Nachura Notes Public Officers

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

I. GENERAL PRINCIPLES Public Office - Right, authority, duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the people. - Elements: 1. created by law or by authority of law 2. possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public 3. powers conferred and duties imposed must be defined by the legislature or by legislative authority 4. duties must be performed independently and without control of the superior power UNLESS they be those of an inferior or subordinate officer created or authorized by the legislature and placed under the general control of a superior officer or body 5. permanence or continuity - Creation: 1. Constitution 2. statutory enactment 3. authority of law Public Officer - a person who holds office - Public Officer, as understood under criminal law ¾ Article 203. any person who, by direct provision of law, popular election or appointment by competent authority shall take part in the performance of public functions in the Government; or shall perform in said Government public duties as am employee, agent, or subordinate official of any rank or class, shall be deemed to be a public officer. ¾ RA 3019. includes elective and appointive officials and employees, permanent or temporary whether in the classified, unclassified or exempt services, receiving compensation, even nominal from the government. ¾ PB 807. Career and Non-career services (formerly, classified, unclassified or exempt) Distinguished from Clerk or Employee - Officer, duties not being of clerical or manual nature, involves the exercise of discretion in the performance of the functions of government. - Includes any government employee, agent or body having authority to do the act or exercise that function. Main characteristic that distinguishes a Public Officer Æ creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public.

1

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

II. ELIGIBILITY AND QUALIFICATIONS Qualifications 2 Different Senses: 1. endowments, qualities, attributes which make an individual eligible for public office must possess at the time of the appointment/election and continuously for as long as the official relationship exists 2. act of entering into the performance of the functions of public office ¾ Property qualifications may not be imposed for the exercise of the right to run for public office. ¾ Loss of any of the qualifications during incumbency will be a ground for termination. ¾ Failure of an officer to perform an act required by law could affect the officer’s title to the given office. ¾ Prolonged failure or refusal to take the oath of office could result in forfeiture of the office. ¾ BP 881 – “the office of any official ELECTED who fails or refuses to take his oath of office within 6 months from his proclamation shall be considered vacant UNLESS failure is for a cause/s beyond his control. ¾ Oath of office is a qualifying requirement for public office. ¾ Until he is qualified, the holdover officer is the rightful occupant. ¾ Oath of office taken before one who has no authority to administer oath, is no oath at all. ¾ Pendency of election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Authority to Prescribe Qualifications ¾ Qualification prescribed by Constitution Æ generally exclusive unless Constitution provides otherwise ¾ Public officers created by statute Æ Congress has plenary powers to prescribe qualifications, provided: 1. germane to the objectives for which the office was created 2. qualifications are not too specific as to fit a particular identifiable person that would deprive appointing authority of discretion in the selection of the appointee Disqualifications ¾ Authority ƒ Legislature has the right to prescribe disqualifications in the same manner as it can prescribe qualifications. ƒ Limitation: do not violate the Constitution ƒ Disqualification may be because of unfitness for public office or because the person is rendered ineligible for the office.

2

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

¾ General Disqualifications under the Constitution 1. No candidate who lost in an election, shall, within 1 year after such election, be appointed to any office in the Government. 2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. 3. No appointive official shall hold any other position in the Government, unless otherwise allowed by law or the primary functions of his office. *ex-officio capacity ¾ Specific Disqualification under the Constitution 1. President, VP, Cabinet Members and their deputies and assistants shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution. 2. No Senator or Member of the HR may hold any other office or employment in the Government including GOCC, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments increased during the term for which he was elected. 3. Members of the SC and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. 4. No member of the Constitutional Commission shall during his tenure, hold any other office or employment. Applies to Ombudsman and his deputies. 5. Ombudsman and his deputies shall not be qualified to run for office in the election immediately succeeding their cessation. 6. Members of the Constitutional Commission, Ombudsman and deputies must not have been candidates for any elective position in the election immediately preceding their appointments. 7. Members of the Constitutional Commission, Ombudsman and his deputies are appointed to a term of 7 years, without reappointment. 8. Spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed: ƒ As members of the Constitutional Commission ƒ Office of Ombudsman ƒ Secretaries ƒ Undersecretaries ƒ Chairmen/heads III. DE FACTO OFFICERS -

Reputation of being an officer and yet is not a good officer in point of law. Acted as an officer for such length of time under color of title and under such circumstances of reputation or acquiescence by the public and public authorities as to afford a presumption of election/appointment and induce people to submit to or invoke his action.

Legal Effect

3

PinoyLaw.Net Notesbank

-

Nachura Notes – Law of Public Officers (Kiddy)

Those that affect the public are valid, binding and with full legal effect. For the protection of the public.

