Law on Public Officers (Cruz)
Law on Public Officers (Cruz)...
Chapter 1 THE CONCEPT OF THE PUBLIC OFFICE
Not a hereditable possession
Outside the commerce of man
A PUBLIC OFFICE is the right, authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the state to be exercised by him for the benefit of the body politic. The individual so invested is a public officer.
No vested interest (exception: constitutional offices) or absolute right to hold an office Cannot be deprived of his offic e without a clear expression of the legislative will
Public Officer vs Public Employee
The distinguishing factor is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the
Constitutional or statutory
National or local
Legislative, executive or judiciary
Lucrative or honorary
Revised Penal Code
Discretionary or ministerial
Public officer is any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class.
Appointive or elective
Civil or military
De jure or de facto
Anti-Gra ft and Corrupt Practices Act
(RA 3019 )
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A private individual hired on a contractual basis as a project manager for a government undertaking is a public officer.
Chapter 2 REQUIREMENTS FOR PUBLIC OFFICE
ELEMENTS (1) Created by law or by authority of law (2) Must possess a delegation of a portion of the sovereign powers to be exercised for the benefit of the public
SELECTION FOR PUBLIC OFFICE A public officer is chosen either by appointmentor election.
(3) legislature Powers andorduties must be defined, directly or impliedly, by the through legislative authority (4) Duties must be performed independently and without control of a superior power other than the law unless they be 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 (5) Permanence and continuity, and not only temporal or occasional
Brought to existence by the self-executing provisions of the Constitution (Office of the President, Legislature, Supreme Court, and Constitutional Commissions)
Created by legislation or validly delegated legislative power (Bureau of Mines, SEC, Code Commission, Sangguniang Panlungsod)
Authority of Law
Established by implementing statutes mandated by the Constitution (MMDA, NEDA)
Designated by an appointive official
Occupies the office by virtue of the mandate of the electorate
Some hold their office in a permanent capacity and are entitled to security of tenure, while others serve at the pleasure of the appointing authority
Elected for a definite term and may be removed only upon stringent conditions
Strictly prohibited from engaging in any partisan political activity or take part in election except to vote
Expressly allowed to take part in political and electoral activities
APPOINTMENTis defined as the act of designation by the appointing officer, body, or board, to whom that power has been delegated, of the individual who is to exercise the functions of a given office. DELEGATION – mere imposition of new duties on the officer to be performed by him in a special manner (temporary in nature)
The power of appointment is executive in natureand is vested by the Constitution in the President of the Philippines. Such power of the President, being discretionary in nature, cannot be delegated . This power is not exclusively presidential . Also by constitutional provision, it may be exercised by the Supreme Court, the Constitutional Commissions, and the Congress. However, in certain instances, the appointing power exercised by the President requires concurrence by the legislature.
authority of the P
resident under the Constitution
--needs confirmation from Commission on Appointments-(1) Heads of the executive departments
be entitled to receive his salary at once, without awaiting the approval of his appointment by the Commission. The Civil Service Commission is authorized to recall an appointment initially approved in disregard of applicable provisions of the Civil Service Law and Regulations. Where a prospective vacancy will occur after the appointing authority’s term, he cannot fill it in advance during his term, as this would be an illegal pre-emption of the powers of his successor. Best evidence of the appointment: Appointment must be in writing, embodied in what is known as the commission
(2) Ambassadors, other public ministers and consuls (3) Officers of the armed forces from the rank of colonel or naval
Completing act of the appointment:
captain (4) Those other officers whose appointments are vested in him by the Constitution (Constitutional Commissions)
Delivery of the commission
--no need for confirmation--
The only instance when an i ndividual can be compelled to accept an appointive office is in connection with the defense of the State.
(5) All other officers of the government whose appointments are not provided for by the law (6) Those whom he may be authorized by law to appoint The President may temporarily (in an acting capacity) designate an officer already in government service or any other competent person to perform the functions of an office in the executive branch.
ELECTION is a mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through the selection by them of the functionaries who will represent them therein.
Limitations on the President’s appointing power (1) 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 Commission, or to the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries (2) The President may not make appointments within two months immediately before next presidential elections and up to the end of his term, the the exception being temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety (3) Appointments of the Acting President shall remain effective, unless revoked by the elected President within ninety days from his assumption or resumption of office (4) His appointees must possess the required qualifications, failing which, they can be ousted in appropriate judicial proceedings Appointment is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. The appointing power can be vested in the Department Head or Secretary. Such power, however, may further be delegated to the regional director subject to the approval, revision, modification and reversal of the Department Secretary.
