Public-officers.ppplectures2011.ppt

LAW ON PUBLIC OFFICERS By Asst. Omb. Rodolfo M. Elman, CESO lll Ateneo de Davao Law School

Public Office  Definition  Distinguished

from contract  Elements of a public office  Basic precept underlying public office: Art. Xl, Sec. 1, 1987 Constitution  Meaning of principle

Cases Determining whether a position is a public office or not (Laurel vs. Desierto, 381 SCRA 48)  Constitutionality of a law (RA 9335) providing for a system of rewards and incentives for BIR and BOC officials and employees (Abakada Guro Party List vs. Purisima, 562 SCRA 251)  Membership in the market committee (Figueroa vs. People, 498 SCRA 298)  Private sector membership in NBDB under RA 8047 (Javier vs. Sandiganbayan, 599 SCRA 325) 

 Creation

of the Phil. Truth Commission under EO 1 is unconstitutional as it violates the equal protection clause (Lagman vs. Ochoa & Biraogo vs. PTC, December 7, 2010), although the President has the power to create the PTC as an ad-hoc body to investigate reports of graft pursuant to Art. Vll Sec. 17.

Classifying Public Officers of GOCCs under RA 3019  PNCC

Assistant Manager (Macalino vs. Sandiganbayan, 376 SCRA 452)  President and COO of Phil. Postal Savings Bank (People vs. Sandiganbayan, 16 February 2005)  Philhealth Manager (Geduspan vs. People, 451 SCRA 187)  VPs and AVP of AFP RSBS (Alzaga vs. Sandiganbayan, 505 SCRA 849)

`  Characteristics

of Public Office  No express provision depriving incumbent of his office (Segovia vs. Noel, 47 Phil. 543)  Public office not a property which passes to heirs; exception (Abeja vs. Tanada & Mayor Radovan, 236 SCRA 62)  Election protest continues despite death of public officer; VM a real party in interest (De Castro vs. Comelec & Jamilla, 267 SCRA 806)

Oath of Office A

qualifying requirement for public office; a prerequisite to full investiture w/ the office; right to enter into office becomes plenary and complete (Mendoza vs. Laxina, Sr. 406 SCRA 156)  In taking oath, he binds to perform faithfully and act primarily for benefit of public (Ombudsman vs. Jurado, 561 SCRA 137)

 General

rule: Individual cannot be forced to accept public office  Exceptions: 1. Sec. 4, Art. ll, 1987 Constitution 2. Art. 234, RPC 3. Posse comitatus

De Facto Officer  Definition  Requisites  Distinguish

from a de jure officer and a

usurper  Can an officer de jure recover from the government salary paid to de facto officer?  Can a de jure officer recover the salary from the de facto officer?

Cases  Arimao

vs. Taher, 498 SCRA 76  Menzon vs. Petilla, 197 SCRA 251  Civil Liberties Union vs. Executive Secretary, 194 SCRA 317  Malaluan vs. Comelec, 254 SCRA 400 (2000 BQ)  Tarrosa vs. Singson, 232 SCRA 553  Mendoza vs. Allas, 302 SCRA 623

 Since

they do not claim to be entitled to the Senate office of Gordon, petitioners have no legal standing to file the quo warranto petition to declare him as having forfeited his seat in the Senate (Liban vs. Gordon, 593 SCRA 68).

Cases  Engano

vs. CA, 493 SCRA 324  Gaminde vs. COA, 13 December 2000  National Amnesty Commission vs. COA, 437 SCRA 670

Civil Service Art. lX-B, Sec. 2(3) Const.; Sec. 36, PD807; Sec. 46, EO 292 (1999 BQ)  Purpose of the civil service system *Meram vs. Edralin, 154 SCRA 238)  Scope: Art. lX-B, Sec. 2(1) Const.  Civil Service Commission is the sole arbiter of controversies relating to the civil service; exercises exclusive jurisdiction over all cases involving personnel actions xxx *Corsiga vs. Defensor, 391 SCRA 267 

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The case involves personnel action, i.e., petitioner is questioning the summary reallocation and demotion directed by the DBM w/c resulted in the diminution of his benefits. His proper remedy is not before the OP but to question the DBM denial of his protest before the CSC w/c has exclusive jurisdiction over cases involving personnel action. In turn, the CSC resolution may be elevated to the CA under Rule 43 and finally, before the Supreme Court (Go vs. CA, 626 SCRA 180).

Law on Administrative Jurisdiction vs. public school teachers  Sec.

9 of the Magna Carta for Public School Teachers (RA 4670)  Coverage of term “teacher”: all persons engaged in classroom teaching on full time basis including guidance counselors, school librarians, industrial arts or vocational instructors and all other persons performing supervisory or administrative functions

Exclusions to the term “teacher”  Public

school teacher in the professional staff of state colleges or universities  School nurses, physicians, dentists and other school employees in the category of medical and dental personnel

Cases CSC does not have original administrative jurisdiction vs. a public school teacher (Emin vs. De Leon, 378 SCRA 143)  Admin supervision over court employee belongs to S.C. whether offense was committed before or after employment in judiciary, but estoppel applies (Ampong vs. CSC, 563 SCRA 293)  Jurisdiction not lost upon instance of parties (Omb vs. Estandarte, 13 April 2007) 

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While the Ombudsman has concurrent administrative disciplinary authority with the DECS over public school teachers, the Ombudsman may refer a complaint to the proper disciplinary authority under Sec. 23 of RA 6770. Respondent is a public school teacher covered by RA 4670, hence the proceedings before the DECS would have been the more appropriate venue to resolve the dispute (Ombudsman vs. Delijero, 10 October 2010).

