THE LAW ON PUBLIC OFFICERS
contract in the sense of an arrangement or bargain between him and the public.
DEFINITIONS, DISTINCTIONS, AND CLASSIFICATIONS 1) Creates no contractual relation between holder and the public PUBLIC OFFICE - the right, authority, and duty created and
- A public office is not a contract, nor the same thing as a contract,
conferred by law, by which for a given period, either fixed by law
and an appointment or election to a public office does not
or enduring at the pleasure of the appointing power, an
establish a contractual relation between the person appointed or
individual is invested with some portion of the sovereign
elected and the public. The incumbent is not under contract so as
functions of the government, to be exercised by him for the
to withdraw his tenure, salary, and the like, from the control of
benefit of the public.
the legislature, or to preclude the legislature from abolishing the office. Generally speaking, the nature of the relation of a public
PURPOSE AND NATURE The purpose and nature of public office is grounded on it being a public trust. (TORREDES vs VILLAMOR, 564 SCRA 492)
officer to the public is inconsistent with either a property or a contract right. 2) Exists by virtue of some law - The right to hold a public office under our political system, therefore, is not a natural right. It
PUBLIC OFFICE, PUBLIC TRUST Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. PUBLIC TRUST 1) Trustor - Benefactor 2) Trustee 3) Cest qui trust - Beneficiary
exists, when it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it. 3) Generally entitles holder to compensation - While public office is not usually regarded as a contract, a public officer is entitled to the compensation for the performance of his public duties when the law attaches it to the office. If no salary is provided by law for an office, the incumbent is presumed to have accepted it without pay and he cannot recover anything for service rendered by him. The salary is a mere incident and forms no part of the office. It is not a necessary criterion for determining the nature of the position.
PUBLIC OFFICE, NOT PROPERTY PUBLIC OFFICE vs PUBLIC CONTRACT A public office is not the property of the office holder within the meaning and contemplation of the due process requirements of
As to creation:
the Constitution. Public office is not property in the sense that an officer is not denied due process of law by the abolition of his office before the expiration of his term or by his removal or suspension according to law, or by the passage of a statute limiting or reducing his compensation, and that an officer has no property rights in the books and papers pertaining to his office. No one, therefore, has any private right of property or vested right in any public office he holds, much less a vested right to an expectancy of holding a public office, at least as against the public interest. The fact that the Constitution throws a mantle of protection around a public officer, such as a limitation on the power of the legislature to abolish the office or diminish the salary during the incumbent's term, does not change the character of the office or make it property. Excepting constitutional officer, which provide for special immunity as regards salary and tenure, no one can be said to have any vested right to an office or its salary, let alone an absolute right to it. It is only when salary has already been earned or accrued that said salary becomes private property and entitled to the protection of due process. PUBLIC OFFICE, NOT A CONTRACT The right of an incumbent of an office does not depend on any
Public Office - is a creation incident of sovereignty Contract Contract - originates from the will of the contracting parties, subject to limitations imposed by law As to object: Public Office Office - object is the carrying out of sovereign as well as governmental functions affecting even persons not bound by contract Contract Contract - imposes obligations only upon persons who entered the same As to subject matter and scope: Public Office Office - embraces the idea of tenure, duration, and continuity, and the duties connected therewith are generally continuing and permanent Contract Contract - almost always limited in its duration and specific in its objects. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. ESSENTIAL ELEMENTS OF A PUBLIC OFFICE 1) It is created by the Constitution or by law or by some body or agency to which the power to create the office has been delegated
2) It must be invested with an authority to exercise some portion of the sovereign power of the State to be exercised for public interest 3) Its powers and functions are defined by the Constitution, or by law, or through legislative authority 4) The duties pertaining thereto are performed independently without control of a superior power other than law, unless they are those of an inferior or subordinate officer, created or authorized by the legislature and placed by it under the general control of a superior officer or body 5) It is continuing and permanent in nature and not occasional or intermittent TENURE AND DURATION
accordingly. But not all acts of public officers are "official acts," i.e. acts specified by law as an official duty or as a function attached to a public position, and the presumption does not apply when an official's acts are not within the duties specified by law, particularly when his acts properly pertain or belong to another entity, agency, or public official. OFFICER / PUBLIC OFFICER / EMPLOYEE Officer Officer - one inseparably connected with an office, and so it may be said that one who holds a "public office," as that term is herein before defined, is a public officer. When there is no office, there can be no public officer. A public officer is such an officer as required by law to be elected or appointed, who has a designation
1) Existence of definite tenure not material - Public office embraces the idea of tenure and duration. The duration of tenure need not be for a fixed period, but may be at the pleasure of the appointing power. One may be nonetheless a public officer because his term is not definitely established, and the absence of a definite tenure does not necessarily preclude a position or employment from constituting a public office. 2) Continuance of office holder not material - At the same time, the element of continuance, i.e., the duties attached to the position continue though the office holder be changed, cannot be considered indispensable. 3) Permanence of office not material - If the other elements are present, it can make no difference whether there can be but one act or a series of acts to be done - whether the office expires as soon as the one act is done, or is to be held for years or during good behavior. However, something more permanent than a single transaction or transitory act is commonly required to make the position a public office.
or title given to him by law, and who exercises functions concerning the public, assigned to him by
law.
Employee Employee - when used with reference to a person in the public service includes any person in the service of the government or any of its agencies, divisions, subdivisions, or instrumentalities. An "officer," as distinguished from the "clerk" or "employee," refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of government power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. OFFICER vs EMPLOYEE
PUBLIC OFFICE vs PUBLIC EMPLOYMENT Law of Public Officers Public Office Office - position created by law, with duties cast upon the incumbent which involve the exercise if some portion of the
Officer Officer - distinguished from an "employee" in the greater
sovereign power, in the performance of which the public is
importance, dignity, and independence of his position, being
concerned
required to take an official oath, and perhaps give an official
Public Employment Employment - a position which lacks one or more the
bond, and in the liability to be called to account as public officer or misfeasance or non-feasance in office.
foregoing elements. It is a position created not by force of law, but by contract of employment. It does not rise to the dignity of
A public officer must be invested by law with a portion of the
an office.
sovereignty of the State, and authorized to exercise functions either of an executive, legislative, legislative, or judicial character.
PRESUMPTION OF REGULARITY OF OFFICIAL ACTS The fact that the position is a subordinate one and that its holder Public officers enjoy the presumption of regularity in the exercise of their functions. Thus, absent clear and convincing proof, the bare allegation that a public officer acted with malice or prejudice cannot be sustained. As a general rule, "official acts" enjoy the presumption of regularity, and the presumption may be overthrown only by
maybe accountable to a superior does not prevent it from being an office, or the incumbent an officer as distinguished from a mere employee. A subordinate or inferior is nonetheless an officer. A degree if responsibility for results rests upon a public officer that does not attach to a mere employee. Revised Penal Code
evidence to the contrary. When an act is official, a presumption of regularity exists because of the assumption that the law tells the
Public Officer - Any person who, by direct provision of law,
official what his duties are and that he discharged these duties
popular election or appointment by competent authority, takes
part in the performance of public functions in the Government of
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the Philippines, or performs in said Government or in any of its branches, public duties as an employee, agent or subordinate official, or of any rank or class. This definition eliminates the standard distinction between "officer" and "employee" in the law of public officers. It is also
ELIGIBILITY AND QUALIFICATIONS ELIGIBILITY - the state or quality of being legally fitted or qualified to be chosen. Eligibility to a public office is of a continuing nature and must exist both at the commencement and during the occupancy of an office.
quite comprehensive, embracing as it does, every public servant from the highest to the lowest. PUBLIC OFFICIAL Public Official - defined as an officer of the Government itself, as distinguished
from
the
officers
and
employees
of
instrumentalities of government. Hence, the duly authorized
ELIGIBLE ELIGIBLE - legally fitted or qualified to hold an office, i.e., having all the qualifications and none of the ineligibilities to occupy the office. It refers to a person who obtains a passing grade in a civil service examination or is granted civil service eligibility and whose name is entered in the register of eligibles. INELIGIBILITY INELIGIBILITY - refers to the lack of the qualifications prescribed by the Constitution or applicable law for holding public office
acts of the former are those of the government, unlike those of government instrumentality instrumentality which may have a personality of its
INELIGIBLE
own, separate and distinct from that of the government, as such. (GONZALES vs HECHANOVA, 9 SCRA 230) The term is used synonymously with public officer. Ministerial Officer Officer - includes any office whose officers are charged with the duty to execute the mandates lawfully issued, of their superior. STATE IMMUNITY FROM SUIT vs OFFICIAL IMMUNITY FROM SUIT SUITS AGAINST Republic of the Philippines
Unincorporated Government Agency
GOCC's
Public Officer
*Waiver
CAN BE SUED -if with consent -liable if in the strict application of the law or if injustice exists -if it performs proprietary functions (depends)
- business character - charter of GOCC states that it can be sued - personal capacity - exceeded authority - tort - government has no interest in outcome of the case express- if within the law implied contract, initiates suit
CANNOT BE SUED -yes, if it gives consent only
-if against the State -if performing governmental functions -if performing proprietary functions, incidental to governmental functions - no, if charter says it cannot be sued - liability on Government -if performing within scope of authority
1) Legally or otherwise disqualified to hold an office 2) Disqualified to be elected to an office 3) Disqualified to hold an office The mere certification of a person by the Civil Service Commission as a civil service eligible does not amount to an appointment to any position, nor does it insure appointment, as the appointing power has the right of choice, to be freely exercised according to his judgment, as to who is best qualified among those eligible. QUALIFICATION QUALIFICATION - refer to the endowment or accomplishment that fits one for office. It may refer to the act which a person, before entering upon the performance of his duties, is, by law, required to do, such as the taking, and often, subscribing and filing of an official oath, and, in some cases, the giving of an official bond. Subject to constitutional limitations, Congress may determine the eligibility and qualifications of officers and provide for the methods of filling offices. Under our political system, the right to hold a public office is not a natural right. While many rights are consecrated as universal an inviolable, the right of eligibility to offices is not so secured. It exists, where it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it. QUALIFICATIONS USUALLY REQUIRED OF PUBLIC OFFICERS 1) Citizenship Citizenship - It is a general principle that aliens are not eligible to public office, unless the privilege is extended to them by statute. 2) Age Age - The fact that a person has reached his majority does not necessarily qualify him, so far as age in concerned, to hold every office. The age limit for certain offices may, by constitutional ot statutory provisions, be placed beyond the period of majority. Suffrage - Since the right of suffrage is generally 3) Right of Suffrage denied to those who are not citizens, the exclusion of unnaturalized foreigners from public office is likewise accomplished by permitting none but electors or voters to be public officers. 4) Residence Residence - A candidate for election or appointment to an office of a political subdivision or unit may be required by
provision or statute to be a resident or inhabitant thereof. Education - Statutes prescribe educational qualifications when 5) Education they reasonably relate to the specialized demands of an office, enabling the holder to properly and intelligently perform the duties of such office. Hence, there are certain offices which can be properly filled only by persons possessing professional attainments. 6) Ability to read and write - This qualification may lawfully be made since there is no constitutional prohibition against it, especially where it has reasonable relationship to the duties of the position in question. Affiliation - Since running for and holding political 7) Political Affiliation office are forms of political expression, there must exist a compelling state interest in order to uphold the validity of restrictions on holding political office. 8) Civil Service Examination / Eligibility - Qualifications inan appropriate examination for appointment to positions on the first and second levels in the career service is required under the Civil Service Law to insure that such appointment is made only according to merit and fitness to perform the duties and assume the responsibilities of the positions.
