Law 156 [The Law on Public Officers] AY 2015-16, 1st Semester I. INTRODUCTION A. Public Office and Public Officers 1) Definitions 1
Mechem Public office: 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 government, to be exercised by him for the benefit of the public. [the accepted definition; other statutory definitions are only for purposes of said laws.] An agency for the State Characteristics o delegation of sovereign functions o created by law and not by contract o oath o salary o continuance and duration of the position o scope of duties o designation of the position as an office Public Officer: A person invested with a public office; one who does an act or a series of acts for the State Agpalo Public office refers to two concepts: as a functional unit of government or as a position. Administrative Code of 1987 (EO 292) Introductory Provisions, Sec. 2(9). Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. RA 3019, Sec. 2(b) (b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. RA 6713, Sec. 3(b) (b) "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. 1
The basic premise of Mechem’s treatise on public officers is that public office is a form of agency and that public officers are agents. However, the similarities between agents in private law and agents in public law are limited.
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Class Notes Purpose of Public Office is the common good. Public Office is created in the interest and benefit of the people; thus belongs to the people. It is not so much a right but more a responsibility. EO 292 Introductory Provisions, Sec. 2(14) "Officer" as distinguished from "clerk" or "employee", refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. Sec. 2(15) "Employee", when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities. Revised Penal Code Art. 203. Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, 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, of 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, shall be deemed to be a public officer.
2) Purpose and Nature Public Office is a Public Trust Constitution, Art. XI, Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. This provision is reproduced verbatim in EO 292, Introductory Provisions, Sec. 32. EO 292, Introductory Provisions Section 35. Ethics in Government. All public officers and employees shall be bound by a Code of Ethics to be promulgated by the Civil Service Commission. Karichi Notes Public officers are public servants They are subject to the highest standards of accountability and service Agpalo: Nature and responsibilities of public officers under the 1987 Constitution are not mere rhetorical words or idealistic sentiments but are working standards 1
and attainable goals that should be match with actual deeds. Personal feelings must never be allowed to compromise the public trust character of a public office which binds public officers to a continuing accountability to the people. Public Office is not Property Right to hold a public office is not a natural right. It exists only because and by virtue of some law expressly or impliedly creating and conferring it. Public office is personal to the officer and cannot be transmitted to her heirs upon death, i.e., the heirs of a protestant in a pending election contest cannot substitute to continue the protest upon the latter’s death. Public officer’s right is in the nature of a privilege entitled to protection. Salary becomes private property for purposes of due process only when it has been earned or accrued. Security of Tenure is Property for Purposes of Due Process Public office is not property but is nevertheless a protected right in the sense that it cannot be taken away from the holder without due process; however it is not a vested right. An office may be considered property in controversies relating to the question as to which of two persons is entitled thereto. The right to office is nevertheless protected by the security of tenure provision of the Constitution (Morfe v. Mutuc). Public Office is not a Contract It does not create a contractual relation with the public [How about the public trust?] Contractual employees of the Government are considered public officers (Preclaro v. SB) For purposes of the law on plunder (RA 7080), a person may become a public officer by virtue of a contract executed between him and the government (Agpalo) As to As to object As to subject creation matter/scope PUBLIC incident of to carry out continuous OFFICE sovereignty government duration and duties duties (for affecting all the duration persons of tenure) CONTRACT by will of generally limited in the parties binds only duration and subject to the specific in its limitations contracting objects D2016 | Public Officers | Prof. G. Dizon-Reyes
imposed by parties law NLTDRA v. CSC (1993) SUMMARY: Garcia was initially appointed deputy RD under permanent status. The NALTDRA was later restructured and she was then issued an appointment under temporary status for not being a member of the bar. DOCTRINE: After abolition, there is in law no occupant. Thus, there can be no tenure to speak of. It is in this sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. If the newly created office has substantially new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one office and the creation of a new or different one. There is no such thing as a vested interest or an estate in an office, or even an absolute right to it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. Distinctions Public office v. Public contract Public office v. Public employment: Public office is, in a sense, an employment. But the key distinction is the delegation of some sovereign function of the government, in the performance of which, the public is concerned. Under the Revised Penal Code, this distinction is immaterial. o Ma’am: Is repair of the Law Center’s air conditioning a sovereign function? o Sovereign functions include execution & enactment of laws; adjudication of controversies o Officers have responsibility for results
3) Elements a. Created by constitution/law/delegated authority Power to create office includes the power to modify, abolish, provide funds, and fix positions and salaries. Inherently legislative. Under the Constitution & EO 292, power of the President is to reorganize bureaus and offices, etc. under the Executive branch. b. Invested with authority to exercise some portion of the State’s sovereign power for the public interest the essential element of public office 2
Powers and functions are defined by constitution/law/legislative authority d. Duties pertaining thereto are performed independently, without control of a superior power other than law, unless they are those of an inferior/subordinate officer, created or authorized by the legislature and placed by it under the control of a superior officer or body e. Continuing in nature As to duration, must be continuing and not intermittent; but not necessarily permanent.
4) Creation of Public Office a. Constitutional creation – e.g., COA, CSC, COMELEC, Office of the Ombudsman. Offices created by the Constitution can only be abolished/modified through constitutional provision and not by Congress b. Legislative creation – Creation of public office is primarily a legislative function. Power to create is supreme and discretionary but limited by the Constitution. c. Presidential creation – limited to the bureaus, agencies, or offices of the Executive branch. President may inactivate or transfer to another the functions of an office.
5) Kinds/Classifications As to nature of functions: Civil and military As to legality of title to office: De jure and de facto As to creation: Constitutional and statutory As to department: Executive, legislative, and judicial As to branch served: National and local As to discretion: Quasi-judicial and ministerial As to compensation: Lucrative (coupled with interest) and honorary SOTC v. Mabalot (2002) SUMMARY: SOTC Garcia issued MO No. 96-745 addressed to the LTFRB Chairman Lantin, directing him to transfer regional functions of the LTFRB to the DOTCCAR Regional Office. DOCTRINE: A public office may be created through any of the following modes: • By the Constitution (fundamental law) • By law (statute duly enacted by Congress) • By authority of law Preclaro v. Sandiganbayan (1995) SUMMARY: DOST engaged the services of Jaime Sta. Maria Construction Company as project engineer. Preclaro, who was hired under contract, allegedly asked for an amount of P200k from the company as D2016 | Public Officers | Prof. G. Dizon-Reyes
contractor’s profit to write off certain deductives. He was charged with violation of RA 3019. DOCTRINE: Preclaro is a public officer. RA 3019, Sec. states that the definition of public officer “includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government. The word “includes” used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. Under PD 807, there are 2 classifications: Career Service and Non-Career Service. Preclaro belongs to the latter. Maniego v. People (1951) SUMMARY: Maniego, an appointed “laborer” placed in charge of issuing summons and subpoenas for traffic violations, was charged with direct bribery. DOCTRINE: Under the RPC, public officers include all those "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee". Laurel v. Desierto (2002) SUMMARY: Former VP Laurel was named Honorary Chairperson of the National Centennial Committee. Expocorp was formed for that purpose. Laurel was named as CEO, incorporator, and director. Allegations of corruption were hurled against him and became the subject of senate inquiry. Ombudsman approved the filing of an information against Laurel et al. DOCTRINE: Laurel is a public officer for purposes of the OMB acquiring jurisdiction. The NCC performs executive functions. The NCC was precisely created to execute the foregoing policies and objectives, (embodied in Art. XIV of the Constitution) to carry them into effect. The President, upon whom the executive power is vested, created the NCC by executive order. The NCC also had a role in the country’s economic development. Even assuming that Expocorp is a private corporation, petitioner’s position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair. Fernandez v. Sto. Tomas (1995) SUMMARY: Petitioners assail the validity of Resolution No. 94-3170 of the CSC and the authority of the CSC to issue it. Fernandez served as the Director of the Office 3
of Personnel Inspection and Audit (OPIA) while De Lima was serving as Director of the Office of the Personnel Relations (OPR) of the Central Office of the CSC. The Resolution merged the OPIA and OPR into the Research and Development Office (RDO). DOCTRINE: The changes in internal organization were rendered necessary by the decentralization and devolution of the CSC’s functions to Regional and Field Offices. The term “public office” is frequently used to refer to 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 government, to be exercised by that individual for the benefit of the public. Such reassignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office. Segovia v. Noel (1925) SUMMARY: Segovia was appointed justice of the peace on January 21, 1907. When he reached the age of 65 on July 1, 1924, he was ordered by the SOJ to vacate the office pursuant to a law. Noel acted as justice of the peace. Segovia filed a quo warranto action to inquire into the right of Noel to occupy the office. HELD: Law should be given prospective effect DOCTRINE: It is a fundamental principle that a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract. Though there is no vested right in 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 in which the purpose is stated. Dario v. Mison (1989) SUMMARY: Pres. Aquino promulgated Proclamation No. 3. Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of Guidelines on the Implementation of Reorganization Executive Orders. A total of 394 officials and employees were given notices of separation. DOCTRINE: There is no question that the administration may validly carry out a government reorganization— insofar as these cases are concerned, the reorganization of the Bureau of Customs—by mandate not only of the Provisional Constitution, but also of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-87 revolutionary government. In removals undertaken to D2016 | Public Officers | Prof. G. Dizon-Reyes
comply with clear and explicit, constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it. In separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions, the Government is obliged to prove good faith. Mathay v. CA (1999) SUMMARY: CSC issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance NC-140, s.1990, which established the Department of Public Order and Safety ("DPOS"). DOCTRINE: By ordering Mayor Mathay to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the CSC substituted its own judgment for that of the appointing power. This cannot be done. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as Mathay correctly points out, the private respondents' appointments in the defunct CSU—"were invalid ab initio.” It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. 6) De Facto Officers De facto doctrine: A person, who, by proper authority, is admitted and sworn into office, is deemed to be rightfully is such office, until, by judicial declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared void. Basis: to prevent chaos resulting from multiple suits against the actions of every official whose claim to office may be open to question; to ensure orderly government function despite technical defects in title to office. Situations 1. Officer by reputation/acquiescence (when people, without inquiry, submit to/invoke his action, supposing him to be an officer) 2. Officer by appointment/election who has failed to conform to some precedent or condition 3. Officer by defective appointment, because of ineligibility, want of appointing authority, or defect in exercise of appointing authority, which is UNKNOWN to the public 4
4. Officer appointed/elected pursuant to an unconstitutional law, before declaration of such fact. (doctrine of operative fact) De jure officer: One who has lawful right to an office in all respects, but has either been ousted from it or never actually taken possession of it. DE JURE OFFICER DE FACTO OFFICER rests on right rests on reputation has lawful right or title to has possession and office performs duties under color of authority without being technically qualified in all points of law to act cannot be removed in a can be removed in a direct direct proceeding proceeding USURPER DE FACTO OFFICER no color of authority/lawful has color of authority/ title title simply assumes office public does not know/not even if public knows him to ought to know lack of title be a usurper acts are null and void acts are valid insofar as rights of the public and 3rd persons are concerned may become de facto officer if assumption of office is acquiesced in Double occupancy of a single office is not allowed when the law provides for only one incumbent. A de facto officer and a de jure officer cannot hold office at the same time. There cannot be two de facto officers in possession of an office for which one incumbent is provided for by law. Officer with the better title prevails. When de jure officer is also the de facto officer, lawful title and possession are united and there cannot be another de facto officer. Elements of de facto officership: See Tuanda v. Sandiganbayan, infra Effect of office created under unconstitutional statute First view: Occupant is not even a de facto officer because the 1st element is not satisfied (no legal office to speak of). Occupant is a usurper. Second view: Occupant is a de facto officer, at least before the declaration of unconstitutionality, where strict adherence to the effect of unconstitutionality will lead to uncertainty, confusion, and inconvenience, for the sake of public policy and protecting private rights. Legal effects of de facto officers’ acts As to the officers themselves – acts are VOID. De facto officer cannot justify his acts as valid and binding in any suit to which he is a party. He D2016 | Public Officers | Prof. G. Dizon-Reyes
is estopped from taking advantage of his own lack of title. As regards the public and 3rd persons – acts are VALID UNTIL the de facto officer’s title is adjudged insufficient. Authority of de facto officer cannot subject to collateral attack & cannot be assailed by 3rd persons, who have the right to assume that the de facto officer is legally qualified. Assailing de facto officership cannot be done collaterally; must be done directly by quo warranto suit must be filed by claimant/de jure officer or the State thru OSG/prosecutor de facto officer is entitled to due process Right to compensation General rule: De facto officer cannot maintain action to recover salary because his acts are void as to himself. Exception: Compensation may be recovered for services required by the office, rendered by de facto officer acting without bad faith (e.g., Malaluan case). Exception to exception: When de facto officer was merely designated and not appointed. De jure officer cannot compel payment of salary for period when de facto officer discharged the position in good faith while still in possession of the office (see Monroy case). If the tenure of the de facto officer was found wrongful (i.e., he is in bad faith), de jure officer may recover from him. Usurper is liable to de jure officer for salaries received by the former. Disbursing officers have a right to rely on the apparent title of the de facto officer. Dimaandal v. COA (1998) SUMMARY: Zosimo Dimaandal was originally holding the position of Supply Officer III when he was designated Acting Assistant Provincial Treasurer for Administration by Gov. Mayo of Batangas in 1993. Pursuant to such designation, he filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308. DOCTRINE: Designation is simply the mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. As such, there being no appointment issued, designation does not entitle the officer designated to receive the salary of the position. For the legal basis of an employee’s right to claim the 5
salary attached thereto is a duly issued and approved appointment to the position. Menzon v. Petilla (1991) SUMMARY: No Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice- Governor. The provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor. DOCTRINE: Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner’s appointment and dealt with him as such. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. Malaluan v. COMELEC (1996) SUMMARY: Electoral protest between Malaluan and Evangelista. The COMELEC found petitioner liable for attorney’s fees, actual expenses for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en masse denominated as actual damages. DOCTRINE: Malaluan was not a usurper because, while a usurper is one who undertakes to act officially without any color of right, the petitioner exercised the duties of an elective office under color of election thereto. He was held to be a “de facto officer who, in good faith, has had possession of the office and had discharged the duties pertaining thereto” and thus “legally entitled to the emoluments of the office.” Flores v. Drilon (1993) SUMMARY: Petitioners assail the constitutionality of §13(d) of RA 7227, which provides “That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority” as violative of §7(1), Art. IX-B, 1987 Const. DOCTRINE: Elective officials are not allowed to hold such posts. The only exception is if the Constitution so provides. The SBMA posts are not ex officio to the position of Mayor of Olongapo City. §7(1), Art. IX-B expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Gordon may be considered a de facto officer. Torres v. Ribo (1948) D2016 | Public Officers | Prof. G. Dizon-Reyes
SUMMARY: F. Martinez, provincial treasurer, as chairman, Gregorio Abogado, provincial fiscal, Vicente Tizon, assistant civil engineer in the district engineer’s office, Evaristo Pascual, chief clerk in the office of the division superintendent of schools, and W. Enage, acting district health officer, canvassed the votes for provincial governor and other officers and proclaimed “Mamerto S. Ribo as Governor-elect.” Vicente Tizon and Evaristo Pascual sat as members “representing the district engineer and the division superintendent of schools respectively. DOCTRINE: The appointment of a substitute member is personal and restricted and his powers must be performed directly and in person by the appointee. An officer to whom discretion is entrusted cannot delegate it to another, since the powers of the board of canvassers are not purely ministerial. Pascual and Tizon are not de facto officers. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such a length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action. They acted without appointment, commission or any color of title to the office. There was no acquiescence, public or private, in their discharge of the position. Tuanda v. Sandiganbayan (1995) SUMMARY: Delia and Bart were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Mayor Tuanda then filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of Delia & Bart as sectoral representatives. An information was filed before the Sandiganbayan for violation of RA 3019 for refusing to pay P108,900 representing respectively Delia and Bart’s per diems, salaries and other privileges and benefits. DOCTRINE: They are not de facto officers. The conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be color of right or general acquiescence
by the public; and 3) There must be actual physical possession of the office in good faith.
One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. Monroy v. CA (1967) SUMMARY: Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections. Three days later, or on petitioner filed a letter withdrawing said certificate of candidacy. The Commission on Elections, per resolution approved the withdrawal. Felipe del Rosario, then the vice- mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question. Monroy ordered to reimburse, as actual damages, the salaries to which del Rosario was entitled as Mayor from September 21, 1961 up to the time he can reassume said office. DOCTRINE: General rule - "that 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" that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office. Gen. Manager, PPA v. Monserate (2002) SUMMARY: Monserate started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and then as Finance Officer in 1980. Ramon Anino, who ranked second to Monserate per the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board. CSC ruled that Monserate’s claim that she is more qualified than Anino is not relevant to the issue before this Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard. CA reversed. It ordered Monserate’s reinstatement without awarding backwages. D2016 | Public Officers | Prof. G. Dizon-Reyes
DOCTRINE: Monserate was denied due process. However, while Anino’s appointment to the contested position is void he is nonetheless considered a de facto officer during the period of his incumbency. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. Monserate is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Civil Liberties Union v. Executive Secretary (1991) SUMMARY: 2 petitions filed by Civil Liberties Union and Anti-Graft League of the Philippines seeking a declaration of the unconstitutionality of EO No. 284 (and DOJ Opinion 73, 129 and 155) issued by President Corazon Aquino on July 25, 1987. Petitioners argue that the above provisions add exceptions to Sec 13, Article VII of the 1987 Constitution other than those provided by the Constitution by allowing members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions. DOCTRINE: In Sec. 13, Art. VII there is no qualification of the position being in the Government. The disqualification is ABSOLUTE. While EO 284 was declared unconstitutional, the prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office.
II. COMMENCEMENT RELATIONS
A. Eligibility and Qualifications 1. Definitions Eligibility
state or quality of being legally fitted or qualified to be chosen. eligibility to public office is continuing in nature must exist both at the commencement and during the occupancy of an office
Eligible legally fitted or qualified to hold public office 2 Civil Service Law , Sec. 5(8) (8) Eligible refers to a person who obtains a passing grade in a civil service examination or is granted a civil service eligibility and whose name is entered in the register of eligibles.
Ineligibility the lack of qualifications prescribed by law or the Constitution for holding public office
Ineligible legally or otherwise disqualified to hold an office disqualified to be elected to an office disqualified to hold an office, of elected or
determining training needs, and as aid in the inspection and audit of the agencies personnel work programs. It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service. (2) The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission and in consultation with the Wage and Position Classification Office. When should qualifications be possessed? 2 views on time of possession, when law or the Constitution is silent: 1. Qualification must be possessed at the time of commencement of the term or induction to office (rule applied in Frivaldo). 2. Qualification must be possessed at the time of election or appointment. Agpalo: Appointive officers must have the qualifications and none of the disqualifications as of the date of the appointment. Qualifications must be possessed not only at the time of commencement of term/appointment but also for the duration of the office’s term/tenure.
appointed to it
subsequent acquisition of qualifications by an ineligible appointee will not validate a void appointment. A new appointment must be made.
Qualification (2 senses)
endowment or accomplishment that fits one for office act which a person, before entering upon the performance of duties, is required to do (e.g., oath, bond) Civil Service Law, Sec. 22 Section 22. Qualification Standards. (1) A qualification standard expresses 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. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position. Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in
EO 292, Book V, Title I, Subtitle A will hereinafter be referred to as the Civil Service Law.
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2. Nature of Right to Hold Public Office NOT a natural right ,i.e.,merely statutory Exists only by express or implied creation/conferment by law To hold public office, one must be eligible and possess the qualifications prescribed by the Constitution and the law. Election/appointment of an ineligible or unqualified person does not give rise to a right to hold office. NOT a constitutional right No constitutional right to hold public office. It is a political privilege which depends upon the favor of the people, coupled with reasonable conditions for the public good. Prospective public employees must comply with reasonable, lawful, and non-discriminatory requirements and terms laid down by law.
3. Power of Congress to prescribe qualifications In general: Congress is empowered to prescribe qualifications, provided these are not in excess of its constitutional powers or is inconsistent with constitutional provisions (same principles apply to disqualifications). 8
In congressionally created offices: Congress can impose qualifications and disqualifications, provided it does not impinge on any express provision of the Constitution In constitutionally created offices: When the Constitution specifies the eligibility requirements of a constitutional office, the criteria are exclusive. Congress has no power to impose different qualifications other than those set by the Constitution. In offices with constitutionally-prescribed qualifications Many mandatory constitutional provisions as to qualifications are not self-executing, and are mere general pronouncements to be enforced by legislation. Examples: examination requirement; Art. XIII, Sec. 17(2); and Art. XII, Sec. 20.
4. Restrictions and Construction Presumption in favor of eligibility A person elected/appointed to an office is presumed to be eligible. Unless excluded by some legal disqualification, all persons are normally and equally eligible to public office Basis: Public policy; extension of the principle which states that provisions which tend to limit the candidacy of any person for public office must be construed in favor of the right of the voters to exercise their choice Liberal construction Right to public office is strictly construed against ineligibility. Eligibility is the general rule, ineligibility the exception. A citizen therefore may not be deprived of this right without proof of some specific disqualification specifically declared by law. But courts should not unreasonably construe laws just to uphold the right to office.
5. General and Particular Qualifications Qualifications usually prescribed Citizenship o aliens are generally not eligible for public office o government is established for citizens, thus its functions must be discharged through citizens Age o age limitations often beyond age of majority o founded on public policy; cannot be cured by popular will Suffrage/Registration Residence D2016 | Public Officers | Prof. G. Dizon-Reyes
usually imposed with respect to offices for political subdivisions o for election purposes “residence” is synonymous to “domicile” o there must be intention to reside, personal presence, and conduct indicative of intent to reside Education and/or Literacy o Generally, more educated persons are better suited to public office. o Laws may impose educational qualification when position has specialized demands, to enable proper and intelligent discharge of the office. o Literacy requirement is not constitutionally prohibited, especially if it reasonably relates to the duties of the position. Political affiliation o Generally proscribed, however, there are certain positions which require partisan representation: o Const., Art. VI, Sec.17 – members of SET and HRET o Const., Art. VI, Sec. 18 – Commission on Appointments o LGC 45(b) – Permanent vacancies in Sanggunian must be filled from within the same political party Passing of examination – provided for in the Civil Service Law, to implement Constitutional mandate that entrance to the civil service should be according to merit and fitness. Prohibited qualifications Religion o Const., Art. III, Sec. 5: No religious test shall be required for the exercise of civil or political rights. (see Pamil v. Teleron under Election Law) Property holding o De Leon says that it can be constitutional in America o In the Philippines, this has been ruled as discriminatory and violative of equal protection and due process guarantees. o Maquerra v. Borra: Surety bond requirement for candidates, to be forfeited if candidate fails to obtain at least 10% of votes, is unconstitutional. In effect it is an imposition of property qualifications which is inconsistent with the principles of republicanism and social justice underlying the Constitution. 9
Citizenship RA 9225 August 29, 2003 AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP PERMANENT. AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Short Title – this act shall be known as the "Citizenship Retention and Re-acquisition Act of 2003." Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, naturalborn citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic: "I ______, solemnly swear (or affrim) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion." Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the Philippines. Section 5. Civil and Political Rights and Liabilities Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; D2016 | Public Officers | Prof. G. Dizon-Reyes
(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or noncommissioned officers in the armed forces of the country which they are naturalized citizens. Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any other section or provision not affected thereby shall remain valid and effective. Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are hereby repealed or modified accordingly. Section 8. Effectivity Clause – This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or two (2) newspaper of general circulation. Labo, Jr. v. COMELEC (1992) SUMMARY: Ortega commenced a proceeding against Labo for the cancellation of his COC on the ground that he made a material misrepresentation therein; he stated that he was a natural-born citizen of the Philippines. DOCTRINE: In the absence of any official action or approval by the proper authorities, a mere application for repatriation does not, and cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship. Labo’s disqualification does not necessarily entitle Ortega as the candidate with the next highest number of votes to proclamation as the mayor of Baguio City. While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Frivaldo v. COMELEC (1996) 10
SUMMARY: Frivaldo and Lee have been gunning it out for the Sorsogon governorship since 1988. Frivaldo won in 1988 and 1992 even though the SC declared him an alien (and thus disqualified under the LGC) twice. In the 1995 election, Frivaldo ran again. Lee sought to disqualify Frivaldo on the ground of the SC decisions. COMELEC initially disqualified Frivaldo but did not remove him from the list of candidates, so he was voted for again and won. After the election, COMELEC affirmed Frivaldo’s disqualification and ordered the proclamation of Lee. Frivaldo was repatriated on the afternoon of June 30, 1995, while Lee was proclaimed governor on that same night. Frivaldo filed a petition with the COMELEC to annul Lee’s proclamation and for his own proclamation, claiming that he had already qualified even before Lee was proclaimed. COMELEC granted the petition, hence this recourse to the SC, who sided with Frivaldo, holding that the will of the Sorsogon electorate must prevail and a 3-time election loser should not be proclaimed governor. SC held that the qualifications under the LGC must be possessed at the start of the term of office so Frivaldo was qualified because he became a citizen on that exact day. To be sure, SC held that the repatriation of Frivaldo retroacted to 1994, when he filed his application, declaring that the law under which Frivaldo was repatriated was a curative statute which can be made to retroact. DOCTRINE: The citizenship requirement in the LGC is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. PURPOSE OF THE CITIZENSHIP QUALIFICATION is to ensure that persons who owe allegiance to nations other than the Philippines do not govern the country or any part thereof. Since an elective official begins to govern only upon his proclamation and on the day mandated by law as the start of his term, the citizenship qualification should be possessed only at this point. The voter requirement was included not to reiterate the need for nationality but to require that the official be registered as a voter in the area he seeks to govern. LGC requires an elective official to be a registered voter but does not require the official to actually vote. Registration, NOT actual voting, is the core of the requirement. The purpose of the law in requiring an elective official to be a registered voter is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else. Bengson v. HRET (2001) SUMMARY: Cruz lost his Filipino citizenship by reason of his enlistment in the US Marine Corps. Without the consent of the RP, he pledged allegiance to the US. RP citizenship was lost, as per Section 1(4) of D2016 | Public Officers | Prof. G. Dizon-Reyes
Commonwealth Act No. 63. Cruz was naturalized as US citizen. Cruz reacquired his RP citizenship through repatriation under RA 2630. Cruz was elected as the Representative of the 2nd District of Pangasinan. Bengson filed an action quo warranto DOCTRINE: Cruz is a natural-born citizen. There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. Repatriation results in the recovery of the original nationality. In respondent Cruz’s case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Mercado v. Manzano (1999) SUMMARY: Edu Manzano garnered the highest vote for Makati Vice-Mayor but his proclamation was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that Edu was not a citizen of the Philippines but of the United States DOCTRINE: Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Considering the citizenship clause of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship. Dual allegiance refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. By filing a certificate of candidacy when he ran for his present post, Edu elected Philippine citizenship and in effect renounced his American citizenship. AASJS member Calilung v. Datumanong (2007) SUMMARY: Petitioner avers that Rep. Act No. 9225 is unconstitutional as it violates Section 5, Article IV of the 1987 Constitution that states, “Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. DOCTRINE: What Rep. Act No. 9225 does is allow dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of their naturalization as citizens of a foreign country. On its face, it does not recognize dual allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign citizenship. What happens to the other 11
citizenship was not made a concern of Rep. Act No. 9225. Residence Romualdez-Marcos v. COMELEC (1995) SUMMARY: Imelda filed her Certificate of Candidacy (COC) for the position of Representative of the First District of Leyte, providing information that she is a resident of seven months in the constituency where she seeks to be elected immediately preceding the election. Montejo, also running for the same position, filed a Petition for Cancellation and Disqualification, alleging that Imelda did not meet the constitutional requirement for residency (must have been a resident for not less than one year). She thus amended her COC, changing “seven” months to “since childhood.” This amendment was not admitted because it was filed out of time, so Imelda filed her amended COC with COMELEC in division. The COMELEC in division found the petition for disqualification meritorious and struck off the amended as well as original COCs. SC decided otherwise; for purposes of election laws, residence is the same as domicile. Imelda has sufficiently shown that her domicile was Leyte, and hence, is qualified. DOCTRINE: DOMICILE: a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent RESIDENCE: implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. RESIDENCE FOR ELECTION PURPOSES: For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. ELEMENTS OF CHANGE OF DOMICILE: 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts which correspond with the purpose. For Local Government Positions Rodriguez v. COMELEC (1996) SUMMARY: Rodriguez won the post of Governor. Marquez filed a petition for quo warranto, alleging that Rodriguez is a fugitive from justice as he has a case filed in the US for fraud and theft. SC in the Marquez decision defined a fugitive of justice as not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution, and D2016 | Public Officers | Prof. G. Dizon-Reyes
remanded the case to the COMELEC. Rodriguez alleges that he left the US before charges were filed and had no intent to evade, and thus cannot be a fugitive of justice. COMELEC held that he was one. Rodriguez again ran and won as Governor. Marquez and COMELEC’s EVALUATION seeks a redefinition and insists that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, SC disagreed. Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post. DOCTRINE: The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Lecaroz v. Sandiganbayan (1999) SUMMARY: Francisco and Lenlie Lecaroz, father and son, were convicted by the Sandiganbayan of 13 counts of estafa through falsification of public documents. They were accused of their alleged refusal to allow Jowil Red to assume his post as KB Chairman. DOCTRINE: The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The oath of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all. Since Red never qualified for the post, Lenlie remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a de facto officer entitled to receive the salaries and all the emoluments appertaining to the position.
B. Disqualifications 1. General Disqualifications
In general, individuals who lack the qualifications prescribed by law or the Constitution are ineligible or disqualified from holding public office. Appointment of an ineligible/unqualified person is a nullity.
2. Specific Disqualifications Mental/Physical Incapacity Idiot or other person non compos mentis is incapable of accepting or holding public office. But blindness, etc. does not automatically disqualify a person from holding public office as long as he is qualified in all other respects. Omnibus Election Code, Sec. 12: SECTION 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. Impeachment Const., Art. XI, Sec. 3(7) Section 3 (7). Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any 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. Who are the impeachable officers? President, VP, Members of SC and of the Constitutional Commissions, and the Ombudsman Grounds: culpable violation of the Constitution, treason, bribery, graft and corruption, betrayal of public trust, other high crimes. Sinco: Impeachment penalties are merely incidental to the primary intention of protecting the people as a body politic. Removal/suspension from office Grounds for suspension/removal include disqualifying acts. Does suspension/removal itself disqualify one from holding the same or another office? Generally, this must be provided for by law. Removal from office bars the removed officer from filling out the vacancy for the unexpired term but it does not disqualify him to take another office or be appointed/elected to a new term for the same office.