Higher Education Modernization Act of 1997 (RA 8282)  Power

of university’s Board of Regents under RA 8282 to discipline its officials and employees not exclusive but concurrent with CSC.  Academic freedom cannot be invoked where there are allegations of CS law and rules violations (CSC vs. Sojor, 22 May 2008)

GOCCs not covered by Civil Service Law a. PNOC-EDC vs. Leogardo, 175 SCRA 26 b. Bliss Development Corp. Employees Union vs. Calleja, 237 SCRA 271 (EO 180 not applicable to BDC) c. Food Terminal Inc. (1999 BQ), Lumanta vs. NLRC, 170 SCRA 79 d. PVBEU vs. PVB, 24 August 1990 ~PVB (RA 3518) e. Phil. National Construction Corp., Macalino vs. Sandiganbayan, 376 SCRA 452

Q. What is the status of PNRC? Did Gordon automatically forfeit his Senate seat in holding the post of PNRC Chair? *The Phil. National Red Cross is not a GOCC but a privately owned, privately funded and privately run charitable organization. The vast majority of thousands of its members are private individuals, including students. *PNRC Board of Governors, w/c exercises all corporate powers of PNRC, elects the Chair. *Unlike water districts, the elements of gov't ownership and control are lacking in PNRC. *Chairman is not an official or employee of the Government, hence no violation of Sec. 16, Art. Vll of the Constitution. *The PNRC Charter is void insofar as it creates the PNRC as a private corporation. (Liban vs. Gordon 593 SCRA 68)

GOCCs covered by Civil Service Law a. BSP vs. NLRC, 22 April 1991 b. Baluyot vs. Holganza, 9 Feb 2000 *PNRC under RA 95 c. DFP vs. Mojica, 471 SCRA 776 *Duty Free Phil. under EO 46 d. Alzaga vs. Sandiganbayan, 505 SCRA 848 *AFP-RSBS under RA 9182 (Special Purpose Vehicle Act of ’02)

PD 198 as amended by PD 1479 and RA 9286  Local

water districts subject to Civil Service Law. Sec. 25 of PD 198 already removed by PD 1479 (Hagonoy Water District vs. NLRC, 165 SCRA 272)  Local Sanggunian resolution, although necessary for final creation of WD, is not its charter (DCWD vs. CSC, 201 SCRA 605)

COA Audit of GOCCs Constitution mandates COA to audit GOCCs with original charter like water districts (De Jesus vs. COA, 403 SCRA 666).  ’01 BQ: Effect of privatization of PNB on audit jurisdiction of COA  BSP is a public corporation or a government agency or instrumentality with juridical personality under CA 111 as amended by RA 7278 (BSP vs. COA, June 7, 2011) 

 An

employee of a GOCC, even if organized under the general law, considered resigned upon filing certificate of candidacy (PNOC-EDC vs. NLRC, 222 SCRA 831)  Hiring and firing of employees of GOCCs with original charter governed by CS law *ZCWD vs. Buat, 232 SCRA 587 *DOH Dr. Rodriguez Hospital vs. NLRC, 251 SCRA 700)

Civil Service Law applies to Philippine Postal Corp. as regards personnel matters, but its BoD is authorized under RA 7354 to formulate its own compensation structure and position classification (Intia, Jr. vs. COA, 306 SCRA 610)  DBM has sole power/discretion to administer CPCS of national government  Compensation and benefits received by PRA officials w/o DBM approval are unauthorized and irregular (PRA vs. Bunag, 397 SCRA 27) 

GOCC Governance Act of 2011 (RA 10149) Promotes financial viability & fiscal discipline in GOCCs thru the Governance Commission for GOCCs  Evaluates performance & relevance of GOCCs, monitors their operations  Repeals GOCCs’ charters w/c fix the directors’ term by reducing it to 1 yr.  Incumbents up to 6/30/11  Per diems for actual attendance… incentives as authorized by GCG 

Abolition of Career Executive Service Board (CESB) by CSC is an ultra vires act (Eugenio vs. CSC, 31 March 1995)  Abolition of Merit System and Protection Board (MSPB as created under PD 1409) by CSC is valid; CSC authority under Sec. 17, Book V, EO 292 (Rubenicia vs. CSC, 31 May 1995)  CSC could rule on administrative decisions on appeal before MSPB (Fernando vs. Sto. Tomas, 234 SCRA 548) 

Classification of Civil Service Under PD 807 and EO 292 a. Career service b. Non-career service ~meaning & importance of security of tenure (BQ) al. Under Art. lX-B, Sec. 2(2), 1987 Constitution a. Competitive positions b. Non-competitive positions I.

Career Service What characterizes the career service? (’99 BQ)  What is included in the career service? (’99 BQ) 1. Open career 2. Closed Career 3. Positions in CES 4. Career officers other than CES 5. Commissioned officers/enlisted men in AFP 6. Personnel of GOCC  Importance of security of tenure 

 Three

major levels/classes of positions in the Career Service 1) First level includes clerical, trades, crafts and custodial services positions 2) Second level includes professional, technical and scientific positions… up to Division Chief level 3) Third level covers positions in the Career Executive Service (EO 1 creating the PTC)

Qualification in an appropriate exam is required for appointment to positions in the first and second levels in the career service; provided that whenever there is a civil service eligible actually available for appointment, no person who is not an eligible shall be appointed even in a temporary capacity xxx  Exceptions: when immediate filling of vacancy is urgently required … or when vacancy is not permanent … 

Cases on Career Service  Illegal

dismissal of a career officer (Palmera vs. CSC, 235 SCRA 87)  Astraquillo vs. Manglapus & Melchor vs. Saez, 190 SCRA 281  Proximity rule: Salas’ position as Internal Security Staff was remote from the appointing authority (Pagcor vs. Salas, 274 SCRA 414)

Non-Career Service  

What characterizes the non-career service? What is included in the non-career service? 1. Elective officials and their personal or confidential staff 2. Department heads and other officials of Cabinet rank xxx 3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff 4. Contractual personnel 5. Emergency and casual personnel

Cases on non-career service A

non-career service employee is protected from removal without just cause (Jocom vs. Robredo, 201 SCRA 73)  Chair of the Commission on Filipino Language is a non-career official whose tenure of 7 years is fixed by RA 7104; her removal is not at pleasure of appointing authority (Office of President vs. Buenaobra, 501 SCRA 303)

Art. lX-B, Sec. 2 (2) Competitive positions: appointments made according to merit and fitness  Non-competitive positions 1. Primarily confidential 2. Policy determining 3. Highly technical  Nature – and not label – that makes it competitive. Executive has power to declare classification of non-competitive position (Sec. 12, Bk. V, EO 292) 

Term of office vs. Tenure of Incumbent Term – the time during w/c officer may claim to hold office as of right and fixes the interval after w/c the incumbents shall succeed one another.  Tenure – the term during which the incumbent actually holds office.  Importance of distinction: Constitutional principle of non-removal without due process of law would be negated if Congress could legally make tenure of officials dependent on pleasure of the President. 

