Law on Public Officers 2) It is a responsibility and not a right. ( Morfe v. Mutuc, 1968) 1968 )
A. General Principles I.
Concept and Application
Elements i.
Public Office
Used to refer to the right, authority and duty, created and conferred by law, by which, for a given period 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 the benefit of the public. [Fernandez v. Sto. Tomas (1995)] A public office is is the right, authority authority and duty created and conferred by law, by which for a given period, 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. (Mechem)
ii.
iii.
Powers conferred and duties imposed must be defined, directly or impliedly;
iv.
Duties must be performed performed independently independently and without the control of a superior power other than the law, UNLESS for duties of an inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the the general control of a superior office or body; Defined as unhindered performance. performance.
A public office is is created to effect the 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 A Am Jur 2d 667)
Possess a delegation of a portion portion of the sovereign powers of government, to be exercised for the benefit of the public; There are certain GOCCs which, though created by law, are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature), and thus may not be considered as a Public Office.
Purpose
Must be created either by law or by authority of law; a. the Constitution, b. the Legislature, or c. Municipality or other body through authority conferred by the Legislature;
v.
Must have permanence permanence and continuity continuity Note: The elements of permanence and continuity are dispensable. dispensable. On the dispensability of the element of permanence: permanence: an example is the public office of the Board of Canvassers, yet its duties are only for a limited period of time. On the dispensability of the element of continuance: continuance : Mechem in one case states that the most important characteristics in characterizing a position as a public office is the DELEGATION to the individual of
Nature
1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti) Philippine Constitution, Art. XI Sec. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
some of the sovereign functions of government.
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. Public employment as a position lacks either one or more of the foregoing elements of a public office. (Bernard v. Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9]) created by contract rather than o by force of law
Public Office v. Public Contract 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
GENERAL RULE : A public office, being a mere privilege given by the state, does not vest any rights in the holder holder of the office. This rule applies when the law is clear. EXCEPTION : When the law is vague, the person‟s holding of the office is protected and he should not be deprived of his office.
Public Office is not Property A public office is is not the property of the 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: (1) In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office; (2) In an action for recovery of compensation accruing by virtue of the public office. Cornejo v. Gabriel
Due process is violated only if an office is considered considered property. However, a public office is not property within the constitutional constitutional guaranties of due process. It is a public trust trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right right to an office. Every officer accepts office pursuant to law and holds office as a trust for the people whom he represents.
Abeja v. Tanada
Creation of Public Office Modes
No vested right to public office
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.
by the Constitution Constitution by statute / law
programs.
by a tribunal or body to which the power to create the office has been delegated
slow in responding to issues and problems.
Scope and Extent of Power of legislature
Modification and Abolition
GENERAL RULE: The creation of a public office is primarily a legislative function.
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 offices are created by the Constitution; where the Legislature delegates such power.
EXCEPTIONS: (1) Where the Constitution prohibits such modification / abolition; (2) Where the Constitution gives the people the power to modify or abolish the office;
Delegation of power to create public office
Q: Is Abandonment equivalent to Abolition? A: 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. Except when the public official is constrained to accept because the nonacceptance of the new appointment would affect public interest. (no abandonment) [Zandueta v. De La Costa (1938)]
Q: What is the effect where an office is created pursuant to illegally delegated powers? A: The office would have no existence.
The President„s authority 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. [UST v. Board of Tax Appeals (1953)]
Note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. [Art. VI, sec. 30, 1987 Constitution]
Methods of Organizing Public Offices Method Single-Head
Board System
Composition One head assisted by subordinates.
Efficiency Swifter decision and actions but may sometimes be hastily made. Collegial body Mature in formulating studies and polices and deliberations implementing but may be
Estoppel to deny existence of office Q: When is a public officer estopped from denying that he has occupied a public office? A: When he has acted as a public officer, esp. where he has received public monies by virtue of his office.
II.
Public Officer
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. (See Sec. 2 (14), E.O. 292)
Administrative Code, Sec. 2.(14) The term officer includes any government employee, agent, or body authorized to exercise
governmental power in performing particular acts or functions. Revised Penal Code Art 203. Who are public officers— for the purpose of applying the provisions of this and the preceding titles of this book, 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, shall be deemed to be a public officer.
