PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) I.

. GENERAL PRINCIPLES Public Office - Right, authority, duty, created and confer red by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign po wer of government to be exercised by him for the benefit of the people. - Elemen ts: 1. created by law or by authority of law 2. possess a delegation of a portio n of the sovereign powers of government, to be exercised for the benefit of the public 3. powers conferred and duties imposed must be defined by the legislature or by legislative authority 4. duties must be performed independently and witho ut control of the superior power UNLESS they be those of an inferior or subordin ate officer created or authorized by the legislature and placed under the genera l control of a superior officer or body 5. permanence or continuity - Creation: 1. Constitution 2. statutory enactment 3. authority of law Public Officer - a pe rson who holds office - Public Officer, as understood under criminal law Article 203. any person who, by direct provision of law, popular election or appointmen t by competent authority shall take part in the performance of public functions in the Government; or shall perform in said Government public duties as am emplo yee, agent, or subordinate official of any rank or class, shall be deemed to be a public officer. RA 3019. includes elective and appointive officials and employ ees, permanent or temporary whether in the classified, unclassified or exempt se rvices, receiving compensation, even nominal from the government. PB 807. Career and Non-career services (formerly, classified, unclassified or exempt) Distingu ished from Clerk or Employee - Officer, duties not being of clerical or manual n ature, involves the exercise of discretion in the performance of the functions o f government. - Includes any government employee, agent or body having authority to do the act or exercise that function. Main characteristic that distinguishes a Public Officer creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public. 1

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) II. ELIGIBILITY AND QUALIFICATIONS Qualifications 2 Different Senses: 1. endowme nts, qualities, attributes which make an individual eligible for public office m ust possess at the time of the appointment/election and continuously for as long as the official relationship exists 2. act of entering into the performance of the functions of public office Property qualifications may not be imposed for th e exercise of the right to run for public office. Loss of any of the qualificati ons during incumbency will be a ground for termination. Failure of an officer to perform an act required by law could affect the officers title to the given offi ce. Prolonged failure or refusal to take the oath of office could result in forf eiture of the office. BP 881 the office of any official ELECTED who fails or refu ses to take his oath of office within 6 months from his proclamation shall be co nsidered vacant UNLESS failure is for a cause/s beyond his control. Oath of offi ce is a qualifying requirement for public office. Until he is qualified, the hol dover officer is the rightful occupant. Oath of office taken before one who has no authority to administer oath, is no oath at all. Pendency of election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Authority to Prescribe Qualifications Qualification prescribed by Constitution generally exclusive unless Constitution provides otherwise Public officers created by statute Congress has plenary powers to prescribe qualificati ons, provided: 1. germane to the objectives for which the office was created 2. qualifications are not too specific as to fit a particular identifiable person t hat would deprive appointing authority of discretion in the selection of the app ointee Disqualifications Authority Legislature has the right to prescribe disqua lifications in the same manner as it can prescribe qualifications. Limitation: d o not violate the Constitution Disqualification may be because of unfitness for public office or because the person is rendered ineligible for the office. 2

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) General Disqualifications under the Constitution 1. No candidate who lost in an election, shall, within 1 year after such election, be appointed to any office i n the Government. 2. No elective official shall be eligible for appointment or d esignation in any capacity to any public office or position during his tenure. 3 . No appointive official shall hold any other position in the Government, unless otherwise allowed by law or the primary functions of his office. *ex-officio ca pacity Specific Disqualification under the Constitution 1. President, VP, Cabine t Members and their deputies and assistants shall not hold any other office or e mployment during their tenure, UNLESS otherwise provided in the Constitution. 2. No Senator or Member of the HR may hold any other office or employment in the G overnment including GOCC, during his term without forfeiting his seat. Neither s hall he be appointed to any office which may have been created or the emoluments increased during the term for which he was elected. 3. Members of the SC and of other courts established by law shall not be designated to any agency performin g quasi-judicial or administrative functions. 4. No member of the Constitutional Commission shall during his tenure, hold any other office or employment. Applie s to Ombudsman and his deputies. 5. Ombudsman and his deputies shall not be qual ified to run for office in the election immediately succeeding their cessation. 6. Members of the Constitutional Commission, Ombudsman and deputies must not hav e been candidates for any elective position in the election immediately precedin g their appointments. 7. Members of the Constitutional Commission, Ombudsman and his deputies are appointed to a term of 7 years, without reappointment. 8. Spou se and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed: As members of the Constitut ional Commission Office of Ombudsman Secretaries Undersecretaries Chairmen/heads III. DE FACTO OFFICERS Reputation of being an officer and yet is not a good off icer in point of law. Acted as an officer for such length of time under color of title and under such circumstances of reputation or acquiescence by the public and public authorities as to afford a presumption of election/appointment and in duce people to submit to or invoke his action. Legal Effect 3

