Law on Public Officers

234
- The element of continuance cannot be
LAW ON
considered as indispensable. Mechem
describes the delegation to the individual
of some of the sovereign functions of
PUBLIC OFFICERS government as “the most important
characteristic” in determining whether a
Consolidated from Reviewer and Outline from position is a public office or not [Laurel v.
BarOps 2003 and 2004 Desierto (April 12, 2002)].
In this case, Laurel, who was the
chair of the National Centennial
I. PUBLIC OFFICE AND OFFICERS Commission (NCC), was declared by the
Court to be a public officer. The Court
A. Public Office ruled that the NCC performs executive
functions as it enforces and carries into
1. Definition operation the conservation and
• the right, authority and duty created and promotion of the nation’s historical and
conferred by law, by which for a given cultural heritage, a policy embodied in
period, either fixed by law or enduring at the Constitution. That Laurel did not
the pleasure of the appointing power, an receive any compensation during his
individual is invested with some portion of tenure is of little consequence. This is
the sovereign functions of the government, because a salary is a usual but not a
to be exercised by him for the benefit of necessary criterion for determining the
the public. (Mechem) nature of the position. At the same time,
the element of continuance cannot be
2. Purpose considered as indispensable.
• to effect the end for which government has
been instituted which is the common good; 5. Public Office v. Public Employment
not profit, honor, or private interest of any • Public employment is broader than public
person, family or class of persons (63 Am office. All public office is public employment,
Jur 2d 667) but not all public employment is a public
office.
3. Nature • A public office when it is created by law, with
• A public office is a public trust. (Art. XI, duties cast upon the incumbent which involve
Sec. 1, 1987 Consti) the exercise of some portion of the sovereign
• It is a responsibility and not a right. (Morfe power, and in the performance of which the
v. Mutuc) public is concerned. Public employment is a
position which lacks one or more of the
4. Elements foregoing elements.
• Must be created either by (a) the
Constitution, (b) the Legislature, or (c) a
municipality or other body through authority 6. Public Office v. Public Contract
conferred by the Legislature;
• Must possess a delegation of a portion of the Public Office Public Contract
sovereign power of government, to be
exercised for the benefit of the public; Creation Incident of sovereignty Originates from will of
• The powers conferred and the duties contracting parties
discharged must be defined, directly or
impliedly by the Legislature or through Object Carrying out of Obligations imposed
legislative authority; sovereign as well as only upon the
• The duties must be performed independently governmental functions persons who entered
and without control of a superior power other affecting even persons into the contract
than the law; not bound by the
- Exception: If the duties are those of an contract
inferior or subordinate office, created or
authorized by the Legislature and by it Subject Tenure, duration, Limited duration
placed under the general control of a Matter continuity
superior office or body;
• Must have some permanency and continuity Scope Duties that are Duties are very
- Note: This is not to be applied literally. generally continuing specific to the
The Board of Canvassers is a public and permanent contract
office, yet its duties are only for a limited
period of time. Where The law Contract
duties are
defined
[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Jam_Jacob.design] Bobbie_StaMaria.printing] [Miles_Malaya.lectures]
[Japee_DeLeon.poli_law] [Ascheia_Yumul.rem_law] [Paul_Sorino/Judy_Ripol.civ_law] [Hya_Rafael/Mac_Macapagal.crim_law]
[Vivian_Tan/Justin_Mendoza.labor_law] [Miguel_DeJesus.legal_ethics] [Lianne_Gervasio.comm_law]
[Ces_Sicangco/Rowena_Romero.tax_law]
235
- GENERAL RULE: The creation of a public
office is primarily a legislative function.
- Exceptions:
7. There is no vested right to public office. o where the offices are created by
• GENERAL RULE: A public office, being a the Constitution;
mere privilege given by the state, does not o where the Legislature delegates
vest any rights in the holder of the office. such power.
This rule applies when the law is clear.
• EXCEPTION: When the law is vague, the • Delegation of Power to Create Public
person’s holding of the office is protected and Office
he should not be deprived of his office. - Where an office is created pursuant to
• A public office cannot be regarded as the illegally delegated powers, the office
property of the incumbent and that a public would have no existence.
office is not a public contract. Although there
is a vested right to an office, which may not U.S.T. v. Board of Tax Appeals
be disturbed by legislation, yet the incumbent
has, in a sense, a right to his office. If that The authority given to the President
right is to be taken away by statute, the to "reorganize within one year the different
terms should be clear (Segovia v. Noel). executive departments, bureaus and other
instrumentalities of the Government" in order
8. Public Office is not property. to promote efficiency in the public service is
• A public office is not the property of the limited in scope and cannot be extended to
public officer within the meaning of the due other matters not embraced therein.
process clause of the non-impairment of the Therefore, an executive order depriving the
obligation of contract clause of the Courts of First Instance of jurisdiction over
Constitution. cases involving recovery of taxes illegally
• Exceptions: collected is null and void, as Congress alone
- In quo warranto proceedings relating to has the "power to define, prescribe and
the question as to which of 2 persons is apportion the jurisdiction of the various
entitled to a public office courts."
- In an action for recovery of compensation
accruing by virtue of the public office 10. Methods of Organizing Offices
• Due process is violated only if an office is • Single-head: one head assisted by
considered property. However, a public office subordinates. Swifter decision and action but
is not property within the constitutional may sometimes be hastily made.
guaranties of due process. It is a public trust • Board System: collegial body in formulating
or agency. As public officers are mere agents polices and implementing programs. Mature
and not rulers of the people, no man has a studies and deliberations but may be slow in
proprietary or contractual right to an office responding to issues and problems.
(Cornejo v. Gabriel).
11. Modification and Abolition of Public
Office
Abeja v. Tanada • GENERAL RULE: The power to create an
office includes the power to modify or abolish
Public office being personal, the it. (i.e., this is generally a legislative
death of a public officer terminates his right function)
to occupy the contested office and - EXCEPTIONS:
extinguishes his counterclaim for damages. o Where the Constitution prohibits such
His widow and/or heirs cannot be substituted modification / abolition;
in the counterclaim suit. o Where the Constitution gives the
people the power to modify or
9. Creation of Public Office abolish the office
• RULE on Abandonment: When a public
• Modes of Creation of Public Office official voluntarily accepts an appointment to
- by the Constitution an office newly created by law -- which new
- by statute / law office is incompatible with the former -- he
- by a tribunal or body to which the power will be considered to have abandoned his
to create the office has been delegated former office.
- Exception: When the non-acceptance of
• Scope and Extent of Power of the new appointment would affect public
Legislature interest, and the public official is thereby
constrained to accept.

236
public functions is sufficient to constitute
a person as a public official.
Ocampo v. Secretary of Justice • In the case of People v. Paloma, a sorter

and filer of money orders in the Auditor's
The legislative power to create a Office of the Bureau of Posts was
court carries with it the power to abolish it. convicted for infidelity in the custody of
When the court is abolished, any unexpired documents. The court pointed out that
term is abolished also. the sorting and filing of money orders in
the Bureau of Posts is obviously a public
Zandueta v. De la Costa function or duty.
RULE: When a public official voluntarily

accepts an appointment to an office newly Who are not considered public officers?
created by law -- which new office is
incompatible with the former -- he will be • Special policemen salaried
considered to have abandoned his former by a private entity and
office. patrolling only the premises
of such private entity (Manila
Exception: When the non-acceptance of the Terminal Co. v. CIR);
new appointment would affect public interest,
and the public official is thereby constrained • Concession forest guards
to accept. (Martha Lumber Mill v.
Lagradante);
• Company cashier of a private

12. Estoppel to Deny Existence of Office corporation owned by the
• When a person has acted as a public government (Tanchoco v.
officer, esp. where he has received public GSIS)
monies by virtue of his office, he is
estopped from denying that he has
occupied a public office.
2. A person cannot be compelled to accept a
public office.
B. Public Officer • EXCEPTIONS:
- When citizens are required, under
1. Definition conditions provided by law, to render
• A public officer is one who performs public personal military or civil service (Sec. 4,
functions / duties of government by virtue Art. II, 1987 Const.);
of direct provision of law, popular election, - When a person who, having been elected
or appointment by competent authority. by popular election to a public office,
His duties involve the exercise of discretion refuses without legal motive to be sworn
in the performance of the functions of the in or to discharge the duties of said
government, and are not of a merely office.
clerical or manual nature.
• For the purpose of applying the provisions 3. No presumption of power
of the Revised Penal Code, employees, • A public official exercises power, not rights.
agents, or subordinate officials, of any rank The government itself is merely an agency
or class, who perform public duties in the through which the will of the state is
government or in any of its branches shall expressed and enforced. Its officers
be deemed as public officers. therefore are likewise agents entrusted
with the responsibility of discharging its
functions. As such, there is no
Illustrations: presumption that they are empowered to
act. There must be a delegation of such
• In the case of Maniego v. People, a authority, either express or implied. In the
laborer who was in charge of issuing absence of a valid grant, they are devoid of
summons and subpoenas for traffic power (Villegas v. Subido).
violations in a judge's sala was convicted
for bribery under RPC 203. The court
held that even temporary performance of

237
C. Classification of Public Offices and Public precedent requirement or condition (e.g.,
Officers taking an oath or giving a bond);
- Under color of a known election or
• Creation appointment, void because:
- Constitutional o the officer was not eligible;
- Statutory o there was a want of power in the
electing or appointing body;
• Public Body Served o there was a defect or irregularity
- National in its exercise;
- Local o such ineligibility, want of power,
or defect being unknown to the
• Department of government to which their public.
functions pertain - Under color of an election or an
- Legislative appointment by or pursuant to a public,
- Executive unconstitutional law, before the same is
- Judicial adjudged to be such.
o Note: What is unconstitutional is
• Nature of functions not the act creating the office,
- Civil but the act by which the officer is
- Military appointed to an office legally
existing. (Norton v. County of
• Exercise of Judgment or discretion Shelby)
- Quasi-judicial
- Ministerial • Officer De Jure v. Officer De Facto
• Legality of Title to office De Jure De Facto

