MID-TERM EXAMINATION IN ADMINISTRATIVE LAW, PUBLIC OFFICERS & ELECTION LAW ARELLANO UNIVERSITY SCHOOL OF LAW FIRST SEMESTER, SY 2008-2009

MID-TERM EXAMINATION IN ADMINISTRATIVE LAW, PUBLIC OFFICERS & ELECTION LAW ARELLANO UNIVERSITY SCHOOL OF LAW FIRST SEMESTER, SY 2008-2009 1. Define public office. How is it created? It 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. It may be created by the constitution, by legislative enactment, or by authority of law. 2. Who is a de facto officer? Can a usurper ripen into a de facto officer? Why? A de facto officer 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 third persons, where the duties of the office were exercised: a) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce the people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; b) under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, or condition, as to take an oath, give a bond, or the like; c) under color of a known appointment or election, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; and d) under color of an election or an appointment by or pursuant to a public, unconstitutional law before the same is adjudged to be such. Yes, a usurper can ripen into a de facto officer under circumstances falling under paragraph (a) above. 3. When is an appointment regular and when is it ad interim? Art. VII, Sec. 16 of the Constitution mandates the appointment by the President of certain public officers with the consent of the Commission on Appointments. In this regard, the appointment is regular when it is issued after the nomination is confirmed by the Commission on Appointments when Congress is in session. An ad interim appointment is issued prior to such confirmation and when Congress is in recess. 4. Distinguish preventive suspension pending investigation and preventive suspension pending appeal? In which of these two (2) is the respondent public officer entitled to backwages and under what condition/s? Preventive suspension pending investigation is imposed on a civil service employee who is under investigation for an administrative offense. It is a preliminary step in an administrative investigation and it is not in any way the final determination of his guilt. Its purpose is to prevent the civil service employee from influencing in any manner the outcome of the investigation. It is limited to a maximum of ninety (90) days. Investigation pending appeal constitutes a penalty that has to be served by the civil service employee where he has been found guilty of the administrative charge and he appeals from the adverse decision. A civil service employee is entitled to backwages corresponding to the period of his preventive suspension pending appeal if he is exonerated of the administrative charge but not for the period corresponding to his preventive suspension pending investigation. The reason for this is that suspension pending investigation is not a penalty. However, if there is absolutely no basis for his preventive suspension pending investigation and the same is unjustified, he may be entitled to backwages for the period corresponding to his preventive suspension pending investigation. 5. What is the scope of the Civil Service? The Constitution provides that the Civil Service embraces all branches, subdivision, instrumentalities, and agencies of the Government, including governmentowned and controlled corporations with original charters. 6. What characterize the career service and what characterize the non-career service? The career service is characterized by i) entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications, ii) opportunity for advancement to higher career positions, and iii) security of tenure. The non-career service is characterized by i) entrance on bases of other than those of usual tests of merit and fitness for the career service, ii) 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 purposes employment was made. 7.

What constitutes nepotism?

