LAW ON PUBLIC OFFICERS

I. Definition
What is an OFFICE - position or function by virtue of which a person has some employment in the affairs of another, whether the incumbent is selected by appointment or by election, or whether he is appointed during the pleasure of the appointing power or for a fixed term What is a PUBLIC OFFICE - right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions (executive, legislative, judicial) of the government, to be exercised by him for the benefit of the public (Mechem) - charge, station, or employment conferred by appointment or election by a government - Public Office v. Public Employment Scope Nature of the Office Powers PUBLIC OFFICE Is a public employment Created by law Delegation of sovereign functions to be exercised by him for the benefit of the public PUBLIC EMPLOYMENT Not all PE is an office Lacks one or more of the elements FOR bureaus, agencies, offices in the executive dept BEC of -Power of Control which may justify him to inactivate the functions of a particular office -Certain laws may grant him the broad authority to carry out Reorganization measures, e.g. Administrative Code (Bk. III, Sec. 31) President with continuing authority to reorganize the administrative structure of the Office of the President subject to the policy of the Executive Office and in order to achieve simplicity, economy, and efficiency Scope of Power to Create: Power to Modify and Abolish - GR: Power to create an office generally includes the power to modify or abolish it (Buklod ng Kawaning EIIB v. Zamora) to fix the number of positions and the salaries - E: Power is Limited by Constitution Offices created by Congress, latter may control, modify, abolish it whenever necessary, expedient, conducive to the public good BEC No obligation or necessity to continue a useless office UNLESS Prohibited by the Constitution Office is Created by Constitution Constitutional offices may be modified, abolished by the people thru a constitutional provision THUS beyond the power of Congress to alter, discontinue BUT mere mention of the office in the Constitution does not confer constitutional status by itself 2) POWER: Invested with an authority to exercise some portion of the sovereign power of the State to be exercised for public interest >> Most Impt

Responsibili ties - ESSENTIAL ELEMENTS OF A PUBLIC OFFICE 1) CREATION: -Constitution or ABOLITION -Law -Some body, agency to which the power to create the office has been delegated GR: E: Inherently Legislative function that is supreme Constitution President

What: Executive, Legislative, Judicial Power THUS It is the DUTIES of his office which make him a public officer, NOT the Extent of his authority Immaterial then is the fact that his authority is confined to narrow limits

Importance:

PRESUMPTION OF REGULARITY of Official Acts Absent clear and convincing proof, the bare allegation that a public officer acted with malice cannot be sustained BEC The law tells the official what his duties are and that he discharged these duties accordingly

3) CONFERRED: Powers and Functions are defined By the Constitution, Law, Legislative authority 4) INDEPENDENCE: The duties pertaining thereto are performed independently, without control of a superior power other than law, unless the are those of an inferior, subordinate officer 5) CONTINUITY: Continuing and Permanent in Nature, and Not Occasional or Intermittent Tenure of Office IMMATERIAL Absence of a definite tenure does not preclude a position from constituting a public office BEC Tenure need not be for a fixed period BUT may be at the pleasure of the appointing power Continuance of Office Holder IMMATERIAL Continuance, that the duties attached to the position continue though the office holder be changed, is not indispensable Permanence of Office IMMATERIAL Immaterial whether office expires as soon as the series of/act be done, or held for years, or during good behavior IF the other elements are present BUT something more permanent than a single transaction or transitory act is commonly required * Not Compensation OFFICER In General - Someone inseparably connected with an office PUBLIC OFFICER - One who holds a public office - Such an officer as is required by law to be elected PUBLIC OFFICIAL - Officer of the Govt itself, as opposed to officers and ees of govt instrumentaliti es - Those whose duly PUBLIC EMPLOYEE - Any person in the service of the government, any of its agencies, divisions, subds, instrumentaliti In Relation To (Officers )

or authorized es appointed, acts are those who has a of the govt designatio itself n or title given to him by law, and who exercises functions concerning the public, assigned to him by law - In relation to a Clerk, he is a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of government In relation to a person having authority to do a particular act, it includes any government ee having authority to do such act In relation to an Employee in laws of public officer, he: - Has greater importance, dignity, independence of his position - Required to take an official oath and official bond - Liable to account as a public offender for misfeasance or nonfeasance in office - Includes subordinate positions with a degree of responsibility for results In relation to an Employee under the RPC, there is effectively no distinction as the RPC penalizes any person who, by direct provision of law, popular election, or appointment by competent authority, takes part in the performance of public functions in the govt

II. Nature and Purpose of a Public Office: PUBLIC TRUST

- BASIS: Art. XI.I, Constitution

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. Code of Conduct and Ethical Standards (R.A. No. 6713, Sec. 2) Every public servant shall at all times uphold public interest over his personal interest IMPLICATIONS: Held in trust for the benefit of the people - Held in trust for the people and are to be exercised in behalf of all citizens - Created for effecting the end for which government has been instituted, which is the common good (benefit of the people), and NOT for the profit, honor, or private interest of any person - Servants of the people, not their rulers - Not a right (natural, property, contract), BUT a Responsibility and Privilege NOT A NATURAL RIGHT Right to public office exists only because and by virtue of some law expressly or impliedly creating and conferring it Right of eligibility to offices is not so secured, existing, where it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it NOT A PROPERTY RIGHT GENERAL RULE: Not property right entitled to protection within the meaning and contemplation of the due process requirements of the Constitution No vested right or proprietary claim to public office THUS no violation of due process by abolition of office before expiration of term, removal or suspension accdg to law EXCEPTION: Entitled to Protection as property within the meaning of due process: 1) Better Right - in controversies relating to the question

as to which of two persons is entitled thereto 2) Security of Tenure - Personal, thus cannot be inherited NOT A CONTRACTUAL RIGHT Incumbent is not under contract so as to withdraw his tenure, salary, and the like from the control of the legislature, or to preclude the legislature from abolishing the office NOT A CONSTITUTIONAL RIGHT - No constl right to run for office or hold elected office - RATHER, it is a POLITICAL PRIVILEGE which depends upon the favor of the people, which thus may be coupled with REASONABLE CONDITIONS for the public good - EFFECT: He must thus comply with REASONABLE, LAWFUL, NON-DISCRIMINATORY TERMS laid down by law Creation Object PUBLIC OFFICE As an incident of sovereignty To carry our sovereign functions affecting persons not bound by contract With tenure, duration, and continuity (and permanence of duties) which do not depend on contract PUBLIC CONTRACT Will of the parties Obligations only upon the parties Limited in duration and Specific in its objects; Terms define and limit the rights and obligations

Subject Matter / Scope

- THUS a very delicate position WHERE he occupies office to render service to the people and not as a means to promote his personal interest THUS continues only as long as his ability to advance public ends and contribute to public welfare

III.

Classification of Public Officers

1) NATURE OF FUNCTIONS a. Civil Officer - any kind of public office (LEJ) b. Military Officer all offices in the armed forces which solely involve military functions 2) CREATION a. Constitutional Officer created by the Consti

Statutory Officer created by statute and over which Congress has full control 3) DEPARTMENT OF GOVT TO WHICH IT BELONGS a. Legislative enactment of laws b. Executive execution of laws c. Judicial adjudication of actual justiciable controversies and interpretation of laws 4) BRANCH OF GOVT SERVED a. National Officer any office in the national, central govt b. Local Officer any office in the political subd of the Ph 5) DISCRETION depends on general nature and scope of duties a. Quasi-Judicial Officer any office other than courts of justice whose officers are charged with functions that require the exercise of discretion, judgment OFFICE OF TRUST - involved exercise of discretion, judgment, experience, skill - not necessarily handling of money, property b. Ministerial Officer any office whose officers are charged with the duty to execute the mandates lawfully issued by their superior - has no power to judge the matter to be done and must obey some superior - performs MINISTERIAL ACTS, those which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done 6) COMPENSATION a. Lucrative Office; Office of Profit; Office coupled with an Interest offices to which salary, compensation, fees are attached b. Honorary - none is attached 7) LEGALITY a. De Jure b. De Facto

b.

iii.

OTHERWISE, a person who is ineligible or unqualified gives him no right to hold the office 1. Unqualified person cannot be appointed even in an acting capacity (Ignacio v. Banate) 2. Effect: Incumbent continues in office in hold-over capacity (Ignacio) DISQUALIFICATION

VI. DEFINITIONS QUALIFICATION Two senses: 1) endowment or accomplishment that fits one for office ~ Credentials, Qualities, Successes, Achievements as an individual 2) the act which a person is reqd to do by law before entering upon the performance of his duties ~ Technical def - taking of oath, giving bond - determined by Constitution and Congress - Continuing reqt even if commencement disputable (depends of language) ELIGIBILITY - state or quality of being legally fitted or qualified to be chosen - continuing nature and must exist both at the commencement and during the occupancy of an office ELIGIBLE - he who is legally fitted or qualified to hold an office - person who obtains a passing grade in a civil service examination or is granted a civil service eligibility and whose name is entered in the register of eligibles

- determined by Constitution and Congress - Effect of Removal of Disqualifications after commencement of and during term DEPENDS INELIGIBILITY - lack of the qualifications prescribed by the Constitution, applicable law for holding public office

IV. Eligibility and Qualifications V. Importance: The requirements for holding office are:
i. ii. Must be eligible Must possess the qualifications prescribed by the Constitution and Law

INELIGIBLE - legally or otherwise disqualified to hold an office - disqualified to be elected to an office - disqualified to hold an office, if elected or appointed to it - disqualified to hold an officer

b.

WHEN MUST QUALIFICATIONS BE POSSESSED: Depends on Language used i. Consti, Law SPECIFIES: Then at the time specified ii. Consti, Law SILENT: Recourse to other means to determine the matter ~ Language, Terms used 1. Rule 1: Eligible in Consti, Laws refers to capacity of HOLDING OFFICE, not of being elected, apptd THUS must be qualified at the TIME OF THE COMMENCEMENT OF TERM, INDUCTION TO OFFICE ~ THIS IS CRUCIAL 1. Other View: At time of ELECTION, APPT 2. Rule 2: If provision refers to holding of office, rather than to eligibility to office, then at the commencement of the term 3. Rule 3: Whether qualified at election/appt, the same is not sufficient if he ceases to be qualified: 1. at the time of the commencement of the term and 2. during the continuance of the incumbency 4. Example: LGC, Sec. 39 on Qualifications of Elective Officials, not candidates thus required only at the start of term and not at election iii. Rationale: Qualifications cannot be erased by the electorate alone BEC presumed that they believed the candidate to be qualified iv. EFFECT OF REMOVAL OF DISQUALIFICATIONS 1. When: At the commencement of and during the continuance of the term 2. Effect: Two views 1. 1: Removal validates the title 2. 2: Depends on i. Nature of disqualification ii. Mode of removing it iii. Time at which it is removed

c.

WHO PRESCRIBES QUALIFICATIONS: CONGRESS! But in varying degrees... i. General Principles : Congress empowered to prescribe qualifications for holding public office PROVIDED: 1. It does not exceed its constl powers and not inconsistent with consti 2. It must have a rational basis ~ rational nexis b/w the reqts and duties 3. It must not be too detailed as to practically amount to making an appt, which is an executive function, and not legislative ii. OFFICES CREATED BY CONGRESS 1. Congress can provide for quali and disquali 2. LIMIT: Does not impinge upon any express provision of the Constitution iii. OFFICES CREATED BY CONSTI 1. GR: If Consti prescribes specific eligibility reqts for a particular constl office, such constl criteria are exclusive 2. E: Consti gives it power to set qualifications expressly or impliedly iv. QUALI PRESCRIBED BY CONSTI 1. GR: Not self-executing BEC merely announcements of a general principle clearly requiring legislation for their enforcement WHO PRESCRIBES DISQUALIFICATIONS: CONGRESS! i. GR: Congress has the same right to provide disquali in the absence of constl inhibition ii. E: Congress cannot add disquali where the Consti has provided them in such a way as to indicate an intention that the disquals provided shall embrace all that are to be permitted ~ Intent to be exclusive 1. Congress cannot remove such disquals under the power to prescribe quali as to such offices as it may create 2. e.g. Method of appt of a SC Justice provided by the Consti is mandatory and binding (Vargas v. Rilloraza)

d.

e.

CONSTRUCTION OF RESTRICTIONS ON ELIGIBILITY i. Presumption in favor of eligibility 1. Who: One who has been elected/apptd to public office 1. GR: All persons are normally and equally eligible to public office 2. E: Excluded by some legal disqualifications 2. Why: Strong public policy to favor the right of voters to exercise their choice ~ Always presume the positive ii. Strict construction against ineligibility WHEN TO QUESTION POSSESSION OF QUALIFICATIONS: ALWAYS ~ Ineligibility is always subject to question i. No estoppel (Castaneda v. Yap)

f.

Effect of CERTIFICATION - certification of a person by the CSC as a civil service eligible does not amount to an appt to any position, nor does it insure appt, as the apptg power has the right of choice, to be freely exercised accdg to his judgment, as to who is best qualified among those eligible

VII. Particular Formal Qualifications VIII.

(EL CASPER)8 CITIZENSHIP ix. GR: Aliens are not eligible to public office x. E: Privilege is extended to them by statute xi. WHY: Govt is instituted by the citizens for their liberty and protection and is to be administered only by them and thru their agency ~ BEC it involves the performance of SOVEREIGN FXNS requiring loyalty to the state g. AGE i. GR: All persons are normally considered qualified for public office THUS Majority Age does not necessarily qualify him ii. WHY: Public Policy ~ Experience and Wisdom come with age h. SUFFRAGE ~ Connected to Citizenship ret i. GR: If law is silent, only electors are eligible

E: WHEN Age qualification is below the minimum voting age reqts, persons not electors may be appointed or elected to office if not excluded by some constitutional or legal disqualification 1. IF law uses voter, elector, qualified voter, qualified elector, then it is a matter of construction BEC construed to be qualified even if not registered as qualified voter i. RESIDENCE ~ to know problems of community i. Scope: Residence is Domicile ii. Elements 1. Intention to reside in a fixed place 2. Personal presence in that place 3. Conduct indicative of such intention j. EDUCATION i. WHY: The more education an individual has, the better and more effective public officer he will be ii. WHEN REQD: When they reasonably relate to the specialized demands of an office k. LITERACY / ABILITY TO READ AND WRITE i. WHY: Not constitutionally prohibited BEC Reasonable relationship with duties of the position l. POLITICAL AFFILIATION ~ e.g. Commission on Appts i. GR: Proscribed BEC form of political expression ii. E: Compelling state interest m. CIVIL SERVICE EXAMINATION i. WHY: To insure merit and fitness to perform the duties and assume the responsibilities of the positions ii. Example: First and Second Levels of the Career Service
CITIZE N-SHIP naturalborn citizen NBC VOTER REG Registere d Voter RV LITERAC Y Read and Write RW RESIDEN CY 10y Ph resident preceding election 2y Ph resident preceding election 1y District resident preceding AGE 40 at electio n 35 at electio n 25 at electio n OTHERS

ii.

PRESIDENT, VP SENATORS

HOUSE OF REPS

NBC

GR: RV in district E: Party-

RW

list Rep JUSTICES (SC, COLLEGIAT E COURTS) NBC

election 40 at appt proven competence, independenc e, integrity, probity 15y practice of law in Ph proven capacity for public administratio n not candidates for any elective position in the immediately preceding elections college degree lame duck majority and Chairman must be members of the Bar with 10y practice CPA with 10y auditing experience, OR Lawyers with 10y practice, BUT At no time shall all belong to same profession lameduck recognized probity and independenc e Ph Bar with 10y - practice - sat as judge lameduck Majority members of Ph Bar

n.

CSC

NBC

35 at appt

RELIGIOUS QUALIFICATIONS / RELIGIOUS TEST i. WHAT: One demanding the avowal or repudiation of certain religious beliefs before the performance of any act 1. OLD RULE in Pamil v. Teleron: Prohibition in RAC (1917), Sec. 2175 against ecclesiastics in municipal officers is CONSTITUTIONAL (BUT only because insufficient votes to declare otherwise) 2. NOW: No longer in the 1987 Admin Code ~ THUS Deemed repealed ii. WHY: Unconstitutional invasion of freedom of belief and religion PROPERTY QUALIFICATIONS TWO VIEWS: i. 1: CAN BE CONSTITUTIONAL BEC Prohibited only to offices provided for in the Constitution THUS Allowed in offices created by Congress ii. 2: UNCONSTITUTIONAL BEC Invidious discrimination against non-landowners WITHOUT rational connection b/w qualifications for administering public affairs and ownership of real property 1. Maquera v. Borra: Unconstitutional (reqt of surety bond) BEC Property qualifications are inconsistent with... 1. the essence and nature of the republican system ordained in our Constitution where sovereignty resides in the people, and 2. the principles of Social Justice guaranteeing equal opportunity for all, rich and poor alike

o.

