THE LAW ON PUBLIC OFFICERS
and the public.
DEFINITIONS, DISTINCTIONS, AND CLASSIFICATIONS
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 appointing power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public.
PURPOSE AND NATURE
The purpose and nature of public office is grounded on it being a
public trust. (TORREDES vs VILLAMOR, 564 SCRA 492)
PUBLIC OFFICE, PUBLIC TRUST
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.
PUBLIC TRUST
1) Trustor - Benefactor
2) Trustee
3) Cest qui trust - Beneficiary
PUBLIC OFFICE, NOT PROPERTY
A public office is not the property of the office holder within the
meaning and contemplation of the due process requirements of
the Constitution. Public office is not property in the sense that an
officer is not denied due process of law by the abolition of his
office before the expiration of his term or by his removal or
suspension according to law, or by the passage of a statute
limiting or reducing his compensation, and that an officer has no
property rights in the books and papers pertaining to his office.
No one, therefore, has any private right of property or vested
right in any public office he holds, much less a vested right to an
expectancy of holding a public office, at least as against the public
interest. The fact that the Constitution throws a mantle of
protection around a public officer, such as a limitation on the
power of the legislature to abolish the office or diminish the
salary during the incumbent's term, does not change the
character of the office or make it property.
Excepting constitutional officer, which provide for special
immunity as regards salary and tenure, no one can be said to have
any vested right to an office or its salary, let alone an absolute
right to it. It is only when salary has already been earned or
accrued that said salary becomes private property and entitled to
the protection of due process.
PUBLIC OFFICE, NOT A CONTRACT
The right of an incumbent of an office does not depend on any
contract in the sense of an arrangement or bargain between him
1) Creates no contractual relation between holder and the public
- A public office is not a contract, nor the same thing as a contract,
and an appointment or election to a public office does not
establish a contractual relation between the person appointed or
elected and the public. The incumbent is not under contract so as
to withdraw his tenure, salary, and the like, from the control of
the legislature, or to preclude the legislature from abolishing the
office. Generally speaking, the nature of the relation of a public
officer to the public is inconsistent with either a property or a
contract right.
2) Exists by virtue of some law - The right to hold a public office
under our political system, therefore, is not a natural right. It
exists, when it exists at all, only because and by virtue of some
law expressly or impliedly creating and conferring it.
3) Generally entitles holder to compensation - While public office
is not usually regarded as a contract, a public officer is entitled to
the compensation for the performance of his public duties when
the law attaches it to the office. If no salary is provided by law for
an office, the incumbent is presumed to have accepted it without
pay and he cannot recover anything for service rendered by him.
The salary is a mere incident and forms no part of the office. It is
not a necessary criterion for determining the nature of the
position.
PUBLIC OFFICE vs PUBLIC CONTRACT
As to creation:
Public Office - is a creation incident of sovereignty
Contract - originates from the will of the contracting parties,
subject to limitations imposed by law
As to object:
Public Office - object is the carrying out of sovereign as well as
governmental functions affecting even persons not bound by
contract
Contract - imposes obligations only upon persons who entered
the same
As to subject matter and scope:
Public Office - embraces the idea of tenure, duration, and
continuity, and the duties connected therewith are generally
continuing and permanent
Contract - almost always limited in its duration and specific in its
objects. Its terms define and limit the rights and obligations of the
parties, and neither may depart therefrom without the consent of
the other.
ESSENTIAL ELEMENTS OF A PUBLIC OFFICE
1) It is created by the Constitution or by law or by some body or
agency to which the power to create the office has been
delegated
2) It must be invested with an authority to exercise some portion
of the sovereign power of the State to be exercised for public
interest
3) Its powers and functions are defined by the Constitution, or by
law, or through legislative authority
4) The duties pertaining thereto are performed independently
without control of a superior power other than law, unless they
are those of an inferior or subordinate officer, created or
authorized by the legislature and placed by it under the general
control of a superior officer or body
5) It is continuing and permanent in nature and not occasional or
intermittent
TENURE AND DURATION
1) Existence of definite tenure not material - Public office
embraces the idea of tenure and duration. The duration of tenure
need not be for a fixed period, but may be at the pleasure of the
appointing power. One may be nonetheless a public officer
because his term is not definitely established, and the absence of
a definite tenure does not necessarily preclude a position or
employment from constituting a public office.
2) Continuance of office holder not material - At the same time,
the element of continuance, i.e., the duties attached to the
position continue though the office holder be changed, cannot be
considered indispensable.
3) Permanence of office not material - If the other elements are
present, it can make no difference whether there can be but one
act or a series of acts to be done - whether the office expires as
soon as the one act is done, or is to be held for years or during
good behavior. However, something more permanent than a
single transaction or transitory act is commonly required to make
the position a public office.
PUBLIC OFFICE vs PUBLIC EMPLOYMENT
Public Office - position created by law, with duties cast upon the
incumbent which involve the exercise if some portion of the
sovereign power, in the performance of which the public is
concerned
Public Employment - a position which lacks one or more the
foregoing elements. It is a position created not by force of law,
but by contract of employment. It does not rise to the dignity of
an office.
PRESUMPTION OF REGULARITY OF OFFICIAL ACTS
Public officers enjoy the presumption of regularity in the exercise
of their functions. Thus, absent clear and convincing proof, the
bare allegation that a public officer acted with malice or prejudice
cannot be sustained.
As a general rule, "official acts" enjoy the presumption of
regularity, and the presumption may be overthrown only by
evidence to the contrary. When an act is official, a presumption of
regularity exists because of the assumption that the law tells the
official what his duties are and that he discharged these duties
accordingly.
But not all acts of public officers are "official acts," i.e. acts
specified by law as an official duty or as a function attached to a
public position, and the presumption does not apply when an
official's acts are not within the duties specified by law,
particularly when his acts properly pertain or belong to another
entity, agency, or public official.
OFFICER / PUBLIC OFFICER / EMPLOYEE
Officer - one inseparably connected with an office, and so it may
be said that one who holds a "public office," as that term is herein
before defined, is a public officer. When there is no office, there
can be no public officer. A public officer is such an officer as
required by law to be elected or appointed, who has a designation
or title given to him by law, and who exercises functions
concerning the public, assigned to him by law.
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.
An "officer," as distinguished from the "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
government power, "officer" includes any government employee,
agent or body having authority to do the act or exercise that
function.
OFFICER vs EMPLOYEE
Law of Public Officers
Officer - distinguished from an "employee" in the greater
importance, dignity, and independence of his position, being
required to take an official oath, and perhaps give an official
bond, and in the liability to be called to account as public officer
or misfeasance or non-feasance in office.
A public officer must be invested by law with a portion of the
sovereignty of the State, and authorized to exercise functions
either of an executive, legislative, or judicial character.
The fact that the position is a subordinate one and that its holder
maybe accountable to a superior does not prevent it from being
an office, or the incumbent an officer as distinguished from a
mere employee. A subordinate or inferior is nonetheless an
officer. A degree if responsibility for results rests upon a public
officer that does not attach to a mere employee.
Revised Penal Code
Public Officer - Any person who, by direct provision of law,
popular election or appointment by competent authority, takes
part in the performance of public functions in the Government of ----------------------------------------------------------------------------------------
the Philippines, or performs in said Government or in any of its
branches, public duties as an employee, agent or subordinate ELIGIBILITY AND QUALIFICATIONS
official, or of any rank or class.
ELIGIBILITY - the state or quality of being legally fitted or qualified
to be chosen. Eligibility to a public office is of a continuing nature
This definition eliminates the standard distinction between and must exist both at the commencement and during the
"officer" and "employee" in the law of public officers. It is also occupancy of an office.
quite comprehensive, embracing as it does, every public servant
from the highest to the lowest. ELIGIBLE - legally fitted or qualified to hold an office, i.e., having
all the qualifications and none of the ineligibilities to occupy the
PUBLIC OFFICIAL office. It refers to a person who obtains a passing grade in a civil
service examination or is granted civil service eligibility and
whose name is entered in the register of eligibles.
Public Official - defined as an officer of the Government itself, as
distinguished from the officers and employees of
INELIGIBILITY - refers to the lack of the qualifications prescribed
instrumentalities of government. Hence, the duly authorized by the Constitution or applicable law for holding public office
acts of the former are those of the government, unlike those of
government instrumentality which may have a personality of its INELIGIBLE
own, separate and distinct from that of the government, as such.
(GONZALES vs HECHANOVA, 9 SCRA 230) The term is used 1) Legally or otherwise disqualified to hold an office
2) Disqualified to be elected to an office
synonymously with public officer.
3) Disqualified to hold an office
Ministerial Officer - includes any office whose officers are The mere certification of a person by the Civil Service Commission
charged with the duty to execute the mandates lawfully issued, of as a civil service eligible does not amount to an appointment to
their superior. any position, nor does it insure appointment, as the appointing
power has the right of choice, to be freely exercised according to
STATE IMMUNITY FROM SUIT vs OFFICIAL IMMUNITY FROM his judgment, as to who is best qualified among those eligible.
SUIT
QUALIFICATION - refer to the endowment or accomplishment
that fits one for office. It may refer to the act which a person,
SUITS AGAINST CAN BE SUED CANNOT BE SUED
before entering upon the performance of his duties, is, by law,
Republic of the -if with consent -yes, if it gives
required to do, such as the taking, and often, subscribing and
Philippines -liable if in the strict consent only
filing of an official oath, and, in some cases, the giving of an
application of the law or
official bond.
if injustice exists
Unincorporated -if it performs -if against the State Subject to constitutional limitations, Congress may determine the
Government proprietary functions -if performing eligibility and qualifications of officers and provide for the
Agency (depends) governmental methods of filling offices.
functions
-if performing Under our political system, the right to hold a public office is not a
proprietary natural right. While many rights are consecrated as universal an
functions, incidental inviolable, the right of eligibility to offices is not so secured. It
to governmental exists, where it exists at all, only because and by virtue of some
functions law expressly or impliedly creating and conferring it.
GOCC's - business character - no, if charter says
- charter of GOCC states it cannot be sued QUALIFICATIONS USUALLY REQUIRED OF PUBLIC OFFICERS
that it can be sued
Public Officer - personal capacity - liability on 1) Citizenship - It is a general principle that aliens are not eligible
- exceeded authority Government to public office, unless the privilege is extended to them by
- tort -if performing statute.
- government has no within scope of
interest in outcome of authority 2) Age - The fact that a person has reached his majority does not
the case necessarily qualify him, so far as age in concerned, to hold every
office. The age limit for certain offices may, by constitutional ot
*Waiver express- if within the law statutory provisions, be placed beyond the period of majority.
implied - contract,
initiates suit 3) Right of Suffrage - Since the right of suffrage is generally
denied to those who are not citizens, the exclusion of
unnaturalized foreigners from public office is likewise
accomplished by permitting none but electors or voters to be
public officers.

