234 Must have some permanency an d continuity Note: This is not to be applied literally. literally. The Board of Canva Canvasse ssers rs is a public public offi office ce,, yet yet its its dutie duties s are are only only for for a limited period of time. The element of continuance cannot be consider considered ed as indispensab indispensable. le. Mechem Mechem descr escrib ibe es the the deleg legatio ation n to the the indivi individua duall of some some of the sovere sovereign ign functions of government as “the most important characteristic” in determ determinin ining g whethe whetherr a posit position ion is a public office or not [Laurel v. Desierto (April 12, 2002)]. In this case, Laurel, who was the chair of the National Centennial Commission (NCC), was was decl declar ared ed by the the Cour Courtt to be a publ public ic officer. officer. The Court ruled that the NCC performs performs executive functions as it enforces and carries into operation the conservation and promotion of the nation’s historical and cultural heritage, a policy policy embodied embodied in the Constitu Constitution. tion. That Laurel did not receive any compensation during his tenur tenure e is of little conse conseque quence nce.. This This is because a salary is a usual but not a necessary criter criterion ion for deter determin mining ing the nature nature of the positi position. on. At the same same time, time, the elemen elementt of contin tinuance cannot be considered as indispensable. •
LAW ON PUBLIC OFFICERS Consolidated from Reviewer and Outline from BarOps 2003 and 2004
I. PUBLIC OFFICE AND OFFICERS A. Public Office 1. Definition the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the the soverei ereig gn fun functio ctions ns of the the government, to be exercised by him for the benefit benefit of of the public. public. (Fernande (Fernandez z v Sto. Tomas, March 7, 2005) •
2. Purpose to effect the end for which government has been instituted which is the common good good;; not not prof profit it,, hono honorr, or priv privat ate e interest of any person, family or class of persons (63 Am Jur 2d 667) •
3. Nature A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti) It is a resp respon onsi sibi bili lity ty and and not not a righ right. t. (Morfe v. Mutuc) •
•
4. Elements Must be created either by (a) the Constitution, (b) the Legislature, or (c) a muni munic cipal ipalit ity y or othe ther body thro throug ugh h authority conferred by the Legislature; Must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; The The powe powers rs conf confer erre red d and and the the duti duties es discha discharge rged d must must be define defined, d, direct directly ly or implie impliedly dly by the Legisl Legislatu ature re or throug through h legislative authority; The duties must be performed indepe independe ndentl ntly y and withou withoutt contro controll of a superior power other than the law; Exception: Exception: If the duties duties are are those those of an infe inferi rior or or subo subord rdin inat ate e offi office ce,, created or authorized by th e Legislature and by it placed under the general control of a superior office or body; •
•
5. Public Office v. Public Employment Public employment is broader than public office. All public office is public employment, employment, but not all public employment is a public office. A public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovereign power, and in the performance of whic which h the the publ public ic is conce concern rned ed.. Publ Public ic employment is a position which lacks one or more of the foregoing elements.
•
•
•
Public Office
Public Contract
Creation
Incident sovereignty
Object
Carrying out of sove soverei reign gn as well well as governmental func functi tion ons s affe affect ctin ing g even persons not bound by the contract
Obligation Obligations s imposed imposed only upon th e persons who entered into the contract
Subject Matter
Tenur nure, continuity
Limited duration
Scope
Duties that are gener generall ally y contin continuin uing g and permanent
D u t ies are specific to contract
Where dutie duties s are are
The law
Contract
•
of Originates Originates from will of contracting parties
dur duratio ation, n,
very th e
235 6. Public Office v. Public Contract
-
7. There is no vested right to public office. GENE GENERA RAL L RULE RULE:: A pub publi lic c off offic ice, e, bei being ng a mere privilege given by the state, does not vest any rights in the holder of the office. This rule applies when the law is clear. EXCEPTION EXCEPTION:: When the law is vague, the person’s holding of the office is protected and he should not be deprived of his office. A public office cannot be regarded as the prop proper erty ty of the the incu incumb mben entt and and that that a publ public ic offi office ce is not not a publ public ic cont contra ract ct.. Alth Althou ough gh ther there e is a vest vested ed righ rightt to an offi office ce,, whic which h may may not not be dist distur urbe bed d by legisl legislati ation, on, yet the incumb incumbent ent has, has, in a sense, sense, a right to his office. office. If that right right is to be taken away by statute statute,, the terms should be clear (Segovia v. Noel).
by a trib tribun unal al or body body to whic which h the the power power to create create the office office has been delegated
•
•
•
•
8. Public Office is not property. A public office is not the property of the public officer within the meaning of the due process process clause of the non-impair non-impairment ment of the obliga obligatio tion n of contr contract act clause clause of the Constitution. Exceptions: In quo warrant warranto o proceedi proceedings ngs relating relating to the the questi estio on as to whic hich of 2 persons is entitled to a public office In an action for recovery of compensation accruing by virtue of the public office Due process is violated only if an office is considere considered d property property.. However However,, a public office is not property within th e constitutional guaranties guaranties of due due process. process. It is a publ public ic trust trust or agenc agency y. As publ public ic officers are mere agents and not rulers of the people, no man has a proprietary or contractua contractuall right to an office (Cornejo (Cornejo v. Gabriel).
•
Scope and Extent of Power of Legislature GENERAL RULE: The creation of a public public office office is primarily primarily a legislativ legislative e function. Exceptions: where where the offices are created created o by the Constitution; where the Legislature o delegates such power. Delegation of Power to Create Public Office Where an office is created pursuant to illegally illegally delegated delegated powers, powers, the office office would have no existence.
U.S.T. v. Board of Tax Appeals
•
The authority given to th e President President to "reorgan "reorganize ize within one year year the the diffe differe rent nt exec execut utiv ive e depa depart rtme ment nts, s, bureaus and other instrumentalities of the Government" Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. Therefore, an executive executive order depriving the Courts of First Instance of jur jurisd isdicti iction on over cases ases inv involvin lving g recovery of taxes illegally collected is null and and void void,, as Congr ongres ess s alon alone e has has the the "power to define, prescribe and apportion the jurisdiction of the various courts."
•
•
10. Methods of Organizing Offices Sing Single le-h -hea ead: d: one one head head assi assist sted ed by subordinates. Swifter decision and action but may sometimes be hastily made. Board ard System: tem: colle llegial gial bod body in form formula ulatin ting g poli police ces s and and impl implem emen enti ting ng programs. Mature stu studies and and deliberations but may be slow in responding to issues and problems. •
•
Abeja v. Tanada Publ Public ic offi office ce being being pers person onal al,, the the death death of a public public office officerr termin terminate ates s his right right to occ occupy upy the conte conteste sted d office office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. 9. Creation of Public Office
11. Modification Modification and Abolition Abolition of Public Public Office GENE GENERA RAL L RULE RULE:: The The pow power er to crea create te an offi office ce incl includ udes es the the powe powerr to modi modify fy or abol abolis ish h it. it. (i.e (i.e.., this this is gener eneral ally ly a legislative function) EXCEPTIONS: Where Where the Const Constitut itution ion prohib prohibits its o such modification / abolition; •
•
•
Modes of Creation of Public Office by the Constitution by statute / law
236 Where Where the Constitutio Constitution n gives gives the peop people le the the powe powerr to modi modify fy or abolish the office RULE RULE on Abando Abandonme nment: nt: When When a public public official voluntarily accepts an appointment to an office newly created by law -- which new office is incompatible with the former -- he will be considered to have abandoned his former office. Exception: When the non-acceptance of the new appointme appointment nt would would affect affect public interest, and the public official is thereby constrained to accept.
delegation to the individual of some of the sovereign functions of government, government, to be exercised by him for the benefit of the public, and that the same portion of the sovereignty of the country, either legislative, judicial, or executive, attaches, for the time being, to be exercised for the public benefit (Laurel v Desierto, April 12, 2002) When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of government power, “officer” includes any government government employee, agent, or body having authority to do the act or exercise that function (Sec. 2(14) Administrative Code) For the purpose of applying the provisions of the Revised Penal Code, employees, employees, agents, or subordinate officials, of any rank or class, who perform public duties in the government or in any of its branches shall be deemed as public officers.
o
•
•
•
Ocampo v. Secretary of Justice The legisl legislati ative ve power power to create create a court carries with it the power to abolish it. When the court is abolished, any unexpired term is abolished also.
•
Zandueta v. De la Costa RULE: When a public public official official voluntari voluntarily ly accepts an appointment to an office newly crea create ted d by law law -- whic which h new new offi office ce is incompatible with the former -- he will be considered to have abandoned his former office.
Illustrations: •
Exception: When When the non-a non-acce ccepta ptance nce of of the new appointment appointment would affect public public interest, and the public official is thereby constrained to accept. 12. Estoppel to Deny Existence of Office When a person has acted as a public office officerr, esp. esp. where where he has recei receive ved d public monies by virtue of his office, he is estopped from denying that he has occupied a public office. •
B. Public Officer 1. Definition A public officer is one who performs public functions / duties of government government by virtue of direct provision of law, popular election, or appointment by competent authority authority.. His duties involve involve the exercise of discretion in the performance of the functions of the government, government, and are not of a merely clerical or manual nature. The most important characteristic which distinguishes an office from an employment is that the creation and conferring of an office involves a •
•
•
In the case of Manieg Maniego o v. Peopl People, e, a laborer who was in charge of issuing summon summons s and subpo subpoena enas s for traff traffic ic vio violati lation ons s in a judg udge's e's sala ala was convicted convicted for bribery bribery under RPC 203. The court court held held that even even tempor temporary ary perf perfor orma manc nce e of publ public ic funct functio ions ns is sufficient to constitute a person as a public official. In the the case case of Peop People le v. Palo Paloma ma,, a sorter and filer of money orders in the Auditor's Office of the Bureau of Posts was was conv convic icte ted d for for infi infide deli lity ty in the the cust custod ody y of docum documen ents ts.. The The court court pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously a public function or duty.
Who are not considered public officers? •
Special Special policemen policemen salaried salaried by a priv privat ate e enti entity ty and and patrolling only th e premis premises es of such such priva private te entity (Manila Terminal Co. v. CIR);
237 •
•
Conces Concessio sion n forest forest guard guards s (Mar (Marth tha a Lumb Lumber er Mill Mill v. Lagradante); Company cashier of a private private corpora corporation tion owned owned by the government (Tanchoco v. GSIS)
2. A person cannot be compelled to accept a public office. EXCEPTIONS: When When citi citize zens ns are are requ requir ired ed,, unde underr conditions provided by law, to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); When When a pers person on who who, havi having ng been been elected by popular election to a public office, refuses without legal motive to be sworn in or to discharge the duties of said office.
• • •
• • •
• • •
•
•
•
3. No presumption of power A public public officia officiall exerc exercise ises s powe powerr, not rights. rights. The govern government ment itself itself is merely merely an agency through which the will of the state state is expre expresse ssed d and enfor enforced ced.. Its office officers rs theref therefore ore are likewi likewise se agents agents entr entrus uste ted d with with the the resp respon onsi sibi bili lity ty of discharging its functions. functions. As such, such, there there is no presumptio tion that they are empow empowere ered d to act. act. There There must must be a dele delega gatio tion n of such such auth author orit ity y, eith either er express or implied. In the absence absence of a valid valid grant, grant, they they are devoid devoid of power power (Villegas v. Subido). •
C. Clas Classi sifi fica cati tion on of Publ Public ic Offi Office ces s Public Officers •
•
and and
Creation Constitutional Statutory Public Body Served National Local -
•
• • •
• • •
Department of government to which their functions pertain Legislative Executive Judicial Nature of functions Civil Military
Exercise of Judgment or discretion Quasi-judicial Ministerial Legality of Title to office De Jure De Facto Compensation Lucrative Honorary
D. De Facto Officers 1. De Facto Doctrine It is the principle which holds that a person, who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void. Its purpose is to ensure the orderly functioning of governm government. ent. The public public cannot cannot afford afford to check the validity of the officer's title each time they transact with him. 2. De Facto Officer Defined A person is de facto officer where the duties of his office are exercised under any of the following circumstances: With Withou outt a know known n appo appoin intm tmen entt or election, but under such circumstances of reputation or acquiescence as were calcul calculate ated d to induce induce peopl people, e, withou withoutt inqu inquir iry y, to subm submit it to or invo invoke ke his his action action,, suppo supposin sing g him to the be the officer he assumed to be; or Unde Underr colo colorr of a know known n and and valid alid appointment or election, but where the officer has failed to conform to some preced precedent ent requir requireme ement nt or condi conditio tion n (e.g., taking an oath or giving a bond); Unde Underr colo colorr of a know known n elec electi tion on or appointment, void because: o the officer was not eligible; o there was a want of power in the the elec electi ting ng or appo appoin inti ting ng body; there was a defect or o irregularity in its exercise; suc such ine inelig ligibil ibilit ity y, want of o power, or defect being unknown to the public. Note Note:: Such Such inel inelig igib ibil ilit ity y, want want of auth author orit ity y or irre irregu gula lari rity ty bein being g unknown to the public Und Under colo colorr of an ele electio ction n or an appo appoin intm tmen entt by or purs pursua uant nt to a •
238 public, unconstitutional law, before the same is adjudged to be such. o Note: What is unconstitutional is not the the act act creat reatin ing g the the office, but the act by which the officer is appointed to an office legally legally existi existing. ng. (Norto (Norton n v. v. County of Shelby) •
Validity of Valid, Valid, subject subject official acts to exception exceptions s (e.g., th ey were done beyond th e scop scope e of his his authority, etc.)
Valid as to the public u n til such such time time as his title to the office is adjudged insufficient.
Rule on Compensation
Entitled to receive compensation only during the time when no de jure officer is declared;
Officer De Jure v. Officer De Facto
Requisites
De Jure
De Facto
Existence of a de jure office;
De jure office;
Entitled to compensation as a matter of right;
Color Color of right right or general acquiescence by the public;
The princi principle ple of "no "no work work,, no pay" is not applic applicabl able e to him.
must possess possess the legal qualifications for the office office in question; must be lawfully chosen to such office;
Actual physical possessio possession n of the the offi office ce in good faith •
must have qualified himself to perf perfor orm m the the duties of such office acco accord rdin ing g to the mode prescribe prescribed d by law. Basis Authority
How ousted
of Right: he has the lawful right / title to the office
Cannot ousted.
be
Officer De Facto v. Intruder De Facto
Intruder
Off icer under any any of the the 4 circumstances discussed under under Part Part II (above).
One who takes possess possession ion of an offic office e and and undertak undertakes es to act act offi offici cial ally ly witho ithout ut any any authority, eith either er actu actual al or apparent
of Color Color of right right or title to office
None. He has neither neither lawful title nor colo colorr of right or title to office.
Validity of Valid as to the "official" acts public until til such such time time as his title to the office is adjudged insufficient
Absolutely void; oid; they they can be impeac impeached hed at any time in any proceeding (unl (unle ess and and until he conti ontinu nues es to act for so long
Nature
Reputation: Has th e possession and perfo performs rms the duties under color of right, right, without without being technically qualified in all poin points ts of law law to act Only by direct proceeding (quo warranto); not collaterally
a
He is paid only for actual services rend render ered ed by him.
Basis authority
239 law later declared to be unconstitutional may may be cons consid ider ered ed de fact facto o at leas leastt before the declaration of unconstitutionality.
a tim time as to afford a presumption of his right to act)
5. Legal Effect of Acts of De Facto Officers Rule on compensation
Entitled to receive compensation only during the time when no de jure officer is declared;
Not entitled to compensation at all.
He is paid only for actual services rend render ered ed by him.
•
•
•
•
•
•
An intruder / usurper ripen into a de facto officer. With the passage of time, a presumption may be created in the minds minds of the public public that the intrud intruder er has a right to act as a public officer. Good faith on the part of the public is a factor in the ripening of intruder status into de facto status.
