CHAPTER 1 CONCEPT OF THE PUBLIC OFFICE LAW OF PUBLIC OFFICERS – deal deals s with with publ public ic ofce ofce,, its its crea creati tion on,, modication and dissolution, as well as the eligibility o public ofcers, the manner o their election or appointment and assumption o ofce, their rights, duties, powers, inhibitions and liabilities, and the mode odes o terminating ing their ofcial relations. Ofcer – Ofcer – person whose duties involve the exercise o discretion in the perormance o unctions o the government Elements o Publc Ofce 1. Created by law law or by authority authority o law 2. ossess a delegation delegation o a portion o the sovereign powers o the government to be exercised or the benet o the public !. owers are dened by the legislature legislature or through legislative authority ". #uties be perormed independently independently and without control o a superior power other than the law $. %ith permanence and continuity continuit y Sources o Publc Ofce !Cre"ton# 1. Consti Constitut tution ion &'fce &'fce o the resident, (egislature, )upreme Court* 2. )tatut )tatutes es &)+C, &)+C, loca locall govern governmen mentt ofces* !. uth uthor orit ity y o o law law C$"r"cterstcs o %ublc ofce 1. publ public ic trust. trust. -t must must be be discharged not or his own personal benet but or the public. 2. ot a here heredit ditab able le posses possessio sion. n. -t must be relin/uished upon expiration o term. !. ot a prope property rty and and is is outsi outside de the the commerce o man. -t cannot be sub0ect o contract. ". ot pro protec tected ted by by the due due proce process ss clause
CHAPTER & RE'UIRE(ENTS FOR PUBLIC OFFICE Selecton or Publc Ofce 1. Appointment – choice o the public unctionaries is made by the particular ofcer designated by the Constitution or the law.
2. Election – choice is made by the enranchised citienry through the exercise o their surages. W$o c"n be "%%onte) b* t$e Pres)ent Pres) ent un)er un)e r t$e Consttu Co nsttuton+ ton+ &os. 13" re/uires conrmation* 1. 4eads 4eads o the execu executiv tive e departments 2. mbass mbassad adors, ors, other other public public ministers and consuls !. 'fcers 'fcers o the the armed armed orces orces rom rom the ran5 o colonel or naval captain ". 'ther 'ther ofcers ofcers whos whose e appoin appointme tments nts are vested in him by the Constitution $. 'ther 'ther ofcer ofcers s o the the gove govern rnmen mentt whose appointments are not provided or by law 6. 7hose 7hose whom whom he he may may be auth authori oried ed by law to appoint APPOINT(ENT – act o designation by the appointing ofcer, body or board, to whom that power has been delegated, o the individual who is to exercise the unctions o a given ofce. 3 Co Conn nnot ote es per permane manenc ncy y 3 8esul esults ts in secu securi rity ty o ten tenur ure e 3 +xec +xecut utiv ive e in in nat natur ure. e. 7he 7he pow power er o appointment is vested by the Constitution in the resident. resident. 3 8e/ui e/uirres acc accepta eptanc nce e by by the the appointee to ma5e it complete ,ESI-NATION – ,ESI-NATION – mere imposition o new duties on the ofcer to be perormed by him in a special manner. 3 7emporariness 3 #oes #oes not not ent entit itle le the the per perso son n designated to security o tenure as he occupies the position only in an acting capacity 3 (egis egisllativ tive in in na natur ture ,octrne o .u"l/e) "0enc* – "0enc* – the acts o the secretaries o such departments, perormed and promulgated in the regular course o business are, unless disapproved by the Chie +xecutive, presumptively the acts o the Chie +xecutive. Lmt"tons on t$e Pres)ents %o2er to "%%ont 1. Conrm Conrmati ation on by the the legi legisla slatur ture e 2. )pous )pouse e and and relat relative ives s by by consanguinity or afnity within the "th civil degree !. o appoi appointm ntment ents s within within 2 mont months hs beore the next presidential election ". ppointee ppointees s must possess possess re/uire re/uired d /ualications
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%hen the appointee is /ualied and all other legal re/uirements are satised, the Civil )ervice )ervice Commission Commission &C)C* has no choice but to attest to the appointment in accordance with the law. law. C)C is not empowered to determine the 5ind o appointment extended by the appointing ofcer. C)C is only limited to approving or reviewing the appointment, and in determining whether or not the appointee possess the /ualications and re/uisite or eligibility. Pres)ent"l A%%ontees4 ositions A%%ontees4 ositions in Career +xecutive )ervice &9ndersecretary, 8egional #irector* A%%onte) b* Ombu)sm"n4 position Ombu)sm"n4 position in :rat -nvestigation 'fcer Can an individual be compelled to accept an appointive ofce? ;+), i it is in connection with the deense o )tate.
ELECTION – ELECTION – mode o lling a public ofce, by which the enranchised citienry is able to participate directly in the conduct o the government, through the selection by them o the unctionaries who will represent then therein. 5ACANC6 – – when there is no person lawully authoried to assume and exercise at present the duties o the ofce. 1. 'ri 'rigin ginal al – ofce ofce is cre create ated d and no no one has as yet been chosen to ll it. 2. Constructi Constructive ve – incumbent incumbent has no legal legal right to the ofce and may be legally replaced by another. !. ccident ccidental al – incumben incumbentt is separated separated by resignation, death, removal or abandonment. ". bsolute bsolute – when the terms terms has expired expired and no successor has legally /ualied to replace him. 'UALIFICATION 17 ,s.u ,s.u"l "l/c /c"t "to on n 3 (ac5 o dis/ualication is itsel a /ualication 3 ardon ardon based on innocence, ipso acto, restores him to ofce.
3 o person may be appointed to the C)C is he was candidate in the lection immediately preceding his appointment resident, =res., =res., - Incompatible ofce. 7he resident, the members o the Cabinet, and their deputies shall not, unless otherwise provided in the Constitution hold any other ofce or employment during their tenure. - o elective ofcial shall be eligible or 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 o immigrant o a oreign country - atural born citiens who have been naturalied as citiens o a oreign country may re3ac/uire re3ac/uire hilippine citienship upon ta5ing a prescribed oath o allegiance to 8 &7 W$o m"* m"* %rescrb %rescrbe e .u"l/c .u"l/c"t "tons ons 3Constitution 3)tatute 3 >ualications may may not be changed by private agreement 87 Lmt"t Lmt"ton ons s on t$e t$e %o2er %o2er o o t$e le0sl"ture to %rescrbe .u"l/c"tons a. (egislat (egislature ure may not reduce reduce or increa increase se the /ualications prescribed in an exclusive manner by the Constitution b. (egislat (egislature ure may prescribe prescribe only general general /ualications c. >uali >ualicat cation ions s must must be relev relevant ant to to the ofce which they are prescribed >ualications are continuing re/uirements re/uirements and so must be possessed not only on the date o selection or assumption but or the ull duration o the ofcer?s incumbency.
CHAPTER 8 ,E FACTO OFFICERS ,e F"cto ,octrne -t is not only the acts o the lawul ofcer that are regarded as valid and binding. -nsoar as third persons are concerned, legal eect is also accorded to certain acts o a person whose title is presumptively presumptively legitimate or has no valid title to the position he holds. R"ton"le @embers o the public dealing with government are not supposed to veriy credentials o every unctionary exercising public unctions. 7hey have the right to
& 3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
%hen the appointee is /ualied and all other legal re/uirements are satised, the Civil )ervice )ervice Commission Commission &C)C* has no choice but to attest to the appointment in accordance with the law. law. C)C is not empowered to determine the 5ind o appointment extended by the appointing ofcer. C)C is only limited to approving or reviewing the appointment, and in determining whether or not the appointee possess the /ualications and re/uisite or eligibility. Pres)ent"l A%%ontees4 ositions A%%ontees4 ositions in Career +xecutive )ervice &9ndersecretary, 8egional #irector* A%%onte) b* Ombu)sm"n4 position Ombu)sm"n4 position in :rat -nvestigation 'fcer Can an individual be compelled to accept an appointive ofce? ;+), i it is in connection with the deense o )tate.
ELECTION – ELECTION – mode o lling a public ofce, by which the enranchised citienry is able to participate directly in the conduct o the government, through the selection by them o the unctionaries who will represent then therein. 5ACANC6 – – when there is no person lawully authoried to assume and exercise at present the duties o the ofce. 1. 'ri 'rigin ginal al – ofce ofce is cre create ated d and no no one has as yet been chosen to ll it. 2. Constructi Constructive ve – incumbent incumbent has no legal legal right to the ofce and may be legally replaced by another. !. ccident ccidental al – incumben incumbentt is separated separated by resignation, death, removal or abandonment. ". bsolute bsolute – when the terms terms has expired expired and no successor has legally /ualied to replace him. 'UALIFICATION 17 ,s.u ,s.u"l "l/c /c"t "to on n 3 (ac5 o dis/ualication is itsel a /ualication 3 ardon ardon based on innocence, ipso acto, restores him to ofce.
3 o person may be appointed to the C)C is he was candidate in the lection immediately preceding his appointment resident, =res., =res., - Incompatible ofce. 7he resident, the members o the Cabinet, and their deputies shall not, unless otherwise provided in the Constitution hold any other ofce or employment during their tenure. - o elective ofcial shall be eligible or 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 o immigrant o a oreign country - atural born citiens who have been naturalied as citiens o a oreign country may re3ac/uire re3ac/uire hilippine citienship upon ta5ing a prescribed oath o allegiance to 8 &7 W$o m"* m"* %rescrb %rescrbe e .u"l/c .u"l/c"t "tons ons 3Constitution 3)tatute 3 >ualications may may not be changed by private agreement 87 Lmt"t Lmt"ton ons s on t$e t$e %o2er %o2er o o t$e le0sl"ture to %rescrbe .u"l/c"tons a. (egislat (egislature ure may not reduce reduce or increa increase se the /ualications prescribed in an exclusive manner by the Constitution b. (egislat (egislature ure may prescribe prescribe only general general /ualications c. >uali >ualicat cation ions s must must be relev relevant ant to to the ofce which they are prescribed >ualications are continuing re/uirements re/uirements and so must be possessed not only on the date o selection or assumption but or the ull duration o the ofcer?s incumbency.
CHAPTER 8 ,E FACTO OFFICERS ,e F"cto ,octrne -t is not only the acts o the lawul ofcer that are regarded as valid and binding. -nsoar as third persons are concerned, legal eect is also accorded to certain acts o a person whose title is presumptively presumptively legitimate or has no valid title to the position he holds. R"ton"le @embers o the public dealing with government are not supposed to veriy credentials o every unctionary exercising public unctions. 7hey have the right to
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presume he is the ofcer he assumes to be.
the legal /ualica3 tions or the ofce in /uestionB
,e F"cto Ofcer C$e 9ustce Butler : one whose acts, though not those o a lawul ofcer, the law upon principles o policy and 0ustice, will hold valid so ar as they involve the interests o the public and third persons, where the duties were exercisedA
&!* must be lawully chosen to such ofceB
&1* %ithout a 5nown appointment or election, but under such cir circum cumsta stances ces o reput putation tion or ac/uiescence ac/uiescence as were calculated to induce induce people, people, without without in/uiry, in/uiry, to subm submit it to or invo invo5 5e his his acti action on,, supposing him to the be the ofcer he assumed to beB or
&"* must have /ualied himsel to perorm the duties o such ofce according to the mode prescribed by law.
