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PUBLIC OFFICE
Definition Public office is frequently used to refer to –  (nature) the right, authority, and duty,  (origin) created and conferred by law,  (duration) by which, for a given period either fixed by law or enduring at the pleasure of creating power,  an individual is invested with some portion of the sovereign functions of government,  (purpose) to be exercised by that individual for the benefit of the public [Fernandez and De Lima v. Sto. Tomas (116418, March 7, 1995)]. Elements and Characteristics 1. The qualifications for public office are fixed by law, not by private parties [Saura v. Sindico (L-13403, March 23, 1960)] 2. Enjoys the presumption of regularity [Namil, et al. v. Comelec (150540, Oct. 29, 2003)] 3. A statute operates prospective and never retroactive. The same rule is followed by the courts with reference to public offices [Segovia v. Noel (L-23226, March 4, 1925)] 4. A public office is not a property within the context of the due process guarantee of the Constitution. [Engaño v. CA (156959, June 27, 2006)] • No one can be said to have any vested right in a public office or its salary. It is only when salary has already been earned or accrued that said salary becomes private property. - Exception: Constitutional Offices which provide for special immunity as regards salary and tenure [Engaño v. CA (156959, June 27, 2006)]. Creation of Public Office • Modes of Creation of Public Office - by the Constitution - by statute / law - by a tribunal or body to which the power to create the office has been delegated • Who Creates a Public Office GENERAL RULE: The creation of a public office is PRIMARILY a Legislative Function. Exceptions: o where the offices are created by the o Constitution; o where the Legislature delegates such power. • Legislature should Validly Delegate the Power to Create a Public Office - Or else, the office is inexistent. The President’s authority to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the Government" in

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order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts." (U.S.T. v. Board of Tax Appeals) Public Office vs. Public Employment • Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. • A public office is created by law. Its delegated duties involve the exercise of some portion of the sovereign power and its performance concerns the public. Meanwhile, public employment as a position lacks either one or more of the foregoing elements.

Public Employment Public Office

Public Office vs. Public Contract Public Office Public Contract Incident of sovereignty Originates from will of contracting parties Carrying out of Obligations imposed sovereign as well asonly upon the persons governmental functionswho entered into the affecting even personscontract not bound by the contract Tenure, duration, Limited duration continuity Duties that are Duties are very generally continuingspecific to the contract and permanent The law Contract

Creation Object

Subject Matter Scope Where duties are defined

PUBLIC OFFICERS
Definition Art. 203, RPC: 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 the law, popular election or appointment by competent authority, shall take

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part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. RA 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT): "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. RA 7090 (THE PLUNDER LAW): “Public Officer” means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. RA 6713 (CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES): "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. Laurel v. Desierto (145368, April 12, 2002) Facts: Vice President Laurel was named as the chairman of the National Centennial Committee (NCC) and by virtue of his being the chairman, he also became the chairman of EXPOCORP, a corporation organized to undertake the Freedom Ring Project in relation to the centennial celebration. Later in 1999, investigation was conducted by an independent committed due to allegations of graft and corruption against Laurel as NCC and EXPOCORP chair. The committee recommended the filing of charges by the Ombudsman upon which the Office of the Ombudsman took cognizance of the case. Laurel then questioned the jurisdiction of the Ombudsman by filing a petition, alleging that (1) EXPOCORP was a private corporation, (2) that NCC is not a public office, and (3) that he is not a public officer as defined in the Anti-Graft and Corrupt Practices Act. Held: The Ombudsman has the power to investigate any malfeasance, misfeasance and nonfeasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. However, is NCC a public office? Yes, it is a public office because it exercises executive functions by implementing the policies set forth in the Constitution regarding history and cultural heritage, thus satisfying an important element of public office - the delegation of sovereign functions. It also follows that Laurel is a public officer. That he did not receive compensation is of no consequence. 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. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached.

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It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a public official whether or not one receives compensation, thus: “Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount.” Khan, Jr. and Malabanan v. Office of the Ombudsman (125296, July 20, 2006) Public officers are those endowed with the exercise of sovereign executive, legislative or judicial functions. In the case of officers/employees in GOCCs, they are deemed “public officers” if their corporations are tasked to carry out governmental functions. Public employee under EO 292 - Public employee includes any person in the service of the government or any of its agencies, divisions, subdivisions, or instrumentalities. - The term includes an officer (as distinguished from clerk or employee), Public Officer - A person whose duties, not being of a clerical or manual nature, involve the exercise of discretion in the performance of functions of government. - When used with reference to person having authority to do particular act or perform particular function, officer includes government employee, agent or body, having the authority to do the act or exercise that function.

Public Employee Public Officer

Classification A. As to Creation (1) Constitutional (2) Statutory B. As to Public Body Served (1) National (2) Local C. As to Department of government to which their functions pertain (1) Legislative (2) Executive (3) Judicial D. As to Nature of functions (1) Civil

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(2) Military E. As to Exercise of Judgment or discretion (1) Quasi-judicial (2) Ministerial F. As to Legality of Title to office (1) De Jure (2) De Facto G. As to Compensation (1) Lucrative (2) Honorary A person cannot be compelled to accept a public office. EXCEPTIONS: 1. When citizens are required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); 2. When a person who, having been elected by popular election to a public office, refuses without legal motive to be sworn in or to discharge the duties of said office. Public Officer’s Power = Delegated (≠Presumed) • A public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a DELEGATION of such authority, either express or implied. In the absence of a valid grant, they are devoid of power (Villegas vs. Subido).

DE FACTO OFFICERS
Definition 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 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 inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action [Torres v. Ribo (L-2051, May 21, 1948)].
Rationale The de facto doctrine was formulated, not for the protection of the de facto officer principally, but for the protection of the public and individuals who get involved in the

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official acts of persons discharging the duties without being lawful officers [Monroy v. CA (L-23258, July 1, 1967)] Elements In Tuanda v. Sandiganbayan (110544, Oct. 17, 1995), the Supreme Court provided for the elements of de facto officership, to wit: [DCA] 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. Garchitorena v. Crescini (L-12945, Feb. 16, 1918) There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office. In order to be a de facto judge, he must still be acting under some color of right. Where the term of office of a judge has terminated and his successor has qualified and he has ceased to act as judge, his subsequent acts in attempting to dispose of business left unfinished by him before the expiration of his term are void. Regala v. CFI of Bulacan (77 Phil. 684) If the judge knew of the disapproval of his appointment before making said order, it would have been illegal. But a judge who denied a motion for reconsideration before his receipt of the official notification of the disapproval of his appointment by the COA, as reported in the newspapers, was a de facto officer. Lino Luna v. Rodriguez (L-13744, Nov. 29, 1918) In order to be a de facto judge, he must still be actually acting under some color of right. He cannot be actually acting under any color of right when he ceased to be judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of another office. Solis v. CA (L-29777-83, March 26, 1971) Facts: Petitioner attacked the validity of the promulgation of the judgment of the lower court for having been made by another judge after the incumbency of the judge who rendered it had ceased. Held: The judgment is void for it is now firmly established that a decision is void if promulgated after the judge who rendered it had permanently ceased to be a judge of the court where he sat in judgment. Distinctions between a de jure and de facto officer De Jure Requisites (1) (2) De Facto

Existence of a de(1) De jure office; jure office; must possess the(2) Color of right or legal qualifications general acquiescence

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for the question;

office

in

by the public;

(3) Actual physical (3) must be lawfully possession of the chosen to such office; office in good faith (4) must have qualified himself to perform the duties of such office according to the mode prescribed by law.

Basis Authority

of Right: he has the lawfulReputation: Has the right / title to the office possession and performs the duties under color of right, without being technically qualified in all points of law to act Cannot be ousted. Only by proceeding warranto); collaterally a direct (quo not

How ousted

Validity of Valid, subject toValid as to the public official acts exceptions (e.g., theyuntil such time as his title were done beyond theto the office is adjudged scope of his authority,insufficient. etc.) Rule on Entitled to compensationEntitled to receive Compensatio as a matter of right; compensation only n during the time when no The principle of "no work,de jure officer is no pay" is not applicabledeclared; to him. He is paid only for actual services rendered by him. Codilla v. Martinez (L-14569, Nov. 23, 1960) A third-ranking councilor who is designated to act as mayor by an officer other than the proper appointing authority prescribed by law, and lacking the consent of the Provincial Board is a de facto officer. Distinctions between an intruder or usurper and de facto officer

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De Facto Nature

Intruder

Officer under any of theOne who takes 4 circumstancespossession of an office discussed under Part IIand undertakes to act (above). officially without any authority, either actual or apparent of Color of right or title toNone. He has neither office lawful title nor color of right or title to office.

