LAW ON

PUBLIC OFFICERS
Consolidated from Reviewer and Outline from
BarOps 2003 and 2004
I. PUBLIC OFFICE AND OFFICERS
A. Public Office
1. Definition
the right, authority and duty created and
conferred by law, by which for a given
period, either fixed by law or enduring at
the pleasure of the appointing power, an
individual is invested with some portion
of the sovereign functions of the
government, to be exercised by him for
the benefit of the public. (Fernandez v
Sto. Tomas, March 7, 2005)
2. Purpose
to effect the end for which government
has been instituted which is the common
good; not profit, honor, or private
interest of any person, family or class of
persons (63 Am Jur 2d 667)
3. Nature
A public office is a public trust. (Art. XI,
Sec. 1, 1987 Consti)
It is a responsibility and not a right.
(Morfe v. Mutuc)
4. Elements
Must be created either by (a) the
Constitution, (b) the Legislature, or (c) a
municipality or other body through
authority conferred by the Legislature;
Must possess a delegation of a portion of
the sovereign power of government, to be
exercised for the benefit of the public;
The powers conferred and the duties
discharged must be defined, directly or
impliedly by the Legislature or through
legislative authority;
The duties must be performed
independently and without control of a
superior power other than the law;
- Exception: If the duties are those of
an inferior or subordinate office,
created or authorized by the
Legislature and by it placed under the
general control of a superior office or
body;
Must have some permanency and
continuity
- Note: This is not to be applied literally.
The Board of Canvassers is a public
office, yet its duties are only for a
limited period of time.
- The element of continuance cannot be
considered as indispensable. Mechem
describes the delegation to the
individual of some of the sovereign
functions of government as "the most
important characteristic in
determining whether a position is a
public office or not [Laurel v. Desierto
(April 12, 2002)].
In this case, Laurel, who was the chair
of the National Centennial Commission (NCC),
was declared by the Court to be a public
officer. The Court ruled that the NCC performs
executive functions as it enforces and carries
into operation the conservation and promotion
of the nations historical and cultural heritage,
a policy embodied in the Constitution. That
Laurel did not receive any compensation during
his tenure is of little consequence. This is
because a salary is a usual but not a necessary
criterion for determining the nature of the
position. At the same time, the element of
continuance cannot be considered as
indispensable.
5. Public Office v. Public Employment
Public employment is broader than public
office. All public office is public
employment, but not all public employment
is a public office.
A public office when it is created by law,
with duties cast upon the incumbent which
involve the exercise of some portion of the
sovereign power, and in the performance of
which the public is concerned. Public
employment is a position which lacks one
or more of the foregoing elements.
Public Office Public Contract
Creation Incident of
sovereignty
Originates from will
of contracting
parties
Object Carrying out of
sovereign as well as
governmental
functions affecting
even persons not
bound by the contract
Obligations imposed
only upon the
persons who entered
into the contract
Subject
Matter
Tenure, duration,
continuity
Limited duration
Scope Duties that are
generally continuing
and permanent
Duties are very
specific to the
contract
Where
duties are
defined
The law Contract
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6. Public Office v. Public Contract
7. There is no vested right to public office.
GENERAL RULE: A public office, being a
mere privilege given by the state, does not
vest any rights in the holder of the office.
This rule applies when the law is clear.
EXCEPTION: When the law is vague, the
persons holding of the office is protected
and he should not be deprived of his office.
A public office cannot be regarded as the
property of the incumbent and that a
public office is not a public contract.
Although there is a vested right to an
office, which may not be disturbed by
legislation, yet the incumbent has, in a
sense, a right to his office. If that right is
to be taken away by statute, the terms
should be clear (Segovia v. Noel).
8. Public Office is not property.
A public office is not the property of the
public officer within the meaning of the due
process clause of the non-impairment of
the obligation of contract clause of the
Constitution.
Exceptions:
- In quo warranto proceedings relating
to the question as to which of 2
persons is entitled to a public office
- In an action for recovery of
compensation accruing by virtue of the
public office
Due process is violated only if an office is
considered property. However, a public
office is not property within the
constitutional guaranties of due process. It
is a public trust or agency. As public
officers are mere agents and not rulers of
the people, no man has a proprietary or
contractual right to an office (Cornejo v.
Gabriel).
Abeja v. Tanada
Public office being personal, the
death of a public officer terminates his
right to occupy the contested office and
extinguishes his counterclaim for damages.
His widow and/or heirs cannot be
substituted in the counterclaim suit.
9. Creation of Public Office
Modes of Creation of Public Office
- by the Constitution
- by statute / law
- by a tribunal or body to which the
power to create the office has been
delegated
Scope and Extent of Power of
Legislature
- GENERAL RULE: The creation of a
public office is primarily a legislative
function.
- Exceptions:
! where the offices are created
by the Constitution;
! where the Legislature
delegates such power.
Delegation of Power to Create Public
Office
- Where an office is created pursuant to
illegally delegated powers, the office
would have no existence.
U.S.T. v. Board of Tax Appeals
The authority given to the
President to "reorganize within one year
the different executive departments,
bureaus and other instrumentalities of the
Government" in order to promote efficiency
in the public service is limited in scope and
cannot be extended to other matters not
embraced therein. Therefore, an executive
order depriving the Courts of First Instance
of jurisdiction over cases involving
recovery of taxes illegally collected is null
and void, as Congress alone has the
"power to define, prescribe and apportion
the jurisdiction of the various courts."
10. Methods of Organizing Offices
Single-head: one head assisted by
subordinates. Swifter decision and action
but may sometimes be hastily made.
Board System: collegial body in
formulating polices and implementing
programs. Mature studies and
deliberations but may be slow in
responding to issues and problems.
11. Modification and Abolition of Public
Office
GENERAL RULE: The power to create an
office includes the power to modify or
abolish it. (i.e., this is generally a
legislative function)
EXCEPTIONS:
! Where the Constitution prohibits
such modification / abolition;
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! Where the Constitution gives the
people the power to modify or
abolish the office
RULE on Abandonment: When a public
official voluntarily accepts an appointment
to an office newly created by law -- which
new office is incompatible with the former
-- he will be considered to have abandoned
his former office.
Exception: When the non-acceptance
of the new appointment would affect
public interest, and the public official is
thereby constrained to accept.
Ocampo v. Secretary of Justice
The legislative power to create a
court carries with it the power to abolish it.
When the court is abolished, any unexpired
term is abolished also.
Zandueta v. De la Costa
RULE: When a public official voluntarily
accepts an appointment to an office newly
created by law -- which new office is
incompatible with the former -- he will be
considered to have abandoned his former
office.
Exception: When the non-acceptance of
the new appointment would affect public
interest, and the public official is thereby
constrained to accept.
12. Estoppel to Deny Existence of Office
When a person has acted as a public
officer, esp. where he has received
public monies by virtue of his office, he
is estopped from denying that he has
occupied a public office.
B. Public Officer
1. Definition
A public officer is one who performs
public functions / duties of government
by virtue of direct provision of law,
popular election, or appointment by
competent authority. His duties involve
the exercise of discretion in the
performance of the functions of the
government, and are not of a merely
clerical or manual nature.
The most important characteristic which
distinguishes an office from an
employment is that the creation and
conferring of an office involves a
delegation to the individual of some of
the sovereign functions of government,
to be exercised by him for the benefit of
the public, and that the same portion of
the sovereignty of the country, either
legislative, judicial, or executive,
attaches, for the time being, to be
exercised for the public benefit (Laurel v
Desierto, April 12, 2002)
When used with reference to a person
having authority to do a particular act or
perform a particular function in the
exercise of government power, "officer
includes any government employee,
agent, or body having authority to do the
act or exercise that function (Sec. 2(14)
Administrative Code)
For the purpose of applying the
provisions of the Revised Penal Code,
employees, agents, or subordinate
officials, of any rank or class, who
perform public duties in the government
or in any of its branches shall be deemed
as public officers.
Illustrations:
In the case of Maniego v. People, a
laborer who was in charge of issuing
summons and subpoenas for traffic
violations in a judge's sala was
convicted for bribery under RPC 203.
The court held that even temporary
performance of public functions is
sufficient to constitute a person as a
public official.
In the case of People v. Paloma, a
sorter and filer of money orders in the
Auditor's Office of the Bureau of Posts
was convicted for infidelity in the
custody of documents. The court
pointed out that the sorting and filing
of money orders in the Bureau of Posts
is obviously a public function or duty.
Who are not considered public officers?
Special policemen salaried
by a private entity and
patrolling only the
premises of such private
entity (Manila Terminal Co.
v. CIR);
236
Concession forest guards
(Martha Lumber Mill v.
Lagradante);
Company cashier of a
private corporation owned
by the government
(Tanchoco v. GSIS)
2. A person cannot be compelled to accept
a public office.
EXCEPTIONS:
When citizens are required, under
conditions provided by law, to render
personal military or civil service (Sec.
4, Art. II, 1987 Const.);
When a person who, having been
elected by popular election to a public
office, refuses without legal motive to
be sworn in or to discharge the duties
of said office.
3. No presumption of power
A public official exercises power, not
rights. The government itself is merely
an agency through which the will of the
state is expressed and enforced. Its
officers therefore are likewise agents
entrusted with the responsibility of
discharging its functions. As such, there
is no presumption that they are
empowered to act. There must be a
delegation of such authority, either
express or implied. In the absence of a
valid grant, they are devoid of power
(Villegas v. Subido).
C. Classification of Public Offices and
Public Officers
Creation
- Constitutional
- Statutory
Public Body Served
- National
- Local
Department of government to which their
functions pertain
Legislative
Executive
Judicial
Nature of functions
Civil
Military
Exercise of Judgment or discretion
Quasi-judicial
Ministerial
Legality of Title to office
De Jure
De Facto
Compensation
Lucrative
Honorary
D. De Facto Officers
1. De Facto Doctrine
It is the principle which holds that a person,
who, by the proper authority, is admitted and
sworn into office is deemed to be rightfully in
such office until: (a) by judicial declaration in a
proper proceeding he is ousted therefrom; or
(b) his admission thereto is declared void.
Its purpose is to ensure the orderly functioning
of government. The public cannot afford to
check the validity of the officer's title each time
they transact with him.
2. De Facto Officer Defined
A person is de facto officer where the
duties of his office are exercised under
any of the following circumstances:
- Without a known appointment or
election, but under such circumstances
of reputation or acquiescence as were
calculated to induce people, without
inquiry, to submit to or invoke his
action, supposing him to the be the
officer he assumed to be; or
- Under color of a known and valid
appointment or election, but where the
officer has failed to conform to some
precedent requirement or condition
(e.g., taking an oath or giving a bond);
- Under color of a known election or
appointment, void because:
! the officer was not eligible;
! there was a want of power in
the electing or appointing
body;
! there was a defect or
irregularity in its exercise;
! such ineligibility, want of
power, or defect being
unknown to the public.
Note: Such ineligibility, want of
authority or irregularity being
unknown to the public
- Under color of an election or an
appointment by or pursuant to a
237
public, unconstitutional law, before the
same is adjudged to be such.
! Note: What is unconstitutional
is not the act creating the
office, but the act by which the
officer is appointed to an office
legally existing. (Norton v.
County of Shelby)
Officer De Jure v. Officer De Facto
De Jure De Facto
Requisites Existence of a
de jure office;
must possess
the legal
qualifications
for the office
in question;
must be
lawfully
chosen to
such office;
must have
qualified
himself to
perform the
duties of such
office
according to
the mode
prescribed by
law.
De jure office;
Color of right
or general
acquiescence
by the public;
Actual
physical
possession of
the office in
good faith
Basis of
Authority
Right: he has
the lawful
right / title to
the office
Reputation:
Has the
possession
and performs
the duties
under color of
right, without
being
technically
qualified in all
points of law
to act
How ousted Cannot be
ousted.
Only by a
direct
proceeding
(quo
warranto);
not
collaterally
Validity of
official acts
Valid, subject
to exceptions
(e.g., they
were done
beyond the
scope of his
authority,
etc.)
Valid as to the
public until
such time as
his title to the
office is
adjudged
insufficient.
Rule on
Compensation
Entitled to
compensation
as a matter of
right;
The principle
of "no work,
no pay" is not
applicable to
him.
Entitled to
receive
compensation
only during
the time when
no de jure
officer is
declared;
He is paid
only for actual
services
rendered by
him.
Officer De Facto v. Intruder
De Facto Intruder
Nature Officer under
any of the 4
circumstances
discussed
under Part II
(above).
One who
takes
possession of
an office and
undertakes to
act officially
without any
authority,
either actual
or apparent
Basis of
authority
Color of right
or title to
office
None. He has
neither lawful
title nor color
of right or title
to office.
Validity of
"official" acts
Valid as to the
public until
such time as
his title to the
office is
adjudged
insufficient
Absolutely
void; they
can be
impeached at
any time in
any
proceeding
(unless and
until he
continues to
act for so long
238
a time as to
afford a
presumption
of his right to
act)
Rule on
compensation
Entitled to
receive
compensation
only during
the time when
no de jure
officer is
declared;
He is paid
only for actual
services
rendered by
him.