- De Jure
- De Facto Requisites Existence of a De jure office;
de jure office;
• Compensation
- Lucrative must possess Color of right
- Honorary the legal or general
qualifications acquiescence
D. De Facto Officers for the office in by the public;
question;
1. De Facto Doctrine Actual physical
It is the principle which holds that a person, who, must be possession of
by the proper authority, is admitted and sworn lawfully chosen the office in
into office is deemed to be rightfully in such office to such office; good faith
until: (a) by judicial declaration in a proper
proceeding he is ousted therefrom; or (b) his must have
admission thereto is declared void. qualified
Its purpose is to ensure the orderly functioning of himself to
government. The public cannot afford to check perform the
the validity of the officer's title each time they duties of such
transact with him. office
according to
2. De Facto Officer Defined the mode
• A person is de facto officer where the prescribed by
duties of his office are exercised under any law.
of the following circumstances:
- Without a known appointment or Basis of Right: he has Reputation:
election, but under such circumstances of Authority the lawful right Has the
reputation or acquiescence as were / title to the possession and
calculated to induce people, without office performs the
inquiry, to submit to or invoke his action, duties under
supposing him to the be the officer he color of right,
assumed to be; or without being
- Under color of a known and valid technically
appointment or election, but where the qualified in all
officer has failed to conform to some points of law to
act

238
presumption of
How ousted Cannot be Only by a his right to act)
ousted. direct
proceeding Rule on Entitled to Not entitled to
(quo compensation receive compensation
warranto); not compensation at all.
collaterally only during the
time when no
Validity of Valid, subject Valid as to the de jure officer
official acts to exceptions public until is declared;
(e.g., they such time as
were done his title to the He is paid only
beyond the office is for actual
scope of his adjudged services
authority, etc.) insufficient. rendered by
him.
Rule on Entitled to Entitled to
Compensation compensation receive
as a matter of compensation - An intruder / usurper ripen into a de
right; only during the facto officer. With the passage of time, a
time when no presumption may be created in the minds
The principle of de jure officer of the public that the intruder has a right
"no work, no is declared; to act as a public officer.
pay" is not - Good faith on the part of the public is a
applicable to He is paid only factor in the ripening of intruder status
him. for actual into de facto status.
services
rendered by 3. Elements of a De Facto Officership
him. (1) De jure office
(2) Color of right or general acquiescence
by the public;
• Officer De Facto v. Intruder (3) Actual physical possession of the
office in good faith
De Facto Intruder
Examples of those not considered as De Facto
Nature Officer under One who takes Officers
any of the 4 possession of
circumstances an office and • A judge who has accepted an
discussed undertakes to appointment as finance secretary and yet
under Part II act officially renders a decision after having accepted
(above). without any such appointment (Luna v. Rodriguez);
authority,
either actual or • A judge whose position has already been
apparent abolished by law, and yet promulgates a
decision in a criminal case after the
Basis of Color of right None. He has abolition and over the objection of the
authority or title to office neither lawful fiscal (People v. So)
title nor color
of right or title
to office. 4. Office created under an unconstitutional
statute
Validity of Valid as to the Absolutely • The prevalent view is that a person
"official" acts public until void; they can appointed or elected in accordance with a
such time as be impeached law later declared to be unconstitutional
his title to the at any time in may be considered de facto at least before
office is any proceeding the declaration of unconstitutionality.
adjudged (unless and
insufficient until he
continues to
act for so long
a time as to
afford a

239
5. Legal Effect of Acts of De Facto Officers Gen. Manager, Philippine Ports Authority v.
Monserate (April 17, 2002)
• As regards the officers themselves: A party
suing or defending in his own right as a A de facto officer, not having good title,
public officer must show that he is an takes the salaries at his risk and must
officer de jure. It is not sufficient that he account to the de jure officer for whatever
be merely a de facto officer. salary he received during the period of his
• As regards the public and third persons: wrongful tenure. In fine, the rule is that
The acts of a de facto officer are valid as to where there is a de jure officer, a de facto
third persons and the public until his title to officer, during his wrongful incumbency, is
office is adjudged insufficient. not entitled to the emoluments attached to
• Official Acts of De Facto Officers not subject the office, even if he occupied the office in
to collateral attack good faith.
- RULE: The title of a de facto officer and
the validity of his acts cannot be However, this rule was not squarely
collaterally questioned in proceedings to applied in this case since the de jure officer
which he is not a party, or which were assumed another position under protest, for
not instituted to determine the very which she received compensation. Thus,
question. while her assumption to the said position and
- REMEDY: Quo warranto proceedings her acceptance of the corresponding
o Who may file: emoluments cannot be considered as an
The person who claims to be abandonment of her claim to her rightful
entitled to the office; office, she cannot recover full backwages for
The Republic of the Philippines, the period when she was unlawfully deprived
represented by thereof. She is only entitled to backpay
the Solicitor-General; or differentials between the salary rates for the
a public prosecutor lower position she assumed and the position
she is rightfully entitled to.
6. Liabilities of De Facto Officers
• The liability of a de facto officer is generally
held to be the same degree of III. ELIGIBILITY AND QUALIFICATIONS
accountability for official acts as that of a
de jure officer. A. Definition
• The de facto officer may be liable for all • Eligibility: endowment / requirement /
penalties imposed by law for any of the accomplishment that fits one for a public
following acts: office.
- usurping or unlawfully holding office; • Qualification: endowment / act which a
- exercising the functions of public office person must do before he can occupy a
without lawful right; public office.
- not being qualified for the public office as
required by law. B. Power to Prescribe Qualifications
• The de facto officer cannot excuse his • GENERAL RULE: Congress is empowered
responsibility for crimes committed in his to prescribe the qualifications for holding
official capacity by asserting his de facto public office.
status. • Restrictions on the Power of Congress to
Prescribe Qualifications:
7. Right to Compensation of De Facto Officer - Congress cannot exceed its constitutional
• GENERAL RULE: A de facto officer cannot powers;
maintain an action to recover the salary, - Congress cannot impose conditions of
fees or other emoluments attached to the eligibility inconsistent with constitutional
office, even though he has performed the provisions;
duties thereof on the theory that the acts of - The qualification must be germane to the
a de facto officer as far as he himself is position ("reasonable relation" rule);
concerned are void. - Congress cannot prescribe qualifications
so detailed as to practically amount to
EXCEPTION: One who becomes a public making an appointment. (Legislative
officer de facto without bad faith on his part, and appointments are unconstitutional and
who renders the services required of the office, therefore void for being a usurpation of
may recover the compensation executive power.);
- Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the

240
constitutional criteria are exclusive, and (1) the need of securing the
Congress cannot add to them except if concurrence of the Commission
the Constitution expressly or impliedly on Appointments; and
gives the power to set qualifications.
• In the absence of constitutional inhibition, (2) the exercise of the limited
Congress has the same right to provide legislative power to prescribe the
disqualifications that it has to provide qualifications to a given
qualifications for office. appointive office.
Cuyegkeng v. Cruz
Examples of legislative enactments which
are tantamount to legislative The power of appointment vested in
appointments: the President by the Constitution connotes
necessarily a reasonable measure of freedom,
• Extensions of the terms of office of the latitude, or discretion in the exercise of the
incumbents; power to choose appointees.
• The People's Court Act, which provided Flores v. Drilon

that the President could designate Judges
of First Instance, Judges-at-large of First Where only one can qualify for the
Instance or Cadastral Judges to sit as posts in question, the President is precluded
substitute Justices of the Supreme Court from exercising his discretion to choose
in treason cases without them necessarily whom to appoint. Such supposed power of
having to possess the required appointment, sans the essential element of
constitutional qualifications of a regular choice, is no power at all and goes against
Supreme Court Justice. (Vargas v. the very nature itself of appointment.
Rilloraza);
• A proviso which limits the choices of the C. Time of Possession of Qualifications

appointing authority to only one eligible, • At the time specified where the time is
e.g. the incumbent Mayor of Olongapo specified by the Constitution or law.
City (Flores v. Drilon); • Where the Constitution or law is silent,
there are 2 views:
• A legislative enactment abolishing a 1. qualification must be at the time of
particular office and providing for the commencement of term or induction
automatic transfer of the incumbent into office;
officer to a new office created 2. qualification / eligibility must exist at
(contemplated in Manalang v. the time of the election or
Quitoriano); appointment
• Eligibility is a continuing nature, and must
• A provision that impliedly prescribes exist throughout the holding of the public
inclusion in a list submitted by the office. Once the qualifications are lost,
Executive Council of the Phil. Medical then the public officer forfeits the office.
Association as one of the qualifications
for appointment; and which confines the Castaneda v. Yap
selection of the members of the Board of
Medical Examiners to the 12 persons Knowledge of ineligibility of a
included in the list (Cuyegkeng v. Cruz) ; candidate and failure to question such
ineligibility before or during the election is not
a bar to questioning such eligibility after such
Manalang v. Quitoriano ineligible candidate has won and been
proclaimed. Estoppel will not apply in such a
Congress cannot either appoint a case.
public officer or impose upon the President
the duty to appoint any particular person to Frivaldo v. COMELEC
an office. The appointing power is the
exclusive prerogative of the President, The citizenship requirement must be
upon which no limitations may be imposed by met only on election day. While the Local
Congress, except those resulting from: Government Code requires residency of one
year immediately preceding election day and
the prescribed age on election day, no date is
specified for citizenship. The purpose of the