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Those that affect the public are valid, binding and with full legal effect. For the protection of the public. Elements 1. validly existing public office 2. actual physical possession of said office 3. color of title to the office a. by reputation/acquiescence b. known a nd valid appointment/election but officer failed to conform to a requirement imp osed by law c. known appointment or election, void (though unknown to public) be cause: i. ineligibility of officer ii. want of authority of appointing/electing authority iii. irregularity in appointment/election d. known appointment/electio n pursuant to unconstitutional law, before law was declared unconstitutional. En titlement of Salaries - GR: rightful incumbent of a public office may recover fr om an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title. - Where there is NO DE JURE officer, the officer de facto who in good faith has had possession of the office and has discharged the duties is le gally entitled to emoluments. - Principle of public policy on which de facto doc trine is based. IV. COMMENCEMENT OF OFFICIAL RELATIONS Official relations are co mmenced: 1) Appointment 2) Election Appointment - selection by the authority ves ted with the power, of an individual who is to perform the functions of a given office. Commission - written evidence of appointment Designation imposition of additional duties Classification 1) Permanent - Extended to person possessing the requisite qualif ications 4

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) - Security of tenure 2) Temporary - Acting appointment - May not possess the req uisite qualifications for eligibility - Revocable at will, without necessity of just cause or a valid investigation Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; new appointment is necessary - Appointment to a position in the Career Service of the Civil Service does not necessarily mean that the appointment is a permanent one depend on the nature of the appointment which in turn depends on the appointees eligibility or lack of it. - Acceptance b y petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. - Temporary appointment shall n ot exceed 12 months. - Mere designation does not confer security of tenure perso n designated occupies the position only in an acting capacity. - Appointment is subject to conditions, appointment is not permanent. - Appointee cannot claim a complete appointment as long as the re-evaluation incidental to the re-organizat ion is still pending. - unless terminated sooner even if co-terminous with the pro ject, it is nevertheless subject to the appointing authority. - Where temporary appointment is for a FIXED period, appointment may be revoked only at the expira tion of the period OR if before, it must be for a valid and just cause. 3) Regul ar - One made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments and continues until the end of t he term. 4) Ad-interim - Made while Congress is not in session, before confirmat ion by the Commission on Appointments, is immediately effective - Ceases to be v alid if disapproved or bypassed by COA upon next adjournment of Congress - Perma nent appointment - That it is subject to confirmation, does not alter its perman ent character. Regular and Ad-interim Classification may be used only when refer ring to the following: 1) Heads of Executive Department; 2) Ambassadors and othe r Publi Ministers and Consuls 3) Officers of the AFP, from rank of colonel or na val captain 4) Officers whose appointments are vested in the President under the Constitution. 5

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Steps in Appointing Process For REGULAR Appointments 1) Nomination by President 2) Confirmation by COA 3) Issuance of the Commission 4) Acceptance by the appoin tee AD-INTERIM Appointment Nomination by President Issuance of the Commission Ac ceptance by the appointee Confirmation by COA 1) 2) 3) 4) DO NOT require Confirmation 1) Appointment by Appointing Authority 2) Issuance o f the Commission 3) Acceptance by the Appointee A person cannot be compelled to accept an appointment EXCEPT when the appointment is made to an office required in defense of the State/ Where appointment is to the CAREER SERVICE of the CIVIL SERVICE, attestation by the Civil Service Commission is required. Otherwise, no t deemed complete. Appointment not submitted to the CSC w/in 30 days from the is suance (date appearing on the face of the appointment) shall be ineffective. CSC is authorized to check of the appointee possesses the qualifications and approp riate eligibility; if he does, appointment must be approved; of not, it is disap proved. Appointment is complete when the last act required of the appointing pow er is performed; until the process is completed, appointee can claim no vested r ight in the officer nor claim security of tenure. Appointment to be valid, posit ion must be vacant. Discretion of Appointing Authority Discretionary power and must be performed by the officer in whom it is vested. Only condition, appointee must possess the min imum qualifications requirements prescribed by law. Appointing authority is in t he best position to determine who among the prospective appointees can effective ly discharge the functions of the position. Final choice of appointing authority should be respected and left undisturbed. Commission may not and should not sub stitute its judgment for that of the appointing authority. 6

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Civil Service Law grants career service officers preference in promotion under t he next-in-rank rule, it is not mandatory, appointing authority should be allowed the choice of men of his confidence provided they are qualified and eligible. Pr ovincial, city prosecutor and their assistants appointed by President upon recom mendation of Secretary of Justice (mere advise). Discretion of appointing author ity choice of the person WHO is to be appointed, NATURE and CHARACTER of appoint ment. Judicial Review of Appointments Appointment generally a political question ; as long as appointee possess minimum qualifications as prescribed by law for t he position. Action for usurpation of office Who claims a valid title to the off ice. Jurisdiction of the Civil Service Commission Disciplinary cases Cases invol ving personnel action Employment status and qualification standard Recall an app ointment initially approved when issued with disregard to Civil Service Laws, ru les and regulations Approving and reviewing appointments to determine their comp liance with the Civil Service Law On its own, does not have the authority to ter minate employment or drop members from the roll Appointments to the Civil Servic e Scope: ALL branches, subdivision, instrumentalities and agencies of the Govern ment, including GOCC with original charter. Classes of Service 1. Career Service a. Description - Entrance based on merit and fitness, as far as practicable by competitive examinations - Or based on highly and technical qualifications - Opp ortunity for advancement to higher career positions - Security of tenure b. Incl udes: 1) Open Career Service - Prior qualification in an appropriate examination is required 2) Closed Career Service - Scientific or highly technical 3) Career Executive Service - Undersecretaries, bureau directors, etc. 4) Positions in th e Armed Forces of the Philippines - Governed by a different merit system 7

