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For 17 June 2010

I.

Introduction - Concepts and Principles
A. Public Office and Public Officers
1. Definitions

a. Mechem, Floyd (A treatise on the Law of Public Officer and Public Offices, 1890)
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A public office is the 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 creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the: o delegation of sovereign functions, o its creation by law and not by contract, o an oath, o salary, o continuance of the position, o scope of duties, and o the designation of the position as an office.

b. Administrative Code (Exec. Order No. 292) y
Sec. 1. Declaration of Policy. - The State shall insure and promote the Constitutional mandate that appointments in the Civil Service shall be made only according to merit and fitness; that the Civil Service Commission, as the central personnel agency of the Government shall establish a career service, adopt measures to promote morale, efficiency, integrity, responsiveness, and courtesy in the civil service, strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability; that public office is a public trust and public officers and employees must at all times be accountable to the people; and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. Sec. 6. Scope of the Civil Service. - (1) The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. Sec. 1. Scope. - This Book shall be applicable to all agencies as defined in the next succeeding section, except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges.

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c.

Revised Penal Code
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Art 203. Who are public officers? For the purpose of applying the provisions of this and the preceding titles of this book, 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 Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class, shall be deemed to be a public officer.

2. Purpose and Nature - Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. a. Public Office, as a Public Trust (1987 Constitution, Art. XI)
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Holders are regarded as public servants Holders subject to highest standards of accountability and service. o Public office is public trust. Public officers and employees must at all times be  accountable to the people,

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serve them with utmost responsibility, integrity, loyalty, and efficiency,  act with patriotism and justice,  lead modest lives. The only justification for his continuance in such office is his ability to advance public end AND contribute to the public welfare. Code of Conduct of Ethical Standards for PubOff: Every PubOff shall at all times uphold public interest over his/her personal interest.

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b. Public Office, not Property
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Holder subject to removal or suspension according to law. o Public office = public trust Precludes any proprietary claim to public office. o Puboff is not property. There is no denial of due process when:  Office is abolished before expiration of term  Removal/suspension according to law  Passage of statute limiting/reducing his compensation  No property rights in the books and papers pertaining to his office Holder without any vested right in any public office. Holder s right in nature of privilege entitled to protection. o He may be protected from wrongful interference of others o If right to termination is limited to specified cause, puboff has the right to be heard o Limited conception as property right requiring Due Process: When the controversy relates to the question as to which of two persons is entitled to the position. Holder s right personal to him. o Cannot be acquired by heirs upon the puboff s death

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Public Office, not a Contract
The most important characteristic which distinguishes an office from an employment or contract is that the 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; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. y Creates no contractual relation between holder and public y PubOff exists by virtue of some law. It is not a natural right. It exists where it exists at all. y Generally entitles holder to a compensation. y Salary is mere incident and forms no part of the office, it is not a necessary criterion for determining the nature of the position (Laurel v Desierto)

d. Security of Tenure in Public Office as property for purposes of due process National Land Titles and Deeds Registration Administration v Civil Service Commission (221 SCRA 145 | 1933, Campos J.)
Facts: Public office involved: Deputy Register of Deeds III. - Violeta Garcia was appointed Deputy Register of Deeds VII under permanent status. However, PD 1529 reclassified her position as DRD III for which she was again appointed in a permanent status for 2 years. EO 649 restructured the Land Reg Com into what is now NLTDRA which imposed bar requirement for DRD positions. Since she was not a lawyer, Violeta was only appointed as DRD II under temporary status. - Violeta appealed her reclassification and temporary appointment with the Sec of Justice, but to no avail. - She was also administratively charged with Conduct Prejudicial to the Best Interest of the Service. - Secretary of Justice sent her notification of her termination for receiving bribe money. - She appealed her termination with the Inter-Agency Review Committee which in turn referred her case to the Merit Systems Protection Board. - CSC directed her reinstatement to the position on the ground of vested right. The requirement imposed by EO 649 applies only to lawyers filling up position subsequent to the taking effect of the law. - NLTDRA appeals CSC resolution. Argument: All offices in LRC have been abolished and its functions have all been transferred to the newly created offices of NLTDRA. The EO, therefore, requires new appointment of qualified office holders. Issues: 1. WON EO 649 abolished Violeta s position