241
citizenship requirement is to ensure leaders 6. COMELEC Commissioners (Sec. 1[1], Art.
owing allegiance to no other country. Such IXC)
purpose is not thwarted, but instead achieved • Natural-born citizen
by construing the requirement to apply at • 35 years old at time of appointment
time of proclamation and at the start of the • college degree holder
term. • not a candidate for elective position in
election immediately preceding
appointment
D. Construction of Restrictions on Eligibility • chairman and majority should be members
• There is a presumption IN FAVOR OF of the bar who have been engaged in the
ELIGIBLITY of one who has been elected or practice of law for at least 10 years
appointed to public office.
• The right to public office should be strictly 7. COA Commissioners
construed against ineligibility. • Natural-born citizen
• 35 years old at time of appointment
E. Qualifications usually Prescribed • CPA with >10 year of auditing experience
or
1. For President (Sec. 2, Art. VI, • Bar member engaged in practice of law for
Constitution) and Vice President (Sec. 3, Art. at least 10 years
VII, Constitution) • Not have been candidates for elective
• Natural-born citizen position in elections immediately preceding
• 40 years old on day of election appointment
• resident of the Philippines for at least 10
yrs immediately preceding election day Cayetano v. Monsod
2. For Senator (Sec. 3, Art. VI, Constitution) Practice of law means any activity, in
or out of court, which requires the application
• Natural-born citizen of law, legal procedure, knowledge, training
• 35 years old on day of election and experience. Generally, to practice law is
• able to read and write to give notice or render any kind of service
• registered voter which requires the use in any degree of legal
• resident of the Philippines for not less than knowledge or skill.
two years immediately preceding election
day Aquino v. COMELEC
3. For Congressmen (Sec. 6, Art. VI, Residency of not less than 1 year
Constitution) prior to the elections for the position of
• Natural-born citizen Congressman. In election law, residence
• 25 years old on day of election refers to domicile, i.e. the place where a
• able to read and write party actually or constructively has his
• registered voter in district in which he shall permanent home, where he intends to return.
be elected To successfully effect a change of domicile,
• resident thereof for not less than one year the candidate must prove an actual removal
immediately preceding election day or an actual change of domicile. Here, it was
held that leasing a condominium unit in the
4. Supreme Court Justice district was not to acquire a new residence or
• Natural born citizen domicile but only to qualify as a candidate.
• at least 40 years old
• 15 years or more a judge or engaged in law Marcos v. COMELEC
practice
• of proven CIPI (competence, integrity, Domicile, which includes the twin
probity and independence) elements of actual habitual residence, and
animus manendi, the intention of remaining
5. Civil Service Commissioners (Sec. 1 [1], there permanently. It was held that domicile
Art. IXB. Constitution) of origin is not easily lost, and that in the
• Natural-born citizen absence of clear and positive proof of a
• 35 years old at time of appointment successful change of domicile, the domicile of
• proven capacity for public administration origin should be deemed to continue.
• not a candidate for any elective position in
elections immediately preceding
appointment

242
F. Religious Test or Qualification holding of multiple offices or
• No religious test shall be required for the employment in the government
exercise of civil or political rights. (Art. III, subsuming both elective and
Sec. 5, 1987 Constitution) appointive public officials, unless
otherwise allowed by law or by the
G. Disqualifications to Hold Public Office primary functions of his position.
• IN GENERAL: Individuals who lack any of This provision should not be
the qualifications prescribed by the applied to the President, Vice-
Constitution or by law for a public office are President and cabinet members
ineligible or disqualified from holding such since the Constitution, in Section
office. 13, Article VII, prescribes a stricter
prohibition on the mentioned
1. Mental or physical incapacity officials.
2. Misconduct or crime: persons convicted 2. To apply the exceptions found in

of crimes involving moral turpitude are Section 7, Article IX-B to Section
usually disqualified from holding public 13, Article VII would obliterate the
office. distinction set by the framers of
the Constitution as to the high-
3. Impeachment ranking officials of the Executive
branch.
4. Removal or suspension from office:
where there is no constitutional or 3. However, the prohibition under
statutory declaration of ineligibility for Section 13, Article VII is not to be
suspension or removal from office, the interpreted as covering positions
courts may not impose the disability held without additional
compensation in ex-officio
5. Previous tenure of office: for example, a capacities as provided by law and
person who has been elected and has as required by the primary
held the office of President is absolutely functions of the concerned official’s
disqualified for reelection office.
6. Consecutive terms: 8. Relationship with the appointing power

a. Vice-President = 2 consecutive
terms i. Exceptions to rule on nepotism:
b. Senator = 2 consecutive terms a. persons employed in a confidential
c. Representative = 3 consecutive capacity
terms b. teachers
d. Elective local officials = 3 c. physicians
consecutive terms d. members of the Armed Forces of the
Philippines
i. Voluntary renunciation of the
office for any length of time 9. Office newly created or the emoluments
shall not be considered as an of which have been increased
interruption in the continuity
of his service for the full 10. Being an elective official: elective officials
term for which he was are not eligible for appointment or
elected. designation in any capacity to any public
office or position during his tenure; he
7. Holding more than one office: to prevent may be appointed provided he forfeits his
offices of public trust from accumulating seat
in a single person, and to prevent
individuals from deriving, directly or 11. Having been a candidate for any elective
indirectly, any pecuniary benefit by virtue position
of their dual position-holding
12. Under the Local Government Code
i. Civil Liberties Union v. Executive
Secretary a. Those sentenced by final judgment for
an offense involving moral turpitude or
1. Section 7, Article IX-B of the for an offense punishable by 1 year or
Constitution is meant to lay down more of imprisonment, within 2 years
the general prohibition against the after serving sentence;

243
b. Those removed from office as a result 2. Nature of Appointing Power
of an administrative case; • The power to appoint is intrinsically an
c. Those convicted by final judgment for executive act involving the exercise of
violating the oath of allegiance to the discretion. (Concepcion v. Paredes)
Republic; • The power and prerogative to a vacant
d. Those with dual citizenship; position in the civil service is lodged with
e. Fugitive from justice in criminal or non- the appointing authority.
political cases here or abroad;
f. Permanent residents in a foreign 3. Presidential Appointees
country or those who have acquired the
right to reside abroad and continue to • The following shall be nominated and
avail of the same right after the appointed by with the consent of the
effectivity of the Local Government Commission on Appointments
Code; - Heads of the executive departments (Art.
g. The insane or feeble-minded. VII, Sec. 16, 1987 Const.);
- - Ambassadors (ibid);
IV. FORMATION OF OFFICIAL RELATION - Other public ministers and consuls (ibid);
- Officers of the armed forces from the
A. Modes of Commencing Official Relation rank or colonel or naval captain (ibid);
• Election - Other officers whose appointments are
• Appointment vested in him by the Constitution (ibid),
• Others: including Constitutional Commissioners
- Succession by operation of law; (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C,
- Direct provision of law, e.g. ex-officio Sec. 1 (2) for COMELEC; Art. IX-D, Sec.
officers 1 (2) for COA).
B. Election • The following can be appointed by the

• Selection or designation by a popular vote President without the need for CA approval
- All other officers of the government
C. Appointment whose appointments are not otherwise
provided for by law;
1. Definition - Those whom he may be authorized by
law to appoint;
Designation Appointment - Members of the Supreme Court;
- Judges of lower courts;
Definition Imposition of Selection of an - Ombudsman and his deputies
additional individual to
duties upon an occupy a • Kinds of Presidential Appointments
existing office certain public - Regular: those made while Congress is
office by one in session; subject to confirmation by the
authorized by Commission on Appointments
law to make - Ad interim: those made while Congress
such selection is not in session
o Recess appointment power keeps in

Extent of Limited Comprehensive continuous operation the business of
Powers government when Congress is not in
session.
Security of No. Yes. o The appointment shall cease to be
tenure? effective upon rejection by the
Commission on Appointments, or if
When Assumption of Assumption of not acted upon, at the adjournment
deemed a designated a 2nd of the next session, regular or
abandonment position is not appointive special, of Congress.
of prior office deemed position is - Permanent: those which last until they
abandonment usually are lawfully terminated
of the 1st deemed - Temporary or acting: those which last
position abandonment until a permanent appointment is issued
of the first
office.

244
Matibag v. Benipayo (April 2, 2002) qualities required for successful
performance. (Sec. 22, Book V, EO 292)
An ad interim appointment is a • It shall be the responsibility of the
permanent appointment because it takes departments and agencies to establish,
effect immediately and can no longer be administer and maintain the qualification
withdrawn by the President once the standards on a continuing basis as an
appointee has qualified into office. The fact incentive to career advancement. (Sec. 7,
that it is subject to confirmation by the Rule IV, Omnibus Rules)
Commission on Appointments does not alter • Their establishment, administration, and
its permanent character. The Constitution maintenance shall be the responsibility of
itself makes an ad interim appointment the department / agency, with the
permanent in character by making it effective assistance and approval of the CSC and in
until disapproved by the Commission on consultation with the Wage and Position
Appointments or until the next adjournment Classification Office (ibid)
of Congress. • Shall be established for all positions in the
1st and 2nd levels (Sec. 1, Rule IV,
An ad interim appointment is Omnibus Rules)
distinguishable from an “acting” appointment
which is merely temporary, good until 2. Political Qualifications for an Office (i.e.,
another permanent appointment is issued. membership in a political party)
• GENERAL RULE: Political qualifications
Said appointment is also distinguished are not required for public office.
from the exercise of presidential prerogative - EXCEPTIONS:
requiring confirmation by the Commission on o Membership in the electoral tribunals
Appointments when Congress is in session. of either the House of
In the latter, the President nominates, and Representatives or Senate (Art. VI,
only upon the consent of the Commission on Sec. 17, 1987 Const.);
Appointments may the person thus named o Party-list representation;
assume office. It is not so with reference to o Commission on Appointments;
ad interim appointments, as they take effect o Vacancies in the Sanggunian (Sec.
at once. The individual chosen may thus 45, Local Government Code)
qualify and perform his function without loss
of time. 3. Property Qualifications
• In the cases of Maquera v. Borra and Aurea
In this case, the ad interim appointments v. COMELEC, the Supreme Court held that
of the COMELEC Commissioners, being property qualifications are inconsistent with
permanent appointments, do not violate the the nature and essence of the Republican
Constitutional prohibition on temporary or system ordained in our Constitution and the
acting appointments of COMELEC principle of social justice underlying the
Commissioners. same. The Court reasoned out that
"sovereignty resides in the people and all
Moreover, the failure of the Commission government authority emanates from
on Appointments to confirm the ad interim them, and this, in turn, implies necessarily
appointment does not amount to a that the right to vote and to be voted shall
disapproval by the said Commission. There is not be dependent upon the wealth of the
no dispute that an ad interim appointee individual concerned. Social justice
disapproved by the COA can no longer be presupposes equal opportunity for all, rich
extended a new appointment. On the other and poor alike, and that, accordingly, no
hand, a by-passed appointee, or one whose person shall, by reason of poverty, be
appointment has not been finally acted upon denied the chance to be elected to public
the merits by the COA, may be appointed office."
again by the President.
4. Citizenship
• Aliens not eligible to public office
D. Qualification Standards and Requirements
under the Civil Service Law 5. Effect of removal of qualifications during
the term
1. Qualification Standards • The officer must be terminated.
• Express the minimum requirements for a
class of positions in terms of education,
training and experience, civil service
eligibility, physical fitness, and other