Not entitled to
compensation
at all.
An intruder / usurper ripen into a de
facto officer. With the passage of time,
a presumption may be created in the
minds of the public that the intruder
has a right to act as a public officer.
Good faith on the part of the public is a
factor in the ripening of intruder status
into de facto status.
3. Elements of a De Facto Officership
(1) De jure office
(2) Color of right or general
acquiescence by the public;
(3) Actual physical possession of the
office in good faith
Examples of those not considered as De Facto
Officers
A judge who has accepted an
appointment as finance secretary and
yet renders a decision after having
accepted such appointment (Luna v.
Rodriguez);
A judge whose position has already
been abolished by law, and yet
promulgates a decision in a criminal
case after the abolition and over the
objection of the fiscal (People v. So)
4. Office created under an
unconstitutional statute
The prevalent view is that a person
appointed or elected in accordance with a
law later declared to be unconstitutional
may be considered de facto at least
before the declaration of
unconstitutionality.
5. Legal Effect of Acts of De Facto Officers
As regards the officers themselves: A
party suing or defending in his own right
as a public officer must show that he is
an officer de jure. It is not sufficient that
he be merely a de facto officer.
As regards the public and third persons:
The acts of a de facto officer are valid as
to third persons and the public until his
title to office is adjudged insufficient.
RATIONALE: For the protection of the
public
Official Acts of De Facto Officers not
subject to collateral attack
RULE: The title of a de facto officer
and the validity of his acts cannot be
collaterally questioned in proceedings
to which he is not a party, or which
were not instituted to determine the
very question.
REMEDY: Quo warranto proceedings
! Who may file:
! The person who claims to be
entitled to the office;
! The Republic of the
Philippines, represented by
! the Solicitor-General; or
! a public prosecutor
6. Liabilities of De Facto Officers
The liability of a de facto officer is
generally held to be the same degree of
accountability for official acts as that of a
de jure officer.
The de facto officer may be liable for all
penalties imposed by law for any of the
following acts:
usurping or unlawfully holding office;
exercising the functions of public office
without lawful right;
not being qualified for the public office
as required by law.
The de facto officer cannot excuse his
responsibility for crimes committed in his
official capacity by asserting his de facto
status.
7. Right to Compensation of De Facto
Officer
GENERAL RULE: A de facto officer cannot
maintain an action to recover the salary,
fees or other emoluments attached to
239
the office, even though he has performed
the duties thereof on the theory that the
acts of a de facto officer as far as he
himself is concerned are void.
The rightful incumbent of a public office
may recover from an officer de facto the
salary received by the latter during the
time of his wrongful tenure, even though
he entered into the office in good faith
and under color of title (Monroy v CA)
EXCEPTION
Where there is no de jure public officer,
the officer de facto who in good faith
has had possession of the office and
has discharged the duties pertaining
thereto, is legally entitled to the
emoluments of the office.
One who becomes a public officer de
facto without bad faith on his part,
and who renders the services
required of the office, may recover
the compensation
Gen. Manager, Philippine Ports Authority
v. Monserate (April 17, 2002)
A de facto officer, not having good
title, takes the salaries at his risk and must
account to the de jure officer for whatever
salary he received during the period of his
wrongful tenure. In fine, the rule is that
where there is a de jure officer, a de facto
officer, during his wrongful incumbency, is
not entitled to the emoluments attached to
the office, even if he occupied the office in
good faith.
However, this rule was not squarely
applied in this case since the de jure officer
assumed another position under protest,
for which she received compensation.
Thus, while her assumption to the said
position and her acceptance of the
corresponding emoluments cannot be
considered as an abandonment of her
claim to her rightful office, she cannot
recover full back wages for the period
when she was unlawfully deprived thereof.
She is only entitled to back pay
differentials between the salary rates for
the lower position she assumed and the
position she is rightfully entitled to.
III. ELIGIBILITY AND QUALIFICATIONS
A. Definition
Eligibility: endowment / requirement /
accomplishment that fits one for a public
office.
Qualification: endowment / act which a
person must do before he can occupy a
public office.
Note: Failure to perform an act required
by law could affect the officers title to
the given office. Under BP 881, the office
of any elected official who fails or refuses
to take his oath of office within six
months from his proclamation shall, shall
be considered vacant unless said failure
is for cause or causes beyond his control.
B. Power to Prescribe Qualifications
GENERAL RULE: Congress is empowered
to prescribe the qualifications for holding
public office.
Restrictions on the Power of Congress to
Prescribe Qualifications:
Congress cannot exceed its
constitutional powers;
Congress cannot impose conditions of
eligibility inconsistent with
constitutional provisions;
The qualification must be germane to
the position ("reasonable relation"
rule);
Congress cannot prescribe
qualifications so detailed as to
practically amount to making an
appointment. (Legislative
appointments are unconstitutional and
therefore void for being a usurpation of
executive power.);
Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive,
and Congress cannot add to them
except if the Constitution expressly or
impliedly gives the power to set
qualifications.
In the absence of constitutional
inhibition, Congress has the same right
to provide disqualifications that it has to
provide qualifications for office.
Examples of legislative enactments
which are tantamount to legislative
appointments:
Extensions of the terms of office of the
incumbents;
240
The People's Court Act, which provided
that the President could designate
Judges of First Instance, Judges-at-
large of First Instance or Cadastral
Judges to sit as substitute Justices of
the Supreme Court in treason cases
without them necessarily having to
possess the required constitutional
qualifications of a regular Supreme
Court Justice. (Vargas v. Rilloraza);
A proviso which limits the choices of
the appointing authority to only one
eligible, e.g. the incumbent Mayor of
Olongapo City (Flores v. Drilon);
A legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent
officer to a new office created
(contemplated in Manalang v.
Quitoriano);
A provision that impliedly prescribes
inclusion in a list submitted by the
Executive Council of the Phil. Medical
Association as one of the qualifications
for appointment; and which confines
the selection of the members of the
Board of Medical Examiners to the 12
persons included in the list (Cuyegkeng
v. Cruz) ;
Manalang v. Quitoriano
Congress cannot either appoint a
public officer or impose upon the President
the duty to appoint any particular person
to an office. The appointing power is the
exclusive prerogative ofthe President, upon
which no limitations may be imposed by
Congress, except those resulting from:
(1) the need of securing the
concurrence of the Commission
on Appointments; and
(2) the exercise of the limited
legislative power to prescribe
the qualifications to a given
appointive office.
Cuyegkeng v. Cruz
The power of appointment vested
in the President by the Constitution
connotes necessarily a reasonable measure
of freedom, latitude, or discretion in the
exercise of the power to choose
appointees.
Flores v. Drilon
Where only one can qualify for the
posts in question, the President is
precluded from exercising his discretion to
choose whom to appoint. Such supposed
power of appointment, sans the essential
element of choice, is no power at all and
goes against the very nature itself of
appointment.
C. Time of Possession of Qualifications
At the time specified where the time is
specified by the Constitution or law.
Where the Constitution or law is silent,
there are 2 views:
1. qualification must be at the time of
commencement of term or
induction into office;
2. qualification / eligibility must exist
at the time of the election or
appointment
Eligibility is a continuing nature, and
must exist throughout the holding of the
public office. Once the qualifications are
lost, then the public officer forfeits the
office.
Castaneda v. Yap
Knowledge of ineligibility of a
candidate and failure to question such
ineligibility before or during the election is
not a bar to questioning such eligibility
after such ineligible candidate has won and
been proclaimed. Estoppel will not apply in
such a case.
Frivaldo v. COMELEC
The citizenship requirement must
be met only on election day. While the
Local 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 citizenship requirement
is to ensure leaders owing allegiance to no
other country. Such purpose is not
thwarted, but instead achieved by
construing the requirement to apply at
time of proclamation and at the start of the
term.
D. Construction of Restrictions on
Eligibility
241
There is a presumption IN FAVOR OF
ELIGIBLITY of one who has been elected
or appointed to public office.
The right to public office should be
strictly construed against ineligibility.
E. Qualifications usually Prescribed
1. For President (Sec. 2, Art. VI,
Constitution) and Vice President (Sec. 3,
Art. VII, Constitution)
Natural-born citizen
40 years old on day of election
resident of the Philippines for at least 10
yrs immediately preceding election day
2. For Senator (Sec. 3, Art. VI,
Constitution)
Natural-born citizen
35 years old on day of election
able to read and write
registered voter
resident of the Philippines for not less
than two years immediately preceding
election day
3. For Congressmen (Sec. 6, Art. VI,
Constitution)
Natural-born citizen
25 years old on day of election
able to read and write
registered voter in district in which he
shall be elected
resident thereof for not less than one
year immediately preceding election day
4. Supreme Court Justice
Natural born citizen
at least 40 years old
15 years or more a judge or engaged in
law practice
of proven CIPI (competence, integrity,
probity and independence)
5. Civil Service Commissioners (Sec. 1 [1],
Art. IXB. Constitution)
Natural-born citizen
35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position
in elections immediately preceding
appointment
6. COMELEC Commissioners (Sec. 1[1],
Art. IXC)
Natural-born citizen
35 years old at time of appointment
college degree holder
not a candidate for elective position in
election immediately preceding
appointment
chairman and majority should be
members of the bar who have been
engaged in the practice of law for at least
10 years
7. COA Commissioners
Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing experience
or
Bar member engaged in practice of law
for at least 10 years
Not have been candidates for elective
position in elections immediately
preceding appointment
Cayetano v. Monsod
Practice of law means any activity,
in or out of court, which requires the
application of law, legal procedure,
knowledge, training and experience.
Generally, to practice law is to give notice
or render any kind of service which
requires the use in any degree of legal
knowledge or skill.
242
Aquino v. COMELEC
Residency of not less than 1 year
prior to the elections for the position of
Congressman. In election law, residence
refers to domicile, i.e. the place where a
party actually or constructively has his
permanent home, where he intends to
return. To successfully effect a change of
domicile, the candidate must prove an
actual removal or an actual change of
domicile. Here, it was held that leasing a
condominium unit in the district was not to
acquire a new residence or domicile but
only to qualify as a candidate.
Marcos v. COMELEC
Domicile, which includes the twin
elements of actual habitual residence, and
animus manendi, the intention of
remaining there permanently. It was held
that domicile of origin is not easily lost,
and that in the absence of clear and
positive proof of a successful change of
domicile, the domicile of origin should be
deemed to continue.
F. Religious Test or Qualification
No religious test shall be required for the
exercise of civil or political rights. (Art.
III, Sec. 5, 1987 Constitution)
G. Disqualifications to Hold Public Office
IN GENERAL: Individuals who lack any
of the qualifications prescribed by the
Constitution or by law for a public office
are ineligible or disqualified from holding
such office.
General Disqualifications under the
Constitution
a) No candidate who lost in an
election, shall, within one year
after such election, be appointed to
any office in Government (Art. IX-B
Sec. 6)
b) No elective official shall be eligible
for appointment or designation in
any capacity to any public office or
position during his tenure (Art. IX-
B Sec. 7(1))
c) Unless otherwise allowed by law or
by the primary functions of his
position, no appointive official shall
hold any other position in
Government (Art. IX-B Sec 7 (2))
Note: In National Amnesty Commission
v COA, when another office is held
by a public officer in an ex officio
capacity, as provided by law and as
required by the primary functions
of his office, there is no violation.
Specific Disqualifications under the
Constitution
1) The President, Vice President, the
Members of the Cabinet and their
deputies or assistants shall not,
unless otherwise provided in the
Constitution, hold any other office or
employment during their tenure (Art.
VII, Sec. 13)
2) No Senator or Member of the House
of Representatives may hold any
other office or employment in the
Government, or any subdivision,
agency or instrumentality thereof,
including government-owned or
controlled corporations or their
subsidiaries, during his term without
forfeiting his seat. Neither shall he be
appointed to any office which may
have been created or the
emoluments thereof increased during
the term for which he was elected
(Art. VI, Sec 13)
3) The Members of the Supreme Court
and of other courts established by
law shall not be designated to any
agency performing quasi-judicial or
administrative functions (Art. VIII,
Sec. 12)
4) No Member of a Constitutional
Commission shall, during his tenure,
hold any other office or employment.
(Art. IX-A, Sec. 2)
5) Previous disqualification applies to
the Ombudsman and his Deputies
(Art. XI, Sec. 8)
6) The Ombudsman and his Deputies
shall not be qualified to run for any
office in the election immediately
succeeding their cessation from office
(Art. XI, Sec. 11)
7) Members of Constitutional
Commissions, the Ombudsman and
his Deputies must not have been
candidates for any elective position
in the elections immediately
preceding their appointment (Art IX-
B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-
D, Sec. 1; Art XI, Sec. 8)
8) Members of Constitutional
Commissions, the Ombudsman and
243
his Deputies are appointed to a term
of seven (7) years, without
reappointment (Sec. 1(2) of Arts. IX-
B, C, D; Art. XI, Sec. 11)
The spouse and relatives by
consanguinity or affinity within the
fourth civil degree of the President
shall not during his tenure be
appointed as Members of the
Constitutional Commissions, or the
Office of the Ombudsman, or as
Secretaries, Undersecretaries,
chairmen or heads of bureaus or
offices, including government owned-
or controlled corporations (Art. VIII,
Sec. 13)
OTHER DISQUALIFICATIONS
1. Mental or physical incapacity
2. Misconduct or crime: persons convicted
of crimes involving moral turpitude are
usually disqualified from holding public
office.