Elements 1. validly existing public office 2. actual physical possession of said office 3. color of title to the office a. by reputation/acquiescence b. known and valid appointment/election but officer failed to conform to a requirement imposed by law c. known appointment or election, void (though unknown to public) because: i. ineligibility of officer ii. want of authority of appointing/electing authority iii. irregularity in appointment/election d. known appointment/election pursuant to unconstitutional law, before law was declared unconstitutional. Entitlement of Salaries - GR: 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. - Where there is NO DE JURE officer, the officer de facto who in good faith has had possession of the office and has discharged the duties is legally entitled to emoluments. - Principle of public policy on which de facto doctrine is based. IV. COMMENCEMENT OF OFFICIAL RELATIONS Official relations are commenced: 1) Appointment 2) Election Appointment - selection by the authority vested with the power, of an individual who is to perform the functions of a given office. Commission - written evidence of appointment Designation -

imposition of additional duties

Classification 1) Permanent - Extended to person possessing the requisite qualifications

4

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

- Security of tenure 2) Temporary - Acting appointment - May not possess the requisite qualifications for eligibility - Revocable at will, without necessity of just cause or a valid investigation -

Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; new appointment is necessary - Appointment to a position in the Career Service of the Civil Service does not necessarily mean that the appointment is a permanent one Æ depend on the nature of the appointment which in turn depends on the appointee’s eligibility or lack of it. - Acceptance by petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. - Temporary appointment shall not exceed 12 months. - Mere designation does not confer security of tenure Æ person designated occupies the position only in an acting capacity. - Appointment is subject to conditions, appointment is not permanent. - Appointee cannot claim a complete appointment as long as the re-evaluation incidental to the re-organization is still pending. - “unless terminated sooner” Æ even if co-terminous with the project, it is nevertheless subject to the appointing authority. - Where temporary appointment is for a FIXED period, appointment may be revoked only at the expiration of the period OR if before, it must be for a valid and just cause. 3) Regular - One made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments and continues until the end of the term. 4) Ad-interim - Made while Congress is not in session, before confirmation by the Commission on Appointments, is immediately effective - Ceases to be valid if disapproved or bypassed by COA upon next adjournment of Congress - Permanent appointment - That it is subject to confirmation, does not alter its permanent character. -

Regular and Ad-interim Classification may be used only when referring to the following: 1) Heads of Executive Department; 2) Ambassadors and other Publi Ministers and Consuls 3) Officers of the AFP, from rank of colonel or naval captain 4) Officers whose appointments are vested in the President under the Constitution.

5

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

Steps in Appointing Process For REGULAR Appointments 1) Nomination by President 2) Confirmation by COA 3) Issuance of the Commission 4) Acceptance by the appointee

1) 2) 3) 4)

AD-INTERIM Appointment Nomination by President Issuance of the Commission Acceptance by the appointee Confirmation by COA

DO NOT require Confirmation 1) Appointment by Appointing Authority 2) Issuance of the Commission 3) Acceptance by the Appointee -

-

-

-

A person cannot be compelled to accept an appointment EXCEPT when the appointment is made to an office required in defense of the State/ Where appointment is to the CAREER SERVICE of the CIVIL SERVICE, attestation by the Civil Service Commission is required. Otherwise, not deemed complete. Appointment not submitted to the CSC w/in 30 days from the issuance (date appearing on the face of the appointment) shall be ineffective. CSC is authorized to check of the appointee possesses the qualifications and appropriate eligibility; if he does, appointment must be approved; of not, it is disapproved. Appointment is complete when the last act required of the appointing power is performed; until the process is completed, appointee can claim no vested right in the officer nor claim security of tenure. Appointment to be valid, position must be vacant.

Discretion of Appointing Authority ƒ Discretionary power and must be performed by the officer in whom it is vested. ƒ Only condition, appointee must possess the minimum qualifications requirements prescribed by law. ƒ Appointing authority is in the best position to determine who among the prospective appointees can effectively discharge the functions of the position. ƒ Final choice of appointing authority should be respected and left undisturbed. ƒ Commission may not and should not substitute its judgment for that of the appointing authority.

6

PinoyLaw.Net Notesbank

ƒ

ƒ ƒ

Nachura Notes – Law of Public Officers (Kiddy)

Civil Service Law grants career service officers preference in promotion under the “next-in-rank” rule, it is not mandatory, appointing authority should be allowed the choice of men of his confidence provided they are qualified and eligible. Provincial, city prosecutor and their assistants Æ appointed by President upon recommendation of Secretary of Justice (mere advise). Discretion of appointing authority Æ choice of the person WHO is to be appointed, NATURE and CHARACTER of appointment.