Cases 

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Term of office Chair & Members of CHR under EO 163 to comply with Sec. 17(2), Art. Xlll (Bautista vs. Salonga, 172 SCRA 164); EO 163-A is unconstitutional Members of HRET have security of tenure; disloyalty to party not a valid ground for expulsion (Bondoc vs. Pineda, 201 SCRA 792) Requisites for effective operation of rotational scheme for Constitutional Commissioners (Republic vs. Imperial, 96 Phil. 770; ’99BQ; ’10BQ) Start and end of 7-year term of office of CSC Commissioner (Gaminde vs. COA, 13 Dec. 2000)

Primarily Confidential Positions Rule: Tenure of officials holding primarily confidential positions ends upon loss of confidence xxx cessation not a removal but expiration of term.  City Legal Officer (Cadiente vs. Santos, 142 SCRA 280)  Prov’l Attorney (Grino vs. CSC, 26 Feb. 1991)  Permanent Representative to UN (De Perio Santos vs. Macaraig, 10 April 1992) 

Eligibility to Public Office 

  

Qualifications generally required of public officers * Citizenship, residence, age, education and civil service qualifications Qualification Standards Religious qualifications prohibited (Sec. 5, Art. lll, Constitution) Ruling in Pamil vs. Teleron on basis of Sec. 2175 of old Admin. Code (20 Nov. 1978) superseded by ’87 Const.

Property qualifications may not be imposed for the exercise of right to run for public office. Law requiring candidates for public office to post surety bond of P20T held unconstitutional (Maquera vs. Borra, 07 Sept. 1965)  Qualifications of local elective officials (Sec. 39, RA 7160)  Loss of any of the qualifications during incumbency a ground for termination (Labo vs COMELEC, 176 SCRA 1) 

Disqualifications for local elective position (Sec. 40, RA 7160; ’99BQ) Those sentenced by final judgment for an offense involving moral turpitude …  Those removed from office as a result of an administrative case  Those convicted by final judgment for violating oath of allegiance  Those with dual citizenship  Fugitives from justice …  Permanent residents in a foreign country  The insane or feeble-minded 

Cases Punong Barangay convicted of arbitrary detention but has not served his sentence because of the grant of probation is not disqualified to seek ’02 local elective office (Moreno vs. Comelec, 498 SCRA 49)  Petitioner’s conviction of fencing which is a crime of moral turpitude (Anti-Fencing Law) & thus falling squarely under the disqualification in Sec. 40 (a) subsists & remains unaffected even if he was granted probation; perfection of an appeal is relinquishment of alternative remedy of availing of Probation Law (Dela Torre vs. Comelec, 258 SCRA 483). 

A local elective official who is removed before the expiration of his term is disqualified from being a candidate for local elective position (Reyes vs. Comelec, 254 SCRA 514)  Where the decision has not become final by reason of his filing a MR, respondent local elective official is not disqualified to run (Lingating vs. Sulong, 391 SCRA 629)  “Dual citizenship” refers to “dual allegiance”; dual citizenship not a disqualification (Mercado vs. Manzano, 26 May 1999)(note: ruling now modified by RA 9225) 

Dual Citizenship Act (RA 9225) Those who retain or re-acquire Phil. citizenship under this Act and seek elective public office shall meet the qualifications xxx and at the time of the filing of the certificate of candidacy, make a personal & sworn renunciation of any and all foreign citizenship before public officer authorized to administer an oath [Sec. 5 (2)].  Affiant must state in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be effective (Eusebio Lopez vs. Comelec, 23 July 2008) 

 Candidate

Merito Miguel who is a green card holder must waive his status as a permanent resident or immigrant of a foreign country, as manifested by some act(s) independent of and done prior to filing his candidacy for elective office of Mayor of Bolinao, Quezon (Caasi vs. CA, 191 SCRA 229)

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Under Sec. 2 of RA 8171, repatriation is effected by taking the necessary oath of allegiance to RP and registration of Certificate of Repatriation in proper civil registry and the Immigration Bureau. Petitioner, a candidate for post of Mayor of San Jacinto, Masbate in May ’04 elections, took his oath in Dec. ’97 but registered his Certificate w/the Civil Registry and the Immigration Bureau only after 6 years. He completed all requirements for repatriation only after he filed his cert. of candidacy, hence he is disqualified (Alterejos vs. Comelec, 441 SCRA 655).

 Repatriation

results in the recovery of the original nationality. Since the candidate for elective office was a natural born Filipino before he became a naturalized American citizen, he was restored to his former status as a natural born Filipino upon repatriation (Bengson vs. HRET, 357 SCRA 545)

Designation  Distinguished

from appointment

 Cases:

*National Amnesty Commission vs. COA, 437 SCRA 657 *Binamira vs. Garrucho, 188 SCRA 154

Appointment Kinds of appointment: permanent and temporary  Different steps in process of appointment  Acceptance of appointment not essential to its validity but necessary to the full possession of the office  One who holds a temporary appointment has no fixed tenure of office (Achacoso vs. Macaraig, 195 SCRA 237) 

Acceptance of a temporary appointment without intention to abandon permanent position (Palmera vs. CSC, 235 SCRA 87)  Acceptance of a temporary appointment on his own volition and in exchange of a permanent appointment (Romualdez vs. CSC, 197 SCRA 168)  Resident physician position is not permanent (Felix vs. Buenaseda, 240 SCRA 139) 

Power to Appoint  An

exercise of discretion (Patagoc vs. CSC & Despalo, 14 May 1990)  “next-in-rank” rule (Umoso vs. CSC & Caronon, 234 SCRA 819)  Appointment required to be submitted to CSC (Tomali vs. CSC, 238 SCRA 572)

Power of CSC to approve or disapprove (Orbos vs. CSC & Madarang, 189 SCRA 459)  Even an appointment initially approved by CSC may be subsequently recalled when found to be invalid. RA 6850 (a law granting CS eligibility to employees efficiently serving for at least 7 yrs.) does not cure a void appointment for being based on petitioner’s false representation of eligibility (Maniebo vs. CA, 627 SCRA 571). 