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2. WON CSC s vested right position deserves merit Held: 1. Yes. Abolition of office is one of legislative intent. 2. No. There is no vested property right to be reemployed in a reorganized office. Ratio: 1. EO 649 categorically and expressly abolished the LRC such that its offices have become inexistent. Abolition does not necessarily mean removal because it implies that the post subsists and the officer previously holding it merely separated therefrom. Since there is no office to begin with, the question on security of tenure cannot apply. 2. Power to reorganize is not absolute. Abolition of office is permissible provided that (1) it was within the competence of a legitimate body and (2) it was done in good faith. 3. There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. Dispositive: NLTDRA s petition granted.

e. Distinctions
AS TO As to creation PUBLIC OFFICE Creation incident of sovereignty PUBLIC CONTRACT Originates from the will of contracting parties, subject to limitations imposed by law. Imposes obligation only upon persons who entered the same Almost always limited in its duration and specific in objects. Its terms define and limit the rights and obligations of parties and neither may depart therefrom without the consent of other.

As to object

As to subject matter and scope

Carrying out the sovereign as well as governmental functions affecting even persons not bound by contract Embraces the idea of tenure, duration and continuity, and the duties connected therewith are generally continuing and permanent

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The fact that duties of a particular position or governmental function do not depend on a contract is itself one of the criteria of public office. AS TO Key considerations Manner of creation Nature of duties PUBLIC OFFICE PUBLIC EMPLOYMENT PubOff is in a sense, employment. Nature of office, powers wielded and responsibilities carried out are key considerations. Created by law Lacks one of the foregoing elements. Involve the exercise of some portion of the sovereign power

3. Elements
a. CREATED by: (1) Constitution (2) by law//statute/legislative power (3) some body or agency to which power to create office has been delegated AUTHORITY to exercise some portion of the sovereign power of the State to be exercised for PUBLIC INTEREST POWERS and FUNCTIONS defined by (1) Constitution (2) by law//statute/legislative power Duties pertaining thereto are PERFORMED INDEPENDENTLY, without control of a superior power other than law, UNLESS they are those of an inferior or subordinate officer, created or authorized by the legislature and placed by it under the general control of a superior officer or body. CONTINUING AND PERMANENT in nature and not occasional or intermittent.

b. c.

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4. Creation of Public Office

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Generally by constitutional or statutory provision or by authority conferred by it By Congress o EXCEPT: offices created by the constitution o Discretion of the Congress whether to create new office or attach the function as ex officio duties of existing offices. o Concomitant with the power to create office, the Congress may likewise prescribe the qualifications, powers and duties and the mode of filling the office. y By President o Sec 31 of EO 292 The President, subject to the policy of the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President.

5. Kinds and Classifications
A. As to nature of functions 1. Civil office 2. Military office As to creation 1. Constitutional office 2. Statutory office As to the department of government to which it belongs 1. Legislative 2. Executive 3. Judicial

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D. As to branch of government served 1. National office 2. Local office E. As to whether exercise of discretion is required 1. Quasi-judicial office 2. Ministerial office

Secretary of DOTC v Mabalot (378 SCRA 129 | 2002, Buena, J.)
Facts: - DOTC Sec Garcia issued two orders (Memorandum Order No. 96-735 and Dept. Order No. 97-1025) which transferred the powers and functions of LTFRB Regional Office to DOTC Regional Office in the Cordillera Administrative Region. - Mabalot filed a petition for certiorari and prohibition with a prayer for preliminary injunction and/or restraining order. Issue: WON the administrative issuances involving transfer of office functions from one agency to another encroach upon the legislative powers of the Congress? Held: No, the power to create public office is not solely vested in the Congress. The President and his alter-egos (department heads) may make valid reorganization of government offices. Ratio: - A public office may be created through any of the following modes, to wit, either (1) by the Constitution (fundamental law) (2) by law (statute duly enacted by Congress) (3) by authority of law (decreed by the President through EO or by order of an administrative agency e.g. the CSC) - The Congress may validly delegate the power to create positions. At various times, Congress has vested power in the President to reorganize executive agencies and redistribute functions, and particular transfers under such statutes have been held to be within the authority of the President. - The reorganization of LTFRB in this case was done pursuant to the third mode: by authority of law. - The admin orders were consistent with the EO requiring all government offices to establish an office at CAR. - Legal basis for President s power to create and reorganize government offices: 1. Larin v Executive Secretary and Sec 62 of RA 7645 (General Appropriation Act for FY 1993) 2. Both RA 8174 (GAA for FY 1996) and RA 8250 (GAA for FY 1997) have sections for Organizational Changes