&2* &2* 9nde 9nderr color color o a 5nown 5nown and and valid appointment or election, but wher here the the ofc ofcer has ai ailed led to conorm to some precedent re/ui re/uire remen mentt or condit condition ion &e.g. &e.g.,, ta5ing an oath or giving a bond*B Ttle &!* 9nder color o a 5nown election election or appointment, void becauseA &a* the ofcer was not eligibleB eligibleB &b* there was a want o power in the electing or appointing bodyB &c* there was a deect or irregularity in its exerciseB such ineligibility, want o power, or deect being un5nown to the public. &"* 9nder color o an election election or an appoin appointme tment nt by or pursua pursuant nt to a public, unconstitutional law, beore the same is ad0udged to be such &State v. Carroll). ,ISTINCTIONS ,e 9ure ;s7 ,e F"cto ,e 9ure Ofcer
,e F"cto Ofcer
Re.uste s &1*
+xistenc e o a de 0ure ofceB ofceB
&2* must possess
&1* #e 0ure ofceB
&2* Color o right or
Possesso n o Ofce
4as lawul title to the ofce 4as not been able to ta5e possession o it or has been ousted rom it Cannot be ousted except or 0ustiable reasons
general ac/uiesc ence by the publicB &!* ctual physical possessio n o the ofce in good aith
4as imperect or colorable title only ctually possesses the ofce
'nly by a direct proceeding Ho2 &quo ouste) warranto); not collaterally =alid, sub0ect =alid as to to exceptions the public &e.g., they until such 5"l)t* were done time as his o ofc"l beyond the title to the "cts scope o his ofce is authority, ad0udged etc.* insufcient. +ntitled to +ntitled to receive compensation compensatio as a matter o n only during rightB the time Rule on when no de Com%en< 7he principle 0ure ofcer ofcer s"ton o no wor5, claims the no pay is not ofceB 4e applicable to renders him. service in good aith.
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E="m%les o ,e F"cto OfcersA
1. a person who has been declared winner by the court or by the C'@+(+C in an election protest and assumed ofce based thereon and who has thereater been ad0udged not entitled to the ofce is a de acto ofcer because he exercised the duties o the elective ofce under color o election thereto and is thus entitled to the emoluments o the ofceB not a usurper because a usurper is one who underta5es to act ofcially without any color or right 2. a 0udge who resigned in his position is considered de acto ofcer until he is ormally notied o the acceptance o his resignation, or a resignation to be eective must be accepted by the ofcer authoried to accept it !. a person appointed to a position during the period that the incumbent, who was removed thererom, was litigating his action or reinstatement, may be considered a de acto ofcer ". a person who acts and discharges the ofce pursuant to an appointment wDc re/uires approval by another ofcer or ofce, such as the Civil )ervice Commission, is a de acto ofcer until the appointment is nally approved or disapproved E i approved, he becomes a de 0ure ofcerB i disapproved, he becomes an usurper $. an elected ofcer who has been proclaimed and has assumed ofce but was later on ousted in an election protest or /uo warranto is a de acto ofcer during the time he held the ofce Usur%er one who usur%s an ofce and underta5es to "ct ofc"ll* 2t$out "n* color o r0$t, as distinguished rom a de acto ofcer who exercises the duties o an ofce under a color o appointment or election
either actual or apparent one. 4e has neither Color o right lawul title B"ss o or title to nor color o "ut$ort* ofce right or title to ofce. bsolutely voidB they can be impeached =alid as to at any time the public in any until such proceeding 5"l)t* o time as his &unless and >ofc"l> title to the until he "cts ofce is continues ad0udged to act or so insufcient long a time as to aord a presumptio n o his right to act *
Rule on com%ens" < ton
+ntitled to receive compensatio n only during the time when no de 0ure ofcer is declaredB paid only or actual services rendered by him.
ot entitled to compensati on at all.
Color o Aut$ort*
the possession o an ofce and discharging o duties derived rom an election or appointment, however irregular or inormal
Q: Can an intruder / usurper ripen into a de acto ofcer?
,e F"cto ;s7 Intru)er
,e F"cto N"ture
'fcer under any o the " circumstanc es discussed under art -&above*.
Intru)er 'ne who ta5es possession o an ofce and underta5es to act ofcially without any authority,
A ;es. %ith the passage o time, a presumption may be created in the minds o the public that the intruder has a right to act as a public ofcer. Q: Is good aith a actor in the ripening o intruder status into de acto status? !" ;es. 4'%+=+8, it must be noted that the good aith must be on the part o the publicB not on the part o the intruder.
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EP4 7he #e Facto ofcer may cl"m or ret"n s"l"res IF4 1. 4e rendered services in :''# F-74 2. 7here is ' #+ G98+ 'FF-C+8 claiming the ofce
Re.ustes o " ,e 9ure Ofce &1* +xistence o a de 0ure ofceB &2* Color o right or general ac/uiescence by the publicB &!* ctual physical possession o the ofce in good aith
C$"llen0e to " ,e F"cto Ofcer
-RA 7he incumbency o a de acto ofcer acts m"* not be c$"llen0e) coll"ter"ll* or n "n "cton to 2$c$ $e s not " %"rt* but in a direct proceeding where title to the ofce will be the principal issue
RE(E,6 A 'uo 2"rr"nto proceedings
17 E=stence o " ,e 9ure Ofce -R4 7here is no de acto ofcer where there is no de 0ure ofce. 7here is ' )9C4 74-: ) #+ FC7' 'FF-C+. - t he ofce tsel s )eect;e or ;o), there is no )e "cto ofcer due to lac5 o a de 0ure ofce. - only the m"nner o /lln0 t$e ofce s unconsttuton"l, holder is a )e "cto ofcer. &7 Color o Ttle #erived rom reputation or ac/uiescence or rom an invalid appointment or election &also Color o Aut$ort** Continues as long as the deect in the appointment or election is un@no2n to t$e %ublc ll ofc"l acts are valid or all legal purposes even ater appointment or election is disapproved 87 P$*sc"l Possesson o t$e Ofce %ithout this re/uisite, discharge o powers and duties o the ofce will not be possible Ceases to exist when the ofce has been vacated by the de 0ure ofcer or has been abolished
W$o m"* /le4 &1* 7he person who claims to be entitled to the ofceB &2* 7he 8epublic o the hilippines, represented by &a* the )olicitor3:eneralB or &b* a public prosecutor.
CHAPTER ? THE CI5IL SER5ICE C;l Ser;ce rovided byA T$e Consttuton Hembraces all branches, subdivisions, instrumentalities, and agencies o the :overnment, including government3owned and controlled corporations with original chartersI “with original charters! means that :'CC?s reer to corporations chartered by special law as distinguished rom those under the Corporation CodeB its employees are covered by under the Civil )ervice, those :'CC?s under the Corporation Code are governed by the (abor Code
Eects o Acts o ,e F"cto Ofcers
-R4 ctsultra viresare not bn)n07 'nly7he l"2ul "cts o a de acto ofcer are ;"l) as to t$r) %ersons "n) t$e %ublc until his title to ofce is ad0udged insufcient
As to com%ens"ton -R4 #e Facto ofcer c"nnot cl"m " s"l"r* and other compensation or services rendered by him and may be re.ure) to %"* t b"c@ i he has collected such salary when de 0ure ofcer claims the ofce.
@embers o Civil )ervice are regulated by the ollowingA rticle -J &<* o the Constitution 7he Civil )ervice #ecree 7he dministrative Code o 1KLM pertinent principles under the (aw o ublic 'fcers
T$e C;l Ser;ce Commsson
3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
administers the Civil )ervice government?s central personnel agency designated to set standards and to enorce the laws and rules governing the selection, utiliation, training and discipline o civil servants composed o a C$"rm"n N T2o Commssoners who shall beA 1. natural3born citiens o the hilippines 2. at least !$ years o age at the time o their appointment !. with proven capacity or public administration ". must '7 have been candidates or any elective position in the elections preceding their appointment Chairmen and commissioners are appointed by the resident with the consent o the Commission on ppointment or a term o seven &M* years and may be removed '(; by impeachment
Cl"ss/c"tons o Postons 1. Career )ervice 2. on3Career )ervice 17 CAREER SER5ICE 3 characteried byA &1* entrance based on merit and tness to be determined as ar as practicable by competitive examinations, or based on highly technical /ualicationsB &2* opportunity or advancement to higher career positionsB and &!* security o tenure.
ObDect;es 7he Constitution provides that public ofce is a public trust. ublic ofcers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, efciency, act with patriotism and 0ustice, and lead modest lives. 7o insure and promote the constitutional mandate that appointments in the Civil )ervice shall be made according to merit and tness 7o promote responsiveness and courtesy in the civil serviceB strengthen the merit and rewards systemB integrate all human resources development programs or all levels and ran5sB and institutionalie a management climate conducive to public accountability Sco%e 7he ollowing are covered by 7he Civil )erviceA 1. 2. !. ?7 7
branches subdivisions instrumentalities agencies o the :overnment government3owned and controlled corporations with original charters e.g.A #uty Free, hil. 7ourism uthority, hilippine musement and :aming Corporation
7he Civil )ervice and labor laws and procedures, whenever applicable
shall be ollowed in resolutions o complaints, grievances and cases involving gov?t employees -nter3union and -ntra3union conOicts shall be under original and exclusive authority o the
Career )ervice includesA
1. O%en C"reer %ostons or appointment to which prior /ualication in an appropriate examination is re/uiredB 2. Close) C"reer %ostons which are scientic or highly technical in natureB these include the aculty and academic sta o state colleges and universities, and scientic and technical positions in scientic or research institutions which shall establish and maintain their own merit systemsB !. Postons n t$e C"reer E=ecut;e Ser;ceB namely, 9ndersecretary, ssistant )ecretary,
3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
$. Commssone) ofcers "n) enlste) men o t$e Arme) Forces which shall maintain a separate merit systemB 6. Personnel o 0o;ernment
to underta5e a specic wor5 or 0ob, re/uiring special or technical s5ills not available in the employing agency, to be accomplished within a specic period, which in no case shall exceed one year, and perorms or accomplishes the specic wor5 or 0ob, under his own responsibility with a minimum o direction and supervision rom the hiring agencyB and $. Emer0enc* and se"son"l %ersonnel El0blt*
&7 NON
@ust be possessed by an individual that he may be legally t or /ualied to be appointed in government service, sub0ect to constitutional exceptions +xaminations are ta5en to ac/uire eligibility e.g.A board and bar examinations granted to summa cum laude# magna cum laude and cum laude graduates o "3year degree courses under certain conditions 'nce ac/uired, it may be availed by the eligible any time on3eligible C'7 be appointed
&1* entrance on bases other than those o the usual tests o merit and tness utilied or the career serviceB and &2* tenure 1 which is limited to a period specied by law, or which is coterminous with that o the appointing authority or sub0ect to his pleasure, or which is limited to the duration o a particular pro0ect or which purpose employment was made
on3Career )ervice includesA
A%%ontments @ade only according to mert "n) /tness +JC+7 to positions which areA
1. Elect;e ofc"ls and their %erson"l or con/)ent"l st" B 2.
!.
".
,e%"rtment He")s "n) ot$er ofc"ls o C"bnet r"n@ who hold positions at the pleasure o the resident and their personal or condential sta&s*B C$"rm"n "n) members o commssons "n) bo"r)s with xed terms o ofce and their personal or condential staB
olicy3determining rimarily condential 4ighly technical by competitive examination. PER(ANENT @ay be TE(PORAR6
1. permanent P issued to a person who meets the re/uirements or the position to which he is appointed, including appropriate eligibility prescribed, in accordance with the provisions o laws, rules and standards promulgated in pursuance thereoB may serve a probationary period o 6 months and may be dismissed or unsatisactory conduct or want o capacity3appealable to the Commission
Contr"ctu"l %ersonnel or those whose employment in the government is in accordance with a special contract
1 7he
security o tenure o employees in the career executive service &except rst and second3level employees in the civil service*, pertains only to ran5 and not to the ofce or to the position to which they may be appointed. 7hus, a C+)' may be transerred or reassigned rom one position to another without losing his ran5 which ollows him wherever he is transerred or reassigned. -n act, a C+)' suers no diminution o salary even i assigned to a C+) posi ti on with lower sal ary grade, as the compensation is according to C+) ran5 and not on the basis o the position or ofce occupied.
or
&7 temporar" P -n the absence o appropriate eligibles and it becomes necessary in the public interest to ll a vacancy, a temporary appointment is issued to
G 3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
a person who meets all the re/uirements or the position to which he is being appointed except the appropriate civil service eligibilityA Pro;)e), 7hat such temporary appointment shall not exceed twelve &12* months, but the appointee may be replaced sooner i a /ualied civil service eligible becomes availableB
7emporary appointees may be terminated anytime even without cause. 7hey have ' F-J+# 7+98+ & !brot v. C!) cceptance o a temporary appointment divests the temporary appointee o the constitutional security o tenure even i he is a civil service eligible $%olentino v. &e 'esus) temporary appointee cannot as5 to be reinstated to his ormer permanent position i his temporary appointment is not renewed $(omualde III v. CSC) 7emporary appointment cannot become automatically permanent ater the temporary appointee ac/uires civil service eligibility &*aturan v. *aglana) Tem%or"r* A%%ontment -ssued upon prior authoriation o the Commission o Civil )ervice with the provisions o Civil )ervice (aw to a person who has not /ualied in an appropriate exam but otherwise meets the re/uirements or appointment to a regular position in the competitive service, whenever a vacancy occurs and lling thereo is necessary in the interest o service and there is no appropriate register o eligibles at the time o appointment.