8) Relationship with the appointing power - Since a public office is a public trust, created for the benefit and in the interest of the people, appointments thereto should be based solely on merit and fitness uninfluenced by any personal or filial consideration, 9) Office newly created or the emoluments of which have been increased - The purpose sought to be accomplished by such provision is not merely to prevent an individual legislator from profiting by an action taken by him with bad motives, but to prevent all legislators from being influenced by either conscious or unconscious selfish motive. 10) Being an elective official - The - The Constitution seeks to minimize the so-called "spoils system." The disqualification subsists only during the tenure in office (not term of office) of the elective official. He may be appointed provided he forfeits his seat. 11) Having been a candidate for any elective position - Under the Constitution, no candidate who has lost in any election shall within one year after such election be appointed to any office in the Government or any government-owned and controlled corporations or in any of their subsidiaries. The provision is directed against the so-called "political lame ducks." 12) Under the Local Government Code
DISQUALIFICATIONS TO HOLD PUBLIC OFFICE 1) Mental or Physical Incapacity - From the very nature of the case, an idiot or other person non compos mentis is incapable of accepting or holding public office. The law may expressly require that a public officer be in possession of his mental faculties.
a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment, within two years after serving sentence b) Those removed from office as a result of an administrative case
crime - To assure public confidence in the 2) Misconduct or crime essential integrity of the government, persons convicted of crimes involving moral turpitude are usually disqualified from holding public office.
c) Those convicted by final judgment for violating the oath of allegiance to the Republic
3) Impeachment Impeachment - Under the Constitution, the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
e) Fugitive from justice in criminal or non-political cases here or abroad
4) Removal or suspension from office - The grounds for removal or suspension from office includes acts which would disqualify once from holding office. The question here is whether the suspension or removal itself operates to disqualify one from holding the same or another office.
g) The insane or feeble-minded
office - Under the Constitution, a disability 5) Previous tenure of office to succeed to office is imposed upon certain officers.
The manner of selecting persons for public office is generally by election or appointment.
terms - The Constitution likewise prohibits the 6) Consecutive terms holding of certain elective offices by the same persons for more than an stated number of consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.
APPOINTMENT - is the act of designation by the executive officer, board, or body to whom that power ha s been delegated, of the individual who is to exercise the powers and functions of a given office. In this sense, it is to be distinguished from the selection or designation by a popular vote.
7) Holding more than one office - The manifest purposes of a restriction on multiple holdings is to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their dual position-holding.
d) Those with dual citizenship
f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code
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Appointment is in law, equivalent to "filling a vacancy" in an office. As to its nature, it is either permanent or temporary (acting) The term "appoint," whether regarded in its legal or ordinary acceptation, is applied to the nomination or designation of an
individual to an office. WHERE APPOINTING POWER RESIDES Inherently belongs to the people The selection of persons to perform the functions of government is primarily a prerogative of the people. Since the people are the source of government, the power of selecting persons for public office inherently belongs to them. But the people cannot always be called upon to act immediately when the selection of an official is necessary. It may be said, therefore, that the power of appointment to public offices belongs to where the people have chosen to place it by their Constitution or laws. Entrusted to designated elected and appointed public officials The appointment of public officials is generally looked upon a properly belonging to the executive department. Appointments may also be made by Congress or the courts, but when so made should be taken as an incident to the discharge of functions within their respective spheres. The exceptions made in favor of Congress as to appointments to office strengthen rather than weaken the grant of power to appoint officers in the executive.
appointment. The attestation required is merely a check to assure compliance with the Civil Service Law. As stated above, appointment is not only complete but valid upon performance of the last act required of the appointing power. However, the appointment is subject to the condition that if the Commissioner of Civil Service would later on reject the appointment by reason of lack of eligibility, then the appointment shall lapse despite attestation. The acts of the appointing power (head of department or office) and the approval of the Commission acting together though not concurrently, but consecutively, are necessary to make an appointment complete. The confirmation or attestation of the appointment by the Civil Service Commission does not complete the appointment since such attestation, though an essential part of the appointing process, serves merely to assure the eligibility of the appointee.
Absent any contrary statutory provision, the power to appoint carries with it the power to remove or discipline.
4) Effects of completed appointment - Having once made the appointment, the appointing officer's power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it. No new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee through a valid qualification and assumption of uts duties.
POWER TO APPOINT DISCRETIONARY
ACCEPTANCE OF APPOINTMENT
1) Power of courts to review appointment appointment - Appointment or reappointment (issuance of new appointment) of a public officer involves the exercise of discretion, which, unless gravely abused, the courts will not attempt to control. It cannot be the subject of an application for a writ of mandamus to compel the exercise of such discretion.
Appointment to a public office necessarily precedes acceptance by the appointee and is accordingly distinct from it.
This task of appointment is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. 2) Power of the Civil Service Commission to revoke appointment - The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It has also no authority to direct the appointment of a substitute of its choice or a successful protestant.
1) Not necessary to completion or validity of appointment - The appointment is the sole act of those vested with the power to make it, just as the acceptance is the sole act of the appointee. Therefore, where there is no express provision of the law to the contrary, the appointee's acceptance of the office is not necessary to complete the appointment. 2) Necessary to possession of office - While acceptance of appointment is not necessary to give it validity, the individual chosen to an office cannot be deemed to be either fully possessed of its rights and privileges or subject to the performance of its duties and obligations until he has, in fact, accepted it. Acceptance is, therefore, necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office.
WHEN APPOINTMENT DEEMED COMPLETE 1) Not subject to confirmation confirmation - Where the power of appointment is absolute, and the appointee has been determined, no further consent or approval ins necessary, and the formal evidence of appointment, i.e., the commission, may issue at once. confirmation - Where the assent or confirmation of 2) Subject to confirmation some other officer or body is required, the commission can issue only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required by law of the appointing power has been performed. 3) Approval by the Civil Service Commission - Appointment to positions in the Civil Service must be submitted to the Commissioner of Civil Service for approval. Where the appointee is a qualified service eligible, the Commissioner of Civil Service has no choice but to attest the
An appointee cannot impose his own conditions for the acceptance of a public office. He may only either accept or decline it. FORM OF ACCEPTANCE ACCEPTANCE Express - done verbally or in writing. The best formal evidence 1) Express of the acceptance is the qualification of the officer appointed by taking the oath of office. In some instances, the law requires that a bond be posted Implied - without formal acceptance, the appointee enters 2) Implied upon the exercise of the duties and functions of an office. APPOINTMENTS BY THE PRESIDENT Power of appointment of the President
The power of the President to appoint officers in the government is conferred upon him by the provision of the Constitution which reads: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him in this Constitution. He shall also appoint other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress, may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Groups of Officials the President is authorized to Appoint 1) Heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution. The "other officers" referred to therein are the regular members of the Judicial and Bar Council, the Chairman and Commissioners of the Civil Service Commission, the Chairman and Commissioners of the Commission on Elections, the Chairman and Commissioners of the Commission on Audit, and the Members of the regional consultative commission 2) All other officers whose appointments are not otherwise provided by law and they refer to officers to be appointed to lower offices created by Congress where the latter omits to provide for appointment to said office, or provides in an unconstitutional way for such appointments 3) Those whom the President may be authorized by law to appoint such as the heads of government-owned or controlled corporations, undersecretaries, heads of bureaus and offices, and other officials 4) Other officers lower in rank whose appointments the Congress by law vests in the President alone Confirmation of Appointments by Commission Commission of Appointments Appointments 1) Only the officers in the first group above are appointed with the consent or confirmation of the Commission on Appointments. Congress cannot, by law, require confirmation of appointments of other officers. Heads of bureaus like the Securities and Exchange Commission, Insurance Commission, etc., are no longer included among those whose appointments are to be confirmed by the Commission on Appointments. They are civil service officers whose appointments are supposed to be made only according to merit and fitness. 2) The President, under the Constitutions, appoints the members of the Supreme Court, judges of lower courts, including the Sandiganbayan, and the Tanodbayan and his Deputies from a list prepared by the Judicial and Bar Council. Such appointments need
no confirmation. The same is true when the Vice-President is appointed as a member of the Cabinet. 3) The Constitution does not state the appointing authority with respect to the Chairman and Members of the Commission on Human Rights. There is no doubt, however, that the power to appoint them is lodged in the President. The Administrative Code of 1987 states that they shall be appointed by the President. Their appointments are also not subject to confirmation by the Commission on Appointments because they are among the officers of government whom the President may be authorized by law to appoint, pursuant to the Constitution. APPOINTMENTS BY OTHER OFFICIALS Under the Constitution, Congress may, by law vest in courts, heads of departments, agencies, commissions, or boards the power to appoint officers lower in rank (e.g., Chiefs of divisions or sections) in their respective offices. The phrase "lower in rank" refers to officers subordinate to those enumerated officers in whom respectively the power of appointment may be vested the heads of executive departments, agencies, commissions, commissions, and boards. Appointments of minor employees may also be vested in them. The Supreme Court appoints all officials and employees of the judiciary. KINDS OF PRESIDENTIAL APPOINTMENTS As to manner in which it is made: 1) Regular - made while Congress is in session. They are actually mere nominations subject to confirmation by the Commission on Appointments interim - made while Congress is not in session of during its 2) Ad interim recess As to nature: 1) Permanent Permanent - last until they are lawfully terminated acting - last until a permanent appointment is 2) Temporary or acting issued Regular and Ad Interim Appointments - required to be submitted to the Commission on Appointments - Appointments that are for the President solely to make without the participation of the Commission on Appointments cannot be ad interim appointments. The President's voluntary act of submitting such appointments to the Commission and the latter's act of confirming or rejecting the same would be without or excess of jurisdiction Temporary Appointments - two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointment, except temporary appointments to executive positions when continued vacancies therein will prejudice service or endanger public safety AD INTERIM APPOINTMENTS Ad Interim Appointments Appointments - appointments made by the President during the recess of Congress, whether such recess is voluntary or compulsory.
Compulsory Recess Recess - takes place when Congress adjourns Voluntary Recess Recess - takes place before the adjournment of Congress (e.g. Christmas recess) The Commission on Appointments which approves major appointments of the President meets only while Congress is in session. The recess appointment power keeps in continuous operation the business of government when Congress is not in session. But the appointments shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. In the second situation, the appointment remains effective until the end of the session following such appointment or "until the next adjournment," not until the next voluntary recess. This is to give the Commission on Appointments time to deliberate upon the appointment before confirming or rejecting it. When the President makes appointments with the consent of the Commission on Appointments, he has the benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent, to insure approval of his selection either by previous consultation with the members of the Commission on Appointments or by thereafter explaining to them the reason for such selection. The reason for this is that an ad interim appointment contradicts the theory of checks and balances in that it permits the executive alone to make an appointment permanent and effective in character without the previous scrutiny and concurrence of the legislative power, acting through the Commission. The grant of the power is justifiable only on the theory of an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office to be filled if not immediate appointment is made. Its sole purpose is to render it certain that at all times there should be, whether Congress is in session or not, an officer for every office, entitled to discharge the duties thereof. A temporary appointment is, in essence, an acting appointment. It is well-settled that one who holds a temporary or acting appointment has no fixed tenure of office, and, therefore, his employment can be terminated at the pleasure of the appointing power even without hearing or cause. (ERASMO vs HOME INSURANCE AND GUARANTY CORPORATION, 388 SCRA 112) An ad interim appointment is nevertheless permanent in nature and not a mere temporary or acting appointment notwithstanding that it is subject to confirmation by the Commission on Appointments. However, it may be recalled or revoked by the President before confirmation.