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3. Sec. 20,Book III of EO 292 (1987 Admin Code) on Residual Powers of the President. 4. PD 1772 amending PD 1416

Preclaro v Sandiganbayan (221 SCRA 145 | 1995, Kapunan, J.)
Facts: Position involved - Project Manager/Consultant of Chemical Mineral Division, Industrial Tech Devt Institute of DOST charged with violation of Sec. 3(b) of RA 3019 (Anti-Graft and Corrupt Practices Act). Building construction funded jointly by the Philippine and Japanese government. Deductive amount of contract with engineers, but Preclaro said he can forget about that provided that he also gets a chunk of the engineering firm s profit. Entrapment plan with NBI at Wendy s. - Arguments for Preclaro: SB do not have jurisdiction because he is not a public officer. 1. He was employed by DOST on a written employment contract (contractual basis, for a specific project and fixed period). He received no appointment aside from the contract. 2. Not required to use bundy clock to record hours of work. 3. Did not take an oath of office. Issue: WON Preclaro is a public officer who can be held liable under RA 3019? Held: Yes, he is still a public officer albeit in a non-career service. Ratio: - Petitioner misconstrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof "includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government. . . ." - The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987. - Non-career service in particular is characterized by (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. - The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. - Bundy clocks and oath taking are non-essential conditions.

Maniego v People (88 Phil 494 | 1951, Bengzon, J.)
Facts: Public office involved: Laborer in charge of issuing summons and subpoenas for traffic violation. Charged with violation of Art. 210 (Direct Bribery). He fixed Rabia s motion for dismissal of a traffic violation case for a fee (P10). Issue: WON accused is a public officer within the meaning of Art 203? Held: Yes, he was serving a public function at the time he committed the bribery. Ratio: - There can be no question that petitioner was a public officer within the meaning of article 203, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." That definition is quite comprehensive, embracing as it does, every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee". - Doctrine of temporary performance of public functions by a laborer - For the purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official. This opinion, it must be stated, was followed and applied by the Court of Appeals because the accused, although originally assigned to the preparation of summons and subpoenas, had been allowed in some instance to prepare motions for dismissal of traffic cases. - The receipt of bribe money is just as pernicious when committed by temporary employees as when committed by permanent officials.

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Laurel v Desierto (381 SCRA 48 | 2002, Kapunan, J.)
Facts: Cory issued AO 223 for the constitution of committee for Centennial Celebration in 1998. Ramos reorganized it into National Centennial Commission through EO 128, Chairman were former VP Doy Laurel, Dado Macapagal and Cory. - Then Sen. Nikki Coseteng made an expose about the anomalies (e.g. absence of public bidding for the Freedom Ring Project in Clark Special Economic Zone) in Expocorp. Pres. Estrada order for the formation of an investigative committee spearheaded by Rene Saguisag. - Both Senate and Saguisag commission recommended indictment of Doy Laurel for violation of RA 3019. - Arguments of Laurel: He is not a public officer within the definition of RA 3019 because: 1. Expocorp which undertook the Freedom Ring Project was not a GOCC but a private corp. 2. National Centennial Commission was not a public office. 3. Being chairman of both NCC and Expocorp, he was not a public officer. 4. Invokes Uy vs. Sandiganbayan: jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioner s position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. Issue: WON Doy Laurel was a public officer who can be held liable for violation of RA 3019? Held: Yes, he performs executive functions. Ratio: - The Court cited Mechem s definition of public office because neither RA 6770 (Ombudsman Act) nor the Constitution has defined it. A public office is the 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 creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. - The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. - Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. - What is the most important characteristic of PubOff according to Mechem? The delegation to the individual of some of the sovereign functions of government - Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive? - The SC concluded that NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." The executive function, therefore, concerns the implementation of the policies as set forth by law. - It is consistent with Sec 15, Art XIV of the Constitution on Education, Science and Technology, Arts, Culture, and Sports. - RE salary: A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. - RE ad hoc body: this element of continuance cannot be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior."