245
6. Effect of pardon upon the disqualification power chooses to fill the vacancy by
to hold public office transfer, reinstatement, reemployment or
certification, not necessarily in that order.
• GENERAL RULE: A pardon shall not (Pineda v. Claudio)
work the restoration of the right to hold
public office. (Art. 36, Revised Penal Code) • The CSC is not empowered to change the
- EXCEPTIONS: nature of the appointment extended by the
o Where such right to hold public office is appointing officer, its authority being
expressly restored by the terms of the limited to approving or reviewing the
pardon (Art. 36, RPC); appointment in the light of the
o When a person is granted pardon requirements of the Civil Service Law.
because he did not commit the offense When the appointee is qualified and all the
imputed to him (Garcia v. Chairman, legal requirements are satisfied, the CSC
COA) has no choice but to attest to the
appointment. (Luego v. CSC)
E. Discretion of Appointing Official
• Discretion, if not plenary, at least sufficient, • Where the palpable excess of authority or
should thus be granted to those entrusted abuse of discretion in refusing to issue
with the responsibility of administering the promotional appointment would lead to
officers concerned, primarily the manifest injustice, mandamus will lie to
department heads. They are in the most compel the appointing authority to issue
favorable position to determine who can said appointments. (Gesolgon v. Lacson)
best fulfill the functions of the office thus
vacated. Unless, therefore, the law speaks
in the most mandatory and peremptory F. Effectivity of Appointment
tone, considering all the circumstances, • An appointment takes effect immediately
there should be, as there has been, full upon its issuance by the appointing authority.
recognition of the wide scope of such (Rule V, Sec. 10, Omnibus Rules).
discretionary authority. (Reyes v. Abeleda)
G. Effects of a complete, final and
• Appointment is an essentially discretionary irrevocable appointment
power and must be performed by the
officer in which it is vested, the only • GENERAL RULE: An appointment, once
condition being that the appointee should made, is irrevocable and not subject to
possess the qualifications required by law. reconsideration.
(Lapinid v. CSC) - A completed appointment vests a legal
right. It cannot be taken away EXCEPT
• Appointment is a political question. for cause, and with previous notice and
hearing (due process).
• The only function of the CSC is to review • Qualification: Where the assent,
the appointment in the light of the confirmation, or approval of some other
requirements of the Civil Service Law, and officer or body is needed before the
when it finds the appointee to be qualified appointment may be issue and be deemed
and all other legal requirements have been complete.
otherwise satisfied, it has no choice but to • EXCEPTIONS:
attest to the appointment. It cannot order - When the appointment is an absolute
the replacement of the appointee simply nullity (Mitra v. Subido);
because it considers another employee to - When there is fraud on the part of the
be better qualified. (Lapinid v. CSC) appointee (Mitra v. Subido);
- Midnight appointments
• To hold that the Civil Service Law requires o A President or Acting President is
that any vacancy be filled by promotion, prohibited from making appointments
transfer, reinstatement, reemployment, or 2 months immediately before the
certification in that order would be next presidential elections and up to
tantamount to legislative appointment the end of his term. (Art. VII, Sec.
which is repugnant to the Constitution. The 15, 1987 Const.)
requirement under the Civil Service Law o Exception: Temporary appointments
that the appointing power set forth the to executive positions when
reason for failing to appoint the officer next continued vacancies therein will
in rank applies only in cases of promotion prejudice public service or endanger
and not in cases where the appointing public safety.

246
part of the office itself. However, the
V. ASSUMPTION AND TERM OR TENURE OF President, Vice-President and Acting
OFFICE President are required by the Constitution
(Art. VII, Sec. 5) to take an oath or
A. Qualification to Office affirmation before entering into the
execution of their office. Such oath-taking
1. Appointment and Qualification to Office is mandatory.
Distinguished
2. Persons Authorized to Administer Oaths
• Appointment is the act of being designated • Notaries public;
to a public office by the appointing • Judges;
authority. • Clerks of court;
• Qualification is the act of signifying one's • Secretary of House / Senate;
acceptance of the appointive position. This • Secretary of Exec. Departments;
generally consists of the taking / subscribing • Bureau Directors;
/ filing of an official oath, and in certain • Register of Deeds;
cases, of the giving of an official bond, as • Provincial governors;
required by law. (Mechem) • City mayors;
• Municipal mayors;
Borromeo v. Mariano • Any other officer in the service of the
government of the Philippines whose
A judge may not be made a judge of appointment is vested in the President
another district without his consent. • Any other officer whose duties, as defined
Appointment and qualification to office are by law or regulation, require presentation to
separate and distinct things. Appointment is him of any statement under oath
the sole act of the appointee. There is no
power which can compel a man to accept the 3. Persons Obliged to Administer Oaths in All
office. Instances,
• Notaries public
• Municipal judges
2. Effect of Failure to Qualify • Clerks of court
• Failure to qualify is deemed evidence of
refusal of the office. 4. Time of Taking the Oath of Office
• It is a ground for removal • A public officer must take his oath of office
- If qualification is a condition precedent, before entering upon the discharge of his
failure to qualify ipso facto deemed duties.
rejection of the office
- If not condition precedent, failure is not 5. Requalification
ipso facto rejection • If a public officer is re-elected or re-
• Justifiable reasons for delay in qualifying: appointed, he must take another oath and
sickness, accident, and other fortuitous fulfill the other condition precedents before
events that excuse delay. assuming office. The oath and other
• The Omnibus Election Code provides that qualifications made prior to assumption of his
the officer must qualify (i.e., take his oath previous office will not be valid for
of office and assume office) within 6 subsequent terms of office.
months from proclamation. Otherwise, the
position will be deemed vacant. C. Giving of Bonds
- Exception: If the non-assumption of
office is due to a cause beyond his 1. The Bond
control. • It is in the nature of an indemnity bond
• Qualification is significant because it rather than a penal or forfeiture bond.
designates when security of tenure begins. • It is an obligation binding the sureties to
make good the officer’s default.
B. Oath of Office • It is required not for the benefit of the
office holder, but for the protection of the
1. Definition public interest and is designed to indemnify
• An oath is an outward pledge whereby one those suffering loss or injury by reason of
formally calls upon God to witness to the misconduct or neglect in office.
truth of what he says or to the fact that he
sincerely intends to do what he says.
• It is not indispensable. It is a mere
incident to the office and constitutes no

247
2. Persons Required to Give Bond validly object to the alteration of his term
• Accountable public officers or those to since he has no vested right in his office.
whom are entrusted the collection and (Greenshow v. U.S.)
custody of public money;
• Public ministerial officers whose actions 5. Term of Office Not Extended by Reason of
may affect the rights and interests of War
individuals. • There is no principle, law or doctrine by which
the term may be extended by reason of war.
3. Effect of Failure to Give Bond within the (Nueno, et al. v. Angeles)
Prescribed Period
• If not condition precedent, failure to give E. Doctrine of Holdover
bond merely constitutes a ground for
forfeiture of the office. It is not forfeiture of 1. The Doctrine
the office ipso facto. • A public officer whose term has expired or
• If condition precedent, failure to give bond services have been terminated is allowed to
within the prescribed period renders the office continue holding his office until his successor
vacant. is appointed or chosen and had qualified.
(Mechem)
D. Term and Tenure of Office
2. Purpose of the Hold-Over Rule
1. Term of Office and Tenure of Office • Public interest. It is to prevent a hiatus in the
Distinguished government pending the time when a
successor may be chosen and inducted into
Term of Office office. Tenure of Office
De jure De facto
3. Holding-Over Rules
Fixed and definite period of time during which the Per•iod during
Where which
the law provides
the incumbentfor it: The office
actually holdsdoes
the
officer may claim to hold the office as of right office. not become
It may vacantthan
be shorter upon the
the expiration of the
term.
term if there is no successor elected and
2. Power of the Legislature to Fix and qualified to assume it. Incumbent will hold-
Change the Term of Office over even if beyond the term fixed by law.
• Where the term is fixed by the Constitution, • Where the law is silent: Unless hold-over is
Congress has no power to alter the term. expressly or impliedly prohibited, incumbent
- But such term of office can be shortened may hold-over.
or extended by the vote of the people • Where the Constitution limits the term of a
ratifying a constitutional amendment. public officer and does not provide for hold-
• Where the term is not fixed, Congress may over: Hold-over is not permitted.
fix the terms of officers other than those
provided for in the Constitution. F. Commencement of Term of Office
• Congress has the power to change the tenure
of officers holding offices created by it. 1. Where the time is fixed
However, if the term is lengthened and made • The term will begin on the specified date.
to apply to the incumbents, this could be
tantamount to a legislative appointment 2. Where no time is fixed
which is null and void. • The term will generally begin on the date of
the election or the appointment.
3. When Term of Office Dependent upon
"Pleasure of the President"
• Congress can legally and constitutionally
make the tenure of certain officials dependent VI. POWERS AND DUTIES OF PUBLIC
upon the pleasure of the President. (Alba v. OFFICERS
Evangelista)
• Where the office is held at the pleasure of the A. Source of Government Authority
appointing power and such appointing power The people, the sovereignty.
can exercise the power of removal at his
mere discretion, the public officer may be B. Scope of Powers of a Public Officer
removed without notice or hearing. (Alba v. • The duties of a public office includes all those
Evangelista) which truly are within its scope:
(1) those which are essential to the
4. No Vested Interest in Term of Office accomplishment of the main purpose for which
• Public office is a privilege revocable by the the office was created; or
sovereignty at will. An incumbent cannot