3. Impeachment
4. Removal or suspension from office:
where there is no constitutional or
statutory declaration of ineligibility for
suspension or removal from office, the
courts may not impose the disability
5. Previous tenure of office: for example,
a person who has been elected and has
held the office of President is
absolutely disqualified for reelection
6. Consecutive terms:
a. Vice-President = 2 consecutive
terms
b. Senator = 2 consecutive terms
c. Representative = 3 consecutive
terms
d. Elective local officials = 3
consecutive terms
i. Voluntary renunciation of the
office for any length of time
shall not be considered as an
interruption in the continuity
of his service for the full term
for which he was elected.
7. Holding more than one office: to
prevent offices of public trust from
accumulating in a single person, and to
prevent individuals from deriving,
directly or indirectly, any pecuniary
benefit by virtue of their dual position-
holding
i. Civil Liberties Union v. Executive
Secretary
1. Section 7, Article IX-B of the
Constitution is meant to lay down
the general prohibition against
the holding of multiple offices or
employment in the government
subsuming both elective and
appointive public officials, unless
otherwise allowed by law or by
the primary functions of his
position. This provision should
not be applied to the President,
Vice-President and cabinet
members since the Constitution,
in Section 13, Article VII,
prescribes a stricter prohibition
on the mentioned officials.
2. To apply the exceptions found in
Section 7, Article IX-B to Section
13, Article VII would obliterate
the distinction set by the framers
of the Constitution as to the
high-ranking officials of the
Executive branch.
3. However, the prohibition under
Section 13, Article VII is not to
be interpreted as covering
positions held without additional
compensation in ex-officio
capacities as provided by law and
as required by the primary
functions of the concerned
officials office.
8. Relationship with the appointing power
i. Exceptions to rule on nepotism:
a. persons employed in a confidential
capacity
b. teachers
c. physicians
d. members of the Armed Forces of
the Philippines
9. Office newly created or the
emoluments of which have been
increased
244
10. Being an elective official: elective
officials are not eligible for
appointment or designation in any
capacity to any public office or position
during his tenure; he may be
appointed provided he forfeits his seat
11. Having been a candidate for any
elective position
12. Under the Local Government Code
a. Those sentenced by final judgment
for an offense involving moral
turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years after
serving sentence;
b. Those removed from office as a
result of an administrative case;
c. Those convicted by final judgment
for violating the oath of allegiance to
the Republic;
d. Those with dual citizenship;
e. Fugitive from justice in criminal or
non-political cases here or abroad;
f. Permanent residents in a foreign
country or those who have acquired
the right to reside abroad and
continue to avail of the same right
after the effectivity of the Local
Government Code;
g. The insane or feeble-minded.

IV. FORMATION OF OFFICIAL RELATION

A. Modes of Commencing Official Relation
Election
Appointment
Others:
Succession by operation of law;
Direct provision of law, e.g. ex-officio
officers
B. Election
Selection or designation by a popular
vote
C. Appointment
1. Definition
Designation Appointment
Definition Imposition of
additional
duties upon
an existing
Selection of an
individual to
occupy a
certain public
office office by one
authorized by
law to make
such selection
Extent of
Powers
Limited Comprehensive
Security of
tenure?
No. Yes.
When
deemed
abandonment
of prior office
Assumption
of a
designated
position is
not deemed
abandonment
of the 1st
position
Assumption of
a 2nd
appointive
position is
usually deemed
abandonment
of the first
office.
2. Nature of Appointing Power
The power to appoint is intrinsically an
executive act involving the exercise of
discretion. (Concepcion v. Paredes)
The power and prerogative to a vacant
position in the civil service is lodged with
the appointing authority.
3. Classification of Appointments
Permanent : extended to a person
possessing the requisite qualifications,
including the eligibility required, for the
position, and thus protected by the
constitutional guaranty of security of
tenure
- lasts until they are lawfully
terminated
Temporary : an acting appointment; it is
extended to one who may not possess
the requisite qualifications or eligibility
required by law for the position, and is
revocable at will, w/o the necessity of
just cause or a valid investigation
- lasts until a permanent appointment
is issued
Mere fact that a position belongs to the
Career Service of the Civil Service
Commission does not automatically
confer security of tenure. Where the
appointee doe not possess the
qualifications for the position, the
appointment is temporary and may be
terminated at will
245
Acceptance of a temporary appointment
results in the termination of official
relationship with former position.
(Romualdez III v CSC)
A mere designation does not confer
security of tenure, as the person
designated occupies the position only in
an acting capacity (Sevilla v CA)
Where the appointment is subject to
conditions, it is not permanent. However,
where the temporary appointment is for
a fixed period, the appointment may be
revoked only at the expiration of the
period or if revocation made before such
expiration, it must be for a valid cause.
4. Steps in Appointing Process
For Appointments which require
confirmation:

Regular Appointments
1. Nomination by the President
2. Confirmation by the Commission on
Appointments
3. Issuance of the commission
4. Acceptance by the appointee
Ad-Interim Appointments
1. Nomination by the President
2. Issuance of the commission
3. Acceptance by the appointee
4. Confirmation by the Commission on
Appointments
For Appointments which do not require
confirmation
1. Appointment by the appointing
authority
2. Issuance of the commission
3. Acceptance by the appointee
Note: Where the appointment is to the
career service of the Civil Service, attestation
of the Civil Service Commission is required
3. Presidential Appointees
The following shall be nominated and
appointed by with the consent of the
Commission on Appointments
- Heads of the executive departments
(Art. VII, Sec. 16, 1987 Const.);
- Ambassadors (ibid);
- Other public ministers and consuls
(ibid);
- Officers of the armed forces from the
rank or colonel or naval captain (ibid);
- Other officers whose appointments are
vested in him by the Constitution
(ibid), including Constitutional
Commissioners (Art. IX-B, Sec. 1 (2)
for CSC; Art. IX-C, Sec. 1 (2) for
COMELEC; Art. IX-D, Sec. 1 (2) for
COA).
The following can be appointed by the
President without the need for CA
approval
All other officers of the government
whose appointments are not otherwise
provided for by law;
Those whom he may be authorized by
law to appoint;
Members of the Supreme Court;
Judges of lower courts;
Ombudsman and his deputies
Kinds of Presidential Appointments
Regular: made by the President while
Congress is in session after the
nomination is confirmed by the
Commission of Appointments, and
continues until the end of the term.
Ad interim: made while Congress is not
in session, before confirmation by the
Commission on Appointments;
immediately effective and ceases to be
valid if disapproved or bypassed by the
Commission on Appointments. This is a
permanent appointment and it being
subject to confirmation does not alter its
permanent character.
-
! Recess appointment power keeps
in continuous operation the
business of government when
Congress is not in session.
! The appointment shall cease to be
effective upon rejection by the
Commission on Appointments, or if
not acted upon, at the
adjournment of the next session,
regular or special, of Congress.
Matibag v. Benipayo (April 2, 2002)
An ad interim appointment is a
permanent appointment because it takes
effect immediately and can no longer be
withdrawn by the President once the
appointee has qualified into office. The
fact that it is subject to confirmation by the
Commission on Appointments does not
alter its permanent character. The
246
Constitution itself makes an ad interim
appointment permanent in character by
making it effective until disapproved by the
Commission on Appointments or until the
next adjournment of Congress.
An ad interim appointment is
distinguishable from an "acting
appointment which is merely temporary,
good until another permanent appointment
is issued.
Said appointment is also distinguished
from the exercise of presidential
prerogative requiring confirmation by the
Commission on Appointments when
Congress is in session. In the latter, the
President nominates, and only upon the
consent of the Commission on
Appointments may the person thus named
assume office. It is not so with reference
to ad interim appointments, as they take
effect at once. The individual chosen may
thus qualify and perform his function
without loss of time.
In this case, the ad interim
appointments of the COMELEC
Commissioners, being permanent
appointments, do not violate the
Constitutional prohibition on temporary or
acting appointments of COMELEC
Commissioners.
Moreover, the failure of the
Commission on Appointments to confirm
the ad interim appointment does not
amount to a disapproval by the said
Commission. There is no dispute that an
ad interim appointee disapproved by the
COA can no longer be extended a new
appointment. On the other hand, a by-
passed appointee, or one whose
appointment has not been finally acted
upon the merits by the COA, may be
appointed again by the President.
D. Qualification Standards and
Requirements under the Civil Service Law
1. Qualification Standards
Express the minimum requirements for a
class of positions in terms of education,
training and experience, civil service
eligibility, physical fitness, and other
qualities required for successful
performance. (Sec. 22, Book V, EO 292)
It shall be the responsibility of the
departments and agencies to establish,
administer and maintain the qualification
standards on a continuing basis as an
incentive to career advancement. (Sec.
7, Rule IV, Omnibus Rules)
Their establishment, administration, and
maintenance shall be the responsibility of
the department / agency, with the
assistance and approval of the CSC and
in consultation with the Wage and
Position Classification Office (ibid)
Shall be established for all positions in
the 1st and 2nd levels (Sec. 1, Rule IV,
Omnibus Rules)
2. Political Qualifications for an Office
(i.e., membership in a political party)
GENERAL RULE: Political qualifications
are not required for public office.
- EXCEPTIONS:
! Membership in the electoral
tribunals of either the House of
Representatives or Senate (Art. VI,
Sec. 17, 1987 Const.);
! Party-list representation;
! Commission on Appointments;
! Vacancies in the Sanggunian (Sec.
45, Local Government Code)
3. Property Qualifications
In the cases of Maquera v. Borra and
Aurea v. COMELEC, the Supreme Court
held that property qualifications are
inconsistent with the nature and essence
of the Republican system ordained in our
Constitution and the principle of social
justice underlying the same. The Court
reasoned out that "sovereignty resides in
the people and all government authority
emanates from them, and this, in turn,
implies necessarily that the right to vote
and to be voted shall not be dependent
upon the wealth of the individual
concerned. Social justice presupposes
equal opportunity for all, rich and poor
alike, and that, accordingly, no person
shall, by reason of poverty, be denied the
chance to be elected to public office."
4. Citizenship
Aliens not eligible to public office
5. Effect of removal of qualifications
during the term
The officer must be terminated.
6. Effect of pardon upon the
disqualification to hold public office
247
GENERAL RULE: A pardon shall not
work the restoration of the right to hold
public office. (Art. 36, Revised Penal
Code)
- EXCEPTIONS:
! Where such right to hold public office
is expressly restored by the terms of
the pardon (Art. 36, RPC);
! When a person is granted pardon
because he did not commit the
offense imputed to him (Garcia v.
Chairman, COA)
E. Discretion of Appointing Official
Discretion, if not plenary, at least
sufficient, should thus be granted to
those entrusted with the responsibility of
administering the officers concerned,
primarily the department heads. They
are in the most favorable position to
determine who can best fulfill the
functions of the office thus vacated.
Unless, therefore, the law speaks in the
most mandatory and peremptory tone,
considering all the circumstances, there
should be, as there has been, full
recognition of the wide scope of such
discretionary authority. (Reyes v.
Abeleda)
Appointment is an essentially
discretionary power and must be
performed by the officer in which it is
vested, the only condition being that the
appointee should possess the
qualifications required by law. (Lapinid
v. CSC)
The discretion of the appointing authority
is not only in the choice of the person
who is to be appointed but also in the
nature and character of the appointment
intended (i.e., whether the appointment
is permanent or temporary).
Appointment is generally a political
question so long as the appointee fulfills
the minimum qualification requirements
prescribed by law.
The only function of the CSC is to review
the appointment in the light of the
requirements of the Civil Service Law,
and when it finds the appointee to be
qualified and all other legal requirements
have been otherwise satisfied, it has no
choice but to attest to the appointment.
It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified.
(Lapinid v. CSC)
To hold that the Civil Service Law
requires that any vacancy be filled by
promotion, transfer, reinstatement,
reemployment, or certification in that
order would be tantamount to legislative
appointment which is repugnant to the
Constitution. The requirement under the
Civil Service Law that the appointing
power set forth the reason for failing to
appoint the officer next in rank applies
only in cases of promotion and not in
cases where the appointing power
chooses to fill the vacancy by transfer,
reinstatement, reemployment or
certification, not necessarily in that
order. (Pineda v. Claudio) (c.f.
highlighted part in paragraph in next
column)
The CSC is not empowered to change the
nature of the appointment extended by
the appointing officer, its authority being
limited to approving or reviewing the
appointment in the light of the
requirements of the Civil Service Law.