4) Residence - A candidate for election or appointment to an

office of a political subdivision or unit may be required by
provision or statute to be a resident or inhabitant thereof.
5) Education - Statutes prescribe educational qualifications when
they reasonably relate to the specialized demands of an office,
enabling the holder to properly and intelligently perform the
duties of such office. Hence, there are certain offices which can be
properly filled only by persons possessing professional
attainments.
6) Ability to read and write - This qualification may lawfully be
made since there is no constitutional prohibition against it,
especially where it has reasonable relationship to the duties of
the position in question.
7) Political Affiliation - Since running for and holding political
office are forms of political expression, there must exist a
compelling state interest in order to uphold the validity of
restrictions on holding political office.
8) Civil Service Examination / Eligibility - Qualifications inan
appropriate examination for appointment to positions on the first
and second levels in the career service is required under the Civil
Service Law to insure that such appointment is made only
according to merit and fitness to perform the duties and assume
the responsibilities of the positions.
DISQUALIFICATIONS TO HOLD PUBLIC OFFICE
1) Mental or Physical Incapacity - From the very nature of the
case, an idiot or other person non compos mentis is incapable of
accepting or holding public office. The law may expressly require
that a public officer be in possession of his mental faculties.
2) Misconduct or crime - 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.
3) Impeachment - Under the Constitution, 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.
4) Removal or suspension from office - The grounds for removal
or suspension from office includes acts which would disqualify
once from holding office. The question here is whether the
suspension or removal itself operates to disqualify one from
holding the same or another office.
5) Previous tenure of office - Under the Constitution, a disability
to succeed to office is imposed upon certain officers.
6) Consecutive terms - The Constitution likewise prohibits the
holding of certain elective offices by the same persons for more
than an stated number of consecutive terms. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for
the full term for which he was elected.
7) Holding more than one office - The manifest purposes of a
restriction on multiple holdings 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 their dual position-holding.
8) Relationship with the appointing power - Since a public office
is a public trust, created for the benefit and in the interest of the
people, appointments thereto should be based solely on merit
and fitness uninfluenced by any personal or filial consideration,
9) Office newly created or the emoluments of which have been
increased - The purpose sought to be accomplished by such
provision is not merely to prevent an individual legislator from
profiting by an action taken by him with bad motives, but to
prevent all legislators from being influenced by either conscious
or unconscious selfish motive.
10) Being an elective official - The Constitution seeks to minimize
the so-called "spoils system." The disqualification subsists only
during the tenure in office (not term of office) of the elective
official. He may be appointed provided he forfeits his seat.
11) Having been a candidate for any elective position - Under the
Constitution, 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 and controlled
corporations or in any of their subsidiaries. The provision is
directed against the so-called "political lame ducks."
12) Under the Local Government Code
a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one year or more
of imprisonment, within two 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) Fugitive 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
g) The insane or feeble-minded
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ACQUISITION OF RIGHT OR TITLE TO OFFICE
The manner of selecting persons for public office is generally by
election or appointment.
APPOINTMENT - is the act of designation by the executive
officer, board, or body to whom that power has been delegated,
of the individual who is to exercise the powers and functions of
a given office. In this sense, it is to be distinguished from the
selection or designation by a popular vote.
Appointment is in law, equivalent to "filling a vacancy" in an
office. As to its nature, it is either permanent or temporary
(acting)
The term "appoint," whether regarded in its legal or ordinary
acceptation, is applied to the nomination or designation of an
individual to an office.
WHERE APPOINTING POWER RESIDES
Inherently belongs to the people
The selection of persons to perform the functions of government
is primarily a prerogative of the people. Since the people are the
source of government, the power of selecting persons for public
office inherently belongs to them. But the people cannot always
be called upon to act immediately when the selection of an
official is necessary. It may be said, therefore, that the power of
appointment to public offices belongs to where the people have
chosen to place it by their Constitution or laws.
Entrusted to designated elected and appointed public officials
The appointment of public officials is generally looked upon a
properly belonging to the executive department. Appointments
may also be made by Congress or the courts, but when so made
should be taken as an incident to the discharge of functions within
their respective spheres. The exceptions made in favor of
Congress as to appointments to office strengthen rather than
weaken the grant of power to appoint officers in the executive.
Absent any contrary statutory provision, the power to appoint
carries with it the power to remove or discipline.
POWER TO APPOINT DISCRETIONARY
1) Power of courts to review appointment - Appointment or
reappointment (issuance of new appointment) of a public officer
involves the exercise of discretion, which, unless gravely abused,
the courts will not attempt to control. It cannot be the subject of
an application for a writ of mandamus to compel the exercise of
such discretion.
This task of appointment is essentially discretionary and cannot
be controlled even by the courts as long as it is properly and not
arbitrarily exercised by the appointing authority.
2) Power of the Civil Service Commission to revoke appointment
- The Commission has no authority to revoke an appointment on
the ground that another person is more qualified for a particular
position. It has also no authority to direct the appointment of a
substitute of its choice or a successful protestant.
WHEN APPOINTMENT DEEMED COMPLETE
1) Not subject to confirmation - Where the power of
appointment is absolute, and the appointee has been determined,
no further consent or approval ins necessary, and the formal
evidence of appointment, i.e., the commission, may issue at once.
2) Subject to confirmation - Where the assent or confirmation of
some other officer or body is required, the commission can issue
only when such assent or confirmation is obtained. In either case,
the appointment becomes complete when the last act required by
law of the appointing power has been performed.
3) Approval by the Civil Service Commission - Appointment to
positions in the Civil Service must be submitted to the
Commissioner of Civil Service for approval.
Where the appointee is a qualified service eligible, the
Commissioner of Civil Service has no choice but to attest the
appointment. The attestation required is merely a check to
assure compliance with the Civil Service Law. As stated above,
appointment is not only complete but valid upon performance of
the last act required of the appointing power. However, the
appointment is subject to the condition that if the Commissioner
of Civil Service would later on reject the appointment by reason of
lack of eligibility, then the appointment shall lapse despite
attestation.
The acts of the appointing power (head of department or office)
and the approval of the Commission acting together though not
concurrently, but consecutively, are necessary to make an
appointment complete. The confirmation or attestation of the
appointment by the Civil Service Commission does not complete
the appointment since such attestation, though an essential part
of the appointing process, serves merely to assure the eligibility
of the appointee.
4) Effects of completed appointment - Having once made the
appointment, the appointing officer's power over the office is
terminated in all cases where by law the officer is not removable
by him. The right to the office is then in the person appointed,
and he has the absolute unconditional power of accepting or
rejecting it. No new or further appointment could be made to a
position already filled by a previously completed appointment
which had been accepted by the appointee through a valid
qualification and assumption of uts duties.
ACCEPTANCE OF APPOINTMENT
Appointment to a public office necessarily precedes acceptance
by the appointee and is accordingly distinct from it.
1) Not necessary to completion or validity of appointment - The
appointment is the sole act of those vested with the power to
make it, just as the acceptance is the sole act of the appointee.
Therefore, where there is no express provision of the law to the
contrary, the appointee's acceptance of the office is not necessary
to complete the appointment.
2) Necessary to possession of office - While acceptance of
appointment is not necessary to give it validity, the individual
chosen to an office cannot be deemed to be either fully possessed
of its rights and privileges or subject to the performance of its
duties and obligations until he has, in fact, accepted it.
Acceptance is, therefore, necessary to enable the appointee to
have full possession, enjoyment, and responsibility of an office.
An appointee cannot impose his own conditions for the
acceptance of a public office. He may only either accept or decline
it.
FORM OF ACCEPTANCE
1) Express - done verbally or in writing. The best formal evidence
of the acceptance is the qualification of the officer appointed by
taking the oath of office. In some instances, the law requires that
a bond be posted
2) Implied - without formal acceptance, the appointee enters
upon the exercise of the duties and functions of an office.
APPOINTMENTS BY THE PRESIDENT
Power of appointment of the President
The power of the President to appoint officers in the government
is conferred upon him by the provision of the Constitution which
reads:
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 other officers of the
Government whose appointments are not otherwise provided 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, 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 disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.
Groups of Officials the President is authorized to Appoint
1) Heads of 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 the Constitution. The "other
officers" referred to therein are the regular members of the
Judicial and Bar Council, the Chairman and Commissioners of the
Civil Service Commission, the Chairman and Commissioners of the
Commission on Elections, the Chairman and Commissioners of the
Commission on Audit, and the Members of the regional
consultative commission
2) All other officers whose appointments are not otherwise
provided by law and they refer to officers to be appointed to
lower offices created by Congress where the latter omits to
provide for appointment to said office, or provides in an
unconstitutional way for such appointments
3) Those whom the President may be authorized by law to
appoint such as the heads of government-owned or controlled
corporations, undersecretaries, heads of bureaus and offices, and
other officials
4) Other officers lower in rank whose appointments the Congress
by law vests in the President alone
Confirmation of Appointments by Commission of Appointments
1) Only the officers in the first group above are appointed with
the consent or confirmation of the Commission on Appointments.
Congress cannot, by law, require confirmation of appointments of
other officers.
Heads of bureaus like the Securities and Exchange Commission,
Insurance Commission, etc., are no longer included among those
whose appointments are to be confirmed by the Commission on
Appointments. They are civil service officers whose appointments
are supposed to be made only according to merit and fitness.
2) The President, under the Constitutions, appoints the members
of the Supreme Court, judges of lower courts, including the
Sandiganbayan, and the Tanodbayan and his Deputies from a list
prepared by the Judicial and Bar Council. Such appointments need
no confirmation. The same is true when the Vice-President is
appointed as a member of the Cabinet.
3) The Constitution does not state the appointing authority with
respect to the Chairman and Members of the Commission on
Human Rights. There is no doubt, however, that the power to
appoint them is lodged in the President. The Administrative Code
of 1987 states that they shall be appointed by the President. Their
appointments are also not subject to confirmation by the
Commission on Appointments because they are among the
officers of government whom the President may be authorized by
law to appoint, pursuant to the Constitution.
APPOINTMENTS BY OTHER OFFICIALS
Under the Constitution, Congress may, by law vest in courts,
heads of departments, agencies, commissions, or boards the
power to appoint officers lower in rank (e.g., Chiefs of divisions
or sections) in their respective offices. The phrase "lower in
rank" refers to officers subordinate to those enumerated officers
in whom respectively the power of appointment may be vested -
the heads of executive departments, agencies, commissions, and
boards. Appointments of minor employees may also be vested
in them. The Supreme Court appoints all officials and employees
of the judiciary.
KINDS OF PRESIDENTIAL APPOINTMENTS
As to manner in which it is made:
1) Regular - made while Congress is in session. They are actually
mere nominations subject to confirmation by the Commission on
Appointments
2) Ad interim - made while Congress is not in session of during its
recess
As to nature:
1) Permanent - last until they are lawfully terminated
2) Temporary or acting - last until a permanent appointment is
issued
Regular and Ad Interim Appointments
- required to be submitted to the Commission on Appointments
- Appointments that are for the President solely to make without
the participation of the Commission on Appointments cannot be
ad interim appointments. The President's voluntary act of
submitting such appointments to the Commission and the latter's
act of confirming or rejecting the same would be without or
excess of jurisdiction
Temporary Appointments
- two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President
shall not make appointment, except temporary appointments to
executive positions when continued vacancies therein will
prejudice service or endanger public safety
AD INTERIM APPOINTMENTS
Ad Interim Appointments - appointments made by the President
during the recess of Congress, whether such recess is voluntary or
compulsory.
Compulsory Recess - takes place when Congress adjourns
Voluntary Recess - takes place before the adjournment of
Congress (e.g. Christmas recess)
The Commission on Appointments which approves major
appointments of the President meets only while Congress is in
session. The recess appointment power keeps in continuous
operation the business of government when Congress is not in
session. But the appointments shall cease to be effective upon
rejection by the Commission on Appointments, or if not acted
upon, at the adjournment of the next session, regular or special,
of Congress.
In the second situation, the appointment remains effective until
the end of the session following such appointment or "until the
next adjournment," not until the next voluntary recess. This is to
give the Commission on Appointments time to deliberate upon
the appointment before confirming or rejecting it.
When the President makes appointments with the consent of the
Commission on Appointments, he has the benefit of their advice.
When he makes ad interim appointments, he exercises a special
prerogative and is bound to be prudent, to insure approval of his
selection either by previous consultation with the members of the
Commission on Appointments or by thereafter explaining to them
the reason for such selection.
The reason for this is that an ad interim appointment contradicts
the theory of checks and balances in that it permits the executive
alone to make an appointment permanent and effective in
character without the previous scrutiny and concurrence of the
legislative power, acting through the Commission.
The grant of the power is justifiable only on the theory of an
existing clear and present urgency caused by an impending
obstruction or paralyzation of the functions assigned to the office
to be filled if not immediate appointment is made. Its sole
purpose is to render it certain that at all times there should be,
whether Congress is in session or not, an officer for every office,
entitled to discharge the duties thereof.
A temporary appointment is, in essence, an acting appointment. It
is well-settled that one who holds a temporary or acting
appointment has no fixed tenure of office, and, therefore, his
employment can be terminated at the pleasure of the appointing
power even without hearing or cause. (ERASMO vs HOME
INSURANCE AND GUARANTY CORPORATION, 388 SCRA 112)
An ad interim appointment is nevertheless permanent in nature
and not a mere temporary or acting appointment notwithstanding
that it is subject to confirmation by the Commission on
Appointments. However, it may be recalled or revoked by the
President before confirmation.
ROSALES vs YENKO, 15 SCRA 766
Ad interim appointment was not released to and accepted by
appointee before confirmation by the Commission on
Appointments
FACTS: In July 26, 1958, the President appointed Rosales ad
interim Chairman of the Board of Examiners for Chemists, for a
term expiring July 15, 1961. On July 16, 1961, he was reappointed
as the acting Chairman of the same Board. On November 6, 1961,
the President signed Rosales ad interim appointment but the
same was not released to the latter. Respondent Yenko however,
admits that a copy thereof was transmitted to the Commission on
Appointments on December 26, 1961, on the basis of which said
Commission took cognizance on the appointment and confirmed
it on May 16, 1962.
On July 31, 1962, the Commissioner on Civil Service informed
Rosales that his last ad interim appointment had been recalled
and declared without effect by virtue of Administrative Order No.
2, dated December 31, 1961, and on November 5, 1962, the new
President appointed Yenko as acting Chairman of the Board of
Medical Examiners, who thereafter assumed the functions of the
said office. Said appointment was contested by Rosales.
ISSUE: Whether or not the appointment of Rosales is valid, legal,
and subsisting, and, therefore, render that of Yenko null and void
HELD: No. Ad interim appointment not released. - The petition
under consideration does not allege that the original of the last ad
interim appointment was transmitted to, and was received by
Rosales, obviously because the said original was never released by
the Office of the President. Neither does it allege that upon
receipt thereof, Rosales had accepted the appointment and duly
qualified for the position. He merely alleges that he "performed
the duties and obligations of Chairman" of the Board, that the
Executive Secretary notified him by telephone that his last ad
interim appointment had already been signed by him.