Pro;son"l A%%ontment :iven to a non3 service eligible, is without a denite tenure and is dependent upon the pleasure o the appointing power
Re%ublc Act – government employees holding career civil service
positions appointed under provisional or temporary status who have rendered at least a total o M years o efcient service may be granted civil service eligibility to /ualiy them or permanent appointment in their positions Re0ul"r A%%ontment @ade during the legislative session
A) Interm A%%ontment @ade during recess
@ade only ater the nomination is conrmed by the Commission on ppointments 'nce conrmed, continues until the end o term o appointee
@ade beore conrmation o the Commission on ppointments )hall cease to be valid i disapproved by the Commission on ppointments or upon the next ad0ournment o CongressB #eemed Hby3passed through inaction o, and so disapproved impliedly by, the Commission on ppointments
oteA 7he purpose o an ad interim appointment is only to prevent a hiatus in the discharge o ofcial duties. 'therwise, immobiliation o the public ofce will pre0udice the people. ECEPTIONS 7he ollowing positions are excepted rom the re/uirement or competitive examinationsA #$ %olic" determining –one charged with the laying down o principal or undamental guidelines or rulesB or ormulates a method o action or government or any o its subsidiaries
+xamplesA cabinet member, head o a department &$ %rimaril" Con'dential – denotes not only condence in the aptitude o the appointee or the duties o the ofce but primarily close intimacy which ensures reedom o intercourse without embarrassment or reedom rom misgivings or betrayals on condential matters o the stateB or one declared so by the resident upon recommendation o the Civil )ervice Commission
3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
+xamplesA private secretary, condential agent ($ )ighl" *echnical – re/uires the appointee thereto to possess technical s5ill or training in a superior degree
determined by the appointing authority and approved by the Commission. Ne%otsm
+xamplesA City (egal 'fcer, )cientist '7+A -t is the nature o the position which determines whether a position is policy determining, primarily condential or highly
Promoton @ovement rom one position to another with increase in duties and responsibilities as authoried by law and usually accompanied by an increase in pay @ay be rom one department or agency to another, or rom one organiational unit to another in the same department or agency In)s%ens"ble element4 advancement rom one position to another or an upward vertical movement o the employee?s ran5 or position -ncrease in salary is only incidental but never determinative o whether promotion is bestowed Ne=t In R"n@ Rule
7he person next in ran5 shall be given preerence in promotion when the position immediately above his is vacated. 7he appointing authority still exercises discretion and is not bound by this rule, although he is re/uired to speciy the Hspecial reasonDsI or not appointing the ofcer next3in3ran5. 7his means that the one who is next3in3ran5 is given only preerential consideration or promotionB but it does not ollow that he alone and no one else can be appointed 8emedy o a by3passed /ualied next3in3ran5A appeal initially to the department head
'u"l/e) ne=t<n
Favoritism toward relatives by the appointing authorityB prohibited Pro$bte) A%%ontmentsA ll appointments in the ational, provincial, city and municipal governments or in any branch or instrumentality thereo, including government3owned or non3 competitive service, made in avor o a relative oA 1. the appointing recommending authority 2. the chie o the bureau or ofce !. the persons exercising immediately supervision over him Rel"tons co;ere)A extend to the third degree o consanguinity or afnity.
7he ollowing however, are e=em%t rom the nepotism ruleA
persons employed in a condential capacity teachers physicians members o the rmed Forces o the hilippines
-n each o these particular instances, a ull report o the appointment is re/uired to be made to the Civil )ervices Commission. Pro$bton to Pres)ent4 7he constitution provides that the spouse and relatives by consanguinity or afnity within the ourth civil degree o the resident shall not during his tenure be appointed as @embers o the Constitutional Commissions, or to the 'fce o the 'mbudsman, or as )ecretaries, 9ndersecretaries, chairmen or heads o bureaus or ofces, including government3owned or controlled corporations and their subsidiaries. Pur%ose o Ne%otsmA
J 3 ( a w o n u b l i c ' f c e r s 8 e vi e w er
Pro$bton
"0"nst
7o ensure that all appointments and other personnel actions in the civil service should be based on merit and tness and should never depend on how close or intimate an appointee is to the appointing power 7o ta5e out o the discretion o the appointing or recommending
authority the matter o appointing or recommending or appointment o a relative
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%hen unconsented, remo;"l
oteA Charges o nepotism must be dul+ proved.
Tr"nser
Ot$er Personnel Actons ll appointments in the career service shall be made '(; according to mert "n) /tness to be determined, as ar as practicable, by competitive examinations non3eligible 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 Acton : any act denoting the movement or progress o personnel in the civil service, including appointment throughA !1# Certication !&# romotion !8# 7ranser !?# 8einstatement !# 8eemployment !# #etail !G# 8eassignment !# #emotion !J# )eparation
@ovement rom one position to another which is e/uivalent in ran5, level or salary without brea5 in service
(ateral movement !
results
to
Promoton dvancement rom one position to another with an increase in duties and responsibilities as authoried by law, usually accompanied by an increase in salary )calar ascent
-llegal transer is tantamount to removal without cause E+CE%* when an ofcer is "%%onte) K"t l"r0e in which case he may be assigned or transerred to any station, as he is not entitled to stay permanently at any specic station +xampleA 8egional #irectors
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ll o which shall be in accordance with the rules and regulations o the Civil )ervice Commission.
8e/uest or transer must be such that there is an intention to surrender a permanent ofceB it denotes relin/uishment o an ofce in exchange or another ofce.
,$ -einstatement #$ Certi'cation
–issued to a person who has been selected rom a list o /ualied persons certied by the Commission rom an appropriate register o eligibles, and who meets all the other re/uirements o the position
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&$ %romotion &see previous page QRQ* ($ *ranser
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movement rom one position to another which is o e/uivalent ran5, level or salary without brea5 in service not considered disciplinary when made in the interest o public service 8emedy i employee believes there is no 0ustication or the transerA appeal to the C)C @ay be rom one department to another in the same department or agency @ovement rom non3 career to career service is '7 a transer
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conerred to a person who has been permanently appointed to a position in the career service and who has through no delin/uency or misconduct, been separated thererom technically the issuance o 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 & ,loria v. de ,uman) may not be as5ed or by an ofcer who was merely designated, a designation not being a permanent appointment &,loria v. de ,uman) a convicted public ofcial who has been pardoned is '7 automatically entitled to
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reinstatement. 4e must re3apply. &*onsanto v. Factoran*2 EP 3 a pardoned elementary school principal, is ater her pardon, or considerations o H0ustice and e/uityI entitled to or eligible to the same position and, and not to the lower classroom teacher, there being no diminution in his ran5$Sabello v. &CS) 3 - pardon is based on the innocence o the individual or i executive clemency is granted to cover the administrative charges or the same acts and he was ac/uitted or having been ound not to have committed the oense imputed to him, he is restored to his ofce ipso upon issuance o the acto clemency.
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1$ -eassignment
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names o persons who have been appointed permanently to positions in the career service and who have been separated as a result o reduction in orce andDor reorganiation, shall be entered in a list rom which selection or reemployment shall be made
$ 0etail
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movement o an employee rom one agency to another without the issuance o an appointment, and shall be allowed only or a limited period in the case o employees occupying proessional, technical and scientic positions temporary in nature &(ep. v. C!)
2 For petitioner @onsanto, this is the bottom lineA the absolute dis/ualication or ineligibility rom public ofce orms part o the punishment prescribed by the 8evised enal Code or estaa thru alsication o public documents. -t is clear rom the authorities reerred to that when her guilt and punishment were expunged by her pardon, this particular disability was li5ewise removed. 7hus, petitioner may apply or reappointment to the ofce which was oreited by reason o her conviction. nd in considering her /ualications and suitability or the public post, the acts constituting her oense must be and should be evaluated and ta5en into account to determine ultimately whether she can once again be entrusted with public unds. )tated dierently, the pardon granted to petitioner has resulted in removing her dis/ualication rom holding public employment but it cannot go beyond that. 7o regain her ormer post as assistant city treasurer, she must reapply and undergo the usual procedure re/uired or a new appointment.
an employee may be reassigned rom one organiational unit to another in the same agency, provided that such reassignment shall not involve a reduction in ran5, status or salary - without a denite period or duration, violative o the security o tenure o a government employee 7antamount to a Ooating assignment i there is diminution in ran5
2$ 0emotion
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.$ -eemplo"ment
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ower to control impliedly includes the power to detail $orres v. Canono+)
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movement rom one position to another which involves diminution in duties, responsibilities, status or ran5 which may or may not involve reduction in salary - without cause, tantamount to removal
Personnel ,e;elo%ment urposeA 7o improve the attitude and competence o the civil service. 7he Career and ersonnel #evelopment lan shall contain the ollowingA
merit promotion perormance evaluation in3service training &including oreign N local scholarships and training grants* 0ob rotation suggestions and awards system other plans or employees? health, welare, counselling, recreation and similar services
3+mployees 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. 7hey shall have the right to appeal to higher authorities. +ach department or agency shall promulgate rules and regulations governing expeditious, air and e/uitable ad0ustment o such complaints and grievances pursuant to the policies o the C)C. ,sc%lne <
'fcers and employees in the Civil )ervice including those appointed
11 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
<
to the policy3determining, primarily condential and highly technical positions, en0oy security o tenure and may not be suspended or dismissed &except or 0ust cause* but may be disciplined. #iscipline shall be accorded to those who violate public trust and ail to serve with utmost responsibility, integrity, loyalty and efciency and act with patriotism and 0ustice and live modest lives.
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A7 -roun)s or ,sc%lne !1# dishonesty !&# oppression !8# neglect o duty !?# misconduct !# disgraceul and immoral conduct !# being notoriously undesirable !G# discourtesy in the course o ofcial duties !# inefciency and incompetence in the perormance o ofcial duties !J# conviction o a crime involving moral turpitude !1# alsication o ofcial documents !11# habitual drun5enness !1&# gambling !18# reusal to perorm ofcial duty or render overtime service !1?# physical or mental incapacity due to immoral or vicious habits !1# wilul reusal to pay 0ust debts !1# wilul ailure to pay taxes due to the government &1M* habitual tardiness
Incom%etence n t$e Perorm"nce o ,ut* <
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intentionally ma5ing a alse statement in any material act, or practicing or attempting to practice any deception or raud in securing his examination, registration, appointment or promotion. understood to imply a disposition to lie, cheat, deceive or deraud, untrustworthiness or lac5 o integrity
(scon)uct n Ofce 3 3
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may either be &1* simple misconductB or &2* grave misconduct that which aects one?s perormance o his duties as an ofcer and not such only as aects his character as a private individual any unlawul conduct on the part o the person concerned generally means wrongul, improper or unlawul conduct
the maniest lac5 o ade/uate ability and tness or the satisactory perormance o ofcial duties by reason o the ofcer?s vices or vicious habits has reerence to any physical moral or intellectual /uality, the lac5 o which substantially incapacitates one to perorm the duties o an ofce +/uivalent to HinefciencyI #etermined ater a probation period o 6 months
-ross ne0l0ence <
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motivated by premeditated, obstinate or intentional purpose does not necessarily imply corruption or criminal intent -r";e mscon)uct 4 acts so corrupt or inspired by an intention to violate the law, or constitute a Oagrant disregard o well35nown rulesB -t is a transgression o some established denite rule o action, a orbidden act, a dereliction o duty, wilul in character and implies wrongul intent and not a mere error in 0udgment.
negligence characteried by the want o even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilully and intentionally, with a conscious indierence to conse/uences in so ar as other persons may be aected
oteA Causes which warrant dismissal o a civil servant need not necessarily be wor53 related or committed in the course o the perormance o duty by the person charged.