When the appointee is qualified and all
the legal requirements are satisfied, the
CSC has no choice but to attest to the
appointment. (Luego v. CSC)
Where the palpable excess of authority
or abuse of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to issue
said appointments. (Gesolgon v. Lacson)
For the appointment to be valid, the
position must be vacant (Costin v
Quimbo)
While the Civil Service Law grants career
service officers preference in promotion
under the "next-in-rank rule, it is not
mandatory that the appointing authority
fill a vacancy by promotion, as the
appointing authority should be allowed
the choice of men of his confidence.
Provided they are qualified and eligible.
248
Sec. 9, Chapter II, Title III Book IV of
the Admin Code provides that all
provincial and city prosecutors and their
assistants shall be appointed by the
President upon recommendation of the
Secretary of Justice. The phrase "upon
recommendation of the Sec. of Justice
should be interpreted to be a mere
advise, which is persuasive in character
but is not binding or obligatory upon the
person to whom it is made.
F. Effectivity of Appointment
An appointment takes effect immediately
upon its issuance by the appointing
authority. (Rule V, Sec. 10, Omnibus
Rules).
G. Effects of a complete, final and
irrevocable appointment
GENERAL RULE: An appointment, once
made, is irrevocable and not subject to
reconsideration.
A completed appointment vests a legal
right. It cannot be taken away EXCEPT
for cause, and with previous notice and
hearing (due process).
Qualification: Where the assent,
confirmation, or approval of some other
officer or body is needed before the
appointment may be issue and be
deemed complete.
EXCEPTIONS:
- When the appointment is an absolute
nullity (Mitra v. Subido);
- When there is fraud on the part of the
appointee (Mitra v. Subido);
- Midnight appointments
! A President or Acting President is
prohibited from making
appointments 2 months
immediately before the next
presidential elections and up to the
end of his term. (Art. VII, Sec. 15,
1987 Const.)
! Exception: Temporary
appointments to executive
positions when continued
vacancies therein will prejudice
public service or endanger public
safety.
H. Jurisdiction of the Civil Service
Commission (CSC)
The following are within the exclusive
jurisdiction of the CSC: Disciplinary cases
and cases involving "personnel action
affecting the employees of the Civil
Service, including "appointment through
certification, promotion, transfer,
reinstatement, reemployment, detail,
reassignment, demotion and separation,
as well as employment status and
qualification standards.
Includes the authority to recall an
appointment which has been initially
approved when it is shown that the same
was issued in disregard of pertinent CSC
laws, rules and regulations.
The CSC is not a co-manager or surrogate
administrator of government offices and
agencies. Its authority is limited to
approving or reviewing appointments.
I. Appointments to the Civil Service
SCOPE: Embraces all branches,
subdivisions, instrumentalities and
agencies of the Government, including
GOCCs with original charters (Art. IX-B
Sec. 2(1), Constitution)
Classes of Service
a) Career Service - Entrance based on
merit and fitness determined by
competitive examinations, or based on
highly technical qualifications,
opportunity for advancement to higher
career positions and security of tenure.
b) Non-career Service - Entrance on
bases other than those of the usual
testes. Tenure limited to a period
specified by law or which is coterminous
with the appointing authority or the
duration of a particular project. Ex.
elective officials, Department Heads and
Members of Cabinet
Requisites:
(i) Shall be made only according to
merit and fitness to be determined,
as far as practicable
(ii) By competitive examination
Exempt from the competitive
examination requirements are
appointments to positions which are:
Policy determining - in which the
officer lays down
principal or fundamental
guidelines or rules; or
formulates a method of
action for government or
any of its subsidiaries
249
Primarily Confidential - denoting
not only confidence in
the aptitude of the
appointee for the duties
of the office but primarily
close intimacy which
ensures freedom of
intercourse without
embarrassment or
freedom from misgivings
or betrayals on
confidential matters of
the state
("Proximity Rule as
enunciated in De los
Santos v Mallare)
-
Highly Technical - requires
possession of technical
skill or training in a
superior degree. ex. City
Legal Officer
NOTE: It is the nature of the
position which determines
whether a position is policy
determining, primarily
confidential or highly technical
Other Personnel Actions
Promotion is a movement from one position to
another with increase in duties and
responsibilities as authorized by law and
usually accompanied by an increase in pay.
(i) Next-in-rank rule . The person next
in rank shall be given preference in
promotion when the position
immediately above his is vacated.
But the appointing authority still
exercises discretion and is not
bound by this rule, although he is
required to specify the "special
reason or reasons for not
appointing the officer next-in-rank
(ii) Automatic Reversion rule - All
appointments involved in a chain of
promotions must be submitted
simultaneously for approval by the
Commission. The disapproval of
the appointment of a person
proposed to a higher position
invalidates the promotion of those
in the lower positions and
automatically restores them to
their former positions. However,
the affected persons are entitled to
payment of salaries for services
actually rendered at a rate fixed in
their promotional appointments
(Sec. 13 of the Omnibus Rules
Implementing EO 292) For this rule
to apply, the following must
concur:
a) there must be a
series of
promotions
b) all promotional
appointments are
simultaneously
submitted to the
Commission for
approval
c) the Commission
disapproves the
appointment of a
person to a higher
position.
Appointment through Certification is issued to
a person who has been selected from a list
of qualified persons certified by the Civil
Service Commission from an appropriate
register of eligibles, and who meets all the
qualifications prescribed for the position
Transfer is a movement from one position to
another which is of equivalent rank, level
or salary without break in service. This
may be imposed as an administrative
remedy.
- An unconsented transfer violates
security of tenure. However this does
not apply to a holder of a temporary
appointment or to Career Executive
Service Personnel whose status and
salaries are based on their ranks and
not on the positions to which they are
assigned
Reinstatement Any person who has been
permanently appointed to a position in
the career service and who has, through
no delinquency or misconduct, been
separated therefrom, may be reinstated
to a position in the same level for which
he is qualified.
- It is technically the issuance of a
new appointment and is discretionary
on the part of the appointing power; it
cannot be the subject of an application
for a writ of mandamus
- However, the bestowal of executive
clemency completely obliterates the
adverse effects of the administrative
250
decision which found him guilty of
dishonesty. This signifies that
petitioner need no longer apply for
reinstatement as he is restored ipso
facto upon the issuance of clemency
Detail is the movement of an employee from
one agency to another without the
issuance of an appointment, and shall
be allowed only for a limited period in
the case of employees occupying
professional, technical and scientific
positions. It is temporary in nature.
Reassignment An employee may be
reassigned from one organizational unit
to another in the same agency, provided
that such reassignment shall not involve
a reduction in rank, status or salary. It is
a management prerogative of the CSC
and any dept or agency embraced in the
Civil Service and does not constitute
removal without cause.
- But like detail, the reassignment
should have a definite date or duration.
Otherwise, it is tantamount to a
floating assignment, thus a diminution
in status or rank
Reemployment Names of persons who
have been appointed permanently to
positions in the career service and who
have been separated as a result of
reduction in force and/or reorganization,
shall be entered in a list from which
selection from reemployment shall be
made.
V. ASSUMPTION AND TERM OR TENURE OF
OFFICE
A. Qualification to Office
1. Appointment and Qualification to Office
Distinguished
Appointment is the act of being designated
to a public office by the appointing
authority.
Qualification is the act of signifying one's
acceptance of the appointive position. This
generally consists of the taking /
subscribing / filing of an official oath, and
in certain cases, of the giving of an official
bond, as required by law. (Mechem)
Borromeo v. Mariano
A judge may not be made a judge
of another district without his consent.
Appointment and qualification to office are
separate and distinct things. Appointment
is the sole act of the appointee. There is
no power which can compel a man to
accept the office.
2. Effect of Failure to Qualify
Failure to qualify is deemed evidence of
refusal of the office.
It is a ground for removal
- If qualification is a condition precedent,
failure to qualify ipso facto deemed
rejection of the office
- If not condition precedent, failure is
not ipso facto rejection
Justifiable reasons for delay in qualifying:
sickness, accident, and other fortuitous
events that excuse delay.
The Omnibus Election Code provides that
the officer must qualify (i.e., take his
oath of office and assume office) within 6
months from proclamation. Otherwise,
the position will be deemed vacant.
- Exception: If the non-assumption of
office is due to a cause beyond his
control.
Qualification is significant because it
designates when security of tenure begins.
B. Oath of Office
1. Definition
An oath is an outward pledge whereby
one formally calls upon God to witness to
the truth of what he says or to the fact
that he sincerely intends to do what he
says.
It is not indispensable. It is a mere
incident to the office and constitutes no
part of the office itself. However, the
President, Vice-President and Acting
President are required by the
Constitution (Art. VII, Sec. 5) to take an
oath or affirmation before entering into
the execution of their office. Such oath-
taking is mandatory.
However, as per Nachura Only when
the public officer has satisfied the
prerequisite of taking his oath of office
can his right his position be considered
plenary and complete. Until then, the
holdover officer is the rightful occupant
(Lecaroz v Sandiganbayan)
251
2. Persons Authorized to Administer Oaths
Notaries public;
Judges;
Clerks of court;
Secretary of House / Senate;
Secretary of Exec. Departments;
Bureau Directors;
Register of Deeds;
Provincial governors;
City mayors;
Municipal mayors;
Any other officer in the service of the
government of the Philippines whose
appointment is vested in the President
Any other officer whose duties, as defined
by law or regulation, require presentation
to him of any statement under oath
3. Persons Obliged to Administer Oaths in
All Instances,
Notaries public
Municipal judges
Clerks of court
4. Time of Taking the Oath of Office
A public officer must take his oath of office
before entering upon the discharge of his
duties.
5. Requalification
If a public officer is re-elected or re-
appointed, he must take another oath and
fulfill the other condition precedents before
assuming office. The oath and other
qualifications made prior to assumption of
his previous office will not be valid for
subsequent terms of office.
C. Giving of Bonds
1. The Bond
It is in the nature of an indemnity bond
rather than a penal or forfeiture bond.
It is an obligation binding the sureties to
make good the officers default.
It is required not for the benefit of the
office holder, but for the protection of the
public interest and is designed to indemnify
those suffering loss or injury by reason of
misconduct or neglect in office.
2. Persons Required to Give Bond
Accountable public officers or those to
whom are entrusted the collection and
custody of public money;
Public ministerial officers whose actions
may affect the rights and interests of
individuals.
3. Effect of Failure to Give Bond within the
Prescribed Period
If not condition precedent, failure to give
bond merely constitutes a ground for
forfeiture of the office. It is not forfeiture of
the office ipso facto.
If condition precedent, failure to give bond
within the prescribed period renders the
office vacant.
D. Term and Tenure of Office
1. Term of Office and Tenure of Office
Distinguished
2. Power of the Legislature to Fix and
Change the Term of Office
Where the term is fixed by the
Constitution, Congress has no power to
alter the term.
- But such term of office can be
shortened or extended by the vote of
the people ratifying a constitutional
amendment.
Where the term is not fixed, Congress may
fix the terms of officers other than those
provided for in the Constitution.
Congress has the power to change the
tenure of officers holding offices created by
it. However, if the term is lengthened and
made to apply to the incumbents, this
could be tantamount to a legislative
appointment which is null and void.
3. When Term of Office Dependent upon
"Pleasure of the President"
Congress can legally and constitutionally
make the tenure of certain officials
dependent upon the pleasure of the
President. (Alba v. Evangelista)
Where the office is held at the pleasure of
the appointing power and such appointing
power can exercise the power of removal
at his mere discretion, the public officer
may be removed without notice or hearing.
(Alba v. Evangelista)
Term of Office Tenure of Office
De jure De facto
Fixed and definite period of
time during which the
officer may claim to hold
the office as of right
Period during which the
incumbent actually holds
the office. It may be
shorter than the term.
252
4. No Vested Interest in Term of Office
Public office is a privilege revocable by the
sovereignty at will. An incumbent cannot
validly object to the alteration of his term
since he has no vested right in his office.
(Greenshow v. U.S.)
5. Term of Office Not Extended by Reason
of War
There is no principle, law or doctrine by
which the term may be extended by reason
of war. (Nueno, et al. v. Angeles)
E. Doctrine of Holdover
1. The Doctrine
A public officer whose term has expired or
services have been terminated is allowed
to continue holding his office until his
successor is appointed or chosen and had
qualified. (Mechem)
2. Purpose of the Hold-Over Rule
Public interest. It is to prevent a hiatus in
the public service pending the time when a
successor may be chosen and inducted into
office.
3. Holding-Over Rules
Where the law provides for it: The office
does not become vacant upon the
expiration of the term if there is no
successor elected and qualified to assume
it. Incumbent will hold-over even if
beyond the term fixed by law.
Where the law is silent: Unless hold-over is
expressly or impliedly prohibited,
incumbent may hold-over. Law-making
body favors hold-over except when the law
fixes a specific date for the end of the
term, therefore there is an implied
prohibition against hold over
Where the Constitution limits the term of a
public officer and does not provide for
hold-over: Hold-over is not permitted.
