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I. GENERAL PRINCIPLES
Public Office
- Right, authority, duty, created and conferred by law, by which for a given period,
either fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some sovereign power of government to be exercised by him for
the benefit of the people.
- Elements:
1. created by law or by authority of law
2. possess a delegation of a portion of the sovereign powers of government,
to be exercised for the benefit of the public
3. powers conferred and duties imposed must be defined by the legislature
or by legislative authority
4. duties must be performed independently and without control of the
superior power UNLESS they be those of an inferior or subordinate
officer created or authorized by the legislature and placed under the
general control of a superior officer or body
5. permanence or continuity
- Creation:
1. Constitution
2. statutory enactment
3. authority of law
Public Officer
- a person who holds office
- Public Officer, as understood under criminal law
Article 203. any person who, by direct provision of law, popular election
or appointment by competent authority shall take part in the performance
of public functions in the Government; or shall perform in said
Government public duties as am employee, agent, or subordinate official
of any rank or class, shall be deemed to be a public officer.
RA 3019. includes elective and appointive officials and employees,
permanent or temporary whether in the classified, unclassified or exempt
services, receiving compensation, even nominal from the government.
PB 807. Career and Non-career services (formerly, classified, unclassified
or exempt)
Distinguished from Clerk or Employee
- Officer, duties not being of clerical or manual nature, involves the exercise of
discretion in the performance of the functions of government.
- Includes any government employee, agent or body having authority to do the act
or exercise that function.
Main characteristic that distinguishes a Public Officer creation and conferring of an
office involves a delegation to the individual of some of the sovereign functions of
government, to be exercised by him for the benefit of the public.
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Reputation of being an officer and yet is not a good officer in point of law.
Acted as an officer for such length of time under color of title and under such
circumstances of reputation or acquiescence by the public and public authorities
as to afford a presumption of election/appointment and induce people to submit to
or invoke his action.
Legal Effect
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Those that affect the public are valid, binding and with full legal effect.
For the protection of the public.
Elements
1. validly existing public office
2. actual physical possession of said office
3. color of title to the office
a. by reputation/acquiescence
b. known and valid appointment/election but officer failed to conform
to a requirement imposed by law
c. known appointment or election, void (though unknown to public)
because:
i. ineligibility of officer
ii. want of authority of appointing/electing authority
iii. irregularity in appointment/election
d. known appointment/election pursuant to unconstitutional law,
before law was declared unconstitutional.
Entitlement of Salaries
- GR: rightful incumbent of a public office may recover from an officer de facto the
salary received by the latter during the time of his wrongful tenure, even though
he entered into the office in good faith and under color of title.
- Where there is NO DE JURE officer, the officer de facto who in good faith has
had possession of the office and has discharged the duties is legally entitled to
emoluments.
- Principle of public policy on which de facto doctrine is based.
IV. COMMENCEMENT OF OFFICIAL RELATIONS
Official relations are commenced:
1) Appointment
2) Election
Appointment
- selection by the authority vested with the power, of an individual who is to
perform the functions of a given office.
Commission
- written evidence of appointment
Designation
-
Classification
1) Permanent
- Extended to person possessing the requisite qualifications
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- Security of tenure
2) Temporary
- Acting appointment
- May not possess the requisite qualifications for eligibility
- Revocable at will, without necessity of just cause or a valid investigation
-
Regular and Ad-interim Classification may be used only when referring to the
following:
1) Heads of Executive Department;
2) Ambassadors and other Publi Ministers and Consuls
3) Officers of the AFP, from rank of colonel or naval captain
4) Officers whose appointments are vested in the President under the
Constitution.
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1)
2)
3)
4)
AD-INTERIM Appointment
Nomination by President
Issuance of the Commission
Acceptance by the appointee
Confirmation by COA
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5) Career Officers
- Other than those belonging to Career Executive Service,
appointed by President, e.g. foreign service
6) Personnel of GOCC w/ original charters
7) Permanent laborers (skilled, semi-skilled or unskilled)
Career Executive Service
2 requirements to attain security of tenure
i. Career executive service eligibility
ii. Appointment to the appropriate career executive
service rank
Security of tenure pertains only to rank and not to the office or
position
2. Non-Career Service
a. Description
- Entrance on bases other than those of the usual tests utilized
for the career service
- Tenure
1) limited to a period specified by law or
2) which is co-terminous with that of the appointing
authority or
3) subject of his pleasure or
4) which is limited to the duration of a particular project for
which purpose the employment was made.