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Judgment of ouster may not preclude offender from entering in a succeeding term to which he has been elected before judgment was rendered; same principle applies to preemptive resignation. Previous tenure of office Const., Art. VII, Sec. 4: The President is not eligible for any re-election regardless of length of time served. President through succession is disqualified only if she has served as such for more than 4 years. Members of the Constitutional Commissions, the Ombudsman, and her deputies are appointed without reappointment; Ombudsman and deputies are also disqualified from running for elective office in the election immediately succeeding their cessation from office. Consecutive terms VP limited to 2 consecutive terms Senator limited to 2 consecutive terms Representative and elective local officials other than barangay officials limited to 3 consecutive terms Office newly created or emoluments of which have been increased Const., Art. VI, Section 13. 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 governmentowned 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. Prohibition applies only to offices created/emoluments increased by Congress Emoluments include all fees and compensation the officer is entitled to receive by law Candidacy for elective position Const., Art. IX-B, Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. Reiterated in the Civil Service Law, Sec. 54(2) Separate provision applies to members of Constitutional Commissions Under the Local Government Code Section 40. Disqualifications. - The following persons 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 13
by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (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 this Code; and (g) The insane or feeble-minded. Section 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in an Election. - (a) No elective or appointive local 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 elective or appointive local official shall 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. Holding Multiple Offices/Incompatible Offices Civil Service Law, Sec. 54(3) (3) 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 government-owned or controlled corporations or their subsidiaries. No constitutional right to hold incompatible offices Rule stems from State’s legitimate interest in preventing one person from holding multiple offices Purpose is to prevent offices of public trust from accumulating in a single person and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of dual positionholding. Even if duties do not conflict, consolidation of government functions in a single person could adversely affect freedom of expression of other persons. Effect: Acceptance of a second incompatible office creates a vacancy of, or implied resignation from, the first office. Civil Liberties Union v. Executive Secretary, supra
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SUMMARY: 2 petitions filed by Civil Liberties Union and Anti-Graft League of the Philippines seeking a declaration of the unconstitutionality of EO No. 284 (and DOJ Opinion 73, 129 and 155) issued by President Corazon Aquino on July 25, 1987. Petitioners argue that the above provisions add exceptions to Sec 13, Article VII of the 1987 Constitution other than those provided by the Constitution by allowing members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions. DOCTRINE: In Sec. 13, Art. VII there is no qualification of the position being in the Government. The disqualification is ABSOLUTE. While EO 284 was declared unconstitutional, the prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office. Dela Cruz v. COA (2001) SUMMARY: COA issued a memorandum stating that EO 284 had been declared unconstitutional insofar as it allows Cabinet members, their deputies, and assistants to hold other offices; and directing its designated auditors in all national government offices to immediately cause the disallowance of additional compensation/remuneration given to and received by government officials affected by the decision’s ruling on the multiple position rule. DOCTRINE: The ex officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. Flores v. Drilon, supra SUMMARY: Sec. 13, par. (d), RA 7227 provided that for the first year of its operations from the effectivity of the Act, the mayor of the City of Olongapo shall be 14
appointed as the chairman and chief executive officer of the Subic Authority. The Mayor of Olongapo then was Gordon. The constitutionality of said provision was assailed by Flores et al., mainly citing Sec. 7, first par., Art. IX-B, of the Constitution: “[n]o elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.” SC declared the provision UNCONSTITUTIONAL. Mayor of Olongapo City is an elective official and the subject posts are public offices. SC also discussed the difference between the first and second paragraphs of Sec. 7 Art. IX-B. DOCTRINE: While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; the Vice-President, who may be appointed Member of the Cabinet; and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. The distinction between the first and second paragraphs was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation: “in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions”. The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph. Public Interest Center v. Elma (2006) SUMMARY: Elma was appointed and took his oath of office as PCGG Chairman. Thereafter, during his tenure as the PCGG Chairman, he was appointed Chief Presidential Legal Counsel (CPLC) and took his oath of office as CPLC the following day. However, he waived any remuneration that he may receive as CPLC. DOCTRINE: There is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. The force of the word, in its application to this matter is, that from the nature and D2016 | Public Officers | Prof. G. Dizon-Reyes
relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. Being an elective official Const., Art. IX-B, Section 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 Government-owned or controlled corporations or their subsidiaries. Purpose: Minimize spoils system Disqualification subsists only during the tenure (not term) of the elective official. May be appointed if official forfeits the elective office. Reiterated in the Civil Service Law [Sec. 54(1)] Liban v. Gordon (2009) SUMMARY: Petitioners filed with the Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are officers of the Board of Directors of the Quezon City Red Cross Chapter while respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors, as provided in §13, Art. VI of the Constitution. DOCTRINE: The PNRC is not government-owned but privately owned. A government-owned or controlled corporation must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. In the case of a non-stock corporation, by analogy at least a majority of the members must be government officials holding such membership by appointment or designation by the government. Under this criterion, and as discussed earlier, the government does not own or control PNRC. Oath EO 292, Introductory Provisions, Secs. 40-42 Section 40. Oaths of Office for Public Officers and Employees. All public officers and employees of the government including every member of the armed forces shall, before entering upon the discharge of his duties, take an oath or affirmation to uphold and defend the Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders and decrees promulgated by the duly constituted authorities; will well and faithfully discharge to the best of his ability the duties of the office or position upon which he is about to enter; and that he voluntarily assumes the obligation imposed by his oath 15
of office, without mental reservation or purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and the National Archives. Section 41. Officers Authorized to Administer Oath. (1) The following officers have general authority to administer oath: Notaries public, members of the judiciary, clerks of courts, the Secretary of the either House of the Congress of the Philippines, of departments, bureau directors, registers of deeds, provincial governors and lieutenant-governors, city mayors, municipal mayors and any other officer in the service of the government of the Philippines whose appointment is vested in the President. (2) Oaths may also be administered by any officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath. Section 42. Duty to Administer Oath. Officers authorized to administer oaths, with the exception of notaries public, municipal judges and clerks of court, are not obliged to administer oaths or execute certificates save in matters of official business; and with the exception of notaries public, the officer performing the service in those matters shall charge no fee, unless specifically authorized by law. Lecaroz v. Sandiganbayan, supra DOCTRINE: The oath of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all. An oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath does his right to enter into the position become plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant. Profession/Prohibited Practice Abeto v. Garcesa (1995) SUMMARY: The complaint charges Garcesa with having misrepresented himself as a full-fledged lawyer and having acted as one of the authorized reps of Abeto in labor cases filed with Regional Arbitration Branch VI of NLRC Bacolod despite the fact that he is a court employee. DOCTRINE: The provisions of Memorandum Circular No. 17 of the Executive Department are not applicable to officials or employees of the courts considering the express prohibition in the Rules of Court and the nature of their work which requires them to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary. This D2016 | Public Officers | Prof. G. Dizon-Reyes
prohibition is directed against "moonlighting," which amounts to malfeasance in office. Rabe v. Flores (1997) SUMMARY: Flores was a court employee who did not report her business interests over market stalls in her sworn statement of Assets, Liabilities and Net Worth, Disclosure of Business Interests and Financial Connections, and Identification of Relatives in the Government Service. DOCTRINE: Although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary. Personnel in the judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency. (n.b.: This case was cited in CJ Corona’s impeachment.) Relationship with Appointing Authority/Nepotism Public office is a public trust, so appointments thereto must be based solely on merit and fitness, uninfluenced by any personal or filial consideration. Constitutional prohibition on the relatives of the President from becoming members of Constitutional Commissions, Ombudsman, Dept. Secretary, Usec., or chair of bureaus/offices, including GOCCs. The prohibition covers all kinds of appointments, be they original, promotional, transfer, or reemployment, regardless of status. It also includes designation. Civil Service Law, Sec. 59 Section 59. Nepotism. (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either or consanguinity or of affinity. (2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full 16
report of such appointment shall be made to the Commission. The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (3) In order to give immediate effect to these provisions, cases of previous appointments which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who are appointed in violation of these provisions. Guarantee: Appointment papers must be accompanied by a certification of the appointing/recommending authority stating that he is not related to the appointee within the 3rd degree of consanguinity/affinity. Debulgado v. CSC (1994) SUMMARY: Mayor Debulgado of San Carlos City, Negros Occidental, appointed his wife Victoria as City General Services Officer. Victoria has been serving the city government since 1961 so this is considered as a promotion for her. The Debulgados now argue that the prohibition against nepotic appointments is applicable only to original appointments and not to promotional appointments. DOCTRINE: Victoria’s promotional appointment was properly disapproved for being a nepotic appointment. Looking into the textual analysis of Sec. 59, Book V of the Revised Admin Code, its IRR and the CSC Omnibus Implementing Rules, the appointment prohibited by the rule on nepotism covers ALL appointments without distinction. The prohibition was cast in comprehensive and unqualified terms. The legal prohibition against nepotism does not apply only to original appointments to Civil Service but also to promotional appointment. CSC v. Dacoycoy (1999) SUMMARY: CSC found Dacoycoy guilty of nepotism on 2 counts as a result of the appoint of his 2 sons, Rito and Ped, as driver and utility worker, and their assignment under his immediate supervision and control as the Vocational School Administrator at Balicuatro College of Arts and Trades. DOCTRINE: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the 3rd civil degree of consanguinity or affinity of any of the ff. a) appointing authority; b) recommending authority; c) chief of the bureau or office, and D2016 | Public Officers | Prof. G. Dizon-Reyes
d) person exercising immediate supervision over the appointee. In the last 2 situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. Misconduct/Crime Purpose of disqualification: To assure public confidence in the essential integrity of the government, persons convicted of crimes involving moral turpitude are usually disqualified from holding public office. Promotes honesty and integrity in candidates for and holders of public office Question of whether the disqualification attaches upon commission of crime or only upon conviction depends to some extent on wording of applicable statutory or constitutional provision Violation of municipal ordinances o To be disqualifying, the ordinance must involve at least a certain degree of evildoing, immoral conduct, corruption, malice, or want of some principle reasonably related to requirements of the office o But this does not mean that only acts punished by national law are “crimes” or go into a person’s criminal record. o Law of Municipal corporations distinguishes between acts not essentially criminal relating to regulations for promotion of peace, order, comfort, and safety (jaywalking, traffic rule violation) and acts intrinsically punishable as public offenses. Risos-Vidal v. COMELEC (2015) SUMMARY: Erap, after plunder conviction, was pardoned by GMA. In 2013, he ran for Manila Mayor. Risos-Vidal sought his disqualification. COMELEC ruled that he is qualified to vote and be voted for in public office as a result of the pardon granted to him. HELD: COMELEC did not commit grave abuse of discretion in ruling that the pardon restored Estrada’s right to be voted for public office. The proper construction of the text of the pardon should result in the conclusion that it is meant to restore all civil and political rights to Estrada – including the right to be voted for public office. This flows from the constitutional principle
Denotes cases not in the outline but mentioned in class/assigned by Ma’am.
that the pardoning power of the President is plenary. It is subject only to the limitations set forth in the Constitution and cannot be limited by legislative action. This principle has been upheld in jurisprudence and in the deliberations of the 1986 Constitutional Commission. Thus, Risos-Vidal’s interpretation of the pardon’s text based on RPC 36 and 41 should be rejected. These provisions do not operate to limit the pardoning power such that the remission of the accessory penalty of perpetual absolute disqualification must be expressly stated in the pardon. Rather, they mean that the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. In Estrada’s pardon, the phrase “(h)e is hereby restored to his civil and political rights” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Law, jurisprudence and the International Covenant on Civil and Political Rights all recognize the right to seek public elective office as one of the basic political rights. The effect is that the pardon removed Estrada’s disqualification to seek the Manila mayoralty under LGC 40 and OEC 12. The whereas clause providing that Estrada committed to no longer seek public office does not make the pardon conditional, for a whereas clause is not an operative part of a statute or enactment and only serves to state its purpose.
C. Acquisition of Right or Title to Office 1. Appointment Definition Selection by the authority vested with the power, of an individual who is to exercise the functions of a given office Act of designation by an executive officer, board, or body, to whom that power has been delegated, of the person who is to exercise the duties and responsibilities of the given position Commission – Formal evidence of appointment (usually a written document); written authority from a competent source given to the officer as a warrant for the exercise if the powers and duties of the office to which he is commissioned. Power to appoint Inherently belongs to the people, who then vest the power in certain persons by Constitution or laws [hence, election vs. appointment] When the people have designated it to certain public officials, power to appoint is generally seen as an executive function
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However, appointments by the other branches can be made as an incident to the discharge of functions within their respective spheres. May be absolute or conditional. o Power is absolute if the choice of the appointing authority is conclusive, provided the chosen person is eligible. o Power is conditional when the assent or approval of some other body or officer is necessary to complete the appointment Nature of power: Executive and discretionary Essentially an executive function Discretionary upon the officer, hence reviewable only on ground of grave abuse of discretion. o Cannot be compelled by mandamus o Appointing power has the right of choice which he may exercise freely according to her judgment, deciding for herself who is best qualified among those who have the necessary qualifications and eligibilities. o Prerogative of the appointing power which may be exercised without liability, unless there is bad faith, malice, or oppression in the exercise of the power CSC has no power to revoke an appointment on the ground that another person is more qualified. It also has no authority to direct the appointment of a substitute or a successful protestant/ However, CSC can revoke an appointment initially approved in disregard of applicable provisions of law and regulations. Restrictions on the power to appoint In general o Appointee should be eligible and qualified. o Appointment must be made for the public benefit. Appointing authority cannot appoint himself. o Appointment cannot be made to an office which is not vacant. Constitutional restrictions (In Arts. VII, VIII, IX, and XI) Statutory restrictions Form of appointment 2 views o Appointment must be written or be evidenced by some form of written memorial because it affects the public interest, thus it should be authenticated in a way that the public may know when and in what manner the duty has been performed 18
Right of appointee to the office depends upon the fact of appointment and not upon the ability to establish a written evidence of appointment. When the law does not require a specific form or manner of appointment, it may be made orally (Ykalina v. Oricio). When appointment completed If the appointment power is absolute, the commission can be issued once the choice of the appointee is made. If the appointment power is conditional, the commission can issue only when the assent or confirmation of the confirming power. In either case, appointment becomes complete when the last act required of the appointing power is performed. Approval of the CSC for appointments under the civil service, though mandatory, is a mere attestation that the appointee is qualified. If the appointee is eligible, the CSC has no choice but to attest to the appointment. Acceptance See Velicaria-Garafil v. OP de Leon: Acceptance is not necessary to completion or validity of appointment but is necessary for the possession of the office. Acceptance may be express (e.g., filing of a required bond) or implied (when the appointee enters into the discharge of the office without formal acceptance) Acceptance is necessary for full possession, enjoyment, and assumption of responsbilities of of office. Appointee cannot impose conditions on his acceptance of office. GR: Acceptance of appointment cannot be compelled. EX: In certain cases, acceptance is mandatory: o Compulsory military service (Const., Art. II, Sec. 4) o Refusal to enter into an elective office is a felony under the RPC o Able-bodied males may be required by the State, in exercise of the police power, to assist in the protection of the peace and order of the community (US v. Pompeya). Revocation Final and complete appointment GR: Final and complete appointment is not subject to reconsideration or revocation. Revocation must be made before the appointment is complete D2016 | Public Officers | Prof. G. Dizon-Reyes
EX: Officer is removable at will of the appointing power. Here there is technically no removal since loss of confidence is considered expiration of term When appointee has assumed the position Once an appointee has assumed the position and his appointment is approved by the CSC, he acquires a legal right to the position which is protected by law and the Constitution (see Aquino v. CSC). Removal then must be done only after notice and hearing Irregularities in an appointment must be deemed cured by the probational and absolute appointment of the appointee, unless the appointment is an absolute nullity or there is fraud on the part of the appointee. Protestant is more qualified than appointee Completed appointment cannot be revoked merely on such ground; however, the first appointee must possess the minimum qualifications required by law. SUMMARY: Requisites of valid appointment Vacant position Authority of the appointing power Act or evidence of the act of appointment Qualification and eligibility of the appointee Acceptance of the appointment by the appointee As stated in Velicaria-Garafil v. OP, infra (WRT Presidential appointments): (1) authority to appoint and evidence of the exercise of the authority (2) transmittal of the appointment paper and evidence of the transmittal (3) a vacant position at the time of appointment (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. PLM v. IAC (1985) SUMMARY: Esteban transferred to the Pamantasan ng Lungsod ng Maynila. He was initially extended an ad interim appointment as VP for Administration by the president, Dr. Blanco. This ad interim appointment was renewed several times. DOCTRINE: An ad interim appointment is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The general 19
rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or hen there is grave abuse of discretion the courts have to step in. Luego v. CSC (1986) SUMMARY: Luego was appointed Administrative Officer 11, Office of the City Mayor, Cebu City. CSC found the private respondent better qualified than the petitioner and directed that Felicula Tuozo be appointed to the position of Administrative Officer 11, in place of Luego whose appointment was revoked.” DOCTRINE: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. Regis v. Osmeña (1991) SUMMARY: Regis was appointed by Cebu City mayor Duterte as ‘driver, Motorized Division’ of the Cebu Police Department. He was issued subsequent appointments to the same position on Jan 8, 1960, December 21, 1961, and November 7, 1963. On April 14, 1964, petitioner was removed from his position in the Cebu Police Department without prior investigation or hearing. DOCTRINE: Whereas a temporary appointment is designed to fill 'a position needed only for a limited period not exceeding six months,' a provisional appointment, on the other hand, is intended for the contingency that 'a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.' A provisional appointment may be extended only 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 x x x’ (NB: there is no longer a † classification for “provisional employees” under the current Civil Service law) Achacoso v. Macaraig (1991) SUMMARY: Tomas D. Achacoso was appointed Administrator of the POEA on October 16, 1987, and assumed office on October 27, 1987. On January 2, 1990, he filed a courtesy resignation, in compliance with a request from the President. However, he protested his replacement and declared he was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President's directive. The †
Solicitor General concedes that the office of POEA Administrator is a career executive service position but submits that the petitioner himself is not a career executive service official entitled to security of tenure. DOCTRINE: The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee. An acting appointee is separated from office through expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority. Marohombsar v. Alonto (1991) SUMMARY: On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External Studies. On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs DOCTRINE: A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President
asked in the mid-terms. Yun lang naalala ko hahaha
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is obvious. The petitioner is a career official of MSU for over 27 years. Sinon v. CSC (1992) SUMMARY: Pursuant to the reorganization of the DA, there was an evaluation of certain employees for twenty nine position of MAO in Region II, Cagayan. The list prepared by the Placement Committee included Sinon but excluded Banan. Banan filed an appeal with the DARAB for re- evaluation of the qualification of all those included in the aforementioned list made by the Placement Committee. DARAB released Resolution No. 97, approved by the Secretary of the DA, where Sinon was displaced by Banan. However, Sinon received an appointment as MAO for Region II in Cagayan as approved by Regional Director on the basis of the first evaluation made by the Placement Committee. Banan filed an MR, asserting that she is more qualified than Sinon. CSC granted the MR and gave due course to Banan’s appointment. DOCTRINE: No GAD on the part of the CSC. There was no statement in the assailed CSC resolution directing Banan’s appointment. It was simply an affirmation of Banan’s appointment as recommended by DARAB and approved by the DA Secretary. This is in compliance with §4 of RA 6656 which mandates that officers and employees holding permanent appointments shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former positions. Camarines Sur v. CA (1995) SUMMARY: Dato was appointed as Private Agent. On October 12, 1972, he was promoted and was appointed Assistant Provincial Warden by then Governor Felix Alfelor, Sr. Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be legally extended a permanent appointment. Hence, what was extended to him was only a temporary appointment. Thereafter, the temporary appointment was renewed annually. Governor Alfelor then approved the change in Dato's employment status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. DOCTRINE: Such lack of a civil service eligibility made his appointment temporary and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. The fact that Dato obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. In such a case, what is required is a new appointment. Gloria v. de Guzman (1995) D2016 | Public Officers | Prof. G. Dizon-Reyes
SUMMARY: The PAFCA Board issued Resolution No. 91-026, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in accordance with pertinent civil service law, rules and regulations.” Thus, private respondents were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. DOCTRINE: Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. The position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. Acquisition of civil service eligibility by a temporary appointee does not entitle him, as a matter of right, to a permanent (re)appointment. Matibag v. Benipayo (2002) SUMMARY: PGMA extended an ad interim appointment to Benipayo as COMELEC Chairman. His appointment was forwarded to the Commission of Appointments but remained unacted upon. PGMA renewed Benipayo’s ad interim appointment several times since the Commission of Appointments failed to act on the appointment. Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution. DOCTRINE: 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 Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of 21
Congress without the Commission on Appointments acting on his appointment. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Erasmo v. Home Insurance & Guaranty Corp. (2002) SUMMARY: Erasmo appealed the status of her temporary appointment to the CSC, which held, in its resolution, that a CES eligibility is required to a CES position, and even if one possesses such eligibility, still the appointment cannot be considered permanent unless an appointment to the rank has been granted by the President of the Philippines. In dismissing her appeal, the CSC ruled inter alia that Erasmo is not protected by the security of tenure clause under the Constitution because she was holding her position of Vice-President under a temporary status. DOCTRINE: Erasmo’s promotional appointment as VicePresident of TS/GCIG is merely temporary in nature. Her appointment papers clearly indicate it. This is because Erasmo does not possess a career executive service eligibility which is necessary for the position of VicePresident of TS/GCIG, it being a career service executive office. Her new appointment, being temporary in character, was terminable at the pleasure of the appointing power with or without a cause, and petitioner does not enjoy security of tenure. Padilla v. CSC (2003) SUMMARY: Padilla assumed the permanent position of Clerk II in the then Ministry of Labor and Employment. She was then promoted to the position of Labor Development Assistant. She then resigned from the service. Later on she took the Career Service Examination (Professional Level) and passed. She then re-applied at the DOLE. She was appointed as Casual Research Assistant and the same was extended. From January 1989 until December 1989, Padilla occupied the position of Casual Technical. Her item was abolished by virtue of RA 6758. She was offered the position of Clerk II for which the Selection Board deemed her qualified. However, she declined the offer. She was appointed Casual Clerk III, effective until the end of June 1990. After the expiration of her appointment as a casual employee, she was no longer given any position. DOCTRINE: Like removal for just cause, voluntary resignation results in the abdication of all present and future rights accorded to an employee and in the severance of all work-related ties between the employer and the employee. When she returned to work for respondent DOLE, the same was not a continuation of her previous service but the start of a new work slate. D2016 | Public Officers | Prof. G. Dizon-Reyes
Petitioner could not therefore demand from respondent DOLE her reinstatement to a permanent position under Section 24(d) of PD 807 inasmuch as she was never unjustly removed. Having accepted the position of a casual employee, Padilla should have known that she had no security of tenure and could thus be separated from the service anytime CSC v. dela Cruz (2004) SUMMARY: Dela Cruz was employed at the ATO of the DOTC, first as a Check Pilot II and then was promotionally appointed. Calamba of the Aviation Security Division of the filed a protest before the DOTC questioning the appointment, claiming that respondent did not meet the 4-year supervisory requirement for said position. This was dismissed. On appeal, the CSC- NCR upheld the protest of Calamba and recalled the appointment. Upon clarification, the CSC-NCR granted Calamba’s appeal. Dela Cruz filed an MR, which was denied. The CA, however, reversed the resolution and affirmed the appointment of Dela Cruz. DOCTRINE: Dela Cruz’s multifarious experiences and trainings in air transportation were taken into account when he was chosen for the subject position. Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants CSC v. Darangina (2007) SUMMARY: Darangina was a development management officer V in the Office of Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment as director III. On October 11, 2000, the CSC approved this temporary appointment effective for one (1) year from the date of its issuance unless sooner terminated. OMA Exec. Director Tomawis, on October 31, 2000, terminated Darangina’s temporary appointment on the ground that he is not a career executive service eligible. DOCTRINE: He is not entitled to reinstatement. As a rule, no person may be appointed to a public office unless he or she possesses the requisite qualifications. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such pre- termination of 22
a temporary appointment may be with or without cause as the appointee serves merely at the pleasure of the appointing power. Where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited. Corpuz v. CA (1998) SUMMARY: Corpuz was appointed the MTRCB’s legal counsel. The appointment was approved by Asst. Regional Director of the CSC-NCR. Subsequently, he was designated Attorney V under the Salary Standardization Law. The MTRCB passed a Resolution declaring the appointments of MTRCB administrative and subordinate employees null and void. CSC: Corpuz had already acquired security of tenure in the said position. DOCTRINE: Where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. Lapinid v. CSC (1991) SUMMARY: Lapinid was appointed by the PPA to the position of Terminal Supervisor. Junsay contended that he should be designated instead, in view of his preferential right to the position. CSC: ruled in favor of Junsay, on the ground that he scored higher in the evaluations. DOCTRINE: The CSC has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. Departure from the Luego doctrine by the CSC after the date of the promulgation of this decision shall be considered contempt and shall be dealt with severely. Gen. Manager, PPA v. Monserate, supra DOCTRINE: Appointing authority has wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service. However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the D2016 | Public Officers | Prof. G. Dizon-Reyes
revocation of Monserate's appointment by demoting her. Her security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power When the CA reinstated Monserate to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. Her position as Manager II never became vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio. Velicaria-Garafil v. Office of the President (2015) SUMMARY: All petitions question the constitutionality of PNoy’s EO 2 for being inconsistent with Const., Art.VII§15. EO 2 sought to Recall, Withdraw, and Revoke Midnight Appointments. DOCTRINE: EO No. 2 is constitutional, and petitioners are midnight appointees because their appointments were not completed before the ban took effect. Appointment to a government post is a process that takes several steps to complete. Any valid appointment, including one made under the exception provided in §15, Article VII must consist of the President signing an appointee’s appointment paper to a vacant office, the official transmittal of the appointment paper (preferably through the MRO), receipt of the appointment paper by the appointee, and acceptance of the appointment by the appointee evidenced by his or her oath of office or his or her assumption to office. a. Appointment by the President Const., Art. VII, Sec. 16 Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. 23
Certain appointments by the President are subject to Constitutional restrictions. Kinds of Presidential appointments Regular – made while Congress is in session. Mere nominations which must be approved by the Commission on Appointments. Ad interim – made while Congress is in recess or not in session Permanent – lasts until lawful termination. Both regular and ad interim appointments are permanent appointments. Temporary – lasts until a permanent appointment is issued † Ad interim appointment Const., Art. VII, Sec. 16, 2nd paragraph Does not apply to appointments which need no confirmation by the CA Permanent in nature but effective only until rejection by the CA or the next adjournment of Congress Since ad interim appointment is made during Congressional recess, it is made in transgression of the theory of checks and balance since it is in effect a grant of appointing power without legislative confirmation. May be recalled before confirmation Temporary appointments Power to appoint includes the power to make temporary of acting appointments. REASON: The whole includes the parts. General power to make permanent appointment includes the power to make temporary ones. EXCEPTIONS o specific prohibition in law or the Constitution (e.g., in the Constitutional Commissions) o when temporary appointment is repugnant to the nature of the office to be filled Temporary appointments do not need COA confirmation because it is not a permanent appointment. 3 steps in the Presidential appointment process 1. Nomination – President has sole discretion on who to nominate. 2. Confirmation – Power belongs to Congress as a check on the appointing power of the President. o The President cannot confer confirmatory power to the CA where the Constitution vested the sole discretion to appoint in the President without need of confirmation. D2016 | Public Officers | Prof. G. Dizon-Reyes
3. Issuance of commission – not the appointment itself but serves as evidence of appointment. Not mandatory but usually inseparable from the appointment because there is often nothing to show that an appointment has been made other than the commission. COA Confirmation Only those in the 1st group require confirmation Congress cannot impose confirmation requirement by statute Heads of offices not called bureaus (SEC, Insurance Commisson, etc.) no longer require confirmation. President’s voluntary act of submitting a nonCOA appointment to COA; and COA’s subsequent action on such submission, would be without or in excess of jurisdiction (Bautista v. Salonga) Sarmiento v. Mison (1987) SUMMARY: Pres. C. Aquino appointed Salvador Mison as Commissioner of the BOC without submitting a prior nomination to the Commission on Appointments and securing its confirmation. Sarmiento & Arcilla seek to enjoin Mison from performing the functions of the Office of Commissioner of the Bureau of Customs on the ground that Mison's appointment is unconstitutional for not having been confirmed by the Commission on Appointments. DOCTRINE: 4 groups of officers whom the President shall appoint 1. Heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2. All other officers of the Government whose appointments are not otherwise provided for by law 3. Those whom the President may be authorized by law to appoint; 4. Officers lower in rank whose appointments the Congress may by law vest in the President alone (refers to the 3rd sentence). The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. Constitution, Art. VII, Sec. 16 1st sentence Not all Cabinet-rank officers are “heads of departments”. 24
Other officers whose appointments are constitutionally vested in the President 1. Regular members of the JBC 2. Lower court judges, Sandiganbayan justices, Ombudsman and deputies 3. Chairs and Commissioners of the Constitutional Commissions 4. Members of the regional consultative commission 2nd sentence “Not otherwise provided for by law” o Where Congress omits to provide for appointment to said office o Where Congress provided for an unconstitutional manner of appointment “Those whom he may be authorized by law to appoint” 3rd sentence Congress is the one vesting the power. It may vest such in: o the President alone o in the courts o in the heads of departments, agencies, commissions, or boards “Lower in rank” refers to officers subordinate to those enumerated officers in whom respectively the power of appointment may be vested Calderon v. Carale (1992) SUMMARY: RA 6715 was passed, amending the Labor Code. §13 of the law amended Art. 215 of the Code. It provided that the appointment of the NLRC Chairman and Commissioners shall be made by the President, subject to confirmation by the Commission on Appointments. DOCTRINE: RA 6715 is unconstitutional because it amends Art. VII§16: By adding to the 1st sentence more officers who must be confirmed by the CA By changing the 2nd sentence in imposing CA confirmation on appointments which are entrusted only to the President In effect, RA 6715 is unconstitutional insofar as it requires CA confirmation of appointments to the Chairmanship and Commissionerships of the NLRC. There was a deliberate intent on the part of the 1986 ConCom to depart from the pre-1986 appointment regime where the CA had confirmatory power over almost all presidential appointments, which led to abuses. De Castro v. JBC (2010) SUMMARY: Then-CJ Puno was set to compulsorily retire on May 17, 2010, a few days after the presidential D2016 | Public Officers | Prof. G. Dizon-Reyes
elections which took place on May 10, 2010. Main petition seeks to enjoin the JBC from moving on with the appointment of his successor. DOCTRINE: §15, Art. VII did not apply to appointments in the Judiciary, on the basis of the records of the Constitutional Commission. In Re Valenzuela overturned. Aytona v. Castillo (1962) SUMMARY: Outgoing President Garcia appointed Aytona as ad interim Governor of the Central Bank. Aytona took the corresponding oath. On the same day, at noon, President-elect Macapagal assumed office; and on the next day, he issued AO No. 2 recalling, withdrawing, and cancelling all ad interim appointments made by former President Garcia. There were all-in all, 350 midnight appointments made by the Garcia. On January 1, Macapagal appointed Castillo as ad interim Governor of the Central Bank. Aytona instituted quo warranto against Castillo. DOCTRINE: The appointments were invalid. It was not for Garcia to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. (NB: This case is the basis for the current constitutional provision on midnight appointments.) In re Valenzuela and Vallarta (1998) SUMMARY: President Ramos signed the appointments of Hon. Mateo Valenzuela and Hon. Placido Vallarta as Judges of the RTC of Br. 62, Bago City and of Br. 24, Cabanatuan City, respectively. All the appointments had been signed on March 30, 1998 DOCTRINE: During the period stated in Sec. 15, Art. VII of the Constitution, the President is neither required to make appointments to the courts nor allowed to do so; and that Secs. 4(1) and 9 of Art. VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Sec. 15 of Art. VII. This prohibition on appointments comes into effect once every 6 years. The appointments of Valenzuela and Vallarta were unquestionably made during the period of the ban. They come within the operation of the prohibition relating to appointments. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. Velicaria-Garafil v. Office of the President, supra DOCTRINE: The President exercises only one kind of appointing power. There is no need to differentiate the exercise of the President’s appointing power outside, just before, or during the appointment ban. The Constitution allows the President to exercise the power of appointment during the period not covered by the appointment ban, and disallows (subject to an exception) 25