admits that a copy thereof was transmitted to the Commission on Appointments on December 26, 1961, on the basis of which said Commission took cognizance on the appointment and confirmed it on May 16, 1962. On July 31, 1962, the Commissioner on Civil Service informed Rosales that his last ad interim appointment had been recalled and declared without effect by virtue of Administrative Order No. 2, dated December 31, 1961, and on November 5, 1962, the new President appointed Yenko as acting Chairman of the Board of Medical Examiners, who thereafter assumed the functions of the said office. Said appointment was contested by Rosales. ISSUE: Whether ISSUE: Whether or not the appointment of Rosales is valid, legal, and subsisting, and, therefore, render that of Yenko null and void HELD: No. Ad interim appointment not released. - The petition under consideration does not allege that the original of the last ad interim appointment was transmitted to, and was received by Rosales, obviously because the said original was never released by the Office of the President. Neither does it allege that upon receipt thereof, Rosales had accepted the appointment and duly qualified for the position. He merely alleges that he "performed the duties and obligations of Chairman" of the Board, that the Executive Secretary notified him by telephone that his last ad interim appointment had already been signed by him. Ad interim appointment incomplete. - This allegations are not sufficient to take the place of a clear proof that the ad interim appointment was not only duly signed but was released to Rosales, and that by virtue thereof, he had accepted it and duly qualified for the position. His ad interim appointment being incomplete, there was in fact and in law no ad interim appointment that could be validly transmitted to and acted upon by the Commission on Appointments. Rosales failed to allege and prove that he is rightfully entitled to the office in question. DESIGNATIONS Designation - simply the mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office. 1) It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. It is revocable and temporary in character for it does not confer upon the designee security of tenure in all the position or office which he occupies in an "acting" capacity only. 2) Designation does not entitle the officer designated to additional benefits or the right to claim the salary attached to the position. STEPS IN THE APPOINTING PROCESS
ROSALES vs YENKO, 15 SCRA 766 Ad interim appointment appointment was not released to and accepted by appointee before confirmation by the Commission on Appointments Appointments FACTS: FACTS: In July 26, 1958, the President appointed Rosales ad interim Chairman of the Board of Examiners for Chemists, for a term expiring July 15, 1961. On July 16, 1961, he was reappointed as the acting Chairman of the same Board. On November 6, 1961, the President signed Rosales ad interim appointment but the same was not released to the latter. Respondent Yenko however,
The President's power of appointment of officers subject to the confirmation of the Commission on Appointments involves three steps: Nomination - it is the exclusive prerogative of the President 1) Nomination upon which no limitation may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office.
He may listen to and accept the recommendation or advice of others, or yield to their request or pressure, but legally, he alone is responsible for his nominations. Confirmation - while the power to appoint is essentially an 2) Confirmation executive function, the power to confirm or reject certain appointments belongs to Congress, the latter having been conferred as a check on the former. This power to check is exercised through the members of both Houses in the Commission on Appointments. a) There is no appointment yet in the strict sense until it is confirmed. Thus, the appointment is a joint act of the President and the Commission on Appointments. b) The constitutional intent is to strike a careful and delicate balance in the matter of appointments for the President and Congress (the latter through the Commission). c) A confirmation of an appointment to a public office is to be distinguished from the appointment itself, for in confirming the appointment, the Commission on Appointments does not in any sense choose the appointee. The act of confirming an appointment to office is not the exercise of an executive function, and since it is not legislative in character, it need not be performed at a regular session of Congress. d) A confirmation cannot be reconsidered after the President has been notified of the confirmation and has completed the appointment by issuing a commission to the appointee, who thereupon assumed the office, even though the rules of the confirming body provide for reconsideration. Commission - the term "commission" has been 3) Issuance of Commission defined as a written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. It is the written evidence of the appointment, but not the appointment itself, although in some instances, they may seem inseparable because of the difficulty of showing the appointment otherwise than by showing the existence of the commission which becomes conclusive evidence of the appointment as soon as it gets signed by the President.
Its primary purpose is to enable the national and local government and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants. CLASSIFICATIONS OF POSITIONS IN THE CIVIL SERVICE CAREER SERVICE - characterized by: a) Entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications b) Security of tenure c) Opportunity for advancement to higher career positions - includes: a) Open career positions for appointments to which prior qualification in an appropriate examination is required b) closed career positions which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit system c) Positions in the career executive service, namely Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Chief of Department Service, and other officers or equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President d) Career officers other than those in the Career Executive Service who are appointed by the President such as the Foreign Service Officers in the Department of Foreign Affairs e) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system f) Personnel of government-owned and controlled corporations whether performing governmental and proprietary functions who do not fall under the non-career services g) Permanent laborers, whether skilled, semi-skilled or unskilled NON-CAREER SERVICE - characterized by:
APPOINTMENTS IN THE CIVIL SERVICE The Civil Service System Scope Scope - The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charter. The intention of the Constitution is to extend the requirements and benefits of the Civil Service System - national and local - including the military establishment. Purpose Purpose - The Civil Service System rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. Civil office. Civil Service laws are not penal in nature, but are designed to eradicate the system of making appointments primarily from political considerations with its attendant evils, to eliminate as far as practicable the element of partisanship and personal favorites in making appointments, to establish a merit system of fitness and efficiency as the basis of appointments, and to prevent discrimination in appointments to public service based on any consideration other than fitness to perform its duties.
a) Entrance on bases other than those of the usual test of merit and fitness utilized for the career service b) Tenure which is limited to a period specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made - includes: a) Elective officials and their personal or confidential staffs b) Department heads and other officials of cabinet rank who hold positions at the pleasure of the President and their personal or confidential staffs c) Chairmen and members of commissions and boards with fixed terms of office and their personal or confidential staffs d) contractual personnel, or those whose employment in the government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year and performs or accomplishes with a minimum of direction and
supervision from the hiring agency e) Emergency and seasonal personnel **casual - another type of non-career employee where and when the employment is not permanent but occasional, unpredictable, sporadic and brief in nature. **previous classifications: competitive service, non-competitive service or unclassified service, exempt service) CLASSES OF POSITIONS IN THE CAREER SERVICE 1) Three major levels a) First Level - clerical, trades, crafts, and custodial service positions which involve non-professional or sub professional work work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies b) Second Level - includes professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level c) Third Level - covers positions in the Career Executive Service In order to qualify an appointment as permanent, the appointee must possess the rank appropriate for the position. Failure in this respect will render the appointment temporary. Security of tenure in the Career Executive Service is acquired with respect to rank, and not to the office or position. The guaranty of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed - a concept which is applicable only to the first and second-level employees in the Civil Service - but to the rank to which they are appointed by the President. (DIMAYUGA vs BENEDICTO, G.R. No. 144153) Thus, a CES officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of duty even if assigned to a CES position with lower salary grade, as compensation is according to CES rank and not on the basis of the position or office occupied . (IGNACIO vs CIVIL SERVICE COMMISSION, 464 SCRA 220)
competitive examinations. To the latter belongs those positions described by the Constitution as "policy-determining, primarily confidential, or highly technical in nature." DETERMINATION OF MERIT AND FITNESS BY COMPETITIVE EXAMINATIONS The selection of any appointee to any government position shall be made only according to merit and fitness to be determined as far as practicable by competitive examination to perform the duties and assume the responsibilities of the position, without regard to any other consideration such as sex, color, social status, religion, or political affiliation. It insures that appointments to office is made from among those who, by examination, have shown themselves to be best qualified. 1) An examination, to be competitive within the meaning of the constitutional provision, must be given under an objective standard of grading; it must conform to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience. 2) The examination must be competitive in substance, not merely in form. 3) An oral examination may be competitive where tests of manual or professional skill are necessary, provided the examination questions are such as to best determine the practical and technical qualifications of the applicants to perform the duties of the position to be filled. The mere fact that the measurable standards for determining the general proficiency of a candidate for a particular position are subjective rather than objective does not prevent an oral interview from being a competitive examination where it tests all candidates for the same personality factors, each candidate pitting his personality traits against those of every candidate. (DELOS SANTOS vs MALLARI) EXEMPTION FROM RULE OF NON-COMPETITIVE NON-COMPETITIVE POSITIONS
2) Requirement of Competitive Examinations - except as otherwise provided, entrance to the first two levels are through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualifications in the lower level. Entrance to the third level is prescribed by the Career Executive Service Board. Within the same level, no civil service examination is required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for the level.
Under the Constitution, policy-determining, primarily confidential, and highly technical positions are exempt from the rule requiring appointments in the Civil Service to be made on the basis of merit and fitness to be determined as far as practicable by competitive examinations. 1) POLICY-DETERMINING - a position where its occupant is vested POLICY-DETERMINING with the power of formulating policies for the government or any of its agencies, subdivisions, or instrumentalities, like that of a member of Cabinet
1) Competitive Competitive - those whose appointments are made according to merit and fitness to be determined as far as practicable by competitive examinations
2) PRIMARILY CONFIDENTIAL CONFIDENTIAL - a position where its occupant enjoys more than the ordinary confidence in his aptitude of the appointing power but bears primarily such close intimacy which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of State, like that of a private secretary or a confidential agent. For someone holding a primarily confidential position, more than ordinary confidence is required.
2) Non-competitive Non-competitive - those whose appointments do not have to take into account merit and fitness as determined by
3) HIGHLY TECHNICAL TECHNICAL - a position where its occupant is required to possess skills or training in the supreme or superior degree,
CONSTITUTIONAL CLASSIFICATION OF POSITIONS IN THE CIVIL SERVICE
(DELOS SANTOS vs MALLARI) like MALLARI) like that of a scientist. The assumption that an officer holding a position which is primarily confidential in nature is subject to removal at the pleasure of the appointing power is inaccurate. (INGLES vs MUTUC, 26 SCRA 171) The position of a City Engineer may be technical but not highly so because he is not required or supposed to possess a supreme or superior degree if technical skill. The duties of a city engineer are eminently administrative in character which could be discharged even by non-technical men. (GRINO vs CIVIL SERVICE COMMISSION, 194 SCRA 458) QUALIFICATION STANDARDS IN THE CIVIL SERVICE A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. qualification standards 1) Use of qualification a) as basis for civil service examinations for positions in the career service b) as guides in the appointment and other personnel actions in the adjudication of protested appointments c) in determining training needs d) as aid in the inspection and audit of the agencies' personnel work programs 2) Establishment, administration and maintenance of qualification standards standards - Qualification standards shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service 3) Approval of Qualification Standards Standards - Without a duly approved qualification standard, it would be extremely difficult if not impossible for the appointing authority to determine the qualification and fitness of an applicant for a particular position. It would have no basis or guide in extending promotional or original appointment in filling up positions in its department or agency.
temporary appointee is allowed to continue in it for a number of years. INSTANCES OF TEMPORARY APPOINTMENT 1) Where the appointee does not possess civil service eligibility, the appointment is considered temporary. The subsequent acquisition of the required eligibility will not make a temporary appointment regular or permanent. A new appointment, not merely reinstatement, is needed. 2) It 2) It shall not exceed twelve months. It is one with civil service eligibility but different from that which is appropriate to the position for which he was appointed. A provisional (temporary) appointee does not have the appropriate eligibility to the position but the law gives him the privilege of occupying the position in the absence of an eligible and until the availability of an appropriate eligible is certified. 3) An appointment by the President of someone to fill an executive office during the absence or incapacity of the incumbent is temporary. 4) As long as the appointee has not passed any civil service examination in accordance with the rules and regulations of the Civil Service, the nature of his appointment is always temporary. 5) There is no complete appointment to speak of, at most, pending compliance with a condition, the appointee is holding only a temporary appointment. It remains temporary until the condition is met. 6) A regular government employee who has been illegally suspended or dismissed is entitled to be reinstated; there is no vacancy to which a new incumbent can be permanently appointed, his appointment being considered temporary and he has to give way to the employee whose right to the office has been recognized by the competent authorities. 7) One who is designated as officer in charge does not have any vested right over the position nor even tenure of office. His continued stay in office depends upon the appointing power. He can be suspended and replaced anytime.
Deficiencies - When necessary, education, 4) Offsetting of Deficiencies experience or training may be used interchangeably to offset deficiencies except the required eligibility. The necessity exists if the appointee's training or experience is of such a level that the same would more than supplement the deficiency in education considering the demands of the position in question.
8) An appointment held at the pleasure of the appointing power is, in essence, temporary in nature. When the appointing power opts to replace the incumbent, technically there is no removal but only an expiration of the term; hence, there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be separated from office.