Judicial Review of Appointments ƒ Appointment generally a political question; as long as appointee possess minimum qualifications as prescribed by law for the position. ƒ Action for usurpation of office Æ Who claims a valid title to the office. Jurisdiction of the Civil Service Commission ƒ Disciplinary cases ƒ Cases involving personnel action ƒ Employment status and qualification standard ƒ Recall an appointment initially approved – when issued with disregard to Civil Service Laws, rules and regulations ƒ Approving and reviewing appointments to determine their compliance with the Civil Service Law ƒ On its own, does not have the authority to terminate employment or drop members from the roll Appointments to the Civil Service ƒ Scope: ALL branches, subdivision, instrumentalities and agencies of the Government, including GOCC with original charter. Classes of Service 1. Career Service a. Description - Entrance based on merit and fitness, as far as practicable by competitive examinations - Or based on highly and technical qualifications - Opportunity for advancement to higher career positions - Security of tenure b. Includes: 1) Open Career Service - Prior qualification in an appropriate examination is required 2) Closed Career Service - Scientific or highly technical 3) Career Executive Service - Undersecretaries, bureau directors, etc. 4) Positions in the Armed Forces of the Philippines - Governed by a different merit system

7

PinoyLaw.Net Notesbank

ƒ

Nachura Notes – Law of Public Officers (Kiddy)

5) Career Officers - Other than those belonging to Career Executive Service, appointed by President, e.g. foreign service 6) Personnel of GOCC w/ original charters 7) Permanent laborers (skilled, semi-skilled or unskilled) Career Executive Service ¾ 2 requirements to attain security of tenure i. Career executive service eligibility ii. Appointment to the appropriate career executive service rank ¾ Security of tenure pertains only to rank and not to the office or position

2. Non-Career Service a. Description - Entrance on bases other than those of the usual tests utilized for the career service - Tenure 1) limited to a period specified by law or 2) which is co-terminous with that of the appointing authority or 3) subject of his pleasure or 4) which is limited to the duration of a particular project for which purpose the employment was made. b. Includes: 1) Elective officials, personal and confidential staff 2) Department Heads and officials of Cabinet rank who holds office at the pleasure of the President, personal and confidential staff 3) Chairmen and members of commissions/boards w/ fixed terms of office, personal and confidential staff 4) Contractual personnel/ those whose employment in government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in employing agency, to be accomplished within a period not exceeding 1 year, under his own responsibility, with minimum direction and supervision 5) Emergency and seasonal personnel -

Under Administrative Code, the CSC is expressly empowered to declare positions in the CS as primarily confidential. Enumeration in the Civil Service decree, which defined the non-career service is not an exclusive list. Commission can supplement this list. Coterminous status may be classified as: 1. co-terminous with project – duration of particular project for which employment was made.

8

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

2. co-terminous with appointing authority – tenure of appointing authority or at his pleasure 3. co-terminous with incumbent – co-existent with appointee, such that after the latter’s resignation, separation or termination of the services, the position shall be deemed automatically abolished. 4. co-terminous with a specific period – for a specific period, upon expiration, position is deemed abolished. Requisites 1. made according to merit and fitness 2. competitive examination Exceptions: 1. policy determining 2. primarily confidential or 3. highly technical

-

In a department, appointing power is vested in the DEPARTMENT SECRETARY, although it may be delegated to the REGIONAL DIRECTOR, subject to approval of the Department Secretary.

-

Principles 1) Classification of a particular position as policy-determining, primarily confidential or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position 2) The exemption provided pertains only to exemption from competitive examination to determine merit and fitness to enter the civil service 3) Exempt from competitive examination to determine merit and fitness: a. Policy-determining ¾ Officer lays down principal or fundamental guidelines or rules ¾ E.g. department head b. Primarily confidential ¾ Not only confidence in the aptitude if the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayal on confidential matters of state ¾ NATURE of the position which determined whether a position is primarily confidential, policy-determining or highly technical ¾ “proximity rule” – can be considered as confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship

9

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust or confidential matters of the State. ¾ Where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant, and cannot be classified as primarily confidential. c. Highly technical – requires possession of technical skill in a superior degree. ¾ Legal counsel of PNB ¾ City Legal Officer ¾ City Attorney ¾ Security Council and Security Guards of the City Vice Mayor Other Personnel Action 1) 2) 3) 4) 5) 6) 7)

Promotion Appointment through Certification Transfer Reinstatement Detail Reassignment Reemployment

Promotion - Movement from one position to another with increased duties and responsibilities as authorized by law - Usually accompanied by an increase in pay. - Next-in-rank Rule ¾ The one who is next in rank is given preferential consideration ¾ Does not mean that he alone can be appointed ¾ Appointing authority is required to state the “special reasons” for not appointing the officer next in rank. - Automatic Reversion Rule ¾ All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions. Affected persons are entitled to payment of salaries for services rendered at a rate fixed in their promotional appointments. ¾ Requisites: 1. series of promotions