248
(2) those which, although incidental or collateral, delegated?
are germane to and serve to promote the Exception: Exception:
accomplishment of the principal purpose (Lo When the power When the law
Cham v. Ocampo). to substitute / expressly
• Needless to say, powers expressly granted by delegate has requires the act
law are within the scope of the public been given to be performed
office. by the officer in
person and / or
C. Territorial Extent of Powers of Public prohibits such
Officer delegation
• GENERAL RULE: Where a public officer is When is Only if the duty In all cases.
authorized by law to perform the duties of his mandamus to do something
office at a particular place, action at a place proper? has been
not authorized by law is ordinarily invalid. delayed for an
(Note: This rule is applicable to all public unreasonable
officers whose duties are essentially local in period of time.
nature, e.g. judges.) In these cases,
• EXCEPTIONS: mandamus will
- Consuls; usually compel
- Police officers, who may arrest persons the officer to
for crimes committed outside Philippine make a
territory; decision, but will
- Doctrine of hot pursuit not dictate as to
what the
D. Duration of Authority of Public Officers decision will or
• The duration of the authority of public officers should be.
is limited to that term during which he is, by
law, invested with the rights and duties of the Is public Generally not Liable if duty
office. officer liable exercised
liable? Exceptions: if contrary to the
E. Construction of Grant of Powers there is fraud or manner
• Strict construction. Grant of powers will be malice prescribed by
construed as conferring only those powers law.
which are expressly imposed or necessarily
implied.
1. Discretionary Power
F. Classification of Powers • Discretion, when applied to public
functionaries, means a power or right
Discretionary Ministerial conferred upon them by law of acting
officially in certain circumstances, according
Definition Acts which Acts which are to the dictates of their own judgment and
require the performed in a conscience, uncontrolled by the judgment or
exercise of given state of conscience of others. (Lamb v. Phipps)
reason in facts, in a • Mandamus will not issue to control or review
determining prescribed the exercise of discretion of a public officer
when, where, manner, in where the law imposes on him the right or
and how to obedience to the duty to exercise judgment in reference to any
exercise the mandate of matter in which he is required to act
power legal authority, (Aprueba v. Ganzon).
without regard
to or the 2. Ministerial Power
exercise of his • A purely ministerial act is one which an officer
own judgment or tribunal performs in a given state of facts,
upon the in a prescribed manner, in obedience to the
propriety or mandate of legal authority, without regard to
impropriety of or the exercise of his own judgment upon the
the act done propriety or impropriety of the act done. A
(Lamb v. ministerial act is one to which nothing is left
Phipps) to the discretion of the person who must
perform. It is a simple, definite duty arising
Can be Generally, NO. Generally, YES. under conditions admitted or proved to exist

249
and imposed by law. It is a precise act, - When there is something in the statute
accurately marked out, enjoined upon which shows a different intent (Araphoe
particular officers for a particular purpose. City v. Union Pac);
(Lamb v. Phipps) - Where a disregard of the provisions of
the statute would injuriously affect a
Lamb v. Phipps public interest or public right;
- When the provision is accompanied by
Auditors and comptrollers, as negative words importing that the acts
accounting officers, are generally regarded as shall not be done in any other manner or
quasi-judicial officers. They perform mere time than that designated.
ministerial duties only in cases where the
sum due is conclusively fixed by law or H. Ratification of Unauthorized Acts
pursuant to law. Except in such cases, the
action of the accounting officers upon claims 1. If act was absolutely void at the time it
coming before them for settlement and was done
certification of balances found by them to be • Cannot be ratified
due, is not merely ministerial but judicial and 2. If merely voidable
discretionary. Mandamus will therefore not • Can be ratified and rendered valid
issue.
3. Government not estopped by the
Torres v. Ribo unauthorized or illegal acts of officers
• As between an individual and his
The powers of the Board of government, the individual cannot plead the
Canvassers are quasi-judicial and therefore void act of an official to shield him from the
discretionary. demand of the government that he (the
individual) fulfill an obligation which he has
Aprueba v. Ganzon contracted with the government, after the
benefits accruing to him as a result of that
Mandamus will not issue to control or obligation have been received. The
review the exercise of discretion of a public government can neither be estopped nor
officer where the law imposes on him the prejudiced by the illegal acts of its servants.
right or duty to exercise judgment in (Government v. Galarosa)
reference to any matter in which he is
required to act. Hilado v. Collector
The privilege of operating a market stall A tax circular issued on a wrong

under license is not absolute but revocable construction of the law cannot give rise to a
under an implied lease contract subject to the vested right that can be invoked by a
general welfare clause. taxpayer.
Mandamus never lies to enforce the

performance of contractual obligations. I. Accountability and Responsibility of Public
Officers and Employees
Miguel v. Zulueta • Norm of Performance of Duties: standards of

personal conduct provided for in Sec. 4, RA
Public officers may properly be compelled 6713
by mandamus to remove or rectify an - Commitment to public interest;
unlawful act if to do so is within their official - Professionalism;
competence. - Justness and sincerity;
- Political neutrality;
- Responsiveness to the public;
G. Time of Execution of Powers - Nationalism and patriotism;
- Commitment to democracy;
1. Where not indicated - Simple living
• Within a reasonable time
VII. RIGHTS AND PRIVILEGES OF PUBLIC
2. Where indicated OFFICERS
• Merely directory
• Exceptions: A. Right to Office
• It is the right to exercise the powers of the
office to the exclusion of others.

250
• The salary or emoluments in public office are
B. Right to Salary or Compensation not considered the proper subject of barter
and sale. (22 R.C.L. 541)
1. GENERAL RULES
• A public officer is not entitled to 5. Agreements Affecting Compensation Held
compensation for services rendered under an Void
unconstitutional statute or provision thereof. • An agreement by a public officer respecting
- Exception: If some other statute his compensation may rightfully be
provides otherwise. considered invalid as against public policy
• If no compensation is fixed by law, the public where it tends to pervert such compensation
officer is assumed to have accepted the office to a purpose other than that for which it was
to serve gratuitously. intended, and to interfere with the officer's
• After services have been rendered by a public free and unbiased judgment in relation to the
officer, the compensation thus earned cannot duties of his office. (This is usually with
be taken away by a subsequent law. reference to unperformed services and the
However, he cannot recover salary for a salary or fees attached thereto.)
period during which he performed no
services. 6. Right to Recover Salary: De Jure Officer
• One without legal title to office either by and De Facto Officer
lawful appointment or election and • Where a duly proclaimed elective official who
qualification is not entitled to recover salary assumes office is subsequently ousted in an
or compensation attached to the office. election protest, the prevailing party can no
• One who intrudes into or usurps a public longer recover the salary paid to the ousted
office has no right to the salary or officer. The ousted officer, who acted as de
emoluments attached to the office. facto officer during his incumbency, is entitled
to the compensation, emoluments and
2. Compensation not an element of public allowances which are provided for the
office position (Rodriguez v. Tan).
• Compensation is not indispensable to public - Exception: If there was fraud on the
office. It is not part of the office but merely part of the de facto officer which would
incident thereto. It is sometimes expressly vitiate his election.
provided that certain officers shall receive no • A de jure officer recover from--
compensation, and a law creating an office - the government: when the government
without any provision for compensation may continues to pay the de facto officer even
carry with it the implication that the services after the notice of adjudication of the
are to be rendered gratuitously. protest in favor of the de jure officer.
- a de facto officer: when notice of
2. Salary, Wages, and Per Diems Defined and adjudication of the title to the de jure
Distinguished officer has been given, and the de facto
• Salary: time-bound officer still continues to exercise duties
• Wages: service-bound and receive salaries and emoluments.
• Per Diem: allowance for days actually spent - an intruder / usurper: at all instances.
for special duties
Monroy v. CA and del Rosario
3. Salary of Public Officer Not Subject to
Attachment Where a mayor filed a certificate of
• The salary of a public officer or employee candidacy for congressman then withdrew
may not, by garnishment, attachment, or such certificate and reassumed the position of
order of execution, be seized before being mayor, thus preventing the vice-mayor from
paid by him, and appropriated for the discharging the duties of the position of
payment of his debts. mayor, the mayor should reimburse to the
• Money in the hands of public officers, vice-mayor, as the right rightful occupant of
although it may be due government the position of mayor, the salaried which he
employees, is not liable to the creditors of had received.
these employees in the process of
garnishment because the sovereign State
cannot be sued in its own courts except by Rodriguez v. Tan
express authorization by statute. (Director of
Commerce and Industry v. Concepcion) Where a duly proclaimed elective official
who assumes office is subsequently ousted in
4. Future or Unearned Salaries Cannot be an election protest, the prevailing party can
Assigned no longer recover the salary paid to the

251
ousted officer. The ousted officer, who acted • To indirectly protect the sovereign by
as de facto officer during his incumbency, is protecting the public official in the
entitled to the compensation, emoluments performance of his governmental function
and allowances which are provided for the • As a result of the immunity extended, the
position. fearless and effective administration of the
policies of the government is promoted.
Exception: If there was fraud on the
part of the de facto officer which would 3. When a Public Officer if Subject to Civil
vitiate his election. Liability
• The following must concur:
- injury to the individual must be
established
7. Additional or Double Compensation - the public officer must have violated a
Prohibited right or duty owed to the individual
claiming damages
Additional Double - the officer must have maliciously and in
There is only 1 There are 2 positions, bad faith acted outside the scope of his /
position, but the public and with additional her authority (ultra vires)
officer is getting functions and • Even mistakes committed by such public
additional emoluments for both officer are not actionable as long as it is not
compensation. positions shown that they were motivated by malice or
. gross negligence amounting to bad faith.
• Pensions / gratuities are not considered as Phil. Racing Club v. Bonifacio

additional, double, or indirect compensation.
(Sec. 8, Art. IX-B, 1987 Constitution) In this case, the members of the
• By its very nature, a bonus partakes of an Commission on Races declared a horse race
additional remuneration or compensation. cancelled due to a faulty start, but only after
(Peralta v. Auditor General) holders of the winning tickets were able to
• An allowance for expenses incident to the claim their prizes. Because of such
discharge of the duties of office is not an declaration, the Philippine Racing Club also
increase of salary, a prerequisite, nor an made a refund to the holders of the losing
emolument of office. (Peralta v. Auditor- tickets. A suit was filed against the
General) Commission, charging them with civil liability.
8. Recovery of Salary During Period of The Court found the Commissioners

Suspension acted outside the scope of their authority as
• If preventively suspended, he cannot they only had the power to supervise, and
recover salary. not control, the conduct of races. However,
- But If he is subsequently exonerated, he they were absolved from liability because
can. they acted in their official capacity in the
• If he was given penalty of removal from honest belief that they had such power.
office, but was completely exonerated upon
appeal, he can recover. The Court opined that in order that
• If he was given penalty of removal from acts may be done within the scope of official
office, but his penalty was commuted from authority, it is not necessary that they be
removal to mere suspension, or demotion, he prescribed by statute, or that they be
cannot recover because he was still found specifically directed or requested by a
guilty although the penalty was reduced. superior officer. It is sufficient if they are
• If the suspension / removal from office is done by an officer in relation to matters
unjustified, he can recover. committed by law to his control or
supervision, or that they have more or less
C. Doctrine of Official Immunity connection to the department under whose
authority the officer is acting.
1. The Doctrine
• A public officer enjoys qualified, not absolute
immunity. The protection generally applies 4. Kinds of Liability of Ministerial Officers
only to activities within the scope of office • Nonfeasance: neglect or refusal, without
that are in good faith and are not reckless, sufficient excuse, to perform an act which it
malicious or corrupt. was the officer’s legal duty to the individual
to perform
2. Purpose of the Doctrine