Note: Art 237 of the Revised Penal Code
penalizes any public officer who shall
continue to exercise the duties and powers
of his office beyond the period provided by
law.
During this period of hold-over, the public
officer is a de jure officer
F. Commencement of Term of Office
1. Where the time is fixed
The term will begin on the specified date.
2. Where no time is fixed
The term will generally begin on the date
of the election or the appointment.
3. Where the law fixing the term of office
is ambiguous
The one that fixes the term at the shortest
period should be followed
4. In case of vacancy and both the
duration of the term of office and the
time of its commencement and
termination is fixed
Person elected to fill the vacancy shall hold
the same only for the unexpired portion of
the term
5. Where only the duration of the term is
fixed but not the beginning or end of
the term
Person selected to fill the vacancy may
serve the full term
6. Where an officer is appointed or office
created to perform a single act
Office terminates with the accomplishment
of the purposes for which it was called into
being.
VI. POWERS AND DUTIES OF PUBLIC
OFFICERS
A. Source of Government Authority
The people, the sovereignty
The authority of public officers consists of
those powers which are:
(a) Expressly conferred upon him by the
act appointing him
(b) Expressly annexed to the office by
law
(c) Attached to the office by common
law as incidents to it
B. Scope of Powers of a Public Officer
The duties of a public office includes all
those which truly are within its scope
under the Doctrine of Necessary
Implication:
(1) those which are essential to the
accomplishment of the main purpose for which
the office was created; or
(2) those which, although incidental or
collateral, are germane to and serve to
promote the accomplishment of the principal
purpose (Lo Cham v. Ocampo).
253
Needless to say, powers expressly granted
by law are within the scope of the public
office.
C. Territorial Extent of Powers of Public
Officer
GENERAL RULE: Where a public officer is
authorized by law to perform the duties of
his office at a particular place, action at a
place not authorized by law is ordinarily
invalid. (Note: This rule is applicable to all
public officers whose duties are essentially
local in nature, e.g. judges.)
EXCEPTIONS:
- Consuls;
- Police officers, who may arrest persons
for crimes committed outside Philippine
territory;
- Doctrine of hot pursuit
D. Duration of Authority of Public Officers
The duration of the authority of public
officers is limited to that term during which
he is, by law, invested with the rights and
duties of the office.
E. Construction of Grant of Powers
Strict construction. Grant of powers will be
construed as conferring only those powers
which are expressly imposed or necessarily
implied.
F. Classification of Powers
Discretionary Ministerial
Definition Acts which
require the
exercise of
reason in
determining
when, where,
and how to
exercise the
power
Acts which are
performed in a
given state of
facts, in a
prescribed
manner, in
obedience to
the mandate of
legal authority,
without regard
to or the
exercise of his
own judgment
upon the
propriety or
impropriety of
the act done
(Lamb v.
Phipps)
Can be Generally, NO. Generally, YES.
delegated?
Exception:
When the
power to
substitute /
delegate has
been given
Exception:
When the law
expressly
requires the act
to be
performed by
the officer in
person and / or
prohibits such
delegation
When is
mandamus
proper?
Only if the duty
to do
something has
been delayed
for an
unreasonable
period of time.
In these cases,
mandamus will
usually compel
the officer to
make a
decision, but
will not dictate
as to what the
decision will or
should be.
In all cases.
Is public
officer
liable?
Generally not
liable
Exceptions: if
there is fraud
or malice
Liable if duty
exercised
contrary to the
manner
prescribed by
law.
1. Discretionary Power
Discretion, when applied to public
functionaries, means a power or right
conferred upon them by law of acting
officially in certain circumstances,
according to the dictates of their own
judgment and conscience, uncontrolled by
the judgment or conscience of others.
(Lamb v. Phipps)
General Rule: Mandamus will not issue to
control or review the exercise of discretion
of a public officer where the law imposes
on him the right or duty to exercise
judgment in reference to any matter in
which he is required to act (Aprueba v.
Ganzon).
Exception:
(i) Where there is grave abuse of
discretion, manifest injustice or
palpable excess of authority
254
equivalent to a denial of a settled
right to which the petitioner is
entitled, and where there is no
other plain, speedy or adequate
remedy. (First Phil. Holdings Corp
v Sandiganbayan)
(j) Writ may issue to compel the
exercise of discretion but not the
discretion itself (BF Homes v
National Water Resources Council)
Judgment v Discretion
Judgment is a judicial function, the
determination of a question of law. There is
only one way to be right.
Discretion is the faculty conferred upon a
court or other officer which he may decide
the question either way and still be right.
2. Ministerial Power
A purely ministerial act is one which an
officer or tribunal performs in a given state
of facts, in a prescribed manner, in
obedience to the mandate of legal
authority, without regard to or the exercise
of his own judgment upon the propriety or
impropriety of the act done. A ministerial
act is one to which nothing is left to the
discretion of the person who must perform.
It is a simple, definite duty arising under
conditions admitted or proved to exist and
imposed by law. It is a precise act,
accurately marked out, enjoined upon
particular officers for a particular purpose.
(Lamb v. Phipps)
Lamb v. Phipps
Auditors and comptrollers, as
accounting officers, are generally regarded
as quasi-judicial officers. They perform
mere ministerial duties only in cases where
the sum due is conclusively fixed by law or
pursuant to law. Except in such cases, the
action of the accounting officers upon
claims coming before them for settlement
and certification of balances found by them
to be due, is not merely ministerial but
judicial and discretionary. Mandamus will
therefore not issue.
Torres v. Ribo
The powers of the Board of
Canvassers are quasi-judicial and therefore
discretionary.
Aprueba v. Ganzon
Mandamus will not issue to control or
review the exercise of discretion of a public
officer where the law imposes on him the
right or duty to exercise judgment in
reference to any matter in which he is
required to act.
The privilege of operating a market
stall under license is not absolute but
revocable under an implied lease contract
subject to the general welfare clause.
Mandamus never lies to enforce the
performance of contractual obligations.
Miguel v. Zulueta
Public officers may properly be
compelled by mandamus to remove or
rectify an unlawful act if to do so is within
their official competence.
G. Duties of Public Officers
1. General (Constitutional) duties of
public officers
a) To be accountable to the people; to
serve them with utmost responsibility,
integrity, loyalty and efficiency to act
with patriotism and justice, and to lead
modest lives (Art. XI, Sec. 6)
b) To submit a declaration under oath of
his assets, liabilities and new worth
upon assumption of office and as often
thereafter as may be required by law
(Art. XI, Sec 17)
c) To owe the State and the Constitution
allegiance at all times (Art. XI, Sec.
18)
2. Specific Cases
The Solicitor Generals duty to represent
the government except in criminal
cases or civil cases for damages arising
from felony, is mandatory (Gonzales v
Chavez)
The government is not estopped from
questioning the acts of its officials,
more so if they are erroneous or
irregular
H. Time of Execution of Powers
1. Where not indicated
Within a reasonable time
2. Where indicated
Merely directory
255
Exceptions:
- When there is something in the statute
which shows a different intent
(Araphoe City v. Union Pac);
- Where a disregard of the provisions of
the statute would injuriously affect a
public interest or public right;
- When the provision is accompanied by
negative words importing that the acts
shall not be done in any other manner
or time than that designated.
I. Ratification of Unauthorized Acts
1. If act was absolutely void at the time it
was done
Cannot be ratified
2. If merely voidable
Can be ratified and rendered valid
3. Government not estopped by the
unauthorized or illegal acts of officers
As between an individual and his
government, the individual cannot plead
the void act of an official to shield him from
the demand of the government that he
(the individual) fulfill an obligation which
he has contracted with the government,
after the benefits accruing to him as a
result of that obligation have been
received. The government can neither be
estopped nor prejudiced by the illegal acts
of its servants. (Government v. Galarosa)
Hilado v. Collector
A tax circular issued on a wrong
construction of the law cannot give rise to
a vested right that can be invoked by a
taxpayer.
I. Accountability and Responsibility of
Public Officers and Employees
Norm of Performance of Duties: standards
of personal conduct provided for in Sec. 4,
RA 6713
- Commitment to public interest;
- Professionalism;
- Justness and sincerity;
- Political neutrality;
- Responsiveness to the public;
- Nationalism and patriotism;
- Commitment to democracy;
- Simple living
J. Prohibitions
(a) Partisan political activity No officer or
employee of the civil service shall engage,
directly or indirectly, in any electioneering
or partisan political campaign. (Sec. IX-B,
Sec. 5(3))
The Civil Service Law prohibits
engaging directly or indirectly in any
partisan political activity or taking
part in any election except to vote;
or use the official authority to coerce
in the political activity of any person
or body
Armed Force shall be insulated from
partisan politics. No member of the
military shall engage directly or
indirectly in any partisan political
activity, except to vote
However, this prohibition does NOT
prevent expression of views on
current political problems (Caltex v
Bonifacio)
This provision is diff from Sec. 79 BP
881 which makes it unlawful for any
person or any political party to
engage in election campaign or
partisan political activity except
during campaign period. Election
campaign or partisan political activity
refers to an act designed to promote
the election or defeat of a
candidate/s to public office. If done
for the purpose of enhancing the
chances of aspirants for nomination
for candidacy to a public office by a
political party, it shall not be
considered as election campaign or
partisan political activity.
(b) Additional or double compensation. No
elective or appointive public officer or
employee shall receive additional, double,
or indirect compensation unless specifically
authorized by law, nor accept without the
consent of Congress, any present
emolument, office or title of any kind from
any foreign government (Art. IX-B, Sec. 8)
(c) Prohibition against loans. No loan,
guaranty, or other form of financial
accommodation for any business purpose
may be granted, directly or indirectly, by
any government-owned or controlled bank
or financial institution to the ff: 1)
President
2) Vice President
3) Members of the Cabinet
4) The Congress
5) The Supreme Court
256
6) The Constitutional Commissions
(7) The Ombudsman
(8) To any firm to which they have
controlling interest during their tenure
(d) Limitation on Laborers Shall not be
assigned to perform clerical activities
(e) Detail or assignment No detail or
reassignment shall be made within three
months before any election without the
approval of the Comelec
(I) Nepotism All appointments made in favor
of a relative (within the third civil degree of
consanguinity or affinity) of the appointing
authority or the chief of the bureau or
office, of the persons exercising immediate
supervision over him are prohibited. This
covers all appointments and designations,
including subsequent personnel actions
(ex. promotion, reinstatement etc).
VII. RIGHTS AND PRIVILEGES OF PUBLIC
OFFICERS
A. Right to Office
It is the right to exercise the powers of the
office to the exclusion of others.
B. Right to Salary or Compensation
1. BASIS
The legal title to the office and the fact
that the law attaches compensation to his
office
2. GENERAL RULES
A public officer is not entitled to
compensation for services rendered under
an unconstitutional statute or provision
thereof.
- Exception: If some other statute
provides otherwise.
If no compensation is fixed by law, the
public officer is assumed to have accepted
the office to serve gratuitously.
After services have been rendered by a
public officer, the compensation thus
earned cannot be taken away by a
subsequent law. However, he cannot
recover salary for a period during which he
performed no services.
One without legal title to office either by
lawful appointment or election and
qualification is not entitled to recover
salary or compensation attached to the
office.
One who intrudes into or usurps a public
office has no right to the salary or
emoluments attached to the office.
3. Some Constitutional Provisions
Affecting Salaries
No increase in the salaries of members
of Congress shall take effect until after
the expiration of the full term of the
Members of the Senate and the House
of Representatives who approved the
increase (Art. VI, Sec 10)
Salaries of the President and Vice
President shall be fixed by law and
shall not be decreased during their
tenure. No increase shall take effect
until after the expiration of the term of
the incumbent during which such
increase was approved (Art. VII, Sec.
6)
The salary of members of the Judiciary
shall not be decreased during their
continuance in office (Art. VIII, Sec.
10) however, imposition of income
taxes on salaries of judges does not
constitute unconstitutional diminution
of salaries (Nitafan v Tan)
Additional, double or indirect
compensation are prohibited (Art. IX-B,
Sec. 8)
Standardization of compensation (Art.
IX-B, Sec. 5) RA 6758, the Salary
Standardization Law was passed in
compliance with the constitutional
provision.
4. Compensation not an element of public
office
Compensation is not indispensable to
public office. It is not part of the office but
merely incident thereto. It is sometimes
expressly provided that certain officers
shall receive no compensation, and a law
creating an office without any provision for
compensation may carry with it the
implication that the services are to be
rendered gratuitously.
5. Salary, Wages, and Per Diems Defined
and Distinguished
Salary: time-bound
Wages: service-bound
Per Diem: allowance for days actually
spent for special duties
6. Salary of Public Officer Not Subject to
Attachment
257
The salary of a public officer or employee
may not, by garnishment, attachment, or
order of execution, be seized before being
paid by him, and appropriated for the
payment of his debts.
