President and the Vice President shall be determined by law and shall not be decreased during their tenure.37 3. The salary of the Chief Justice and the Associate Justices of the SC, and of judges of lower courts shall be fixed by law.38
ISSUE: Whether or not the designation made by the president violates the constitutional independence of the COMELEC. HELD: The Supreme Court ruled that although all constitutional commissions are essentially executive in nature, they are not under the control of the president in the discharge of their functions. The designation made by the president has dubious justification as it was merely grounded on the quote “administrative expediency” to present the functions of the COMELEC. Aside from such justification, it found no basis on existing rules on statutes. Yorac’s designation is null and unconstitutional.
Constitution or Statute The SC clarified that despite its declaration of executive order no. 284, which allowed cabinet members, undersecretaries or assistant secretaries to hold multiple positions, as unconstitutional, said officers were nonetheless allowed to retain the per diems , allowances or emoluments received by them in connection with their multiple positions, because they acted as de facto officers. As such, they are entitled to said compensation for actual services. 34 Good faith as a defense The SC upheld the disallowance o by the COA of certain benefits and privileges to the personnel of a local water district because such were granted to them by said district‘s board of directors and by virtue of a CBA. However, the MCWD affected personnel who received the given benefits and privileges acted in good faith under the honest belief that the CBA authorized such payment. Consequently, they need not refund them.35
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Civil Liberties Union vs. Executive Secretary, 194 SCRA 317 Abanilla vs. COA 468 SCRA 87 36 No increase in compensation until after the expiration of the full term. 37 No increase in said compensation shall take effect until after the expiration of the term of the term if the incumbent during which such increase was approved. 35
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Salaries of the Justices of the SC are subject to withholding tax (Nitafan vs. Commissioner of Internal Revenue.)
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4. The salary of the Chairman and Commissioners of the Constitutional Commissions shall be fixed by law and shall not be decreased during their tenure.39 5. The salaries of the Ombudsman and his deputies, which shall be the same as those provided for the chairmen and Members, respectively of the Constitutional Commissions, shall not be decreased during their term of office. 40 6. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. 7. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation.
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Salary and Due Process
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where the salary is granted by statute, it may be withdrawn by statute no reduction or abolition of salary can operate retroactively to affect salaries earned or accrued. Where the law limits the grant of certain benefits to a specified class of persons, such limitation must be enforced even if it prejudices certain parties due to a previous mistake committed by public officials in granting such benefit.
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Right to Salary
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based on the right to the office itself and accrues from the date of actual commencement of the discharge of official duties in the case of de jure officer who has been unlawfully prevented from assuming the office, the salary accrues to him from the date of the deprivation of the office the right of the de jure officer to his salary should be asserted against the de facto officer who had collected it and not against the government, except where the government continued paying the salary to the de facto officer even after the adjudication of title in favor of the officer de jure where a public officer under investigation or prosecution is preventively suspended but subsequently exonerated, he is entitled
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Article IX,A, Section 3 40 Article IX,Section 10