COMELEC

NBC

35 at appt

COA

NBC

35 at appt

OMBUDSMA N

NBC

40 at appt

XIII. Particular Disqualifications

XIV.

CHR

NBC

XII. Prohibited Qualifications

MENTAL, PHYSICAL INCAPACITY xv. WHY NOT IDIOT: Incapable of accepting and holding public office iii. RE: BLIND PERSON: Eligible if 1. He possesses the other qualifications imposed by law 2. There is no provision of law excluding him from the office because of his blindness

PROBLEM: Nobody wants to admit that he is so THUS Pet in Court for Declaration of Insanity p. MISCONDUCT, CRIME ~ Highest standards of ethics i. WHY: Assure public confidence in the essential integrity of the govt ii. WHEN: Mere Commission v. Conviction 1. Depends on wording of applicable provisions iii. SCOPE: Local and National Law Violation of Municipal Ordinance 1. Crime if it involves at least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the reqts of the public office 2. Acts intrinsically punishable as a public offense IMPEACHMENT i. WHO ARE IMPEACHABLES: Pres, VP, SC, ConCom, OMB ii. GROUNDS: Conviction of... 1. Culpable violation of the Constitution 2. Treason 3. Bribery 4. Graft and Corruption 5. Other High Crimes 6. Betrayal of Public Trust iii. SCOPE OF IMPEACHMENT 1. Removal from office 2. Disqualification to hold any office in the Ph iv. WHY: Protect the people as a body politic REMOVAL, SUSPENSION FROM OFFICE i. ISSUE: Grounds for Removal, Suspension include acts that would disqualify him also BUT Is mere removal, suspension itself ground for disqualification? ii. GR: No. Where there is no constitutional or statutory declaration of ineligibility for such cause, the courts may not impose the disability THUS Removal... 1. Does not bar election, appt for new term of the same office 2. Bars only the election, appt for the unexpired term s.

ISSUE: LGC, Sec. 40 only disqualifies in local offices thus can run for national office > ABSURD! PREVIOUS TENURE OF OFFICE i. GR: No reelection regardless of length of time he has served ii. E: Succession UNLESS Succeeding as Pres and serving as such for more than 4y iii. Examples: President, ConComs, Omb CONSECUTIVE TERMS i. WHAT: Prohibition against holding of certain elective offices by the same persons for more than a stated number of consecutive terms ii. Examples: VP (2), Senators (2), HR (3), Elective Local Officials (3) HOLDING MORE THAN ONE OFFICE ~ MULTIPLE OFFICES i. WHY: No constitutionally protected right to hold incompatible offices 1. To prevent offices of public trust from accumulating in a single person 2. To prevent individuals from deriving, in/directly, any pecuniary benefit by virtue of their dual position-holding ii. SCOPE: Prohibited and Non-Conflicting Offices iii. EFFECT OF VIOLATION: Upon acceptance and qualification for second and incompatible office, THEN Deemed to vacate, resign by implication from the first office iv. Examples: 1. EVERYWHERE: P, VP, Cabinet, ConComs, Omb 2. IN GOVT: Senator, HR, SC, Appointive officials, AFP 3. Administrative Code, Book IV, Chapter 10, Sec. 49: Inhibitions Against Holding More Than Two Positions 1. WHAT i. Cannot hold more than two positions in the govt and goccs ii. Cannot receive the corresponding compensation therefor iii. In addition to his primary fxns

t.

u.

q.

r.

iv. 2. WHO i. ii. iii. iv.

Even if allowed by law or the primary functions of his position 2.

2.

Relatives by consanguinity or affinity within the fourth civil degree of the President

3.

Member of the Cabinet Usec Asec Other appointive official of the executive department LEGALITY OF THIS PROVISION: Embodied in EO 294 which Court declared as UNCONSTI in CLU v. Exec. Sec. (Feb.) YET Reissued in EO 292 (July) BUT SIR SAYS VOID ALSO BEC SAME PROVISION v.

Mother case: CLU v. Executive Secretary: General v. Special VII is more specific IX-B allows those allowed by law and by primary functions of the office BEC Ex officio office is not OTHER OFFICE as long as no compensation PURPOSE: Devote full time to public service v. RELATIONSHIP WITH APPOINTING POWER ~ NEPOTISM i. WHY: To guarantee the basis of appt as solely merit and fitness, uninfluenced by personal and filial consideration ii. SCOPE: Excludes those appointed/elected then marries there must be a full report to the CSC (Admin Code) iii. EXEMPTIONS 1. Persons employed in a confidential capacity ~ bec you can trust relatives 2. Teachers Bec we need them 3. Physicians 4. AFP Members iv. EXAMPLE 1: VII.13, par. 2 (BARABLE) 1. WHO 1. Spouse

WHAT 1. During his tenure 2. Shall not be appointed as i. Members of the Constitutional Commissions, or ii. Office of the Ombudsman, iii. Secretaries, iv. Undersecretaries, v. Chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries EXAMPLE 2: Civil Service Decree ~ 3 GROUPS 1. WHO: 3rd degree consanguinity/affinity 1. Relative of the apptg or recommending authority 2. Relative of the chief of the bureau, office 3. Relative of persons exercising immediate supervision over him 2. WHAT: Cannot be appointed in national, provincial, city, municipal govts or branch, instrumentality thereof, GOCCs

w. OFFICE NEWLY CREATED / EMOLUMENTS INCREASED i. WHO: Senator, HR ii. WHAT: Offices that Congress must itself cause to exist iii. WHY 1. To prevent an individual legislator from profiting by an action taken by him with bad motives 2. To prevent all legislators from being influenced by either conscious or unconscious selfish motive x. BEING AN ELECTIVE OFFICIAL ~ SPOILS SYSTEM

WHAT: Elective Official shall not be eligible for appointment, designation in any capacity to any public office, position during his tenure ii. DURATION: During his tenure in office of the elective official iii. REMEDY: Forfeit his seat to be appointed > NO DISTINCTION b/w National and Local Elected Officials y. POLITICAL LAME-DUCKS (HAVING BEEN A CANDIDATE FOR ANY ELECTIVE POSITION) i. WHO: Any candidate who has lost in any election ii. WHAT: Cannot be appointed to any office in the Govt or GOCC iii. WHEN: Within 1y after such election iv. CONFLICT: LGC, Sec. 94 which 1. allows losing elective candidate from being appointed to any office BUT Consti also prohibits election 2. allows losing candidates in barangay elections to be appointed to any office in the govt within 1y from election lost 3. prohibits only elective or appointive local official from holding any other office or ent in the Govt or GOCC UNLESS Otherwise allowed by law, primary fxns of his position > THUS Implying that national lame-ducks can be appointed in local offices LGC PROHIBITIONS

i.

Of the individual who is to exercise the powers and functions of a given office - Filling a vacancy - Nomination or Designation of an individual to an office ii. WHO APPOINTS 1. PEOPLE selection of persons to perform the fxns of govt is primarily a prerogative of the people BEC people are souce of govt BUT DELEGATED by the people who cannot always be called upon to act immediately when the selection of an official is necessary BUT Only as an incident to the discharge of the fxns within their respective spheres: EXECUTIVE DEPT BEC 1. Power to appt is, in its nature, an executive fxn CONGRESS COURTS

2. 3. 4. iii.

z.

XVI. ACQUISITION OF RIGHT, TITLE TO OFFICE XVII. MANNER: Election or Appointment

i. ii. Only in the manner prescribed by Consti, Law NOT By own assumption / employment by private person

aa. APPOINTMENT i. WHAT: - Act of designation By the executive officer, board, body to whom that power has been delegated

NATURE OF POWER: Plenary Discretion 1. WHAT: Political and administrative decision calling for considerations of wisdom, convenience, utility, and the interests of the service > Being the NEXT IN RANK does not entitle anyone to be next in promotion but only a preferential consideration BEC appt is discretionary 2. REQT: Selection must finally be his act alone but limited to candidates having the qualifications required by the civil service law 3. IMPLICATIONS 1. NO JUDICIAL REVIEW i. GR: NO BEC Exercise of discretion of the public officer ii. E: GAD 2. NOT LIABLE as long as exercised in Good Faith 4. WHY

1.

2.

Head of Office is familiar with the organizational structure and environmental circumstances within which the appointee must function Dept Heads are in the most favorable position to determine who can best fulfill the fxns of the office

4.

To prevent use of power to confer an office on himself CARETAKER PRINCIPLE: Appointing Power cannot forestall the rights and prerogatives of his successor by making a prospective appt to fill an office where the appointees term is not to begin until the appt powers own term has expired

2.

iv.

SCOPE OF DISCRETION 1. Power to Remove, Discipline 2. Power to assess qualifications and who is best qualified 3. Power to determine whether the appt is demanded by the exigencies of the service KINDS OF POWER 1. ABSOLUTE 1. Only Reqt: If it falls upon an eligible person 2. Effect: i. No further consent, approval is necessary ii. Commission, or formal evidence of the appt, may issue at once iii. CApp approval Not Necessary 2. CONDITIONAL 1. Reqt: When assent, approval by some other officer or body is necessary to complete the appt 2. CApp approval necessary RESTRICTIONS OF APPOINTING POWER 1. Persons to be appointed should possess the prescribed qualifications 2. Persons must be selected solely with a view to the public welfare 3. Appointing power should exercise it with disinterested skill and in a manner primarily for the benefit of the public 1. To secure the utmost freedom from personal interest in such appt

bb. APPOINTMENT PROCESS i. NOMINATION 1. Exclusive prerogative of the President 2. Congress cannot limit EXCEPT 1. CApp approval 2. Qualifications prescribed by law 3. THUS, while Congress may create an office, it cannot specify who shall be appointed by the President therein (Rafael v. EACIB)

v.

ii.

CONFIRMATION 1. Exclusive prerogative of Congress via COMMISSION ON APPOINTMENTS to confirm or reject certain appts 2. IMPT: No appt yet in the strict sense until it is confirmed ~ Appt as JOINT ACT of President and CApp

vi.

ISSUANCE OF COMMISSION 1. COMMISSION: 1. 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 2. Written evidence of the appt, but not the appt itself 3. Conclusive evidence of the appt as soon as it is signed by the Pres. 2. NATURE: Ministerial act cc. REVOCABILITY

iii.

i.

ii.

iii.

GR: IRREVOCABLE! Cannot be revoked by Appointing Power 1. Where Appt is Complete and Final 1. WHAT: When President has been notified of the confirmation and has completed the appt by issuing the commission to the appointee, who thereupon assumed the office 2. E: Officer is removable at will of the Apptg Power 2. Where Appointee has assumed the duties and fxns of his position 1. BEC He acquires a LEGAL RIGHT which cannot be taken 2. EXCEPT for CAUSE and with NOTICE, HEARING E: REVOCABLE 1. For cause by the Apptg Power 2. By CSC, when appt is 1. Void ab initio 2. Irregular due to fraud by appointee i. IF No fraud, deemed cured by the probational and absolute appt of the apptee and should be considered conclusive 3. Violation of law in its issuance 4. NOT On mere ground that another is more qualified REMEDY: REMOVAL

ii.

iii.

dd. COMPLETION OF APPOINTMENT i. WHEN: When last act required for the appointing power is performed 1. IF Absolute: Complete when appointee has been determined > Issuance of Commission 2. IF Conditional: Upon assent, confirmation of another office, body 1. Apptg officer and CSC, acting together, consecutively, make an appt complete 3. WON WRITTEN: 2 Views 1. REQD: BEC Appt to office

affects the public, and not merely private rights ii. should thus be authenticated in a way that the public may know when and in what manner the duty has been performed iii. Valencia v. Peralta (1963) 2. NOT REQD: Right of appointee to be inducted into office depends on the fact of appt, and not upon his ability to establish that fact (Ykalina v. Oricio, 1953) EFFECT IF NONE: No vested right, security of tenure 1. Tolerance, Acquiescence, Mistake of Officials resulting in non-observance of the requirements to complete appt does not render the reqts ineffective and unenforceable CSC APPROVAL 1. WHAT: Determine WON - Proposed appointee is a qualified service eligible or possesses appropriate eligibility, reqd qualifications - Rules pertinent to the process of appt are followed 1. APPROVE: Possesses appropriate eligibility i. Merely serves to assure the eligibility of the appointee 2. DISAPPROVE: Non-conformity to applicable provisions of law and on the appointees qualifications i. REMEDY: MR with CSC ii. RECALL BY CSC: Motu proprio or by MR 2. NATURE: Does not complete the appt ALTHOUGH it is an essential part of the appointing power 3. WHEN REQD

i.

4.

GR: All appts in the civil service whether original, promotional 2. E: i. Presidential appts ii. AFP iii. Police forces iv. Firemen v. Jail guards WHEN TO APPROVE: within reasonable time 1. Old Rule (PD 807): All appts must be submitted to CSC within 30d, OTHERWISE Ineffective if not so filed 2. Now (EO 292, Obiasca v. Basollete 5-star): Reasonable time to submit to CSC i. WHY: It would open the door to fraud, bad faith, office politics ii. Tomali v. CSC: Appointee must take initiative to assure that appt papers have been submitted to the CSC > Follow it up!

1.

iv.

ACCEPTANCE OF APPT 1. NATURE: Distinct from appt 1. GR: Not necessary to completion or validity of appt BEC Appt is sole act of appointing power 2. E: Law expressly requires it for completion of the appt 3. IMPT: Necessary for Full Possession, Enjoyment, Performance, Responsibility of Office 4. Acceptance is sole act of Appointee 2. FORM 1. EXPRESS oath, bond i. Verbal ii. Written 2. IMPLIED When, without formal acceptance, appointee enters

v.

upon the exercise of the duties and fxns of an office 3. MANDATORY v. VOLUNTARY 1. GR: Not compulsory BEC Involuntary servitude 2. EXCEPTIONS i. II.4: Govt may call upon the people to defend the State and all citizens may be reqd, in the fulfillment thereof and under conditions provided by law, to render personal military or civil service ii. RPC, 334: Arresto mayor/fine/both upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or discharge the duties of said office iii. US v. Pompeya: Male inhabitants of a certain age may be required by the State, in the exercise of its police power, to assist in the protection of the pace and order of the community 3. BASIS: Social duty to bear his share of the public burdens by accepting and performing, under reasonable circumstances, the duties of those public offices to which he may be lawfully chosen EFFECTIVITY OF APPT 1. GR: Immediately upon issue 1. Effective immediately upon issue by the apptg authority 2. Until disapproved by CSC

i.

E: If the appointee has assumed the duties of his position PRIOR to CSC disapproval, then he is entitled to receive salaries

2.

EFFECT: 1. Entitled to receive salaries

ee. APPOINTMENTS BY THE PRESIDENT i. BASIS OF POWER: VII.16 ii. WHO IS APPOINTED ~ 4 GROUPS OF OFFICIALS 1. REGULAR APPT ~ COA REQD ~ EXCLUSIVE 1. Heads of executive departments, 2. Ambassadors, 3. Other Public Ministers and Consuls, 4. Officers of the Armed Forces from the rank of colonel or naval captain 5. Other officers whose appts are vested in him in the Constitution i. JBC (VIII.8.2) ii. CSC (IX-B.1.2) iii. COMELEC (IX-B.1.2) iv. COA (IX-C.1.2) v. Regional Consultative Commission (X.18) 2. Other Officers of the Govt whose appts are not otherwise provided by law 3. Other Officers whom he may be authorized by law to appoint 4. Other Officers lower in rank vested by Congress in the President alone iii. KINDS OF APPTS 1. REGULAR 1. WHEN: Those made while Congress is in session 2. NATURE: Mere nominations BEC subject to CApp confirmation 2. AD INTERIM APPOINTMENTS 1. NATURE: Permanent i. BUT REVOCABLE before confirmation ii. C: Security of Tenure! Cannot be removed even before CApp approves 2. WHEN: Those made while Congress is not in session or during its recess

3.

Compulsory Recess: when Congress adjourns ii. Voluntary Recess: takes place before the adjournment of Congress, eg Christmas break EFFECTIVITY: i. Until disapproval by the CApp 1. BEC Removal is final and on the merits ii. Until next adjournment of Congress 1. Nachura: Includes recess 2.

i.

3. 4.

(Nachura) De Leon: Excludes voluntary recess 4. WHY ALLOWED: Keep the business of govt in continuous operation when Congress is not in session > 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 appt is made 5. REQD: Release to and acceptance of appt by appointee before confirmation by CApp, OTHERWISE Incomplete appt THUS No ad interim appt that could be validly transmitted to and acted upon by the CApp (Rosales v. Yenko) PERMANENT 1. WHEN: Those which last until they are lawfully terminated TEMPORARY / ACTING

5.