Money in the hands of public officers,
although it may be due government
employees, is not liable to the creditors of
these employees in the process of
garnishment because the sovereign State
cannot be sued in its own courts except by
express authorization by statute. (Director
of Commerce and Industry v. Concepcion)
7. Future or Unearned Salaries Cannot be
Assigned
The salary or emoluments in public office
are not considered the proper subject of
barter and sale. (22 R.C.L. 541)
8. Agreements Affecting Compensation
Held Void
An agreement by a public officer respecting
his compensation may rightfully be
considered invalid as against public policy
where it tends to pervert such
compensation to a purpose other than that
for which it was intended, and to interfere
with the officer's free and unbiased
judgment in relation to the duties of his
office. (This is usually with reference to
unperformed services and the salary or
fees attached thereto.)
9. Right to Recover Salary: De Jure
Officer and De Facto Officer
Where a duly proclaimed elective official
who assumes office is subsequently ousted
in an election protest, the prevailing party
can no longer recover the salary paid to
the ousted officer. The ousted officer, who
acted as de facto officer during his
incumbency, is entitled to the
compensation, emoluments and allowances
which are provided for the position
(Rodriguez v. Tan).
- Exception: If there was fraud on the
part of the de facto officer which would
vitiate his election.
A de jure officer recover from--
the government: when the government
continues to pay the de facto officer
even after the notice of adjudication of
the protest in favor of the de jure
officer.
a de facto officer: when notice of
adjudication of the title to the de jure
officer has been given, and the de
facto officer still continues to exercise
duties and receive salaries and
emoluments.
an intruder / usurper: at all instances.
Monroy v. CA and del Rosario
Where a mayor filed a certificate of
candidacy for congressman then withdrew
such certificate and reassumed the position
of mayor, thus preventing the vice-mayor
from discharging the duties of the position
of mayor, the mayor should reimburse to
the vice-mayor, as the right rightful
occupant of the position of mayor, the
salaried which he had received.
Rodriguez v. Tan
Where a duly proclaimed elective
official who assumes office is subsequently
ousted in an election protest, the prevailing
party can no longer recover the salary paid
to the ousted officer. The ousted officer,
who acted as de facto officer during his
incumbency, is entitled to the
compensation, emoluments and allowances
which are provided for the position.
Exception: If there was fraud on
the part of the de facto officer which
would vitiate his election.
10. Additional or Double Compensation
Prohibited
Additional Double
There is only 1
position, but the
public officer is
getting additional
compensation.
.
There are 2 positions,
and with additional
functions and
emoluments for both
positions
Pensions / gratuities are not considered as
additional, double, or indirect
compensation. (Sec. 8, Art. IX-B, 1987
Constitution)
By its very nature, a bonus partakes of an
additional remuneration or compensation.
(Peralta v. Auditor General)
An allowance for expenses incident to the
discharge of the duties of office is not an
increase of salary, a prerequisite, nor an
emolument of office. (Peralta v. Auditor-
General)
258
11. Recovery of Salary During Period of
Suspension
If preventively suspended, he cannot
recover salary.
- But If he is subsequently exonerated,
he can.
If he was given penalty of removal from
office, but was completely exonerated upon
appeal, he can recover back wages and
other monetary benefits.
If the reinstatement was not the result of
exoneration but an act of liberality by the
Court of Appeals, not entitled to
compensation as he has not rendered any
service
If he was given penalty of removal from
office, but his penalty was commuted from
removal to mere suspension, or demotion,
he cannot recover because he was still
found guilty although the penalty was
reduced.
If the suspension / removal from office is
unjustified, he can recover.
C. Doctrine of Official Immunity
1. The Doctrine
A public officer enjoys qualified, not
absolute immunity. The protection
generally applies only to activities within
the scope of office that are in good faith
and are not reckless, malicious or corrupt.
2. Purpose of the Doctrine
To indirectly protect the sovereign by
protecting the public official in the
performance of his governmental function
As a result of the immunity extended, the
fearless and effective administration of the
policies of the government is promoted.
3. Presidential Immunity from Suit
Enjoyed only during the tenure of the
President.
After his tenure, the Chief Executive
cannot invoke immunity from suit for
civil damages arising out of acts done
by him while he was President (Estrada
v Desierto, March 2, 2001)
D. Right to Preference in Promotion
But the right does not prevail over the
discretion of the appointing authority
E. Right to Vacation and Sick Leave
However, in Maleniza v COA, it was held
that elective officials are not entitled to
accrued vacation and sick leave credits
because they have no official hours of
work
NOTE: However, this ruling may be
considered abandoned by the Local
Govt Code which states in Sec. 81 that
elective local officials shall be entitled
to the same leave privileges as those
enjoyed by appointive local officials
F. Right to Maternity Leave
G. Right to Retirement Pay
Retirement pay is liberally construed in
favor of the retiree (Proferata v Drilon)
The money value of the terminal leave of a
retiring government official shall
computed at the retirees HIGHEST
monthly salary (Belicena v Sec. of
Finance)
H. Others
Right to reimbursement for expenses
incurred in the due performance of his
duty. But a public officer who uses a
government vehicle is not entitled to,
nor can he charge, a transportation
allowance (Domingo v COA, Oct. 7,
1998)
Right to be indemnified against any
liability which they may incur in the
bona fide discharge of their duties
Right to longevity pay
Separation Pay to be given to Civil
Service employees who are separated
from the service not for cause but by
reason of reorganization (Sec. 16, Art
XVIII)
Right to additional allowances and
benefits under the Local Government
Code. LGUs may provide additional
allowances and benefits to national
government officials stationed to their
municipality or city.
VIII. Liability of Public Officers
General Rule: A public officer is not liable for
injuries sustained by another as a consequence
of official acts done within the scope of his
official authority.
Exception: As otherwise provided by law:
259
1. A public officer shall not be civilly
liable for acts done in the
performance of his official duties,
unless there is a clear showing of
bad faith, malice or negligence
(Sec. 38(1) Admin Code)
2. No subordinate officer or employee
shall be civilly liable for acts done
by him in good faith in the
performance of his duties. However
he shall be liable for willful or
negligent acts done by him which
are contrary to law, morals, public
policy and good customs even if
he acted under orders or
instructions of his superiors (Sec.
39, Admin Code)
3. However, under the Local Govt
Code, Sec. 24, Local governments
and their officials are not exempt
from liability for death or injury to
persons or damage to property
Statutory Liability
1. Art. 27, Civil Code: Any person
suffering moral or material loss
because a public officer refuses or
neglects, without just cause, to
perform his official duty, may file
an action for damages and other
relief against the public officer. This
is without prejudice to
administrative disciplinary action
against the officer
2. Art. 32, Civil Code: Liability of
public officer for violation of
constitutional rights of individuals
3. Art. 34, Civil Code: Liability of peace
officers who fail to respond or give
assistance to persons in danger of
injury to life or property [Note: The
municipal corporation is subsidiarily
liable]
4. Sec. 38(2) Chapter 9, Book I
Admin Code: Any public officer
who, without just cause, neglects
to perform a duty within a period
fixed by law or regulation, or within
a reasonable period if none is
fixed, shall be liable for damages to
the private party concerned
without prejudice to such other
Threefold Liability Rule.
The wrongful acts or omissions of a public
officer may give rise to civil, criminal and
administrative liability. An action can proceed
independently of the others. Dismissal or relief
from the criminal action/liability does not carry
with it relief from administrative liability
When a Public Officer if Subject to Civil
Liability
The following must concur:
- injury to the individual must be
established
- the public officer must have violated a
right or duty owed to the individual
claiming damages
- the officer must have maliciously and
in bad faith acted outside the scope of
his / her authority (ultra vires)
Even mistakes committed by such public
officer are not actionable as long as it is
not shown that they were motivated by
malice or gross negligence amounting to
bad faith.
Phil. Racing Club v. Bonifacio
In this case, the members of the
Commission on Races declared a horse
race cancelled due to a faulty start, but
only after holders of the winning tickets
were able to claim their prizes. Because of
such declaration, the Philippine Racing Club
also made a refund to the holders of the
losing tickets. A suit was filed against the
Commission, charging them with civil
liability.
The Court found the
Commissioners acted outside the scope of
their authority as they only had the power
to supervise, and not control, the conduct
of races. However, they were absolved
from liability because they acted in their
official capacity in the honest belief that
they had such power.
The Court opined that in order that
acts may be done within the scope of
official authority, it is not necessary that
they be prescribed by statute, or that they
be specifically directed or requested by a
superior officer. It is sufficient if they are
done by an officer in relation to matters
committed by law to his control or
supervision, or that they have more or less
connection to the department under whose
authority the officer is acting.
Kinds of Liability of Ministerial Officers
260
Nonfeasance : neglect or refusal, without
sufficient excuse, to perform an act which
it was the officers legal duty to the
individual to perform
Misfeasance : failure to use, in the
performance of a duty owing to an
individual, that degree of care, skill and
diligence
Malfeasance : the doing, either through
ignorance, inattention or malice, of that
which the officer has no legal right to do at
all
It is the general rule that good faith
and absence of malice constitute no
defense in an action to hold a
ministerial officer liable for damages
caused by nonfeasances or
misfeasances. However, good faith or
honest mistake may be shown in
mitigation of damages.
Liability of Superior Officer for Acts of
Subordinate
GENERAL RULE: Public officers are not
civilly liable to 3rd persons for the wrongful
acts, omissions of duty, negligence or
misfeasance of their subordinates, unless
he has actually authorized, by written
order, the specific act or misconduct
complained of. (Sec 38(3), Chap 9, Book I,
Admin Code) Thus, those in the chain of
command should not be subject to suit on
any theory of vicarious responsibility.
- Exceptions:
! Where, being charged with the
duty of employing or retaining his
subordinates, he negligently or
willfully employs or retains unfit or
improper persons;
! Where, being charged with the
duty to see that they are appointed
or qualified in a proper name, he
negligently or willfully fails to
require them the due conformity to
the prescribed regulations;
! Where he so carelessly or
negligently oversees, conducts or
carries on the business of his
officer as to furnish the opportunity
for the default;
! Where he has directed, authorized
or cooperated in the wrong;
! Where liability is expressly
provided in the statute.
Liability of Subordinates
A subordinate who acts in good faith under
lawful orders of a superior officer is not
personally liable in an action for damages.
He shall be civilly liable for willful or
negligent acts done by him which are
contrary to law, morals, public policy or
good customs, even if he acted under
orders of his superior.
Liability on Contracts
The public officer shall be personally liable
on contracts he enters into if he acted
without or exceeded his authority.
Liability for Tortuous Acts
Public officers are not immune from suit for
their own tortuous conduct, even where
such conduct is committed in the course of
their employment.
The public officer shall be personally liable
if he goes beyond the scope of his
authority, or exceeds the powers conferred
upon him by law. This is because
unauthorized acts of government officials
are not acts of State, and so the public
officer may be held personally liable.
(Shauf v CA; Wylie v Rarang)
8. Criminal Liability
The mere fact that an officer is acting in an
official capacity will not relieve him from
criminal liability.
The mere expiration of the term of office of
the public official will not prevent the
prosecution and punishment for a
misdemeanor committed in office; nor
does the re-election of a public official
extinguish the criminal liability incurred by
him during his previous term of office.
IX. ADMINISTRATIVE DISCIPLINE
A. Over Presidential Appointees
1. Disciplinary Authority Lies with the
Appointing Authority
Sec. 47(1), Book V of EO 292 which provides
that "a complaint may be filed directly with the
CSC by a private citizen against a government
official or employee in which case it may hear
and decide the case must be read together
with Sec. 48 which is entitled "Procedure in
Administrative Cases Against Non-Presidential
Appointees. The very subject of Sec. 48
implicitly limits the scope of the CSCs
jurisdiction in administrative cases to non-
presidential appointees and makes patent the
conclusion that the disciplinary authority over
261
presidential appointees lies elsewhere - the
President as appointing power himself (Olonan
v. CSC).
2. Power to Appoint Implies the Power to
Remove; Exceptions
Justices of the Supreme Court (by
impeachment)
Members of Constitutional Commissions
(by impeachment)
Ombudsman (by impeachment)
Judges of inferior courts (disciplinary or
removal power vested in the Supreme
Court)
Bonifacio Sans Maceda v. Vasquez
A judge who falsifies his Certificate
of Service is administratively liable to the
SC for serious misconduct and inefficiency
under Sec. 1, Rule 140 of the Rules of
Court and criminally liable to the State
under the Revised Penal Code for his
felonious act. Where a criminal complaint
against a judge or other employee arises
from their administrative duties, the
Ombudsman must defer action on said
complaint and refer the same to the SC for
determination whether said judge or court
employee had acted within the scope of
their administrative duties. Thus, the
Ombudsman should first refer the matter
to the SC for determination of whether the
certificates reflected the true status of his
pending case load, as the SC had the
necessary records to make such a
determination. Art. VIII, Sec. 6 of the
Constitution exclusively vests in the SC
administrative supervision over all courts
and court personnel.
Dolalas v. Ombudsman-Mindanao
Citing the Maceda case, the SC
power of administrative supervision over
judges and court personnel is exclusive.
