Up 2008 Barops Public-officers-2007

234 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 sovereign functions of the government, to be exercised by him for the benefit of the public. (Fernandez v Sto. Tomas, March 7, 2005) 2. Purpose • to effect the end for which government has been instituted which is the common good; not profit, honor, or private 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 responsibility and not a right. (Morfe v. Mutuc) 4. Elements • Must be created either by (a) the Constitution, (b) the Legislature, or (c) a municipality or other body through 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 powers conferred and the duties discharged must be defined, directly or impliedly by the Legislature or through legislative authority; • The duties must be performed independently and without control of a superior power other than the law; Exception: If the duties are those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the general control of a superior office or body;

•

Must have some permanency and continuity Note: This is not to be applied literally. The Board of Canvassers is a public office, yet its duties are only for a limited period of time. The element of continuance cannot be considered as indispensable. Mechem describes the delegation to the individual of some of the sovereign functions of government as “the most important characteristic” in determining whether a position 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 declared by the Court to be a public officer. The Court ruled that the NCC performs executive functions as it enforces and carries into operation the conservation and promotion of the nation’s historical and cultural heritage, a policy embodied in the Constitution. That Laurel did not receive any compensation during his tenure is of little consequence. This is because a salary is a usual but not a necessary criterion for determining the nature of the position. At the same time, the element of continuance cannot be considered as indispensable. 5. Public Office v. Public Employment • Public employment is broader than public office. All public office is public 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 which the public is concerned. Public employment is a position which lacks one or more of the foregoing elements.

Public Office

Public Contract

Creation

Incident sovereignty

of

Originates from will of contracting parties

Object

Carrying out of sovereign as well as governmental functions affecting even persons not bound by the contract

Obligations imposed only upon the persons who entered into the contract

Subject Matter

Tenure, continuity

Limited duration

Scope

Duties that are generally continuing and permanent

Duties are specific to contract

Where duties are defined

The law

Contract

duration,

very the

235 6. Public Office v. Public Contract 7. There is no vested right to public office. • GENERAL RULE: A public office, being 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: 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 property of the incumbent and that a public office is not a public contract. Although there is a vested right to an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear (Segovia v. Noel). 8. Public Office is not property. • A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution. • Exceptions: In quo warranto proceedings relating to the question as to which 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 considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office (Cornejo v. Gabriel). Abeja v. Tanada Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. 9. Creation of Public Office • -

Modes of Creation of Public Office by the Constitution by statute / law

-

by a tribunal or body to which the power to create the office has been delegated

•

Scope and Extent of Power of Legislature GENERAL RULE: The creation of a public office is primarily a legislative function. Exceptions: o where the offices are created by the Constitution; o where the Legislature delegates such power.

•

Delegation of Power to Create Public Office Where an office is created pursuant to illegally delegated powers, the office would have no existence. U.S.T. v. Board of Tax Appeals The authority given to the President to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the 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 order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts."

10. Methods of Organizing Offices • Single-head: one head assisted by subordinates. Swifter decision and action but may sometimes be hastily made. • Board System: collegial body in formulating polices and implementing programs. Mature studies and deliberations but may be slow in responding to issues and problems. 11. Modification and Abolition of Public Office • GENERAL RULE: The power to create an office includes the power to modify or abolish it. (i.e., this is generally a legislative function) • EXCEPTIONS: o Where the Constitution prohibits such modification / abolition;

236 Where the Constitution gives the people the power to modify or abolish the office RULE on Abandonment: When a 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 appointment would affect public interest, and the public official is thereby constrained to accept.

delegation to the individual of some of the sovereign functions of 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 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, 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 legislative power to 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 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.

Illustrations: •

In the case of Maniego v. People, a laborer who was in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203. The court held that even temporary performance of public functions is sufficient to constitute a person as a public official.

•

In the case of People v. Paloma, a sorter and filer of money orders in the Auditor's Office of the Bureau of Posts was convicted for infidelity in the custody of documents. The court pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously a public function or duty.

Exception: When the non-acceptance of the new appointment would affect 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 officer, esp. where he has received 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 by virtue of direct provision of law, popular election, or appointment by competent authority. His duties involve the exercise of discretion in the performance of the functions of the 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

Who are not considered public officers? •

Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co. v. CIR);

237 •

•

Concession forest guards (Martha Lumber Mill v. Lagradante);

•

Company cashier of a private corporation owned by the government (Tanchoco v. GSIS)

•

2. A person cannot be compelled to accept a public office. • EXCEPTIONS: • When citizens are required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); • When a person who, having 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 official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power (Villegas v. Subido). C. Classification of Public Offices Public Officers • -

Creation Constitutional Statutory

-

Public Body Served National Local

•

•

and

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 government. The public cannot 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: Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); Under color of a known election or appointment, void because: o the officer was not eligible; o there was a want of power in the electing or appointing body; o there was a defect or irregularity in its exercise; o such ineligibility, want of power, or defect being unknown to the public. Note: Such ineligibility, want of authority or irregularity being unknown to the public Under color of an election or an appointment by or pursuant to a

238 public, unconstitutional law, before the same is adjudged to be such. o Note: What is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby) •

Validity of official acts

Valid, subject to exceptions (e.g., they were done beyond the scope of his authority, etc.)

Valid as to the public until such 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;

must possess the legal qualifications for the office in question;

Color of right or general acquiescence by the public;

The principle of "no work, no pay" is not applicable to him.

must be lawfully chosen to such office;

Actual physical possession of the office in good faith

must have qualified himself to perform the duties of such office according to the mode prescribed 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

Officer under any of the 4 circumstances discussed under Part II (above).

One who takes possession of an office and undertakes to act officially without any authority, either actual or apparent

of

Color of right or title to office

None. He has neither lawful title nor color of right or title to office.

Validity of "official" acts

Valid as to the public until such time as his title to the office is adjudged insufficient

Absolutely void; they can be impeached at any time in any proceeding (unless and until he continues to act for so long

Nature

Reputation: Has the possession and performs the duties under color of right, without being technically qualified in all points of law to act Only by direct proceeding (quo warranto); not collaterally

a

He is paid only for actual services rendered by him.

Basis authority

239 a time as to afford a presumption of his right to act) 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 rendered by him. •

•

An intruder / usurper ripen into a de facto officer. With the passage of time, a presumption may be created in the minds of the public that the intruder 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.