to payment of the salaries corresponding to the period of his preventive suspension where an accused died pending his trial for corrupt practices, his heirs were not entitled to payment of back salaries accruing during his preventive suspension because he had not been exonerated41 Declaration of validity of a preventive suspension based on the following grounds shall not entitle the official or employee to his reinstatement: When the order was issued by o one not authorized by law When it is not based on any of o the grounds or causes warranted by law When it was issued without a o formal charge Or when although lawful in the o sense that it is based on recognized grounds, the duration of the imposed preventive suspension has exceeded the prescribed periods, in which case the payment of back salaries shall correspond to the excess period only the payment of back salaries shall await the final outcome of the principal case the phrase ―full exoneration‖ contemplates a finding of not guilty for the offense. Downgrading of the charge to a lesser offense shall not be construed as ―full exoneration‖. Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office, the right to recover accruing from the date of deprivation. A claim for back salaries must be coupled with a claim for reinstatement subject to the prescription of one year. Where an employee has voluntarily accepted a lower position, which he continues to hold, estoppel bars relief seeking payment of a salary equivalent to that of a higher position An employee who is reinstated to his former position but who has pending administrative and criminal charges against him may only be paid his back salaries when he is absolved of the charges. Section 59 of the Uniform Rules in Administrative Cases in the Civil Service42, provides for the effects of exoneration on certain penalties
Malanyaon vs. Lising 106 SCRA 237 a. In case the penalty imposed is fine, the same shall be refunded 42
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Prohibited Disposition of Salary
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Public policy prohibits the attachment, garnishment or assignment of the salary of a public officer. The salary check of a government officer or employee such as a teacher does not belong to him before it is physically delivered to him. Until that time, the check belongs to the government. Accordingly, before there is actual delivery of the check, the payee has no power over it; he cannot assign it without the consent of the government.43 A public officer is not legally bound by a pledge made by him while still a candidate that, if elected, he will not collect his salary or will donate it back to the government or give it to some other beneficiary
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Insurance
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Leaves Vacation and sick leaves shall be cumulative and any part taken during the calendar year in which earned shall be carried over to the succeeding years. The are also commutable to cash where the functionary voluntarily resigns, retires, or is separated from the service through no fault of his own, provided that the commutation shall not exceed 300 days of accumulated leaves, exclusive of Saturdays, Sundays and holiday. Any officer or employee of the government who retires or voluntarily resigns or is separated from service through no fault of his own and whose leave benefits are not covered by any special law, shall be entitled to the commutation of all the accumulated vacaton and/or sick leave to his credit and that all officials and employees shall be required to go on vacation leave for a minimum of 5 working days annually.44
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b. In case the penalty imposed is demotion, the exonerated employee shall be restored to his former position without loss of seniority rights with payment of salary differentials c. In case the penalty imposed is transfer, he shall immediately be restored to his former post unless he decides otherwise. In case there is demotion in rank, salary or status, he shall be restored to his former rank, salary or status. d. In case the p enalty imposed is suspension, he shall immediately be reinstated to his former post without loss of seniority rights with payment of back salaries. “Mandatory leave benefits shall not be chared against respondent leave credits.” “The respondent who is exonerated by final judgment shall be entitled to the leave credits for the period he has been out of the service” 43 Tiro vs. Hontanosas 44 EO no. 1077 (Jan. 9, 1986)
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Elective officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials, including the cumulation and commutation thereof.45 All government officers or employees are entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned provided the claimant was in the service as of Jan 9, 1986. Determination of leave benefits is within the functions of the Civil service Commission.
officers and employees of the government, including brgy and other local government employees and officials as well as disability, pre-need insurance, unemployment and separation benefits under schemes administered by the Government Service Insurance System. Permanent and regular appointees and elective officers, are covered by compulsory insurance.
