CHAPTER 1
B.
THE CONCEPT OF THE PUBLIC OFFICE PUBLIC OFFICE A. The right, authority and duty B. Created and conferred by law C. D. E.
2.
By which for a given period Either fixed by law or enduring at the pleasure of the creating power An individual is invested with some portion of sovereign functions of the state to be exercised by him for the benefit of the body politic = PUBLIC OFFICER PUBLIC EMPLOYMENT
PUBLIC OFFICE
Does not involve the exercise of some portion of sovereign function Clerical or manual in nature
Involves the exercise of discretion in the performance of the functions of government Officer— Officer—includes any government employee, agent or body having authority to do the act or exercise that function
Where an individual works under a public contract, his relations with the government are usually determined by the stipulations in the agreement and not by the law of public officers
The creation of office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public
3. 4.
5.
Statutory Offices mandated by the Constitution a. MMDA b. NEDA C. Statutory Offices created by the Legislature a. Bureau of Mines c. LGC b. SEC Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public Power conferred and duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority Duties must be performed independently and without control of a superior power other than the law unless they be t hose of an inferior or subordinate office and placed by it under the general control of a superior office or body Must have some permanence and continuity
Characteristics of a Public Office 1. Public Trust [Constitutional Mandate] – it must be discharged by the incumbent not for his own personal aggrandizement but for the benefit of the public for whom it is held by him in trust 2. 3. 4.
Not a hereditable possession – it is relinquished upon expiration of the term attached to it Personal to the incumbent Not a property – in which it cannot be passed on to heirs nor is it within the commerce of men However, when salary has already been earned by the public officer, o it becomes private property entitled to the protection of due process
RPC Application
Public Officer— Officer—any person who, by direct supervision of the law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate office, of any rank or class Hence, and individual hired on a contractual basis as project manager for a o government undertaking is a public officer for purposes of the provisions of RPC
Classification of Public Officer A. B. C. D.
Constitutional or Statutory National or Local Legislative, Executive or Judicial Lucrative or Honorary
E. Discretionary or Ministerial F. Appointive or Elective G. Civil or Military H. De facto or De jure
CHAPTER 2 REQUIREMENTS FOR PUBLIC OFFICE Elements of Public Office 1. Created by law or by authority of law A. Constitutional Offices a. b. 叶清蓮
Office of the President Legislature
c. Supreme Court d. Constitutional Commissions
ELECTIVE OFFICIAL
APPOINTIVE OFFICIAL
choice of public functionaries is made by the enfranchised citizenry through the exercise of their suffrages
choice of public functionaries is made by the particular officer designated by the Constitution or the law
Occupy their office by virtue of the mandate of the electorate
Hold office by virtue of their designation thereto by an appointing authority
Elected for a definite term and
May hold office in a permanent capacity and entitled to security of tenure
May be removed therefrom only upon stringent conditions
May serve at the appointing authority
pleasure
of
Limitations on the Power of the President to Appoint A. Confirmed by the Commission on A ppointments When exercised by the President, the appointing power requires, in certain instances, concurrence by the legislature, Commission on Appointments
the
o
Strictly prohibited from engaging in any partisan political activity or take part in any election except to vote Some elective officers: a. President b. Vice-President c. d. e. f. g.
Senators Members of House Representatives Governors Vice-Governors Mayors
h. i. j.
Vice-Mayors Barangay chairmen Councilmen
Officers whom the President is authorized to appoint: [Constitutional Mandate] a. Heads of the executive departments b. Ambassadors, other public ministers and consuls of c. Officers of the armed forces from the rank of colonel or naval captain d. Those other officers whose appointments are vested in him by the Constitution e. All other officers of the government whose appointments are not provided for by law f. Those whom he may be authorized by law to appoint
o
b.
叶清蓮
The power of appointment is by nature executive and is vested by the Constitution in the President to be exercised by him, however, by constitutional provision, it may also be exercised by the Supreme Court and the Constitutional Commissions over their personnel This power is discretionary, hence, may essentially not be delegated
Chairman and members of the National Labor Relations Commission c. Any officer of the Philippine Coast Guard from the rank of captain or higher Relationship with the appointed officials
B.
C.
The spouse and relatives by consanguinity or affinity within the 4 th civil degree of the President shall not, during his tenure, be appointed as members of the a. Constitutional Commissions d. Secretaries b. Office of the Ombudsman e. Undersecretaries c. Chairmen or heads of bureaus or offices including GOCC and their subsidiaries Time limitation
a-d needs confirmation of the Commission on Appointments Selection for Public Office 1. ELECTION – mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through the selection by them of the functionaries who will represent them therein 2. APPOINTMENT – the act of designation by the appointing officer, body or board, to whom that power has been delegated, of the individual who is to exercise the functions of a given office Designation – mere imposition of new duties on the officer to be o performed by him in a special manner; implies temporariness; does not entail payment of additional benefits or grant
The President also have the power t o make appointments during the recess of Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the CoAp or until the next adjournment of Congress Appointments where the confirmation of Commission on Appointments is not needed: a. Position in the Commission on Human Rights
o
o
Cannot make appointments within 2 months immediately before the next presidential elections and up to the end of his term Except: temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or reassumption of office
Where a prospective vacancy will occur after the appointing authority’s term, he cannot fill it in advance during his term, as this would be an illegal preemption of the powers of his successor Possession of Qualifications
Appointees must possess the required qualifications, failing which, they can be ousted in appropriate judicial proceedings
When the appointee is qualified and all other legal requirements are satisfied, anyone has no choice but to attest to the appointment
D.
Delegation of the Appointing Power
The appointing power can be vested in the Department Head or Secretary and may further be delegated to the Regional Director subject to the approval, revision, modification and reversal of the Department Secretary Although the CSC has no authority to revoke an appointment on the ground that another person is more qualified, its authority being limited to approving or renewing an appointment in the light of the requisites of the law governing the Civil Service, it is within its power to order the reinstatement of government employees who have been unlawfully dismissed Where the CSC disapproves an appointment based on its non-conformity to o applicable provisions of law and on the qualifications of the appointee, the appointee need not be previously heard since the action does not involve the imposition of an administrative disciplinary measure
QUALIFICATION AS AN ENDOWMENT
Property qualifications may not be imposed for the exercise of the right to run for public office
DISQUALIFICATIONS
A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office Hence, there can be no appointment to a non-vacant position o
Kinds of Vacancy 1. Original – an office is created and no one has yet been chosen to fill it Constructive – the incumbent has no legal right to the office, such as de facto officer, and may be legally replaced by another 3. Accidental – the incumbent is separated by any mode other than expiration of term, like resignation, death, removal or abandonment Absolute 4. – the term of the incumbent having expired, no successor has legally qualified to replace him 2.
Lack of disqualifications is itself a qualification Some disqualifications: a. Person convicted in an impeachment proceeding is disqualified from holding any office b. Person convicted of offenses which carry with them the penalty of perpetual or temporary special disqualification c. No member of the Congress shall be appointed to any office which may have been created or the emoluments increased during the term for which he was elected d. Defeated candidate may not be appointed or re-appointed to any office in the Government or any GOCC or in any of its subsidiaries within 1 year from the date of the election e. No person may be appointed to the CSC if he was a candidate in the election immediately preceding his appointment f. Prohibition on holding of any other office or employment, in the Government or any subdivision, agency or instrumentality thereof, including GOCC or their subsidiaries, during their tenure g. Failure to waive one’s status as a permanent perman ent resident or immigrant of a foreign country h.
叶清蓮
d. Literacy e. Residence f. Academic and moral qualifications
Additional qualifications: a. Justice of the Supreme Court – he has been, for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines b. Chairman and members of the CSC – with proven capacity for public administration c. Chairman and members of the COMELEC – holders of a college degree and a majority of them shall be members of the Philippine Bar who have been engaged in the practice of law for at least 10 years d. Chairman and members of CoAudit – certified public accountants with not less than 10 years of auditing experience or members of the Philippine Bar who have been engaged in the practice of law for at least 10 years e. Members of the Commission on Human Rights – majority must be lawyers
VACANCIES
Age Citizenship Suffrage
An appointment in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once, without awaiting the approval of his appointment by the CSC The appointment must be in writing, embodied in what is known as the commission, commission, which is acknowledged as the best evidence of the appointment Acceptance by the appointee is needed to make the appointment complete o The only recognized instance when an individual can be compelled to o accept an appointive office is in connection with the defense of the State
Usual qualifications: a. b. c.
Effectivity of the Appointment
Refers to the qualities or endowments required of the public officer to insure the proper discharge of the duties of his office
Failure to be granted repatriation and taking oath of allegiance
i.
Violation of the term-rule
When a convicted person carrying such (criminal) disqualification is pardoned, to regain his former post or office, he must re-apply and undergo the usual procedure required for a new appointment However, when the pardon is based on the innocence of the individual or if o executive clemency is granted, he no longer needs to apply for reinstatement to his former position He is restored to his office ipso facto upon the issuance of the clemency
Citizenship requirement is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected
If only minimum qualifications are required by the Constitution or if no qualifications are prescribed therein, the legislature is not inhibited from prescribing additional qualifications, i.e. ―shall be provided by law‖ Legislature can prescribe qualifications in a general manner only so as to o allow the widest possible field of choice If the statute prescribes the qualifications in minute detail so as to o practically pinpoint the appointee, the appointment will in effect be made by the legislature in derogation of the prerogative of the executive
Qualifications prescribed, to be valid, must be relevant to the position
Limitations on the power of the legislature t o prescribe qualifications: 1. May not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution 2. May prescribe only general qualifications 3. Qualifications must be relevant to the office for which they are prescribed
RA 9225
Who are covered? Natural born citizens of the Philippines who have been naturalized as o citizens of a foreign country How re-acquisition of Philippine citizenship is made? o
By taking the prescribed oath of allegiance to the Republic of the Philippines
Limitations on their acquired civil and political rights: Their right to vote or be elected or appointed to any public office in the o Philippines cannot be exercised by, or extended to, those who are a. Candidates for or are occupying any public office in the country of which they are naturalized citizens, and/or b. In active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens
Duration of Qualifications
Possessed, at the earliest, on the date indicated by the Constitution or the law Must be possessed on the day of their election or appointment
o
If no indication, must be possessed at the time of assumption of office The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment Qualifications are continuing requirements The moment any of such qualifications is lost during tenure, the right to office is automatically forfeited
o
QUALIFICATIONS AS AN ACT
Who may Prescribe Qualifications A. Constitution
B. Statute
Qualifications for public office may not be changed by private agreement Where Constitution itself creates or provides for the creation of an office but prescribes no qualifications, the legislature may repair the omission and supply the qualification itself, i.e., i.e., officers of Nat’l Economic and Dev’t Authority
Scope of Qualifications
When laid down by the Constitution, the qualifications enumerated are in an exclusive manner
叶清蓮
An act by which the public functionaries formally commences the discharge of his official duties o
This is effected by the oath, or – all public officers and employees of the a. Taking of an oath, government including members of the armed forces b. Filing of a bond – accountable officers Accountable officers – those whose duties permit or require the possession or custody of government funds or properties and who shall be accountable therefor and for the safekeeping thereof in accordance with law c. Both, Both, in the case of certain officers
Q: Is the taking of an oath of office anew by a duly proclaimed but subsequently unseated local elective official a condition sine qua non to the validity of his re-assumption in office where the COMELEC had previously ordered the relinquishment of the contested position by his opponent? A: The re-taking of oath of office is a mere formality considering that his previous oath operated as a full investiture on him of the rights of the office; hence, it is not a condition sine qua non to the validity of re-assumption in office
Where what is declared unconstitutional is only the manner of filling the office and not the office itself, the holder thereof will be a de facto officer There must be color of right or general acquiescence by the public Derived from o a. Reputation b. Acquiescence o
2.
FAILURE TO QUALIFY
Requisites of De Facto Officership 1. There must be a de jure office There can be no de facto office, only a de facto officer occupying a de o jure office When what is defective is the office itself, the possessor thereof is not o a de facto officer
Statutes require qualifications as an act are generally construed to be directory merely and not mandatory Mere delay in qualifying does not result in automatic forfeiture of the o office If delay can be validly explained, as in the case of illness or unavoidable o absence of the claimant to the office, qualification may be permitted even after the time set by law for the commencement of the term
o
When the law requires qualifications, as endowment, within a specified time It adds that failure to qualify during that period will result in automatic loss of the right to office
o
o
o
CHAPTER 3 OFFICERS
DE FACTO DE FACTO
o
OFFICER
One who discharge their duties under color of a known and valid appointment but have failed to conform to some condition, precedent or requirement, as to take an oath, file a bond, or the like De Facto Officer
De Jure Officer
One who actually possesses the office although he has an imperfect or only colorable title thereto
One who has lawful title to the office but has not been able to take possession or it or has been ousted therefrom
Has color of title
Has title
3.