B7 9urs)cton <
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granted to the )ecretaries and heads o agencies and instrumentalities, provinces, cities and municipalities to investigate and decide matters involving disciplinary action against ofcers and employees decisions are /n"l in case the penalty imposed is suspension or not more than thirty &!S* days or ne in an amount not e=cee)n0 thirty &!S* days salary decisions are initially appealed to the department and nally to the
1& 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
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Commission and pending appeal shall be executory ECEPT when the penalty is remo;"l. 7he C)C decides upon appeal all administrative disciplinary cases involving the imposition o a penalty o suspension or more than thirty &!S* days or ne in an amount e=cee)n0 thirty &!S* days salary, demotion in ran5 or salary or transer, removal or dismissal rom ofce 7he C)C is the sole "rbter o controversies relating to civil service. #isciplinary cases and cases involving Hpersonnel actionsI aecting employees in the civil service are under its exclusive 0urisdiction. 7he )andiganbayan shall exercise exclusive 0urisdiction over Hresidents, directors or trustees, or managers o government3owned or controlled corporations, state universities or educational institutions or oundationsI $/eople v. Sandiganba+an)
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C7 Proce)ure <
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complaint against a civil service ofcial shall not be given in due course unless it is n 2rtn0 and s2orn to by the complainant EP4 in cases initiated by the proper disciplining authority, complaint need not be under oath an anonymous letter is not a complaint but the C)C may act on the same complaint may be commenced even against a subordinate ofcer or employee and led at any time with the C)C 7he withdrawal o the complaint does not result to its outright dismissal or discharge Counter< Af)";tMComment is re/uired o the respondent $ days ater receipt o a ormal charge and preliminary investigation shall be held $ days ater receipt o complaint. Failure to submit counter3afdavit shall be a waiver o said right - a prima acie case is established, a ormal investigation shall ollow even without re/uest o respondent. Fiteen &1$* days ater conclusion o the ormal investigation a report
containing the material acts o the investigation shall be submitted to the 4earing 'fce. decisions rendered by heads o agencies or a penalty o suspension or not more than thirty &!S* days or ne in an amount not e=cee)n0 thirty &!S* days salary shall be FINAL "n) EECUTOR6 4owever, i the penalty is suspension or more than thirty &!S* days or ne in an amount e=cee)n0 thirty &!S* days salary it shall only be FINAL "ter t$e l"%se o 1 )"*s, the period or ling a motion or reconsideration or appeal. Onl* one !1# (7R7 is allowed on the ollowing groundsA !1# new evidence has been discovered which materially aects the decision rendered !&# the decision is not supported by the evidence on record !8# errors o law or irregularities have been committed pre0udicial to the interest o the movant.
,7 Pre;ent;e Sus%enson Secton 1J Rule II o t$e Unorm Rules on A)mnstr"t;e C"ses n t$e C;l Ser;ce – empowers the proper disciplining authority to issue upon !1# petition o the complainantB or !&# motu propio an order o preventive suspension to any subordinate ofcer or employee pending investigation i the charge involvesA a. b. c. d. e.
dishonesty oppression grave misconduct neglect in the perormance o duty i there are reasons to believe that the respondent is guilty o the charges which would warrant his removal rom ofce
3reventive )uspension may be issued to tem%or"rl* remo;e the respondent rom the scene o miseasance or maleasance to %reclu)e t$e %ossblt* o e=ertn0 un)ue nuence or %ressure on t$e 2tness "0"nst $m or t"m%ern0 o )ocument"r* e;)ence on /le 2t$ $s Ofce. -t is '7 a nal determination o guilt.
18 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
-t does not re/uire prior notice and hearing ¬ a violation o due process* since it is not a penalty but a %relmn"r* ste%. T2o @n)s o %re;ent;e sus%ensonA &1* preventive suspension pending investigation &)ec. $1, Civil )ervice (aw, +' o. 2K2* &2* preventive suspension pending appeal i the penalt+ imposed b+ the disciplining authorit+ is suspension or dismissal and# ater review# the respondent is e0onerated &)ection "M, par. ", Civil )ervice (aw, +' o. 2K2*.
Secton 8 o t$e Loc"l -o;ernment Co)e o 1JJ1
single preventive suspensionA shall not e=cee) s=t* !# )"*s several administrative casesA shall not e=cee) nnet* !J# )"*s 2t$n " sn0le *e"r on the same grounds existing and 5nown at the time o the rst suspension
E7 ,ecson - charges are not proved by %re%on)er"nce o e;)ence, case )smsse) shall be and the res%on)ent renst"te) 2t$ b"c@ s"l"res i preventively suspended. 3 -t is not enough that an employee is exonerated o the charges against himB his suspension must li5ewise be un0ustied. 'n the other hand, employees who are considered preventively suspended pending appeal are entitled to payment o their salaries i they are subse/uently ound innocent &and such suspension exceeds KS days* $,loria vs. C!). 3 4eirs are '7 entitled to salaries o an accused who died pending resolution o the criminal case against him had his preventive suspension been lited as a conse/uence o exoneration because his death resulted rom dismissal o charges and not his ac/uittal$*alan+aon v. 1ising). F7 A%%e"l 3perected... 2t$n /teen !1# )"*s rom rece%t o t$e )ecson u%on t$e /ln0 o " notce o "%%e"l and
the submission o t$ree !8# co%es o t$e "%%e"l memor"n)um Proo o ser;ce o t$e "%%e"l memor"n)um upon the disciplining ofce Proo o %"*ment o t$e "%%e"l ee Cert/c"ton "0"nst orum s$o%%n0 < Onl* one !1# %etton or recons)er"ton is allowed on the ollowing groundsA !1# new evidence has been discovered which materially aects the decision rendered !&# the decision is not supported by the evidence on record !8# errors o law or irregularities have been committed pre0udicial to the interest o the movant. Failure to perect an appeal within the reglementary period &1$ days* renders the 0udgment F-( and +J+C97'8;. )upreme Court abandoned its prior decisions holding that Civil )ervice (aw does not contemplate a review o decisions exonerating ofcers or employees rom administrative charges. 4ence, as an aggrieved party, C)C may appeal the decision o C to the )C $Supreme Court v. &aco+co+).
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R0$t to Sel
1? 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
$!lliance o ,overnment 5or3ers v. *inister or 1abor and mplo+ment) +mployees o :'CCs without original charters may avail themselves o the right to sel3 organiation under the (abor Code. 7hose employed in :'CCs with original charters may do so on the basis o civil service laws, particularly +' 1LS.
Aut$ort* o t$e 2$ere e=ercse)
%ublc ofcerQ
-R4 7he public ofcer may exercise his powers ONL6 WITHIN THE TERRITORIAL LI(ITS OF HIS AUTHORIT6 and any act perormed
outside that area will be null and void. " PNs4 !1# N"ton"l Ofcers a member o the Cabinet resident o the hilippines !&# T$ose 2$o )sc$"r0e t$er unctons n " )erent st"te7 #iplomats #elegates !8# Cert"n "cts o Du)0es -ssuance o warrants o arrest which may be served anywhere in the hilippines. !?# Cert"n "cts o loc"l ofcers transacting @ayor ofcial business in a dierent municipality o city on behal o his municipality.$ •
Aut$ort* o t$e %ublc ofcerQ 2$en e=ercse) – '(; #98-: 4-) 7+8@ 'F 'FF-C+ -RA An* "ct %erorme) b* t$e %ublc ofcer "ter $s term o ofce 2ll be cons)ere) n;"l)7 PNsA !1# W$ere t$e %ublc ofcer m"* be re0"r)e) "s " )e "cto ofcer7 :-((+8 =). F+8#+T 6 ;7' =). C)7-(('M Note4 n appointment made by the resident to ll an anticipated vacancy
CHAPTER AUTHORIT6 OF THE PUBLIC OFFICER
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Commissioner o Customs – 7ari and Customs Code o 1KL2
Aut$ort* o t$e %ublc ofcerQ 2$ere )er;e) – F8'@ 74+ +'(+ ! "
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7his is in conormity with the constitutional principle that Hthe hilippines is a republican state. )overeignty resides in the people and all government authority emanates rom them.I 87. --, )ec. 1 -llustrationA owers o the resident – 87. =-(egislature – 87. =)upreme Court – 87. =--Constitutional Commissions – 87. -J owers o local ofcials – (:C o 1KK1 or by special charters
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+xamplesAa 0udge cannot act outside his 0udicial district a mayor does not have 0urisdiction outside his municipality
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-t must be noted that despite his physical presence, he could not be temporarily succeeded by the vice3mayor.
1 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
occurring "ter his term will be n;"l) even i the appointment itsel was made during his term.
perormed by him beore the expiration o his xed term. •
!&# W$ere "n ofcer s "ut$ore) to $ol) o;er7
Aut$ort* o " %ublc ofcerQ $o2 e=ercse) – )78-C7(; C')789+# W$* strct constructon+ representative government is a government o limited powers. ny doubt on this matter shall be resolved in avour o the public and against the exercise o the authority claimed.
Note4 7he acts o an ofcer who is authoried to hold over continue to be valid until his successor is duly chosen and subse/uently /ualies. )uch an ofcer is regarded as de 0ure and all his acts have the same legal efcacy as those
Constructon o %o2ers those powers ConerDgrant expressly imposed those powers ConerDgrant necessarily implied &doctrine o necessary implication*
6 n appointment extended by the resident shortly beore his term ended is valid provided it is a result o his deliberate action considering the /ualications and exigencies o the service.
7 F"cts4ytona one was o those appointed by outgoing president :arcia during the last minute o his term. ytona was appointed as the ad interim governor o the Central
Note4 n administrative ofcer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereo. 7hese powers s$oul) not be e=ten)e) b* m%lc"ton be*on) 2$"t m"* be necess"r* or their 0ust and reasonable execution.
,octrne o necess"r* m%lc"ton – states that all powers necessary to the exercise o the power expressly granted are deemed impliedly granted as well.
+xamples &pplication o the doctrine*A
AN-ARA 5S7 ELECTORAL CO((ISSION – 7he power o the +lectoral Commission to hear and decide certain election cases carries with it the implied power to adopt rules o procedure to be observed in the conduct o these cases.
In$erent %o2ers – +.g. police power may be asserted by the national legislature despite the absence o constitutional vesture.
Issue4 %hether or not ytona should remain in his post.
Hel)4 4ad the appointment o ytona been done in good aith then he would have the right to continue ofce. 4ere, even though ytona is /ualied to remain in his post as he is competent enough, his appointment can nevertheless be revo5ed by the president. :arcia?s appointments are hurried maneuvers to subvert the upcoming administration and is set to obstruct the policies o the next president. s a general rule, once a person is /ualied his appointment should not be revo5ed but in here it may be since his appointment was grounded on bad aith, immorality and impropriety. -n public service, it is not only legality that is considered but also 0ustice, airness and righteousness.
oteA 7he actual exercise o the inherent powers o the state must be made with due regard or private rights. 7he exercise o such powers must always be liberally construed against the government.