WHEN: Those which last until a permanent appt is issued 2. BASIS: Power to appt includes Power to make temporary/acting appts BEC the whole includes and is greater than the part, UNLESS: i. Specifically prohibited by Consti, Law ii. Temporary appt is repugnant to the nature of the office to be filled 3. RIGHTS: i. No fixed tenure of office ~ Term expires upon separation ii. Terminated at pleasure even without Cause, Hearing iii. If unqualified person, cannot be apptd DESIGNATION 1. WHAT: i. Mere imposition of new or addtl duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office ii. Presupposes that the officer is already in the service by virtue of an earlier appt, performing other fxns 2. EFFECT: Revocable

1.

2.

Clear provision Philosophy and reason behind the prohibition against MIDNIGHT APPTS, that is not to preempt his successors prerogatives BEC 1. he is only a caretaker of the office during the prohibited period of 2m and 2. it is ethically objectionable to do so 3. EXCEPTIONS i. Temporary appts ii. Executive Depts iii. Required by public service and safety De Rama v. CA: Prohibition on MN appt applies only to the President 1. Dissent (citing Aytona v. Castillo): Outgoing official is only a caretaker who should not preempt successors prerogative

i. ii.

iv.

MIDNIGHT APPOINTMENTS 1. De Castro v. JBC: Prohibition in VII.15 on presidential appointments within 2m before the next presidential election IS NOT APPLICABLE TO THE JUDICIARY, BUT ONLY TO THE EXECUTIVE DEPT 1. WHY: Structural approach ~ Covered by separate articles 2. C: Contrary to

ff. APPTS IN THE CIVIL SERVICE Who is the CIVIL SERVICE COMMISSION - central personnel agency of the govt - duty of determining questions of qualifications of merit and fitness of one appointed to the civil service Scope of the Civil Service System - all branches, subdivisions, instrumentalities, and agencies of the Govt - GOCCs with original charters - military establishments PRINCIPLES BEHIND THE CIVIL SERVICE SYSTEM - Merit system, instead of the spoils system in the matter of appt and tenure of office - Laws are not penal, but designed only to eradicate the system of making appts primarily from political considerations PURPOSES OF THE CIVIL SERVICE SYSTEM 1) To establish a merit system of fitness and efficiency as the basis of appts 2) To eliminate the element of partisanship and personal favoritism in making appts as far as practicable 3) To prevent discrimination in appts to public service based on any consideration other than fitness to perform its duties 4) To enable the national and local govt and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants CLASSIFICATION OF POSITIONS IN THE CIVIL SERVICE 1) CAREER CHARACTERISTICS a. Entrance based on merit and fitness i. COMPETITIVE: those be determined, as far as practicable, by competitive examinations, 1. NATURE: It is the general rule 2. HOW a. Must be given under an objective standard of grading b. 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

In substance, not merely in form 3. FORM: None a. Oral Exam can be competitive if the 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 ii. NON-COMPETITIVE: based on highly technical qualifications 1. Policy-Determining power of formulating policies for the govt, any agencies, subd, instrumentalities (eg Cabinet members) 2. Primarily Confidential a. Occupant enjoys more than the ordinary confidence in his aptitude of the appointing power b. Occupant 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 c. WHO DETERMINES CONFIDENTIAL POSITIONS i. NATURE OF THE POSITION / NATURE OF FUNCTION TEST (CSC v. Salas) ii. President, upon recommendation of CSC d. TERMINATION: Based on loss of confidence THUS Not removal but Expiration of term of office 3. Highly Technical in nature a. Possession of skills or training in a supreme or superior degree 4. DETERMINATION OF CHARACTER OF POSITION: NATURE OF FUNCTIONS ATTACHED ~ Ultimately a judicial question

c.

b. c.

Security of tenure Opportunity for advancement to higher career positions e. f.

KINDS a. OPEN CAREER POSITIONS requires prior qualification in an appropriate exam b. CLOSED CAREER POSITIONS Competitive scientific or highly technical in nature Exam - faculty, academic staff of state colleges and universities - scientific or technical positions in scientific or research institutions c. CAREER EXECUTIVE SERVICE - USEC, ASEC, Bureau Director, Asst. BD, Chief of Dept Service, Other officers of equivalent rank - SECURITY OF TENURE attaches only to RANK, not position d. PRESIDENTIAL APPOINTEES Foreign Service Officers in DFA e. AFP BUT with own separate merit system f. GOCCs whether performing governmental / proprietary fxns g. PERMANENT LABORERS semi/non/skilled 2) NON-CAREER CHARACTERISTICS 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... i. period specified by law ii. co-terminus with that of the apptg authority iii. subject to his pleasure ~ No cause, notice, hearing reqd iv. limited to the duration of a particular project for which purpose employment was made OFFICIALS INCLUDED a. Elective officials and their personal or confidential staff b. Dept heads and other officials of cabinet rank who hold positions at the pleasure of he Pres and their personal and confidential staff c. Chairmen and members of commissions and boards with fixed terms of office and their personal and confidential staff d. Contractual personnel and those whose employment in the govt 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 not exceeding 1y, and performs with minimum direction and supervision from the hiring agency Emergency and seasonal personnel Casual employee when employment is not permanent but occasional, unpredictable, sporadic, and brief in nature

What are QUALIFICATION STANDARDS - Minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, other qualities reqd for successful performance - Workable guidelines for the apptg authority PURPOSES - as basis for civil service exams for positions in the career service - as guides in the appt and other personnel actions in the adjudication of protested appts - in determining training needs - as aid in the inspection and audit of the agencies personnel work programs - as incentives to officers and ees towards professional growth ESTABLISHMENT, ADMINISTRATION, MAINTENANCE - Department or Agency itself establishes QS - CSC approves the same - Wage and Position Classification Office consulted OFFSETTING OF DEFICIENCIES - Appointees education, experience or training may be used interchangeably to offset deficiencies - EXCEPT: the required civil service eligibility - WHEN: When necessary At the discretion of the apptg authority who is in the best position to determine the needs of his office and how to satisfy those needs KINDS OF APPTS ~ Difference: SECURITY OF TENURE 1) PERMANENT

- to a person who meets all the reqts 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 - continues until lawfully terminated - SECURITY OF TENURE: removed only for cause provided by law 2) TEMPORARY / ACTING - to a person who meets all the reqts for the position to which he is being appointed EXCEPT the appropriate civil service eligibility - NOT Lack of eligibility - BUT Possession of civil service eligibility different from that which is appropriate to the position for which he was appointed - max 12m or sooner if a qualified civil service eligible becomes available - WHY APPOINTED: Absence of appropriate eligible - GR: No temporary appt of non-eligible whenever there is a civil service eligible actually available for appt - E: - When immediate filling of the vacancy is urgently reqd in the public interest - When the vacancy is not permanent - EFFECT OF SUBSEQUENCE ELIGIBILITY - DOES NOT CONTINUE AS A PERMANENT APPT THUS Need of a new appt - PASSING OF EXAM does not automatically convert the temporary appt into a permanent one THUS Need of new appt (Province) > Sir: Dangerous against appointee bec. the possibility is always there that he would be replaced - REMOVAL: - REPLACEABLE even by a non-eligible - Terminated at the pleasure of the apptg power, without notice, hearing, regardless of grounds, reasons - BUT With such protection as may be provided by law to prevent indiscriminate dismissals of temps Cannot be removed without justifiable cause if appt is for a definite period 3) APPT THRU CERTIFICATION WHAT: Certified by the CSC that youre in roster of eligibles Person is selected from a list of qualified persons

certified by the CSC from an appropriate register of eligibles and who meets all the other reqts of the position EFFECT - 6m Probation - Character investigation to acquire permanent civil service status - May be dropped from the service for unsatisfactory conduct or want of capacity any time HOW TO DETERMINE KIND OF APPT: Nature of Appt extended

REVIEW POWER OF THE CIVIL SERVICE COMMISSION: APPROVAL, RECALL, REINSTATEMENT APPROVAL 1. WHEN TO APPROVE / DISAPPROVE i. APPROVE WHEN 1. Proposed appointee is a qualified service eligible or possesses appropriate eligibility, reqd qualifications ~ Minimum eligibility reqts 2. Rules pertinent to the process of appt are followed a. NO OTHER CRITERIA may be employed b. Approve even if others are more qualified c. Cannot make an appt or direct apptg authority to change the employment status of the appointee 3. NATURE: Ministerial a. When qualified, ATTEST TO APPT and thats the end of its role b. Merely serves to assure the eligibility of the appointee ii. DISAPPROVE: Non-conformity to applicable provisions of law and on the appointees qualifications a. HEARING: None bec. it does not involve the imposition of administrative disciplinary measures b. REMEDY: MR with CSC c. RECALL BY CSC: Motu proprio or by MR 2. 3. NATURE: Does not complete the appt ALTHOUGH it is an essential part of the appointing power WHEN REQD a. GR: All appts in the civil service whether original, promotional b. E: i. Presidential appts ii. AFP iii. Police forces iv. Firemen v. Jail guards WHEN TO APPROVE: within reasonable time a. Old Rule (PD 807): All appts must be submitted to CSC within 30d, OTHERWISE Ineffective if not so filed b. Now (EO 292, Obiasca v. Basollete 5-star): Reasonable time to submit to CSC i. WHY: It would open the door to fraud, bad faith, office politics

ii.

Tomali v. CSC: Appointee must take initiative to assure that appt papers have been submitted to the CSC > Follow it up!

RECALL OF APPT I. WHO CAN RECALL: CSC a. Once an appt is accepted by the appointee, the apptg authority cannot withdraw, revoke the appt which remains in force and effect until disapproved by the CSC b. THUS, Authority to recall an appt initially approved is with the CSC c. BUT Only if the appt and approval are proven to be in disregard of applicable provisions of the civil service law and regulations II. GROUNDS FOR RECALL (IR of RAC, Rule VI.20) ~ Very specific. a. Non-compliance with the procedures, criteria provided in the agencys Merit Promotion Plan b. Failure to pass thru the agencys Selection/Promotion Board MEMORIZE c. Violation of the existing collective agreement b/w management and ees relative to promotion d. Violation of other existing civil service law, rules, and regulations e. MIDNIGHT APPT is not a ground for recall of appts BEC Prohibition applies only to appts by the Pres/Acting Pres (De Rama v. CA) i. SIR: Myopic View! Principle involved is midnight appts in Aytona case, not the constitutional provision, OTHERWISE, it would preempt the prerogative of the successor REINSTATE WHEN: When ee is illegally demoted, dismissed

4.

h. VACANCY WHEN - office is empty and - without a legally qualified incumbent appointed, elected to it with a lawful right to exercise its powers and perform its duties - need not be physically vacant BEC can be occupied by one who is not a de jure officer, e.g. usurper, hold-over EFFECT - Apptg power may proceed to fill the office - No appt to a non-vacant position, OTHERWISE Void CLASSIFICATION OF VACANCIES 1. ORIGINAL when an office is created and - no one has been appointed to fill it 2. CONSTRUCTIVE incumbent has no legal right or claim to continue in office and - can be legally replaced by another functionary 3. ACCIDENTAL incumbent has died, resigned, been removed, and - there is no one in esse discharging the duties of the office 4. ABSOLUTE - term of an incumbent having expired and - the latter not having held over - no successor is in being who is legally qualified to assume the office CAUSES OF VACANCY AND TERMINATION14 1. Death No legal 2. Permanent disability occupant 3. Removal from office 4. Resignation of the incumbent 1) WHEN: Upon Acceptance of resignation by proper authority, when necessary 2) NONE When theres illegal suspension or dismissal 5. Abandonment 6. Expiration of term 7. Conviction of a crime 8. Impeachment conviction 9. Acceptance of an incompatible office 10. Creation of a new office

11. 12. 13. 14.

Reaching the age limit Recall Failure of persons chosen for office to accept Failure of persons chosen to qualify for the office

ANTICIPATED VACANCIES WHEN: In cases of anticipated vacancies in a public office Example: Resignation taking effect at future date WHAT: PROSPECTIVE APPOINTMENT made by person, who is empowered to fill the vacancy when it arises, to fill such anticipated vacancy VALIDITY: GR: Prospective appointments are legal appts REQTS: 1) At the time of the effectivity of the position, the appointee will satisfy the eligibility reqts 2) When appt becomes effective, the apptg authority is still the same apptg authority E: Expressly prohibited by law

i.

QUALIFYING TO OFFICE

12) Officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath NATURE GR: Not indispensable - Only a mere incident to the office and constitutes no part of the office itself - Directory! Mere delay in taking an oath is curable if it be afterwards taken with approval of the public authorities BUT may be a ground for forfeiture while delay continues E: Prerequisite to full investiture with the office IF MANDATORY - Right to enter into the position becomes plenary and complete - Pendency of an Election Protest is INSUFFICIENT to enjoin him from assuming office FORM GR: None E: Law expressly requires specific form - OFFICIAL BOND WHO: - Accountable public officers those to whom are entrusted the collection and custody of public money - Public ministerial officers those whose actions may affect the rights and interests of individuals thus reqd to secure the faithful and proper discharge of their duties by giving bonds conditioned to that effect WHAT ~ indemnification for default, negligence of the officer - In the nature of an indemnity bond, rather than a penal or forfeiture bond - Collateral security for the performance of the officers duty - A contract b/w the officer and the govt, binding the officer to discharge the duties of his office - An obligation binding the sureties to make good the officers default - Contractual obligation b/w injured party and officer and surety WHY - to protect public interest - to indemnify those suffering loss or injury by reason of misconduct or neglect in office

TWO SENSES OF QUALIFICATIONS 1) Personal Qualifications 2) Qualification as an Act - Official Oath and Official Bond WHAT - Certain steps which are separate and distinct from the appt, election to office and which are generally reqd to be taken by a person to entitle him to assume the functions and duties of the office - Person appointed, elected is usually reqd by law to do some act by which he shall signify his acceptance of the office and his undertaking to execute the trust confided in him before entering upon the performance of his duties - OFFICIAL OATH WHAT: 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 WHO IS REQD TO TAKE OATH Reqd by 1) President VII.5 2) Vice President 3) Acting President 4) All public officers and employees IX.B.4; AC 5) All members of the armed forces XVI.5.1; AC 6) Elective and appointive local officials and employees LGC WHO CAN ADMINISTER OATH General Authority 1) Notaries public 2) Members of the judiciary 3) Clerks of court 4) Secretary of Senate, HR Limited Authority 5) Secretaries of departments Only in matters of GR: Cannot 6) Bureau directors official business charge fees 7) Registrars of deeds E: Specifically 8) Provincial governors authorized by 9) Lieutenant-governors law 10) City mayors 11) Other officer in the service of the govt of the Ph whose appt is vested in the Pres

NATURE GR: Directory only! BEC Mere incident of office EFFECT: Failure to furnish the same within a fixed time does not ipso fact forfeit the office and delay is waivable E: Expressly made a condition precedent NATURE OF REQUIREMENT GR: Directory EFFECT: Curable. Can explain failure to comply within time prescribed E: Mandatory if the law requires it as mandatory BUT PRESUMPTION OF COMPLIANCE BEC of presumption that ordinary course of business has been followed and that the law has been obeyed EFFECT OF FAILURE TO QUALIFY GR: Deemed evidence of refusal of the office De fact officer E: Failure, neglect to qualify would not ordinarily be deemed ipso facto a rejection if particular time is prescribed but supplied only afterwards EE: If qualification within a given time was expressly made a condition precedent

XVIII. DE FACTO AND DE JURE OFFICERS 5-star XIX. DE FACTO DOCTRINE ~ In GF

WHY - fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question - protection of the public by ensuring the orderly functioning of the govt despite technical defects in title to office - stability in govt functions from chaos from litigations challenging title BEC acts are valid insofar as the public is concerned WHAT: a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until -he is ousted therefrom by judicial declaration in a proper proceeding or -his admission thereto is declared void WHO - one who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law - one who is in possession of an office in the open exercise of its fxns under color of an election, appt eventhough such election, appt may be irregular, informal so that the incumbent is not a mere volunteer HOW: duties of the office are exercised NO COLORABLE TITLE 1) Without a known appt or election, But under such circumstances of reputation or acquiescence As were calculated to induce people, without inquiry, To submit to or to invoke his action MEMORIZE Supposing him to be the officer he assumed to be ~ Usurper can thus become de facto COLORABLE TITLE VARIANTS 2) Under a color of a known and valid appt, election