10

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

2. all promotional appointments are simultaneously submitted to the Commission for approval 3. Commission disapproves the appointment of a person to a higher position Appointment through Certification - Issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles and who meets the qualifications prescribed for the position. Transfer - Movement from one position to another which is of equivalent rank, level or salary without break in service. - May be imposed as an administrative penalty. - Unconsented transfer violates security of tenure. - Career Executive Service personnel can be shifted from one office to another without violating their right to security of tenure, because salary and status is based on their ranks and not on the positions to which they are assigned. Reinstatement - Has been permanently appointed in the career service and who has, through no delinquency of misconduct, been separated may be reinstated to a position in the same level for which he is qualified. - Acquisition of civil service eligibility is not the sole factor for the reappointment. Other factors should be considered: performance, degree of education, work experience, training, seniority and enjoys confidence and trust of the appointing power. - Not subject to application for a writ of mandamus. - Issuance of new appointment which is discretionary - Exercise of discretionary power cannot be controlled by the courts, as long as properly exercised - Forfeited his right to public office because of conviction of a crime, but was extended plenary pardon CANNOT by reason of pardon demand reinstatement as a matter of right. - Exception: 1. Sabello vs. DECS – considerations of justice and equity 2. Garcia vs. Chairman, Commission on Audit – person given pardon because he did not truly commit the offense; the pardon relives him from all punitive consequences of his criminal act thereby restoring him to his clean name, good reputation and unstained character prior to his finding of guilt. Detail - Movement of an employee from one agency to another without the issuance of an appointment - Allowed only for a limited period of time in the case of employees occupying professional, technical and scientific positions

11

PinoyLaw.Net Notesbank

-

Nachura Notes – Law of Public Officers (Kiddy)

Temporary in nature

Reassignment - Reassigned from one organizational unit to another in the same agency - Not involve reduction in rank, status or salary - Management prerogative vested in the CSC, any department or agency embraced in Civil Service - Does not constitute removal without cause - Should have definite date and duration. - Lack of specific duration is tantamount to floating assignment thus a dimunition in status or rank. Reemployment - Names of persons who have been appointed permanently to positions in the career service and who have been SEPARATED as a result of REDUCTION in force and/or REORGANIZATION, shall be entered in a list from which selection for reemployment shall be made - Separated not for a cause but as a result of reorganization Æ separation pay + retirement and other benefits; in lieu of separation pay, may be considered for employment (Proclamation No. 3) V. POWERS AND DUTIES OF PUBLIC OFFICERS Authority of Public Officers 1. Expressly conferred upon him by the ACT appointing him 2. Expressly ANNEXED to the office by LAW 3. Attached to the office by COMMON LAW as incidents to it 4. Doctrine of Necessary Implication – all powers necessary for the effective exercise of the express powers Authority can be exercised only during the term when the public officer, is by law, invested with the rights and duties of the office. Ministerial and Discretionary Powers 1. Ministerial – discharge by officer is imperative and requires neither judgment nor discretion; exercise of which may be compelled 2. Discretionary – imposed by law upon a public officer; officer has the right to decide how and when the duty shall be performed; mandamus will not lie to compel performance ¾ Exception: when mandamus will lie: 1. GAD 2. manifest injustice 3. palpable excess of authority equivalent to a denial of settled rights 4. no other plain, speedy or adequate remedy ¾ writ may issue to compel the exercise of discretion but not the discretion itself

12

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

¾ Courts may review exercise of discretion, to determine if there has been GAD amounting to lack or excess of jurisdiction ¾ Judgment – judicial functions; determination of a question of law; only one way to be right ¾ Discretion, may decide the question either way and still be right; limited to the evident purpose of the act Duties of Public Officer Constitutional Duties ¾ To be accountable to the people ¾ To serve them with utmost responsibility, loyalty and efficiency ¾ To act with patriotism and justice ¾ To lead modest lives ¾ To submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as may be required ¾ To owe the State and Constitution allegiance at all times • SOLGEN – represent government and its offices EXCEPT criminal cases and civil cases for damages arising from felony. Prohibitions 1. Partisan political activity or taking part in any election except to vote • Except: 1. those holding political offices 2. cabinet members 2. Additional or double compensation 3. Prohibition against loans 4. Limitation on laborers • Not assigned to clerical duties 5. Detail or reassignment • w/in 3 months before any election without approval of COMELEC 6. Nepotism • Appointments made in favor of a relative of the appointing or recommending authority or of the chief of the bureau or office or of the person exercising immediate supervision over him. • All appointments. • Relative: those related within the 3rd civil degree by consanguinity or affinity • Exemption: 1. confidential capacity 2. teachers 3. physicians 4. members of the Armed Forces * full report of appointment shall be made to the Commission

13

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

VI. LIABILITY OF PUBLIC OFFICERS General Rule on Liability • 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, except as otherwise provided by law. • Not civilly liable for acts done in official capacity UNLESS bad faith, malice, negligence • Liable for willful or negligent acts done by him which are contrary to morals, law public policy and good customs EVEN if he acted under instructions of his superiors. • Local governments are not exempt from liabilities for DEATH or INJURY to persons or DAMAGE to property. Statutory Liability • Article 27, CC – refuses or neglects without just cause to perform his official duty, whereby a person suffers moral or material loss; without prejudice to administrative disciplinary sanction • Article 32, CC – liability of public officer for violation of constitutional rights • Article 34, CC – liability of peace officer who fails to respond or give assistance to persons in danger of injury to life or property • w/o just cause. Neglects to perform a duty within a period fixed by law or regulation or within a reasonable period if none is fixed Liability on Contracts • personally Æ entered without or exceeded his authority Liability for Tort • personally Æ beyond the scope of his authority or exceeds power conferred upon him; ultra vires or where there is bad faith Presidential Immunity from Suit • during tenure of the President • After his tenure, cannot invoke immunity from suit for civil damages arising out of acts done by him, while he was president which were not performed in the exercise of official duties. • Not prevented from instituting suit. Threefold Liability Rule • Wrongs acts or omissions of a public officer may give rise to civil, criminal and administrative liability. • Action for each can proceed independently • Dismissal of one does not foreclose action for others. Æ difference in quantum of evidence