252
• Misfeasance: failure to use, in the • The mere expiration of the term of office of
performance of a duty owing to an individual, the public official will not prevent the
that degree of care, skill and diligence prosecution and punishment for a
• Malfeasance: the doing, either through misdemeanor committed in office; nor does
ignorance, inattention or malice, of that the re-election of a public official extinguish
which the officer has no legal right to do at all the criminal liability incurred by him during
- It is the general rule that good faith and his previous term of office.
absence of malice constitute no defense
in an action to hold a ministerial officer VIII. ADMINISTRATIVE DISCIPLINE
liable for damages caused by
nonfeasances or misfeasances. However, A. Over Presidential Appointees
good faith or honest mistake may be
shown in mitigation of damages. 1. Disciplinary Authority Lies with the
Appointing Authority
5. Liability of Superior Officer for Acts of Sec. 47(1), Book V of EO 292 which provides that
Subordinate “a complaint may be filed directly with the CSC by
• GENERAL RULE: Public officers are not civilly a private citizen against a government official or
liable to 3rd persons for the acts of their employee in which case it may hear and decide
subordinates. Thus, those in the chain of the case” must be read together with Sec. 48
command should not be subject to suit on which is entitled “Procedure in Administrative
any theory of vicarious responsibility. Cases Against Non-Presidential Appointees.” The
- Exceptions: very subject of Sec. 48 implicitly limits the scope
o Where, being charged with the duty of the CSC’s jurisdiction in administrative cases to
of employing or retaining his non-presidential appointees and makes patent the
subordinates, he negligently or conclusion that the disciplinary authority over
willfully employs or retains unfit or presidential appointees lies elsewhere – the
improper persons; President as appointing power himself (Olonan v.
o Where, being charged with the duty CSC).
to see that they are appointed or
qualified in a proper name, he 2. Power to Appoint Implies the Power to
negligently or willfully fails to require Remove; Exceptions
them the due conformity to the • Justices of the Supreme Court (by
prescribed regulations; impeachment)
o Where he so carelessly or • Members of Constitutional Commissions (by
negligently oversees, conducts or impeachment)
carries on the business of his officer • Ombudsman (by impeachment)
as to furnish the opportunity for the • Judges of inferior courts (disciplinary or
default; removal power vested in the Supreme Court)
o Where he has directed, authorized or
cooperated in the wrong; Bonifacio Sans Maceda v. Vasquez
o Where liability is expressly provided
in the statute. A judge who falsifies his Certificate of
Service is administratively liable to the SC for
6. Liability of Subordinates serious misconduct and inefficiency under Sec.
• A subordinate who acts in good faith under 1, Rule 140 of the Rules of Court and criminally
lawful orders of a superior officer is not liable to the State under the Revised Penal Code
personally liable in an action for damages. for his felonious act. Where a criminal complaint
against a judge or other employee arises from
• He shall be civilly liable for willful or negligent
their administrative duties, the Ombudsman
acts done by him which are contrary to law,
must defer action on said complaint and refer
morals, public policy or good customs, even if
the same to the SC for determination whether
he acted under orders of his superior. said judge or court employee had acted within
the scope of their administrative duties. Thus,
7. Liability for Tortuous Acts the Ombudsman should first refer the matter to
• Public officers are not immune from suit for the SC for determination of whether the
their own tortuous conduct, even where such certificates reflected the true status of his
conduct is committed in the course of their pending case load, as the SC had the necessary
employment. records to make such a determination. Art. VIII,
Sec. 6 of the Constitution exclusively vests in
8. Criminal Liability the SC administrative supervision over all courts
• The mere fact that an officer is acting in an and court personnel.
official capacity will not relieve him from
criminal liability.

253
Dolalas v. Ombudsman-Mindanao those of his witnesses together with his
documentary evidence.
Citing the Maceda case, the SC - If based on such papers a prima facie
power of administrative supervision over case is found not to exist, the disciplining
judges and court personnel is exclusive. authority shall dismiss the case.
Investigation by the Ombudsman violates the Otherwise, he shall notify the respondent
specific constitutional mandate of the SC and in writing of the charges against the
undermines the independence of the latter.
judiciary. - Respondent shall be allowed not less than
seventy-two hours after receipt of the
complaint to answer the charges in
B. Over Non-Presidential Appointees writing under oath, together with
supporting sworn statements and
1. Grounds documents. He shall also indicate
• Sec. 46(a), Book V of EO 292: “No officer or whether or not he elects a formal
employee in the Civil Service shall be investigation if his answer is not
suspended or dismissed except for cause as considered satisfactory.
provided by law and after due process.” - If the answer is found satisfactory, the
• The grounds constituting just cause are disciplining authority shall dismiss the
enumerated in Sec. 46(b). case.
- Although a respondent does not request
2. Jurisdiction a formal investigation, one shall
• Original complaints may be filed: (a) directly nevertheless be conducted when from the
with the CSC or (b) with the Secretaries and allegations of the complaint and the
heads of agencies and instrumentalities, answer of the respondent, including the
provinces, cities and municipalities for officers supporting documents, the merits of the
and employees under their jurisdiction. case cannot be decided judiciously
• Decisions of Secretaries and heads of without conducting such an investigation.
agencies and instrumentalities, provinces, - The decision shall be rendered by the
cities and municipalities shall be final in case disciplining authority within thirty days
the penalty imposed is suspension for not from the termination of the investigation
more than 30 days or fine in an amount not or submission of the report of the
exceeding 30 days’ salary. investigator, which report shall be
• In case the decision rendered by a bureau or submitted within fifteen days from the
office head is appealable to the Commission, conclusion of the investigation.
the same may be initially appealed to the
department and finally to the Commission - Either party may avail himself of the
and pending appeal, the same shall be services of counsel and may require the
executory except when the penalty is attendance of witnesses and the
removal, in which case the same shall be production of documentary evidence in
executory only after confirmation by the his favor through the compulsory process
Secretary concerned. of subpoena or subpoena duces tecum.
- Decisions imposing the penalty of
suspension for more than 30 days or fine 4. Appeals and Petition for Reconsideration
in an amount exceeding 30 days’ salary, • Within 15 days from receipt of the decision
demotion in rank or salary or transfer, unless a petition for reconsideration is
removal or dismissal from office shall be seasonably filed, which petition shall be
appealable to the CSC. decided within 15 days.
• A petition for reconsideration shall be based
3. Procedure in Administrative Cases Against only on any of the following grounds:
Non-Presidential Appointees - new evidence has been discovered which
• Administrative proceedings may be materially affects the decision rendered;
commenced against a subordinate officer or - the decision is not supported by the
employee by the Secretary or head of office evidence on record; or
of equivalent rank, or head of local - error of law or irregularities have been
government, or chiefs of agencies, or regional committed which are prejudicial to the
directors, or upon sworn written complaint of interests of the respondent.
any other person. • Only one petition for reconsideration shall be
• For complaints filed by any other person allowed.
- Complainant shall submit sworn
statements covering his testimony and

254
Mendez v. Civil Service Commission 7. Penalty
• In meting out punishment, the same
The remedy of appeal in civil service penalties shall be imposed for similar offenses
cases may be availed of only in a case where and only one penalty shall be imposed in
respondent is found guilty of the charges each case.
against him. But when the respondent is • The disciplining authority may impose the
exonerated of said charges, as in this case, penalty of removal from the service,
there is no occasion for appeal. PD 807 shows demotion in rank, suspension for not more
that it does not contemplate a review of than one year without pay, fine in an amount
decisions exonerating officers or employees not exceeding six months’ salary, or
from administrative charges. “Party adversely reprimand. (Sec. 46(d), Book V, EO 292)
affected by the decision” in Section 39 of the
Civil Service Law refers to the government • If the respondent is found guilty of two or
employee against whom case was filed. more charges or counts, the penalty imposed
should be that corresponding to the most
serious charge or count and the test may be
considered as aggravating circumstances.
5. Summary Proceedings (Sec. 17 of the Implementing Civil Service
• No formal investigation is necessary and the Rules and Regulations)
respondent may be immediately removed or • A reprimand whether given by the Civil
dismissed if any of the following Service Commission or the head of
circumstances is present: department or agency shall be considered a
- When the charge is serious and the penalty. However, a warning or an
evidence if guilt is strong; admonition shall not be considered a penalty.
- When the respondent is a recidivist or (Sec. 15 of the Implementing Civil Service
has been repeatedly charged and there is Rules and Regulations)
reasonable ground to believe that he is - Reprimand is a penalty (Tobias v.
guilty of the present charge; and Veloso).
- When the respondent is notoriously • A warning is an act or fact of putting one on
undesirable. his guard; an admonition is a gentle or
friendly reproof or a mild rebuke; while a
6. Preventive Suspension reprimand is a formal and public censure or a
• The proper disciplining authority may severe reproof.
preventively suspend any subordinate officer
or employee under his authority pending an • Removal of Administrative Penalties or
investigation, if the charge against such Disabilities
officer or employee involves: - In meritorious cases and upon
- dishonesty; or recommendation of the CSC, the
- oppression or grave misconduct; or President may commute or remove
- neglect in the performance of duty; or administrative penalties or disabilities
- if there are reasons to believe that the imposed upon officers or employees in
respondent is guilty of charges which disciplinary cases, subject to such terms
would warrant his removal from the and conditions as he may impose in the
service. interest of the service.
• Maximum period for preventive suspension C. Over Elective Officials

- 90 days for national officials
- 60 days for local appointive and elective 1. Impeachment
officials, except if the case is filed in the • Procedure
Ombudsman, the latter may impose a - A verified complaint may be filed by any
preventive suspension for a period of 6 member of the House of Representatives
months. or by any citizen upon a resolution of
endorsement by any member thereof.
• When the administrative case against the - Complaint shall be included in the Order
officer or employee under preventive of Business within 10 sessions days and
suspension is not finally decided by the referred to the proper Committee within
disciplining authority within the period of 3 session days thereafter.
ninety (90) days after the date of suspension - The Committee, after hearing, and by a
of the respondent who is not a presidential majority vote of all its members, shall
appointee, the respondent shall be submit its report to the House within 60
automatically reinstated in the service. session days from such referral, together
with the corresponding resolutions. The