•
As regard regards s the office officers rs themse themselve lves: s: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. As regards the public and third persons: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. RATIO RATIONAL NALE: E: For For the prote protecti ction on of the public Offic Officia iall Acts Acts of De Facto acto Offic Officer ers s not not subject to collateral attack RULE: RULE: The title title of of a de facto facto office officerr and the validity of his acts cannot be collatera collaterally lly questione questioned d in proceedin proceedings gs to which he is not a party, or which were were not not instit institute uted d to deter determin mine e the very question. REMEDY: Quo warranto proceedings Who may file: o The person who claims to be entitled to the office; The Republic of th e Philippines, represented by the Solicitor-General; or a public prosecutor
3. Elements of a De Facto Officership (1) De jure office (2) Color of right or general acquiescence by the public; (3) Actual Actual physical physical possession possession of the office in good faith
Examples of those not considered as De Facto Officers •
•
A judge who has accepted an appointme appointment nt as finance finance secretary secretary and yet yet rende renders rs a decisio decision n after after having having accepted accepted such appointme appointment nt (Luna v. Rodriguez); A judge judge whose whose positio position n has alread already y been een abo abolis lished hed by law law, and and yet promul promulgat gates es a decisi decision on in a crimin criminal al case after the abolition and over the objection of the fiscal (People v. So)
4. Office created under an unconstitutional unconstitutional statute The The prev preval alen entt view view is that that a pers person on appointed or elected in accordance with a •
6. Liabilities of De Facto Officers The The liab liabil ilit ity y of a de fact facto o offi office cerr is generally held to be the same degree of accountability for official acts as that of a de jure officer. The de facto officer may be liable for all penalties imposed by law for any of the following acts: usurping or unlawfully holding office; exercising the functions of public office without lawful right; not being qualified for the public office as required by law. The de facto facto office officerr cannot cannot excus excuse e his responsibility for crimes committed in his official capacity by asserting his de facto status. •
•
• •
•
•
7. Righ Rightt to Comp Compen ensa sati tion on of De Fact Facto o Officer GENERAL RULE: A de facto officer cannot maintain an action to recover the salary, fees fees or other other emolum emolument ents s attache attached d to •
240 the office, even though he has performed the duties thereof on the theory that the acts of a de facto officer as far as he himself is concerned are void. The rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title (Monroy v CA )
Eligibility Eligibility:: endowmen endowmentt / requirem requirement ent / accomplishment that fits one for a public office. Qualification: endowment / act which a person must do before he can occupy a public office.
•
•
Note: Failure to perform an act required by law could affect the officer’s title to the given office. Under BP 881, the office of any elected official who fails or refuses to take his oath of office within six months from his proclamation shall, shall be considered vacant unless said failure is for cause or causes beyond his control.
EXCEPTION Where there is no de jure public officer, the officer de facto who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office. One who becomes a public officer de facto without bad faith on his part, and who renders the services required of the office, may recover the compensation
Gen. Manager Manager,, Philippine Philippine Ports Ports Authorit Authority y v. Monserate (April 17, 2002) A de facto officer, not having good title, takes the salaries at his risk and must account to the de jure officer for whatever salary he received during the period of his wrongful wrongful tenure. tenure. In fine, the the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. However, this rule was not squarely applied in this case since the de jure officer assumed assumed another another position position under protest, for for whic which h she she rece receiv ived ed comp compen ensa satio tion. n. Thus, Thus, while while her her ass assump umptio tion n to the said said pos positio ition n and and her her acc accepta eptanc nce e of the the corr corres espo pond ndin ing g emol emolum umen ents ts cann cannot ot be cons consid ider ered ed as an aban abando donm nmen entt of her her clai claim m to her her righ rightf tful ul offi office ce,, she she cann cannot ot reco recove verr full full back back wage wages s for for the the peri period od when she was unlawfully deprived thereof. She is only entitled to back pay differential differentials s between between the salary salary rates rates for the lower lower positio position n she ass assume umed d and the position she is rightfully entitled to. III. ELIGIBILITY AND QUALIFICATIONS A. Definition
B. Power to Prescribe Qualifications Qualifications GENERA GENERAL L RULE: Congr Congress ess is empowe empowered red to prescribe the qualifications for holding public office. Restrictions on the Power of Congress to Prescribe Qualifications: Congress cannot exceed it s constitutional powers; Congress cannot impose conditions of eligibility inconsistent with constitutional provisions; The qualification must be germane to the the posi positio tion n ("re ("reas ason onab able le relat relatio ion" n" rule); Congress cannot prescribe qualif lifications so detaile iled as to prac practi tic cally ally amo amount unt to makin aking g an appo appoin intm tmen ent. t. (Le (Legisla islati tiv ve appointments are unconstitutional and therefore void for being a usurpation of executive power.); Wher Where e the the Cons Constit titut utio ion n esta establ blis ishe hes s specif specific ic eligib eligibili ility ty requir requirem ement ents s for a part partic icul ular ar cons consti titu tutio tiona nall offi office ce,, the the consti constituti tutiona onall criter criteria ia are exclus exclusiv ive, e, and and Cong Congre ress ss cann cannot ot add add to them them except if the Constitution expressly or impl implie ied dly give ives the the power wer to set qualifications. In the absence of constitu tituti tio onal inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. •
•
•
•
•
•
•
•
Exampl Examples es of legisl legislati ative ve enactm enactment ents s which which are tantam tantamoun ountt to legisl legislati ative ve appointments: •
Extensions Extensio ns of the terms of office of the incumbents;
241 •
•
•
•
The People's Court Act, which provided that that the the Pres Presid iden entt coul could d desig designa nate te Judges Judges of First First Instan Instance, ce, Judges Judges-at -at-larg large e of First First Inst Instan ance ce or Cada Cadast strral Judges to sit as substitute Justices of the Supre Supreme me Court Court in treaso treason n cas cases es withou withoutt them them necess necessari arily ly having having to posses possess s the requir required ed consti constitut tution ional al qualifi qualificat cation ions s of a regula regularr Suprem Supreme e Court Justice. Justic e. (Vargas v. Rilloraza); Rilloraza ); A provi proviso so which which limits limits the choice choices s of the appoin appointing ting author authority ity to only only one eligible, eligible, e.g. the incumbent incumbent Mayor of Olongapo City (Flores v. Drilon); A legisl legislati ative ve enactm enactment ent abolis abolishin hing g a particular office and providing for the automa automatic tic trans transfer fer of the incumb incumbent ent offic ficer to a new offi ffice created (contemplated in Manalang v. Quitoriano); A provisio provision n that impliedly impliedly prescribe prescribes s incl inclus usio ion n in a list list subm submit itte ted d by the the Executive Council of the Phil. Medical Association as one of the qualifications for appointmen appointment; t; and which which confines confines the selectio selection n of the members members of the Board of Medical Examiners to the 12 persons included in the list (Cuyegkeng v. Cruz) ;
Manalang v. Quitoriano Congress Congress cannot either either appoint appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative prerogative ofthe President, upon which no limitations limitations may be imposed imposed by Congress, except those resulting from:
(1) the the
need of securing the concurrence of the Commission on Appointments; and
the exer exerci cise se of the the limi limite ted d (2) the legislativ legislative e power power to prescribe prescribe the the quali qualifi fica cati tion ons s to a give given n appointive office.
Cuyegkeng v. Cruz The power power of appointme appointment nt vested vested in the the Pres Presid iden entt by the the Cons Consti titu tuti tion on connotes necessarily a reasonable measure of freedo freedom, m, latitud latitude, e, or discre discretio tion n in the
exercise of appointees.
the
power
to
choose
Flores v. Drilon Where only one can qualify for the posts sts in que questio stion, n, the the Pre Presid sident ent is precluded from exercising his discretion to choose whom to appoint. appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes goes agai agains nstt the the very very natu nature re itse itself lf of appointment. C. Time of Possession of Qualifications At the time specified where the time is specified by the Constitution or law. Where the Constitution or law is silent, there are 2 views: 1. qualifi qualificat cation ion must must be at the the time time of commencement of term or induction into office; 2. qualifi qualificat cation ion / elig eligibi ibilit lity y must must exist exist at the the tim time of the the ele electio ction n or appointment Eligib Eligibilit ility y is a contin continuin uing g nature nature,, and must exist throughout the holding of the public office. office. Once the qualifications are lost, then the public officer forfeits the office. •
•
•
Castaneda v. Yap Know Knowle ledg dge e of inel inelig igib ibil ilit ity y of a cand candid idat ate e and and fail failur ure e to ques questio tion n such such ineligibility before or during the election is not a bar to quest question ioning ing such such eligibi eligibilit lity y after such ineligible candidate has won and been proclaimed. proclaimed. Estoppel will not not apply in such a case.
Frivaldo v. COMELEC The citizenshi citizenship p requirem requirement ent must be met only only on electio election n day. day. While While the Local Government Code requires residency of one year immediately preceding election day and the presc prescrib ribed ed age on electi election on day day, no date date is specif specified ied for citize citizensh nship. ip. The purpose of the citizenship requirement is to ensure leaders owing allegiance to no othe otherr coun countr try y. Such Such purpo purpose se is not not thw thwarte arted d, but inst instea ead d achi achiev eved ed by const construi ruing ng the requir requirem ement ent to apply apply at time of proclamation and at the start of the term. D. Con Co nstru struct ctio ion n Eligibility
of
Restr estric icti tion ons s
on
242 •
•
There There is a presum presumpti ption on IN FAVOR FAVOR OF ELIGIBLITY of one who has been elected or appointed to public office. The The righ rightt to publ public ic offi office ce shou should ld be strictly construed against ineligibility. ineligibility.
• • •
•
E. Qualifications usually Prescribed 1. For President (Sec. 2, Art. VI, Constitution) and Vice President (Sec. 3, Art. VII, Constitution) Natural-born citizen 40 years old on day of election resident of the Philippines for at least 10 yrs immediately preceding election day • • •
35 years old at ti me of appointment college degree holder not a candidate candidate for elective elective position position in electio tion immedia diately preceding ing appointment chair hairm man and and maj majority rity shoul hould d be memb member ers s of the the bar bar who who hav have been been engaged in the practice of law for at least 10 years
7. COA Commissioners Natural-born citizen 35 years old at ti me of appointment CPA with >10 year of auditing experience or Bar member engaged in practice of law for at least 10 years Not have have been been candid candidate ates s for electi elective ve positi sitio on in elect lectio ions ns imme immed diate iately ly preceding appointment • • •
•
2. For Senator Constitution) • • • • •
(Sec.
3,
Art.
VI,
Natural-born citizen 35 years old on day of election able to read and write registered voter reside resident nt of the Philip Philippin pines es for not less less than two years years immediately immediately preceding preceding election day
3. For For Co Cong ngre ress ssme men n (Sec (Sec.. 6, Art. Art. VI, VI, Constitution) Natural-born citizen 25 years old on day of election able to read and write regist registere ered d voter voter in distri district ct in which which he shall be elected reside resident nt there thereof of for not less less than than one year immediately preceding election day • • • •
•
4. Supreme Court Justice Natural born citizen at least 40 years old 15 years or more a judge or engaged in law practice of proven proven CIPI (compete (competence, nce, integrity integrity,, probity and independence) independence) • • •
•
5. Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution) Natural-born citizen 35 years old at ti me of appointment proven capacity for public administration not a candidate for any elective position in elec electi tion ons s imme immedi diat atel ely y prec preced edin ing g appointment • • • •
6. COMELE COMELEC C Commi Commissi ssion oners ers (Sec. (Sec. 1[1], 1[1], Art. IXC) Natural-born citizen •
•
Cayetano v. Monsod Practice of law means any activity, in or out out of cour court, t, whic which h requ requir ires es the the appl applic icat atio ion n of law law, lega legall proc proced edur ure, e, know knowle ledg dge, e, trai traini ning ng and and expe experi rien ence ce.. Generally, to practice law is to give notice or rende enderr any any kind ind of ser servic vice whic hich requi requires res the use in any degree degree of legal legal knowledge or skill.
243 Aquino v. COMELEC Residency of not less than 1 year prior prior to the election elections s for the positio position n of Congress Congressman. man. In election election law, law, residence residence refers refers to domicile, domicile, i.e. the place where a party party actuall actually y or const construc ructiv tively ely has his perm perman anen entt home home,, wher where e he inte intend nds s to return. To successfully effect a change of domi domici cile le,, the the cand candid idate ate must must prov prove e an actu actual al remo remova vall or an actu actual al chan change ge of domicile. domicile. Here, Here, it was held that that leasing leasing a condominium unit in the district was not to acquir acquire e a new reside residenc nce e or domic domicile ile but only to qualify as a candidate.
Marcos v. COMELEC Domicile, Domicile, which includes includes the twin elements of actual habitual residence, and anim animus us mane manend ndi i , the intention of remaining there permanently. permanently. It was held that domicile domicile of origin origin is not easily easily lost, lost, and and that that in the the abse absenc nce e of clea clearr and and positiv positive e proo prooff of a succes successfu sfull change change of domicile, the domicile of origin should be deemed to continue.
F. Religious Test or Qualification No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution) •
G. Disqualifications to Hold Public Office •
•
IN GENERAL: GENERAL: Individuals who lack any of the qualifi qualificat cation ions s prescr prescribe ibed d by the Constitution or by law for a public office are ineligible or disqualified from holding such office. General Disqualifications under the Constitution a) No cand candid idat ate e who who lost lost in in an election, shall, within one year after such election, be appointed to any office in Government Government (Art. IX-B Sec. 6) b) No elec electiv tive e offici official al shall shall be eligib eligible le for appointment or designation in any capacity to any public office or position during his tenure (Art. IXB Sec. 7(1)) c) Unless Unless otherw otherwise ise allow allowed ed by by law law or by the primary functions of his position, no appointive official shall hold any other position in Government Government (Art. IX-B Sec 7 (2 ))
Note: In National Amnesty Commission v COA, when another office is held by a public officer in an ex officio capacity, as provided by law and as required by the primary functions of his office, there is no violation. •
Specific Disqualifications under the Constitution 1) The President, Vice President, the Members of the Cabinet and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment employment during their tenure (Art. VII, Sec. 13) 2) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, Government, or any subdivision, agency or instrumentality thereof, thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected (Art. VI, Sec 13) 3) The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions (Art. VIII, Sec. 12) 4) No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. (Art. IX-A, Sec. 2) 5) Previous disqualification applies to the Ombudsman and his Deputies (Art. XI, Sec. 8) 6) The Ombudsman and his Deputies shall not be qualified to run for any office in the election immediately succeeding their cessation from office (Art. XI, Sec. 11) 7) Members of Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IXB, Sec. 1; Art. IX-C, Sec. 1; Art. IXD, Sec. 1; Art XI, Sec. 8) 8) Members of Constitutional Commissions, the Ombudsman and
244 his Deputies are appointed to a term of seven (7) years, without reappointment (Sec. 1(2) of Arts. IXB, C, D; Art. XI, Sec. 11) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government government ownedor controlled corporations (Art. VIII, Sec. 13) •
OTHER DISQUALIFICATIONS
1. Mental Mental or physic physical al inca incapac pacity ity
2. Misconduct or crime: persons convicted of crimes involving moral turpitude are usually disqualified from holding public office.
3. Imp Impeachm achmen ent t Removal al or suspe suspensi nsion on from from offic office e: 4. Remov wher where e ther there e is no cons constit titut utio iona nall or statutory declaration of ineligibility for suspension or removal from office, the courts may not impose the disability
5. Previous tenure of office : for example, a person who has been elected and has held the office of President is absolutely disqualified for reelection
6. Consecutive terms: a.
Vice Vice-P -Pre resi side dent nt = 2 cons consec ecut utiv ive e terms b. Senato Senatorr = 2 cons consecu ecutiv tive e term terms s c. Repre Represen sentati tative ve = 3 consec consecutiv utive e terms d. Elective local officials = 3 consecutive terms i. Volun olunta tary ry renu renunc ncia iatio tion n of the the office for any length of time shall not be considered as an interruption in the continuity of his service for the full t erm for which he was elected.
7. Hold Holdin ing g more more than than one one offi office ce:: to preve prevent nt office offices s of public public trust trust from from
accumulating in a single person, and to prev preven entt indi indivi vidu dual als s from from deri derivi ving ng,, direct directly ly or indire indirectl ctly y, any pecun pecuniar iary y benefit by virtue of their dual positionholding
i. Civil ivil Lib Libertie rties s Unio nion v. Exec Execut utiv ive e Secretary 1.
Sectio tion 7, Artic ticle IX-B of the Constitution is meant to lay down the gener general al prohi prohibit bition ion agains againstt the holding of multiple offices or employme employment nt in the governm government ent subs subsum umin ing g both both elec electiv tive e and and appointive public officials, unless otherw otherwise ise allow allowed ed by law or by the the prim primar ary y func functi tion ons s of his his position. position. This provisio provision n should should not be applied to the President, Viceice-Pr Pre esid sident ent and cabin abinet et members since the Constitution, in Section 13, Article VII, prescribe prescribes s a stricter stricter prohibitio prohibition n on the mentioned officials.