叶清蓮
All official acts of a de facto judge are valid for all legal purposes and for all kinds of cases There must be actual physical possession of the office in good faith
o
o
Has neither title nor color of title May grow into an officer de facto if his assumption of office is acquiesced in
A candidate proclaimed in an election irregularly held will be a de facto officer before the nullification of the election as such election gives him a color of title t o the office When a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer When qualified for an office, he was appointed by one who did not have the power of appointment, such will provide him with color of title and confer upon him a de facto standing As long as defect in the appointment or election is unknown to the public, the occupant of the office will have color of title and can be considered a de facto officer
o
Usurper or Intruder
Acts are entirely void May ripen into an officer de jure as when he repairs his omission and takes the required oath or posts the needed bond
o
c. Invalid appointment or election i.e. a judge who is automatically retired upon reaching the age of 70 but continues discharging his duties in the court will be a de facto officer if the public continues to acquiesce in his acts because of his reputation
o
o
It is obvious that without this requisite, the discharge of the powers and duties of the office will not be possible Any person who profess to act officially but does not occupy a public office cannot be considered an officer de facto and his acts are absolutely void An abandonment and a vacation of office is inconsistent and repugnant to the idea of actually continuing to perform t he duties of such office Decisions promulgated after the judge who penned the same had been appointed to and qualified in another office (permanently ceased to be a judge) are null and void
Effects of Acts of De Facto Officers
facto, so far as the rights of third persons Validity – Lawful acts of an officer de facto, are concerned, are, if done within the scope and apparent authority of the office, considered as valid and binding
Salary – De facto officer cannot benefit from his own status because public policy demands that unlawful assumption of public office be discouraged GR: a de facto officer cannot claim a salary and other compensation for o services rendered by him as such Exception: may retain salaries collected by a de facto officer for services rendered in good faith where there is no de jure officer claiming the office If he has already collected such salary, he may in fact be required to pay it o back to the de jure officer upon recognition of the latter’s title
Reimbursements – A de facto public officer cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer
Liabilities – De facto officer is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office Estoppel – having assumed office, he is estopped from denying that he is legally chargeable with its due performance
Challenge to a De Facto Officer
Incumbency of the de facto officer may not be challenged collaterally or in an action to which he is not a party but in a direct proceeding where title to the office is the principal issue Authorized proceeding is quo warranto Who may challenge? a. Solicitor General in the name of the Republic b. Any person claiming title to the office
叶清蓮
CHAPTER 4 THE CIVIL SERVICE CIVIL SERVICE COMMISSION
SCOPE
One which administers the Civil Service The government’s central personnel agency designated to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants
Composition 1. Chairman 2. 2 Commissioners
Appointed by the President with the c onsent of the CoAppointments
Term of 7 years without reappointment
May be removed only by impeachment
It embraces all branches, subdivisions, instrumentalities and agencies of Government, including GOCC with original charters GOCC with original charters – those which are created by special law or given legislative charters, and not those established on the basis of the provisions of the Corporation Code GOCCs which are organized as subsidiaries of GOCC under the general o corporation law are not included in the civil service Exception: a. NAWASA b. Nat’l Nat’l Irrigation Administration c. Employees of Duty Free Philippines d. Employees of Philippine Tourism Authority e. Employees of PAGCOR The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees Bureau of Labor Relations has original and exclusive authority to act on all inter-union and intra-union conflicts
Qualifications 1. Natural-born citizens of the Philippines 2. 3. 4.
At least 35 years of age, at the time of their appointment With proven capacity for public administration Must not have been candidates for any elective position in the elections immediately preceding their appointment
OBJECTIVES a. Establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service b. Strengthen the merit and rewards system c. d. e. f.
Integrate all human resources development programs for all levels and ranks Institutionalize a management climate conducive to public accountability Insure and promote the general mandate requiring appointments only according to merit and fitness Provide a progressive system of public administration to insure the maintenance of an honest and efficient, progressive and courteous civil service in the Philippines
These may also be exercised by its Regional Offices
叶清蓮
Classification of Positions in the Civil Service 1. Career Service a. Entrance-based on merit and fitness to be determined as far as practicable by 1. Competitive examinations, or 2. Based on highly technical qualifications b. Opportunity for advancement to higher career positions c. Security of tenure
The Career Service includes: A. Open career positions for appointment to which prior qualification in an appropriate examination is required B. Closed career positions which are scientific or highly technical in nature C.
Positions in the Career Executive Service (CES) 1. Undersecretary 5. Regional Director 2. Assistance Secretary 6. Assistance Regional Director 3. Bureau Director 7. Chief of Department Service 4. Assistant Bureau Director All of whom are appointed by the President o
The security of tenure of employees under this, except first and second level employees, pertains only to rank and not to the office or to the position to which they may be appointed D. Career officers other than those in the CES, who are appointed by the President, such as Foreign Service Officers in the DFA E. Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system F. Personnel of GOCC who do not fall under the non-career service G. Permanent laborers, whether skilled, semi-skilled, or unskilled o
2.
By special law, the board and bar examinations are considered civil service examinations for purposes of appointment to positions involving knowledge of the respective professions Appropriate civil service eligibility is granted to summa cum laude, magna cum laud and laud and cum laude graduates of 4-year degree course under certain conditions
APPOINTMENTS
GR: shall be made only according to merit and fitness to be determined, as far as practicable, by competitive examination Exceptions: to positions which are o
Non-Career Service a. Entrance on bases other than those of usual tests of merit and fitness utilized for the career service b. Tenure which is limited to a 1. Period specified by law 2. Co-terminous with that of the appointing authority or subject to his pleasure 3.
a.
b.
Duration of a particular project for which the purpose of employment was made
Non-Career Service Includes: A. Elective officials and their personal or confidential staff B.
Department heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staffs
C.
Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff Contractual personnel or those employment in the government is in accordance with a special contract to undertake a specific work or job
D.
Requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed 1 year, under his own responsibility with minimum of direction and supervision from the hiring agency Emergency and seasonal personnel
o
E.
c.
Policy-determining – one charged with the laying down of principal or fundamental guidelines or rules Head of department o Primarily confidential – one which denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of public trust or confidential matters of state or one declared to be so by the President upon the recommendation of the CSC It is the nature of the position, as may be ascertained by the o court in case of conflict, which finally determines whether a position is primarily confidential, policy determining or highly technical The tenure of the officials holding this kind of position ends upon o loss of confidence Highly technical – requires the appointee to possess t echnical skills or training in the supreme or superior degree
Kinds of Appointments 1. Permanent – issued to a person who meets all the requirements for the position, including the appropriate eligibility prescribed Person issued an original permanent appointment shall serve a o probationary period of 6 months during which he will undergo a thorough character investigation and may be dropped from the service for unsatisfactory conduct or want of capacity This action is appealable to the Commisssion
ELIGIBILITY
Appointees must possess the requisite eligibility to be established at appropriate examinations given
Persons passing such examination shall be included in a list of eligibles from which appointments must be made
叶清蓮
2.
Temporary – issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility Such temporary appointment shall not exceed 12 months, but the o appointee may be replaced sooner if a qualified civil service eligible becomes available
o
o
o
o
o
Temporary appointees may be terminated at any time even without cause Person’s acceptance of a temporary appointment necessarily results in the termination of official relations with his former permanent position, to which he may not demand reinstatement if his temporary appointment is not renewed When a temporary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent
PROMOTION a. Movement from one position to another b. with increase in duties and responsibilities c. as authorized by law, and d. usually accompanied by an increase in pay
Indispensable element: there must be an advancement from one position to another or an upward vertical movement of the employee’s rank or position
Promotion is generally made according to a a. merit promotion plan, and b. performance evaluation system
Temporary employees of the government shall be given such protection as may be provided by law RA 6850 provides that ―all government employees holding career civil service positions appointed under provisional or temporary status who have rendered at least a total of 7 years of efficient service may be granted the civil service eligibility that will qualify them for permanent appointment to their positions
Next-in-rank Rule
Person next in rank shall be given preference in promotion when the position immediately above his is vacated
When person next-in-rank is not appointed, the appointing authority is required to specify the special reason/s for not appointing the officer next-in-rank Reason: because the person next-in-rank is actually by-passed o
This rule does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy
A qualified next-in-rank employee who is not satisfied with the reasons given for his by-passing may appeal initially to the department head Decisions of the CSC are appealable to the SC on certiorari o
Qualified Next-in-Rank = an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment appointment as previously determined by the appointing authority and approved by the CSC
An employee cannot be promoted, even if merely as a result of a transfer, without his consent There is no law that compels an employee to accept a promotion for the o simple reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse
Temporary v. Probationary Employees Temporary Employee
Probationary Employee
Without definite tenure and is dependent upon the pleasure of the appointing power
Entitled to constitutional protection of security of tenure
May not be revoked at will if said appointment is for a fixed period
Employment may be terminated only for just cause or when they fail to qualify as regular employee in accordance with reasonable standards made known to them by their employer at the time of engagement, and after due process
Regular v. Ad interim Appointment Regular Appointment
Ad interim Appointment
Made during the legislative session
Made during the recess
Made only after the nomination is confirmed by CoAppointments
Made before CoAppointments
Once confirmed, continues until the end of the term of the appointee
Cease to be valid if disapproved by the CoAppointments or upon the next adjournment of Congress
confirmation
by
Intended to prevent a hiatus in the discharge of official duties
叶清蓮
NEPOTISM
Favoritism toward relatives by the appointing authority is prohibited The prohibition covers all appointments and event designations The relations covered extend to the 3rd degree of consanguinity or affinity o o
The following are exempt from the nepotism rule: a. Persons employed in a confidential capacity b. Teachers
c. Physicians d. Members of AFP
o
For these instances, a full report of the appointment is required to be made to the CSC
Other prohibitions: Spouse and relatives by consanguinity or affinity within 4 th civil degree of o the President shall not be appointed during his tenure
Purpose: to ensure that all appointments and other personnel actions in the civil service should be based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power
o
Charges of nepotism must be duly proved
OTHER PERSONNEL ACTIONS A non-eligible shall not be appointed to any position in the civil service whenever there is a civil service eligible actually available for and ready to accept the appointment
All personnel actions shall be in accordance with the rules and regulations of the CSC: a. Certification e. Reemployment i. Separation b. c. d.
Promotion Transfer Reinstatement
f. Detail g. Reassignment h. Demotion
Exception: an officer is appointed ―at large‖, in which case, he may be assigned or transferred to any station, as he is not entitled to stay permanently at any specific station
The employee concerned shall be informed of the reasons for the transfer o
A promotional appointment that violates the prohibition against nepotism is null and void A void appointment cannot give rise to security of tenure on the part of o the holder of such appointment
GR: Illegal transfer is tantamount to a removal without cause
If employee believes that there is no justification, he may appeal his case to the CSC
The rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed, not merely assigned, to a particular station The Constitutional guarantee of security of tenure is not a guarantee of o perpetual employment It only means that an employee cannot be dismissed or transferred from o the service for causes other than those provided by law and only after due process has been accorded Where the lawmaking authority itself furnishes the ground for the transfer, no such capriciousness can be raised Validity of transfer of a government officer during the election period, in light of the prohibition, is based on the ability to meet the exigencies of public service Not considered as Transfer: Any movement from non-career service to the career service
o
Kinds of Transfer: a. Department or agency another department or agency b. One organizational unit another organizational unit in the same department or agency Transfer connotes an absolute relinquishment of an office in exchange for another office
Certification
Appointment through certification is issued to a person who has been a. selected from a list of qualified persons b. certified by the CSC from an appropriate register of eligibles, and c. who meets all other requirements of t he positions
Reinstatement a. Any person who has been permanently appointed to a position in the career service, and b. who has, through no delinquency or misconduct, been separated therefrom c.
Transfer a. A movement from one position to another b. which is of equivalent rank, level or salary c.
o
o
may be reinstated to a position in the same level for which he is qualified
The issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights
without break in service involving the issuance of an appointment
Consent: when a transfer results in promotion or demotion, advancement or reduction or transfer that aims to lure the employee away from his permanent position, this cannot be made without the employee’s consent Unconsented transfer amounts to removal o
叶清蓮
Only condition being that the appointee should possess the qualifications required by law The exercise of the discretionary power cannot be controlled as long as it is exercised properly by the appointing authority
An officer cannot ask for reinstatement to a position to which he was merely designated
A civil servant who had been separated from the service by reason of her conviction of a crime but was later pardoned does not, by reason of said pardon, become automatically entitled to reinstatement To regain her former post, she must re-apply and undergo the usual o procedure required for a new appointment If the pardon is based on the innocence of the individual, or if executive clemency is granted, he no longer needs to apply for reinstatement o
Demotion a. Movement from one position to another b. involving the issuance of an appointment c. with diminution in duties, responsibilities, status or rank d. which may or may not involve reduction in salary
This tantamount to removal if no cause is shown for it
He is already restored to his office ipso facto upon the issuance of such PERSONNEL DEVELOPMENT
Reemployment a. Names of persons b. who have been appointed permanently to positions in the career service c. who have been separated as a result of reduction in force and/or reorganization d. shall be entered in a list from which selection for reemployment shall be made
Detail a. b. c. d.