Fernandez v Sto. Tomas (242 SCRA 192 | 1995, Feliciano, J.)
Facts: - Public office involved: Merger of CSC Central Offices into one main office (Research and Development Office). Fernandez was the Director of Office of Personnel Inspection and Audit while de Lima was Director of the Office of Personnel Relations. - Petitioners filed a complaint with CSC Chairman Sto. Tomas, who said that the resolution will be implemented unless restrained by higher officials. Even the OSG takes the side of CSC. Issues: 1. WON it is within CSC s powers to merge its offices? YES 2. WON the resolution violated the petitioners constitutional right to security of tenure? NO Ratio: 1. 1987 RAC has granted the CSC to change its organization structure as the needs arises. It was a proper delegation of legislative powers by the Congress. The offices pertain to internal structure of CSC. It was done for to streamline the operations and improve the delivery

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of service considering the decentralization and devolution of the Commission s functions (creation of 14 Regional offices). Further, The Resolution did not abolish the offices. The services of employees were not terminated but instead, they were merely transferred. 2. Appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. - Section 26(7), Book V, Title I, Subtitle A of the 1987 RAC recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service. - They retained their positions and would continue to enjoy the same rank, status and salary at their new stations. - Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed not merely assigned to a particular station (Miclat v. Ganaden, [1960]; Jaro v. Hon. Valencia [1963]). [Brillantes v. Guevarra (1969)].

Segovia v Noel (47 Phil 543 | 1925, Malcolm, J.)
Facts: Public office involved: Segovia was justice of peace and was asked to vacate upon reaching the age 65. He instituted friendly quo warranto proceeding questioning the right of the acting judge. Issue: Whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty- five years, should be given retroactive or prospective effect? RETROACTIVE Ratio: - Court reviewed the existing laws related to the matter: a. Act No. 136 at the pleasure of the Commission b. Act No. 1450 two years c. Act No. 1627 during good behavior d. Sec 203 and 206 (on Tenure of Office was left unchanged by Act No. 3107) of the Admin Code - Though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated. - The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office.

Dario v Mison (176 SCRA 84 | 1989, Sarmiento, J.)
Facts: Cory s Proclamation No. 3 on the establishment of revolutionary government and its concurrent reorganization. - Courtesy resignation from all government officers (e.g. SC justices, members of Batasang Pambansa). - EO 17 on the grounds for separation replacement of personnel. EO 127 for the reorganization of Ministry of Finance and Bureau of Customs. - Memorandum issued by Customs Commissioner Mison referred to as Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement. He also constituted Reorganization Appeals Board for the benefit of those who were deemed separated from service. A total of 394 employees received termination letters, some of them went to Appeals Board, some to CSC and some directly to SC. - CSC reinstated 279 respondents. Issue: WON the reorganization implemented by Commissioner Mison is valid? Held: Not valid. Ratio: - The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy except for the change of personnel has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same pattern prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm, has not been successfully contradicted. There is no showing that legitimate structural changes have been made or a reorganization actually undertaken, for that matter at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a revamp of personnel pure and simple. - The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of August 18, 1988. This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the President's directive to halt further layoffs as a consequence of reorganization. Finally, he was aware that layoffs should observe the procedure laid down by

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Executive Order No. 17. We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and all, the means with which it was implemented is not.