Retirement
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computed on the basis of highest salary, emolument and allowances received by the retiring employee Retirement laws art whenrally interpreted in favor of the retiree because their intention is to provide for his sustenance and hopefully even comfort when he no longer has the stamina to continue earning his livelihood. Retirement is compulsory for any member of the GSIS holding a regular and permanent appointment if: He has attained the age of 65 o years Rendered at least 15 years of o service to the government The last 3 years of such service o have been continuous a retiree is entitled to a 5 year lump sum payment of the present value of his annuity thereafter to be paid monthly as long as he lives If at the time of his retirement, disability or death, he had rendered at least 20 years continuous service, he shall be entitled to 1 month salary for each year of service for the first 20 years; and 1 ½ month salary for each year of service over 20 up to 30 years; and 2 months
Section 81, Loc al Government Code or RA 7160
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salary for each year of service over 30 years based on the highest salary received. The retiree, for purposes of complying with the required number of years under a certain retirement law 46, may combine his years of service in the private sector represented by his contributions to the SSS with his government service and contributions to the GSIS to satisfy the required years of service under PD No. 1146 and RA No. 8291. PD 1146 is available to retirees who have been in the government service after May 31, 1997 but before June 24, 1977. The retiree must have rendered at least 15 years of service, regardless of age. If the retiree is below 60 years old upon retirement, he may avail himself of retirement benefits only upon attaining his 60th birthday. Republic Act 660 provides for a retirement package for government employees who were in the service on or before May 31, 1977. Under this law, the retiree‘s last three years of service prior to retirement must be continuous, except in cases of death, disability, abolition, and phase-out of position due to reorganization. Republic Act No. 1616 applies to retirees who were in the government service on or before May 31, 1977. Under this scheme, the retiree must have rendered at least 20 years of service regardless of age and employment status, and his last 3 years of service prior to retirement must be continuous, except in cases of death, disability, abolition or phase out of position due to reorganization. Retirement laws are liberally interpreted in favor of the retiree: The retirement pay accruing to o a public officer may not be withhel and applied to his indebtedness to the government.47 The SC rejected the denial of o claim for retirement benefits of the decedent‘s wife for the mere reason that she is not the primary beneficiary because such proviso in RA 8282 which qualifies the term ‗primary beneficiaries‘ is unconstitutional for it violates the due process and equal protection clause. 48 The SC declared the ruled on o limiting to only 1 year the extension of service of an employee who has reached the compulsory retirement of 65
Portability Law, RA No. 7699 Tantuico vs. Domingo 48 Dycaico vs SSS
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years, but has less than 15 years of service under Civil service memorandum Circular No. 27 s. 1990.The Civil Service Commission has no power to supply perceived omissions in PD 1146.49 The SC declared that ―the 1 o year limitation on the extension of service of a government employee who has reached the compulsory retirement age of 65 imposed under Memorandum Circular No. 27 is valid and reasonable. 50 Retirement pay accruing to a public officer may not be withheld and applied to his indebtedness to the government. A per diem is a daily allowance given for each day an officer or employee of the government as away from his home base. Such allowance may be construed also as compensation but generally it is excluded from the ―compensation‖ provided under the Government Service Insurance Law.
Philhealth
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covers health care and health insurance program for the benefit of government and private employees, and even selfemployed individuals. All employees covered by the GSIS, including their dependents, are also automatically covered. guarantees health benefit packages for inpatient and outpatient care but does not include non-prescription drugs and devices, alcohol abuse or dependency treatment, cosmetic surgery and optometric services.
CHAPTER 8 LIABILITY OF PUBLIC OFFICERS KINDS OF DUTIES
Duty owing to the public in general The duty of the President to maintain peace and order; of the legislature to regulate smuggling; and of the judiciary to try an accused. It cannot give rise to liability in favor of particular individuals. To illustrate, where a person contracts an epidemic disease which the
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Cena vs. Civil Service Commission
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Toledo vs. COMELEC
legislature has not seen fit to control through the enactment of the necessary laws, he may not sue the body for the prejudice suffered by him as a result of its inaction.
Duty owing to particular individuals The duty of the sheriff to enforce a writ of execution, or of a register of deeds to issue a certificate of title, or of a clerk of court to serve copies of a decision upon the parties. Its improper performance or nonperformance will give rise to a cause of action in an individual‘s favour for any injury sustained by him. To illustrate, if the sheriff, for no valid reason, delays the service of a writ of execution until such time as the judgment debtor shall have succeeded in spiriting away his properties and so prevented the enforcement of the decision, the injured the litigant an hold the sheriff liable.
LIABILITY IN GENERAL Book I, Chapter 9 of the Administrative Code of 1987: Sec. 38: Liability of Superior Officers. — 1. A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. 2. Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law. 3. A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of. Sec. 39: Liability of Subordinate Officers. – No subordinate officer or employee shall e civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy, and good customs even if he acted under orders or instructions of his superiors.
It has been ruled that accountable officers cannot profess ignorance of laws or administrative circulars for it is required that they must update their knowledge with whatever laws or any administrative issuances that may be issued by competent authorities. THE PRESIDENT The President shall be immune from suit to guarantee the independence of the public official who otherwise might be unwilling to make the right decisions for fear that he might be called to account therefor in a court of law by disgruntled individuals adversely affected by his act. The President may generally not be held liable for his acts because they are mainly discretionary and owing to the public in general. Thus, a victim of a crime cannot hold the President answerable for the latter‘s alleged failure to execute penal laws because this a duty owed by him to the people in general and not to any particular individual. The doctrine of separation of powers prevents the courts from interfering with the President when he decides what are known political questions, except when his decision is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. The incumbent presidents are immune from suit during the period of their incumbency and tenure but not beyond. Cabinet members also cannot be held liable for acts done by them in the exercise of their discretion and within the limits of their authority without the attendance of malice, bad faith or gross negligence. LEGISLATORS Members of the legislature discharge duties owing to public in general so they cannot be held liable, individually or collectively, for the performance or non-performance of their duties. However, in Mendoza vs. de Leon, the plaintiff was awarded damages against the individual members of the municipal council who cancelled the franchise of the plaintiff without valid cause since the municipal council was exercising proprietary functions. JUDGES Judges shall not be liable for their acts except only when they act without jurisdiction as the law will not protect them for exercising powers that do not belong to them. In the absence of fraud, dishonesty, or corruption, the acts of judge are not subject to disciplinary action, even though such acts are erroneous. To hold a judge administratively liable for gross ignorance of law, the assailed act must not only be contrary to existing law or jurisprudence, but must also be motivated by bad faith, fraud, dishonesty or corruption on his part.
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The proper recourse of a party aggrieved by the decision of a judge is to file a motion for reconsideration or to appeal to or file a petition for certiorari with the proper court and not to file an administrative complaint. There is not much justification for holding a judge liable in an independent civil action for damages since it would likely impair his independence and his prestige, there would be multiplicity of litigation and a strong possibility that competent men will hesitate to join the Judiciary. QUASI-JUDICIAL OFFICERS Decisions rendered by quasi-judicial officers may be reversed by courts of justice upon showing that there is a grave abuse of discretion however, they may not be held liable if they act within the scope of their authority and without bad faith, malice or corruption. In Philippine Racing Club v. Bonifacio, the Supreme Court declared that the Commission on Races cannot be held liable for damages even though they do not have the power to cancel races since they acted in their official capacity in the honest belief that they have the power to act upon the matter.
Malfeasance – is the doing, either through ignorance, inattention or malice, of that which the officer has no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores or abuses his powers.
Misconduct, misfeasance or malfeasance must have a direct relation to and be connected with the performance of official duties, amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of office to warrant the removal from office of an officer. Misconduct – is a transgression of some established or definite rule of action, more particularly, unlawful behaviour or gross negligence by the public officer.
LIABILITY FOR ACTS OF SUBORDINATES As a general rule, superior officers cannot be held liable for the acts of their subordinates. However, a superior officer may be held liable if:
LOCAL OFFICIALS The rules governing the liability of officials in the national government are applicable to local officials in the discharge of their discretionary and ministerial functions. Under the LGC, any officer of the LGU whose duty permits or requires the possession or custody of local government funds shall be accountable and responsible for the safekeeping thereof. Unless the accountable officer registers his objections in writing, he shall not be relieved of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer.
Where, being charged with the duty of employing or retaining his subordinates, he negligently or wilfully employs or retains unfit or improper persons Where, being charged with the duty to see that they are appointed and qualified in a proper manner, he negligently or wilfully fails to require them the due conformity to the prescribed regulations Where he so carelessly or negligently oversees, conducts or carries on the business of his office as to furnish the opportunity for the default And a fortiori where he has directed, authorized or cooperated in the wrong. Personal Liability
MINISTERIAL OFFICERS Ministerial act – an act performed in a prescribed manner, in obedience to the law or mandate of legal authority, without regard to, or exercise of, the judgment of the individual upon the propriety of the act being done. A ministerial officer can be liable for Nonfeasance – is the neglect or refusal, without sufficient excuse, to perform an act which it was the officer‘s legal duty to the individual to perform. Misfeasance – or negligence is the failure to use, in the performance of a duty owing to the individual, that degree of care, skill and diligence which the circumstances of the case reasonably demand.
