THE LAW ON PUBLIC OFFICERS

What is a public office?

Term "public office" is frequently used to refer to the right, authority and duty, created and conferred
by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign functions of government, to be
exercised by that individual for the benefit of the public. (G.R. No. 116418 March 7, 1995,
FERNANDEZ vs. STO. TOMAS)
What makes an office a public office?
The most important characteristic is the delegation to the individual of some of the sovereign
functions of government, to be exercised by him for the benefit of the public;
Unless the powers conferred are of this nature, the individual is not a public officer. (G. R. No.
155027, February 28, 2006, THE VETERANS FEDERATION OF THE PHILIPPINES
vs. Hon. ANGELO T. REYES)
Elements of a Public Office
Must be created either by a) the Constitution , b) the Legislature, or c) LGUs
Must possess a delegation of a portion of the sovereign power of government
The powers conferred and the duties discharged must be defined, directly or impliedly by law
Independent from any other power
Must have some permanency and continuity
Who is a public officer
Under Art. 203 of the RPC, a public officer is any person who, by direct provision of the law,
popular election or appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform in said Government or in any
of its branches public duties as an employee, agent or subordinate official, of any rank or class.
May the President create a Truth Commission thru a mere Executive Order?
No. The Truth Commission is a public office and not merely an adjunct body of the Office of
the President
the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and corruption committed by
third-level public officers and employees, their co-principals, accomplices and accessories
during the previous administration, and thereafter to submit its finding and recommendations to
the President, Congress and the Ombudsman.
Though it has been described as an independent collegial body, it is essentially an entity
within the Office of the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.
BIRAOGO vs THE PHILIPPINE TRUTH COMMISSION, G.R. No. 192935, December 7,
2010

Attrition Law (RA 9335)
Republic Act No. 9335 was enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC)
The law intends to encourage Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) officials and employees to exceed their revenue targets by providing a system of
rewards.
Is the law valid?yes (read ABAKADA Guro vs Purisima, G.R. No. 166715, August 14,
2008 )
Attrition Law (RA 9335)
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into "bounty hunters and mercenaries" is not only without any factual and legal
basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal one
Public service is its own reward. Nevertheless, public officers may by law be rewarded for
exemplary and exceptional performance.
A system of incentives for exceeding the set expectations of a public office is not anathema to
the concept of public accountability.
In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.
(ABAKADA Guro vs Purisima, G.R. No. 166715, August 14, 2008 )

What are the modes of filling up public offices?
A: Public offices are filled up either by
Appointment
Election
In some instances by contract or by some other modes authorized by law
(PRECLARO, vs. SANDIGANBAYAN, G.R. No. 111091 August 21, 1995
What is Appointment?
It is the selection by the authority vested with the power, of an individual who is to
exercise the functions of a given office

How are appointments classified?
1st. Regular appointment- one made by the President while the Congress is in session, takes effect
only after confirmation by the CA, and once approved, continues until the end of the term of the
appointee
Ad interim appointment- one made by the President while Congress is not in session, takes
effect immediately, but ceases to be valid if disapproved by the CA or upon the next
adjournment by Congress

SAMPLE QUESTION
In December 1988, while Congress was in recess, A was extended an ad interim appointment as
Brigadier General of the Philippine Army
In February 1989, when Congress was in session, B was nominated as Brigadier General of the
Philippine Army
Bs nomination was confirmed on August 5, 1989 while As appointment was confirmed on
September 5, 1989

1. Who is deemed more senior of the two? A or B?
A is senior to B. in accordance with the ruling in Summers vs Ozaeta ,81 Phil 754. , the ad
interim appointment extended to A is permanent and is effective upon his acceptance although it is
subject to confirmation by the Commission on Appointments

2. Suppose Congress adjourned without the Commission on Appointments acting on both
appointments, can A and B retain their original ranks of colonel?
If Congress adjourned without the appointments of A and B having been confirmed by the
Commission on Appointments, A cannot return to his old position.
As held in Summers vs Ozaeta ,81 Phil 754, by accepting an ad interim appointment to a
new position, A waived his right to hold his old position
On the other hand, since B did not assume the new position, he retained his former position.
How are appointments classified?
2nd. Permanent appointments----those extended to persons possessing the requisite
eligibility and are thus protected by the constituitional guarantee of security of tenure