Mathay v Court of Appeals (320 SCRA 703 | 1999, Ynares-Santiago, J.)
Facts: Public office involved: Civil Service Units were created pursuant to PD No. 51. However, PD 51 was never published in the OG , therefore it was never deemed in force or effect following the Tanada ruling. Issue: WON CSC has the authority to direct Mathay to reinstate private respondents to DPOS? - NO Ratio: The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. - Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council orsanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. - In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. - The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating,consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. - By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority.

6. De Facto Officers Dimaandal v COA (291 SCRA 322 | 1998, Martinez, J.)
Facts: Public office involved: Supply Officer III turned Acting Assistant Provincial Treasurer - Batangas Governor Mayo designated Dimaandal (then Supply Officer III) as the Acting Assistant Provincial Treasurer. Pursuant to this designation, he claims the salary differential and Representation and Transpo Allowance (RATA). - Provincial Auditor denied his claim using the following as basis: 1. RAC does not apply because only the Pres and Finance Sec (not the Gov) can fill vacancy in provincial office. 2. Designation is only temporary in nature and does not amount to appointment which will entitle him to emoluments. - Gov. Mayo appealed for Auditor s reconsideration, but to no avail. - Dimaandal appealed to COA but the latter upheld the Auditor s resolution. COA said that Dimaandal was only assigned to the position in addition to his regular duties. - Dimaandal invokes ruling in Menzon v Petilla that de facto officers are entitled to salary for services actually rendered. Issue: WON Dimaandal is a de facto officer entitled to salary for services? Held: No. Ratio: - Applicable law: Sec 471(a) of RA 7160 (Loc Gov Code) do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office - His designation as Assistant Provincial Treasurer for Administration by Governor Mayo being defective, confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him. - Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an appointment. - Distinction between appointment and designation APPOINTMENT - selection by the proper authority of an individual who is to exercise the powers and functions of a given office

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DESIGNATION - merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment. Designation is simply the mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. - The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. Considering that petitioner s designation was without color of authority, the right to the salary or an allowance due from said office never existed. Stated differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution. - DE FACTO OFFICER is defined as: one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular.

Malaluan v COMELEC (254 SCRA 397 | 1996, Hermosisima, Jr., J.)
Facts: Public office involved: Mayor of Kidapawan, North Cotabato - RTC proclaimed Malaluan, however COMELEC later on proclaimed his rival, Evangelista as the rightful winner. The term has expired (so it is moot on that matter) yet there still remains the issue of Malaluan s payment to Evangelista of damages and salaries on the theory that Malaluan occupied the position in an illegal manner as a usurper. Issue: WON Malaluan is a usurper and should pay the damages and salaries to Evangelista? Held: No, he is not a usurper. Ratio: While a usurper is one who undertakes to act officially without any color of right, the petitioner exercised the duties of an elective office under color of election thereto. It matters not that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different stages of the electoral process, have the power to so proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate s right to assume office, for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a de facto officer who, in good faith, has a possession of the office and had discharged the duties pertaining thereto and is thus legally entitled to the emoluments of the office.

Flores v Drilon (223 SCRA 568 | 1993, Bellosillo, J.)
Facts: Dick Gordon s appointment as Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA) concurrent with his term as Mayor of Olongapo. - By virtue of RA 7227, Congress directed the president to appoint the incumbent Mayor of Olongapo as the SBMA Chair. Petitioners contest this provision for being violative of Constitutional prohibition on multiple offices given to elective officials. Issue: WON the appointment is unconstitutional? YES Ratio: As incumbent elective official, Mayor Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under 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 ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his appointment may be retained by him. - Nevertheless, Gordon may choose between the mayoralty and the chairmanship. Court said: [Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.]

Torres v Ribo (81 Phil 44| 1948, Tuazon, J.)
Facts: Public office involved: Seats in the board of canvassers that were vacated by the incumbent governor and board members who were candidates for reelection. - Election protest since the lawful substitute members of the board of canvassers (district engineer and division sup of schools) were still at the west coast of Leyte so they sent their representatives in the canvassing instead.