b. Includes:
1) Elective officials, personal and confidential staff
2) Department Heads and officials of Cabinet rank who holds office
at the pleasure of the President, personal and confidential staff
3) Chairmen and members of commissions/boards w/ fixed terms of
office, personal and confidential staff
4) Contractual personnel/ those whose employment in government is
in accordance with a special contract to undertake a specific work
or job requiring special or technical skills not available in
employing agency, to be accomplished within a period not
exceeding 1 year, under his own responsibility, with minimum
direction and supervision
5) Emergency and seasonal personnel
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Principles
1) Classification of a particular position as policy-determining, primarily
confidential or highly technical amounts to no more than an executive or
legislative declaration that is not conclusive upon the courts, the true test
being the nature of the position
2) The exemption provided pertains only to exemption from competitive
examination to determine merit and fitness to enter the civil service
3) Exempt from competitive examination to determine merit and fitness:
a. Policy-determining
Officer lays down principal or fundamental guidelines
or rules
E.g. department head
b. Primarily confidential
Not only confidence in the aptitude if the appointee
for the duties of the office but primarily close
intimacy which ensures freedom of intercourse
without embarrassment or freedom from misgivings
or betrayal on confidential matters of state
NATURE of the position which determined whether a
position is primarily confidential, policy-determining
or highly technical
proximity rule can be considered as confidential
employee if the predominant reason why he was
chosen by the appointing authority was the latters
belief that he can share a close intimate relationship
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Promotion
Appointment through Certification
Transfer
Reinstatement
Detail
Reassignment
Reemployment
Promotion
- Movement from one position to another with increased duties and responsibilities
as authorized by law
- Usually accompanied by an increase in pay.
- Next-in-rank Rule
The one who is next in rank is given preferential consideration
Does not mean that he alone can be appointed
Appointing authority is required to state the special reasons for not
appointing the officer next in rank.
- Automatic Reversion Rule
All appointments involved in a chain of promotions must be submitted
simultaneously for approval by the Commission. The disapproval of the
appointment of a person proposed to a higher position invalidates the
promotion of those in the lower positions and automatically restores them to
their former positions. Affected persons are entitled to payment of salaries for
services rendered at a rate fixed in their promotional appointments.
Requisites:
1. series of promotions
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Temporary in nature
Reassignment
- Reassigned from one organizational unit to another in the same agency
- Not involve reduction in rank, status or salary
- Management prerogative vested in the CSC, any department or agency embraced
in Civil Service
- Does not constitute removal without cause
- Should have definite date and duration.
- Lack of specific duration is tantamount to floating assignment thus a dimunition
in status or rank.
Reemployment
- Names of persons who have been appointed permanently to positions in the career
service and who have been SEPARATED as a result of REDUCTION in force
and/or REORGANIZATION, shall be entered in a list from which selection for
reemployment shall be made
- Separated not for a cause but as a result of reorganization separation pay +
retirement and other benefits; in lieu of separation pay, may be considered for
employment (Proclamation No. 3)
V. POWERS AND DUTIES OF PUBLIC OFFICERS
Authority of Public Officers
1. Expressly conferred upon him by the ACT appointing him
2. Expressly ANNEXED to the office by LAW
3. Attached to the office by COMMON LAW as incidents to it
4. Doctrine of Necessary Implication all powers necessary for the effective
exercise of the express powers
Authority can be exercised only during the term when the public officer, is by law,
invested with the rights and duties of the office.
Ministerial and Discretionary Powers
1. Ministerial discharge by officer is imperative and requires neither judgment nor
discretion; exercise of which may be compelled
2. Discretionary imposed by law upon a public officer; officer has the right to
decide how and when the duty shall be performed; mandamus will not lie to
compel performance
Exception: when mandamus will lie:
1. GAD
2. manifest injustice
3. palpable excess of authority equivalent to a denial of settled rights
4. no other plain, speedy or adequate remedy
writ may issue to compel the exercise of discretion but not the discretion itself
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Courts may review exercise of discretion, to determine if there has been GAD
amounting to lack or excess of jurisdiction
Judgment judicial functions; determination of a question of law; only one
way to be right
Discretion, may decide the question either way and still be right; limited to the
evident purpose of the act
Duties of Public Officer
Constitutional Duties
To be accountable to the people
To serve them with utmost responsibility, loyalty and efficiency
To act with patriotism and justice
To lead modest lives
To submit a declaration under oath of his assets, liabilities and net worth upon
assumption of office and as often as may be required
To owe the State and Constitution allegiance at all times
SOLGEN represent government and its offices EXCEPT criminal cases and
civil cases for damages arising from felony.