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) 5) Career Officers - Other than those belonging to Career Executive Service, app ointed by President, e.g. foreign service 6) Personnel of GOCC w/ original chart ers 7) Permanent laborers (skilled, semi-skilled or unskilled) Career Executive Service 2 requirements to attain security of tenure i. Career executive service eligibility ii. Appointment to the appropriate career executive service rank Sec urity of tenure pertains only to rank and not to the office or position 2. Non-C areer Service a. Description - Entrance on bases other than those of the usual t ests utilized for the career service - Tenure 1) limited to a period specified b y law or 2) which is co-terminous with that of the appointing authority or 3) su bject of his pleasure or 4) which is limited to the duration of a particular pro ject for which purpose the employment was made. b. Includes: 1) Elective officia ls, personal and confidential staff 2) Department Heads and officials of Cabinet rank who holds office at the pleasure of the President, personal and confidenti al staff 3) Chairmen and members of commissions/boards w/ fixed terms of office, personal and confidential staff 4) Contractual personnel/ those whose employmen t in government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in employing ag ency, to be accomplished within a period not exceeding 1 year, under his own res ponsibility, with minimum direction and supervision 5) Emergency and seasonal pe rsonnel Under Administrative Code, the CSC is expressly empowered to declare pos itions in the CS as primarily confidential. Enumeration in the Civil Service dec ree, which defined the non-career service is not an exclusive list. Commission c an supplement this list. Coterminous status may be classified as: 1. co-terminou s with project duration of particular project for which employment was made. 8

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) 2. co-terminous with appointing authority tenure of appointing authority or at h is pleasure 3. co-terminous with incumbent co-existent with appointee, such that after the latters resignation, separation or termination of the services, the po sition shall be deemed automatically abolished. 4. co-terminous with a specific period for a specific period, upon expiration, position is deemed abolished. Req uisites 1. made according to merit and fitness 2. competitive examination Except ions: 1. policy determining 2. primarily confidential or 3. highly technical In a department, appointing power is vested in the DEPARTMENT SECRETARY, althoug h it may be delegated to the REGIONAL DIRECTOR, subject to approval of the Depar tment Secretary. Principles 1) Classification of a particular position as policy -determining, primarily confidential or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true test being the nature of the position 2) The exemption provided pertai ns only to exemption from competitive examination to determine merit and fitness to enter the civil service 3) Exempt from competitive examination to determine merit and fitness: a. Policy-determining Officer lays down principal or fundamen tal guidelines or rules E.g. department head b. Primarily confidential Not only confidence in the aptitude if the appointee for the duties of the office but pri marily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayal on confidential matters of state NATURE of the position which determined whether a position is primarily confidential, p olicy-determining or highly technical proximity rule can be considered as confiden tial employee if the predominant reason why he was chosen by the appointing auth ority was the latters belief that he can share a close intimate relationship 9

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) with the occupant which ensures freedom of discussion without fear of embarrassm ent or misgivings of possible betrayals of personal trust or confidential matter s of the State. Where the position occupied is remote from that of the appointin g authority, the element of trust between them is no longer predominant, and can not be classified as primarily confidential. c. Highly technical requires posses sion of technical skill in a superior degree. Legal counsel of PNB City Legal Of ficer City Attorney Security Council and Security Guards of the City Vice Mayor Other Personnel Action 1) 2) 3) 4) 5) 6) 7) Promotion Appointment through Certif ication Transfer Reinstatement Detail Reassignment Reemployment Promotion - Movement from one position to another with increased duties and resp onsibilities as authorized by law - Usually accompanied by an increase in pay. Next-in-rank Rule The one who is next in rank is given preferential considerati on Does not mean that he alone can be appointed Appointing authority is required to state the special reasons for not appointing the officer next in rank. - Autom atic Reversion Rule All appointments involved in a chain of promotions must be s ubmitted simultaneously for approval by the Commission. The disapproval of the a ppointment of a person proposed to a higher position invalidates the promotion o f those in the lower positions and automatically restores them to their former p ositions. Affected persons are entitled to payment of salaries for services rend ered at a rate fixed in their promotional appointments. Requisites: 1. series of promotions 10