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Issue: WON the representatives (assistants) lawful members of the board of canvassers? Held: No Ratio: - The protestee maintains that at any rate Pascual and Tizon were de facto officers. This contention is without any foundation in law. An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such a 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 appointment or election, and induce people, without injury, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action. - Tizon and Pascual did not possess any of these conditions. They acted without any appointment, commission or any color of title to the office. There was no acquiescence, public or private, in their discharge of the position. In fact the very person most greatly affected by their assumption of the office, Bernardo Torres, was not notified and was not unaware of it.

Tuanda v Sandiganbayan (249 SCRA 342 | 1995, Kapunan, J.)
Facts: Public office involved: Industrial labor sectoral representative and agricultural labor sectoral representative in the Sangguniang Bayan of Jimalalud, Province of Negros Oriental - Appointments were made by the Dept of LocGov Sec. Petitioners (Mayor of Jimalalud, Vice Mayor and other Members of the SB) asked the Office of the President to review and recall the designations. The latter office ignored the mayor. So they resorted to the RTC. - The petitioners were thereafter charged with violation of RA 3019 because of their refusal to pay the respondents salaries as sectoral representatives. Defense: their appointments were null and void. - RTC declared null and void the respondents appointment because of lack of prior determination of the incumbent SB as to the need for sectoral representation (under the LGC). Issue: WON private respondents are entitled to compensation for actual services rendered? NO Ratio: - As found by the trial court and as borne out by the records, from the start, private respondents designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office. Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established. - Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered. - The conditions and elements of de facto officership are the following: 1) There must be a de jure office; 2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in good faith. - One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office.

Monroy v CA (20 SCRA 620 | 1967, Bengzon, J.)
Facts: Public office involved: Mayor of Navotas - Monroy was incumbent Mayor. He initially filed candidacy for re-election but later withdrew the same. In the intervening time, Vice Mayor del Rosario already assumed the mayoralty position on the theory that Monroy had ceased to be mayor when he filed his certificate of candidacy. - He claims backwages by invoking Rodriguez v Tan: A senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961. Issue: WON Monroy was a de facto officer entitled to mayoralty salaries from the time he withdrew his candidacy? Held: No Ratio: - The withdrawal of his certificate of candidacy did not restore petitioner to his former position. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official. - It is the general rule then, i.e., "that the 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"6 that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons

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discharging the duties of an office without being lawful officers. The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office.

Gen Manager PPA v Monserate (381 SCRA 200 | 2002, Salvador-Gutierrez, J.)
Facts: Public office involved: Bookkeeper II in Port Management Office, PPA Ilo-ilo City - PPA underwent reorganization, Julia applied for permanent position of Manager II of Resource Management Division and she was appointed such among 6 contenders. However, upon the protest of the 2nd placer (Anino), Julia s appointment was rendered ineffective without any explanation. She was not even notified of any hearing for the said replacement. She was reappointed to a lower position (Administrative Officer) with lower salary grade (SG 15) than what she was already receiving. Ratio: - Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service. However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her. Respondent's security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power. - Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this jurisdiction, an appointment to a nonvacant position in the civil service is null and void ab initio. - The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino's appointment to the contested position. Also, petitioner Anino retired from the service on November 30, 1997. - In this respect, while petitioner Anino's appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular. In Monroy vs. Court of Appeals, this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary, this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus: "x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office." - Tthe rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997

Civil Liberties Union v Exec Sec (194 SCRA 317 | 1991, Fernan, C.J.)
Facts: - Constitutionality of Sec 2 of EO 284 which allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution. Ratio:

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- Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. - During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure,officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them.

Menzon v Petilla (197 SCRA 251 | 1991, Gutierrez, Jr., J.)
Facts: Public office involved: Acting Vice-Governor of Leyte - LocGov Sec designated Vice Gov Petilla as acting gov of Leyte because no one had been proclaimed. He also designated the senior member of Sangguniang Panlalawigan (Menzon) as the acting VG. - Provincial Administrator (Quintero) inquired from the USec into the legality of the appointments. USec that there was no need for acting VG because the acting G who is the actual VG can perform both functions. The appointment of acting VG was therefore held invalid. Ratio: - There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. - Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. - There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. - And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. - There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. - Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. - The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte.