Admin Finals Notes.docx

SECURITY OF TENURE AND DISCIPLINARY ACTIONS

Basis of security of tenure: Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (5) The right to self-organization shall not be denied to government employees. (6) Temporary employees of the Government shall be given such protection as may be provided by law. Security of tenure: No officer or employee in the civil service shall be suspended or dismissed except for causes provided by law and after due process or after he shall have been given the opportunity to defend himself. Disciplinary action: proceeding which seeks the imposition of disciplinary sanction against, or dismissal or suspension of, a public officer or employee on any of the grounds prescribed by law after due hearing. Dismissal: ouster of the incumbent before the expiration of his term Suspension: a qualified expulsion; a temporary withdrawal or separation Officers and employees covered by security of tenure: *The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an officer or employee may be removed or suspended must have some relation to the character or fitness of officer of employee. The only exception to this rule is cabinet secretaries who hold office at the pleasure of the President, as well as those occupying confidential positions and coterminous employees. *An officer occupying a position which is primarily confidential also enjoys security of tenure and he may not be removed except for cause as provided by law. While ‘loss of confidence’ may be a ground for expiration of his term or for his dismissal, he cannot be summarily dismissed without due process and

‘loss of confidence’ as ground therefor must be based on facts from which the same may be implied or deduced. Acceptance of temporary appointment or assignment, as waiver of security of tenure GR: When an officer or employee permanently appointed in a position accepts a temporary appointment in another position without reservation or upon his own volition in exchange of his permanent position, he is effectively divested of security of tenure. E: Where he accepts the temporary appointment with reservations of his right to his permanent position or under circumstances indicating that he is not knowingly relinquishing his permanent post and all its concomitant rights, his acceptance of temporary position does not operate to divest him of his right to security of tenure nor as abandonment of permanent position.

DISCIPLINARY ACTION BY THE CIVIL SERVICE COMMISSION Who may initiate administrative proceedings? Section 10 of Revised Rules on Administrative Cases (RRACS) provides that administrative proceedings may be initiated by the disciplining authority motu proprio or upon complaint of any other person. The complaint must be in writing, subscribed and sworn to by the complainant. In cases initiated by the proper disciplining authority or his/her authorized representative, show cause order is sufficient. No anonymous complaint shall be entertained unless there is obvious truth or merit to allegations therein or supported by documentary or direct evidence. When and where to file a complaint? Except when otherwise provided for by law, an administrative complaint may be filed at any time with the commission or any of its Regional Offices, heads of departments, agencies, provinces, cities, municipalities, and other instrumentalities. (Section 12, Rule 3) What is the effect of the withdrawal of the complaint? The withdrawal of the complaint does not result in its outright dismissal nor discharge the person complained of from any administrative liability. Where there is obvious truth or merit to the allegation in the complaint or where there is documentary evidence that would tend to prove the guilt of the person/s complained of, same should be given due course. Can the CSC impose preventive suspension? Yes, the nature of preventive suspension imposed by the CSC is not a penalty. It is designed merely as a measure of precaution so that the official or employee charged may be removed from the scene of his/her alleged misfeasance/malfeasance/nonfeasance while the same is being investigated.

What are the grounds for CSC to impose preventive suspension? The proper disciplining authority may issue an order of preventive suspension upon service of formal charge or notice of charge/s if the charge involves: -dishonesty -oppression -grave misconduct -neglect in the performance of duty -Administrative offenses which are punishable by dismissal from service on its 2nd or 3rd offense -Other reasons to believe respondent is guilty of charges which would warrant his/her removal from the service

What is the reason behind the preventive suspension? An order of preventive suspension may be issued to temporarily remove respondent from the scene of his/her misfeasance, malfeasance or nonfeasance to preclude possibility of: -exerting undue influence or pressure on the witnesses against him/her -tampering with evidence that may be used against him/her

What is the duration of preventive suspension? Unless otherwise provided for by law, disciplining authority may place the respondent under preventive suspension for a maximum period of 90 days in the case of national agencies or 60 days in the case of local government units. When administrative case against officer or employee under preventive suspension, he/she shall be automatically reinstated in the service unless the delay in the disposition of the case is due to the fault, negligence, or petition of respondent, in which case, period of delay shall not be included in the counting of the period of preventive suspension. Any period of delay caused by motions filed by the respondent shall be added to the period of preventive suspension. What shall be the remedy of the respondent from the order of preventive suspension? Respondent may file an appeal to the Commission within 15 days from receipt of order. Pending appeal, same shall be executory. A motion for reconsideration from the order of preventive suspension shall not be allowed. Will the respondent receive payment of backwages after being preventively suspended? GR: No, the respondent is not entitled to receive backwages E: If there is a declaration by the Commission that an order of preventive suspension is null and void on its face. The payment of backwages corresponds to the period of unlawful preventive suspension