An ")mnstr"t;e ofcer m"* re;o@e re%e"l or "bro0"te t$e "cts or %re;ous ruln0s o $s %re)ecessor n ofce7 – 7he construction o a statute by
L )trict construction is especially true in cases involving private interests. +.g. those protected by the
1 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
those administering it is not binding on their successors i, thereater, the latter becomes satised that a dierent construction should be given.
,octrne o .u"l/e) %oltc"l "0enc* – states that department secretaries may exercise powers delegated to them by the resident sub0ect to the latter?s power o control.
+xample &pplication o the doctrine*A
7he power o the resident to reorganie the ational :overnment may validly be delegated to his cabinet members exercising control over a particular executive department.
W$en %o2ers "re ;"l)l* e=ercse) !1# Aut$ore) "cts o " %ublc ofcerJ !&# Acts o )e "cto ofcers1 !8# T$e "ct o t$e %ublc ofcer s not %re;ousl* "ut$ore) but t s subse.uentl* r"t/e) b* t$e 11 0o;ernment 7
Note4 7he principle o estoppels does not operate against the government or the acts o its agents, and that it is never stopped by any mista5e or error on their part. n)s o )utes o %ublc ofcers !1# ,screton"r* !&# (nster"l ,screton"r* )ut*1 7he ofcer is allowed to determine how and when it is to be perormed and to decide this matter one way or the other and be right either way. 7he ofcer is allowed much leeway in arriving at a decision as the duty is conerred on him in recognition o his good sense or 0udgment. 7his discretionary duty is never meant to be absolute, uncontrolled, and unrestrained. o such power may be validly granted to any ofcer o the government except perhaps in cases o national emergency. E=ercse o )screton"r* )ut*
7he public ofcer is expected to discharge it #-8+C7(; and not through the intervening mind o another. &3h"? 7he conerment o discretion is based on the good sense o 0udgment o the public ofcer.*
-R4 A )screton"r* )ut* c"nnot be )ele0"te) to "not$er7
W$en %o2ers "re n;"l)l* e=ercse) !1# Absolutel* n;"l) "cts o " %ublc ofcer7 !;o) "cts# !&# Un"ut$ore) "cts o " %ublc ofcer1&7 )(C+#' =). C1! F+)7+G' =). F+8#' 1"
W$*+ 7he presumption is that he is chosen because he was deemed t and competent to exercise that 0udgment and discretion.
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)uch acts will produce legal eect and be considered binding upon the government itsel as the principal o the public ofcer.
1S
)uch acts will produce legal eect and be considered binding upon the government itsel as the principal o the public ofcer.
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@+8-C 7'<CC' C' #-8+C7'8 'F 7+7) 16
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PNs4 &%hen delegation is allowed* !1# W$en t$e %o2er to substtute "not$er n $s !%ublc ofcers# %l"ce $"s been 0;en to $m7
e.g. court may not compel a local legislative body to appropriate unds or the celebration o a town esta as this matter is entirely discretionary with the body.
e.g. 7he resident?s power to conclude treatises &can be assigned to his subordinate*.
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!&# In t$e c"se o t$e Pres)ent o t$e P$l%%nes "s $e s not e=%ecte) to )sc$"r0e t$e tot"lt* o t$e e=ecut;e %o2ers conerre) u%on $m7 W$*+ -t is physically impossible or him to do so. '4 ("* t$e e=ercse o )screton be com%elle)+
16 F"cts4
7C et al led beore the hilippine atent 'fce concerning the use o trade mar5 and trade name. 7C et al challenged the validity o 8ule 16L o the H8evised 8ules o ractice beore the hilippine atent 'fce in 7rademar5 CasesI as amended, authoriing the #irector o atents to designate any ran5ing ofcial o said ofce to hear Hinter partesI proceedings. )aid 8ule li5ewise provides that Hall 0udgments determining the merits o the case shall be personally and directly prepared by the #irector and signed by him.I 7hese proceedings reer to the hearing o opposition to the registration o a mar5 or trade name, intererence proceeding instituted or the purpose o determining the /uestion o priority o adoption and use o a trade3mar5, trade name or service3mar5, and cancellation o registration o a trade3mar5 or trade name pending at the atent 'fce. etitioners led their ob0ections to the authority o the hearing ofcers to hear their cases, alleging that the amendment o the 8ule is illegal and void because under the law the #irector must personally hear and decide inter partes case. )aid ob0ections were overruled by the #irector o atents, hence, the present petition or mandamus, to compel the #irector o atents to personally hear the cases o petitioners, in lieu o the hearing ofcers.
Issue4 %hether or not the hearing done by hearing ofcers are within due process.
I t$e %ublc ofcer $"s been 0;en t$e )screton to "ct or not to "ct u%on " cert"n m"tter – ', and his decision cannot be the sub0ect o 0udicial reversal.
I t$e )ut* s m")e m%er"t;e "s 2$en " )e")lne s /=e) or ts )sc$"r0e "n) )screton s 0r"nte) onl* "s to t$e m"nner o ts e=ercse – ;+), and his duty may be compelled by 0udicial process.
@+8(C' )+C98-7-+) C'8'87-' =). )=+((' – @andamus only lies to enorce the perormance o a ministerial act or duty and not to control the perormance o a discretionary power. urely administrative and discretionary unctions may not be interered with by the courts. @andamus may not be resorted to so as to interere with the manner in which the discretion shall be exercised or to inOuence or coerce a particular determination.
,screton – means the power or right conerred upon the ofce by law acting ofcially under certain circumstances
7he )C ruled that the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation o the power to hold a hearing on the basis o which the decision o the administrative agency will be made. 7he rule that re/uires an administrative ofcer to exercise his own 0udgment and discretion does not preclude him rom utiliing, as a matter o practical administrative procedure, the aid o subordinates to investigate and report to him the acts, on the basis o which the ofcer ma5es his decisions. -t is sufcient that the 0udgment and discretion nally exercised are those o the ofcer authoried by law. either does due process o law nor the re/uirements o air hearing re/uire that the actual ta5ing o testimony be beore the same ofcer who will ma5e the decision in the case. s long as a party is not deprived o his right to present his own case and submit evidence in support thereo, and the decision is supported by the evidence in the record, there is no /uestion that the re/uirements o due process and air trial are ully met. -n short, there is no abnegation o responsibility on the part o the ofcer concerned as the actual decision remains with and is made by said ofcer. -t is, however, re/uired that to Hgive the substance o a hearing, which is or the purpose o ma5ing determinations upon evidence the ofcer who ma5es the determinations must consider and appraise the evidence which 0usties them.I
Hel)4
1 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
according to the dictates o his own 0udgment and conscience and not controlled by the 0udgment or the conscience o others.
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For all its wide latitude discretion is not totally unlimited. -t is restricted by the very /ualities that 0ustied its conerment – the 0udgment and good sense o the delegate. 4ence, i these are not employed in the discharge o the duty, that is, i the duty was perormed arbitrarily or capriciously, or with disregard o rights, there results what is 5nown as a grave abuse o discretion, which m"* be correcte) n "%%ro%r"te Du)c"l %rocee)n01G. W$"t m"* be re.ure) s 0ener"l "cton onl*7 7his means that the public ofcer may not be re/uired to discharge the imperative duty, but not in any specic manner. 4ow he perorms his duty is his own prerogative, and this may not be usurped by others rom the delegate to which the people have seen t to entrust it. e.g. %here an administrative body simply reuses to ta5e any action whatsoever, the court may issue a writ o mandamus to compel it to ta5e some action, but should not attempt to prescribe the action to be ta5en and thereby control the discretion or 0udgment o the board o ofcer.
(nster"l )ut*1 %hen the ofcer is given little latitude its discharge. the law exacting its %hen discharge prescribes and denes the time, mode, and occasion o its perormance with such certainty that nothing is let or 0udgment or discretion. ractically a mechanical act.
denes with precision the occasion and manner o its exercise. ministerial duty can be compelled by 0udicial action. 7he exercise o this duty is sub0ect to 0udicial review and reversal i it is not exercised in accordance with the re/uirements o the law imposing it. %hat is re/uired is a specic action that it particularly imposed by law.
,screton"r* ,ut*
(nster"l ,ut*
:enerally it is not susceptible o delegation.
)usceptible o delegation.
C <+ C'@+((+#. - the duty is made imperative, as when a deadline is xed or its discharge, and discretion is granted only as to the manner o its exercise.
Can be compelled by 0udicial action. &@ust be perormed in any case.*
C'7 <+ C'@+((+#. - the public ofcer has been given the discretion to act or not to act upon a certain matter.
E=ercse o (nster"l ,ut*
)ince the exercise o a ministerial duty does not re/uire the employment o discretion or 0udgment, it is susceptible o delegation. %hat may be done by the delegate may be subdelegated by him to others. o particular /ualication is re/uired or the discharge o this 5ind o duty because the law itsel
-ncludes the authority to decide whether or not to act at all.
o similar option is allowed.
%hat is re/uired is merely general action.
%hat may be re/uired is specic action, that is, the particular duty imposed by law.
1M
+xampleA 0udge who denies a motion or postponement led by a lawyer obviously ill at the time o the hearing.
1L +xamplesA #uty o the tax collector to ac5nowledge payment by issuing an ofcial receipt B duty o the C'@+(+C to give due course to a certicate o candidacy duly accomplished and seasonably led.
Can be a sub0ect o Can be sub0ect to a 0udicial review i 0udicial review i it is there has been not exercised in grave abuse o accordance with the discretion. re/uirements o the law imposing it.
1J 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
rbitrary or capricious discharge o this duty amounts to grave abuse o discretion and may be ccorrected by certiorari.
#ischarge o this duty may be corrected in an appropriate action, and the public ofcer will have no reason to complain.
INHIBITIONS
21 Civil (iberties 9nion vs. +xecutive )ecretary
In$bton – a restraint upon the public ofcer against the doing o certain acts which may legally be done by others. Note4
Crime is excluded. rescribed either by Constitution or by statute. @ay be general or specic.
the
Re"son or n$btons4 7he public ofcer is a steward who must perorm his powers and duties or the benet o the people and not or the enhancement o his own interests In$bton
Note4 Civil (iberties 9nion vs. 7he +xecutive )ecretary21 – n +' allowing appointive ofcials o the +xecutive #epartment to hold over positions in the government is unconstitutional.
2S rt. =--, )ec. 1!
CHAPTER
granted by the :overnment or any subdivision, agency or instrumentality thereo, including :'CCs or their subsidiaries. 7hey shall strictly avoid conOict o interest in the conduct o their ofce 2S.
,s.u"l/c"ton
8estraint upon the 7he lac5 o needed public ofcer eligibility or a against the doing o certain ofce. certain acts which may legally be done by others
FACTS4 'n 2$ Guly 1KLM, Cory issued +' 2L" which allows members o the Cabinet, their undersecretaries and assistant secretaries to hold other government ofces or positions in addition to their primary positions sub0ect to limitations set therein. 7he C(9 excepted this +' averring that such law is unconstitutional. 7he constitutionality o +' 2L" is being challenged by C(9 on the principal submission that it adds exceptions to )ec 1!, rt M other than those provided in the ConstitutionB C(9 avers that by virtue o the phrase Hunless otherwise provided in this Constitution,I the only exceptions against holding any other ofce or employment in :overnment are those provided in the Constitution, namelyA &i* 7he =ice3resident may be appointed a s a @ember o the Cabinet under )ec !, par. &2*, rticle MB and &ii* the )ecretary o Gustice is an ex3ofcio member o the Gudicial and
ISSUE4 %hether or not +' 2L" is constitutional.