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A public officer may be held liable, either contractual or tortiuous, when he committed an act without authority or with malice or in bad faith. Bad faith – imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. Good faith – honesty of intention, and freedom from knowledge f circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law,
together with absence of all information, notice or benefit or belief of facts which render transactions unconscientious.
The criminal responsibility of the public officer or employee is provided in Title 2 and 7 of the Revised Penal Code and other penal statutes such as R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act. The Solicitor General is not authorized to represent a public officer charged with criminal offenses. Sandiganbayan has jurisdiction over offenses committed by public officers and employees in relation to their office where the penalty prescribed by law is higher than prison coreccional or imprisonment for six years or a fine of P6, 000.00.
Any contract entered into contrary to the requirements of Sections 46 and 47 of Chapter 8 of Subtitle B of Book 5 of the Administrative Code of 1987 shall be void and the officer or officers who entered into such contract shall be liable to the government or to the other contracting party. Sec. 377 of the LGC provides that: The person immediately accountable for government property shall be liable for its money value in case of the illegal, improper or unauthorized use or misapplication thereof. He shall not be relieved from liability by reason of his having acted under the direction of a superior officer unless he registers his objection in writing. In case of loss, damage, or deterioration of government property arising from, or attributable to negligence in security, the head of the security agency shall be held liable therefor. In matters of tort, it will not be imputable to the public officer if it is shown that he acted within the limits of his authority without the attendance of bad faith.
As for administrative action, it may be taken against any public officer on the usual grounds of oppression, dishonesty, insubordination, immorality, inefficiency, negligence, drunkenness, partisan political activity and the like. These charges are to be proved before the proper administrative body like the CSC, SC in the case of the members of the judiciary or its personnel.
The defeat of any of the three remedies discussed above will not necessarily preclude resort to the other remedies or affect decisions reached thereunder, as different degrees of evidence are required in these several actions. Proceedings against a public officer or employee for misconduct, malfeasance cannot just be withdrawn at any time by the complainants for the latter are considered as witnesses only.
In cases of illegal dismissal made in bad faith or due to personal malice of the superior officers, they shall be held personally accountable for the employee‘s back salaries. Moreover, if the public officer‘s act is ultra vires and tainted with bad faith, he may be held answerable in his individual capacity.
Example: a peace officer who searches a private dwelling without a warrant and over the owner‘s objections may be held civilly liable for damages, including moral and exemplary damages, under Article 32 of the Civil Code. At the same time, he may also be prosecuted for violation of domicile as defined and penalized under Article 128 of the Revised Penal Code. An administrative action may likewise be filed against him for his arbitrary and oppressive act.
REMEDIES AGAINST PUBLIC OFFICERS Three kinds of remedies available a public officer: Civil Criminal Administrative May be invoked separately, alternately, simultaneously or successively. Art. 27 of the Civil Code- any person suffering from moral or material loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.
CHAPTER 9 TERMINATION OF OFFICIAL RELATIONS Public is not supposed to be held:
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Perpetuity and relinquishment upon the death of the incumbent.
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2. Not inheritable
-While not indispensably required, resignation usually made in writing, addressed to the authority empowered to accept it.
Modes of termination I. II. III. IV. V. VI. VII. VIII. IX. X.
Expiration of the term Resignation Abandonment Acceptance of an incompatible office Removal Recall Impeachment Forfeiture Abolition of office Death
Estrada vs. Desierto Resignation must have an intent to resign and the intent must be coupled by acts of relinquishment. It can be oral. It can be implied. As long as the resignation is clear, it must give legal effect.The resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacanang Joson vs.Nario M ere presentation of resignation does not work a vacancy, and a resignation is not complete until accepted by proper authority.