255
resolution shall be calendared for • Procedure
consideration of the House within 10
session days from receipt thereof. Elective Official against Where to File
- A vote of at least 1/3 of all the members whom Administrative Complaint
of the House shall be necessary either to
Complaint is Filed
affirm a favorable resolution with the
Articles of Impeachment of the Provincial or city official Office of the President
Committee, or override its contrary Municipal official Sangguniang
resolution. Panlalawigan
- In case the verified complaint or
resolution of impeachment is filed by at Barangay official Sangguniang
least 1/3 of all the members of the Panlungsod or
House, the same shall constitute the Sangguniang Bayan
Articles of Impeachment, and trial by the
Senate shall forthwith proceed. (1) Verified Complaint
- The Senate shall have the sole power to
try and decide all cases of impeachment. (2) Answer: Within 7 days after the
When sitting for that purpose, the administrative complaint is filed, the
Senators shall be on oath or affirmation. Office of the President or the
When the President of the Philippines is sanggunian concerned, as the case
on trial, the Chief Justice of the Supreme may be, shall require the respondent to
Court shall preside, but shall not vote. No submit his verified answer within 15
person shall be convicted without the days from receipt thereof
concurrence of 2/3 of all the members of (3) Investigation: Commenced within 10
the Senate. days after receipt of such answer of the
• Judgment in cases of impeachment shall not respondent. It shall be terminated
extend further than removal from office and within 90 days from the start thereof.
disqualification to hold office under the No investigation shall be held within 90
Republic of the Philippines, but the party days immediately prior to any local
convicted shall nevertheless be liable and election, and no preventive suspension
subject to prosecution, trial and punishment shall be imposed within the said period.
according to law. (4) Decision: Within 30 days after the end
• No impeachment proceedings shall be of the investigation, the Office of the
initiated against the same official more than President or the sanggunian concerned
once within a period of one year. shall render a decision in writing
stating clearly and distinctly the facts
2. Local Elective Officials (Sec. 60-68, Local and the reasons for such decision.
Government Code)
• Preventive Suspension
• Grounds for Disciplinary Actions - May be imposed at any time after the
- Disloyalty to the Republic of the issues are joined, when the evidence of
Philippines guilt is strong, and given the gravity of
- Culpable violation of the Constitution the offense, there is great probability that
- Dishonesty, oppression, misconduct in the continuance in office of the
office, gross negligence, or dereliction of respondent could influence the witnesses
duty or pose a threat to the safety and
- Commission of any offense involving integrity of the records and other
moral turpitude or an offense punishable evidence.
by at least prision mayor - Upon expiration of the preventive
- Abuse of authority suspension, the suspended elective
- Unauthorized absence for 15 consecutive official shall be deemed reinstated in
days, except in the case of members of office without prejudice to the
the sangguniang panlalawigan, continuation of the proceedings against
sangguniang panlungsod, sangguniang him, which shall be terminated within
bayan, and sangguniang barangay 120 days from the time he was formally
- Application for, or acquisition of, foreign notified of the case against him.
citizenship or residence or the status of - No preventive suspension shall be
an immigrant of another country imposed within 90 days immediately prior
- Such other grounds as may be provided to any local election. If preventive
in this Code and other laws. suspension has been imposed prior to the
90-day period immediately preceding
local election, it shall be deemed

256
automatically lifted upon the start of the
aforesaid period. Fernandez v Ledesma
• Administrative Appeal: Within 30 days from The Charter of Basilan City provides that
receipt of the decision, appeal to: the President shall appoint and may remove
• sanggunian panlalawigan, in case of decisions at his discretion any of the city’s officers,
of the sangguniang panlungsod of component including its Chief of Police, with the
cities; and sangguniang bayan exception of the municipal judge, who may
• Office of the President, in the case of be removed only according to law. The
decisions of the sangguniang panlalawigan, legislative intent is to make continuance in
the sangguniang panlungsod of highly office dependent upon the pleasure of the
urbanized cities, the sangguniang President. Congress has the power to vest
panglungsod of independent component such power of appointment. Further, “A
cities. public office is the right for a given period,
either fixed by law or enduring at the
IX. TERMINATION OF OFFICIAL RELATIONS pleasure of the creating power.” Alba v.
Evangelista states that the replacement is not
A. Modes of Termination removal, but an expiration of tenure, which is
an ordinary mode of terminating official
1. Expiration of Term or Tenure of Office relations. What is involved is not removal, or
- End of a fixed term whether legal cause should precede such
- End of Pleasure where one holds office at removal, but the creation of an office and the
pleasure of appointing authority tenure of such office, which has been made
- Loss of confidence in primarily expressly dependent upon the pleasure of the
confidential employment President.
2. Reaching the age limit; Retirement
3. Bona fide abolition of office
4. Abandonment of office 3. Loss of Confidence in Primarily
5. Acceptance of an incompatible office Confidential Employment
6. Resignation • Official and employees holding primarily
7. Removal for cause confidential positions continue only for so
8. Temporary appointments’ termination long as confidence in them endures. The
9. Recall termination of their official relation can be
10. Impeachment justified on the ground of loss of confidence
11. Prescription of right to office because in that case, their cessation from
12. Death office involves no removal but merely the
13. Conviction of crime where disqualification is expiration of the term of office (Hernandez v.
an accessory penalty Villegas).
14. Filing of certificate of candidacy
15. Performance of act or accomplishment of C. Reaching the Age Limit; Retirement
purpose for which the office was created
• Conditions for entitlement to retirement
B. Expiration of Term or Tenure of Office benefits (R.A. No. 8291)
- he has rendered at least fifteen (15)
1. End of Fixed Term years of service;
• Upon the expiration of the officer’s term, - he is at least sixty (60) years of age at
unless he is authorized by law to hold over, the time of retirement; and
his rights, duties and authority as a public - he is not receiving a monthly pension
officer must be ipso facto terminated. benefit from permanent total disability.
2. End of pleasure where one holds office at • Compulsory Retirement

the pleasure of the appointing authority - Unless the service is extended by
• President can validly terminate tenure of Vice appropriate authorities, retirement shall
Mayor of Roxas City as the office was created be compulsory for an employee at least
at the pleasure of the President. What is 65 years of age with at least 15 years of
involved here is not the question of removal, service; Provided that if he has less than
or whether legal cause should precede or not 15 years of service, he may be allowed to
that of removal. What is involved here is the continue in the service in accordance with
creation of an office and the tenure of such existing civil service rules and
office, which has been made expressly regulations.
dependent upon the pleasure of the President
(Alba v. Evangelista).

257
Beronilla v GSIS The National Employment Service was
established by R.A. No. 761 in lieu of the
The compulsory retirement of Placement Bureau. Quitoriano was appointed
government officials and employees upon as NES Commissioner in spite of the
reaching the age of 65 years is founded on recommendation of the Labor secretary to
public policy which aims by it to maintain appoint Manalang who was the incumbent
efficiency in the government service and, at Director of the Placement Bureau. SC held
the same time, give to the retiring public that appoint of Quitoriano was valid. A
servants the opportunity to enjoy during the removal implies that the office still exists.
remainder of their lives the recompenses for R.A. No. 761, creating NES, expressly
their long service and devotion to the abolished the Placement Bureau and, by
government, in the form of a comparatively implication, the office of the Director of the
easier life, freed from the rigors, discipline Placement Bureau. Had Congress intended
and the exacting demands that the nature of the NES to be a mere enlargement of the
their work and their relations with their Placement Bureau, it would have directed the
superiors as well as the public would impose retention, not the transfer, of qualified
on them. personnel to the NES. Manalang has never
been NES Commissioner and thus could not
have been removed therefrom.
D. Bona Fide Abolition of Office
• As a general rule, absent some Constitutional • Abolition Must Be in Good Faith
prohibition, Congress may abolish any office - The abolition of an office does not
it creates without infringing upon the rights of amount to an illegal removal or
the officer or employee affected. separation of its incumbent is the
• To consider an office abolished, there must principle that, in order to be valid, the
have been an intention to do away with it abolition must be made in good faith, not
wholly and permanently. for personal or political reasons, and not
• Termination by virtue of the abolition of the implemented in violation of law.
office is to be distinguished from removal.
There can be no tenure to a non-existent Briones v. Osmeña
office. After the abolition, there is in law no
occupant. In case of removal, there is an Briones and Rosagaran were employees
office with an occupant who would thereby in the Office of the City Mayor since 1937 and
lose his position. It is in that sense that from 1940, respectively, In 1956, the City created
the standpoint of strict law, the question of 35 new positions and abolished 32, of which
any impairment of security of tenure when the positions of Briones and Rosagaran were
there is an abolition of office does not arise. included. Consequently, the two were
The right itself disappeared with the terminated. SC held that the termination was
abolished office as an accessory following the not valid. While abolition does not imply
principal. removal of the incumbent, this rule is true
only where the abolition is made in good
Busacay v. Buenaventura faith. In other words, the right to abolish
cannot be used to discharge employees in
Busacay was laid off as toll collector violation of the Civil Service law nor can it be
when the bridge was destroyed. However, the exercised for personal or political reasons.
bridge was later reconstructed and opened to
the public with a new collector being Facundo v. Pabalan
appointed. Busacay was ordered reinstated
by the SC. To consider an office abolished, There is no law which expressly
there must have been an intention to do authorizes a municipal council to abolish
away with it wholly and permanently. In the the positions it has created. However, the
case at bar, there was never any thought of rule is well-settled that the power to
not rebuilding the bridge. The collapse of the create an office includes the power to
bridge did not work to destroy but only to abolish it, unless there are constitutional
suspend the position of toll collector thereon, or statutory rules providing otherwise.
and upon its reconstruction and re-opening, But the office must be abolished in good
the collector’s right to the position was faith.
similarly and automatically restored.
Manalang v. Quitoriano