the President from exercising the power of appointment during the period covered by the appointment ban. The concurrence of all steps in the appointment process is admittedly required for appointments outside the appointment ban. There is no justification whatsoever to remove acceptance as a requirement in the appointment process for appointments just before the start of the appointment ban, or during the appointment ban in appointments falling within the exception. The existence of the appointment ban makes no difference in the power of the President to appoint; it is still the same power to appoint. In fact, considering the purpose of the appointment ban, the concurrence of all steps in the appointment process must be strictly applied on appointments made just before or during the appointment ban. b. Appointment under Civil Service Qualification Standard Const. Art. IX-B, Sec. 2(2) Section 2. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. Appointment under the Civil Service is governed by the Civil Service Law (EO 292, Book V) and its related statutes and issuances Civil Service Law, Sec. 26(1) (1) Appointment through certification. An appointment through certification to a position in the civil service, except as herein otherwise provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles, and who meets all the other requirements of the position. All such persons must serve a probationary period of six months following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period: Provided, That such action is appealable to the Commission. Scope of the Civil Service: All branches, instrumentalities and agencies of the Government, including GOCCs with original charters. Positions in the Civil Service are classified into Career and Non-Career positions. Classes of Service 1. Career Service – Sec. 7 D2016 | Public Officers | Prof. G. Dizon-Reyes
a. Characteristics i. Criteria of merit and fitness ii. Use of competitive examinations or highly technical qualifications iii. Opportunity for advancement to higher career positions iv. Security of tenure b. Positions Included i. Open Career positions ii. Closed Career positions iii. Positions in the Career Executive Service (CES) iv. Non-CES Career officers appointed by the President (e.g. Foreign Service Officers) v. Commissioned officers and enlisted men of the AFP vi. Personnel of GOCCs not under the non-career service vii. Permanent laborers (skilled, semi-skilled, or unskilled) c. Classes of Positions – Secs. 5 & 8 i. First Level 1. Positions included: Clerical, trades, crafts, and custodial service positions 2. Nature: Involve nonprofessional or subprofessional work in a non-supervisory or supervisory capacity 3. Education requirement: Less than 4 years of collegiate studies ii. Second Level 1. Positions included: Professional, technical, and scientific positions 2. Nature: Involve professional, technical, or scientific work in a non-supervisory or supervisory capacity 3. Education requirement: At least 4 years of college work up to Division Chief level iii. Third Level: Positions in the Career Executive Service 2. Non-Career Service – Sec. 9 a. Characteristics
i. Criteria other than usual tests of merit and fitness utilized for the career service ii. Limited tenure 1. Specified by law 2. Coterminous with/subject to pleasure of appointing authority 3. Project-based b. Positions Included – Secs. 9(1)-(5) i. Elective officials and their personal or confidential staff ii. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s) iii. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff iv. Contractual personnel or project-based personnel, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency v. Emergency and seasonal personnel Recruitment and Selection of Employees – §21 1. Principles – §21(1) a. Equal opportunity b. Attracting best qualified persons c. Criteria of merit and fitness – cf. §26 d. Use of competitive examinations – §26 e. In-house screening process – §21(4) 2. Filling of Vacancies a. In general – §21(5) (5) If the vacancy is not filled by promotion as provided herein the same shall be filled by transfer of present employees in the government service, by reinstatement, by re-employment of persons separated through reduction in force, or by appointment of persons with the civil service eligibility appropriate to the positions. b. In the 1st level of the Career Service – §21(2) c. In the 2nd level of the Career Service – §21(3) D2016 | Public Officers | Prof. G. Dizon-Reyes
d. Vacancies filled by promotion – §21(6) 3. Qualification Standards – §22 4. Examinations a. Definition – §5 (9) Examination refers to a civil service examination conducted by the Commission and its regional offices or by other departments or agencies with the assistance of the Commission, or in coordination or jointly with it, and those that it may delegate to departments and agencies pursuant to this Title, or those that may have been delegated by law. b. When required – §21(7) (7) Qualification in an appropriate examination shall be required for appointment to positions in the first and second levels in the career service in accordance with the Civil Service rules, except as otherwise provided in this Title: Provided, That whenever there is a civil service eligible actually available for appointment, no person who is not such an eligible shall be appointed even in a temporary capacity to any vacant position in the career service in the government or in any government-owned or controlled corporation with original charter, except when the immediate filling of the vacancy is urgently required in the public interest, or when the vacancy is not permanent, in which cases temporary appointments of non-eligibles may be made in the absence of eligibles actually and immediately available. c. Who administers – §21(8) d. For members of cultural communities – §25 e. Results i. How released – §23 ii. Register of Eligibles – §24 Approval of the Civil Service Commission GR: ALL Appointments to the Civil Service require the approval of the CSC EX: Presidential appointees, soldiers, police officers, firefighters, and jailguards. All appointments to the CSC must be submitted by the appointing authority to the CSC for approval within 30 days from issuance, otherwise the appointment becomes ineffective 30 days thereafter. APPROVAL of the CSC is more properly called an ATTESTATION, since all the CSC can do is to determine if the appointee is qualified for the position and if the pertinent rules were followed. Juco v. NLRC (1997) SUMMARY: Juco filed a case for illegal dismissal with the DOLE. LA dismissed for lack of jurisdiction. He then filed a case before the CSC. CSC: NHC is a GOCC organized under the Corporation Code and does not have an original charter. It is thus outside the jurisdiction 27
of the CSC as provided for in Const., Art. IX§2(1). Juco again filed with the DOLE. LA Caday, ruled in favor of Juco. NHC was ordered to reinstate him and pay him backwages from the time of his dismissal. NLRC reversed for lack of jurisdiction. DOCTRINE: NHC was created in 1959 under the old Uniform Charter of Government Corporations and was incorporated under the old Corporation Law. Its shares are 100% owned by other government entities (SSS, GSIS, DBP, NIDC & PHHC). It is therefore a GOCC whose employees are under the Labor Code, i.e., it is not a GOCC with original charter. GOCCs incorporated under the Corporation Code are governed by the Labor Code and come under the jurisdiction of the NLRC. EIIB v. CA (1998) SUMMARY: EIIB was directed by the CSC to submit all its appointments. EIIB did not comply and asserted an express exemption on the basis of 3 enactments: PD1458, LOI 71 (implementing PD 1458), and EO127. DOCTRINE: PD1458 only exempted EIIB from Civil Service Rules and Regulations relative to appointments and other personnel actions, but not from the Civil Service Law or Civil Service Rules and Regulations relative to any other matter. Also, the argument that it was part of the intelligence community was found to be of no merit since the NBI, similarly a member of such community, submits to the CSC the appointments of all its personnel. It is clear that the civil service within the contemplation of the Constitution is comprehensive in scope. The civil service within the contemplation of the aforecited constitutional provision is comprehensive in scope. It embraces all officers and employees of the government, its branches, subdivisions and instrumentalities. Even employees of corporations owned or controlled by the government, with original charters, are covered thereby. Chua v. CSC (1992) SUMMARY: Lydia Chua is an employee of the National Irrigation Administration. RA 6683 was approved, providing benefits for early retirement and voluntary separation. She contends that she is entitled to such. CSC, on the other hand, contends otherwise as she is merely a contractual employee, which is excluded from the coverage. DOCTRINE: Coterminous status shall be issued to a person whose entrance in the service is characterized by confidentiality by the appointing authority or that which is subject to his pleasure or co-existent with his tenure. A coterminous employee is a non-career civil servant, like casual and emergency employees. The Court sees no solid reason why the latter are extended benefits under the Early Retirement Law but the former are not. D2016 | Public Officers | Prof. G. Dizon-Reyes
Cuevas v. Bacal (2000) SUMMARY: Bacal holds the position of CESO rank III. She was Regional Director of the PAO before she was designated Acting Chief Public Attorney by President Ramos. However, a certain Carina Demaisip was appointed chief public defender by President Estrada. The position of Chief Public Defender was formerly called Chief Public Attorney and which position respondent was currently holding. She filed a quo warranto with the CA questioning her replacement. The CA ruled that her removal was without cause and in violation of her right to tenure. DOCTRINE: Bacal’s security of tenure was not violated. A permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right depends on the nature of his appointment, which in turn depends on his eligibility or lack of it. Also, security of tenure in the career executive service is acquired with respect to rank and not to position. PAGCOR v. Rilloraza (2001) SUMMARY: Rilloraza, Casino Operations Manager, was administratively charged with dishonesty, grave misconduct, conduct prejudicial to best interest of the service, and loss of confidence for failing to stop his bosses from playing in the casino. PAGCOR argued that he occupied a primarily confidential position. DOCTRINE: Rilloraza was not a confidential employee, nor was he guilty of grave misconduct (only simple neglect). Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Rilloraza’s duties do not evince such level of confidence. Luego v. CSC, supra DOCTRINE: The CSC is not empowered to determine the kind of 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. Unlike the Commission on Appointments, which can review the wisdom of an appointment, the CSC has no such power under the Civil Service Decree. Its authority is limited to a non-discretionary one, i.e., to determine if the appointee meets all the conditions required by the law. 28
Aquino v. CSC (1992) SUMMARY: Aquino who was then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated as OIC of the Division Supply. Later on, Dela Paz was extended a promotional appointment to the same position. CSC RO approved her. Aquino filed a protest with the DECS Secretary and was thus appointed to the position on the ground that Aquino has advantage over Dela Paz in terms of education, experience and training and that the latter has no relevant in-service training course attended and completed. Dela Paz appealed to the MSPB who upheld the appointment of Dela Paz. However, the CSC reversed and found such appeal meritorious. DOCTRINE: Once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. Dela Paz already acquired security of tenure. Luego does not apply in this case. Delos Santos v. Mallare (1950) SUMMARY: De los Santos was appointed by the President as City Engineer of Baguio. After 4 years, Mallare was extended an ad interim appointment by the President to the same position so De los Santos was directed to report for another assignment. The latter refused to vacate the office. When the City officials refused to pay his salary, De los Santos questioned before the SC the legality of his removal and Mallare’s appointment on the ground that as an official of the Civil Service, he cannot be removed “except for cause” as provided under Sec. 4, Art. XII of the Constitution. DOCTRINE: De los Santos could not be removed except for cause; hence, he is entitled to remain in office as City Engineer of Baguio. Sec. 2545 is absolutely irreconcilable with the constitutional prohibition under Sec. 4, Art. XII; thus, it is no longer in effect. The office of city engineer is neither primarily confidential, policydetermining, nor highly technical as to be beyond the protection of Sec. 4, Art. XII. Sec. 4, Art. XII which provides that “No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law” protects the entire Civil Service, whether classified or unclassified, except positions "which are policy- determining, primarily confidential or highly technical in nature." Tria v. Sto. Tomas (1991) SUMMARY: Tria had sent a confidential report regarding the nonfeasance of a lawyer within the FMIB to the D2016 | Public Officers | Prof. G. Dizon-Reyes
Office of the President after no action was taken when he submitted his report to the FMIB Deputy Commissioner. While he was away on leave, the Asst. FMIB Commissioner sent him two Memos directing him to submit a written explanation why no disciplinary action should be taken. Failing to receive and respond to the Memos, Tria was thereafter dismissed while he was still away on the ground of loss of confidence. DOCTRINE: It is the nature of the position which finally determines whether position is primarily confidential, policy determining, or highly technical. Therefore, he could not be legally removed on the ground of loss of confidence. It is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. Laurel v. CSC (1991) SUMMARY: The position of Batangas Provincial Administrator became vacant due to resignation. Benjamin Laurel was designated Acting Provincial Administrator by his Governor brother, to remain in office until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked. DOCTRINE: The position of Provincial Administrator is embraced in the Career Service under PD 807§5 as evidenced by the qualifications prescribed therefor as to education, experience, and eligibility; as well as the definition and characterization of the position in the Manual of Position Descriptions. The rule on nepotism covers both designation and appointments. (NB: No longer good law. The PA is now a primarily confidential position.) Provincial Government of Camarines Norte v. Gonzales (2013)* SUMMARY: Gonzales was appointed Camarines Norte Provincial Administrator. She was dismissed, but reinstated by order of the CSC. One day after her reinstatement, she was dismissed again, this time for lack of confidence, being the occupant of a primarily confidential position. CSC reversed on the ground that Gonzales was a permanent appointee, and that the CSC ruling on the nature of the administrator position cannot be made to retroact to Gonzales who was appointed prior to said ruling. CA upheld the CSC. On appeal, the SC reversed the CSC and the CA. DOCTRINE: Overturned Laurel dictum on the confidentiality nature of the Provincial Administrator position. Congress, through RA 7160, has reclassified the provincial administrator position as a primarily confidential, non-career position, as indicated by functions of the position as provided for in said law. 29
Gonzales’ security of tenure was not violated by the valid Congressional act. Griño v. CSC (1991) SUMMARY: Demaisip was appointed as Provincial Attorney, but he resigned, and Arandela took his place. When Governor Griño assumed office, he reappointed Demaisip, replaced Arandela. Demaisip removed the other legal officers previously appointed and replaced them. Merit System Protection Board ruled in favor of Arandela et al, stating that they were illegally terminated by Governor Griño. CSC affirmed. DOCTRINE: The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal. It is possible to distinguish positions in the civil service where lawyers act as counsel in confidential and non-confidential positions by simply looking at the proximity of the position in question in relation to that of the appointing authority. Occupants of such positions would be considered confidential employees if the predominant reason they were chosen by the appointing authority is the latter's belief that he can share a close intimate relationship with the occupant which measures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust on confidential matters of state. CSC v. Salas (1997) SUMMARY: Salas was appointed by the PAGCOR as a member of the Internal Security Staff of the casino at the Manila Pavilion Hotel. He was later dismissed from service on the ground of loss of confidence due to allegedly having been involved in proxy betting. In denying his appeals, the Merit Board and the CSC found that Salas was a confidential employee who therefore, was not dismissed. His term merely expired. The CA reversed, finding that Salas was not a confidential employee. DOCTRINE: Salas is not a confidential employee. A confidential employee is one whose position is primarily confidential. The latter phrase denotes 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 of betrayals of personal trust or confidential matters of state. Taking into consideration the nature of his functions, his organizational ranking and his compensation level, Salas cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the ordinary, routinary and quotidian character of his duties and functions which do not show a primarily close intimacy to his appointing authority. D2016 | Public Officers | Prof. G. Dizon-Reyes
Obiasca v. Basallote (2010) SUMMARY: Basallote was originally appointed as Administrative Officer II of Tabaco National High School. However, her papers were not forwarded to the CSC. She was advised to go back to her original position of Teacher I. Meanwhile, Obiasca was also appointed to the same position and such was attested to by the CSC. Basallote appealed to the CSC, which recalled Obiasca’s appointment. Obiasca went to the CA and argued that Basallote’s appointment did not comply with the requirement of Sec. 9(h) of PD 807 which provided that every appointment is required to be submitted to the CSC within 30 days from issuance DOCTRINE: The CSC resolution appointing Basallote and recalling Obiasca’s appointment has become final and executory due to failure to exhaust administrative remedies. Second, that PD 807 has been amended by EO 292 which deleted the 30-day requirement. It also found that the failure to submit respondent’s appointment to the CSC was not because of her own fault but because of the malfeasance of certain individuals. Despite with the non-compliance of a CSC rule because: (1) there were valid justifications for the lapse; (2) the non-compliance was beyond the control of the appointee and (3) the appointee was not negligent, the appointment was still valid. c. Remedy to Question Title ROC 66 RULE 66 QUO WARRANTO SECTION 1. Action by Government against individuals.— An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which,-by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (1a) SEC. 2. When Solicitor General or public prosecutor must commence action.— The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action. (3a)
SEC. 3. When Solicitor General or public prosecutor may commence action with permission of court.— The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (4a) SEC. 4. When hearing had on application for permission to commence action.— Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court. (5a) SEC. 5. When an individual may commence such an action.— A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. (6) SEC. 6. Parties and contents of petition against usurpation.— When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. (7a) SEC. 7. Venue.— An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court. (8a) SEC. 8. Period for pleadings and proceedings may be reduced; action given precedence.— The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in D2016 | Public Officers | Prof. G. Dizon-Reyes
order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court. (9a) SEC. 9. Judgment where usurpation found.— When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. (10a) SEC. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. — If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. (15a) SEC. 11. Limitations.— Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner's right to the office in question. (16a) SEC. 12. Judgment for costs.— In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires. (17a) Quo warranto = “(by) what warrant” 31
It is a remedy to try disputes with respect to the title to a public office. If there is no dispute as to who has title, and there is a usurper, mandamus is the proper remedy. Title to office cannot be collaterally attacked. It can only be assailed by direct action, i.e., quo warranto. Action can be brought only by the Government or a person claiming to be entitled to the office. Person bringing the action must show a clear legal right to the office. A mere contingent interest, or a claim based on a temporary appointment or a designation, cannot be the basis for quo warranto action. Petitioner who did not have the requisite qualifications at the time of his appointment cannot be said to have such clear legal right. Quo warranto action cannot prosper if brought beyond the prescribed period (exception: Cristobal v. Melchor). Filing of a quo warranto complaint suspends the 1-year period. However, administrative proceedings do not. warranto in Election Quo warranto in general
Quo Law Issue is eligibility of candidate Plaintiff does not necessarily become rightful occupant of the office Electoral proceeding under the Omnibus Election Code Filed within 10 days from proclamation May be filed by any losing candidate
Issue is validity of appointment Plaintiff may be declared the person legally entitled to the office and court will order that he be placed therein Prerogative writ to compel a person to show his title to a public office or franchise Presupposes that respondent is already holding office Only one who claims a right to the office and will be entitled to assume it in case of successful suit may file
Tarrosa v. Singson (1994) SUMMARY: Singson was appointed Governor of the Bangko Sentral by President Ramos, effective on July 6, 1993. Tarrosa filed suit as a taxpayer to enjoin Singson from performing his functions as BSP Governor until the Commission on Appointments confirms his appointment. Tarrosa argues that Singson’s appointment has to be D2016 | Public Officers | Prof. G. Dizon-Reyes
confirmed by the CoA pursuant to RA 7653§6 (the BSP Law). DOCTRINE: Tarrosa’s petition is in the nature of a quo warranto proceeding as it seeks to oust Singson on the allegation that the latter is unlawfully holding or exercising the powers of BSP Governor. The question of title to an office, which must be resolved in a quo warranto proceeding, may not be determined in a suit to restrain the payment of salary to the person holding such office, brought by someone who does not claim to be the one entitled to occupy the said office. Mendoza v. Allas (1999) SUMMARY: In 1989, Mendoza was the Director III of the Customs Intelligence and Investigation Service of the Bureau of Customs. In 1993, he was temporarily designated as Acting District Collector of Cagayan de Oro and Allas was appointed as Acting Director in his place. However, in 1994, he was terminated from his position in view of Allas appointment as Director III by the President. Mendoza filed a petition for quo warrant against Allas before the RTC. RTC granted his petition and ruled that he was illegally terminated from office and that the appointment of Allas was void. On appeal, the CA granted Mendoza’s MTD and its decision became final. However, when Mendoza moved to have the RTC decision executed, the RTC, as affirmed by the CA denied said motion, on the ground that the contested position vacated by Allas was now being occupied by Godofredo Olores. DOCTRINE: CA correctly denied the motion for execution. Mendoza cannot be reinstated nor paid with back salaries. The petition for quo warranto was filed by Mendoza solely against Allas. What was threshed out before the trial court was the qualification and right of Mendoza to the contested position as against Ray Allas, not against Godofredo Olores. A judgment in quo warranto does not bind the respondent's successor in office, even though such successor may trace his title to the same source. Class Notes: What could have Mendoza done to escape the effect of the SC ruling? Could he have impleaded Allas’ successors? Romualdez-Yap v. CSC (1993) SUMMARY: While on leave for medical reasons, Romualdez-Yap, PNB’s Senior VP assigned to the Fund Transfer Department, was separated from the service. The CSC upheld her separation on the ground that the PNB was undergoing a reorganization, and pursuant to its plan, the FTD had to be abolished. The CSC decided that the abolition was made in good faith. Assuming there was bad faith in Yap’s termination, she was actually barred from assailing it seeing as she did not
seasonably assert her right thereto, or within a year from her ouster. DOCTRINE: A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court). The petitioner therein must show a clear legal right to the office allegedly held unlawfully by another. An action for quo warranto should be brought within 1 year after ouster from office; the failure to institute the same within the reglementary period constitutes more than a sufficient basis for its dismissal since it is not proper that the title to a public office be subjected to continued uncertainty. An exception to this prescriptive period lies only if the failure to file the action can be attributed to the acts of a responsible government officer and not of the dismissed employee.
2. Election (to be discussed under Election Law)
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III. DUTIES & RESPONSIBILITIES WHILE IN PUBLIC OFFICE A. Powers and Duties 1. Source of Power and Authority
In the Philippine constitutional scheme, governmental authority comes from the people. The people, directly or through their chosen representatives exercise the power to: o create offices and agencies as they deem desirable for the administration of public functions o declare in what manner and by what persons they shall be exercised o prescribe the quantum of power attached to each department; and the conditions upon which its continuation depends. Mechem: Right to be a public officer or to exercise the powers of a public office must be based on some provision of the public law
2. Construction of Powers and Duties
Public officials exercise POWER, not RIGHTS (#Hohfeld). According to Mechem, public office is an agency, the State being the principal and the public officer the agent. As such, there is no presumption of authority. In the absence of a valid grant, public officers are devoid of power. Express grants of power are usually subject to strict interpretation and will be construed as conferring only those which are expressly imposed or necessarily implied.
3. Delegation of Power An officer creates rights against the State or the
public authority he represents ONLY while he is keeping strictly within the limits of his authority, as so construed. The authority of a public officer is a matter of public record, of which every interested person is bound to take notice, so it is presumed that all persons who deal with a public officer have knowledge of his authority. However, persons who deal with a public officer are charged with the ascertainment of the scope of the public officer’s authority as this is circumscribed by the applicable legal provisions. On the other hand, every citizen has the right to assume that a public officer knows his duties and performs them in accordance with law. It
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would be unjust to penalize a citizen for bona fide reliance upon information officially given.
Doctrine of apparent authority in private agency does not apply to private officers. Ratification Although the act of a public officer may not be binding on the state because he has exercised his powers defectively (i.e., act was voidable), his acts may be ratified. Ratification does not apply if the officer had no power to perform the original act. Without ratification, the State cannot be estopped by the unauthorized or illegal acts of its agents. Ratification by superior officer only extends insofar as the superior officer’s own authority
4. Scope of Authority
Authority of public officers is prescribed by the law or the Constitution or both. Authority of public officers consists of: o powers expressly conferred by law under which the officer has been elected or appointed o powers expressly annexed to the office by the creating law or another law referring to it o powers attached to the office as incidents to it
Classification of Powers and Duties 1. As to nature Nature of a power or duty must be determined from the nature of the act and not by the office of the one exercising the power or duty. A public officer may exercise both ministerial and discretionary functions. The key distinctions are the mandatory character and the involvement of judgment in the act concerned a. Ministerial When the power or duty is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts Officer has no discretion as to the interpretation of the law; and the course to be pursued is fixed by law Involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required. Scope of ministerial duties DO NOT INCLUDE passing upon the validity of 34
laws, instructions, or proceedings which are prima facie valid and requiring his action. A ministerial officer must obey the instructions set upon him and a showing of unconstitutionality or invalidity will not excuse him from doing his duty Remedy to compel a ministerial action is mandamus. If duty is threatened to be violated by some positive official act, the remedy is injunction. DELEGATION: Ministerial duties are delegable unless expressly prohibited by law; but the delegate must be guided by the discretion of the officer originally tasked to the duty. b. Discretionary Require the exercise of reason in the adoption of means to an end; and discretion in determining the choice and/or manner of action. Discretion o faculty conferred upon public officers by law of acting officially in certain circumstances, according to the dictates of their own judgment or conscience, uncontrolled by the judgment or conscience of others (Black’s) o essentially a power to make a choice between two or more courses of action which are all lawful o limited to sound discretion, i.e., exercise should not be capricious, arbitrary or oppressive “Quasi-judicial” o duty of looking into facts and acting upon such facts using discretion which is of a judicial nature Reviewable only on the ground of gave abuse of discretion DELEGATION: Discretionary duties are not delegable unless delegation is allowed by law, as it is presumed that an officer performing discretionary duties was chosen because of his fitness and competence to exercise discretion, e.g., Torres v. Ribo. 2. As to obligatoriness of the power or duty D2016 | Public Officers | Prof. G. Dizon-Reyes
a. Mandatory Powers and duties of public officers are generally mandatory although the language of law may be permissive, where they are for the benefit of public or individuals. b. Permissive Mere authorization to do an act does not create a mandatory duty Statutory provisions on the time and mode of discharging duties, e.g. those designed for order and uniformity in public business If the language of the law is permissive and the duty does not affect 3rd persons and is not clearly beneficial to the public, it will not be construed as mandatory 3. As to relation of the power or duty to officer’s subordinates a. Control Power to manage, direct, or govern Includes the power to set aside the official action of subordinates and to substitute one’s own judgment for those of the former. Power to set rules in the doing of an act If not followed, Officer may  undo the act,  have it re-done, or  do it himself Necessarily includes supervision b. Supervision Mere oversight; seeing that rules set by others are being followed. May order work to be done or re-done to comply with the pre-set rules. Cannot lay down own rules. Constitution, Art. XI, Secs. 1, 17, 18 Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. 35
Section 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. SALN RA 6713, Section 8. Statements and Disclosure. — Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. (A) Statements of Assets and Liabilities and Financial Disclosure. — All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households. The two documents shall contain information on the following: (a) real property, its improvements, acquisition costs, assessed value and current fair market value; (b) personal property and acquisition cost; (c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like; (d) liabilities, and; (e) all business interests and financial connections. The documents must be filed: (a) within thirty (30) days after assumption of office; (b) on or before April 30, of every year thereafter; and (c) within thirty (30) days after separation from the service. All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government. Husband and wife who are both public officials or employees may file the required statements jointly or separately. D2016 | Public Officers | Prof. G. Dizon-Reyes
The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by: (1) Constitutional and national elective officials, with the national office of the Ombudsman; (2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials with the Office of the President. (3) Regional and local officials and employees, with the Deputy Ombudsman in their respective regions; (4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions; and (5) All other public officials and employees, defined in Republic Act No. 3019, as amended, with the Civil Service Commission. (B) Identification and disclosure of relatives. — It shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the Government in the form, manner and frequency prescribed by the Civil Service Commission. (C) Accessibility of documents. — (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours. (2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law. (3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification. (4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless needed in an ongoing investigation. (D) Prohibited acts. — It shall be unlawful for any person to obtain or use any statement filed under this Act for: (a) any purpose contrary to morals or public policy; or (b) any commercial purpose other than by news and communications media for dissemination to the general public. RA 3019, Section 7. Statement of assets and liabilities. Every public officer, within thirty days after the approval of this Act or after assuming office, and within the month of January of every other year thereafter, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and 36
file with the office of the corresponding Department Head, or in the case of a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January. Section 9. Penalties for violations. (b) Any public officer violation any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment not exceeding one year, or by both such fine and imprisonment, at the discretion of the Court. The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. Morfe v. Mutuc (1968) SUMMARY: Questioned provision is RA 3019§7, which mandates every public officer to submit within 30 days after its approval or after his assumption to office and within the month of January every other year thereafter and upon termination, a statement of assets & liabilities. Lower court ruled that it is unconstitutional. SC reversed, holding that it was not violative of several constitutional rights (due process, privacy, against unreasonable search and seizure, against self-incrimination). DOCTRINE: Nothing can be clearer than that the AntiGraft Act of 1960 like the earlier statute was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device.
5. Specific Duties RA 6713 SECTION 5. Duties of Public Officials and Employees. — In the performance of their duties, all public officials and employees are under obligation to: (a) Act promptly on letters and requests. — All public D2016 | Public Officers | Prof. G. Dizon-Reyes
officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request. (b) Submit annual performance reports. — All heads or other responsible officers of offices and agencies of the government and of government-owned or controlled corporations shall, within forty-five (45) working days from the end of the year, render a performance report of the agency or office or corporation concerned. Such report shall be open and available to the public within regular office hours. (c) Process documents and papers expeditiously. — All official papers and documents must be processed and completed within a reasonable time from the preparation thereof and must contain, as far as practicable, not more than three (3) signatories therein. In the absence of duly authorized signatories, the official next-in-rank or officer in charge shall sign for and in their behalf. (d) Act immediately on the public's personal transactions. — All public officials and employees must attend to anyone who wants to avail himself of the services of their offices and must, at all times, act promptly and expeditiously. (e) Make documents accessible to the public. — All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours. SECTION 8. Statements and Disclosure. — Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. x x x Rabe v. Flores (1997) SUMMARY: Administrative complaint for "Conduct Unbecoming a Government Employee, Acts Prejudicial to the Interest of the Service and Abuse of Authority", by Rabe, against Flores, Interpreter III at the Regional Trial Court, Branch IV, Panabo, Davao, for taking advantage of her position as a court employee by claiming a stall at the extension of the Public Market; and taking the law into her hands when she destroyed Rabe’s stall and brought the materials to the police station DOCTRINE: Section 8 of RA 6713 provides that it is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Section 11 of the same law prescribes the criminal and administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides 37
that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him. Failure of Flores to disclose her business interest which she herself admitted is inexcusable and is a clear violation of RA 6713. PAGC v. Pleyto (2011) SUMMARY: Pleyto was a DPWH Undersecretary who was found guilty of violating Sec. 8, RA 6713 and Sec.7, RA 3019 for his failure to declare in his SALNs his wife’s business interests and financial connections. The PAGC recommended his dismissal from service which the OP approved. The CA reversed the order, prompting the PAGC to file this petition. HELD: The failure of Pleyto to disclose his wife’s business interests was a violation of the aforementioned laws. Petitioner was negligent for failing to comply with his duty to provide a detailed list of his assets and business interests in his SALN. He was also negligent in relying on the family bookkeeper/accountant to fill out his SALN and in signing the same without checking or verifying the entries therein. Petitioner’s negligence, however, is only simple and not gross, in the absence of bad faith or the intent to mislead or deceive on his part, and in consideration of the fact that his SALNs actually disclose the full extent of his assets and the fact that he and his wife had other business interests. Such simple negligence warrants the penalty of forfeiture of salaries and not dismissal. DOCTRINE: In the case of public officials, there is negligence when there is a breach of duty or failure to perform the obligation, and there is gross negligence when a breach of duty is flagrant and palpable. Class Notes: What makes Pleyto different from Flores? That he was USec. and Flores was a mere interpreter?
6. Norms of Conduct RA 6713 SECTION 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: (a) Commitment to public interest. — Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. (b) Professionalism. — Public officials and employees shall perform and discharge their duties with the highest D2016 | Public Officers | Prof. G. Dizon-Reyes
degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. (c) Justness and sincerity. — Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs. (d) Political neutrality. — Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. (e) Responsiveness to the public. — Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas. (f) Nationalism and patriotism. — Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. (g) Commitment to democracy. — Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. (h) Simple living. — Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in 38
extravagant or ostentatious display of wealth in any form. Guiding principle: Public office is a public trust. Samson v. Restrivera (2011) SUMMARY: Samson agreed to help Restrivera to have the latter’s land registered under the Torrens System. Petitioner said that the expenses would reach P150,000. She accepted P50,000 from Restrivera to cover the initial expenses. However, the land was discovered to have been government property. Petitioner failed to return the P50k, prompting respondent to sue her for estafa. Restrivera also filed an administrative case before the Ombudsman. DOCTRINE: In the aftermath of the aborted transaction, Samson still failed to return the amount she accepted. Her belated attempt to return the amount was intended to avoid possible sanctions and impelled solely by the filing of the estafa case against her. While it may be true that she did not actually deal with the other government agencies for the processing of the titles of the subject property, petitioner's act of accepting the money from respondent with the assurance that she would work for the issuance of the title is already enough to create a perception that she is a fixer.