Ad interim appointment incomplete. - This allegations are not
sufficient to take the place of a clear proof that the ad interim
appointment was not only duly signed but was released to
Rosales, and that by virtue thereof, he had accepted it and duly
qualified for the position. His ad interim appointment being
incomplete, there was in fact and in law no ad interim
appointment that could be validly transmitted to and acted upon
by the Commission on Appointments. Rosales failed to allege and
prove that he is rightfully entitled to the office in question.
DESIGNATIONS
Designation - simply the mere imposition of new or additional
duties upon an officer to be performed by him in a special
manner while he performs the function of his permanent office.
1) It presupposes that the officer is already in the service by virtue
of an earlier appointment, performing other functions. It is
revocable and temporary in character for it does not confer upon
the designee security of tenure in all the position or office which
he occupies in an "acting" capacity only.
2) Designation does not entitle the officer designated to
additional benefits or the right to claim the salary attached to the
position.
STEPS IN THE APPOINTING PROCESS
The President's power of appointment of officers subject to the
confirmation of the Commission on Appointments involves three
steps:
1) Nomination - it is the exclusive prerogative of the President
upon which no limitation may be imposed by Congress, except
those resulting from the need of securing the concurrence of the
Commission on Appointments and from the exercise of the
limited legislative power to prescribe the qualifications to a given
appointive office.
He may listen to and accept the recommendation or advice of
others, or yield to their request or pressure, but legally, he alone
is responsible for his nominations.
2) Confirmation - while the power to appoint is essentially an
executive function, the power to confirm or reject certain
appointments belongs to Congress, the latter having been
conferred as a check on the former. This power to check is
exercised through the members of both Houses in the
Commission on Appointments.
a) There is no appointment yet in the strict sense until it is
confirmed. Thus, the appointment is a joint act of the President
and the Commission on Appointments.
b) The constitutional intent is to strike a careful and delicate
balance in the matter of appointments for the President and
Congress (the latter through the Commission).
c) A confirmation of an appointment to a public office is to be
distinguished from the appointment itself, for in confirming the
appointment, the Commission on Appointments does not in any
sense choose the appointee. The act of confirming an
appointment to office is not the exercise of an executive function,
and since it is not legislative in character, it need not be
performed at a regular session of Congress.
d) A confirmation cannot be reconsidered after the President has
been notified of the confirmation and has completed the
appointment by issuing a commission to the appointee, who
thereupon assumed the office, even though the rules of the
confirming body provide for reconsideration.
3) Issuance of Commission - the term "commission" has been
defined as a written authority from a competent source given to
the officer as his warrant for the exercise of the powers and
duties of the office to which he is commissioned. It is the written
evidence of the appointment, but not the appointment itself,
although in some instances, they may seem inseparable because
of the difficulty of showing the appointment otherwise than by
showing the existence of the commission which becomes
conclusive evidence of the appointment as soon as it gets signed
by the President.
APPOINTMENTS IN THE CIVIL SERVICE
The Civil Service System
Scope - The Civil Service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original
charter. The intention of the Constitution is to extend the
requirements and benefits of the Civil Service System - national
and local - including the military establishment.
Purpose - The Civil Service System rests on the principle of
application of the merit system instead of the spoils system in
the matter of appointment and tenure of office. Civil Service laws
are not penal in nature, but are designed to eradicate the system
of making appointments primarily from political considerations
with its attendant evils, to eliminate as far as practicable the
element of partisanship and personal favorites in making
appointments, to establish a merit system of fitness and efficiency
as the basis of appointments, and to prevent discrimination in
appointments to public service based on any consideration other
than fitness to perform its duties.
Its primary purpose is to enable the national and local
government and all its instrumentalities and agencies to render
more efficient services to the public by enabling them to obtain
efficient public servants.
CLASSIFICATIONS OF POSITIONS IN THE CIVIL SERVICE
CAREER SERVICE
- characterized by:
a) Entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly
technical qualifications
b) Security of tenure
c) Opportunity for advancement to higher career positions
- includes:
a) Open career positions for appointments to which prior
qualification in an appropriate examination is required
b) closed career positions which are scientific or highly technical
in nature; these include the faculty and academic staff of state
colleges and universities, and scientific and technical positions in
scientific or research institutions which shall establish and
maintain their own merit system
c) Positions in the career executive service, namely
Undersecretary, Assistant Secretary, Bureau Director, Assistant
Bureau Director, Chief of Department Service, and other officers
or equivalent rank as may be identified by the Career Executive
Service Board, all of whom are appointed by the President
d) Career officers other than those in the Career Executive Service
who are appointed by the President such as the Foreign Service
Officers in the Department of Foreign Affairs
e) Commissioned officers and enlisted men of the Armed Forces
which shall maintain a separate merit system
f) Personnel of government-owned and controlled corporations
whether performing governmental and proprietary functions who
do not fall under the non-career services
g) Permanent laborers, whether skilled, semi-skilled or unskilled
NON-CAREER SERVICE
- characterized by:
a) Entrance on bases other than those of the usual test of merit
and fitness utilized for the career service
b) Tenure which is limited to a period specified by law, or which is
co-terminous with that of the appointing authority or subject to
his pleasure, or which is limited to the duration of a particular
project for which purpose employment was made
- includes:
a) Elective officials and their personal or confidential staffs
b) Department heads and other officials of cabinet rank who hold
positions at the pleasure of the President and their personal or
confidential staffs
c) Chairmen and members of commissions and boards with fixed
terms of office and their personal or confidential staffs
d) contractual personnel, or those whose employment in the
government is in accordance with a special contract to undertake
a specific work or job 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 with a minimum of direction and
supervision from the hiring agency
e) Emergency and seasonal personnel
**casual - another type of non-career employee where and when
the employment is not permanent but occasional, unpredictable,
sporadic and brief in nature.
**previous classifications: competitive service, non-competitive
service or unclassified service, exempt service)
CLASSES OF POSITIONS IN THE CAREER SERVICE
1) Three major levels
a) First Level - clerical, trades, crafts, and custodial service
positions which involve non-professional or sub professional
work in a non-supervisory or supervisory capacity requiring less
than four years of collegiate studies
b) Second Level - includes professional, technical, and scientific
positions which involve professional, technical, or scientific work
in a non-supervisory or supervisory capacity requiring at least four
years of college work up to Division Chief level
c) Third Level - covers positions in the Career Executive Service
In order to qualify an appointment as permanent, the appointee
must possess the rank appropriate for the position. Failure in this
respect will render the appointment temporary. Security of
tenure in the Career Executive Service is acquired with respect to
rank, and not to the office or position. The guaranty of security of
tenure to members of the CES does not extend to the particular
positions to which they may be appointed - a concept which is
applicable only to the first and second-level employees in the Civil
Service - but to the rank to which they are appointed by the
President. (DIMAYUGA vs BENEDICTO, G.R. No. 144153)
Thus, a CES officer may be transferred or reassigned from one
position to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO suffers
no diminution of duty even if assigned to a CES position with
lower salary grade, as compensation is according to CES rank and
not on the basis of the position or office occupied. (IGNACIO vs
CIVIL SERVICE COMMISSION, 464 SCRA 220)
2) Requirement of Competitive Examinations
- except as otherwise provided, entrance to the first two levels are
through competitive examinations, which shall be open to those
inside and outside the service who meet the minimum
qualification requirements. Entrance to a higher level does not
require previous qualifications in the lower level. Entrance to the
third level is prescribed by the Career Executive Service Board.
Within the same level, no civil service examination is required for
promotion to a higher position in one or more related
occupational groups. A candidate for promotion should, however,
have previously passed the examination for the level.
CONSTITUTIONAL CLASSIFICATION OF POSITIONS IN THE CIVIL
SERVICE
1) Competitive - those whose appointments are made according
to merit and fitness to be determined as far as practicable by
competitive examinations
2) Non-competitive - those whose appointments do not have to
take into account merit and fitness as determined by
competitive examinations. To the latter belongs those positions
described by the Constitution as "policy-determining, primarily
confidential, or highly technical in nature."
DETERMINATION OF MERIT AND FITNESS BY COMPETITIVE
EXAMINATIONS
The selection of any appointee to any government position shall
be made only according to merit and fitness to be determined as
far as practicable by competitive examination to perform the
duties and assume the responsibilities of the position, without
regard to any other consideration such as sex, color, social status,
religion, or political affiliation.
It insures that appointments to office is made from among those
who, by examination, have shown themselves to be best
qualified.
1) An examination, to be competitive within the meaning of the
constitutional provision, must be given under an objective
standard of grading; it must conform to measures or standards
which are sufficiently objective to be capable of being challenged
and reviewed, when necessary, by other examiners of equal
ability and experience.
2) The examination must be competitive in substance, not merely
in form.
3) An oral examination may be competitive where tests of manual
or professional skill are necessary, provided the examination
questions are such as to best determine the practical and
technical qualifications of the applicants to perform the duties of
the position to be filled.
The mere fact that the measurable standards for determining the
general proficiency of a candidate for a particular position are
subjective rather than objective does not prevent an oral
interview from being a competitive examination where it tests all
candidates for the same personality factors, each candidate
pitting his personality traits against those of every candidate.
(DELOS SANTOS vs MALLARI)
EXEMPTION FROM RULE OF NON-COMPETITIVE POSITIONS
Under the Constitution, policy-determining, primarily confidential,
and highly technical positions are exempt from the rule requiring
appointments in the Civil Service to be made on the basis of merit
and fitness to be determined as far as practicable by competitive
examinations.
1) POLICY-DETERMINING - a position where its occupant is vested
with the power of formulating policies for the government or any
of its agencies, subdivisions, or instrumentalities, like that of a
member of Cabinet
2) PRIMARILY CONFIDENTIAL - a position where its occupant
enjoys more than the ordinary confidence in his aptitude of the
appointing power but bears primarily such close intimacy which
insures freedom of intercourse without embarrassment or
freedom from misgiving of betrayal of personal trust on
confidential matters of State, like that of a private secretary or a
confidential agent. For someone holding a primarily confidential
position, more than ordinary confidence is required.
3) HIGHLY TECHNICAL - a position where its occupant is required
to possess skills or training in the supreme or superior degree,
(DELOS SANTOS vs MALLARI) like that of a scientist.
The assumption that an officer holding a position which is
primarily confidential in nature is subject to removal at the
pleasure of the appointing power is inaccurate. (INGLES vs
MUTUC, 26 SCRA 171)
The position of a City Engineer may be technical but not highly so
because he is not required or supposed to possess a supreme or
superior degree if technical skill. The duties of a city engineer are
eminently administrative in character which could be discharged
even by non-technical men. (GRINO vs CIVIL SERVICE
COMMISSION, 194 SCRA 458)
QUALIFICATION STANDARDS IN THE CIVIL SERVICE
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.
1) Use of qualification standards
a) as basis for civil service examinations for positions in the career
service
b) as guides in the appointment and other personnel actions in
the adjudication of protested appointments
c) in determining training needs
d) as aid in the inspection and audit of the agencies' personnel
work programs
2) Establishment, administration and maintenance of
qualification standards - Qualification standards 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
3) Approval of Qualification Standards - Without a duly approved
qualification standard, it would be extremely difficult if not
impossible for the appointing authority to determine the
qualification and fitness of an applicant for a particular position. It
would have no basis or guide in extending promotional or original
appointment in filling up positions in its department or agency.
4) Offsetting of Deficiencies - When necessary, education,
experience or training may be used interchangeably to offset
deficiencies except the required eligibility. The necessity exists if
the appointee's training or experience is of such a level that the
same would more than supplement the deficiency in education
considering the demands of the position in question.
KINDS OF APPOINTMENT IN THE CAREER SERVICE
1) Permanent - one which is issued to a person who meets all the
requirements for the position to which he is appointed, in
accordance with the provisions of law and the rules and standards
promulgated pursuant thereto, including the appropriate
eligibility prescribed; it lasts until lawfully terminated. It is
entitled to security of tenure.
2) Temporary - one which is issued to a person who meets all the
requirements for the position to which he is being appointed
except the appropriate civil service eligibility; it shall not exceed
twelve months. The appointee may be replaced sooner if a
qualified civil service eligible becomes available. It does not
become permanent merely because the position is usually
occupied by one appointed thereto permanently or because the
temporary appointee is allowed to continue in it for a number of
years.
INSTANCES OF TEMPORARY APPOINTMENT
1) Where the appointee does not possess civil service eligibility,
the appointment is considered temporary. The subsequent
acquisition of the required eligibility will not make a temporary
appointment regular or permanent. A new appointment, not
merely reinstatement, is needed.
2) It shall not exceed twelve months. It is one with civil service
eligibility but different from that which is appropriate to the
position for which he was appointed. A provisional (temporary)
appointee does not have the appropriate eligibility to the position
but the law gives him the privilege of occupying the position in
the absence of an eligible and until the availability of an
appropriate eligible is certified.
3) An appointment by the President of someone to fill an
executive office during the absence or incapacity of the
incumbent is temporary.
4) As long as the appointee has not passed any civil service
examination in accordance with the rules and regulations of the
Civil Service, the nature of his appointment is always temporary.
5) There is no complete appointment to speak of, at most,
pending compliance with a condition, the appointee is holding
only a temporary appointment. It remains temporary until the
condition is met.
6) A regular government employee who has been illegally
suspended or dismissed is entitled to be reinstated; there is no
vacancy to which a new incumbent can be permanently
appointed, his appointment being considered temporary and he
has to give way to the employee whose right to the office has
been recognized by the competent authorities.
7) One who is designated as officer in charge does not have any
vested right over the position nor even tenure of office. His
continued stay in office depends upon the appointing power. He
can be suspended and replaced anytime.
8) An appointment held at the pleasure of the appointing power
is, in essence, temporary in nature. When the appointing power
opts to replace the incumbent, technically there is no removal but
only an expiration of the term; hence, there is no need of prior
notice, due hearing or sufficient grounds before the incumbent
can be separated from office.
APPOINTMENT THROUGH CERTIFICATION
An appointment through the certification to a position in the civil
service, except as 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 (i.e., list
of names of those who passed competitive examinations) and
who meets all the other requirements of the position.
VACANCY
Vacancy - there is vacancy when an office is empty and without
a legally qualified incumbent appointed or elected to it with a
lawful right to exercise its powers and perform its duties.
EXISTENCE OF PHYSICAL VACANCY NOT ESSENTIAL
When applied to public officers, the word "vacancy" is not
employed in a technical sense. It does not mean that the office is
necessarily physically vacant.
An office may be vacant when it is occupied by one who is not a
de jure officer, as by a mere usurper, or by one who is holding
over. But although no physical vacancy in the office exists in such
case, there is nevertheless a vacancy in the sense that the
appointing power may proceed to fill the office by choosing a
successor.
APPOINTMENT TO A NON-VACANT POSITION
No person, no matter how qualified or eligible for a certain
position, may be appointed to an office which is not yet vacant.
There can be no appointment to a non-vacant position. The
incumbent must have been lawfully removed or his appointment
validly terminated before one could be validly installed to succeed
him, since an appointment to an office not vacant is null and void
ab initio. (COSTIN vs QUIMBO, 120 SCRA 159)
Where a regular employee is illegally dismissed, transferred, or
demoted, his position does not become vacant.
CAUSES OF VACANCY
1) Vacancy in office results in cases of death, permanent disability,
removal from office or resignation of the incumbent.