Movement of an employee from one agency to another without the issuance of an appointment shall be allowed only for a limited period [temporary in nature]
If the employee believes that there is no justification for the detail, he may appeal his case to the CSC Pending appeal, the decision to detail the employee shall be executory o unless otherwise ordered by the CSC The power of control and supervision includes the power to det ail This is to correct or prevent the person from committing any abuse in the performance of his duties
Reassignment a. An employee may be reassigned b. from one or organizational unit to another in t he same agency c. provided that such reassignment shall not involve a reduction in rank, status or salary
Tantamount to a floating assignment that results in a diminution of rank
Reassignment with no definite period is a violation of security of tenure
叶清蓮
Each department or agency is required to prepare a career and personnel development plan which contains provisions for a. Merit promotion b. Performance evaluation c. In-service training
d. e. f.
Cases of Detail: [employees occupying positions that are] a. Professional b. Technical c. Scientific
o
1. Foreign and local scholarships 2. Training grants Job rotation Suggestions and awards system Other plans for employees’ health, welfare, counseling, recreation and similar services
Employees shall have the right to present their complaints or grievances to management and have them adjudicated as expeditiously as possible Resolved at the lowest possible level o Appeal decisions to higher authorities o
Each department or agency shall promulgate rules and regulations governing expeditious, fair and equitable adjustment of employees’ compla ints or grievances
DISCIPLINE
All kinds of employees in the CSC enjoying security of tenure may not be suspended or dismissed except for cause as provided by law
They may be disciplined a. if they violate their public trust b. fail to serve with utmost responsibility, integrity, loyalty and efficiency and act with patriotism and justice and lead modest lives
Commission is the sole arbiter for all controversies relating to the civil service
Grounds for Discipline: a. Dishonesty – intentionally making a false statement in any material fact or practicing or attempting to practice any deception or fraud in securing his examination, registration, appointment or registration
b.
Misconduct in office – misconduct which affects performance of his duties as an officer and not such only as affects his character as a private individual That which is connected with the performance of official duties o amounting either to maladministration or willful internal neglect and failure to discharge the duties of the office o
c.
To constitute Gross Misconduct, the acts should be corrupt or inspired by an intention to violate the law or constitute a flagrant disregard of well-known legal rules
d.
Inefficiency and incompetence in the performance of official duties Manifest lack of adequate ability and fitness for the satisfactory performance of official duties by reason of the officer’s vices or vicious habits Inefficiency or incompetence can only be determined after the o passage of time, hence, the probationary period of 6 months Oppression
e. f.
Neglect of duty Disgraceful and immoral conduct
g. h. i. j. k. l. m. n.
Being notoriously undesirable Discourtesy in the course of official duties Conviction of a crime involving moral turpitude Falsification of official documents Refusal to perform official duty or render overtime service Physical or mental incapacity due t o immoral or vicious habits Willful refusal to pay just debts Willful failure to pay taxes due to the government
o. p. q.
Falsification of official documents Habitual tardiness Gambling
o
Conduct Prejudicial to the Best Interest of the Service a. Misappropriation Misappropriation of public funds b. Abandonment of office c. Failure to report back to work without prior notice d. Failure to safekeep public records and property e. f.
Gross Neglect of Duty
Simple Neglect of Duty
Flagrant and culpable refusal or unwillingness of a person to perform a duty
A disregard of a duty resulting from carelessness or indifference, as in mere delay in the performance of one’s functions
A penalty of dismissal is imposed carrying with it the cancellation of eligibility, forfeiture of leave credits [not anymore forfeited by virtue of Fojas case] and retirement benefits and the disqualification for reemployment in the government service
Less grave offense and imposes the penalty of suspension of 1 month and 1 day to 6 months – 1st offense or a fine of P5 000
Negligence characterized by the want Mere failure to file an application for a of even slight care, acting or omitting leave of absence in advance does not ipso to act in a situation where there is a facto confers administrative liability duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences
Jurisdiction Secretaries and Heads of Agencies and Instrumentalities, provinces, cities and municipalities
Investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction
Department
Initial appeal of decision rendered by a bureau or office head
Commission
Final appeal of all administrative disciplinary cases involving the imposition of a penalty of suspension for more than 30 days or fine in an amount exceeding 30 days’ salary, demotion in rank or salary or transfer, removal or dismissal from office
*original jurisdiction on all controversies relating civil service, or appellate jurisdiciton
Making false entries in public documents Falsification of court orders
叶清蓮
Decisions are final in case the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days’ salary
Pending appeal, the decision shall be executory except when the penalty is removal, in which case, it shall be executory only after confirmation by the Secretary concerned
Complaints: Complaints: these may be filed directly with the CSC by a private citizen against a government official or employee CSC may hear and decide the case or it may deputize any department or o agency or official or group of officials to conduct the investigation
o
Results of the investigation shall be submitted to the CSC with the recommendation as to the penalty to be imposed or other action to be taken
o
Procedure in Administrative Cases against Non-Presidential Appointees
Who may commence an administrative proceeding against a subordinate? a. Secretary d. Regional Directors b. c.
Head of office of equivalent rank Head of local government
e. Chiefs of Agencies
How commenced? o
Powers: Investigate such administrative complaints o Confine itself to cases of graft and corruption involving one or a o combination of the following criteria:
Upon sworn, written complaint of any other person
a. b. c. d.
PD 1409
Provides that the Merit Systems Board shall take cognizance of appeals from parties aggrieved by decisions of appointing offices involving action However, the Commission would still be the final arbiter on any matter o concerning personnel action in the government as it exercises final and exclusive appellate jurisdiction over all cases decided by the Merit Systems Board and the Civil Service Regional Offices including contested appointments or promotions [CSC Resolution 89-779] And the decisions of the Commission shall be subject to review only by the o courts on certiorari by virtue of a petition for review filed within 15 days from the notice of the resolution Protest cases: a. Appointment made in favor of another next-in-rank employee who is not qualified b. Appointment made in favor of one who is not next-in-rank c. Appointment made in favor of one who is appointed by transfer and not next-in-rank or by reinstatement or by original appointment If the employee making the protest is not satisfied with the written o special reason given by the appointing authority for such appointment Head of Department or Agency Merit Systems Board Commission Courts
Jurisdiction: Over all administrative complaints involving graft and corruption filed in o any form or manner against presidential appointees, including those in
叶清蓮
Jurisdiction over the presidents, directors, or trustees, or managers of GOCCs [without distinction of whether it is with original charters or incorporated under the Corporation Code], state universities or educational institutions or foundations, whenever charges of graft and corruption are involved
RA 4670 [Magna Carta for Public School Teachers]
Covers and governs administrative proceedings involving public school teachers to the exclusion of the Commission, which does not have original jurisdiction over said proceedings and the Ombudsman, with respect to his disciplinary authority
Procedure Complaint: a. In writing b.
EO 151 [Presidential Commission Against Graft and Corruption (PCGG)] Composition: Chairman and 2 Commissioners o
Presidential appointees with rank equivalent to or higher than an Assistant Regional Director Amount involved is at least P10M Those which threaten grievous harm or injury to t he national interest Those which may be assigned to it by the President
Sandiganbayan
GOCC, and even non-presidential appointees who may have acted in conspiracy or who may have been involved thereto It may refer to the Office of the Ombudsman any case calling for the investigation and/or prosecution of the party or parties concerned for violation of anti-graft and corruption laws Refusal without just cause of any officer to comply with an order by the Ombudsman to penalize or any other action to an erring officer or employee is a ground for disciplinary action
Sworn to by the complainant Except in cases initiated by the proper disciplining authority
o
No anonymous complaint shall be entertained Unless there is obvious truth or merit to the allegations or supported by documentary or direct evidence, in which case, the person complained of may be required to comment
o
Administrative complaint may be filed at any time Upon receipt, disciplining authority shall require the respondent to submit a Counter-Affidavit/Comment under oath within 3 days from receipt Thereafter, PI shall be held for purposes of determining whether or not a o prima facie case exists to warrant the issuance of a formal charge
o
o
This includes an ex parte examination of records and documents submitted by the parties and an opportunity for the parties to submit affidavits and counter-affidavits This shall commence within 5 days from receipt of the complaint by the disciplining authority and terminated within 30 days thereafter
o
Investigation report is required to be submitted within 5 days from such termination If prima prima facie case exists, a formal charge shall be issued
o
o
If it does not exist, the complaint shall be dismissed
Such decision may be elevated before the Commission Proper through a petition for review within 15 days from receipt of said decision dismissing the complaint Failure of the respondent to submit counter-affidavit shall be considered as a waiver of said right
o
Conference may thereafter be held by the investigator
o
Formal charge: [contains] a. Specification of the charge/s b. Brief statement of material or relevant facts c. Accompanied by certified true copies of the documentary evidence, if any
f.
o
Sworn statements covering the testimony of witnesses Directive to answer in writing under oath in not less than 72 hours from receipt thereof An advice for the respondent to indicate in his answer whether or not he elects a formal investigation If he does not elect a formal investigation, he will still be given one if from the allegations of the parties in their submissions, the merits of the case cannot be decided judiciously without conducting such investigation A notice that respondent is entitled t o be assisted by counsel of his choice
o
o
o
g.
Preventive suspension Ordered by the disciplining authority upon motion or motu propio Such order need not be preceded by prior notice and hearing since it is not a penalty but only a preliminary step in an administrative investigation Takes effect upon service of the formal charge or immediately t hereafter o o
叶清蓮
If there are several administrative cases filed against him, he cannot be preventively suspended for more than 90 days within a single year When the case is not finally decided within the period of 90 days after the date of his preventive suspension, unless otherwise provided by special law, he shall be automatically reinstated in the service When the delay is due to the fault, negligence or petition of the respondent or when there are restraining orders or preliminary injunctions obtained by the respondent, such period of delay should not be included in the counting of the 90 days When the respondent be on maternity/paternity leave, said preventive suspension shall be deferred or interrupted until such time that said leave shall have been fully enjoyed The period of preventive suspension cannot be deducted to whatever penalty may be imposed
Clarificatory and other relevant questions may be propounded
Withdrawal of the complaint does not result in its outright dismissal or discharge of the person complained of
d. e.
Preventive suspension pending investigation – not a penalty but only a preventive measure b. Preventive suspension pending appeal – actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed Hence, he should be reinstated with full pay for the period of suspension If his conviction is affirmed, the period of suspension becomes part of the final penalty of suspension or dismissal The preventive suspension of public officers with pending criminal cases cannot exceed 90 days Any single preventive suspension of a local elective official shall not extend beyond 60 days a.
If the charge involves a. Dishonesty d. Grave misconduct b. Oppression e. Neglect in the performance of duty c. There are reasons to believe that the respondent is guilty of charges which warrant his removal 2 kinds of preventive suspension:
In lieu of the preventive suspension, the respondent may be reassigned to other units of the agency during the formal hearings Failure to submit an answer within 5 days from the receipt of the formal charge = waiver to do so and formal investigation may commence Formal investigation: Held not earlier than 5 days nor later than 10 days from receipt of the respondent’s answer Finished within 30 days from the issuance of the formal charge or the o receipt of the answer unless it is extended by the disciplining authority in meritorious cases o
Pre-hearing conference may be conducted and thereafter, continuous hearings shall be held on the dates agreed upon during such In case no pre-hearing conference, parties shall be given notice of at least o 5 days before the first scheduled hearing
Only 3 written motions or requests for postponements shall be allowed A 4th postponement may be granted subject to the discretion of the o disciplining authority
Within 15 days from conclusion of the formal investigation, a report containing a. Narration of material facts established therein b. Findings and the evidence supporting said findings c. Recommendations shall be submitted by the Hearing Office with the disciplining authority, o who shall have 30 days from his receipt of said report to render decision
Decisions rendered providing for a penalty of suspension not more than 30 days or a fine in an amount not exceeding ex ceeding 30 days’ salary shall be final and executory If the penalty is more than those mentioned, it shall be final and executory o only after the lapse of the 15-day period for the filing of an MR or appeal If the charges are not proved by a preponderance of evidence, the case o shall be dismissed and the respondent reinstated with back salaries if preventively suspended In determination of the penalties to be imposed, the extenuating, o mitigating, aggravating or alternative circumstances may be considered When the respondent dies pending resolution of the criminal case, the o heirs are not entitled to back wages because the death does not tantamount to acquittal but merely a dismissal Appeal: Appeal shall be perfected within 15 days from receipt of the decision upon o the filing of a notice of appeal This is jurisdictional o
o
o
叶清蓮
Only 1 MR shall be allowed and only on the following grounds a. New evidence has been discovered which materially affects the decision b. Decision is not supported by the evidence on record c. Errors of law or irregularities have been committed prejudicial to the interest of the movant Filing of an MR shall stay the execution of the decision sought to be reconsidered CSC is not bound by technical rules of procedure in administrative proceedings
Administrative cases against Presidential Appointees
The procedure above does not include administrative cases filed against presidential appointees They belong to the non-competitive or unclassified service of the government As such, they can only be investigated and removed from office after due hearing by the President under the principle that the power to remove is inherent in the power to appoint
RIGHT TO SELF-ORGANIZATION
Government employees, including those in GOCC with original charters [by virtue of EO 180] and those without original charters [by virtue of the Labor Code] can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interests Who cannot join? a. b. c.