VACANCY exists when there is no person lawfully authorized to assume and exercise at present the duties of the office. It may be srcinal, constructive, accidental or absolute.
Original – an office is created and no one has yet been chosen to fill it Constructive– incumbent has no legal right to the office (such as a de facto officer) and may be legally replaced by another Accidental– incumbent is separated by any mode other than expiration of the term (death, resignation, removal or abandonment) Absolute – when, the term of the incumbent having expired, no successor has legally qualified to replace him
QUALIFICATIONis understood in two senses — as an endowment and as an act.
QUALIFI CATION AS
AN ENDOWM ENT
The term qualification is understood in this connection as referring to the qualities or endowments required of the public officer to insure the proper discharge of the duties of his office. Proper qualifications may, however, not be imposed for the exercise of the right to run for public office.
The appointing officer and the Civil Service Commission (authority limited to approving or renewing) acting together, though not
Lack of disqualifications is itself a qualification. Even if a person may have the prescribed qualifications for a public office, he will
concurrently but consecutively, make an appointment complete.
still be ineligible therefor if he is laboring under a disqualification.
An appointment issued in accordance with pertinent laws and rule shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed th e duties of the p osition, he shall
If the pardon is based on the innocence of the individual, or if the executive clemency is granted to cover the administrative charges for the same acts for which he was prosecuted (and later acquitted
because he was found not to have committed the offense imputed to him) in criminal proceedings, he no longer needs to apply for reinstatement to his former position. No Senator or Member of the House of Representatives shall be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. A defeated candidatemay not be appointed or re-appointed to any office in the Government or any government-owned or controlled corporation or in any of its subsidiaries within one year from the date of the election. No person may be appointed to the Civil Service Commissionif he was a candidate in the election immediately preceding his appointment. The President, Vice President, Members of the Cabinet, and their deputies or assistantsshall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. No elective officialshall be eligible for appointment or designation in any capacity to any public office or position during his tenure and, unless otherwise allowed by law or by the primary function of his position, no appointive officialshall 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. 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. Individuals who retain or re-acquire their Philippine citizenshipnotwithstanding their having been naturalized as citizens of a foreign country shall enjoy full civil and political rights.
Who may prescribe qualifications Qualifications may be prescribed by the Constitutionor by statute. The qualifications for such officers as those of the President and the Supreme Court are specified directly by the Constitution. The qualifications for statutory officers, like heads of bureaus and local elective officials, are laid down by law, usually the statute creating their offices. These qualifications may not be changed by private agreement.
Duration of qualifications The prescribed qualifications should be possessed at the earliest on the date indicated by the Constitution or the law. In the cases of justices of the Supreme Court and the judges of inferior courts, it suffices if the qualifications are possessed not necessarily on the date of appointment or election but at the time of assumption of office. The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the Civil Service Commission or the date of resolution of the protest against it. Qualifications are continuing requirements and must be possessed for the full duration of the incumbency. The moment any of such qualifications is lost during tenure, the right to the office is also automatically forfeited.
QUALIFI CATION AS A
The term qualification is also interpreted as an act by which the public functionary formally commences the discharge of his official duties. This is effected by the taking of an oath or the filing of a bond, or both in the case of certain officers. Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective, and until an appointment has become a completed act, it would be precipitate to invoke the rule on security of tenure. De facto officer– those who discharge their duties “under color of a known and valid appointment but have failed to conform to some condition, precedent or requirement, as to take an oath, file a bond or the like” Mere delay in qualifying does not result in automatic forfeiture of the office.Such delay only empowers the superior authority to prevent entry into the office at a later time on the ground that the same has been abandoned. If the delay can be validly explained, as in the case of illness or unavoidable absence of the claimant to the office, qualification may be permitted even after the time set by law for the commencement of the term.
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Scope of qualifications When laid down by the Constitution itself, the qualifications are usually enumerated in an exclusive manner. But if only minimum qualifications are required by the Constitution, or if no qualifications are prescribed therein, the legislature is not inhibited from prescribing additional qualifications.