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);
·
Concession forest guards (Martha Lumber Mill v. Lagradante);
·
Company cashier of a private corporation owned by the government (Tanchoco v. GSIS)
III. Classification of Public Office and Public Officers Creation Public Body Served Department of government to which their functions pertain Nature of Functions Exercise of Judgment or Discretion Legality of Title to office Compensation
Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary
B. Modes of Acquiring Title to Public Office Modes of Commencing Official Relation
May a person be compelled to accept a public office?
1.
GENERAL RULE: NO.
2. Appointment
EXCEPTIONS: 1) When citizens are required, under conditions provided by law, 2) to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); 3) 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 (Art. 234, RPC; Note: the penalty shall be either arresto mayor, or a fine not exceeding P 1,000.00, or both)
Election a. Selection or designation by popular vote.
Designatio n Imposition of additional duties upon existing office
Appointmen t Appointing authority selects an individual who will occupy a certain public office
Extent of Powers
Limited
Comprehensiv e
Security of tenure?
No
Yes
Is prior/1st
…a 2nd designated
…a 2nd appointive
Definition
office abandone d when…
position is assumed? NO
position is assumed? Usually YES
ii. iii.
Political. Appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law.
is constitutionally guaranteed security of tenure (Duration) until lawful termination. Note: Conditional appointments are not permanent.
b. Temporary i. an acting appointment; ii. the temporary appointee NEED NOT be qualified or eligible; iii. (No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY; 1. an “acting” appointment is a temporary appointment and revocable in character. [Marohombsar v. Alonto (1991)] iv. A temporary appointee is like a designated officer ¡V they: occupy a position in an acting capacity and do not enjoy security of tenure. [Sevilla v. CA (1992)]
Vacancy for Validity. For the appointment to be valid, the position must be vacant [Castin v. Quimbo (1983)] The power to appoint is intrinsically an executive act involving the exercise of discretion. [Concepcion v. Paredes (1921)]
The President„s power to appoint under the Constitution should necessarily have a reasonable measure of freedom, latitude, or discretion in choosing appointees. [Cuyegkeng v. Cruz (1960)] 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 of appointment itself. [Flores v. Drilon (1993)]
3. Others: a. Succession by operation of law; b. Direct provision of law, e.g. ex-officio officers
C. Modes and Kinds of Appointment I.
Classification of Appointments a. Permanent The permanent appointee: i.
must be qualified must be eligible
II.
Steps in Appointment Process
For Appointments requiring confirmation Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts.
Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.
For Appointments Not Requiring Confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts. Note: If a person is appointed to the career service of the Civil Service, the Civil Service Commission must bestow attestation.
Designation v. Appointment Definition
Designation Imposition of
Appointment Selection of an
additional duties upon an existing office
individual to occupy a certain public office by one authorized by law to make such selection Comprehensive
Extent of Limited Powers Security of No. Yes. tenure? When Assumption Assumption of deemed of a a 2nd abandonment designated appointive of prior office position is position is not deemed usually deemed abandonment abandonment of the 1st of the first position office.
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.
IV. III.
Presidential Appointees
Who can be nominated and appointed only WITH the Commission on Appointments¡¦ consent? (Art. VII, Sec. 16, 1987 Const.)
Heads of the executive departments; Ambassadors; Other public ministers and consuls; Officers of the armed forces from the rank of colonel or naval captain; Other officers whose appointments are vested in him by the Constitution, 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).
Who can the President appoint WITHOUT CA‟s 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
Presumed. Administrators of public officers, primarily the department heads should be entrusted with plenary, or at least sufficient, discretion. Their position most favorably determines who can best fulfill the functions of a vacated office. There should always be full recognition of the wide scope of a discretionary authority, UNLESS the law speaks in the most mandatory and peremptory tone, considering all the circumstances. [Reyes v. Abeleda (1968)]
Discretionary Act.
Kinds of Presidential Appointments
Discretion of Appointing Official
Appointment is an essentially discretionary power. It must be performed by the officer in whom it is vested, the only condition being that the appointee should possess the qualifications required by law. [Lapinid v. CSC (1991)] Promotion of “next-in-rank” career officer is not Mandatory. The appointing authority should be allowed the choice of men of his confidence, provided they are qualified and eligible. Note: When abused, use Mandamus. Where the palpable excess of o 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 (1961)]
V.
Effectivity of Appointment Q: When does an appointment take effect? o A: Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).
VI.