3. Elements of a De Facto Officership (1) De jure office (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith Examples of those not considered as De Facto Officers •

A judge who has accepted an appointment as finance secretary and yet renders a decision after having accepted such appointment (Luna v. Rodriguez);

•

A judge whose position has already been abolished by law, and yet promulgates a decision in a criminal case after the abolition and over the objection of the fiscal (People v. So)

4. Office created under an unconstitutional statute • The prevalent view is that a person appointed or elected in accordance with a

law later declared to be unconstitutional may be considered de facto at least before the declaration of unconstitutionality. 5. Legal Effect of Acts of De Facto Officers •

As regards the officers themselves: 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. RATIONALE: For the protection of the public • Official Acts of De Facto Officers not subject to collateral attack • RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in proceedings to which he is not a party, or which were not instituted to determine the very question. • REMEDY: Quo warranto proceedings o Who may file:  The person who claims to be entitled to the office;  The Republic of the Philippines, represented by  the Solicitor-General; or  a public prosecutor 6. Liabilities of De Facto Officers • The liability of a de facto officer 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 officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de facto status. 7. Right to Compensation of De Facto Officer • GENERAL RULE: A de facto officer cannot maintain an action to recover the salary, fees or other emoluments attached 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: endowment / requirement / 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, Philippine Ports Authority 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 tenure. In fine, 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 another position under protest, for which she received compensation. Thus, while her assumption to the said position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office, she cannot recover full back wages for the period when she was unlawfully deprived thereof. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. III. ELIGIBILITY AND QUALIFICATIONS A. Definition

B. Power to Prescribe Qualifications • GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office. • Restrictions on the Power of Congress to Prescribe Qualifications: • Congress cannot exceed its constitutional powers; • Congress cannot impose conditions of eligibility inconsistent with constitutional provisions; • The qualification must be germane to the position ("reasonable relation" rule); • Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment. (Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power.); • Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications. • In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office. Examples of legislative enactments which are tantamount to legislative appointments:

•

Extensions of the terms of office of the incumbents;

241 •

•

•

•

The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-atlarge of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice. (Vargas v. Rilloraza); A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City (Flores v. Drilon); A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created (contemplated in Manalang v. Quitoriano); A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association as one of the qualifications for appointment; and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list (Cuyegkeng v. Cruz) ;

Manalang v. Quitoriano Congress cannot either 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 ofthe President, upon which no limitations may be imposed by Congress, except those resulting from:

(1) the

need of securing the concurrence of the Commission on Appointments; and

(2) the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. Cuyegkeng v. Cruz The power of appointment vested in the President by the Constitution connotes necessarily a reasonable measure of freedom, latitude, or discretion in the

exercise of appointees.

the

power

to

choose

Flores v. Drilon Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself 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. qualification must be at the time of commencement of term or induction into office; 2. qualification / eligibility must exist at the time of the election or appointment • Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, then the public officer forfeits the office. Castaneda v. Yap Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. Frivaldo v. COMELEC The citizenship requirement must be met only on election day. While the Local Government Code requires residency of one year immediately preceding election day and the prescribed age on election day, no date is specified for citizenship. The purpose of the citizenship requirement is to ensure leaders owing allegiance to no other country. Such purpose is not thwarted, but instead achieved by construing the requirement to apply at time of proclamation and at the start of the term. D. Construction Eligibility

of

Restrictions

on

242 • •

There is a presumption IN FAVOR OF ELIGIBLITY of one who has been elected or appointed to public office. The right to public office should be strictly construed against 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 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 resident of the Philippines for not less than two years immediately preceding election day

3. For Congressmen (Sec. 6, Art. VI, Constitution) • Natural-born citizen • 25 years old on day of election • able to read and write • registered voter in district in which he shall be elected • resident thereof for not less 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 CIPI (competence, integrity, probity and independence) 5. Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution) • Natural-born citizen • 35 years old at time of appointment • proven capacity for public administration • not a candidate for any elective position in elections immediately preceding appointment 6. COMELEC Commissioners (Sec. 1[1], Art. IXC) • Natural-born citizen

35 years old at time of appointment college degree holder not a candidate for elective position in election immediately preceding appointment chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years

7. COA Commissioners • Natural-born citizen • 35 years old at time of appointment • CPA with >10 year of auditing experience or • Bar member engaged in practice of law for at least 10 years • Not have been candidates for elective position in elections immediately preceding appointment Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill.

243 Aquino v. COMELEC Residency of not less than 1 year prior to the elections for the position of Congressman. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. Here, it was held that leasing a condominium unit in the district was not to acquire a new residence or domicile but only to qualify as a candidate. Marcos v. COMELEC Domicile, which includes the twin elements of actual habitual residence, and animus manendi, the intention of remaining there permanently. It was held that domicile of origin is not easily lost, and that in the absence of clear and positive proof of a successful 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: Individuals who lack any of the qualifications prescribed 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 candidate who lost in an election, shall, within one year after such election, be appointed to any office in Government (Art. IX-B Sec. 6) b) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure (Art. IXB Sec. 7(1)) c) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other position in 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 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, or any subdivision, agency or instrumentality 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, chairmen or heads of bureaus or offices, including government ownedor controlled corporations (Art. VIII, Sec. 13) •

accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their dual positionholding i.

Civil Liberties Union v. Executive Secretary 1.

Section 7, Article IX-B of the Constitution is meant to lay down the general prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, unless otherwise allowed by law or by the primary functions of his position. This provision should not be applied to the President, Vice-President and cabinet members since the Constitution, in Section 13, Article VII, prescribes a stricter prohibition on the mentioned officials.

2.

To apply the exceptions found in Section 7, Article IX-B to Section 13, Article VII would obliterate the distinction set by the framers of the Constitution as to the high-ranking officials of the Executive branch.

OTHER DISQUALIFICATIONS 1.

Mental or physical incapacity

2.

Misconduct or crime: persons convicted of crimes involving moral turpitude are usually disqualified from holding public office.

3.

Impeachment

4.

Removal or suspension from office: where there is no constitutional 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-President = 2 consecutive terms b. Senator = 2 consecutive terms c. Representative = 3 consecutive terms d. Elective local officials = 3 consecutive terms i. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

7.

Holding more than one office: to prevent offices of public trust from

3.

8.

However, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official’s office. Relationship with the appointing power

i. Exceptions to rule on nepotism: a. persons employed in a confidential capacity b. teachers c. physicians d. members of the Armed Forces of the Philippines 9.

Office newly emoluments of increased

created or which have

the been

245 10. Being

an elective official: elective officials are not eligible for appointment or designation in any capacity to any public office or position during his tenure; he may be appointed provided he forfeits his seat

11. Having been a elective position

candidate

for

any

12. Under the Local Government Code a.

b. c. d. e. f.

g.

Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; Those removed from office as a result of an administrative case; Those convicted by final judgment for violating the oath of allegiance to the Republic; Those with dual citizenship; Fugitive from justice in criminal or non-political cases here or abroad; Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code; The insane or feeble-minded.

• 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

of

Limited

Comprehensive

Security tenure?

of

No.

Yes.

Assumption of a designated position is not deemed abandonment of the 1st position

Assumption of a 2nd appointive position is usually deemed abandonment of the first office.

When deemed abandonment of prior office

2. Nature of Appointing Power • The power to appoint is intrinsically an executive act involving the exercise of discretion. (Concepcion 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 lasts until they are lawfully terminated

•

•

1. Definition

Definition

Designation

Appointment

Imposition of additional duties upon an existing

Selection of an individual to occupy a certain public

office by one authorized by law to make such selection

Extent Powers

B. Election • Selection or designation by a popular vote C. Appointment

office

Temporary: an acting appointment; it is extended to one who may not possess the requisite qualifications or eligibility required by law for the position, and is revocable at will, w/o the necessity of just cause or a valid investigation - lasts until a permanent appointment is issued Mere fact that a position belongs to the Career Service of the Civil Service Commission does not automatically confer security of tenure. Where the appointee doe not possess the qualifications for the position, the appointment is temporary 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 only at the 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 authority 2. Issuance of the commission 3. Acceptance by the appointee

Note: Where the appointment is to the career service of the Civil Service, attestation of the Civil Service Commission is required 3. Presidential Appointees •

-

The following shall be nominated and appointed by with the consent of the Commission on Appointments Heads of the executive departments (Art. VII, Sec. 16, 1987 Const.); Ambassadors (ibid); Other public ministers and consuls (ibid); Officers of the armed forces from the rank or colonel or naval captain (ibid);

The following can be appointed by the President without the need for CA approval All other officers of the government 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 vested in him by the Constitution (ibid), including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).

o

o

Recess appointment power keeps in continuous operation the business of government when Congress is not in session. The appointment shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress.

Matibag v. Benipayo (April 2, 2002) An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The

247 Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress.

•

An ad interim appointment is distinguishable from an “acting” appointment which is merely temporary, good until another permanent appointment is issued.

•

Said appointment is also distinguished from the exercise of presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session. In the latter, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments, as they take effect at once. The individual chosen may thus qualify and perform his function without loss of time.

•

In this case, the ad interim appointments of the COMELEC Commissioners, being permanent appointments, do not violate the Constitutional prohibition on temporary or acting appointments of COMELEC Commissioners. Moreover, the failure of the Commission on Appointments to confirm the ad interim appointment does not amount to a disapproval by the said Commission. There is no dispute that an ad interim appointee disapproved by the COA can no longer be extended a new appointment. On the other hand, a bypassed appointee, or one whose appointment has not been finally acted upon the merits by the COA, 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, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, EO 292)

It shall be the responsibility of the departments and agencies to establish, administer and maintain the qualification standards on a continuing basis as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) Their establishment, administration, and maintenance shall be the responsibility of the department / agency, with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office (ibid) Shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules)

2. Political Qualifications for an Office (i.e., membership in a political party) • GENERAL RULE: Political qualifications are not required for public office. EXCEPTIONS: o Membership in the electoral tribunals of either the House 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 Code) 3. Property Qualifications • In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Court held that property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same. The 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 upon the wealth of the individual concerned. Social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no 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. Effect of removal of qualifications during the term • The officer must be terminated. 6. Effect of pardon upon disqualification to hold public office

the

248 •

GENERAL RULE: A pardon shall not work the restoration of the right to hold public office. (Art. 36, Revised Penal Code) EXCEPTIONS: o Where such right to hold public office is expressly restored by the terms of the pardon (Art. 36, RPC); o When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. Chairman, COA)

have been otherwise satisfied, it has no choice but to attest to the appointment. It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC) •

To hold that the Civil Service Law requires that any vacancy be filled by promotion, transfer, reinstatement, reemployment, or certification in that order would be tantamount to legislative appointment which is repugnant to the Constitution. The requirement under the Civil Service Law that the appointing power set forth the reason for failing to appoint the officer next in rank applies only in cases of promotion and not in cases where the appointing power chooses to fill the vacancy by transfer, reinstatement, reemployment or certification, not necessarily in that order. (Pineda v. Claudio) (c.f. highlighted part in paragraph in next column)

•

The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and all the legal requirements are satisfied, the CSC has no choice but to attest to the appointment. (Luego v. CSC)

•

Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. (Gesolgon v. Lacson)

•

For the appointment to be valid, the position must be vacant (Costin v Quimbo)

•

While the Civil Service Law grants career service officers preference in promotion under the “next-in-rank” rule, it is not mandatory that the appointing authority fill a vacancy by promotion, as the appointing authority should be allowed the choice of men of his confidence. Provided they are qualified and eligible.

E. Discretion of Appointing Official •

•

•

Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the officers concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. (Reyes v. Abeleda) Appointment is an essentially discretionary power and must be performed by the officer in which it is vested, the only condition being that the appointee should possess the qualifications required by law. (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 the appointment intended (i.e., whether the appointment is permanent or temporary).

•

Appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law.

•

The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements

249 •

Sec. 9, Chapter II, Title III Book IV of the Admin Code provides that all provincial and city prosecutors and their assistants shall be appointed by the President upon recommendation of the Secretary of Justice. The phrase “upon recommendation of the Sec. of Justice” should be interpreted to be a 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 appointment takes effect immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules). G. Effects of a complete, irrevocable appointment • •

•

• -

final

and

GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration. A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process). Qualification: Where the assent, confirmation, or approval of some other officer or body is needed before the appointment may be issue 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 o A President or Acting President is prohibited from making appointments 2 months immediately before the next presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.) o Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

H. Jurisdiction of the Civil Service Commission (CSC) The following are within the exclusive jurisdiction of the CSC: Disciplinary cases and cases involving “personnel action”

affecting the employees of the Civil Service, including “appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation,” as well as employment status and qualification standards. Includes the authority to recall an appointment which has been initially 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 agencies. Its authority is limited to approving or reviewing appointments. I. Appointments to the Civil Service SCOPE: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service a) Career Service – Entrance based on merit and fitness determined by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions and security of tenure. b) Non-career Service – Entrance on bases other than those of the usual testes. Tenure limited to a period specified by law or which is coterminous with the appointing authority or the duration of a particular project. Ex. elective officials, Department Heads and Members of Cabinet

•

Requisites: (i) Shall be made only according to merit and fitness to be determined, as far as practicable (ii) By competitive examination

•

Exempt from the competitive examination requirements are appointments to positions which are: Policy determining - in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries

250 Primarily Confidential – denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state (“Proximity Rule” as enunciated in De los Santos v Mallare) Highly Technical – requires possession of technical skill or training in a superior degree. ex. City Legal Officer

the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments (Sec. 13 of the Omnibus Rules Implementing EO 292) For this rule to apply, the following must concur: a) there must be a series of promotions b) all promotional appointments are simultaneously submitted to the Commission for approval c) the Commission disapproves the appointment of a person to a higher position.

NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly technical

Appointment through Certification is issued to a person who has been selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles, and who meets all the qualifications prescribed for the position

Other Personnel Actions Promotion is a movement from one position to another with increase in duties and responsibilities as authorized 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 without break in service. This may be imposed as an administrative remedy. An unconsented transfer violates security of tenure. However this does not apply to a holder of a temporary appointment or to Career Executive Service Personnel whose status and salaries are based on their ranks and not on the positions to which they are assigned

(i)

Next-in-rank rule. The person next in rank shall be given preference in promotion when the position immediately above his is vacated. But the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the “special reason or reasons” for not appointing the officer next-in-rank

(ii) Automatic Reversion rule – 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. However,

Reinstatement Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. - It is technically the issuance of a new appointment and is discretionary 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 clemency completely obliterates the adverse effects of the administrative

251 decision which found him guilty of dishonesty. This signifies that petitioner need no longer apply for reinstatement as he is restored ipso facto upon the issuance of clemency Detail is the movement of an employee from one agency to another without the issuance of an appointment, and shall be allowed only for a limited period in the case of employees occupying professional, technical and scientific 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. It is a management prerogative of the CSC and any dept or agency embraced in the Civil Service and does not constitute removal without cause. But like detail, the reassignment should have a definite date or duration. Otherwise, it is tantamount to a floating assignment, thus a diminution 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 from reemployment shall be made.

V. ASSUMPTION AND TERM OR TENURE OF OFFICE A. Qualification to Office 1. Appointment and Qualification to Office Distinguished • •

Appointment is the act of being designated to a public office by the appointing authority. Qualification is the act of signifying one's acceptance of the appointive position. This generally consists of the taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem) Borromeo v. Mariano

A judge may not be made a judge of another district without his consent. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of the appointee. There is no power which can compel a 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 to qualify ipso facto deemed rejection of the office If not condition precedent, failure is not ipso facto rejection • Justifiable reasons for delay in qualifying: sickness, accident, and other fortuitous events that excuse delay. • The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume office) within 6 months from proclamation. Otherwise, the position will be deemed vacant. Exception: If the non-assumption of office is due to a cause beyond his control. • Qualification is significant because 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 indispensable. It is a mere incident to the office and constitutes no part of the office itself. However, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution of their office. Such oathtaking is mandatory.

•

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)

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; City mayors; Municipal mayors; Any other officer in the service of the government of the Philippines whose 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 3. Persons Obliged to Administer Oaths in All Instances, • Notaries public • Municipal judges • Clerks of court 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. 5. Requalification • If a public officer is re-elected or reappointed, he must take another oath and fulfill the other condition precedents before assuming office. The oath and other qualifications made prior to assumption of his previous office will not be valid 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 required not for the benefit of 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 • Accountable public officers or those to whom are entrusted the collection and custody of public money;

•

Public ministerial officers whose actions may affect the rights and interests of individuals.

3. Effect of Failure to Give Bond within the Prescribed Period • If not condition precedent, failure to give bond merely constitutes a ground for forfeiture of the office. It is not forfeiture of the office ipso facto. • If condition precedent, failure to give bond within the prescribed period renders the office vacant. Term of Office De jure

Tenure of Office De facto

Fixed and definite period of time during which the officer may claim to hold the office as of right

Period during which the incumbent actually holds the office. It may be shorter than the term.

D. Term and Tenure of Office 1. Term of Office and Tenure of Office Distinguished 2. Power of the Legislature to Fix and Change the Term of Office • Where the term is fixed by the Constitution, Congress has no power to alter the term. But such term of office can be shortened or extended by the vote of the people ratifying a constitutional amendment. • Where the term is not fixed, Congress may fix the terms of officers other than those provided for in the Constitution. • Congress has the power to change the tenure of officers holding offices created by it. However, if the term is lengthened and made to apply to the incumbents, this could be tantamount to a legislative appointment which is null and void. 3. When Term of Office Dependent upon "Pleasure of the President" • Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of 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, 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 sovereignty at will. An incumbent cannot validly object to the alteration of his term since he has no vested right in his office. (Greenshow v. U.S.) 5. Term of Office Not Extended by Reason of War • There is no principle, law or doctrine by which the term may be extended by reason of war. (Nueno, et al. v. Angeles) E. Doctrine of Holdover 1. The Doctrine • A public officer whose term has expired or services have been terminated is allowed to continue holding his office until his successor is appointed or chosen and had qualified. (Mechem) 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 expiration of the term if there is no successor elected and qualified to assume it. Incumbent will hold-over even if beyond the term fixed by law. • Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over. Law-making body favors hold-over except when the law fixes a specific date for the end of the term, therefore there is an implied prohibition against hold over • Where the Constitution limits the term of a public officer and does not provide for hold-over: Hold-over is not permitted. • Note: Art 237 of the Revised Penal Code penalizes any public officer who shall continue to exercise the duties and powers of his office beyond the period provided by law.

•

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.

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 4.

•

In case of vacancy and both 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

5. Where only the duration of the term is fixed but not the beginning or end of the term • Person selected to fill the vacancy 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. POWERS OFFICERS

AND

DUTIES

OF

PUBLIC

A. Source of Government Authority • The people, the sovereignty • The authority of public officers consists of those powers which are: (a) Expressly conferred upon him by the act appointing him (b) Expressly annexed to the office by law (c) Attached to the office by common law as incidents to it B. Scope of Powers of a Public Officer

•

The duties of a public office includes all those which truly are within its scope under the Doctrine of Necessary Implication: (1) those which are essential to the accomplishment of the main purpose for which the office was created; or (2) those which, although incidental or collateral, are germane to and serve to promote the accomplishment of the 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 the power to substitute / delegate has been given

Exception: When the law expressly requires the act to be performed by the officer in person and / or prohibits such delegation

When is mandamus proper?