Limitations on th qualifications
e power of the legislature to prescribe
(1) May not reduce or increase the qualifications prescribed in an exclusive manner (2) May prescribe only general qualifications (3) Qualifications must be relevant to the office for which they are prescribed
Chapter 3 DE FACTO OFFICERS
RATIONALE The members of the public dealing with the government are not supposed to verify the credentials of every functionary exercising official functions. They have the right to presume that he is the officer he assumes to be. It is not only the acts of the lawful officer that are regarded as valid and binding. Insofar as third persons are concerned, legal effect is also accorded to certain acts of a person whose title is presumptively
legitimate, that is, who reasonably appears to be the officer he assumes to be, although he really does not have valid title to the position he is holding. (de facto officer) DEFINITION An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and thirds persons, where the duties of the office were exercised: (1) 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 be the officer he assumes to be (2) Under color of a known and valid appointment but have failed to conform to some condition, precedent or requirement, as to take an oath, file a bond or the like (3) Under color of a known appointment or election, void, because thethe officer wasor not eligible, orbody, because was want defect of power in electing appointing or bythere reason of asome or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public (4) Under color of an election or an appointment by or pursuant to a public, unconstitutional law before the same is adjudged to such DISTINCTIONS de jure officer
de facto officer
lawful titleto the office but has not been able to take possession of it or has been ousted
actually possesses the office although he has an imperfect or only colorable titlethereto
de facto officer may ripen into officer de jure as where he repairs his omission and takes the required oath or post the needed bond
intruder may grow into an officer de facto if his assumption of office is acquiesced in, thereby acquiring color of title to the office
EFFECTS OF ACTS OF DE FACTO OFFICERS The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of the office, considered as valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof. However, the de facto officer cannot benefit from his own status because public policy demands that unlawful assumption of public office be discouraged. The individual is bound to verify his title to an office. Thus, as a general rule, the de facto officer cannot claim a salary and other compensation for services rendered by him as such. If he collected such salary, he may in fact be required to pay it back to the de jure officer upon recognition of the latter’s title. The de facto officer is subject to the same liabilities imposed on the de jure officer in the may discharge of from official duties, i n addition to whatever special damages be due him because of his unlawful assumption of office. CHALLENGE TO A DE FACTO OFFICER The authorized proceeding is quo warranto (or “by what authority”), which is an action that may be brought against “a person who usurps, intrudes into or unlawfully holds or exercises a publi c office,” either by the Solicitor General in the name of the Republic or by any person claiming title to the office.
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CHAPTER 4 The Civil Service
in possession of the office and validly appointed to a position
discharging its duties under the color of authority
REQUISITES OF DE FACTO OFFICERSHIP
The CONSTITUTIONprovides for a Civil Service which “embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned and controlled corporations with srcinal charters.” GOCCs – organized under special law
(1) De jure office If the person occupying a legitimate office was invalidly appointed or elected thereto, or is not possessed of the necessary eligibility, he is a de facto officer. But if what is defective is not the title to the office but the office itself, then the possessor thereof is not a de facto officer.
– organized under Corporation Code
The members of the Civil Service are regulated under Article IX-B of the Constitution, the Civil Service Decree, the Administrative Code of 1987 and the pertinent principles under the law of public officers.
(2) Color of title Color of title is derived from reputation or acquiescence or from an invalid appointment or election. As long as the defect in the appointment or election is unknown to the public, the occupant of the office will have color of title and can be considered a de facto officer. He must also be holding over in good faith. (3) Physical possession of the office in good faith The office must be actually held by the de facto officer if his acts are to affect the public and third persons. Any person who
THE CIVIL SERVICE COMMISSION It is the government’s central personnel agency designated to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants. The Commission is composed of a Chairman and two Commissioners, complying with the following requirements:
professes to act officially but does not occupy a public office cannot be considered an officer de facto and his acts are absolutely void.