Members of the AFP d. Policemen f. Jail guards Police officers e. Firemen High level employees whose functions are not normally considered as policy-making or managerial or whose duties are of a highly confidential nature [cannot join the organization of rank-and-file employees]
Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees’ organizations
Registration: Government employees’ organizations shall register with the CSC and DOLE which shall jointly issue the pertinent certificates of registration which, thereafter, with the support of the majority of the employees in their respective units, shall be entitled to be designated as the sole and exclusive representatives of employees
Given the right to organize, they may, however, not stage strikes, walkouts or other temporary work stoppages
CHAPTER 5 AUTHORITY OF THE PUBLIC OFFICER WHERE EXERCISED
GR: public officers may exercise his powers only within the territorial limits of his authority and that any act performed outside that area will be null and void o
Exceptions: a. President – he retains as such even if he is outside the country and may exercise his powers anywhere, as where he vetoes a bill while abroad b. Diplomats – usually discharges their functions in the receiving state
c. d.
Delegates to international conferences Warrants of arrest – may be served anywhere in the Philippines even outside the regions to which the judge, who issued the same, have been appointed
WHEN EXERCISED
Only during his term of office o
GR: any acts performed after such term will be considered invalid Exception: acts of a de facto officer such as a hold-over officer
completion of a particular task, or attainment of a specified age
HOW EXERCISED Authority of the public officer should be strictly construed Any doubt shall be resolved in favor of the public and against the exercise of the authority claimed
o
The principle of estoppel does not operate against the government for the acts of its agents and that it is never estopped by any mistake or error on their part
KINDS OF DUTIES 1. Discretionary – if the officer is allowed to determine how and when the duty is to be performed and to decided this matter one way or the other and be right either way However, this should be exercised within the parameters of law and in o case he abuses his discretion, the SC has the power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
The fact that a particular power has not been expressly conferred does not necessarily mean it is not possessed by the officer claiming it Such power may still be sustained under the doctrine of necessary o implication pursuant to which all powers necessary to the exercise of the power expressly granted are deemed impliedly granted as well The claim of power may also be justified on the ground that the power is inherent, inherent, i.e., i.e., police power The actual exercise of such power must be made with due regard for o private rights An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof These powers should not be extended by implication beyond what may be o necessary for their just and reasonable execution Doctrine of Qualified Agency – Department Secretaries may exercise powers delegated to them by the President subject to the latter’s power of control The power of the President to reorganize the National Government may o validly be delegated to his cabinet members exercising control over a particular executive department
EFFECT OF EXERCISE
Where the act was not authorized, it is the exclusive responsibility of the public officer who committed it
If the term may not be fixed, authority terminates upon the a. b.
Even if not previously authorized, the act may still be considered valid if it is subsequently ratified by the government Only voidable acts may be ratified o An absolutely invalid act cannot be validated by ratification o If the government itself could not have legally done the act, it follows that none of its agents can do so
Acts will be regarded as valid, producing legal effect and binding upon the government itself as the principal of the public officer
叶清蓮
2.
Ministerial – if the officer is given little latitude in its discharge When the law exacting its discharge prescribes and defines the time, o mode and occasion of its performance with such certainty that nothing is left for judgment or discretion
EXERCISE OF DISCRETIONARY DUTY
Conferment of discretion is based on the good sense of judgment of the public officer, hence, he is expected to discharge it directly and not through the intervening mind of another GR: Delegation of discretionary duties is not allowed o
Exception: President – where he is not expected to personally discharge the totality of the executive powers conferred upon him Reason: it is physically impossible to do so
May the exercise of discretion be compelled? Discretion to act or not to act – his decision not to act cannot be subject of judicial reversal But when the duty is made imperative as when a deadline is fixed for its o discharge, and discretion is granted only as to the manner of its exercise This duty may be compelled by judicial process Hence, it depends on the kind of discretion conferred o o
Mandamus: Mandamus: This only lies to enforce the performance of a ministerial act or duty o o
o
Purely administrative and discretionary functions may not be interfered with by the courts Exception: When an administrative body simply refuses to take any action whatsoever, the court may issue a writ of mandamus to take some action [general action] but it should not attempt to prescribe the action to be taken
EXERCISE OF MINISTERIAL DUTY
It is susceptible of delegation as it does not require the employment of discretion or judgment Furthermore, what can be done by the delegate may be subdelegated by him to others No particular qualification is required for the discharge of this kind of duty Reason: the law itself defines with precision the occasion and manner of its exercise
o
Ministerial duty can be compelled by judicial action and what may be required is specific action, that is, the particular duty imposed by law, not merely general action The discharge of the ministerial duty may be corrected in an appropriate action, and the public officer will have no reason to complain
叶清蓮
CHAPTER 6
6.
INHIBITIONS Inhibition
A restraint upon the public officer against the doing of certain acts which may legally be done by other
Prescribed either by the (a) Constitution or by (b) statute and may be (1) general or (2) specific in their application
Not engage, directly or indirectly, in any electioneering or partisan political campaign except to vote Civ, Members of the Armed Forces Partisan political activity – active support for or affiliation with the o cause of a political party or candidate a. Being a candidate for any elective office or delegate to any political convention b.
Effects of Violation
Sanction will depend upon the law imposing or implementing the constitutional restriction
If the constitutional inhibition has not been implemented by a statute, the usual judicial remedies can be employed, such as petition to prohibit
Breaches of the statutory inhibitions are usually made as penal offenses and punished accordingly or may be considered as administrative grounds for discipline
o
Constitutional Inhibitions [during their tenure] [P]resident, [V]ice President, Members of the [C]abinet and their deputies or assistants, [S]enators, Members or the [H]ouse of Representatives, Members of the [Con]stitutional Comissions, [O]mbudsman, [Sup]reme Court, [Civ]il Service officers or employees, [E]lective officials, and [A]ppontive officials 1. Not receive any other emolument from the Government or any other source PV 2.
3.
4.
5.
叶清蓮
[unless otherwise provided in the Constitution] not hold any other office or employment in the Government including GOCC or their subsidiaries PVCConOA For SH, forfeiture of seat will be the result of holding other office or o employment Not directly or indirectly practice any other profession, participate in any business or be financially interested in any contract granted by the Government including GOCC or their subsidiaries – to avoid conflict of interest in the conduct of their office SHConO EO allowing appointive officials of the Executive Department to hold o other positions is unconstitutional May not personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies SH Not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office SH
For members of the military, this prohibition applied only to active members No elective official shall be eligible for appointment or designation in any capacity to any public office or position Cannot receive additional, or indirect compensation, unless specifically authorized by law nor accept without the consent of Congress any present, emolument, office or title of any kind from any foreign government EA Pensions or gratuities are not considered as additional, double or o indirect compensation No loan, guaranty or other form of financial accommodation for any business purpose may be granted by any GOC bank or financial institution to PVCSHSupOO or to any firm or entity in which they have controlling interest o
7.
Being an officer or member of any political committee, party or organization c. Delivering speeches d. Canvassing or soliciting votes or political support or contributions for any political party or candidate e. Becoming actively identified with the success or failure of any candidate/s for election to public office However, PD 807 allows public officers and employees holding political offices to take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code
8.
9.
Constitutional Disqualifications 1. Spouse and relatives by consanguinity or affinity within 4 th civil degree of the President shall not be appointed, during his tenure, as a. Members of the Constitutional Commission d. Secretaries b. Members of the Office of the Ombudsman e. Undersecretaries c. Chairmen or heads or bureaus or offices including GOCC and their subsidiaries 2. No Senator or Member of HR shall be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected 3.
Members of the Supreme Court and of other courts shall not be designated to any agency performing quasi-judicial or administrative functions
4. 5.
Appointees to the ConCom must not have been candidates for any elective position in the elections immediately preceding t heir appointment No candidate who has lost in any election shall, within 1 year after such election, be appointed to any office in the Government or GOCC or in any of their subsidiaries
Other Inhibitions 1. Officer or Employee of Government cannot purchase any property sold by the government for non-payment of any tax, fee or any other public charge Such purchase is null and void o 2. Member of the Cabinet, Undersecretary, Assistant Secretary or other appointive official of the Executive Department may not hold more than 2 positions in the Government or GOCC and receive the corresponding compensation therefor This prohibition prevails over other laws stating otherwise o However, this shall not apply to ad hoc bodies or committees, boards, o councils of which the President is the Chairman If they hold more than 2 positions, they must relinquish the excess positions in favor of a subordinate official who is next-in-rank No judge or judicial officer shall sit in any case in which a. He, his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise o
3.
b. c. d. e.
4.
5.
6.
叶清蓮
He is related to either party within the 6 th degree of consanguinity or affinity To counsel within the 4th degree He has been executor, administrator, guardian or trustee or counsel He has presided in any inferior court when his ruling or decision is the subject of review, without written consent of all parties in interest, signed by them and entered upon the record
No judge or other official or employee of the superior courts or of the Office of the Solicitor General shall engage in private practice as a member of the bar or give professional advice to clients No Chairman or Commissioner of the COMELEC shall sit in any case where he would be disqualified under the Rules of Court or when he has manifested a. Bias b. Prejudice c. Antagonism Chairman and Members of the CHR shall not, during their tenure a. Hold any other office or employment b. c.
Engage in the practice of any profession Engage in the active management or control of any business which in any way will be affected by the functions of their office
d.
Financially interested in any contract with the Government including GOCC or their subsidiaries
7.
Unlawful for any local government official or employee, directly or indirectly to a. Engage in any business transaction with the LGU in which he is an official or employee or over which he has the power of supervision whereby money is to be paid or property or any other thing of value is to be transferred out of the resources of the LGU to such person or firm b. Hold such interests in any cockpit or other games licensed by LGU c. Purchase any real estate or other property forfeited in favor of such LGU for unpaid taxes or assessment or by virtue of a legal process at the instance of the said LGU d. Be a surety for any person contracting or doing business with the LGU e. Possess or use any public property of the LGU for private purposes
8.
All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives
9.
Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours o
Sanggunian members who are also members of the Bar shall not a. Appear as counsel before any court in any civil case wherein a LGU or any office of the government is the adverse party b.
Appear as counsel in any criminal case wherein an officer or employee of the government is accused of an offense committed in relation to his office c. Collect any fee for their appearance in administrative proceedings involving the LGU of which he is an official d. Use property and personnel of the government except when sanggunian member concerned is defending the interest of the government Doctors of medicine may practice their profession even during official o hours of work only on occasions of emergency provided that such official do not derive monetary compensation therefrom Prohibitions apply to both appointive and elective officials o 10. Civil servants shall not strike against the Government as a means of securing changes in the terms and conditions of employment 11. Prohibited acts and transactions for public officials under RA 6713 [Code of Conduct and Ethical Standards for Public Officials and Employees] a. Direct or indirectly have any financial or material interest in any transaction requiring the approval of their office b. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law
c.
d. e.
f.
Engage in the private practice of their profession unless authorized provided that such will not conflict or tend to conflict with their official functions Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office Use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to either i. Further their private interests or give undue advantage to anyone ii. Prejudice the public interest Solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person
2. 3.
i. ii. iii.
o
o
in the course of their official duties in connection with any operation being regulated by their office any transaction which may be affected by the functions of their office Prohibitions under a-d shall continue to apply for a period of 1 year after resignation, retirement, or separation from public office As to gifts or grants from foreign governments, t he Congress consents to a. Acceptance and retention of a gift of nominal value tendered and received as a souvenir or mark of courtesy b. Acceptance of a gift in the nature of a scholarship or fellowship grant or medical treatment c. Acceptance of travel grants or expenses for travel taking place entirely outside the Philipines of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office which he belongs
c. d. e.
Private Practice – does not pertain to an isolated court appearance but of a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer and demanding payment for such services Individuals are permitted to manage, prosecute and defend their own action, and when they do so, they are not considered to be in the practice of law
Other Disqualifications 1. All appointments in the government including GOCC, except barangay, made in favor of a relative within 3 rd degree of consanguinity or affinity of the appointing or recommending authority are prohibited This prohibition shall not apply to o a. b. 叶清蓮
g.
5.
Persons employed in a confidential capacity Teachers
Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after effectivity of LGC Insane or feeble-minded
Municipal judges may not engage in notarial work except as notaries public ex officio Circular of COA prohibits government agencies and instrumentalities from hiring private lawyers, except only in special cases because of their expertise in special fields
RA 3019 [Anti-Graft and Corrupt Practices]
Private Practice
All kinds of laborers shall not be assigned to perform clerical duties Disqualified from running for any elective local position: a. Sentenced by final judgment for an offense involving moral turpitude or punishable by 1 year or more of imprisonment, within 2 years after serving sentence b. Removed from office as a result of administrative case c. Convicted by final judgment for violating oath of allegiance to the Republic d. Dual citizens e. Fugitives from justice in criminal or non-political cases here or abroad f.