2. To apply apply the exce except ptio ions ns found found in Section 7, Article IX-B to Section 13, Artic Article le VII VII would would oblite oblitera rate te the distinction set by the framers of the the Cons Consti titu tuti tion on as to the the high high-r -ran anki king ng offi offici cial als s of the the Executive branch. 3. Howe Howeve verr, the the proh prohib ibit itio ion n unde underr Section 13, Article VII is not to be inte interrprete reted d as cov coverin ering g positions held without additional com compens ensatio ation n in ex-off -offic icio io capacities as provided by law and as req requir uired by the the primar imary y func functi tio ons of the the conce oncern rne ed official’s office. 8. Relati Relations onship hip with with the appo appoint inting ing powe power r i. Except Exception ions s to rule rule on nepoti nepotism: sm: a. persons employed in a confidential capacity b. teachers c. physicians d. members of the Armed Forces of the Philippines
9. Office newly emo emolume lument nts s of increased
created or which hich hav have
the been
245 office
10. Bein Being g an elec electi tive ve offi offici cial al : elec electi tive ve officials are not eligible for appo appoin intm tmen entt or desi design gnat atio ion n in any any capacity to any public office or position during his tenure; he may be appointed provided he forfeits his seat
11. 11. Hav Having ing been a elective position
cand andidat idate e
for
any
12. Under the Local Government Government Code a. Thos Those e sent senten ence ced d by fina finall judg judgme ment nt for for an offen ffens se inv involv olving ing moral oral turpitude or for an offense puni punish shab able le by 1 year year or more more of impris imprison onmen ment, t, within within 2 years years after after serving sentence; b. Those removed from office as a result of an administrative case; c. Thos Those e convi onvict cted ed by final final judg judgme ment nt for violating the oath of allegiance to the Republic; d. Those Those with with dual dual citize citizensh nship; ip; e. Fugi Fugiti tiv ve from from justi justice ce in crim crimin inal al or non-political cases here or abroad; f. Perman manent ent resi resid dents ents in a for foreign ign country or those who have acquired the the right ight to resi resid de abro broad and contin continue ue to avail avail of the same right right afte afterr the the effe effect ctiv ivit ity y of the the Loca Locall Government Code; g. The insane insane or feeble feeble-mi -minde nded. d. •
IV. FORMATION OF OFFICIAL RELATION A. Modes of Commencing Official Relation Election Appointment Others: Succession by operation of law; Direct provision of law, e.g. ex-officio officers • •
office by by on one auth author oriz ized ed by law to make such selection
Extent Powers
of Limited
Comprehensive
Secur curity ity tenure?
of No.
Yes.
When deemed abandonment of prior office
Assumption of a designated position is not not deem deemed ed abandonment of the 1st position
Assump Ass umptio tion n of a 2nd appointive position is usually deemed abandonment of the first office.
2. Nature of Appointing Power The power to appoint is intrinsically an executiv executive e act involving involving the exercise exercise of discretion. discreti on. (Concepcion (Concepci on v. Paredes) The power and prerogative to a vacant position in the civil service is lodged with the appointing authority. •
•
3. Classification of Appointments Permanent : extended to a person possessing the requisite qualifications, including the eligibility required, for the position, and thus protected by the constitutional guaranty of security of tenure last lasts s unti untill the they are law lawfull fully y terminated •
•
• •
•
B. Election Select Selection ion or design designatio ation n by a popula popularr vote •
C. Appointment
•
1. Definition
Definition
Designation
Appointment
Imposition of of additional dutie duties s upon upon an exis existi ting ng
Selection of an indi indiv vidua iduall to occupy a cert certai ain n publi public c
Temporary : an acting appointment; appoin tment; it is extended to one who may not possess the requisite requisite qualificati qualifications ons or eligibility eligibility required by law for the position, and is revoca revocable ble at will, will, w/o the necess necessity ity of just cause or a valid investigation - lasts until a permanent permanent appointment appointment is issued Mere fact that a position belongs to the Care Career er Serv Servic ice e of the the Civi Civill Serv Servic ice e Comm Commis issi sion on does does not not auto automat matic ical ally ly conf confer er secu securi rity ty of tenu tenure re.. Wher Where e the the appointee doe not possess th e qual qualif ific icat atio ions ns for for the the posi positi tion on,, the the appointmen appointmentt is temporar temporary y and may be terminated at will
246 •
Acceptance of a temporary appointment results in the termination of official relationship with former position. (Romualdez III v CSC)
•
A mere designation does not confer security of tenure, as the person designated occupies the position only in an acting capacity (Sevilla v CA) Where the appointment is subject to conditions, it is not permanent. However, where the temporary appointment is for a fixed period, the appointment may be revoked revoked only at t he expiration of the period or if revocation made before such expiration, it must be for a valid cause.
•
-
•
•
•
•
4. Steps in Appointing Process For Appointments which require confirmation:
•
•
Regular Appointments 1. Nomination by the President 2. Confirmation by the Commission on Appointments 3. Issuance of the commission 4. Acceptance by the appointee
•
For Appointments which do not require confirmation 1. Appointment by the appointing appointing authority 2. Issuance of the commission 3. Acceptance by the appointee
Note Note:: Wher Where e the the app appoint ointme ment nt is to the the career service of the Civil Service, attestation of the Civil Service Commission is required 3. Presidential Appointees •
-
The follow following ing shall shall be nomin nominate ated d and appoin appointed ted by with with the consent consent of the Commission on Appointments Heads Heads of the execu executiv tive e depart departmen ments ts (Art. VII, Sec. 16, 1987 Const.); Ambassadors (ibid); Othe Otherr publ public ic mini minist ster ers s and and cons consul uls s (ibid); Officers of the armed forces from the rank or colonel or naval captain (ibid);
The follow following ing can be appoin appointed ted by the Pres Presid iden entt with witho out the the nee need for CA approval All other other office officers rs of the gove governm rnment ent whose appointments are not otherwise provided for by law; Those whom he may be authorized by law to appoint; Members of the Supreme Court; Judges of lower courts; Ombudsman and his deputies Kinds of Presidential Appointments Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments, and continues until the end of the term. Ad interim: made while Congress is not in session, before confirmation by the Commission on Appointments; immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. This is a permanent appointment and it being subject to confirmation does not alter its permanent character.
•
Ad-Interim Appointments 1. Nomination by the President 2. Issuance of the commission 3. Acceptance by the appointee 4. Confirmation by the Commission on Appointments •
Other officers whose appointments are veste ested d in him him by the the Cons Consti titu tuti tion on (ibi (ibid) d),, incl includ udin ing g Consti nstitu tuti tion ona al Commissio Commissioners ners (Art. IX-B, IX-B, Sec. 1 (2) for for CSC; CSC; Art. Art. IX-C IX-C,, Sec. Sec. 1 (2) (2) for COME COMELE LEC; C; Art. Art. IX-D IX-D,, Sec. Sec. 1 (2) for for COA).
o
o
Recess Recess appointme appointment nt power power keeps keeps in contin tinuous operation ion th e busi busine ness ss of gov governm ernmen entt when when Congress is not in session. The appointment shall cease to be effe effect ctiv ive e upon upon reje reject ctio ion n by the the Commission on Appointments, or if not acted upon, at th e adjournm adjournment ent of the next session, session, regular or special, of Congress.
Matibag v. Benipayo (April 2, 2002) interi rim m appo An ad inte appoin intm tmen entt is a permanent permanent appointmen appointmentt because because it takes takes effect effect immediatel immediately y and can no longer longer be with withdr draw awn n by the the Pres Presid iden entt once once the the appoin appointee tee has has qualifie qualified d into office office.. The fact that it is subject to confirmation by the Commi Commissi ssion on on Appoin Appointme tments nts does does not alte alterr its perm perman anen entt chara characte cterr. The The
247 interim Consti Constituti tution on itself itself makes makes an ad interim appoin appointme tment nt perman permanent ent in chara characte cterr by making it effective until disapproved disapproved by the Commission on Appointments or until the next adjournment of Congress. ad inte interrim An appo appoin intm tmen entt is distinguishable from an “acting” appointme appointment nt which which is merely merely temporar temporary y, good until another permanent appointment is issued. Said appointment is also distinguished fro from the exercise ise of presidentia tial prerogati prerogative ve requiring requiring confirmat confirmation ion by the Com Commis missio sion on App Appointm intme ents nts when hen Congress Congress is in session. session. In the latter, the Presid President ent nomin nominate ates, s, and only only upon upon the consent of the Commission on Appointments may the person thus named assume assume office. office. It is not so with with referenc reference e to ad interim appointments, as they take effect at once. The individual chosen may may thus thus qual qualif ify y and and perf perfor orm m his funct functio ion n without loss of time.
ad inte interrim In t h is case, th e appointments of the COMELEC Commissioners, being permanent appointments, do not violate th e Constitutional prohibition on temporary or acting ing appoint intments of COMELEC Commissioners. Moreover, the failure of th e Commissio Commission n on Appointme Appointments nts to confirm confirm interi rim m appoin the ad inte appointme tment nt does does not not amou amount nt to a disa disapp ppro rov val by the the said said Commissio Commission. n. There There is no dispute dispute that that an ad interim interim appointee appointee disapprov disapproved ed by the COA COA can can no long longer er be exte extend nded ed a new new appoin appointme tment. nt. On the other other hand, hand, a bybypassed appointee, or one whose appoin appointme tment nt has not not been been finall finally y acted acted upon upon the the meri merits ts by the the COA, OA, may may be appointed again by the President.
D. Qualification Standards and Requirements under the Civil Service Law 1. Qualification Standards Express the minimum requirements for a class of positions in terms of education, train training ing and experi experienc ence, e, civil civil servi service ce eligib eligibili ility ty,, physi physical cal fitness fitness,, and other other qualitie ties require ired for for successful performance. performance . (Sec. 22, Book V, EO 292) •
•
•
•
It shal shalll be the the resp respon onsi sibi bili lity ty of the the departme departments nts and agencies agencies to establish, establish, administer and maintain the qualification standa standard rds s on a contin continuin uing g basis basis as an incentive to c career areer advancement. (Sec. 7, Rule IV, Omnibus Rules) Their establishment, administration, and maintenance shall be the responsibility of the the depa depart rtme ment nt / agen agency cy,, with with the the assistance and approval of the CSC and in cons consul ulta tati tion on with with the the Wage age and and Position Classification Office (ibid) Shall be established established for all positions positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules)
2. Politi Political cal Qualif Qualifica icatio tions ns for an Office Office (i.e., membership in a political party) GENE GENERA RAL L RULE RULE:: Polit Politic ical al quali qualifi fica cati tion ons s are not required for public office. EXCEPTIONS: Mem Me mber bership ship in the the elect lecto oral o trib tribun unal als s of eith either er the Hous House e of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); o Party-list representation; o Commission on Appointments; o Vacancies in the Sanggunian (Sec. 45, Local Government Government Code) •
3. Property Qualifications In the cases cases of Maquer Maquera a v. Borr Borra a and Aurea Aurea v. COMELEC, COMELEC, the Supreme Supreme Court held held that that prop proper erty ty quali qualifi fica catio tions ns are are inconsistent with the nature and essence of the Republican system ordained in our Constitutio Constitution n and the principle principle of social social justice justice underlying underlying the the same. same. The Court Court reasoned out that "sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted shall not be dependent upo upon the the wealth alth of the the ind individ ividua uall concerne concerned. d. Social Social justice justice presu presuppos pposes es equal equal opportun opportunity ity for all, rich and poor alike, alike, and that, acco according rdingly ly,, no person person shall, by reason of poverty, be denied the chance to be elected to public office." 4. Citizenship Aliens not eligible to public office •
•
5. Effe Effect ct of remo remova vall of qual qualif ific icat atio ions ns during the term The officer must be terminated. •
6. Effect of pardon upon disqualification disqualification to hold public office
the
248 •
GENE GENERA RAL L RULE: RULE: A pard pardon on shal shalll not not work the restoration of the right to hold public public office office.. (Art. (Art. 36, Revise Revised d Penal Penal Code) EXCEPTIONS: Where such right to hold public office o is expressly restored by the terms of the pardon (Art. 36, RPC); o When When a person person is grant granted ed pardon pardon beca becau use he did not not com commit mit the the offens offense e impute imputed d to him (Garci (Garcia a v. Chairman, COA)
have been otherwise satisfied, it has no choice but to attest to the appointment. It cannot order the replacement replacement of the appoin appointee tee simply simply becau because se it consid considers ers another employee to be better qualified. (Lapinid v. CSC) •
E. Discretion of Appointing Official •
•
•
•
•
Disc Discre reti tion on,, if not not plen plenar ary y, at leas leastt suffi suffici cien ent, t, shou should ld thus thus be grant granted ed to those entrusted with the responsibility of adminis administer tering ing the office officers rs conce concerne rned, d, primarily primarily the depar department tment heads. heads. They are are in the the most most favo favora rabl ble e posi positi tion on to dete etermine mine who can can best est fulf fulfil illl the the func functio tions ns of the the offic office e thus thus vacate acated. d. Unless, therefore, the law speaks in the most mandator mandatory y and peremptor peremptory y tone, considering all the circumstances, there shoul hould d be, be, as the there has has bee been, full full recogn recognitio ition n of the wide wide scope scope of such such disc discre retio tiona nary ry autho authori rity ty.. (Rey (Reyes es v. v. Abeleda) Appointment is an essentially discr iscre etio tionar nary power and and must must be perfor performed med by the officer officer in which which it is vested, the only condition being that the appointee should possess th e qualificatio qualifications ns required required by by law. law. (Lapinid (Lapinid v. CSC) The discretion of the appointing authority is not only in the choice of the person who is to be appointed but also in the nature and character of character of the appointment intended (i.e., whether the appointment is permanent or temporary). Appo Appoin intm tmen entt is gene genera rall lly y a poli politic tical al question so long as the appointee fulfills the minimum minimum qualificatio qualification n requirem requirements ents prescribed by law. The only function of the CSC is to review the the appo appoin intm tmen entt in the the ligh lightt of the the requir requirem ement ents s of the Civil Civil Servic Service e Law, Law, and when it finds the appointee to be qualified and all other legal requirements
•
•
•
•
To hold hold that that the the Civ Civil Serv ervice ice Law requir requires es that that any vacancy vacancy be filled filled by prom promot otio ion, n, tran transf sfer er,, rein reinst stat atem emen ent, t, reempl reemploy oymen ment, t, or certi certific ficatio ation n in that that order would be tantamount to legislative appointmen appointmentt which is repugnant repugnant to the Constitution. The requirement requirement under the Civil Civil Servi Service ce Law that that the appoin appointing ting power set forth the reason for failing to appoint the officer next in rank applies only only in cas cases es of promo promotio tion n and not in case cases s wher where e the the appo appoin inti ting ng powe powerr chooses chooses to fill the vacancy vacancy by transfer transfer,, reins einsta tate tem ment, nt, reem eemplo ployment ent or cert certif ific icat atio ion, n, not not nece necess ssar aril ily y in that that orde orderr. (Pin (Pined eda a v. v. Clau Claudi dio) o) (c.f (c.f.. highlig highlighte hted d part part in paragr paragraph aph in next next column) The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its authority being limite limited d to appro approvin ving g or revie reviewin wing g the appointment in the light of th e requir requirem ement ents s of the Civil Civil Servic Service e Law. Law. When the appointee is qualified and all the legal requirements are satisfied, the CSC has no choice but to attest to the appointment. appointme nt. (Luego v. CSC) Where the palpable excess of authority or abuse of discretion in refusing to issue promotion promotional al appointme appointment nt would would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. appointments. (Gesolgon v. v. Lacson) For For the the appo appoint intme ment nt to be valid, alid, the the positi sitio on must must be vacan acantt (Co (Costin stin v Quimbo) While the Civil Service Law grants career service service officers officers preferenc preference e in promotion promotion under under the “next-in-ra “next-in-rank” nk” rule, it is not mandatory that the appointing authority fill fill a vacan acancy cy by prom promot otio ion, n, as the the appointing appointing authority authority should should be allowed allowed the the choi choice ce of men men of his his confi confide denc nce. e. Provided they are qualified and eligible.