Effects of a Complete, Final and Irrevocable Appointment
D. Eligibility and Qualification Requirements Eligibility, which is the term usually used in reference to the Civil Service Law, refers to the endowment / requirement / accomplishment that fits one for a public office. Qualification generally refers to the endowment / act which a person must do before he can occupy a public office. Power to Prescribe Qualifications GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office, subject to the following restrictions:
GENERAL RULE : An appointment, once made, is irrevocable and not subject to reconsideration. 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: (1) When the appointment is an absolute nullity (Mitra v. Subido); (2) When there is fraud on the part of the appointee (Mitra v. Subido); (3) Midnight appointments A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process).
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 o appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.
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.
Q: What legislative enactments are tantamount to legislative appointments? A: Extensions of the terms of office of the incumbents; 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) ;
Time of Possession of Qualifications Q: When must the qualifications be possessed? A: Where the time is specified by the Constitution or law: At the time specified. o
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. Eligibility is Presumed IN FAVOR of one who has been elected or appointed to public office. The right to public office should be strictly construed against ineligibility. (De Leon, 26)
Qualifications usually prescribed
a)
President (Sec. 2, Art. VI, Constitution) 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
b) 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 c) 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 d) 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) e) 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 f) COMELEC Comm. (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 (See Cayetano v. Monsod)
g) 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
and employees towards professional growth and foster the career system in the government service (ibid); ·
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);
·
Whenever necessary, the CSC shall provide technical assistance to departments and agencies in the development of their qualification standards. (Sec. 5, Rule IV, Omnibus Rules)
·
Shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules);
Religious Test or Qualification · No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution)
Qualification Standards and Requirements under the Civil Service Law 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) ·
A statement of the minimum qualifications of a position which shall include education, experience, training, civil service eligibility, and physical characteristics and personality traits required by the job. (Sec. 2, Rule IV, Omnibus Rules)
·
With respect to a particular position, such qualification standards shall serve as the basis for the determination by the appointing authority of the degree of qualifications of an officer or employee (ibid);
·
Shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies' personnel work programs (ibid);
Political Qualifications for an Office GENERAL RULE: Political qualifications are not required for public office. Exceptions: (1) Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); (2) Party-list representation; (3) Commission on Appointments; (4) Vacancies in the Sanggunian (Sec. 45, Local Government Code) No Property Qualifications · Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate„s wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. [Maguera v. Borra and Aurea v. COMELEC (1965)] Citizenship Aliens not eligible for public office. The purpose of the citizenship requirement is to ensure that no alien,
·
Shall be administered in such manner as to continually provide incentives to officers
i.e., no person owing allegiance to another nation, shall govern our people and country or a unit of territory thereof. [Frivaldo v. COMELEC (1996)]
year after such election. (Art. IX-B Sec. 6) 2. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B Sec. 7(1)) 3. Appointive officials shall not hold any other governmental position.
Effect of removal of qualifications during the term Q: What happens if the qualification is lost which the officer is holding office? A: The officer must be terminated.
Effect of pardon upon the disqualification to hold public office GENERAL RULE: A pardon shall not work the restoration of the right to hold public office. (Art. 36, Revised Penal Code) Exceptions: (1) Where such right to hold public office is expressly restored by the terms of the pardon (Art. 36, RPC); (2) When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. Chairman, COA)
E. Disabilities and Inhibitions of Public Officers
Unless otherwise allowed by law or his position„s primary functions (Art. IX -B Sec 7 (2)) Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one can„t receive compensation or other honoraria anyway), as provided by law and as required by the primary functions of his office. [ National Amnesty Commission v. COA (2004)]
Public Officer The President, Vice President, the Members of the Cabinet and their deputies or assistants
Disqualifications shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution, (Art. VII, Sec. 13)
Senator or Member of the House of Representatives
may not hold during his term any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government -owned or -controlled corporations or their subsidiaries Effect: or else he forfeits his seat Shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Art. VI, Sec 13) shall not be designated to any agency performing quasi judicial or
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 (i.e. disqualified from holding such office). Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications do not violate the Constitution. General Constitutional Disqualifications 1. Losing candidates cannot be appointed to any governmental office within one
Members of the Supreme Court and other courts established by law
administrative functions. (Art. VIII, Sec. 12) Members of the Constitutional Commission Ombudsman and his Deputies Members of Constitutional Commissions, the Ombudsman and his Deputies
Members of Constitutional Commissions, the Ombudsman and his Deputies The President„s spouse and relatives by consanguinity or affinity within the fourth civil degree
shall not hold any other office or employment [during their tenure]. (Art. IX A, Sec. 2) (Art. XI, Sec. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IXB, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8) are appointed to 7-year term, without reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11) shall not be appointed during President„s tenure as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned-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 US UALLY disqualified from holding public office. 3. Impeachment 4. Removal or suspension from office: not presumed -> non-imposable when such ineligibility is not constitutional or statutory declared.