4.
Physicians Members of the AFP Those who, after their appointment to a position, contracts marriage with someone in the same bureau or office, in which event, the employment or retention of both husband and wife may be allowed
Elements: 1. Accused is a public officer 2.
He has a direct or indirect financial or pecuniary interest in any business, contract or transaction
3.
He either a. Intervenes or takes part in his official capacity in connection with such interest b. Is prohibited from having such interest by the Constitution or by law
Office of the Government Corporate Counsel a. Acts as the principal law office of all GOCCs and government acquired asset corporations b. The lead counsel of all GOCCs and no agreement or arrangement entered into by, or any act or omission of, the OGCC can alter the set up
CHAPTER 7
SALARY AND PERQUISITES Purpose of Compensation and Perquisites a. Intended to attract competent men to the government service b. Will lessen the temptation for graft as there would be little need for the public officer to augment his income through illegal methods c. To lend the necessary prestige to the office d. Necessity to pay and reward the officer for the l oyal and dedicated service rendered by him to the people
Source of Salary a. Constitution
Officer
Annual Salary P300 000
Vice President, President of the Senate, Speaker of the HR, Chief Justice of SC
P240 000
Senators, Members of HR, Associate Justices of SC, Chairmen of Constitutional Commissions
P204 000
Members of the Constitutional Commissions
P180 000
Salary is not an essential element of public office Where the law confers upon an entity the power to fix the salaries and emoluments of its employees, said entity may include representation and transportation allowances subject to the standards laid down by said law A law can provide that no official is entitled to compensation than the amount provided for per for per diems Per diem = a daily allowance given for each day an officer or employee of o government is away from his home base Intended to cover cost of lodging and subsistence May be construed as either compensation or as allowance
Constitutional Limitations
But what is controlling is the clear mandate of the law as to its application
When salary is granted by statute, it may be withdrawn by statute GR: one does not have a vested right to a salary, hence, it may be subjected to any change deemed fit by the legislature which granted it o
Exception: if it is protected by the Constitution
One cannot invoke due process because right to salary is not a property right
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Limitations on the power of the legislature to alter salaries are the following: Official
Limitations
Conditions
Senators and Members of HR
No increase in salary
Until after the expiration of the full term of all the Members of Senate and HR
President and Vice President
Chief Justice, Associate Justices of SC, and judges of lower courts
Until after the expiration of the term of the incumbent during w hich such increase was approved No decrease in salary
During their continuance in office *Salaries of Justices of SC are subject to withholding tax
Chairman and the Commissioners of Constitutional Commissions
During their tenure
Ombudsman Deputies
During their term of office
and
his
Elective or appointive public officer or employee
Salary and Due Process
Erroneous application and enforcement of the law by public officers does not estop the Government from making subsequent correction of such errors
b. Statute
President
Restriction: No reduction or abolishment of salary can operate retroactively to affect o salaries already earned or accrued since they are already regarded as vested property rights
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Cannot receive additional, double or indirect compensation nor accept without the consent of Congress, any present, emolument, office or title of any kind from any foreign government
Congress shall provide for the standardization of compensation of government officials and employees, including those in GOCC with original charters, taking into account the a. Nature of the responsibilities pertaining to their positions b. Qualifications required for their positions Right of the legislature to alter the salaries of all public officers is subject to the requirement of due process
Right to Salary
GR: A public official is not entitled to any compensation if he has not rendered any service
A claim for back salaries cannot stand by itself; it must be coupled with a claim for reinstatement Such claim is subject to the prescriptive period of 1 year o Sec. 59 of the Uniform Rules on Administrative Cases in the Civil Service o
Upon the issuance by the appointing authority and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the CSC
For de jure officer who has been unlawfully prevented from assuming the office, salary accrues to him from the date of the deprivation of office De facto officer cannot himself benefit from his status and is not allowed, as a rule, to collect salaries for services rendered Exception: where he had acted in good faith and there is no de jure officer o claiming the office
A declaration by a competent authority that an order of preventive suspension is null and void on its face entitles the suspended official or employee to immediate reinstatement and payment of back salaries corresponding to the period of unlawful preventive suspension Instances where an order of preventive suspension is null and void on its o face: a. Issued by one who is not authorized by law to do so b. Not based on any of the grounds or causes warranted by law
o
Issued without a formal charge Duration of the imposed preventive suspension has exceeded the prescribed periods – in which case, the payment of back salaries shall correspond to the excess period only If not based on those grounds, payment of back salaries shall await the final outcome of the principal case
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Refunded
Suspension or Dismissal
Employee shall be reinstated to his former post without loss of seniority rights with payment of back salaries
Demotion
Employee shall be restored to his former position without loss of seniority rights with payment of salary differentials
Transfer
Employee shall be immediately restored to his former post unless he decides otherwise
Entitled to leave credits for the period he has been out of service
Department of Budget and Management
Vested with the authority to review the salaries of government personnel, particularly with respect to the standardization of the same Rationale for the review authority of DBM: a. Equal pay for substantially equal work b. Base differences in pay upon substantive differences in duties and responsibilities c.
Qualification requirements of the position
Prohibited Disposition of Salary
Attachment, garnishment or assignment of salary of a public officer Reason: such salary still belongs to the State as long as it has not yet been actually collected by the public officer
o
Public officer is not legally bound by a pledge made by him while still a candidate that, if elected, he will not collect his salary or will donate it back to the government or give it to some other beneficiary However, having collected the salary, he may thereafter at comply with o his pre-election pledge without any legal inhibition
Public officer cannot agree to render services for less than the compensation provided for by law
If fully exonerated, he shall be paid such back salaries Downgrading of the charge to a lesser offense shall not be construed as fully exoneration
Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office, the right to recover such accrues from the date of deprivation Applies also to temporary appointees o
Effects
Fine
Mandatory leave benefits shall not be charged c harged against the respondent’s leave credits
The right of the de jure officer to his salary must be asserted against the de facto officer and not against the government unless the latter continued paying the salary to the de facto officer even after the adjudication of title in favor of the de jure officer A public officer under investigation or prosecution is preventively suspended but subsequently exonerated by reason of innocence, he is entitled to payment of the salaries corresponding to the period of his preventive suspension
Effects of exoneration on certain penalties: Kind of Penalty
In an ex officio position, being actually and in legal contemplation part of the principal office, such official has no right to receive additional compensation for his services rendered in said position
c. d.
Based on the right to the office itself and accrues from the date of actual commencement of the discharge of official duties
Leaves
Public functionary is given vacation, sick and, in the case of women, maternity leave packages
Vacation and sick leaves shall be cumulative and any part not taken during the calendar year shall be carried over to the succeeding years They are commutable to cash where the functionary voluntarily resigns, o retires or is separatied from service through no fault of his own, provided that commutation shall not exceed 360 days of accumulated leaves, exclusive of Saturdays, Sundays and Holidays These leaves shall be with pay and shall consist of 15 days for each class o for each year of actual service Available to emergency, casual, seasonal and part-time employees or o laborers and those on rotation or daily basis
Any married woman in the government shall be entitled to 60 days maternity leave with full pay if she has rendered 2 or more years of continuous service and ½ pay if the period of service is shorter These covers unintentional abortions and miscarriages o Commutation of maternity leave is also allowed o
Accrued leave benefits of employees shall not be forfeited despite the imposition of the penalty of dismissal
Life, retirement and accident insurance Disability or pre-need insurance Unemployment and separation benefits Medical care insurance and benefits handled by the Phil. Health Insurance Commission
e. f.
Dividends regularly paid to the members of GSIS Application to salary, policy, real estate loans and scholarship benefits for deserving children
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Retirement benefits, gratuity, and separation pay are computed on the basis of the highest salary, emolument and allowances received by the retiring employee Retirement is compulsory for any member of GSIS holding a regular and permanent appointment if: a. Attained the age of 65 years Rendered at least 15 years of service to the government Last 3 years of such service have been continuous
Retiree is entitled to a 5 year lumpsum payment of the present value of his annuity and such to be paid monthly as long as he lives If he has served at least 20 years continuous service, regardless of age and employment status, he shall be entitled to 1 month salary for each year of service for the 1st 20 years 1½ month salary for each year of service over 20 up to 30 years o 2 months salary for each year of service over 30 years based on the highest o salary received GSIS shall also refund to him his personal contributions for retirement o premiums, plus interest, including the counterpart contribution of the government, without interest Retirement laws are liberally interpreted in favor of the retiree
Retirement pay accruing to a public officer may not be withheld and applied to his indebtedness to the government
Retirement benefits cannot be diminished by CoAudit disallowances
GSIS can seek restoration of the amount erroneously granted to and received by the employee who has already retired by means of a proper court action for their recovery, which may be enforced against the retiree’s assets and properties
All officers and employees of government enjoys a. b. c. d.
Given to government employees to reward them for giving the best years of their lives to the service of their country
b. c.
Government employees, whether or not they have accumulated leave credits, are not required by law to work on Saturdays, Sundays and Holidays, and thus cannot be declared absent on such non-working holidays They cannot be deprived of their salary for such non-working holidays o
Jurisdiction on the determination of leave benefits is shared by the CSC and the CoAudit
Optional insurance is available for other functionaries who have been appointed for at least 2 months
Retirement Benefits
EO 1077 requires that all officials and employees to go on vacation leave for a minimum of 5 workings days annually
Insurance
Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the CSC in the interest of the service
Compulsory insurance covers permanent and regular appointees, and elective officers
RA 8291
Retirement modes: a. Retiree has rendered at least 15 years of service b. c.
At least 60 years of age Not be a permanent total disability pensioner
2 options for his retirement benefits: a. Lumpsum and Old Age Pension Lumpsum o
o
b. o
o
equivalent to 60 months of the Basic Monthly Pension payable at the time of retirement, and an old age pension benefit payable monthly for life, if the retiree is still living after the 5 year guaranteed period Cash payment and Basic Monthly Pension Cash payment = 18 times the Basic Monthly Pension payable upon retirement Monthly pension for life payable from the date of retirement
PD 1146
Government employees who were in the service on or before May 31, 1977 Appointment status must be permanent in nature Retiree’s last 3 years of service prior to retirement must be continuous except in cases of [DDA] i. Death ii. iii.
Benefits: a. Basic Monthly Pension = guaranteed for 5 years For those who are at least 60 years of age and have rendered at least o 15 years of service After such guarantee period, retiree will receive a basic monthly o pension for life Retiree may request the payment in lumpsum for the guaranteed o period of 5 years at a discounted rate of not less than 6% b. Cash Payment = 100% of the Average Monthly Compensation for every year of service
If qualified, all the benefits shall apply except cash payment since only benefits common to SSS and GSIS shall be paid, and cash payment is not included in the benefits provided by SSS
Disability Abolition & phase out of position due to reorganization
Maximum monthly pension for those above 57 years old = 80% of the Average Monthly Salary (AMS) received during the last 3 years immediately preceding his retirement Maximum pension for those aged 57 and below = 75% of AMS Benefits: a. Automatic Pension = monthly annuity guaranteed for 5 years Below 60 years old o With option to request a 1 year lumpsum every 6 months o If retiree is still living after the guaranteed period, he shall be entitled o to a monthly pension for life b.
Initial 3 year lumpsum For those who are at least 60 but less than 63 years old on the date of retirement Subsequent 2 year lumpsum shall be paid on his 63 rd birthday o o
If he is still living after the 5-year guaranteed period, he is entitled to a monthly pension for life Monthly pension for life Available to those who are at least 63 years of age or over on the date o of retirement If still living after the 5-year guaranteed period, he is entitled to a o monthly pension for life o
c.
For those who are at least 60 years of age and have rendered at least 3 years but less than 15 years of service
Retiree may combine his years of service in the private sector represented by his contributions to SSS with his government service and contributions to GSIS to satisfy the required years of service under PD 1146 and RA 8291
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To whom available: a. b. c.
If retiree is still below 60 years of age, he may only avail of his retirement benefits upon attaining his 60 th birthday
RA 7699 [Portability Law]
To whom available: a. Retirees who have been in the government service after May 31, 1977 but before June 24, 1977 b. Rendered at least 15 years of service, regardless of age
o
RA 660
RA 1616
Applies to retirees who were in the government service on or before May 31, 1977
Retiree must have a. Rendered at least 20 years of service b. Regardless of age and employment status c. Last 3 years of service prior to retirement must be continuous except in cases of DDA
Benefits: a. Gratuity = payable by the last employer based o the total creditable service converted into gratuity months multiplied by the highest compensation received There is no limit to the amount of gratuity benefit o b.