But the officer had failed to conform to some precedent reqt, condition (eg oath, bond) 3) Under a color of a known appt, election Void BEC -Officer was not eligible -There was want of power in the electing, apptg body, -Of some defect, irregularity in its exercise, Such not being unknown to the public 4) Under color of an appt, election By or pursuant to a public, unconstitutional law, Before the same is adjudged to be such TWO VIEWS i. Majority: De facto until declaration of nullity THUS thereafter, no more office ii. Minority: No position at all BEC a. Confers no rights b. Imposes no duties c. Affords no protection d. Creates no office e. Inoperative ELEMENTS 1) De jure office 2) Color of right or General acquiescence by the public a. COLOR OF RIGHT one is a de facto officer i. in an election, appt, ii. in holding over after the expiration of ones term iii. acquiescence by the public 3) Actual physical possession of the office in good faith COMPENSATION GR: Only an officer de jure can maintain an action for compensation - REQTS: Where there is de jure officer, de facto is not entitled to the emoluments attached to the office -Rightful incumbent may recover from de facto the salary received by the latter during the time of his wrongful tenure - De Facto takes the salaries at his risk WHY: Because there is a de jure officer THUS, position never became vacant (Mendoza v. Allas) E: When he renders services without bad faith *Entitled to Compensation: ONLY IF there is no separate de jure officer THUS position is vacant

WHO CAN FILE QUO WARRANTO 1) Person who claims to be entitled to the office a. Actual knowledge of the pendency of the suit is not sufficient (Mendoza case) 2) Republic represented by Solicitor General or Public Prosecutor

gg. DE JURE DOCTRINE WHO - 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 - one who is outside BEC it just so happens that theres another physically occupying it UNION: IF De jure is also De Facto, then lawful title and possession are united IF Two incumbents under claim of right, then he who has better legal title REQUIREMENTS 1) He must possess the legal qualifications for the office in question 2) He must be lawfully chosen to such office 3) He must have qualified himself to perform the duties of such office accdg to the mode prescribed by Consti, Law DE JURE Based on right DE FACTO Based on reputation, color of right, title to office Has possession, performing duties of office under color of right, authority without being technically qualified in all points of law to act Can be ousted in a USURPER Without lawful title, or color of right, authority, actual/ apparent Has possession of the office and undertakes to act officially under color of authority

direct proceeding against him ~ QUO WARRANTO BEC law presumes that a person acting in a public office was regularly apptd, elected to it Exercises fxns of office where the public does not know or ought to know his lack of title, authority Legitimate acts in the exercise of his authority are valid insofar as the public and third persons are concerned BUT Void as among themselves NO DIFF IN ACTS IF DE FACTO AND JURE

time in any proceeding BEC Not an officer at all for any purpose

Acts as an officer where the public knows or ought to know that he is such a usurper Absolutely null and void

Example: by-passed ad interim appt BEC not chosen in the manner and form provided by law

Has lawful right, title to office

Cannot be removed

Can be ousted at any

XX. POWERS OF PUBLIC OFFICERS XXI. SOURCE OF POWERS AND AUTHORITY OF PUBLIC
OFFICE: LAW AND CONSTITUTION SOURCE OF GOVTL AUTHORITY: People - HOW DO PEOPLE ACT: Directly or Thru Representatives - HOW POWER EXERCISED: Law and Constitution - IMPLICATIONS: 1) Authority of public officer is never presumed! No presumption of authority, express/implied BEC Govt and officers are only agents 2) Authority that persons dealing with public officers have knowledge of his authority - He must see to it that the authority is, in fact, sufficient for the assumed purposes - There is no apparent authority in a public officer whose duties are prescribed by law - Persons contracting with the public officer acting under a public law, must, at their peril, ascertain the scope of the officers authority BEC Chargeable with notice of the contents of the law conferring it 3) BUT Every citizen has the right to assume that a public officer charged by law with certain duties knows his duties and performs them in accordance with law IMPORTANCE: Public officers have only those powers EXPRESSLY GRANTED by law, NECESSARILY IMPLIED, ESSENTIAL TO THE ACCOMPLISHMENT Of the main purpose for which the office was created, INCIDENTAL BUT GERMANE Serves to promote the accomplishment of the principal purpose PRIVATE AGENTS Classified accdg to nature and effect of authority: Universal, General, Special

ii.

iii. ii.

- expressly conferred upon him by the law under which he has been appointed/elected EXPRESSLY ANNEXED TO OFFICE - expressly annexed to the office by the law which created it or some other law referring to it INCIDENTS - attached to the office as incidents to it

LIMITATIONS TO AUTHORITY OF PUBLIC OFFICERS i. Territorial - authority cannot exist in places where the law has no effect ii. Office at a Particular Place - where a public officer is authorized by law to perform the duties of his office at a particular place, Action at a place not authorized by law is ordinarily invalid

jj.

DURATION OF AUTHORITY i. TERM: If with term, during which he is by law invested with the rights and duties of the office ii. ACT: If chosen for the performance of a single act or definite term, his powers exhaust themselves in the acting THUS, having once acted, he is henceforth functus officio and can neither act again in reference to the same subject nor undo what he has done

kk. CONSTRUCTION OF GRANT OF POWERS: Strict interpretation i. Strict interpretation of express grants of power ii. HOW: Confer only those powers which are expressly imposed, necessarily implied ll. CLASSIFICATION OF POWERS AND DUTIES i. Nature of the Act 1. Ministerial - when it is absolute, certain, imperative involving merely execution of a specific duty arising from fixed and designated facts - where the officer has no judicial power, discretion as to the

PUBLIC OFFICER Never universal authority (BUT some are general in nature)

hh. SCOPE OF POWER i. EXPRESSLY CONFERRED BY LAW

interpretation of the law, and the course to be pursued is fixed by law - 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 - BUT Officer can decide on MEANS/METHOD employed - Nothing is left to the discretion of the person who must perform - Simple, definite duty arising under conditions admitted or proved to exist and imposed by law - DUTY OF OFFICER: Obedience to laws, instructions, proceedings that are prima facie valid - REMEDY: Mandamus! - DELEGATION > GR: Yes. Allowed. > E: -Expressly prohibited -Expressly requires the act to be performed personally 22. Discretionary - DISCRETION > Liberty to decide accdg to the principles of justice and ones ideas of what is right and proper under the circumstances, without willfulness or favor > Faculty conferred upon public officers by law of acting officially in certain circumstances, accdg to the dictates of their judgment and conscience, uncontrolled by the judgment, conscience of others - 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 - 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, and it is left to the will, judgment of the performer to determine in which way it will be performed - NATURE: QUASI-JUDICIAL BEC the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial - LIMITATION: Must be exercised with sound discretion and accdg to law - REMEDY: > GR: No Mandamus! Will not issue to control or review the exercise of discretion by a public officer where the law imposes on him the right of duty to exercise judgment in reference to any matter in which he is required to act (Aprueba v. Ganzon) > E: When there is a clear duty and an unnecessary and unreasonable delay in the exercise of such duty BUT Only to require action (Lamb v. Phipps) - DELEGATION > GR: No > E: Power to substitute another in his place has been given to him BEC he was chosen bec he was deemed fit and competent to exercise that judgment and discretion

ii.

iii.

Obligation of the Officer 1. Mandatory - GR: powers conferred on public offices are generally construed as mandatory, Even when the language may be permissive WHERE they are for the benefit of the public or individuals 2. Permissive - When the law defines the time and mode in which public officers will discharge their duties - Those which are obviously designed merely to secure order, uniformity, system, and dispatch in public business - If the act does not affect third persons and is not clearly beneficial to the public Relationship of the Officer and his Subordinates 1. Control - power of an officer to manage, direct, govern, alter, modify, set aside what a subordinate had done in the performance of his duties and to substitute his own judgment for the of the latter - officer in control lays down the rules in the doing of an act - REMEDY IF NON-COMPLIANT: Order the act undone / re-done / do it himself 23. Supervision - power of mere oversight over an inferior body - merely sees to it that the rules are followed BUT he himself does not lay down, and cannot modify or replace such rules

xxvi. mm.

E:

UNLESS Required by law (negative words) Nature of act requires it Injury to Public interest/right If none, Reasonable time

RATIFICATION OF ACTS Voidable Acts Effect of Ratification: Estoppel v. State Void Acts 1. Want of power to perform original act

nn. JUDICIAL REVIEW i. Discretionary Power: 1. GR: NONE 1. Discretion to be exercised upon his own opinion of certain facts 2. He is the sole and exclusive judge of the existence of those facts 2. E: If Reviewed, LIMITED to 1. GAD 2. Arbitrary Decision 3. Fraud or Corruption ii. Ministerial: Yes 1. BEC No exercise of discretion 2. HOW: 1. Mandamus by person who will sustain injury be inaction 2. Injunction to prevent act oo. SACRIFICE OF LIFE AND LIMB i. GR: No such duty ii. E: Sacrifice necessary for safety, happiness of human society

XXIV. TIME OF PERFORMANCE xxv. GR: Time designated BUT! Merely directory

XXVII. DUTIES OF PUBLIC OFFICERS

XXVIII. As trustees for the public iii. iv. To act primarily for the benefit of the public To obey the law > COMPLIANCE ACCOUNTABILITY

x. To perform duties faithfully WHAT: honestly, faithfully, and to the best of his ability primarily for the public benefit HOW: in such manner as to be above suspicion of irregularities WHY: undivided duty to the public EFFECTS No moonlighting! - E: Those authorized by law -Refrain from outside activities which interfere with proper discharge of duties > BEC Inconsistent with commitment to public service -Congress can declare inconsistent activities No Conflict of Interest - Technical Definition: In a given situation, public interest may be compromised if he acts in a manner that would promote his personal interests - Not permitted to place himself in a position which will subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interests of public - Not to use official power to further own interest pp. Duty of Public Disclosure i. WHAT 1. Statement of Assets, Liabilities, and Net Worth 2. Disclosure 1. of SALN of Spouses and Children 2. of Identity of 4o Relatives in the Govt 3. Authority of Ombudsman 1. 30d from assumption of office 2. To obtain documents, as may show their assets, liabilities, net worth, business interests, financialy connections, from all appropriate govt agencies > NOT BANKS! ii. WHO ARE REQUIRED 1. Congressmen - Upon assumption of office - Of their financial and business interest

WHY: All officers of govt are creatures of the law OTHERWISE, 3-FOLD LIABILITY Administrative Civil Criminal v. To accept and continue in office WHAT: Person having requisite qualification has the duty to accept office when appointed/elected to it *Not literally because of involuntary servitude vi. To accept burden of office

vii. To act with civility WHAT - Should be living examples of uprightness WHEN - Performance of official duties - In private and personal dealings with other people WHY: Public trust extends to all matters within the range of duties pertaining to the office

viii. To use reasonable skill and diligence WHAT: Use reasonable skill and diligence in performing DEGREE: Good Father ix. In choice and supervision of subordinates WHO: Public officer with appointing power WHAT: Make best available appt > Choose persons who can deliver DEGREE OF CARE: Depends of Nature of work and circumstances BUT! Ordinary care to ensure subordinates performance

xxx. xxxi.

xxxv.

29. Public Officer, Employee - Upon assumption of office and As may be reqd by law - Of assets, liabilities, net worth, financial and business interests BASIS: Consti, XI.17 and Police Power WHY: Public good (Morfe v. Mutuc) and Transparency 32. To curtail opportunities for corruption 33. To maintain standard of honesty in the public service 34. To promote morality WHEN DISCLOSED TO PUBLIC (XI.17) 36. WHO

iii.

37.
38. 39. 40. 41. 42. 43.

President

iv.

44.
2.

VP Cabinet Congress SC ConCom Other Constitutional Offices Officers of Armed Forces with General/Flag rank v.

xlv.

SCOPE 1. Public Officials and Ees EXCEPT i. Honorary capacity ii. Laborers iii. Casual, Temporary 2. Spouses 3. Unmarried children under 18y and living in their household 3. WHAT 1. Inspection 2. Reproduction (10wd from filing) 3. At reasonable hours 4. For reasonable fee 5. For 10y after receipt 6. PROHIBITED USES i. Purpose contrary to moral, ppolicy ii. Commercial purpose HOW: in manner provided by law 46. FORM: Under oath 47. CONTENT

Real property, Impvts, Acquisition costs, Assessed value, current FMV 49. Personal Prop, AC 7. Other assets 8. Financial liabilities 9. All business interests and financial connections WHEN FILED 1. 30d from assumption, as of first day 2. April 30, as of end of preceding year 3. 3od from separation from service, as of last day WHERE FILED 1. OMB National Office: P, VP, CC 50. Secretaries: Congress 2. SC Clerk: SC 3. Court Administrator: Judges 4. OP 1. all nationals executive officials 2. AFP > colonel, naval captain 5. OMB Deputy 1. Regional, local officials 2. AFP < colonel, naval capt. 6. CSC: All other public officials WHO APPROVES, REVIEWS COMPLIANCE WITH FORMALITIES 1. Committee, with Majority Approval of House: Congressmen and Senators 2. Heads, with DOJ Sec. approval: Executive Dept 3. CJ: Judicial dept 4. Chairman: ConCom 5. OMB: Office of Ombudsman

48.

qq. Specific Duties i. Action on Letters and Requests: 15 working days from receipt to reply ii. Annual Performance Reports: 45wd from end of year, Heads, Responsible Officers to render full and complete report of performance and accomplishments > available to public iii. Process of Documents, Papers: Reasonable time from preparation to process and complete official papers and documents > case to case basis

iv.

v. vi.

Nature, simplicity, complexity of subject matter 2. Completeness, adequacy of requirements, data, info necessary for decision, action 3. Lack of resources 4. Legal constraints 5. Fault, failure, negligence of party concerned 6. Fortuitous events, force majeure Publics Personal Transactions (Requests, Petitions, Services of their Offices): Promptly and expeditiously, not later than 15wd from receipt 1. Form: Written, Verbal Public Accessibility of Documents: Reasonable working hours, for inspection SIGNATORY REQUIREMENT 1. When: Any written action, decision 2. What: maximum 3 signatures EXCEPT as otherwise provided by law, regulation 3. Who: Duly authorized signatory > Next-in-rank / OIC > Authorized person

1.

3.

4.

5.

6.

rr. POLICY OF TRANSPARENCY i. BASIS: Constitution 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 ii. SCOPE 1. GR: Official Info, Records, Documents 2. EXCEPT IF... PIPI-PDS 1. Secret for National Defense, Security, Foreign Affairs: IRD must be kept secret in the interest of i. national defense ii. national security iii. conduct of foreign affairs 2. Imminent Danger to Life, Safety: Disclosure would put

7.

life and safety of an individual in imminent danger Privileged accdg to Law, Policy, Jurisp: IRD falls within established privilege / recognized exceptions as may be provided by law, settled policy, jurisprudence Drafts: Drafts of decisions, orders, rulings, policy-decisions, memoranda Personal and Private Info of personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy Investigation IF 4 Investigatory records compiled for law enforcement BUT only if I-I-I-T i. Interference with enforcement proceedings ii. Deprivation of right to fair trial and impartial adjudication iii. Disclosure of identity of confidential source iv. Unjustifiable disclosure of investigative techniques and procedures Premature: It would prematurely disclose info i. Likely to lead to significant financial speculation in currencies, securities, commodities and to endanger stability of financial institution

MEMORIZ E

ii.

Likely to frustrate implementation of proposed official action

LI.

NORMS OF CONDUCT OF PUBLIC OFFICERS

BASIS: Code of Conduct and Ethical Standards for Public Officials and Employees (R.A. 6713) NATURE: - broad statements - violations are not penalized (Samson) E: Conduct unbecoming which is punishable WHAT: 1) Commitment to public interest - over personal interest - avoid wastage of public funds 2) Professionalism - primary objective of civil service - perform duties with highest degree of excellence, professionalism, intelligence, skill - No such offense as unprofessional conduct (Samson; Reyes v. Rural Bank) 3) Justness and Sincerity - no discrimination 4) Political neutrality 5) Responsiveness to the public - prompt, courteous, adequate service 6) Nationalism and Patriotism - Loyalty to the RP and Filipino people 7) Commitment to democracy - people-oriented 8) Simple Living - lead modest lives appropriate to their positions and income HOW ATTAINED: System of Incentive and Rewards Criteria o Years of service o Quality and consistency of performance o Obscurity of position o Level of salary o Unique and exemplary quality of achievement o Risk, temptation inherent in the work o Similar Form of Incentives: Determined by Committee on Awards on the basis of merit and fitness principle

o o o o o o

Bonuses Citations Directorship in GOCCs Scholarship grants Paid vacations Auto promotion to next higher position or salary increase

Who is COMMITTEE ON AWARDS for Outstanding Public Officials and Employees o Ombudsman, co-chair o Chairman of CSC, co-chair o Chairman of COA o 2 Government Employees appointed by President o Secretariat

LII. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS LIII.