Nepotism rule Sec. 59, EO 292: prohibition within 3rd degree of consanguinity or affinity  Sec. 67, EO 292: penalty of fine of not more than P1,000 or not more than 6 years imprisonment or both  Sec. 79, RA 7160: prohibition within 4th degree of consanguinity or affinity  A promotional appointment violative of nepotism rule is null and void (Debulgado vs. CSC, 237 SCRA 184).  Exceptions to the rule 

Although what was extended by petitioner Governor to Benjamin, who had been holding a promotional appointment as Civil Security Officer, was merely a designation – and not an appointment – to the position of Provincial Administrator, the prohibition vs. nepotism would include designation, because what cannot be done directly cannot be done indirectly (Laurel V vs. CSC, 203 SCRA 195).  Purpose of the rule vs. nepotism: take out of the discretion of the appointing or recommending authority. 

Where CSC disapproves appointment, appointee need not be previously heard (Debulgado vs. CSC, 237 SCRA 186)  Passage of CS exam does not transform temporary appointment to permanent (Camarines Prov. vs. CA, 246 SCRA 283)  Respondent’s success in the CS exam upon end of her temporary appointment as Bd. Sec. did not legally oblige PSCA to reappoint her. There are other considerations like confidence & trust (Gloria vs. Rosario Cerillo, 249 SCRA 133). 

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Appointing authority & appointee are real parties to challenge CSC disapproval (Abella vs. CSC, 442 SCRA 507). No violation of CSC resolution prohibiting midnight appointment where the filling up resulted from deliberate action and careful consideration of qualifications (Quirog vs. Aumentado, 570 SCRA 582). Prohibition on “midnight appointments” under Art. Vll, Sec. 15 of Constitution applies only to presidential appointments and not to local chief executives (De Rama vs. CA, 353 SCRA 94).

Art. Vll, Sec. 15 Constitution  “Two

months immediately before the next presidential elections and up to the end of his term, the President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

When appointee may be reassigned/transferred Where appointment indicates no specific station, employee may be transferred or reassigned provided … no substantial change in title, rank or salary.  5 year term Dean of College of Education (Sta. Maria vs. Lopez, 31 SCRA 637)  Reassignment of Gloria Navarro as Principal in Division of City Schools, Quezon City (DECS vs. CA, 183 SCRA 555) 

Reassignment that is indefinite violates security of tenure and is in effect constructive dismissal (Gloria vs. CA & Icasiano, 338 SCRA 10).  Appointments to staff of CSC are not appointments to a specified public office but appointments to particular positions or ranks. Petitioners were each appointed to the position of Director lV without specification of any particular office or station. Also, EO 292 authorizes the Commission to carry out changes in the organization as the need arises (Fernandez vs. Sto. Tomas, 242 SCRA 193). 

A reassignment which removes from the officer power of supervision over employees is a diminution of her status (Padolina vs. Fernandez, 343 SCRA 442).  Mayor has power to reconstitute CSSDO and devolve national DSWD employees to CSSDO in line w/ devolution under RA 7160 (Plaza vs. Cassion, 435 SCRA 295).  BIR Commissioner is authorized to assign or reassign revenue officers (VinzonsChato vs. Martinez, 344 SCRA 18). 

 Bad

faith is evident by the fact that the reassignment was issued days after the reassigned officials filed a graft case vs. petitioner and that the authority to reassign officers of the LWUA lies with the Board and not with petitioner. Presumption of regularity does not apply when petitioner’s acts are not within his duties specified by law but pertain to the Board (Reyes, Jr. vs. Belisario, 596 SCRA 35).

Career Executive Service (CES) Security of tenure in CES is acquired w/respect to rank and not to position; within CES, personnel can be shifted to another position w/o violating their rights to security of tenure because their status & salaries are based on their ranks & not on their jobs.  Petitioner’s appointment is not permanent as she does not have the rank appropriate for position of Chief Public Attorney (Cuevas vs. Bacal, 347 SCRA 339). 

2 requisites must concur in order that an employee in the CES may attain security of tenure, to wit: a) CES eligibility; and b) appointment to the appropriate CES rank.  Passing CES exam entitles examinee to conferment of CES eligibility. Upon conferment, incumbent of CES position may qualify for appointment to a CES rank. W/o CES eligibility, his appointment may be withdrawn anytime w/o violating right to security of tenure (Caringal vs. PCSO, 472 SCRA 577). 

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Although the law allows the appointment of a non-CES eligible to CES positions in the government in the absence of appropriate eligibles & in the interest of public service, however, in all cases the appointment is at best temporary conditioned on the subsequent acquisition of the required CES eligibility. Petitioner’s separation from the service w/o cause as Dep. Director for Hospital Support Services is valid as her position belongs to the CES (Amores vs. CSC, 29 April ’09).

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Unless and until an employee in the CES is appointed to the appropriate CES rank, he acquires no security of tenure even if he is a CES eligible. Respondent, though a CES eligible, does not possess the appropriate CES rank, w/c is CES rank level V, for the position of RD of LTO- Reg. V. He could thus be reassigned to other positions in the CES as he did not have security of tenure (General vs. LTO RD Roco, 350 SCRA 528). Justification of transfer/reassignment of CESO to other positions: mobility and flexibility. The Integrated Reorganization Plan (PD 1) allows the appointment of non-CES eligibles, like Montesa as Ministry Legal Counsel, provided they subsequently acquire the eligibility (De Leon vs. Montesa, 371 SCRA 413).

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There is a distinction between position and rank. A CESO may be transferred or reassigned from one position to another without losing his rank, but there can be no distinction between resigning from a position and resigning from a rank. Rank of a CESO is deactivated upon resignation from the gov’t service, which includes the resignation of a CESO from his position. Petitioner’s claim that his relief as Undersecretary for Civil Relations of DND violated his security of tenure as CESO is untenable because, by his own deliberate deed, he resigned. Any express promise of another position is void (Collantes vs. CA, 517 SCRA 561).