Nepotism is the practice of appointing to public office relatives up to 1

the third degree of consanguinity of affinity of the appointing or recommending authority, or the chief of the bureau or office, or of the offices exercising immediate supervision over the appointee. 8. Distinguish the following personnel actions from each other: a) transfer, b) detail, c) reassignment, and d) detail. a) Transfer is movement from one position to another which is of equivalent rank, level or salary without break in service involving issuance of an appointment. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency. b) Reassignment is movement from one organizational unit to another in the same agency which shall not involve a reduction in rank, status, or salary. It is temporary in nature. c) Detail is a movement from one agency to another without the issuance of an appointment. It shall be allowed only for a limited period. It is temporary in nature. 9. In the appointment of public officers, when does the “next-in-rank” rule apply? It applies to the filling up of a vacancy by the promotion of a civil service employee. It does not apply when the vacancy is filled up not by means of promotion but by transfer, reinstatement, re-employment, or by appointment of persons with the appropriate civil service eligibility. 10. Explain and distinguish from each other the principle of finality of administrative action, the doctrine of exhaustion of administrative remedies, and the doctrine of prior resort. The principle of finality of administrative action states that courts are reluctant to interfere with the administrative action prior to its completion and finality. A final resolution or order that puts an end to the administrative action is a condition precedent for resort to the courts. The doctrine of exhaustion of administrative remedies requires that when an administrative remedy is provided by law, relief must be sought by exhausting this remedy before the courts will act. No recourse can be had before the courts until all such administrative remedies provided by law have been exhausted. The doctrine of prior resort states that the courts cannot and will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal where the question demands the exercise of the special knowledge, experience, and services of the administrative tribunal. 11. Rosita was charged before the Board of Dentistry for malpractice. In the course of the proceedings for the revocation of Rosita’s license, the complainant asked that subpoena ad testificandum be served on both Rosita and Lolita, the latter being one of the witnesses, to testify in the case. Can they be compelled to testify? Explain. (10 pts.) The administrative proceeding for the revocation of Rosita’s professional license partakes of the nature of a criminal proceeding because it involves the risk of deprivation of property, the professional license being considered in this instance as a property right. Hence, following the ruling in Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767, Rosita cannot be compelled to testify because it will constitute a violation of her constitutional privilege against selfincrimination. Lolita being an ordinary witness, she cannot refuse to testify and she can only invoke the privilege against self-incrimination when each question is asked of her. 12. The government organized XYZ Mining Corp. pursuant to the provisions of the Corporation Code. The authorized capital stock of XYZ Mining Corp. was fully subscribed and paid by the government. Upon complaint filed with the Civil Service Commission against Juan de la Cruz, the General Manager of XYZ Mining Corp., for dishonesty, neglect of duty, and immoral conduct, the Civil Service Commission rendered judgment finding him guilty and imposing on him the penalty of dismissal from the service. If you were the counsel for Juan de la Cruz, how will you defend him from such judgment? Explain. (10 pts.) I will attack the jurisdiction of the Civil Service Commission. The XYZ Mining Corp. having been organized pursuant to the provisions of the Corporation Code, it is not a government owned corporation that has an original charter. It is not covered by the civil service because the Constitution provides that only those government owned and controlled corporations with original charters are embraced in the civil service. Being an officer of a government owned corporation that is not embraced in the civil service, Juan de la Cruz is not subject to the civil service law and its rules and regulations. His employment is governed by the provisions of the Labor Code. The Civil Service Commission does not, therefore, have any jurisdiction over him and its decision dismissing him from the service is void. 13. For leaving her class and joining a protest rally, Maria de la Cruz, a public school teacher, was placed under preventive suspension during the period of her investigation which lasted for five (5) months. Upon the conclusion of the investigation and her exoneration of the charges, Maria de la Cruz filed a claim for backwages corresponding to the period of her preventive suspension. Is she entitled to payment of backwages? Explain. (10 pts.) Yes, she is entitled to backwages but only corresponding to sixty (60) days. A civil service employee facing an administrative charge and who has been placed under preventive suspension cannot claim for backwages corresponding to the period of her preventive suspension. The reason for this is that preventive suspension is not a penalty but merely a preliminary step in an administrative investigation and it is not a determination of the guilt of the civil service employee. The maximum period for preventive suspension, however, is 90 days from the date of the suspension. Maria de la Cruz’ preventive suspension was sixty (60) days more than the maximum prescribed by law. The additional sixty (60) days’ suspension was, therefore not only unjustified but 2

unlawful. She should be entitled, therefore, to backwages corresponding to the sixty (60) days. 14. Upon his appointment as Division Chief, Juan de la Cruz immediately assumed office and discharged the functions of his office on August 1, 2008. Unknown to Juan de la Cruz, a similar appointment to the same position in the same office was issued to Maria de la Cruz on July 1, 2008 and who immediately took her oath but did not report to office. Explain the character of each of the appointment. What remedy, if any, does Maria de la Cruz have? (10 pts.) The appointments of Juan de la Cruz and Maria de la Cruz are both valid. It does not appear, however, that Juan de la Cruz took his oath of office before discharging the functions of his office. He is at best a de facto officer. Maria de la Cruz having accepted the appointment and having taken her oath, she is considered the de jure officer. Her remedy is to file an action for quo warranto not later than one year from August 1, 1998. 15. Under the Labor Code, an appeal from the decision of the Labor Arbiter shall be made to the National Labor Relations Commission (NLRC) within ten (10) days from receipt of the decision. Aggrieved by the decision of the Labor Arbiter in the complaint for illegal dismissal filed by its Vice President, XYZ Mining Corp. filed a petition for review directly with the Court of Appeals on the sole ground that the NLRC is without jurisdiction over the complaint for illegal dismissal because the employee concerned is an elected officer of the company. If you were the Justice designated to write the decision, how will you resolve the issue? (10 pts.) The petition for review will have to be granted. The doctrine of exhaustion of administrative remedies will not apply to this case because no administrative action is possible since the question involved is purely a legal question. This is one of the exceptions to the application of the doctrine of exhaustion of administrative remedies. Alternative answer: The petition will have to be denied because of non-exhaustion of administrative remedies. XYZ Mining Corporation should have filed an appeal before the National Labor Relations Commission pursuant to the provisions of the Labor Code. The question involved is not a pure question of law because it requires the prior determination of whether or not the Vice President is an officer elected by the Board of Directors. Each of the following questions requires two (2) answers. You have to give both correct answers for each of the questions to be able to earn the full credit. If you give only one (1) correct answer, you will not earn any credit. 16. In William Shakespeare’s play, The Merchant of Venice, Portia is the rich, beautiful and intelligent heiress. For which character and in which other play did William Shakespeare use the name Portia? Portia, the wife of Brutus, in the tragedy Julius Caesar. 17. The presumptive candidates for the U.S. Presidency are two (2) members of the U.S. Senate, Sen. Barack Obama and Sen. John McCain. Which U.S. states do they respectively represent? Illinois and Arizona

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