LIV. WHY: Public Officers do not cease to be citizens in becoming a public officer SOURCES lv. Constitution lvi. Law

SALARY - TO officers of higher degree of employment - AS personal compensation to be paid to public officer for his services - PAY FOR FULL TIME WORK

WAGES - TO lower officers

LVII. RIGHTS OF PUBLIC OFFICERS

lviii. Limited Protection from Publication Commenting on Fitness 3. BUT Not entitled to same protection as ordinary citizen 4. BEC Consent by running for office No Political and Business Activities IF 1. Activities are reasonably deemed inconsistent with public status and duties 2. Restraints rationally relate to enhancement of public service Property, Devices, Inventions 1. Insignia, Property of public office 2. Ownership of Records, discoveries, inventions, devices, data prepared by officer DEPENDS 1. OFFICER: Not required by law and not indispensable in the proper conduct of office 2. PUBLIC: Indispensable in proper conduct of office Compensation 1. DEFINITION
HONORARIUM - token of appreciation - something given not as a matter of obligation but in appreciation for services rendered - voluntary donation in consideration of services which admit of no compensation in money - ON fixed annual, periodical payment depending on the time and not on the amount of the services he may render - Per annum - Daily / Weekly

iii.

PER DIEM - Compensation for the days actually spent in the performance of official duties - Reimbursement for extra expenses by public official in performance of his duties - Lodging, subsistence while on duty outside their permanent station - Fixed not as ordinarily by the year, month but by the day - Daily allowance given for each day an officer, ee is away from her home base

EMOLUMENTS - profit arising from the office - received as compensation for services - such fees and compensation as the incumbent of the office is entitled to receive by law - salaries, fees, compensation, perquisites, pensions, retirement benefits

2.

FORM 1. 2. 3. 4. 5.

iv.

Fixed salary, wages Per diems Fees Commissions Perquisites of whatsoever character

3.

DETERMINING FACTOR 1. Not name 2. But NATURE AS PAY GIVEN FOR FULL TIME WORK (GSIS v. CSC) NATURE: Not indispensable to public office 1. GR: No compensation BEC Public Trust, NOT Property, Contract Right

4.

v.

COMPENSATION - pay for doing all that may be required of the official

PRESUMPTION: If none provided, then services are rendered gratuitously BUT WHY PROVIDE: - All are more or less compensated because no one would run otherwise

- Services were rendered anyway - No work, no pay 2. E: Law i. ii. iii. provides for it Consti Statute Ordinance

FROM: Govt, De Facto Officer ISSUE: RECOVERY OF BACKWAGES a) De Jure Officer is illegally dismissed De Facto Officer is appointed Effect: DJO can recover from DFO BEC - DJO with better right to the office and THUS entitled to backwages - No Work No Pay NA to DJO BEC he was prevented from working - DFO received compensation with risk of reimbursement BEC Position never became vacant (Monserrat) b) DFO appointed without a DJO (Rodriguez)

3.

WHEN RIGHT VESTS: When service is actually/constructively rendered i. NO WORK, NO PAY

5.

RATES OF SALARY Effect: DFO not obliged to reimburse BEC No DJO at time of appointment 7. PROTECTION OF SALARY 1. No Attachment, Execution, Garnishment BEFORE being paid to him

RATES GR: Standardization of compensation of government officials (IX-B.5) WHO FIXES RATES Congress Nature of Discretion: Absolute power to fix, alter BUT Afterwards, no power to reduce during term, tenure RE: P, VP, SC, Judges, ConCom, OMB Delegated within limits prescribed by law E: Substantive differences in NATURE of Position Duties Responsibilities Qualification requirements of the positions SCHEME TO DETERMINE SALARY: SALARY GRADE SYSTEM (P.D. 985) - All classes of positions, although different with respect to kind, subject matter of work, but are sufficiently equivalent as to the level of DRQ of the work, to warrant the inclusion of such classes of positions within one range of basic compensation - GRADE determines salary - GRADE is fixed by law *NOT ENTITLED: EX OFFICIO BEC Services are already paid for and covered by the compensation attached to the principal office (Bitonio v. COA) 6. RECOVERY OF COMPENSATION WHO: De jure officer WHEN: After adjudication and notice of protest in his favor OTHERWISE, With De Facto BEC No work, no pay

GARNISHMENT What: Species of attachment for reaching credits belonging to the judgment debtor owing to him from a stranger to a litigation RATIONALE - Money still public funds while in the hands of the disbursing officer THUS Diversion of public funds if so attached - PPolicy BEC fatal to public service - Tantamount to suit v. State REQT: Physical delivery to public officer If cash, delivery. If bank acct, at the time of credit into acct 8. PROHIBITIONS ON SALARY 1. No agreement affecting future compensation (unearned bec unperformed services)

RATIONALE:

-PPolicy

-Perversion of purpose of compensation as remuneration for services rendered -Denigrates integrity of public office to commercial undertakings and not public service EXAMPLES Agreement that, if the candidate be chosen, he will accept, accept less, accept other legal compensation, or donate it to treasury / TP BEC it would jeopardize faithful and satisfactory performance of duties Barter, Sale, Assignment of unearned salaries BEC it would impair efficiency Division of compensation with others, candidate promises to share emoluments with person who assists EFFECT: Officer can still recover amount due him BEC determined by law, not by contract 2. No additional, double, indirect compensation GR: No elective, appointive public officer, ee Shall receive additional, double, indirect compensation > Double compensation for dual, multiple offices Specifically authorized by law BEC Just and Necessary FOR Exercise of Primary Functions of Office Distinct offices BEC Law prohibits double compensation, NOT double appointments Not from Govt

Compliance with rule on nepotism

FUNCTIONS: CHRAPS Advisory Consultancy, Counselling Recommendatory Professional services Staff work (planning, research) Humanitarian EXEMPTIONS SALNs Disclosure Divestment Eligibility Security of Tenure PROHIBITIONS Supervisory functions National security positions Access to confidential info UNLESS Authorized by proper authorities Regular plantilla positions Crediting such services as govt services in availing retirement benefits Facilities and resources of office for partisan political purpose UNLESS otherwise provided in terms of designation vii. Self-Organization BASIS: - IX-B.2.5: Right to SO shall not be denied to govt ees - III.8 - XIII.3.2: Right of all workers to SO, including the right to strike in accordance with law LIMITATIONS: 1) PROHIBITED CONCERTED ACTIVITY OR MASS ACTION What: any collective activity undertaken by govt ees Either by themselves or thru ees orgs With the intent of effecting work stoppage or service disruption In order to - realize their demands or - force concessions, economic or otherwise From their respective agencies When: - De Leon: Allowed if done outside govt office hours - C: As of now, there is no law allowing them to strike

E:

vi.

FREE VOLUNTARY SERVICE

WHAT: Services rendered By persons who are in govt Without pay, compensation REQUIREMENTS Issuance of appropriate doc Fitness and suitability for the duties and responsibilities of the particular position

Rationale: Terms and conditions of govt employment are fixed by law 2) MASS LEAVE OF ABSENCES What: when five, more ees of the same agency Apply for leave simultaneously, almost at the same time Under circumstances evidencing collusion, common design to Participate in a prohibited mass action REMEDY: Right to COLLECTIVE NEGOTIATION - discussion to reach a solution to issues affecting both parties viii. BASIS: WHAT: Temporary Employees

- who are competent, qualified, with appropriate civil service eligibility WHO: Qualified Next-in-Rank Employees - ee 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 appt thereto Encourage professional growth Superior skills Greater dedication MORE EFFICIENT PUBLIC SERVICE (Overriding factor)

WHY:

IX.-B.2.6, such protection as may be established by law Security of Tenure Prevent indiscriminate dismissals of temporary ees Separation, replacement is made only for justifiable reasons ix. Parliamentary Immunities (Freedom from Arrest, Inquiry)

WHO: Congress WHEN: Offenses punishable by not more than 6y While Congress is in session WHAT: Privileged from arrest Cannot be questioned, held liable in any other place for any speech Immunity from libel suits x. SECURITY OF TENURE

NATURE OF NEXT IN RANK RULE : - Not mandatory - Limited to Promotion - Only a PREFERENTIAL CONSIDERATION for promotion - BEC -appt must be based on merit -apptg power has discretion and prerogative of choice of the one he deems fit for appt ADVANTAGE (Meram v. Edralin) - Granting that both possesses the reqd qualifications, the one who is next-in-rank deserves to the appointed xii. What o PENSION

WHAT: Removed, suspended EXCEPT FOR CAUSE Charge, Due Hearing and Finding of Guilt by proper authority xi. PREFERENCE IN PROMOTION

WHEN: Vacancy in position in the first level of the Career Service WHAT: Considered for promotion are ees in the dept - who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups, and

regular allowances paid to indiv, group of indivs by the govt -in consideration of services rendered, -in recognition of merit, civil or military o NOT a dole-out, gratuity BUT DEFERRED INCOME for services already rendered Nature: Right which vests upon retirement IF Participation is mandatory THUS Entitled to immediate payment OTHERWISE, deprivation without due process GRATUITY

PENSION

-more than act of generosity -act of justice emanating from desire to provide, though 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

-donation -act of pure liberality on part of State

-Until Expiration of Term with option to continue life insurance coverage by paying both employer and employees share NATURE OF MEMBERSHIP: Compulsory - All members are required to pay contribution - E: Judiciary and ConCom SCOPE OF MEMBERSHIP All employees in the service on 24 June 1997 Bgy and Sanggu officials who receive basic pay Those receiving per diems, honoraria Uniformed members of AFP and PNP ADVANTAGES: Exempt from attachment, garnishment, levy, other processes BENEFITS GRANTED RETIREMENT BENEFITS o What: Old age pension 5y Lump Sum (60 x basic monthly pension) + basic monthly pension for life, starting at 5y Cash Payment 18 x BMP + basic monthly pension for life, immediately upon retirement o Why: Reward for service to govt (GSIS v. CSC) Giving best years of their lives to service for their country, especially where they could have spent it more profitably in lucrative appts in the private sector Selfless dedication to govt service o Who 60 years old (or mandatory 65 y/o retirement age) 15 years of service COMPLETION OF 15y SERVICE REQT is merely a privilege (Cena) Old Rule (Cena): Upon 60y, allowed to continue in service to complete 15y New Rule (Rabot): Allowed only 1y after retirement age to complete years of service

Purpose: Humanitarian Purpose of Efficiency, Security, Well-Being o To encourage faithful and competent ees to enter and remain in service to render faithful and efficient service o To permit them to retire with relative security o To allow ees who have become incapacitated to retire from service with financial security Basis: Revised Government Service Insurance Act (R.A. 8291) o Nature: EXCLUSIVE Insurance, Retirement Plan (Conte v. COA) RA 4968, Sec. 28(b) bars the creation of any insurance or retirement plan, other than the GSIS Resolution No. 56 of the SSS (Financial Assistance Benefits) is a supplemental retirement/pension benefits plan THUS VOID Construction of Retirement Laws: Liberally construed and applied in favor of persons intended to be benefited by them UNLESS law provides otherwise o BOP with State to show that applicant is not qualified for pension o Cannot be withheld regardless of ees monetary liability to govt o Computation on basis of highest salary, emolument, allowance received EXCLUDES Honorarium bec only token of appreciation (Allarde v. COA) DURATION: -Upon employees assumption to duty pursuant to a valid appt, election and oath of office

Not receiving monthly pension benefit from permanent total disability WHEN REQD: At time of retirement (Brion v. South Philippine Union Mission of the Seventh Day Adventist Church) Conditions of eligibility for retirement must be met at the time of retirement, at which juncture the right to retirement benefits, pensions vests in the eligible ee Not for years subsequently To require the retired priest to continue devoting his life to the work of the SDAC would mean that he never really withdraws from his office

- 100% of average monthly compensation x each year of service he paid contri - 18 x BMP at resignation + Life pension UNEMPLOYMENT, INVOLUNTARY SEPARATION BENEFITS o Who Permanent ee Involuntarily separated due to reorg, merger, privatization Paid the stipulated 12 monthly integrated contri o What: 50% AMC DISABILITY BENEFITS o Permanent total/partial disability - In the service at the time / - Separated but has paid 36 monthly contri within 5y pd preceding / - Separated but has paid 180 monthly contri prior From date of disability o Temporary total disability Not due to grave misconduct, notorious negligence, habitual intoxication, willful intention to kill himself or another - In service at the time and has exhausted sick leave credits - Separated but 3y service and paid 6 monthly contri within 12m preceding SURVIVORSHIP BENEFITS o Who: Beneficiary of member, pensioner who dies o What: 50% BMP x 2 (Basis Survivorship and Dependents Pension) FUNERAL BENEFITS LIFE INSURANCE BENEFITS o Who: All members compulsorily and auto covered E: AFP, PNP

o o Contests: GSIS with OEJ to determine qualification for old-age pension benefit based on years of service REQT OF PAYMENT OF CONTRIBUTION (GSIS v. CSC) Facts: Vice-Governor held over position and was paid per diem but treated as compensation in computing retirement benefits. It was assailed bec. she did not pay contributions to GSIS Held: ALLOWED! Social legislation Basis of retirement benefits is service to govt Contributions, while necessary, are minimal and not absolutely determinative in determining who would qualify as recipients Contract of adhesion with GSIS and if GSIS did not deduct, it was by its own choice REMEDY: Deduction from the amt of retirement benefits accruing to them of reasonable amt corresponding to contri which should have been deducted during the pd

SEPARATION BENEFITS

xiii. FOR:

REIMBURSEMENT, INDEMNIFICATION

Expenses - which law requires to be incurred - in the due performance of duties - on the acct of the public - not covered by salary, commission - not attributable to neglect, default xiv. REMEDIES TO ILLEGAL DISMISSAL 1. REINSTATEMENT

WHAT: Restoration to a state, condition from which one has been removed, separated GR: Former Position E: Comparable Position 2. BACK SALARY

FROM WHOM Govt Superior Officers IF in BF (David v. Gania) Preventive suspension pending appeal and exonerated Gloria v. CA: Two kinds of preventive suspension Pending investigation CANNOT RECOVER BEC it is lawful - the law authorizes it - for the valid purpose of securing integrity of public service Pending appeal- CAN RECOVER IF EXONERATED BEC Premature dismissal, tantamount to punishing him after his exoneration PARDON OF CONVICTED EMPLOYEE (Monsanto v. Factoran) GR: NO ipso facto restoration to office EXCEPTIONS Expressly restored by pardon o Full exercise of his political rights is substantial compliance Expressly grounded on persons innocence o HOW If offense not abrogated Mere restoration of eligibility for appt THUS must reapply and undergo procedure for new appt No backpay BEC of guilt 5y max, NOT Full back salaries from illegal termination up to reinstatement 3. PRESCRIPTION OF ACTION

WHAT: Restoration of the income that was lost by reason of unlawful dismissal WHEN ALLOWED GR: None BEC no work, no pay o None for lawful separation o None for lawful suspension EVEN IF subsequently determined that the cause was insufficient BEC there is ground for suspension Preventive suspension is LAWFUL! allowed by law! EXCEPTIONS: Unlawful removal, suspension Can recover full amt BEC He is considered as not having left his office Even if already paid to another, which new appt is invalid BEC Position never became vacant and vacancy is unlawfully created THUS yields to superior right of claimant as removal for cause Even if he had earned salaries from other employment during his unlawful removal BEC Wrongfully prevented from entering the office and carrying out his duties

LIMITATION:

PRESCRIPTION: 1y from being ousted o Must assert reasonable diligence in asserting right to reinstatement

o o

OTHERWISE, lost right to reinstatement by unreasonable delay in asserting his rights BEC -Public interests require that such right should be determined as speedily as practicable -The law aids the vigilant and Not those who slumber on their rights

REMEDY: Ordinary Civil Action o Quo Warranto o Mandamus

LIX. PERSONNEL ACTION

LX. DEFINITION - any action denoting movement, progress of personnel in the civil service ss. IMPT: All shall be in accordance with such rules, standards, and regulations as may be promulgated by the CSC tt. KINDS i. Appt thru Certification - issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles and who meets all the other reqts of the position ii. Promotion > Needs new appt - advancement from one position to another with increase in duties, responsibilities, pay (usually) as authorized by law > Increase in salary is only incidental - upward vertical movement of the ees rank/position - dept or agency to another, or organizational unit in same dept, agency - NATURE: Gift, Reward Transfer - movement from one position to another which is of equivalent rank, level, salary without break in service involving issuance of appt - station-specific, when particular office, station where the position is located is specifically indicated on the face of the appt letter Vinzons-Chato v. Natividad: No right to place if none specified - KINDS 1) DETAIL dept, agency to another

2) REASSIGNMENT organizational unit to another in the same dept, agency *NOT: Non-career to career - NATURE: Not disciplinary if in the interest of public service - ISSUE: WON Apptg Authority has the prerogative to make transfers GR: NO there must be CONSENT to transfer - BEC It is a New Appt - EVEN IF Same level of rank, responsibilities, salaries, whether promotion/demotion - OTHERWISE, Liable for Disciplinary Action as in Divinagracia v. Sto. Tomas, involving an unconsented lateral transfer E: No Consent Reqd - Temporary Appts - Interests of Public Service (Emergency) BEC like detail and only temporary BUT Can still APPEAL to CSC TEMPORARY APPTS - permissible even without consent - NOT IF transfer is only a preliminary step towards removal a scheme to lure him away from his permanent position designed to indirectly terminate his service designed to indirectly force his resignation iv. Reinstatement - restoration to a state, condition from which one has been removed, separated - to same level for which he is qualified - WHO REINSTATES: CSC Accdg to sound judgment and discretion

iii.