Consttuton"l In$btons &1* 7he resident and the =ice3resident shall not receive during their tenure any other emolument rom the :overnment or any other source1K. &2* 7he res., =, the members o the Cabinet, their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other ofce or employment during their tenure. 7hey shall not during said tenure, directly or indirectly practice any other proession, participate in any business, or be nancially interested in any contract with, or in any ranchise, or special privilege
1K rt. =--, )ec. 6
HEL,4 )ec 1!, rt M providesA
H)ec. 1!. 7he resident, =ice3resident, the @embers o the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other ofce or employment during their tenure. 7hey shall not, during said tenure, directly or indirectly practice any other proession, participate in any business, or be nancially interested in any contract with, or in any ranchise, or special privilege granted by the :overnment or any subdivision, agency, or instrumentality thereo, including government3owned or controlled corporations or their subsidiaries. 7hey shall strictly avoid conOict o interest in the conduct o their ofce.I
& 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
&!* o )enator or @ember o the 4ouse o 8epresentatives may hold any other ofce or employment in the :overnment, or any subdivision, agency or, or instrumentality thereo, including :'CCs or their subsidiaries, during his term without oreiting his seat 22.
&"* o )enator or @ember o the 4ouse o 8epresentatives may personally appear as counsel beore any court o 0ustice or beore the +lectoral 7ribunals, or /uasi30udicial and other administrative bodies. either shall he, directly or indirectly, be interested nancially in any contract with, or in any ranchise or special privilege granted by the :overnment, or any subdivision, agency, or instrumentality thereo, including any :'CC, or its subsidiary, during his term o ofce. 4e shall not intervene in any matter beore any ofce o the :overnment or his pecuniary benet or where he may be called upon to act on account o his ofce 2!.
-t is clear that the 1KLM Constitution see5s to prohibit the resident, =ice3resident, members o the Cabinet, their deputies or assistants rom holding during their tenure multiple ofces or employment in the government, except in those cases specied in the Constitution itsel and as above claried with respect to posts held witho ut addi tio nal compensation in an ex3ofcio capacity as provided by law and as re/uired by the primary unctions o their ofce, the citation o Cabinet members &then called @inisters* as examples during the debate and deliberation on the general rule laid down or all appointive ofcials should be considered as mere personal opinions which cannot override the constitution?s maniest intent and the people?s understanding thereo. -n the l ight o the construction given to )ec 1!, rt M in relation to )ec M, par. &2*, rt -J3< o the 1KLM Consti tution, +' 2L" is unconstitutional. 'stensibly restricting the number o 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, +' 2L" actually allows them to hold multiple ofces or employment in direct contravention o the express mandate o )ec 1!, rt M o the 1KLM Constitution prohibiting them rom doing so, unless otherwise provided in the 1KLM Constitution itsel.
&$* o member o a Constitutional Commission shall, during his tenure, hold any other ofce or employment. either shall he engage in the practice o any proession or in the active management or control o any business which, in any way, may be aected by the unctions o his ofce, nor shall he be nancially interested, directly or indirectly, in any contract with, or in any ranchise or privilege granted by the :overnment, any o its subdivisions, agencies, or instrumentalities, including government3owned or controlled corporations or their subsidiaries2". 7his inhibition applies as well to the 'mbudsman and his deputies2$.
&6* o ofcer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign 26.
P"rts"n %oltc"l "ct;t*&G – means active support or or afliation
2! rt. =-, )ec. 1" 2" rt. -J, , )ec.2 2$ rt. J-, )ec. L 26 rt. -J, <, )ec. 2&"*B <
22 rt. =-, )ec. 1!
&1 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
27 +xamplesA
#elivering speeches, canvassing or soliciting o votes or political support or contributions or any political party or candidate
with the cause o a political party or candidate.
including :overnment3owned or controlled corporations or their subsidiaries!S.
Note4 # LSM, )ec. "$
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2L
)antos vs. ;atco – @embers o the Cabinet are exempted rom this prohibition.
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rt. J=-, )ec. $ 2K 3 7his inhibition applies only to active members o the F.
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&M* o elective ofcial shall be eligible or appointment or designation in any capacity to any public ofce or position during his tenure.9nless otherwise allowed by law or by the primary unctions o his position, no appointive ofcial shall hold any other ofce or employment in the :overnment or any subdivision, agency or instrumentality thereo,
&L* o elective or appointive public ofcer or employee shall receive additional, double, or indirect compensation, unless specically authoried by law, nor accept without the consent o the Congress, any present, emolument, ofce, or title o any 5ind rom any oreign government. ensions or gratuities shall not be considered as additional, double, or indirect compensation!1.
&K* o loan, guaranty, or other orm o nancial accommodation or any business purpose may be granted, directly or indirectly, by any government3owned or controlled ban5 or nancial institution to the resident, the =ice3resident, the @embers o the Cabinet, the Congress, the )upreme Court, and the Constitutional Commissions, the 'mbudsman, or to any rm or entity in which they have controlling interest, during their tenure !2.
Consttuton"l ,s.u"l/c"tons
2L Secton ?7 /olitical !ctivit+. o ofcer or employee in the Civil )ervice including members o the rmed Forces, shall engage directly or indirectly in any partisan political activity or ta5e part in any election except to vote nor shall he use his ofcial authority or inOuence to coerce the political activity o any other person or body. othing herein provided shall be understood to prevent any ofcer or employee rom expressing his views on current political problems or issues, or rom mentioning the names o candidates or public ofce whom he supportsA rovided, 7hat public ofcers and employees holding political ofces may ta5e part in political and electoral activities but it shall be unlawul or them to solicit contributions rom their subordinates or sub0ect them to any o the acts involving subordinates prohibited in the +lection Code.
2K 7he armed orces shall be
insulated rom partisan politics. o member o the military shall engage, directly or indirectly, in any partisan political activity, except to vote.
&1* 7he spouse and relatives by consanguinity or afnity within the ourth civil degree o the resident shall not, during his tenure, be appointed as @embers o the Constitutional Commissions, or the 'fce o the 'mbudsman, or as )ecretaries, 9ndersecretaries, chairmen or heads o bureaus or ofces, including government3owned or controlled corporations and their subsidiaries.
!S rt. -J, <, )ec. M !1 rt. -J, <, )ec. L !2 rt. J-, )ec. 16
&& 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
&2* o )enator or @ember o the 4ouse o 8epresentatives may hold any other ofce or employment in the :overnment, or any subdivision, agency, or instrumentality thereo, including government3owned or controlled corporations or their subsidiaries, during his term without oreiting his seat. either shall he be appointed to any ofce which may have been created or the emoluments thereo increased during the term or which he was elected. &!* 7he @embers o the )upreme Court and o other courts established by law shall not be designated to any agency perorming /uasi30udicial or administrative unction. &"* ppointees to the Constitutional Commissions must not have been candidates or any elective positions in the elections immediately preceding their appointment.
Ot$er In$btons &please see boo5*
Ot$er ,s.u"l/c"tons &please see boo5*
Eects o ;ol"ton
)anctions or violation o the inhibition will depend upon the law imposing it or implementing the constitutional restriction.
7he restriction against a public ofcial rom using his public position as a vehicle to promote or advance his private interests extends beyond his tenure on certain matters in which he intervened as a public ofcial.
&$* o candidate who has lost in any election shall, within 1 year ater such election, be appointed to any ofce in the :overnment, or any :'CC or in any o its subsidiaries.
Note4
CHAPTER G
33 FACTS4 -n #ecember 1KLK, a coup attempt occurred prompting the president to create a act nding commission which would be chaired by 4ilario #avide. Conse/uently he has to vacate his chairmanship o the C'@+(+C. ;orac was temporaril y placed as his substitute.
ISSUE4
SALAR6 AN, PER'UISITES
Pur%ose
HEL,4 7he )upreme Court ruled that although all constitutional commissions are essentially executive in nature, they are not under the control o the president in the discharge o their unctions. 7he designation made by the president has dubious 0ustication as it was merely grounded on the /uote Hadministrative expediencyI to present the unctions o the C'@+(+C. side rom such 0ustication, it ound no basis on existing rules on statutes. ;orac?s designation is null and unconstitutional.
%hether or not the designation made by the president violates the constitutional independence o the C'@+(+C.
&8 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
1. to attract competent men to the government service 2. i ade/uate, will lessen the temptation or grat as there would be little need or the public ofcer to augment his income through illegal methods !. to lend the necessary prestige to the ofce
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Source o S"l"r* -
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Constitution or )tatute 7he )C claried that despite its declaration o executive order no. 2L", which allowed cabinet members, undersecretaries or assistant secretaries to hold multiple positions, as unconstitutional, said ofcers were nonetheless allowed to retain the allowances or per diems, emoluments received by them in connection with their multiple positions, because they acted as de acto ofcers. s such, they are entitled to said compensation or actual services. !" :ood aith as a deense 7he )C upheld the o disallowance by the C' o certain benets and privileges to the personnel o a local water district because such were granted to them by said district?s board o directors and by virtue o a C<. 4owever, the @C%# aected personnel who received the given benets and privileges acted in good aith under the honest belie that the C< authoried such payment. Conse/uently, they need not reund them.!$
6.
M.
determined by law and shall not be decreased during their tenure. !M 7he salary o the Chie Gustice and the ssociate Gustices o the )C, and o 0udges o lower courts shall be xed by law. !L 7he salary o the Chairman and Commissioners o the Constitutional Commissions shall be xed by law and shall not be decreased during their tenure. !K 7he salaries o the 'mbudsman and his deputies, which shall be the same as those provided or the chairmen and @embers, respectively o the Constitutional Commissions, shall not be decreased during their term o ofce."S 7he Congress shall provide or the standardiation o compensation o government ofcials and employees, including those in government3owned or controlled corporations with original charters ta5ing into account the nature o the responsibilities pertaining to, and the /ualications re/uired or their positions. o elective or appointive public ofcer or employee shall receive additional, double, or indirect compensation.
S"l"r* "n) ,ue Process -
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where the salary is granted by statute, it may be withdrawn by statute no reduction or abolition o salary can operate retroactively to aect salaries earned or accrued. %here the law limits the grant o certain benets to a specied class o persons, such limitation must be enorced even i it pre0udices certain parties due to a previous mista5e committed by public ofcials in granting such benet.
Consttuton"l Lmt"tons 1. 7he salaries o )enators and members o the 4ouse o 8epresentatives shall be determined by law. !6 2. 7he salaries o the resident and the =ice resident shall be
!M
o increase in said compensation shall ta5e eect until ater the expiration o the term o the term i the incumbent during which such increase was approved.
!" Civil (iberties 9nion vs. +xecutive )ecretary, 1K"
!L )alaries o the Gustices o the )C are sub0ect to
)C8 !1M
withholding tax &itaan vs. Commissioner o -nternal 8evenue.*
!$ banilla vs. C' "6L )C8 LM !6 o increase in compensation until ater the expiration o the ull term.
!K rticle -J,, )ection ! "S rticle -J,)ection 1S
&? 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
R0$t to S"l"r* -
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based on the right to the ofce itsel and accrues rom the date o actual commencement o the discharge o ofcial duties in the case o de 0ure ofcer who has been unlawully prevented rom assuming the ofce, the salary accrues to him rom the date o the deprivation o the ofce the right o the de 0ure ofcer to his salary should be asserted against the de acto ofcer who had collected it and not against the government, except where the government continued paying the salary to the de acto ofcer even ater the ad0udication o title in avor o the ofcer de 0ure where a public ofcer under investigation or prosecution is preventively suspended but subse/uently exonerated, he is entitled to payment o the salaries corresponding to the period o his preventive suspension where an accused died pending his trial or corrupt practices, his heirs were not entitled to payment o bac5 salaries accruing during his preventive suspension because he had not been exonerated "1 #eclaration o validity o a preventive suspension based on the ollowing grounds shall not entitle the ofcial or employee to his reinstatementA %hen the order was issued o by one not authoried by law o %hen it is not based on any o the grounds or causes warranted by law %hen it was issued without o a ormal charge 'r when although lawul in o the sense that it is based on recognied grounds, the duration o the imposed preventive suspension has exceeded the prescribed periods, in which case the payment o bac5 salaries shall correspond to the excess period only the payment o bac5 salaries shall await the nal outcome o the principal case the phrase Hull exonerationI contemplates a nding o not guilty or the oense. &owngrading o the charge to a lesser oense shall not be construed as 2ull e0oneration4.