Basis authority

Validity of Valid as to the publicAbsolutely void; they "official" acts until such time as hiscan be impeached at any title to the office istime in any proceeding adjudged insufficient (unless and until he continues to act for so long a time as to afford a presumption of his right to act) Rule on Entitled to receiveNot entitled compensatio compensation onlycompensation at all. n during the time when no de jure officer is declared; He is paid only for actual services rendered by him. Salary/ Compensation GENERAL RULE: No right to compensation. A de facto officer cannot sue for the recovery of salary, fees or other emoluments attached to the office, for the duties he has performed. His acts, as far as he himself is concerned, are theoretically void. MORE SO, the rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure, even though he entered into the office in good faith and under color of title (Monroy v CA). EXCEPTIONS: • Where there is no de jure public officer, the officer de facto 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. • One who becomes a public officer de facto in good faith and renders the services required of the office may recover the compensation. • When the de jure officer assumed another position under protest for which she was also compensated, in the case of Gen. Manager [Philippine Ports Authority v. Monserate (April 17, 2002)] to

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-A de facto officer, not having good title, takes the salaries at his risk and must account to the de jure officer (when there’s one) for whatever salary he received during the period of his wrongful tenure, even if he occupied the office in good faith. -BUT HERE, the de jure officer assumed another position under protest, for which she received compensation. Thus, while her assumption to the said position and her acceptance of the corresponding emoluments do not constitute abandonment of her rightful office, she cannot recover full back wages for such. She is only entitled to back pay differentials between the salary rates for the lower position she assumed and the position she is rightfully entitled to. Arimao v. Taher (152651, Aug. 7, 2006) 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. 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. Dimaandal v. COA (122197, June 26, 1998) Designation does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Menzon v. Petilla (90762, May 20, 1991) Facts: Because no Governor had been proclaimed, the Secretary of Local Government designated Vice-Governor as Acting Governor. Petitioner was also designated as ViceGovernor. The Sanggunian questions the petitioner’s appointment as Vice-Governor, arguing that such is not necessary. Issue: Whether petitioner is entitled to emoluments for his services as designated acting Vice-Governor. Held: 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. And even granting that the President, acting through the Secretary, possesses no power to appoint petitioner, petitioner is a de facto officer entitled to compensation. Rodriguez, Sr. v. Tan (L-3913, Aug. 7, 1962) Where a duly proclaimed elective official who assumes office is subsequently ousted in an election protest, the prevailing party can no longer recover the salary paid to the ousted officer. The ousted officer, who acted as de facto officer during his incumbency, is entitled to the compensation, emoluments and allowances which are provided for the position. [Exception: If there was fraud on the part of the de facto officer which would vitiate his election.] Cantillo v. Arrieta (L-31444, Nov. 13, 1974) The infirmity of petitioner’s appointment was not mere absence of Civil Service eligibility but of qualifications for the office. It affected the validity of such appointment and precluded the reinstatement he claimed after he was suspended. He was only a de facto officer and as such, he is entitled to emoluments for actual services rendered. Liabilities of a de facto officer • The liability of a de facto officer is generally held to be the same degree of accountability for official acts as that of a de jure officer.

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• The de facto officer may be liable for all penalties imposed by law for any of the following acts: (a) usurping or unlawfully holding office; (b) exercising the functions of public office without lawful right; (c) not being qualified for the public office as required by law. • The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de facto status. Challenge to a de facto officer: Official Acts of De Facto Officers are not subject to collateral attack. RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in proceedings to which he is not a party, or which were not instituted to determine the very question. REMEDY: Quo warranto proceedings Who may file: (1) The person who claims to be entitled to the office; (2) The Republic of the Philippines, represented by (a) the Solicitor-General; or (b) a public prosecutor Nueno v. Angeles (GR L-89) In this case, there were four (4) petitioners seeking to oust six (6) Board Members. The Court held that this could not be done unless all 4 of them were entitled to the offices of the 6. Tayko v. Capistrano (L-30168, Oct. 2, 1928) The title of a de facto officer cannot be indirectly questioned. Having at least colorable right to the office, his title can be determined only in a quo warranto proceeding.

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COMMENCEMENT OF OFFICIAL FUNCTIONS AND DUTIES
VACANCIES • Kinds 1. Original 2. Absolute 3. Accidental 4. Constructive Costin vs. Quimbo (GR L-32271; 27 January 1983) It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated. Since Lajer was not validly terminated from public office and, as a matter of fact, was ordered reinstated through a warrant of mandamus, it follows that there was no vacancy in the office of chief of police and there was no office to which Higinio Verra could have been appointed. SELECTION FOR PUBLIC OFFICE A. ELECTION Suffrage (Art. V, 1987 Constitution) Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Regular Election is an election participated in by those who possess the right of suffrage and not disqualified by law and who are registered voters. Special Election is one which is held when there is failure of election on the scheduled date of regular election in a particular place or which is conducted to fill up certain vacancies, as provided by law (e.g. to fill in vacancy in office before the expiration of the term for which incumbent was elected) B. APPOINTMENT An “appointment” to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for

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himself who is best qualified among those who have the necessary qualifications and eligibilities. Flores vs. Drilon (GR 104732; 22 June 1993) *A law which limits the President to only one appointee is an encroachment to the prerogative of the President because appointment involves discretion to choose who to appoint Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. * Gordon’s appointment to other government posts does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution; ineligibility is not directly related with forfeiture of office Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office and to render his election or appointment to the latter office void. Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void.

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* On whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts. YES. Sec. 7 of Art. IX-B of the Constitution provides: “No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.” The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. The subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. Bermudez vs. Executive Secretary (GR 131429; 4 August 1999) When the Constitution or the law clothes the President with the power to appoint a subordinate officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. It should be here pertinent to state that the President is the head of government whose authority includes the power of control over all "executive departments, bureaus and offices." Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. Expressed in another way, the President has the power to assume directly the functions of an executive department, bureau and office. It can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations. It is the considered view of the Court, given the above disquisition, that the phrase "upon recommendation of the Secretary," found in Section 9, Chapter II, Title III, Book IV, of the Revised Administrative Code, should be interpreted, as it is normally so understood, to be a mere advise, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made. The recommendation is here nothing really more than advisory in nature. The President, being the head of the Executive Department, could very well disregard or do away with the action of the departments, bureaus or offices even in the exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond the scope of his authority. In the instant case, the recommendation of the Secretary of Justice and the appointment of the President are acts of the Executive Department itself, and there is no sharing of power to speak of, the latter being deemed for all intents and purposes as being merely an extension of the personality of the President.

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Pineda vs. Claudio (GR L-19661; 13 May 1969) The Court ruled that it is neither mandatory nor ministerial for the mayor of Pasay City to promote to the vacant position of chief of police the incumbent deputy chief of police Pineda, and that the appointment to said position of the respondent Villa, who has been certified as qualified and eligible, although an "outsider" and not the next-in-rank employee, is valid, in the same manner that the appointment of Pineda, although an "outsider" and not the next-in-rank, to the position of deputy chief of police was valid. The Civil Service Act does not peremptorily require the mayor to promote the officer next in rank. To construe Section 23 the way the petitioner urges it should be, would be to unduly interfere with the power and prerogatives of the local executive as reinforced by the Decentralization Act at the same time that it would frustrate the policy of the Police Act "to achieve and attain a higher degree of efficiency in the organization, administration, and operation of local police agencies" and that of the Civil Service Act "to attract the best qualified to enter the service." For it is not enough that an aspirant is qualified and eligible or that he is next in rank or line for promotion, albeit by passive prescription. It is just as necessary, in order for public administration to be dynamic and responsive to the needs of the times, that the local executive be allowed the choice of men of his confidence, provided they are qualified and eligible, who in his best estimation are possessed of the requisite reputation, integrity, knowledgeability, energy and judgment. The principle of seniority and the next-in-rank rule embodied in Section 23, with its corollary requirement to set forth the "special reason or reasons" in case the officer next in rank is not appointed to the vacant position, applies only to cases of promotion. Hence, where the appointing power chooses to fill the vacancy not by promotion but by transfer, reinstatement, reemployment or certification (not necessarily in that order, as we have already said) he is under no duty whatsoever to explain his action, for the law does not so require him. The reason for this distinction is simple. When a person who is a junior jumps over his senior, the ranking is disturbed and the person next in rank is actually bypassed, and so it is reasonable to require the appointing power to give his "special reason or reasons" for preferring his appointee to the officer next-in-rank. But where the vacancy is filled not by promotion but by transfer, the person next-in-rank is not really bypassed, because the person appointed is one who holds a position of equivalent rank as the vacant position. To the appointee, the new position is hardly a higher one. As this Court correctly observed in Millares, in distinguishing promotion from transfer, "whereas the first denotes a scalar ascent of a senior officer or employee to another position, higher either in rank or salary, the second refers to a lateral movement from one position to another of equivalent rank level or salary." Panis vs. CSC (GR 102948; 2 February 1994) Private respondent and petitioner are college degree holders with three units in Public Administration and three years experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum qualifications for the position. The determination, however, who among the qualified candidates should be preferred belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent. The instant controversy involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of present employees in the government service, by reinstatement, by

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reemployment of those separated from the service, and appointment of outsiders who have appropriate civil service eligibility, but not necessarily in this order. It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she was an outsider, the law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service eligibility. Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall be considered for promotion." In other words, one who is "next in rank" to a vacancy is given preferential consideration for promotion to the vacant position, but it does not necessarily follow that he alone and no one else can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant position. An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing authority. Whom to appoint among those qualified is an administrative question involving considerations of wisdom for the best interest of the service which only the appointing authority can decide. Medalla vs. Sto. Tomas (GR 94255; 5 May 1992) The Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. In the light of the foregoing doctrines, the Commission appears to have overstepped its jurisdiction when it revoked the appointment of petitioner Medalla who was shown to have satisfied the requirements prescribed for the contested position, and instead directed the appointment of protestant Singson. No sanction, however, may yet be imposed on the Commission as the act complained of occurred before the promulgation of the aforestated Lapinid decision. Aquino vs. CSC (GR 92403; 22 April 1992) While it is true that the Civil Service Commission has no authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the appointing authority, the situation is different as in the instant case, where the Civil Service Commission revoked the appointment of the successful protestant, petitioner herein, principally because the right to security of tenure of the prior appointee, private respondent herein, to the contested position had already attached. It must be noted that public respondent CSC did not direct the appointment of a substitute