Prohibitions
1. Partisan political activity or taking part in any election except to vote
Except:
1. those holding political offices
2. cabinet members
2. Additional or double compensation
3. Prohibition against loans
4. Limitation on laborers
Not assigned to clerical duties
5. Detail or reassignment
w/in 3 months before any election without approval of
COMELEC
6. Nepotism
Appointments made in favor of a relative of the appointing or
recommending authority or of the chief of the bureau or office
or of the person exercising immediate supervision over him.
All appointments.
Relative: those related within the 3rd civil degree by
consanguinity or affinity
Exemption:
1. confidential capacity
2. teachers
3. physicians
4. members of the Armed Forces
* full report of appointment shall be made to the Commission
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Right to Office
Right to Salary
Right to Preference in Promotion
Right to Vacation and Sick Leave
Right to Maternity Leave
Right to Retirement Pay
Right to reimbursement for expenses incurred in due performance of duty
Right to be indemnified against any liability
Right to longevity pay
Right to Office
Just and legal claim to exercise the powers and the responsibilities of the
public office.
Term vs. Tenure
Term: period during which the officer may claim to hold the
office as a matter of right.
Tenure: period during which the officer actually holds office.
Right to Salary
Salary personal compensation to be paid to the public officer for his
services
Generally a fixed or periodical payment depending on the time and not on
the amount of the services he may render.
Distinguished from wages:
Salaries are given to officers of higher degree of employment
than those given wages.
Salary is compensation per annum. Wages are paid day by day or
week by week.
Basis:
1. legal title to the office
2. law attaches compensation to the office
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Right to be indemnified against any liability which they may incur in the bona fide
discharge of their duties.
Right to longevity pay
VIII. TERMINATION OF OFFICIAL RELATIONSHIP
Modes of Terminating Official Relationship
1. Expiration of term or tenure
2. Reaching the age limit
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an Incompatible Office
8. Abolition of Office
9. Prescription of the Right to Office
10. Impeachment
11. Death
12. Failure to Assume Elective Office w/in 6 months from proclamation
13. Conviction of a Crime
14. Filing of Certificate of Candidacy
Expiration of term or tenure
Courtesy resignation during the EDSA Revolution expiration of term;
entitled to retirement benefits
Termination presupposes an overt act committed by a superior officer
Commencement of Term of Office
1. statute fixes a period upon qualification
2. no time is fixed by law date of appointment/election
3. law fixing the term is ambiguous one that fixes the term at the
shortest period should be followed
4. both duration of the term of office and the time of its
commencement/termination are fixed by constitutional or
statutory provision person appointed or elected for vacancy
shall hold the same only for the unexpired portion
5. only the duration is fixed, no time is fixed for beginning or end
person selected to fill the vacancy may serve the full term and
not merely the unexpired balance of the prior incumbents term
6. office is created/officer appointed for the purpose of performing
a single act or accomplishment of a given result office
terminates and the authority ceases with the accomplishment of
the purposes which called it into being.
Principle of Hold-Over: public officer is entitled to hold his office until his
successor shall have been duly chosen and shall have qualified. Purpose is
to prevent hiatus in public service.
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Back salary is not warranted when the immediate execution of the order of
dismissal is justified.
Appeal
Summary Dismissal
RA 6654
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Impeachment
Death
Renders office vacant.
Failure to Assume Elective Office w/in 6 months from proclamation
Unless failure is for a cause or causes beyond his control
Conviction of a Crime
Penalty imposed upon conviction carries with it the accessory penalty of
disqualification, conviction by final judgment automatically terminates official
relationship.
Plenary pardon extinguished the accessory penalty of disqualification, it will not
restore the public office to the officer convicted;
He must be given a new appointment.
Filing of Certificate of Candidacy
Any person holding a public appointive office or position,
Including active members of the AFP
And officers and employees in GOCCs
Shall be considered ipso facto RESIGNED upon filing of certificate of candidacy.
Applies even to employees of GOCCs without an original charter
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