Natural-born citizens of the Philippines
At least 35 years of age
With proven capacity for public administration
Must not have been candidates for any elective position in the elections immediately preceding their appointment
(2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff(s)
Appointed by the President with the consent of the Commission on Appointments for a term of seven years without r eappointment May be removed only by impeachment
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff OBJECTIVES
(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job
Establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service Strengthen the merit and rewards system, integrate all human resources and development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability
(5) Emergency and seasonal personnel ELIGIBILITY
Ensure that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed
SCOPE Government-owned or controlled corporations created by special law or given legislative charters and its subsidiaries and employees
The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees, and the Bureau of Labor relations has srcinal and exclusive authority to act on all inter-union and intra-union conflicts
(1) Entrance based on merit and fitness
Appropriate civil service eligibility is also granted to summa cum laude, magna cum laude and cum laude graduates of four-year degree courses under certain conditions.
Appointments in the civil service shall be made only according to merit and fitness to be determined by competitive examination. These may be either permanent or temporary. Permanent Appointment
1. Career Service Characteristics
The board and bar examinations are considered civil service examinations for the purposes of appointment to positions in the career service involving knowledge of the respective professions.
Positions in the Civil Service
Subject to the constitutional exceptions, appointees to the career service must possess the requisite eligibility to be established at appropriate examinations given by the Civil Service Commission and the different agencies.
Issued to a person who meets all the requirements for the position to which he is being appointed, except the appropriate civil service eligibility, in the absence of appropriate eligible and it becomes necessary in the public interest to fill a vacancy
Shall serve a probationary period of 6 months, subject to character investigation and dropping for unsatisfactory conduct or want of capacity
Shall not exceed 12 months and may be replaced sooner if a qualified civil service eligible becomes available (no fixed tenure, but can only be terminated with just cause)
(2) Opportunity for advancement to higher career positions (3) Security of tenure
Scope (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required (2) Closed Career positions which are scientific or highly technical in nature (3) Positions in the Career Executive Service (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs
May be granted the civil service eligibility that will qualify them for permanent appointment to their positions if already rendered at least a total of 7 years of efficient service
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system (6) Personnel of GOCCs, whether performing governmental or proprietary functions, who do not fall under the noncareer service
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled 2. Non-Career Service
Characteristics (1) Entrance on bases other than those of usual tests of merit and fitness utilized for the career service (2) Tenure which is limited to a period specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose of
employment was made Scope (1) Elective officials and their personal or confidential staff
Issued to a person who meets all the requirements for the position to which he is being appointment
Provisional appointment vs Temporary appointment
Provisional appointment is issued to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there in not appropriate register of eligible at the time of appointment. Temporary appointment is given to a non-civil service eligible without a definite tenure and is dependent upon the pleasure of the appointing power.
Ad interim appointment
Made during legislative session
Made during the recess
Made only after the nomination is confirmed by the Commission on
Made before such confirmation
Appointments OTHER PERSONNEL ACTIONS Once confirmed by the Commission, continues until the end of the term of the appointee
Shall cease to be valid if disapproved by the Commission or upon the adjournment of the Congress
Appointment is deemed “by passed” through inaction of, and so disapproved impliedly by, the Commission
Intended to prevent a hiatus in the discharge of official duties
One charged with the laying down of principal or fundamental guidelines or rules, such as that of a department head
(b) Primarily confidential position
Any person who has been permanently appointed, and not merely designated, 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
Denotes close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state; term lasts as long as confidence in them endures (c) Highly technical position
Requires the appointee to possess technical skill or training in the supreme or superior degree
Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/ or reorganization, shall be entered in a list from which selection for reemployment shall be made
Advancement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by increase in pay
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 (appealable to the Commission and executory, unless otherwise ordered, pending appeal
Increase in salary should only be considered incidental but not determinative of promotion Generally made according to a merit promotion plan and a performance evaluation system established and implemented by each department or agency
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
Next in rank rule– the person next in rank shall be given preference in the promotion when t he position immediately above
his is vacated; if not appointed, the appointing authority must specify the “special reason or reasons” for not appointing the officer next-in-rank
A transfer is a movement, r equiring prior appointment, from one position to another which is of equivalent rank, level or salary without break in service involving the issuance of an appointment (appealable to the Commission)
Exceptions from the requirement for competitive examinations (a) Policy-determining position
Certification An appointment through certification to a position in the civil ser vice is issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles
Any action denoting the movement or progress of personnel in the civil service, including appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation
The movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary (tantamount to removal, if done without just cause)
A qualified next-in-rank employee who is not satisfied with the written reasons given by the appointing authority for his by-passing may appeal, initially to the department head
PERSONNEL DEVELOPMENT NEPOTISM
Nepotism, or favouritism toward relatives by the appointing authority, is prohibited The relations covered by the prohibition extend to the third degree of consanguinity or affinity As provided in the Constitution, 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 to the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries Exceptions to the nepotism rule:
(b) Teachers (c) Physicians (d) Members of the Armed Forces of the Philippines
Charges of nepotism must be duly proved
Employees shall have the right to present their complaints or grievances to management and have them adjudicated as expeditiously as possible in the best interest of the agency, the government as a whole, and the employee concerned
(a) Persons employed in a confidential capacity
To improve the attitude and competence of the civil service, each department or agency is required to develop a career and personnel development plan which shall contain provisions for merit promotion, performance evaluation, in-service training, job rotation, suggestions and awards system, and such other plans for employees’ health, welfare, counselling, recreation and similar services
Officers and employees in the Civil Service, including those appointed to policy-determining, primarily confidential and highly technical positions, enjoy security of tenureand may not be suspended or dismissed except for cause as provided by law. They may, however, be disciplined if they violate their public trust and fail to serve with utmost responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and lead modest lives.