5. Previous tenure of office: for example, an appointed Ombudsman is absolutely disqualified for reappointment (Article XI, Constitution). 6. Consecutive terms limit: a. Vice-President = 2 consecutive terms b. Senator = 2 consecutive terms c. Representative = 3 consecutive terms d. Elective local officials = 3 consecutive terms (Sec. 8, Art. X, Constitution) 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 holding of dual positions. 8. Holding of office in the private sector. Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own, control, manage, or accept employment as officer employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law. Section 7 of RA 6713 also generally pro vides for the prohibited acts and transactions of public officials and employees. Su bsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions.
9. Relationship with the appointing power General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: appointing authority; o recommending authority; o chief of the bureau office; or o person exercising immediate o supervision over the appointee
substitute / delegate has been given
Relative: related within the third degree of either consanguinity or of affinity. Exceptions to rule on nepotism: persons employed in a confidential o capacity teachers o physicians o members of the Armed Forces of the o Philippines
10. Under the Local Government Code (sec. 40) a. 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. Removed from office as a result of an administrative case; c. Convicted by final judgment for violating the oath of allegiance to the Republic; d. Dual citizenship;
F. Powers and Duties of Public Officers Definition
Can be delegated?
Discretionary Ministerial Acts which Acts which require the are exercise of performed in reason in a given state determining of facts, in a when, where, prescribed and how to manner, in exercise the obedience to power 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) Generally, NO. Generally, YES. Exception: When the Exception: power to When the law
When is mandamus proper?
Is public officer liable?
Only if the duty to do something has been delayed for an unreasonable period of time. Generally not liable Exceptions: if there is fraud or malice
expressly requires the act to be performed by the officer in person and / or prohibits such delegation In all cases.
Liable if duty exercised contrary to the manner prescribed by law.
As to the Relationship of the Officer to his subordinates a.
Power of Control It implies the power of an officer to o manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter.
b. Power of Supervision Supervisory power is the power of mere o oversight over an inferior body which does not include any restraining authority over such body. A supervising officer merely sees to it o that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.
Source of Powers and Authority
Under our political system, the source of governmental authority is found in the people. Directly or indirectly through their chosen representatives, they create such offices and agencies as they deem to be desirable for the administration of the public
functions and declare in what manner and by what persons they shall be exercised. The right to be a public officer, then, or to exercise the powers and authority of a public office, must find its source in some provision of the public law. 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. What they do suffers from a fatal infirmity. [Villegas v. Subido (1969)]
Duties of Public Officers 1. Duties as Trustees for the Public a. To obey the law It is the duty of an officer to obey the general laws and the laws which prescribe the duties of his office, and a public officer has no power to vary or waive any statutory law. As a general rule, a public officer must obey a law found on the statute books until its constitutionality is judicially passed upon in a proper proceeding.
b. To accept and continue in office. It is the duty of every person having the requisite qualifications, when elected or appointed to a public office, to accept it. The theory is that the public has the right to command the services of any citizen in any official position which it may designate.
c. To accept the burden of office. One who accepts a public office does so with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office.
particularly where rights of individuals may be jeopardized by his neglect. e. As to choice and supervision of subordinates It is the duty of a public officer having an appointing power to make the best available appointment. The degree of care required in selecting subordinates must depend upon the nature of the work to be performed and the circumstances of each case.
f. Ethical duties Every public officer is bound to perform the duties of his office honestly, faithfully and to the best of his ability, in such a manner as to be above suspicion of irregularities, and to act primarily for the benefit of the public. As to outside activities: It is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties
2. Duty to make public disclosure of statements of assets and liabilities Public officials and employees have an obligation under the Code of Conduct and Ethical Standards for Public Officials and Employees to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under 18 years of age living in their household.