249 Sec. 9, Chapter II, Title III Book IV of the the Admin dmin Code provid ovides es that that all all provincial and city prosecutors and their assi assist stan ants ts shal shalll be appo appoin inte ted d by the the President President upon recommen recommendation dation of the Secretary Secretary of Justice. Justice. The phrase phrase “upon “upon recommendation of the Sec. of Justice” shou should ld be inte interp rpre rete ted d to be a mere mere advise, which is persuasive in character but is not binding or obligatory upon the person to whom it is made.
•
F. Effectivity of Appointment An appointme appointment nt takes takes effect effect immediatel immediately y upon upon its its issu issuan ance ce by the the app appoint ointin ing g author authority ity.. (Rule (Rule V, V, Sec. 10, 10, Omnibus Omnibus Rules). •
G. Effects of a complete, irrevocable appointment •
final
and
GENE GENERA RAL L RULE: RULE: An appo appoint intme ment nt,, once once made, is irrevocable and not subject to reconsideration. A completed appointment vests a legal right. It cannot be taken away away EXCEPT for cause, and with previous notice and hearing (due process). Qualification: Where the assent, confirmation, or approval of some other offic officer er or body body is need needed ed befo before re the the app appointm intme ent may be issu issue e and and be deemed complete. EXCEPTIONS: When the appointment is an absolute nullity (Mitra v. Subido); When there is fraud on the part of the appointee (Mitra v. Subido); Midnight appointments A President or Acting President is o prohibited from making appointments 2 months imm immedia ediate tely ly befo efore the the next presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.) Exception: Temporary o appointments to executive positions when continued vacan vacancies cies therei therein n will will prejud prejudice ice public public service service or endanger endanger public safety. •
•
•
H. Jur Jurisdi isdict ctiion of the the Civi Civill Servi ervice ce Commission (CSC) The The foll follow owin ing g are are with within in the the excl exclus usiv ive e jurisdiction of the CSC: Disciplinary cases and cases cases involving involving “personnel “personnel action” action”
affe affect ctin ing g the the empl employ oyee ees s of the the Civi Civill Service, including “appointment through cert certif ific icat atio ion, n, prom promot otio ion, n, tran transf sfer er, reinst reinstate ateme ment, nt, reemp reemploy loymen ment, t, detail detail,, reassignment, demotion and separation,” separation,” as well as empl emplo oyment statu tatus s and qualification standards. Includes the authority to recall an appo appoint intme ment nt whic which h has has been been init initia ially lly approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations. The CSC is not a co-manager or surrogate administrator of government offices and agen agenci cies es.. Its Its auth author orit ity y is limi limite ted d to approving or reviewing appointments. I. Appointments to the Civil Service SCOPE: SCOPE: Embraces all branches, subd subdiv ivis isio ions ns,, inst instru rume ment ntal alit itie ies s and and agencies agencies of the Governm Government, ent, including including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service a) Career Service – Entrance based on merit erit and and fitn fitne ess dete deterrmine ined by competitiv competitive e examinatio examinations, ns, or based based on highly tec technical ical quali alifica ications, opportunit opportunity y for advancem advancement ent to higher higher career positions and security of tenure. b) Non-career Service – Entrance on base bases s othe otherr than than thos those e of the the usua usuall test testes es.. Tenur enure e limi limite ted d to a peri period od specified by law or which is coterminous with with the the appo appoin intin ting g auth author ority ity or the the dura durati tion on of a part partic icul ular ar proj projec ect. t. Ex. Ex. elective officials, Department Heads and Members of Cabinet •
•
Requisites: Requisites: (i) Shall Shall be made made only only accor accordin ding g to merit and fitness to be determined, as far as practicable (ii) By competitive examination Exempt from the competitive exa examin minati ation requi equire rem ments ents are appointments to positions which are: Policy determining - in which the officer lays down principal principal or fundamenta fundamentall guid guidel elin ines es or rule rules; s; or formul formulate ates s a method method of action for government or any of its subsidiaries
250 Primarily Confidential – denoting not not only only confi confide denc nce e in the aptitude of th e appointee appointee for the duties of the office but primarily clo close inti intima mac cy which hich ensures freedom of int intercourse with ithout embarrassment or freedom from misgivings or betrayals on conf confid iden enti tial al matte matters rs of the state (“Pr (“Pro oximit imity y Rule Rule”” as enunciated in De los Santos v Mallare) Highly Highly Techni Technical cal – requ requir ires es posses possessio sion n of techni technical cal skill or tra training in a superior degree. ex. City Legal Officer
the affected persons are entitled to paymen paymentt of salari salaries es for servic services es actually rendered at a rate fixed in their their promo promotio tional nal appoin appointme tments nts (Sec (Sec.. 13 of the the Omni Omnibu bus s Rule Rules s Implementing EO 292) For this rule to app apply, ly, the the foll follo owing ing must ust concur: a) there must be a series of promotions b) all promotional appoin appointme tments nts are simultaneously sub submitt mitted ed to the the Commis mmissi sion on for for approval c) the Commission disa disapp ppro rov ves the the appo appoin intm tmen entt of a person to a higher position.
NOTE NOTE:: It is the the natu nature re of the the positio tion which determines whet whethe herr a posi positi tion on is poli policy cy determining, primarily confidential or highly technical
Appointment through Certification is issued to a person who has been selected from a list of qualified persons persons certified certified by the Civil Service Service Commissio Commission n from an appropria appropriate te register of of eligibles, and who meets all the qualifications prescribed for the position
Other Personnel Actions Promotion is a movement from one position to ano another ther with ith incr incre ease ase in duti duties es and and responsib responsibilities ilities as authorize authorized d by law and usually accompanied by an increase in pay.
Transfer is a movement from one position to another which is of equivalent rank, level or salary salary without without break break in servi service. ce. This may may be impo impose sed d as an admi adminis nistr trat ativ ive e remedy. An uncons unconsent ented ed trans transfer fer viol violate ates s security of tenure. However this does not apply to a holder of a temporary appoin appointme tment nt or to Career Career Execut Executive ive Servic Service e Perso Personne nnell whose whose status status and salaries are based on their ranks and not on the positions to which they are assigned
(i) Next-in-rank Next-in-ran k rule rul e. The T he person pers on next ne xt in rank shall be given preference in promo omotio tion when hen the the positi sitio on immediately above his is vacated. But the appoin appointin ting g author authority ity still still exer exerci cise ses s disc discre retio tion n and and is not not bound by this rule, although he is requ requir ired ed to spec specify ify the the “spe “speci cial al reason or reasons” for not appointing the officer next-in-rank (ii) (ii) Auto Automa matic tic Reve Revers rsio ion n rule rule – All All appointments involved involved in a chain of prom promot otio ions ns must must be subm submitt itted ed simultaneously for approval by the Commi Commissi ssion. on. The disapp disappro rova vall of the the appo appoin intm tme ent of a perso rson prop propos osed ed to a high higher er posi positi tion on invalidates the promotion of those in the lower positions and auto automa mati tica cally lly rest restor ores es them them to their former former positions positions.. However However,,
Reinstatement Any Any pers person on who who has has been been permanently appointed to a position in the career service and who has, through no delinq delinquen uency cy or miscon misconduc duct, t, been been separated therefrom, may be reinstated to a position in the same level for which he is qualified. - It is techni technical cally ly the issu issuanc ance e of a new appointme appointment nt and is discretio discretionary nary on the part of the appointing power; it cannot be the subject of an application for a writ of mandamus - However, the bestowal of executive clemen clemency cy comple completel tely y oblite oblitera rates tes the adverse adverse effects effects of the administr administrativ ative e
251 deci decisi sion on whic which h foun found d him him guil guilty ty of dish ishonesty. T h is signifies tha that petitio petitioner ner need need no longer longer apply apply for reinstatem reinstatement ent as he is restore restored d ipso facto upon the issuance of clemency
Detail is the movement of an employee from one one agen agency cy to anot anothe herr with withou outt the the issuan issuance ce of an appoin appointme tment, nt, and shall shall be allowed only for a limited period in the the cas case of emplo mploy yees occup cupying ing profes professio sional nal,, techni technical cal and scien scientifi tific c positions. It is temporary in nature. Reassignment An employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary. salary. It is a managemen managementt prerogati prerogative ve of the CSC and any dept or agency embraced in the Civil Civil Servic Service e and does does not consti constitut tute e removal removal without cause. But like like detail detail,, the reass reassign ignmen mentt should have a definite date or duration. Other therw wise ise, it is tant tantam amo ount unt to a floating assignment, thus a diminution in status or rank •
Reemployment Names Names of person persons s who have have been been appoin appointed ted perman permanent ently ly to positions in the career service and who hav have been been sepa separrated ated as a resu result lt of reduction in force and/or reorganization, shall shall be ente entere red d in a list list from from whic which h select selection ion from from reemp reemploy loymen mentt shall shall be made.
V. ASSUMPTION AND TERM OR TENURE OF OFFICE
A judge may not be made a judge of anothe anotherr distri district ct withou withoutt his consen consent. t. Appointment and qualification to office are separate and distinct things. things. Appointment is the sole sole act of the the appointee appointee.. There is is no powe powerr whic which h can can comp compel el a man man to accept the office.
2. Effect of Failure to Qualify Failure to qualify is deemed evidence of refusal of the office. It is a ground for removal If qualification is a condition precedent, failure failure to qualify qualify ipso facto facto deeme deemed d rejection of the office If not condit condition ion prece precede dent, nt, failur failure e is not ipso facto rejection Justifiable reasons for delay in qualifying: sickness, sickness, accident, and other fortuitous fortuitous events that excuse delay. The Omnibus Election Code provides that the office officerr must must qualify qualify (i.e., (i.e., take take his oath of office and assume office) within 6 months months from from proclama proclamation. tion. Otherwis Otherwise, e, the position will be deemed vacant. Exception: Exception: If the non-assum non-assumption ption of offi office ce is due due to a caus cause e beyo beyond nd his his control. Qual Qualifi ifica catio tion n is sign signifi ifica cant nt beca becaus use e it designates when security of tenure begins. •
•
•
•
•
B. Oath of Office 1. Definition An oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says. It is not indi indisp spen ensa sabl ble. e. It is a mere mere incident to the office and constitutes no part of the the office office itself. itself. However However,, the Pres Presid iden ent, t, Vice Vice-Pr -Pres esid iden entt and and Acti Acting ng President are required by th e Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution execution of their office. Such oathoathtaking is mandatory. •
•
A. Qualification to Office 1. Appointment and Qualification to Office Distinguished •
•
Appointment is the act of being designated to a publ public ic offi office ce by the the appo appoin inti ting ng authority. Qualification is the act of signifying one's acceptance of the appointive position. This generally consist ists of the the tak taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by by law. (Mechem)
Borromeo v. Mariano
•
However, as per Nachura Only when the public officer has satisfied the prerequisite of taking his oath of office can his right his position be considered plenary and complete. Until then, the holdover officer is the rightful occupant (Lecaroz v Sandiganbayan) Sandiganbayan)
252 2. Persons Authorized to Administer Oaths Notaries public; Judges; Clerks of court; Secretary of House / Senate; Secretary of Exec. Departments; Bureau Directors; Register of Deeds; Provincial governors; governors; City mayors; Municipal mayors; Any Any othe otherr offi office cerr in the the serv servic ice e of the the gove govern rnme ment nt of the the Phil Philip ippi pine nes s whos whose e appointment is vested in the President Any other officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath
•
• •
Public Public ministe ministeria riall office officers rs whose whose action actions s may may affe affect ct the the righ rights ts and and inte intere rest sts s of individuals.
• • • • • • • • •
3. Effect of Failure to Give Bond within the Prescribed Period If not condition precedent, failure to give bond bond mere merely ly cons constit titut utes es a grou ground nd for for forfeiture of the office. It is not forfeiture of the office ipso facto. If condition precedent, failure to give bond within the prescribe prescribed d period period renders renders the office vacant.
•
•
•
3. Persons Obliged to Administer Oaths in All Instances, Notaries public Municipal judges Clerks of court
Term of Office De jure
Tenure of Office De facto
Fixed and definite period of time during which th e offic officer er may may clai claim m to hold hold the office as of right
Perio Period d during during which which the incumbent incumbent actually actually holds the the off offic ice. e. It may may be shorter than the term.
• •
D. Term and Tenure of Office
•
4. Time of Taking the Oath of Office A public officer must take his oath of office before entering upon the discharge of his duties.
1. Term Term of Offi Office ce and and Tenu Tenure re of Offi Office ce Distinguished
•
2. Powe Power r of the the Legi Legisl slat atur ure e to Fix Fix and and Change the Term of Office Where the term is fixed by the Const Constitu itutio tion, n, Congr Congress ess has no power power to alter the term. But such term of office can be shortened or extended by the vote of the people people ratif ratifyin ying g a const constitut itution ional al amendment. Where the term is not fixed, Congress may fix the terms of officers other than those provided for in the Constitution. Cong Congre ress ss has has the the powe powerr to chan change ge the the tenure of officers holding offices created by it. However, if the term is lengthened and made made to appl apply y to the the incu incumb mben ents ts,, this this coul could d be tant tantam amou ount nt to a legi legisl slat ativ ive e appointment which is null and void. •
5. Requalification If a publ public ic offic fficer er is re-e re-ele lect cted ed or rereappointed, he must take another oath and fulfill the other condition precedents before assu assumi ming ng offi office ce.. The The oath oath and othe otherr qualifications made prior to assumption of his prev previo ious us offi office ce will will not not be valid valid for for subsequent terms of office.
•
C. Giving of Bonds 1. The Bond It is in the nature of an indemnity bond rather than a penal or forfeiture bond. It is an obligation binding the sureties to make good the officer’s default. It is requ requir ired ed not not for for the the bene benefit fit of the the office holder, but for the protection of the public interest and is designed to indemnify those suffering loss or injury by reason of misconduct or neglect in office. •
•
•
2. Persons Required to Give Bond Acco Accoun unta tabl ble e publ public ic offic officer ers s or thos those e to whom are entrusted entrusted the collection collection and custody of public money;
•
•
•
3. When Term of Office Dependent upon "Pleasure of the President" Congress Congress can legally legally and constitutio constitutionally nally make ake the the tenu tenurre of certa ertain in offic fficia ials ls depe depend nden entt upon upon the the plea pleasu sure re of the the President. (Alba v. Evangelista) Where the office is held at the pleasure of the appointing power and such appointing power can exercise the power of removal at his mere discretion, discretion, the public officer may be removed without notice or hearing. (Alba v. Evangelista)
•
•
253 4. No Vested Interest in Term of Office Public office is a privilege revocable by the sovereig sovereignty nty at will. An incumben incumbentt cannot validly object to the alteration of his term since he he has no vested vested right right in his office. office. (Greenshow v. U.S.)
•
2. Where no time is fixed The term will generally begin on the date of the election or the appointment.
•
3. Where the law fixing the term of office is ambiguous The one that fixes the term at the shortest period should be followed
•
5. Term of Office Not Extended by Reason of War There There is no princi principle ple,, law or doctr doctrine ine by which the term may be extended by reason of war. war. (Nueno, et al. v. v. Angeles) •
4.
E. Doctrine of Holdover
•
1. The Doctrine A public officer whose term has expired or services have been terminated is allowed to cont contin inue ue hold holdin ing g his his offi office ce until until his his successor is appointed or chosen and had qualified. (Mechem)
In cas case of vaca vacan ncy and and both the the duration of the term of office and the time of its commencement and termination is fixed Person elected to fill the vacancy shall hold the same only for the unexpired portion of the term
•
2. Purpose of the Hold-Over Rule Public interest. It is to prevent a hiatus in the public service pending the time when a successor may be chosen and inducted into office.
•
3. Holding-Over Rules Where the law provides for it: The office does not become vacant upon the expi expirratio ation n of the the term term if ther there e is no successor elected and qualified to assume it. Incu Incumb mben entt will hold hold-o -ove verr even even if beyond the term fixed by law. Where the law is silent: Unless hold-over is exp express ressly ly or imp implie liedly dly pro prohib hibite ited, incumb incumbent ent may hold-o hold-ove verr. Law-ma Law-makin king g body favors hold-over except when the law fixes fixes a spec specifi ific c date date for for the the end end of the the ter term, ther there efore fore the there is an impl implie ied d prohibition against hold over Where the Constitution limits the term of a publ public ic offic officer er and and does does not not prov provid ide e for for hold-over: Hold-over is not permitted. Note: Art 237 of the Revised Penal Code pena penaliz lizes es any any publ public ic offi office cerr who who shall shall continue to exercise the duties and powers of his office beyond the period provided by law.