Investigation by the Ombudsman violates
the specific constitutional mandate of the
SC and undermines the independence of
the judiciary.
B. Over Non-Presidential Appointees
1. Grounds
Sec. 46(a), Book V of EO 292: "No officer
or employee in the Civil Service shall be
suspended or dismissed except for cause
as provided by law and after due process.
The grounds constituting just cause are
enumerated in Sec. 46(b).
2. Jurisdiction
Original complaints may be filed: (a)
directly with the CSC or (b) with the
Secretaries and heads of agencies and
instrumentalities, provinces, cities and
municipalities for officers and employees
under their jurisdiction.
Decisions of Secretaries and heads of
agencies and instrumentalities, provinces,
cities and municipalities shall be final in
case the penalty imposed is suspension for
not more than 30 days or fine in an
amount not exceeding 30 days salary.
In case the decision rendered by a bureau
or office head is appealable to the
Commission, the same may be initially
appealed to the department and finally to
the Commission and pending appeal, the
same shall be executory except when the
penalty is removal, in which case the same
shall be executory only after confirmation
by the Secretary concerned.
- Decisions imposing the penalty of
suspension for more than 30 days or
fine in an amount exceeding 30 days
salary, demotion in rank or salary or
transfer, removal or dismissal from
office shall be appealable to the CSC.
3. Procedure in Administrative Cases
Against Non-Presidential Appointees
Administrative proceedings may be
commenced against a subordinate officer
or employee by the Secretary or head of
office of equivalent rank, or head of local
government, or chiefs of agencies, or
regional directors, or upon sworn written
complaint of any other person.
For complaints filed by any other person
- Complainant shall submit sworn
statements covering his testimony and
those of his witnesses together with his
documentary evidence.
- If based on such papers a prima facie
case is found not to exist, the
disciplining authority shall dismiss the
case. Otherwise, he shall notify the
respondent in writing of the charges
against the latter.
- Respondent shall be allowed not less
than seventy-two hours after receipt of
the complaint to answer the charges in
writing under oath, together with
supporting sworn statements and
documents. He shall also indicate
262
whether or not he elects a formal
investigation if his answer is not
considered satisfactory.
- If the answer is found satisfactory, the
disciplining authority shall dismiss the
case.
- Although a respondent does not
request a formal investigation, one
shall nevertheless be conducted when
from the allegations of the complaint
and the answer of the respondent,
including the supporting documents,
the merits of the case cannot be
decided judiciously without conducting
such an investigation.
- The decision shall be rendered by the
disciplining authority within thirty days
from the termination of the
investigation or submission of the
report of the investigator, which report
shall be submitted within fifteen days
from the conclusion of the
investigation.
- Either party may avail himself of the
services of counsel and may require
the attendance of witnesses and the
production of documentary evidence in
his favor through the compulsory
process of subpoena or subpoena
duces tecum.
4. Appeals and Petition for
Reconsideration
Within 15 days from receipt of the decision
unless a petition for reconsideration is
seasonably filed, which petition shall be
decided within 15 days.
A petition for reconsideration shall be
based only on any of the following
grounds:
- new evidence has been discovered
which materially affects the decision
rendered;
- the decision is not supported by the
evidence on record; or
- error of law or irregularities have been
committed which are prejudicial to the
interests of the respondent.
Only one petition for reconsideration shall
be allowed.
Mendez v. Civil Service Commission
The remedy of appeal in civil
service cases may be availed of only in a
case where respondent is found guilty of
the charges against him. But when the
respondent is exonerated of said charges,
as in this case, there is no occasion for
appeal. PD 807 shows that it does not
contemplate a review of decisions
exonerating officers or employees from
administrative charges. "Party adversely
affected by the decision in Section 39 of
the Civil Service Law refers to the
government employee against whom case
was filed.
5. Summary Proceedings
No formal investigation is necessary and
the respondent may be immediately
removed or dismissed if any of the
following circumstances is present:
- When the charge is serious and the
evidence if guilt is strong;
- When the respondent is a recidivist or
has been repeatedly charged and there
is reasonable ground to believe that he
is guilty of the present charge; and
- When the respondent is notoriously
undesirable.
6. Preventive Suspension
The proper disciplining authority may
preventively suspend any subordinate
officer or employee under his authority
pending an investigation, if the charge
against such officer or employee involves:
- dishonesty; or
- oppression or grave misconduct; or
- neglect in the performance of duty; or
- if there are reasons to believe that the
respondent is guilty of charges which
would warrant his removal from the
service.
Maximum period for preventive suspension
90 days for national officials
60 days for local appointive and
elective officials, except if the case is
filed in the Ombudsman, the latter may
impose a preventive suspension for a
period of 6 months.
When the administrative case against the
officer or employee under preventive
suspension is not finally decided by the
disciplining authority within the period of
ninety (90) days after the date of
suspension of the respondent who is not a
presidential appointee, the respondent
shall be automatically reinstated in the
service.
7. Penalty
263
In meting out punishment, the same
penalties shall be imposed for similar
offenses and only one penalty shall be
imposed in each case.
The disciplining authority may impose the
penalty of removal from the service,
demotion in rank, suspension for not more
than one year without pay, fine in an
amount not exceeding six months salary,
or reprimand. (Sec. 46(d), Book V, EO 292)
If the respondent is found guilty of two or
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. (Sec. 17 of the
Implementing Civil Service Rules and
Regulations)
A reprimand whether given by the Civil
Service Commission or the head of
department or agency shall be considered
a penalty. However, a warning or an
admonition shall not be considered a
penalty. (Sec. 15 of the Implementing Civil
Service Rules and Regulations)
- Reprimand is a penalty (Tobias v.
Veloso).
A warning is an act or fact of putting one
on his guard; an admonition is a gentle or
friendly reproof or a mild rebuke; while a
reprimand is a formal and public censure
or a severe reproof.
Removal of Administrative Penalties or
Disabilities
- In meritorious cases and upon
recommendation of the CSC, the
President may commute or remove
administrative penalties or disabilities
imposed upon officers or employees in
disciplinary cases, subject to such
terms and conditions as he may
impose in the interest of the service.
C. Over Elective Officials
1. Impeachment
Procedure
- A verified complaint may be filed by
any member of the House of
Representatives or by any citizen upon
a resolution of endorsement by any
member thereof.
- Complaint shall be included in the
Order of Business within 10 sessions
days and referred to the proper
Committee within 3 session days
thereafter.
- The Committee, after hearing, and by
a majority vote of all its members,
shall submit its report to the House
within 60 session days from such
referral, together with the
corresponding resolutions. The
resolution shall be calendared for
consideration of the House within 10
session days from receipt thereof.
- A vote of at least 1/3 of all the
members of the House shall be
necessary either to affirm a favorable
resolution with the Articles of
Impeachment of the Committee, or
override its contrary resolution.
- In case the verified complaint or
resolution of impeachment is filed by at
least 1/3 of all the members of the
House, the same shall constitute the
Articles of Impeachment, and trial by
the Senate shall forthwith proceed.
- The Senate shall have the sole power
to try and decide all cases of
impeachment. When sitting for that
purpose, the Senators shall be on oath
or affirmation. When the President of
the Philippines is on trial, the Chief
Justice of the Supreme Court shall
preside, but shall not vote. No person
shall be convicted without the
concurrence of 2/3 of all the members
of the Senate.
Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold office under the
Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial and
punishment according to law.
No impeachment proceedings shall be
initiated against the same official more
than once within a period of one year.
Elective Official
against whom
Administrative
Complaint is Filed
Where to File
Complaint
Provincial or city
official
Office of the
President
Municipal official Sangguniang
Panlalawigan
Barangay official Sangguniang
Panlungsod or
Sangguniang Bayan
264
2. Local Elective Officials (Sec. 60-68,
Local Government Code)
Grounds for Disciplinary Actions
Disloyalty to the Republic of the
Philippines
Culpable violation of the Constitution
Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction
of duty
Commission of any offense involving
moral turpitude or an offense
punishable by at least prision mayor
Abuse of authority
Unauthorized absence for 15
consecutive days, except in the case of
members of the sangguniang
panlalawigan, sangguniang
panlungsod, sangguniang bayan, and
sangguniang barangay
Application for, or acquisition of,
foreign citizenship or residence or the
status of an immigrant of another
country
Such other grounds as may be
provided in this Code and other laws.
Procedure
(1) Verified Complaint
(2) Answer: Within 7 days after the
administrative complaint is filed, the
Office of the President or the
sanggunian concerned, as the case
may be, shall require the respondent
to submit his verified answer within
15 days from receipt thereof
(3) Investigation: Commenced within 10
days after receipt of such answer of
the respondent. It shall be
terminated within 90 days from the
start thereof. No investigation shall
be held within 90 days immediately
prior to any local election, and no
preventive suspension shall be
imposed within the said period.
(4) Decision: Within 30 days after the
end of the investigation, the Office of
the President or the sanggunian
concerned shall render a decision in
writing stating clearly and distinctly
the facts and the reasons for such
decision.
Preventive Suspension
May be imposed at any time after the
issues are joined, when the evidence of
guilt is strong, and given the gravity of
the offense, there is great probability
that the continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the records and
other evidence.
Upon expiration of the preventive
suspension, the suspended elective
official shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings against
him, which shall be terminated within
120 days from the time he was
formally notified of the case against
him.
No preventive suspension shall be
imposed within 90 days immediately
prior to any local election. If preventive
suspension has been imposed prior to
the 90-day period immediately
preceding local election, it shall be
deemed automatically lifted upon the
start of the aforesaid period.
Administrative Appeal: Within 30 days from
receipt of the decision, appeal to:
sanggunian panlalawigan, in case of
decisions of the sangguniang panlungsod
of component cities; and sangguniang
bayan
Office of the President, in the case of
decisions of the sangguniang panlalawigan,
the sangguniang panlungsod of highly
urbanized cities, the sangguniang
panglungsod of independent component
cities.
X. TERMINATION OF OFFICIAL
RELATIONS
A. Modes of Termination

1. Expiration of Term or Tenure of Office
End of a fixed term
End of Pleasure where one holds office
at pleasure of appointing authority
Loss of confidence in primarily
confidential employment
2. Reaching the age limit; Retirement
3. Bona fide abolition of office
4. Abandonment of office
5. Acceptance of an incompatible office
6. Resignation
7. Removal for cause
8. Temporary appointments termination
265
9. Recall
10. Impeachment
11. Prescription of right to office
12. Death
13. Conviction of crime where disqualification
is an accessory penalty
14. Filing of certificate of candidacy
15. Performance of act or accomplishment of
purpose for which the office was created
16. Failure to assume elective office within six
months from proclamation
B. Expiration of Term or Tenure of Office
1. End of Fixed Term
Upon the expiration of the officers term,
unless he is authorized by law to hold over,
his rights, duties and authority as a public
officer must be ipso facto terminated.
2. End of pleasure where one holds office
at the pleasure of the appointing authority

President can validly terminate tenure of
Vice Mayor of Roxas City as the office was
created at the pleasure of the President.
What is involved here is not the question of
removal, or whether legal cause should
precede or not that of removal. What is
involved here is the creation of an office
and the tenure of such office, which has
been made expressly dependent upon the
pleasure of the President (Alba v.
Evangelista).
Fernandez v Ledesma
The Charter of Basilan City
provides that the President shall appoint
and may remove at his discretion any of
the citys officers, including its Chief of
Police, with the exception of the municipal
judge, who may be removed only
according to law. The legislative intent is to
make continuance in office dependent upon
the pleasure of the President. Congress has
the power to vest such power of
appointment. Further, "A public office is the
right for a given period, either fixed by law
or enduring at the pleasure of the creating
power. Alba v. Evangelista states that the
replacement is not removal, but an
expiration of tenure, which is an ordinary
mode of terminating official relations. What
is involved is not removal, or whether legal
cause should precede such removal, but
the creation of an office and the tenure of
such office, which has been made
expressly dependent upon the pleasure of
the President.
3. Loss of Confidence in Primarily
Confidential Employment
Official and employees holding primarily
confidential positions continue only for so
long as confidence in them endures. The
termination of their official relation can be
justified on the ground of loss of
confidence because in that case, their
cessation from office involves no removal
but merely the expiration of the term of
office (Hernandez v. Villegas).
C. Reaching the Age Limit; Retirement
Conditions for entitlement to retirement
benefits (R.A. No. 8291)
he has rendered at least fifteen (15)
years of service;
he is at least sixty (60) years of age at
the time of retirement; and
he is not receiving a monthly pension
benefit from permanent total disability.
Compulsory Retirement
Unless the service is extended by
appropriate authorities, retirement
shall be compulsory for an
employee at least 65 years of age
with at least 15 years of service;
Provided that if he has less than 15
years of service, he may be
allowed to continue in the service
in accordance with existing civil
service rules and regulations.