3. Transparency of transactions and access to information
G. Rights of Public Officers 1. Rights incident to public office. The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed. 2. Rights as a citizen. Protection from publication commenting on his fitness and the like the mere fact that one occupies a public office does not deprive him of
d. As to diligence and care. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties,
the protection accorded to citizens by the Constitution and the laws. However, by reason of the public character of his employment or office, a public officer is, in general, held not entitled to the same protection from publications commenting on his fitness and the like, as is accorded to the ordinary citizen.
b. Engaging in certain political and business activities a.
The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties.
Right to Compensation b. The power to fix the compensation of public officers is not inherently and exclusively legislative in character. c. Unless the Constitution expressly or impliedly prohibits Congress from doing so, it may delegate the power to other government bodies or officers. d. The salary of a public officer may not, by garnishment, attachment or order of execution, be seized before being paid to him and, appropriated for the payment of his debts. e. The rationale behind this doctrine is obvious consideration of public policy. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. [De la Victoria v. Burgos, (1995)] Basis of Right to Compensation f. The relation between an officer and the public is not the creation of contract, nor is the office itself a contract. Hence, his right to compensation is not the creation of contract. It exists as the creation of law and belongs to
him not by force of any contract but because the law attaches it to the office.
Other Rights 1.
2. 3. 4. 5. 6. 7. 8.
Rights under the Constitution a. Right to self-organization b. Right to protection of temporary employees c. Freedom of members of Congress from arrest and from being questioned d. Right not to be removed or suspended except for cause provided by law Rights under the Civil Service Decree and the New Administrative Code Next-in-Rank Rule Personnel Actions Rights under the Revised Government Service Insurance Act Right to Reimbursement and Indemnity Right to Reinstatement and Back Salary Rights to Property, Devices and Inventions
H.Liabilities of Public Officers g.
The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. (De Leon, 2008)
Three-fold Responsibility of Public Officers (De Leon, 2008) h. A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission: Civil Liability: if the individual is o damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party Criminal Liability: if he law has o attached a penal sanction, the officer may be punished criminally Administrative Liability: such o violation may also lead to imposition of fine, reprimand, suspension or removal from office. This administrative liability is separate and distinct from the penal and civil liabilities. (Agpalo, 2005)
Preventive Suspension and Back Salaries Kinds of Preventive Suspension a. preventive suspension pending investigation The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation, if the charge against such officer involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from service (De Leon, 2008) No compensation is due for the period of preventive suspension pending investigation because such is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. (De Leon, 2008)
The “no work, no pay” principle does not apply where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and carrying out his duties If the illegal dismissal is found to have been made in bad faith by the superior officers then they will be held personally accountable for back salaries of the illegally dismissed employee. The award of backwages is limited to a maximum period of 5 years and not to full back salaries from illegal termination up to reinstatement [David v. Gania, (2003)]
b. preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated [Caniete v. Secretary of Education, (2000)] Employees are entitled to compensation for the period of their suspension pending appeal if they are found innocent. Such suspension is actually punitive so that a public officer should be reinstated with full pay for the period of the suspension.
Illegal Dismissal, Reinstatement and Back Salaries
Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. Where an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office, it was held that he might recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. He may recover the full amount notwithstanding that during the period of his removal, the salary has been paid to another appointed to fill the vacancy unlawfully created.
I. Immunity of Public Officers Doctrine of Official Immunity from Liabilities for Public Officers Rationale: promotion of fearless, vigorous and effective administration of policies of government. It is generally recognized that public officers and employees would be unduly hampered, deterred and intimidated in the discharge of their duties, if those who act improperly, or even exceed the authority given them, were not protected to some reasonable degree by being relieved from private liability. The threat of suit could also deter competent people from accepting public office.
Official Immunity Distinguished from State Immunity The immunity of public officials is a more limited principle than governmental immunity since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function. The doctrine of sovereign immunity principally rested upon the tenuous ground that the king could do no wrong. It served to protect the impersonal body politic or government itself from tort liability. Official Immunity serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties.
Official Immunity not Absolute A public officer enjoys only qualified, not absolute immunity. The protection afforded by the doctrine generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt.
J. De Facto Officers Officer De Jure v. Officer De Facto Requisites
De Jure (1) Existence of a de jure office; (2) must possess the legal qualifications for the office in question; (3) must be lawfully chosen to such office;
Basis of Authority
How ousted
(4) must have qualified himself to perform the duties of such office according to the mode prescribed by law. Right: he has the lawful right / title to the office
Cannot be ousted.
