Acquisition of Right
or Title of Office
A. In General
1. Modes of Commencing official relations
The manner of selecting persons for public office is generally by either
:
a. Election
b. Appointment
2. Meaning of Appointment
a. It is an act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercises the powers and
functions of a given office.
b. It is equivalent to filling a vacancy in an office.
c. It is the nomination or designation of an individual to an office.
9. Acceptance of appointment
a. Not necessary to completion or validity of appointment
b. Necessary to possession of office
All other officers appointments are not otherwise provided by law and
to be appointed to lower offices created by Congress
d. Fourth
: appointments the Congress by law vests in the President alone
other officers lower in rank
Congress may vest power to appoint officers lower in rank to the followin
g:
a.
b.
c.
d.
heads of departments
agencies
commissions
boards
lower in rank does not include heads of bureaus and offices not specifically mention
ed
in the Constitution as among those to be appointed by President who are subordinates
of Cabinet members. By law, their appointments are vested in the President.
4. KInds of Presidential appointments
a. as to manner in which it is made
regular
made by Congress while in session; subject to confirmation by
the Commission on Appointments
ad interim
made while Congress is in recess
b. as to its nature
permanent
those which last until they are lawfully terminated
temporary acting
or
5. Ad interim appointments those which last until a permanent appointment is
issued
a.
These are appointments made by the President while Congress is in recess, thus,
the Commission on Appointments may only deliberate upon such appointments
when Congress goes into session
b.
The President is usually aided by the Commission on Appointments advice when
it comes to appointments. In case of ad interim appointments, however, the
President acts alone and the system of checks and balances vital to our system of
government is not in place
c. Ad interim appointments, however, are necessary due to the existence of
situations where there is a clear and present urgency caused by an impending
obstruction or paralysis of the function assigned to office to be filled if no
immediate appointment is made
d.
An ad interim appointment is permanent in nature and not a mere temporary or
acting appointment even if it subject to confirmation by the Commission on
appointments. However, it may be recalled or revoked by the President before
confirmation
6. Temporary or acting appointments
a.
Generally, the power to appoint vested in the President includes temporary or
acting appointments, unless otherwise provided by law.
b.
An acting appointment, being essentially temporary or provisional in character,
cannot be validly confirmed by the COmmission on Appointments because
confirmation presupposes a valid nomination or ad interim appointment.
c. A temporary appointment an acting appointment.
d. An unqualified person cannot be appointed even in an acting capacity
7. Designations
Is simply the mere imposition of new or additional duties upon an officer to be
performed by him in a special manner while he performs the function of his permane
nt
office.
8. Steps in the appointing process
a. Nomination It is the exclusive prerogative of the President upon which no
limitation may be imposed by Congress, except those resulting from the need
securing the concurrence of the Commission on Appointments and from the
exercises of the limited legislative power to prescribe the qualifications to a
given appointive office.
b. Confirmation
The power to confirm and reject certain appointments belongs to
Congress through the Commission on Appointments since it is a check on
the executive.
A confirmation cannot be reconsidered after the President has been
notified of the confirmation and has completed the appointment by
issuing a commission the appointee even if the rules of the confirming
body provide for reconsideration
c. Issuance of Commission
Commission is the written authority from a competent source given to
the officer as his warrant for exercise of the powers and duties of the
office. It is the the written evidence of the appointment
When a person is elected to office, his right as established as a result of
the election and does not depend upon the issuance of a commission.
Issuance of a commission to an elected officer is merely a ministerial act
and not a part of the act of appointment. Instead, the elected officer is
entitled to a certificate of election.
It includes:
i.Open career positions for appointments requiring prior
qualification in an appropriate examination
ii.Closed career positions which are scientific or highly technical in
nature.
iii.Positions in the Career Executive Service
iv.Career officers other than those in the Career Service who are
appointed by the President
v.Commissioned officers and enlisted men of the Armed Forces
vi.Personrel of governmentowned and controlled corporations
whether performing governmental or proprietary functions who
do not fall under noncareer services; and
vii.
b. NonCareer Service
i.
Characteristics:
Entrance bases other than those of the usual test of merit and
fitness
Tenure which is limited to a period specified by law or
coterminous with that of the appointing authority or subject to
his pleasure or limited to the duration of a particular project
ii.
Includes:
Elective officials and their personal or confidential staffs.
Department heads and other officers of cabinet rank and their
staffs
Chairmen and members of commissions and boards with fixed
terms of office and their staffs
Contractual personnel
Emergency and seasonal personnel
Casual employees
4. Constitutional Classification
a.
Competitive Those appointments are made according to merit and fitness as
determined by competitive examinations.
b. Noncompetitive Those appointments do not take into account merit and
fitness as determined by competitive examinations. These include positions
which are policydetermining, primarily confidential, or highly technical in
nature.
Its occupants enjoys more than the ordinary confidence i his aptitude o
f
the appointing power but bears primarily such as close intimacy which
insure freedom of intercourse without embarrassment of freedom from
misgiving of betrayal of personal trust on confidential matters of the
State. More than ordinary is required.
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e. Highly
technical position Its occupant is required to possess skills or training in
the supreme or superior degree.
7. Qualification standards in the Civil Service
1. These are the minimum requirements for a class of positions in terms of
education, training and experience, civil service eligibility, physical fitness, and
other qualities required for successful performance.