Temporary appointments-----given to persons without the requisite eligibility, revocable at
will and without the necessity of just cause or a valid investigation
What is the nature of an acting appointment to a government office? Does such an
appointment give the appointee the right to claim that the appointment will, in time, ripen into a
permanent one? Explain.
A temporary appointment cannot become a permanent appointment, unless a new appointment
which is permanent is made
This holds true unless the acting appointment was made because of a temporary vacancy
In such a case, the temporary appointee holds office until the assumption of office by the
permanent appointee
Distinguish an appointment in an acting capacity and an ad interim appointment
An appointment in an acting capacity is only temporary (not exceeding 12 months);
while an ad interim appointment is permanent
An ad interim appointment is extended by the President while Congress is not in
session; while appointment in an acting capacity may be made anytime
Question: President Arroyo issued appointments as acting secretaries of various departments.
The appointees took their oath of office and assumed duties as acting secretaries
Petitioner sought to declare unconstitutional the appointments issued by the President
Was President Arroyos appointment of acting secretaries constitutional, even without the
consent of the Commission on Appointments while Congress is in session?
Answer: Yes. The essence of an appointment in an acting capacity is its temporary nature. It is
a stop-gap measure intended to fill an office for a limited time until the appointment of a
permanent occupant to the office
In case of vacancy in the office of a department secretary, the President must necessarily
appoint an alter ego of her choice as acting secretary before the permanent appointee of her
choice could assume office
The office of a department secretary may become vacant while Congress in session. Since a
department secretary is the alter ego of the President, the acting appointee to the office must
necessarily have the Presidents confidence
Note: Acting appointments cannot exceed one year


May an appointment be the subject of a judicial review?
Appointment is generally a political question. So long as the appointee satisfies the
minimum requirements prescribed by law for the position, the appointment may not be subject
to judicial review
Question
Ara Mina and Bella Flores are both civil servants of equal rank as Secretary I at the
Office of the Mayor. Ara Mina is beautiful, sexy and has a very pleasant personality---but she is
incompetent and lazy. Bella Flores on the other hand is intelligent , diligent, and has a Masters
degree from Harvard Universitybut she is old and ugly
The position of Secretary II became vacant and both Ara mina and Bella Flores are
qualified. Mayor Ricky appointed Ara Mina to the position
Can Bella Flores seek relief from the Civil Service Commission or the Courts to nullify
the appointment on the ground that she is better qualified?
Answer: No. Bella Flores cannot nullify the appointment on the ground that she is
better qualified.
The head of an agency who is the appointing power is the one most knowledgeable to
decide who can best perform the functions of the office.
Appointment is an essentially discretionary power and must be performed by the office
vested with such power according to his best lights, the only condition being that the appointee
should possess the qualifications required by law.
If he does, then the appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. Indeed, this is a prerogative of the appointing
authority which he alone can decide
(APURILLO, vs. CIVIL SERVICE COMMISSION ,G.R. No. 105112 October 13,
1993)

What is the concept of hold-over?
In the absence of an express or implied constitutional or statutory provision to the contrary, an
officer is entitled to hold office until his successor is elected or appointed and has qualified
(LECAROZ vs. SANDIGANBAYAN, G.R. No. 130872. March 25, 1999

PROHIBITIONS
Q: State the prohibitions imposed under the 1987 constitution against the holding of 2 or
more positions
Section 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their office.
ARTICLE VII EXECUTIVE DEPARTMENT
Q: Can the Acting Secretary of Justice concurrently serve as Acting Solicitor General?
No. That is a lear violation of the constituional prohibition under Section 13,
Art VII of the 1987Constitution
The prohibition against dual or multiple offices being held by one official must be
construed as to apply to all appointments or designations, whether permanent or
temporary, for it is without question that the avowed objective of Section 13, is to
prevent the concentration of powers in the Executive Department
FUNA, vs AGRA , G.R. No. 191644, FEBRUARY 19, 2013


Q: State the exceptions to the ban against the holding of 2 or more positions
The only two exceptions against the holding of multiple offices are:
(1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice
President to become a member of the Cabinet; and
(2) posts occupied by Executive officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and as required by the primary functions of
the officials offices. (FUNA, vs AGRA , G.R. No. 191644, FEBRUARY 19, 2013)


Q: Undersecretaries of various departments are sitting as ex-officio members of the PEZA
Board. Can they be given per diem?
No. A public official holding an ex officio position as provided by law has no right to receive
additional compensation for the ex officio position.
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position.
The reason is that these services are already paid for and covered by the compensation attached
to his principal office.
(PHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA) vs COMMISSION ON AUDIT,
G.R. No. 189767, July 3, 2012)