Refund of retirement premiums = payable by GSIS This consists of personal contributions of employees plus interest and government share without interest
o
Under GSIS Circular, services rendered on a per diem basis are not creditable for retirement purposes
PhilHealth
Established as a health care and health insurance program for the benefit of all employees even self-employed individuals
Benefits: a. Health benefit packages for inpatient and outpatient care b. Includes 1. Allowances for hospital room and board 2. 3. 4. 5.
c.
Services of health care professionals Diagnosis Laboratory and other medical examinations Use of surgical or medical equipment facilities
6. Inpatient education packages 7. Prescription drugs and biologicals Do not include 1. Non-prescription drugs and devices 2. Alcohol abuse or dependency treatment 3. Cosmetic surgery 4. Optometric services
Outpatient care services include a. b.
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Personal preventive services Emergency and transfer services
CHAPTER 8 – LIABILITY OF PUBLIC OFFICERS
Public officers and employees must at all time be accountable to the people, serve them with utmost responsibility, integsity, loyalty, efficiency, and act with patriotism and justice and lead modest lives. All officers must at all time be acc ountable to the people. Every public official is entitled to the presumption of good faith in the discharge of his official duties. Kinds of Duties Duty owing to the public in general Duty owing to particular individuals Duty Owing to the Public in General Examples: Duty of the president to maintain peace and rder o Duty of legislature to regulate smuggling o Duty of the judiciary to try an accused. o
It cannot give rise to liability in favor of particular individuals. The duty that was not performed was owed by No the officer not to any particular person but to the public as a while. The individual himself has no cause of action. The only remedy available is not judicial, but political, exercised by the people themselves through their suffrage. Duty Owing to a Particular Individual Its performance or non-performance will give rise to a cause of action in his favor for any injury sustained by him.
SHALL BE LIABLE FOR DAMAGES to any private party concerned without prejudice to other liability as may be prescribed by law. A head of department or superior officer shall NOT BE CIVILLY LIABLE for the wrongful acts, omissions of duty, negligence or misfeasance of his subordinates unless he has actually authorized by written order the specific act or misconduct complained of. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy, and good customs even if he acted under orders or instructions of his superiors.
Tabuena v. Sandiganbayan Even if the order is illegal, if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable for then there would only be a mistake of fact committed in good faith.
Pajares v. Alipante A sheriff in this case improperly enforced a writ of attachment and the court held that the respondent guilty of gross negligence and conduct seriously prejudicial to the best interest of the service. He was completely unmindful of his duties. And by his conduct, he has shown himself unfit for public service, specially that connected with the administration of justice, which demands the highest sense of dedication and zeal.
Sibulo v. Ramirez The law makes it mandatory that the sherrif has the duty to serve and make a return of a writ of execution to the clerk of judge of the court issuing it at any time not less than 10 days or more than 60 days. The sherrif is left with no discretion on whether or not to execute and to make a return of the writ within the period provided by the Rules of Court. A sheriff A sheriff who failed to make a return of the writ of execution within the required period is guilty of malicious nonfeasance in office. So is respondent in this case for he has caused an unwarranted delay in the proceedings and consequentially has contributed to the impairment of public confidence in the judiciary.
Liability in General A public officer shall NOT BE CIVILLY LIABLE for acts done in the performance of his official duties unless there is a clear showing of bad faith, malice or gross negligence. Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation or within a reasonable period if none is fixed, 叶清蓮
Accountable officers cannot profess ignorance of laws or administrative circulars for it is required that they must update their knowledge with whatever laws or any administrative issuances that may be issued by competent authorities. Public officials of independent corporate bodies such as BSP which o have been bestowed under their charters with fiscal and administrative autonomy should be granted a certain degree of flexibility in the performance of their duties and provided insulation from interference and vexatious suits. President President shall be immune from suit. This rule seeks to guarantee the independence of the public official o who otherwise might be unwilling to make the right decisions for fear that he might be called to account therefore in a court of law by disgruntled individual adversely affected by his act. To rule otherwise would result in delay or inaction on important o matters of government because of the time and effort that the President would have to devote to his d efense. The president may generally not be held liable for his acts o because they are mainly discretionary and owing to the public in general. Also, there is the doctrine on separation of powers which o prevents the courts from interfering with the President when he
decides what are known as political questions except when his decision is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Estrada v. Desierto Petitioner here contends that the cases filed against him before the Ombudsman should be prohibited because the impeachment proceedings against him remained pending or he had not been convicted in said proceedings. The court held that it is untenable for petitioner to demand that he should first be impeached and then, convicted before he can be prosecuted. Such would put a perpetual bar against his prosecution and will place him in a better situation than a non-sitting president who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. When impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him. The rule is that unlawful acts of the state and the official who acts illegally is not acting as such but stands in the same footing as any other trespasser.
Incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure but not beyond. The doctrine of presidential immunity has no application where the petition for prohibition is directed not against the President himself but against his subordinates. Cabinet members cannot be held liable for acts done by them in the exercise of their discretion and within the limits of their authority without the attendance of malice, bad faith or gross negligence. Like the president, of whom each of them is an alter ego, they are o entitled to proper respect for their discretionary acts which even the courts of justice are not usually empowered to review. When they are charged by law to perform purely ministerial duties for the benefit of particular individuals, mandamus will lie to compel such performance. Legislators Members of the legislature both national and local act as a body and discharge duties owing to the public in general. They cannot be held liable for the performance or non-performance of their duties. The Sandiganbayan has the authority to issue orders of preventive suspension even against members of the Legislature independently of the power of Congress to discipline its members. A municipal council who exercises proprietary functions could be o likened to directors of a private corporation who normally should not be sued directly for their official acts. These should be imputed to the corporation itself. But if the members have acted in bad faith, they are to be made o liable for their personal capacities. 叶清蓮
Judges Judges should not be liable for their acts except only when they act without jurisdiction as the law will not protect them for exercising powers that do not belong to them. In the absence of fraud, dishonesty, or corruption, the acts of a o judge in his judicial capacity are not subject to disciplinary action. They are not subject to disciplinary action even though such acts o may be erroneous provided he acts in good faith and without malice. It must be shown that the judgment was unjust and not that the o judge merely committed an error of judgment or took the unpopular side of a controversial point of law. Failure of a judge to correctly interpret the law or to properly o appreciate evidence presented does not necessarily render him administratively liable. It must also be motivated by bad faith, fraud, dishonesty or corruption. A judge enjoys presumption of regularity in the performance of his functions no less than any public officer. It may be rebutted by affirmative evidence of irregularity or failure to perform a duty. Good faith inhere only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principles evidenct and basic as to be beyond possible margins of error. Thus where Thus where the law violated is so elementary , for a judge not o to know it or to act as if he does not know it constitutes gross ignorance.
Disciplinary proceedings against judges do not complement, supplement or substitute judicial remedies whether ordinary or extraordinary. An inquiry into their administrative liability arising from judicial acts may be made only after to after other available remedies have been settled. An administrative complaint against a judge cannot be o pursued simultaneously with the judicial remedies accorded to parties aggrieved by his erroneous order or judgment.
A
judge is required under the Code of Judicial Conduct to be faithful to the law and maintain professional competence. He should be meticulous and zealous as he should have been in o organizing and supervising the work of his subordinates as required by the Code. Although a judge cannot be held to account or answer criminally, o civilly or administratively for every erroneous judgment or decision rendered by him in good faith, it is imperative that they should have the basic knowledge of law.
Immunity of judges has been expanded by the Civil Code which provides that damages are not demandable unless a judge's acts of omissions constitutes a violation of the Penal Code or other penal statute.
Haw Tay v. Singayao This is a case where the SC condemned the acts of a judge who accepted bribes notwithstanding his resignation as this constitutes serious misconduct in office. The respondent's ignorance of the requirements of the Rules of Court and of elementary rules of Commercial Law is equally conspicuous. It is a combination of the twin evils of corruption and ignorance of the law and thus constitutes a diseased member which must be decisively servered from the body of the judiciary and cast aside. He was disqualified from re-employment in any position in the government and as having forfeited all his accrued retirement benefits and leave and other privileges, if any.
Absence
of damage to the complainant does not totally absolve a judge from administrative liability for wrongfully issuing a writ. The SC has exclusive power over the discipline of lower court judges and personnel.
In instances involving dismissal of judges, the administrative cases must be deliberated upon and decided by the Supreme Court en banc.
The quantum of evidence to hold a judge administratively liable is only a preponderance of evidence (evidence of greater weight or more convincing than the evidence which is offered i n opposition to it) At the very least, administrative charges against a member of the o judiciary must be supported by substantial by substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Complaint must be verified and duly supported by affidavits of o persons who have personal knowledge of the facts alleged therein or by documents substantiating such allegations.
For Justices of the Supreme Court Those who may be removed only by impeachment. They cannot be charged with disbarment during the incumbency as a public officer. Cannot be judged criminally before the Sandiganbayan pr any other court with any offense which carries the penalty of removal from office or any penalty, service, of which would amount to a removal from office. To grant a disbarment case would in effect be to circumvent and o hence run afoul of the constitutional mandate that Mambers of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in the Constitution. Note: But the court is not saying that the members are immune from liability of possible criminal acts or for alleged violation of the Canons or other supposes misbehaviour. There is only a fundamental PROCEDURAL REQUIREMENT that must be observed before before such liability may be determined and enforced. Should 叶清蓮
his tenure be terminated by impeachment, he then may be held to answer either criminally or administratively liable for any wrong or misbehavior that may be proven against him in appropriate proceedings. Judicial independence is important. Quasi-Judicial officers Decisions rendered by QJ officers may be reversed by the courts of justice upon showing that they were attended by grave abuse of discretion. However, the officers themselves may not be held liable for such decisions as long as it is shown that they were acting within the scope of their authority and without bad faith, malice of corruption.
Philippine Racing Club v. Bonifacio After conducting an on the spot investigation, the Commission on Races cancelled a race on the ground of a faulty start but in the meantime, the petitioner had paid the winning tickets and moreover, it later had to refund all the other tickers. The SC held that although the commission did not have the power to cancel races, since the respondents acted within the honest belief that they had such power as in fact they acted on the matter only after an investigation, they CANNOT BE HELD LIABLE for damages. In order that acts may be done within the scope of official authority, it is not necessary that they be prescribed by statute, or even that they be specifically directed or requested by a superior, it is sufficient that they are done by an officer in relation to matters committed by law to his control or supervision or that they have a connection with such matters or that they are governed by lawful requirement of the department. When an officer is given discretion and is empowered to exercise his judgment in matters brought before him, ht is usually given immunity form liability to persons who may be injured as the result of an erroneous decision however erroneous it may be provided that the acts complaint of are done within the scope of the authority and without wilfullness, malice or corruption. Local Officials The rules for national are applicable to local officials in the discharge of their discretionary and ministerial functions. They are allowed much leeway in determining whether or not to license and may not be held civilly liable for refusal to do so absent a showing of grave abuse of discretion. Any local treasurer, accountant, budget officer or other accountable officer having pecuniary interest, direct or indirect in any contract work or business of the LGU of which he is an accountable officer shall be administratively liable therefor. Unless he registers his objection, such officer shall not be relieved o of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer, elective or appointive or upon
particpation of other department heads or officers equivalent in rank. Where the complainant against a lawyer is in connection with the discharge of his functions as a notary public and not as an elected barangay chairman, the code of conduct and ethical standards for public official and employees will not apply since he is a lawyer, he is covered by the Code of Professional Responsibility and Code of Professional Ethics. Ministerial Officers Ministerial Act – act performed in a prescribed manner in obedience to law or mandate of legal authority without regard to or exercise of the judgment of the individual upon the propriety of the act being done. Where the act is performed by the officer under these conditions o with due care and diligence, he incurs no liability to any person prejudiced by it. A ministerial officer who performs in the prescribed o manner with due care and diligence incurs no liability to individual however much the latter is injured.
If the officer acts without authority, or in disregard of the occasion, time and manner prescribed by law for the performance of the duty, or without necessity of care and diligence, he must respond in damages to any person injured as a result (nonfeasance, misfeasance, malfeasance) Nonfeasance – neglect or refusal without sufficient excuse to o perform an act which it was the officer's legal duty to the individual to perform Misfeasance – failure to use that degree of care, skill, and o diligence which the circumstances of the case reasonably demand (negligence) Malfeasance – doing through ignorance, inattention or malice of o that which the legal officer has no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores, or abuses his powers. Note: in these case, the defense of good faith and honest mistake o cannot be made. He must bear the consequences of his act or omission.
Note: the aforementioned must have a direct relation to and be connected with the performance of official duties amounting to maladministration or willful, intentional neglect and failure to discharge the duties of the office. Misconduct – transgression of some established or definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. Liability for Acts of Subordinates GR: Superior officers cannot be held liable for the acts of their subordinates. The mere fact that he is a head of an agency does not mean that he a o party ultimately liable in case of disallowance of expenses for questionable transactions of his agency. Though not impossible, it would be improbable for him to check all o the details and conduct physical inspection and verification of the 叶清蓮
o
o
applications considering the amount of paperwork attendant to his office. Guilt must be premised on a mere knowing personal and deliberate participation of each individual who is charged with others as part of conspiracy. All heads have to rely to a reasonable extent on their subordinates. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. There should be other grounds than the mere signature or approval.