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of its choice. It merely restored the appointment of private respondent who was first appointed to the contested position. Private respondent assumed and performed the duties and functions of the position as Supply Officer I and received the compensation and benefits of the said position in accordance with the mandate of the Civil Service Law. The acts of the head of a department or office making the appointment and the Commissioner of Civil Service acting together, though not concurrently, but consecutively, are necessary to make an appointment complete, the permanent appointment extended to private respondent, under the circumstances of the case, is deemed complete. As such, she is entitled to the protection of the law against unjust removal. The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner merely supports the validity of the restoration of private respondent to her previously approved appointment considering that she meets the prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service eligibility. It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. When the appointing power has once acted and the appointee has accepted the office and done what is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed only in the regular way. The appointing power cannot effect his removal indirectly by rescinding or revoking his appointment after it is complete. There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority on the ground merely that the protestant is more qualified than the first appointee, subject however to the condition that the first appointee should possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising its discretionary power of appointment. Different Classes of Employees in the Public Sector, i.e. government civil servants [Chua vs. CSC (G.R. No. 88979; February 7, 1992)] Who are regular employees? Labor Code in Art. 280 deems an employment regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. No equivalent definition can be found in P.D.No. 807 or in the Administrative Code of 1987. The Early Retirement Law itself (Rep. Act No. 6683) merely includes such class of employees (regular employees) in its coverage, unmindful that no such specie is employed in the public sector. The appointment status of government employees in the career service is classified as follows: [PT] 1. permanent — one issued to a person who has met the requirements of the position to which appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards promulgated in pursuance thereof;

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2. temporary — In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment should be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. The Administrative Code of 1987 characterizes the Career Service as: [OCoPo-CoCoPaPa] (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commission officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled, or unskilled. The Non-Career Service, on the other hand, is characterized by: [OC] (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (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. Included in the non-career service are: [ESC-CEC] 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 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. 5. emergency and seasonal personnel. 6. Casual — where and when employment is not permanent but occasional, unpredictable, sporadic and brief in nature Province of Camarines Sur vs. CA (GR 104639; 14 July 1995)

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The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment — these are two distinct acts of the appointing authority. Sta. Maria vs. Lopez (GR L-30773; 18 February 1970) * Transfer, promotion, demotion, distinguished; transfer amounting to removal - A transfer is a "movement from one position to another which is of equivalent rank, level or salary, without break in service." Promotion is the "advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary." A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to "lure the employee away from his permanent position", cannot be done without the employee's consent. For that would constitute removal from office. Indeed, no permanent unless the officer or employee is transfer can take place unless the officer of the employee is first removed from the position held, and then appointed to another position. When an officer is reduced in rank or grade and suffers a big cut in pay, he is demoted; and when he is demoted, he is removed from office. But a demotion means something more than a reduction in salary: there may be a demotion in the type of position though the salary may remain the same. A transfer that aims by indirect method to terminate services or to force resignation also is removal. Marohombsar vs. CA (GR 126481; 18 February 2000) An ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. Ad interim appointments are permanent but their terms are only until the Board disapproves them. Sec. 16 of Art. VII, Constitution Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. Binamira vs Garrucho - Appointment or designation involves exercise of discretion which cannot be delegated. Even if it be assumed that the power could be exercised by Minister of Tourism, it could be recalled by the President. - Designation is considered only an acting or temporary appointment, which does not confer security of tenure.

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Sarmiento vs Mison - 4 groups of officers whom the President shall appoint: (a) heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other whose appointments are vested in him in this Constitution (b) all other officers of the Government whose appointments are not otherwise provided for by law (c) those whom the President may be authorized by law to appoint (d) officers lower in rank whose appointments the Congress may by law vest in the President alone. - Confirmation by COA is required only for presidential appointees that are within the 1st group of officers. - Case at bar: Confirmation of COA is not needed in appointment of Commissioner of Bureau of Customs because a bureau head is not among those within the first group of appointments where consent of COA is required. Bautista vs Salonga - Confirmation of COA is not needed in appointment of Chairman of Commission of Human Rights because such appointment is not vested in the President in the Constitution. The President appoints Chairman of CHR pursuant to EO 163 (CHR Chairman is thus within the 3rd group of officers) Quintos-Deles vs Commission of Appointments - The appointment of Sectoral Representatives requires confirmation by the Commission on Appointments. The seats reserved for sectoral representatives may be filled by appointment by the President by express provision of Sec.7, Article XVIII of the Constitution (hence, sectoral representatives are within the 1st group of officers) - Exceptions to those officers within the 1st group: (1) Ombudsman and his deputies, and (2) members of the Supreme Court and judges of lower courts. Calderon vs Carale - Confirmation by COA is required only for presidential appointees that are within the 1st group of officers as mentioned in Sarmiento vs Mison. - Congress may not expand the list of appointments needing confirmation. - Case at bar: RA 6715, which requires the COA confirmation in appointments of NLRC Chairman and Commissioners, transgresses Sec. 16, Art. VII. The appointments of NLRC Chairman and Commissioners do not need COA confirmation because they fall under the 3rd group of officers. Tarrosa vs Singson - affirmed the ruling in Calderon vs Carale - Case at bar: Appointment of Central Bank Governor does not need COA confirmation. Flores vs Drilon - A law which limits the President to only one appointee is an encroachment to the prerogative of the President because appointment involves discretion to choose who to appoint. Luego vs Civil Service Commission

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- CSC is without authority to revoke an appointment because of its belief that another person was better qualified, which is an encroachment on the discretion vested solely in the appointing authority. - The permanent appointment made by the appointing authority may not be reversed by CSC and call it temporary. Pobre vs Mendieta - The vacancy in the position of Chairman of the Professional Regulation Commission cannot be filled by the Senior Associate Commissioner by operation of law (or by succession) because it will deprive the President of the power to appoint the Chairman. Co-terminous employees: Orcullo vs. CSC (Gr 138780; 22 May 2001) The co-terminous status may be classified as follows: [PAIS] (1) Co-terminous with the project - when the appointment is co-existent with the duration of a particular project for which purpose employment was made or subject to the availability of funds for the same; (2) Co-terminous with the appointing authority - when appointment is co-existent with the tenure of the appointing authority or at his pleasure;(Underscoring ours) (3) Co-terminous with the incumbent - when the appointment is co-existent with the appointee, in that after the resignation, separation or termination of the services of the incumbent the position shall be deemed automatically abolished; and (4) Co-terminous with a specific period - appointment is for a specific period and upon expiration and upon thereof, the position is deemed abolished. Chua vs. CSC (GR 88979; 7 February 1992) A co-terminous employee is a non-career civil servant, like casual and emergency employees. We see no solid reason why the latter are extended benefits under the Early Retirement Law but the former are not. It will be noted that Rep. Act No. 6683 expressly extends its benefits for early retirement to regular, temporary, casual and emergency employees [RTCE]. But specifically excluded from the benefits are uniformed personnel of the AFP including those of the PC-INP. The Early Retirement Law would violate the equal protection clause were we to sustain respondents' submission that the benefits of said law are to be denied a class of government employees who are similarly situated as those covered by said law. The maxim of Expressio unius est exclusio alterius should not be the applicable maxim in this case but the doctrine of necessary implication (what is implied in a statute is as much a part thereof as that which is expressed). No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an allembracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy, hence, vacated positions are deemed abolished upon early/voluntary retirement of their occupants. Will the inclusion of co-terminous personnel (like the petitioner) defeat such objective? In their case, upon termination of the project and separation of the project personnel from the service, the term of employment is considered expired, the office functus officio. Casual, temporary and contractual personnel serve for shorter periods, and yet, they only have to establish two (2) years of continuous service to qualify. This, incidentally, negates the OSG's argument that co-terminous or project

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employment is inherently short-lived, temporary and transient, whereas, retirement presupposes employment for a long period. Here, violation of the equal protection clause of the Constitution becomes glaring because casuals are not even in the plantilla, and yet, they are entitled to the benefits of early retirement. How can the objective of the Early Retirement Law of trimming the bureaucracy be achieved by granting early retirement benefits to a group of employees (casual) without plantilla positions? There would, in such a case, be no abolition of permanent positions or streamlining of functions; it would merely be a removal of excess personnel; but the positions remain, and future appointments can be made thereto. Co-terminous or project personnel, on the other hand, who have rendered years of continuous service should be included in the coverage of the Early Retirement Law, as long as they file their application prior to the expiration of their term, and as long as they comply with CSC regulations promulgated for such purpose. A similar regulation should be promulgated for the inclusion in Rep. Act No. 6683 of co-terminous personnel who survive the test of time. This would be in keeping with the coverage of "all social legislations enacted to promote the physical and mental well-being of public servants." After all, coterminous personnel, are also obligated to the government for GSIS contributions, medicare and income tax payments, with the general disadvantage of transience. Provisional Appointees: The Provincial Board of Cebu vs. CFI (GR 34695; 7 March 1989) Issue: Whether or not provisional appointees may be considered as temporary employees made in the absence of eligibles. Held: Yes. The law clearly speaks of temporary employees in the classified service made in the absence of eligibles whose appointments require approval by the Provincial Board. On the other band, the law defining a provisional appointment contemplates that such appointments are made because of the absence of appropriate eligibles to the positions to which they are appointed. What the law considers a provisional appointment refers to an appointee with a civil service eligibility but other than an appropriate one for the position to which he was appointed." A provisional appointment is terminable only upon the certification of an appropriate eligible since such an appointment takes into account that the appointee should necessarily be an eligible who is supposed to have a permanent appointment and the nature of the work is such that only eligibles may perform the same." In other words, a provisional appointee does not have the appropriate eligibility to the position but the law gives him the privilege of occupying the position in the absence of an eligible and until the availability of an appropriate eligible is certified. There is no question therefore, that the appointments in question are covered by Section 2081 of the Administrative Code requiring the approval of the Provincial Board. Steps in Appointing Process • For Appointments requiring confirmation: Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts.