"1 @alanyaon vs. (ising 1S6 )C8 2!M
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Pro$bte) ,s%oston o S"l"r* -
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ublic policy prohibits the attachment, garnishment or assignment o the salary o a public ofcer. 7he salary chec5 o a government ofcer or employee such as a teacher does not belong to him beore it is physically delivered to him. 9ntil that time, the chec5 belongs to the government. ccordingly, beore there is actual delivery o the chec5, the payee has no power over itB he cannot assign it without the consent o the government."! public ofcer is not legally bound by a pledge made by him while still a candidate that, i elected, he will not collect his salary or will donate
"2 a.
-n case the penalty imposed is ne, the same shall be reundedb. -n case the penalty imposed is demotion, the exonerated employee shall be restored to his ormer position without loss o seniority rights with payment o salary dierentials c. -n case the penalty imposed is transer, he shall immediately be restored to his ormer post unless he decides otherwise. -n case there is demotion in ran5, salary or status, he shall be restored to his ormer ran5, salary or status. d. -n case the penalty imposed is suspension, he shall immediately be reinstated to his ormer post without loss o seniority rights with payment o bac5 salaries. H@andatory leave benets shall not be chared against respondent leave credits.I H7he respondent who is exonerated by nal 0udgment shall be entitled to the leave credits or the period he has been out o the serviceI
"! 7iro vs. 4ontanosas
& 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
it bac5 to the government or give it to some other beneciary
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ermanent and regular appointees and elective ofcers, are covered by compulsory insurance.
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=acation and sic5 leaves shall be cumulative and any part ta5en during the calendar year in which earned shall be carried over to the succeeding years. 7he are also commutable to cash where the unctionary voluntarily resigns, retires, or is separated rom the service through no ault o his own, provided that the commutation shall not exceed !SS days o accumulated leaves, exclusive o )aturdays, )undays and holiday. ny ofcer or employee o the government who retires or voluntarily resigns or is separated rom service through no ault o his own and whose leave benets are not covered by any special law, shall be entitled to the commutation o all the accumulated vacaton andDor sic5 leave to his credit and that all ofcials and employees shall be re/uired to go on vacation leave or a minimum o $ wor5ing days annually. "" +lective ofcials shall be entitled to the same leave privileges as those en0oyed by appointive local ofcials, including the cumulation and commutation thereo."$ ll government ofcers or employees are entitled to commutation o all leave credits without limitation and regardless o the period when the credits were earned provided the claimant was in the service as o Gan K, 1KL6. #etermination o leave benets is within the unctions o the Civil service Commission.
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ofcers and employees o the government, including brgy and other local government employees and ofcials as well as disability, pre3need insurance, unemployment and separation benets under schemes administered by the ,overnment Service Insurance S+stem.
"" +' no. 1SMM &Gan. K, 1KL6*
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computed on the basis o highest salary, emolument and allowances received by the retiring employee (etirement laws art whenrall+ interpreted in avor o the retiree because their intention is to provide or his sustenance and hopeull+ even comort when he no longer has the stamina to continue earning his livelihood. 8etirement is compulsory or any member o the :)-) holding a regular and permanent appointment iA o 4e has attained the age o 6$ years o 8endered at least 1$ years o service to the government 7he last ! years o such o service have been continuous a retiree is entitled to a $ year lump sum payment o the present value o his annuity thereater to be paid monthly as long as he lives - at the time o his retirement, disability or death, he had rendered at least 2S years continuous service, he shall be entitled to 1 month salary or each year o service or the rst 2S yearsB and 1 U month salary or each year o service over 2S up to !S yearsB and 2 months salary or each year o service over !S years based on the highest salary received. 7he retiree, or purposes o complying with the re/uired number o years under a certain retirement law"6, may combine his years o service in the private sector represented by his contributions to the ))) with his government service and contributions to the :)-) to satisy the re/uired years o service under # o. 11"6 and 8 o. L2K1. # 11"6 is available to retirees who have been in the government service ater @ay !1, 1KKM but beore Gune 2", 1KMM. 7he retiree must have rendered at least 1$ years o service, regardless o age. - the retiree is below 6S years old upon retirement, he may avail himsel o retirement benets only upon attaining his 6S th birthday.
"$ )ection L1, (ocal :overnment Code or 8 M16S
"6 ortability (aw, 8 o. M6KK
& 3 ( a w o n u b l i c ' f c e r s 8 e v i e w e r
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8epublic ct 66S provides or a retirement pac5age or government employees who were in the service on or beore @ay !1, 1KMM. 9nder this law, the retiree?s last three years o service prior to retirement must be continuous, except in cases o death, disability, abolition, and phase3out o position due to reorganiation. 8epublic ct o. 1616 applies to retirees who were in the government service on or beore @ay !1, 1KMM. 9nder this scheme, the retiree must have rendered at least 2S years o service regardless o age and employment status, and his last ! years o service prior to retirement must be continuous, except in cases o death, disability, abolition or phase out o position due to reorganiation. 8etirement laws are liberally interpreted in avor o the retireeA 7he retirement pay accruing o to a public ofcer may not be withhel and applied to his indebtedness to the government."M 7he )C re0ected the denial o o claim or retirement benets o the decedent?s wie or the mere reason that she is not the primary beneciary because such proviso in 8 L2L2 which /ualies the term Vprimary beneciaries? is unconstitutional or it violates the due process and e/ual protection "L clause. 7he )C declared the ruled o on limiting to only 1 year the extension o service o an employee who has reached the compulsory retirement o 6$ years, but has less than 1$ years o service under Civil service memorandum Circular o. 2M s. 1KKS.7he Civil )ervice Commission has no power to supply perceived omissions in # 11"6. "K 7he )C declared that Hthe 1 o year limitation on the extension o service o a
"M 7antuico vs. #omingo "L #ycaico vs )))
government employee who has reached the compulsory retirement age o 6$ imposed under @emorandum Circular o. 2M is valid and reasonable. $S
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8etirement pay accruing to a public ofcer may not be withheld and applied to his indebtedness to the government. per diem is a daily allowance given or each day an ofcer or employee o the government as away rom his home base. )uch allowance may be construed also as compensation but generally it is excluded rom the HcompensationI provided under the :overnment )ervice -nsurance (aw.
P$l$e"lt$ -
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covers health care and health insurance program or the benet o government and private employees, and even sel3 employed individuals. ll employees covered by the :)-), including their dependents, are also automatically covered. guarantees health benet pac5ages or inpatient and outpatient care but does not include non3prescription drugs and devices, alcohol abuse or dependency treatment, cosmetic surgery and optometric services.
CHAPTER LIABILIT6 OF PUBLIC OFFICERS IN,S OF ,UTIES •
#uty owing to the public in general 3 7he duty o the resident to maintain peace and orderB o the legislature to regulate smugglingB and o the 0udiciary to try an accused. 3 -t cannot give rise to liability in avor o particular individuals. 7o illustrate, where a person contracts an epidemic disease which the legislature has not seen t to control through the enactment o the necessary laws, he may not sue the body or the pre0udice suered by him as a result o its inaction.
"K Cena vs. Civil )ervice Commission
$S 7oledo vs. C'@+(+C
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#uty owing to particular individuals 3 7he duty o the sheri to enorce a writ o execution, or o a register o deeds to issue a certicate o title, or o a cler5 o court to serve copies o a decision upon the parties. 3 -ts improper perormance or non3perormance will give rise to a cause o action in an individual?s avour or any in0ury sustained by him. 7o illustrate, i the sheri, or no valid reason, delays the service o a writ o execution until such time as the 0udgment debtor shall have succeeded in spiriting away his properties and so prevented the enorcement o the decision, the in0ured the litigant an hold the sheri liable.
LIABILIT6 IN -ENERAL Boo@ I C$"%ter J o t$e A)mnstr"t;e Co)e o 1JG4 Sec7 84 L"blt* o Su%eror Ofcers7 1. public ofcer shall not be civilly liable or acts done in the perormance o his ofcial duties, unless there is a clear showing o bad aith, malice or gross negligence. 2. ny public ofcer who, without 0ust cause, neglects to perorm a duty within a period xed by law or regulation, or within a reasonable period i none is xed, shall be liable or damages to the private party concerned without pre0udice to such other liability as may be prescribed by law. !. head o a department or a superior ofcer shall not be civilly liable or the wrongul acts, omissions o duty, negligence, or miseasance o his subordinates, unless he has actually authoried by written order the specic act or misconduct complained o. Sec7 8J4 L"blt* o Subor)n"te Ofcers7 – o subordinate ofcer or employee shall e civilly liable or acts done by him in good aith in the perormance o his duties. 4owever, he shall be liable or willul or negligent acts done by him which are contrary to law, morals, public policy, and good customs even i he acted under orders or instructions o his superiors. -t has been ruled that accountable ofcers cannot proess ignorance o laws or
administrative circulars or it is re/uired that they must update their 5nowledge with whatever laws or any administrative issuances that may be issued by competent authorities. THE PRESI,ENT 7he resident shall be immune rom suit to guarantee the independence o the public ofcial who otherwise might be unwilling to ma5e the right decisions or ear that he might be called to account thereor in a court o law by disgruntled individuals adversely aected by his act. 7he resident may generally not be held liable or his acts because they are mainly discretionary and owing to the public in general. 7hus, a victim o a crime cannot hold the resident answerable or the latter?s alleged ailure to execute penal laws because this a duty owed by him to the people in general and not to any particular individual. 7he doctrine o separation o powers prevents the courts rom interering with the resident when he decides what are 5nown political /uestions, except when his decision is tainted with grave abuse o discretion amounting to lac5 or excess o 0urisdiction. 7he incumbent presidents are immune rom suit during the period o their incumbency and tenure but not beyond. Cabinet members also cannot be held liable or acts done by them in the exercise o their discretion and within the limits o their authority without the attendance o malice, bad aith or gross negligence. LE-ISLATORS @embers o the legislature discharge duties owing to public in general so they cannot be held liable, individually or collectively, or the perormance or non3 perormance o their duties. 4owever, in @endoa vs. de (eon, the plainti was awarded damages against the individual members o the municipal council who cancelled the ranchise o the plainti without valid cause since the municipal council was exercising proprietary unctions. 9U,-ES Gudges shall not be liable or their acts except only when they act without 0urisdiction as the law will not protect them or exercising powers that do not belong to them. -n the absence o raud, dishonesty, or corruption, the acts o 0udge are not sub0ect to disciplinary action, even though such acts are erroneous. 7o hold a 0udge administratively liable or gross ignorance
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o law, the assailed act must not only be contrary to existing law or 0urisprudence, but must also be motivated by bad aith, raud, dishonesty or corruption on his part. 7he proper recourse o a party aggrieved by the decision o a 0udge is to le a motion or reconsideration or to appeal to or le a petition or certiorari with the proper court and not to le an administrative complaint. 7here is not much 0ustication or holding a 0udge liable in an independent civil action or damages since it would li5ely impair his independence and his prestige, there would be multiplicity o litigation and a strong possibility that competent men will hesitate to 0oin the Gudiciary. 'UASI<9U,ICIAL OFFICERS #ecisions rendered by /uasi3 0udicial ofcers may be reversed by courts o 0ustice upon showing that there is a grave abuse o discretion however, they may not be held liable i they act within the scope o their authority and without bad aith, malice or corruption. -n hilippine 8acing Club v.
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@isconduct, miseasance or maleasance must have a direct relation to and be connected with the perormance o ofcial duties, amounting either to maladministration or willul, intentional neglect and ailure to discharge the duties o ofce to warrant the removal rom ofce o an ofcer. @isconduct – is a transgression o some established or denite rule o action, more particularly, unlawul behaviour or gross negligence by the public ofcer.