B. Rights & Privileges 1. Right to office RA 6758 August 21, 1989 AN ACT PRESCRIBING A REVISED COMPENSATION AND POSITION CLASSIFICATION SYSTEM IN THE GOVERNMENT AND FOR OTHER PURPOSES Section 1. Title. - This Act shall be known as the "Compensation and Position Classification Act of 1989." Section 2. Statement of Policy. - It is hereby declared the policy of the State to provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. In determining rates of pay, due regard shall be given to, among others, prevailing rates in the private sector for comparable work. For this purpose, the Department of Budget and Managements (DBM) is hereby directed to establish and administer a unified Compensation and Position Classification System, hereinafter referred to as the System, as provided for in Presidential Decree No. 985, as amended, that shall be applied for all government entities, as mandated by the Constitution. D2016 | Public Officers | Prof. G. Dizon-Reyes
Section 3. General Provisions. - The following principles shall govern the Compensation and Position Classification System of the Government: (a) All government personnel shall be paid just and equitable wages; and while pay distinctions must necessarily exist in keeping with work distinctions, the ratio of compensation for those occupying higher ranks to those at lower ranks should be maintained at equitable levels, giving due consideration to higher percentage of increases to lower level positions and lower percentage increases to higher level positions; (b) Basic compensation for all personnel in the government and government-owned or controlled corporations and financial institutions shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages; (c) The total compensation provided for government personnel must be maintained at a reasonable level in proportion to the national budget; (d) A review of government compensation rates, taking into account possible erosion in purchasing power due to inflation and other factors, shall be conducted periodically. Section 4. Coverage. - The Compensation and Position Classification System herein provided shall apply to all positions, appointive or elective, on full or part-time basis, now existing or hereafter created in the government, including government-owned or controlled corporations and government financial institutions. The term "government" refers to the Executive, the Legislative and the Judicial Branches and the Constitutional Commissions and shall include all, but shall not be limited to, departments, bureaus, offices, boards, commissions, courts, tribunals, councils, authorities, administrations, centers, institutes, state colleges and universities, local government units, and the armed forces. The term "government-owned or controlled corporations and financial institutions" shall include all corporations and financial institutions owned or controlled by the National Government, whether such corporations and financial institutions perform governmental or proprietary functions. Section 5. Position Classification System. - The Position Classification System shall consist of classes 39
of positions grouped into four main categories, namely: professional supervisory, professional non-supervisory, sub-professional supervisory, and sub-professional non-supervisory, and the rules and regulations for its implementation. Categorization of these classes of positions shall be guided by the following considerations: (a) Professional Supervisory Category. - This category includes responsible positions of a managerial character involving the exercise of management functions such as planning, organizing, directing, coordinating, controlling and overseeing within delegated authority the activities of an organization, a unit thereof or of a group, requiring some degree of professional, technical or scientific knowledge and experience, application of managerial or supervisory skills required to carry out their basic duties and responsibilities involving functional guidance and control, leadership, as well as line supervision. These positions require intensive and thorough knowledge of a specialized field usually acquired from completion of a bachelor's degree or higher degree courses. The positions in this category are assigned Salary Grade 9 to Salary Grade 33. (b) Professional Non-Supervisory Category. - This category includes positions performing task which usually require the exercise of a particular profession or application of knowledge acquired through formal training in a particular field or just the exercise of a natural, creative and artistic ability or talent in literature, drama, music and other branches of arts and letters. Also included are positions involved in research and application of professional knowledge and methods to a variety of technological, economic, social, industrial and governmental functions; the performance of technical tasks auxiliary to scientific research and development; and in the performance of religious, educational, legal, artistic or literary functions. These positions require thorough knowledge in the field of arts and sciences or learning acquired through completion of at least four (4) years of college studies. The positions in this category are assigned Salary Grade 8 to Salary Grade 30. (c) Sub-Professional Supervisory Category. - This category includes positions performing supervisory functions over a group of employees engaged in D2016 | Public Officers | Prof. G. Dizon-Reyes
responsible work along technical, manual or clerical lines of work which are short of professional work, requiring training and moderate experience or lower training but considerable experience and knowledge of a limited subject matter or skills in arts, crafts or trades. These positions require knowledge acquired from secondary or vocational education or completion of up to two (2) years of college education. The positions in this category are assigned Salary Grade 4 to Salary Grade 18. (d) Sub-Professional Non-Supervisory Category. This category includes positions involves in structured work in support of office or fiscal operations or those engaged in crafts, trades or manual work. These positions usually require skills acquired through training and experience of completion of elementary education, secondary or vocational education or completion of up to two (2) years of college education. The positions in this category are assigned Salary Grade 1 to Salary Grade 10. Section 6. Index of Occupational Services, Position Titles and Salary Grades of the Compensation and Position Classification System. - All positions in the government covered under Section 4 hereof shall be allocated to their proper position titles and salary grades in accordance with the Index of Occupational Services, Position Titles and Salary Grades of the Compensation and Position Classification System which shall be prepared by the DBM. XXX COA Auditing Rules Sec. 243. Salaries and Wages – Regular Pay (801). This account is used to record the pay proper of regular government employees for services rendered. Sec. 244. Salaries and Wages – Part Time Pay (802). This account is used to record the pay proper of parttime government employees for services rendered. Sec. 245. Salaries and Wages-Casual/Contractual (803). This account is used to record the pay proper of casual and contractual government employees for services rendered. Sec. 246. Personnel Economic Relief Allowance (PERA) (804). This account is used to record allowances granted to all appointive national government employees occupying itemized plantilla positions, casual and contractual employees and uniformed personnel of the AFP, DILG and NAMRIA pursuant to the annual appropriations act. 40
Sec. 247. Additional Compensation (ADCOM) (805). This account is used to record the payment of allowance authorized under Administrative Order No. 53 dated May 17, 1993 granted to all government personnel whether regular or casual; and those on temporary status or contractual personnel whose employment is in the nature of a regular employee. Sec. 248. Representation Allowance (RA) (806). This account is used to record representation allowance granted to authorized officials and employees while in the actual performance of their respective functions. Sec. 249. Transportation Allowance (TA) (807). This account is used to record allowance granted to authorized officials and employees for transportation expenses, which shall be paid from appropriations provided for their respective offices. Sec. 250. Clothing Allowance (808). This account is used to record allowance granted to government officials and employees for office uniforms at such amount as may be authorized by applicable General Appropriations Act, which may be given in kind or in cash. Sec. 251. Honoraria (809). This account is used to record payment for services rendered by government personnel performing activities or discharging duties in addition to, or over and above their regular functions, and payment for services of personnel with expertise or professional standing in recognition of his broad and superior knowledge in specific fields. Sec. 252. Hazard Pay (810). This account is used to record compensation paid to employees who are working or assigned in difficult, dangerous, strife-torn or embattled areas as certified by the Department of National Defense, and whose lives are directly exposed to work conditions which may cause injury, sickness or death or harmful change in the human organism, such as; exposure to harmful chemicals, wastes and pollutants, micro-organisms and other harmful elements, or situations that endanger life or health as certified by authorized government agency. Sec. 253. Overtime and Night Pay (811). This account is used to record payment for working in excess of the minimum total hours set for a given period to regular/casual/contractual employees of the agency. Sec. 254. Holiday Pay (812). This account is used to record compensation paid to government employees who rendered authorized services on holidays. Sec. 255. Christmas Bonus (813). This account is used to record Christmas bonus given to government officers and employees as authorized by law. Sec. 256. Cash Gift (814). This account is used to record cash gift granted to government officials and employees as authorized by law. D2016 | Public Officers | Prof. G. Dizon-Reyes
Sec. 257. Productivity Incentive Benefits (815). This account is used to record incentive benefits for the recognition of government officers and employees' productivity and performance as authorized by law. Sec. 258. Other Bonuses and Allowances (816). This account is used to record the payment of other bonuses and allowances not classified under the specific accounts as authorized by law, such as subsistence, laundry, living quarters, allowance, etc. Sec. 259. Life and Retirement Insurance Contributions (817). This account is used to record the government’s share in premium contributions to life insurance and retirement funds of the GSIS. Sec. 260. PAG-IBIG Contributions (818). This account is used to record the government's share of premium contributions to the Home Development Mutual Fund (HDMF). Sec. 261. PHILHEALTH Contributions (819). This account is used to record the government’s share in premium contributions to health insurance funds maintained with the Philippine Health Insurance Corporation (PHIC). Sec. 262. ECC Contributions (820). This account is used to record the government's share in premium contributions to the Employees' Compensation Commission (ECC). Sec. 263. Pension and Retirement Benefits (821). This account is used to record pensions and retirement benefits of government officers and employees and/or their dependents for past services rendered. Sec. 264. Terminal Leave Benefits (822). This account is used to record payment for the money value of the total accumulated leave credits of government officials employees upon retirement or voluntary separation. Sec. 265. Health Workers’ Benefits (823). This account is used to record benefits given to health workers. Sec. 266. Subsistence and Quarters’ Allowances (824). This account is used to record subsistence and quarters’ allowances given to authorized government officials and employees. Sec. 267. Longevity Pay (825). This account is used to record longevity pay given to government officers and employees as authorized by law. Sec. 268. Other Personnel Benefits (830). This account is used to record benefits not classified under any of the specific personnel benefits accounts, such as monetization of leave credits, loyalty cash award, medical insurance premium, medical/hospital expense, executive check up, etc. Rights of public officers are generally measured by the Constitution or the law under which the officer was appointed. Baybay Water District v. COA (2002) 41
SUMMARY: Directors and employees of the Baybay Water District were being paid additional compensation to the per diems authorized by the LWUA, RATA and other transportation allowances. These were disallowed by the Resident Auditor and affirmed by the COA. They argue that P. D. No. 198, §13 which expressly prohibit additional compensation to the directors was expressly repealed by the Salary Standardization Law. HELD: Said provision expressly provides that directors are only entitled to per diems granted by the Board and expressly prohibits any additional compensation. The Salary Standardization Law did not repeal said provision as the said law applies only to certain classes of positions (professional supervisory, professional nonsupervisory, sub-professional supervisory and subprofessional non-supervisory) which do not include directors of water directors. The latter are in fact limited to policy-making and are prohibited from the management of the districts. Rodrigo v. Sandiganbayan (1999) SUMMARY: Mayor Rodrigo, Mejica, and Treasurer Facundo are being charged for estafa with the Ombudsman. This arose from an Accomplishment Report, approved by Rodrigo, in relation to an electrification project for the Municipality of San Nicolas. Supposedly, the project was 97.5% finished, and the corresponding payment was effected. However, the Provincial Auditor found, as per a COA Evaluation, that only 60% was finished and so he issued a Notice of Disallowance of funds, after which the estafa complaint was filed, and the corresponding information issued. Petitioners challenged the Sandiganbayan’s jurisdiction, arguing that since he was receiving a monthly salary of P10k, this was equivalent to a fourth step increment in Grade 24 under the Salary Schedule. DOCTRINE: An official’s salary is determined by the Grade accorded to his position (not the other way around), and ultimately by the nature of his position. This meant looking into the difficulty and responsibilities and level of qualification requirements of the work connected with the position. This is in consonance with the policy of RA6758, which bases differences in pay upon substantive differences in duties and responsibilities, and likewise with the Constitutional policy of taking into account the nature of the responsibilities pertaining to the position. Tejada v. Domingo (1992) SUMMARY: A memorandum was issued by Domingo, the Chairman of the COA, interpreting and implementing §18 of RA 6758, reducing the salaries of petitioners Tejada and Ching (removed the additional emoluments). The SC ruled that such interpretation is in accordance with the constitutional mandate of the COA, D2016 | Public Officers | Prof. G. Dizon-Reyes
DOCTRINE: Legislative and executive pronouncements unerringly reveal a two-pronged strategy to preserve and enhance the independence and integrity of the COA and make its personnel loyal to none other except that institution and beholden to nobody but the people whose coffers they must guard with dedication and responsibility Santos v. CA (2000) SUMMARY: Petitioner was a MeTC Judge from 19831992. Upon optional retirement, he received retirement gratuity pursuant to RA 910 for years in the government service; and five years thereafter he regularly receiving a monthly pension. In 1993, he reentered the government service as part of the MMA. Petitioner opted for voluntary separation from service upon the reorganization of the MMA into the MMDA, pursuant to RA 7924. He asserts that in the computation of his separation benefits under RA 7924, the years of his government service credited should include those years in the Judiciary. The CSC found no merit in his contention and held that petitioner’s options were only either (1) to refund the gratuity he received under RA 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government with the MeTC plus his years in service as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service. CA affirmed. HELD: No, years in judiciary not included. To credit his years of service in the Judiciary in the computation of his separation pay under RA 7924 notwithstanding the fact that he had received or had been receiving the retirement benefits under RA 910 would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. DOCTRINE: Section 8 of Article IX-B of the Constitution proscribes additional, double, or indirect compensation. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law.
2. Security of Tenure Constitution, Art. IX-B, Sec.2(3) Section 2. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.
Security of tenure means that no officer or employee in the civil service shall be suspended or dismissed except for cause provided by law and after due process or after he shall have been given the opportunity to defend himself. It is a basic feature of the Civil Service system. In this sense, public office is a property right, because it cannot be taken away without due process. Thus it is also a social justice measure, considering that the public office may be the sole means of livelihood of the officer. Security of tenure also means that a public officer is entitled to remain in office until retirement or expiration of his term. “For cause” means reasons which the law and sound public policy recognize as sufficient grounds for suspension or removal. It means legal cause and not mere causes deemed sufficient in the exercise of the appointing power’s discretion. Security of tenure has a substantive (“for cause”) and a procedural aspect (due process). Sec. 46(b) of the Civil Service Law lays down 30 causes for disciplinary action. An employee may be dismissed without proceedings, as long he is notified and is directed to show cause for his non-dismissal. If the disciplining authority does not find the explanation satisfactory, the dismissal is valid but the employee may challenge it before the proper forum. Security of tenure only applies to permanent appointees. Security of tenure attaches upon the completion of the appointment and the assumption of the position by the appointee (see discussion on Appointment). Security of tenure covers both the career and non-career services. However, Cabinet secretaries, confidential employees, and coterminous employees do not have security of tenure. Confidential employees: Although they may be removed for loss of confidence, this must be based on facts from which loss of confidence can be implied or deduced. Temporary employees cannot be arbitrarily dismissed (although they do not have security of tenure). [CAA v. IAC, 1992] GR: An officer or employee with a permanent appointment who accepts a temporary appointment to another position without reservation or upon his own volition is effectively divested of security of tenure. D2016 | Public Officers | Prof. G. Dizon-Reyes
Acceptance of a temporary appointment means that the officer or employee has abandoned his former position, and being temporary in character, the same is terminable at the pleasure of the appointing authority, with or without cause (Pabu-aya v. CA). o A permanent appointee who accepts a temporary, fixed-term appointment to a another position loses his right to security of tenure in the former position (Romualdez III v. CSC). Lacson v. Romero (1949)* SUMMARY: Negros Oriental Provincial Fiscal Lacson was appointed to the Tarlac post. He refused to assume the position. His replacement, Romero, assumed the Negros Oriental fiscalship. When Romero entered appearance in a case as Fiscal, Lacson opposed. Lacson filed quo warranto. DOCTRINE: There is no power in this country which can compel a man to accept an office .Since Lacson refused the Tarlac post, he remains Negros Oriental Fiscal. The two positions are physically incompatible and an appointment to one amounts to removal from the other. But for a removal to be valid there must first be an investigation at which he must be given a fair hearing and an opportunity to defend himself. No officer or employee in the civil service shall be removed or suspended except for cause as provided by law. Provincial Fiscal as a civil service official may not be removed from office even by the President who appointed him, and even with the consent of the Commission on Appointments, except for cause. Lacson v. Roque (1953)* SUMMARY: Manila Mayor Arsenio Lacson made a radio rant against a Judge who acquitted a Police Chief whom Lacson had sued. The judge, who was called an ignoramus, filed a libel suit against Lacson. President Quirino imposed preventive suspension on Lacson, pursuant to a Presidential policy on suspension for officials under criminal prosecution. SC held that the suspension was illegal. DOCTRINE: Where the cause for removal is specified, the specification amounts to a prohibition to remove for a different cause. The President’s untrammeled discretionary power to remove does not apply to appointed officers whose term of office is definite, much less elective officers. The cause for suspension must relate to and affect the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interest of the public. Suspension is a qualified expulsion, and whether termed suspension or expulsion, it constitutes either temporary 43
or permanent disfranchisement. It is an ad interim stoppage or arrest of an official power and pay. When the "suspension is to continue until the final disposition" of a criminal prosecution, like Lacson's suspension, it might become a virtual removal. Tabora v. Montelibano (1956)* SUMMARY: Tabora was a warehouseman in NARIC. He was suspended pending an investigation over sacks lost in the warehouse where he was in charge. The investigating committee recommended his dismissal; and he was charged with qualified theft and malversation. Although he was acquitted, he was not allowed to return to work, so he appealed for reinstatement. Upon denial of his appeal, he went to court, but the trial court dismissed on the ground that the NARIC Charter exempted NARIC employees from the Civil Service rules because NARIC was empowered to promulgate its own employee policies. SC reversed, holding that NARIC is a government corporation performing governmental functions. Thus it is covered by the Civil Service rules. The grant of power to formulate employee policies does not empower NARIC to arbitrarily dismiss its employees. Tabora’s removal was not for cause as he was acquitted and he was not afforded procedural due process in the administrative investigation which led to the filing of charges against him. He should be reinstated. DOCTRINE: A grant of power to a government corporation to formulate employee policies does not include the power to remove employees without cause. The security that GOCC employees would hold their office or employment during good behavior and would not be dismissed without justifiable cause to be determined in an investigation, where an opportunity to be heard and defend themselves in person or by counsel is afforded them, is intended to foster honesty and efficiency in GOCCs. To do away with it would lead to inefficiency and most likely to dishonesty on the part of the officers and employees and abuse on the part of the board of directors. Termination must be made with notice to the officer concerned.
3. System of Incentives and Rewards; Right to compensation RA 6713, Sec. 6 SECTION 6. System of Incentives and Rewards. — A system of annual incentives and rewards is hereby established in order to motivate and inspire public servants to uphold the highest standards of ethics. For this purpose, a Committee on Awards to Outstanding Public Officials and Employees is hereby created composed of the following: the Ombudsman and Chairman of the Civil Service Commission as CoD2016 | Public Officers | Prof. G. Dizon-Reyes
Chairmen, and the Chairman of the Commission on Audit, and two government employees to be appointed by the President, as members. It shall be the task of this Committee to conduct a periodic, continuing review of the performance of public officials and employees, in all the branches and agencies of Government and establish a system of annual incentives and rewards to the end that due recognition is given to public officials and employees of outstanding merit on the basis of the standards set forth in this Act. The conferment of awards shall take into account, among other things, the following: the years of service and the quality and consistency of performance, the obscurity of the position, the level of salary, the unique and exemplary quality of a certain achievement, and the risks or temptations inherent in the work. Incentives and rewards to government officials and employees of the year to be announced in public ceremonies honoring them may take the form of bonuses, citations, directorships in government-owned or controlled corporations, local and foreign scholarship grants, paid vacations and the like. They shall likewise be automatically promoted to the next higher position with the commensurate salary suitable to their qualifications. In case there is no next higher position or it is not vacant, said position shall be included in the budget of the office in the next General Appropriations Act. The Committee on Awards shall adopt its own rules to govern the conduct of its activities. Right to compensation (see RA 6758 and COA Auditing Rules, supra) Compensation is not an element of public office. A public office may be accepted without compensation (LOL). Right to compensation is not the creation of a contract but is an incident to the office, to which the law attaches the compensation. Amount of compensation is fixed by law. Basic requirements for payment of salary under COA Auditing Rules 1. Existence of legally created position with fixed compensation or emolument attached to the position 2. Issuance of valid appointment 3. Rendition of service being paid 4. Payment to the right person Compensation includes salary, per diem, and honorarium. o Salary – Compensation given as base pay of the position or rank as fixed by law or regulation, excluding all bonuses, 44
per diems, allowances, and overtime pay. o Per diem – Daily allowance for extra expenses incurred by the officer in the performance of his duties, given when the officer is away from their permanent station. o Honorarium – something given in appreciation for service rendered, a voluntary donation. Non-garnishment of salary o Salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid to him, and appropriated for the payment of his debts. o Money intended for payment of government employees’ salaries remains government property until the sums are physically delivered to the employees. State money cannot be garnished. Agreements affecting compensation o An agreement by a public officer respecting his unearned or unaccrued compensation may 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. Thus the prevalent practice among public employees of using their salary ATM cards as loan collateral may be illegal. o Agreement to take lesser compensation, pay part of salary back to the public treasury, or to donate part of it to a 3rd person is illegal. o Sale or assignment of unearned salaries and emoluments is also void for being against public policy. o An agreement to divide compensation with a person who assists the officer in obtaining the appointment is invalid, if made with respect to the unearned salaries. Constitutional regulation of compensation o Congress is prohibited from decreasing the salary of the President, VicePresident, SC Justices, judges, Constitutional Commissioners,
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Ombudsman and her deputies during their term. o Congress may increase their own salaries but the increase will not take effect until expiration of the full term of the members who approved such increase. Double compensation o Constitution, Art. IX-B, Sec. 8 Section 8. 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 the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. o Vice-President, Cabinet secretaries, and their deputies are prohibited from receiving additional compensation from ex-officio positions they may hold (see CLU v. Executive Secretary and companion cases). o Other officials and employees who are duly appointed to another position in a concurrent capacity may be allowed to receive additional compensation in the form of allowances or honoraria, in the discretion of the President. o See Santos v. CA on double compensation WRT pensions. o Agpalo, citing Bernas: A retiree receiving a government pension can still receive such pension if he accepts another government position to which compensation is attached.
4. Rights under Civil Service Law and rules under Administrative Code of 1987 1) Right to lodge complaints and grievances – Sec. 37 Section 37. Complaints and Grievances. – 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. Such complaint or grievances shall be resolved at the lowest possible level in the department or agency, as the case may be, and the employee shall have the right to appeal such decision to higher authorities. Each department or agency shall promulgate rules and regulations governing expeditious, fair and equitable adjustment of employees' complaints or grievances in accordance with the policies enunciated by the Commission. In case any dispute remains unresolved after exhausting 45
all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the Public Sector Labor Management Council constituted under section 46, for appropriate action. a) Public Sector Labor-Management Council – Sec. 45 2) Right to self-organization – Secs. 38-45 (see discussion infra) a) Coverage i) General Rule – Sec. 38(1) ii) Exceptions - Sec. 38(2) (1) Members of the Armed Forces of the Philippines (2) Police officers and policemen (3) Firefighters and jail guards iii) Limitation on Right for High-Level Employees – Sec. 39 b) Protection of the Right – Sec. 40 i) Non-discrimination on basis of membership – Sec. 40(1) ii) Prohibition on yellow-dog provisions – Sec. 40(1) c) Regulation of Employee Organizations – Sec. 41 i) Prohibition on government control – Sec. 40(2) ii) Registration – Sec. 41 iii) Certificate – Sec. 42 iv) Appropriate Organizational Unit – Sec. 43 v) Recognition of Sole and Exclusive Representative (1) Majority rule – Sec. 44(1) (2) Voluntary recognition – Sec. 44(2) (3) Certification election - Sec. 44(3) 3) Right to leave of absence - Sec. 60 Section 60. Leave of Absence. - Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service. 4) Compensation a) Standardization of compensation – Sec. 4 b) Salary increase or adjustment – Sec. 28 c) Additional or double compensation – Sec. 56 Section 56. Additional or Double Compensation. – No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind from any foreign state. Pensions and gratuities shall not be considered as additional, double, or indirect compensation.
5. Personnel Actions D2016 | Public Officers | Prof. G. Dizon-Reyes
Personnel action denotes movement or progress of personnel in the civil service Must be done in accordance with such rules, standards, and regulations as may be promulgated by the CSC a. Promotion Civil Service Law, Sec. 26(2) (2) Promotion. A promotion is a movement from one position to another with an increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. The movement may be from one department or agency to another, or from one organizational unit to another in the same department or agency. Civil Service Law, Sec. 32 Section 32. Merit Promotion Plans. Each department or agency shall establish promotion plans which shall be administered in accordance with the provisions of the Civil Service law and the rules, regulations and standards to be promulgated by the Commission. Such plans shall include provisions for a definite screening process, which may include tests of fitness, in accordance with standards and guidelines set by the Commission. Promotion Boards may be organized subject to criteria drawn by the Commission. “Usually accompanied by increase in pay” means that pay hike is not a necessary element of promotion. Pay increase is never determinative of whether or not a promotion has been bestowed on an employee. Conversely, the pay of employees may be increased without promoting them. Promotion is in the nature of a gift, which may be validly refused and acceptance of which may not be compelled. Factors that may be considered in promotion (2007 Omnibus Rules, Rule VI, Sec. 5) o Performance rating o Education and training relevant to the vacant position o Work experience and outstanding accomplishments o Physical fitness o Attitudes and personality traits which have a bearing on the vacant position o Potential and capability to perform the duties of the vacant position and higher positions Next-in-Rank Rule Rule VI, Secs. 3 and 4, 2007 Omnibus Rules Implementing EO 292, Book V. Sec. 3. A next-in-rank position refers to a position, 46
which, by reason, of the hierarchical arrangements of positions in the department or agency or in the government, is determined to be in nearest degree of relationship to a higher position as contained in the agency’s System of Ranking Positions. Sec. 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and meets the other conditions for promotion may be promoted to the higher position when it becomes vacant. However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for the position. This rule applies only to promotion. It presupposes that long-serving employees have gained not only superior skills but also greater dedication to the public service (LOL). The rules merely provide for a preference. The appointing authority can appoint someone else. Mandatory application of the next-in-rank rule defeats the discretion of the appointing authority. The reasons for disregarding the rule must be made known to the next-in-rank. The overriding consideration is the fostering of a more efficient public service. Automatic Reversion Rule Sec. 13, 2007 Omnibus Rules Implementing EO 292, Book V Rule VI, Sec. 13. 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 lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments. see Divinagracia v. Sto. Tomas Panis v. CSC (1994) SUMMARY: Panis questions the appointment of Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center. The Court held that: 1) the position was validly created; 2) there was a valid screening process; and 3) the “next-inrank” principle alleged by petitioner to have been disregarded only applied in cases of promotion. In this case, there was a creation of a new position. DOCTRINE: The “next in rank” rule specifically applies only in cases of promotion. This case involves a new office and a position created in the course of a valid D2016 | Public Officers | Prof. G. Dizon-Reyes
reorganization. Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. Divinagracia v. Sto. Tomas (1995) SUMMARY: Mancita was the Municipal Planning and Dev’t Coordinator of the Mun. of Pili for 5 years when the Mayor of Pili terminated her services allegedly pursuant to a regoranization and subsequently appointed Nacario, who was then holding the position of a Municipal Budget Officer, to the same position. Nacario was replaced in her previous position as MBO by several persons until the appointment of San Luis to the same. When Mancita appealed her case to the Merit Systems and Protection Board, the latter ruled in her favour and further ordered her reinstatement to the position of MPDC then occupied by Nacario. When Nacario asked the CSC on the status of her employment pursuant to the MPSB decision, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination, and that since Nacario was the former Municipal Budget Officer she had the right to return to that position pursuant to Sec. 13, Rule VI of the Rules Implementing EO 292 which mandates the return of an appointee, in a chain of promotions, to his former position once his appointment is subsequently disapproved. HELD: Nacario is entitled to return to her former position as Municipal Budget Office of Pili, despite the present occupation of San Luis of said position, after the RTC directed the reinstatement of Mancita to the position of MPDC. Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On the other hand, Prescilla B. Nacario who is protected by law in her security of tenure should be reinstated thereto. Before a public official or employee can be automatically restored to her former position, there must be: 1) a series of promotions 2) all appointments are simultaneously submitted to the CSC for approval; and 3) the CSC disapproves the appointment of a person proposed to a higher position. Santiago, Jr. v. CSC (1989) SUMMARY: Customs Collector I Santiago was promoted to Customs Collector III, passing over Customs Collector II Jose, who protested to the MSPB. BOC Commissioner defended his choice. MSPB and CSC reversed him and ordered Jose’s promotion because he is the next-in-rank and had better educational qualifications than Santiago. SC reversed the CSC and upheld the discretion and prerogative of 47
appointing authorities over the next-in-rank rule. The next-in-rank rule only provides for preference in consideration, not preference in appointment; so the appointing authority is still legally allowed to appoint persons other than the official next-in-rank. Here the appointing authority was justified in exercising his discretion and had meritorious reasons to appoint the “more assiduous” Santiago who won accolades for his successful anti-smuggling pursuits over the apparently “more educated” Jose who could not be bothered to assume a post in Bicol. CSC has no authority to reject an appointment on the ground that someone else is better qualified for a position since that would amount to encroachment on the appointing authority’s discretion. DOCTRINE: The next-in-rank rule does not create a mandatory preference. What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. Abila v. CSC (1991) SUMMARY: Eleria, Administrative Officer III, protested Abila’s appointment to Administrative Officer IV. The Merit System Protection Board, after initially dismissing the protest, later on appeal resolved to revoke Abila’s appointment and directed instead the OIC or Mayor to appoint Eleria on the ground that Eleria held a position next in rank to that of the vacancy, thus gave her promotional priority. The CSC affirmed the Board’s decision. SC ruled for Abila, stating that the Next-inRank rule relied on does not mean that a right is vested on the next in rank. First, it only applied in cases where a vacancy is filled by promotion, which did not happen in the case at bar. Also, that the rule is not absolute, meaning that even if there be a promotion that occurs, what the rule states is that the next in rank would be one of the first to be considered, thus giving the appointing authority wide discretion is selecting the appointee. DOCTRINE: The next-in-rank rule invoked by the CSC applies only where a vacancy is filled by promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law. One who is next-in-rank is entitled to preferential consideration for promotion to D2016 | Public Officers | Prof. G. Dizon-Reyes
the higher vacancy but it does not necessarily follow that he and no one else can be appointed. Medenilla v. CSC (1991) SUMMARY: Medenilla was first a contractual employee of the DPWH (Public Relations Officer II) who was eventually detailed as Technical Assistant, then she was appointed as Supervising Human Resource Development Officer. Dellosa et al contested her appointment, stating that it should be one of them, since they were next-in-rank. CSC held that Medenilla did not possess the qualifications for the position, but the SC ruled otherwise, and ruled that the next-in rank rule no longer applies, considering her experience as well as other training she underwent (see held). DOCTRINE: Preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. This is not always true and the law, moreover, does not preclude the infusion of new blood, younger dynamism, or necessary talents into the government service Next-in-rank rule must give way to the exigencies of the public service. Lustero v. IAC (1991) SUMMARY: Palomar was permanently appointed Supply Officer III, subject to the final outcome of the protest filed by Lusterio. Such protest questioned Palomar’s qualification to the position since he allegedly lacked the required experience. Palomar’s appointment was rescinded by the CSC which found him unqualified. Lusterio was found qualified and thus assumed the position. The RTC reversed the CSC finding and held that Palomar was qualified. The IAC affirmed. HELD: As correctly found by the trial court and the respondent IAC, Palomar meets all the requirements for the position of Supply Officer III. Thus, even if petitioner is also qualified, the appointing authority had the discretion to determine who of those qualified should be appointed to the contested position. The Merit Systems Board, the Civil Service Commission and the Office of the President committed an error, amounting to grave abuse of discretion, when they rescinded the appointment of the private respondent and directed the appointing authority to appoint the petitioner. Even if assuming the petitioner then occupied a next-in-rank position, that fact alone did not make it mandatory for the appointing power to appoint him to the contested position. The Civil Service Decree merely provides that when a vacancy occurs in a position in the second level of the Career Service, the employee in the government service who occupies the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are 48
competent, qualified and with the appropriate civil service eligibility, "shall be considered for promotion". It does not say "shall be promoted". DOCTRINE: the rule is that if both persons competing for a position are qualified for the position then neither the Merit Systems Board, the Civil Service Commission, or the Office of the President, nor the courts below or this Court, can substitute the judgment of the appointing authority in appointing private respondent to said position. b. Transfer Civil Service Law, Sec. 26(3) (3) Transfer. 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 therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. 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. Rule VII, Sec. 5, 2007 Omnibus Rules Implementing Book V of EO 292 Sec. 5. 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. 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. Transfer 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 therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. Heads of oversight agencies and their staff are prohibited from transferring or being appointed to any position in the department/agency/office/local government unit which his unit is assigned or designated to oversee within one year after the termination of such assignment/designation. The prohibition contemplates only transfer of officials of those offices/units who are in a position to exert D2016 | Public Officers | Prof. G. Dizon-Reyes