2) Abandonment, expiration of term, conviction of a crime,
impeachment conviction, acceptance of incompatible office,
creation of a new office, reaching the age limit, and recall. A
vacancy may also arise by failure of persons chosen for office to
accept or qualify for the office.
In a case, the nomination by the outgoing President (whose term
expired on December 31, 1961) was submitted to the Commission
on Appointments before it began its session on January 2, 1962. It
was held that the new President could recall the nomination
before the Commission began its session. Otherwise, the outgoing
President would be making an appointment to take effect after he
has ceased to be President. (SIGUESTE vs SECRETARY OF JUSTICE,
9 SCRA 598)
QUALIFYING TO OFFICE
The person appointed or elected to a public office is usually
required by law, before entering upon the performance of his
duties, to do some act by which he shall signify his acceptance of
the office and his undertaking to execute the trust confided in
him. The act is ordinarily termed qualification. It generally
consists of the taking, and often of subscribing and filing of an
official oath and in some cases, of the giving of an official bond,
if any, required by law.
OATH OF OFFICE FOR PUBLIC OFFICERS AND EMPLOYEES
Oath - an outward pledge whereby one formally calls upon God to
witness to the truth of what he says or to the fact that he
sincerely intends to do what he says.
All public officers and employees shall take an oath or affirmation
to uphold and defend the Constitution.
NECESSITY OF OATH OF OFFICE
An oath of office is a qualifying requirement for a public office; a
prerequisite to the full investiture with the office.
1) It is only when the public officer has satisfied the prerequisite
of oath that his right to enter into the position becomes plenary
and complete.
2) Although the law usually requires the taking of an oath, it is not
indispensable. It is mere incident to the office and constitutes no
part of the office itself.
3) The President, the Vice-President, or the Acting President,
cannot enter on the execution of his office without taking
prescribed oath or affirmation. The oath-taking is mandatory. It
marks the official induction of the official in office.
4) Unless the law expressly requires more, it is sufficient that the
oath be taken. It need not be in writing or be subscribed by the
affiant.
OFFICERS AUTHORIZED TO ADMINISTER OATH
1) Notaries Public, Members of the Judiciary, Clerks of Court, the
Secretary of either House of the Congress of the Philippines,
Secretaries of Departments, Bureau Directors, Registrars of
Deeds, Provincial Governors and Lieutenant-Governors, City
Mayors, and other officer in the service if the government of the
Philippines whose appointment is vested in the President.
2) Another officer whose duties, as defined by law or regulation,
require presentation to him of any statement under oath.
PUBLIC OFFICERS AND EMPLOYEES REQUIRED TO GIVE BONDS
Accountable public officers or those whom are entrusted the
collection an custody of public money, and public ministerial
officers whose actions may affect the rights and interests of
individuals, are usually required to secure the faithful and proper
discharge of their duties by giving bods conditioned to that effect.
They may also be required to renew their bonds or give additional
bonds.
A public official bond ordinarily includes all officers who have
custody of public funds. The officials, to be sure, woud be
individually liable for any loss. The requirement of an official
bond, therefore, is to protect public funds.
DE FACTO OFFICERS
THE DE FACTO DOCTRINE
De Facto Doctrine - is the principle which holds that a person
who, by the proper authority, is admitted and sworn into office
is deemed to be rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or
his admission thereto is declared void.
DE FACTO OFFICER, DEFINED
De Facto Officer - one who has the reputation of being the officer
he assumed to be and yet is not a good officer in point of law.
A de facto officer is one who derives his appointment from one
having colorable authority to appoint if the office is an
appointive office, and whose appointment is valid on its face. He
may also be one who is in possession of an office in the open
exercise of its functions under color of an election or an
appointment even though such election or appointment may be
irregular or informal, so that the incumbent is not a mere
volunteer. (DIMAANDAL vs COMMISSION ON AUDIT, 291 SCRA
322)
DE JURE OFFICER, DEFINED
De Jure Officer - one who has the lawful right to the office in all
respects but who has either been ousted from it, or who has
never actually taken possession of it.
DE JURE OFFICER vs DE FACTO OFFICER
De Jure - rests on right
De Facto - rests on reputation
De Jure - has the lawful right or title to the office
De Facto - has the possession and performs the duties under color
of right or authority without being technically qualified in all
points of law to act
De Jure - cannot be removed in a direct proceeding
De Facto - may be ousted in a direct proceeding against him
It is evident that there can be no officer, either de jure or de facto,
where there is no office to fill. While there can be no de facto
officer where there is no de jure office, there may be a de facto
officer in a de jure office. (TURANDA vs SANDIGANBAYAN, 249
SCRA 342)
USURPER OR INTRUDER DEFINED
Usurper or Intruder - one who takes possession of the office and
undertakes to act officially without any color of right or
authority, either actual or apparent. He is not an officer at all for
any purpose.
DE FACTO OFFICER vs USURPER
De Facto - has a color of right or title to the office
Usurper - has neither lawful title nor color of right ot title to the
office
De Facto - assumes to exercise his functions where the public
does not know nor ought to know his lack of title or authority
Usurper - simply assumes to act as an officer where the public
knows aor ought to know that he is such a usurper
De Facto - may be removed only is a direct proceeding against
him
Usurper - can be ousted at any time in any proceeding
De Facto - all acts otherwise legitimate done by him in the
exercise of his authority as such are valid like those of a de jure
officer insofar as the rights of the public and third persons are
concerned
Usurper - acts are absolutely null and void
PROCEEDINGS TO TRY RIGHT OR TITLE OF A DE FACTO OFFICER
Where it is desired to try the title to the office, quo warranto is
the remedy to be applied, unless a special statutory remedy has
been substituted in its place.
1) The quo warranto proceedings may be instituted only by the
person who claims to be entitled to the office or by the Republic
of the Philippines represented by the Solicitor General or a public
prosecutor
2) An individual who files quo warranto proceedings must set
forth the name of the person who claims to be entitled to the
office and that of the defendant who is unlawfully in possession
thereof and those who claim to be entitled to the same office
may be made parties in order to determine their respective
rights to the office in the same action. An individual cannot oust
two or more persons although the latter are holding illegally
their office unless he is entitled to both of them. (NUENO vs
ANGELES, 76 Phil. 12)
3) A public officer or employee is entitled to the basic
constitutional rights of due process and security of tenure. The
law presumes, in protecting such rights, that, a person acting in a
public office was regularly appointed or elected to it and that
official duty has been regularly performed. Moreover, the law
specifically requires a special civil action of quo warranto in the
name of the Republic of the Philippines or in the name of the
person claiming right or title to a public office or position be
brought against a person illegally holding a public office.
RIGHT TO COMPENSATION OF A DE FACTO OFFICER
1) General Rule - A de facto officer cannot maintain an action to
recover the salary, fees, or other emoluments attached to the
office, even though he has performed the duties thereof on the
theory that the acts of a de facto officer as far as he himself is
concerned are void. Only an officer de jure can maintain an action
for compensation.
2) Exception - One who becomes a public officer de facto without
bad faith in his part, and who renders the services required if the
office, may recover the compensation provided by law for such
services during the period of their rendition, or retain the
emoluments received that time or is legally entitled to the
emoluments of the office.
3) De facto officer merely designated - The rule that a de facto
officer is entitled to receive the salary for services actually
rendered does not apply where the officer was not appointed but
merely designated. Designation does not entail payment of
additional benefits of grant upon the person so designated the
right to claim the salary attached to the position.
*Can the de jure officer claim compensation given by the
Government to the de facto officer?
No. Once de facto officer has received compensation from the
government, the de jure officer cannot recover because the de
factor officer worked for it.
If payment of the salary or other compensation be made by the
government in good faith, to the officer de facto, while he is still
in possession of the office, the government cannot be compelled
to pay it a second time to the officer de jure where he has
recovered the office, at least where the officer de facto held by
color of title.
*Can the de jure officer claim or recover from the de facto
officer?
Yes, when the de facto officer is notified of such that he is no
longer entitled to the position, hence the compensation as well,
de jure officer can recover compensation and any appeal does not
count.
LIABILITIES OF A DE FACTO OFFICER
1) Generally, a de facto officer is held to the same degree of
accountability for official acts as a de jure officer and cannot
escape liability because he has not qualified for failure to file a
bond.
2) A de facto officer may be liable for all penalties imposed by law
for usurping or unlawfully holding office, or for exercising the
functions thereof without lawful right or without being qualified
according to law.
3) A public officer cannot excuse his responsibility for crimes
committed in his official capacity by asserting that he was an
officer de facto.
4) A rightful incumbent of a public office may recover from a de
facto officer the salary received by the latter during the time of
his wrongful tenure, even though the de facto officer occupied
the office in good faith and under color of title.
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. In fine, the rule is that where there is a de jure officer, a
de facto officer, during his wrongful incumbency, is not entitled
to the emoluments attached to the office, even if he occupied
the office in good faith.
The rule was not applied equally in view of the peculiar
circumstances of the case. The respondent de jure officer was
held entitled only to the back pay differentials pertaining to the
difference between the salary rates for the positions of Division
Manager, her rightful office and Administrative Office, the lower
position to which she was appointed. The petitioner de facto
officer was held liable to pay said differentials corresponding from
the time he wrongfully assumed the contested position up to the
time of his retirement. (GENERAL MANAGER, PPA vs
MONSERATE, G.R. No. 129616)
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POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC
OFFICERS
SCOPE OF POWER OF A PUBLIC OFFICER
1) Expressly conferred upon him by the law under which he has
been appointed or elected
2) Expressly annexed to the office by the law which created it or
some other law referring to it
3) attached to the office as incidents to it
LO CHAM vs OCAMPO, 77 Phil. 635
A lawyer in the Department of Justice was temporarily detailed to
assist the City Fiscal of Manila with the same powers and
functions of an Assistant Fiscal
FACTS: Section 1686 of the Revised Administrative Code, as
amended, provides that the Secretary of Justice may appoint any
lawyer, either a subordinate from his office or a competent
person not in public service, temporarily to assist a fiscal or
prosecuting attorney in the discharge of his duties, and with the
same authority or therein as might be exercised by the Attorney
General or the Solicitor General.
Pursuant to such, Lo Cham, a doctor of medicine and lawyer,
acting Chief, Medico-Legal Section in the Department of Justice,
was temporarily detailed to assist the City Fiscal of Manila, with
the same powers and functions of an Assistant Fiscal, by the
Acting Secretary of Justice. He signed and filed the information in
three cases at bar after conducting preliminary investigation. The
defendants' attorney filed a motion to quash due to his lack of
authority to sign informations.
ISSUE: Whether or not Lo Cham has the power and authority to
sign informations
HELD: Yes. Powers and functions of Assistant Fiscal may be
entrusted. - Signing of complaints, making investigations, and
conducting prosecutions are not sacrosanct that only Presidential
appointees or one expressly empowered by law may be permitted
to assume such functions. A lawyer invested with the same
authority as an Attorney General or Solicitor General is presumed
to be competent to be entrusted with any of the duties devolving
on a prosecuting attorney, due to the higher standard of training
and experience required. Even if he does not measure up to the
educational specification imposed by law, this is beside the point.
Scope of duties of a public office. - The duties of a public office
includes all those which truly are within its scope - those which
are essential to the accomplishment of the main purpose for
which the office was created, or which, although incidental r
collateral, are germane to and serve to promote the
accomplishment of the principal purpose. Subject functions are
within inferences to be gathered from the circumstances which
prompted the passage of the law and its predecessors. Its
historical background and construction of its precursors confirm
this.
Subject functions inherent in power to assist a prosecuting
attorney. - The fact that it was the chief law officer and legal
adviser of the government who put it into effect in the discharge
of his duties have an important bearing upon its statutory
meaning. Subject functions are inherent in the power to assist a
prosecuting attorney. It is engrained in the office or designation
itself. The powers of the Solicitor General bestowed on the
appointee should be deemed to be in addition to the powers
inherent to the appointment. If the two phrases meant the same
thing, one would be superfluous.
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. vs
SANTIAGO, 58 SCRA 493
The Public Service Commission (PSC) imposed a fine on a radio
company for failure to render service expected of a radio operator
FACTS: The PSC, acting on complaints by dissatisfied customers of
RCPI, penalized it with a fine. The allegation of RCPI that the
Commission was devoid of such competence is based on the
express limitation found in the Public Service Act expressly
exempting radio companies from the jurisdiction, supervision, and
control of such body over "their franchises, equipment, and other
properties except with respect to the fixing of rates."
The first paragraph of Section 21 of the Act reads: "Every public
service violating or failing to comply with the terms and
conditions of any certificate or any orders, decisions or
regulations of the Commission shall be subject to a fine of not
exceeding P200 per day for every day during which such default
or violation continues; and the Commission is hereby authorized
and empowered to impose such fine, after due notice and
hearing.
ISSUE: Whether or not Section 21 of the Act empowers the PSC to
impose a fine
HELD: No. Power neither expressly nor impliedly granted. - In the
face of the provision itself, it is rather apparent that the Public
Service Commission lacked the required power to proceed against
petitioner. Except for constitutional officials who can trace their
competence to act to the fundamental law itself, a public official
must locate in the statute relied upon a grant of power before he
can exercise it. It need not be express. It may be implied from the
wording of the law. Absent such requisite, however, no warrant
exists for the assumption of authority. The act performed, if
properly challenged, cannot meet the test of validity. It must be
set aside.
CLASSIFICATION OF POWERS AND DUTIES
1) From their nature
a) Ministerial - Official duty is ministerial when it is absolute,
certain, and imperative involving merely execution of a specific
duty arising from fixed and designated facts. Where the officer or
official body has no judicial power or discretion as to the
interpretation of the law, and the course to be pursued is fixed by
law, their acts are ministerial only.
A ministerial act has been defined as one which a person
performs on a given statement of facts, and in a prescribed
manner, in obedience to the mandate of legal authority, without
regard to, or the exercise of, his own judgment upon the
propriety or impropriety of the act done. (LAMB vs PHIPPS, 23
Phil. 156)
b) Discretionary - or judicial duties are such as necessarily
require the exercise of reason in the adaptation of means to an
end, and discretion in determining how or whether the act shall
be done or the course pursued. Discretion in the manner of the
performance of an act arises when an act may be performed or a
question may be decided in one of two or more ways, either of
which would still be lawful or right and where it is left to the will
or judgment of the performer to determine in which way it will
be performed.
2) From the standpoint of the obligation of the officer to perform
his powers and duties
a) Mandatory - Where the provisions of a statute relating to
public officers are intended for the protection of the citizen, and
to prevent a sacrifice of his property, and by a disregard of such
provisions his rights might be and generally would be injuriously
affected, they are not directory but mandatory.
b) Permissive - Statutory provisions define the time and mode in
which public officers will discharge their duties, and those which
are obviously designed merely to secure order, uniformity,
system, and dispatch in public business, are generally deemed
directory. Mere authorization to perform an act does not impose
a mandatory duty upon a public official. If the act does not affect
third persons and is not clearly beneficial to the public, permissive
words will not be construed as mandatory.
3) From the standpoint of the relationship of the officer to his
subordinates
a) Power of Control - implies the power of an officer to manage,
direct or govern, including the power to alter or modify or set
aside what a subordinate had done in the performance of his
duties and to substitute his judgment for that of the latter. An
officer in control lays down the rules in the doing of an act. If he is
not followed, it is discretionary on his part to order the act
undone or re-done by his subordinate or he may even decide to
do it himself.
b) Power of Supervision - the power of mere oversight over an
inferior body. It does not include any restraining authority over
such body. A supervising officer merely sees to it that the rules
are followed, but he himself does not lay down such rules, nor
does he have the discretion to modify or replace them. If the rules
are not observed he may order the work done or re-done to
conform to the prescribed rules. He cannot prescribe his own
manner for the doing of the act.
NORMS OF PUBLIC CONDUCT OF PUBLIC OFFICIALS AND
EMPLOYEES
1) Public office is a public trust.
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. (CONSTITUTION Art. XI, Sec. 1)