For those illegally dismissed v. Reemployment - names of persons appointed permanently in career service but separated as a result of reduction in force/reorg/retrenchment shall be entered in a list from which selection for reemployment shall be made Detail - movement of ee from one dept, agency to another without issuance of an appt shall be allowed only for a limited period (max 1y) extendible with consent of detailed ee and within authority of mother agency in the case of ees occupying professional, technical, scientific positions - EFFECT: (PD 807) - Mother agency relinquishes to receiving agency administrative supervision over detailed ee - Salary from mother agency - REMEDY: Appeal to CSC BUT Executory unless CSC enjoins vii. Reassignment - reassigned from one orgl unit to another in same dept without new appt but must not involve reduction in rank, status, salary OTHERWISE, constructive removal Demotion - movement from one position to another involving the issuance of an appt with diminution in duties, responsibilities, status, grade, rank which may/not involve reduction in salaries service

- tantamount to removal IF Assigned to a lower, less impt position in same which has lower rate of compensation if no cause is shown for it (Domingo v. Carague) ix. x. Separation Attrition - reduction of personnel as a result of resignation, retirement, dismissal, death, transfer - appts to fill vacant positions in the govt (CSC v. Joson)

vi.

viii.

LXI. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

LXII.
PRESIDEN T, ACTING

CONSTITUTION
VICE PRESIDEN T CONGRESSMEN CONSTITUTIONAL COMMISSION 1. Not to hold any other office, ent JUDICIARY CIVIL SERVICE

CABINET, DEPUTIES, ASSISTAN TS 1. Not to hold any other office, ent UNLESS otherwise provided in Consti itself WHY: - To devote full tine and attention to official duties - To prevent special favors to their own private business - To assure the public that they will be faithful and dedicated in performance of functions

INCOMPATIBLE OFFICES 1. Not to hold any other office, ent in the govt during his term without forfeiting his seat - De Leon: Includes ex officio mship of any noncongressional body UNLESS Connected with / In aid of legislative duties - EFFECT OF VIOLATION: Auto termination of elective seat FORBIDDEN OFFICES 2. Not to be apptd to any office created/salary increased during his term for which he was elected - EVEN IF He resigns, loses seat before end of term - EFFECT OF VIOLATION: No termination in first seat BEC Void appt 3. Not to personally appear as counsel in any court of justice, ET, quasi-judicial, admin body - EVEN IF No fees are charged for it WHY: To remove any possibility of influence upon the judges of these courts who might be swayed in their decisions by their hope for future appts to higher positions

1. Not to be designated to any agency performing quasi-judicial, administrative functions WHY: - separation of powers BEC OTHERWISE, Subject to CONTROL of the Executive - it may compromise the independence of the members in the performance of their judicial functions - it would further delay the disposition of cases

DOUBLE OFFICER Elective official shall not be eligible for appt, designation in any capacity to any public office, position during tenure - EFFECT OF VIOLATION: No loss of elective seat bec void appt

Appointive official shall not hold any other office, ent in govt UNLESS Otherwise allowed by law by primary functions of his positions WHY: - Ensure dedication - Prevent double compensation Member of AFP in active service shall not be apptd, designated to a civilian position in govt at any time

2. Not to practice any other profession

2. Not to practice any other profession which in any way may be affected by the function of his office

3. Not to participate in/directly in any business

3. Not to engage in the active mgt, control of any busi which in any way may be affected by the function of his office

4. Not to be financially interested, in/directly, in any contract, (special) privilege, franchise, granted by govt, GOCCs, subsidiaries

WHAT: FINANCIAL INTEREST - interest which involves financial investment or - business out of which a member of Congress is to derive profit or gain - NOT: borrowing money from GOCCs SCOPE - As individual, partner, officer of corp., spouse - Opinion of Secretary of Justice, No. 49, Series of 1948: Congress son or brother is allowed UNLESS used as dummy or he is pecuniarily interested WHY: Fiduciary nature of their position Not to be granted, in/directly any loan, guaranty, other form of financial accommodation for any business purpose by any GOC-bank, financial institution TO, during their tenure: 1. President 2. VP 3. Cabinet Members 4. Congress 5. SC 6. ConCom, 7. Any firm, entity in which they have controlling interest (51%) THUS EXCLUDES - Loan not for business - No controlling interest - After tenure WHY: Public office is a public trust 5. To strictly avoid conflict of interest in the conduct of their office 5. Not to intervene in any matter before any office in Govt either: For his pecuniary benefit or Where he may be called upon to act on account of his office WHY: To insure that his every vote on any pending legislative measure shall be dictated by no other consideration than the public good Elective, Appointive not to accept present, emolument, office, title of any kind from any foreign govt without consent of Congress* (Pres. in CSL) WHAT: Present officially offered by govt of a foreign state - EXCLUDES Private, Personal gift WHY: - Just jealousy of alien influence in domestic affairs - Discourage and prevent foreign influence in the affairs of govt Not to engage in/directly in electioneering, partisan political campaign WHAT: ELECTIONEERING or PARTISAN POLITICAL CAMPAIGN - acts designed to promote the candidacy of a person, to have a candidate elected/not - such activities as participation in political campaigns, conventions, caucuses, parades, soliciting votes or contributions in/directly etc. - EXCLUDES 1. Expressing views on current political problems, issues 2. Mentioning names of candidates he supports (P v.

Cannot appoint spouse, relative 4o C/A to ConCom, OMB, Sec/Usec/Asec/Heads

De Venecia) SCOPE: CAREER SERVICE ONLY - Includes the Military E: To vote - Excludes: Cabinet, Elective Officials Elective, Appointive not to receive additional, double, indirect compensation UNLESS Specifically authorized by law EXCLUDING Pensions, Gratuities

uu. OTHER LAWS

CIVIL SERVICE DECREE LOCAL GOVERNMENT CODE PRACTICE OF PROFESSION Two Groups A. Who 1. Governors 2. City Mayor 3. Municipal Mayor WHAT: CANNOT -practice profession -engage in any occupation > What occupies your time > Strict View: celebrities not allowed > Liberal View: allowed! B. Sanggunian members WHAT: CAN! LIMITATIONS: 1. LAWYERS cannot appear as counsel - In CIVIL CASES where LGU, Govt is adverse party - In CRIMINAL CASE where officer, ee of govt is accused of offense committed in relation to office - CAN in ADMIN involving LGU of which he is an official BUT cannot collect appearance fee - CANNOT Use property, personnel of Govt EXCEPT when defending interest of Govt 2. DOCTORS OF MEDICINE - Only during emergencies - Even during official hours - No monetary compensation PARTISAN POLITICAL ACTIVITY Two Groups A. Local Official, Ee in Career Civil Service What: Shall not in/directly -engage in any partisan political activity -take part in any election, initiative, referendum, plebiscite, recall EXCEPT 1) to vote 2) to express his views on current issues 3) to mention names of candidates he supports -use his official authority to influence, cause the CIVIL CODE NEW CENTRAL BANK ACT Who: 1.Governor of BSP 2.MB Members fulltime What: Limit professional activities to those pertaining directly to their positions with the Bank Not accept any other ent E: -Charitable, civic, cultural, religious orgs - Designated by Pres. to represent interest of govt in matters connected with / affecting the economy or financial system of country NIRC

POLITICAL ACTIVITY Two Groups: A. GR: Officer, ee of Civil Service AFP members What: CANNOT In/Directly -engage in any partisan political activity -take part in any election EXCEPT 1) to vote 2) to express his views on current political problems, issues 3) to mention names of candidates he supports

BEC Right to free expression -use his official authority to coerce the political activity of any other person, body B. E: Public officers, ees holding political offices What: CAN take part in political and electoral activities EXCEPT: Unlawful to -solicit contributions from subordinates - subject them to any of the acts involving subordinates prohibited in Omnibus Election Code ADDITIONAL, DOUBLE COMPENSATION GR: Elective, Appointive - shall not receive additional, double compensation E: Specifically authorized by law - shall not accept any present, emolument, office, title of any kind from any foreign state E: Consent of President* (v. Congress in Consti)

performance of any political activity by any person, body B. Elective Local Officials What: CAN take part in political and electoral activities EXCEPT: Unlawful to -solicit contributions from subordinates - subject them to any of the acts involving subordinates prohibited in Omnibus Election Code BUSINESS AND PECUNIARY INTEREST 1) In/directly engage in any business transaction with the LGU -in which he is an official, ee - over which he has supervision power - with any of its authorized boards, officials, agents, attys WHEREBY -money is to be paid -property, any thing of value is to be transferred out of the resources of the LGU to such person, firm 2) Hold such interests in any cockpit, games licensed by LGU 3) Purchase real estate, other prop forfeited in favor of LGU -for unpaid taxes or assessment or -by virtue of legal process at the instance of the LGU 4) Be a surety for any person contracting doing business with LGU for which surety is reqd 5) Possess, use any public prop of LGU for private purpoes 6) other prohibitions PURCHASE AT PUBLIC AUCTION - State property which he administers - Property in custodia legis pending litigation - Legal redemption, compromises, renunciations 3.Personnel What: Be officer, director, ee, SH, in/directly, in any supervised/examine d institution E: -Non-stock savings and loan assoc -Provident funds organized exclusively for ees of Bank -Otherwise provided in the Act Receive gift for himself/another from supervised/examine d institution Reveal info re: condition, business of any such institution E: Order of court, Congress, authorized govt office, agency Borrowing from supervised/examine d institution UNLESS adequately secured and disclosed to MB DISCLOSURE What: Criminal to 1) BIR Official, ee Divulge to any person INFO RE: business, income, estate of any taxpayer, secret, operations, style, work, apparatus of any manufacturer, producer, confidential info re business of any taxpayer WHICH knowledge he acquired in the discharge of official duties 2) Internal Revenue Officer Become interested in/directly in manufacture, sale, importation, -of any certain goods subject to excise taxes or - of any dye for printing, making of stamp, labels Me: No benefit reqd

LIMITATION ON EMPLOYMENT OF LABORERS Not to be assigned to perform clerical duties NO DETAIL OR REASSIGNMENT: none whatsoever within 3m before any election NEPOTISM What: Appts and Designations in (Laurel v. CSC) o National o Provincial

City Municipal governments Branch, instrumentality, GOCCs EXCEPTIONS reported to CSC Confidential Capacity Teachers Physicians AFP Member Who: In favor of a relative of... CIRA o Appointing authority o Recommending authority o Persons exercising immediate supervision over appointee o Chief of bureau, office o o o o WHO is RELATIVE: 3o c/a

ANTI-GRAFT AND CORRUPT PRACTICES ACT (BB, I PAID) ABET 1) Influence another PO to perform an act constituting -violation of lawful RRs -offense in connection with the official duties of latter 2) Allowing himself to be so influenced BRIBERY: Request, receive any gift, benefit -in connection with any contract, transaction b/w govt and any other party where PO in his official capacity has to intervene, or -in consideration for the help to be/given for securing govt license, permit

CODE OF CONDUCT AND ETHICAL STANDARDS FINANCIAL AND MATERIAL INTEREST in/directly have any financial, material interest in any transaction requiring approval of their office

OUTSIDE EMPLOYMENT - cannot own, control, manage, accept ent as officer, ee, consultant, counsel, broker, agent, trustee, nominee in any private enterprise regulated, supervised, licensed by their office UNLESS expressly allowed by law DURING Term and 1y after resignation, retirement, separation - cannot practice profession UNLESS authorized by Consti, Law PROVIDED Such practice will not tend to / conflict with their official functions DURING Term and 1y after resignation, retirement, separation re: matter before the office Javellana v. DILG: No permit to practice law - recommend any person to any position in a private enterprise which has a regular, pending official transaction with their office DURING Term and 1y after resignation, retirement, separation DISCLOSURE, MISUSE OF CONFIDENTIAL INFO - Not to use, divulge confidential, classified info officially known to him by reason of his office and not made available to the public in order - to further private interest - to give undue advantage to anyone - to prejudice public interest SOLICITATION, ACCEPTANCE OF GIFTS - In/directly not to solicit, accept any gift, gratuity, favor, entertainment, loan, anything of monetary value from any person -in the course of their official duties or -in connection with any operation/transaction being regulated/affected by function of office - GIFT excludes unsolicited gift of nominal, insignificant value not given in anticipation of, or in exchange for, a favor from the PO > Be open-minded > GIFT MUST BE DISPROPORTIONATE TO THING DONE to be prohibited CONSENT OF CONGRESS - Gifts of nominal value as souvenir or mark of courtesy - Scholarship, fellowship grant, medical treatment - Travel grants, expenses for travel outside the Ph IF appropriate, consistent with interests of Ph and permitted by head of office to which he belongs

BIAS in the discharge of official functions: - Causing undue injury to any party, including the govt 4 ELEMENTS (Llorente v. Sandiganbayan) - Giving any private party unwarranted benefit, advantage, preference DISADVANTAGEOUS CONTRACT Entering into any contract, transaction on behalf of the govt manifestly or grossly disadvantageous to the same WON PO will/profited ELEMENTS (Duterte v. SB) > Stands out by itself BEC it can arise from mere gross negligence or stupidity yet liable! > You enter into a contract without gain, ill-financial motive and yet still held liable

PROHIBITED INTEREST Having financial, pecuniary interest in any business, contract, transaction in which he is prohibited by Consti, Law from having any interest CONFLICTING INTEREST BOARD

-Becoming interested for personal gain -Having material interest IN any transaction requiring Committee/Board approval of which he is a member EVEN IF he votes against it or does not participate > VERY STRICT! PATRONAGE Approving, granting any license, permit, privilege, benefit in favor of any person known as not qualified or legally entitled PENALTIES! - imprisonment - perpetual disqualification from office - confiscation, forfeiture - suspension pending criminal prosecution for violation / offense involving fraud upon govt PREVENTIVE SUSPENSION - auto for 90d upon filing of Info - applies to ANY OFFICE which the officer charged may be holding at the time, and not necessarily and particularly the office under which he is charged (Deloso v. SB) EYE-CATCHING: Deloso v. SB and Bayot v. SB NATURE OF PENALTIES - In addition to a/o of public officers already penalized by existing law - EFFECT ON PRESCRIPTION: Proceedings under RA3019 shall interrupt the prescription under RPC, which shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy, as provided under Act 3326 governing prescription for acts under special law (Miranda v. SB) SCOPE OF PUBLIC OFFICIALS - elective, appointive - non/career - military, police WON Compensated PURPOSE - to promote high standard of ethics in public service DUTIES OF PO AT ALL TIME (LUBAD) - be accountable to the people - discharge their duties with utmost responsibility, integrity, competence, loyalty - act with patriotism and justice - lead modest lives - uphold public interest over personal interest NATURE OF PENALTIES - In addition to a/o of public officials, ees prescribed in Consti, existing laws PENALTIES - removal - suspension - fine WHO: Any public official, employee regardless of nature of title CONVICTION REQD: NO Any violation proven in a proper administrative proceeding shall be sufficient cause for removal, dismissal even if no criminal prosecution is instituted

REMEDY FOR CONFLICT OF INTERESTS i. DIVESTMENT What: Divest himself of his shareholdings, interest in any private enterprise DIVESTMENT transfer of title or disposal of interest in property by voluntarily, completely, and actually depriving, dispossessing oneself of his right, title to it in favor of a person/s other than his spouse, relative (4o) When: 60d from assumption of office When Mandatory: Divest even if he has resigned from private position 1. Public Official, ee a. is a Partnership Partner b. is a Private Corporation i. Board member ii. Officer iii. Substantial SH Owns in/directly SS sufficient to elect a director c. owns or has a substantial interest in a business 2. Interest of such corp., business, or His rights or duties therein may be a. Opposed to b. Affected by the faithful performance of official duty When Not Required: In honorary capacity Laborers Casual temporary workers What: ii. RESIGNATION Resign from his position in any private enterprise

LXIII.

When: 30d from assumption of office

LXIV. LIABILITIES OF PUBLIC OFFICERS

CAN PUBLIC OFFICERS BE SUED? CAN PO BE LIABLE? Only if BF, Malice, GN

lxxv.