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Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.

For Appointments not requiring confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts.

Javier vs. Reyes (GR L-39451; 20 February 1989) Acceptance is indispensable to complete an appointment. The fact that Bernardo's appointment was confirmed by the Civil Service Commission does not complete it since confirmation or attestation by the Commission, although an essential part of the appointing process, serves merely to assure the eligibility of the appointee. Tomali vs. CSC (GR 110598; 1 December 1994) An appointment to a position in the civil service is required to be submitted to the CSC for approval in order to determine, in main, whether the proposed appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment are followed. Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective. Without the favorable certification or approval of the Commission, in cases when such approval is required, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the appointing authority. Until an appointment has become a completed act, it would likewise be precipitate to invoke the rule on security of tenure. The tolerance, acquiescence or mistake of the proper officials, resulting in the nonobservance of the pertinent rules on the matter does not render the legal requirement, on the necessity of approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not approved, may only be considered as a de facto officer. Limitations 1. Prohibition against appointment within 1 year after losing in an election; 2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure (Section 7, Art IX-B, Constitution); 3. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure (Sec. 13, Art. VII, Constitution); 4. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including governmentowned or controlled corporations and their subsidiaries (Sec. 13, Art. VII, Constitution).

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5. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat (Sec. 13, Art. VI, Constitution). 6. No Senator or Member of the House of Representatives shall be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected (Sec. 13, Art. VI, Constitution). 7. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions (Sec. 12, Article VIII, Constitution). 8. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment (Sec. 2, Art. IX-A, Constitution). 9. Members of Constitutional Commissions, Ombudsman and his Deputies must not have been candidates for any elective office in the immediately preceding election. 10. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office (Sec. 11, Art. XI, Constitution). 11. Members of the Constitutional Commissions shall serve for a term of seven years without reappointment (Art. IX, Constitution). 12. Rule against Nepotism. Designation Designation Definition Appointment

Imposition of additionalSelection of an duties upon an existingindividual to occupy a office certain public office by one authorized by law to make such selection of Limited of No. Comprehensive Yes.

Extent Powers Security tenure?

When deemed abandonmen t of prior office

Assumption of aAssumption of a 2nd designated position isappointive position is not deemedusually deemed abandonment of the 1stabandonment of the position first office.

Sevilla vs. CA (GR 88498; 9 June 1992) An "acting" appointment is merely temporary, one which is good only until another appointment is made to take its place. Hence, petitioner's right to hold office as "Acting City Engineer of Cabanatuan City" was merely temporary. It lapsed upon the appointment of

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Nerito Santos as the permanent city engineer of Cabanatuan City. Petitioner was the incumbent city engineer of Palayan City when he was designated as Acting City Engineering of Cabanatuan City. There is a difference between an appointment and a designation. Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election. A mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official . . . It is said that appointment is essentially executive while designation is legislative in nature. Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named. Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. . . Appointment involves the exercise of discretion, which because of its nature cannot be delegated." Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City merely imposed upon him the additional function of the City Engineer of Cabanatuan City on top of his regular duties as City Engineer of Palayan City. He may claim security of tenure as City Engineer of Palayan City but he may not lay such a claim to the position of City Engineering of Cabanatuan City for he holds no appointment to the latter office.

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CIVIL SERVICE
Scope The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters [1987 Philippine Constitution, Art. IX-B Sec. 2(1)]. Objective [1987 Philippine Constitution, Art. IX-B Sec. 3] 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, progressiveness, and courtesy in the civil service • strengthen the merit and rewards system • integrate all human resources development programs for all levels and ranks, • institutionalize a management climate conducive to public accountability • submit to the President and the Congress an annual report on its personnel programs Career Service Characteristics [MAS] (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; (3) security of tenure Inclusions[OCoPo-CoCo-PaPa] (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commission officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled, or unskilled.

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Non-Career Service Characteristics The Non-Career Service, on the other hand, is characterized by: [OC] (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (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. Inclusions Included in the non-career service are: [ESC-CEC] 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 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. 5. emergency and seasonal personnel. 6. Casual — where and when employment is not permanent but occasional, unpredictable, sporadic and brief in nature Exempt from Competitive Exams 1) Policy determining - in which the officer lays down principal or fundamental guidelines or rules; or formulates a method of action for government or any of its subsidiaries - example: cabinet member 2) Primarily Confidential – denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of the state - examples: private secretary, confidential agent 3) Highly Technical – requires possession of technical skill or training in a superior degree - example: City Legal Officer, Scientist NOTE: It is the nature of the position which determines whether a position is policy determining, primarily confidential or highly Proximity Rule - Absent the declaration of the CSC that a position is primarily confidential, when by the nature of the functions of the office there exists “close intimacy” between the appointee and appointing power which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state.

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Personnel Actions

1. Promotion – movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.
Next In Rank rule – the person next in rank shall be given preference in promotion when the position immediately above his is vacated. - the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the special reason/s for not appointing the officer next-in-rank. This means that the one who is next-in-rank is given only preferential consideration for promotion; but it does not follow that he alone and no one else can be appointed. Qualified next-in-rank – refers to an employee 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 appointment thereto as previously determined by the appointing authority and approved by the Commission. 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. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code) - Sec. 13 of Omnibus Rules Implementing Book V of EO 292 mandates the return of an appointee, in a chain of promotions, to his former position once his appointment is subsequently disapproved - Requisites [Divinagracia Jr. v. Sto. Tomas (GR 110954)]: 1. Series of promotions; 2. Simultaneous submission of appointments to the CSC for approval; and 3. Disapproval of the appointment of a person proposed to a higher position.

2. Certification – a person is selected from a list of qualified persons certified by the CSC from an appropriate register of eligible, and who meets all the qualifications prescribed for the position. 3. Transfer – movement from one position to another which is of equivalent rank, level or salary without break in service - May be imposed as an administrative penalty - When transfer amounts to removal: (a) Unconsented transfer which results to promotion/demotion that aims to lure the employee away from his permanent position (b) A transfer that aims by indirect method to terminate services or to force resignation
Promotion Scalar ascent of a senior officer or Transfer Lateral movement from one position to

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employee to another position, higher either in rank or salary

another of equivalent rank, level or salary

See People vs. Claudio (GR L-19661; 13 May 1969), Sta. Maria v. Lopez (L-30773)

4. Reinstatement – the issuance of a new appointment, which is essentially discretionary - See Gloria vs. De Guzman (GR 116183), Monsanto vs. Factoran (GR 78239) Garcia vs. COA, Chairman (GR 75025) 5. 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. 6. Detail – movement of an employee from one agency to another without the issuance of an appointment, and shall be allowed only for a limited period in the case of employees occupying professional, technical and scientific positions. - See Borres v. Canonoy (GR L-31641) 7. Reassignment – an employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary. - A management prerogative vested in the CSC and, for that matter, in any department or agency embraced in the Civil Service - Does not constitute removal without cause - See Padolina v. Fernandez (GR 133511), De Guzman v. Comelec (GR 129118) 8. Demotion – movement from one position to another which involves diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary. - See Bautista v. CSC and DBP (GR 185215)
General v. Roco (143366) Two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: a) CES eligibility; and b) Appointment to the appropriate CES rank. In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.

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Montecillo v. CSC (131954) The enumeration found in Section 6, Article IV of the Civil Service Decree, which defines the non-career service, is not an exclusive list. Respondent could supplement the enumeration, as it did when it issued Memorandum Circular No. 22, s. of 1991, by specifying positions in the civil service, which are considered primarily confidential and therefore their occupants are co-terminous with the official they serve. Pagcor v. Rilloraza (141141) The primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. It is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. Executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 2[3], Article IX-B of the Constitution. CSC v. Salas (123708) Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee, to wit: 1. As an Internal Security Staff member, private respondent routinely — a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions and other anomalous activities among the employees and customers; b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas; c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanted incidents at the gaming and non-gaming areas; d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling; e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during transfer of yields to Treasury. Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such close intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would insure "freedom from misgivings of betrayals of personal trust."