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) 2. all promotional appointments are simultaneously submitted to the Commission f or approval 3. Commission disapproves the appointment of a person to a higher po sition Appointment through Certification - Issued to a person who has been selec ted from a list of qualified persons certified by the CSC from an appropriate re gister of eligibles and who meets the qualifications prescribed for the position . Transfer - Movement from one position to another which is of equivalent rank, level or salary without break in service. - May be imposed as an administrative penalty. - Unconsented transfer violates security of tenure. - Career Executive Service personnel can be shifted from one office to another without violating th eir right to security of tenure, because salary and status is based on their ran ks and not on the positions to which they are assigned. Reinstatement - Has been permanently appointed in the career service and who has, through no delinquency of misconduct, been separated may be reinstated to a position in the same level for which he is qualified. - Acquisition of civil service eligibility is not th e sole factor for the reappointment. Other factors should be considered: perform ance, degree of education, work experience, training, seniority and enjoys confi dence and trust of the appointing power. - Not subject to application for a writ of mandamus. - Issuance of new appointment which is discretionary - Exercise of discretionary power cannot be controlled by the courts, as long as properly exe rcised - Forfeited his right to public office because of conviction of a crime, but was extended plenary pardon CANNOT by reason of pardon demand reinstatement as a matter of right. - Exception: 1. Sabello vs. DECS considerations of justice and equity 2. Garcia vs. Chairman, Commission on Audit person given pardon beca use he did not truly commit the offense; the pardon relives him from all punitiv e consequences of his criminal act thereby restoring him to his clean name, good reputation and unstained character prior to his finding of guilt. Detail - Move ment of an employee from one agency to another without the issuance of an appoin tment - Allowed only for a limited period of time in the case of employees occup ying professional, technical and scientific positions 11

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Temporary in nature Reassignment - Reassigned from one organizational unit to another in the same ag ency - Not involve reduction in rank, status or salary - Management prerogative vested in the CSC, any department or agency embraced in Civil Service - Does not constitute removal without cause - Should have definite date and duration. - La ck of specific duration is tantamount to floating assignment thus a dimunition i n status or rank. Reemployment - Names of persons who have been appointed perman ently to positions in the career service and who have been SEPARATED as a result of REDUCTION in force and/or REORGANIZATION, shall be entered in a list from wh ich selection for reemployment shall be made - Separated not for a cause but as a result of reorganization separation pay + retirement and other benefits; in li eu of separation pay, may be considered for employment (Proclamation No. 3) V. P OWERS AND DUTIES OF PUBLIC OFFICERS Authority of Public Officers 1. Expressly co nferred upon him by the ACT appointing him 2. Expressly ANNEXED to the office by LAW 3. Attached to the office by COMMON LAW as incidents to it 4. Doctrine of N ecessary Implication all powers necessary for the effective exercise of the expr ess powers Authority can be exercised only during the term when the public offic er, is by law, invested with the rights and duties of the office. Ministerial an d Discretionary Powers 1. Ministerial discharge by officer is imperative and req uires neither judgment nor discretion; exercise of which may be compelled 2. Dis cretionary imposed by law upon a public officer; officer has the right to decide how and when the duty shall be performed; mandamus will not lie to compel perfo rmance Exception: when mandamus will lie: 1. GAD 2. manifest injustice 3. palpab le excess of authority equivalent to a denial of settled rights 4. no other plai n, speedy or adequate remedy writ may issue to compel the exercise of discretion but not the discretion itself 12

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Courts may review exercise of discretion, to determine if there has been GAD amo unting to lack or excess of jurisdiction Judgment judicial functions; determinat ion of a question of law; only one way to be right Discretion, may decide the qu estion either way and still be right; limited to the evident purpose of the act Duties of Public Officer Constitutional Duties To be accountable to the people T o serve them with utmost responsibility, loyalty and efficiency To act with patr iotism and justice To lead modest lives To submit a declaration under oath of hi s assets, liabilities and net worth upon assumption of office and as often as ma y be required To owe the State and Constitution allegiance at all times SOLGEN r epresent government and its offices EXCEPT criminal cases and civil cases for da mages arising from felony. Prohibitions 1. Partisan political activity or taking part in any election except to vote Except: 1. those holding political offices 2. cabinet members 2. Additional or double compensation 3. Prohibition against l oans 4. Limitation on laborers Not assigned to clerical duties 5. Detail or reas signment w/in 3 months before any election without approval of COMELEC 6. Nepoti sm Appointments made in favor of a relative of the appointing or recommending au thority or of the chief of the bureau or office or of the person exercising imme diate supervision over him. All appointments. Relative: those related within the 3rd civil degree by consanguinity or affinity Exemption: 1. confidential capaci ty 2. teachers 3. physicians 4. members of the Armed Forces * full report of app ointment shall be made to the Commission 13