Positions Excluded from CES (CESB Res. 799,May ’09) 1. Managerial and executive positions w/fixed term of office as provided in charter or law 2. Managerial and executive positions in non-career service w/c include the ff: a. Elective officials & their personal/confi staff b. Secretaries and other officials of cabinet rank and their personal/confi staff c. Chairman and members of commissions and boards with fixed terms of office & their personal/confi staff d. Contractual personnel & emergency/seasonal staff

Positions excluded from CES 3. Managerial and executive positions in the national government belonging to the closed career systems w/c are administered by special bodies such as the Foreign Service, PNP, State colleges and universities unless provided in their respective charters, the Scientific Career Service and the like 4. Position of Head Executive Assistant

Presidential Appointments ad interim and regular (Art. Vll, Sec. 16 Const.); Distinction  Distinction between ad interim appointments from appointments in an acting capacity; President’s issuance of appointments in an acting capacity not impairment of power of Congress (Pimentel vs. Ermita, 472 SCRA 589) 

Ad interim appointment is permanent, and not a temporary appointment that can be withdrawn or revoked anytime; President can renew ad interim appointment of a by-passed appointee (Matibag vs. Benipayo, 380 SCRA 49)  Appointments solely for President to make cannot be ad interim appointments (Bautista vs. Salonga, 172 SCRA 160). 

3 stages in regular appointments  4 groups of officers whom the President shall appoint  The “other officers” referred to whose appointments are vested in the President under the Const. 

Cases  Quintos

Deles vs. Commission on Appointments, 177 SCRA 259 (Art. XVlll, Sec. 7 on Sectoral Rep.)  Sarmiento vs. Mison, 156 SCRA 549  Tarrosa vs. Singson, 232 SCRA 555  Calderon vs. Carale, 208 SCRA 254  Manalo vs. Sistoza, 312 SCRA 239 (’02 BQ)

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Prohibition on midnight appointment in Sec. 15, Art. Vll does not apply to appointment of members of the Supreme Court. Had the framers intended to, they could have easily and surely written that the prohibition in Sec. 15, Art. Vll is equally applicable to appointment of SC members, most likely in Sec. 4, Art. Vlll. The express intent of the framers is enshrined in Sec. 4, Art. Vlll which is a command to the President to fill up any vacancy within 90 days from its occurrence (De Castro vs. JBC, 3/17/10).

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Appointments of fourth group of lowerranked officers may by law be vested in the head of board. The Chair of CCP is vested with power under PD 15 to appoint lowerranked officers but not the co-trustees of the board. Sec. 6 of PD 15, insofar CCP Board to elect their co-trustees is unconstitutional as it violates Sec. 16, Art. Vll. Although CCP enjoys autonomy of policy & operation, thus giving the Board authority to initiate & formulate policies & undertake activities, these are all subject to the President’s power of control (Rufino vs. Endriga, 496 SCRA 16).

Modes of Terminating Official Relations  

Abolition is neither removal or separation. Reorganization is valid when done in good faith. A reorganization is in good faith if it is for purpose of economy or make bureaucracy more efficient. If so, there is no dismissal since the position itself ceases to exist. But if the abolition is for political reason or to defeat security of tenure, or there is mere change of nomenclature of positions, the abolition is void. Here, no actual reorganization took place, i.e. reduction of personnel , consolidation of offices or abolition for the purpose of economy, or redundancy of functions, but a simple revamp of personnel. He separated 394 personnel but replaced them w/ 522. (Dario vs. Mison, 176 SCRA 84)

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The municipality’s pretended abolition of petitioner’s position of dentist on ground of lack of funds is void as the municipality approved salary & budget increases and issued new appointments at the time of her dismissal. Considering the lapse of 20 yrs., she was awarded back salaries equivalent to 5 yrs. (Gingson vs. Murcia, 08 Feb. 1988) Where abolished office (Science Promotion Inst.) and the two new offices created have similar functions, abolition lacks good faith (Guerrero vs. Arizabal, 186 SCRA 109). RA 6715 which declared vacant NLRC positions & provided for the removal of incumbents upon qualification of their successors is unconstitutional. It did not expressly or impliedly abolish petitioners’ offices (Mayor vs. Macaraeg, 194 SCRA 672).

*Sec. 8 of RA 8551 which provides that the terms of the current Commissioners are deemed expired is unconstitutional, being in violation of petitioners’ security of tenure guarantee. The revisions in the new law do not constitute essential changes in the nature of NAPOLCOM as to result in the implied abolition of such office. Its organizational structure, powers & duties remain the same. RA 8551 effected a reorganization of the PNP and not the NAPOLCOM. All acts done pursuant to Sec. 8 are null & void. There can be no valid appointments to non-vacant positions. (Canonizado vs. Aguirre, 323 SCRA 313)

Incompatibility of offices 

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Acceptance of another office incompatible w/ the first office ipso facto vacates the first office. When is there incompatibility of offices? Not mere physical impossibility of one person performing… but contrariety arises from nature & relations… Positions of Inspector General of IAS and NAPOLCOM Commissioner are incompatible. NAPOLCOM has power of control over PNP. Also, RA 8551 prohibits an IAS personnel from sitting in a committee…

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The crucial test to determine incompatibility: whether one office is subordinate to the other, i.e. one office has right to intervene w/ the other. The positions of PCGG Chair and Chief Presidential Legal Counsel are incompatible (PICI vs. Elma, 494 SCRA 54). Sec. 13, Art. Vl of Constitution was not violated when respondent Senator got elected as PNRC Chair. PNRC was created by RA 95 to comply w/Geneva Convention (Liban vs. Gordon, 593 SCRA 68).

 Abandonment

of an office is the voluntary & total relinquishment of an office by the holder, w/intention to terminate his possession & control  No abandonment if office is vacated in deference to requirement of law & despite acceptance of IAS position (Canonizado case).  Antonio’s failure to take steps to reassume office… constitute abandonment (SB of San Andres vs. CA, 284 SCRA 276; ’00BQ).

Resignation – expression of incumbent of an intention to relinquish his office and acceptance by competent & lawful authority (Ortiz vs. Comelec, 28 June ’88).  Abandonment of office before acceptance of resignation is punishable under Art. 238 RPC  Submission of resignation of SB Member to the Mayor is not a valid resignation. Sec. 82 of LGC provides its submission to the Sanggunian (SB of San Andres case). 