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2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their official duties. An ISS member is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee. 3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class Piñero et al. v. Hechanova (L-22562) Under Section 5 of the Civil Service Act of 1959 now in force, what determines ultimately whether an administrative position is primarily confidential, policy determining or highly technical, is the nature of the functions attached to the position. This clearly appears from the wording and history of section 5 of the 1959 Civil Service Act (R.A. 2260). During the deliberation of R.A. 2260, it was discussed that since the Constitution speaks of positions which are "primarily confidential, policy determining or highly technical in nature", it is not within the power of Congress to declare what position is primarily confidential or policy determining. "It is the nature alone of the position that determines whether it is policy determining or primarily confidential." Hence, then Senator Tanada observed, the matter should be left to the "proper implementation of the laws, depending upon the nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service Commissioner must implement the law. Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Delos Santos v. Mallare (L-3881) The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service. Three specified classes of positions — policy-determining, primarily confidential and highly technical — are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category determinable at the will of the officer that makes them. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to

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possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability. Divinagracia Jr. v. Sto. Tomas (110954) In order for automatic reversion to apply, there must be: 4. Series of promotions; 5. Simultaneous submission of appointments to the CSC for approval; and 6. Disapproval of the appointment of a person proposed to a higher position. Sta. Maria v. Lopez (L-30773) Facts: Petitioner, a professor of English and Comparative Literature (formerly Dean of the UP College in Baguio), was elected Dean of the College of Education by the Board of Regents, on nomination of the UP President. His appointment as such Dean was for a five year term, unless sooner terminated, with all the rights and privileges as well as the duties and obligations attached to the position in accordance with the rules and regulations of the University and the Constitution and laws of the Republic of the Philippines. The graduate and undergraduate students of the UP College of Education presented to President Salvador P. Lopez a number of demands having a bearing on the general academic program. The students were not satisfied with the action of the petitioner. For, Dean Sta. Maria, according to them, did not act on some of their demands. Respondents herein have stressed that in the meetings of the education graduate committee, Dean Sta. Maria neither included in the agenda nor consulted the faculty about the students' demands on "foreign language proficiency examination" and on "research and thesis writing pressures". The students boycotted their classes. The President met the striking students' representatives and the faculty members of the College of Education. Charges of favoritism were allegedly hurled by some of the faculty members against Sta. Maria. On the other hand, the dean offered to sit down with the students. The latter, however, refused to enter into a dialogue unless he (the dean) were first ousted. Faculty members of the College of Education convened. They resolved, amongst others, to recognize the right of a college dean to his position from which he cannot be removed unless for cause and not to endorse the students' demand for the forced resignation of Sta. Maria. The boycott fever infected other colleges. The newly installed members of the UP Student Council voted to support the education students' strike. The main avenues leading to the university gates were barricaded, buses denied entrance, and students cajoled into joining the strike. It was thus on that day that all academic activity in the university came to a complete stand still. The UP President called a meeting of the faculty of the College of Education. Those present gave him a vote of confidence to resolve the issue on hand as he sees fit. Armed with the vote of confidence of the education faculty, President Lopez transferred Dean Sta. Maria to the Office of the President as Special Assistant with the rank of Dean, without reduction in salary, in the interest of the service. Simultaneously, President Lopez appointed ad interim Professor Nemesio R. Ceralde as "acting Dean of the College of Education, without additional compensation. The BOR confirmed Sta. Maria’s transfer.

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Dean Sta. Maria contended that the transfer is unjust, unfair, unconstitutional, and contrary to law, and, therefore, null and void." Issue: Whether petitioner’s transfer was valid. Held: No. The transfer of the petitioner amounts to a removal. (a) The contract of employment of a dean of a college of the University of the Philippines has a term of 5 years and enjoys security of tenure. He cannot be removed except for a just cause. “Unless sooner terminated” does not mean terminable at will. (b) Transfer, promotion, demotion, distinguished; transfer amounting to removal - A transfer is a "movement from one position to another which is of equivalent rank, level or salary, without break in service." Promotion is the "advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary." A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to "lure the employee away from his permanent position", cannot be done without the employee's consent. For that would constitute removal from office. Indeed, no permanent unless the officer or employee is transfer can take place unless the officer of the employee is first removed from the position held, and then appointed to another position. When an officer is reduced in rank or grade and suffers a big cut in pay, he is demoted; and when he is demoted, he is removed from office. But a demotion means something more than a reduction in salary: there may be a demotion in the type of position though the salary may remain the same. A transfer that aims by indirect method to terminate services or to force resignation also is removal. (c) Transfer of college dean of UP to another position with a dean’s rank, without his consent, is removal - A college dean holding an appointment with a fixed term stands on a different plane. He cannot, without his consent, be transferred before the end of his term. He cannot be asked to give up his post. Nor may he be appointed as dean of another college. Much less can he be transferred to another position even if it be dignified with a dean's rank. - (1) Deanship in a university, being an academic position which requires learning, ability and scholarship, is more exalted than that of a special assistant who merely assists the President, as the title indicates. The special assistant does not make authoritative decisions. (2) The position of dean is a line position where the holder makes authoritative decisions in his own name and responsibility. A special assistant does not rise above the level of staff position. (3)The position of dean is created by law, the university charter, and cannot be abolished even by the Board of Regents. That of special assistant, upon the other hand, is not so provided by law; it was a creation of the university president. De Guzman v. Comelec (129118) Facts: RA 8189 (The Voter's Registration Act of 1996), Section 44 thereof provides: "SECTION 44. Reassignment of Election Officers. — No Election Officer shall hold office in a particular city or municipality for more than four (4) years. Any election officer who, either at the time of the approval of this Act or subsequent thereto, has served for at least four (4) years in a particular city or municipality shall automatically be reassigned by the Commission to a new station outside the original congressional district." By virtue of the aforequoted provision of law, the, Commission on Elections (COMELEC) promulgated Resolutions for the implementation thereof. Thereafter, the COMELEC issued several directives reassigning the petitioners, who are either City or Municipal Election Officers, to different stations.

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Petitioners assailed these directives by filing the instant petition claiming that said section violates the equal protection clause, infringed on their security of tenure, undermined the appointing authority of the COMELEC and was not germane to the subject matter stated in the title of the law. Basically, petitioners assailed the validity of the said section. Issue: Whether the reassignment to different stations constitute infringement on petitioners’ security of tenure. Held: No. The Court held that Section 44 of RA 8189 enjoys the presumption of validity in the absence of any ground to invalidate it; that the equal protection clause of the Constitution allows a valid classification and that the singling out of election officers to ensure impartiality of election officers does not violate the equal protection clause; that the guarantee of security of tenure is not infringed where transfer of employees is mandated by law; that the COMELEC, as a government agency tasked with the implementation and enforcement of election laws, is duty bound to comply with RA 8189 on transfer of election officers; that Section 44 of RA 8189 is related to the subject matter of the law, which is registration; and finally, in the absence of clear showing of grave abuse of discretion, respect is due to co-equal departments of the government in matters entrusted to them by the Constitution. Monsanto v. Factoran Jr. (78239) Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never Committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. A pardon looks to the future. It is not retrospective. It makes no amends for the past. It does not impose upon the government any obligation to make reparation for what has been suffered. This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office. The rationale is plainly evident. Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond

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that. To regain her former post as assistant city treasurer, she must reapply and undergo the usual procedure required for a new appointment. Garcia v. Chairman, COA (75025) Facts: Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. He was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in an administrative case for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court). The trial court rendered its decision acquitting petitioner of the offense charged. Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. Petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency. Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution, granted executive clemency to petitioner. Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective the date of his dismissal from the service. This was denied by the COA on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that petitioner was recalled to the service but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman. Respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, petitioner appealed the COA decision to the Office of the President. Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," holding that SC is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA. Issue: Whether the petitioner is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency. Held: Yes. • Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. • the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon

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does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. • But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. • In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. • Petitioner's automatic reinstatement to the government service entitles him to back wages. This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages. • Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages. Gloria v. De Guzman Jr. (116183) * Mere Designation does not confer upon the designee security of tenure to a position held in acting capacity only - Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere

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designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only. * Reappointment cannot be compelled against appointing authority - The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. * Writ of Mandamus, not applicable; Reinstatement as discretionary - Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. Consequently, it cannot be the subject of an application for a writ of mandamus. * Id.; Termination of Employment; Expiration of term not illegal dismissal - To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. Borres v. Canonoy (L-31641) Facts: Private respondent, Silverio Parages, a detective in the Cebu Police Department and a civil service eligible, holding his position in a permanent capacity, refused to receive and comply with the memorandum of the Acting Mayor of Cebu City, ordering the detail of private respondent to his office. The memorandum ordering the detail was issued in consideration of the verbal complaints that respondent Parages had been molesting Chinese businessmen in Cebu and the fact that his performance was not satisfactory. Respondent declined the detail on the ground that the order was illegal. A petition for prohibition and injunction was filed by private respondent at the Court of First Instance of Cebu but while the same was pending, petitioner Acting Mayor, charged him with insubordination and neglect of duty in the Police Commission through the City Board of