De Facto (1) De jure office; (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith
Validity of official acts
Valid, subject to exceptions (e.g., they were done beyond the scope of his authority, etc.) Entitled to Rule on compensation Compensation as a matter of right;
warranto); not collaterally Valid as to the public until such time as his title to the office is adjudged insufficient.
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.
De Facto Doctrine Q: What is the de facto doctrine?
Reputation: Has the possession and performs the duties under color of right, without being technically qualified in all points of law to act. Only by a direct proceeding (quo
A: It is the principle which holds that a person, who, by the proper authority, is admitted and sworn into office is deemed to be r ightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void. Q: What is the purpose for the doctrine? A: It 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.
De Facto Officer defined Q: When is a person a de facto officer? A: Where the duties of the office are exercised under any of the following circumstances: (1) 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
adjudged insufficient
(2) 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); (3) Under color of a known election or appointment, void because: a. the officer was not eligible; b. there was a want of power in the electing or appointing body; c. there was a defect or irregularity in its exercise;
Rule on compensation
*such ineligibility, want of power, or defect being unknown to the public.
He is paid only for actual services rendered by him.
(4) Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. Note: Here, 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 Facto v. Intruder Nature
Basis of authority
De Facto Officer under any of the 4 circumstances discussed under Part II (above).
Color of right or title to office
Intruder One who takes possession of an office and undertakes to act officially without any authority, either actual or apparent None. He has neither lawful title nor color of right or title to office.
Q: Can an intruder / usurper ripen into a de facto officer? A: Yes. 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. Q: Is good faith a factor in the ripening of intruder status into de facto status? A: Yes. HOWEVER, it must be noted that the good faith must be on the part of the public; not on the part of the intruder. 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. Note: This is not absolutely true. An intruder / usurper may ripen into a de facto officer.
Liabilities of De Facto Officers
Validity of "official" acts
Valid as to the public until such time as his title to the office is
Absolutely void; they can be impeached at any time in any
proceeding (unless and until he continues to act for so long a time as to afford a presumption of his right to act ) Entitled to Not entitled to receive compensation compensation at all. only during the time when no de jure officer is declared;
A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer. The de facto officer may be liable for all imposable penalties for ANY of the following acts:
o o
o
usurping or unlawfully holding office; exercising the functions of public office without lawful right; ineligibility for the public office as required by law
succeed one another. It is a fixed and definite period of time to hold office, perform its functions and enjoy its privileges and emoluments until the expiration of said period
The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status.
2. Reaching the age limit (retirement)
Right to Compensation of De Facto Officer
This mode results in the compulsory and automatic retirement of a public officer.
3. Death or permanent disability
GENERAL RULE. None. A de facto officer cannot sue for the recovery of salary, fees or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are void. (63A Am. Jur. 2d 1094-1095) The rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure, even though he entered into the office in good faith and under color of title.[ Monroy v CA (1967)
Tenure of office represents the p eriod during which the incumbent actually holds office.
The death of the incumbent of an office, which is by law to be filled by one person only, necessarily renders the office vacant. The public official cease to hold office upon his death and all his rights, duties and obligations pertinent to the office are extinguished Permanent disability covers both physical or mental disability.
EXCEPTIONS 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. [Monroy v. CA [1967])
4. Resignation
K. Termination of Official Relation 1. Expiration of the term or tenure of office
Upon the expiration of the officer¡¥s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must ipso facto cease Term of office means the time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall
Resignation is the formal renunciation or relinquishment of a public office. It implies an expression by the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish his right to the office and its acceptance by competent and lawful authority. To constitute resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. A written resignation, delivered to the board or officer authorized to receive it and fill the vacancy thereby created, is prima facie, but not conclusive evidence of the intention to relinquish the office.
5. Acceptance of an incompatible office
It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. One who, while occupying one office, accepts another incompatible with the first, ipso facto, absolutely vacates the first office. When Incompatible Incompatibility is to be found in the character of the offices and their relation to
each other, in the subordination of one to the other and in the nature of the functions and duties which attach to them It exists where: There is conflict in such duties and o functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both One is subordinate to te other and is o subject in some degree to its supervisory power for obviously in such a situation, the design that one acts as a check on the other would be frustrated The Constitution of the law itself o declares the incompatibility even though there is no inconsistency in the nature and functions of the offices
6. Abandonment of office
Abandonment means the voluntary relinquishment of an office by the holder of all right, title, or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof.