Only if the duty to do something has been delayed for an unreasonable period of time. In these cases, mandamus will usually compel the officer to make a decision, but will not dictate as to what the decision will or should be.

In all cases.

Is public officer liable?

Generally not liable Exceptions: if there is fraud or malice

Liable if duty exercised contrary to the manner prescribed by law.

C. Territorial Extent of 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 not authorized by law is ordinarily 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 duration of the authority of public 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. Grant of powers 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 the exercise of reason in determining when, where, and how to exercise the power

Acts which are performed in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. Phipps)

Generally, NO.

Generally, YES.

1. Discretionary Power • Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. (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 the right or duty to exercise judgment in reference to any matter in which he is required to act (Aprueba v. Ganzon). • Exception:

(i)

Where there is grave abuse of discretion, manifest injustice or palpable excess of authority

255 equivalent to a denial of a settled right to which the petitioner is entitled, and where there is no other plain, speedy or adequate remedy. (First Phil. Holdings Corp v Sandiganbayan) (j) Writ may issue to compel the exercise of discretion but not the discretion itself (BF Homes v National Water Resources Council) •

Judgment v Discretion Judgment is a judicial function, the 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 ministerial act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act 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 imposed by law. It is a precise act, accurately marked out, enjoined upon particular officers for a particular purpose. (Lamb v. Phipps) Lamb v. Phipps Auditors and comptrollers, as accounting officers, are generally regarded as quasi-judicial officers. They perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law. Except in such cases, the action of the accounting officers upon claims coming before them for settlement and certification of balances found by them to be due, is not merely ministerial but judicial and discretionary. Mandamus will therefore not issue. Torres v. Ribo The powers of the Board of Canvassers are quasi-judicial and therefore discretionary. Aprueba v. Ganzon

Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes on him the right or duty to exercise judgment in reference to any matter in which he is required to act. The privilege of operating a market stall under license is not absolute but revocable under an implied lease contract subject to the general welfare clause. Mandamus never lies to enforce the performance of contractual obligations. Miguel v. Zulueta Public officers may properly be compelled by mandamus to remove or rectify an unlawful act if to do so is within their official competence. G. Duties of Public Officers 1. General (Constitutional) duties of public officers a) To be accountable to the people; 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 a declaration under oath of his assets, liabilities and new worth upon assumption of office and as often thereafter as may be required by law (Art. XI, Sec 17) c) To owe the State and the Constitution allegiance at all times (Art. XI, Sec. 18) 2. Specific Cases The Solicitor General’s duty to represent the government except in criminal cases or civil cases for damages arising from felony, is mandatory (Gonzales v Chavez) The government is not estopped from questioning the acts of its officials, more so if they are erroneous or irregular H. Time of Execution of Powers 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 different intent (Araphoe City v. Union Pac); Where a disregard of the provisions of the statute would injuriously 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.

(a)

Partisan political activity No officer 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 Civil Service Law prohibits engaging directly or indirectly in any partisan political activity or 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 military shall engage directly or indirectly in any partisan political activity, except to vote • However, this prohibition does NOT prevent expression of views on current political problems (Caltex v Bonifacio) • This provision is diff from Sec. 79 BP 881 which makes it unlawful for any person or any political party to engage in election campaign or partisan political activity except during campaign period. Election 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 the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, it shall not be considered as election campaign or partisan political activity.

(b)

Additional or double compensation. No elective or appointive public officer 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)

Prohibition against loans. No loan, guaranty, or other form of financial accommodation for any business 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

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. Government not estopped by the unauthorized or illegal acts of officers • As between an individual and his government, the individual cannot plead the void act of an official to shield him from the demand of the government that he (the individual) fulfill an obligation which he has contracted with the government, after the benefits accruing to him as a result of that obligation have been received. The government can neither be estopped nor prejudiced by the illegal acts of its servants. (Government v. 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. Accountability and Responsibility Public Officers and Employees

of

•

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 to the public; Nationalism and patriotism; Commitment to democracy; Simple living J. Prohibitions

257

(d)

6) The Constitutional Commissions (7) The Ombudsman (8) To any firm to which they have controlling interest during their tenure Limitation on Laborers Shall not be assigned to perform clerical activities

(e)

Detail or assignment No detail or reassignment shall be made within three months before any election without 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 authority or the chief of the bureau or office, of the persons exercising immediate supervision over him are prohibited. This covers all appointments and designations, including subsequent personnel actions (ex. promotion, reinstatement etc).

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One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office. 3. Some Constitutional Provisions Affecting Salaries •

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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 title to the 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 unconstitutional statute or provision thereof. Exception: If some other statute provides otherwise. • If no compensation is fixed by law, the public officer is assumed to have accepted the office to serve gratuitously. • After services have been rendered by a public officer, the compensation thus earned cannot be taken away by a subsequent law. However, he cannot recover salary for a period during which he performed no services. • One without legal title to office either by lawful appointment or election and qualification is not entitled to recover salary or compensation attached to the office.

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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 Representatives who approved the increase (Art. VI, Sec 10) Salaries of the President and Vice President shall be fixed by law and shall not be decreased during their tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved (Art. VII, Sec. 6) The salary of members of the Judiciary shall not be decreased during their continuance in office (Art. VIII, Sec. 10) however, imposition of income taxes on salaries of judges does not constitute unconstitutional diminution of salaries (Nitafan v Tan) Additional, double or indirect compensation are prohibited (Art. IX-B, Sec. 8) Standardization of compensation (Art. IX-B, Sec. 5) RA 6758, the Salary Standardization Law was passed in compliance with the constitutional provision.

4. Compensation not an element of public office • Compensation is not indispensable to public office. It is not part of the office but merely incident thereto. It is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the services are to be rendered gratuitously. 5. Salary, Wages, and Per Diems Defined and Distinguished • Salary: time-bound • Wages: service-bound • Per Diem: allowance for days actually spent for special duties 6. Salary of Public Officer Not Subject to Attachment

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The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid by him, and appropriated for the payment of his debts. Money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment because the sovereign State cannot be sued in its own courts except by express authorization by statute. (Director of Commerce and Industry v. Concepcion)

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Monroy v. CA and del Rosario Where a mayor filed a certificate 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 vice-mayor, as the right rightful occupant of the position of mayor, the salaried which he had received.