14

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

Liability of Minsiterial Officers 1. Nonfeasance – neglect or refusal to perform an act which is the officer’s legal obligation 2. Misfeasance – failure to exercise that degree of care, skill and diligence in the performance of official duty 3. Malfeasance – doing, through ignorance, inattention or malice of an act which he had no legal right to perform. Command Responsibility • Head of a department or a superior officer shall not be civilly liable for the wrongful acts, omission of duty, negligence or misfeasance of his subordinates, UNLESS he has actually authorized by written order the specific act or misconduct. VII. RIGHTS OF PUBLIC OFFICERS 1. 2. 3. 4. 5. 6. 7. 8. 9.

Right to Office Right to Salary Right to Preference in Promotion Right to Vacation and Sick Leave Right to Maternity Leave Right to Retirement Pay Right to reimbursement for expenses incurred in due performance of duty Right to be indemnified against any liability Right to longevity pay

Right to Office • Just and legal claim to exercise the powers and the responsibilities of the public office. • Term vs. Tenure ¾ Term: period during which the officer may claim to hold the office as a matter of right. ¾ Tenure: period during which the officer actually holds office. Right to Salary • Salary – personal compensation to be paid to the public officer for his services • Generally a fixed or periodical payment depending on the time and not on the amount of the services he may render. • Distinguished from wages: ¾ Salaries are given to officers of higher degree of employment than those given wages. ¾ Salary is compensation per annum. Wages are paid day by day or week by week. • Basis: 1. legal title to the office 2. law attaches compensation to the office

15

PinoyLaw.Net Notesbank

• • • • • •

Nachura Notes – Law of Public Officers (Kiddy)

Right of de facto officer to compensation Æ when there is no de jure and de facto officer, who in good faith has possession of the office and has discharged the duties. Salary cannot be garnished nor subject to attachment or order of execution before being paid to him to answer for the payment of his debts. Public policy also prohibits the assignment of unearned salaries Agreements affecting compensation are void as contrary to public policy. Compensation, allowances and other benefits granted without the approval of the DBM are unauthorized and irregular. Constitutional provisions affecting salaries: 1. no increase in salaries of members of Congress shall take effect until after the expiration of the full term of the Members of the Senate and HofRep who approved he increase. 2. Salaries of President and VP shall be fixed by law and sjall not be decreased during their tenure. No increase, until after expiration of the incumbent during which increase was approved. 3. Salary of members of the Judiciary shall not be decreased during their continuance in office; income tax is not unconstitutional dimunition. 4. Additional, double or indirect compensation are prohibited. 5. Standardization of compensation. 6. Separation pay to career Civil Service employees who are separated from service not for cause but by reason of reorganization.

Preventive Suspension and the Right to Salary 1. Preventive Suspension pending investigation 2. Preventive Suspension pending appeal ¾ If the penalty imposed is suspension or dismissal and after review, he is exonerated Æ no right to compensation during preventive suspension even pending investigation ¾ It is not enough that he is exonerated; it must be shown that suspension is unjustified ¾ Justified if charged with: 1. dishonesty 2. oppression 3. grave misconduct 4. neglect of duty ¾ Gloria vs. Court if Appeals Æ entitled not only to reinstatement but also to back wages for the period of preventive suspension pending appeal. ¾ Because preventive suspension pending appeal is actually PUNITIVE. ¾ Award should not exceed equivalent of 5 years pay at the rate last received before suspension was imposed. ¾ If his conviction is affirmed, the period of his suspension becomes part of the final penalty of suspension.

16

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

Right to back salaries of illegally dismissed employees ¾ Illegally dismissed government employees who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. ¾ “no work, no pay” not applicable ¾ Note: Balitaosan vs. Secretary, DECS: reinstatement was not the result of exoneration but an ACT OF LIBERALITY of the CA, the claim for back wages was not allowed. Thus the general rule that a public official is not entitled to compensation if he has not rendered any service was applied. ¾ No right to back wages if NOT EXONERATED and NOT UNJUSTIFIABLY SUSPENDED Right to additional allowance and benefits ¾ LGUs may provide additional allowances and benefits to national government officials assigned or stationed in their municipality or city. ¾ Not without limitations. Right to Preference in Promotion ¾ Right does not prevail over discretion of appointing authority. Right to Vacation and Sick Leave ¾ Sec 81, RA 7160 (LGC) – Elective local officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials, including the cumulation and commutation. ¾ Entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned, provided the claimant was in the service as of January 9, 1986. ¾ Government employees are not required to work on Saturdays, Sundays and holidays. Right to Maternity Leave Right to Retirement Pay ¾ Retirement laws are liberally construed in favor of the retiree. ¾ Money value of the terminal leave of a retiring government official shall be computed at the retiree’s highest monthly pay. ¾ Judiciary – extension if satisfied that the career was marked by competence, integrity and dedication to the public service. ¾ A reserved officer who successfully rendered a total of 10 years continuous active commissioned military service shall not be reverted to inactive service except for cause or upon his own request. Covered by compulsory membership in the GSIS. ¾ Totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the systems. Right to reimbursement for expenses incurred in due performance of duty