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Investigators and ordered the suspension of respondent. Hence, the latter amended his petition to include the prayer that his suspension be declared illegal. The trial court rendered its decision declaring the detail order illegal and therefore null and void for being contrary to Section 90 of Republic Act No. 3857 (Revised Charter of the City of Cebu) and to the constitutional protection of security of tenure. The order of suspension was likewise held illegal and immediate reinstatement of respondent was ordered. Issue: Whether the detail order was valid. Held: Yes. The power of petitioner as Mayor of Cebu City to detail must necessarily be deemed included in his power of control and supervision over different departments as provided in Sections 19 and 32 of the Revised Charter of Cebu. The constitutional provision on security of tenure is not in point as a temporary detail is neither removal, suspension nor transfer when made in the interest of public service. Padolina v. Fernandez (133511) Facts: Respondent Ofelia D. Fernandez, then holding the position of PAGASA Finance and Management Division Chief of the DOST, was reassigned to Finance and Management Service Director’s Office in Bicutan, Taguig, pursuant to SO 129 (Special Order 129)issued by petitioner DOST Secretary Padolina. Respondent requested petitioner to lift said SO 129 on the ground that such order was tantamount to her constructive dismissal, thereby violating her security of tenure. However, the same was denied. Appeal of respondent Fernandez to the Civil Service Commission did not result in her favor. Thereafter, respondent refused to accept her reassignment. Thus, respondent was charged with insubordination and investigation was conducted to determine her the reason of her refusal. The investigation committee recommended the imposition of one month suspension. Respondent appealed to the CA. The latter ruled in her favor, declaring SO 129 as void ab initio. The appellate court explained that said order adversely affected the position of respondent as said reassigmnet has effectively demoted her in rank, status, and salary. Issue: Whether or not respondent’s reassignment is valid. Held: No. The Court, in sustaining the appellate court, ruled that a reassignment which removes from a public officer’s power of supervision over 41 employees who are part of her staff and subordinates results in a diminution of her status, and even if the reassignment is temporary, it is diminution nonetheless. Also, a reassignment without a definite duration is tantamount to a floating assignment that results in a diminution in rank. A demotion is defined as the movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status, or rank which may or may not involve reduction salary, and a diminution in any one of those categories is sufficient to constitute a demotion, and hence, tantamount to a virtual dismissal. [NB: (1) SO 129 violated the security of tenure of respondent; (2) there is an unconsented reassignment resulting in a demotion in rank, status or salary is tantamount to a virtual dismissal; (3) SO 129 contains no duration of reassignment resulting in a diminution in rank; and that such reassignment removes from respondent her power of supervision over subordinates, thereby resulting in a diminution of her status.] Bautista v. CSC and DBP (185215) There is demotion when an employee is appointed to a position resulting to a diminution in duties, responsibilities, status or rank which may or may not involve a reduction in salary. Where an employee is appointed to a position with the same duties and responsibilities but

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a rank and salary higher than those enjoyed in his previous position, there is no demotion and the appointment is valid.

Qualifications Qualification – two senses: 1. Endowment or accomplishment that fits one for office; 2. Act which a person, before entering upon the performance of his duties, is, by law, required to do Qualification Standard - It enumerates 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. (Sec. 22, Book V, Administrative Code) • The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) • Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office (ibid) • It shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules) Authority to prescribe qualifications GENERAL RULE: Congress *Qualifications for an office must have a rational basis. There must be a rational nexus between any requirements and duties of the position in question. *The right of Congress to prescribe qualifications is NOT inconsistent with the executive power of appointment to office. * Congress has no power to require different qualifications unless expressly provided Scope of Qualifications 1. Citizenship * Aliens are not eligible to public office unless the privilege is extended to them by statute. 2. Age 3. Suffrage 4. Residence 5. Education 6. Ability to read and write 7. Political affiliation * GENERAL RULE: Political qualifications are Not Required for public office. * EXCEPTIONS: • Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); • Party-list representation; • Commission on Appointments; • Vacancies in the Sanggunian (Sec. 45, Local Government Code) 8. Civil service examination

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9. Property qualifications * Property Qualifications are against the nature and essence of the Republican system ordained in our Constitution and its social justice principle. Since sovereignty resides in the people, it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate’s wealth. Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. (Maquera v. Borra and Aurea v. COMELEC) Duration of Qualifications A. Where time is specified by Constitution or law: - The candidate must possess the necessary qualifications at that time B. Where the Constitution or law is silent - Courts shall determine C. When qualifications must always exist: - Eligibility to public office is of a continuing nature and must exist at the commencement of the term and during the occupancy of the office. Effect of failure to qualify or assume office • Under Sec. 11, Omnibus Election Code (BP 881): The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. • Under Art. 234, Revised Penal Code: Refusal to discharge elective office - The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office. • Under Art. 236, Revised Penal Code: Anticipation of duties of a public office Any person who shall assume the performance of the duties and powers of any public officer or employment without first being sworn in or having given the bond required by law, shall be suspended from such office or employment until he shall have complied with the respective formalities and shall be fined from 200 to 500 pesos. QUALIFICATION AS A QUALITY, ENDOWMENT OR ATTRIBUTE Under Section 39, RA 7160 (AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991) (a) An elective local official must be: - a citizen of the Philippines; - a registered voter in the barangay, municipality, city, or province - or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; - a resident therein for at least one (1) year immediately preceding the day of the election; - and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be: - at least twenty-one (21) years of age on election day.

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(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be: - at least twenty-one (21) years of age on election day. (d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be: - at least eighteen (18) years of age on election day. (e) Candidates for the position of punong barangay or member of the sangguniang barangay must be: - at least eighteen (18) years of age on election day. (f) Candidates for the sangguniang kabataan must be: - at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day. Under 1987 Constitution a) President (Sec. 2, Art. VII, Constitution); Vice President (Sec. 3, Art. VII, Constitution) · Natural-born citizen · 40 years old on day of election · resident of the Philippines for at least 10 yrs. immediately preceding election day · registered voter · able to read and write

b) Senator (Sec. 3, Art. VI, Constitution) · Natural-born citizen · at least 35 years old on day of election · able to read and write · registered voter · resident of the Philippines for not less than two years immediately preceding election day c) member of House of Representatives (Sec. 6, Art. VI, Constitution) · Natural-born citizen · at least 25 years old on day of election · able to read and write · registered voter in district in which he shall be elected · resident thereof for not less than one year immediately preceding election day (except party-list representatives) Supreme Court Justice (Sec. 7, Art. VII, Constitution) · Natural born citizen · at least 40 years old · for 15 years or more, a judge of lower court or engaged in law practice in the Philippines · of proven CIPI (competence, integrity, probity and independence)

d)

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e)

Civil Service Commissioners (Sec. 1 [1], Art. IX-B Constitution) · Natural-born citizen · 35 years old at time of appointment · proven capacity for public administration · not a candidate for any elective position in elections immediately preceding appointment COMELEC Commisioner (Sec. 1[1], Art. IX-C, Constitution) · Natural-born citizen · at least 35 years old at time of appointment · college degree holder · not a candidate for elective position in election immediately preceding appointment · chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years (See Cayetano v. Monsod) COA Commissioners (Sec. 1, Art. IX-D, Constitution) · Natural-born citizen · 35 years old at time of appointment · CPA with not less than 10 year of auditing experience or · Bar member, engaged in practice of law for at least 10 years · Not have been candidates for elective position in elections immediately preceding appointment

f)

g)

NOTE: No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries (Section 2, Art.IX-A, Constitution).

h) Ombudsman and his deputies (Sec. 8, Art. XI, Constitution) - natural born citizen - at least 40 yrs old at the time of appointment - of recognized probity and independence - Members of the Philippine bar - must not have been candidates for any elective office in the immediately preceding election - (Ombudsman) for 10 yrs or more, a judge or engaged in law practice Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill (Cayetano vs. Monsod). AS AN ACT OF ENTERING PUBLIC OFFICE

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* President and Vice-President: 1. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation: "I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill my duties as President [or Vice-President or Acting President] of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God." [In case of affirmation, last sentence will be omitted]. (Section 5, Article VII, Constitution) 2. In the case of the President and the Vice-President, the declaration of assets, liabilities, and net worth shall be disclosed to the public in the manner provided by law (Sec. 7, Art, XI, Constitution). * Public officers and employees: 1. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution (Sec. 4, Art. IX-B, Constitution) 2. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law (Sec. 7, Art, XI, Constitution). Manquera v. Borra (L-24761) Republic Act No. 4421 requires a candidate to post a surety bond equivalent to one-year salary of the position to which he is a candidate, which bond shall be forfeited in favor of the government, if the candidate, except when declared winner, fails to obtain at least 10% of the votes cast for the office, there being not more than four candidates for the same office. The effect of said Republic Act No. 4421 is to impose property qualifications in order that a person could run for a public office, which property qualifications are inconsistent with the nature and essence of the Republican system ordained in the Constitution and the principle of social justice underlying the same. Consequently, Republic Act No. 4421 is unconstitutional and hence null and void. Property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office. Yee v. Director of Public Schools (L-16924) Not being included in section 671 of the Revised Administrative Code which enumerates the officers and employees constituting the unclassified service, teaching in a public school is in the classified service — a public function which may be performed by Filipino citizens only. An applicant for admission to examination for entrance into the civil service must be a citizen of the Philippines (Section 675 of the Revised Administrative Code). And after he had qualified himself to be eligible for appointment to a civil service position and had been appointed to such position, he must continue to be such citizen. A voluntary change of

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citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he had qualified and had been appointed. Frivaldo v. Comelec (87193; 1989) Facts: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo’s election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. Issue: Whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. Held: No. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid

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repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. Chavez v. Ronidel (180941) Facts: On February 23, 2001, then PCUP Chairperson Atty. Gasgonia issued promotional appointments in favor of respondent. Respondent took her oath and assumed her new position on the date of her appointment. Meanwhile, on February 19, 2001, petitioner was appointed as the new Chairperson and Chief Executive Officer (CEO) of PCUP, succeeding Gasgonia. However, petitioner took his oath and assumed office only on February 26, 2001. Issue: Whether Gasgonia had the authority to appoint respondent to the position of DMO V notwithstanding the appointment of petitioner as the new chairperson of the PCUP. Held: Yes. Well-settled is the rule that an oath of office is a qualifying requirement for a public office, a prerequisite to the full investiture of the office. Since petitioner took his oath and assumed office only on February 26, it was only then that his right to enter into the position became plenary and complete. Prior to such oath, Gasgonia still had the right to exercise the functions of her office. Clearly, at the time of respondent's appointment on February 23, Gasgonia still was the rightful occupant of the position and was, therefore, authorized to extend a valid promotional appointment.