pressure or influence on the new or accepting agency but not to cover those occupying clerical and skilled positions such as clerks and drivers. An employee who seeks appointment by transfer or promotion to another office shall first secure permission from the head of the department or agency where he is employed. The permission to seek transfer to another office shall be valid for 30 days from the date it was granted but it may be renewed for another 30 days upon the request of the employee. A head of a department or agency shall not propose or make an appointment for the transfer or promotion of an employee to his department or agency until the written consent of the head of the department or agency where the employee is employed is obtained. Transfer may be imposed as an administrative remedy/penalty. GR: Unconsented transfers are tantamount to illegal removals, being violations of security of tenure. EXCEPTIONS o Temporary appointees o CES personnel appointed to specific ranks (not positions) o Periodical reassignment of officers by the agency head to improve service (provided that the officers may be legally transferred) o Transfer pending investigation This rule presupposes that the officer is appointed to particular station. An officer merely assigned to a station can be transferred or reassigned to any station without violating security of tenure. o Where the appointment does not indicate a specific station, the appointee may be transferred or assigned provided the transfer does not affect a substantial change in title, rank, or salary (e.g., Revenue Officers under the BIR and Election Officers under RA 8189). A transfer which results in a demotion, promotion, advancement, or reduction; or a transfer which is aimed at luring the employee away from his permanent position, must be done with the employee’s consent Temporary transfer is permissible even without employee’s consent. People v. Reyes (1995) SUMMARY: Maniego transferred Ebio to a position that was effected on January 14, 1992. Ebio filed with the COMELEC a complaint regarding the transfer as it 49
violated BP 881, which prohibits the transfer of any employee in the civil service 120 days before the May 11, 1992 synchronized national and local elections. The Court, however, agreed with the RTC that no offense was committed since the Resolution enforcing the penal provision only took effect on January 15, 1992. Vinzons-Chato v. Natividad (1995) SUMMARY: Pursuant to E.O. 132 which approved the streamlining of the BIR, Commissioner of Internal Revenue Vinzons-Chato transferred Salvador Blas, a Revenue District Officer, from his post in San Fernando, Pampanga under District 21 to Tuguegarao, Cagayan under District 14. In turn, a Solon Alcantara was ordered to report to Blas’ former post. Blas contested said transfer arguing that it was made without his consent and would cause his dislocation and demotion or a diminution in rank, status, and span of duties and responsibilities since the revenue district in Tuguegarao has a smaller pool of personnel and only ¼ of the revenue capacity of Pampanga. HELD: Transfer was valid. His transfer was part of a nationwide reshuffle or reassignment of revenue district officers designed to improve revenue collection and was made in the exigencies of the service. Similar to the case in DECS v. CA, such policy may have been based on the experience that when officials have stayed long enough in one station, there is a tendency for them to become stale and unchallenged by new situations and conditions, and that some administrative problems accumulate for a good number of years. Moreover, his transfer to the Tuguegarao revenue district did not entail any diminution in rank, salary, status and responsibilities. That the Tuguegarao revenue district is smaller than that in San Fernando, Pampanga has no basis because the classification of RDOs into Class A-1, A, B, C and D has been abolished and all RDOs are now considered to be of the same class. Vinzons-Chato v. Zenorosa (2000) SUMMARY: Rigodon in the BIR. Martinez was Assistant RDO in BIR’s Paco-Pandacan district office. The retiring RDO recommended her as replacement, but BIR Commissioner LVC appointed someone else. Martinez protested. The DOF Grievance Board ordered the BIR to comply with its own Merit Promotion Plan. Instead of complying, LVC issued an order reassigning 14 officials to various posts. In the said order, Martinez was recalled to the BIR Head Office and she was replaced by Marcelo. Martinez filed suit to stop implementation of the reassignment order, claiming that LVC issued it in bad faith/vindictiveness after she protested her nonpromotion. Trial court granted TRO, and later a WPI, but SC reversed, holding that BIR Commissioner LVC was authorized to reassign BIR personnel as exigencies of D2016 | Public Officers | Prof. G. Dizon-Reyes
the service may require from time to time, to prevent revenue officers from developing patronage networks. Such reassignments do not diminish salary or rank. There was no demotion even if the new assignment was not compatible with Martinez’ expertise since public office is a public trust, and a contrary stance would subordinate government projects to the individual preferences and opinions of civil service employees. DOCTRINE: The BIR Commissioner is authorized to assign or reassign internal revenue officers and BIR employees as the exigencies of service may require, without demotion in rank and salary in accordance with Civil Service Rules and Regulation. Such reassignment of revenue officers entails the prevention of familiarity and patronage between BIR officers and taxpayers of a particular area. To sustain a contention that a transfer constitutes a demotion simply because the new assignment is not to a public officer’s liking would be to subordinate government projects, along with the great resources and efforts they entail, to the individual preferences and opinions of civil service employees. Such contention would negate the principle that a public office is a public trust and that it is not the private preserve of any person. Cuevas v. Bacal, supra SUMMARY: Bacal holds the position of CESO rank III. She was Regional Director of the PAO before she was designated Acting Chief Public Attorney by President Ramos. However, a certain Carina Demaisip was appointed chief public defender by President Estrada. The position of Chief Public Defender was formerly called Chief Public Attorney and which position Bacal was currently holding. She filed a quo warranto with the CA questioning her replacement. The CA ruled that her removal was without cause and in violation of her right to tenure. HELD: Respondent’s security of tenure was not violated. The position of Chief Public Attorney of the PAO requires a CES Rank Level I while Respondent was just CESO III at the time. As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. DOCTRINE: A permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right depends on the nature of his appointment, which in turn depends on his eligibility or lack of it. Also, security of tenure in the career executive service is 50
acquired with respect to rank and not to position. c. Detail Civil Service Law, Sec. 26(6) (6) Detail. A 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. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. Civil Service Law, Sec. 58 Section 58. Prohibition on Detail or Reassignment. No detail or reassignment whatever shall be made within three (3) months before any election. Rule VII, Sec. 8, 2007 Omnibus Rules Implementing Book V of EO 292 Sec. 8. A detail is the movement of an employee from one department or agency to another which is temporary in nature, which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. The employee detailed receives his salary only from his mother unit/agency. Detail shall only be allowed for a maximum period in case of employees occupying professional, technical, and scientific position. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [see also CSC-MC 21, s. 2002] In case of doubt, an order of detail is presumed to be made in good faith. A detail made as a preliminary step to removal, as a lure away from a permanent position, as a means for indirect termination or forced resignation, is illegal. Republic v. CA (1990) SUMMARY: Lopez protested Corpuz’s appointment as CYRC Director because he had a better right to the position. This was resolved in favor of Corpuz. After, Lopez began filing numerous cases against Corpuz and the CYRC staff, most of which were dismissed. DECS Minister Laya then “temporarily detailed” Lopez to the MECS Legal Office “in the exigencies of the service.” 6 months later, Lopez returned to the CYRC as Asst Director withouth prior authorization. This caused Corpuz to issue a Memo advising that Lopez would not D2016 | Public Officers | Prof. G. Dizon-Reyes
be considered an active member of the Staff. Corpuz requested Lopez to submit an official order terminating his “detail,” which Lopez failed to do. DOCTRINE: Lopez brought it upon himself to not be recognized as part of the CYRC staff due to his noncompliance with the Director’s orders. More importantly, while the lower courts were correct in saying that the DECS Minister’s directive was “defective” in that the term detail was used instead of re-assignment, the official intent of such directive was clear: to move Lopez away from the CYRC and locate him in the head office. A "detail" is the movement from one Department or Agency to another which is temporary in nature (Section 4, Rule VI, Civil Service Rules on Personal Actions and Policies) whereas a "re-assignment" is the movement of an employee from one organizational unit to another in the same Department or Agency (Section 5) d. Reassignment Civil Service Law, Sec. 26(7) (7) 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. Civil Service Law, Sec. 58 Section 58. Prohibition on Detail or Reassignment. No detail or reassignment whatever shall be made within three (3) months before any election. Rule VII, Sec. 10, Omnibus Rules Implementing Book V of EO 292 Sec. 10. A reassignment is the movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status, or salary, and does not require the issuance of an appointment. [see also CSC Resolution 04-1458, Dec. 23, 2004 ] Reassignment is a valid management prerogative, but if it results in reduction of rank, status, or salary, it in effect a constructive dismissal, e.g. floating assignments. Fernandez v. Sto. Tomas, supra SUMMARY: Fernandez was Director of the Office of Personnel Inspection and Audit (OPIA) and Lima was Director of the Office of Personnel Relations (OPR) in the CSC. A Resolution was signed by Chairman Sto. Tomas and Commissioner Ereneta merging OPIA and OPR to create the Research and Development Office (RDO). The SC ruled that such Reso is valid as the Revised Admin Code recognizes reassignment as a management prerogative vested in any agency or
department in the civil service, thus there was no violation of security of tenure. DOCTRINE: Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service Teotico v. Agda (1991) SUMMARY: Agda was appointed Chief Fiber Development Officer (Range 73) of the Fiber Development Authority (FIDA) effective upon assumption of office. This appointment did not indicate any specific station or place of assignment. He was subsequently designated Agda as "Acting Regional Administrator for FIDA Regions I and II, then he was "temporarily re-assigned" "in the interest of the service," at the main office of the Administrator to perform special functions. Agda questions the temporary reassignment. After a lot of motions filed, Agda filed a petition via Rule 65 and for a preliminary injunction with the RTC. The RTC granted his petition and furthermore, ordered the CSC to reinstate Agda to his position as Fiber Regional Administrator, FIDA, Region I. HELD: The RTC committed GAD in ordering the reinstatement of Agda. Agda was not appointed as Fiber Regional Administrator, FIDA Region I, but as CHIEF FIBER DEVELOPMENT OFFICER; he was not appointed to any specific station. He was merely designated as Acting Regional Administrator For FIDA Regions I and II. Not having been appointed to any specific station, he could be transferred or assigned to any other place by the head of office where in the opinion of the latter his services may be utilized more effectively. DOCTRINE: Where an employee is not appointed to any specific station, he could be transferred or assigned to any other place by the head of office where in the opinion of the latter his services may be utilized more effectively Cariño v. Daoas (2002) SUMMARY: Cariño was ordered reassigned to a position in Region II. She sought the opinion of the CSC Regional Director regarding the legality of her reassignment. The CSC RD ruled in her favor. Respondents appealed this to the CSC. On the basis of such opinion, she continued to report for work in Region I. She was, however, sent a memo that she was dropped from the rolls and considered AWOL. The CA dismissed Cariño’s appeal. The SC ruled that she was justified in not reporting to her reassigned post in Region II on the basis of the legal opinion rendered by the CSC RD, which should be accorded presumption of regularity. Pastor v. Pasig City (2002)
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SUMMARY: Pastor is the appointed Budget Officer of the Mun. of Pasig. In 1992, she was reassigned by Mayor Eusebio to the Office of the Mun. Administrator pending investigation of reports against her concerning her issuance of Advice of Allotments without sufficient cash collection. After 3 years with no case filed against her, Pastor asked for her reinstatement from the CSC. Mayor Eusebio contested this arguing that her reassignment was for exigencies of service and did not involve any diminution of salary or rank as department head. CSC ruled in Pastor’s favour and ordered her reinstatement as Budget Officer or assignment to an office where she can perform as head of a department. Instead of being reinstated, Pastor was reassigned to another unit of the now city government as head of the Pasig City Hall Annex in Karangalan. She contested this arguing that said position was inexistent and that she was not actually a head of a department as she had nothing to oversee. CSC again ruled in her favour but CA reversed. HELD: Pastor must be reinstated as Budget Officer of Pasig. Pastor’s reassignment to different offices in the local government of Pasig City is indefinite. She has been on virtual floating assignments which amount to a diminution of her rank, hence impermissible under the law. DOCTRINE: A reassignment that is indefinite and results in a reduction in rank, status, and salary is in effect a constructive removal from the service. e. Reinstatement Civil Service Law, Sec. 26(4) (4) Reinstatement. Any person who has been permanently appointed to a position in the career service and who has, through no delinquence or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. Rule VII, Sec.6, Omnibus Rules Implementing Book V of EO 292 Sec. 6. Reinstatement is the reappointment of a person who has been previously appointed to a career service and who has, through no delinquency or misconduct, been separated therefrom or the restoration of one who has been exonerated of the administrative charges filed against him. Reinstatement: restoration to a state or condition from which one has been removed or separated. It is within the CSC’s power to order the reinstatement of government employees who have been unlawfully dismissed. However, the issuance of a new appointment is discretionary on the appointing power; thus, it cannot be compelled by mandamus. 52
An employee who claims that he has been illegally removed must prosecute his claim to the office within the prescribed period, otherwise, he is deemed to have waived his right. When a government employee has been illegally dismissed and his reinstatement is later ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges to accrue to him by virtue of the office he held. A reinstated employee is entitled to back salaries as a separate relief, when the suspension of the employee is held to be unlawful or the suspended employee is later found to be innocent. The award is limited to 5 years’ worth of unpaid salaries. o An employee who was not completely exonerated, i.e., penalty was reduced, is not entitled to back salaries. An officer claiming back his office is not entitled to salary during the pendency of the case (Angara v. Gorospe). Cristobal v. Melchor (1977) SUMMARY: Cristobal, a private secretary in the Office of the President, was among several Malacañang employees terminated on New Year’s Day 1962. After some of the dismissed employees were re-hired, Exec. Sec. Mutuc assured Cristobal that he would be re-hired too, but he wasn’t. Some of his co-workers sued for reinstatement. SC upheld the reinstatement of these suing co-workers in Ingles v. Mutuc. In 1969, Cristobal, invoking Ingles, asked for his own reinstatement. The Executive Secretary rebuffed him 5 times, so in 1971 Cristobal went to court. The suit was treated as quo warranto as Cristobal’s replacement was later impleaded therein. CFI dismissed the suit for belated filing under ROC 66§16, which mandates that the quo warranto petition be filed within 1 year from the cause of ouster. On appeal, SC reversed. Cristobal’s situation merits a relaxation of the 1-year period, because the record shows that he did not abandon his appeal for reinstatement. He did not file the action within the 1-year period ONLY because he relied upon the continued reassurance of the government officials concerned that he would be reinstated. Moreover, he had the Ingles ruling to support him. SC thus concluded that laches cannot be invoked against Cristobal and the Ingles ruling should be applied to his case. DOCTRINE: The filing of a quo warranto petition outside the 1-year period is excused if the delay is attributable to an act of the government or its responsible officials. Where the cause of action is of such a nature that a suit to enforce it would be brought on behalf, not only of the D2016 | Public Officers | Prof. G. Dizon-Reyes
plaintiff, but of all persons similarly situated, it is not essential that each such person should intervene in the suit brought in order that he be deemed thereafter free from the laches which bars those who sleep on their rights. Sabello v. DECS (1989) SUMMARY: Sabello previously held the rank of Elementary School Principal I. However, he was convicted for a violation of RA3019 for having been involved in an illegal disbursement of government funds, and sentenced to a year’s imprisonment as well as to suffer disqualification to hold public office. Sabello was later granted absolute pardon by the President, and thereafter applied to reinstatement to government service. Although he was reinstated, it was only to the position of a classroom teacher. Sabello now prays that he reinstated to his former position, and for back salaries. SC granted the petition. Although generally discretion lies with the appointing authority as to re-appointments, the Court ruled that should the petitioner be unduly deprived of what is rightfully his, discretion should now be qualified by giving justice to the petitioner. The SC found no circumstance to justify a diminution in rank, and so as justice and equity dictate, Sabello should be returned to his former position. DOCTRINE: As a general rule, the question of whether or not petitioner should be reappointed to his former position is a matter of discretion of the appointing authority, but under the circumstances of this case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer a matter of discretion on the part of the appointing power, but discretion tempered with fairness and justice. Monsanto v. Factoran (1989) SUMMARY: Monsanto (Asst Treasurer, Calbayog City) was convicted by Sandiganbayan of the complex crime of estafa thru falsification of public documents. Monsanto was eventually extended absolute pardon by then President Marcos, which she accepted. She now contends that she is entitled to reinstatement and backwages. DOCTRINE: The absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the 53
public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Cabagnot v. CSC (1993) SUMMARY: Aklan Provincial Government was reorganized, providing for a new staffing pattern. Aklan Governor Corazon L. Cabagnot issued a Memorandum inviting all provincial employees to apply for positions in the new staffing pattern, subject to the evaluation of the Provincial Placement Committee. 21 aggrieved employees jointly appealed to Governor Cabagnot questioning their new proposed appointments. They prayed that they be appointed to the positions they applied for which they are eligible, trained, and experienced. CSC ordered the reinstatement of appellants to their positions or positions comparable without loss of seniority rights and with back salaries. DOCTRINE: The CSC is not revoking any appointment made by Cabagnot. It is merely ordering the reinstatement of private respondents whom it found to have been demoted or terminated. It correctly found that a glaring disparity exists between the former positions held by private respondents and the positions proposed to them by petitioner. Gloria v. de Guzman, supra SUMMARY: Ramos et al were employees of the Philippine Air Force College of Aeronautics (PAFCA), which later became Philippine State College of Aeronautics (PSCA). The Board of Trustees of PAFCA issued a Reso which required faculty/admin employees to be subject to civil service eligibilities, resulting to them being issued temporary appointments, only to last for a year. Ramos et al contend that the temporary 1 year appointment is not valid. SC ruled that such is valid, given that discretionary power is vested in the Board of Trustees. DOCTRINE: Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. f. Reemployment D2016 | Public Officers | Prof. G. Dizon-Reyes
EO 292, Book V, Sec. 26(5) (5) 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 or reorganization, shall be entered in a list from which selection for reemployment shall be made. Rule VII, Sec. 7, Omnibus Rules Implementing Book V of EO 292 Sec. 7. Reemployment is the reappointment of a person who has been previously appointed to a position in the career service but who has been separated as a result of reduction in force, reorganization and/or voluntary resignation. No elective official shall be eligible for appointment to any office or position during his tenure of office. A person who lost in a election shall not be eligible for appointment or reappointment to any office in the government or government-owned or controlled corporation within one year following such election. A person who resigned from the civil service during the three-month period before any election, whether national or local, to promote the candidacy of another, shall not be eligible for reappointment during the six-month period following such election. Other personnel actions in the Omnibus Rules Implementing Book V of EO 292 Rule VII, Sec. 9, Omnibus Rules Implementing Book V of EO 292 Sec. 9. Secondment is a movement of an employee from one department or agency to another which is temporary in nature and which may or may not require the issuance of an appointment but may either involve reduction or increase in compensation. Secondment shall be governed by the following general guidelines: (a) Secondment for a period exceeding one year shall be subject to approval by the Commission. (b) Secondment to international bodies/organizations recognized by the Philippine government may be allowed. (c) Secondment shall always be covered by a written agreement between the mother agency and the receiving agency and concurred in by the employee seconded. Such agreement shall be submitted to the Commission for record purposes. (d) Payment of salaries of seconded employees shall be borne by the mother agency. In case of higher compensation covered by a duly issued appointment within the Philippine government, the same may be used for purpose of computing his retirement benefits but not for the purpose of commutation of leave credits 54
earned in the mother agency. In case of a lower compensation, the mother agency shall pay the difference. This rule does not apply in cases of secondment to international agencies. (e) The seconded employee shall be on leave without pay in his mother agency for the duration of his secondment, and during such period, he may earn leave credits which are commutable immediately thereafter at and payable by the receiving agency. Class Notes: Secondment across the 3 great branches of government is not allowed. That’s why UP Law faculty (under the Executive) who were appointed to SC had to choose between the SC appointment and their position in UP Law (A high-ranking justice opposed the appointments daw). Rule VII, Sec. 11, Omnibus Rules Implementing Book V of EO 292 Sec. 11. A demotion is 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. Agpalo: Although the law is silent as to its applicability in disciplinary actions other than dismissal, due process requirement also applies to demotions, because it also affects the employment of the officer (citing Leonardo v. NLRC). An assignment or detail to a lower position with a lower compensation is in effect a demotion tantamount to removal when no cause is shown or when it is not a part of any disciplinary action. The fact that the employee would be receiving the same salary as that of the previous position does not mean that there is no demotion (Cabagnot v. CSC). Rule VII, Sec. 12, Omnibus Rules Implementing Book V of EO 292 Sec. 12. Separation is a voluntary or involuntary termination of employment.
6. Right to Self-Organization Const., Art. III, Sec. 8 Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Const., Art. IX-B, Sec. 2(5) Section 2(5). The right to self-organization shall not be D2016 | Public Officers | Prof. G. Dizon-Reyes
denied to government employees. Civil Service Law, Secs. 38-45 Section 38. Coverage. (1) All government employees, including those in government-owned or controlled corporations with original charters, can form, join or assist employees' organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management committees, work councils and other forms of workers' participation schemes to achieve the same objectives. (2) The provisions of this Chapter shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards. Section 39. Ineligibility of High-Level Employees to Join Rank-and-File Employees' Organization. - High-level employees whose functions are 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. Section 40. Protection of the Right to Organize. (1) Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees' organizations or participation in the normal activities of their organizations. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees' organizations. (2) Government authorities shall not interfere in the establishment, functioning or administration of government employees' organizations through acts designed to place such organizations under the control of government authority. Section 41. Registration of Employees' Organization. Government employees' organizations shall register with the Civil Service Commission and the Department of Labor and Employment. The application shall be filed with the Bureau of Labor Relations of the Department which shall process the same in accordance with the provisions of the Labor Code of the Philippines. Applications may also be filed with the Regional Offices of the Department of Labor and Employment which shall immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt thereof. Section 42. Certificate of Registration. - Upon arrival of 55
the application, a registration certificate shall be issued to the organization recognizing it as a legitimate employees' organization with the right to represent its members and undertake activities to further and defend its interests. The corresponding certificates of registration shall be jointly approved by the Chairman of the Civil Service Commission and the Secretary of Labor and Employment. Section 43. Appropriate Organizational Unit. - The appropriate organizational unit shall be the employer's unit consisting of rank-and-file employees unless circumstances otherwise require. Section 44. Sole and Exclusive Employees' Representatives. (1) The duly registered employees' organization having the support of the majority of the employees in the appropriate organizational unit shall be designated as the sole and exclusive representative of the employees. (2) A duly registered employees' organization shall be accorded voluntary recognition upon a showing that no other employees' organization is registered or is seeking registration, based on the records of the Bureau of Labor Relations, and that the said organization has the majority support of the rank-and-file employees in the organizational unit. (3) Where there are two or more duly registered employees' organizations in the appropriate organizational unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a certification election and shall certify the winner as the exclusive representative of the rank-and-file employees in said organizational unit. Section 45. The Public Sector Labor-Management Council. - A Public Sector Labor-Management Council is hereby constituted to be composed of the following: The Chairman of the Civil Service Commission, as Chairman; the Secretary of Labor and Employment, as ViceChairman; and the Secretary of Finance, the Secretary of Justice and the Secretary of Budget and Management, as members. The Council shall implement and administer the provisions of this Chapter. For this purpose, the Council shall promulgate the necessary rules and regulations to implement this Chapter. Under the CSC Guidelines on Prohibited Mass Action, employees under the Civil Service are generally not allowed to strike. Mass action done outside of office hours may be allowed and shall not be deemed prohibited, as
D2016 | Public Officers | Prof. G. Dizon-Reyes
long as such would not result in disruption of work. Prohibited concerted activity refers to any collective activity undertaken by government employees, by themselves or through their employees' organization, with the intent of effecting work stoppage or service disruption in order to realize their demands or force concessions, economic or otherwise; it includes mass leaves, walkouts, pickets and acts of similar nature (GSIS v. Kapisanan). Government agencies shall not approve mass leaves substantially intended to enable employees to join prohibited mass actions. Officials who approve such mass leaves shall also be subject to sanction. Mass leave occurs when 5 or more employees of the same agency apply for leave simultaneously or at the same time under circumstances evidencing collusion or common design to participate in a prohibited mass action. TUPAS v. NHA (1989) SUMMARY: TUPAS’ petition to hold a certification election to determine the exclusive bargaining representative of the workers in NHC was denied, on the ground that the NHC being a GOCC, its workers were prohibited from forming, joining, or assisting any labor organization for purposes of collective bargaining. SC ruled for the conduct of the election. The right to unionize is explicitly recognized and granted to employees both in the governmental and private sectors. Whether the employees are covered by the Labor Code or the Civil Service rules, certification elections may still be held. DOCTRINE: The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. Subsequent statutory developments have rendered academic even the distinction between the two types of government-owned or controlled corporations and the laws governing employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted. SSS v. CA (1989) SUMMARY: Main question of this case is whether or not SSS employees have a right to strike. The SSS Employees’ Association staged a strike. SSS filed for a TRO, which was granted. SC ruled that from the intent of the framers of the Consti, as well as other pertinent laws and jurisprudence, there is NO right to strike. DOCTRINE: Since the terms and conditions of government employment are fixed by law, government 56
workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. Bangalisan v. CA (1997) SUMMARY: 800 public school teachers staged mass action from September 17-19, 1990, protesting against the failure of the public authorities to implement in a just and correct manner certain laws and measures intended for their material benefit. They were placed under preventive suspension. DOCTRINE: While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike. The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. GSIS v. Kapisanan ng mga Manggagawa sa GSIS (2006)* SUMMARY: GSIS employees went on strike. Management initiated investigations against the employees for possible sanction. KMG sought to enjoin the investigation on the ground that their strike was not illegal so they could not be made to answer for their actions. W/N the mass action by GSIS employees is prohibited under the Civil Service rules so as to entitle GSIS to make its employees answerable for participating therein HELD: Under the 1987 Constitution, public sector workers may unionize but they may not strike without special provision of law. As held in Jacinto v. CA and Gesite v. CA, the right of public sector workers to organize is subject to standards for allowable limitations, such as the legitimacy of the purpose of the association, considerations of national security, and prevention of disruptions in the delivery of public services. It was further held in Gesite that public employees going on unauthorized disruptive absences to join mass actions may be held liable for conduct prejudicial to the best interest of the service. The definition of “prohibited concerted activity” covers any collective activity undertaken by government employees, whether or not through employees’ organizations; and includes mass leaves and pickets. It would thus be a trivialization of the Civil Service rules if the employees were to be excused from accounting for their actions in the picket. It was immaterial that the mass action was not undertaken to press for economic demands or additional D2016 | Public Officers | Prof. G. Dizon-Reyes
material benefits. Law and jurisprudence do not distinguish as to the purpose of mass action.
Other rights: Leave of Absence, GSIS Retirement, Absences, Insurance, Employees Compensation
RA 6713 SECTION 6. System of Incentives and Rewards. — A system of annual incentives and rewards is hereby established in order to motivate and inspire public servants to uphold the highest standards of ethics. For this purpose, a Committee on Awards to Outstanding Public Officials and Employees is hereby created composed of the following: the Ombudsman and Chairman of the Civil Service Commission as CoChairmen, and the Chairman of the Commission on Audit, and two government employees to be appointed by the President, as members. It shall be the task of this Committee to conduct a periodic, continuing review of the performance of public officials and employees, in all the branches and agencies of Government and establish a system of annual incentives and rewards to the end that due recognition is given to public officials and employees of outstanding merit on the basis of the standards set forth in this Act. The conferment of awards shall take into account, among other things, the following: the years of service and the quality and consistency of performance, the obscurity of the position, the level of salary, the unique and exemplary quality of a certain achievement, and the risks or temptations inherent in the work. Incentives and rewards to government officials and employees of the year to be announced in public ceremonies honoring them may take the form of bonuses, citations, directorships in government-owned or controlled corporations, local and foreign scholarship grants, paid vacations and the like. They shall likewise be automatically promoted to the next higher position with the commensurate salary suitable to their qualifications. In case there is no next higher position or it is not vacant, said position shall be included in the budget of the office in the next General Appropriations Act. The Committee on Awards shall adopt its own rules to govern the conduct of its activities. a. Retirement Pay and Benefits The grant of benefits to government officials and employees is provided by law. Retirement and benefit laws are scattered in various codes and Republic Acts. Generally, government employees are granted vacation, 57
sickness, maternity, and terminal leaves, termination pay, and retirement benefits. Retirement laws are liberally construed (see Borromeo v. CSC) The basic principle is that, being remedial in character, a statute creating pensions should be liberally construed and administered in favor of the persons intended to be benefited thereby (Ortiz v. COMELEC). One of the basic benefit laws is the GSIS Law. GSIS Law (RA 8291) RA 8291 provides for compulsory coverage. Membership in the GSIS takes effect upon assumption of office Covers all government employees, including elective officials, except uniformed personnel of the AFP and PNP, and employees who do not receive basic pay or salary. Members of the Judiciary and the Constitutional Commissioners are exempted from the mandatory contribution schedule. Benefits o Retirement benefits o Separation benefits o Unemployment/involuntary separation benefits o Disability benefits o Survivorship benefits o Funeral benefit o Life insurance benefit Pensions Pensions are regular allowances paid to an individual or group of individuals by the government in consideration of services rendered, or in recognition of merit, civil or military. Nature of pensions (Ortiz v. COMELEC) o Pension is not a gratuity but rather a form of deferred compensation for services performed and his right thereto commences to vest upon his entry into the retirement system and becomes an enforceable obligation in court upon fulfillment of all conditions under which it is to be paid. o Retirement benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in public employment. o They serve a public purpose and a primary objective in establishing them is to induce able persons to enter and remain in public employment, and to D2016 | Public Officers | Prof. G. Dizon-Reyes
render faithful and efficient service while so employed. o Pensions are in the nature of “retained wages”, given to employees for giving the best years of their lives in the service of the country. In a mandatory-contribution pension plan such as the GSIS, employees have a contractual or vested right in the pension, where the pension is part of the terms of employment. Once the employee retires, he acquires a vested right to the benefits which is protected by the due process clause (GSIS v. Montesclaros) In the face of clear State policy, government has the burden of proving that applicant is not qualified for a pension. Pension v. gratuity o Gratuity is that paid to the beneficiary for past services rendered purely out of generosity of the giver or grantor. It is a mere bounty given by the government in consideration or in recognition of meritorious services and springs from the appreciation and graciousness of the government. (Ortiz v. COMELEC) o Benefits under a scheme such as the GSIS are not gratuities but are contractual obligations of the government. o SL/VL credits are compensation for services rendered, but accumulated leave credits given as terminal leave pay are considered gratuities (Borromeo v. CSC). Borromeo v. CSC (1991) SUMMARY: CSC Chair Borromeo retired in April 1986. He asked COA to include COLA and RATA in determining his terminal leave pay. COA did not object, so CSC asked DBM for the release of Borromeo’s terminal leave differential. DBM refused, arguing that terminal leave does not include allowances such as COLA and RATA. CSC acquiesced in the DBM opinion and told Borromeo to raise the matter with the SC. SC ruled for Borromeo and HELD that RATA and COLA should be included in determining his terminal leave pay. DOCTRINE: While the implementation and enforcement of leave benefits are matters within the functions of the CSC as the central personnel agency of the government, the duty to examine accounts and expenditures relating to leave benefits properly pertains to the COA. Where government expenditures or use of funds is involved, the CSC cannot claim an exclusive domain simply because leave matters are also involved. Retirement laws are 58
liberally construed and administered in favor of the persons intended to be benefited. All doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes. Santos v. CA, supra SUMMARY: Santos was MeTC Judge from 1983-1992. Upon optional retirement, he received retirement gratuity pursuant to RA 910 for years in the government service; and five years thereafter he regularly receiving a monthly pension. In 1993, he reentered the government service as part of the MMA. Petitioner opted for voluntary separation from service upon the reorganization of the MMA into the MMDA, pursuant to RA 7924. He asserts that in the computation of his separation benefits under RA 7924, the years of his government service credited should include those years in the Judiciary. The CSC found no merit in his contention and held that petitioner’s options were only either (1) to refund the gratuity he received under RA 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government with the MeTC plus his years in service as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service. CA affirmed. HELD: No, years in judiciary not included. To credit his years of service in the Judiciary in the computation of his separation pay under RA 7924 notwithstanding the fact that he had received or had been receiving the retirement benefits under RA 910 would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. DOCTRINE: Section 8 of Article IX-B of the Constitution proscribes additional, double, or indirect compensation. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. Lopez v. CA (1992) SUMMARY: Manapat retired after 20 years of service from the City of Manila. He was later reemployed and served until he was 65, which is the compulsory retirement age. He then had a total of 35 years of service. He applied for retirement benefits under RA 1616, for which he will receive a larger amount. The City insists that he must retire under RA 660 instead of RA 1616. He filed for a petition for mandamus, which the RTC denied but granted by the CA. The Court held that the option under which law he will retire belongs to Manapat. D2016 | Public Officers | Prof. G. Dizon-Reyes
Further, a petition for mandamus may lie to compel the City to grant the retirement claim. GSIS v. COA (2004) SUMMARY: COA disallowed certain benefits given by GSIS to its employees. GSIS assailed the disallowances on certiorari. Pending the case, some GSIS employees retired. GSIS thus deducted the amounts of the disallowed benefits from the retirees’ retirement pay. The retirees complained with the GSIS Board, but the case went up to the SC as well. The two cases were consolidated, and SC held that some of the disallowances were proper while others were not. The retirees moved for clarification of the judgment, asking the SC to rule on the issue of whether or not the GSIS was authorized to make the deductions in the first place. SC decided the case as an exception to the doctrine of primary jurisdiction and held that the GSIS was not authorized to make deductions from retirement benefits of its employees unless the deductions are for liabilities in favor of GSIS. DOCTRINE: Retirement pay of public officers may not be withheld and applied to their debts to the government. “[M]onetary liability in favor of GSIS” in RA 8291§39 refers to indebtedness of the member to the GSIS other than those which fall under the categories of pecuniary accountabilities exempted under the law. The general policy of retirement laws and jurisprudence is to exempt benefits from all legal processes or liens, but not from outstanding obligations of the member to the GSIS. This is to ensure maintenance of the GSIS’ fund reserves in order to guarantee fulfillment of all its obligations under RA 8291 The general rule in retirement law is that retirement benefits cannot be withheld and subjected to deductions for liabilities to the government. COA disallowances are not liabilities in favor of the GSIS. A contrary interpretation would mean that the GSIS can simply treat any liability as one in its favor and deduct it despite express provision of law to the contrary. The exempted liabilities contemplated include unpaid premiums and loan balances to the GSIS which are not incurred in connection with the employees’ work. b. Representation by Government Lawyers A public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime. Thus, the Solicitor-General cannot represent a public officer-accused in a criminal case; or in a civil suit for damages arising from such criminal act. (Urbano v. Chavez).