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) VI. LIABILITY OF PUBLIC OFFICERS General Rule on Liability A public officer is n ot liable for injuries sustained by another as a consequence of official acts do ne within the scope of his official authority, except as otherwise provided by l aw. Not civilly liable for acts done in official capacity UNLESS bad faith, mali ce, negligence Liable for willful or negligent acts done by him which are contra ry to morals, law public policy and good customs EVEN if he acted under instruct ions of his superiors. Local governments are not exempt from liabilities for DEA TH or INJURY to persons or DAMAGE to property. Statutory Liability Article 27, C C refuses or neglects without just cause to perform his official duty, whereby a person suffers moral or material loss; without prejudice to administrative disc iplinary sanction Article 32, CC liability of public officer for violation of co nstitutional rights Article 34, CC liability of peace officer who fails to respo nd or give assistance to persons in danger of injury to life or property w/o jus t cause. Neglects to perform a duty within a period fixed by law or regulation o r within a reasonable period if none is fixed Liability on Contracts personally entered without or exceeded his authority Liability for Tort personally beyond t he scope of his authority or exceeds power conferred upon him; ultra vires or wh ere there is bad faith Presidential Immunity from Suit during tenure of the Pres ident After his tenure, cannot invoke immunity from suit for civil damages arisi ng out of acts done by him, while he was president which were not performed in t he exercise of official duties. Not prevented from instituting suit. Threefold L iability Rule Wrongs acts or omissions of a public officer may give rise to civi l, criminal and administrative liability. Action for each can proceed independen tly Dismissal of one does not foreclose action for others. difference in quantum of evidence 14

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Liability of Minsiterial Officers 1. Nonfeasance neglect or refusal to perform a n act which is the officers legal obligation 2. Misfeasance failure to exercise t hat degree of care, skill and diligence in the performance of official duty 3. M alfeasance doing, through ignorance, inattention or malice of an act which he ha d no legal right to perform. Command Responsibility Head of a department or a su perior officer shall not be civilly liable for the wrongful acts, omission of du ty, negligence or misfeasance of his subordinates, UNLESS he has actually author ized by written order the specific act or misconduct. VII. RIGHTS OF PUBLIC OFFI CERS 1. 2. 3. 4. 5. 6. 7. 8. 9. Right to Office Right to Salary Right to Prefere nce in Promotion Right to Vacation and Sick Leave Right to Maternity Leave Right to Retirement Pay Right to reimbursement for expenses incurred in due performan ce of duty Right to be indemnified against any liability Right to longevity pay Right to Office Just and legal claim to exercise the powers and the responsibili ties of the public office. Term vs. Tenure Term: period during which the officer may claim to hold the office as a matter of right. Tenure: period during which the officer actually holds office. Right to Salary Salary personal compensation to be paid to the public officer for his services Generally a fixed or periodica l payment depending on the time and not on the amount of the services he may ren der. Distinguished from wages: Salaries are given to officers of higher degree o f employment than those given wages. Salary is compensation per annum. Wages are paid day by day or week by week. Basis: 1. legal title to the office 2. law att aches compensation to the office 15

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Right of de facto officer to compensation when there is no de jure and de facto officer, who in good faith has possession of the office and has discharged the d uties. Salary cannot be garnished nor subject to attachment or order of executio n before being paid to him to answer for the payment of his debts. Public policy also prohibits the assignment of unearned salaries Agreements affecting compens ation are void as contrary to public policy. Compensation, allowances and other benefits granted without the approval of the DBM are unauthorized and irregular. Constitutional provisions affecting salaries: 1. no increase in salaries of mem bers of Congress shall take effect until after the expiration of the full term o f the Members of the Senate and HofRep who approved he increase. 2. Salaries of President and VP shall be fixed by law and sjall not be decreased during their t enure. No increase, until after expiration of the incumbent during which increas e was approved. 3. Salary of members of the Judiciary shall not be decreased dur ing their continuance in office; income tax is not unconstitutional dimunition. 4. Additional, double or indirect compensation are prohibited. 5. Standardizatio n of compensation. 6. Separation pay to career Civil Service employees who are s eparated from service not for cause but by reason of reorganization. Preventive Suspension and the Right to Salary 1. Preventive Suspension pending i nvestigation 2. Preventive Suspension pending appeal If the penalty imposed is s uspension or dismissal and after review, he is exonerated no right to compensati on during preventive suspension even pending investigation It is not enough that he is exonerated; it must be shown that suspension is unjustified Justified if charged with: 1. dishonesty 2. oppression 3. grave misconduct 4. neglect of duty Gloria vs. Court if Appeals entitled not only to reinstatement but also to back wages for the period of preventive suspension pending appeal. Because preventiv e suspension pending appeal is actually PUNITIVE. Award should not exceed equiva lent of 5 years pay at the rate last received before suspension was imposed. If his conviction is affirmed, the period of his suspension becomes part of the fin al penalty of suspension. 16