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DISQUALIFICATIONS & INHIBITIONS Disqualifications to be a candidate and to hold any office: 1. Any person who has been declared by competent authority insane or incompetent (Section 12, Omnibus Election Code), or 2. Sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty (Section 12, Omnibus Election Code). Note: These disqualifications to be a candidate (under 1 and 2) shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from service of sentence, unless within the same period he again becomes disqualified. 3. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having – (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6 (Sec. 68, Omnibus Election Code). 4. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws (Sec. 68, Omnibus Election Code). Disqualifications from running for Elective Local Position (Section, 40, RA 7160): [ORO-DFPI] 1) sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; 2) Those removed from office as a result of an administrative case; 3) Those convicted by final judgment for violating the oath of allegiance to the Republic; 4) Those with dual citizenship; 5) Fugitives from justice in criminal or non-political cases here or abroad; 6) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and 7) The insane or feeble-minded. Prohibited Business and Pecuniary Interest (Section 89, RA 7160): It shall be unlawful for any local government official or employee, directly or indirectly, to:

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1) Engage in any business transaction with the local government unit in which he is an official or employee or over which he has the power of supervision, or with any of its authorized boards, officials, agents, or attorneys, whereby money is to be paid, or property or any other thing of value is to be transferred, directly or indirectly, out of the resources of the local government unit to such person or firm; 2) Hold such interests in any cockpit or other games licensed by a local government unit; 3) Purchase any real estate or other property forfeited in favor of such local government unit for unpaid taxes or assessment, or by virtue of a legal process at the instance of the said local government unit; 4) Be a surety for any person contracting or doing business with the local government unit for which a surety is required; and 5) Possess or use any public property of the local government unit for private purposes. Note: All other prohibitions governing the conduct of national public officers relating to prohibited business and pecuniary interest so provided for under R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) and other laws shall also be applicable to local government officials and employees. Practice of Profession (Section 90, RA 7160) (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: 1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; 2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. 3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and 4) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. Under the Revised Penal Code – I. Prohibitions: A. Prohibited Transaction (Art. 215) — Penalty shall be imposed upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction. B. Prohibited Interest (Art. 216) — Penalty shall be imposed upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene. II. Effects of Penalties:

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A. Effects of the penalties of perpetual or temporary absolute disqualification (Art. 30) — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. B. Effect of the penalties of perpetual or temporary special disqualification (Art. 31) — The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected; 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. C. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage (Art. 32) — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. D. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage (Art. 33) — The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension.
Corrupt practices of public officers [Section 3, RA 3019 (Anti-Graft and Corrupt Practices Act)] – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.

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(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

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Nepotism [Section 30, RA 2260(Civil Service Act of 1959)]: A. Prohibited Appointments: All appointments in the National, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or non-competitive service, made in favor of a relative of: 1. the appointing recommending authority, or 2. the chief of the bureau or office, or 3. the persons exercising immediately supervision over him B. Relative, definition - those related within the third degree either of consanguinity or affinity. C. Inapplicability to Marriage Contracted After Appointment - This restriction shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an offices or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. D. Individuals Exempt from the Rules on Nepotism: [CTPA] (1) person employed in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the Philippines [Provided, however, that in each particular instance full report of such appointment shall be made to the Commissioner of Civil Service.] E. Correction by Transfer: In order to give immediate effect to these rules, cases of previous appointments which are in contravention hereof shall be corrected by transfer - Pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of these rules. Effects of Violation – A. Impeachment (Sec. 2, Art. XI, Constitution) * Who are subject to impeachment:  The President  the Vice-President  the Members of the Supreme Court  the Members of the Constitutional  Commissions  Ombudsman * Reasons for impeachment  culpable violation of the Constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust. * All other public officers and employees may be removed from office as provided by law, but not by impeachment * Impeachment Process (Section 3, Art. XI):

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1. Who may initiate: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 2. Verified Complaint  A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof  Verified Complaint shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter.  The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution.  The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. 3. Number of Votes necessary  A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution.  The vote of each Member shall be recorded. 4. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. 5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year. 6. The Senate shall have the sole power to try and decide all cases of impeachment. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate.  When sitting for that purpose, the Senators shall be on oath or affirmation.  When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. B. Administrative Liability C. Civil liability D. Criminal liability Dumlao v. Comelec (L-52245) * Constitutionality of first paragraph of section 4 of Batas Pambansa Bilang 52, which provides: “In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualifications for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be

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elected, shall not be qualified to run for the same elective local office from which he has retired." In the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for the very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection, neither does it permit such denial. Persons similarly situated are similarly treated. * Constitutionality of second paragraph of section 4 of Batas Pambansa Bilang 52 providing that: ". . . the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused - An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running from public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence. Although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Civil Liberties Union v. Executive Secretary (194 SCRA 317) * Whether the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB No. The intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. While all other appointive officials in the civil service are allowed to hold other office or

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employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. * Whether the prohibition apply to positions held in ex officio capacity. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. The term ex-officio means "from office; by virtue of office." Exofficio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." The additional duties must not only be closely related to, but must be required by the official's primary functions. If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. * Whether the respondents are obliged to reimburse the perquisites they have received from the offices they have held pursuant to EO 284. During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. 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. 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. Overall, Executive Order No. 284 is unconstitutional as it actually allows a member of the cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987. Respondent's contention that Sec. 7, Art. IX-B is an exception would defeat the obvious legislative intent which is to prohibit cabinet members from holding multiple offices. National Amnesty Commission v. COA (156982) Facts: The National Amnesty Commission (NAC) is a government agency created by then President Fidel V. Ramos through Proclamation 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of seven members: a Chairperson, three

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regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members. It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their representatives who were paid honoraria. However, NAC resident auditor Eulalia disallowed on audit the payment of honoraria to these representatives pursuant to Commission on Audit (COA) Memorandum 97-038. Meanwhile, NAC passed Administrative Order 2, which was approved by then President Joseph Estrada. The Administrative Order provided that the ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law. NAC thus invoked Administrative Order 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing payment of honoraria to the ex officio members' representatives, to no avail. Issue [1]: Whether there is legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex officio members' official representatives. Held [1]: No. In Civil Liberties Union, the Court elucidated on the two constitutional prohibitions against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution. The NAC ex officio members' representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions. First, the NAC ex officio members' representatives are not exempt from the general prohibition because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor. Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government and receiving additional or double compensation. RA 6758, the Salary Standardization Law, also bars the receipt of such additional emolument. The representatives in fact assumed their responsibilities not by virtue of a new appointment but by mere designation from the ex officio members who were themselves also designated as such. Second, the ex officio members' representatives are also covered by the strict constitutional prohibition imposed on the President and his official family. Again, in Civil Liberties Union, the Court held that cabinet secretaries, including their deputies and assistants, who hold positions in ex officio capacities, are proscribed from receiving additional compensation because their services are already paid for and covered by the compensation attached to their principal offices. Thus, in the attendance of the NAC meetings, the ex officio members were not entitled to, and were in fact prohibited from, collecting extra compensation, whether it was called per diem, honorarium, allowance or some other euphemism. Such additional compensation is prohibited by the Constitution. Since the ex officio member is prohibited from receiving additional compensation for a position held in an ex officio capacity, so is his representative likewise restricted. Issue [2]: Whether Section 1, Rule II of Administrative Order 2, providing that "The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law." can be the basis of the representatives' claim for per diem. Held [2]: NO. First, the administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, the payment of such allowances is not allowed, prohibited even. Second, the administrative order merely allows the ex officio members to

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designate their representatives to NAC meetings but not to decide for them while attending such meetings. Thus, although the administrative order does not preclude the representatives from attending the NAC meetings, they may do so only as guests or witnesses to the proceedings. They cannot substitute for the ex officio members for purposes of determining quorum, participating in deliberations and making decisions. Lastly, the Court disagrees with NAC's position that the representatives are de facto officers and as such are entitled to allowances, pursuant to the pronouncement in Civil Liberties Union. The representatives cannot be considered de facto officers because they were not appointed but were merely designated to act as such. Furthermore, they are not entitled to something their own principals are prohibited from receiving. Neither can they claim good faith, given the express prohibition of the Constitution and the finality of our decision in Civil Liberties Union prior to their receipt of such allowances. Canonizado v. Aguirre (133132) Facts: Petitioners, Commissioners of the National Police Commission, with the effectivity of the law, were removed from office and in their stead appointed respondents Aguirre, Adiong and two other generals. Petitioners seasonably assailed the constitutionality of the said law. Meanwhile, pending appeal, petitioner Canonizado was appointed and assumed the Office of Inspector General of the Internal Affairs Service (IAS) of the Philippine National Police (PNP). The respondents alleged that petitioner's appointment constituted abandonment of his claim for reinstatement since the offices of NAPOLCOM and Inspector General of the IAS are incompatible. Issue: Whether the acceptance of a second position constitutes abandonment. Held: No. There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. However, the rule does not apply where there was no discharge of functions of the two offices simultaneously; and that acceptance of a second position pending appeal does not constitute abandonment. He had the right to live during the pendency of his appeal and naturally the right to accept any form of employment. Prohibiting petitioner from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstances can be attributed to him. Cailles v. Bonifacio (L-45937) Facts: An original action in the nature of quo warranto was instituted by the petitioner for the purpose of ousting the respondent from the office of provincial governor of Laguna, contending that at the time the respondent filed his certificate of candidacy and was elected to office, the respondent was a captain in the reverse force of the Philippine Army and, for this reason, is ineligible to office. Issue: Whether the respondent can lawfully run and be elected in an elective position as stated herein. Held: Yes. As section 431 of the Election Law, as amended by Commonwealth Act No. 233, disqualified from voting only members in the active service of the Philippines Army and no claim is made that this discrimination is violation of the Constitution, it follows that the respondent, being in the reserve force, is not disqualified from voting. The respondent being a qualified elector and the possession by him of the other qualifications prescribed for an elective provincial office not being challenged, he is not ineligible to the office of provincial governor to which he has been elected.