LXV.IMMUNITY FROM LIABILITY

lxvi. WHY: 67. Promotion of fearless, vigorous, effective administration of policies of government 68. Encourage competent people to accept public office 69. Prevent loss of time 70. Unfairness in subjecting officials to personal liability for subordinates acts 71. Ballot and removal procedures are more appropriate methods of dealing with misconduct WHAT: Immunity from civil liability if he acted 73. Within the scope of his authority, office 74. Without Bad Faith, Malice, Gross Negligence, or in GF Wylie v. Rarang: Publication of a libelous art is purely defamatory THUS outside the scope of authority THUS personally liable
OFFICIAL IMMUNITY -protective aegis for public officials from tort liability for damages arising from discretionary acts, functions in the performance of their official duties - QUALIFIED, LIMITED -Personally liable if outside the scope of duties, or with malice -Officer who exceeds the power conferred on him by law cannot hide behind the plea of sovereign immunity and must bear the liability personally -Purpose is not directly to protect the sovereign but to do so only collaterally, by protecting the public official - No estoppel against the State BEC in the performance of govtl function, the State is not bound by the mistake, neglect, wrongdoing of its agents, officers

lxxii.

NON-APPLICABILITY: Sued without Consent 1. Mandamus: To compel him to do an act required by law 2. To restrain enforcement of law claimed to be unconstitutional 3. To compel treasurer to pay damages from an already appropriated assurance fund 4. To require CIR to refund tax overpayments from a fund already available for the purpose 5. To secure judgment that the officer impleaded may satisfy by himself, without govt itself having to do a positive act to assist him 6. Govt itself has violated its own laws BEC state immunity cannot be used as an instrument for perpetrating an injustice 7. Certiorari and Prohibition under Rule 65 against unconstitutional acts EXTENT OF LIABILITY: Co-Extensive with Duty 1. Duty owing solely to the public 1. Individual without right of action EVEN IF injured 2. No COA from breach of duty owing solely to public 3. REDRESS is by public prosecution 2. Duty owing solely to the individuals

iii.

STATE IMMUNITY - king could do no wrong -protect the impersonal body politic or govt itself from tort liability

KINDS OF LIABILITY
vv. THREE-FOLD RESPONSIBILITY: Admin, Civil, Criminal i. NATURE GR: INDEPENDENT - a/o of PO mat give rise to civil, criminal, and admin liability - three remedies -can proceed independently of the others -can be pursued simultaneously, successively-

E: Larin v. Executive Secretary BEC OF FACTS OF CASE - Domingo v. Rayala ruled that a single a/o can give rise to three liabilities WHERE the officer was suspended administratively despite acquittal bec express solicitation is not reqd in administrative cases Penalized for 1y because theres already a hostile environment - Ferrer Case ruled that administrative cases are distinct from criminal cases thus they do not affect each other - SC in LARIN CASE exonerated Larin from administrative liability due to his acquittal in the criminal case -SC ruled that the acts for which he was criminally charged were not illegal, AND THUS, the administrative charges against him had no leg to stand on

CAUSE OF ACTION PURPOSE QUANTUM OF EVIDENCE RULES OF PROCEDURE

ADMINISTRATIVE Breach by PO of the norms and standards of public service Protection of public service and interest Improvement of public service Preservation of public faith and confidence in govt Substantial evidence, such relevant evi as a reasonable mind might accept as adequate to support a conclusion Technical rules of procedure not strictly applied Rules of Court applies only suppletorily! BUT Applied in CSC v. Colanggo for the administration of justice WHERE he was allowed to take a deposition for his administrative case against airport personnel who extorted money from hum as he was already out of the country COMPLIANCE WITH DUE PROCESS -Fair and reasonable opportunity to be heard -Opportunity to file MR Formally Charged - Filing of complaint by disciplining authority - Finding of existence of prima facie case by DA if complaint is filed by private person EFFECT OF WITHDRAWAL OF COMPLAINT BY PRIVATE PERSON: NONE Disciplining authority not divested of jurisd BEC He is only a winess Burden of Proof: Complainant BEC Presumption of regularity Not entitled to findings, recommendations of investigating committee BUT only to the administrative decision based on substantial evi made of record (Perfianco v. Moral) GF is not a defense Counsel: Not indispensable but desirable Effect of Death: None EXCEPT: - Right to due process may be denied to respondent - Exceptional circumstances for equitable, humanitarian resons Acts, Omissions of PO may constitute both a crime and BUT INDEPENDENT Prosecution in one does not bar the other BEC Independent REELECTION OF ELECTIVE OFFICIALS - No longer amenable to admin sanctions for infractions allegedly committed during previous term - WHEN: Elective official is REELECTED DURING PENDENCY of admin case - NA: Appointive officials BEC no disenfranchisement

CRIMINAL Violation of penal law Punishment of a crime Beyond reasonable doubt

CIVIL Breach by PO of duty or wrongful a/o by which indiv is damaged

Preponderance of evidence

- Finding of probable cause by investigating prosecutor and the consequent filing of information in court with prior written approval of prov. Fiscal, city prosecutor, chief state prosec., Omb - Finding of PC by prosec., judge when PI is not reqd - Finding of cause, ground to hold accused for trial pursuant to Summary Procedure State BEC of Presumption of innocence He who alleges

Official capacity, Lack of Corrupt intent are not defenses DEFENSES: Law exempts; Impossible performance Right to counsel

Defense: Within scope of authority and without BF

PREJUDICIAL QUESTION / DOUBLE JEOPARDY RES JUDICATA / LITIS PENDENTIA CONDONATION

administrative offense Dismissal of criminal case for insufficiency of evi does not foreclose admin action (See LARIN CASE) Criminal proceedings or liability subsists BEC Crime is a public wrong

May be PQ to criminal only Favorable decision in civil suit will not absolve him from admin liability Civil proceedings or liability subsists

WHY: - Each term is separate - Reelection is a condonation of the officials previous misconduct BEC they elected him with knowledge of his life and character - THUS cutting off the right to remove him

ii.

CIVIL LIABILITY 1. Immunity as a General Rule

WHEN: - PO, whether judicial, QJ, executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority and in line with his official duty - Quasi-judicial officer invested with discretion is usually given immunity from liability to persons who may be injured as a result of an erroneous, mistaken decision, however erroneous the judgment may be, provided the acts complained of are within scope of authority and without malice (PRC v. Bonifacio) WHY - Govt can act only thru individual persons - Persons liability, if any, is only in their official capacity THUS cannot be held personally liable 2. 2.1 Duty owing to individual Requisites for Personal Liability

(De Rama v. CA where Provincial Board of Cebu abolished 30 positions due to economy and thus separated 200 ees YET hired 1000 new ees, renovated office, and bought new mercedes benz THUS in bf) EXCEPTION! JUDICIARY!!!!!!! 2.3 Damage to individual 3. Rationale for Liability for Tortious Conduct

NOTE: BF is punished! GF is protected (Quimsing v. Lachica) WHY NOT LIABLE IF WITHIN SCOPE OF OFFICIAL AUTHORITY - Risk of injury to the public is inherent in the activity - His negligence will be regarded as decisional in nature and hence, immune WHY SO IF OUTSIDE - Even if in the course of ent, he cannot shelter himself by a plea that he is a public agent - In the eye of the law, his acts are wholly without authority 4. Basis of Liability 1. NCC, Art. 17 > Neglect of duty

2.2.Wrong, violation of the right of a party committed by PO a) Acted outside the scope of authority OFFICIAL AUTHORITY - prescribed by statute - specifically requested, directed by superior officer - done by an officer in relation to matters committed by law to his control or supervision - more, less connection to the dept under whose authority the officer is acting (PRC v. Bonifacio) b) Acted with BF, Malice, Gross Negligence WHAT: PO is not immune from damages in his personal capacity arising from illegal acts done in BF WHY: - tort, other wrongful act done in excess, beyond scope of his duty is not protected by his office - OTHERWISE, sanction use of public office as a tool of oppression

DUTIES OF CITY FISCAL: To Prosecute, or Not to Prosecute - Duty to prosecute crimes only where there is enough evidence to justify such action - Equal duty not to prosecute when after investigation, he is convinced that the evidence available is not enough to establish a prima facie case (Zulueta v. Nicolas) 2. NCC, Art. 32 > Obstruction of constitutional rights GR: Proceeds independently of criminal action E: JUDGES! Acts must constitute violation of penal law

3. NCC, Art. 34 > Police officers of city, muni 5. Damages Recoverable 1. Moral Damages 2. Exemplary Damages Effect of Contributory Negligence: Cannot recover

6.

ww.IMMUNITY OF THE PRESIDENT WHY - If not immune from liability, inevitable tendency is to protect himself and be biased, by following lines of least resistance and tempering the force of his executive arm in places and upon occasions where there is strong opposition either by powerful and influential persons or by great vested interests WHEN - No court has ever held and no final decision will ever be found holding an Executive personally liable in damages for the exercise of discretionary power under a law before it has been held unconsti (Moon v. Harrison) - Governor-General has the power and duty to deport aliens BUT liable when he acts so clearly outside of his power and authority that he cannot be said to have exercised discretion and judgment THUS he acts not as Governor-General but as a private individual (Forbes v. Chuoco Tiaco) SCOPE: Includes acts of Heads of Executive Depts BEC of Qualified Political Agency / Alter Ego Principle (Villena v. Finance Secretary) xx. IMMUNITY OF DISCRETIONARY OFFICERS WHAT: Generally immune from civil liability in performing discretionary functions INSOFAR as their conduct does not violate clearly established statutory, constitutional rights which any reasonable person would have known yy. IMMUNITY OF LEGISLATIVE OFFICIALS PRIVILEGES OF MEMBERS OF LEGISLATIVE BODIES General Liability Privilege of Arrest Speech WHY: Support the right of the people in enabling their representatives to execute the functions of their office without fear of prosecution zz. IMMUNITY OF JUDICIARY WHY NOT CIVIL LIABILITY - BEC judicial officer is called upon by law to exercise his judgment in the matter and

the law holds his duty to the individual to be performed when he has exercised it however erroneous, disastrous in its consequence it may appear - Otherwise, obstruction of justice - EVEN IF IN BAD FAITH BEC the judge is under severest labor and painful sense of responsibility in cases of great conflict in the evidence and doubt as to the law YET losing party feels most keenly the decision against him THUS disappointments occasioned by an adverse decision often finds vent in imputations of malicious motives - REMEDIES: 1) ADMINISTRATIVE LIABILITY (AFTER APPEAL, Ever Emporium v. Maceda) An error of judgment may be reviewed, corrected only by appeal BEC UNTIL there is a final declaration by the appellate court that the challenged order, judgment is manifestly erroneous, there will be no basis to conclude WON administratively liable GROUND: Gross ignorance of the law Incompetence Misconduct

QUANTUM OF PROOF: Substantial Evidence! Alcuzar v. Casipit (2007): BRD BEC Highly penal in character Macias v. Macias (2009) and Gutierrez v. Belen (2008): SUBSTANTIAL ONLY BEC No compelling reason to require higher degree of proof 2) CRIMINAL LIABILITY! Prosecution by the State GR: Acts of a judge in his judicial capacity do not always constitute misconduct and are not subject to disciplinary action EVEN IF erroneous E: IF ATTENDED BY FRAUD, DISHONESTY, CORRUPTION Criminal liability for dereliction of duty -for knowingly rendering an unjust judgment, interlocutory order > Difficult to demonstrate Contrary to law Not supported by evidence

Made with conscious and deliberate intent to do an injustice Manifestly contrary to law -for rendering a manifestly unjust judgment, interlocutory order by reason of inexcusable negligence or ignorance > Better chances here! Without malice but failed to observe diligence, prudence, care which the law requires in the performance of his duty INEXCUSABLE if implying manifest injustice which cannot be explained by a reasonable interpretation aaa. IMMUNITY OF QUASI-JUDICIAL

KINDS OF LIABILITY 1. NONFEASANCE WHAT: Neglect or refusal without sufficient excuse to perform an act which it was the officers legal duty to the individual to perform 2. MISFEASANCE WHAT Failure to use that degree of care, skill, diligence in the performance of a duty owing to an individual which the circumstances of the case reasonably demand 3. MALFEASANCE WHAT > BF! -Doing that which the officer has not legal right to do at all Either through ignorance, inattention, malice -Acts without any authority whatsoever -Exceeds, ignores, abuses his powers EFFECT OF GF: M/C only ccc.LIABILITY OF SUPERIOR OFFICERS FOR ACTS OF SUBORDINATE GR: NONE! BEC -They cannot be expected to monitor the activities of their subalterns and can rely to a reasonable extent on their subordinates and on the GF of those who prepare bids, purchase supplies, enter into negotiations (Arias v. SB) -High ranks cannot be expected to acquaint themselves with such minutiae as the flow of files and docs which leave their desks (Reyes v. Rural Bank of San Miguel) - Bad precedent if head office plagued by all too common problems dishonest, negligent subordinates, overwork, multiple assignments, plain incompetence is suddenly swept into a conspiracy connection simply because he did not primarily examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority (Albert v. Gangan; in Arias) -No command-responsibility! I am not my brothers keeper

WHO Officials in executive branch Who do not belong strictly to any of the traditional branches of govt and Are vested with discretion and Empowered to exercise their judgment in matters brought before them WHEN: Judicial functions only! Ministerial Acts: Liable for carelessness, negligence Judicial Functions: Immune as judges bbb. LIABILITY OF MINISTERIAL OFFICERS

PURELY MINISTERIAL ACT - One which an officer, tribunal performs in a given state of facts in a prescribed manner, in obedience to the mandate of the legal authority without regard to the exercise of his own judgment upon the im/propriety of the act done WHAT: Damages and Administrative Liability WHEN: Law imposes the performance of ministerial duties upon PO Failure or neglect of PO to perform Private indiv has a special and direct interest in such performance Injury proximately sustained in consequence thereof o That he has sustained a special and peculiar injury o That it results from a breach of duty which the officer owed to him

EXCEPT! He negligently, willfully employs, retains unfit, improper persons He negligently, willfully fails to require them the due conformity to the prescribed regulations He carelessly, negligently oversees, conducts, carries on the business of his office as to furnish the opportunity for default He has directed, authorized, cooperated in the wrong - EO 292 requires the order to be in WRITING YET No difference whether written/verbal to subordinate who will follow the same either way BUT REQD by law to safeguard superior officers Liability is expressly provided by law Misconduct, negligence within scope of ent of those employed by him voluntarily, privately and paid by him, and responsible to him ddd. LIABILITY OF SUBORDINATES GR: Same rules apply BEC Liability determined from ACTS, NOT Office E: NOT LIABLE FOR CIVIL DAMAGES IF Discretionary Officer: Pursuant to orders, instructions of superior o Acts in GF o Under orders, instructions of superior officer acting in pursuance to law IF Unlawful order, only M/C o Tabuena v. SB: sui generis BEC there was an order from the President Ministerial: Pursuant to orders of superior DILEMMA: Dont just follow all orders YET he might be charged with insubordination! REMEDY: Seek counsel eee. LIABILITY ON CONTRACTS ON BEHALF OF GOVT GR: Not liable for contracts within scope of authority for govt BEC Presumed that the officer does not intend to render himself Liable as to contracts and engagements Fairly within the scope of his authority Personally liable IF Unambiguous personal undertaking

No mention of the public agency he serves No indication that it is executed in an official capacity Grossly disadvantageous to govt (AGCPA) Law provides for personal liability (Rivera v. Maclang) RAC, Sec. 607 requires appropriation prior to execution of contract OTHERWISE, Contract is wholly void and Office assuming to make such contract shall be liable to Govt, Other party For any consequent damage To same extent as if the transaction had been wholly b/w private parties (RAC, Sec. 608) REMEDY: Express provision against personal liability BOP OF OFFICIAL ACT: Other party BEC authority is strictly construed

LXXVI. OTHER LIABILITIES

LXXVII. UNEXPLAINED WEALTH LIABILITIES i. Forfeiture a. Basis: RA 1379 (Forfeiture of Unexplained Wealth) b. What: Forfeiture in favor of State of any property found to have been unlawfully acquired by any public official, ee PRIMA FACIE UNLAWFULLY ACQUIRED: amount of property is manifestly out of proportion to 1) His salary as such POE 2) His other lawful income 3) Income from legitimately acquired property How (civil and in rem) 1) Complaint by taxpayer to city, provincial fiscal 2) Investigation by fiscal 1. Show Cause Order 2. Writ 3) Petition to OSG for filing in RTC 4) Presumption of unlawful acquisition 5) BOP with Respondent: Lawfully acquired 6) Court: Forfeit Nature of Proceedings: PENAL 1) Almeda v. Perez: Civil in terms of its procedural aspect THU S allowed to amend complaint without new inves

c.

d.