7. Future or Unearned Salaries Cannot be Assigned • The salary or emoluments in public office are not considered the proper subject of barter and sale. (22 R.C.L. 541) 8. Agreements Affecting Compensation Held Void • An agreement by a public officer respecting his compensation may rightfully 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 the officer's free and unbiased judgment in relation to the duties of his office. (This is usually with reference to unperformed services and the salary or fees attached thereto.) 9. Right to Recover Salary: De Jure Officer and De Facto Officer • Where a duly proclaimed 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. The ousted officer, who acted as de facto officer during his incumbency, is entitled to the compensation, emoluments and allowances which are provided for the position (Rodriguez v. Tan). Exception: If there was fraud on the part of the de facto officer which would vitiate his election. • A de jure officer recover from-• the government: when the government continues to pay the de facto officer even after the notice of adjudication of the protest in favor of the de jure officer. • a de facto officer: when notice of adjudication of the title to the de jure officer has been given, and the de

facto officer still continues to exercise duties and receive salaries and emoluments. an intruder / usurper: at all instances.

Rodriguez v. Tan Where a duly proclaimed 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. The ousted officer, who acted as de facto officer during his incumbency, is entitled to the compensation, emoluments and allowances which are provided for the position. Exception: If there was fraud on the part of the de facto officer which would vitiate his election. 10. Additional or Double Compensation Prohibited Additional There is only 1 position, but the public officer is getting additional compensation. . •

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Double There are 2 positions, and with additional functions and emoluments for both positions

Pensions / gratuities are not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-B, 1987 Constitution) By its very nature, a bonus partakes of an additional remuneration or compensation. (Peralta v. Auditor General) An allowance for expenses incident to the discharge of the duties of office is not an increase of salary, a prerequisite, nor an emolument of office. (Peralta v. AuditorGeneral)

259 11. Recovery of Salary During Period of Suspension • If preventively suspended, he cannot recover salary. But If he is subsequently exonerated, he can. • If he was given penalty of removal from office, but was completely exonerated upon appeal, he can recover back wages 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 penalty of removal from office, but his penalty was commuted from removal to mere suspension, or demotion, he cannot recover because he was still found guilty although the penalty was reduced. • If the suspension / removal from office is unjustified, he can recover. C. Doctrine of Official Immunity 1. The Doctrine • A public officer enjoys qualified, not absolute immunity. The protection generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt.

because they have no official hours of work NOTE: However, this ruling may be considered abandoned by the Local 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 G. Right to Retirement Pay Retirement pay is liberally construed in favor of the retiree (Proferata v Drilon) The money value of the terminal leave of a retiring government official shall computed at the retiree’s HIGHEST monthly salary (Belicena v Sec. of Finance) H. Others • Right to reimbursement for 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, a transportation allowance (Domingo v COA, Oct. 7, 1998)

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Right to be indemnified against any liability which they may incur in the bona fide discharge of their duties

2. Purpose of the Doctrine • To indirectly protect the sovereign by protecting the public official in the performance of his governmental function • As a result of the immunity extended, the fearless and effective administration of the policies of the government is promoted.

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Right to longevity pay

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Separation Pay to be given to Civil Service employees who are separated from the service not for cause but by reason of reorganization (Sec. 16, Art XVIII)

3. Presidential Immunity from Suit • Enjoyed only during the tenure of the President. • After his tenure, the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President (Estrada v Desierto, March 2, 2001)

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Right to additional allowances and benefits under the Local Government Code. LGUs may provide additional allowances and benefits to national government officials stationed to their municipality or city.

D. Right to Preference in Promotion But the right does not prevail 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

VIII. Liability of Public Officers General 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: As otherwise provided by law:

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1.

A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or negligence (Sec. 38(1) Admin Code)

The wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action can proceed independently of the others. Dismissal or relief from the criminal action/liability does not carry with it relief from administrative liability

2.

No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors (Sec. 39, Admin Code)

3.

However, under the Local 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

When a Public Officer if Subject to Civil Liability • The following must concur: injury to the individual must be established the public officer must have violated a right or duty owed to the individual claiming damages the officer must have maliciously and in bad faith acted outside the scope of his / her authority (ultra vires) • Even mistakes committed by such public officer are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith.

Statutory Liability 1. Art. 27, Civil Code: Any person suffering moral or material loss because a public officer refuses or neglects, without just cause, to perform his official duty, may file an action for damages and other relief against the public officer. This is without prejudice to administrative disciplinary action against the officer 2.

Art. 32, Civil Code: Liability 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. 38(2) Chapter 9, Book I 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.

Phil. Racing Club v. Bonifacio In this case, the members of the Commission on Races declared a horse race cancelled due to a faulty start, but only after holders of the winning tickets 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. A suit was filed against the Commission, charging them with civil liability. The Court found the Commissioners acted outside the scope of their authority as they only had the power to supervise, and not control, the conduct of races. However, they were absolved from liability because they acted in their official capacity in the honest belief that they had such power. The Court opined that in order that acts may be done within the scope of official authority, it is not necessary that they be prescribed by statute, or that they be specifically directed or requested by a superior officer. It is sufficient if they are done by an officer in relation to matters committed by law to his control 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

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Nonfeasance: neglect or refusal, without sufficient excuse, to perform an act which it was the officer’s legal duty to the individual to perform

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Misfeasance: failure to use, in the performance of a duty owing to an individual, that degree of care, skill and diligence

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Malfeasance: the doing, either through ignorance, inattention or malice, of that which the officer has no legal right to do at all • It is the general rule that good faith and absence of malice constitute no defense in an action to hold a ministerial officer liable for damages caused by nonfeasances or misfeasances. However, good faith or honest mistake may be shown in mitigation of damages.

Liability of Superior Officer for Acts of Subordinate • GENERAL RULE: Public officers are not civilly liable to 3rd persons for the wrongful acts, omissions of duty, negligence or misfeasance of their subordinates, unless he has actually authorized, by written order, the specific act or misconduct 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: o Where, being charged with the duty of employing or retaining his subordinates, he negligently or willfully employs or retains unfit or improper persons; o Where, being charged with the duty to see that they are appointed or qualified in a proper name, he negligently or willfully fails to require them the due conformity to the prescribed regulations; o Where he so carelessly or negligently oversees, conducts or carries on the business of his officer as to furnish the opportunity for the default; o Where he has directed, authorized or cooperated in the wrong; o Where liability is expressly provided in the statute. Liability of Subordinates

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A subordinate who acts in good faith under lawful orders of a superior officer is not personally liable in an action for damages. He shall be civilly liable for willful or negligent acts done by him which are contrary to law, morals, public policy or good customs, even if he acted under orders of his superior.