2) Standards of personal conduct. (THE CODE OF CONDUCT AND
ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES,
R.A. No. 6713)
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 - They shall perform and discharge their duties
with the highest 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 - They 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 - They shall provide service to everyone
without unfair discrimination and regardless of party affiliation or
preference.
e) Responsiveness to the public - They 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 - They 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 - They 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 - They and their families shall lead modest lives
appropriate to their positions and income. They shall not indulge
in extravagant or ostentatious display of wealth in any form.
Basically, modest and simple living means maintaining a standard
of living within the public official's or employee's visible means of
income as correctly disclosed in his income tax returns, annual
statement of assets, liabilities, and net worth and other
documents relating to financial and business interests and
connections.
3) Duties of the Civil Service Commission - Under the Code, the
Commission shall adopt positive measures to promote
a) Observance of these standards including the dissemination of
information programs and workshops authorizing merit increases
beyond regular progression steps, to a limited number of
employees recognized by their office colleagues to be outstanding
in their observance of ethical standards
b) Continuing research and experimentation on measures which
provide positive motivation to public officials and employees in
raising the general level of observance of these standards
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.
1) Criteria - The following criteria shall be considered in the
conferment of awards:
a) years of service
b) Quality and consistency of performance
c) Obscurity of the position
d) Level of salary
e) Unique and exemplary quality of achievement
f) Risk or temptation inherent in the work
h) Any similar circumstances or consideration in favor of the
particular awardee
2) Form of incentives and rewards - Incentives and rewards to
government officials and employees of the year may take the
form of:
a) Bonuses
b) Citations
c) Directorships in government-owned or controlled corporations
d) Local and foreign scholarship grants
e) Paid vacations
f) Automatic promotion to the next higher position suitable to his
qualifications and commensurate salary
3) Committee on Awards - composed of the following: the
Ombudsman and the Chairman of the Civil Service Commission as
Co-Chairmen, and the Chairman of the Civil Service Commission
on Audit, and two government employees to be appointed by the
President, as members.
Functions and Responsibilities:
a) Conduct a periodic, continuing review of the performance of
officials and employees in all departments, offices, and agencies
b) 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 criteria or standards set
forth above
c) Determine the form of rewards to be granted
d) Formulate and adopt its own rules to govern the conduct of its
activism, which shall include guidelines for evaluating nominees,
and mechanism for recognizing the awardees in public
ceremonies, and the creation of sub-committees
4) Secretariat - The Civil Service Commission shall provide
secretariat services to the Committee
DUTY TO MAKE FINANCIAL DISCLOSURE
To maintain public confidence in government and in public
officials and employees, to avoid conflicts of interest from arising,
to deter corruption, and to provide the citizens with information
concerning a public officer's financial affairs and thus enable them
to better judge his integrity and fitness for office, the Constitution
requires financial disclosures on the part of all government
personnel.
All Members of the Senate and the House of Representatives
shall, upon assumption of office, make a full disclosure of their
financial and business interests. They shall notify the House
concerned of a potential conflict of interest that may arise from
the filing of a proposed legislation of which they are authors.
A public officer or employee shall, upon assumption of office and
as often 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.
PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS AND LIABILITIES
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.
1) Statement of Assets and Liabilities and Financial Disclosure
a) Contents
1) Real property, its improvements, acquisition costs, assessed
value, and current fair market value
2) Personal property and acquisition cost
3) All other assets such as investments, cash on hand or in banks,
stocks, bonds, and the like
4) Financial liabilities, both current and long-term
5) All business interests and financial connections whether as
proprietor, investor, promoter, shareholder, officer, managing
director, creditor, lawyer, legal consultant or adviser, financial or
business consultant, accountant, auditor, and the like, the names
and old addresses of the business enterprises or entities, the
dates when such interests or connections were established, and
such other details as will show the nature of the interests or
connections.
b) When to File
The documents must be filed:
1) Within thirty (30) days after assumption of office, statements of
which must be reckoned as of his first day of service;
2) On or before April 30 of every year thereafter, statements of
which must be reckoned as of the end of the preceding year
3) Within thirty (30) days after separation from the service,
statements of which must be reckoned as of his last day of office
c) Where to File
The two documents shall be filed by:
1) President, Vice-President and Constitutional 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 such as
Members of the Cabinet, Undersecretaries and Assistant
Secretaries, including the foreign service and heads of
government-owned or controlled corporations with original
charters and their subsidiaries and state colleges and universities,
with the Office of the President
3) Regional and local officials and employees, both appointive and
elective, including other officials and employees of
government-owned or controlled corporations and their
subsidiaries and state colleges and universities, 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
5) All other officials and employees defined in Republic Act No.
3019, as amended, with the Civil Service Commission
A copy of said statements shall also be filed with their respective
departments, offices or agencies.
d) Authority in favor of Ombudsman - All public officials and
employees required 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 the 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.
2) 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. Under the Implementing Rules, such
relatives shall include those up to the fourth civil degree of
relationships, either of consanguinity or affinity, including bilas,
inso and balae.
3) Accessibility of Documents
a) Any and all statements filed under the Act, shall be made
available for inspection at reasonable hours
b) 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
c) 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
d) 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
e) Every official and employee shall also execute, within thirty (30)
days from date of 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 to show his assets, liabilities, and net profit,
and also his business interests, and financial connection in
previous years, including, if possible, the year when he first
assumed any office in the government.
4) Prohibited acts - It shall be unlawful for any person to obtain or
use any statement filed under the Act for:
a) Any purpose contrary to morals or public policy
b) Any commercial purpose other than by news and
communications media for dissemination to the general public
5) Authority/responsibility of certain officials
The following shall have the authority to determine whether said
statements have been properly accomplished:
a) In the case of Congress, the designated committees of both
Houses of Congress subject to approval by the affirmative vote of
the majority of the particular House concerned
b) In the case of the Executive Department, the heads of
departments, offices and agencies insofar as their respective
departments, offices and agencies are concerned subject to
approval of the Secretary of Justice
c) In the case of the Judicial Department, the Chief Justice of the
Supreme Court
d) In the case of the Constitutional Commissions and other
Constitutional Offices, the respective Chairman and members
thereof; in the case of the Office of the Ombudsman, the
Ombudsman
6) Review and compliance procedures
The above officials shall likewise have the authority to render any
opinion interpreting the provisions on the review and compliance
procedures in the filing of statements of assets, liabilities, net
worth and disclosure of information. In the event said authorities
determine that a statement is not properly filed, they shall inform
the reporting individual and direct him to take the necessary
corrective action.
The individual to whom an opinion is rendered, and any other
individual involved in a similar factual situation, and who, after
issuance of the opinion acts in good faith in accordance with it
shall not be subject to any sanction provided in the Code.
7) Basis in monitoring income and lifestyle of government
officials and employees
The Sworn Statement of Assets and Liabilities serves as the basis
of the government and the people in monitoring the income
and lifestyle of officials and employees in the government in
compliance with the constitutional policy to promote
transparency in government to eradicate corruption and ensure
that they lead just and modest lives. It is for this reason that the
SSAL must be sworn to and is made accessible to the public
subject to reasonable administrative regulations.
TRANSPARENCY OF TRANSACTIONS AND ACCESS TO
INFORMATION
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest.
1) Ensure transparency of public transactions - It is the
responsibility of heads of departments, offices and agencies to
establish measures and standards that will ensure transparency of
and openness in public transactions in their respective offices,
such as biddings, purchases, other internal transactions, including
contracts, status of projects, and all other matters involving public
interest.
2) Provide official information - Every department, office, or
agency shall provide official information, records or documents to
any requesting public, except if:
a) Such information, record or document must be kept secret in
the interest of national defense or security or the conduct of
foreign affairs
b) Such disclosure would put the life and safety of an individual in
imminent danger
c) The information, record or document sought falls within the
concepts of established privilege or recognized exceptions as may
be provided by law or settled policy or jurisprudence
d) Such information, record or document compromises drafts or
decisions, orders, rulings, policy, decisions, memoranda, etc.
e) It would disclose information of a personal nature where
disclosure would constitute a clearly unwarranted invasion of
personal privacy
f) It would disclose investigatory records complied for law
enforcement purposes, or information which if written would be
contained in such records or information would
1) Interfere with enforcement proceedings
2) Deprive a person of a right to a fair trial or an impartial
adjudication
3) Disclose the identity of a confidential source and, in the case of
a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source
4) Unjustifiably disclose investigative techniques and procedures
g) it would disclose information the premature disclosure of which
would
1) In the case of a department, office or agency which agency
regulates currencies, securities, commodities, of financial
institutions, be likely to lead to significant financial speculation in
currencies, securities, or commodities or significantly endanger
the stability of any financial institution
2) in the case of any department, office or agency be likely or
significantly to frustrate implementation of a proposed official
action, except that subparagraph (f) (2) shall not apply in any
instance where the department, office or agency has already
disclosed to the public the content or nature of its proposed
action, or where the department, office or agency is required by
law to make such disclosure on its own initiative prior to taking
final official action on such proposal
3) Establish information systems - Every head of department,
office, and agency shall establish information systems and
networks that will effect the widest possible dissemination of
information regarding the provisions of the Code, and the policies
and programs relative thereto.
Such information systems must inform the public of the following:
a) Policies, rules, and procedures
b) Work programs, projects, and performance targets
c) Performance reports
d) All other documents as may hereafter be classified as public
information
Such information shall be utilized solely for the purpose of
informing the public of such policies, programs and
accomplishment, and not to build the public image of any official
or employee or to advance his own personal interest.
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RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
Right to Compensation
Forms of Compensation Defined and Distinguished
1) The term compensation when employed in reference to the
remuneration of public officers means pay for doing all that
may be required of the official, whether it is in the form of a
fixed salary or wages, per diems, fees, commissions, or
perquisites of whatsoever character. (GOVERNMENT SERVICE
INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA
179) As distinguished from honorarium, the latter term is defined
as something given not as a matter of obligation but in
appreciation for services rendered a voluntary donation in
consideration of services which admit of no compensation in
money.
GSIS defines "compensation" as "the basic pay or salary received
by an employee, pursuant to his employment/appointment,
excluding per diems, bonuses, overtime pay, and allowances." The
law not only defines the word "compensation" but also
distinguishes it from other forms of remunerations for purposes
of computing the contribution of the employers and employees to
the GSIS as well as the employees' service records and benefits.
(GOVERNMENT SERVICE INSURANCE SYSTEM vs CIVIL SERVICE
COMMISSION, 245 SCRA 179)
2) Salary - is the personal compensation to be paid to a public
officer for his services, and it is generally a fixed annual or
periodical payment depending on the time and not on the
amount of the services he may render.
Salary- given to officers of higher degree of employment
Wages - given to officers lower in degree of employment to those
receiving salaries
Salary - regarded as compensation received per annum
Wages - paid day by day or week by week
3) Per Diem - merely one form of compensation granted to public
officers, which is fixed not as ordinarily by the year or by the
month but by the day. The compensation prescribed by law for
public officers is sometimes in the form of per diem allowance for
days actually spent in the performance of official duties. It is a
daily allowance given for each day an officer or employee of
government is away from her home base. This is its traditional
meaning. Its usual signification is as a reimbursement for extra
expenses by the public official in the performance of his duties. It
is intended to cover the cost of lodging and subsistence of officers
and employees when the latter are on duty outside of their
permanent station. (GOVERNMENT SERVICE INSURANCE SYSTEM
vs CIVIL SERVICE COMMISSION, 245 SCRA 179)
The per diems received by the respondent during the period that
she acted in hold-over capacity as provincial Vice-Governor on a
full-time basis were in the nature of compensation or
remuneration for her services as such, rather than as a
reimbursement for incidental expenses incurred while away from
her home base regardless of the denomination given to the
compensation received by him. (GOVERNMENT SERVICE
INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA
179)
A per diem is not deemed to be a salary within a constitutional
provision that no change in the compensation of officers shall
affect the salary of any officer during his existing term. It is not a
fee unless clearly classified as such. So also is an honorarium
defined as something given not as a matter of obligation, but in
appreciation for services rendered, a voluntary donation in
consideration for services which admit of no compensation of
money (SANTIAGO vs COMMISSION ON AUDIT, 199 SCRA 128)
such as the monthly allowances given by local government units
to judges assigned within their territorial jurisdictions.
4) Sometimes the compensation of particular officers is made to
depend on fees for services rendered or on commission on
moneys officially passing through their hands. Where
compensation is paid under the fee system, or on the basis of the
amount of business done, or of public money passing through the
officer's hands, a maximum sum may be fixed beyond which the
officer is not to receive any emoluments.
5) When the term emoluments is used, it means the profit arising
from the office what which is received as compensation for
services or which is annexed to the office as salary, fees, or
perquisites. It does not refer to the fixed salary alone that us
attached to the office, but includes such fees and compensation
as the incumbent of the office is, by law, entitled to receive. It
may import more than "salary" or "fees." The term has been held
to include "salary, fees, compensation, perquisites, pensions, and
retirement benefits." (SANTIAGO vs COMMISSION ON AUDIT,
199 SCRA 128)
Allowances such as representation and transportation, housing,
etc., are included in the term "emoluments." (INTIA vs
COMMISSION ON AUDIT, 306 SCRA 593)
As a general proposition, a public official is not entitled to any
compensation if he has not rendered any service. Under the "no
work, no pay" principle, compensation is paid only for service
actually or constructively rendered.
It is possible that a local government official's salary may be less
than that prescribed for his Grade since his salary depends also
on the class and financial capability of his or her respective local
government unit. Nevertheless, it is the law which fixes the
official's grade. (BINAY vs SANDIGANBAYAN, 316 SCRA 65)
RECOVERY OF COMPENSATION
1) From the government - A de jure officer cannot, for the most
part, recover from the government salary or compensation which
has been paid to a de facto officer. It is a matter of simple justice
that the emoluments must go to the person (de facto officer) who
actually rendered the service unless the contrary is provided.
Thus a candidate who assumed office in perfect good faith after
he was duly proclaimed elected is entitled to retain the
compensation paid him during his incumbency notwithstanding
a protest filed against him (RODRIGUEZ vs TAN, 91 Phil, 724) for
his assumption and tenure cannot be considered wrongful,
(MONROY vs COURT OF APPEALS, 20 SCRA 621) considering that
he would have been subjected to a penalty had he not accepted
the office. But where the government continues to pay the officer
de facto after the notice of adjudication of the protest in favor of
the officer de jure, the latter may recover from the government
the amount so paid after such adjudication and notice.
2) From the de facto officer - As a corollary rule to the above, a de