Acceptance of courtesy resignation does not does not mean express or implied promise of another position (Collantes vs. DND, 517 SCRA 561).  Resignation cannot be used as an escape to evade administrative liability. Respondent Clerk of Court’s resignation before investigation is indicative of his guilt(Gonzales vs. Escalona, 566 SCRA 4).  Jurisdiction of the tribunal is acquired at the time of filing of complaint; it is not lost by resignation of respondent from his office during the pendency of the case. 

Hasty filing by petitioner cashier of her certificate of candidacy is a ploy to avoid administrative charge. Other penalties may still be imposed (Pagano vs. Nazarro, 533 SCRA 622).  Whether resigned or not is to be determined by totality test; non-issue as Congress has declared GMA de jure President. Inability to discharge duties of Presidency is political & addressed solely to Congress. Sec. 12 of RA 3019 prohibiting resignation of officer during pendency of charges cannot be invoked by petitioner (Estrada vs. Desierto, 3/02/01). 



 

Cause for removal must be as provided by law. Failure to make a courtesy call to one’s superior or to submit her appointment papers is not an offense. (Adiong vs. CA, 371 SCRA 374) Summary dismissal has been repealed by RA 6654. Illegally dismissed officer is entitled to reinstatement and payment of back salaries & other monetary benefits from time of dismissal up to reinstatement. An illegally dismissed employee who is reinstated is considered not having left her office & should be given the corresponding compensation at time of reinstatement (not limited to 5 yrs.) [Batangas Univ. vs. Bonifacio, 478 SCRA 152]

Official cannot be removed for misconduct during a prior term (Aguinaldo vs. Comelec, 212 SCRA 768).  Aguinaldo inapplicable to criminal case. Reelection to the post of Congressman is not a reasonable classification in criminal enforcement. Functions & duties of his office are not substantial distinctions w/c lift him from the class of prisoners interrupted in their freedom (Pp vs. Jalosjos, 324 SCRA 692). 

*Prisoners cannot hold office while in detention. No disenfranchisement as people’s mandate yields to Constitution (Trillanes vs. Judge Pimentel, 27 June ’08) *As a necessary consequence of arrest and detention, all prisoners cannot practice their profession nor engage in business or occupation or hold office, elective or appointive, while in detention (Pp vs. Hon. Maceda, 380 Phil. 1)

Disloyalty is not a ground for expulsion from HRET (Bondoc vs. Pineda, 201 SCRA 792; ’02 BQ)  2 categories of administrative actions vs. government employees  To warrant removal from office of an officer, the misconduct, misfeasance or malfeasance must be directly related to performance of official duties  Rule: Where crime is not office related, officer may not be charged administratively based thereon until a final judgment of conviction of the crime involving moral turpitude or disqualification to hold office. 

Exception: when the act or offense also constitutes violation of administrative rules, no conviction is required.  In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, are manifest.  Respondent’s act(s) of stealing a kiss and demanding for a date, as an unlawful consideration for issuance of a permit, constitute grave misconduct (CSC vs. Belagan, 440 SCRA 578).

To warrant dismissal, dishonesty need not be dutyconnected.  Willful failure to pay just debts: claims adjudicated by a court or claims the existence & justness of w/c are admitted by the debtor.  If respondent is found guilty of 2 or more charges, penalty to be imposed is that corresponding to most serious charge and the rest are aggravating.  Effects of dismissal  Entitlement of dismissed employee to leave credits. 

 

Action dropping public officer from the rolls is nondisciplinary (CSC Circular No. 12, s. 1994). Mental incapacity due to immoral or vicious habits under Sec. 46 EO 292 is different from mental incapacity under Sec. 26 EO 292. The first carries admin. disabilities, while the second does not. But both result in loss of employment – a property right protected under due process clause. While petitioner at time of dropping from the rolls was suffering from protracted mental disorder, same did not render her incapable of performing her work. There was incomplete cause to drop her. She is reinstated w/payment of back salaries up to reinstatement (Romagos vs. Metro Cebu Water, 533 SCRA 50).



The mayor has right to contest reversal by the CSC or the Court of Appeals of his order suspending or dismissing a mun. employee. Reasons: a) His right to appeal flows from the fact that his power to appoint carries w/it power to remove; b) Salaries of respondent are drawn from municipal funds. He has real & substantial interest. Here, the Mayor & the CSC are real parties in interest to contest the CA reversal of their decision suspending respondents for 2 months & subsequently dropping them from the rolls (Mayor Dagadag vs.Tongnawa, 450 SCRA 446).

Impeachment under Sec. 2, Art. Xl  Observance of fundamental procedural requirement (Cuenco vs. Fernan, 2/17/88)  Cronyism is a legal ground for impeachment of the President. This refers to betrayal of public trust and includes cronyism w/c involves unduly favoring a crony to the prejudice of public interest (’00BQ).  Once impeachable officer retires, Court may proceed vs. him and impose sanction for misconduct during his tenure (Re: Justice Ruben Reyes, 580 SCRA 106). 

Deputy Ombudsman not impeachable officer (OMB vs. Mojica, 452 SCRA 714).  An impeachable officer who is a member of the Bar cannot be disbarred without first being impeached. But here, since the grounds for the disbarment complaint vs. Borra w/c are supposed errors of judgment or grave abuse of discretion in appreciation of facts, are proper for an appeal, complainant’s remedy is judicial (Marcoleta vs. Borra, 582 SCRA 474).  Whether offenses in the impeachment complaint constitute valid impeachable offenses is a nonjusticiable political question. A determination of what constitutes an impeachable offense is purely political (Francisco vs. NMMP, 425 SCRA 44). 

Recall: formal withdrawal by electorate of their trust in elective official’s ability to discharge his office.  Loss of confidence as ground for recall is a political question where only the people are the judge (Evardone vs. Comelec, 204 SCRA 464).  Elective local official sought to be recalled shall not be allowed to resign while recall process is in progress (Sec. 73 RA 7160).  No recall within 1 yr. from date of official’s assumption to office or 1 yr. immediately preceding a regular local election (Sec. 74 RA 7160). 