*Order of preventive suspension is deemed null and void if: -order was issued by one who is not authorized by law -order was not premised on any of the conditions -order of preventive suspension was issued without formal charge or notice of charge -duration of imposed preventive suspension has exceeded the prescribed periods ~Even if the respondent be eventually found innocent of charge/s proferred against him/her, same shall not give rise to payment of back salaries corresponding to the period of preventive suspension in absence of any finding of its illegality. When shall a decision be considered final under CSC? A decision rendered by disciplining authority whereby penalty of suspension for not more than 30 days or a fine in an amount not exceeding 30 days’ salary is imposed, shall be final, executory and not appealable unless a motion for reconsideration is seasonably filed. However, the respondent may file an appeal when issue raised is violation of due process. What are the remedies of the respondent? The respondent may file a (1) motion for reconsideration, (2) file an appeal, or (3) file a petition for review. (1) When filing for motion for reconsideration, the party adversely affected may file with the disciplining authority who rendered the said judgment. a. Grounds for filing a motion for reconsideration: i. New evidence has been discovered which materially affects the decision rendered ii. Decision is not supported by evidence on record iii. Errors of law or irregularities have been committed prejudicial to the interest of movant b. Only one motion for reconsideration shall be entertained. (2) The decision of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing penalty exceeding 30 days suspension or fine in amount exceeding 30 days salary may be appealed to the Commission. (3) A party may elevate the decision of the Commission dismissing the complaint for lack of prima facie case or where formal charge issued was for a lower offense, through a petition for review by Rule 43 to the Court of Appeals. What is the effect of pardon to respondent who was disciplined? Absolute pardon frees the public officer who was previously convicted from all the penalties and legal disabilities and restores him to all his civil rights but such pardon does not entitle him to automatic reinstatement. He should apply for reinstatement to said office. When reappointed, pardon does not entitle him to backwages nor make his government service continuous from the time he was removed.

DISCIPLINARY ACTION BY THE OMBUDSMAN The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities, and agencies, including members of the Cabinet, local government, GOCCS, except officials who may be removed only through impeachment, Members of Congress, and of Judiciary. What are the powers and functions and duties of the Office of the Ombudsman? Under Section 15 of RA 6770, the Ombudsman has the power, function, duty to: 1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. 2. Direct upon complaint or on its own instance, any officer or employee of Government to perform and expedite any act or duty required by law or stop, prevent, and correct any abuse or impropriety in performance of duties 3. Direct officer concerned to take appropriate action against public officer or employee at fault or who neglect to perform an act or discharge duty required by law and recommend his removal, suspension, demotion, fine, censure, or prosecution 4. Direct officer and subject to furnish copies of documents relating to contracts or transactions entered into by his office involving disbursement or use of public funds or properties 5. Request any government agency for assistance and information necessary in discharge of its responsibilities and examine if necessary, pertinent records and documents 6. Publicize matters covered by its investigation of matters when circumstances so warrant and with due prudence 7. Determine cause of inefficiency, red tape, mismanagement, fraud and corruption in Government and make recommendations for their elimination and observance of high standards of ethics and inefficiency 8. Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry including power to examine and have access to bank accounts and records 9. Punish for contempt 10. Delegate deputies or its investigators or representatives such authority or duty as shall ensure effective exercise or performance of powers, functions, and duties 11. Investigate and initiate proper action for recovery of ill-gotten wealth and prosecution of properties involved 12. Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties

Grounds for administrative complaint in filing a case in the Ombudsman -contrary to law or regulation -unreasonable, unfair, oppressive or discriminatory -inconsistent with general course of agency’s functions -proceed from a mistake of law or arbitrary ascertainment of facts -are in exercise of discretionary powers but for improper purpose -are otherwise irregular, immoral or devoid of justification

How is an administrative complaint initiated in the Ombudsman? By a written complaint under oath accompanied by affidavits of witnesses and other evidences in support of charge. An administrative proceeding may also be ordered by the Ombudsman or respective Deputy Ombudsman on his initiative or on basis of complaint originally filed as criminal action or grievance complaint or request for assistance. Can the Ombudsman preventively suspend officials? Yes, the Ombudsman or his deputy Ombudsman may preventively suspend any officer or employee under his authority pending investigation, if in his judgment the evidence of guilt is strong and (a) charge against officer or employee involves dishonesty, oppression, grave misconduct or neglect of duty, (b) charges would warrant removal from office, or (c) respondents continued stay in office may prejudice case filed against him. Preventive suspension shall continue until the case is terminated but not more than 6 months without pay except when delay in disposition of cases by Ombudsman is due to fault, negligence or petition of respondent. Preventive suspension is neither a punishment nor a penalty. Prior notice and hearing is not required before suspension may be meted out for suspension is not a punishment or penalty but only a preventive measure.