jure officer can recover either from the government or the de
facto officer the amount paid to the de facto officer for services
rendered by him after notice of adjudication of the title to the
former. Where the tenure of the de facto officer is "wrongful,"
the salary received by him during such tenure may be recovered.
On the other hand, one who becomes a public officer de facto in
good faith and renders the services required of the office is legally
entitled to the emoluments of the office.
3) From the intruder or usurper - One who intrudes into or usurps
a public office has no right to the salary or emoluments attached
to the office. He stands even in a less favorable position than an
officer de facto.
RODRIGUEZ vs TAN, 91 Phil. 724
Duly elected Senator seeks reimbursement of salaries paid to de
facto officer
FACTS: Rodriguez claims that on December 30, 1947, Tan,
defendant, usurped the office of Senator of the Philippines and
until 1949 has continuously collected the salaries, emoluments,
and privileges thereto; that to have been duly elected to the
office; and that such usurpation caused damages to Rodriguez.
Tan filed a motion to dismiss alleging that the Senate Electoral
Tribunal judgment is a bar to this action under res judicata, and
the said tribunal denied without reservation the claim for
damages of Rodriguez.
The Court dismissed the complaint, hence, the appeal of
Rodriguez.
ISSUE: Whether or not Tan who has been proclaimed, took the
oath of office and discharged the duties of Senator can be
ordered to reimburse the salary and emoluments he has received
during his incumbency to Rodriguez who has been legally declared
elected by the tribunal
HELD: De facto officer ousted as a result of election protest
entitled to compensation for services rendered. - Tan who has
been proclaimed and had assumed office, but was later ousted as
a result of an election protest is a de facto officer during the time
he held the office of Senator, and is entitled to the compensation,
emoluments, and allowances which are provided for the position
by the Constitution. This is the policy and the rule that has been
followed consistently in this jurisdiction. The emoluments must go
to the person who rendered the service unless the contrary is
provided.
MONROY vs COURT OF APPEALS, 20 SCRA 621
Vice-Mayor who became Mayor seeks reimbursement of salaries
paid to former Mayor who has ceased as rightful occupant
FACTS: Monroy was the incumbent mayor of Navotas, Rizal when
on September 15, 1961, his certificate of candidacy as
representative as the first district of Rizal in the forthcoming
elections (for Congressman) was filed with the COMELEC. Three
days later, on September 18, Monroy filed a letter withdrawing
said COC. The COMELEC approved the withdrawal. But on
September 21, 1961, respondent Del Rosario, then Vice-Mayor of
Navotas, took his oath of office as municipal mayor on the theory
that Monroy had forfeited the said office upon his filing of the
COC in question.
The Court of First Instance of Rizal held in the suit for injunction
instituted by Monroy against Del Rosario that (a) the former had
ceased to be Mayor after his COC was filed on September 15; (b)
Del Rosario became municipal Mayor upon his having assumed
office on September 21; (c) Monroy must reimburse as actual
damages the salaries to which Del Rosario was entitled as Mayor
from September 21, 1961, up to time he can reassume said office;
and (d) Monroy must pay Del Rosario P1000 as moral damages.
The Court of Appeals affirmed this adjudgment in toto except for
the ward of moral damages which was eliminated. Hence, this
petition by certiorari to review the ruling of the CA.
ISSUE: Whether or not Del Rosario is entitled to the salary of the
office from September 21, 1961, up to the time he can reassume
office
HELD: Yes. De facto officer liable to reimburse salaries received
to rightful incumbent. - "The general rule that the rightful
incumbent of a public office may recover from a de facto officer
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" applies to this case.
Possession of the title of office, not of the office itself, is decisive.
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 public office. Where a Mayor withdrew his
COC for Congressman and reassumed the position of Mayor, thus
preventing the Vice-Mayor for discharging the duties of the
position of Mayor, the Mayor should reimburse to the Vice-Mayor
as the rightful occupant of Mayor the salaries which he had
received.
Rodriguez ruling not applicable. - "The ruling in Rodriguez vs Tan
that no such reimbursement shall be made, is not applicable to
the case at bar because the Tan case involved a duly proclaimed
elected official who was later ousted. The de facto doctrine was
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."
Withdrawal of COC did not restore Monroy to his former
position. - "The withdrawal of the COD does not restore Monroy
to his former position. It does not render the withdrawal void ab
initio. Once filed, the permanent legal effects produce thereby
remain even if the certificate itself be subsequently withdrawn.
PROHIBITION AGAINST RECEIVING ADDITIONAL, DOUBLE, AND
INDIRECT COMPENSATION
No elective or appointive public officer 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.
The prohibition is designed to counter the evils of double
compensation. It does not apply where:
1) The payment of additional, double, or indirect compensation
to a particular officer or employee is specifically authorized by
law in individual instances where the payment of such
compensation appears not only just but necessary. (SADUESTE
vs MUNICIPALITY OF SURIGAO, 72 Phil. 485) The prohibition is
aimed against the giving of extra compensation by executive or
administrative order.
2) The additional compensation is received not from the
government or any of its entities
3) There are two distinct offices, each of which has its own
duties and compensation, in which case both may be held by
one person at the same time. The prohibition refers to double
compensation and not to double appointments and the
performance of functions if more than one office. But the officer
may draw the salary attached to the second position only when
he is specifically authorized by law.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation. So, a retired public officer or
employee who has been reappointed or elected to a public office
may continue to receive his pension or gratuities from the
government and his salary at the same time, unless it is otherwise
provided by law.
OTHER RIGHTS
Rights under the Constitution
1) The right to self-organization - The right to self-organization
shall not be denied to government employees. The quoted
provision grants to government employees in the civil service
the right to form unions enjoyed by workers in the private
sector.
2) The right to protection of temporary employees - Temporary
employees of the government shall be given such protection as
may be established by law.
3) Freedom of Members of Congress from arrest and from being
questioned - privileged from arrest while Congress is in session.
The provisions grant parliamentary immunities to members of
Congress.
4) The right not to be removed or suspended except for cause
provided by law - Implicit in the constitutional prohibition against
removal or suspension except for cause, is the existence of a
charge, due hearing, and the finding of guilt by the proper
authority.
Participation in Prohibited Activity or Mass Action
Prohibited concerted activity or mass action refers to "any
collective activity undertaken by government employees either by
themselves or through their employees' organizations, with the
intent of effecting work stoppage ir service disruption in order to
realize their demands or force concessions, economic, or
otherwise, from their respective agencies or the government."
However, a concerted activity or mass action done outside of
government office hours may be allowed and shall not be deemed
prohibited so long as such would not result in disruption of work.
1) Even if there is no statement of the right to self-organization in
the Constitution, government workers can form associations for
purposes not contrary to law. However, they are prohibited from
staging strikes, demonstrations, mass leaves, walk-outs and other
forms of mass actions which will result in temporary stoppage or
disruption of public services.
2) SInce the terms and conditions of government employment are
fixed by law, government workers cannot use the same weapons
employed by workers in the private sector to secure concessions
from their employers. Government employees are prohibited
from striking by express provision of Memorandum Circular No 6
(1987) of the Civil Service Commission and as implied in EO No.
180 (1987). Employees of the SSS are part of the Civil Service.
(SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION vs COURT
OF APPEALS, 175 SCRA 686)
3) Government employees who join, participate, or take part in
any prohibited concerted activity or mass action, which result n
the disruption of work or service, shall be held administratively
liable for the offense of conduct prejudicial to the best interest of
the service. The right to self-organization of government
employees does not carry with it the right to engage in any form
of prohibited concerted mass action resulting in work stoppage or
disruption of public service.
RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW
ADMINISTRATIVE CODE
1) The right to preference in promotion
a) Vacancy occurs in a position in first level of Career Service
b) Vacancy occurs in a position in second level of Career Service
c) Screening process in each department or agency
d) Vacancy not filled by promotion as provided above
e) Right to appeal of qualified next-in-rank
f) Nature of protest
2) The right to present complaints and grievances
3) The right not be suspended or dismissed except for cause as
provided by law and after due process
4) Right to organize
For this purpose, "qualified next-in-rank" employee refers to an
employee appointed on a permanent basis to a position
previously determined to be next-in-rank to the vacancy
proposed to be filled and who meets the requisites for
appointment thereto as previously determined by the
appointing authority and approved by the Commission. (EO No.
292; RA No. 7160)
Vacancies and succession in local government units are governed
by Sections 44, 45, and 46 of R.A. No. 7160, the Local Government
Code of 1991.
Next-in-Rank Rule
1) Not a mandatory requirement - The next-in-rank rule
specifically applies only in cases of promotion. 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. (MEDENILLA vs CIVIL SERVICE COMMISSION, 194
SCRA 278). One who is next-in-rank to a vacancy is given
preferential consideration for promotion to a vacant position,
but it does not necessarily follow that he alone and no one else
can be appointed.
2) Reason for rule - To apply the next in rank rule peremptorily
would impose a rigid formula on the appointing power contrary to
the policy of the law that among those qualified anf eligible, the
appointing authority id granted discretion and prerogative of
choice of the one he deems fit for appointment. All that the Civil
Service Commission is actually allowed to do is to check whether
or not the appointee possesses the appropriate civil service
eligibility or the required qualifications. No other criterion is
required to be employed by the Commission.
3) Discretion of appointing authority - The appointing authority,
under the law, is allowed to fill vacancies by promotion, transfer
of present employees, reinstatement, re-employment, and
appointment of outsiders who have appropriate civil service
eligibility, not necessarily in that order. The appointing authority is
given wide discretion to fill the vacancy among the several
alternatives provided for by law.
4) Overriding factor - The Civil Service Law's intention is not to
merely bestow upon permanent employees the advantage arising
from their long employment, but most especially, it is to foster a
more efficient public service. Any other factor must yield to the
demand for an efficient government, which necessarily entails
appointment of competent, qualified, and proficient personnel.
PERSONNEL ACTIONS
Personnel Action - any action denoting movement or progress in
the civil service shall be known as personnel action. Such action
shall include appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, reassignment,
demotion, and separation, All personnel actions shall be in
accordance with such rules, standards, and regulations as may
be promulgated by the Commission.
1) Appointment through certification - shall be issued to a person
who has been selected from a list of qualified persons certified by
the Civil Service Commission from an appropriate register of
eligibles and who meets all the other requirements of the
position.
2) Promotion - the advancement 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 organization unit to another in the same department or
agency.
3) Transfer - it 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.
4) Reinstatement - it means restoration to a state or condition
from which one has been removed or separated. Any person who
has been permanently appointed to a position in the career
service and who has, through the delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the
same level for which he is qualified.
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 and/or reorganization,
shall be entered in a list from which selection for reemployment
shall be made.
6) Detail - the movement of an employee from one department or
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.
(Transfer: 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.)
7) Reassignment - an employee may be reassigned from one
organizational unit to another in the same department but such
reassignment shall not involve a reduction in rank, status, or
salary, otherwise such reassignment would, in effect, constitute
constructive removal and violate his right to security of tenure, A
reassignment does not require the issuance of an appointment.
(Transfer: 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. / Detail: movement of
an employee from one department or 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.)
8) Demotion - movement from one position to another involving
the issuance if an appointment with diminution in duties,
responsibilities, status, grade, or rank which may or may not
involve reduction in salary, although usually accompanied by a
decrease in salary. A demotion by assigning an employee to a
lower or less important position in the same service which has a
lower rate of compensation is tantamount to removal, if no cause
is shown for it.
RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE
ACT
SCOPE OR COVERAGE
Membership in the GSIS shall take effect upon the employee's
assumption to duty pursuant to a valid appointment or election
and oath of office. Membership in the GSIS for non-permanent
employees who were in the service as of the effectivity of RA No,
8291 took effect on June 24, 1997.
COMPULSORY MEMBERSHIP
All employees receiving compensation who have not reached the
compulsory retirement age, while in the service of:
1) The national Government
2) Its political subdivisions, branches, agencies, or
instrumentalities
3) government-owned and controlled corporations
4) Financial institutions with original charters
5) The Constitutional Commissions
6) The Judiciary
Whether by election or appointment.
EXCEPTIONS:
1) Those receiving per Diems or honoraria only
2) Uniformed members of the AFP and PNP
3) Those not receiving basic pay or salary (allowances only)
4) Contractuals who have no employer and employee relationship
with the agencies they serve
5) Members of the Judiciary (life insurance only)
6) Members of the Constitutional Commissions (life insurance
only)
All members of the GSIS shall have life insurance, retirement, and
all other social security protection such as disability, survivorship,
separation, and unemployment benefits.
BENEFITS
1) Retirement Benefits - old age pension shall be paid to a
member who
a) has at least 15 years of service
b) is at least 60 years of age
c) is not receiving a monthly pension benefit from permanent
total disability
Retirement shall be compulsory at age 65.
2) Separation Benefits - payable upon reaching 60 years of age
upon separation, whichever comes later or at the time of
resignation or separation and a life pension to start at age 60 to
be given to those separated from the service with at least 15
years of service and are below 60 years of age
3) Unemployment or Involuntary Separation Benefits - payable to
an employee involuntarily separated from the service due to
reorganization, merger, or privatization, who has paid the
stipulated 12 monthly integrated contributions
4) Disability Benefits - A member shall be entitled to the
permanent total or partial disability benefits effective from the
date of his/her disability, provided, that he/she:
a) is in the service at the time of disability
b) is separated from the service and has paid at least 36 monthly
contributions within the five-year period immediately preceding
the disability or has paid a total of at least 180 monthly
contributions prior to the disability
A member who suffers temporary total disability for reasons not
due to grave misconduct, notorious negligence, habitual
intoxication or willful intention to kill himself or another may be
entitled to benefits if he/she:
a) is in the service at the time of disability and has exhausted his
sick leave credits
b) if separated, has rendered at least three years of service and
has paid at least six monthly contributions in the 12-month period
immediately preceding the disability
5) Survivorship Benefits - when a member or pensioner dies, the
beneficiary shall be entitled to survivorship benefits provided for
in the law which shall consist of:
a) basic survivorship pension which is 50% of the basic monthly
pension
b) dependent's pension not exceeding 50% of the basic monthly
pension
6) Funeral Benefits - amount of funeral benefit shall be deterined
and specified by the GSIS in the rules and regulations
7) Life Insurance Benefits - all employees except members of the
AFP and PNP, shall be compulsorily covered with life insurance
PENSION AND GRATUITY
Pension - 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.
PENSION vs GRATUITY
Gratuity - donation and an act of pure liberality on the part of the
State.
Pension - more than an act of generosity. It is an act of justice
emanating from the desire to provide, through tardily, adequate
compensation for services already rendered for which one had
not received complete and adequate reward at the time when
such services were rendered
RIGHT TO REINSTATEMENT AND BACK SALARY
Reinstatement and back salary or wages are separate and distinct
reliefs given to an illegally dismissed official or employee.
REINSTATEMENT - restoration to a state or condition from which
one had been removed or separated. One who is reinstated
assumes the position he had occupied prior to the dismissal
BACK SALARY - a form of relief that restores the income that was
lost by reason of unlawful dismissal
1) Where removal or suspension lawful - The general proposition
is that a public official is not entitled to any compensation if he
has not rendered any service - as he works, he shall earn. A
denial of salary to an employee during the period of his
suspension if he should later on be found guilty, is proper
because he had given ground for his suspension. (BANGALISAN
vs COURT OF APPEALS, 276 SCRA 619)
2) Where removal or suspension unlawful - Where an officer
entitled to fixed annual salary was unlawfully removed or
suspended and was prevented for a time by no fault of his own
from performing the duties of the office, he might recover, and
that the amount that he had earned in other employment during