Preventive Suspension 2 kinds of preventive suspension  Teachers exonerated of the original charges and found guilty only of violation of reasonable office rules are entitled to compensation xxx (Gloria vs. CA, 306 SCRA 287; ’01BQ)  Postmaster originally dismissed from service but penalty reduced to 6 mos. suspension on appeal (Sales vs. Mathay, 129 SCRA 321) 

Modification on appeal of penalty of dismissal from service for gross neglect to 3 mos. suspension for simple neglect is not exoneration; reinstatement but no payment of backwages (CSC vs. Rabang, 14 March ’08)  Grounds for preventive suspension under Sec. 51 EO 292  Preventive suspension under Secs. 63 & 64, LGC 

Sec. 24 RA 6770  Sec. 13 RA 3019  Cases: *Bayot vs. Sandiganbayan, 128 SCRA 383 *Deloso vs. Sandiganbayan, 173 SCRA 409 *Libanan vs. Sandiganbayan, 233 SCRA 163 *Berona vs. Sandiganbayan, 435 SCRA 306 

 Purpose

of pre-suspension hearing

 Cases

*Talaga vs. Sandiganbayan, 570 SCRA 622 *Juan vs. Pp, 322 SCRA 126 *Santiago vs. Sandiganbayan, 356 SCRA 637 (’02BQ) *Flores vs. Layosa, 436 SCRA 339

Rights, Duties & Privileges Basis of right to salary: legal title to the office & the law attaches compensation to the office.  To be entitled to recover from the public the salary, officer must show he is the officer de jure. A mere de facto officer cannot recover.  In absence of constitutional prohibition, legislature has absolute authority to change the compensation of public officer. 



Compensation of Pres. & VP, as fixed by law, cannot be increased by Congress during their continuance in office. A law increasing the salary of the Pres. Or VP shall not benefit the incumbent Pres. or VP, for the increase shall not take effect after expiration of his term during w/c such increase was approved. They shall not received during their tenure any other emolument from government or any other source (Sec. 6, Art. Vll).

 The

salary of the members of the SC & judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased (Sec. 10, Art. Vlll).  There is no prohibition vs. increase in their salary w/c may be made effective immediately.

 The

salaries of Senators & Members of the House of Rep. shall be determined by law (Sec. 10, Art. Vl).  Congress is not prohibited from increasing or decreasing the salary of its members. However, any increase can take effect only after the expiration of the full term of the members approving such increase. This rule applies also to those who voted vs. the increase.

Can an officer de jure recover from gov’t salary paid to de facto officer? De jure officer, upon establishing his title to the office, cannot recover from the public the amount paid to the de facto officer for services performed by him before adjudication upon the title.  He can recover from the public the salary so paid to the de facto officer after notice of the adjudication in favor of the former. 

Can de jure officer recover from de facto officer salary received by him? A

de jure officer can recover from the de facto officer the salary, fees or other emoluments received by him after notice of adjudication of title in favor of the de jure. He would not if payment of salary were made before adjudication of title.

 Where

there is no de jure officer, a de facto officer who in good faith has had possession of the office & has discharged the duties is legally entitled to emoluments of the office.  Officer may not retain salary from fees collected by him in his official capacity.

 Salary

not subject to garnishment, attachment or assignment.  Salary cannot be assigned.  Agreement affecting compensation is void as vs. public policy.  No elective or appointive officer shall receive additional, double or indirect compensation, unless specifically authorized by law [Sec. 8 (1), Art. lX B]

 There

is additional compensation when for one and the same office for which a compensation has been fixed there is added to such fixed compensation an extra reward in the form, for instance of a bonus.  Double compensation refers to two sets of compensation for two different offices held concurrently by one officer.

 Pensions:

an act of liberality; not a salary (Sec. 8 par. 2, Art. lX B)  Only full-time services with compensation are credited for retirement purposes under GSIS Act (Valdez vs. GSIS, 30 June ’08).  Retirement pay may not be applied to indebtedness to the government (Cruz vs. Tantuico, 166 SCRA 671; Tantuico vs. Domingo, 230 SCRA 391).

Benefits granted under GSIS Act (RA 8291) not subject to judicial & admin processes, including COA disallowances ; Exception (GSIS vs. COA, 441 SCRA 534)  Loss of retirement benefits if public officer is convicted xxx (Sec. 13, RA 3019)  COA can direct withholding of salary pending litigation of public officer’s liability (Santiago vs. COA, 537 SCRA 740) 

Payment of per diem only & no other compensation under Sec. 13, PD 198 (Baybay WD vs. COA, 374 SCRA 482; De Jesus vs. COA, 403 SCRA 667). Practice in granting the benefit, no matter how long continued, cannot give rise to any vested right if it is contrary to law.  LWUA Reso granting compensation to BOD of LWDs is contrary to Sec. 13, PD 198 (Querubin vs. COA, 433 SCRA 773). No need to refund benefits received in good faith prior to Baybay ruling(De Jesus vs. CSC, 471 SCRA 626; Barbo vs. COA, 568 SCRA 304). 

 Sec.

13 PD 198 now amended by RA 9286 as approved on 04/02/04 *Apart from per diem, each director shall receive allowances & benefits as the Board may prescribe subject to LWUA approval  Alternates of ex-officio members of NHA Board are not entitled to extra compensation (Dela Cruz vs. COA, 371 SCRA 158).





RA 7916 authorizing DOLE Sec. or representative to receive per diem as PEZA Board member violates Constitution (Dir. Bitonio vs. COA, 425 SCRA 437). The ex-officio position being part of the principal office, the official has no right to receive additional compensation for his services in said position. Retirement benefits under RA 8551 are applicable to INP members retired prior to effectivity of RA 6975 since INP was not abolished but merely transformed (PNP vs. Manila’s Finest, 09 May ’07). RA 6975 considered them as PNP members. Also, under Sec. 38 of RA 8551, the retirement benefits shall have retroactive effect in favor of PNP members, retired or separated.