258
Cruz v. Primicias • Abandonment by reason of acceptance of
another office, in order to be effective and
As well settled as the rule that binding, must spring from and be
the abolition of an office does not amount accompanied by deliberation and freedom of
to an illegal removal of its incumbent is choice, either to keep the old office or
the principle that, in order to be valid, renounce it for another.
the abolition must be made in good faith. • Temporary absence is not sufficient.
Where the abolition is made in bad faith,
for political or personal reasons, or in
order to circumvent the constitutional Summers v. Ozaeta
security of tenure of civil service
employees, it is null and void. In the case Summers, a cadastral judge, assumed
at bar, while 22 positions were abolished, office as CFI judge due to an ad interim
28 new positions with higher salaries appointment. However, the ad interim
were simultaneously created. No charge appointment was disapproved and Summers
of inefficiency is lodged against now seeks to be reappointed as cadastral
petitioners. In truth and in fact, what judge. SC held that Summers’ voluntary
respondents sought to achieve was to acceptance of the position of CFI judge
supplant civil service eligibles with men amounted to a waiver of his right to hold the
of their choice, whose tenure would be position of cadastral judge during the term
totally dependent upon their pleasure and fixed and guaranteed by the Constitution. He
discretion. accepted and qualified for the position of
judge-at-large by taking the oath of office of
judge-at-large, and not merely of an “acting”
E. Reorganization judge-at-large. The situation is one wherein
• This occurs where there is an alteration of the he cannot legally hold two offices of similar
existing structure of government offices or category at the same time.
units therein, including the lines of control,
authority and responsibility between them to
promote greater efficiency, to remove G. Acceptance of an Incompatible Office
redundancy of functions, or to affect economy • He who, while occupying one office, accepts
and make it more responsive to the needs of another office incompatible with the first, ipso
their public clientele. It may result in the loss facto absolutely vacates the first office. That
of one’s position through removal or abolition the second office is inferior to the first does
of office. not affect the rule. And even though the title
• Reorganization of the government may be to the second office fails as where election is
required by law independently of specific void, the rule is still the same, nor can the
constitutional authorization. officer then regain the possession of his
• But in order to be valid, it must also be done former office to which another has been
in good faith. appointed or elected.
- A reorganization is carried out in good • If the law or Constitution as an expression of
faith if it is for the purpose of economy or public policy forbids the acceptance by a
to make the bureaucracy more efficient. public officer of any other office other than
Good faith, as a component of that which he holds, it is not a case of
reorganization under a constitutional incompatibility but of legal prohibition.
regime, is judged from the facts of each
case. In the case at bar, there was lack • Incompatibility of offices exists where:
of good faith (Dario v. Mison). - There is conflict in such duties and
functions so that the performance of the
F. Abandonment of Office duties of one interferes with the
• A public office may become vacant ipso facto performance of the duties of another, as
by abandonment and non-user. When an to render it improper for considerations
office is once abandoned, the former of public policy for one person to retain
incumbent cannot legally repossess it even by both.
forcible re-occupancy. - One is subordinate to the other and is
• Abandonment must be total and absolute, subject in some degree to its supervisory
and must be under such circumstances as powers for in such situation where both
clearly to indicate an absolute relinquishment are held by the same person, the design
thereof. that one acts as a check on the other
• The officer should manifest a clear intention would be frustrated.
to abandon the office and its duties. - The Constitution or the law itself, for
reasons of public policy, declares the

259
incompatibility even though there is no I. Removal for Cause
inconsistency in the nature and functions
of the offices. 1. Protection from Removal without Cause
• No officer or employee of the civil service
• Exceptions to the Rule on Holding of shall be removed or suspended except for
Incompatible Offices cause provided by law (Sec. 2(3), Art. IX,
- Where the officer cannot vacate the first 1987 Constitution).
office by his own act, upon the principle
that he will not be permitted to thus do 2. Grounds for Removal from Office
indirectly what he could not do directly, • For Presidential appointees, Prof. Barlongay
as where the law requires the approval of
states that there is no specific law providing
the provincial board before a municipal
official can resign. for the grounds for their removal.
- First office is held under a different Determination of grounds is just a matter of
government from that which conferred practice and by analogy, the grounds used for
the second.
non-presidential appointees are made
- Officer is expressly authorized by law to
accept another office. applicable.
- Second office is temporary. • For civil service officials and employees, see
Sec. 46, Book V, E.O. No. 292 which provides
H. Resignation
for at least 30 grounds for disciplinary action.
• A resignation of a public officer need not be in
any particular form, unless some form is • For local elective officials, Sec. 60 of the Local
prescribed by statute. Ordinarily, it may Government Code provides for the grounds
either be in writing or by parol. where an elective local official may be
• There must be an intention to relinquish a
disciplined, suspended or removed from
part of the term, accompanied by the act of
relinquishment. office.
• The right of a public officer to resign is well - Misconduct need not be “in office” in case
recognized, even where it is provided than an of appointive officers.
officer may hold over until election and - Misconduct must be “in office” in case of
qualification of a successor. elective officers.
• Conflicting Views: - Misconduct committed during a prior
- According to some authorities, no term, not a ground for dismissal
acceptance is necessary to render a
resignation effective, especially when the Ochate v. Ty Deling
resignation is unconditional and purports
to take effect immediately. The SC held that the facts alleged in the
- Many other cases take the view that to administrative charge, as substantiated by
be effective, the resignation must be the affidavits of the complainants, do not
accepted by competent authority. justify the administrative proceedings
Without acceptance, the resignation is instituted against the petitioner and his
nothing and the officer remains in office. suspension by the governor. The alleged libel
(63 Am Jur 2d., sec. 163) imputed to the mayor was not such
• Prof. Barlongay: Two elements are misconduct even if the term “misconduct in
necessary to constitute an effective office” be taken in its broadest sense. The
acceptance: radio broadcast in which the objectionable
(1) intention to relinquish office coupled with utterances were made had nothing to do with
actual relinquishment; and his official functions and duties as a mayor.
(2) acceptance of resignation.
• A “courtesy resignation” cannot properly be
interpreted as resignation in a legal sense. It 3. Transfer from One Position to Another
just manifests the submission of a person to May or May Not Constitute Violation of
the will of the political authority. Security of Tenure
- Prof. Barlongay: Courtesy resignation is • A transfer is a movement from one position
not allowed in (1) career positions and to another which is of equivalent rank, level,
(2) non-career positions with security of or salary without break in service involving
tenure (i.e. local elective officials). the issuance of an appointment.
• It shall not be considered disciplinary when
made in the interest of public service, in
which case, the employee concerned shall be
informed of the reasons therefore. If the

260
employee believes that there is no L. Prescription of Right to Office
justification for the transfer, he may appeal • Any person claiming a right to a position in
to the SC. the civil service is required to file his petition
• The transfer may be from one department or for reinstatement within one year, otherwise
agency to another or from one organizational he is deemed to have abandoned his office.
unit to another in the same department or Reason is public policy and convenience,
agency; Provided, however that any stability in the public service (Unabia v. City
movement from the non-career service to the Mayor).
career service shall not be considered a • Prof. Barlongay: The one-year period is the
transfer. prescriptive period to claim public office
• The intended transfer to Tarlac, if carried out (whether through quo warranto or
without the approval of Lacson, would be otherwise). The one-year period presupposes
equivalent to a removal from his office in judicial action, not administrative action.
Negros Oriental. The reason is that a fiscal is
appointed for each province and Lacson could M. Filing of Certificate of Candidacy
not legally hold and occupy the two posts of • Sec. 66 of the Omnibus Election Code: Any
fiscal of Tarlac and Negros Oriental person holding appointive public offices or
simultaneously. Therefore, to be a fiscal of positions, including active AFP members, is
Tarlac must mean his removal from office in considered ipso facto resigned from office by
Negros. Since the transfer is considered a the mere filing of certificate of candidacy.
removal, such should be for cause in order for • The following provisions have been REPEALED
the other person to legally occupy the office by Sec. 14 of R.A. 9006 (Fair Election Act of
in Negros. There was no cause for Lacson’s 2001):
removal. He therefore remains as fiscal of - Sec. 67 of B.P. 881 which states that any
Negros (Lacson v. Romero). elective official, whether national or local,
running for any office OTHER than one
J. Termination of Temporary Appointment which he is holding in a permanent
capacity, except for President and Vice
• The appointment being temporary in President, shall be considered ipso facto
character, the same can be terminated at resigned from office by the mere filing of
pleasure by the appointing power (Quitiquit v. a certificate of candidacy.
Villacorta). - The first proviso of Sec. 11 of R.A. 8436
• One holding an office in a temporary capacity which states that "Any elective official,
may be ousted at anytime with or without running for any officer other than one
cause (Ferrer v. de Leon). which he is holding in a permanent
• The controlling factor in determining the capacity, except for President and Vice-
character of the appointment is the President, shall be considered ipso facto
appointment itself. Even if a position is resigned upon the start of the campaign
permanent, if the appointment is made period."
temporary, the appointment is determinative.
What is determinative is not the nature of the N. Performance of Act or Accomplishment of
office (permanent or temporary), but the Purpose for which the Office was Created
nature of the appointment (Hojilla v. Marino). • Performance of act or accomplishment of
• One appointed to a position of another who purpose renders office functus officio.
was illegally suspended or dismissed, holds it
in temporary capacity and must yield to the
latter. The reason for this is that there was no
valid termination.
K. Recall
• The Congress shall enact a local government
code which shall provide for a more
responsive and accountable local government
structure instituted through a system of
decentralization with effective mechanisms of
recall, initiative and referendum (Sec. 3, Art.
X, 1987 Constitution)
• The procedure for recall is provided in
Sections 69-75 of the Local Government
Code.


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234

- The element of continuance cannot be

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

Ocampo v. Secretary of Justice • In the case of People v. Paloma, a sorter

RULE: When a public official voluntarily

• Company cashier of a private

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

• Legality of Title to office De Jure De Facto

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

• The People's Court Act, which provided Flores v. Drilon

• A proviso which limits the choices of the C. Time of Possession of Qualifications

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

2. Misconduct or crime: persons convicted 2. To apply the exceptions found in

6. Consecutive terms: 8. Relationship with the appointing power

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

B. Election • The following can be appointed by the

o Recess appointment power keeps in

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

The privilege of operating a market stall A tax circular issued on a wrong

Mandamus never lies to enforce the

Miguel v. Zulueta • Norm of Performance of Duties: standards of

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

• Pensions / gratuities are not considered as Phil. Racing Club v. Bonifacio

8. Recovery of Salary During Period of The Court found the Commissioners

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

• Maximum period for preventive suspension C. Over Elective Officials

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

2. End of pleasure where one holds office at • Compulsory Retirement

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

[Lorybeth_Baldrias.head] [Nayna_Malayang.deputy] [Rhudz_Raymundo.secretariat] [Dionne_Sanchez.acads]

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