his unlawful removal should not be deducted from his unpaid
salary. He may recover the full amount notwithstanding that
during the period of his removal or suspension, the salary has
been paid to another appointed to fill the vacancy unlawfully
created. If the illegal dismissal is found to have been made in
bad faith by the superior officers, then they will be help
personally accountable for back salaries of the illegally dismissed
employee. (DAVID vs GANIA, 409 SCRA 80)
An illegally dismissed government employee who is later ordered
reinstated is entitled to back wages and other monetary benefits
from the time of his illegal dismissal up to his reinstatement. This
is only fair and sensible because an employee who is reinstated
after having been illegally dismissed is considered as not having
left his office and should be given a comparable compensation at
the time of his reinstatement. (DAVID vs GANIA, 409 SCRA 80)
3) Where suspended employee later found innocent -Back-pay
may be allowed for the period when an employee is not allowed
to work without his fault and was later found innocent of the
charges causing his suspension. To deny an innocent employee his
back wages during his suspension would be tantamount to
punishing him after his exoneration from the charges which
caused his dismissal from the service.
Before a public official or employee who has been reinstated is
entitled to payment of salaries withheld, it should be shown that
he suspension or removal is unjustified or illegal and he is found
innocent or acquitted of the charge preferred against him. For all
legal purposes, he is considered as not having left his office;
therefore he is entitled to all the rights and privileges that
accrue by virtue of the office he held. (DEL CASTILLO vs CIVIL
SERVICE COMMISSION, 278 SCRA 209)
4) Where employee not completely exonerated - If the employee
is not completely exonerated of the charges, such as when the
penalty of dismissal is reduced to mere suspension to a fine, he
would not be entitled to the payment of his back salaries.
(CASTRO vs GLORIA, 363 SCRA 417)
5) Where another appointed to position of illegally dismissed or
suspended employee - When a regular government employee
was illegally suspended or dismissed, legally speaking, his
position never became vacant and he is considered as not having
left the office. (TANALA vs LEGASPI, 13 SCRA 566) The fact that
there is now an appointee to the position he claims is, therefore,
of no moment. The new appointment is not valid.
6) Duty of plaintiff seeking reinstatement to prove his right to
the office - In a litigation, where plaintiff seeks reinstatement to
an office, well-known is the principle that, to succeed, plaintiff
must prove his right to the office. He must establish that when
dispossessed, he was entitled to the office. Unless this right is
shown, the action must fail even if the appointment of the
successor is first in issue.
7) Right to reinstatement to former or at least comparable
position - The general rule is that a person suspended or
dismissed from the public office through no fault of his own is
entitled to be reinstated to his former position or at least to a
comparable position, if feasible.
In a case where reinstatement of an illegally dismissed chief of
police to his former position as ordered in the appealed
judgment is no longer feasible and hence, cannot be enforced.,
in view of the appointment of a permanent chief of police in
accordance with PD No. 485 which provides for the integration
of police and fire departments and jails in certain provinces, it
was held that such illegally dismissed chief of police is entitled to
back salaries. (LAGANAPAN vs ASEDILLO, 154 SCRA 377)
8) Duty to act with reasonable diligence in asserting right to
reinstatement - A public officer or employee who has been
removed from his position must act with reasonable diligence to
have himself reinstated for however unjust and unwarranted the
removal, suspension or transfer of a public officer or employee
may be, his right to reinstatement may be lost by unreasonable
delay in asserting his rights. A petition quo warranto and
mandamus affecting titles to public office must be filed within one
year fromthe date the petitioner is ousted from his position. The
claim for back salaries and damages is also subject to the
prescriptive period of one year.
9) Where pardon extended to convicted employee - A pardon,
unless expreslly grounded on the person's innocence or unless
the right to public office is expressly restored by it, does not ipso
facto restore a convicted felon to public office. It merely restores
his eligibility for appointment to that office, and to regain his
former post, he must reapply and undergo the usual procedure
required for new appointment. Pardon implies guilt. It looks to
the future. It is not retrospective. Since the offense has been
established by judicial proceedings, the grantee cannot be
entitled to receive back pay for lost earnings and benefits.
(MONSANTO vs FACTORAN, 170 SCRA 190)
----------------------------------------------------------------------------------------
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
Disabilities of President, Vice-President, Members of Cabinet,
and their Deputies and Assistants
During their tenure, the President and Vice-President, as well as
the Members of the Cabinet, and their deputies or assistants are
subject to prohibitions:
1) They shall not hold, unless otherwise provided in the
Constitution itself, any other office or employment
2) They shall not practice any other profession
3) They shall not participate, directly or indirectly, in any business
4) They shall not be financially interested directly or indirectly, 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
corporations or their subsidiaries
5) They shall strictly avoid conflict of interest in the conduct of
their office
In addition to the above disabilities, the President is prohibited
during his tenure from appointing his spouse and relatives by
consanguinity or affinity within the fourth civil degree.
Disabilities of Members of Congress
1) No Senator or Member of the House of Representatives may
hold any other office or employment in the Government, or any
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat
2) 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
3) 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
4) Neither shall he, directly or indirectly, be interested financially
in any contract with, or in any franchise or special privilege
granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office.
He shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called
upon to act on account of his office
5) He shall not intervene in any cause or 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 or to give his vote as a
member of Congress
Disabilities of Members of Constitutional Commissions
1) No member of a Constitutional Commission shall, during his
tenure, hold any other office or employment
2) 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
3) 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
Prohibition against Designation of Members of Judiciary to
Administrative Positions
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.
1) Such designation violates the doctrine of separation of powers
between the judicial and executive branches of the government
2) It may compromise the independence of the members in the
performance of their judicial functions
3) With so many cases pending in courts, the practice will result in
further delay of their disposition
Prohibition against Partisan Political Activities
No officer or employee in the civil service shall engage, directly
or indirectly, in any electioneering or partisan political
campaign.
Professionalism in the armed forces and adequate remuneration
and benefits of its members shall be a prime concern of the
State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage, directly or indirectly, in
any partisan political activity, except to vote.
The term "any partisan political activity" is practically synonymous
with "any electioneering or partisan political campaign". Both
refer to acts designed to have a candidate elected or not, or to
promote the candidacy of a person or persons to public office.
They include such activities as participation in political campaigns
conventions, caucuses, parades or rallies, making speeches or
commentaries for or against the election of any party or
candidate, publishing or distributing campaign literature or
materials, and soliciting votes or contributions, either directly or
indirectly.
Prohibition against Appointment of Elective Officials
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
During his tenure in office (not term of office), any elective official
is disqualified for appointment or designation (not from being a
candidate or being elected) to any public office or position in the
government, whether national or local, including GOCCs. A law
allowing such appointment is unconstitutional.
The disqualification incapacitates the incumbent from accepting
or holding a second office and renders his appointment to the
latter office void; hence, he does not forfeit his elective office. He
may be appointed provided he first resigns his seat. As long as he
is incumbent, an elective official remains ineligible for
appointment to another public office.
Prohibition against Holding More than One Position by
Appointive Officials
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.
An appointive official may hold any other office or employment in
the Government including Government-owned or controlled
corporations or their subsidiaries only when allowed by law or
when required by the primary functions of his position. The rule
aims to remedy the problem of appointive officials holding
multiple positions which prevent them from devoting full time to
their principal functions and result in double or multiple
compensation.
Prohibition against Receiving 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.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation.
Prohibitions Imposed on Civil Service Officers or Employees
The Civil Service Decree provides the following prohibitions:
a) 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
b) 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.
c) Limitations on Employment of Laborers - Laborers, whether
skilled, semi-skilled or unskilled, shall not be assigned to perform
clerical duties.
d) Prohibition on Detail or Reassignment - No detail or
reassignment whatever shall be made within three (3) months
before any election.
e) Nepotism - 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 the law, the word "relative" and members of the family
referred to are those related within the third degree of
consanguinity or affinity. The prohibitions is subject to exceptions.
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LIABILITIES OF PUBLIC OFFICERS
Doctrine of Official Immunity from Liabilities for Public Officers
The rationale for official immunity is the promotion of fearless,
vigorous, and effective administrations of policies of government.
The threat of suit could also deter competent people for
accepting public office.
Other public policy considerations which have led to the policy of
immunity for public officers have been identified as the loss of
valuable time caused by such actions, the unfairness of subjecting
officials to personal liability for the acts of their subordinates, and
a feeling that the ballot and removal procedures are more
appropriate methods of dealing with the misconduct in public
office.
Official Immunity and State Immunity distinguished
IMMUNITY OF PUBLIC OFFICIALS - more limited principle that
State or governmental immunity
OFFICIAL IMMUNITY - protects sovereign collaterally by
protecting the public official in the performance of his
governmental function
STATE IMMUNITY - purpose is directly to protect the sovereign
OFFICIAL IMMUNITY - serves a protective aegis for public officials
from liability for damages arising from discretionary acts or
functions in the performance of their duties
STATE IMMUNITY - rested upon tenuous ground that the king
could do no wrong. Serves to protect the impersonal body politic
or government itself from tort liability
OFFICIAL IMMUNITY NOT ABSOLUTE
Suit to enforce liability for personal torts - The mere allegation
that a government functionary is being sued is his personal
capacity will not automatically remove him from the protection of
the law of public officers, and, if appropriate, the doctrine of state
immunity, and neither does the mere invocation of official
character suffice to insulate him from suability and liability for
damages for an act imputed to him as a personal tort committed
without or in excess of his authority. (SANDERS vs VERIDIANO,
162 SCRA 99)
Immunity from suit cannot institutionalize irresponsibility and
non-accountability nor grant a privileged status to a public officer
found to have acted beyond the scope of their jurisdiction or
authority. (CHAVEZ vs SANDIGANBAYAN, 193 SCRA 282)
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS
- Liability rule for violation of duty or for wrongful act or omission
by public officials or employees
1) If the individual is damaged by such violation, the official shall,
in some cases, be held liable civilly to reimburse the injured party
2) If the law has attached a penal sanction, the officer may be
punished criminally
3) If the administration's disciplinary power is strong, such
violation may lead to imposition of fine, reprimand, suspension,
or removal from office, as the case may be
The same wrongful act or omission of a public officer may give rise
or subject him to civil, criminal and/or administrative liability. An
action for each can proceed independently of the others. These
three remedies against a public officer may be pursued
simultaneously and successively.
ADMINISTRATIVE LIABILITY INCURRED IN A PREVIOUS TERM BY
AN ELECTIVE OFFICIAL
1) Reelection operates as electorate condonation of a previous
misconduct
2) Condonation does not extend to reappointed coterminous
employees
3) Reelection does not extinguish criminal or civil liability
LIABILITY OF THE PRESIDENT FOR OFFICIAL ACTS
1) Civil responsibility
2) Criminal liability
3) Liability for damages
LIABILITY OF OTHER EXECUTIVE OFFICIALS FOR OFFICIAL ACTS
1) Functions involve exercise of discretion
2) Reasons for Immunity
3) Acts of heads of executive departments
LIABILITY OF LEGISLATIVE OFFICIALS FOR OFFICIAL ACTS
1) Privileges accorded members of Congress
2) Reasons for Immunity
LIABILITY OF MEMBERS OF THE JUDICIARY FOR OFFICIAL ACTS
1) Reasons for Immunity
2) Liability for rendering an unjust judgment
3) Liability for gross ignorance of law and incompetence
4) Quantum of proof necessary to support administrative charges
LIABILITY OF QUASI-JUDICIAL OFFICERS FOR OFFICIAL ACTS
1) Nature of functions
2) Reasons for Immunity
3) Liability for ministerial acts
LIABILITY OF MINISTERIAL OFFICERS FOR OFFICIAL ACTS
1) General Rule
2) Requisites for Liability
3) Liability where officer also acts extra judicially
KINDS OF LIABILITY OF MINISTERIAL OFFICERS
1) Nonfeasance - neglect or refusal, without sufficient excuse, to
perform an act which it was the officer's legal duty to the
individual to perform
2) Misfeasance - the failure to use, in the performance of a duty
owing to an individual, that degree of care, skill and diligence
which the circumstances of the case reasonably demand
3) Malfeasance - the doing, either through ignorance, inattention
or malice, of that which the officer has no legal right to do at all,
as where he acts without any authority whatever, or exceeds,
ignores or abuses his powers
LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF SUBORDINATES
1) General rule
2) Exceptions
3) Other exceptions
LIABILITY OF SUBORDINATES
1) Same rules as those applicable to officers of higher rank
2) Where acts done pursuant to orders or instructions of a
superior
LIABILITY FOR TORTIOUS ACTS
1) Acts done within scope of official authority
2) Acts done without or in excess of official authority
LIABILITY UNDER THE CIVIL CODE
1) For failure or neglect to perform official duty
2) For violating rights and liberties of private individuals
3) For failure to render aid or protection to a person
LIABILITY ON CONTRACTS EXECUTED IN BEHALF OF THE
GOVERNMENT
General Rule: A public officer acting within the scope of his
authority and in his official capacity is not personally liable on
contracts executed in behalf of the government
Exception: One who executes an unambiguous personal
undertaking which makes no mention of the public agency he
serves or does not indicate that it is executed in an official
capacity, may not escape liability by claiming that the public
agency was the real principal
LIABILITY FOR UNEXPLAINED WEALTH
1) Republic Act No. 1379 (Forfeiture of Unexplained Wealth Act)
declares the forfeiture in favor of the State of any property found
to have been unlawfully acquired by any public official or
employee
2) On the other hand, R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act) penalizes certain acts of public officers and private
persons alike which constitute graft or corrupt practices or which
may lead thereto
LIABILITY OF ACCOUNTABLE OFFICERS TO THE GOVERNMENT
1) Bond requirement
2) Primary and secondary responsibility
3) General liability for unlawful expenditures
4) Measure of liability of accountable officers
5) Liability for acts done by direction of superior officer
CRIMINAL LIABILITY
1) Aside from furnishing grounds for disqualification or holding
office and for suspension or removal from office, various offenses
arising out of an abuse or wrongful usurpation of authority are
held by specific statutory provisions, to be felonies or
misdemeanors for which an officer may be prosecuted criminally
2) Public officers may not be held criminally liable for failure to
perform a duty commanded by law, when for causes beyond their
control, performance is impossible.
3) The mere expiration of his term of office will not prevent the
prosecution and punishment of a public officer for a misdemeanor
committed in office, nor the re-election of a public official
extinguishes the criminal liability incurred by him during his
previous term of office.
TERMINATION OF OFFICIAL RELATIONS
Modes of Termination of official relations
1) Expiration of the term or tenure of office
2) Reaching the age limit (retirement)
3) Death or permanent disability
4) Resignation
5) Acceptance of an incompatible office
6) Abandonment of office
7) Prescription of right to office
8) Removal
9) Impeachment
10) Abolition of Office
11) Conviction of a crime
12) Recall
NATURAL CAUSES
1) By expiration of term of office
2) By reaching of age limit
3) By death or permanent disability
ACTS OR NEGLECT OF OFFICER
1) By resignation
What Constitutes Resignation
a) An intention to relinquish a part of the term
b) Accompanied by the voluntary act of relinquishment
c) An acceptance by the proper authority
Repudiation of Resignation
a) A resignation is not effective although a successor has already
been appointed to take the place of the first incumbent of said
resignation has been transmitted without the officer's consent
b) The resignation of a public officer procured by fraud or by
duress is voidable and may be repudiated
c) A repudiation given as an alternative to have charges filed
against the public officer may be repudiated, for said resignation
cannot be accepted as having been given by the officer voluntarily
and willingly
2) By Acceptance of an incompatible or Prohibited Office
3) By Abandonment of office
4) By Prescription of right to office
ACTS OF THE GOVERNMENT OR THE PEOPLE
1) By Removal
Security of Tenure - simply means that an officer or employee in
the civil service shall not be suspended or dismissed except for
cause as provided by law and only after due process is accorded