17

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties. Right to longevity pay VIII. TERMINATION OF OFFICIAL RELATIONSHIP Modes of Terminating Official Relationship 1. Expiration of term or tenure 2. Reaching the age limit 3. Resignation 4. Recall 5. Removal 6. Abandonment 7. Acceptance of an Incompatible Office 8. Abolition of Office 9. Prescription of the Right to Office 10. Impeachment 11. Death 12. Failure to Assume Elective Office w/in 6 months from proclamation 13. Conviction of a Crime 14. Filing of Certificate of Candidacy Expiration of term or tenure ¾ Courtesy resignation during the EDSA Revolution Æ expiration of term; entitled to retirement benefits ¾ Termination presupposes an overt act committed by a superior officer ¾ Commencement of Term of Office 1. statute fixes a period Æ upon qualification 2. no time is fixed by law Æ date of appointment/election 3. law fixing the term is ambiguous Æ one that fixes the term at the shortest period should be followed 4. both duration of the term of office and the time of its commencement/termination are fixed by constitutional or statutory provision Æ person appointed or elected for vacancy shall hold the same only for the unexpired portion 5. only the duration is fixed, no time is fixed for beginning or end Æ person selected to fill the vacancy may serve the full term and not merely the unexpired balance of the prior incumbent’s term 6. office is created/officer appointed for the purpose of performing a single act or accomplishment of a given result Æ office terminates and the authority ceases with the accomplishment of the purposes which called it into being. ¾ Principle of Hold-Over: public officer is entitled to hold his office until his successor shall have been duly chosen and shall have qualified. Purpose is to prevent hiatus in public service.

18

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

ƒ

Legislative intent of not allowing hold-over must be clearly expressed or at least implied in the legislative enactment, otherwise, it is reasonable to assume that the law-making body favors the same. Article 237, RPC which penalizes public officer who shall continue to exercise the duties and powers of the office beyond the period provided by law. During this period, de jure officer Where the law fixes a specific sate for the end of the term Æ implied prohibition against hold-over

ƒ ƒ ƒ

Reaching the age limit ¾ Compulsory Retirement Age ƒ 70 for members of judiciary ƒ 65 for other government officers or employees ¾ Special Retirement Laws: RA 1616 – allows optional retirement after an officer has rendered a minimum number of years of government service, when availed of by the public officer, will result in the termination of official relationship through reaching the age limit or retirement. Resignation ¾ Act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. ¾ Intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority ¾ Voluntariness – when procured by fraud, may be invalidated ¾ Courtesy resignation lacks the element of voluntariness and therefore is not a valid resignation. ¾ Need for Acceptance – not complete until accepted by competent authority ¾ Article 238, RPC penalizes any public officer who, before the acceptance of his resignation, abandons his office to the detriment of the public service. ¾ If the public officer is mandated by law to hold-over, the resignation, even if accepted, will not be effective until after appointment/election of his successor. ¾ Accepting Authority – RA 7160, officers authorized to accept resignation: 1. President – governor, vice-governor, mayor and vice-mayor f highly urbanized cities and independent component cities 2. Governor – municipal mayors and vice-mayors, city mayors and vice-mayors of component cities 3. Sanggunian – sanggunian members 4. City or municipal mayor – barangay officials • Resignation deemed accepted if not acted upon w/in 15 days from receipt

19

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

•

Resignation by Sanggunian members shall be deemed accepted upon: 1. presentation before an open session of the sanggunian concerned 2. duly entered in its record 3. EXCEPT where sanggunian members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignation ¾ If the law is silent on who shall accept: 1. appointive officer resigns Æ appointing authority 2. elective officer resigns Æ officer authorized by law to call an election in order to fill the vacancy ¾ President and VP Æ Congress ¾ Members of Congress Æ respective Houses Effective Date of Resignation ¾ Date specified in the tender ¾ No date specified public officer receives notice of the acceptance NOT the date of the letter or notice of acceptance Recall ¾ Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate. ¾ By Whom: registered voters of a LGU to which such local government official belongs ¾ Initiation of the Recall Process: registered voters of the LGU ¾ Procedure for Initiating Recall 1. initiated upon petition by at least 25% of the total number of registered voters in the LGU 2. written petition ƒ duly signed before the election registrar/representative ƒ in the presence of a representative of the petitioner ƒ representative of the official ƒ in a public place, in the province, city, municipality or barangay ƒ filed with the COMELEC through its office in the LGU concerned 3. COMELEC shall cause the publication of the petition ƒ In a public and conspicuous place ƒ Period not less than 10 days nor more than 20 days ƒ Purpose of verifying the authenticity and genuineness of the petition and required percentage of voters 4. Lapse of the period, COMELEC or its duly authorized representative, shall announce the acceptance of candidates to the position and