LIABILIT6 FOR SUBOR,INATES
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ACTS
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s a general rule, superior ofcers cannot be held liable or the acts o their subordinates. 4owever, a superior ofcer may be held liable iA •
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(INISTERIAL OFFICERS (nster"l "ct – an act perormed in a prescribed manner, in obedience to the law or mandate o legal authority, without regard to, or exercise o, the 0udgment o the individual upon the propriety o the act being done. ministerial ofcer can be liable or oneasance – is the neglect or reusal, without sufcient
excuse, to perorm an act which it was the ofcer?s legal duty to the individual to perorm. @iseasance – or negligence is the ailure to use, in the perormance o a duty owing to the individual, that degree o care, s5ill and diligence which the circumstances o the case reasonably demand. @aleasance – is the doing, either through ignorance, inattention or malice, o that which the ofcer has no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores or abuses his powers.
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%here, being charged with the duty o employing or retaining his subordinates, he negligently or wilully employs or retains unt or improper persons %here, being charged with the duty to see that they are appointed and /ualied in a proper manner, he negligently or wilully ails to re/uire them the due conormity to the prescribed regulations %here he so carelessly or negligently oversees, conducts or carries on the business o his ofce as to urnish the opportunity or the deault nd a ortiori where he has directed, authoried or cooperated in the wrong. ersonal (iability public ofcer may be held liable, either contractual or tortiuous,
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when he committed an act without authority or with malice or in bad aith.
bad aith, he may be held answerable in his individual capacity.
RE(E,IES A-AINST PUBLIC OFFICERS 7hree 5inds o remedies available a public ofcerA Civil Criminal dministrative @ay be invo5ed separately, alternately, simultaneously or successively. rt. 2M o the Civil Code3 any person suering rom moral or material loss because a public servant or employee reuses or neglects, without 0ust cause, to perorm his ofcial duty may le an action or damages and other relie against the latter, without pre0udice to any disciplinary administrative action that may be ta5en. • •
:ood aith – honesty o intention, and reedom rom 5nowledge circumstances which ought to put the holder upon in/uiryB an honest intention to abstain rom ta5ing any unconscientious advantage o another, even through technicalities o law, together with absence o all inormation, notice or benet or belie o acts which render transactions unconscientious. ny contract entered into contrary to the re/uirements o )ections "6 and "M o Chapter L o )ubtitle < o
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-n cases o illegal dismissal made in bad aith or due to personal malice o the superior ofcers, they shall be held personally accountable or the employee?s bac5 salaries. @oreover, i the public ofcer?s act is ultra vires and tainted with
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7he criminal responsibility o the public ofcer or employee is provided in 7itle 2 and M o the 8evised enal Code and other penal statutes such as 8.. o. !S1K or the nti3:rat and Corrupt ractices ct. 7he )olicitor :eneral is not authoried to represent a public ofcer charged with criminal oenses. )andiganbayan has 0urisdiction over oenses committed by public ofcers and employees in relation to their ofce where the penalty prescribed by law is higher than prison coreccional or imprisonment or six years or a ne o 6, SSS.SS. s or administrative action, it may be ta5en against any public ofcer on the usual grounds o oppression, dishonesty, insubordination, immorality, inefciency, negligence, drun5enness, partisan political activity and the li5e. 7hese charges are to be proved beore the proper administrative body li5e the C)C, )C in the case o the members o the 0udiciary or its personnel. 7he deeat o any o the three remedies discussed above will not necessarily preclude resort to the other remedies or aect decisions reached thereunder, as dierent degrees o evidence are re/uired in these several actions.
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roceedings against a public ofcer or employee or misconduct, maleasance cannot 0ust be withdrawn at any time by the complainants or the latter are considered as witnesses only. +xampleA a peace ofcer who searches a private dwelling without a warrant and over the owner?s ob0ections may be held civilly liable or damages, including moral and exemplary damages, under rticle !2 o the Civil Code. t the same time, he may also be prosecuted or violation o domicile as dened and penalied under rticle 12L o the 8evised enal Code. n administrative action may li5ewise be led against him or his arbitrary and oppressive act.
CHAPTER J TER(INATION OF OFFICIAL RELATIONS ublic is not supposed to be heldA 1.
erpetuity and relin/uishment only upon the death o the incumbent. 2. ot inheritable (o)es o termn"ton -. --. ---. -=. =. =-. =--. =---. -J. J.
+xpiration o the term 8esignation bandonment cceptance o an incompatible ofce 8emoval 8ecall -mpeachment Foreiture bolition o ofce #eath
I7 E=%r"ton ot$e term Term3
period during the individual has a right o public ofce 3 #enite period o time prescribed by law which an ofcer may hold an ofce &ueno vs. ngeles* R0$t to $ol) " %ublc ofce 3 (egal claim to hold and en0oy the powers and responsibilities o the ofce. Tenure o ofce 3 ctual period o incumbency o public ofcer Hol)< o;er 3 @ay applied to public ofcer, implies that the ofce has xed
term and holding on term. •
incumbent is the succeeding
Note4 7he term may not be xed number o years but terminable upon the opening o a certain event or contingency.
+xampleA Ingles vs$ 4utuc -ncumbent o primarily condential position holds ofce at the pleasure only o the appoint ting power. %hen such pleasure turns -nto displeasure, the incumbent is not removed rom ofce his term merely expires. -epublic vs$ Imperial - an accidental vacancy occurs in an ofce where the beginning and the end o the term specied, the replacement shall serve only or the unexpired term o the predecessor.
II7 Res0n"ton 3 a ormal method o renunciation coupled with physical act o relin/uishment o the ofce , and sub0ect to approval by superior authorities, that the incumbent should observe. 3%hile not indispensably re/uired, resignation usually made in writing, addressed to the authority empowered to accept it. Estrada vs$ 0esierto 8esignation must have an intent to resign and the intent must be coupled by acts o relin/uishment. -t can be oral. -t can be implied. s long as the resignation is clear, it must give legal eect.7he resignation o the petitioner cannot be doubted. -t was conrmed by his leaving @alacanang 5oson vs$6ario @ ere presentation o resignation does not wor5 a vacancy, and a resignation is not complete until accepted by proper authority. 7iddle vs$ 3illard 7he resignation may be withdrawn as long as it has not yet been accepted, or i it was tendered as a result o mista5e, threat or any vice o consent.
Courtes* res0n"ton Cannot be interpreted as resignation in the legal senseor it is not necessarily a reOection o public ofcial?s intention to surrender his position. III7 Ab"n)onment total surrender, relin/uishment , disclaimer or cession o the public ofce
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and includes the intention as well as the external act bywhich it is carried out.
9uspension - 7emporary divestiture o the right to the ofceduring part o the term and does not have the eect o vacating the ofce. H the express power to appoint carries with the implied power to removeI
T2o essent"l elements o "b"n)onment 1. n intention to abandon 2. n overt act by which the intention is carried to in eect •
+xample o abandonmentA 3 ublic ofcer simply stops reporting or wor5 and reuses to continue discharging his duties. 3 Failure o #ean o a state college to return to wor5 ater the expiration o one3year leave with pay $(amos vs. lano) ot considered abandonmentA - @ayor had abandoned his position as such by accepting a designation as acting director o the %) because he was serving as temporary capacity only. $Cit+ o *anila vs. Subido) 3 %hen an employee accepted another position in the :overnment during the pendency o his appeal rom administrative decision, such acceptance does not consider abandonment. Note4 i the employee was illegally dismissed, he may, by his inaction or by sleeping on his right, in law, be considered as having abandon the ofce to which he is entitled to be reinstated. I57 Acce%t"nce o Incom%"tble Ofce 3-ncompatibility exists when the character or nature o ofcer or relation to each other are such the one person should not hold both because o the antagonism which result in the attempt by one person to aithully and impartially discharge the duties o one, toward the incumbent o the other. 8andueta Case 3 when public ofcial voluntarily accepts an appointment to a newly created ofce, which discharge his unction , he will be considered to have abandon the ofce he was occupying by virtue o his ormer appointment.
Secton 18 Artcle 5I o t$e Consttuton 3 a )enator or 4ouse o 8epresentative shall oreit his sit rom the moment he hold another ofce or employment in the :overnment. 57 Remo;"l 37he orcible and permanent separation o the incumbent rom ofce beore the expiration o his term.
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Note4 ,eneral ruleA ofcers appointed by the resident are also removable by him. 0cept A members o the )upreme Court and o Constitutional Commission. +lected ofcial may not be removed by the resident. #emotion and transers are tantamount or removal. 5I7 Im%e"c$ment 3 method o national in/uest into the conduct o public men. -t is an extraordinary means o removal exercised by the legislature over the selected number o ofcials, or the purpose being to ensure the highest care in their indictment and conviction and the imposition o specialpenalties in case o the ning o guilt, ta5ing into account the degree or nature o the oense committed and the high status o the wrongdoers. Impeachable ofcers 3 resident o the hilippines 3 =ice resident 3 @embers o the supreme court 3 @embers o Constitutional Commissions 3 'mbudsman rounds 1. Culpable violation o the constitution3 wrongul, intentional or wilul disregard or louting o undamental law 2. 7reason3 committed by any person, owing allegiance to the :overnment o the hilippine, levies war against it or giving aid and comort to the enemy. !.
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within 1S days and session days thereater. 2. Committee ater hearing, by ma0ority o all members, will submit report to the house within 6S session days rom receipt. !. =otecast o all members o the house was necessary to afrm impeachment which include the article o impeachment ". )enate shall orthwith proceed.
o impeachment proceeding shall be initiated against the same ofcial morethan once within a period o 1 year. 5udgment < -mpeachment shall not extend urther than removal rom ofce and dis/ualication to hold any ofce under 8ep. o the hil. < Gudgment o Congress was not sub0ect to 0udicial review. < Gudgment o conviction in impeachment proceeding cannot sub0ect to pardoning power o the resident. < Convicted ofcial may prosecuted in an ordinary criminal action
5II7 Foreture
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1$W3 voting population o M$,SSS but not more than !SS,SS, provided that the petitioner not less than 1$,SSS 1SW3 voting population over !SS,SSS, the re/uired petitioner not less than "$,SSS Election o recall 3 -n barangay, city, or municipal ofcials recall shall not be later than !S days upon the completion o procedure 3 -n case o provincial ofcials, "$ days. •
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Important cases: ndreo vs. C'@+(+C rivate respondent served or two consecutive term as mayor and thereater on @ay 1KKL ran again or the third term but lost. 4is opponent aces recall, private respondent in recall election and won. -mmediately thereater the said term private respondent led certicate o candidacy or mayor. Court held that his loss in @ay 1KKL election is considered as interruption in the continuity o his service as mayor. )ocrates vs. C'@+(+C Constitution prohibits an immediate re3election or a ourth term ollowing three consecutive terms. 7he constitutions however, do not prohibit a subse/uent re3election or aourth term as long as the re3election is not immediately ater the end o third consecutive term. (onanida vs. C'@+(+C 3involuntary severance rom ofce or any length o time short o the ull term provided by law amounts to an interruption o continuity o service
I7 Abolton o ofce 7he power to create includes the power to destroyB except where the ofce was created by the Constitution, it my abolish by the same legislature that brought into the exercise. 'campo vs. )cretary o Gustice 7he petitioner was not removed rom ofce or removal implies that the ofce exists ater the ouster. -n this case, nothing remained o the ofce ater its abolition. s well settled rule as that the abolition o an ofce does not amount to an illegal removal o an incumbent is the principle that, in order to be valid, the abolition must be made in good aith.
Remo;"l s b") "t$ 1. %here the signicant increase in the number o positions in the new stafng pattern o the department or agency concerned 2. %here an ofce is abolished and other perorming substantially the same unctions is created.
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