1. Filing of the complaint
Among the grounds for the discipline of members of the Civil S ervice are:
2. Filing of Counter-Affidavit/ Comment of the respondent under oath within three days from receipt
Dishonesty Neglect of duty Misconduct
3. Preliminary investigationto determine whether or not a prima facie case exists to warrant the issuance of a formal charge
Disgraceful and immoral conduct Incompetence in the performance of duty
The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision 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, th e same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executor except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than 30 days, or fine in an amount exceeding 30 days’ salary, demotion in rank or salary tr ansfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department, agency, official, or group of officials to conduct the investigation.
Executive Order No. 151 , or the Presidential Commission Against Graft and Corruption, exercises jurisdiction to investigate all administrative complaints involving graft and corruption filed in any form or manner against presidential appointees in the executive department of the government, including those in GOCCs. Such jurisdiction extends to non-presidential appointees who may have acted in conspiracy or who may have been involved with a presidential appointee. The Sandiganbayanhas exclusive srcinal jurisdiction over presidents, directors or trustees, or managers of GOCCs, without any distinction with respect to the manner of their creation, whenever charges of graft and corruption are involved. RA No. 4670, otherwise known as the Magna Carta for Public School Teachers, covers and governs administrative proceedings involving public school teachers.
General rule:A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. Exceptions:
In cases initiated by the proper disciplining authority, the complaint need not be under oath. An anonymous complaint shall be entertained only when there is obvious truth or merit to the allegations therein or supported by documentary or direct evidence.
Failure of the respondent to submit his counter-affidavit is tantamount to a waiver of said right A conference may be held by the investigator to propound clarificatory and other relevant questions Investigation shall commence within 5 days from receipt of the complaint by the disciplining authority and shall be terminated within 30 days thereafter Investigation report is required to be submitted within 5 days from such termination
4. Formal chargeshall be issued if a prima facie case is established during preliminary investigation
In the absence of prima facie case, the complaint shall be dismissed A complainant may elevate the decision dismissing a complaint for lack of prima facie case before the Commission Proper through a petition for review within 15 days from receipt of said decision Includes the specification of the charge(s), statement of material facts, and copies of documentary evidence Failure to submit an answer within 5 days from receipt of formal charge shall be considered a waiver of right to do so
5. An order of preventive suspensionmay be issued upon service of the formal charge
Disciplinary cases and cases involving “personnel actions” affecting employees in the civil service are within the exclusive jurisdiction of the Civil Service C ommission, which is the sole arbiter of controversies relating to the civil service.