20

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

prepare list of candidates, including the name of the official sought to be recalled. ¾ Election on Recall ƒ

Upon filing of a valid petition, COMELEC shall set date for the election on recall ƒ Not later than 30 days after the filing of the resolution/petition in the case of barangay/city/municipal officials ƒ Not later than 45 days in the case of provincial officials ƒ Officials sought to be recalled, automatically considered as registered candidate. ¾ Effectivity of Recall ƒ Recall of an elective official shall be effective upon the election an proclamation of a successor. ƒ If the official sought to be recalled receives the highest number of votes Æ confidence in him is affirmed and he shall continue in office ¾ Prohibition from Resignation ¾ Limitation on Recall 1. any elective official may be subject of a recall election once during his term of office for lack of confidence 2. no recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election ƒ Sangguiniang Kabataan election is not a regular election; ƒ Not barred by barangay election ƒ Approaching local election must be one where the position of the official to be recalled is actually contested and to be filled by the electorate Removal ¾ Constitutional Guarantee of Security of Tenure – not removed or suspended except for causes provided by law ¾ Career service officers and employeesÆ causes enumerated in law and in accordance with procedure prescribed ¾ Removal not for just cause or non-compliance with prescribed procedures Æ reversible, reinstatement with back salaries and without loss of seniority rights ¾ Demotion is tantamount to unlawful removal is NO CAUSE is shown or it is NOT PART OF DISCIPLINARY ACTION ¾ Unconsented transfer resulting in demotion in rank or salary is tantamount to removal without just cause. ¾ A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to lure the employee away from his permanent position, cannot be done without the employee’s consent, for that would constitute removal from office.

21

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

¾ No permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. ¾ Some cases on Grounds for Disciplinary Action: 1. Dishonesty – concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty; e.g. use of fake or spurious civil service eligibility 2. Conduct prejudicial to the best interest of the service 3. Misconduct – transgression of some established and definite rule of action; wrongful intention ¾ Administrative Code of 1987: 1) Unsatisfactory conduct and 2) Want of capacity ¾ Civil Service Law: inefficiency and incompetence in the performance of official duties • Poor performance falls within the concept of inefficiency and incompetence • Inefficiency and incompetence can only be determined after the passage of sufficient time, hence, the probationary period of 6 months. ¾ Poltical or non-career members of the Foreign Service is coterminous with that of the appointing authority or subject to his pleasure ¾ Holding primarily confidential positions continue in office as long as the confidence in them endures; termination is justified on the ground of lack of confidence Æ removal: expiration of term ¾ Holding temporary or acting appointments Æ may be removed at any time, without necessity of just cause or a valid investigation. Procedure in Administrative Case 1. Administrative case against a public official shall continue despite withdrawal of the complaint since they do not involve purely private matters but are impressed with public interest by virtue of the public character of the public office. 2. Substantial proof and not clear and convincing evidence or proof beyond reasonable doubt is sufficient. ƒ Satisfied when the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation renders him unworthy of trust and confidence demanded by his position. Jurisdiction in Disciplinary Cases 1. Heads of ministries, agencies and instrumentalities, provinces, cities and municipalities have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. ƒ Decision final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary. ƒ Other cases, decision shall be initially appealed to the department head and finally to the Civil Service Commission and pending appeal, shall be

22

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

executory EXCEPT when the penalty is removal, in which case it shall be executory only after confirmation by the department head. ƒ Committee to hear administrative charge against public school teacher Æ representative of the teacher’s organization 2. Civil Service Commission has appellate jurisdiction. Case may be filed directly to it; it may decide on the case or deputize a department or agency Preventive Suspension ƒ The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation if the charge against such officer or employee involves 1) dishonesty, 2) oppression or grave misconduct or 3) neglect in the performance of duty or 4) if there is reason to believe that the respondent is guilty of charges which would warrant his removal from the service. ƒ Not a penalty. Enable authorities to investigate. ƒ If the investigation is not finished and a decision is not rendered within a period of 90 days, the suspension will be lifted and the respondent will automatically be reinstated. ƒ If after investigation, he is innocent of the charges and is exonerated, he should be reinstated. ƒ Preventive suspension can be ordered even without a hearing. ƒ Authority to preventively suspend: exercised concurrently by the Ombudsman ƒ RA 6770: 6 months ƒ Court may validly order the preventive suspension of officer (since removal of office is within the power of the Courts) ƒ

Back salary is not warranted when the immediate execution of the order of dismissal is justified.