•
•
5. Where only the duration of the term is fixed but not the beginning or end of the term Perso Person n select selected ed to fill the vacan vacancy cy may serve the full term
•
6. Where an officer is appointed or office created to perform a single act Office terminates with the accomplishment of the purposes for which it was called into being.
•
VI. VI. POWE POWERS RS AND AND OFFICERS
DUTI DUTIES ES OF PUBL PUBLIC IC
A. Source of Government Authority The people, the sovereignty The authority of public officers consists of those powers which are: (a) Expressly Expressly confer conferred red upon upon him by the act appointing him (b) Expres Expressly sly annexe annexed d to the office office by law (c) (c) Atta Attach ched ed to the the offi office ce by comm common on law as incidents to it
• •
•
•
•
During this period of hold-over, the public officer is a de jure officer
F. Commencement of Term of Office 1. Where the time is fixed The term will begin on the specified date.
•
B. Scope of Powers of a Public Officer The duties duties of a public public office office includ includes es all thos those e whic which h trul truly y are are with within in its its scop scope e Doctr octrin ine e of Nec Necessa essary ry under th e Implication: (1) those which are essential to the accomplishment of the main purpose for which the office was created; or (2) (2) thos those e whic which, h, alth althou ough gh inci incide dent ntal al or coll collat ater eral al,, are are germ german ane e to and and serv serve e to promote promote the acco accomplis mplishmen hmentt of the principal principal purpose (Lo Cham v. Ocampo). •
254 •
Needless to say, powers expressly granted by law are within the scope of the public office.
delegated? Exception: When th e power to substitute / deleg elegat ate e has has been given
Exception: When When the the law law expressly requires the act to be perf perfor orme med d by the the offic ffice er in person and / or proh prohib ibit its s such such delegation
When is mandamus proper?
Only if the duty to do somet something hing has been een dela delay yed for an unreasonable period period of time. In these cases, mandamus mandamus will usually usually compel compel the the offi office cerr to make a decis ecisio ion, n, but but will not dictate dictate as to what the decision will or should be.
In all cases.
Is public officer liable?
Gene Genera rally lly not not liable Exceptions: if ther there e is frau fraud d or malice
Liab Liable le if duty duty exercised contrary contrary to the manner pres prescr crib ibed ed by law.
C. Territoria Territoriall Extent Extent of Powers Powers of Public Officer •
•
GENERAL RULE: Where a public officer is authorized by law to perform the duties of his office at a particular place, action at a place place not not author authorize ized d by law is ordina ordinaril rily y invalid. (Note: This rule is applicable to all public officers whose duties are essentially local in nature, e.g. judges.) EXCEPTIONS: Consuls; Police officers, who may arrest persons for crimes committed outside Philippine territory; Doctrine of hot pursuit
D. Duration of Authority of Public Officers The The dura durati tion on of the the auth author orit ity y of publ public ic officers is limited to that term during which he is, by law, invested with the rights and duties of the office.
•
E. Construction of Grant of Powers Strict construction. construction. Grant of powers will will be construed as conferring only those powers which are expressly imposed or necessarily implied.
•
F. Classification of Powers
Definition
Can
be
Discretionary
Ministerial
Acts which require th e exercise of reason in determining when when,, wher where, e, and how to exercise ise th e power
Acts Acts which which are perfor performed med in a give given n state state of facts, in a prescribed manner, in obed bedienc ience e to the mandate of legal authority authority,, withou withoutt regard regard to or th e exerc exercise ise of his own own judg judgme ment nt upon th e propriety or impro impropri priety ety of the act done (Lamb v. Phipps)
Generally, ly, NO.
Generally, YES.
1. Discretionary Power Disc Discre reti tio on, when when app applie lied to pub public lic func functi tion onar arie ies, s, mean means s a powe powerr or righ rightt conf confer erre red d upon upon them them by law law of actin acting g offic fficia iallly in certa rtain circ ircums umstanc tance es, acco accord rdin ing g to the the dict dictat ates es of thei theirr own own judgment and conscience, uncontrolled by the the judg judgme ment nt or cons consci cien ence ce of othe others rs.. (Lamb v. Phipps) General Rule: Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes on him him the the righ rightt or duty duty to exer exerci cise se judgm judgment ent in refer referenc ence e to any matter matter in which which he is requir required ed to act (Aprue (Aprueba ba v. Ganzon). Exception:
•
•
•
(i) Wher Where e ther there e is grav grave e abus abuse e of discre discretio tion, n, manife manifest st injust injustice ice or palp alpable able exc excess ess of autho uthori rity ty
255 equivalent to a denial of a settled righ rightt to whic which h the the petit petitio ione nerr is entit entitle led, d, and and wher where e ther there e is no other other plain, plain, speed speedy y or adequa adequate te remedy. remedy. (First Phil. Holdings Corp v Sandiganbayan) Sandiganbayan) (j) Writ may issue to compel the exercise of discretion but not the disc discre reti tion on itse itself lf (BF (BF Home Homes s v National Water Resources Council) •
Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes on him the righ rightt or duty duty to exer exercis cise e judg judgme ment nt in refe refere renc nce e to any any matte matterr in whic which h he is required to act. The privilege of operating a market stall stall unde underr licen license se is not not abso absolu lute te but but revocable under an implied lease contract subject to the general welfare clause.
Judgment v Discretion judicia iciall func functi tio on, the the Judgment is a jud determination of a question of law. There is only one way to be right. Discretion is the faculty conferred upon a court or other officer which he may decide the question either way and still be right.
2. Ministerial Power A purely purely minister ministerial ial act is one which which an officer or tribunal performs in a given state of fact facts, s, in a pre prescri scrib bed manne annerr, in obedience to the the mandate of legal authority, authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. done. A ministerial act is one to which nothing is left to the discretion of the person who must perform. It is a simple, definite duty arising under conditions admitted or proved to exist and impo impose sed d by law law. It is a prec precis ise e act, act, accu accura rate tely ly mark marked ed out, out, enjo enjoin ined ed upon upon particular officers for a particular purpose. (Lamb v. Phipps)
Mandam Mandamus us never never lies lies to enforc enforce e the performance of contractual obligations.
Miguel v. Zulueta Publ Public ic offic ffice ers may prop roperly erly be comp compel elle led d by mand mandam amus us to remo remove ve or rectify an unlawful act if to do so is within their official competence.
•
Lamb v. Phipps Auditors Auditors and comptrolle comptrollers, rs, as accounting officers, are generally regarded as quasi-ju quasi-judicia diciall officers officers.. They perform perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law. Except in such cases, cases, the actio action n of the the acco accoun untin ting g offic officer ers s upon upon claims coming before them for settlement and certification of balances found by them to be due, due, is not not merely merely minister ministerial ial but judicial and discretionary. discretionary. Mandamus will therefore not issue.
G. Duties of Public Officers 1. Gene Genera rall (Con (Const stit itut utio iona nal) l) duti duties es of public officers a) To be acco accoun unta tabl ble e to the peop people le;; to serve them with utmost responsibility, integrity, loyalty and efficiency’ to act with patriotism and justice, and to lead modest lives (Art. XI, Sec. 6) b) To submit submit a decl declar arat atio ion n under under oath of his ass assets ets,, liabil liabiliti ities es and new worth worth upon assumption of office and as often thereafter as may be required by law (Art. XI, Sec 17) c) To owe the the State State and and the Cons Constit titut utio ion n allegi allegianc ance e at all times times (Art. (Art. XI, Sec. Sec. 18) 2. Specific Cases The Solicitor Solicitor General’s General’s duty to represen representt the the gove govern rnme ment nt exce except pt in crim crimin inal al cases or civil cases for damages arising from felony, is mandatory (Gonzales v Chavez) The The gove govern rnme ment nt is not not esto estopp pped ed from from questi questioni oning ng the acts acts of its offici officials als,, more more so if they they are are erro errone neou ous s or irregular
Torres v. Ribo H. Time of Execution of Powers The powers of the Board of Canvassers Canvassers are quasi-judicial and therefore discretionary. Aprueba v. Ganzon
1. Where not indicated Within a reasonable time
•
2. Where indicated Merely directory
•
256 •
Exceptions: When there is something in the statute which shows a diff ifferent in t e n t (Araphoe City v. Union Pac); Where a disregard of the provisions of the statute would would injuriousl injuriously y affect affect a public interest or public right; When the provision is accompanied by negative words importing that the acts shall not be done in any other manner or time than that designated.
I. Ratification of Unauthorized Acts 1. If act was absolutely void at the time it was done Cannot be ratified 2. If merely voidable Can be ratified and rendered valid •
•
3. Govern vernm ment ent not esto estopp pped ed by the the unauthorized or illegal acts of officers As between an individual and his governm government, ent, the individual individual cannot cannot plead the void act of an official to shield him from the demand demand of the govern governmen mentt that that he (the individual) individual) fulfill an obligation obligation which he has contracted contracted with the government, government, after after the the bene benefit fits s accr accruin uing g to him him as a resu result lt of tha that obli oblig gatio ation n have ave been received. The government government can neither be estopped nor prejudiced by the illegal acts of its servants. (Government v. v. Galarosa) Galarosa ) •
Hilado v. Collector A tax circular issued on a wrong construction of the law cannot give rise to a vested right that can be invoked by a taxpayer.
I. Accou Accounta ntabil bility ity and Respo Responsi nsibil bility ity of Public Officers and Employees Norm of Performance of Duties: standards of personal conduct provided for in Sec. 4, RA 6713 Commitment to public interest; Professionalism; Justness and sincerity; Political neutrality; Responsiveness Responsiveness to the public; Nationalism and patriotism; Commitment to democracy; Simple living J. Prohibitions •
(a) Partis Partisan an politi political cal activi activity ty No offi office cerr or employee of the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (Sec. IX-B, Sec. 5(3)) The The Civi Civill Serv Servic ice e Law Law proh prohib ibit its s engaging directly or indirectly in any partis partisan an politic political al activi activity ty or taking taking part in any election except to vote; or use the official authority to coerce in the political activity of any person or body Armed Force shall be insulated from partisan politics. No member of the milit militar ary y shal shalll enga engage ge dire direct ctly ly or indire indirectl ctly y in any partis partisan an politic political al activity, except to vote However However, this prohibiti prohibition on does does NOT prev preven entt expr expres essi sion on of view views s on current current political political problems problems (Caltex v Bonifacio) This provision is diff from Sec. 79 BP 881 which makes it unlawful for any pers person on or any any poli politi tica call part party y to enga engage ge in elec electi tion on camp campai aign gn or part partis isan an poli politic tical al acti activi vity ty exce except pt duri during ng camp campai aign gn peri period od.. Elec Electi tion on campaign or partisan political activity refers to an act designed to promote the election or defeat of a candidate/s to public office. If done for for the the purp purpos ose e of enha enhanc ncin ing g the the chances of aspirants for nomination for candidacy to a public office by a politi litica call par party, ty, it shall hall not be consider considered ed as election election campaign campaign or partisan political activity. activity. •
•
•
•
(b) Addit Addition ional al or doubl double e compe compensa nsatio tion. n. No elec electiv tive e or appo appoint intiv ive e publ public ic offi office cerr or employee shall receive additional, double, 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 (Art. IX-B, Sec. 8)
(c) Prohib Prohibitio ition n
agains againstt loans. loans. No loan loan,, guar guaran anty ty,, or othe otherr form form of fina financ ncia iall accommod acco mmodation ation for any business business purpose purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the ff: 1) President 2) Vice President 3) Members of the Cabinet 4) The Congress 5) The Supreme Court
257
(d)
6) The Constitutional Commissions (7) The Ombudsman (8) (8) To any any firm firm to whic which h they they have have controlling interest during their tenure all not be Limit Limitati ation on on Labo Labore rers rs Shall assigned to perform clerical activities
One who intrudes into or usurps a public offic ffice e has has no right ight to the the sala salarry or emoluments attached to the office. 3. Some Some Cons Consti titu tuti tion onal al Prov Provis isio ions ns Affecting Salaries •
•
(e) Deta Detail il
or assi assign gnme ment nt No detail or reassignm reassignment ent shall be made within three months months befor before e any electi election on withou withoutt the approval of the Comelec •
(f) Nepotism All appointments made in favor of a relative (within the third civil degree of consanguinity or affinity) of the appointing auth author ority ity or the the chie chieff of the the bure bureau au or office, of the persons exercising immediate supervisio supervision n over over him are prohibited. prohibited. This covers all appointments and designations, includi including ng subseq subsequen uentt pers personn onnel el action actions s (ex. promotion, reinstatement etc).
•
VII. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS A. Right to Office It is the right to exercise the powers of the office to the exclusion of others. •
•
B. Right to Salary or Compensation
•
1. BASIS The legal legal title title to the office office and the fact that the law attaches compensation to his office •
2. GENERAL RULES A public officer is not entitled to compensation for services rendered under an uncons unconstitu titutio tional nal statut statute e or provis provision ion thereof. Exceptio tion: If some other statute provides otherwise. If no compen compensat sation ion is fixed fixed by law, law, the public officer is assumed to have accepted the office to serve gratuitously. After After servic services es have have been been rende rendered red by a publ public ic offi office cerr, the the comp compen ensa satio tion n thus thus ear earned ned canno annott be tak taken away by a subseq subsequen uentt law. law. Howeve Howeverr, he cannot cannot recover salary for a period during which he performed no services. One without legal title to office either by lawf lawful ul appo ppointm intme ent or elec lectio tion and qual qualif ific icat atio ion n is not not enti entitle tled d to reco recove verr salary salary or compe compensat nsation ion attach attached ed to the office.
•
•
•
•
No increase in the salaries of members of Congress shall take effect until after the expiration of the full term of the Members of the Senate and the House of Represe Representativ ntatives es who approve approved d the increase (Art. VI, Sec 10) Sala Salari ries es of the the Pres Presid iden entt and and Vice Vice Pres Presid iden entt shal shalll be fixe fixed d by law law and and shall shall not be decre decrease ased d during during their their tenure tenure.. No increa increase se shall shall take take effect effect until after the expiration of the term of the the incu incumb mben entt duri during ng whic which h such such increase was approved (Art. VII, Sec. 6) The salary of members of the Judiciary shall shall not be decre decrease ased d during during their their contin continuan uance ce in office office (Art. (Art. VIII, VIII, Sec. Sec. 10) howeve howeverr, imposi impositio tion n of incom income e taxes taxes on salari salaries es of judges judges does not constitute constitute unconstitut unconstitutional ional diminution diminution of salaries (Nitafan v Tan) Tan) Additional, double or indirect compensation are prohibited (Art. IX-B, Sec. 8) Standardiz Standardization ation of compensa compensation tion (Art. IX-B IX-B,, Sec. Sec. 5) RA 6758 6758,, the the Sala Salary ry Stan Standa dard rdiz izat atio ion n Law Law was was pass passed ed in comp complia lianc nce e with with the the cons constit titut utio iona nall provision.
4. Compensation not an element of public office Comp Compen ensa satio tion n is not not indis indispe pens nsab able le to public office. It is not part of the office but merely merely incident incident thereto thereto.. It is sometim sometimes es expre expressl ssly y provi provided ded that certain certain office officers rs shall receive no compensation, and a law creating an office without any provision for compens pensa atio tion may may carry arry with ith it the the impl implic icat atio ion n that that the the serv servic ices es are are to be rendered gratuitously. •
5. Salary, Wages, and Per Diems Defined and Distinguished Salary: time-bound Wages: service-bound Per Diem Diem:: allo allowa wanc nce e for for days days actu actual ally ly spent for special duties
• • •
6. Salary of Public Officer Not Subject to Attachment
258 •
•
The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid paid by him, him, and and appr approp opri riat ated ed for for the the payment of his debts. Mone Mo ney y in the the hand hands s of publ public ic offi office cers rs,, alth althou ough gh it may may be due due gov governm ernmen entt employees, is not liable to the creditors of the these employees in the the process of garnishme garnishment nt because because the sovereig sovereign n State cannot be sued in its own courts except by express authorization by statute. statute. (Director of Commerce and Industry v. Concepcion)
•
facto officer still continues to exercise dutie uties s and recei eceiv ve salar alarie ies s and and emoluments. an intruder / usurper: at all instances.