Nepotism

a) Situations covered
b) Persons not covered
c) Designation included n prohibition
d) Purpose of prohibition

Disciplinary Jurisdiction of the Civil Service Commission

1) Scope
2) Appellate jurisdiction over administrative disciplinary cases
3) Jurisdiction of heads of departments, agencies, and
instrumentalities
4) Investigation by a regional director or similar official
5) Execution of decision pending appeal
6) Reconsideration of a final and executory decision not allowed
7) Power to terminate employment; academic freedom
institutions of higher learning

Withdrawal of Complaint against Respondent

1) Criminal and administrative cases impressed with public

interest
2) People's faith and confidence in government involved
3) Truth and justice, not choice of witnesses, must rule

2) By Impeachment
3) By Abolition of Office

Requisites of a Valid Abolition

a) Good faith
b) Not for personal or political reasons, or in order to circumvent
the incumbent's security of tenure
c) Not implemented in violation of law

Termination through Reorganization

1) Based on a valid purpose and done in good faith

2) Instances of valid reorganization

4) By Conviction of a Crime

Effects of Pardon

1) Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil
rights.
2) Pardon restores his eligibility for appointment to that office
3) A pardon of a public officer merely removes the disqualification
from holding public employment but it cannot go beyond that
4) A pardon does not extinguish the civil liability of the grantee
arising from the crime he has been convicted of.

5) By Recall