KINDS OF APPOINTMENT IN THE CAREER SERVICE
APPOINTMENT THROUGH CERTIFICATION CERTIFICATION
1) Permanent - one which is issued to a person who meets all the requirements for the position to which he is appointed, in accordance with the provisions of law and the rules and standards promulgated pursuant thereto, including the appropriate eligibility prescribed; it lasts until lawfully terminated. It is entitled to security of tenure. 2) Temporary - one which is issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; it shall not exceed twelve months. months. The appointee may be replaced sooner if a qualified civil service eligible becomes available. It does not become permanent merely because the position is usually occupied by one appointed thereto permanently or because the
An appointment through the certification to a position in the civil service, except as otherwise provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles (i.e., list of names of those who passed competitive examinations) and who meets all the other requirements of the position. VACANCY Vacancy - there is vacancy when an office is empty and without a legally qualified incumbent incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties.
EXISTENCE OF PHYSICAL VACANCY NOT ES SENTIAL
NECESSITY OF OATH OF OFFICE
When applied to public officers, the word "vacancy" is not employed in a technical sense. It does not mean that the office is necessarily physically vacant.
An oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office.
An office may be vacant when it is occupied by one who is not a de jure officer, as by a mere usurper, or by one who is holding over. But although no physical vacancy in the office exists in such case, there is nevertheless a vacancy in the sense that the appointing power may proceed to fill the office by choosing a successor. APPOINTMENT TO A NON-VACANT POSITION No person, no matter how qualified or eligible for a certain position, may be appointed to an office which is not yet vacant.
1) It is only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. 2) Although the law usually requires the taking of an oath, it is not indispensable. It is mere incident to the office and constitutes no part of the office itself. 3) The President, the Vice-President, or the Acting President, cannot enter on the execution of his office without taking prescribed oath or affirmation. The oath-taking is mandatory. It marks the official induction of the official in office.
There can be no appointment to a non-vacant position. The incumbent must have been lawfully removed or his appointment validly terminated before one could be validly installed to succeed him, since an appointment to an office not vacant is null and void ab initio. (COSTIN vs QUIMBO, 120 SCRA 159)
4) Unless the law expressly requires more, it is sufficient that the oath be taken. It need not be in writing or be subscribed by the affiant.
Where a regular employee is illegally dismissed, transferred, or demoted, his position does not become vacant.
1) Notaries Public, Members of the Judiciary, Clerks of Court, the Secretary of either House of the Congress of the Philippines, Secretaries of Departments, Bureau Directors, Registrars of Deeds, Provincial Governors and Lieutenant-Governors, City Mayors, and other officer in the service if the government of the Philippines whose appointment is vested in the President.
CAUSES OF VACANCY 1) Vacancy in office results in cases of death, permanent disability, removal from office or resignation of the incumbent. 2) Abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching the age limit, and recall. A vacancy may also arise by failure of persons chosen for office to accept or qualify for the office. In a case, the nomination by the outgoing President (whose term expired on December 31, 1961) was submitted to the Commission on Appointments before it began its session on January 2, 1962. It was held that the new President could recall the nomination before the Commission began its session. Otherwise, the outgoing President would be making an appointment to take effect after he has ceased to be President. (SIGUESTE vs SECRETARY OF JUSTICE, 9 SCRA 598) QUALIFYING TO OFFICE The person appointed or elected to a public office is usually required by law, before entering upon the performance of his duties, to do some act by which he shall signify his acceptance of the office and his undertaking to execute the trust confided in him. The act is ordinarily termed qualification. It generally consists of the taking, and often of subscribing and filing of an official oath and in some cases, of the giving of an official bond, if any, required by law.
OFFICERS AUTHORIZED TO ADMINISTER OATH
2) Another officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath. PUBLIC OFFICERS AND EMPLOYEES REQUIRED TO GIVE BONDS Accountable public officers or those whom are entrusted the collection an custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals, are usually required to secure the faithful and proper discharge of their duties by giving bods conditioned to that effect. They may also be required to renew their bonds or give additional bonds. A public official bond ordinarily includes all officers who have custody of public funds. The officials, to be sure, woud be individually liable for any loss. The requirement of an official bond, therefore, is to protect public funds. DE FACTO OFFICERS THE DE FACTO DOCTRINE De Facto Doctrine - is the principle which holds that a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until, by judicial declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared void.
OATH OF OFFICE FOR PUBLIC OFFICERS AND EMPLOYEES DE FACTO OFFICER, DEFINED Oath Oath - an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says.
De Facto Officer Officer - one who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law.
All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution.
A de facto officer is one who derives his appointment from one having colorable authority to appoint if the office is an
appointive office, and whose appointment is valid on its face. He may also be one who is in possession of an office in the open exercise of its functions under color of an election or an appointment even though such election or appointment may be irregular or informal, so that the incumbent is not a mere volunteer. (DIMAANDAL vs COMMISSION ON AUDIT, 291 SCRA 322) DE JURE OFFICER, DEFINED De Jure Officer - one who has the lawful right to the office in all respects but who has either been ousted from it, or who has never actually taken possession of it. DE JURE OFFICER vs DE FA CTO OFFICER De Jure Jure - rests on right De Facto Facto - rests on reputation De Jure Jure - has the lawful right or title to the office De Facto Facto - has the possession and performs the duties under color of right or authority without being technically qualified in all points of law to act De Jure Jure - cannot be removed in a direct proceeding De Facto Facto - may be ousted in a direct proceeding against him
1) The quo warranto proceedings may be instituted only by the person who claims to be entitled to the office or by the Republic of the Philippines represented by the Solicitor General or a public prosecutor 2) An individual who files quo warranto proceedings must set forth the name of the person who claims to be entitled to the office and that of the defendant who is unlawfully in possession thereof and those who claim to be entitled to the same office may be made parties in order to determine their respective rights to the office in the same action. An individual cannot oust two or more persons although the latter are holding illegally their office unless he is entitled to both of them. (NUENO vs ANGELES, 76 Phil. Phil. 12) 3) A public officer or employee is entitled to the basic constitutional rights of due process and security of tenure. The law presumes, in protecting such rights, that, a person acting in a public office was regularly appointed or elected to it and that official duty has been regularly performed. Moreover, the law specifically requires a special civil action of quo warranto in the name of the Republic of the Philippines or in the name of the person claiming right or title to a public office or position be brought against a person illegally holding a public office. RIGHT TO COMPENSATION OF A DE FACTO OFFICER
It is evident that there can be no officer, either de jure or de facto, where there is no office to fill. While there can be no de facto officer where there is no de jure office, there may be a de facto officer in a de jure office. (TURANDA vs SANDIGANBAYAN, 249 SCRA 342) USURPER OR INTRUDER DEFINED Usurper or Intruder - one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. He is not an officer at all for any purpose. DE FACTO OFFICER vs USURPER De Facto Facto - has a color of right or title to the office - has neither lawful title nor color of right ot title to the Usurper office De Facto - assumes to exercise his functions where the public does not know nor ought to know his lack of title or authority Usurper - simply assumes to act as an officer where the public knows aor ought to know that he is such a usurper De Facto Facto - may be removed only is a direct proceeding against him - can be ousted at any time in any proceeding Usurper De Facto Facto - all acts otherwise legitimate done by him in the exercise of his authority as such are valid like those of a de jure officer insofar as the rights of the public and third persons are concerned Usurper - acts are absolutely null and void PROCEEDINGS TO TRY RIGHT OR TITLE OF A DE FACTO OFFICER Where it is desired to try the title to the office, quo warranto is the remedy to be applied, unless a special statutory remedy has been substituted in its place.
1) General Rule Rule - A de facto officer cannot maintain an action to recover the salary, fees, or other emoluments attached to the office, even though he has performed the duties thereof on the theory that the acts of a de facto officer as far as he himself is concerned are void. Only an officer de jure can maintain an action for compensation. 2) Exception Exception - One who becomes a public officer de facto without bad faith in his part, and who renders the services required if the office, may recover the compensation provided by law for such services during the period of their rendition, or retain the emoluments received that time or is legally entitled to the emoluments of the office. 3) De facto officer merely designated - The rule that a de facto officer is entitled to receive the salary for services actually rendered does not apply where the officer was not appointed but merely designated. Designation does not entail payment of additional benefits of grant upon the person so designated the right to claim the salary attached to the position. *Can the de jure officer claim compensation given by the Government to the de facto officer? No. Once de facto officer has received compensation from the government, the de jure officer cannot recover because the de factor officer worked for it. If payment of the salary or other compensation be made by the government in good faith, to the officer de facto, while he is still in possession of the office, the government cannot be compelled to pay it a second time to the officer de jure where he has recovered the office, at least where the officer de facto held by color of title. *Can the de jure officer claim or recover from the de facto officer?
Yes, when the de facto officer is notified of such that he is no longer entitled to the position, hence the compensation as well, de jure officer can recover compensation and any appeal does not count.
lawyer, either a subordinate from his office or a competent person not in public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties, and with the same authority or therein as might be exercised by the Attorney General or the Solicitor General.
LIABILITIES OF A DE FACTO OFFICER 1) Generally, a de facto officer is held to the same degree of accountability for official acts as a de jure officer and cannot escape liability because he has not qualified for failure to file a bond. 2) A de facto officer may be liable for all penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law. 3) A public officer cannot excuse his responsibility for crimes committed in his official capacity by asserting that he was an officer de facto. 4) A rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though the de facto officer occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. The rule was not applied equally in view of the peculiar circumstances of the case. The respondent de jure officer was held entitled only to the back pay differentials pertaining to the difference between the salary rates for the positions of Division Manager, her rightful office and Administrative Office, the lower position to which she was appointed. The petitioner de facto officer was held liable to pay said differentials corresponding from the time he wrongfully assumed the contested position up to the time of his retirement retirement.. (GENERAL MANAGER, PPA vs MONSERATE, G.R. No. 129616) ---------------------------------------------------------------------------------------POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
Pursuant to such, Lo Cham, a doctor of medicine and lawyer, acting Chief, Medico-Legal Section in the Department of Justice, was temporarily detailed to assist the City Fiscal of Manila, with the same powers and functions of an Assistant Fiscal, by the Acting Secretary of Justice. He signed and filed the information in three cases at bar after conducting preliminary investigation. The defendants' attorney filed a motion to quash due to his lack of authority to sign informations. ISSUE: Whether or not Lo Cham has the power and authority to sign informations HELD: HELD: Yes. Powers and functions of Assistant Fiscal may be entrusted. entrusted. - Signing of complaints, making investigations, and conducting prosecutions are not sacrosanct that only Presidential appointees or one expressly empowered by law may be permitted to assume such functions. A lawyer invested with the same authority as an Attorney General or Solicitor General is presumed to be competent to be entrusted with any of the duties devolving on a prosecuting attorney, due to the higher standard of training and experience required. Even if he does not measure up to the educational specification imposed by law, this is beside the point. Scope of duties of a public office. - The duties of a public office includes all those which truly are within its scope - those which are essential to the accomplishment of the main purpose for which the office was created, or which, although incidental r collateral, are germane to and serve to promote the accomplishment of the principal purpose. Subject functions are within inferences to be gathered from the circumstances which prompted the passage of the law and its predecessors. Its historical background and construction of its precursors confirm this. Subject functions inherent in power to assist a prosecuting attorney. attorney. - The fact that it was the chief law officer and legal adviser of the government who put it into effect in the discharge of his duties have an important bearing upon its statutory meaning. Subject functions are inherent in the power to assist a prosecuting attorney. It is engrained in the office or designation itself. The powers of the Solicitor General bestowed on the appointee should be deemed to be in addition to the powers inherent to the appointment. If the two phrases meant the same thing, one would be superfluous.