Monroy v. CA and del Rosario Where Where a mayor mayor filed filed a certi certific ficate ate of candidacy for congressman then withdrew such certificate and reassumed the position of mayor, thus preventing the vice-mayor from discharging the duties of the position of mayor, the mayor should reimburse to the the vice vice-m -may ayor or, as the the righ rightt righ rightf tful ul occup occupant ant of the positio position n of mayor mayor,, the salaried which he had received.
7. Future or Unearned Salaries Cannot be Assigned The salary or emoluments in public office are not consider considered ed the proper subject subject of barter and sale. (22 R.C.L. 541) •
8. Agree Agreemen ments ts Affect Affecting ing Compen Compensat sation ion Held Void An agreement by a public officer respecting his his comp ompensa ensati tion on may may right ightfu full lly y be considered invalid as against public policy where it tends to pervert such compensation to a purpose other than that for which it was intended, and to interfere with with the the offi office cer' r's s free free and and unbi unbias ased ed judgment in relation to the duties of his office. office. (This is usually usually with referenc reference e to unper unperfor formed med servic services es and the salary salary or fees attached thereto.)
Rodriguez v. Tan Wher Where e a duly duly proc procla laim imed ed elec electi tiv ve official who assumes office is subsequently ousted in an election protest, the prevailing party can no longer recover the salary paid to the ousted ousted officer. officer. The ousted officer, officer, who who acted acted as de facto officer officer during during his incumbency, is entitled to th e compensation, emoluments and allowances which are provided for the position.
•
9. Righ Rightt to Recov Recover er Sala Salary ry:: De Jure Jure Officer and De Facto Officer Where a duly proclaimed proclaimed elective elective official who assumes office is subsequently ousted in an election protest, the prevailing party can no longer recover the salary paid to the ousted officer. officer. The ousted officer, officer, who acte acted d as de fac facto offic fficer er durin uring g his incumbency, is entitled to th e compensation, emoluments and allowances whic which h are are prov rovide ided for for the the positi sitio on (Rodriguez v. Tan). Exce Excepti ption on:: If ther there e was was frau fraud d on the part of the de facto officer which would vitiate his election. A de jure officer recover from-the government: when the government contin continues ues to pay the de facto facto office officerr even after the notice of adjudication of the the prot protes estt in favo favorr of the the de jure jure officer. a de fact facto o offi office cer: r: when hen noti notice ce of adjudication of the title to the de jure offic officer er has has been been give given, n, and and the the de •
Exception: If there there was fraud fraud on the part of the de facto officer which would vitiate his election. 10. 10. Addit Addition ional al or Double Double Compen Compensa satio tion n Prohibited Additional There is only 1 position, but th e public officer is gettin tting g addit dditio iona nall compensation. . •
•
•
•
•
•
Double There are 2 positions, and and with with addi additi tion onal al functions an d emolum emolument ents s for both both positions
Pensions / gratuities are not considered as additional, double, or indirect compe compensa nsatio tion. n. (Sec. (Sec. 8, Art. Art. IX-B, IX-B, 1987 Constitution) By its very nature, a bonus partakes of an additional additional remuner remuneration ation or compensati compensation. on. (Peralta v. Auditor General) An allowance for expenses incident to the discharge of the duties of office is not an increase increase of salary salary, a prerequis prerequisite, ite, nor an emolument of office. office. (Peralta v. AuditorAuditorGeneral)
259 11. 11. Recove Recovery ry of Salar Salary y During During Period Period of Suspension If prev preven entiv tivel ely y susp suspen ende ded, d, he cann cannot ot recover salary. But If he is subsequently exonerated, he can. If he was given given penalty of remova removall from office, but was completely exonerated upon appeal appeal,, he can recov recover er back back wage wages s and other monetary benefits. If the reinstatement was not the result of exoneration but an act of liberality by the Court of Appeals, not entitled to compensation as he has not rendered any service If he was given given penalty of remova removall from office, but his penalty was commuted from removal to mere suspension, or demotion, he cannot cannot recov recover er becaus because e he was was still still foun found d guilt guilty y alth althou ough gh the the pena penalt lty y was was reduced. If the suspension / removal from office is unjustified, he can recover. •
•
because they have no official hours of work NOTE:: How NOTE However, this this ruli ruling ng may may be consid consider ered ed abando abandoned ned by the Loc Local al Gov’t Code which states in Sec. 81 that elective local officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials F. Right to Maternity Leave
•
•
•
C. Doctrine of Official Immunity 1. The Doctrine A publ public ic offi office cerr enjo enjoys ys qual qualif ifie ied, d, not not abso absolu lute te imm immun unity ity.. The The prot protec ectio tion n generally generally applies only to activities activities within the scope of office that are in good faith and are not reckless, malicious or corrupt. •
2. Purpose of the Doctrine To indi indire rect ctly ly prot protec ectt the the sove sovere reig ign n by pro protec tecting ting the the publ public ic offi offici cia al in the the performance of his governmental function As a result of the immunity extended, the fearless and effective administration of the policies of the government government is promoted.
G. Right to Retirement Pay Retir Retirem ement ent pay pay is liber liberally ally const construe rued d in favor of the retiree (Proferata v Drilon) The money value of the terminal leave of a reti retiri ring ng gove govern rnme ment nt offic fficia iall shal shalll comput computed ed at the retire retiree’ e’s s HIGHES HIGHEST T mont monthly hly sala salary ry (Bel (Belic icen ena a v Sec. Sec. of Finance) H. Others Right to reimburs reimbursement ement for expenses expenses incurred in the due performance of his duty. But a public officer who uses a government vehicle is not entitled to, nor can he charge charge,, a trans transpor portati tation on allowa allowance nce (Domin (Domingo go v COA, COA, Oct. Oct. 7, 1998) •
•
•
Right Right to be indemn indemnifie ified d agains againstt any liabili liability ty which which they they may incur in the bona fide discharge of their duties Right to longevity pay
•
•
•
3. Presidential Immunity from Suit Enjoyed only during the tenure of the President. After After his tenure tenure,, the Chief Chief Execu Executiv tive e cannot cannot invoke invoke immunity from suit for civil damages arising out of acts done by him while he was President (Estrada v Desierto, March 2, 2001) •
•
D. Right to Preference in Promotion But the right right does does not not prev prevail ail over the discretion of the appointing authority E. Right to Vacation and Sick Leave However, in Maleniza v COA, it was held that elective officials are not entitled to accrued vacation and sick leave credits
•
Sepa Separration ation Pay Pay to be give given n to Civi Civill Service employees who are separated from the service not for cause but by reason of reorganization (Sec. 16, Art XVIII) Righ Rightt to addi additi tion onal al allo allowa wanc nces es and and benefits benefits under under the Local Local Governm Government ent Code. Code. LGUs LGUs may may provid provide e additi additiona onall allowa allowance nces s and benef benefits its to nation national al government officials stationed to their municipality or city.
VIII. Liability of Public Officers General Rule: Rule: A public officer is not liable for injuries sustained by another as a consequence of official acts done within the scope of his official authority. Exception: Exception: As otherwise provided by law:
260 1. A publi public c offic officer er shall shall not be be civill civilly y liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or negligence (Sec. 38(1) Admin Code)
The wrongful wrongful acts acts or omissi omissions ons of a public public offic officer er may may give give rise rise to civi civil, l, crim crimin inal al and and administrative liability. liability. An action can proceed independently of the others. Dismissal or relief from the criminal action/liability does not carry with it relief f rom administrative liability
2. No subo subordi rdinat nate e office officerr or empl employ oyee ee 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 customs even if he acted under orders or instructions of his superiors (Sec. 39, Admin Code)
When a Public Officer if Subject to Civil Liability The following must concur: inju injury ry to the the ind individ ividua uall must must be established the public officer must have violated a right right or duty duty owed owed to the individu individual al claiming damages the officer must have maliciously and in bad faith acted outside the scope of his / her authority (ultra vires) Even Even mistakes mistakes committed committed by such public officer are not actionable as long as it is not shown shown that that they they were were motiv motivate ated d by malice malice or gross gross negligenc negligence e amounting amounting to bad faith. •
•
3. Howev However er,, under under the the Local Local Gov’t Gov’t Code, Sec. 24, Local governments and their officials are not exempt from liability for death or injury to persons or damage to property
Phil. Racing Club v. Bonifacio •
Statutory Liability 1. Art. Art. 27, 27, Civi Civill Code Code:: Any Any pers person on suffering moral or material loss because a public officer refuses or neglects, without just cause, to perform his official duty, duty, may file an action for damages and other relief against the public officer. officer. This is without prejudice to administrative disciplinary action against the officer 2. Art. Art. 32, 32, Civil Civil Code: Code: Liab Liabilit ility y of of public officer for violation of constitutional rights of individuals 3. Art. 34, Civil Code: Liability of peace officers who fail to respond or give assistance to persons in danger of injury to life or property [Note: The municipal corporation is subsidiarily liable] 4. Sec. Sec. 38(2 38(2)) Chap Chapte terr 9, Boo Book kI Admin Code: Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other
Threefold Liability Rule.
In this case, the members of the Commi Commissi ssion on on Races Races decla declare red d a horse horse race race cancel cancelled led due to a faulty faulty start, start, but only only after after holde holders rs of the winnin winning g ticke tickets ts were able to claim their prizes. Because of such declaration, the Philippine Racing Club also made a refund to the holders of the losing tickets. tickets. A suit was filed against the Comm Commis issi sion on,, char chargi ging ng them them with with civi civill liability. The Court found th e Commissioners acted outside the scope of their authority as they only had the power to supervise, and not control, the conduct of races. races. However However, they were were absolved absolved from liability liability because because they acted in their officia officiall capaci capacity ty in the honest honest belie belieff that that they had such power. The Court opined that in order that acts acts may may be done done with within in the the scop scope e of official official authority authority,, it is not necessary necessary that they be prescribed by statute, or that they be specifically directed or requested by a superior officer officer.. It is sufficient if they are done by an officer in relation to matters committ mitte ed by law law to his his cont contrrol or supervision, or that they have more or less connection to the department under whose authority the officer is acting. Kinds of Liability of Ministerial Officers
261 •
Nonfeasance: neglect or refusal, without sufficient excuse, to perform an act which it was was the the offi office cer’ r’s s lega legall duty duty to the the individual to perform
•
Misf Misfea easa sanc nce e: failu failure re to use, use, in the the perf perfo ormanc mance e of a duty uty owin owing g to an indivi individua dual, l, that that degree degree of care, care, skill skill and diligence
•
Malfeasance Malfeasance: the doing, either through through ignor ignoranc ance, e, inatten inattentio tion n or malice malice,, of that that which the officer has no legal right to do at all It is the general rule that good faith and absenc absence e of malice malice const constitut itute e no defense in an action to hold a ministerial ministerial officer liable for damages damages caused by nonfeasances or misfeasances. However, good faith or hone honest st mist mistak ake e may may be show shown n in mitigation of damages.
•
•
A subordinate who acts in good faith under lawful lawful order orders s of a superi superior or office officerr is not personally liable in an action f or damages. He shal shalll be civi civill lly y liab liable le for for will willfu full or negl neglig igen entt acts acts done done by him him whic which h are are contr contrary ary to law, law, mora morals, ls, public public policy policy or good good cust custom oms, s, even even if he acte acted d unde underr orders of his superior.
Liability on Contracts The public officer shall be personally liable on cont contra ract cts s he ente enters rs into into if he acte acted d without or exceeded his authority.
•
•
Liabil Liability ity of Super Superior ior Office Officer r for Acts Acts of Subordinate GENE GENERA RAL L RULE RULE:: Publ Public ic offi office cers rs are are not not civilly liable to 3rd persons for the wrongful acts acts,, omis omissi sion ons s of duty duty,, negl neglig igen ence ce or misfeasanc misfeasance e of their subordinates, subordinates, unless he has has actu actual ally ly auth author oriz ized ed,, by writt written en orde orderr, the the spec specifi ific c act act or misc miscon ondu duct ct complained of. (Sec 38(3), Chap 9, Book I, Admin Code) Thus, those in the chain of command should not be subject to suit on any theory of vicarious responsibility. Exceptions: Wher Where, e, bein being g char charge ged d with with the the o duty of employing or retaining his subo subord rdin inate ates, s, he negl neglig igen entl tly y or willfully employs or retains unfit or improper persons; Wher Where, e, bein being g char charge ged d with with the the o duty to see that they are appointed or qualified in a proper name, he negl neglig igen entl tly y or will willfu full lly y fail fails s to require them the due conformity to the prescribed regulations; Where he so car carelessly or o negligentl negligently y oversee oversees, s, conducts conducts or carr carrie ies s on the the busi busine ness ss of his his officer as to furnish the opportunity for the default; Where he has directed, authorized o or cooperated in the wrong; Where lia liabili ility is expressly sly o provided in the statute. •
Liability of Subordinates
Liability for Tortuous Acts Public officers are not immune from suit for their their own tortuo tortuous us condu conduct, ct, even even where where such conduct is committed in the course of their employment. The public officer shall be personally liable if he goes beyond the scope of his authority, or exceeds the powers conferred upon him by law. This is because unauthoriz unauthorized ed acts of governm government ent officials officials are not acts of State, and so the public offi office cerr may may be held held pers person onall ally y liabl liable. e. (Shauf v CA; Wylie v Rarang)
•
•
8. Criminal Liability The mere fact that an officer is acting in an official capacity will not relieve him from criminal liability. The mere expiration of the term of office of the the publ public ic offi offici cial al will will not not prev preven entt the the prosecution and punishment for a misd misdem emea eano norr comm committ itted ed in offic office; e; nor nor does does the re-el re-elect ection ion of a public public officia officiall extinguish the criminal liability incurred by him during his previous term of office.
•
•
IX. ADMINISTRATIVE DISCIPLINE A. Over Presidential Appointees 1. Discip Disciplin linary ary Autho Authorit rity y Lies Lies with with the Appointing Authority Sec. 47(1), Book V of EO 292 which provides that “a complaint may be filed directly with the CSC by a private citizen against a government official or employee in which case it may hear and decide the case” must be read together with with Sec. Sec. 48 which which is entitl entitled ed “Proce “Procedur dure e in Administrative Cases Against Non-Presidential Appo Appoin inte tees es..” The The very very subj subjec ectt of Sec. Sec. 48 imp implic licitly itly limi limits ts the the scop cope of the the CSC’ SC’s juris jurisdic dictio tion n in admini administr strativ ative e cases cases to nonnonpresidential appointees and makes patent the conclusion that the disciplinary authority over
262 presidenti presidential al appointee appointees s lies elsewhere elsewhere – the President as appointing power himself (Olonan v. CSC). 2. Power to Appoint Implies the Power to Remove; Exceptions Jus Justic tices of the Supreme Court (by impeachment) Member Members s of Const Constitut itution ional al Commi Commissi ssions ons (by impeachment) Ombudsman (by impeachment) Judges Judges of inferio inferiorr courts courts (disci (discipli plinar nary y or remo remov val powe powerr vest vested ed in the the Supr Suprem eme e Court)
•
•
• •
Bonifacio Sans Maceda v. Vasquez A judge who falsifies his Certificate of Service is administratively liable to the SC for serious misconduct and inefficiency unde underr Sec. Sec. 1, Rule Rule 140 of the the Rule Rules s of Court Court and crimi criminal nally ly liable liable to the State State unde underr the the Revis evised ed Penal enal Code ode for for his his felonious act. Where a criminal complaint against a judge or other employee arises from from thei theirr admi admini nist strrativ ative e duti duties es,, the the Ombu Ombuds dsma man n must must defe deferr acti action on on said said complaint and refer the same to the SC for determination whether said judge or court employ employee ee had acted acted within within the scope scope of their their admi admini nist stra rativ tive e dutie duties. s. Thus Thus,, the the Ombudsman should first refer the matter to the SC for determination of whether the certificates reflected the true status of his pend pendin ing g case case load load,, as the the SC had had the the necessary records to make such a dete determ rmin inat atio ion. n. Art. Art. VIII VIII,, Sec. Sec. 6 of the the Consti Constituti tution on exclu exclusiv sively ely vests vests in the SC administr administrative ative supervisi supervision on over over all courts courts and court personnel. Dolalas v. Ombudsman-Mindanao
•
2. Jurisdiction Orig Origin inal al comp compla laint ints s may may be file filed: d: (a) (a) dire direct ctly ly with with the the CSC CSC or (b) (b) with with the the Secre Secretar taries ies and heads heads of agenci agencies es and instru instrumen mental taliti ities, es, provin provinces ces,, cities cities and municipalit municipalities ies for officers officers and employee employees s under their jurisdiction. Deci Decisi sion ons s of Secr Secret etar arie ies s and and head heads s of agencies and instrumentalities, provinces, cities cities and munici municipal paliti ities es shall shall be final final in case the penalty imposed is suspension for not more tha than 30 day days or fin fine in an amount not exceeding 30 days’ salary. In case the decision rendered by a bureau or offic ffice e head ead is appe appeal alab able le to the the Commi Commissi ssion, on, the same same may may be initia initially lly appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. Deci Decisio sions ns impo imposi sing ng the the pena penalty lty of suspension for more than 30 days or fine in an amount exceeding 30 days’ salary salary, demotion demotion in rank rank or salary or trans transfer fer, remov removal al or dismis dismissal sal from from office shall be appealable to the CSC. •
•
•
3. Proc Proced edur ure e in Admi Admini nist stra rati tive ve Case Cases s Against Non-Presidential Appointees Admi Admini nist strrativ ative e proc procee eedi ding ngs s may may be commence commenced d against against a subordin subordinate ate officer officer or employee by the Secretary or head of office of equivalent rank, or head of local gove govern rnme ment, nt, or chie chiefs fs of agen agenci cies es,, or regional regional directors, directors, or upon sworn written written complaint of any other person. For complaints filed by any other person Compla mplain inan antt shall hall subm ubmit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If based on such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. cas e. Otherw Otherwise ise,, he shall shall notify notify the respon responde dent nt in writin writing g of the charge charges s against the latter. Responde Respondent nt shall be allowed allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writ writin ing g unde underr oath oath,, toge togeth ther er with with supp suppor ortin ting g swor sworn n state stateme ment nts s and and docu docume ment nts. s. He shal shalll also also indi indica cate te •
•
Citi Citing ng the the Ma Mace ceda da case case,, the the SC power power of administr administrative ative supervisi supervision on over over judges judges and court court personn personnel el is exclusiv exclusive. e. Investigation by the Ombudsman violates the specific constitutional mandate of the SC and undermines undermines the independe independence nce of the judiciary. B. Over Non-Presidential Non-Presidential Appointees 1. Grounds Sec. 46(a), Book V of EO 292: “No officer or employee in the Civil Service shall be suspended suspended or dismissed dismissed except for cause cause as provided by law and after due process.” •
The ground grounds s const constitut ituting ing just just cause cause are enumerated in Sec. 46(b).