ƒ ƒ

Made within 15 days from receipt of the decision UNLESS a petition for reconsideration is filed, which shall be decided within 15 days Petition for Reconsideration – 3 grounds only: (1) New evidence has been discovered which materially affects the decision (2) Decision is not supported by evidence on record (3) Error of law or irregularities have been committed which are prejudicial to the interest f the respondent From resolution of the CSC, file a petition for certiorari R65 w/in 30 days from receipt of copy of the resolution

Appeal

ƒ

ƒ

Summary Dismissal ƒ RA 6654

23

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

Removal of Administrative Penalties or Disabilities ƒ Meritorious cases, upon recommendation of the CSC ƒ President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases ƒ Subject to terms and conditions he may impose in the interest of the service Abandonment ƒ ƒ ƒ ƒ ƒ ƒ

ƒ

ƒ

ƒ ƒ ƒ ƒ

Voluntary relinquishment of an office by the holder with the intention of terminating his possession and control Species of resignation Resignation is formal relinquishment Abandonment is voluntary relinquishment through non-user “Non-user” neglect to use a privilege or a right or to exercise an easement or an office A person holding an office may abandon such office (1) Non-user (2) Acquiescence Non-performance does not constitute abandonment when: (1) Temporary disability (2) Involuntary failure to perform Public officer vacates office in deference to the requirements of a statute which is afterwards declared unconstitutional, such surrender will not be deemed abandonment. Mere delay in qualifying for an office is not abandonment But failure to assume office w/in 6 months fro proclamation, without just or valid cause, shall have the effect of vacating the office. Automatically separated if he fails to return to the service after the expiration of 1-year leave of absence without pay. Absent for at least 30 days without approved leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. ¾ Granting or approval of leaves – discretionary on the head and depends upon the needs of the service ¾ Failure to make courtesy call to one’s superior is not an offense, much less a ground to terminate employment.

Acceptance of an Incompatible Office ¾ Test of Incompatibility ƒ Nature and relation of the two offices to each other, they ought not to be held by one person from the contrariety and antagonism which would result ¾ Acceptance of incompatible office ipso facto vacates the other. There is no necessity for any proceeding to declare or complete the vacation of the first.

24

PinoyLaw.Net Notesbank

Nachura Notes – Law of Public Officers (Kiddy)

¾ Canonizado vs. Aguirre – no incompatibility; though accepted latter, he continued to pursue legal remedies to recover the first from which he was ousted by a law later to be declared unconstitutional. ¾ Exception: when authorized by law to accept the other office. Abolition of Office ¾ Power of legislature to abolish an office – Congress; even during the term for which an existing incumbent may have been elected ¾ Constitutional offices cannot be abolished ¾ No law shall be passed reorganizing the Judiciary, when it undermines security of tenure ¾ Valid abolition of office does not constitute removal of incumbent ¾ Legal competence if the city council to create, consolidate and reorganize city offices and positions wholly supported by local funds ¾ Requisite for Abolition of Office (1) Made in good faith (2) Clear intent to do away with the office (3) Cannot be implemented in a manner contrary to law ¾ Reorganization of Government Offices ƒ Constitutional recognition of authority to reorganize: promotion of simplicity, economy and efficiency is the usual standard. ¾ No violation of due process even if no hearing was conducted in the matter of reorganization of DBP, as long as employee was given a chance to present evidence. ¾ Removal of employees pursuant to guidelines in EO116, reorganization of Dept. of Agriculture (1) Existence of case for summary dismissal (2) Probable cause for violation of RA 3019 (3) Gross incompetence or inefficiency (4) Misuse of public office for partisan political activities (5) Analogous grounds showing that incumbent is unfit to remain in office ¾ Reorganization must meet the common test of good faith. ¾ PD1416: grants the President the continuing authority to reorganize the national government, which includes the power to group consolidate bureaus and agencies, to abolish offices, to transfer functions, to classify and create functions, services and activities and to standardize salaries and materials. Prescription of the Right to Office ƒ Petition for reinstatement after illegal ouster or dismissal OR recovery of public office Æ w/in 1 year from the date petitioner is illegally ousted. ¾ Exception: strong, compelling and special circumstances ¾ Cristobal vs. Melchor: on grounds of equity ƒ Reason: title to public office should not be subject to continued uncertainty; should be determined as speedily as possible.

25

PinoyLaw.Net Notesbank ƒ

Nachura Notes – Law of Public Officers (Kiddy)

Filing of an action for administrative remedy does NOT suspend the period for filing the appropriate judicial proceeding (quo warranto); 1 year period runs even during pendency of a motion for reconsideration.

Impeachment Death ¾ Renders office vacant. Failure to Assume Elective Office w/in 6 months from proclamation ¾ Unless failure is for a cause or causes beyond his control Conviction of a Crime ¾ Penalty imposed upon conviction carries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship. ¾ Plenary pardon extinguished the accessory penalty of disqualification, it will not restore the public office to the officer convicted; ¾ He must be given a new appointment. Filing of Certificate of Candidacy ¾ Any person holding a public appointive office or position, ¾ Including active members of the AFP ¾ And officers and employees in GOCCs ¾ Shall be considered ipso facto RESIGNED upon filing of certificate of candidacy. ¾ Applies even to employees of GOCCs without an original charter

26