SCOPE OF POWER OF A PUBLIC OFFICER 1) Expressly conferred upon him by the law under which he has been appointed or elected 2) Expressly annexed to the office by the law which created it or some other law referring to it 3) attached to the office as incidents to it LO CHAM vs OCAMPO, 77 Phil. 635 A lawyer in the Department Department of Justice was temporarily temporarily detailed to assist the City Fiscal of Manila with the same powers and functions of of an Assistant Assistant Fiscal FACTS: Section 1686 of the Revised Administrative Code, as amended, provides that the Secretary of Justice may appoint any
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. vs SANTIAGO, 58 SCRA 493 The Public Service Commission (PSC) imposed a fine on a radio company for failure to render service expected of a radio operator FACTS: The FACTS: The PSC, acting on complaints by dissatisfied customers of RCPI, penalized it with a fine. The allegation of RCPI that the Commission was devoid of such competence is based on the express limitation found in the Public Service Act expressly exempting radio companies from the jurisdiction, supervision, and control of such body over "their franchises, equipment, and other properties except with respect to the fixing of rates." The first paragraph of Section 21 of the Act reads: "Every public
service violating or failing to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the Commission shall be subject to a fine of not exceeding P200 per day for every day during which such default or violation continues; and the Commission is hereby authorized and empowered to impose such fine, after due notice and hearing. ISSUE: Whether ISSUE: Whether or not Section 21 of the Act empowers the PSC to impose a fine HELD: No. HELD: No. Power neither expressly nor impliedly granted. granted. - In the face of the provision itself, it is rather apparent that the Public Service Commission lacked the required power to proceed against petitioner. Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it. It need not be express. It may be implied from the wording of the law. Absent such requisite, however, no warrant exists for the assumption of authority. The act performed, if properly challenged, cannot meet the test of validity. It must be set aside.
third persons and is not clearly beneficial to the public, permissive words will not be construed as mandatory. 3) From the standpoint of the relationship of the officer to his subordinates a) Power of Control - implies the power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter. An officer in control lays down the rules in the doing of an act. If he is not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. b) Power of Supervision - the power of mere oversight over an inferior body. It does not include any restraining authority over such body. A supervising officer merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.
CLASSIFICATION OF POWERS AND DUTIES 1) From their nature
NORMS OF PUBLIC CONDUCT OF PUBLIC OFFICIALS AND EMPLOYEES
a) Ministerial Ministerial - Official duty is ministerial when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. Where the officer or official body has no judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law, their acts are ministerial only.
1) Public office is a public trust.
A ministerial act has been defined as one which a person performs on a given statement of facts, and in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety or impropriety of the act done. (LAMB vs PHIPPS, 23 Phil. 156)
2) Standards of personal conduct. (THE CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, R.A. No. 6713)
b) Discretionary - or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. pursued. Discretion in the manner of the performance of an act arises when an act may be performed or a question may be decided in one of two or more ways, either of which would still be lawful or right and where it is left to the will or judgment of the performer to determine in which way it will be performed. 2) From the standpoint of the obligation of the officer to perform his powers and duties Mandatory - Where the provisions of a statute relating to a) Mandatory public officers are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of such provisions his rights might be and generally would be injuriously affected, they are not directory but mandatory. b) Permissive Permissive - Statutory provisions define the time and mode in which public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system, and dispatch in public business, are generally deemed directory. Mere authorization to perform an act does not impose a mandatory duty upon a public official. If the act does not affect
Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. (CONSTITUTION Art. XI, Sec. 1)
Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: a) Commitment to public interest - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. b) Professionalism Professionalism - They shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. c) Justness c) Justness and sincerity - They shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as
members of their personal staff whose terms are coterminous with theirs. d) Political neutrality - They shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. e) Responsiveness to the public - They shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas. f) Nationalism and patriotism - They shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. g) Commitment to democracy - They shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. living - They and their families shall lead modest lives h) Simple living appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. Basically, modest and simple living means maintaining a standard of living within the public official's or employee's visible means of income as correctly disclosed in his income tax returns, annual statement of assets, liabilities, and net worth and other documents relating to financial and business interests and connections.
b) Quality and consistency of performance c) Obscurity of the position d) Level of salary e) Unique and exemplary quality of achievement f) Risk or temptation inherent in the work h) Any similar circumstances or consideration in favor of the particular awardee 2) Form of incentives and rewards rewards - Incentives and rewards to government officials and employees of the year may take the form of: a) Bonuses b) Citations c) Directorships in government-owned or controlled corporations d) Local and foreign scholarship grants e) Paid vacations f) Automatic promotion to the next higher position suitable to his qualifications and commensurate salary 3) Committee on Awards Awards - composed of the following: the Ombudsman and the Chairman of the Civil Service Commission as Co-Chairmen, and the Chairman of the Civil Service Commission on Audit, and two government employees to be appointed by the President, as members. Functions and Responsibilities: a) Conduct a periodic, continuing review of the performance of officials and employees in all departments, offices, and agencies b) Establish a system of annual incentives and rewards to the end that due recognition is given to public officials and employees of outstanding merit on the basis of the criteria or standards set forth above c) Determine the form of rewards to be granted d) Formulate and adopt its own rules to govern the conduct of its activism, which shall include guidelines for evaluating nominees, and mechanism for recognizing the awardees in public ceremonies, and the creation of sub-committees
3) Duties of the Civil Service Commission - Under the Code, the Commission shall adopt positive measures to promote
4) Secretariat Secretariat - The Civil Service Commission shall provide secretariat services to the Committee
a) Observance of these standards including the dissemination of information programs and workshops authorizing merit increases beyond regular progression steps, to a limited number of employees recognized by their office colleagues to be outstanding in their observance of ethical standards
DUTY TO MAKE FINANCIAL DISCLOSURE
b) Continuing research and experimentation on measures which provide positive motivation to public officials and employees in raising the general level of observance of these standards SYSTEM OF INCENTIVES AND REWARDS A system of annual incentives and rewards is hereby established in order to motivate and inspire public servants to uphold the highest standards of ethics. 1) Criteria Criteria - The following criteria shall be considered in the conferment of awards: a) years of service
To maintain public confidence in government and in public officials and employees, to avoid conflicts of interest from arising, to deter corruption, and to provide the citizens with information concerning a public officer's financial affairs and thus enable them to better judge his integrity and fitness for office, the Constitution requires financial disclosures on the part of all government personnel. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. A public officer or employee shall, shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the
Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS AND LIABILITIES Public officials and employees, have an obligation to accomplish and submit declarations under oath of, and the public has the right to know their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. 1) Statement of Assets and Liabilities and Financial Disclosure a) Contents 1) Real property, its improvements, acquisition costs, assessed value, and current fair market value 2) Personal property and acquisition cost 3) All other assets such as investments, cash on hand or in banks, stocks, bonds, and the like 4) Financial liabilities, both current and long-term 5) All business interests and financial connections whether as proprietor, investor, promoter, shareholder, officer, managing director, creditor, lawyer, legal consultant or adviser, financial or business consultant, accountant, auditor, and the like, the names and old addresses of the business enterprises or entities, the dates when such interests or connections were established, and such other details as will show the nature of the interests or connections.
subsidiaries and state colleges and universities, with the Deputy Ombudsman in their respective regions 4) Officers of the Armed Forces from the rank of Colonel or Naval Captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions 5) All other officials and employees defined in Republic Act No. 3019, as amended, with the Civil Service Commission A copy of said statements shall also be filed with their respective departments, offices or agencies. d) Authority in favor of Ombudsman - All public officials and employees required to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain, from all the appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests, and financial connections in previous years, including, if possible, the year when they first assumed any office in the government. 2) Identification and disclosure of relatives - it shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the government in the form, manner and frequency prescribed by the Civil Service Commission. Under the Implementing Rules, such relatives shall include those up to the fourth civil degree of relationships, either of consanguinity or affinity, including bilas, inso and balae. 3) Accessibility Accessibility of Documents
b) When to File The documents must be filed: 1) Within thirty (30) days after assumption of office, statements of which must be reckoned as of his first day of service; 2) On or before April 30 of every year thereafter, statements of which must be reckoned as of the end of the preceding year 3) Within thirty (30) days after separation from the service, statements of which must be reckoned as of his last day of office c) Where to File The two documents shall be filed by: 1) President, Vice-President and Constitutional Officials, with the National Office of the Ombudsman 2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials such as Members of the Cabinet, Undersecretaries and Assistant Secretaries, including the foreign service and heads of government-owned or controlled corporations with original charters and their subsidiaries and state colleges and universities, with the Office of the President 3) Regional and local officials and employees, both appointive and elective, including other officials and employees of government-owned or controlled corporations and their
a) Any and all statements filed under the Act, shall be made available for inspection at reasonable hours b) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law c) Any person requesting a copy of a statement shall be required to pay a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification d) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless needed in an ongoing investigation e) Every official and employee shall also execute, within thirty (30) days from date of assumption of office, the necessary authority in favor of the Ombudsman to obtain, from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as to show his assets, liabilities, and net profit, and also his business interests, and financial connection in previous years, including, if possible, the year when he first assumed any office in the government. acts - It shall be unlawful for any person to obtain or 4) Prohibited acts use any statement filed under the Act for: a) Any purpose contrary to morals or public policy b) Any commercial purpose other than by news and communications media for dissemination to the general public
5) Authority/responsibility Authority/responsibility of certain officials
any requesting public, except if:
The following shall have the authority to determine whether said statements have been properly accomplished:
a) Such information, record or document must be kept secret in the interest of national defense or security or the conduct of foreign affairs b) Such disclosure would put the life and safety of an individual in imminent danger c) The information, record or document sought falls within the concepts of established privilege or recognized exceptions as may be provided by law or settled policy or jurisprudence d) Such information, record or document compromises drafts or decisions, orders, rulings, policy, decisions, memoranda, etc. e) It would disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy f) It would disclose investigatory records complied for law enforcement purposes, or information which if written would be contained in such records or information would
a) In the case of Congress, the designated committees of both Houses of Congress subject to approval by the affirmative vote of the majority of the particular House concerned b) In the case of the Executive Department, the heads of departments, offices and agencies insofar as their respective departments, offices and agencies are concerned subject to approval of the Secretary of Justice c) In the case of the Judicial Department, the Chief Justice of the Supreme Court d) In the case of the Constitutional Commissions and other Constitutional Offices, the respective Chairman and members thereof; in the case of the Office of the Ombudsman, the Ombudsman 6) Review and compliance procedures The above officials shall likewise have the authority to render any opinion interpreting the provisions on the review and compliance procedures in the filing of statements of assets, liabilities, net worth and disclosure of information. In the event said authorities determine that a statement is not properly filed, they shall inform the reporting individual and direct him to take the necessary corrective action. The individual to whom an opinion is rendered, and any other individual involved in a similar factual situation, and who, after issuance of the opinion acts in good faith in accordance with it shall not be subject to any sanction provided in the Code. 7) Basis in monitoring income and lifestyle of government officials and employees The Sworn Statement of Assets and Liabilities serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government in compliance with the constitutional policy to promote transparency in government to eradicate corruption and ensure that they lead just and modest lives. It is for this reason that the SSAL must be sworn to and is made accessible to the public subject to reasonable administrative regulations. TRANSPARENCY INFORMATION