263
-
-
-
-
whet whethe herr or not not he elec elects ts a form formal al inv investi estiga gati tion on if his his answ answer er is not not considered satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss the case. Altho lthoug ugh h a resp esponden ndentt does oes not reques requestt a formal formal invest investiga igatio tion, n, one shall nevertheless be conducted when from the allegation allegations s of the complaint complaint and and the the answ answer er of the the resp respon onde dent nt,, including including the supporting supporting documents documents,, the the mer merits its of the the cas case canno annott be decided judiciously without conducting such an investigation. The decision shall be rendered by the disciplining authority within thirty days from the termination of th e inve invest stig igat atio ion n or subm submis issi sion on of the the report of the investigator, which report shall be submitted within fifteen days from the conclusion of th e investigation. Either party may avail himself of the servic services es of counse counsell and may requir require e the attenda attendance nce of witnes witnesses ses and the production of documentary evidence in his his favo favorr thro throug ugh h the the comp compul ulso sory ry proc proces ess s of subp subpoe oena na or subp subpoe oena na duces tecum.
4. Appeals and Petition for Reconsideration Within 15 days from receipt of the decision unless unless a petiti petition on for recons reconside idera ratio tion n is season seasonabl ably y filed, filed, which which petiti petition on shall shall be decided within 15 days. A peti petitio tion n for for reco recons nsid ider erati ation on shall shall be based only on any of the following ing grounds: new new evid eviden ence ce has has been been disc discov over ered ed which which materi materiall ally y affect affects s the decisi decision on rendered; the decision decision is not support supported ed by the evidence on record; or error of law or irregularities have been committed which are prejudicial to the interests of the respondent. Only one petition for reconsideration shall be allowed. •
respondent is exonerated of said charges, as in this case, there is no occasion for appe appeal al.. PD 807 show shows s that that it does does not not contemplat late a review of decisions exon exonera erating ting office officers rs or employ employee ees s from from administr administrative ative charges. charges. “Party “Party adverse adversely ly affected by the decision” in Section 39 of the Civil Service Law refers to the government employee against whom case was filed. 5. Summary Proceedings No formal formal investiga investigation tion is necessary necessary and the the resp respon onde dent nt may may be imme immedi diat atel ely y remov moved or dism ismiss issed if any any of the the following circumstances is present: When When the charge charge is seriou serious s and the evidence if guilt is strong; When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; and When When the respo responde ndent nt is notor notoriou iously sly undesirable.
•
6. Preventive Suspension The The prop proper er disc discip ipli lini ning ng auth author orit ity y may may prev preven entiv tively ely susp suspen end d any any subo subord rdin inat ate e office officerr or employ employee ee under under his author authority ity pendi pending ng an invest investiga igatio tion, n, if the charg charge e against such officer or employee involves: involves: dishonesty; or oppression or grave misconduct; or neglect in the performance of duty; or if there are reasons to believe that the respondent is guilty of charges which would would warr warrant ant his remo remova vall from from the service.
•
•
•
Mendez v. Civil Service Commission The The reme remed dy of app appeal eal in civ civil service cases may be availed of only in a case where respondent is found guilty of the charges charges agains againstt him. him. But when the
•
Maximum period for preventive suspension 90 days for national officials 60 days for for loc local appo ppointi intiv ve and elective officials, except if the case is filed in the Ombudsman, the latter may impose a preventive suspension for a period of 6 months.
• •
•
When the administrative case against the offi office cerr or empl employ oyee ee unde underr prev preven entiv tive e suspen suspensio sion n is not finally finally decided decided by the disciplini disciplining ng authority authority within the period period of nine inety (90) days afte fter the date of suspension of the respondent who is not a presi presiden dential tial appoin appointee tee,, the respon responde dent nt shall shall be autom automatic aticall ally y reinst reinstate ated d in the service.
7. Penalty
264 •
•
•
•
•
•
In meti meting ng out out puni punish shme ment nt,, the the same same pena penalti lties es shal shalll be impo impose sed d for for simi simila larr offe offens nses es and and only only one one pena penalt lty y shall shall be imposed in each case. The disciplining authority may impose the pena penalt lty y of remo remov val from from the the serv servic ice, e, demotion in rank, suspension for not more than than one one year year with withou outt pay pay, fine fine in an amount not exceeding six months’ salary, or reprimand. (Sec. 46(d), Book V, EO 292)
-
Elective Official against whom Administrative Complaint is Filed
If the respondent is found guilty of two or more more char charge ges s or coun counts ts,, the the pena penalt lty y imposed imposed should should be that corresp corresponding onding to the most serious charge or count and the test test may be consid consider ered ed as aggra aggrava vating ting circumstances. (Sec. 17 of th e Impl Implem emen enti ting ng Civi Civill Serv Servic ice e Rule Rules s and and Regulations) A reprim reprimand and whether whether given given by the Civil Civil Ser Servic vice Commis mmiss sion ion or the the head head of department or agency shall be considered a penal enalty ty.. Howe Howeve verr, a warn warnin ing g or an admo admonit nitio ion n shall shall not not be cons consid ider ered ed a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations) Repr Reprim iman and d is a pena penalt lty y (Tob (Tobia ias s v. Veloso). A warning is an act or fact of putting one on his guard; an admonition is a gentle or friendly reproof or a mild rebuke; while a reprimand is a formal and public censure or a severe reproof.
Provinc incial official
Barangay of official
C. Over Elective Officials
•
or
Municipal official
Removal of Administrative Penalties or Disabilities In meritor toriou ious cases and upon reco recomm mmen enda dati tion on of the the CSC, CSC, the the Presid President ent may commu commute te or remov remove e administr administrativ ative e penalties penalties or disabilitie disabilities s imposed upon officers or employees in disc discip ipli lina nary ry case cases, s, subj subjec ectt to such such ter terms and and cond onditio itions ns as he may may impose in the interest of the service.
1. Impeachment Procedure A verifi verified ed compla complaint int may may be filed filed by any member of the House of Representatives or by any citizen upon a resolu resolutio tion n of endors endorseme ement nt by any member thereof. Comp Complai laint nt shall shall be incl includ uded ed in the the Order Order of Busine Business ss within within 10 sessio sessions ns days ays and and refer ferred red to the the proper
Comm Commit itte tee e with within in 3 sess sessio ion n days days thereafter. The Committee, after hearing, and by a majo majori rity ty vote vote of all all its its memb member ers, s, shall shall submi submitt its report report to the House with within in 60 sess sessio ion n days days from from such such referral, together with th e cor correspo espond ndin ing g resolu soluti tio ons. ns. The The reso resolu lutio tion n shal shalll be cale calend ndar ared ed for for
•
•
city
Where to File Complaint
Office of the President Sangguniang Panlalawigan
Sangguniang Panlungsod or Sangguniang Bayan consider consideration ation of the House within 10 session days from receipt thereof. A vote of at least 1/3 of all the members of the the House shall be necessary either to affirm a favorable resolution ion with ith the Articles of Impeac Impeachme hment nt of the Commi Committee ttee,, or override its contrary resolution. In case case the the verif erifie ied d comp compla lain intt or resolution of impeachment is filed by at leas leastt 1/3 1/3 of all all the the memb member ers s of the the House, House, the same same shall shall constit constitute ute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. The Senate shall have the sole power to try and decide all cases of impeac impeachme hment. nt. When When sittin sitting g for that that purpose, the Senators shall be on oath or affirmation. When the President of the Philip Philippin pines es is on trial, trial, the Chief Justi Justice ce of the the Supr Suprem eme e Cour Courtt shal shalll preside, but shall not vote. No person shall be convicted without th e concurrence of 2/3 of all the members of the Senate. Judgment Judgment in cases cases of impeachme impeachment nt shall not extend further than removal from office and disqualification to hold office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. No impe impeac achm hmen entt proc procee eedi ding ngs s shall shall be initia initiated ted agains againstt the same same offici official al more more than once within a period of one year.
265 •
2. Local Local Electi Elective ve Offici Officials als (Sec. (Sec. 60-68 60-68,, Local Government Code) •
Grounds for Disciplinary Actions Disl Disloy oyal alty ty to the the Repu Republ blic ic of the the Philippines Culpable violation of the Constitution Dishonesty, Dishonesty, oppression, oppression, misconduct in office, gross negligence, or dereliction of duty Commissio Commission n of any offense offense involving involving moral turpitude or an offense punishable by at least prision mayor Abuse of authority Unauthorized absence for 15 consecutive days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungso panlungsod, d, sangguniang sangguniang bayan, bayan, and sangguniang barangay Appl Applic icat atio ion n for for, or acqu acquis isit itio ion n of, of, foreign citizenship or residence or the stat status us of an immig immigra rant nt of anot anothe herr country Such other grounds as may be provided in this Code and other laws.
•
• •
•
•
• •
•
•
•
•
Procedure
•
•
(1) Verified erified Comp Complai laint nt (2) (2) Ans Answer: er: With Within in 7 days afte fter the the administrative complaint is filed, the Offic fice of the President or the sanggunian sanggunian concerned, concerned, as the case may be, shall require the respondent to submit his verified answer within 15 days from receipt thereof (3) Investigat Investigation: ion: Comme Commenced nced within within 10 days after receipt of such answer of the respondent. It shall be terminated within 90 days from the start thereof thereof.. No investiga investigation tion shall be held within 90 days immediately prior prior to any local local electi election, on, and no prev preven enti tiv ve susp suspen ensi sion on shal shalll be imposed within the said period. (4) (4) Deci Decisi sion on:: With Within in 30 days days after after the the end of the investigation, the Office of the the Pres Presid iden entt or the the sang sanggu guni nian an concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons reasons for such such decision. •
Preventive Suspension
•
May be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the contin continuan uance ce in office office of the respo espond nde ent could uld infl influe uen nce the the witn witnes esse ses s or pose pose a thre threat at to the the safety and integrity of the records and other evidence. Upon Upon expi expirration ation of the the prev preven entiv tive e suspen suspensio sion, n, the suspen suspended ded electi elective ve official official shall be deemed deemed reinstated reinstated in offi ffice without prejudice to th e continuation of the proceedings against him, which shall be terminated within 120 days fro from the the time he was formal formally ly notifie notified d of the cas case e agains againstt him. No prev preven enti tive ve susp suspen ensi sion on shal shalll be imposed imposed within 90 days days immediatel immediately y prior to any local election. If preventive suspension has been imposed prior to the 90-day period immediate ately prec preced eding ing loca locall elec electio tion, n, it shal shalll be deemed deemed automatica automatically lly lifted upon the start of the aforesaid period.
Administrative Administrative Appeal: Within 30 days from receipt of the decision, appeal to: sang sanggu guni nian an panl panlal alaw awig igan an,, in case case of decisions decisions of the sanggunia sangguniang ng panlungsod panlungsod of comp compon onen entt citie cities; s; and and sang sanggu guni nian ang g bayan Offic Office e of the the Pres Presid iden ent, t, in the the case case of decisions of the sangguniang panlalawigan, the the sang sanggu gunia niang ng panl panlun ungs gsod od of high highly ly urban rbaniz ize ed citie ities, s, the the sang sangg gunia uniang ng panglungs panglungsod od of independe independent nt component component cities.
X. TERMINATION RELATIONS
OF
OFFICIAL
A. Modes of Termination 1.
Expiration Expiration of Term Term or or Tenur Tenure e of Office Office End of a fixed term End of Pleasure where one holds office at pleasure of appointing authority Loss of confidence in primarily confidential employment Reach Reaching ing the the age age limit limit;; Retir Retirem ement ent Bona Bona fide fide abo aboliti lition on of office office Aban Abando donm nmen entt of of offi office ce Accep Acceptan tance ce of an an incomp incompati atible ble offi office ce Resig esign natio ation n Remov emoval al for for caus cause e Temporary emporary appointme appointments’ nts’ terminatio termination n
• •
•
2. 3. 4. 5. 6. 7. 8.
266 9. 10. 11. 12. 12. 13.
Recall Impeac Impeachme hment nt Prescriptio Prescription n of right to office Deat Death h Conviction of crime where disqualification is an accessory penalty 14. Filing of certifica certificate te of candidacy candidacy 15. Performance of act or accomplishment of purpose for which the office was created 16. Failure to assume elective office within six months from proclamation B. Expiration of Term or Tenure of Office 1. End of Fixed Term Upon the expiration of the officer’s term, unless he is authorized by law to hold over, over, his rights, duties and authority as a public officer must be ipso facto terminated.
•
expressly dependent upon the pleasure of the President. 3. Loss of Confidence in Primarily Confidential Employment Official Official and employe employees es holding holding primarily primarily confidential positions continue only for so long as as confidenc confidence e in them endure endures. s. The termination of their official relation can be justif tified on the ground of loss of conf confid iden ence ce beca becaus use e in that that case case,, thei theirr cessation from office involves no removal but merely the expiration of the term of office (Hernandez v. Villegas). •
C. Reaching the Age Limit; Retirement •
Conditions Conditions for entitlemen entitlementt to retiremen retirementt benefits (R.A. No. 8291) he has rendered at least fifteen (15) years of service; he is at least sixty (60) years of age at the time of retirement; and he is not receiving a monthly pension benefit from permanent total disability. disability. •
2. End of pleasure where one holds office at the pleasure of the appointing authority •
President President can validly validly terminate tenure of Vice Mayor of Roxas City as the office was created at the pleasure of the President. What is involved here is not the question of remov removal, al, or whethe whetherr legal legal cause cause should should prece precede de or not not that that of remov removal. al. What What is involved here is the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President (Alba v. Evangelista).