Liability on Contracts • The public officer shall be personally liable on contracts he enters into if he acted without or exceeded his authority. Liability for Tortuous Acts • Public officers are not immune from suit for their own tortuous conduct, even 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 unauthorized acts of government officials are not acts of State, and so the public officer may be held personally liable. (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 public official will not prevent the prosecution and punishment for a misdemeanor committed in office; nor does the re-election of a public official extinguish the criminal liability incurred by him during his previous term of office. IX. ADMINISTRATIVE DISCIPLINE A. Over Presidential Appointees 1. Disciplinary Authority Lies 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 Sec. 48 which is entitled “Procedure in Administrative Cases Against Non-Presidential Appointees.” The very subject of Sec. 48 implicitly limits the scope of the CSC’s jurisdiction in administrative cases to nonpresidential appointees and makes patent the conclusion that the disciplinary authority over

262 presidential appointees lies elsewhere – the President as appointing power himself (Olonan v. CSC). 2. Power to Appoint Implies the Power to Remove; Exceptions • Justices of the Supreme Court (by impeachment) • Members of Constitutional Commissions (by impeachment) • Ombudsman (by impeachment) • Judges of inferior courts (disciplinary or removal power vested in the Supreme 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 under Sec. 1, Rule 140 of the Rules of Court and criminally liable to the State under the Revised Penal Code for his felonious act. Where a criminal complaint against a judge or other employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judge or court employee had acted within the scope of their administrative duties. Thus, the Ombudsman should first refer the matter to the SC for determination of whether the certificates reflected the true status of his pending case load, as the SC had the necessary records to make such a determination. Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC administrative supervision over all courts and court personnel. Dolalas v. Ombudsman-Mindanao Citing the Maceda case, the SC power of administrative supervision over judges and court personnel is exclusive. Investigation by the Ombudsman violates the specific constitutional mandate of the SC and undermines the independence of the judiciary. B. Over Non-Presidential Appointees 1. Grounds • Sec. 46(a), Book V of EO 292: “No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.”

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The grounds constituting just cause are enumerated in Sec. 46(b).

2. Jurisdiction • Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities for officers and employees under their jurisdiction. • Decisions of Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall be final in case the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days’ salary. • In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially 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. Decisions imposing the penalty of suspension for more than 30 days or fine in an amount exceeding 30 days’ salary, demotion in rank or salary or transfer, removal or dismissal from office shall be appealable to the CSC. 3. Procedure in Administrative Cases Against Non-Presidential Appointees • Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn written complaint of any other person. • For complaints filed by any other person Complainant shall submit 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. Otherwise, he shall notify the respondent in writing of the charges against the latter. Respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writing under oath, together with supporting sworn statements and documents. He shall also indicate

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whether or not he elects a formal investigation if his answer is not considered satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss the case. Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the allegations of the complaint and the answer of the respondent, including the supporting documents, the merits of the case cannot be decided judiciously without conducting such an investigation. The decision shall be rendered by the disciplining authority within thirty days from the termination of the investigation or submission of the report of the investigator, which report shall be submitted within fifteen days from the conclusion of the investigation. Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum.

4. Appeals and Petition for Reconsideration • Within 15 days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within 15 days. • A petition for reconsideration shall be based only on any of the following grounds: new evidence has been discovered which materially affects the decision rendered; the decision is not supported 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. Mendez v. Civil Service Commission The remedy of appeal in civil service cases may be availed of only in a case where respondent is found guilty of the charges against him. But when the

respondent is exonerated of said charges, as in this case, there is no occasion for appeal. PD 807 shows that it does not contemplate a review of decisions exonerating officers or employees from administrative charges. “Party adversely 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 investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present: When the charge is serious 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 the respondent is notoriously undesirable. 6. Preventive Suspension • 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: 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 warrant his removal from the service. •

Maximum period for preventive suspension • 90 days for national officials • 60 days for local appointive 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.

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When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service.

7. Penalty

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In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months’ salary, or reprimand. (Sec. 46(d), Book V, EO 292) If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that corresponding to the most serious charge or count and the test may be considered as aggravating circumstances. (Sec. 17 of the Implementing Civil Service Rules and Regulations) A reprimand whether given by the Civil Service Commission or the head of department or agency shall be considered a penalty. However, a warning or an admonition shall not be considered a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations) Reprimand is a penalty (Tobias 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. Removal of Administrative Penalties or Disabilities In meritorious cases and upon recommendation of the CSC, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service.

C. Over Elective Officials 1. Impeachment • Procedure A verified complaint may be filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof. Complaint shall be included in the Order of Business within 10 sessions days and referred to the proper

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Committee within 3 session days thereafter. The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within 60 session days from such referral, together with the corresponding resolutions. The resolution shall be calendared for

Elective Official against whom Administrative Complaint is Filed Provincial or city official Municipal official

Where to File Complaint

Office of the President Sangguniang Panlalawigan Barangay official Sangguniang Panlungsod or Sangguniang Bayan consideration of the House within 10 session days from receipt thereof. A vote of at least 1/3 of all the members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. In case the verified complaint or resolution of impeachment is filed by at least 1/3 of all the members of the House, the same shall constitute 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 impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of 2/3 of all the members of the Senate. • Judgment in cases of impeachment 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 impeachment proceedings shall be initiated against the same official more than once within a period of one year.

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2. Local Elective Officials (Sec. 60-68, Local Government Code) •

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Grounds for Disciplinary Actions • Disloyalty to the Republic of the Philippines • Culpable violation of the Constitution • Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty • Commission of any offense 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 panlungsod, sangguniang bayan, and sangguniang barangay • Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country • Such other grounds as may be provided in this Code and other laws. Procedure

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(1) Verified Complaint (2) Answer: Within 7 days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within 15 days from receipt thereof (3) Investigation: Commenced within 10 days after receipt of such answer of the respondent. It shall be terminated within 90 days from the start thereof. No investigation shall be held within 90 days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. (4) Decision: Within 30 days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. •

Preventive Suspension

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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 continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from the time he was formally notified of the case against him. No preventive suspension shall be imposed within 90 days immediately prior to any local election. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of the aforesaid period.

Administrative Appeal: Within 30 days from receipt of the decision, appeal to: sanggunian panlalawigan, in case of decisions of the sangguniang panlungsod of component cities; and sangguniang bayan Office of the President, in the case of decisions of the sangguniang panlalawigan, the sangguniang panlungsod of highly urbanized cities, the sangguniang panglungsod of independent component cities.

X. TERMINATION RELATIONS

OF

OFFICIAL

A. Modes of Termination 1.

2. 3. 4. 5. 6. 7. 8.