E:

2) Pascual v. BME: While civil in nature, substance of the proceedings is criminal in character 3) Cabal v. Kapunan: Right against SelfIncrimination in forfeiture investigation BEC partakes of nature of a penalty BEC Forfeiture is a divesture of property without compensation due to default, offense 4) Garcia v. SB: SB with jurisdiction over forfeiture proceedings instituted by the Omb (previously by the OSG) from 25 Feb. 1986 ii. Dismissal / Removal from Office a. Basis: RA 3019 (AGCPA) b. What: Ground for dismissal, removal 1) During incumbency 2) Acquisition of amount of property, money manifestly out of proportion to salary and other lawful income 3) Whether in his name, other persons

fff. ACCOUNTABLE OFFICERS WHO NEEDS BOND: Accountable Officers Every officer whose duties permit, require the possession, custody of govt funds, property DEFENSE OF SUPERIOR ORDER: GR: None E: Prior to act, he notified superior In Writing Of illegality of payment REQUISITES FOR LIABILITY (Albert v. Gangan) i. Expenditure of govt funds or Use of govt property ii. In violation of law, regulation iii. Official is directly responsible AUDITORIAL FUNCTION OF AUDITOR (Arias, dissent of Grino-Aquino) Examination Audit Settlement of accounts, funds, financial transactions, and resources of the agencies under their respective audit jurisdiction

LXXVIII. TERMINATION OF OFFICIAL RELATIONS LXXIX. MODES OF TERMINATION

13

DEAD AIR RIP CRRR i. Death lxxx. Expiration of term, tenure ii. Abandonment iii. Permanent Disability iv. Abolition of office (GF! Efficiency, Economy) v. Acceptance of incompatible office vi. Retirement vii. Removal viii. Impeachment 1. Elite 5 (P, VP, CC, Omb, SC) 2. 6 Grounds: CVC, T, B, GC, BPT, OHC ix. Prescription of right to office (quo warranto) x. Conviction of crime 1. Crime must be punishable with accessory penalty of disqualification 2. Dont confuse with conviction of crime with MT which is only a ground for disciplinary action xi. Resignation xii. Recall (local elective officials) 1. by 25% of registered voters in LGU at time of his election 2. once only during term (2nd year) xiii. Revolution xiv. NOT Loss of confidence (CSC v. Salas) ggg. i. CLASSIFICATION Natural Causes

- fixed and definite period of time to hold office, perform its functions, and enjoy its privileges - fixes the interval after which the several incumbents shall succeed one another Fixed by law (Nueno v. Angeles) - If Consti fixes: cannot be changed by law - If not: plenary power of Congress as it may deem fit E: PPolicy prohibits it to be left at discretion of -person holding office, -appointing power Commencement GR: Dates prescribed by Consti, Law E: If none fixed, o Date of Election o Date of Appt EXPIRATION extinguishment of right to hold office INCLUDES - Loss of confidence BEC term lasts only as long as confidence in them endures (Cadiente v. Santos) - Performance of single act or accomplishment of given result for which office is created, PO apptd becomes functus officio REMOVAL oust official before the expiration of term

1. Expiration of Term WHAT TERM TENURE - fixed and definite time - period during which the prescribed incumbent actually holds office by law, Consti - right of the occupant himself by which an officer may hold an to hold the office which is office terminated - time during which the officer - may be shorter than the term may claim to hold the office as of right

EFFECTS GR: Rights, duties, authority AUTO CEASES upon expiration of term of office E: Authorized by law to holdover HOLD-OVER - Term has expired or services terminated BUT public officer should continue holding his office Until his successor is appointed, chosen and had qualified WHEN ALLOWED:

- Law provides for the same (hold office until successor qualifies) - If law is silent: Allowed UNLESS prohibited (Lecaroz v. SB) - If Consti is silent: Not allowed WHY ALLOWED: - prevent hiatus in govt pending the time when successor may be chosen and inducted into office - public interest requires that public offices should be filled at all times, without interruption STATUS: - If authorized by law: De jure officer - If not: De facto 2. Retirement

NATURE: Right to resign BEC not legally committed to finish term BUT! LIMIT: Consent of apptg power BEC Office is a burden which appointee is bound to bear in interest of community ELEMENTS Intention to relinquish part of the term o Acceptance of temporary position is not an abandonment BEC of right to live during the pendency of appeal of dismissal (Gonzales v. Hernandez) o Courtesy Resignation is not resignation in a legal sense BEC not reflective of intention to surrender position BUT only manifests his submission to the will of the political authority and apptg power (Ortiz v. COMELEC that following the example of the Honorable Justices of the SC, on the premise that we have not a revolutionary govt, we hereby place our positio at your disposal) Act of relinquishment o WHEN: Any time he chooses o HOW (FORM) GR: As prescribed by law E: If none, ANY METHOD indicative of the purpose o TEST: Totality of Circumstances (Estrada v. Desierto) Resignation to be determined by the totality of prior, contemporaneous, and posterior facts and circumstantial evidence o PRESUMPTION: Of voluntariness Acceptance by proper authority o To whom / By whom Designated by statute If none, officer, body having authority to appoint his successor or to call an election to fill the office o Form of Acceptance Formal declaration Appt of successor REQD: NOTICE OF ACCEPTANCE (RP v. Singun) Acceptance was not communicated to public officer

NATURE: Compulsory and Automatic WHEN: SC, Judges: 70 y/o Public Officers and Employees: 65 3. Death EFFECT: 1 Incumbent: necessarily renders office vacant 2/more officers: Survivors may still execute the office UNLESS joint action of all is reqd 4. Permanent Disability

SCOPE: Mental or Physical REQT: Judicial determination of the fact is necessary To render it conclusive BEC Incumbent may not admit it

ii.

Acts, Neglect of Officer 1. Resignation

WHAT is RESIGNATION - formal renunciation or relinquishment of a public office - expression by the incumbent in some form, express/implied of the intention to surrender, renounce, relinquish his right to the office and its acceptance by competent and lawful authority

YET The final or conclusive act of a resignations acceptance is the notice of acceptance BEC Official would not be in a position to determine the acceptance of his resignation unless he had been duly notified THUS Resignation was inoperative Effect of Lack of Acceptance: Resignation not valid until accepted (SB v. CA) Null and void resignation Abandonment of office punishable by arresto mayor Tenure ends upon acceptance Revocability of Resignation: BEFORE ACCEPTANCE: Allowed UNLESS Otherwise provided AFTER ACCEPTANCE: Allowed IF Authority consents No new rights have intervened Repudiation of Resignation Procured by fraud, duress Given as an alternative to have charges filed against officer

o o

One is subordinate to the other and Is subject to its supervisory power in some degree Thus frustrating that one acts as a check on the other Declared incompatible By Consti, Law For reasons of PPolicy EVEN IF theres no inconsistency in nature and functions PROHIBITED OFFICES - Appt to second office is void - No forfeiture of original office

INCOMPATIBLE OFFICES - Auto and absolute vacancy of first office - Title is terminated without any other act, proceeding - EXCEPTIONS TODA! i. Officer cannot vacate first office by his own act ii. Different govt iii. Expressly authorized by law to accept another office iv. Second office is temporary only

EFFECTS Abdication of all present and future rights accorded to an officer Severance of all work-related ties b/w er-ee

2.

Incompatible and Prohibited Offices

3. Abandonment of Office WHAT: - Non-user of office, neglect to use right, privilege, or to exercise office - Voluntary relinquishment of an office By the holder of all right, title, claim thereto Without valid, justifiable reason With the intention of nor reclaiming it - Termination of possession and control - Voluntary surrendering office to another under mistaken belief that the latter has been elected as his rightful successor - e.g. Mere filing of certificate of candidacy ELEMENTS Clear intention to abandon office o Absolute o Clearly as to indicate absolute relinquishment Overt acts by which the intention is carried into effect o NON-USER or failure to discharge duties of officer over particular period of time

WHEN INCOMPATIBLE DETERMINING FACTORS o Character of the offices o Relation to each other: Subordination of one to the other o Nature of the functions and duties WHEN o Conflict in such duties and functions So that the performance of the duties of one Interferes with the performance of duties of the other As to render it improper for one person to retain both from consideration of PPolicy

claim or resume it after a period in which performance of its functions became impossible Acquiescence by the officer in his wrongful removal

EFFECT Former incumbent cannot legally repossess it even by forcible reoccupancy ABANDONMENT voluntary relinquishment by non-user no repossession contradictory to each other RESIGNATION voluntary formal relinquishment no repossession

4. Prescription of right to office WHO Person who claims right to public office occupied by another HOW: Quo Warranto WHEN: 1y - after cause of such ouster - after the right of plaintiff to hold the office arose - RUNS even if no person yet appointed to succeed the position WHY - title to public office should not be subjected to uncertainties

iii.

Acts of Govt, People: 1. Removal

HOW - Administrative: Removal, Dismissal - Criminal: Permanent disqualification WHAT - ouster of incumbent before the expiration of his term FORM Expressed Implied o Appt to another office Must be removable at superior officers pleasure Notified o Transfer to another office INVALID as Illegal Removal: No consent Whether it results in promotion, demotion, advancement, reduction in salary VALID TRANSFER Prior appointment Acceptance o Demotion If no cause is shown for it Diminution in duties, responsibilities, status, rank, salary o Reassignment WHAT: Movement of ee from organization unit to another in the dept, agency which does not involve a reduction in rank, status, salary INVALID IF purpose is to exile, punish VALID IF GF o Constructive Removal, Dismissal Continued ent is impossible , unreasonable, unlikely Act of clear discrimination, insensibility, disdain WHO CAN REMOVE GR: Apptg Power o If term, tenure is not fixed by law o If removal is not governed by constitutional, statutory provision

REGULATION OF REMOVAL Statutory positions: Congress may restrict removal as i deems best for public interest Constitutional method: Exclusive KINDS OF POWER OF REMOVAL Absolute, unlimited discretion Conditional, when time, manner, reason

o PRESIDENTIAL POWER OF REMOVAL Basis: No express provision in Consti BUT! Implied from power of appt, control, supervision o POWER OF OMBUDSMAN Tapiador: merely recommendatory BUT obiter dictum Ledesma: with power to enforce Apptg Power without power of removal IF FIXITY OF Term is fixed by statute

E: TERM o

EFFECTS - office exists after ouster LIMITATIONS: SECURITY OF TENURE AND DUE PROCESS

SECURITY OF TENURE i. What is SECURITY OF TENURE - officer, ee in the civil service shall not be suspended or dismissed except for cause provided by law and only after due process is accorded ii. SCOPE OF SECURITY OF TENURE a. CESO: ST pertains to RANK, NOT Position b. Career and Non-Career BEC Non-career is exempt only from competitive exam iii. CAUSE PROVIDED BY LAW a. Substantive DP: LEGAL CAUSE i. Reasons which the law and sound PPolicy recognize as sufficient ground for removal, suspension, demotion ii. Legal causes, and not merely causes which apptg power may deem sufficient iii. Cause must relate to and affect the functions of the office iv. Cause must be connected with the performance of his official duties v. Cause must be restricted to something of a substantial nature directly affecting the rights and interests of the public vi. Cause must naturally have some relation to the character, fitness of officer, ee for the discharge of the functions of his office b. Procedural DP: Notice and Opportunity to be heard c. Sources i. CONSTI 1. Congress, for disorderly behavior 2. P,VP, SC, ConCom, Omb, for a. Culpable violation of Consti b. Treason c. Bribery d. Graft and corruption e. Other high crimes f. Betrayal of public trust 3. Judges, for good behavior 4. Temporary Appts ii. LGC, Sec. 60 1. Mere commission of any office iii. CIVIL SERVICE LAW30 1. DISHONESTY

WHAT: - a most serious offense which reflects a persons character and exposes the moral decay which virtually destroys his honor, virtue, integrity NATURE - need not be committed in the course of performance of duties BEC private life of ee cannot be segregated from public life (Remolona v. CSC) 2. Oppression 3. Neglect of Duty 4. MISCONDUCT WHAT - Violation of established rules - Transgression of some established and definite rule of action - Unlawful behavior or gross negligence by the PO - Improper and wrong conduct - Wrongful intent and not mere error of judgment REQT: Related to, and connected with, performance of official duties KINDS 1. GRAVE a. With corruption, manifest and flagrant disregard of the law b. Even if not work related nor committed in course of performance of duty c. Dismissal 2. LESS GRAVE *NO NEED TO DIFFERENTIATE IF filed with OMB BEC OMB with very broad powers to investigate and discipline

NATURE - direct relation to and be connected with the performance of official duties - must be related to the performance of official functions - Villanueva v. CA: Not misconduct bec not related to duties - E: GRAVE MISCONDUCT, OPPRESSION (Remolana) 5. 6. Disgraceful and immoral conduct; Being notoriously undesirable;

7. 8. 9.

10. 11.

12. 13. 14.

15. 16. 17. 18. 19. 20. 21. 22. 23.

Discourtesy in the course of official duties; Inefficiency and incompetence in the performance of official duties; Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; Conviction of a crime involving moral turpitude; Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children; Violation of existing Civil Service Law and rules or reasonable office regulations; Falsification of official document; Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duty during regular office hours; Habitual drunkenness; Gambling prohibited by law; Refusal to perform official duty or render overtime service; Disgraceful, immoral or dishonest conduct prior to entering the service; Physical or mental incapacity or disability due to immoral or vicious habits; Borrowing money by superior officers from subordinates or lending by subordinates to superior officers; Lending money at usurious rates of interest; Willful failure to pay just debts or willful failure to pay taxes due to the government; Contracting loans of money or other property from persons with whom the

24.

25. 26. 27. 28. 29.

office of the employee concerned has business relations; Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations; Insubordination; Engaging directly or indirectly in partisan political activities by one holding non-political office; Conduct prejudicial to the best interest of the service; Lobbying for personal interest or gain in legislative halls and offices without authority; Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority;

30. NEPOTISM WHEN: Appts and Designations (Laurel v. CSC) in favor of the relative (3o c/a) of Apptg authority Recommending authority Person with immediate supervision over appointee Chief of bureau, office EXCEPTIONS! BUT Reqd to Report to CSC Persons employed in a confidential capacity Teachers Physicians AFP

DUE PROCESS IN ADMINISTRATIVE INVESTIGATION iv. Jurisdiction (concurrent) c. Sanggunian Cant remove local officials d. President Removal is judicialized e. Ombudsman can remove i. E: Impeachables, Congress, Judiciary f. CSC i. E: Educational institutions due to Academic Freedom C: Removal is administrative So what is a court doing in an administrative case? 1) Violation of SOP bec. Pres. can discipline executive officials 2) Impractical -starts as admin yet judicialized -quantum of evi from SS to preponderance -courts as rubber stamp only if evi is already taken in the admin case -Sanggu can suspend but not remove yet both are disciplinary measures -if it is to prevent political vendetta, then why presume it right away when theres presumption of regularity? Effect of Death of Respondent: None if filed before death (Perez v. Abiera) v. Preventive Suspensions
AC Period 90d LGC 60d BUT 90d within single year on same ground known - when evi of guilt is strong - given the gravity of offense, there is great probability that the continuance in office could OMB 6m, until termination of case (ee under his authority) but max 6m -evi of guilt is strong - charge involves dishonesty, oppression, grave misconduct, neglect in duty -charges warrants removal CIVIL SERVICE LAW 60d AGCPA Reasonable time coeval with pd for decisions (90d max) PNP (RA 6975) Until terminatio n of case

Salary

influence witnesses or pose threat to safety and integrity of records, other evi IF EXONERATE D, compensate d for PS during inves and pending appeal None

-contd stay in office may prejudice case filed against him None Pending investigatio n: None during PS bec. allowed by law Pending appeal: Recoverable None Pending inves: None bec. allowed by law Beyond 90d: Recoverable Presuspension hearing is reqd to determine validity of info

Hearin g

None

No violation of DP in longer period for OMB -BEC Purposefully immune from political pressure to make it strong to threaten erring officials -AND justified by stricter reqts (Gobenciong v. CA) vi. Right of Appeal g. Who: Party adversely affected i. Govt ee in case of finding of guilt ii. CSC (Dacoycoy) iii. Disciplining authority (Geronga v. Varela) vii. PENALTIES h. DISCRETIONARY: Disciplining authority with leeway in imposing penalties i. Length of service or seniority can be treated as m/c or a/g i. Forced Resignation instead of Dismissal i. Oxymoron ii. It is also a removal BUT with a chance to return to office unless conditioned not to iii. BUT Forfeited leave and retirement pay j. President can commute/remove administrative penalty i. only if recommended by the CSC ii. meritorious cases iii. subject to terms and conditions he may impose in interest of service

Groun ds

charge involves -dishonesty, -oppression, -grave misconduct, -neglect -if there is reason to believe that he is guilty warranting his removal

charged with grave offense punishable by 6y1d