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Right to back salaries of illegally dismissed employees Illegally dismissed gove rnment employees who is later ordered reinstated is entitled to back wages and o ther monetary benefits from the time of his illegal dismissal up to his reinstat ement. no work, no pay not applicable Note: Balitaosan vs. Secretary, DECS: reinst atement was not the result of exoneration but an ACT OF LIBERALITY of the CA, th e claim for back wages was not allowed. Thus the general rule that a public offi cial is not entitled to compensation if he has not rendered any service was appl ied. No right to back wages if NOT EXONERATED and NOT UNJUSTIFIABLY SUSPENDED Ri ght to additional allowance and benefits LGUs may provide additional allowances and benefits to national government officials assigned or stationed in their mun icipality or city. Not without limitations. Right to Preference in Promotion Rig ht does not prevail over discretion of appointing authority. Right to Vacation a nd Sick Leave Sec 81, RA 7160 (LGC) Elective local officials shall be entitled t o the same leave privileges as those enjoyed by appointive local officials, incl uding the cumulation and commutation. Entitled to commutation of all leave credi ts without limitation and regardless of the period when the credits were earned, provided the claimant was in the service as of January 9, 1986. Government empl oyees are not required to work on Saturdays, Sundays and holidays. Right to Mate rnity Leave Right to Retirement Pay Retirement laws are liberally construed in f avor of the retiree. Money value of the terminal leave of a retiring government official shall be computed at the retirees highest monthly pay. Judiciary extensi on if satisfied that the career was marked by competence, integrity and dedicati on to the public service. A reserved officer who successfully rendered a total o f 10 years continuous active commissioned military service shall not be reverted to inactive service except for cause or upon his own request. Covered by compul sory membership in the GSIS. Totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the systems . Right to reimbursement for expenses incurred in due performance of duty 17

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Right to be indemnified against any liability which they may incur in the bona f ide discharge of their duties. Right to longevity pay VIII. TERMINATION OF OFFIC IAL RELATIONSHIP Modes of Terminating Official Relationship 1. Expiration of ter m or tenure 2. Reaching the age limit 3. Resignation 4. Recall 5. Removal 6. Aba ndonment 7. Acceptance of an Incompatible Office 8. Abolition of Office 9. Presc ription of the Right to Office 10. Impeachment 11. Death 12. Failure to Assume E lective Office w/in 6 months from proclamation 13. Conviction of a Crime 14. Fil ing of Certificate of Candidacy Expiration of term or tenure Courtesy resignatio n during the EDSA Revolution expiration of term; entitled to retirement benefits Termination presupposes an overt act committed by a superior officer Commenceme nt of Term of Office 1. statute fixes a period upon qualification 2. no time is fixed by law date of appointment/election 3. law fixing the term is ambiguous on e that fixes the term at the shortest period should be followed 4. both duration of the term of office and the time of its commencement/termination are fixed by constitutional or statutory provision person appointed or elected for vacancy s hall hold the same only for the unexpired portion 5. only the duration is fixed, no time is fixed for beginning or end person selected to fill the vacancy may s erve the full term and not merely the unexpired balance of the prior incumbents t erm 6. office is created/officer appointed for the purpose of performing a singl e act or accomplishment of a given result office terminates and the authority ce ases with the accomplishment of the purposes which called it into being. Princip le of Hold-Over: public officer is entitled to hold his office until his success or shall have been duly chosen and shall have qualified. Purpose is to prevent h iatus in public service. 18

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Legislative intent of not allowing hold-over must be clearly expressed or at lea st implied in the legislative enactment, otherwise, it is reasonable to assume t hat the law-making body favors the same. Article 237, RPC which penalizes public officer who shall continue to exercise the duties and powers of the office beyo nd the period provided by law. During this period, de jure officer Where the law fixes a specific sate for the end of the term implied prohibition against holdover Reaching the age limit Compulsory Retirement Age 70 for members of judiciar y 65 for other government officers or employees Special Retirement Laws: RA 1616 allows optional retirement after an officer has rendered a minimum number of ye ars of government service, when availed of by the public officer, will result in the termination of official relationship through reaching the age limit or reti rement. Resignation Act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. Intention to surr ender, renounce, and relinquish the office and the acceptance by competent and l awful authority Voluntariness when procured by fraud, may be invalidated Courtes y resignation lacks the element of voluntariness and therefore is not a valid re signation. Need for Acceptance not complete until accepted by competent authorit y Article 238, RPC penalizes any public officer who, before the acceptance of hi s resignation, abandons his office to the detriment of the public service. If th e public officer is mandated by law to hold-over, the resignation, even if accep ted, will not be effective until after appointment/election of his successor. Ac cepting Authority RA 7160, officers authorized to accept resignation: 1. Preside nt governor, vice-governor, mayor and vice-mayor f highly urbanized cities and i ndependent component cities 2. Governor municipal mayors and vice-mayors, city m ayors and vice-mayors of component cities 3. Sanggunian sanggunian members 4. Ci ty or municipal mayor barangay officials Resignation deemed accepted if not acte d upon w/in 15 days from receipt 19

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Resignation by Sanggunian members shall be deemed accepted upon: 1. presentation before an open session of the sanggunian concerned 2. duly entered in its recor d 3. EXCEPT where sanggunian members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignation If the law is silent on who shall accept: 1. appointive officer resigns appointing aut hority 2. elective officer resigns officer authorized by law to call an election in order to fill the vacancy President and VP Congress Members of Congress resp ective Houses Effective Date of Resignation Date specified in the tender No date specified public officer receives notice of the acceptance NOT the date of the letter or notice of acceptance Recall Termination of official relationship of an elective official for loss of confidence prior to the expiration of his term th rough the will of the electorate. By Whom: registered voters of a LGU to which s uch local government official belongs Initiation of the Recall Process: register ed voters of the LGU Procedure for Initiating Recall 1. initiated upon petition by at least 25% of the total number of registered voters in the LGU 2. written p etition duly signed before the election registrar/representative in the presence of a representative of the petitioner representative of the official in a publi c place, in the province, city, municipality or barangay filed with the COMELEC through its office in the LGU concerned 3. COMELEC shall cause the publication o f the petition In a public and conspicuous place Period not less than 10 days no r more than 20 days Purpose of verifying the authenticity and genuineness of the petition and required percentage of voters 4. Lapse of the period, COMELEC or i ts duly authorized representative, shall announce the acceptance of candidates t o the position and 20