EXCEPTIONS (when the superior may be held liable) Where, being charged with the duty of employing, he negligently or o willfully employs or retains unfit or improper persons Where, being charged with the duty of seeing that they are o appointed and qualified in the proper manner, he negligently or willfully fails to require them the due conformity to the prescribed regulations Where he so carelessly or negligently oversees, conducts, or carries o on the business of his office as to furnish the opportunity for the default And a fortiori where he has directed, authorized or cooperated in o the wrong.
Other exceptions: Person immediately accountable for government property shall be o liable for its money value in case of the illegal use or misapplication thereof, by himself or any other person for whose acts he may be responsible and he shall be liable for all loss, damage, or deterioration occasioned by negligence in the keeping or use of such property unless it is proved that he has exercised due diligence and care in the utilization and safekeeping thereof. A department of superior officer shall be civilly liable if he actually o authorized by written order the specific act or misconduct complained of. A subordinate officer shall be liable for willful or negligent acts o done by him which are contrary to law, morals, public policy, and good customs even if he acted under the orders or instructions of his superiors.
Chan v. Sandiganbayan it is not an excuse that his designated clerk is the one who failed to remit the amount on time since it is incumbent upon him to exercise the strictest supervision on the person he designated, otherwise he should suffer the consequences of the acts of his designated employee through negligence.
Personal Liability Where the wrong committed without authority or malice or in bad faith he may be held personally liable for his act or omission. He is suable in his individual capacity and cannot invoke his official status to insulate himself from liability. A public officer by virtue of his office alone, is not immune from o damages in his personal capacity arising from illegal acts done in bad faith. He is not immune from damages in his personal capacity for acts o done in bad faith which, being outside the scope of his authority are no longer protected by the mantle of im munity for official actions. But evidence to prove partiality, malice and bad faith is o usually required to hold them liable.
Bad faith does not simply connote bad judgment or negligence. It is a dishonest purpose or some oral obliquity and conscious doing of a wrong. It partakes the nature of fraud. It is a state of mind with a furtive design or some motive of self0interest or ill will for ulterior purposes. There is a manifest deliberate intent to cause wrong or damage. o Good faith is the honesty of intention an d freedom of knowledge of circumstances which ought to put the holder upon inquiry together with the absence of all information, notice or benefit or belief of facts which render the transactions unconscentious. Ignorance or mistake will exempt the doer from felonious o responsibility. THE LAW ITSELF MAY MAKE THE OFFICER PERSONALLY LIABLE E.g. Contracts entered into contrary to requirements of EO 292. – o no funds may be disbursed without first securing the certification of a government agency's chief accountant or head of accounting unit as to availability of finds. If these are not complied with, the contract is a nullity and the officer is held personally liable. Expenditures of government funds or uses of government property o in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. If a public officer enters a contract on behalf of the government but o without the proper authority, the contract is not enforceable against the latter and becomes the personal liability of the officer. May be ratified by the government. No person employed in the Civil Service in violation of the Civil o Service Law and rules shall be entitled to receive pay from the government but the appointing authority responsible for such unlawful appointment shall be personally liable for the pay that would have accrued had the employment been lawful.
Orocio v. Commission on Audit A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. 叶清蓮
In matters of tort, the same will not be imputed to the public officer if it is shown that he acted within the limits of his authority without the attendance of bad faith. The mere allegation that a government functionary is being sued in o his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate the doctrine of state immunity. If the officer acted within the scope of their authority, it is the o government and not the petitioners personally, that is responsible for their acts.
A public officer may be sued as such to compel him to do an act required by law. Where the government itself violated its own laws, the aggrieved party may directly implead the government even without first filing his claim with the Commission on Audit as normally required as the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. Note: A bureau director can be sued for damages on a personal tort committed when he acted without or in excess of authority in forcibly taking private property without paying just compensation therefor although he did convert it to a public irrigation canal. It was not necessary to secure the previous consent of the state nor could it be validly impleaded as a party defendant, as it was not responsible for the defendant's unauthorized act.
The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. This situation usually arises where the public official acts without o authority or in excess of the powers vested in him. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority.
Whether it is the government which must pay petitioner his back salaries or should it be the officials who were responsible for one's termination form service. If the dismissal is found to have been made in bad faith or due to personal malice of the superior officers, they will be held personally accountable for the employee's backwages. Otherwise the government suffers by such arbitrary dismissal. If the acts are ultra vires and tainted with bad faith, he may himself be held liable for his acts in his individual capacity.
Correa v. CFI of Bulacan In tis case, the mayor and the treasurer were held personally liable and solidarily liable for the payment of the back salaries of several dismissed employees. The court held that in the discharge of governmental functions, the municipal corporations are responsible for the acts of its officers except if and when and only to
the extent that they acted within the authority of law and in conformity with the requirements. However, a public officer who commits tort or other wrongful act done in excess or beyond the scope of his duty is not protected by his office and is personally liable therefore like any private individual.
The Ombudsman is clothed with authority to conduct preliminary investigations and to prosecute all criminal cases involving public officers and employees not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of regular courts as well. This is a concurrent authority with the DOJ.
Sandiganbayan – jurisdiction over offenses committed by public officers in relation to their office where the penalty is higher than prision correccional or imprisonment for 6 years or a fine of 6,000. For it to have exclusive jurisdiction, it is essential that the facts o showing intimate relations between the office and the office and the discharge of official duties must be alleged in the information. It is not enough to allege that it was committed in relation to his o office because that would be a conclusion of law.
MTC/RTC – even if the offender committed the crime in relation to his office but occupies a position with a salary grade below 27
Joint trial – where public officer is prosecuted for offenses commited with private individuals before the Sandiganbayan.
Chavez v. Sandiganbayan The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they acted ultra vires or where there is a showing of bad faith.
Settled is the principle that a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. Errors of government officers should never be allowed to jeopardize o the financial position of the government.
Remedies Against the Public Officer It is a basic principle of law of public officers that a public official or employee is under a 3-fold responsibility for violation of duty for a wrongful act or omission. Civilly o Criminally o Administratively o
These remedies may be invoked separately, alternately, simultaneously or successively. The pendency of one suit will not constitute a prejudicial question which would serve to suspend or bar the others if based on essentially the same act of impropriety or the same facts. Defeat of any of the remedies will not necessarily preclude the other remedies as different degrees are required in several actions.
Under Article 32 of the Civil Code, any public officer of employee or any private individual who directly or indirectly obstructs or defeats, violate or in any manner impedes or impairs any of the rights and liberties of another person shall be liable to the latter for damages. The exception to this is a judge who may be held civilly liable only if o the act constitutes a crime.
Criminal Actions vs. Public Officers Where the public officer is brought to face criminal proceedings, the OSG is not authorized to represent him. him. The OSG is not authorized to represent a public official at any stage o of a criminal case or in a civil suit for damages arising from a felony. This applies to all public official and employees in the executive, legislative and judicial branches of the government. 叶清蓮
Administrative Actions The same may be taken against a public officer or employee for practically any impropriety that can be regarded as a violation of the trust reposed upon him by the public. Oppression o Dishonest o Insubordination o Immorality o Inefficiency o Negligence o Drunkenness o Partisan political activity o A lawyer who A lawyer
holds a government office cannot be disciplined as a member of the bar for misconduct in the d ischarge of his duties as a government official. But if the misconduct constitutes a violation of his oath as a lawyer, o he may e disciplined as such member.
Office of the Court Administrator v. Enriquez Dismissal of the criminal case on the ground of insufficiency of evidence was never meant to foreclose the administrative action against him or to give him a clean bill of health in all respects as there is the substantial eidence rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind accept as adequate to support a conclusion.
When
the criminal prosecution is based on the same act charged is still pending, any administrative proceedings for the same act must await the outcome of the criminal case to avoid contradictory findings.
o
Police Commission v. Lood Two policemen were found guilty of grave misconduct by the Police Commission and ordered dismissed. However, they were subsequently exonerated by the City Court of Manila in a criminal action based on the same act proved in the administrative case. The respondent judge declared their dismissal without authority of law, null and void and without force and effect and ordered their reinstatement with back salaries. The SC reversed said decision and held that it is a fundamental principle that the administrative case may generally proceed against a respondent independently of a criminal action for the same act or omission and requires only a preponderance of evidence to establish guilt. The subsequent acquittal of the respondents herein was of no consequence since such acquittal merely relieved them from criminal liability but in no way carried with it relief from the administrative liability of dismissal from the service under the final order of the PolCom in administrative cases,
An
administrative proceeding is different from a criminal case and may proceed independently thereof. Finding of guilt in the criminal will not necessarily result in a o finding of liability in the administrative case. Criminal and civil cases are altogether different from administrative o matters, such that the disposition from the first 2 will not inevitably govern the third and vice versa.
Exception to the rule: Palma v. Fortich The ground for filing of the administrative action in this case is the misconduct allegedly committed in the form of lascivious acts of the respondent. It is to be noted that the acts allegedly committed in this case are not so connected with the functions as a mayor. As mayor. As such, when the crime involving moral urpitude is not linked with the performance of his duties, conviction by final judgment is required as a condition precedent to the administrative action. In the instant case, not only is final judgment lacking, but the criminal cases filed were all dismissed by the trial court for insufficiency of evidence on the basis of its findings that the attendant circumstances logically point to the existence of consent on the part of the offended parties.
Re-election of a local official will have the effect of automatically abating administrative charges against him for offenses allegedly committed during his preceding term. The courts should never remove a public officer for acts done prior o to his present term of office, to do otherwise would be to deprive the people of their right to elect their officers.
叶清蓮
Re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But this does not apply when the action is criminal. In such case, pardon may be extended only by the President. Re-election of a public officer for a new term does not in any manner wipe out any criminal liability incurred by him from a previous term.
Pendency of a criminal case may be the basis for suspension from office in a subsequent term in the event of a re-election. Mere desistance of the complainant does not warrant the dismissal of administrative cases against members of the bench. It cannot be withdrawn at any time by the simple expediency of the o complainant suddenly claiming a change of mind. The court may proceed with its investigation and mete the o appropriate penalties against erring officers of the court. Even in the absence of the respondent, if there were sufficient o records available and other witnesses that could have been called to testify, investigators could have just utilized those records and those witnesses to come out with a judicious recommendation based on the merits. Death of the complainant does not warrant the non-pursuance of the charges against respondent. In administrative cases, complainants are mere witnesses. o The unilateral decision of a complainant to withdraw or o even his death cannot prevent the court form imposing sanctions upon the parties subject to its administrative supervision. Public offices are imbued with public interest. o No compromise may be entered into between the parties with o respect to the penal sanction.
Death or retirement or resignation of any public officer from the service does not preclude the fining of any administrative liability to which he is still answerable.
The prescription provided in a penal statute (e.g. RA 3019) does not apply to administrative cases. Administrative cases. Administrative offenses do not prescribe.
Modes 1.
2. 3. 4. 5. 6. 7.
CHAPTER 9
Term of office
Right to hold an office
TERMINATION OF OFFICIAL RELATIONS
Period during which an elected officer or appointee is entitled to hold office, perform its functions, and enjoy its privileges and emoluments
Just and legal claim to hold and enjoy the powers and responsibilities of the office
Expiration of term a. Reaching the age limit
b. Accomplishment of the purpose of the office Resignation Abandonment Acceptance of an incompatible office Removal a. Recall b. Impeachment Abolition of office Death
c. Forfeiture
Term = period during which the individual has a right to public office A. Fixed by law – allows appointee to hold office, perform its functions and enjoy its privileges and emoluments until the expiration of such period 1. Fixed at a definite number of years
Contingent on an act or event or determines in the discretion of the superior authority Examples: o a. Conclusion of a treaty b. Termination of an investigation and completion of report or decision of an investigating committee c. Attainment of the retirement age Discretionary upon the pleasure of the appointing authority [primarily confidential position] Removal here is not removal per se, se, as for an officer to be removed o from office, is to oust him from the office before the expiration of his term o o
o
This is equivalent to expiration of term Officials and employees holding primarily confidential positions continue in office for as long as confidence in them endures Termination of their official relations can be justified by loss of confidence expiration of term of office There is no need for prior notice, due process or sufficient grounds before the incumbent can be separated from office
The right to office is based on a valid appointment or election and only when this right is established will the individual be entitled to serve in the office for the term prescribed right to office includes right to the term of such office
叶清蓮
When term is fixed by the C onstitution, same may not be changed by a statute Legislature may increase or shorten a statutory term of office Change should not affect the incumbent officer unless it is clearly so provided
Hold-over officer allowed by some statutes until the successor shall have been duly elected or appointed and qualified The officer holding over is a de jure officer o Allowed in the absence of an express or implied prohibition o o
Example of an implied prohibition for holding-over: When a provision clearly indicates the time for the beginning and the end of the term Hold-over is only valid when expressly authorized by law
o
2.