What are the other prohibitions imposed on public officers?
1. Prohibition against solicitation of gifts (sec 7 d , RA no. 6713
2. Prohibition against partisan political activities (sec 2 (4) art IX (B) , Constitution
3. Prohibition against engaging in strike (sss employees assn. vs CA gr 85279, July
28, 1989
4. Restriction against engaging in the practice of law (sec 90, RA 7160
5. Prohibition against practice of other professions (sec 90, RA 7160
6. Restriction against engaging in private business (Abeto vs Garces AM No P-88-
269, dec 29, 1995
7. Restriction against accepting certain employment (sec 7 (b) RA No. 6713

SAMPE QUESTION
X was elected provincial governor for a term of 3 years
He was subsequently appointed by the President of the Philippines serving at her pleasure, as
concurrent Presidential Assistant for Political Affairs in the Office of the President, without
additional compensation
Is Xs appointment valid?
Answer
The appointment of X is not valid, because the position of Presidential Assistant for Political
Affairs is a public office. Article IX-B Section 7 of the Constituition provides that no elective
official shall be eligble for appntment or designation in any capacity to any public office or
position during his tenure
As held in Flores vs Drilon, G.R. No. 104732 June 22, 1993, since an elective official is
ineligible for an appointive position, his appointment is not valid


Funa vs Executive Secretary 2010

Elena Bautista was DOTC Usec. She was designated as OIC of MARINA in a temporary
capacity. Is this valid?
No. The Constituional ban on dual or multiple positions refers to the holding of the office and
not to the nature of the appointment or designation, words which were not even found in
Section 13, Article VII nor in section 7, Article IX-B
To hold an office means to possess or occupy the same, or to be in possession and
administration, which implies nothing less than the actual discharge of the functions and
duties of the office.
Funa vs Executive Secretary, G.R. No. 184740, February 11, 2010

Q: What is meant by partisan political activity?

A: It is an act designed to promote the election or defeat of a particular candidate or candidates
to a public office. It is also known as electioneering (sec 79, omnibus election code)

Q: can appointive officials engage in partisan political activities?

No. Officers or employees in the civil service including members of the Armed Forces, cannot
engage in such activity except to vote. They shall not use their official authority or influence to
coerce the political activity of any person )sec 55, subtitle A, Title I, Book V, 1987,
administrative code)

Q: what kind of public officers may engage in partisan political activities?
A: 1. Those holding political offices, such as the President of the philippines, Vice
Presdient of the Philippines, Executive Secretary/Department Secretaries and other Members of
the Cabinet; All other elective officials at all levels; and those in the personal and confidential
staff of the above officials. However, it shall be unlawful for them to solicit contributions from
their subordinates or subject them to any of the acts involving subordinates prohibited in the
Election Code
2. National, provincial, city and municipal elective officials (Alejo santos vs yatco gr l-
16133, nov 6, 1959

What is the concept of nepotism as a restriction to appointment to public office?
Nepotism is an appointment in the public service extended to persons within third
degree of consanguinity or affinity , by appointing or recommending authority , or of the person
directly exercising supervision over him
EXEMPTIONS ON NEPOTISM
Persons employed in a confidential capacity
Teachers
AFP members
Family member who contracts marriage with someone in the same office or
bureau after his appointment to any position in the office
Appointed in GOCCs which are organized under the corporation law
2008 BAR QUESTION (Q12)
The mayor of san jose city appointed his wife, Amelia, as city treasurer from among 3
employees of the city considered for the said position. Prior to said promotion, Amelia had been an asst
city treasurer for 10 years , that is, even before she married the city mayor. Should the civil service
commission approve the promotional appointment of Amelia?why or why not?
Suggested answer
The civil service commission should not approve the promotional appointment of Amelia
because a mayor is not authorized by law to make such appointment. Under the Local Government
code of 1991, only the Secretary of Finance has the statutory authority to appoint a treasurer from a list
of at least 3 ranking, eligible recommendees of the mayor
Even if, for the sake of argument, that the mayor merely recommended his wife Amelia for
appointment, her promotional appointment would still be invalid because the mayor, as a
recommending authority, is barred by law from recommending his relative within the 4
th
civil degree of
consanguinity or affinity for appointment in the career service of the local government
Midnight Appointment

Section 15. Art VII
Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety.
Section 4 (1) Art VIII
The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof.
GR: Two months immediately before the next presidential elections (2
nd
Monday of march), and up to
the end of his term (June 30) , a President (or Acting President) shall not make appointments
XPN: Temporary appointments, to executive positions, when continued vacancies therein will
prejudice public service (e.g. Postmaster); or endanger public safety (e.g. chief of staff)