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) prepare list of candidates, including the name of the official sought to be reca lled. Election on Recall Upon filing of a valid petition, COMELEC shall set date for the election on recall Not later than 30 days after the filing of the resol ution/petition in the case of barangay/city/municipal officials Not later than 4 5 days in the case of provincial officials Officials sought to be recalled, auto matically considered as registered candidate. Effectivity of Recall Recall of an elective official shall be effective upon the election an proclamation of a suc cessor. If the official sought to be recalled receives the highest number of vot es confidence in him is affirmed and he shall continue in office Prohibition fro m Resignation Limitation on Recall 1. any elective official may be subject of a recall election once during his term of office for lack of confidence 2. no reca ll shall take place within one year from the date of the officials assumption to office or one year immediately preceding a regular local election Sangguiniang K abataan election is not a regular election; Not barred by barangay election Appr oaching local election must be one where the position of the official to be reca lled is actually contested and to be filled by the electorate Removal Constituti onal Guarantee of Security of Tenure not removed or suspended except for causes provided by law Career service officers and employees causes enumerated in law a nd in accordance with procedure prescribed Removal not for just cause or non-com pliance with prescribed procedures reversible, reinstatement with back salaries and without loss of seniority rights Demotion is tantamount to unlawful removal is NO CAUSE is shown or it is NOT PART OF DISCIPLINARY ACTION Unconsented transf er resulting in demotion in rank or salary is tantamount to removal without just cause. A transfer that results in promotion or demotion, advancement or reducti on or a transfer that aims to lure the employee away from his permanent position , cannot be done without the employees consent, for that would constitute removal from office. 21

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) No permanent transfer can take place unless the officer or employee is first rem oved from the position held, and then appointed to another position. Some cases on Grounds for Disciplinary Action: 1. Dishonesty concealment or distortion of t ruth in a matter of fact relevant to ones office or connected with the performanc e of his duty; e.g. use of fake or spurious civil service eligibility 2. Conduct prejudicial to the best interest of the service 3. Misconduct transgression of some established and definite rule of action; wrongful intention Administrative Code of 1987: 1) Unsatisfactory conduct and 2) Want of capacity Civil Service La w: inefficiency and incompetence in the performance of official duties Poor perf ormance falls within the concept of inefficiency and incompetence Inefficiency a nd incompetence can only be determined after the passage of sufficient time, hen ce, the probationary period of 6 months. Poltical or non-career members of the F oreign Service is coterminous with that of the appointing authority or subject t o his pleasure Holding primarily confidential positions continue in office as lo ng as the confidence in them endures; termination is justified on the ground of lack of confidence removal: expiration of term Holding temporary or acting appoi ntments may be removed at any time, without necessity of just cause or a valid i nvestigation. Procedure in Administrative Case 1. Administrative case against a public official shall continue despite withdrawal of the complaint since they do not involve purely private matters but are impressed with public interest by vi rtue of the public character of the public office. 2. Substantial proof and not clear and convincing evidence or proof beyond reasonable doubt is sufficient. Sa tisfied when the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation renders him unworthy of tru st and confidence demanded by his position. Jurisdiction in Disciplinary Cases 1 . Heads of ministries, agencies and instrumentalities, provinces, cities and mun icipalities have jurisdiction to investigate and decide matters involving discip linary action against officers and employees under their jurisdiction. Decision final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary. Other cases, decision shall be initi ally appealed to the department head and finally to the Civil Service Commission and pending appeal, shall be 22

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) executory EXCEPT when the penalty is removal, in which case it shall be executor y only after confirmation by the department head. Committee to hear administrati ve charge against public school teacher representative of the teachers organizati on 2. Civil Service Commission has appellate jurisdiction. Case may be filed dir ectly to it; it may decide on the case or deputize a department or agency Preven tive Suspension The proper disciplining authority may preventively suspend any s ubordinate officer or employee under his authority pending an investigation if t he charge against such officer or employee involves 1) dishonesty, 2) oppression or grave misconduct or 3) neglect in the performance of duty or 4) if there is reason to believe that the respondent is guilty of charges which would warrant h is removal from the service. Not a penalty. Enable authorities to investigate. I f the investigation is not finished and a decision is not rendered within a peri od of 90 days, the suspension will be lifted and the respondent will automatical ly be reinstated. If after investigation, he is innocent of the charges and is e xonerated, he should be reinstated. Preventive suspension can be ordered even wi thout a hearing. Authority to preventively suspend: exercised concurrently by th e Ombudsman RA 6770: 6 months Court may validly order the preventive suspension of officer (since removal of office is within the power of the Courts) Back sala ry is not warranted when the immediate execution of the order of dismissal is ju stified. Appeal Made within 15 days from receipt of the decision UNLESS a petiti on for reconsideration is filed, which shall be decided within 15 days Petition for Reconsideration 3 grounds only: (1) New evidence has been discovered which m aterially affects the decision (2) Decision is not supported by evidence on reco rd (3) Error of law or irregularities have been committed which are prejudicial to the interest f the respondent From resolution of the CSC, file a petition for certiorari R65 w/in 30 days from receipt of copy of the resolution Summary Dism issal RA 6654 23