2. Use of Qualification Standards
As basis for civil service examinations for positions in the career service
As guides in the appointment and other personnel actions in the
adjudication of protested appointments
In determining training needs
As aid in the inspection and audit of the agencies personnel work
programs
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b.
Where the appointee has civil service eligibility but different from that which is
appropriate to the position for which he was appointed.
c. Where the appointment is made by the President to fill an executive office
during the absence or incapacity of the incumbent
d. Where the appointee has not passed any civil service examination
e. Where the new appointment is still subject to a condition and compliance has
not been made yet
f. Where a new incumbent has been appointed to fill the position of a regular
employee who has been illegally suspended or dismissed.
g. Where a person is designated as an officer in charge
h. Where the appointment is made at the pleasure of the appointing power
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D. Vacancy
There is a vacancy when an office is empty and without a legally qualified incumbent appoin
ted
or elected to it with a lawful right to exercise it powers and perform its duties.
1. Classifications
a. original
when an office is created and no one has been appointed to fill it;
b. constructive when the incumbent has no legal right or claim to continue in
office and can be legally replaced by another functionary;
c. accidental
when the incumbent having died, resigned, or been removed, there
is no one in esse discharging the duties of the office
d. absolute
when the 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
2. Causes of vacancy
a. Death, permanent disability, removal from office or resignation of the
incumbent.
b. Abandonment, expiration of term, conviction of a crime, impeachment
conviction, acceptance of incompatible office, creation of a new office, reaching
the age limit and recall. Failure of persons chosen for office to accept or qualify
for the office.
3. Filing of anticipated vacancies
a. Generally appointment legal a prospective appointment to fill an anticipated
vacancy in a public office, made by the person or body which, as then
constituted, is empowered to fill the vacancy when it arises, is in the absence of
express law forbidding it, legal appointment, and vests title to the office in the
appointee.
b. Where appointment to take effect after expiration of appointing power but the
appointing power cannot forestall the rights and prerogatives of their successors
by appointing successors to offices expiring after its power to appoint has itself
expired. It is also plain that an appointment thus made by anticipation has no
other basis than expediency and convenience.
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E. Qualifying to Office
1. Qualification
The person appointed or elected to a public office is usually required by law,
before entering upon the performance of his duties to do some act by which he shall
signify his acceptance of the office and his undertaking to execute the trust confided in
him.
2. Oath of office for public officers and employees
a.
Oath is an outward pledge whereby one formally calls upon God to witness to
the truth of what he says or to the fact that he sincerely intends to do what he
says
Constitution Article VII Section 5
Administrative Code of 1987
Local Government Code
3. Necessity of oath of office
a. When the public officer has satisfied the prerequisite of oath that his right to
enter into the position becomes plenary and complete.
b. Although the law usually requires the taking of an oath, it is not indispensable. It
is mere incident to the office and constitutes no part of the office itself.
c. The President, the Vice President, or the Acting President oath taking is
mandatory
d. Unless the law expressly requires more, it is sufficient that the oath be taken
F. De Facto
Officers
1. De facto
doctrine
Is the principle which holds that a person who, by the proper authority is
admitted and sworn into office is deemed to be
rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or his
admission thereto is
Springs
declared
void. from the 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, and seeks to protect the public by insuring the
orderly
functioning of the government despite technical defect in title to office.
2. De facto
officer
is one who has the reputation of being the officer he assumed to be and
yet is
not good officer in point of law.
A person where the duties of the officer are exercised:
a. without a known appointment or election, but under such circumstance of
reputation or acquiescence as were
calculated to induce people, without inquiry
to submit to or invoke his action,
supposing him to be the officer he assumed to
be; or
b. under color of a known and valid appointment or election, but where the officer
has failed to conform to some precedent requirement or condition, such as
to
take an oath, give a bond, or the like; or
c. under the color of a known election or appointment, void because the
officer
was not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in
its exercise, such
as ineligibility, want of power, or defect being unknown to the public; or
d. under color of an election or an appointment by or pursuant to a public,
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unconstitutional law, before the same is adjudged to such.
Officer is one who derives his appointment from one having colorable
authority to
appoint if the office is an appointive office, and whose appointment is valid on its fac
e. jure
3. De
officer
is 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.
4. Requirements to become officer de jure
a. He must possess the legal qualifications for the office in question;
b. He must be lawfully chosen to such office; and
c. He must have qualified himself to perform the duties of such office according to
the mode prescribed by the Constitution of law.
5. Usurper or intruder
is one who takes possession of the office and undertakes to act officially without
any color of right or authority, either actual or apparent.
6. Elements of
de facto
officership
a. There must be a
de jure
office
7. Liabilities
a be a color of right or general acquiescence by the public.
b. There of
must
de facto
c. There must
be actual physical possession of the office in good faith.
officer
a. It may be stated generally that a facto officer is held the same degree
of de
accountability for official acts as a jure officer and cannot escape
liability de
because he has not qualified for failure to file a bond.
b. While official acts of a
de facto
officer are valid and may be binding with
regard to third persons and the public the person so acting may
be liable for all
penalties imposed by law for usurping or unlawfully holding office, or for
exercising the functions thereof without lawful right
or without being qualified
according to law.
c. It is likewise the general rule that a public officer cannot excuse his
responsibility for crimes committed in his official capacity by asserting
that he
was an officer
de facto
.
d. A rightful incumbent of a public office may recover from a
facto officer the de
salary received by the latter during the time of his wrongful tenure, even though
he (the facto officer) occupied the office in good faith
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and under the color of de
title.