Law On Public Officers

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P O L I T I C A L L AW ( L AW O N P U B L I C O F F I C E R S ) REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Louie, Carrie, Evelyn, Thel, Gem, Ronald Public Office is 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 sovereign functions of the government, to be exercised by him for the benefit of the public. Essential elements 1. Created by Constitution or by law or by some body or agency to which the power to create the office has been delegated (enabling law) 2. Invested with authority to exercise some portion of the sovereign power of the State 3. Powers/Functions defined by the enabling law 4. Duties are performed independently without control unless those of an inferior 5. Continuing / permanent in nature Distinctions Public Official is an officer of the Government itself, as distinguished from the officers and employees of instrumentalities of government. Officer is distinguished from an employee in the greater importance, dignity and independence of his position, being required to take an official oath, and perhaps give an official bond and in the liability to be called to account as a public offender for misfeasance or nonfeasance in office. Eligibility Eligibility is the state or quality of being legally fitted or qualified to be chosen. Qualification refer to the act which a person, before entering upon the performance of his duties is by law required to do such as the taking, and often, of subscribing and filing of an official oath, and, in some cases, the giving of an official bond. Who are required to give an official bond? Accountable public officers or those to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals. Disqualifications Disqualifications to hold public office are mental or physical incapacity, misconduct or crime, impeachment, removal or suspension from office, previous tenure of office, consecutive terms, holding more than one office, relationship with the appointing power, office newly created or the emoluments of which have been increased, being an elective official, having been a candidate for any elective position, and grounds under the local government code. In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. When the constitution has attached a disqualification to the holding of any office, Congress cannot remove it under the power to prescribe qualifications as to such offices as it may create. Presumption is in favor of eligibility. The qualifications are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure. Formal qualifications are : citizenship, age, suffrage, residence, education, ability to read and write, political affiliation, civil service examination

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P O L I T I C A L L AW ( L AW O N P U B L I C O F F I C E R S ) REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Louie, Carrie, Evelyn, Thel, Gem, Ronald Appointment Appointment is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. It is to be distinguished from the selection or designation by a popular vote. Power to appoint is generally regarded as an executive function. But it is not limited to the executive department. Power of appointment is absolute when the choice of the appointing authority is conclusive. It is conditional where assent or approval by some other officer or body is necessary to complete the appointment. Acceptance of appointment is not necessary for the completion or validity of appointment. Acceptance may be express when it is done verbally or in writing. Acceptance is implied when without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. The general rule is that an appointment to an office, once made and complete, is not subject to reconsideration or revocation. The exception is where an officer is removable at will of the appointing power. Steps in the Appointing Process: 1. Nomination – exclusive prerogative of the President 2. Confirmation – belongs to Congress i.e. Commission on Appointments 3. Issuance of commission – a commission is a written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. Confirmation on the part of the Civil Service Commission is called “Attestation”. Designation Designation is simply the mere imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. Vacancy There is a vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties. There can be no appointment to a non-vacant position. Causes of vacancy are death, permanent disability, removal from office or resignation of the incumbent. Other causes of vacancy are abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching the age limit, and recall. De facto, de jure officer; usurper De facto officer is one who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law. A de jure officer is one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. When the officer de jure is also the officer de facto, the lawful title and possession are united. Usurper is one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent.

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P O L I T I C A L L AW ( L AW O N P U B L I C O F F I C E R S ) REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Louie, Carrie, Evelyn, Thel, Gem, Ronald Scope of Power Scope of power of a public officer consists of those powers which are expressly conferred upon him by the law under which he has been appointed or elected; expressly annexed to the office by the law which created it or some other law referring to it; or attached to the office as incidents to it. Ministerial power is when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. Discretionary power is when it requires the exercise of reason and discretion in determining how or whether the act shall be done or the course pursued. Modes of Termination of Official Relations Natural Causes 1. Expiration of the term or tenure of office 2. Reaching the age limit ( retirement) 3. Death or permanent disability 1. 2. 3. 4.

Acts / Neglect of Officer Resignation Acceptance of an incompatible office Abandonment of Office Prescription of Right to Office

1. 2. 3. 4. 5.

Acts of the Government or People Removal Impeachment Abolition of Office Conviction of a crime Recall

Preventive Suspension Two Kinds: 1. Preventive Suspension Pending Investigation 2. Preventive Suspension Pending Appeal The duration of preventive suspension is coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety (90) days then the suspension will last less than ninety (90) days, but if the case is not decided within ninety (90) days, then the suspension may not exceed the maximum period of ninety (90) days. Other important concepts Hold-over – a public officer’s term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and had qualified. Nepotism – all appointments in the national and local governments or any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing authority; recommending authority; chief of the bureau or office; or person exercising immediate supervision over the appointee are PROHIBITED. Compensation is not indispensable to a public office. The next-in rank rule specifically applies only in cases of promotion but it is not a mandatory requirement.

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P O L I T I C A L L AW ( L AW O N P U B L I C O F F I C E R S ) REVIEWER & MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Louie, Carrie, Evelyn, Thel, Gem, Ronald Divestment is when a public official is in a conflict-of-interest situation. Such official must resign from his position in any private business enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption. Official immunity only protects public officials from tort liability for damages arising from discretionary acts or functions in the performance of their officials duties.

Qualifications of Elective Officials Elective Officials Pres/ Vice-Pres

Citizenship

Age

Natural Born Natural Born

40

Natural Born Natural Born Citizen

25

ARMM Natural Governor Born ARMM Natural Legislators Born Thanks to Atty. Agra

35

Senator District Representatives Party-List Reps Local Officials

35

25 Prov/HUC:23 Other Mayor/VM:21 Other S:18

21

Literacy

Voter

Residency

Read and Write Read and Write

Registered

10 in Philippines 2 in Philippines

Read and Write Read and Write Read and Write Filipino or local dialect Read and Write Read and Write

Registered Registered in District Registered Registered in Locality

Registered in ARMM Registered in District

1 in District 1 in Philippines 1 in Locality

5 in ARMM 5 in District