OF
TRANSACTIONS
AND
ACCESS
TO
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. 1) Ensure transparency of public transactions - It is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices, such as biddings, purchases, other internal transactions, including contracts, status of projects, and all other matters involving public interest. 2) Provide official information - Every department, office, or agency shall provide official information, records or documents to
1) Interfere with enforcement proceedings 2) Deprive a person of a right to a fair trial or an impartial adjudication 3) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source 4) Unjustifiably disclose investigative techniques and procedures g) it would disclose information the premature disclosure of which would 1) In the case of a department, office or agency which agency regulates currencies, securities, commodities, of financial institutions, be likely to lead to significant financial speculation in currencies, securities, or commodities or significantly endanger the stability of any financial institution 2) in the case of any department, office or agency be likely or significantly to frustrate implementation of a proposed official action, except that subparagraph (f) (2) shall not apply in any instance where the department, office or agency has already disclosed to the public the content or nature of its proposed action, or where the department, office or agency is required by law to make such disclosure on its own initiative prior to taking final official action on such proposal systems - Every head of department, 3) Establish information systems office, and agency shall establish information systems and networks that will effect the widest possible dissemination of information regarding the provisions of the Code, and the policies and programs relative thereto. Such information systems must inform the public of the following: a) Policies, rules, and procedures b) Work programs, projects, and performance targets c) Performance reports d) All other documents as may hereafter be classified as public information Such information shall be utilized solely for the purpose of informing the public of such policies, programs and accomplishment, and not to build the public image of any official or employee or to advance his own personal interest. ----------------------------------------------------------------------------------------
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS Right to Compensation Forms of Compensation Defined and Distinguished 1) The term compensation when employed in reference to the remuneration of public officers means pay for doing all that may be required of the official, whether it is in the form of a fixed salary or wages, per diems, fees, commissions, or perquisites of whatsoever character. character. (GOVERNMENT SERVICE INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA 179) As distinguished from honorarium, the latter term is defined as something given not as a matter of obligation but in appreciation for services rendered a voluntary donation in consideration of services which admit of no compensation in money. GSIS defines "compensation" as "the basic pay or salary received by an employee, pursuant to his employment/appointment, excluding per diems, bonuses, overtime pay, and allowances." The law not only defines the word "compensation" but also distinguishes it from other forms of remunerations for purposes of computing the contribution of the employers and employees to the GSIS as well as the employees' service records and benefits. (GOVERNMENT SERVICE INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA 179) 2) Salary Salary - is the personal compensation to be paid to a public officer for his services, and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the services he may render. Salary - given to officers of higher degree of employment Wages - given to officers lower in degree of employment to those receiving salaries - regarded as compensation received per annum Salary Wages - paid day by day or week by week 3) Per Diem - merely one form of compensation granted to public officers, which is fixed not as ordinarily by the year or by the month but by the day. The compensation prescribed by law for public officers is sometimes in the form of per diem allowance for days actually spent in the performance of official duties. It is a daily allowance given for each day an officer or employee of government is away from her home base. This is its traditional meaning. Its usual signification is as a reimbursement for extra expenses by the public official in the performance of his duties. It is intended to cover the cost of lodging and subsistence of officers and employees when the latter are on duty outside of their permanent station. station . (GOVERNMENT SERVICE INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA 179) The per diems received by the respondent during the period that she acted in hold-over capacity as provincial Vice-Governor on a full-time basis were in the nature of compensation or remuneration for her services as such, rather than as a reimbursement for incidental expenses incurred while away from her home base regardless of the denomination given to the compensation received by him. (GOVERNMENT SERVICE INSURANCE SYSTEM vs CIVIL SERVICE COMMISSION, 245 SCRA 179) A per diem is not deemed to be a salary within a constitutional provision that no change in the compensation of officers shall
affect the salary of any officer during his existing term. It is not a fee unless clearly classified as such. So also is an honorarium defined as something given not as a matter of obligation, but in appreciation for services rendered, a voluntary donation in consideration for services which admit of no compensation of money (SANTIAGO vs COMMISSION ON AUDIT, 199 SCRA 128) such as the monthly allowances given by local government units to judges assigned within their territorial jurisdictions. 4) Sometimes the compensation of particular officers is made to depend on fees for services rendered or on commission on moneys officially passing through their hands. Where compensation is paid under the fee system, or on the basis of the amount of business done, or of public money passing through the officer's hands, a maximum sum may be fixed beyond which the officer is not to receive any emoluments. 5) When the term emoluments is used, it means the profit arising from the office what which is received as compensation for services or which is annexed to the office as salary, fees, or perquisites. It does not refer to the fixed salary alone that us attached to the office, but includes such fees and compensation as the incumbent of the office is, by law, entitled to receive. It may import more than "salary" or "fees." The term has been held to include "salary, fees, compensation, perquisites, pensions, and retirement benefits." (SANTIAGO vs COMMISSION ON AUDIT, 199 SCRA 128) Allowances such as representation and transportation, housing, etc., are included in the term "emoluments." (INTIA vs COMMISSION ON AUDIT, 306 SCRA 593) As a general proposition, a public official is not entitled to any compensation if he has not rendered any service. Under the "no work, no pay" principle, compensation is paid only for service actually or constructively rendered. It is possible that a local government official's salary may be less than that prescribed for his Grade since his salary depends also on the class and financial capability of his or her respective local government unit. Nevertheless, it is the law which fixes the official's grade. (BINAY vs SANDIGANBAYAN, 316 SCRA 65) RECOVERY OF COMPENSATION 1) From the government government - A de jure officer cannot, for the most part, recover from the government salary or compensation which has been paid to a de facto officer. It is a matter of simple justice that the emoluments must go to the person (de facto officer) who actually rendered the service unless the contrary is provided. Thus a candidate who assumed office in perfect good faith after he was duly proclaimed elected is entitled to retain the compensation paid him during his incumbency notwithstanding a protest filed against him (RODRIGUEZ vs TAN, 91 Phil, 724) for his assumption and tenure cannot be considered wrongful, (MONROY vs COURT OF APPEALS, 20 SCRA 621) considering that he would have been subjected to a penalty had he not accepted the office. But where the government continues to pay the officer de facto after the notice of adjudication of the protest in favor of the officer de jure, the latter may recover from the government the amount so paid after such adjudication and notice. officer - As a corollary rule to the above, a de 2) From the de facto officer jure officer can recover either from the government government or the de facto officer the amount paid to the de facto officer for services
rendered by him after notice of adjudication of the title to the former. Where the tenure of the de facto officer is "wrongful," the salary received by him during such tenure may be recovered. On the other hand, one who becomes a public officer de facto in good faith and renders the services required of the office is legally entitled to the emoluments of the office. 3) From the intruder or usurper usurper - One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office. He stands even in a less favorable position than an officer de facto. RODRIGUEZ vs TAN, 91 Phil. 724 Duly elected Senator seeks reimbursement of salaries paid to de facto officer officer FACTS: FACTS: Rodriguez claims that on December 30, 1947, Tan, defendant, usurped the office of Senator of the Philippines and until 1949 has continuously collected the salaries, emoluments, and privileges thereto; that to have been duly elected to the office; and that such usurpation caused damages to Rodriguez. Tan filed a motion to dismiss alleging that the Senate Electoral Tribunal judgment is a bar to this action under res judicata, and the said tribunal denied without reservation the claim for damages of Rodriguez. The Court dismissed the complaint, hence, the appeal of Rodriguez. ISSUE: Whether or not Tan who has been proclaimed, took the oath of office and discharged the duties of Senator can be ordered to reimburse the salary and emoluments he has received during his incumbency to Rodriguez who has been legally declared elected by the tribunal HELD: De facto officer ousted as a result of election protest entitled to compensation for services rendered. - Tan who has been proclaimed and had assumed office, but was later ousted as a result of an election protest is a de facto officer during the time he held the office of Senator, and is entitled to the compensation, emoluments, and allowances which are provided for the position by the Constitution. This is the policy and the rule that has been followed consistently in this jurisdiction. The emoluments must go to the person who rendered the service unless the contrary is provided. MONROY vs COURT OF APPEALS, 20 SCRA 621 Vice-Mayor who became Mayor seeks reimbursement of salaries paid to former former Mayor Mayor who who has ceased ceased as rightful rightful occupant occupant FACTS: Monroy FACTS: Monroy was the incumbent mayor of Navotas, Rizal when on September 15, 1961, his certificate of candidacy as representative as the first district of Rizal in the forthcoming elections (for Congressman) was filed with the COMELEC. Three days later, on September 18, Monroy filed a letter withdrawing said COC. The COMELEC approved the withdrawal. But on September 21, 1961, respondent Del Rosario, then Vice-Mayor of Navotas, took his oath of office as municipal mayor on the theory that Monroy had forfeited the said office upon his filing of the COC in question. The Court of First Instance of Rizal held in the suit for injunction instituted by Monroy against Del Rosario that (a) the former had
ceased to be Mayor after his COC was filed on September 15; (b) Del Rosario became municipal Mayor upon his having assumed office on September 21; (c) Monroy must reimburse as actual damages the salaries to which Del Rosario was entitled as Mayor from September 21, 1961, up to time he can reassume said office; and (d) Monroy must pay Del Rosario P1000 as moral damages. The Court of Appeals affirmed this adjudgment in toto except for the ward of moral damages which was eliminated. Hence, this petition by certiorari to review the ruling of the CA. ISSUE: Whether ISSUE: Whether or not Del Rosario is entitled to the salary of the office from September 21, 1961, up to the time he can reassume office HELD: Yes. HELD: Yes. De facto officer liable to reimburse salaries received to rightful incumbent. - "The general rule that the rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title" applies to this case. Possession of the title of office, not of the office itself, is decisive. A de facto officer, not having good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of public office. Where a Mayor withdrew his COC for Congressman and reassumed the position of Mayor, thus preventing the Vice-Mayor for discharging the duties of the position of Mayor, the Mayor should reimburse to the Vice-Mayor as the rightful occupant of Mayor the salaries which he had received. Rodriguez ruling not applicable. applicable. - "The ruling in Rodriguez vs Tan that no such reimbursement shall be made, is not applicable to the case at bar because the Tan case involved a duly proclaimed elected official who was later ousted. The de facto doctrine was formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers." Withdrawal of COC did not restore Monroy to his former position. position. - "The withdrawal of the COD does not restore Monroy to his former position. It does not render the withdrawal void ab initio. Once filed, the permanent legal effects produce thereby remain even if the certificate itself be subsequently withdrawn. PROHIBITION AGAINST RECEIVING ADDITIONAL, DOUBLE, AND INDIRECT COMPENSATION No elective or appointive public officer employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. The prohibition is designed to counter the evils of double compensation. It does not apply where: 1) The payment of additional, double, or indirect compensation to a particular officer or employee is specifically authorized by law in individual instances where the payment of such compensation appears not only just but necessary. (SADUESTE vs MUNICIPALITY OF SURIGAO, 72 Phil. 485) The prohibition is aimed against the giving of extra compensation by executive or
administrative order. 2) The additional compensation is received not from the government or any of its entities 3) There are two distinct offices, each of which has its own duties and compensation, in which case both may be held by one person at the same time. The prohibition refers to double compensation and not to double appointments and the performance of functions if more than one office. But the officer may draw the salary attached to the second position only when he is specifically authorized by law. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. So, a retired public officer or employee who has been reappointed or elected to a public office may continue to receive his pension or gratuities from the government and his salary at the same time, unless it is otherwise provided by law.
fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. Government employees are prohibited from striking by express provision of Memorandum Circular No 6 (1987) of the Civil Service Commission and as implied in EO No. 180 (1987). Employees of the SSS are part of the Civil Service. (SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION vs COURT OF APPEALS, 175 SCRA 686) 3) Government employees who join, participate, or take part in any prohibited concerted activity or mass action, which result n the disruption of work or service, shall be held administratively liable for the offense of conduct prejudicial to the best interest of the service. The right to self-organization of government employees does not carry with it the right to engage in any form of prohibited concerted mass action resulting in work stoppage or disruption of public service. RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW ADMINISTRATIVE CODE
OTHER RIGHTS 1) The right to preference in promotion Rights under the Constitution 1) The right to self-organization - The right to self-organization shall not be denied to government employees. The quoted provision grants to government employees in the civil service the right to form unions enjoyed by workers in the private sector. 2) The right to protection of temporary employees - Temporary employees of the government shall be given such protection as may be established by law. 3) Freedom of Members of Congress from arrest and from being questioned questioned - privileged from arrest while Congress is in session. The provisions grant parliamentary immunities to members of Congress. 4) The right not to be removed or suspended except for cause provided by law law - Implicit in the constitutional prohibition against removal or suspension except for cause, is the existence of a charge, due hearing, and the finding of guilt by the proper authority. Participation in Prohibited Activity or Mass Action Prohibited concerted activity or mass action refers to "any collective activity undertaken by government employees either by themselves or through their employees' organizations, with the intent of effecting work stoppage ir service disruption in order to realize their demands or force concessions, economic, or otherwise, from their respective agencies or the government." However, a concerted activity or mass action done outside of government office hours may be allowed and shall not be deemed prohibited so long as such would not result in disruption of work. 1) Even if there is no statement of the right to self-organization in the Constitution, government workers can form associations for purposes not contrary to law. However, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass actions which will result in temporary stoppage or disruption of public services. 2) SInce the terms and conditions of government employment are
a) Vacancy occurs in a position in first level of Career Service b) Vacancy occurs in a position in second level of Career Service c) Screening process in each department or agency d) Vacancy not filled by promotion as provided above e) Right to appeal of qualified next-in-rank f) Nature of protest 2) The right to present complaints and grievances 3) The right not be suspended or dismissed except for cause as provided by law and after due process 4) Right to organize For this purpose, "qualified next-in-rank" employee refers to an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the Commission. (EO No. 292; RA No. 7160) Vacancies and succession in local government units are governed by Sections 44, 45, and 46 of R.A. No. 7160, the Local Government Code of 1991. Next-in-Rank Rule 1) Not a mandatory requirement - The next-in-rank rule specifically applies only in cases of promotion. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. (MEDENILLA vs CIVIL SERVICE COMMISSION, 194 SCRA 278). One who is next-in-rank to a vacancy is given preferential consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed. rule - To apply the next in rank rule peremptorily 2) Reason for rule would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified anf eligible, the appointing authority id granted discretion and prerogative of choice of the one he deems fit for appointment. All that the Civil
Service Commission is actually allowed to do is to check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. No other criterion is required to be employed by the Commission. 3) Discretion of appointing authority - The appointing authority, under the law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, re-employment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. The appointing authority is given wide discretion to fill the vacancy among the several alternatives provided for by law. 4) Overriding factor factor - The Civil Service Law's intention is not to merely bestow upon permanent employees the advantage arising from their long employment, but most especially, it is to foster a more efficient public service. Any other factor must yield to the demand for an efficient government, which necessarily entails appointment of competent, qualified, and proficient personnel. PERSONNEL ACTIONS Personnel Action - any action denoting movement or progress in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion, and separation, All personnel actions shall be in accordance with such rules, standards, and regulations as may be promulgated by the Commission.
involving the issuance of an ap pointment.) Reassignment - an employee may be reassigned from one 7) Reassignment organizational unit to another in the same department but such reassignment shall not involve a reduction in rank, status, or salary, otherwise such reassignment would, in effect, constitute constructive removal and violate his right to security of tenure, A reassignment does not require the issuance of an appointment. (Transfer: a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. / Detail: movement of an employee from one department or agency to another without the issuance of an appointment and shall be allowed only for a limited period in the case of employees occupying professional, technical, and scientific positions.) Demotion - movement from one position to another involving 8) Demotion the issuance if an appointment with diminution in duties, responsibilities, status, grade, or rank which may or may not involve reduction in salary, although usually accompanied by a decrease in salary. A demotion by assigning an employee to a lower or less important position in the same service which has a lower rate of compensation is tantamount to removal, if no cause is shown for it. RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE ACT SCOPE OR COVERAGE
1) Appointment 1) Appointment through certification - shall be issued to a person who has been selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles and who meets all the other requirements of the position.
Membership in the GSIS shall take effect upon the employee's assumption to duty pursuant to a valid appointment or election and oath of office. Membership in the GSIS for non-permanent employees who were in the service as of the effectivity of RA No, 8291 took effect on June 24, 1997.
Promotion - the advancement from one position to another 2) Promotion with an increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. The movement may be from one department or agency to another, or from one organization unit to another in the same department or agency.
COMPULSORY MEMBERSHIP
3) Transfer Transfer - it is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. 4) Reinstatement Reinstatement - it means restoration to a state or condition from which one has been removed or separated. Any person who has been permanently appointed to a position in the career service and who has, through the delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. 5) Reemployment - names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made. 6) Detail Detail - the movement of an employee from one department or agency to another without the issuance of an appointment and shall be allowed only for a limited period in the case of employees occupying professional, technical, and scientific positions. (Transfer: a movement from one position to another which is of equivalent rank, level, or salary without break in service
All employees receiving compensation who have not reached the compulsory retirement age, while in the service of: 1) The national Government 2) Its political subdivisions, branches, agencies, instrumentalities 3) government-owned and controlled corporations 4) Financial institutions with original charters 5) The Constitutional Commissions 6) The Judiciary
or
Whether by election or appointment. EXCEPTIONS: 1) Those receiving per Diems or honoraria only 2) Uniformed members of the AFP and PNP 3) Those not receiving basic pay or salary (allowances only) 4) Contractuals who have no employer and employee relationship with the agencies they serve 5) Members of the Judiciary (life insurance only) 6) Members of the Constitutional Commissions (life insurance only) All members of the GSIS shall have life insurance, retirement, and all other social security protection such as disability, survivorship, separation, and unemployment benefits.
BENEFITS Benefits - old age pension shall be paid to a 1) Retirement Benefits member who a) has at least 15 years of service b) is at least 60 years of age c) is not receiving a monthly pension benefit from permanent total disability
Gratuity Gratuity - donation and an act of pure liberality on the part of the State. Pension Pension - more than an act of generosity. It is an act of justice emanating from the desire to provide, through tardily, adequate compensation for services already rendered for which one had not received complete and adequate reward at the time when such services were rendered RIGHT TO REINSTATEMENT AND BACK SALARY
Retirement shall be compulsory at age 65. 2) Separation Benefits Benefits - payable upon reaching 60 years of age upon separation, whichever comes later or at the time of resignation or separation and a life pension to start at age 60 to be given to those separated from the service with at least 15 years of service and are below 60 years of age 3) Unemployment or Involuntary Separation Benefits - payable to an employee involuntarily separated from the service due to reorganization, merger, or privatization, who has paid the stipulated 12 monthly integrated contributions 4) Disability Benefits Benefits - A member shall be entitled to the permanent total or partial disability benefits effective from the date of his/her disability, provided, that he/she: a) is in the service at the time of disability b) is separated from the service and has paid at least 36 monthly contributions within the five-year period immediately preceding the disability or has paid a total of at least 180 monthly contributions prior to the disability A member who suffers temporary total disability for reasons not due to grave misconduct, notorious negligence, habitual intoxication or willful intention to kill himself or another may be entitled to benefits if he/she: a) is in the service at the time of disability and has exhausted his sick leave credits b) if separated, has rendered at least three years of service and has paid at least six monthly contributions in the 12-month period immediately preceding the disability 5) Survivorship Benefits - when a member or pensioner dies, the beneficiary shall be entitled to survivorship benefits provided for in the law which shall consist of: a) basic survivorship pension which is 50% of the basic monthly pension b) dependent's pension not exceeding 50% of the basic monthly pension 6) Funeral Benefits Benefits - amount of funeral benefit shall be deterined and specified by the GSIS in the rules and regulations Benefits - all employees except members of the 7) Life Insurance Benefits AFP and PNP, shall be compulsorily covered with life insurance PENSION AND GRATUITY Pension - are regular allowances paid to an individual or group of individuals by the government in consideration of services rendered, or in recognition of merit, civil or military. PENSION vs GRATUITY
Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. REINSTATEMENT - restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal BACK SALARY SALARY - a form of relief that restores the income that was lost by reason of unlawful dismissal lawful - The The general proposition 1) Where removal or suspension lawful is that a public official is not entitled to any compensation if he has not rendered any service - as he works, he shall earn. A denial of salary to an employee during the period of his suspension if he should later on be found guilty, is proper because he had given ground for his suspension. (BANGALISAN vs COURT OF APPEALS, 276 SCRA 619) unlawful - Where an officer 2) Where removal or suspension unlawful entitled to fixed annual salary was unlawfully removed or suspended and was prevented for a time by no fault of his own from performing the duties of the office, he might recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. He may recover the full amount notwithstanding that during the period of his removal or suspension, the salary has been paid to another appointed to fill the vacancy unlawfully created. If the illegal dismissal is found to have been made in bad faith by the superior officers, then they will be help personally accountable for back salaries of the illegally dismissed employee. (DAVID vs GANIA, 409 SCRA 80) An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement. (DAVID vs GANIA, 409 SCRA 80) 3) Where suspended employee later found innocent -Back-pay may be allowed for the period when an employee is not allowed to work without his fault and was later found innocent of the charges causing his suspension. To deny an innocent employee his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. Before a public official or employee who has been reinstated is entitled to payment of salaries withheld, it should be shown that he suspension or removal is unjustified or illegal and he is found innocent or acquitted of the charge preferred against him. For all legal purposes, he is considered as not having left his office; therefore he is entitled to all the rights and privileges that accrue by virtue of the office he held. (DEL CASTILLO vs CIVIL
SERVICE COMMISSION, 278 SCRA 209)
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
4) Where employee not completely exonerated - If the employee is not completely exonerated of the charges, such as when the penalty of dismissal is reduced to mere suspension to a fine, he would not be entitled to the payment of his back salaries. (CASTRO vs GLORIA, 363 SCRA 417)
Disabilities of President, Vice-President, Members of Cabinet, and their Deputies and Assistants
5) Where another appointed to position of illegally dismissed or suspended employee - When a regular government employee was illegally suspended or dismissed, legally speaking, his position never became vacant and he is considered as not having left the office. (TANALA vs LEGASPI, 13 SCRA 566) The fact that there is now an appointee to the position he claims is, therefore, of no moment. The new appointment is not valid. 6) Duty of plaintiff seeking reinstatement to prove his right to the office - In a litigation, where plaintiff seeks reinstatement to an office, well-known is the principle that, to succeed, plaintiff must prove his right to the office. He must establish that when dispossessed, he was entitled to the office. Unless this right is shown, the action must fail even if the appointment of the successor is first in issue. 7) Right to reinstatement to former or at least comparable position - The general rule is that a person suspended or dismissed from the public office through no fault of his own is entitled to be reinstated to his former position or at least to a comparable position, if feasible. In a case where reinstatement of an illegally dismissed chief of police to his former position as ordered in the appealed judgment is no longer feasible and hence, cannot be enforced., in view of the appointment of a permanent chief of police in accordance with PD No. 485 which provides for the integration of police and fire departments and jails in certain provinces, it was held that such illegally dismissed chief of police is entitled to back salaries. (LAGANAPAN vs ASEDILLO, 154 SCRA 377) 8) Duty to act with reasonable diligence in asserting right to reinstatement reinstatement - A public officer or employee who has been removed from his position must act with reasonable diligence to have himself reinstated for however unjust and unwarranted the removal, suspension or transfer of a public officer or employee may be, his right to reinstatement may be lost by unreasonable delay in asserting his rights. A petition quo warranto and mandamus affecting titles to public office must be filed within one year fromthe date the petitioner is ousted from his position. The claim for back salaries and damages is also subject to the prescriptive period of one year. 9) Where pardon extended to convicted employee - A pardon, unless expreslly grounded on the person's innocence or unless the right to public office is expressly restored by it, does not ipso facto restore a convicted felon to public office. It merely restores his eligibility for appointment to that office, and to regain his former post, he must reapply and undergo the usual procedure required for new appointment. Pardon implies guilt. It looks to the future. It is not retrospective. Since the offense has been established by judicial proceedings, the grantee cannot be entitled to receive back pay for lost earnings and benefits. (MONSANTO vs FACTORAN, 170 SCRA 190) ----------------------------------------------------------------------------------------
During their tenure, the President and Vice-President, as well as the Members of the Cabinet, and their deputies or assistants are subject to prohibitions: 1) They shall not hold, unless otherwise provided in the Constitution itself, any other office or employment 2) They shall not practice any other profession 3) They shall not participate, directly or indirectly, in any business 4) They shall not be financially interested directly or indirectly, in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporations or their subsidiaries 5) They shall strictly avoid conflict of interest in the conduct of their office In addition to the above disabilities, the President is prohibited during his tenure from appointing his spouse and relatives by consanguinity or affinity within the fourth civil degree. Disabilities Disabilities of Members of Congress 1) No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat 2) Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected 3) No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies 4) Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office 5) He shall not intervene in any cause or matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office or to give his vote as a member of Congress Disabilities Disabilities of Members of Constitutional Commissions 1) No member of a Constitutional Commission shall, during his tenure, hold any other office or employment 2) Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office 3) Nor shall he be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries Prohibition against Designation of Members of Judiciary to Administrative Positions
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries.