Alinsug v. CA: The key to resolving the issue of whether a local government official may secure the services of private counsel, in an action filed against him in his official capacity, lies in the nature of the action and the relief that is sought. Albuera v. Torres: Provincial governor sued in his official capacity was allowed private representation, where the complaint contained other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity. Mancenido v. CA: If the public officer could result be held personally liable for the damages sought, he can be represented by private counsel. Vital-Gozon v. CA (1992) SUMMARY: Dr. de la Fuente was demoted after the reorganization of the Ministry of Health. CSC declared the demotion void and illegal in a resolution which had already become final and executory. However, when the CSC was asked to execute said judgment, it said it couldn’t because it had no coercive power, thus suggesting dela Fuente file in court a petition for mandamus, which dela Fuente did with the CA, likewise praying for damages. Initially, it granted only the prayer for mandamus but in a subsequent amended resolution, the CA deleted that portion of its initial resolution disallowing said damages. Now, Gozon and the OSG are contesting this amended CA decision, arguing that no modification could be made because it had already become final executory, and in fact had already been executed upon motion of dela Fuente. SC ruled for dela Fuente. It stressed that the juridical situation he found himself in was not of his making, and is a consequence of circumstances not attributable to his fault. The CSC was in error in refusal to execute its resolution, and the CA’s initial decision barring the claim of damages. The Court found that the amended decision of the CA was correct in being treated as a divisible judgment such that even if the reinstatement portion of the decision had already been executed, dela Fuente would still be allowed to pursue his damages claim. DOCTRINE: The grant to a tribunal or agency of adjudicatory power, or the authority to hear and adjudge cases, should normally and logically be deemed to include the grant of authority to enforce or execute the judgments it thus renders, unless the law otherwise provides. The Office of the Solicitor General is not authorized to represent a public official at any stage of a criminal case. This observation should apply as well to a public official who is haled to court on a civil suit for damages arising D2016 | Public Officers | Prof. G. Dizon-Reyes
from a felony allegedly committed by him (Article 100, Revised Penal Code). Any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The State is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no authority to represent him in such a civil suit for damages. When a judgment has been satisfied, it passes beyond review, satisfaction being the last act and end of the proceedings, and payment of satisfaction of the obligation thereby established produces permanent and irrevocable discharge; hence, a judgment debtor who acquiesces in and voluntarily complies with the judgment, is estopped from taking an appeal therefrom. On the other hand the question of whether or not a judgment creditor is estopped from appealing or seeking modification of a judgment which has been executed at his instance, is one dependent upon the nature of the judgment as being indivisible or not Mancenido v. CA (2000) SUMMARY: Mancenido and other teachers filed an action for mandamus and damages against the provincial board of Camarines Norte, the school board, provincial governor, provincial treasurer, and provincial auditor to pay the teacher’s claim for unpaid salary increases. They are contending that the private attorney could not represent the public respondents as only the OSG can represent instrumentalities of the National Government. SC held that notwithstanding the fact that the TC granted mandamus, petitioners appealed to the CA since the TC did not award damages. In view of the damages sought which if granted, could result in personal liability, respondents could not be deemed to have been improperly represented by private counsel. DOCTRINE: Province of Cebu v. IAC: SC declared that where rigid adherence to the law on representation would deprive a party of his right to redress for a valid grievance, the hiring of private counsel would be proper. c. Extension of Tenure Cena v. CSC (1992) SUMMARY: Before reaching his 65th birthday, Cena requested the DOJ Secretary through the LRA that he be allowed to extend his service to comply with the 15year service requirement to enable him to retire with full benefits of old-age pension under Section 11, par. (b) of PD 1146. DOCTRINE: Application of the law is always in a caseto-case basis. There is no justifiable reason why Cena must not be allowed to continue his service to comply with the 15-year requirement. By limiting the extension of service to only 1 year would defeat the beneficial intendment of the retirement provisions of P.D. 1146. 60
Rabor v. CSC (1995) SUMMARY: Rabor, a utility worker in the Office of Mayor of Davao, requested an extension of his service as may be necessary to comply with the 15 year service requirements of the Retirement Law. At the time of his request, he was already 68 y.o. and has rendered 13 years and 1 mo. of gov’t service. CSC and Mayor Duterte denied his request. In his recourse to the CSC, Rabor based his claim on the ruling Cena v. CSC which allowed such an extension to a government employee who has reached the compulsory retirement age of 65 years, but at the same time has not yet completed 15 years of government service required. HELD: Request for extension denied. CSC Memorandum Circular No. 27, par. (1) which limited said grant to a period not exceeding 1 year is valid, contrary to the pronouncement in Cena v. CSC. Pursuant to Sec. 12, EO 292, the CSC has the power to take appropriate action on personnel matters in the Civil Service including extension of service beyond retirement age and evaluate qualifications for retirement. The limitation of permissible extensions of service after an employee has reached 65 years of age is germane to the foregoing provisions of the present Civil Service Law. The physiological and psychological processes associated with ageing in human beings are in fact related to the efficiency and quality of the service that may be expected from individual persons. d. Immunity from Arrest Constitution, Art., VI, Sec. 11 Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. Jimenez v. Cabangbang: The 2nd sentence of Art. VI, Sec. 11 is known as the speech and debate clause. It protects legislators from suits arising from utterances made in the discharge of their official functions. Tañada & Fernando: The speech and debate clause is to be construed liberally. Thus, it covers every act resulting from the nature and in execution of the office. It may even extend to cases where the legislator is outside the premises of Congress. However, for the protection to apply, Congress must be in session. People v. Jalosjos (2000) SUMMARY: Jalosjos, a congressman of the First District of Zamboanga del Norte, was convicted for statutory rape on 2 counts and acts of lasciviousness on 6 counts. D2016 | Public Officers | Prof. G. Dizon-Reyes
Pending appeal, he filed a motion with the SC to be allowed to fully discharge his duties as a Congressman including attendance at sessions. His main argument is that by virtue of his re-election, he has the duty to perform his functions as a Congressman. HELD: His reelection does not exempt him from statutes which apply to validly incarcerated persons in general. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. If allowed to attend the congressional sessions, the accused would be virtually made a free man. When the voters of his district elected Jalosjos to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. e. Executive Privilege Neri v. Senate (2008) SUMMARY: Neri, former Dir. Gen. of NEDA, was invited by the Senate for an inquiry in aid of legislation in relation to the NBN-ZTE deal. On Sept. 26, 2007, he narrated the bribery attempt by then COMELEC Chair Abalos in exchange for approval of the project. He allegedly relayed such attempt to PGMA. However, on further questions, he invoked executive privilege, particularly on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it and (c) whether or not she directed him to approve it after being told about the bribe. Relentless, Senate issued a subpoena ad testificandum to Neri requiring him to testify on Nov. 20. Exec. Sec. Ermita on behalf of the Office of the President, however, requested the Committees to dispense with Neri’s testimony invoking executive privilege. Neri did not appear on said date; thus, the Senate Committees issued a show cause letter requiring him to explain why he should not be cited in contempt. Unsatisfied with Neri’s explanation, the Senate Committees cited him in contempt and ordered his arrest and detention. HELD: The communications elicited by the 3 questions are covered by executive privilege particularly the presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations since it (1) involved protected communication ie. the power to enter into an executive agreement with other countries (2) received by Neri, a member of the President’s cabinet who is in "operational proximity" with the President and (3) the Senate Committees have not shown the need to limit said privilege. There being a legitimate claim of executive
privilege, the issuance of the contempt Order is constitutionally infirm. DOCTRINE: Right to information on matters alleged to be of public concern may be limited by law such as those provisions concerning confidential matters acquired by public officers in their official capacity PRESIDENTIAL DELIBERATIVE COMMUNICATIONS PROCESS PRIVILEGE PRIVILEGE Definition communications, advisory opinions, documents or other recommendations materials that reflect and deliberations presidential decision- comprising part of making and a process by which deliberations and that governmental the President believes decisions and should remain policies are confidential formulated." Applies Applies to decision- Applies to to making of the decision-making of President executive officials Origin Rooted in the Rooted in common constitutional principle law privilege of separation of power and the President's unique constitutional role Coverage Applies to documents Does not apply to in their entirety, and documents in their covers final and post- entirety decisional materials as well as pre-deliberative ones Other rights of public officers Right to property, devices, and inventions Title to public office carries with it the right to the insignia and property thereof. Rules on title of officer to records, discoveries and inventions o Records, etc. are indispensable to proper conduct of the office – officer may not take them as his own property o Records, etc. are not indispensable to proper conduct of the office and prepared apart from official duties – officer may acquire a property right therein and remove them upon leaving office Inventions of a public officer are his property, unless he was hired precisely to make inventions.
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Right to recover reward for performance of duty Applies with specificity to police officers, soldiers, etc. Rule: Officer cannot recover reward offered by the public for an act which was part of his official duty to perform. Under the NIRC, revenue officers and their relatives up to the 6th degree of consanguinity or affinity are not allowed to recover informer’s rewards for tax law violations, but they may recover informer’s reward for smuggled goods.
C. Liabilities 1. In General (RA 6713) Public officers are protected from liability, to a certain extent, so that the vigorous and effective administration of government may not be hampered. The protection extends only to acts done in good faith within the scope of the office. However, a public officer may be sued in his personal capacity, for acts committed beyond the scope of his authority; or to compel him to perform his duties when he refuses to do so. An individual has no cause of action against a public officer for a breach of duty owing solely to the public. The redress must be through public prosecution. Three-fold liability A public officer has a three-fold responsibility for violations of duty or for wrongful acts or omissions – administrative, civil, and criminal. A single act may result in three-fold liability. Action for each separate liability can proceed independently of the others; and may be pursued simultaneously or successively. o Imposition and service of administrative penalty does not bar imposition and service of criminal penalty Criminal Civil Administrative When it Law Individual Violation of duty arises attaches or person is a violation of penal is damaged the public trust sanction to by the for which the the violation officer may be violation subjected to disciplinary action Issue W/N officer W/N officer W/N officer committed is liable to breached the a crime the norms and affected standards of individual public service 62
Applicability of Procedural Rules Purpose
Proof beyond reasonable doubt Strict
Preponder ance of evidence
Liberal; technical rules not binding
Punishmen t of crime
Private recompens e
Protection of the public service
constitutional principle of public office as public trust, hence unconstitutional.
3. Civil Liability
2. Administrative Liability
Arises from the principle that public office is a public trust. Violation of duty is a violation of the public trust for which the officer may be subjected to disciplinary action as provided under specific laws and/or the terms and conditions of his employment (the Civil Service Law). Governed by administrative law Liability is independent and distinct from criminal and civil liability Dismissal of a criminal case on ground of insufficient evidence is not a bar to administrative proceedings, and vice versa. Disposition of civil or criminal case does not inevitably govern or affect administrative liability, and vice versa. Prejudicial question does not apply to administrative cases. Administrative discipline is not penal in nature. Its purpose is the improvement of public service and preservation of popular faith and confidence in government (Ombudsman v. Tiongson). Condonation doctrine Re-election operates as a condonation of an official’s past misconduct. Thus, an elective official cannot be held administratively liable for acts committed during previous terms. Basis: Each term is separate. Thus, the rule will apply regardless of the date of filing of the complaint as long as the acts complained of were committed prior to the date of re-election (even if 4 days prior thereto, as in Garcia v. Mojica). Condonation does not apply to appointive officials, because they are not voted upon. Neither does it cover civil or criminal liability. See Carpio-Morales v. CA, where SC held that the condonation doctrine violates the
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New Civil Code, Arts. 27, 32, 34 Article 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken. Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and 63
unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Tuzon v. CA: One purpose of NCC 27 is to end the "bribery system, where the public official, for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of pabagsak" (citing Paras). NCC 27 presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In any event, the erring public functionary is justly punishable under this article for whatever loss or damage the complainant has sustained. EO 292, Book I, Secs. 38-39 Section 38. Liability of Superior Officers. (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 gross negligence. (2) 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 liability as may be prescribed by law. (3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific D2016 | Public Officers | Prof. G. Dizon-Reyes
act or misconduct complained of. Section 39. Liability of Subordinate Officers. -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. Public officer who acts within the scope of his assigned tasks and in the performance of his official duties is not liable for damages. Mistakes committed by public officers are not actionable, unless the mistake was motivated by malice or gross negligence amounting to bad faith. As a rule, a public officer, whether judicial, quasi-judicial or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in line of his official duty. It has been held that an erroneous interpretation of an ordinance does not constitute nor does it amount to bad faith, that would entitle an aggrieved party to an award for damages (Tuzon v. CA). Requisites for recovery of damages arising from acts of public officers o Violation of duty or commission of a wrongful act by public officer o Damage done to an individual Requisites to hold the officer personally liable o Allegation and proof of malice or bad faith o Officer must be sued in both official and personal capacities If there is contributory negligence on the part of plaintiff, officer cannot be held liable. The President is generally not liable for official acts. He may, however, be impeached; or sued after his term expires. Other executive officials are also not liable for official acts, unless the official did not act in accordance with law, since it is incumbent upon a competent public official to know the law governing his conduct. Legislative officials are not only exempt from liability but are also granted special privileges by the Constitution. Judicial officers cannot be held liable for official acts committed within their jurisdiction. Judges cannot be held liable for damages arising from the exercise of the judicial function (although judges may be criminally or 64
administratively liable). The rule does not extend to purely ministerial acts. Quasi-judicial officers are also not liable for official acts done in the exercise of their quasijudicial powers. Like judges, they may also be held liable for ministerial acts. Ministerial officers are liable if the private individual has a special and direct interest in the performance of the duty, and the officer fails or neglects to perform the duty; or fails to perform it properly (see definition of ministerial acts supra). o Requisites: Plaintiff must show that he sustained a special and peculiar injury, and that it resulted from a breach of duty owed to him by officer. o However, the officer is not liable if he performed the duty in the prescribed manner and with due care and diligence. o 3 kinds of defaults in performance of ministerial duties 1. Nonfeasance – neglect or refusal to perform an act which is the officer’s legal duty to perform 2. Misfeasance – failure to use required degree of care, skill, and diligence 3. Malfeasance – doing something which the officer has no legal right to do Superior officers o GENERAL RULE: They are not liable for the acts of their subordinates. o EXCEPTIONS (See also EO 292, Book I, Sec. 38, supra) 1. Superior employs unfit or improper persons 2. Superior fails to require due conformity to the prescribed regulations, where he is required to see that subordinates are appointed or qualified in a proper name 3. Superior’s negligence in oversight furnishes the opportunity for default 4. Superior directed, authorized, or cooperated in the wrong 5. Superior’s liability is expressly provided by law. Subordinates are liable to the same extent as other officers, since the extent of immunity from
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civil liability is determined by the nature of the act and not by the name of the office. Liability on contracts executed on behalf of the government o GENERAL RULE: Officer is not liable on contracts executed in behalf of the government o EXCEPTION: Officer does not disclose that the government is his principal; or does not indicate that the contract is being executed in an official capacity. o Authority of the officer is strictly construed. Persons who deal with a public officer are charged with the duty of ascertaining that the proposed act is within the scope of the officer’s authority. o EO 292, Book I, Secs. 47-49, 51 Section 47. Contracts and Conveyances. - Contracts or conveyances may be executed for and in behalf of the Government or of any of its branches, subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations, whenever demanded by the exigency or exigencies of the service and as long as the same are not prohibited by law. Section 48. Official Authorized to Convey Real Property. - Whenever real property of the Government is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: (1) For property belonging to and titled in the name of the Republic of the Philippines, by the President, unless the authority therefor is expressly vested by law in another officer. (2) For property belonging to the Republic of the Philippines but titled in the name of any political subdivision or of any corporate agency or instrumentality, by the executive head of the agency or instrumentality. Section 49. Authority to Convey other Property. Whenever property other than real is authorized to be conveyed, the contract or deed shall be executed by the head of the agency with the approval of the department head. Where the operations of the agency regularly involve the sale or other disposition of personal property, the deed shall be executed by any officer or employee expressly authorized for that purpose. Section 51. Execution of Contracts. (1) Contracts in behalf of the Republic of the Philippines shall be executed by the President unless authority therefor is expressly vested by law or by him in any other 65
public officer. (2) Contracts in behalf of the political subdivisions and corporate agencies or instrumentalities shall be approved by their respective governing boards or councils and executed by their respective executive heads. Liability for unexplained wealth o RA 1379 Section 2. Filing of petition. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. x x x Section 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be rendered within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both. RA 1379 covers all property unlawfully acquired by public officers, even if its ownership is recorded or held by relatives or associates; or transferred after the effectivity of the Act; or donated during the incumbency. RA 1379 imposes on the officer the burden of proving that donations made to him during his incumbency are lawful. It also creates a prima facie presumption of unlawful acquisition. The forfeiture proceeding under RA 1379 is civil in nature and not criminal (Almeda v. Perez). Liability of accountable officers o EO 292, Book V, Title I, Subtitle B, Secs 50-52 Section 50. Accountable Officers; Bond Requirements. (1) Every officer of any government agency whose duties permit or require the possession or custody government funds shall be accountable therefor and for safekeeping thereof in conformity with law; and (2) Every accountable officer shall be properly bonded in accordance with law. Section 51. Primary and Secondary Responsibility. – (1) The head of any agency of the Government is immediately and primarily responsible for all government funds and property pertaining to his agency; D2016 | Public Officers | Prof. G. Dizon-Reyes
(2) Persons entrusted with the possession or custody of the funds or property under the agency head shall be immediately responsible to him, without prejudice to the liability of either party to the Government. Section 52. General Liability for Unlawful Expenditures. Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. Liability for wrongful disbursement of funds o EO 292, Book VI, Chapter 5, Secs. 40 and 43 Section 40. Certification of Availability of Funds. - No funds shall be disbursed, and no expenditures or obligations chargeable against any authorized allotment shall be incurred or authorized in any department, office or agency without first securing the certification of its Chief Accountant or head of accounting unit as to the availability of funds and the allotment to which the expenditure or obligation may be properly charged. No obligation shall be certified to accounts payable unless the obligation is founded on a valid claim that is properly supported by sufficient evidence and unless there is proper authority for its incurrence. Any certification for a non-existent or fictitious obligation and/or creditor shall be considered void. The certifying official shall be dismissed from the service, without prejudice to criminal prosecution under the provisions of the Revised Penal Code. Any payment made under such certification shall be illegal and every official authorizing or making such payment, or taking part therein or receiving such payment, shall be jointly and severally liable to the government for the full amount so paid or received. Section 43. Liability for Illegal Expenditures. - Every expenditure or obligation authorized or incurred in violation of the provisions of this Code or of the general and special provisions contained in the annual General or other Appropriations Act shall be void. Every payment made in violation of said provisions shall be illegal and every official or employee authorizing or making such payment, or taking part therein, and every person receiving such payment shall be jointly and severally liable to the Government for the full amount so paid or received. Any official or employee of the Government knowingly incurring any obligation, or authorizing any expenditure in violation of the provisions herein, or taking part therein, shall be dismissed from the service, after due notice and hearing by the duly authorized appointing official. If the appointing official is other than the 66
President and should he fail to remove such official or employee, the President may exercise the power of removal. Cojuangco v. CA (1999) SUMMARY: PCSO Chairman Carrascoso did not want to pay the winnings of Danding’s racehorses. Eventually, PCSO paid. Danding moved to execute decision. Question is on bad faith (recovery of damages). TC said there is bad faith, but CA reversed, ruling that Carrascoso was merely relying on PCGG instructions. SC ruled that there is no bad faith, but nominal damages are in order, based on NCC 2221 which allows award of nominal damages if there is violation of a right (and in this case, there is). DOCTRINE: To hold public officers personally liable for moral and exemplary damages and for attorney’s fees for acts done in the performance of official functions, the plaintiff must prove that these officers exhibited acts characterized by evident bad faith, malice, or gross negligence. But even if their acts had not been so tainted, public officers may still be held liable for nominal damages if they had violated the plaintiff’s constitutional rights. Tecson v. Sandiganbayan (1999) SUMMARY: Luzana filed 3 cases: 1) administrative case before the DILG, 2) a civil case for damages, and 3) complaint with the Ombudsman against Tecson, for violation of RA 3019 when he willfully, unlawfully, and criminally requested and received for his benefit the amount of P4,000.00, for and in consideration of the issuance of a permit to operate an investment business, in favor of one Salvacion Luzana, a person for whom the accused has in fact received and obtained a mayor’s permit or license. DOCTRINE: A public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. If such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. Ocampo v. Ombudsman (2000) SUMMARY: Ocampo failed to remit training fees to NIACONSULT. This prompted NIA President Eclipse to file an administrative case before the Ombudsman for serious misconduct and/or fraud or willful breach of trust. A criminal case was also filed. While the case is pending, petitioner filed a Manifestation stating that the criminal D2016 | Public Officers | Prof. G. Dizon-Reyes
complaint of estafa was dismissed. He therefore manifests that the administrative case can no longer stand on its own and should be dismissed. DOCTRINE: The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health in all respects. The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases. Then too, there is the "substantial evidence" rule in administrative proceedings. Considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other. Rodrigo v. Sandiganbayan, supra DOCTRINE: Section 56 imposes upon the Provincial Auditor the duty to file a complaint before the Tanodbayan (now the Ombudsman) when, from the evidence obtained during the audit, he is convinced that "criminal prosecution is warranted." The Provincial Auditor need not resolve the opposition to the notice of disallowance and the motion for re-inspection pending in his office before he institutes such complaint so long as there are sufficient grounds to support the same. The right to due process of the respondents to the complaint, insofar as the criminal aspect of the case is concerned, is not impaired by such institution. The respondents will still have the opportunity to confront the accusations contained in the complaint during the preliminary investigation. They may still raise the same defenses contained in their motion to lift the disallowance, as well as other defenses, in the preliminary investigation. Should the Provincial Auditor later reverse himself and grant respondents' motions, or should the COA, or this Court, subsequently absolve them from liability during the pendency of the preliminary investigation, the respondents may ask the prosecuting officer to take cognizance of such decision. The prosecuting officer may then accord such decision its proper weight. The exoneration of respondents in the audit investigation does not mean the automatic dismissal of the complaint against them. The preliminary investigation, after all, is independent from the investigation conducted by the COA, their purposes distinct from each other. The first involves the determination of the fact of the commission of a crime; the second relates to the administrative aspect of the expenditure of publics Lacson v. Executive Secretary (1999)
SUMMARY: Lacson et al, Chief Superintendents of PNP, were indicted as accessories for multiple murder in Amended Informations filed with the Sandiganbayan for their alleged involvement in the rub-out against 11 members of the Kuratong Baleleng gang. They argued that the RTC and not the Sandiganbayan has jurisdiction over their cases since RA 7975 limited the Sandiganbayan’s jurisdiction to cases where one or more of the principal accused are PNP officials with the rank of Chief Superintended or higher and since they were mere accessories, the highest ranking principal in the informations has the rank only of a Chief Inspector. Pending resolution of said issue, RA 8249, which amended the jurisdiction of the Sandiganbayan by deleting the word “principal” from the phrase “principal accused” in Sec. 2 (par. a and c) of RA 7975, took effect. Said law was also made to apply to cases pending with the Sandiganbayan were no trial has commenced. Lacson et al now assails the constitutionality of said law. HELD: Secs. 4 and 7 of RA 8249 are constitutional. There is no violation of equal protection or procedural due process by virtue of the enactment of an ex post facto. However, Sandiganbayan has no exclusive original jurisdiction over the cases since the latter failed to meet the 3 requisites required; in particular, the amended informations are wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. see also: Vital-Gozon v. CA, supra
4. Criminal Liability RPC, Title VII Title Seven CRIMES COMMITTED BY PUBLIC OFFICERS xxx Chapter Two MALFEASANCE AND MISFEASANCE IN OFFICE Section One. — Dereliction of duty Art. 204. Knowingly rendering unjust judgment. — Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification. Art. 205. Judgment rendered through negligence. — Any judge who, by reason of inexcusable negligence or ignorance shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification.
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Art. 206. Unjust interlocutory order. — Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension. Art. 207. Malicious delay in the administration of justice. — The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses. Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or solicitor (procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity. The same penalty shall be imposed upon an attorney-atlaw or solicitor (procurador judicial) who, having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. Section Two. — Bribery Art. 210. Direct bribery. — Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of this official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and maximum periods and a fine [of not less than the value of the gift and] not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a 68
crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional, in its medium period and a fine of not less than twice the value of such gift. If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period and a fine [of not less than the value of the gift and] not less than three times the value of such gift. In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification. The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties. (As amended by Batas Pambansa Blg. 872, June 10, 1985). Art. 211. Indirect bribery. — The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. (As amended by Batas Pambansa Blg. 872, June 10, 1985). Art. 212. Corruption of public officials. — The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles. There are other crimes in the Revised Penal Code which may be committed only by public officers, or impose specific penalties when committed by them. Under the RPC, crimes committed by public officers are divided into: o Malfeasance and misfeasance in office o Frauds and illegal exactions and transactions o Malversation of public funds and property o Infidelity of public officers o Other offenses and irregularities RA 3019 Section 9. Penalties for violations. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this D2016 | Public Officers | Prof. G. Dizon-Reyes
Act shall be punished with imprisonment for not less than one year nor more than ten years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the value of such thing. (b) Any public officer violation any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment not exceeding one year, or by both such fine and imprisonment, at the discretion of the Court. The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. Jaca v. People: The good faith of LGU officials who are tried for violations of RA 3019 is measured from the viewpoint of their official duties. Collective inaction in the face of irregularities in the course of performance of duties; as well indifference to individual and collective duties to ensure that laws and regulations are observed in the disbursement of the funds of the LGU can only lead to a finding of conspiracy of silence and inaction (Sistoza v. Desierto). However, in Arias v. Sandiganbayan it was ruled that: All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations, because there is simply so much paperwork to be signed. There has to be some added reason why he should examine each voucher in such detail. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. SC has since applied Arias not only to criminal but also to civil and administrative liability; and even to the existence of probable cause for the
filing of an information in the context of a conspiracy allegation (Jaca v. People). Elements of a RA 3019§3(e) violation (Estino v. People) 1. Accused is a public officer discharging administrative, judicial, or official functions 2. Accused acted with manifest partiality, evident bad faith, or gross and inexcusable negligence 3. Accused’s act caused undue injury to any party, or gave to any private party unwarranted benefit, advantage, or preference in the discharge of his/her functions
RA 1379 Section 6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be rendered within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both. Section 12. Penalties. Any public officer or employee who shall, after the effective date of this Act, transfer or convey any unlawfully acquired property shall be repressed with imprisonment for a term not exceeding five years, or a fine not exceeding ten thousand pesos, or both such imprisonment and fine. The same repression shall be imposed upon any person who shall knowingly accept such transfer or conveyance. RA 6713 SECTION 11. Penalties. — (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, D2016 | Public Officers | Prof. G. Dizon-Reyes
disqualification to hold public office. (b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him. (c) Private individuals who participate in conspiracy as co-principals, accomplices or accessories, with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities as the public officials or employees and shall be tried jointly with them. (d) The official or employee concerned may bring an action against any person who obtains or uses a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is brought may assess against such person a penalty in any amount not to exceed twenty-five thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter shall apply. Public officers are also criminally liable for violations of the OEC, NIRC, LGC, and the Government Auditing Code (PD 1441).
D. Disabilities and Inhibitions 1. Under the Constitution Practice of Profession and Prohibited Interests Constitution, Art. VI, Sec. 14 Section 14. 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. Constitution, Art. VII, Sec. 13 Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this 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 government-owned or 70
controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. 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-owned or controlled corporations and their subsidiaries. Constitution, Art. IX-A, Sec. 2 Section 2. 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 government-owned or controlled corporations or their subsidiaries. Constitution, Art. XI, Sec. 8, par. 2 Section 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines. During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution. Engaging in Partisan Political Activity Constitution, Art. IX-B, Sec. 2(4) Section 2. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. The prohibition is reiterated in Sec. 55 of the current Civil Service Law, and also appears in previous iterations of the Civil Service Laws. “Partisan Political Activity” = an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Thus, the public officer is not guilty of partisan political activity if the person he is promoting is not yet a candidate (see Penera v. COMELEC). D2016 | Public Officers | Prof. G. Dizon-Reyes
Agpalo: Political officers – defined as officers not connected immediately with the administration of justice or the execution of the mandates of a superior officer - are exempted from the provision. o Examples: President, cabinet secretaries, elective officials.
Holding multiple positions Constitution, Art. IX-B, Sec. 7 Section 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 Government-owned or controlled corporations or their subsidiaries Constitution, Art. XIII, Sec. 12 Section 12. 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 Constitution, Art. XVI, Sec. 5(4) Section 5. (4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. see B. Disqualifications, supra, and cases therein CLU v. Executive Secretary The intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Sec. 13, Art. VII provides for an absolute disqualification, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. While all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the 71
Constitution itself. Sec. 7, Article IX-B: general rule applicable to all elective and appointive public officials and employees Sec. 13, Article VII: exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. Hence, the qualifying phrase "unless otherwise provided in this Constitution" in Sec. 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B. The prohibition against holding dual or multiple offices or employment must not be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office. Rationale for non-appointment of soldiers to civilian positions: In a true democracy, soldiers do not run governments but fight wars.
Double compensation see Right to Compensation, supra Acceptance of gifts or titles from foreign governments Constitution, Art. IX-B, Sec. 8 Section 8. No elective or appointive public officer or employee shall x x x accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Founded on “just jealousy of alien influence in domestic affairs”; and intended to prevent such influence (Malcolm and Laurel; Cooley). Only official gifts and titles are prohibited. Private or personal gifts are allowed (Sinco). Prohibition against certain financial transactions Constitution, Art. XI, Sec. 16 Section 16. 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. Prohibition does not apply where the loan is not for any business purpose or if the official does not own a controlling interest in the debtor firm.