NOTE: different in Nachura Reviewer:
Compulsory Retirement Age is 70 yrs for
the members of the Judiciary and 65 yrs
for other government officers and
employees (Under New GSIS Charter)
Beronilla v GSIS
The compulsory retirement of
government officials and employees upon
reaching the age of 65 years is founded on
public policy which aims by it to maintain
efficiency in the government service and,
at the same time, give to the retiring
public servants the opportunity to enjoy
during the remainder of their lives the
recompenses for their long service and
devotion to the government, in the form of
a comparatively easier life, freed from the
rigors, discipline and the exacting demands
that the nature of their work and their
266
relations with their superiors as well as the
public would impose on them.
D. Bona Fide Abolition of Office
As a general rule, absent some
Constitutional prohibition, Congress may
abolish any office it creates without
infringing upon the rights of the officer or
employee affected.
To consider an office abolished, there must
have been an intention to do away with it
wholly and permanently.
Termination by virtue of the abolition of the
office is to be distinguished from removal.
There can be no tenure to a non-existent
office. After the abolition, there is in law no
occupant. In case of removal, there is an
office with an occupant who would thereby
lose his position. It is in that sense that
from the standpoint of strict law, the
question of any impairment of security of
tenure when there is an abolition of office
does not arise. The right itself disappeared
with the abolished office as an accessory
following the principal.
Busacay v. Buenaventura
Busacay was laid off as toll
collector when the bridge was destroyed.
However, the bridge was later
reconstructed and opened to the public
with a new collector being appointed.
Busacay was ordered reinstated by the SC.
To consider an office abolished, there must
have been an intention to do away with it
wholly and permanently. In the case at bar,
there was never any thought of not
rebuilding the bridge. The collapse of the
bridge did not work to destroy but only to
suspend the position of toll collector
thereon, and upon its reconstruction and
re-opening, the collectors right to the
position was similarly and automatically
restored.
Manalang v. Quitoriano
The National Employment Service
was established by R.A. No. 761 in lieu of
the Placement Bureau. Quitoriano was
appointed as NES Commissioner in spite of
the recommendation of the Labor secretary
to appoint Manalang who was the
incumbent Director of the Placement
Bureau. SC held that appoint of Quitoriano
was valid. A removal implies that the office
still exists. R.A. No. 761, creating NES,
expressly abolished the Placement Bureau
and, by implication, the office of the
Director of the Placement Bureau. Had
Congress intended the NES to be a mere
enlargement of the Placement Bureau, it
would have directed the retention, not the
transfer, of qualified personnel to the NES.
Manalang has never been NES
Commissioner and thus could not have
been removed therefrom.
Abolition Must Be in Good Faith
- The abolition of an office does not
amount to an illegal removal or
separation of its incumbent is the
principle that, in order to be valid, the
abolition must be made in good faith,
not for personal or political reasons,
and not implemented in violation of
law.
-
Briones v. Osmea
Briones and Rosagaran were
employees in the Office of the City Mayor
since 1937 and 1940, respectively, In
1956, the City created 35 new positions
and abolished 32, of which the positions of
Briones and Rosagaran were included.
Consequently, the two were terminated. SC
held that the termination was not valid.
While abolition does not imply removal of
the incumbent, this rule is true only where
the abolition is made in good faith. In other
words, the right to abolish cannot be used
to discharge employees in violation of the
Civil Service law nor can it be exercised for
personal or political reasons.
Facundo v. Pabalan
There is no law which expressly
authorizes a municipal council to
abolish the positions it has created.
However, the rule is well-settled that
the power to create an office includes
the power to abolish it, unless there
are constitutional or statutory rules
providing otherwise. But the office
must be abolished in good faith.
Cruz v. Primicias
As well settled as the rule that
the abolition of an office does not
amount to an illegal removal of its
incumbent is the principle that, in
order to be valid, the abolition must be
made in good faith. Where the
267
abolition is made in bad faith, for
political or personal reasons, or in
order to circumvent the constitutional
security of tenure of civil service
employees, it is null and void. In the
case at bar, while 22 positions were
abolished, 28 new positions with higher
salaries were simultaneously created.
No charge of inefficiency is lodged
against petitioners. In truth and in fact,
what respondents sought to achieve
was to supplant civil service eligibles
with men of their choice, whose tenure
would be totally dependent upon their
pleasure and discretion.
E. Reorganization
This occurs where there is an alteration of
the existing structure of government
offices or units therein, including the lines
of control, authority and responsibility
between them to promote greater
efficiency, to remove redundancy of
functions, or to affect economy and make
it more responsive to the needs of their
public clientele. It may result in the loss of
ones position through removal or abolition
of office.
Reorganization of the government may be
required by law independently of specific
constitutional authorization.
But in order to be valid, it must also be
done in good faith.
- A reorganization is carried out in good
faith if it is for the purpose of economy
or to make the bureaucracy more
efficient. Good faith, as a component of
reorganization under a constitutional
regime, is judged from the facts of
each case. In the case at bar, there
was lack of good faith (Dario v. Mison).
F. Abandonment of Office
A public office may become vacant ipso
facto by abandonment and non-user. When
an office is once abandoned, the former
incumbent cannot legally repossess it even
by forcible re-occupancy.
Abandonment must be total and absolute,
and must be under such circumstances as
clearly to indicate an absolute
relinquishment thereof.
The officer should manifest a clear
intention to abandon the office and its
duties.
Abandonment by reason of acceptance of
another office, in order to be effective and
binding, must spring from and be
accompanied by deliberation and freedom
of choice, either to keep the old office or
renounce it for another.
Temporary absence is not sufficient.
Summers v. Ozaeta
Summers, a cadastral judge,
assumed office as CFI judge due to an ad
interim appointment. However, the ad
interim appointment was disapproved and
Summers now seeks to be reappointed as
cadastral judge. SC held that Summers
voluntary acceptance of the position of CFI
judge amounted to a waiver of his right to
hold the position of cadastral judge during
the term fixed and guaranteed by the
Constitution. He 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 judge-at-large. The
situation is one wherein he cannot legally
hold two offices of similar category at the
same time.
G. Acceptance of an Incompatible Office
He who, while occupying one office,
accepts another office incompatible with
the first, ipso facto absolutely vacates the
first office. That the second office is inferior
to the first does not affect the rule. And
even though the title to the second office
fails as where election is void, the rule is
still the same, nor can the officer then
regain the possession of his former office
to which another has been appointed or
elected.
If the law or Constitution as an expression
of public policy forbids the acceptance by a
public officer of any other office other than
that which he holds, it is not a case of
incompatibility but of legal prohibition.
Incompatibility of offices exists where:
There is conflict in such duties and
functions so that the performance of
the duties of one interferes with the
performance of the duties of another,
as to render it improper for
considerations of public policy for one
person to retain both.
One is subordinate to the other and is
subject in some degree to its
supervisory powers for in such
situation where both are held by the
same person, the design that one acts
268
as a check on the other would be
frustrated.
The Constitution or the law itself, for
reasons of public policy, declares the
incompatibility even though there is no
inconsistency in the nature and
functions of the offices.
Exceptions to the Rule on Holding of
Incompatible Offices
Where the officer cannot vacate the
first office by his own act, upon the
principle that he will not be permitted
to thus do indirectly what he could not
do directly, as where the law requires
the approval of the provincial board
before a municipal official can resign.
First office is held under a different
government from that which conferred
the second.
Officer is expressly authorized by law
to accept another office.
Second office is temporary.
H. Resignation
A resignation of a public officer need not
be in any particular form, unless some
form is prescribed by statute. Ordinarily, it
may either be in writing or by parol.
There must be an intention to relinquish a
part of the term, accompanied by the act
of relinquishment.
The right of a public officer to resign is well
recognized, even where it is provided than
an officer may hold over until election and
qualification of a successor.
Conflicting Views:
According to some authorities, no
acceptance is necessary to render a
resignation effective, especially when
the resignation is unconditional and
purports to take effect immediately.
Many other cases take the view that to
be effective, the resignation must be
accepted by competent authority.
Without acceptance, the resignation is
nothing and the officer remains in
office. (63 Am Jur 2d., sec. 163)
Prof. Barlongay: Two elements are
necessary to constitute an effective
acceptance:
(1) intention to relinquish office coupled
with actual relinquishment; and
(2) acceptance of resignation.
A "courtesy resignation cannot properly
be interpreted as resignation in a legal
sense. It just manifests the submission of
a person to the will of the political
authority.
Prof. Barlongay: Courtesy resignation
is not allowed in (1) career positions
and (2) non-career positions with
security of tenure (i.e. local elective
officials).
I. Removal for Cause
1. Protection from Removal without Cause
No officer or employee of the civil service
shall be removed or suspended except for
cause provided by law (Sec. 2(3), Art. IX,
1987 Constitution).
2. Grounds for Removal from Office
For Presidential appointees, Prof. Barlongay
states that there is no specific law
providing for the grounds for their removal.
Determination of grounds is just a matter
of practice and by analogy, the grounds
used for non-presidential appointees are
made applicable.
For civil service officials and employees,
see Sec. 46, Book V, E.O. No. 292 which
provides for at least 30 grounds for
disciplinary action.
For local elective officials, Sec. 60 of the
Local Government Code provides for the
grounds where an elective local official may
be disciplined, suspended or removed from
office.
Misconduct need not be "in office in
case of appointive officers.
Misconduct must be "in office in case
of elective officers.
Misconduct committed during a prior
term, not a ground for dismissal
Ochate v. Ty Deling
The SC held that the facts alleged
in the administrative charge, as
substantiated by the affidavits of the
complainants, do not justify the
administrative proceedings instituted
against the petitioner and his suspension
by the governor. The alleged libel imputed
to the mayor was not such misconduct
even if the term "misconduct in office be
taken in its broadest sense. The radio
broadcast in which the objectionable
utterances were made had nothing to do
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with his official functions and duties as a
mayor.
3. Transfer from One Position to Another
May or May Not Constitute Violation of
Security of Tenure
A transfer is a movement from one position
to another which is of equivalent rank,
level, or salary without break in service
involving the issuance of an appointment.
It shall not be considered disciplinary when
made in the interest of public service, in
which case, the employee concerned shall
be informed of the reasons therefore. If
the employee believes that there is no
justification for the transfer, he may appeal
to the SC.
The transfer may be from one department
or agency to another or from one
organizational unit to another in the same
department or agency; Provided, however
that any movement from the non-career
service to the career service shall not be
considered a transfer.
The intended transfer to Tarlac, if carried
out without the approval of Lacson, would
be equivalent to a removal from his office
in Negros Oriental. The reason is that a
fiscal is appointed for each province and
Lacson could not legally hold and occupy
the two posts of fiscal of Tarlac and Negros
Oriental simultaneously. Therefore, to be a
fiscal of Tarlac must mean his removal
from office in Negros. Since the transfer is
considered a removal, such should be for
cause in order for the other person to
legally occupy the office in Negros. There
was no cause for Lacsons removal. He
therefore remains as fiscal of Negros
(Lacson v. Romero).
J. Termination of Temporary Appointment
The appointment being temporary in
character, the same can be terminated at
pleasure by the appointing power (Quitiquit
v. Villacorta).
One holding an office in a temporary
capacity may be ousted at anytime with or
without cause (Ferrer v. de Leon).
The controlling factor in determining the
character of the appointment is the
appointment itself. Even if a position is
permanent, if the appointment is made
temporary, the appointment is
determinative. What is determinative is not
the nature of the office (permanent or
temporary), but the nature of the
appointment (Hojilla v. Marino).
One appointed to a position of another who
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.
L. Prescription of Right to Office
Any person claiming a right to a position in
the civil service is required to file his
petition for reinstatement within one year,
otherwise he is deemed to have abandoned
his office. Reason is public policy and
convenience, stability in the public service
(Unabia v. City Mayor).
Prof. Barlongay: The one-year period is the
prescriptive period to claim public office
(whether through quo warranto or
otherwise). The one-year period
presupposes judicial action, not
administrative action.
M. Filing of Certificate of Candidacy
Sec. 66 of the Omnibus Election Code: Any
person holding appointive public offices or
positions, including active AFP members, is
considered ipso facto resigned from office
by the mere filing of certificate of
candidacy.
The following provisions have been
REPEALED by Sec. 14 of R.A. 9006 (Fair
Election Act of 2001):
Sec. 67 of B.P. 881 which states that
any elective official, whether national
or local, running for any office OTHER
than one which he is holding in a
permanent capacity, except for
President and Vice President, shall be
considered ipso facto resigned from
office by the mere filing of a certificate
of candidacy.
The first proviso of Sec. 11 of R.A.
8436 which states that "Any elective
official, running for any officer other
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than one which he is holding in a
permanent capacity, except for
President and Vice-President, shall be
considered ipso facto resigned upon
the start of the campaign period."
N. Performance of Act or Accomplishment
of Purpose for which the Office was
Created
Performance of act or accomplishment of
purpose renders office functus officio.
O. Failure to Assume Office
Sec. 11, BP 881 provides: "The office of
any official elected who fails or refuses to
take his oath of office within six months
from his proclamation shall be considered
vacant , unless said failure is for cause or
causes beyond his control.
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