I. Expiration ofthe term period during the individual has a right of public office Definite period of time prescribed by law which an officer may hold an office (Nueno vs. Angeles) Right to hold a public office Legal claim to hold and enjoy the powers and responsibilities of the office. Tenure of office - Actual period of incumbency of public officer Hold- over May applied to public officer, implies that the office has fixed term and incumbent is holding on the succeeding term. Note: The term may not be fixed number of years but terminable upon the opening of a certain event or contingency.
Biddle vs. Willard The resignation may be withdrawn as long as it has not yet been accepted, or if it was tendered as a result of mistake, threat or any vice of consent.
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Example: Ingles vs. Mutuc Incumbent of primarily confidential position holds office at the pleasure only of the appoint ting power. When such pleasure turns Into displeasure, the incumbent is not removed from office his term merely expires. Republic vs. Imperial If an accidental vacancy occurs in an office where the beginning and the end of the term specified, the replacement shall serve only for the unexpired term of the predecessor. But, where only the period of the term is specified and the incumbent vacates his office before the end of period , his successor shall commence his term for the full , unless otherwise provided by law.
II. Resignation - a formal method of renunciation coupled with physical act of relinquishment of the office , and subject to approval by superior authorities, that the incumbent should observe.
Courtesy resignation Cannot be interpreted as resignation in the legal sensefor it is not necessarily a reflection of public official‘s intention to surrender his position.
III. Abandonment A total surrender, relinquishment , disclaimer or cession of the public office and includes the intention as well as the external act bywhich it is carried out. Two essential elements of abandonment 1. An intention to abandon 2. An overt act by which the intention is carried to in effect Example of abandonment: Public officer simply stops reporting for work and refuses to continue discharging his duties. Failure of Dean of a state college to return to work after the expiration of one-year leave with pay (Ramos vs. Elfano) Not considered abandonment: Mayor had abandoned his position as such by accepting a designation as acting director of the NAWASA because he was serving as temporary capacity only. (City of Manila vs. Subido) When an employee accepted another position in the Government during the pendency of his appeal from administrative decision, such acceptance does not consider abandonment. Note: if the employee was illegally dismissed, he may, by his inaction or by sleeping on his right, in law, be considered as having abandon the office to which he is entitled to be reinstated.
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IV. Acceptance of Incompatible Office -Incompatibility exists when the character or nature of officer or relation to each other are such the one person should not hold both because of the antagonism which result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other.
1. Culpable violation of the constitutionwrongful, intentional or wilful disregard or louting of fundamental law 2. Treason- committed by any person, owing allegiance to the Government of the Philippine, levies war against it or giving aid and comfort to the enemy. 3. Bribery- committed by public officer who shall agree to perform an act in consideration of any offer, promise or gift received by him personally. 4. Other high crimes 5. Graft and Corruption 6. Betrayal of public trust- catch-all to cover all manner of offenses unbecoming a public functionaries.
Zandueta Case - when public official voluntarily accepts an appointment to a newly created office, which discharge his function , he will be considered to have abandon the office he was occupying by virtue of his former appointment.
Section 13, Article VI of the Constitution - a Senator or House of Representative shall forfeit his sit from the moment he hold another office or employment in the Government.
Procedure House of representative, exclusive power to initiate all cases of impeachment. Senate, sole power to try and decide cases of impeachment 1. File verified complaint for impeachment by member of HR, which includes order of business within 10 days and session days thereafter. 2. Committee after hearing, by majority of all members, will submit report to the house within 60 session days from receipt. 3. Votecast of all members of the house was necessary to affirm impeachment which include the article of impeachment 4. Senate shall forthwith proceed.
V. Removal -The forcible and permanent separation of the incumbent from office before the expiration of his term. Suspension - Temporary divestiture of the right to the officeduring part of the term and does not have the effect of vacating the office. ― the express power to appoint carries with the implied power to remove‖ Note: General rule : officers appointed by the President are also removable by him. Except : members of the Supreme Court and of Constitutional Commission. Elected official may not be removed by the President. Demotion and transfers are tantamount for removal.