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Civil Service Law, Secs. 55-59 Section 55. Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 56. Additional or Double Compensation. - No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind from any foreign state. Pensions and gratuities shall not be considered as additional, double, or indirect compensation. Section 57. Limitations on Employment of Laborers. Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical duties. Section 58. Prohibition on Detail or Reassignment. – No detail or reassignment whatever shall be made within three (3) months before any election. Section 59. Nepotism. (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either or consanguinity or of affinity. (2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission. 72
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (3) In order to give immediate effect to these provisions, cases of previous appointments which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who are appointed in violation of these provisions. RA 6713, Sec. 7 SECTION 7. Prohibited Acts and Transactions. — In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (a) Financial and material interest. — Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office. (b) Outside employment and other activities related thereto. — Public officials and employees during their incumbency shall not: (1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or (3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office. These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply. (c) Disclosure and/or misuse of confidential information. — Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available D2016 | Public Officers | Prof. G. Dizon-Reyes
to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. (d) Solicitation or acceptance of gifts. — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. As to gifts or grants from foreign governments, the Congress consents to: (i) The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; (ii) The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or (iii) The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs. The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection, including pertinent reporting and disclosure requirements. Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements. LGC 89-90, 93 Section 89. Prohibited Business and Pecuniary Interest.(a) It shall be unlawful for any local government official or employee, directly or indirectly, to: (1) Engage in any business transaction with the local government unit in which he is an official or employee or over which he has the power of supervision, or with any of its authorized boards, officials, agents, or attorneys, whereby money is to be paid, or property or any other thing of value is to be transferred, directly or indirectly, out of the resources of the local government unit to such person or firm; (2) Hold such interests in any cockpit or other games licensed by a local government unit; (3) Purchase any real estate or other property forfeited in favor of such local government unit for unpaid taxes or assessment, or by virtue of a legal process at the instance of the said local government unit; 73
(4) Be a surety for any person contracting or doing business with the local government unit for which a surety is required; and (5) Possess or use any public property of the local government unit for private purposes. (b) All other prohibitions governing the conduct of national public officers relating to prohibited business and pecuniary interest so provided for under Republic Act Numbered Sixty-seven thirteen (R.A. No. 6713) otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees" and other laws shall also be applicable to local government officials and employees. Section 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: (1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. Section 93. Partisan Political Activity. - No local official or employee in the career civil service shall engage directly or indirectly in any partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall, except to vote, nor shall he use his official authority or influence to cause the performance of any political activity by any person or body. He may, however, express his views on current issues, or mention the names of certain candidates for public office whom he supports. Elective local officials may take part in partisan political and electoral activities, but it shall be D2016 | Public Officers | Prof. G. Dizon-Reyes
unlawful for them to solicit contributions from their subordinates or subject these subordinates to any of the prohibited acts under the Omnibus Election Code. NCC 1491-1492 Article 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: (1) The guardian, the property of the person or persons who may be under his guardianship; (2) Agents, the property whose administration or sale may have been entrusted to them, unless the consent of the principal has been given; (3) Executors and administrators, the property of the estate under administration; (4) Public officers and employees, the property of the State or of any subdivision thereof, or of any government-owned or controlled corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale; (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. (6) Any others specially disqualified by law. (1459a) Article 1492. The prohibitions in the two preceding articles are applicable to sales in legal redemption, compromises and renunciations. RA 7653, Secs. 20 & 27 Section 20. Outside Interests of the Governor and the Full-time Members of the Board. - The Governor of the Bangko Sentral and the full-time members of the Board shall limit their professional activities to those pertaining directly to their positions with the Bangko Sentral. Accordingly, they may not accept any other employment, whether public or private, remunerated or ad honorem, with the exception of positions in eleemosynary, civic, cultural or religious organizations or whenever, by designation of the President, the Governor or the fulltime member is tasked to represent the interest of the Government or other government agencies in matters connected with or affecting the economy or the financial system of the country. 74
Section 27. Prohibitions. - In addition to the prohibitions found in Republic Act Nos. 3019 and 6713, personnel of the Bangko Sentral are hereby prohibited from: (a) being an officer, director, lawyer or agent, employee, consultant or stockholder, directly or indirectly, of any institution subject to supervision or examination by the Bangko Sentral, except non-stock savings and loan associations and provident funds organized exclusively for employees of the Bangko Sentral, and except as otherwise provided in this Act; (b) directly or indirectly requesting or receiving any gift, present or pecuniary or material benefit for himself or another, from any institution subject to supervision or examination by the Bangko Sentral; (c) revealing in any manner, except under orders of the court, the Congress or any government office or agency authorized by law, or under such conditions as may be prescribed by the Monetary Board, information relating to the condition or business of any institution. This prohibition shall not be held to apply to the giving of information to the Monetary Board or the Governor of the Bangko Sentral, or to any person authorized by either of them, in writing, to receive such information; and (d) borrowing from any institution subject to supervision or examination by the Bangko Sentral shall be prohibited unless said borrowings are adequately secured, fully disclosed to the Monetary Board, and shall be subject to such further rules and regulations as the Monetary Board may prescribe: Provided, however, That personnel of the supervising and examining departments are prohibited from borrowing from a bank under their supervision or examination. NIRC 270-71 SEC. 270. Unlawful Divulgence of Trade Secrets. Except as provided in Section 71 of this Code and Section 26 of Republic Act No. 6388, any officer or employee of the Bureau of Internal Revenue who divulges to any person or makes known in any other manner than may be provided by law information regarding the business, income or estate of any taxpayer, the secrets, operation, style or work, or apparatus of any manufacturer or producer, or confidential information regarding the business of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties, shall upon conviction for each act or omission, be punished by a fine of not less than Fifty thousand pesos (P50,000) but not more than One hundred thousand pesos (P100,000), or suffer imprisonment of not less than two (2) years but not more than five (5) years, or both.
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SEC. 271. Unlawful Interest of Revenue Law Enforcers in Business. - Any internal revenue officer who is or shall become interested, directly or indirectly, in the manufacture, sale or importation of any article subject to excise tax under Title VI of this Code or in the manufacture or repair or sale, of any die for printing, or making of stamps, or labels shall upon conviction for each act or omission, be punished by a fine of not less than Five thousand pesos (P5,000) but not more than Ten thousand pesos (P10,000), or suffer imprisonment of not less than two (2) years and one (1) day but not more than four (4) years, or both. RA 3019, Secs. 3-6 Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable 75
time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government. Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close D2016 | Public Officers | Prof. G. Dizon-Reyes
personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Section 6. Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term. The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution 76
authored or recommended by him, continues for thirty days after such approval to retain such interest. PD 46 PRESIDENTIAL DECREE No. 46 November 10, 1972 MAKING IT PUNISHABLE FOR PUBLIC OFFICIALS AND EMPLOYEES TO RECEIVE, AND FOR PRIVATE PERSONS TO GIVE, GIFTS ON ANY OCCASION, INCLUDING CHRISTMAS WHEREAS, under existing laws and the civil service rules, it is prohibited to receive, directly or indirectly, any gift, present or any other form of benefit in the course of official duties; WHEREAS, it is believed necessary to put more teeth to existing laws and regulations to wipe out all conceivable forms of graft and corruption in the public service, the members of which should not only be honest but above suspicion and reproach; and WHEREAS, the stoppage of the practice of gift-giving to government men is a concrete step in the administration's program of reforms for the development of new moral values in the social structure of the country, one of the main objectives of the New Society; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby make it punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing to any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives. For violation of this Decree, the penalty of imprisonment for not less than one (1) year nor more than five (5) years and perpetual disqualification from public office shall be imposed. The official or employee concerned shall likewise be subject to administrative disciplinary action and, if found guilty, shall be meted out the penalty of suspension or removal, depending on the seriousness of the offense. Any provision of law, executive order, rule or regulation or circular inconsistent with this Decree is hereby D2016 | Public Officers | Prof. G. Dizon-Reyes
repealed or modified accordingly. This Decree shall take effect immediately after its publication. Done in the City of Manila, this 10th day of November, in the year of Our Lord, nineteen hundred and seventy-two.
RA 6713 RA 7160
A. Expiration of Term
Term: a fixed and definite time prescribed by law by which an officer may hold an office. o time during which officer may claim to hold the office as a right; interval after which incumbents shall succeed one another o not affected by hold-over o terms seek to assure continuity in the discharge of public functions Tenure: period during which the incumbent actually holds office. Upon expiration of term, the officer’s rights, duties, and authority as such ceases, unless he is authorized to hold-over. The right of the occupant to hold the office is terminated. If the appointment is at the pleasure of the appointing power or to a confidential position, the “term” is the time for which the appointing power has confidence or pleasure in the appointee. Once these are lost, the “term” expires. Same rule applies to appointees whose terms are not fixed by law in the sense that there is no removal in such cases. Non-renewal of an appointment without valid cause at the end of the term is a valid mode of termination. An office created for the accomplishment of a single act is terminated upon the accomplishment of such act. Laws creating public offices usually fix the dates of terms. o Commencement date is usually fixed at some appreciable time after election or appointment (e.g. June 30 for elective officials), to give the officer time to prepare and/or qualify. o No time is fixed: On the date of election or appointment o Where the term runs from a certain date, that date is excluded from the computation. o Congress has the power fix terms of officers. However, it cannot change terms fixed by the Constitution; and it may not shorten a term by refusing to
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make appropriations for the salary of an officer. Hold-over o Status of an officer whose term has expired or whose services have been terminated but is made to continue holding office until his successor is appointed and qualified. o Hold-over applies only when the office has a term fixed by law. It does not apply to offices with indefinite terms. o Purpose: Prevent hiatus in office and interruption in government service o If hold-over is not provided for by law, the prevailing view is that the incumbent may do so unless hold-over is expressly or impliedly prohibited. o Hold-over in constitutionally-fixed term offices is not permitted, unless the Constitution provides for it. o Determination of applicability of a general hold-over clause to a particular officer If the constitution provides for a hold-over in general terms, its application will not be limited to constitutional officers. Guiding principle: The construction of a statute by those charged with its execution should be followed, unless it is clearly wrong. An officer authorized by law to hold-over remains a de jure officer. If the hold-over is not authorized, he is a de facto officer. Achacoso v. Macaraig, supra SUMMARY: Non-CES eligible appointed POEA Admin, tendered courtesy resignation; now seeks reinstatement. DOCTRINE: One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being no need the show that the termination is for cause Acting appointee is separated by a method of terminating official relations known in the law of public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because removal imports the separation of the incumbent before the expiration of his term. This is allowed by the Constitution only when it is for cause as provided by law. The acting appointee is separated precisely because his 78
term has expired. Expiration of the term is not covered by the constitutional provision on security of tenure Lecaroz v. Sandiganbayan, supra DOCTRINE: The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law (Mechem). Gloria v. de Guzman, supra DOCTRINE: There was no termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Loleng gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. A primarily confidential appointee’s term expires upon the appointing authority’s loss of confidence in the appointee. A ‘removal’ on this ground is not really a removal.
Black’s: Termination of one's own employment or career, esp. upon reaching a certain age or for health reasons; may be voluntary or involuntary. Compulsory retirement of public officers is governed by special laws, e.g. GSIS Law, which requires retirement for employees who have reached the age of 65 with at least 15 years of service (see Retirement benefits, supra). SC justices serve until the age of 70. Reaching the age limit results in the compulsory and automatic retirement of the public officer. An application for optional retirement cannot be unilaterally withdrawn by the applicant (Rubio, Jr. v. Sto. Tomas). An employer is authorized to request the optional retirement of an employee who, by reason of disqualification, is unable to perform satisfactorily and efficiently the duties of his position (Rubio, Jr. v. Sto. Tomas)
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Retirement of an officer does not render moot an administrative case against him filed before his retirement (Sy Bang v. Mendez).
C. Death/Permanent Disability NCC 37 Article 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. Death of the incumbent necessarily renders the office vacant. If authority is jointly exercised by 2 or more officers, only a partial vacancy arises. Survivors may execute the office if joint action of all the members is NOT expressly required. Permanent disability covers both mental and physical disability. Mechem: If the officer resigns while insane and the appointing authority accepts the resignation without knowledge of the insanity, and a successor is duly appointed, the loss of the office must fall upon him who resigned it.
D. Resignation Definition see Ortiz v. COMELEC AmJur: Formal renunciation or relinquishment of public office Mechem: The act of giving up an office Right to resign of public officers At common law, the right to resign was heavily regulated in view of the public interest in government service, i.e. the public has a right to the service of all its citizens. Mechem, citing Hoke v. Henderson: It is not true that an office is held at the will of either party. It is held at the will of both. Every man is obliged, upon a general principle, after entering upon his office, to discharge the duties of it while he continues in office, and he cannot lay it down until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged. Public officers are not legally required to finish their term and may resign anytime, as long as they are qualified to do so and there are adequate safeguards for the protection of the public and of creditors. Resignation as indication of quilt; effect on pending case
Resignation should not and cannot be used to evade administrative sanction. It does not cause the dismissal of administrative or criminal proceedings against a public officer. Immediate resignation after discovery of an anomalous transaction is indicative of guilt, as is flight in criminal cases (Pagano v. Nazario, Jr.). RA 3019, Sec. 12 Section 12. Termination of office. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. Form of resignation If a law requires a certain form of resignation, that form must substantially complied with, e.g., resignation must be written if there is a law requiring written resignation. If the form of resignation is not prescribed, any method indicative of the intent to resign may be used Written resignation must be signed by the party tendering it. Elements of resignation 1. Intent to resign 2. Act of resignation o Application for retirement benefits or submission of unsigned resignation letter are prima facie acts of resignation o Filing of illegal dismissal case is difficult to reconcile with voluntary resignation 3. Acceptance by proper authority (see RP v. Singun) o Proper authority is the one designated by statute. In the absence of designation, it must be tendered to the appointing authority or the body authorized to call an election to fill the office (for elective local officials, see LGC 82). o SC cannot accept the resignation of a judge because this is a prerogative of President. o Resignation tendered to the improper authority is a nullity. o Acceptance may be manifested by formal declaration or by appointment of a successor o Tenure of the resigned officer ends upon acceptance, NOT upon appointment of the successor. Withdrawal of resignation Must be made prior to acceptance, or prior to its effectivity date D2016 | Public Officers | Prof. G. Dizon-Reyes
A withdrawal of an application for optional retirement which is in effect an application for reappointment to the former position must be approved by the appointing official since such reappointment may no longer be possible when the vacancy has been filled up (Merino v. CSC). A prospective resignation may be a mere notice or proposition to resign, i.e., prima facie evidence of intent to resign since possession of the office is still retained and the officer may still withdraw his resignation. Mechem: Resignation can be withdrawn after acceptance by the authority, provided that the accepting authority consents to the withdrawal and no new rights have intervened. Repudiation of resignation 1. Resignation is not effective – even if a successor has already been appointed - if transmitted without the officer’s consent 2. Resignation procured by fraud or duress is voidable and may be repudiated 3. Resignation made as an alternative to the filing of charges may be repudiated, since such cannot be accepted as having been given voluntarily. Resignation under duress or fraud If an officer resigns after it has been determined by the proper disciplining authority that he should be terminated, the resignation is not under duress, since it is not duress to threaten to do what one has the legal right or justification to do. Resignations are presumed to be voluntary. Ortiz v. COMELEC (1988) SUMMARY: Ortiz became COMELEC Commissioner for a term of 1985-1992. EDSA I came and Pres. Cory called on all appointive officials to submit courtesy resignations. Ortiz and 2 other COMELEC Commissioners wrote the President manifesting that they were placing their positions in her hands. Cory accepted Ortiz’ resignation. When Ortiz applied for retirement benefits with the COMELEC, he was denied, on the ground that he was not able to complete the 20year government service requirement under RA 1586 because he tendered courtesy resignation. SC reversed, holding that courtesy resignations must be strictly construed, and here, Ortiz’ purported resignation did not show a clear intent to relinquish his position. In the legal sense, a resignation is an act manifesting a clear intent to relinquish the position. Here Ortiz did not have such intent but merely placed his continued stay in office at the President’s discretion, so SC held that he was similar to a primarily confidential officer, whose term expires at 80
the loss appointing power’s confidence. SC concluded that, based on equity and justice, Ortiz should be deemed to have completed his term for purposes of the 20-year requirement; thus he is entitled to benefits under RA 1586. DOCTRINE: Resignation is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. A courtesy resignation cannot properly be interpreted as a resignation in the legal sense because it is not necessarily a reflection of the public officer’s intent to surrender her position. A courtesy resignation is a manifestation of the submission to the will of the political authority and the appointing power. Therefore, courtesy resignations must be given a stringent interpretation, particularly in cases involving constitutional officials who are removable by impeachment. Estrada v. Arroyo (2001) SUMMARY: Estrada and his family left Malacañang. He issued a press statement, declaring his departure for the sake of peace. He also signed a letter, saying that, invoking Section 11, Article VII of the Constitution, he finds himself unable to exercise the powers and duties of his office, and leaves the Vice-President as Acting President. DOCTRINE: The elements of resignation are as such: (a) there must be intent to resign; and (b) the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. Estrada did not write any formal letter of resignation, so in this case, the issue has to be determined by the totality of prior, contemporaneous, and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this test, Estrada had, as a matter of fact, resigned. Class Notes: The use of external evidence to assess an officer’s intent to resign, as was done in this case, goes against the concept of resignation as an act coupled with an internal intent. Case should not be extended to members of the civil service as it would have dire implications for security of tenure, i.e., resignatory intent can be attributed to an officer with no such intent, in order to oust her from office. Republic v. Singun (2008) SUMMARY: Singun was a Chief Trade and Industry Development Specialist at DTI Region II office. He wanted to take a leave, but it was disapproved. He again filed an application for leave with resignation. It was allegedly accepted by Director Hipolito. Singun contends D2016 | Public Officers | Prof. G. Dizon-Reyes
that his resignation was invalid because it was made under duress and he was not notified of its acceptance. CSC and CA ruled in favor of Singun. SC also ruled in favor of Singun, and held that 3 requisites must be fulfilled for the resignation to be valid: 1) intention 2) act and 3) acceptance. As held by CSC and CA, the third was clearly not present in the case. DOCTRINE: Acceptance is necessary for resignation of a public officer to be operative and effective. Without acceptance, resignation is nothing and the officer remains in office. Without acceptance, a resignation is not complete and is revocable unless otherwise provided. Thus, a resignation may still be withdrawn prior to acceptance, but NOT after acceptance.
E. Acceptance of Incompatible Office
Performance of inconsistent and incompatible duties is inconsistent with the policy of the law; thus, one who accepts an incompatible office while occupying another office absolutely vacates the first office. Rule applies even if the second office is inferior to the first office, or when the election to the second office was void, and even more so when another person has been appointed to the first office. Statutory or constitutional ban on multiple officeholding is not a case of incompatibility but of a prohibition (Zandueta v. dela Costa). If the appointment to the latter office is void because of disqualification or ineligibility, the appointee does not forfeit his original office. When are offices incompatible? Look into the character of the offices o There is conflict in such duties and functions, as amounts to interference o One office is subordinate to the other o Law or Constitution declares the offices incompatible even if there is no conflict or inconsistency Exceptions to the rule o When the officer cannot vacate the office by his own act, e.g., when law requires the approval of another authority before the officer can resign o Where the two offices are held under and conferred by different governments o Officer is expressly authorized by law to accept another office o Second office is temporary Public Interest Center v. Elma, supra 81
DOCTRINE: The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if "allowed by law or by the primary functions of his position." There is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility. TEST IN DETERMINING WHETHER INCOMPATIBILITY EXISTS BET. 2 OFFICES: Whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. Incompatibility between two offices, is an inconsistency in the functions of the two; NO INCOMPATIBILITY: Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. From the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. The offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. CAB: An incompatibility exists between the positions of the PCGG Chairman and the CPLC.
F. Abandonment of Office
Statute may declare that a mere filing of certificate of candidacy for a second office operates as abandonment (see Election Law) Once abandoned, former incumbent cannot legally repossess the office. Intention to abandon is the first and paramount object of inquiry. No abandonment without intent to abandon. When is there abandonment of office 1. Clear intention to abandon office 2. Acceptance of another office 3. Concurrence of overt acts and intention 4. Failure to discharge duties or failure to claim or resume the office 5. Acquiescence by the officer in wrongful or illegal removal Resignation is not abandonment; but abandonment can be considered a species of resignation. Both are voluntary acts of relinquishment of office. Resignation is formal relinquishment, while abandonment is a relinquishment through non-use. Both have the
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same effect, i.e., the former holder can no longer legally repossess the office. Abandonment = intent + act (non-use). Canonizado v. Aguirre (2001) FACTS: During the pendency of the 2000 Canonizado case, Canonizado was appointed by Pres. Estrada as Inspector General of the Internal Affairs Service (IAS) of the PNP on 30 June 1998. He accepted such appointment and took his oath before the DILG Secretary and the President. Respondents insist that this fact should be taken judicial notice of. By accepting such position, respondents contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position. RULING: WoN Canonizado abandoned his claim for reinstatement. NO. Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. A person holding a public office may abandon such office by nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. It is a well settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. The incompatibility contemplated is not the mere physical impossibility of one person's performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. However, the rule on incompatibility of duties will not apply to the case at bar because at no point did 82
Canonizado discharge the functions of the two offices simultaneously, but before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP.
G. Prescription of Right to Office
Pertains to an officer who is entitled to an office but is not in possession/occupation thereof Rules of Court, Rule 66, Sec. 11 Section 11. Limitations. — Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose, nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioner's right to the office in question. (16a) see discussion on Quo Warranto Lapse of the period for bringing quo warranto means that the de jure officer loses the right to take the office, i.e., his right to it prescribes. Nachura: Reason for the rule – Title to public office should not be subjected to continued uncertainty; it must be determined as speedily as possible. Resort to administrative remedy does not suspend the period; but the period runs even during the pendency of a MR. GR: Period will be strictly observed. EX: Strong, compelling, exceptional circumstances, as in Cristobal v. Melchor (with which Ma’am disagrees).
H. Removal Concept and Extent Removal is the ouster of an incumbent before the expiration of his term. The office exists after the ouster. It is synonymous to dismissal. Constructive removal is removal induced by making continued employment impossible, unreasonable, or unlikely. Certain personnel actions (e.g. transfer, demotion, reassignment), if done in bad faith, without just cause, or in violation of security of tenure, amount to removal. o Transfer or reassignment with no definite period or duration and resulting in a reduction in rank, status, or salary, is a constructive removal. D2016 | Public Officers | Prof. G. Dizon-Reyes
The power to remove and the power to appoint are usually lodged in the same authority. Power to remove is inherent in the power to appoint. According to Mechem, this rule is applicable where the term of the office is not fixed by law and no other provision is made for the removal of the officer. If the term is fixed, appointee enjoys security of tenure for the duration of term, i.e., may only be removed for cause. Permanent appointees under the Civil Service may only be removed for cause and with notice and hearing. Power to remove may be absolute or conditional. o Absolute when the authority has unlimited discretion exercisable at such time and for such reasons as the authority may deem sufficient. o Conditional when the time, manner, or reason for removal is beyond the mere discretion of the authority. In Whom Vested Statutes creating public offices usually also provide for the power of removal. Where an office is created by statute, it is wholly within the power of Congress and this extends to regulation of removals. If the Constitution exclusively prescribes the means and causes for removal, Congress has no power to prescribe rules for removal. The Constitution may vest in Congress general authority over the subject of removal of public officers, except impeachable officers. Presidential Power of Removal Not expressly vested, but implied from constitutional provisions: o President’s power to appoint (supra), thus even career officers appointed by the President are under the direct disciplining authority of the President (Larin v. Executive Secretary) o Executive power (Art. VII, Sec. 1) o The faithful execution clause (Art. VII, Secs. 1 & 5) o Presidential control of the departments, bureaus, and offices (Art. VII, Sec. 17) o Art. IX-B, Sec. 2(3) Presidential power of removal WRT certain classes of officers Executive officers with no With or without cause, not fixed term, e.g., Cabinet subject to Congressional secretaries regulation Quasi-judicial/quasiOnly on grounds provided 83
legislative officers Constitutional officers and judges Members of the Civil Service Temporary, provisional, or acting appointees Office-holders at the pleasure of the President Offices created by law and law authorizes President to remove at pleasure Non-career members of the Civil Service
by law Cannot be removed Only for cause as provided by law At the President’s pleasure, with or without cause Term expires upon displeasure, not really removed Only for cause (see delos Santos v. Mallare)
Co-terminous with appointing authority or subject to his pleasure Local elective officials President may remove, subject to LGC and implementing rules Grounds for Removal/Sanction Members of Congress Constitution, Art. VI, Section 16(3). Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. President, Vice-President, SC Justices, Constitutional Commissioners and Ombudsman Constitution, Art. XI, Section 2. The President, the VicePresident, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Members of the Judiciary Constitution, Art. VIII, Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. o As regards lower court judges, SC determination of deviation from behavioral norms is conclusive since it D2016 | Public Officers | Prof. G. Dizon-Reyes
alone has the power to order their dismissal. Under the Local Government Code LGC, Section 60. Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. Under the Civil Service Law Civil Service Law, Section 46. Discipline: General Provisions. – (b) The following shall be grounds for disciplinary action: (1) Dishonesty; (2) Oppression; (3) Neglect of duty; (4) Misconduct; (5) Disgraceful and immoral conduct; (6) Being notoriously undesirable; (7) Discourtesy in the course of official duties; (8) Inefficiency and incompetence in the performance of official duties; (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; (10) Conviction of a crime involving moral turpitude; (11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children; (12) Violation of existing Civil Service Law and rules or reasonable office regulations; (13) Falsification of official document; (14) Frequent unauthorized absences or tardiness in 84
reporting for duty, loafing or frequently unauthorized absence from duty during regular office hours; (15) Habitual drunkenness; (16) Gambling prohibited by law; (17) Refusal to perform official duty or render overtime service; (18) Disgraceful, immoral or dishonest conduct prior to entering the service; (19) Physical or mental incapacity or disability due to immoral or vicious habits; (20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers; (21) Lending money at usurious rates or interest; (22) Willful failure to pay just debts or willful failure to pay taxes due to the government; (23) Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations; (24) Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations; (25) Insubordination; (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office; (27) Conduct prejudicial to the best interest of the service; (28) Lobbying for personal interest or gain in legislative halls and offices without authority; (29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority; (30) Nepotism as defined in Section 60 of this Title. Violations of RA 3019 are also grounds for removal or disciplinary action. Aquino v. CSC, supra SUMMARY: Aquino who was then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated as OIC of the Division Supply Office in view of the retirement of the Supply Officer I by the DECS Reg. Director. Later on, Dela Paz was extended a promotional appointment to the same position by the Division Superintendent of City Schools of San Pablo City. Prior to her appointment, she was holding the position of Clerk II, Division of City Schools and was designated as Assistant to the Supply Officer. CSC Regional Office approved her appointment provided that there is no pending administrative case against her, no pending protest against the appointment; nor any decision by competent authority that will adversely affect the approval of her appointment. Aquino filed a protest D2016 | Public Officers | Prof. G. Dizon-Reyes
with the DECS Secretary and was thus appointed to the position on the ground that Aquino has advantage over Dela Paz in terms of education, experience and training and that the latter has no relevant in-service training course attended and completed. Dela Paz appealed to the MSPB who upheld the appointment of Dela Paz. However, the CSC, reversed and found such appeal meritorious. The Court held that the CSC did not err in revoking Aquino’s appointment since Dela Paz already acquired the right to security of tenure. The Luego doctrine does not apply in this case. Fabella v. CA (1997) SUMMARY: Mandaluyong High teachers were administratively charged for going on strike. A committee was formed to investigate. The teachers sued to enjoin the committee from investigating them because: its guidelines were unclear; the burden of proof was shifted to the teachers; and teachers’ groups were not represented in the committee. Later, they changed their suit to certiorari to assail the findings of the committee after it recommended their dismissal. RTC dismissed the case but SC reversed. After trial, RTC ruled for the teachers and ordered their reinstatement. CA affirmed the RTC. DECS appealed to the SC, which held that the RTC and the CA were correct in holding that the investigating committee was improperly constituted. Without the teachers’ organization representative, the teachers were denied administrative due process and the proceedings were void. The power of the DECS Secretary and Regional Directors to investigate and discipline teachers must be exercised through the committees created under the Magna Carta for Public School Teachers. DOCTRINE: RA 4670 governs administrative proceedings against public school teachers. Under that law, representation of teachers’ organizations in disciplinary committees is indispensable to ensure an impartial tribunal. It is this requirement that gives substance and meaning to the right to be heard, which is the essence of procedural due process; as embodied in the basic requirement of notice and a real opportunity to be heard. The choice of representative must come from the teachers’ organizations themselves, who, under the law, have the right to choose their representatives for the disciplinary committee. Aguinaldo v. Santos (1992) SUMMARY: Governor Aguinaldo’s removal from office was ordered after the Secretary of Local Government found him guilty of acts of disloyalty to the Republic in relation to the failed December 1989 coup ‘d’état. This did not stop him from filing his COC for the position of Governor in the upcoming 1992 elections, however. He eventually won the election. This petition was filed 85
before Aguinaldo was proclaimed Governor, and against the decision of the Secretary dismissing him as Governor of Cagayan. SC declared the petition moot and academic because of Aguinaldo’s win in the 1992 elections. Should the SC remove the duly elected public officer from office due to acts prior to his/her present term, this would be tantamount to depriving the people of their right to elect their officers. The people are assumed to have known of the official’s life and character, and that they have disregarded or forgiven his fault or misconduct. DOCTRINE: A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. UPDATE: In Carpio Morales v. CA (11/10/2015), SC abandoned the condonation doctrine. It also struck down Sec. 14 of the Ombudsman Law providing for the noninjunctibility of the Ombudsman’s investigations. Salalima v. Guingona, Jr. (1996) SUMMARY: Tiwi Mayor Coral filed an admin complaint against Albay Governor Salalima and other provincial officials for various violations of the LGC (pars c and d of S 60). The Office of the President (OP) issued an AO creating an Ad Hoc Investigating Committee, which found Salalima et al. guilty of violating the LGC. SC affirmed the OP, stating that the suspension of Mayor Coral was tainted with arbitrariness and constitutes abuse of authority, but Salalima cannot be held liable administratively for certain acts done during the previous term (Court applied the Aguinaldo doctrine). DOCTRINE: LGC 66(b) sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code. Gloria v. CA (1999) SUMMARY: Strikes and walk-outs were staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in Manila Public School Teachers Association v. Laguio. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave.
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DOCTRINE: Employees are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation is not a penalty but only means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. SECS v. CA (2000) SUMMARY: Petitioners are public school teachers from various schools in the NCR who incurred unauthorized absences in connection with their then on-going mass action. DECS Sec. Carino issued a Memorandum ordering them to return to work under the pain of dismissal. Said Memorandum was ignored, prompting the Secretary to lodge administrative complaints against them for grave misconduct, gross neglect of duty, violation of the Civil Service law and rules and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the public interest, and absence without leave. DOCTRINE: When the teachers have given cause for their suspension - i.e., the unjustified abandonment of classes to the prejudice of their students-they were not fully innocent of the charges against them although they were eventually found guilty only of conduct prejudicial to the best interest of the service and not grave misconduct or other offenses warranting their dismissal from service; 'being found liable for a lesser offense in not equivalent to exoneration. Hagad v. Gozo-Dadole (1995) SUMMARY: A criminal and an administrative complaint were filed with the office of Deputy Ombudsman Hagad, against Mandaue Mayor Ouano and other officials for violation of RA 3019, RPC, and RA 6713. Ouano et al moved to dismiss the administrative complaint, on the ground that the Ombudsman was bereft of jurisdiction since, under Section 63 of the LGC, the power to investigate and impose administrative sanctions, as well as to effect their preventive suspension, had now been vested with OP. Hagad denied this MTD and preventively suspended Ouano et al. SC HELD that: 1) There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act; 2) The 60-month and 60-day preventive suspension under Ombudsman Act and LGC respectively, govern differently; 3) There is no need for hearing before preventive suspension; and 4) Ouano et al should have filed a petition for certiorari with SC, not prohibition with RTC. 86
DOCTRINE: In order to justify the preventive suspension of a public official under Section 24 of RA 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) 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. Sangguniang Barangay v. Martinez (2008) SUMMARY: The kagawads of Bgy. Don Mariano Marcos charged P/B Martinez before the Sangguniang Bayan of Bayombong with misconduct, dishonesty, and graft for pocketing money from junkets and garbage recycling projects. SBayan found him guilty and ordered his removal. The mayor admitted that SBayan cannot order Martinez’ removal but did nothing about it, so Martinez went to court. RTC invalidated the SBayan order. The kagawads appealed to the SC, to no avail. HELD: LGC 60 and jurisprudence evince the intent to place in the courts the exclusive jurisdiction to decree the removal of elective local officials, to ensure that they would not be removed by a body as highly politicized and capricious as the Sanggunians. This does not violate the separation of powers, since the courts have a constitutional duty to ascertain if the other branches committed grave abuse of discretion. The direct resort to the court was proper, because exceptions to the rule of exhaustion of administrative remedies obtain in the case at bar. DOCTRINE: LGC 61 provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under LGC 60. If the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the D2016 | Public Officers | Prof. G. Dizon-Reyes
case should be filed with the RTC. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. The most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court.
I. Impeachment Constitution, Art. XI, Secs. 2-3 †
Section 2 . The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third 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. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period 87
of one year. (6) 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 two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any 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. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Black’s: The act (by a legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official's alleged misconduct. Mechem: Impeachment is an extraordinary proceeding. The essence of impeachment is a national inquest upon the conduct of public men (Federalist No. 65 by Alexander Hamilton) Intended primarily for the protection of the state, not for the punishment of the offender (Sinco) 2 views on the grounds for impeachment o First view: Grounds must constitute grave offenses under the RPC, or must be criminally punishable at the least o Second view: Grounds need not amount to a criminal offense to constitute sufficient grounds for impeachment (more plausible view). Black’s: The grounds upon which an official can be removed do not have to be criminal in nature. They usually involve some type of abuse of power or breach of the public trust. An impeachable officer cannot be subjected to disbarment proceedings during his incumbency (In re Gonzales). Francisco, Jr. v. House of Representatives (2003) SUMMARY: Two impeachment complaints were brought against Chief Justice Davide, the second of which is D2016 | Public Officers | Prof. G. Dizon-Reyes
being assailed as violating the constitutional bar against the filing of more than one impeachment complaint against the same official within one ear. The argument of the House of Representatives is that the term “initiate” does not mean to “file,” which could only be done in the three ways stated in Sec. 3(2) of Art. XI. Hence, the resolution of these petitions hinges on the interpretation of if word “initiate.” The term should be understood as ordinary understand it: to begin, to commence, or set going, to perform the first action. The framers of our Constitution also intended that the term starts with the filing of the complaint. ConComs Regalado and Maambong, and also Father Bernas, are in agreement with this interpretation. DOCTRINE: When Section 3(5), Article XI says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. The framers intended "initiation" to start with the filing of the complaint. An impeachment proceeding is not a single act. It is a complexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.