Includes ex parte examination of records and documents, and opportunity for the parties to submit affidavits and counteraffidavits
Such order may be issued if the charge involves (1) dishonesty, (2) oppression, (3) grave misconduct, (4) neglect in the performance of duty, or (5) if there are reasons to believe that the respondent s guilty of the charges which would warrant his removal from the service In lieu of preventive suspension, respondent may be reassigned to other units of the agency during formal hearings
6. Formal investigationshall be held not earlier than 5 days nor later than 10 days fr om receipt of respondent’s answer
It shall be finished within 30 days from the issuance of the formal charge or the receipt of the answer The period may be extended by the disciplining authority in meritorious cases
7. Pre-hearing conferencemay be conducted for the purpose of, among others, providing for a stipulation of facts and the simplification of issues 8. Continuous hearings shall be held on d ates agreed upon during the preliminary conference
If there was no preliminary conference, parties shall be given notice of at least 5 days before the first scheduled hearing Only 3 written motions for postponements shall be allowed, and a fourth motion may be granted subject to the discretion of the disciplining authority
9. A decision rendered by heads of agencies providing for a penalty of suspension of not more than 30 days or a fine in an amount not exceeding 30 days’ salary shall be final and executor
If the fine imposed is suspension for more than 30 days or a fine in an amount ex ceeding 30 days’ salary, it shall be final and excutory only after the lapse of the 15-day period for the filing of a motion for reconsideration or appeal
preliminary injunction to secure the rights of the respondent pending appeal of his dismissal.
Only one motion for reconsideration shall be allowed, and only on any of the following grounds:
(a) Discovery of new evidence which materially affects the decision rendered (b) Decision is not supported by the evidence on record
RIGHT TO SELF-ORGANIZATION
(c) Errors of law
Preve ntive Susp
Preventive suspension is not a penalty in itself.
Two kinds of preventive suspension of civil service employees: 1. Preventive suspension pending investigation 2. Preventive suspension pending appeal
administrative investigation and it is not the final determination of guilt.
If the delay was due to the fault of the respondent, this should not be included in the counting of the 90 calendar days
of the employees. Although civil servants are now given the right to organize, they may, however, not stage strikes.
Under the Local Government Code, the preventive suspension of a local elective official shall not extend beyond 60 days, provided that it shall not extend beyond 90 days in the event that several administrative cases are filed against him
The respondent may move for the reconsideration of the order of preventive suspension against him.
If the charges are not proved by a preponderance of evidence, the case shall be dismissed and the respondent reinstated with back salaries and benefits if preventively suspended.
Authority of the Public Officer
The AUTHORITY OF THE PUBLIC OFFICER is derived from the people themselves conformably to the constitutional principle that “the Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them.” This authorit y is conferred upon him either by the Constitution itself or by statute. WHERE EXERCISED
In the determination of the penalties to be imposed, the extenuating, mitigating, aggravating or alternative circumstances may be considered.
The public officer may exercise his powers only within the territorial limits of his authority and that any act performed outside that area will be null and void.
An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins the appeal.
Being found liable for a lesser offense is not equivalent to exoneration. Likewise, an employee c annot be found administratively liable for acts not alleged in the formal charges.
Government empl oyees’ organizations shall register with the Commission and the DOLE which, with the support of the majority of the employees in their respective organizational units, shall be entitled to be designated as the sole and exclusive representatives
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High level employees whose functions are not normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-and-file government employees.
Maternity/ paternity leave is considered as interruption in the counting of the 90 calendar days
When the case against an officer or employee under preventive suspension has not been finally decided within the period of 90 days, unless otherwise provided by special law, he shall be automatically reinstated in the service. o
An order of preventive suspension need not be preceded by a prior notice and hearing since it is merely a preliminary step in an
All government employees, including those in GOCCs, except members of the AFP, police officers, policemen, firemen and jail guards, can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interests.
An appeal sent by mail shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case and, in case of personal delivery, the date stamped thereon by the proper office.
The Commission has the standing to appeal a decision which adversely affects the civil service. Decisions, order or rulings of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. The remedy of an aggrieved party from a resolution issued by the Civil Service Commission is to file a petition for review under Rule 43 of the Rules of Court within 15 days from notice of the resolution. Having appellate jurisdiction over decisions of the Commission, the Court of Appeals has the discretion to issue an ancillary writ of
The public offic er may exercise his authority only during his term or office. Hence, any act performed by him after such term will be considered invalid, except where he may be regarded as a de facto officer. An appointment made by the President to fill an anticipated vacancy occurring after his term will be invalid even if the appointment itself was made during his term. Where an officer is authorized to hold over, his acts continue to be valid until his successor is duly chosen and subsequently qualifies. Such an officer is regarded as de jure and all his acts have the same legal efficacy as of those performed by him before the expiration of his fixed term.
Representative government is a government of limited powers. Any doubt on this matter shall be resolved in favour of the public and against the exercise of the authority claimed.