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Removal of Administrative Penalties or Disabilities Meritorious cases, upon reco mmendation of the CSC President may commute or remove administrative penalties o r disabilities imposed upon officers or employees in disciplinary cases Subject to terms and conditions he may impose in the interest of the service Abandonment Voluntary relinquishment of an office by the holder with the intention of termi nating his possession and control Species of resignation Resignation is formal r elinquishment Abandonment is voluntary relinquishment through non-user Non-user ne glect to use a privilege or a right or to exercise an easement or an office A pe rson holding an office may abandon such office (1) Non-user (2) Acquiescence Non -performance does not constitute abandonment when: (1) Temporary disability (2) Involuntary failure to perform Public officer vacates office in deference to the requirements of a statute which is afterwards declared unconstitutional, such s urrender will not be deemed abandonment. Mere delay in qualifying for an office is not abandonment But failure to assume office w/in 6 months fro proclamation, without just or valid cause, shall have the effect of vacating the office. Autom atically separated if he fails to return to the service after the expiration of 1-year leave of absence without pay. Absent for at least 30 days without approve d leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. Granting or approval of leaves discretionary on t he head and depends upon the needs of the service Failure to make courtesy call to ones superior is not an offense, much less a ground to terminate employment. A cceptance of an Incompatible Office Test of Incompatibility Nature and relation of the two offices to each other, they ought not to be held by one person from t he contrariety and antagonism which would result Acceptance of incompatible offi ce ipso facto vacates the other. There is no necessity for any proceeding to dec lare or complete the vacation of the first. 24

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Canonizado vs. Aguirre no incompatibility; though accepted latter, he continued to pursue legal remedies to recover the first from which he was ousted by a law later to be declared unconstitutional. Exception: when authorized by law to acce pt the other office. Abolition of Office Power of legislature to abolish an offi ce Congress; even during the term for which an existing incumbent may have been elected Constitutional offices cannot be abolished No law shall be passed reorga nizing the Judiciary, when it undermines security of tenure Valid abolition of o ffice does not constitute removal of incumbent Legal competence if the city coun cil to create, consolidate and reorganize city offices and positions wholly supp orted by local funds Requisite for Abolition of Office (1) Made in good faith (2 ) Clear intent to do away with the office (3) Cannot be implemented in a manner contrary to law Reorganization of Government Offices Constitutional recognition of authority to reorganize: promotion of simplicity, economy and efficiency is t he usual standard. No violation of due process even if no hearing was conducted in the matter of reorganization of DBP, as long as employee was given a chance t o present evidence. Removal of employees pursuant to guidelines in EO116, reorga nization of Dept. of Agriculture (1) Existence of case for summary dismissal (2) Probable cause for violation of RA 3019 (3) Gross incompetence or inefficiency (4) Misuse of public office for partisan political activities (5) Analogous grou nds showing that incumbent is unfit to remain in office Reorganization must meet the common test of good faith. PD1416: grants the President the continuing auth ority to reorganize the national government, which includes the power to group c onsolidate bureaus and agencies, to abolish offices, to transfer functions, to c lassify and create functions, services and activities and to standardize salarie s and materials. Prescription of the Right to Office Petition for reinstatement after illegal ouster or dismissal OR recovery of public office w/in 1 year from the date petitioner is illegally ousted. Exception: strong, compelling and speci al circumstances Cristobal vs. Melchor: on grounds of equity Reason: title to pu blic office should not be subject to continued uncertainty; should be determined as speedily as possible. 25

PinoyLaw.Net Notesbank Nachura Notes Law of Public Officers (Kiddy) Filing of an action for administrative remedy does NOT suspend the period for fi ling the appropriate judicial proceeding (quo warranto); 1 year period runs even during pendency of a motion for reconsideration. Impeachment Death Renders offi ce vacant. Failure to Assume Elective Office w/in 6 months from proclamation Unl ess failure is for a cause or causes beyond his control Conviction of a Crime Pe nalty imposed upon conviction carries with it the accessory penalty of disqualif ication, conviction by final judgment automatically terminates official relation ship. Plenary pardon extinguished the accessory penalty of disqualification, it will not restore the public office to the officer convicted; He must be given a new appointment. Filing of Certificate of Candidacy Any person holding a public appointive office or position, Including active members of the AFP And officers and employees in GOCCs Shall be considered ipso facto RESIGNED upon filing of ce rtificate of candidacy. Applies even to employees of GOCCs without an original c harter 26