Fernandez v Ledesma The Charter of Basil silan City provides provides that the President President shall appoint appoint and may remove at his discretion any of the city’ city’s s office officers, rs, includ including ing its Chief Chief of Police, with the exception of the municipal judge, who may be removed only according to law. The legislative intent is to make continuance in office dependent upon the pleasure of the President. Congress has the power to vest such power of appointment. Further, Further, “A public office is the right for a given period, either fixed by law or enduring at the pleasure of the creating power.” Alba v. Evangelista states that the repl replac ace ement ment is not removal, al, but an expiration of tenure, which is an ordinary mode of terminating official relations. What is involved is not removal, or whether legal cause should precede such removal, removal, but the creation of an office and the tenure of such offi ffice, which ich has been made
•
•
Compulsory Retirement Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least 65 years of age with at least 15 years of service; Provided that if he has less than 15 years of service, he may be allowed to continue in the service in acc accor ordan dance ce with with existi existing ng civil civil service rules and regulations. NOTE NOTE:: diffe differe rent nt in Nach Nachur ura a Revi Review ewer er:: Compulsory Retirement Age is 70 yrs for the members of the Judiciary and 65 yrs for other government office icers an d employees (Under New GSIS Charter) •
•
Beronilla v GSIS The The compu ompuls lsor ory y reti retire reme ment nt of governm government ent officials officials and employee employees s upon reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the the same same time time,, give give to the the retir retirin ing g public public servants servants the opportunity opportunity to enjoy enjoy duri during ng the the rema remain inde derr of thei theirr live lives s the the recom recompen penses ses for their their long long servi service ce and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that that the the natu nature re of thei theirr work work and and thei theirr
267 relations with their superiors as well as the public would impose on them. D. Bona Fide Abolition of Office As a general r u le, absent some Constitutio Constitutional nal prohibitio prohibition, n, Congress Congress may abol abolis ish h any any offi office ce it crea create tes s with withou outt infringing upon the rights of the officer or employee affected. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from from the the stan standp dpoi oint nt of stri strict ct law law, the the question of any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with the abolished office as an accessory following the principal.
expressly abolished the Placement Bureau and, and, by impl implic icat atio ion, n, the the offi office ce of the the Direc Director tor of the Placeme Placement nt Bureau Bureau.. Had Congress intended the NES to be a mere enlargeme enlargement nt of the Placement Bureau, Bureau, it would have directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commi Commissi ssione onerr and thus thus could could not have have been removed therefrom.
•
•
•
Busacay v. Buenaventura Busacay was laid off as toll collector collector when the bridge bridge was destroyed. destroyed. However, the bridge was later recons reconstru tructe cted d and opene opened d to the public public with with a new new colle collect ctor or bein being g appo appoin inte ted. d. Busacay was ordered reinstated by the SC. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. In the case at bar, the there was nev never any any tho thought ught of not not rebuilding the bridge. The collapse of the bridge did not work to destroy but only to susp suspen end d the the posi positi tion on of toll toll colle ollect ctor or thereon, thereon, and upon its reconstructio reconstruction n and re-ope re-openin ning, g, the collec collector tor’s ’s right right to the positio position n was was similar similarly ly and automa automatic tically ally restored.
Manalang v. Quitoriano The National National Employment Employment Service Service was established by R.A. No. 761 in lieu of the Place Placeme ment nt Bure Bureau au.. Quito Quitori rian ano o was was appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manala alang who was the incu incumb mben entt Dire Direct ctor or of the the Plac Placem emen entt Bureau. SC held that appoint of Quitoriano was valid. A removal implies that the office still still exists exists.. R.A. R.A. No. No. 761, 761, creati creating ng NES, NES,
•
Abolition Must Be in Good Faith The The abol aboliti ition on of an offi office ce does does not not amo amount unt to an ille illeg gal remov moval or sepa separa rati tion on of its its incu incumb mben entt is the the principle that, in order to be valid, the abolition must be made in good faith, not for personal personal or political reasons, reasons, and not not implem implement ented ed in violat violation ion of law. -
Briones v. Osmeña Brio riones nes and and Rosagar agara an were employees in the Office of the City Mayor sinc since e 1937 1937 and and 1940, 1940, resp respec ectiv tivel ely y, In 1956, 1956, the City create created d 35 new position positions s and abolished 32, of which the positions of Brio Brione nes s and and Rosa Rosaga garran were were incl includ uded ed.. Consequently, the two were terminated. SC held held that that the termin terminatio ation n was not valid valid.. While abolition does not imply removal of the incumbent, this rule is true only where the abolition is made in good faith. In other words, the right to abolish cannot be used to discharge employees in violation of the Civil Service law nor can it be exercised for personal or political reasons.
Facundo v. Pabalan There is no law which which express expressly ly auth author oriz izes es a muni munici cipa pall coun counci cill to abolish abolish the positi positions ons it has create created. d. However However, the rule is well-settl well-settled ed that the power to create an office includes the power power to abolis abolish h it, unles unless s there there are constit constituti utiona onall or statuto statutory ry rules rules prov provid idin ing g othe otherw rwis ise. e. But But the the offi office ce must be abolished in good faith.
Cruz v. Primicias As well settled as the rule that the the abol abolit itio ion n of an offic office e does does not not amou amount nt to an illeg illegal al remo remova vall of its its incu incumb mben entt is the the prin princi cipl ple e that, that, in order to be valid, the abolition must be made in good faith ith. Where the
268 abol abolit itio ion n is made made in bad bad fait faith, h, for for polit politic ical al or pers person onal al reas reason ons, s, or in order to circumvent the constitutional secu securi rity ty of tenu tenure re of civi civill serv servic ice e employees, it is null and void. In the case cas e at bar, while while 22 positi positions ons were abolished, 28 new positions with higher salaries salaries were simultaneo simultaneously usly created. created. No char charge ge of ineffi ineffici cien ency cy is lodg lodged ed against petitioners. In truth and in fact, what what respo responde ndents nts sough soughtt to achiev achieve e was to supplant supplant civil service service eligibles eligibles with men of their choice, whose tenure would be totally dependent upon their pleasure and discretion. E. Reorganization This occurs where there is an alteration of the exis existin ting g stru struct ctur ure e of gove govern rnme ment nt offices or units therein, including the lines of contr control, ol, author authority ity and respo responsi nsibil bility ity between them to promote greater effi effici cien ency cy,, to remo remove ve redu redund ndan ancy cy of functions, or to affect economy and make it more more respo responsi nsive ve to the needs needs of their their public clientele. It may result in the loss of one’s position through removal or abolition of office. Reorganization of the government may be required required by law independen independently tly of specific specific constitutional authorization. But in order to be valid, it must also be done in good faith. A reorganization is carried out in good faith if it is for the purpose of economy or to mak make the the bure bureau aucr crac acy y more more efficient. Good faith, as a component of reorganiza reorganization tion under under a constitutio constitutional nal regi regime me,, is judg judged ed from from the fact facts s of each each cas case. e. In the case at bar, there there was lack of good faith (Dario v. v. Mison).
•
Summers v. Ozaeta Summ Summer ers, s, a cada cadast strral judg judge, e, assumed office as CFI judge due to an ad interi interim m appoin appointme tment. nt. Howev However er,, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadast cadastra rall judge judge.. SC held held that that Summer Summers’ s’ voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the the term term fixe fixed d and and guar guaran ante teed ed by the the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath oat h of office office of judgejudge-at at-lar -large, ge, and not merely of an “acting” judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time.
•
•
•
F. Abandonment of Office A public public office office may become become vacan vacantt ipso ipso facto by abandonment and non-user. non-user. When an office office is once once abando abandoned ned,, the former former incumbent cannot legally repossess it even by forcible re-occupancy. Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. thereof. The The offic ffice er sho should uld manif anife est a clear lear inten intentio tion n to aban abando don n the the offic office e and and its its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding ing, must spring ing fro from and be
accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient.
G. Acceptance of an Incompatible Office He who who, whil while e occu occupy pyin ing g one one offi office ce,, accepts accepts another another office office incompati incompatible ble with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule. And even though the title to the second office fails as where election is void, the rule is stil stilll the the same same,, nor nor can can the the offic officer er then then regain the possession of his former office to which which anothe anotherr has been been appoin appointed ted or elected. If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that that which which he holds, holds, it is not a case case of incompatibility but of legal prohibition.
•
•
•
•
•
•
•
Incompatibility of offices exists where: Ther There e is confl conflic ictt in such such dutie duties s and and functions functions so that the performa performance nce of the duties duties of one interfer interferes es with with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts
•
•
269
•
•
as a chec check k on the the othe otherr woul would d be frustrated. The Constitution or the law itself, for reasons reasons of public policy, policy, declares declares the incompatibility even though there is no inco incons nsis iste tenc ncy y in the the natur ature e and and functions of the offices.
Exce Except ptio ions ns to the the Rule Rule on Hold Holdin ing g of Incompatible Offices Where Where the office officerr cannot cannot vacat vacate e the first first office office by his own act, act, upon upon the principle that he will not be permitted to thus do indirectly what he could not do directly, as where the law requires the appro approva vall of the prov provinc incial ial board board before a municipal official can resign. First First office office is held held under under a differ different ent government from that which conferred the second. Officer is expressly authorized by law to accept another office. Second office is temporary. •
•
•
•
H. Resignation A resignation of a public officer need not be in any particul particular ar form, form, unless unless some some form is prescribed by statute. Ordinarily, it may either be in writing or by parol. There must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until election and qualification of a successor. Conflicting Views: Acco Accord rdin ing g to some some auth author orit itie ies, s, no accept acc eptanc ance e is neces necessar sary y to rende renderr a resignatio resignation n effective effective,, especially especially when the resign resignati ation on is uncond unconditio itional nal and purports to take effect immediately. Many other cases take the view that to be effective, effective, the resignatio resignation n must be acce accept pted ed by comp compet eten entt autho authori rity ty.. Without acceptance, the resignation is noth nothin ing g and and the the offi office cerr remai remains ns in office. (63 Am Jur 2d., sec. 163) Prof Prof.. Barlo Barlong ngay ay:: Two elem elemen ents ts are are nece necess ssar ary y to cons consti titu tute te an effe effect ctiv ive e acceptance: (1) intenti intention on to relinq relinquis uish h office office coupl coupled ed with actual relinquishment; and (2) acceptanc acceptance e of resignatio resignation. n. A “courtesy resignation” cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of •
•
•
•
•
•
•
•
a person to the will of the political authority. Prof. Prof. Barlonga Barlongay: y: Courtesy Courtesy resignatio resignation n is not allowed in (1) career positions and and (2) (2) nonnon-ca care reer er posi positio tions ns with with securi security ty of tenure tenure (i.e. (i.e. local local electi elective ve officials). •
I. Removal for Cause 1. Protection from Removal without Cause No officer or employee of the civil service shall be removed or suspended except for cause provided by law (Sec. 2(3), Art. IX, 1987 Constitution).
•
2. Grounds for Removal from Office For Presidential appointees, Prof. Barlongay state tates s that that ther there e is no speci pecifi fic c law law providing for the grounds for thei r removal. Determination of grounds is just a matter of pract practice ice and by analog analogy y, the ground grounds s used for non-presi non-presidentia dentiall appointee appointees s are made applicable. For civil service service officials officials and employee employees, s, see Sec. 46, Book V, E.O. No. 292 which prov provid ides es for for at leas leastt 30 grou ground nds s for for disciplinary action. For local elective officials, Sec. 60 of the Local Local Governme Government nt Code provides provides for the grounds where an elective local official may be disciplined, suspended or removed from office. Misconduct need not be “in office” in case of appointive officers. Misconduct must be “in office” in case of elective officers. Misconduct Misconduct committed during a prior prior term, not a ground for dismissal
•
•
•
•
•
•
Ochate v. Ty Deling The SC held that the facts alleged in the administrative charge, as subs substa tanti ntiat ated ed by the the affid affidav avit its s of the the complainants, do not justify th e admi adminis nistr trati ative ve proc procee eedi ding ngs s insti institut tuted ed against against the petitione petitionerr and his suspension suspension by the governor. The alleged libel imputed to the mayor mayor was not such such miscon misconduc ductt even if the term “misconduct in office” be take taken n in its its broa broade dest st sens sense. e. The The radi radio o broa broadc dcas astt in whic which h the the obje objecti ction onab able le utterances were made had nothing to do
270 with his official functions and duties as a mayor. •
3. Transfer from One Position to Another May or May Not Consti Constitut tute e Violat Violation ion of Security of Tenure A transfer is a movement from one position to anothe anotherr which which is of equiv equivale alent nt rank, rank, level, level, or salary salary withou withoutt break break in servi service ce involving the issuance of an appointment. It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be infor informed med of the reaso reasons ns there therefor fore. e. If the employ employee ee believ believes es that that there there is no justification for the transfer, transfer, he may appeal to the SC. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, however that any movement movement from the non-care non-career er service to the career service shall not be considered a transfer. The intended transfer to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negro Negros s Orien Oriental tal.. The reason reason is that a fiscal is appointed appointed for each province province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to be a fiscal fiscal of Tarlac arlac must must mean mean his remov removal al from office in Negros. Since the transfer is considered a removal, such should be for caus cause e in orde orderr for for the the othe otherr pers person on to legally occupy the office in Negros. There was no cause cause for Lacson Lacson’s ’s remov removal. al. He there therefo fore re rema remain ins s as fisc fiscal al of Negr Negros os (Lacson v. Romero). •
•
•
•
J. Termination of Temporary Appointment •
•
•
The The appo appoin intm tmen entt bein being g temp tempor orar ary y in character, the same can be terminated at pleasure by the appointing power (Quitiquit v. Villacorta). One One hold holdin ing g an offi office ce in a temp tempor orar ary y capacity may be ousted at anytime with or without cause (Ferrer v. de Leon). The controlling controlling factor factor in determining determining the char charac acte terr of the the appo appoin intm tmen entt is the the appoin appointme tment nt itself itself.. Even Even if a positio position n is perman permanent ent,, if the appoin appointme tment nt is made made temporary, the appointment is determinative. What is determinative is not the natu nature re of the the offi office ce (per (perma mane nent nt or
temporary), but the nature ure of the appointment (Hojilla v. Marino). One appointed to a position of another who was illegally suspended or dismissed, holds it in temporary capacity and must yield to the latter. The reason for this is that there was no valid termination.
K. Recall The Congress shall enact a local government code which shall provide for a more more respo responsi nsive ve and acc accoun ountab table le local local government structure instituted through a system system of decentr decentralizati alization on with effective effective mech mechan anis isms ms of reca recall ll,, init initia iati tiv ve and and referendum (Sec. 3, Art. X, 1987 Constitution) The The proc proced edur ure e for for recal recalll is prov provid ided ed in Sections Sections 69-75 of the Local Governme Government nt Code. •
•
L. Prescription of Right to Office Any person claiming a right to a position in the the civi civill serv servic ice e is requ requir ired ed to file file his his petition for reinstatement within one year, otherwise he is deemed to have abandoned his his offi office ce.. Reas Reason on is publ public ic poli policy cy and and convenience, stability in the public service (Unabia v. City Mayor). Prof. Barlongay: Barlongay: The one-year period is the prescript prescriptive ive period to claim public office office (whe (wheth ther er thr throug ough quo warr arranto nto or otherwise). The one-year period presupposes judicial action, not administrative action.
•
•
M. Filing of Certificate of Candidacy Sec. 66 of the Omnibus Election Code: Any person holding appointive public offices or positions, including active AFP members, is considered ipso facto resigned from office by the mere filin ling of certific ficate of candidacy. The foll follow owin ing g provis visions ions have ave been REPEALED by Sec. 14 of R.A. 9006 (Fair Election Act of 2001): Sec. 67 of B.P. 881 which states that any elective elective official, whether whether national national or local, running for any office OTHER than than one one whic which h he is hold holdin ing g in a perma ermane nent nt capac apacit ity y, except ept for for President and Vice President, shall be consid consider ered ed ipso ipso facto facto resign resigned ed from from office by the mere filing of a certificate of candidacy. The The first first prov provis iso o of Sec. Sec. 11 of R.A. R.A. 8436 which states states that "Any elective elective offici official, al, running running for any office officerr other other
•
•
•
•
271 than than one one whic which h he is hold holdin ing g in a perma ermane nen nt capac apacit ity y, exc except ept for for President and Vice-President, shall be consid consider ered ed ipso ipso facto facto resign resigned ed upon upon the start of the campaign period." N. Performance of Act or Accomplishment of Purp Purpos ose e for for whic which h the the Offi Office ce was was Created Performa Performance nce of act or acco accomplish mplishment ment of purpose renders office functus officio. •
O. Failure to Assume Office Sec. 11, BP 881 provides: “The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant , unless said failure is for cause or causes beyond his control.”
•