The doctrine of necessary implication provides that all powers necessary to the exercise of the power expressly granted are deemed impliedly granted. Where a general power is conferred or
duly enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred.
The claim of power may also be justified on the ground that the power is inherent. An example is the police power, which may be asserted by the national legislature despite the absence of constitutional vesture. An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. These powers should not be extended by implication beyond what may be necessary for their just and reasonable execution.
EFFECT OF EXERCISE
As long as the public officer is authorized and even if not, provided he is a de facto officer , his acts will be regarded as valid. Such acts will produce legal effect and be considered binding upon the government itself as the principal of the public officer. Even if not previously authorized, the act may still be considered valid if it is subsequently ratified by the government. Only voidable acts, and not absolutely invalid acts, may be ratified. Where the act was not authorized , it is the exclusive responsibility of the public officer who committed it.
KINDS OF DUTIES 1. Discretionary
The officer is allowed much leeway in arriving at a decision as the duty is conferred on him in recognition of his good sense or judgment. An officer to whom a discretion is entrusted cannot delegate it to another , the presumption being that he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him, he cannot delegate his duties to another. If he has been given the discretion to act or not to actupon a certain matter, his decision not to act cannot be the subject of a judicial reversal. Discretion is not totally unlimited . It is restricted by the very qualities that justified its conferment —the judgment and good sense of the delegate. If these are not employed in the discharge of the duty, or if the duty was performed arbitrarily or capriciously, or with disregard of rights, there results what is known as a grave abuse of discretion , which may be corrected in appropriate judicial proceedings.
The duty is discretionary if the officer is allowed to determine how and when it is to be performed and to decide this matter one way or the other and be right either way.
The duty is ministerial when the officer is given little latitude in its discharge, prescribing and defining the time, mode and occasion of its performance with such certainty that nothing is left for judgment or discretion. No particular qualification is required for the discharge of this kind of duty because the law itself defines with precision the occasion and manner of its exercise. Thus, the ministerial duty can be compelled by judicial action .
CHAPTER 6 Inhibitions
An INHIBITION is a restraint upon the public officer against the doing of certain acts which may legally be done by others. It differs from disqualification, although the two terms are used interchangeably, in that the latter denotes the lack of a needed eligibility for a certain office. Inhibitions are prescribed either by the Constitution or by statute and may be general or specific in their application. CONSTITUTIONAL INHIBITIONS 1. The President and Vice President shall not receive during their tenure any other emolument from the Government or any other source. 2. 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. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 3. 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 GOCCs or their subsidiaries, during his term without forfeiting his seat. 4. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. 5. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries. This inhibition applies as well to the Ombudsman and his Deputies. 6. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. 8. No elective or appointive public officer or employee shall receive
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additional, 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. Pension or gratuities shall not be considered as additional, double, or indirect compensation.
9. 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 President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.
government, or any of its subdivisions, agencies, or instrumentalities, including GOCCs or their subsidiaries.
Civil servants shall not strike against the Government as a means of securing changes in the terms and conditions of employment.
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 GOCCs and their subsidiaries.
(b) Those removed from office as a result of an administrative case
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.
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic
Appointees to the Constitutional Commissions must not have been candidates for any elective position in the elections immediately preceding their appointment.
(d) Those with dual citizenship (e) Fugitives from justice in criminal or non-political cases here or abroad (f) 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
(g) The insane or feeble-minded
No officer or employee of the government shall purchase directly or indirectly any property sold by the government for non-payment of any tax, fee or any other public charge. Any such purchase shall be void. Even if allowed by law or by the primary functions of his position, a member of the Cabinet, undersecretary, assistant secretary or other appointive official of the Executive Department may hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor: Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has been presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. No judge or other official or employee of the superior courts or of the Office of the Solicitor General shall engage in private practice as a member of the bar or give professional advice to clients. No Chairman or commissioner of the COMELEC shall sit in any case in which he has manifested bias or prejudice or antagonism against any party thereto and in connection therewith, or in any case in which he would be disqualified under the Rules of Court.
The following are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more for imprisonment, within 2 years after serving sentence
No Senator or Member of the House of Representatives shall be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.
All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including GOCCs, made in favour of a relative within the third degree of consanguinity or affinity, or of the appointing or recommending authority, or of the chief of the bureau of office, or of the person exercising immediate supervision over him, are prohibited.