Constitutional right to self-organization Sec. 8 Art. lll, Sec. 2(5) Art. lXB, Sec. 3 Art. Xlll 1987 Constitution  Scope under EO 180 (Arizala vs. CA, 14 Sept. ’90).Terms & conditions of gov’t employment are governed by law.  Gov’t employees do not have right to strike xxx (SSS vs. CA, 175 SCRA 686; Manila PSTA vs. Educ. Sec., 200 SCRA 323; Gesite vs. CA, 444 SCRA 52).  Right of gov’t employees to organize is limited to formation of unions/assns… 

Exercise of rights to peaceably assemble and petition for redress of grievances must be exercised w/in reasonable limits xxx without work stoppage (Bangalisan vs. CA, 276 SCRA 619; Dela Cruz vs. CA, 305 SCRA 303).  No back wages may be awarded to the teachers who were reinstated after the dismissal order issued by the DECS Sec. were commuted to 6 mos. Suspension by CSC (Alipat vs. CA, 308 SCRA 781).  What are excluded from (included in) negotiation by government employees? 

Right to Information

Guarantees right of people to demand information on matters of public concern (Sec. 28 Art.ll Const.)  Can be invoked by any citizen (Gonzales vs. Narvasa, 337 SCRA 736)  A duty of officialdom even if nobody demands (North Cotabato vs. GRP, 568 SCRA 410). The subject of information sought, i.e. MOA-AD, is of public concern, involving as it does the sovereignty and territorial integrity of the State, w/c directly affects the lives of the public at large. 

Exemptions from compulsory disclosure of information (Chavez vs. PCGG, 09 Dec. ’98)  Right to information does not extend to ‘privileged information’ (Neri vs. Senate, 564 SCRA 153)  Doctrine of executive privilege which includes matters of diplomatic character under negotiation and review (Senate vs. Ermita, 488 SCRA 1) 

Liability of Public Officers  An

impeachable officer cannot be charged during his incumbency with any offense w/c carries with it penalty of removal (In re Gonzales, 160 SCRA 771)  Sections 2 & 3, Art. Xl Constitution  Sec. 3 RA 3019  Sec. 7 RA 6713

RA 6713  Sec.

4: Norms (code: CPJPRNCS)  Sec. 5: Duties  Sec. 8: Submission of SALN (in re Sec. 7 RA 3019)  Sec. 9: Divestment (avoid conflict of interest at all times)

Unexplained Wealth of Public Officers Basis of Lifestyle Check: *Sec. 1 Art. Xl Constitution *Sec. 8 RA 3019 in re to RA 1379  Cases *PNB vs. Gancayco, 15 SCRA 91 *Banco Filipino vs. Purisima, 161 SCRA 576 *Marquez vs. Desierto, 359 SCRA 773  Exceptions to the rule vs. disclosure of bank deposits (UBP vs. CA, 321 SCRA 563) 

Liability of Head of Office Sec. 102 PD 1405  Head of office as final approving authority of disallowed transaction not necessarily personally liable (Albert vs. Gangan, 353 SCRA 680; Peralta vs. Desierto, 473 SCRA 323)  Heads have to rely on their subordinates and on good faith of those who prepared documents (Arias vs. Sandiganbayan, 180 SCRA 309) 

Administrative liability could not be based on the principle of command responsibility (Principe vs. OMB, 374 SCRA 460).  Negligence of subordinates cannot always be ascribed to their superior (De Jesus vs. Guerrero, 598 SCRA 342)  General Rule: Superiors cannot be held liable for acts of their subordinates  Exceptions 

No recovery of damages by official for falsehood charge related to his official conduct unless statement was with actual malice (Banas vs. CA, 325 SCRA 263)  ‘state immunity from suit’ doctrine applies to complaints vs. officials for acts in performance of their duties; rule not applicable if sued in his personal capacity (Lansang CA, 23 Feb. ’00) 

State immunity doctrine affording protection to public officers applies only to activities within the scope of their authority done in good faith (Calub vs. CA, 331 SCRA 55)  Public officer cannot invoke immunity if complaints vs. her do not impose financial liability vs. the State but merely nullification of state action (Phil. Agila Satellite vs. Lichauco, 489 SCRA 160) 

Disabilities and Inhibitions of Public Officers 

Under ’87 Constitution * Sec. 13 Art. Vl (Incompatible Office & Forbidden Office) *Sec. 14 Art. Vl *Sec. 7 Art. lX-B *Sec. 13 Art. Vll

` Sec. 7 Art. lX-B lays down the general rule while Sec. 13 Art. Vll is the exception applicable only to the Pres., VP, Cabinet members, their deputies or assistants.  Sec. 13 Art. Vll is not applicable to the PCGG Chairman nor to the Chief Presidential Legal Counsel (Public Interest Center vs. Elma, 494 SCRA 62). But Elma remains covered by the general prohibition under Sec. 7, Art. lX-B. 

Prohibition vs. holding dual or multiple offices under Sec. 13 Art. Vll is not applicable to posts occupied by Exec. officials without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office (Civil Liberties vs. Exec. Sec., 22 Feb. ’91).  Alternates of ex-officio members in gov’t boards, like their principals, cannot receive additional compensation (Dela Cruz vs. COA, 371 SCRA 157; Bitonio vs. COA, 425 SCRA 437). 



1. 2. 3. 

Official may hold any other office or employment only when specifically authorized by Constitution, to wit: Vice Pres. as Cabinet Sec. [Sec. 3(2) Art. Vll] Justice Sec. as ex-officio JBC member (Sec. 8 Art. Vlll) Pres. as head of economic and planning agency (Sec. 9 Art. Xll) In any case, the appointive official is not entitled to received additional, double or indirect compensation, unless specifically authorized by law.

Cases  Gordon

as SBMA Chairman and Mayor of Olongapo City under Sec. 13, RA 7227 (Flores vs. Drilon, 223 SCRA 568)  Practice of law and acceptance of employment as PLEB member and Lupon member by government lawyer (Lorenzana vs. Fajardo, 462 SCRA 1)

Sec. 7(b)(2) of RA 6713 Government lawyers cannot handle private cases for they are expected to devote themselves full-time to the work of their office (Ramos vs. Imbang, 530 SCRA 759).  As an exception, public officer can engage in private practice under the ff. conditions: 1 st, it is authorized by Constitution or law; 2 nd, it will not conflict with her public functions (Query of Atty. Buffe, 596 SCRA 379) 

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