7. Prescription of right to office
Under the Rules of Court, quo warranto is the proper remedy against a public officer for is ouster from office which should b e commenced within one year after the cause of such ouster or the right of the pla intiff to hold such office or position arose; otherwise, the action will be barred Rationale for the one year period: Title to public office should not be subjected to uncertainties but should be determined as speedily as possible.
10. Abolition of office
8. Removal
Removal entails the ouster of an incumbent before the expiration of his term. It implies that the office exists after the ouster. Removal from office may be express or implied.
9. Impeachment
Impeachment has been defined as a method of national inquest into the conduct of public men. Its purpose is to protect the people from official delinquencies or malfeasances. It is
primarily intended for the protection of the State, not for the punishment of the offender. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Sec. 2, Art. XI, Constitution) The House of Representatives has the sole power to initiate all cases of impeachment while the Senate sits as a court for the trial of impeachment cases. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any 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. (Sec. 3, Art. XI, Constitution)
As a general rule, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. Such power may be exercised at any time and even while the office is occupied by a duly elected or appointed incumbent. Absent any constitutional prohibition, an office created by Congress may be abolished by it during the term of the incumbent. The fundamental principle afforded to civil service employees against removal ―except for cause as provided by law ‖ does not protect them against abolition of the positions held by them in the absence of a ny other provision expressly or impliedly prohibiting abolition thereof. [Castillo v. Pajo, (1958)]
11. Conviction of a crime
When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime, termination of official relation results, for one of te effects of the
imposition of said penalties is the deprivation of the public office which the offender may have held. Conviction means conviction in a trial court. It contemplates a court finding guilt b eyond reasonable doubt followed by a judgment upholding and implementing such finding.
12. Recall
Through recall, an elective official may be removed at any time during his term by the vote of the people at an election called for such purpose or at a general election.
L. Accountability of Public Officers Impeachment
Impeachment has been defined as ―a criminal proceeding against a public officer, before a quasi-judicial political court, instituted by written accusation called “articles of impeachment”. (Agpalo, 2005) Its purpose is to protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic. (De Leon, 2008) Grounds (Sec. 2, Art. XI, Constitution) 1. culpable violation of the Constitution 2. treason 3. bribery 4. graft and corruption 5. other high crimes 6. betrayal of public trust The acts which are impeachable grounds must be committed in the performance of the official„s public office. (Agpalo, 2005) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (Sec. 3, Art. XI, Constitution)
Ombudsman Disciplinary Power Over Public Officers The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries. (Sec. 21, RA 6770) The disciplinary power of the Ombudsman is not exclusive but is shared with other disciplinary authorities of the government. The disciplinary power of the Ombudsman over elective officials is concurrent with the power vested in the officials specified in the Local Government Code of 1991. [Hagad v. Dozo-Dadole, (1995)]
Exceptions to Ombudsman’s Disciplinary Power The Ombudsman has no disciplinary power over the following (Sec. 21, RA 6770): 1. Officials who may be removed only by impeachment 2. Members of Congress 3. Members of the Judiciary
Sandiganbayan Exclusive Original Jurisdiction over a. violations of R.A. No. 3019 and No. 1379 b. crimes committed by public officers and employees embraced in Title VIII of the Revised Penal Code c. other offenses or felonies (whether simple or complexed with other crimes) committed by public officers and employees in relation to their office, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000; and d. Civil and criminal cases filed pursuant to and in connection with Executive Orders No. 1,2, 14, and 14-a issued in 1986.
Ill Gotten Wealth
Ill-gotten wealth means any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: through misappropriation, conversion, o misuse, or malversation of public funds or raids on the public treasury; by receiving, directly or indirectly, any o commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; by the illegal or fraudulent conveyance o or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries, by obtaining, receiving or accepting o directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; by establishing agricultural, industrial o or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests, or by taking undue advantage of official o position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. (Sec. 1, RA 7080)
M.
Term Limits
All elective local officials, except barangay officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC) Term of office: 3 years from noon of June 30, 1992 or the date provided by law
All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992; No official shall serve for more than 3 consecutive terms for the same position; Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected.
RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Sec. 2. Term of Office Term of office of barangay and sangguniang kabataan officials: 3 years No barangay elective official shall serve for more than 3 consecutive terms in the same position Reckoned from the 1994 barangay elections Voluntary renunciation of office for any length of time shall not be considered as an interruption