Expiration of Term or Tenure of 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 Reaching the age limit; Retirement Bona fide abolition of office Abandonment of office Acceptance of an incompatible office Resignation Removal for cause Temporary appointments’ termination

266 9. 10. 11. 12. 13.

Recall Impeachment Prescription of right to office Death Conviction of crime where disqualification is an accessory penalty 14. Filing of certificate of 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, his rights, duties and authority as a public officer must be ipso facto terminated. 2. End of pleasure where one holds office at the pleasure of the appointing authority •

President can 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 removal, or whether legal cause should precede or not that of removal. 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 Basilan City provides that the President shall appoint and may remove at his discretion any of the city’s officers, including its 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, “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 replacement is not removal, 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, but the creation of an office and the tenure of such office, which has been made

expressly dependent upon the pleasure of the President. 3. Loss of Confidence in Primarily Confidential Employment • Official and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case, their 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 for entitlement to retirement 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. •

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 accordance with existing civil service rules and regulations. NOTE: different in Nachura Reviewer: Compulsory Retirement Age is 70 yrs for the members of the Judiciary and 65 yrs for other government officers and employees (Under New GSIS Charter) Beronilla v GSIS The compulsory retirement of government officials and employees 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 same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their work and their

267 relations with their superiors as well as the public would impose on them. D. Bona Fide Abolition of Office • As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without 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 the standpoint of strict law, 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. Busacay v. Buenaventura Busacay was laid off as toll collector when the bridge was destroyed. However, the bridge was later reconstructed and opened to the public with a new collector being appointed. 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, there was never any thought of not rebuilding the bridge. The collapse of the bridge did not work to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-opening, the collector’s right to the position was similarly and automatically restored. Manalang v. Quitoriano The National Employment Service was established by R.A. No. 761 in lieu of the Placement Bureau. Quitoriano was appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manalang who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. A removal implies that the office still exists. R.A. No. 761, creating NES,

expressly abolished the Placement Bureau and, by implication, the office of the Director of the Placement Bureau. Had Congress intended the NES to be a mere enlargement of the Placement Bureau, it would have directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commissioner and thus could not have been removed therefrom. •

Abolition Must Be in Good Faith The abolition of an office does not amount to an illegal removal or separation of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law. Briones v. Osmeña Briones and Rosagaran were employees in the Office of the City Mayor since 1937 and 1940, respectively, In 1956, the City created 35 new positions and abolished 32, of which the positions of Briones and Rosagaran were included. Consequently, the two were terminated. SC held that the termination was not 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 expressly authorizes a municipal council to abolish the positions it has created. However, the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules providing otherwise. But the office must be abolished in good faith. Cruz v. Primicias As well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the

268 abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void. In the case at bar, while 22 positions were abolished, 28 new positions with higher salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact, what respondents sought to achieve was to supplant civil service 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 existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to affect economy and make it more responsive to the needs of 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 by law independently of 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 make the bureaucracy more efficient. Good faith, as a component of reorganization under a constitutional regime, is judged from the facts of each case. In the case at bar, there was lack of good faith (Dario v. Mison). F. Abandonment of Office • A public office may become vacant ipso facto by abandonment and non-user. When an office is once abandoned, the 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. • The officer should manifest a clear intention to abandon the office and its duties. • Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be

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accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient.

Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers’ voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, 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. G. Acceptance of an Incompatible Office • He who, while occupying one office, accepts another office incompatible 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 still the same, nor can the officer then regain the possession of his former office to which another has been appointed 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 which he holds, it is not a case of incompatibility but of legal prohibition. •

Incompatibility of offices exists where: • There is conflict in such duties and functions so that the performance of the duties of one interferes 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

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as a check on the other would be frustrated. The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices.

Exceptions to the Rule on Holding of Incompatible Offices • Where the officer cannot vacate the first office by his own act, 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 approval of the provincial board before a municipal official can resign. • First office is held under a different 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 particular form, unless 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: • According to some authorities, no acceptance is necessary to render a resignation effective, especially when the resignation is unconditional and purports to take effect immediately. • Many other cases take the view that to be effective, the resignation must be accepted by competent authority. Without acceptance, the resignation is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163) • Prof. Barlongay: Two elements are necessary to constitute an effective acceptance: (1) intention to relinquish office coupled with actual relinquishment; and (2) acceptance of resignation. • 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. Barlongay: Courtesy resignation is not allowed in (1) career positions and (2) non-career positions with security of tenure (i.e. local elective 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 states that there is no specific law providing for the grounds for their removal. Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable. • For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds for disciplinary action. • For local elective officials, Sec. 60 of the Local Government Code 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 committed during a prior term, not a ground for dismissal Ochate v. Ty Deling The SC held that the facts alleged in the administrative charge, as substantiated by the affidavits of the complainants, do not justify the administrative proceedings instituted against the petitioner and his suspension by the governor. The alleged libel imputed to the mayor was not such misconduct even if the term “misconduct in office” be taken in its broadest sense. The radio broadcast in which the objectionable 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 Constitute Violation of Security of Tenure • A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service 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 informed of the reasons therefore. If the employee believes that there is no justification for the 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 from the non-career 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 Negros Oriental. The reason is that a fiscal is appointed for each 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 of Tarlac must mean his removal from office in Negros. Since the transfer is considered a removal, such should be for cause in order for the other person to legally occupy the office in Negros. There was no cause for Lacson’s removal. He therefore remains as fiscal of Negros (Lacson v. Romero). J. Termination of Temporary Appointment •

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The appointment being temporary in character, the same can be terminated at pleasure by the appointing power (Quitiquit v. Villacorta). One holding an office in a temporary capacity may be ousted at anytime with or without cause (Ferrer v. de Leon). The controlling factor in determining the character of the appointment is the appointment itself. Even if a position is permanent, if the appointment is made temporary, the appointment is determinative. What is determinative is not the nature of the office (permanent or

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temporary), but the nature 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 responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987 Constitution) • The procedure for recall is provided in Sections 69-75 of the Local Government Code. L. Prescription of Right to Office • Any person claiming a right to a position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. Reason is public policy and convenience, stability in the public service (Unabia v. City Mayor). • Prof. Barlongay: The one-year period is the prescriptive period to claim public office (whether through quo warranto 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 filing of certificate of candidacy. • The following provisions have 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 official, whether national or local, running for any office OTHER than one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from office by the mere filing of a certificate of candidacy. • The first proviso of Sec. 11 of R.A. 8436 which states that "Any elective official, running for any officer other

271 than one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned upon the start of the campaign period." N. Performance of Act or Accomplishment of Purpose for which the Office was Created • Performance of act or accomplishment 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.”