EFFECTS OF VIOLATION
Sanctions for the violation of the inhibition will depend upon the law imposing it or implementing the constitutional restriction.
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CHAPTER 7 Salary and Perquisites
Purposes of compensation and perquisites 1. To attract competent men to the government service 2. To lessen the temptation for graft as there would be little need for the public officer to augment his income through illegal methods 3. To lend the necessary prestige to the office 4. To pay and to reward the public officer for the loyalty and dedicated service
The Chairman and the Members of the Commission on Human Rights shall not, during their tenure, hold any other office or employment. Neither shall they engage in the practice of any profession or in the active management or control of any business which in any way will be affected by the functions of their office, nor shall they be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the
Salary not as an an essential element publicno office. In fact, there such a is thing honorary office,oftoawhich compensation is is attached and where the incumbent is prepared and willing to serve gratis.
SOURCE OF SALARY The salary of a public officer may be provided by the Constitution or by statute.
from the date of deprivation. A claim for back salaries cannot stand by itself. It must be coupled with a claim for reinstatement. Claims for back salaries are subject to the prescriptive period of 1 year.
An employee who is reinstated to his former position but wh o has pending administrative and criminal charges against him may only be paid his back salaries when he is absolved of the charges.
The constitutional limitations on the power of the legislature to alter salaries are the following: (1) The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives. (2) The salaries of the President and the Vice President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which shall increase was approved. (3) The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of the judges of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. (4) The salary of the Chairman and the Commissioners of the Constitutional Commissions shall be fixed by law and shall not be decreased during their tenure. (5) The salaries of the Ombudsman and his Deputies, which shall be the same as those provided for the Chairmen and Members, respectively, of the Constitutional Commissions, shall not be decreased during their term of office.
PROHIBITED DISPOSITION OF SALARY Public policy prohibits the attachment, garnishment or assignment of the salary of a public officer not only because such salary still belongs to the state as long as it has not yet been actually collected by the public officer.
LEAVES In addition to salary, the public functionary is given vacation, sick and, in the case of women, maternity leave privileges.
INSURANCE Officers and employees of the government enjoy life insurance benefits administered by the Government Service Insurance System (GSIS). Permanent and regular appointees, and elective officers, are covered by compulsory insurance. Other functionaries who have been appointed for at least two months may avail themselves of optional insurance. Part of the premium in compulsory insurance is paid by the government, the balance being deducted from the salary of the insured.
SALARY AND DUE PROCESS Even as the salary may be increased, it may also be reduced and, in fact, altogether be abolished in the discretion of the law-making body. In the latter event, the functionary who is prejudiced as a result cannot complain. No reduction or abolition of salary can operate retroactively to Such salaries are affect salaries already earned or accrued. regarded as vested property rights and such will come under the protection of due process. To be valid, the law should have prospective effect only, to cover salaries yet to be earned.
RETIREMENT Retirement benefits are given to government employees, in effect, to reward them for giving the best years of their lives to the service of their country. Retirement laws are liberally interpreted in favour of the retiree to provide for his sustenance and hopefully even comfort when he no longer has the stamina to continue earning his livelihood. Retirement is compulsory for any member of the GSIS holding a regular and permanent appointment if: (a) he has attained the age of 65 years, (b) rendered at least 15 years of service to the government, and (c) the last 3 years of such service have been continuous.
RIGHT TO SALARY The right to salary is based on the right to the office itself and accrues from the date of actual commencement of the discharge of official duties. In the case of the de jure officer who has been unlawfully prevented from assuming the office, the salary accrues to him from the date of the deprivation of the office. The de facto officer cannot himself benefit from his status and so is not allowed as a rule to collect salaries for services rendered. The exception is where he had acted in good faith and there is no officer de jure claiming the office.
Per diems are excluded in the definition of “compensation.”
MEDICARE All employees covered by GSIS are also automatic ally and compulsory covered by the Philippine Medicare Act. Other employees expected to remain in the government service for at least one year from the date of coverage may also be included upon recommendation of their employees.
Where a public officer under investigation or prosecution is preventively suspended but subsequently exonerated, he is entitled to payment of the salaries corresponding to the period of his preventive suspension. Back salaries are also payable to an officer illegally dismissed or otherwise unjustly deprived of his office, the right to recover accruing