B.
There is no principle, law or doctrine by which the term of an office may be extended by reason of war
o
Expiration of the Term
Tenure = the actual period of incumbency of the public
When the law is silent on when the time for the term commences, it is presumed to be on the date of appointment or election In case of ambiguity regarding the exact duration of t he term, the shortest o period should be the preferred interpretation Accidental vacancy occurs in an office where: a. b.
The beginning and end of term are specified replacement shall serve only for the unexpired portion of the t erm of the predecessor Only period of the term is specified successor shall commence his own term for the full period unless otherwise provided by law
Resignation
There must be a formal method of renunciation / resignation: a. Physical act of relinquishment of office, and b.
Approval by the superior authorities
This is a factual question and its validity is not governed by any formal requirement as to form as long as it is clear, then it must be given legal effect The form of resignation and acceptance of the resignation can be, express or implied, or oral or written, but preferably written and addressed to the authority empowered to accept it or addressed to the person resigning Approval of the resignation is important as if not approved, the officer will run the risk of prosecution for abandonment of his office
Resignation is not complete until accepted by proper authority and until acceptance, the tender or offer to resign is revocable unless otherwise provided by statute b.
A resignation becomes effective usually on the date specified in the tender If no such date is specified, effective when the officer receives the notice of the acceptance
o
When resignation may be withdrawn: a. b.
It has not yet been accepted It was tendered as a result of mistake, threat or any v ice of consent
Courtesy resignation – cannot be properly interpreted as a resignation in the legal sense o
o
Reason: it is not necessarily a reflection of a public official’s intention to surrender his position What it is really: manifestation of his submission to the will of the political authority and the appointing power
When a person tendered his resignation subject to the result of his appeal to the Civil Service Board of Appeals, there was no resignation to speak of that could be validly accepted
When a resignation is submitted during the pendency of an administrative case or a disciplinary case, such cannot be accepted because it would render the case moot and academic
Resignation of a member of Cabinet President (who has the power to nominate his successor)
Abandonment Total surrender, relinquishment, disclaimer or cession of the public office and includes the intention as well as t he external act by which it is carried out
Giving up of office but is not attended with the formalities observed in resignation
Definition: a. Voluntary relinquishment of an office by the holder b. With intention of terminating his possession and control thereof
叶清蓮
Abandonment may be effected by a positive act or the result of an omission, whether deliberate or not When a public official voluntarily accepts an appointment to an office newly created or recognized by law— law —which such is incompatible with the one formerly occupied by him— him —he will be considered to have abandoned the office he was previously occupying and he cannot question the constitutionality of the law by virtue of his former appointment Except: o a. Non-acceptance of the new appointment may affect public interest b. He is compelled to accept it by reason of legal exigencies Instances where there is no abandonment of office: a. Where an employee accepted another position in the government during the pendency of his appeal from an administrative decision b. Estoppel cannot bar an employee from returning to her former position where said employee reluctantly and hesitantly accepted the second office c. Employee’s application for leave, duly filed, was later denied d. 2 event of successive unsatisfactory ratings since this is a ground for termination
AWOL – official or employee who is continuously absent without an approved leave for at least 30 working days
Overt or external act by which the intention is carried into effect
How can an officer abandon his office? a. Non-user – neglect to use a right or privilege or to exercise an office
Employee’s inaction is excusable where it was due to the reliance on the assurance made to him that he would be appointed to another position
Elements: a. Intention to abandon b.
This may be filed even after the 1 year period as long as the delay is not so unreasonable as to constitute laches Reasonableness of the period within which a claim for reinstatement may be filed is determined on a case-by-cases basis
To whom resignation should be submitted? a. Those officers specified by law to receive such b. If none specified, to the officer who has the power to fill the vacancy to be created, either by appointment or by calling a special election
Non-performance of duties does not automatically result in abandonment of office if such results from temporary disability or involuntary failure to perform Acquiescence in his wrongful removal or discharge Vacating of an office in deference to the requirements of a statute o which is declared unconstitutional, such surrender will not be deemed an abandonment and the officer may still recover his office Rules of Court: a person unlawfully deprived of his office by another o may file a petition for quo warranto within 1 year from the date of accrual of the cause of action Failure to observe will result as an abandonment of his right to recover his position The institution of an administrative remedy will not suspend this prescriptive period which continues to run notwithstanding the pendency of a motion for reconsideration The prescriptive period of 1 year will not apply to a petition for mandamus to compel reinstatement of the ousted officer or employee o
o
o
Instances where there is abandonment: a. Where a person rebels against the government b.
c.
He shall be deemed separated from the service or dropped from the roll without prior notice The action of dropping from the roll is non-disciplinary in nature and does not result in the forfeiture of their benefits nor their disqualification from re-employment in the government
A person who changes his residence when residence is one of the qualifications of holding the office, more so, if such will render him unable to attend to his duties If the delay in qualifying for the office is inordinate and unjustified, amounting to an absolute refusal to assume the discharge of official duties, qualification at a later time will not be permitted
Security of tenure = no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process Acceptance of a temporary appointment without the intention of o abandoning a permanent position does not divest the employee security of tenure
Removal Removal
Suspension
Expiration of Term
Forcible and permanent separation of the incumbent from office before the expiration of his term
Temporary divestiture of the right to the office during part of the term and does not have the effect of vacating the office
Operates automatically to terminate official relations by mere lapse of time conformably to law or the pleasure of higher authority
o
Where 2 offices are incompatible, they cannot be held simultaneously by the same person o
Mischief inherent in these situations is immediately clear and so should not be permitted
Incompatibility exists when the character or nature of offices or relation to each other are such that one person should not hold because of t he contrariety and antagonism which would result in the attempt by one person to faithfully and impartiality discharge the duties of one, toward the incumbent of the other
How can elective officials be removed? a. Removed administratively Where local official is re-elected pending investigation of o administrative charges, the investigation is deemed abated However, this would not prevent his prosecution in court during his subsequent term if such offenses also constitute a crime b. Process of recall
For appointees to policy-determining, primarily confidential and highlytechnical a. b.
When an officer cannot resign without the approval of higher authority, he may not circumvent the requirement by accepting an incompatible office o
Otherwise, he will be allowed to do indirectly what he cannot do directly
Forbidden office – an appointive office created or improved while the prospective appointee thereto was a member of the legislature It is the appointment itself during his t erm of office that is prohibited o
叶清蓮
To other functionaries, they may not be suspended or dismissed except for cause as provided by law and established at appropriate administrative proceedings and after due process Demotions and transfers without cause are tantamount to removal o Member of the Legislature may be suspended or expelled for disorderly behavior by not less than 2/3 of all its members If the penalty imposed is suspension, such shall not exceed 60 days o
GR: acceptance of the incompatible office automatically vacates the first In accepting the second office, the officer is deemed to have preferred it over the first, which he will ipso facto lose as a result In having vacated the first office, he cannot recover it later if his title fails o in the second office Art. 6 Sec. 7 of the Constitution: Senator or Member of HR shall forfeit his seat the moment he holds another office or employment in the Government or any of its subdivisions including GOCC or their subsidiaries
GR: all officers appointed by the President are also removable by him Exceptions: [removed only by impeachment] a. Members of Supreme Court b. Members of the Constitutional Commission c. Ombudsman d. Judges of lower courts – removed by the Supreme Court although appointed by the President
o
Express power to appoint carries with it the implied power to remove
o
Acceptance of an Incompatible Office
When not expressly provided for, power of removal may be derived under the doctrine of implication from the power of appointment
Term may end at the pleasure of the superior authority If their term is fixed by law they may not be summarily removed as this would be violative of the Constitution
Art. 9-B Sec. 2(3) of the Constitution: no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law o ―For cause‖ – for reasons which the law and sound public policy recognized as sufficient warrant for removal
Security of tenure in the career executive service is acquired with respect to rank and not to position When a regular government employee is illegally dismissed, his position does not become vacant and the new appointment made in order to replace him is null and void ab initio
b. c. d.
Reorganization which results in the abolition or merger of positions is now acknowledged as a valid cause for removal
e. Impeachment
Vote requirement: 1/3 of all Members of HR shall be necessary to either o i. Affirm a favorable resolution with Articles of Impeachment of the Committee ii. Override its contrary resolution
No impeachment proceedings or filing of an impeachment complaint shall be initiated against the same official more than once within a period of 1 year
When the President is on trial, the Chief Justice of Supreme Court will preside but shall not vote
Impeachable officers: President Vice-President Members of the Supreme Court Members of the Constitutional Commissions Ombudsman
Grounds: [exclusive list] a. Culpable violation of the Constitution – wrongful, intentional or willful disregard or flouting of the fundamental law Act must be deliberate and motivated by bad f aith Treason – committed by any person, who, owing allegiance to the Government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort Bribery Other High Crimes – those offenses of so serious and enormous a nature as to strike at the very life or orderly workings of the government Graft and Corruption – those prohibited acts under the Anti-Graft and Corrupt Practices Act o
b.
c. d. e. f.
No person shall be convicted without the concurrence of 2/3 of all member of Senate Judgment in cases of impeachment: [penalty] a. Removal from office, and b.
Disqualification to hold any office
The party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law GR: Judgment is normally not subject to judicial review and to the pardoning power of the President o
Exception: courts may annul the proceedings if there is a showing of a a. grave abuse of discretion committed by Congress b. non-compliance with the procedural requirements of the Constitution
1. 2.
Inexcusable negligence of duty Tyrannical abuse of authority
Forfeiture
3. 4. 5. 6.
Breach of official duty by malfeasance or misfeasance Cronyism Favoritism Obstruction of justice
Operates to divest the incumbent of title to his office as a result of a positive act, either culpable or innocent
Examples of forfeiture: a. Persons holding appointive office including active members of the AFP and officers and employees in GOCC shall be considered ipso facto resigned upon filing of his certificate of candidacy b. Acceptance by a Senator or Member of HR of an incompatible office shall work a forfeiture of his seat in legislature
HR shall have the exclusive power to initiate all cases of impeachment
Senate has the sole power to try and decide all cases of impeachment Procedure: a. Verified complaint for impeachment filed by
叶清蓮
Betrayal of Public Trust – a catch-all to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes like
Method of national inquest into the conduct of public men a. b. c. d. e.
i. any Member of the HR, or ii. any citizen upon a resolution of endorsement by any Member thereof Such shall be included in the Order of Business within 10 session days Within 3 session days thereafter, it shall be referred to proper Committee Within 60 days from such referral, Committee, after hearing, and by majority vote of all its Members shall submit its report to the House together with the corresponding resolution Within 10 days from receipt thereof, resolution shall be calendared for consideration by the House
Recall
d.
Employed directly by the people themselves through the exercise of their suffrages e.
Ground: loss of confidence This is exercised by the registered voters of a LGU to which the local elective official subject to such recall belongs What the Constitution prohibits is an immediate re-election for a 4 th term following 3 consecutive terms Recall election mid-way in the term following the 3rd consecutive term is a o subsequent election but not an immediate re-election after the 3rd term Involuntary severance from office for any length of time short of the full o term amounts to an interruption of continuity of service
There is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same function as the original offices Removal violates the order of separation provided in Sec. 3 of RA 6656 1. Casual employees with less than 5 years of government service 2. Casual employees with 5 years or more of government service 3. 4.
Employees holding temporary appointments Employees holding permanent appointments preference for appointment to new positions
5.
Those in the same category as enumerated above
–
shall
be
given
Reinstatement is not necessarily to the original position
Death Abolition of Office
GR: power to create includes the power to destroy –it may only be abolished by the same legislature that brought it into existence Exception: when the office was created by the Constitution itself o The power of Congress to create, reorganize or even abolish courts inferior to the Supreme Court is plenary o
However, no law shall be passed reorganizing the judiciary when it undermines the security of tenure of its Members
Abolition of Office
Removal
Deactivation
After abolition, there is in law no occupant
There is still an office with an occupant who would thereby lose his position
The office continues to exist, albeit remaining dormant or inoperative
When an office is abolished in good faith, incumbent who is separated as a result cannot complain that he has been denied his constitutional security of tenure, as this right is merely accessory to the office and disappears with the abolition of the principal
Reorganizations have been regarded as valid provided they are pursued in good faith o
It is carried out in ―good faith‖ if it is for the purpose of economy or to make bureaucracy more efficient
The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganizations: a. There is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned b. Office is abolished and other performing substantially the same functions is created c. Incumbents are replaced by those less qualified in terms of status of appointment, performance and merit
叶清蓮
Terminates the incumbent’s right to the office as it terminates everything else
When office is occupied by a single incumbent or when unanimous action is required by law to be binding, office will cease to function until a successor is able to qualify and take over
GR: public officer’s death or other permanent disability creates a vaca ncy in the office and the successor is entitled to hold it for a full term o
Exception: where there is clear intention to have vacancies appointments at regular intervals