No impeachment proceeding shall be initiated against the same official morethan once within a period of 1 year.
Judgment Impeachment shall not extend further than removal from office and disqualification to hold any office under Rep. of the Phil. Judgment of Congress was not subject to judicial review. Judgment of conviction in impeachment proceeding cannot subject to pardoning power of the President. Convicted official may prosecuted in an ordinary criminal action
VI. Impeachment -A method of national inquest into the conduct of public men. It is an extraordinary means of removal exercised by the legislature over the selected number of officials, for the purpose being to ensure the highest care in their indictment and conviction and the imposition of specialpenalties in case of the fining of guilt, taking into account the degree or nature of the offense committed and the high status of the wrongdoers.
Impeachable officers President of the Philippines - Vice President Members of the supreme court Members of Constitutional Commissions Ombudsman Grounds
VII. Forfeiture -to divest the incumbent of his title to his office as a result of positive act, either culpable or innocent Example: -person holding public appointive office upon filing of certificate of candidacy was considered ipso facto resigned from his office.
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VIII. Recall -a method of removal employed directly by the people themselves through the exercise of their suffrages -power of recall for loss of confidence shall be exercised by the registered voters of local government unit which the local elective official subject to such recall.
Initiation of recall - Petition of registered voter in LGU concerned and supported by the registered voters in LGU concerned during the election which the official sought to be recalled subject to the following percentage 25%- with a voting population of not more than (20,000) 20%- voting population of at least 20,000 but not more than 75,000, provided that the petitioner not less than 5,000 15%- voting population of 75,000 but not more than 300,00, provided that the petitioner not less than 15,000 10%- voting population over 300,000, the required petitioner not less than 45,000 Election of recall In barangay, city, or municipal officials recall shall not be later than 30 days upon the completion of procedure In case of provincial officials, 45 days.
Important cases: Andreo vs. COMELEC Private respondent served for two consecutive term as mayor and thereafter on May 1998 ran again for the third term but lost. His opponent faces recall, private respondent in recall election and won. Immediately thereafter the said term private respondent filed certificate of candidacy for mayor. Court held that his loss in May 1998 election is considered as interruption in the continuity of his service as mayor. Socrates vs. COMELEC Constitution prohibits an immediate re-election for a fourth term following three consecutive terms. The constitutions however, do not prohibit a subsequent re-election for afourth term as long as the re-election is not immediately after the end of third consecutive term. Lonzanida vs. COMELEC -involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service
IX. Abolition of office The power to create includes the power to destroy; except where the office was created by the Constitution, it my abolish by the same legislature that brought into the exercise.
Ocampo vs. Scretary of Justice The petitioner was not removed from office for removal implies that the office exists after the ouster. In this case, nothing remained of the office after its abolition. As well settled rule as that the abolition of an office does not amount to an illegal removal of an incumbent is the principle that, in order to be valid, the abolition must be made in good faith.
Removal is bad faith 1. Where the significant increase in the number of positions in the new staffing pattern of the department or agency concerned 2. Where an office is abolished and other performing substantially the same functions is created. 3. Where incumbents are replaced by those less qualified in terms of status of appointment , performance and merit. 4. Where there is reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same function as the original office 5. Where the remove violates the order of separation provided in Section 3 of RA 6656. Order of removal shall be followed 1. Casual employees with less than 5 years of the government service 2. Casual employees with 5 years or more of government service 3. Employee holding temporary appointments 4. Employee holding permanent appointments Note: Officers and employees holding a permanent appointment shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former position or in case there are not enough comparable positions, positions next lower in rank. XI.
Death
It terminates the incumbent‘s right to the office as it terminates everything else. General rule: death or other permanent disability creates a vacancy in the office, so that successor is entitled to hold an office for a full term. Exception: Those caseswhere the clear intention is to have vacancies appointments at regular intervals.
Note:
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