1) Such designation violates the doctrine of separation of powers between the judicial and executive branches of the government
An appointive official may hold any other office or employment in the Government including Government-owned or controlled corporations or their subsidiaries only when allowed by law or when required by the primary functions of his position. The rule aims to remedy the problem of appointive officials holding multiple positions which prevent them from devoting full time to their principal functions and result in double or multiple compensation.
2) It may compromise the independence of the members in the performance of their judicial functions
Prohibition against Receiving Additional, Double, or Indirect Compensation
3) With so many cases pending in courts, the practice will result in further delay of their disposition
No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law.
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.
Prohibition against Partisan Political Activities No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. The term "any partisan political activity" is practically synonymous with "any electioneering or partisan political campaign". Both refer to acts designed to have a candidate elected or not, or to promote the candidacy of a person or persons to public office. They include such activities as participation in political campaigns conventions, caucuses, parades or rallies, making speeches or commentaries for or against the election of any party or candidate, publishing or distributing campaign literature or materials, and soliciting votes or contributions, either directly or indirectly. Prohibition against Appointment of Elective Officials No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. During his tenure in office (not term of office), any elective official is disqualified for appointment or designation (not from being a candidate or being elected) to any public office or position in the government, whether national or local, including GOCCs. A law allowing such appointment is unconstitutional. The disqualification incapacitates the incumbent from accepting or holding a second office and renders his appointment to the latter office void; hence, he does not forfeit his elective office. He may be appointed provided he first resigns his seat. As long as he is incumbent, an elective official remains ineligible for appointment to another public office. Prohibition against Holding More than One Position by Appointive Officials
Pensions or gratuities shall not be considered as additional, double, or indirect compensation. Prohibitions Imposed on Civil Service Officers or Employees The Civil Service Decree provides the following prohibitions: Activity - No officer or employee in the Civil Service a) Political Activity including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code b) Additional or Double Compensation Compensation - No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind from any foreign state. c) Limitations on Employment of Laborers - Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical duties. d) Prohibition on Detail or Reassignment - No detail or reassignment whatever shall be made within three (3) months before any election. e) Nepotism - All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision supervision over him, are hereby prohibited. As used in the law, the word "relative" and members of the family
referred to are those related within the third degree of consanguinity or affinity. The prohibitions is subject to exceptions.
3) If the administration's disciplinary power is strong, such violation may lead to imposition of fine, reprimand, suspension, or removal from office, as the case may be
---------------------------------------------------------------------------------------LIABILITIES OF PUBLIC OFFICERS Doctrine of Official Immunity from Liabilities for Public Officers The rationale for official immunity is the promotion of fearless, vigorous, and effective administrations of policies of government. The threat of suit could also deter competent people for accepting public office. Other public policy considerations which have led to the policy of immunity for public officers have been identified as the loss of valuable time caused by such actions, the unfairness of subjecting officials to personal liability for the acts of their subordinates, and a feeling that the ballot and removal procedures are more appropriate methods of dealing with the misconduct in public office. Official Immunity and State Immunity distinguished IMMUNITY OF PUBLIC OFFICIALS - more limited principle that State or governmental immunity OFFICIAL IMMUNITY - protects sovereign collaterally by protecting the public official in the performance of his governmental function STATE IMMUNITY - purpose is directly to protect the sovereign
The same wrongful act or omission of a public officer may give rise or subject him to civil, criminal and/or administrative liability. An action for each can proceed independently of the others. These three remedies against a public officer may be pursued simultaneously and successively. ADMINISTRATIVE LIABILITY INCURRED IN A PREVIOUS TERM BY AN ELECTIVE OFFICIAL 1) Reelection operates as electorate condonation of a previous misconduct 2) Condonation does not extend to reappointed coterminous employees 3) Reelection does not extinguish criminal or civil liability LIABILITY OF THE PRESIDENT FOR OFFICIAL ACTS 1) Civil responsibility 2) Criminal liability 3) Liability for damages LIABILITY OF OTHER EXECUTIVE OFFICIALS FOR OFFICIAL ACTS 1) Functions involve exercise of discretion 2) Reasons for Immunity 3) Acts of heads of executive departments LIABILITY OF LEGISLATIVE OFFICIALS FOR OFFICIAL ACTS
OFFICIAL IMMUNITY - serves a protective aegis for public officials from liability for damages arising from discretionary acts or functions in the performance of their duties STATE IMMUNITY - rested upon tenuous ground that the king could do no wrong. Serves to protect the impersonal body politic or government itself from tort liability OFFICIAL IMMUNITY NOT ABSOLUTE Suit to enforce liability for personal torts - The mere allegation that a government functionary is being sued is his personal capacity will not automatically remove him from the protection of the law of public officers, and, if appropriate, the doctrine of state immunity, and neither does the mere invocation of official character suffice to insulate him from suability and liability for damages for an act imputed to him as a personal tort committed without or in excess of his authority. (SANDERS vs VERIDIANO, 162 SCRA 99) Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status to a public officer found to have acted beyond the scope of their jurisdiction or authority. (CHAVEZ vs SANDIGANBAYAN, 193 SCRA 282)
1) Privileges accorded members of Congress 2) Reasons for Immunity LIABILITY OF MEMBERS OF THE JUDICIARY FOR OFFICIAL ACTS 1) Reasons for Immunity 2) Liability for rendering an unjust judgment 3) Liability for gross ignorance of law and incompetence 4) Quantum of proof necessary to support administrative charges LIABILITY OF QUASI-JUDICIAL OFFICERS FOR OFFICIAL ACTS 1) Nature of functions 2) Reasons for Immunity 3) Liability for ministerial acts LIABILITY OF MINISTERIAL OFFICERS FOR OFFICIAL ACTS 1) General Rule 2) Requisites for Liability 3) Liability where officer also acts extra judicially KINDS OF LIABILITY OF MINISTERIAL OFFICERS
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS - Liability rule for violation of duty or for wrongful act or omission by public officials or employees 1) If the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party 2) If the law has attached a penal sanction, the officer may be punished criminally
1) Nonfeasance Nonfeasance - neglect or refusal, without sufficient excuse, to perform an act which it was the officer's legal duty to the individual to perform Misfeasance - the failure to use, in the performance of a duty 2) Misfeasance owing to an individual, that degree of care, skill and diligence which the circumstances of the case reasonably demand 3) Malfeasance Malfeasance - the doing, either through ignorance, inattention
or malice, of that which the officer has no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores or abuses his powers LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF S UBORDINATES 1) General rule 2) Exceptions 3) Other exceptions LIABILITY OF SUBORDINATES
misdemeanors for which an officer may be prosecuted criminally 2) Public officers may not be held criminally liable for failure to perform a duty commanded by law, when for causes beyond their control, performance is impossible. 3) The mere expiration of his term of office will not prevent the prosecution and punishment of a public officer for a misdemeanor committed in office, nor the re-election of a public official extinguishes the criminal liability incurred by him during his previous term of office.
1) Same rules as those applicable to officers of higher rank 2) Where acts done pursuant to orders or instructions of a superior
TERMINATION OF OFFICIAL RELATIONS
LIABILITY FOR TORTIOUS ACTS
1) Expiration of the term or tenure of office 2) Reaching the age limit (retirement) 3) Death or permanent disability 4) Resignation 5) Acceptance of an incompatible office 6) Abandonment of office 7) Prescription of right to office 8) Removal 9) Impeachment 10) Abolition of Office 11) Conviction of a crime 12) Recall
1) Acts done within scope of official authority 2) Acts done without or in excess of official authority LIABILITY UNDER THE CIVIL CODE 1) For failure or neglect to perform official duty 2) For violating rights and liberties of private individuals 3) For failure to render aid or protection to a person LIABILITY ON CONTRACTS EXECUTED IN BEHALF OF THE GOVERNMENT
Modes of Termination of official relations
NATURAL CAUSES General Rule: Rule : A public officer acting within the scope of his authority and in his official capacity is not personally liable on contracts executed in behalf of the government Exception: Exception: One who executes an unambiguous personal undertaking which makes no mention of the public agency he serves or does not indicate that it is executed in an official capacity, may not escape liability by claiming that the public agency was the real principal
1) By expiration of term of office 2) By reaching of age limit 3) By death or permanent disability disability ACTS OR NEGLECT OF OFFICER 1) By resignation What Constitutes Resignation
LIABILITY FOR UNEXPLAINED WEALTH 1) Republic Act No. 1379 (Forfeiture of Unexplained Wealth Act) declares the forfeiture in favor of the State of any property found to have been unlawfully acquired by any public official or employee 2) On the other hand, R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) penalizes certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto LIABILITY OF ACCOUNTABLE OFFICERS TO THE GOVERNMENT 1) Bond requirement 2) Primary and secondary responsibility 3) General liability for unlawful expenditures 4) Measure of liability of accountable officers 5) Liability for acts done by direction of superior officer
a) An intention to relinquish a part of the term b) Accompanied by the voluntary act of relinquishment c) An acceptance by the proper authority Repudiation of Resignation a) A resignation is not effective although a successor has already been appointed to take the place of the first incumbent of said resignation has been transmitted without the officer's consent b) The resignation of a public officer procured by fraud or by duress is voidable and may be repudiated c) A repudiation given as an alternative to have charges filed against the public officer may be repudiated, for said resignation cannot be accepted as having been given by the officer voluntarily and willingly 2) By Acceptance of an incompatible or Prohibited Office 3) By Abandonment of office 4) By Prescription of right to office
CRIMINAL LIABILITY ACTS OF THE GOVERNMENT OR THE PEOPLE 1) Aside from furnishing grounds for disqualification or holding office and for suspension or removal from office, various offenses arising out of an abuse or wrongful usurpation of authority are held by specific statutory provisions, to be felonies or
1) By Removal Security of Tenure - simply means that an officer or employee in
the civil service shall not be suspended or dismissed except for cause as provided by law and only after due process is accorded Nepotism a) Situations covered b) Persons not covered c) Designation included n prohibition d) Purpose of prohibition Disciplinary Jurisdiction of the Civil Service Commission Commission 1) Scope 2) Appellate jurisdiction over administrative disciplinary cases 3) Jurisdiction of heads of departments, agencies, and instrumentalities 4) Investigation by a regional director or similar official 5) Execution of decision pending appeal 6) Reconsideration of a final and executory decision not allowed 7) Power to terminate employment; academic freedom institutions of higher learning Withdrawal of Complaint against Respondent 1) Criminal and administrative cases impressed with public interest 2) People's faith and confidence in government involved 3) Truth and justice, not choice of witnesses, must rule 2) By Impeachment 3) By Abolition of Office Requisites of a V alid Abolition a) Good faith b) Not for personal or political reasons, or in order to circumvent the incumbent's security of tenure c) Not implemented in violation of law Termination through Reorganization 1) Based on a valid purpose and done in good faith 2) Instances of valid reorganization 4) By Conviction of a Crime Effects of Pardon 1) Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. 2) Pardon restores his eligibility for appointment to that office 3) A pardon of a public officer merely removes the disqualification from holding public employment but it cannot go beyond that 4) A pardon does not extinguish the civil liability of the grantee arising from the crime he has been convicted of. 5) By Recall