J. Abolition of Office
Power to abolish lies with the authority which created the office (Constitutional or statutory); but Congress may delegate the power to the President. Congress has power to abolish office without infringing on the rights of the affected officer. In the absence of a Constitutional prohibition (e.g., Art. VIII, Sec. 2), an office created by Congress may be abolished by Congress during the term of the incumbent. Essence of abolition: Intent to do away with the office wholly and permanently o NLTDRA v. CSC: The question of whether or not a law abolishes an office is one of legislative intent about which there can be no controversy whatsoever if there is an explicit declaration in the law itself. In removal, the office subsists after the officer is ousted. In abolition, the office is done away with and the officer is “removed” as a consequence. The right protected by security of tenure is thus also abolished, since the office itself has been 88
done away with. As to effect, however, there is really no difference. Abolition in bad faith is invalid, as when it is used to discharge the incumbent in violation of the civil service law. Dario v. Mison: There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. Requisites of valid abolition Good faith Not personally or politically motivated; or intended to circumvent security of tenure Not implemented in violation of law Reorganization Constitution, Art. XVIII, Sec. 16 Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. see Dario v. Mison and allied cases, p. 2 onwards. SOTC v. Mabalot: Sec. 17, Article VII of the Constitution mandates that “The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed...” The Administrative Code of 1987 also provides legal basis for the Chief Executive’s authority to reorganize the National Government. Reorganization is regarded as valid provided it is pursued in good faith. As a general rule, reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. There is no vested property right to be reemployed in a reorganized office (MelencioHerrera, dissenting in Dario v. Mison). Removal must be distinguished from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove D2016 | Public Officers | Prof. G. Dizon-Reyes
redundancy of functions. In the latter case the Government is obliged to prove good faith. In case of removals undertaken to comply with clear and explicit, constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it (automatic vacancies). The 1987 Constitution does not provide for "automatic" vacancies. “Removals” made in the course of reorganization must also pass the test of good faith. “Automatic vacancy”: Transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. Canonizado v. Aguirre (2000) SUMMARY: Canonizado et al. were former Commissioners of NAPOLCOM. Upon the passing of RA 8551, they were removed from office. They filed the instant Petition questioning the constitutionality of RA 8551. The SC held that they was no abolition nor reorganization of their office; thus, their removal from office was unconstitutional for being violative of the right to security of tenure. Canonizado, et al. are entitled to reinstatement and backwages. DOCTRINE: Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. Under RA 6975, the NAPOLCOM was described as a collegial body within the DILG whereas under RA 8551 it is made "an agency attached to the [DILG] for policy and program coordination.”
K. Conviction of Crime
Conviction of a crime involving moral turpitude is a ground for disciplinary action. RPC 30-31 Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. X X X 3. The disqualification for the offices or public employments and for the exercise of any of the rights 89
mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. Art. 31. Effect of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected; 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Perpetual/temporary absolute disqualification or special disqualification serves to terminate official relations, since it operates as a deprivation of public office held by the offender, regardless of how it was conferred. Conversely, an acquitted officer must be reinstated. Conviction to be a mode of termination must emanate from a court. It contemplates a court finding of guilt and a judgment upholding and implementing such finding. Plea of guilty and judgment in accordance with such plea also amounts to conviction. Effect of pardon see Risos-Vidal v. COMELEC, supra RPC 36 Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. Pardon does not ipso facto restore a convicted felon to the office forfeited by reason of the conviction. Pardon restores the convict’s eligibility for appointment or election. It removes the disqualification and nothing more. Garcia v. Commission on Audit (1993) SUMMARY: Garcia was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, Garcia was summarily dismissed from the service. He was administratively charged and found guilty of dishonesty for the loss of several telegraph poles. He did not appeal from the decision. Based on the same facts in the administrative case, a criminal case for qualified theft was filed against D2016 | Public Officers | Prof. G. Dizon-Reyes
him with the CFI of Quezon. He was acquitted. In view of his acquittal, Garcia sought reinstatement to his former position. Garcia was granted executive clemency was granted pursuant to OP Resolution 1800 DOCTRINE: General Rule - Since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. Exception - If the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt.
L. Recall LGC 69-75, as amended Section 69. By Whom Exercised. - The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs. Section 70. Initiation of the Recall Process. — (a) The Recall of any elective provincial, city, municipal or barangay official shall be commenced by a petition of a registered voter in the local government unit concerned and supported by the registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected subject to the following percentage requirements: (1) At least twenty-five percent (25%) in the case of local government units with a voting population of not more than twenty thousand (20,000); (2) At least twenty percent (20%) in the case of local government units with a voting population of at least twenty thousand (20,000) but not more than seventyfive thousand (75,000): Provided, That in no case shall the required petitioners be less than five thousand (5,000); (3) At least fifteen percent (15%) in the case of local government units with a voting population of at least seventy-five thousand (75,000) but not more than three hundred thousand (300,000): Provided, however, That in no case shall the required number of petitioners be less than fifteen thousand (15,000); and (4) At least ten percent (10%) in the case of local government units with a voting population of over three hundred thousand (300,000): Provided, however, That in no case shall the required petitioners be less than forty-five thousand (45,000) 90
(b) The process of recall shall be effected in accordance with the following procedure: (1) A written petition for recall duly signed by the representatives of the petitioners before the election registrar or his representative, shall be filed with the Comelec through its office in the local government unit concerned. (2) The petition to recall shall contain the following: (a) The names and addresses of the petitioners written in legible form and their signatures; (b) The barangay, city or municipality, local legislative district and the province to which the petitioners belong; (c) The name of the official sought to be recalled; and (d) A brief narration of the reasons and justifications therefor. (3) The Comelec shall, within fifteen (15) days from the filing of the petition, certify to the sufficiency of the required number of signatures. Failure to obtain the required number of signatures automatically nullifies the petition; (4) If the petition is found to be sufficient in form, the Comelec or its duly authorized representative shall, within three (3) days from the issuance of the certification, provide the official sought to be recalled a copy of the petition, cause its publication in a national newspaper of general circulation and a newspaper of general circulation in the locality, once a week for three (3) consecutive weeks at the expense of the petitioners and at the same time post copies thereof in public and conspicuous places for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of allowing interested parties to examine and verify the validity of the petition and the authenticity of the signatures contained therein. (5) The Comelec or its duly authorized representatives shall, upon issuance of certification, proceed independently with the verification and authentication of the signatures of the petitioners and registered voters contained therein. Representatives of the petitioners and the official sought to be recalled shall be duly notified and shall have the right to participate therein as mere observers. The filing of any challenge or protest shall be allowed within the period provided in the immediately preceding paragraph and shall be ruled upon with finality within fifteen (15) days from the date of filing of such protest or challenge; (6) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be D2016 | Public Officers | Prof. G. Dizon-Reyes
recalled. Sec. 71. Election on Recall. — Upon the filing of a valid petition for recall with the appropriate local office of the Comelec, the Comelec or its duly authorized representative shall set the date of the election or recall, which shall not be later than thirty (30) days upon the completion of the procedure outlined in the preceding article, in the case of the barangay, city or municipal officials, and forty-five (45) days in the case of provincial officials. The officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. Section 72. Effectivity of Recall. - The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. Section 73. Prohibition from Resignation. - The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. Section 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. Section 75. Expenses Incident to Recall Elections. - All expenses incident to recall elections shall be borne by the COMELEC. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the COMELEC for the conduct of recall elections. Speedy remedy for the removal of an elective official, to be exercised by the electorate. Political in nature. An exercise of the power of removal by the people themselves. There is only one ground for recall: loss of confidence. There is no need for the people to bring up any charge of abuse or corruption against the local elective officals who are the subject of any recall petition (Pimentel). Garcia v. COMELEC (1993)
SUMMARY: Various local officials of Bataan convened a People’s Recall Assembly to initiate a recall election against Governor Garcia. Garcia filed a petition before the SC assailing the constitutionality of LGC 70 which provided for a PRA. The SC held that the law is not unconstitutional. The Constitution did not limit the modes of initiating recall. The officials who were part of the PRA were likewise acting in behalf of the people. DOCTRINE: The provision is constitutional. Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. The legislative records reveal that there were two principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses. There is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." (NB: RA 9244 later eliminated the PRA as a mode of initiating recall.) Angobung v. COMELEC (1997) SUMMARY: Angobung won as Mayor of Tumauini, Isabela in the 1995 local elections. De Alban, his opponent, filed a petition for recall. COMELEC granted her petition even though it was just filed and signed by 1 registered voter (De Alban) and also set a date for further signing by the rest of the registered voters. HELD: The COMELEC erred in granting the petition because the LGC clearly states that the recall must be initiated via a petition of at least 25% of the total number of voters, so such requirement was not met with just one signature. Such is the intent of the legislature in providing a remedy for the people, and not for the loser of an election. Also, the contention that the election is barred because a barangay election is scheduled within 1 year does not hold water. There can be no application of the 1-year bar when the same is being invoked by a mayor in view of the approaching barangay elections. DOCTRINE: LGC 69(d) expressly provides that "recall of any elective…municipal…official may also be validly initiated upon petition of at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected". Only a petition of at least 25% of the total number of registered voters, may validly initiate recall proceedings. Taking note of the phrase "petition of at least 25%", the law does not state that the petition must be signed by at least 25% of the registered voters; rather, the petition must be "of" or by, D2016 | Public Officers | Prof. G. Dizon-Reyes
at least 25% of the registered voters, i.e., the petition must be filed, not by one person only, but by at least 25% of the total number of registered voters. NOTE: This ruling came before LGC 70 was amended; thus it’s no longer good law. §70(b)(2)(a) as it stands says “and their signatures” (Gatmaytan).
M. Disciplinary Cases Governing Law Administrative proceedings against public officers are generally governed by the Civil Service Law and its Implementing Rules, subject to the provisions of other laws applicable to specific classes of public officers. Officers not under the coverage of the disciplinary provisions of the Civil Service Law include local elective officials (governed by LGC and DILG-AO 23, see Joson v. Torres), police officers (the Civil Service Law applies only insofar as it is consistent with RA 6975, the Police Professionalization Law) Jurisdiction of the Civil Service Commission Civil Service Law, Sec. 47 Section 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with demotion in rank or salary or transfer, 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 or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (2) 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 decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty 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 92
concerned. (3) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department within the period specified in Paragraph (4) of the following Section. (4) 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 an appeal. Similar to the exclusive jurisdiction of the COMELEC and the COA over their respective spheres, the CSC is the single arbiter of all controversies pertaining to civil service positions in the government service, whether career or non-career. It has the authority to hear and decide administrative disciplinary cases directly or on appeal, and to enforce its decisions, resolutions, or orders. In its investigations, the CSC is not bound by technical rules of procedure and evidence applicable in judicial proceedings. Remedy to enforce a final and executory decision of the CSC = Mandamus CSC has no authority to force UP to dismiss a faculty member, since institutions of higher learning such as UP enjoy academic freedom under the Constitution (UP v. CSC). Procedure in administrative cases Civil Service Law, Section 48. Procedure in Administrative Cases Against Non-Presidential Appointees. (1) 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. (2) In the case of a complaint filed by any other persons, the complainant shall submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. If a prima facie case exists, he shall notify the respondent in writing, of the charges against the latter, to which shall be attached copies of the complaint, sworn statements and other documents submitted, and the 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 D2016 | Public Officers | Prof. G. Dizon-Reyes
and documents, in which he shall indicate 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. (3) 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. (4) The investigation shall be held not earlier than five days nor later than ten days from the date of receipt of respondent's answer by the disciplining authority, and shall be finished within thirty days from the filing of the charges, unless the period is extended by the Commission in meritorious cases. 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. (5) The direct evidence for the complainant and the respondent shall consist of the sworn statement and documents submitted in support of the complaint or answer, as the case may be, without prejudice to the presentation of additional evidence deemed necessary but was unavailable at the time of the filing of the complaint or answer, upon which the cross-examination, by respondent and the complainant, respectively, shall be based. Following cross-examination, there may be redirect and re-cross-examination. (6) 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. (7) The investigation shall be conducted only for the purpose of ascertaining the truth and without necessarily adhering to technical rules applicable in judicial proceedings. It shall be conducted by the disciplining authority concerned or his authorized representative. The phrase "any other party" shall be understood to be a complainant other than those referred to in subsection (a) hereof. Section 49. Appeals. (1) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward 93
the records of the case, together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date of receipt thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision. (2) A petition for reconsideration shall be based only on any of the following grounds: (a) new evidence has been discovered which materially affects the decision rendered; (b) the decision is not supported by the evidence on record; or (c) error of law or irregularities have been committed which are prejudicial to the interest of the respondent: Provided, That only one petition for reconsideration shall be entertained. Section 50. Summary Proceedings. - No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present: (1) When the charge is serious and the evidence of guilt is strong; (2) 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 (3) When the respondent is notoriously undesirable. Resort to summary proceedings by the disciplining authority shall be done with utmost objectivity and impartiality to the end that no injustice is committed: Provided, That removal or dismissal except those by the President, himself or upon his order, may be appealed to the Commission. Section 51. 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, 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. Section 52. Lifting of Preventive Suspension Pending Administrative Investigation. - 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: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the D2016 | Public Officers | Prof. G. Dizon-Reyes
period of delay shall not be counted in computing the period of suspension herein provided. Section 53. Removal of Administrative Penalties or Disabilities. - In meritorious cases and upon recommendation of the Commission, 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. CSC can appeal a decision adverse to it, since it is adversely affected by such decision which seriously prejudiced the civil service system; as an aggrieved party, it may appeal adverse CA decisions to the SC (CSC v. Dacoycoy). There is no private interest in administrative proceedings. Complainant is really a mere witness, thus he has no personality to appeal, unless the respondent fails to question such lack of personality; and his death or desistance does not warrant the dismissal or non-continuance of the proceedings (Tudtud v. Coliflores). Merit System Protection Board Civil Service Law, Section 16. Offices in the Commission. - The Commission shall have the following offices: xxx (2) The Merit System Protection Board composed of a Chairman and two (2) members shall have the following functions: (a) Hear and decide on appeal administrative cases involving officials and employees of the Civil Service. Its decision shall be final except those involving dismissal or separation from the service which may be appealed to the Commission; (b) Hear and decide cases brought before it on appeal by officials and employees who feel aggrieved by the determination of appointing authorities involving personnel actions and violations of the merit system. The decision of the Board shall be final except those involving division chiefs or officials of higher ranks which may be appealed to the Commission; (c) Directly take cognizance of complaints affecting functions of the Commission, those which are unacted upon by the agencies, and such other complaints which require direct action of the Board in the interest of justice; (d) Administer oaths, issue subpoena and subpoena duces tecum, take testimony in any investigation or inquiry, punish for contempt in accordance with the same procedures and penalties prescribed in the Rules of Court; and (e) Promulgate rules and regulations to carry out the 94
functions of the Board subject to the approval of the Commission. xxx Under the old Civil Service Decree (PD 807), it was held that CSC cannot take original cognizance of cases except those specified in Sec. 9(j) of the Decree (GSIS v. CSC, 1991); and that the CSC had no jurisdiction over appeals from MSPB decisions exonerating officers from administrative charges, since no appeal from such decisions is provided for (Navarro v. CSC, del Castillo v. CSC). The Ombudsman RA 6770 SECTION 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. SECTION 22. Investigatory Power. — The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. SECTION 23. Formal Investigation. — (1) Administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. (2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding Five thousand D2016 | Public Officers | Prof. G. Dizon-Reyes
pesos (P5,000.00). (3) In any investigation under this Act the Ombudsman may: (a) enter and inspect the premises of any office, agency, commission or tribunal; (b) examine and have access to any book, record, file, document or paper; and (c) hold private hearings with both the complaining individual and the official concerned. SECTION 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. Preventive Suspension RA 3019 SEC. 13. Suspension and loss of benefits.—Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment he snail lose all retirement or gratuity benefits under any law, bur if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government The suspension under this law is mandatory after the validity of the information is determined (Socrates v. Sandiganbayan). Suspension under this law is distinct from the Congressional power to suspend its own
members. Members of Congress are excluded from the coverage of RA 3019.
LGC 63 Section 63. Preventive Suspension. – (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a component city or municipality; or (3) By the mayor, if the respondent is an elective official of the barangay. (b) Preventive suspension 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: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (c) 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 one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. 2 kinds: pending investigation and pending appeal Suspension under the Ombudsman Law, and under the LGC are also distinct. See Hagad v. Gozo-Dadole. The length of suspension under the Ombudsman Law is discretionary upon the Ombudsman. Preventive suspension pending investigation o See Civil Service Law, Sec. 51 o May be imposed even before charges are heard and before the respondent is given a chance to answer o Preliminary in nature and usually immediately effective and executory. Prior notice and hearing are not required D2016 | Public Officers | Prof. G. Dizon-Reyes
Purpose of suspension pendente lite is to prevent the respondent from using his position to intimidate or influence the case. Mere possibility of such influence is sufficient. o Preventive suspension is not a penalty. Thus, it can be imposed immediately after charges are brought, even before these are heard. o Period of preventive suspension is not considered part of the actual penalty of suspension. Period of preventive suspension is not credited to the final penalty. o If the investigation is not finished within the period of the preventive suspension, the suspension must be lifted and the respondent should be reinstated. o No compensation is due for the period of suspension pending investigation. Preventive suspension pending appeal o Preventive suspension pending appeal is actually punitive although it is considered illegal if respondent is exonerated and the adverse decision is reversed. o If the decision is affirmed, the period of suspension pending appeal becomes part of the final penalty of suspension or dismissal. o Backwages for preventive suspension pending appeal may be collected if the respondent is exonerated. Being found liable for a lesser offense is not exoneration. Preventive suspension imposed for an unreasonable length of time may be used to shorten an officer’s term. In such a case, this is tantamount to a removal without just cause. Lacson v. Roque, supra o Whether decreed as a punishment in itself, or as auxiliary in the proceedings for removal so as to tie the defendant's hand pending his investigation, suspension ought to be based on the same ground upon which removal may be effected or is sought. o When exercised as a mere incident to the power to remove, the power to suspend cannot be broader than the power to which it is ancillary. A stream cannot rise higher than its source.
In their effects, the difference between the power to remove and the power to suspend is only one of degree. o Suspension is a qualified expulsion, and whether termed suspension or expulsion, it constitutes either temporary or permanent disfranchisement. It is an ad interim stoppage or arrest of an official power and pay. o When the "suspension is to continue until the final disposition" of a criminal prosecution, it might become a virtual removal. Ombudsman v. CA (2007) SUMMARY: Bacolod City Treasury Operations Assistant Magbanua was audited and held to account for P265,450. Before the Ombudsman, Magbanua blamed Cash Clerk Baja for making fictitious vouchers. Both were found guilty - Magbanua for neglect (6 months suspension) and Baja for dishonesty (dismissal). On review, Magbanua was also dismissed. On certiorari to CA, penalty was rescinded on the ground that Ombudsman had no authority to impose penalties. On certiorari by the Ombudsman, SC reversed the CA because it relied on an obiter. The Constitution and the Ombudsman Law clearly empower the Ombudsman to directly impose the penalty of dismissal on employees subject to its jurisdiction. DOCTRINE: Tapiador v. Office of the Ombudsman is not authority for saying that the Ombudsman has no power to impose penalties on public officers. It has been reversed. RA 6770 reveals the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty. Class Notes: Magbanua was an accountable officer as defined in EO 292 (supra). Marohomsalic v. Cole (2008) SUMMARY: Marohomsalic was ordered dismissed due to the Ombudsman finding that he requested and received money from Cole in connection with a transaction in which he was involved in his official capacity as Special Land Investigator I of PENRODENR. Marohomsalic asked for money to secure the D2016 | Public Officers | Prof. G. Dizon-Reyes
reversal of the PENRO decision against Cole. Marohomsalic challenged the Ombudsman’s jurisdiction in dismissing him. Citing Sec. 12, Art. XI of the Constitution, the SC declared that the Ombudsman did have such power, as a corollary to its disciplinary authority in relation to government employees. DOCTRINE: The jurisdiction of the Ombudsman over disciplinary cases against government employees is vested by no less than Sec. 12, Article XI of the Constitution. Part of such disciplinary authority in administrative cases is the power to investigate and prosecute, in accordance with the requirements laid down by law. One such requirement is that substantial evidence must always support any finding. Joson v. Torres (1998) SUMMARY: Tinio, V-Gov. of Nueva Ecija, and several members of the SP filed a complaint with the OP against Joson, the governor. They alleged that he had acted threateningly towards them due to their opposition to a legislative measure which would allow Nueva Ecija to contract a P150M loan. The President endorsed the matter to the DILG Sec, who directed Joson to file his answer. Joson failed to file an answer after several extensions, and was declared in default. Upon filing a MR of the order of default, he was again given an extension. Instead of filing his answer, he filed a MTD alleging lack of jurisdiction on the part of the DILG. This was denied. He filed his answer, which was admitted. The DILG directed the parties to submit position papers, but none did, as Joson at that time had filed a motion for formal investigation instead while Tinio et al. had submitted the case for decision based on the pleadings. The DILG found Joson guilty, and the OP adopted the DILG’s findings and meted out the penalty of 6 mos. suspension. DOCTRINE: The SC held that the DILG had jurisdiction and authority over the case, as the disciplining authority was different from the investigating authority. There was no undue delegation as only the power of investigation was delegated, not the power to discipline. Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency. However, Joson was denied due process, which invalidated the decision of the Exec Sec. Joson had the right to have a formal investigation conducted, as provided for in the LGC and AO 23. Socrates v. Sandiganbayan (1996) SUMMARY: During the time Rodriguez was OIC Governor of Palawan, he and the Provincial Board filed before the Office of the Tanodbayan two complaints against Socrates for violations of RA 3019, Secs. 3(b),
(a), and (g). The prosecution filed a Motion to Suspend Accused Pendente Lite pursuant to Sec. 13 of RA 3019. DOCTRINE: The preventive suspension may issue pending the resolution of the validity of the informations. Preventive suspension is not a penalty. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. Thus, the accused elective public officer does not stand to be prejudiced by the immediate enforcement of the suspension order in the event that the information is subsequently declared null and void on appeal and the case dismissed as against him. Public policy dictates that the protection of the public interest prevail over the private interest of the accused. Layus v. Sandiganbayan (1999) SUMMARY: Claveria, Cagayan Mayor Layus was charged with estafa through falsification of public documents. The prosecution filed with the Sandiganbayan a Motion to Suspend Accused Pendente Lite. The Sandiganbayan granted the motion. She argues that the Sandiganbayan has no jurisdiction as she only receives a salary which is classified at SG 25. DOCTRINE: The fact that Layus is getting an amount less than that prescribed for SG 27 is entirely irrelevant for purposes of determining the jurisdiction of the Sandiganbayan. That Layus is receiving a rate within SG 25 should not, however, be construed to mean that she falls within the classification of SG 25. The suspension pendente lite is in accordance to Sec. 13 of RA 3019. This provision makes it mandatory for the Sandiganbayan to suspend any public officer who has been validly charged with a violation of RA 3019, as amended, or Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property. The imposition of the suspension is not automatic or self-operative. There must first be a valid information, determined at a pre-suspension hearing, where the court is furnished with the basis to suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceedings which impairs its validity. Castro v. Gloria (2001) SUMMARY: Gutang filed a complaint for disgraceful and immoral conduct with the DECS against Castro for allegedly having an illicit affair with his wife. The DECS Reg. Office declared Castro guilty and dismissed him from service. He asked reconsideration and filed several incidents and a motion for review to the DECS Sec. but he was always denied; hence, he filed a petition for mandamus with RTC to reduce his penalty from dismissal to 1 yr suspension. HELD: Mandamus is D2016 | Public Officers | Prof. G. Dizon-Reyes
granted. While he was guilty of the administrative charge, the penalty of dismissal for such act is not proper. Specifically under Sec. 23, Rule XIV of the Rules Implementing Book V of E.O. 292, the proper penalty for st the 1 offense of disgraceful and immoral conduct is only suspension for 6 months and 1 day to 1 year and not dismissal. Caniete v. SECS (2000) SUMMARY: QC Public school teachers Caniete and Rosario were dismissed from the service after DECS Secretary Carino found them guilty of participating in the strike held on Sept. 20-21, 1990. On appeal, the Merit System Protection Board set aside their dismissal. They were found guilty of gross violation of Civil Service rules. The penalty was modified to 3 months suspension without pay. Aug. 30, 1994 - On appeal, the CSC found them guilty of going on absence without approved leave. They were reprimanded and reinstated WITHOUT back salaries. MR denied; CA denied; hence this petition. DOCTRINE: Although “employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree x x x that they are not entitled to compensation for the period of suspension pending appeal if eventually they are found innocent”. 2 kinds of preventive suspension: PS pending investigation under §51 and PS pending appeal if the penalty imposed is suspension or dismissal and, after review, respondent is exonerated (§47). The employee who is placed under preventive suspension pending investigation is not entitled to compensation because such suspension is not a penalty only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, there is right to compensation for preventive suspension pending appeal if the respondent is exonerated, because this kind of preventive suspension is punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Nalupta, Jr. v. Tapec (1993) SUMMARY: Honesto Tapec was charged with immorality for cohabiting with his paramour, with whom he had 2 children, and for discharging the duties of Barangay Captain despite holding the position of Deputy Sheriff. The executive judge handling the case sent his branch clerk of court to verify the birth certificates of the 2 children, and later found Tapec guilty as charged, recommending imposition of the appropriate penalty. SC found that the Judge’s report was supported by evidence, leading it to concluded that Tapec was indeed guilty of immoral conduct, which subjected Tapec to disciplinary action under the Civil Service Decree. 98
DOCTRINE: The act of having illicit relations is considered disgraceful and immoral conduct within the purview of Section 36 (b)(5) of PD 807 (Civil Service Decree), for which respondent may be subjected to disciplinary action. OCA v. Librado (1996) SUMMARY: Vicente Librado, deputy sheriff, was convicted for selling and possessing illegal drugs. The Office of the Court Administrator (OCA) filed an admin complaint against him, and he was suspended from office. Librado admits he was convicted but claims he is on probation. Exec Judge of RTC Iligan recommended that in view of the probation, a penalty short of dismissal should be meted out against Librado for his rehabilitation. SC ruled that Librado must be dismissed. DOCTRINE: The image of the judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose of the Probation Law is to save valuable human material, it must not be forgotten that unlike pardon probation has been convicted. The reform and rehabilitation of the probationer cannot justify his retention in the government service. He may seek to reenter government service, but only after he has shown that he is fit to serve once again. It cannot be repeated too often that a public office is a public trust, which demands of those in its service the highest degree of morality. OCA v. Hon. Veneracion (2000) SUMMARY: Santos filed with the Court Administrator, a complaint against Rogelio A. Tria, "Acting Sheriff IV, Branch 47, RTC, Manila," assailing his acts in the implementation of a writ of execution in a civil case for support. "Sheriff" Tria was not an employee of the judiciary at the time he acted as "sheriff" in Civil Case No. 97-84356. He was actually first a process server before being transferred to the Economic Intelligence and Investigation Bureau (EIIB), Department of Finance, as an Intelligence Officer. Judge Veneracion assigned Deputy Sheriff IV Antonio Velasco to the Office of the Clerk of Court in order that Rogelio A. Tria, who was not an employee of the judiciary, could be designated to perform the functions of "Acting Deputy Sheriff IV" considering the position vacant and authorized to carry out the writ of execution in Civil Case No. 97-84356. DOCTRINE: Judge Veneracion failed to observe Constitutional and regulatory prescriptions. He had no power to assign on temporary detail his duly appointed sheriff to the office of the clerk of court. The authority to detail employees of his branch to the office of the clerk of court is vested in the executive judge. His actions constitute usurpation of the appointing authority of the Supreme Court amounting to grave misconduct in office.
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RTC-Makati Movement Against Graft and Corruption v. Dumlao (1995) SUMMARY: Clerk of Court withheld employees’ salaries to force them to take usurious loans from him. His defense: the Usury Law has been suspended; and that he was on a secret mission from OCA to expose corruption. He was also accused of collecting unauthorized fees from a litigant seeking to calendar his case. In defense, he said that he did not know the Manual for Clerks of Court. SC dismissed the secret agent/usurer/clerk of court. DOCTRINE: Public service requires utmost integrity and strictest discipline. A public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task. The Office of Clerk of Court is the hub of activities, both adjudicative and administrative and who occupy a position of great importance and responsibility in the framework of judicial administration. Branch clerks of court must realize that their administrative functions are just as vital to the prompt and proper administration of justice. Nieva v. Alvarez-Edad (2005) SUMMARY: Nieva filed an administrative complaint against Alvarez-Edad, Branch Clerk of Court of MeTC Br. 32, QC, for allegedly demanding or receiving commissioner’s fee for reception of evidence ex-parte, among others. HELD: She is administratively liable. To be entitled to reasonable compensation, a commissioner must not be an employee of the court. Edad overstepped her powers and responsibilities. She demanded and received a commissioner’s fee from a litigant in an exparte proceeding. Such act violates Section B, Chapter II of the Manual for Clerks of Court which expressly prohibits a Branch Clerk of Court from receiving commissioner’s fee. CSC v. Dacoycoy, supra DOCTRINE: Nepotism under the Civil Service Law covers four situations. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. The basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one. The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.
If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. Santos v. Macaraig (1992) SUMMARY: Philippine Ambassador to UN-Geneva Santos was going to New York for a vacation. She was able to get a big discount on a package deal for plane tickets. However, before her scheduled vacation, she was asked to join the Philippine delegation for a UNCTAD conference in Havana. Since the trip involved a New York connecting flight, she decided to use her discounted tickets, which included fare for her baby daughter. After the trip Santos was reimbursed for the cost of her discounted tickets, but the DFA asked her to return the amount corresponding to her kid’s fare. Under the impression (which the SC upheld) that the tickets were packaged together, Santos returned the whole amount reimbursed to her and then asked for the reimbursement of the actual amount of an economy roundtrip ticket, to which she was entitled under the Foreign Service junketing rules (an amount much higher than what she got her tickets for). DFA people took this as bitchiness on her part so administrative charges were filed against her. DFA internal committees found her guilty of misconduct. She was reprimanded and recalled to Manila. On appeal to the OP, she was found guilty of dishonesty for not telling the DFA that the tickets she used included fare for her kid, which the government reimbursed. SC reversed the finding of dishonesty, holding that Santos was acting in good faith and without intent to defraud the government. Mere inadvertence on her part to ask DFA permission before using her discounted tickets cannot be taken as dishonesty. It was unreasonable for the Government to only shoulder Santos’ fare when in fact the tickets she used were packaged together and inseparable; even more so considering that Santos was able to get tickets for 2 persons for a much lower price than what is standard for a ticket for 1 person only, thus saving the government money. Her recall to Manila was upheld, on the basis of the presidential power over foreign relations and the fact that Santos occupied a primarily confidential position which was terminable at the President’s desire. DOCTRINE: The presidential prerogative to determine the assignments of the country’s diplomatic personnel is unquestionable. Considering that the conduct of foreign relations is primarily an executive prerogative, courts may not inquire into the wisdom or unwisdom in the exercise thereof. The power to conduct foreign policy and its necessary element of assigning the country’s representatives abroad is best addressed to the wisdom of the executive branch and not to be unduly interfered with by the judiciary. D2016 | Public Officers | Prof. G. Dizon-Reyes
Doctrine on tenure of primarily confidential appointees reiterated; quotable quote: “It is the fact of loss of confidence, not the reason for it, that is important and controlling.” Garciano v. Oyao (1981) SUMMARY: 12 years after incurring his debt, Clerk of Court Oyao has still not been able to pay it, causing his creditor Garciano to file a suit against him. The SC found Oyao’s explanations insufficient, and proceeded to admonish him to pay his debt. The Court points out that caution should be taken to prevent the development of suspicious circumstances that might impair the image of public office. Situations that might arouse suspicion that a public officer is utilizing his/her position for personal gain or advantage should be avoided. DOCTRINE: The conduct and behavior of everyone connected with an office charged with the dispensation of justice, like the courts below, from the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of responsibility. His conduct, at all times, must not only be characterized with propriety and decorum but above all else must be above suspicion
- END References Agpalo, Administrative Law, Law on Public Officers, and Election Law (2005) Civil Service Commission, Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (2007) de Leon, The Law on Public Officers and Election Law (2011) Gatmaytan, Local Government Law and Jurisprudence (2014) Mechem, A Treatise on the Law of Public Offices and Officers (1890) Nachura, Outline Reviewer in Political Law (2006) Santos, Karichi PubOff Notes (2011)