May the President appoint a Chief Justice even during the ban?
Yes. The ban under sec 15 art VII of the Constituion does not cover appointments to the SC------Two
months immediately before the next presidential elections and up to the end of his terms---the
President is prohibited to make appointments ONLY to lower courts
Under sections 4(1) and 9 of Art VIII, the President is required to fill vacancies in the courts within the
time frames provided therein unless prohibited by Sec 15 of Art VII
The president may validly appoint the next chief justice to fill in the vacancy in the SC (de castro v
JBC gr 191002, mar 17, 2010

Rights and Liabilities of Public Officers
Q: are public officers liable for injuries sustained by another in the performance of his official
acts done within the scope of his authority?
A: no
Exceptions:
1. Otherwise provided by law
2. Statutory liability under the Civil Code (art 27,32, and 34)(see vinzons-chato vs
fortune gr 141309, june 19, 2007
3. Presence of bad faith, malice or negligence
4. Liability on contracts entered into in excess or without authority
5. Liability on tort if the public officer acted beyond the limits of authority and
there is abd faith (USA vs reyes, gr 79253, mar 1, 1993
SAMPLE QUESTION
In 1986, F, then the officer in charge of Botolan Zambales was accused of having violated the
Anti graft and corrupt practices act before the sandiganbayan. Before he could be arraigned, he was
elected governor of zambales. After his arraignment, he was put under preventive suspension by the
Sandiganbayan for the duration of the trial
1. can F successfully challenge the legality of his preventive suspension on the ground
that the criminal case against him involved acts committed during his term as officer-
in charge and not during his term as governor?
2. Can F validly object to the aforesaid duration of his suspension?

Suggested Answer
1. no, F cannot successfully challenge the legality of his preventive suspension on
the ground that the criminal case against him involved acts committed during his
term as officer-in charge and not during his term as governor because suspension
from office under RA 3019 refers to any office that the respondent is presently
holding and not necessarily to the one which he hold when he committed the
crime with which he is charged(deloso vs sandigandbayan 173 scra 409
2. yes, F can validly object to the duration of the suspension. The imposition of
preventive suspension for an indefinite period of time is unreasonable and
violates the right of the accused to due process
under Section 42 of Presidential Decree No. 807, the Civil Service Decree,the duration
of preventive suspension should be limited to 90 days , equal protection demands that the
duration of preventive suspension under the anti-graft and corrupt practices act be also limited
to 90 days (deloso vs sandigandbayan 173 scra 409
200 BAR QUESTION (Q6)
a provincial governor duly elected to office was charged with disloyalty and suspended
from office pending the outcome of the formal investigation of the charges against him
the secretary of interior and local governments found him guilty as charged and
removed him from office
he filed a petition before the SC questioning his removal. While the case was pending
before the SC, he filed his certificate of candidacy for the position of governor and won, and
was proclaimed governor
he claims his reelection to the position of governor ha rendered the pending
administrative case against him moot and academic. Is he correct? Explain
suggested answer
yes, the re-election of the governor has rendered the pending administrative case against
him moot. As explained in Aguinaldo vs santos, 212 scra 768 (1992), a local elective official
cannot be removed from office for misconduct committed during his previous term, because
each term is separate and the people by re-electing him are deemed to have forgiven his
misconduct
2002 BAR QUESTION Q2

Simeon Valera was formerly a Provincial Governor who ran and won as a Member of the House of
Representatives for the Second Congressional District of Iloilo. For violation of Section 3 of the Anti-
Graft and Corrupt Practices Act. (R.A. No. 3019), as amended, allegedly committed when he was still a
Provincial Governor, a criminal complaint was filed against him before the Office of the Ombudsman
for which upon a finding of probable cause, a criminal case was filed with the Sandiganbayan. During
the course of trial, the Sandiganbayan issued an order of preventive suspension for 90 days against him.

Representative Valera questioned the validity of the Sandiganbayan order on the ground that, under
Article VI, Section 16(3) of the Constitution, he can be suspended only by the House of
Representatives and that the criminal case against him did not arise from his actuations as a member of
the House of Representatives.

Is Representative Valeras contention correct? Why?
Suggested Answer:
The contention of representative Valera is not correct. As held in Santiago vs sandiganbayan, 356 scra
636, the suspension contemplated in art VI section 16 (3) of the constituion is a punishment that is
imposed by the senate or house of representatives upon an erring member, it is distinct from the
suspension under sec 13 of the anti-graft and corrupt practices act which is not a penalty but a
preventive measure. Since sec 13 of the anti-graft and corrupt practices act does not state that the public
officer must be suspended only in the office where he is alleged to have committed the acts which he
has been charged, it applies to any office which he may be holding