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Gayo v. Verceles (150477) The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside and continue until the same is abandoned by acquisition of new domicile (domicile of choice). Teves v. Comelec (180363) Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine." In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not. This guideline nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. Applying the foregoing guidelines, we examined all the circumstances surrounding petitioner’s conviction and found that the same does not involve moral turpitude. First, there is neither merit nor factual basis in COMELEC’s finding that petitioner used his official capacity in connection with his interest in the cockpit and that he hid the same by transferring the management to his wife, in violation of the trust reposed on him by the people. Only the Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in the year 1992. Indeed, under Section 447(3) of the LGC of 1991, it is the Sangguniang Bayan that has the authority to issue a license for the establishment, operation, and maintenance of cockpits. The mayor is not a member of the Sangguniang Bayan. Hence, Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a cockpit license during the material time, as alleged in the information, because he was not a member of the Sangguniang Bayan. Thus, petitioner, as then Mayor of Valencia, did not use his influence, authority or power to gain such pecuniary or financial interest in the cockpit. Neither did he intentionally hide his interest in the subject cockpit by transferring the management thereof to his wife considering that the said transfer occurred before the effectivity of the present LGC prohibiting possession of such interest. Second, while possession of business and pecuniary interest in a cockpit licensed by the local government unit is expressly prohibited by the present LGC, however, its illegality does not mean that violation thereof necessarily involves moral turpitude or makes such possession of interest inherently immoral. Under the old LGC, mere

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possession by a public officer of pecuniary interest in a cockpit was not among the prohibitions. Lastly, it may be argued that having an interest in a cockpit is detrimental to public morality as it tends to bring forth idlers and gamblers, hence, violation of Section 89(2) of the LGC involves moral turpitude. While it is a form of gambling, the morality thereof or the wisdom in legalizing it is not a justiciable issue. In Magtajas v. Pryce Properties Corporation, Inc., it was held that: Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. Manila Broadcasting Co. v. NLRC (121975) As important a rule as one which considers an employee who runs for public office resigned must be written and published so as to lend certainty to its existence and definiteness to its scope. Otherwise, the impression may be fostered that the enforcement of the policy is discretionary on the part of the heads of the various offices and units of the company. Moreover, such an unwritten rule is susceptible of misinterpretation and is not likely to be taken seriously by those to whom it is addressed. Javellana v. DILG (102549) By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government. Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools except during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.

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RIGHTS AND PRIVILEGES
Right to Office: The right to office is the right to exercise the powers of the office to the exclusion of others. Waiver of Rights: No public officer or employee acting for a public officer shall be permitted to require an applicant for employment or any employee to sign any paper or document whereby such applicant for employment waives any right or rights accruing to him [Section 40, RA 2260 (Civil Service Act of 1959)]. Right to Present Grievances: Employees shall have the right to present their complaints or grievances to management and have them adjudicated as expeditiously as possible in the best interest of the agency, the government as a whole, and the employee concerned. Such complaint or grievances shall be resolved at the lowest possible level in the department or agency, as the case may, and the employee shall have the right to appeal such decision to higher authorities [Sec. 35, PD 807 (Civil Service Decree)]. Self-Organization: - The right of government employees to organize does not include the right to strike [SSSEA vs. CA (GR 85279)]. - E.O. 292, Sec. 38: All government employees, including those in government-owned or controlled corporations with original charters, can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labormanagement committees, work councils and other forms of workers’ participation schemes to achieve the same objectives. Career and Personnel Development: The Development and retention of a competent and efficient work force in the public service is a primary concern of government. It shall be the policy of the government that a continuing program of career and personnel development be established for all government employees at all levels. An integrated national plan for career and personnel development shall serve as the basis for all career and personnel development activities in the government (Sec. 28, PD 807). Security of Tenure: - The constitutional provision on security of tenure does not distinguish between a regular employee and a probationary employee. The only difference between the two employees is that the probationary employee’s termination is based on the wider ground of failure to comply with standards made known to them when they become probationary employees [CSC vs. Magnaye, Jr. (GR 183337)]. - The right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature [CSC vs. Magnaye, Jr. (GR 183337)]. - While due process may be relied upon by public officials to protect their security of tenure which, in a limited sense, is analogous to property, such fundamental right to security of

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tenure cannot be invoked against a preventive suspension order which is a preventive measure, not imposed as a penalty [The Ombudsman, Fact-Finding and Intelligence Bureau et al vs. Valeroso (GR 167828)]. Salary: GENERAL RULES:  A public officer is not entitled to compensation for services rendered under an unconstitutional statute or provision thereof. • Exception: If some other statute provides otherwise.  If no compensation is fixed by law, the public officer is assumed to have accepted the office to serve gratuitously.  After services have been rendered by a public officer, the compensation thus earned cannot be taken away by a subsequent law. However, he cannot recover salary for a period during which he performed no services.  One without legal title to office either by lawful appointment or election and qualification is not entitled to recover salary or compensation attached to the office.  One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office. Compensation not an element of public office Compensation is not indispensable to public office. It is not part of the office but merely incident thereto. It is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the services are to be rendered gratuitously. Salary, Wages, and Per Diems Defined and Distinguished Salary: time-bound Wages: service-bound Per Diem: allowance for days actually spent for special duties Salary of Public Officer Not Subject to Attachment · The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid by him, and appropriated for the payment of his debts. · Money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment because the sovereign State cannot be sued in its own courts except by express authorization by statute. Until paid over by the agent of the government to the person entitled to receive it, public funds cannot in any legal sense be part of his effects subject to attachment by legal process. (Director of Commerce and Industry v. Concepcion) Future or Unearned Salaries Cannot be Assigned The salary or emoluments in public office are not considered the proper subject of barter and sale. (22 R.C.L. 541)

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Agreements Affecting Compensation Held Void An agreement by a public officer respecting his compensation may rightfully be considered invalid as against public policy where it tends to pervert such compensation to a purpose other than that for which it was intended, and to interfere with the officer's free and unbiased judgment in relation to the duties of his office. (This is usually with reference to unperformed services and the salary or fees attached thereto.) Nitafan vs. CIR (GR L-78780) SC discarded its previous ruling in Perfecto vs. Meer and Endencia vs. David, which exempt members of the Judiciary from payment of income tax. The salaries of justices and judges are properly subject to a general income tax law applicable to all income earners and the payment of such income tax does not fall within the constitutional protection against decrease of their salaries during their continuance in office. Miranda vs. COA (GR 84613) A government official is entitled to backwages not only if he is exonerated in the administrative case but also when the suspension is unjustified. Brugada vs. the Secretary of Education (GR 142332-43) The payment of backwages during the period of suspension of a civil servant who is subsequently reinstated is proper if he is found innocent of the charges and the suspension is unjustified. Napocor vs. Olandesca (GR 171434) A public official is not entitled to any compensation if he has not rendered any service. However, where the proper penalty is reprimand, award of backwages is proper. When an employee is dismissed or suspended, it is logical that since he is barred from reporting to work, the same negates his right to bakwages. Reprimand, however, does not prevent the employee from working. The Director of the Bureau of Commerce and Industry vs. Concepcion (GR L9031) The salary due from the government to a public officer cannot, by garnishment, be seized before being paid to him and appropriated to the payment of his judgment debts. Money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment. BSP vs. COA and Valenzuela (GR 168964) Retirement benefits accruing to a public officer may not, without his consent be withheld and applied to his indebtedness to the government. These benefits cannot be withheld regardless of the employee’s monetary liability to the government. Retirement laws are liberally interpreted in favor of the retiree because the intention is to provide for the retiree’s sustenance and comfort when he is no longer capable of earning his livelihood. Compensation of Person Designated: The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation shall be

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paid out of the funds appropriated for the office or agency concerned [EO 292 Book III, Chapter 5, Section 2 (2)]

DUTIES OF PUBLIC OFFICERS
Public office is a public trust. • Public officers and employees must, at all times: be accountable to the people, serve the people with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. (Section 1, Article XI, Constitution) Kinds of Duties Discretionary Definition Ministerial

Acts which require theActs which are performed in exercise of reason ina given state of facts, in a determining when, where,prescribed manner, in and how to exercise theobedience to the mandate power of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. Phipps) be Generally, NO. Generally, YES.

Can delegated?

Exception: When the Exception: When the power to substitute /law expressly requires the delegate has been given act to be performed by the officer in person and / or prohibits such delegation When mandamus proper? is Only if the duty to doIn all cases. something has been delayed for an unreasonable period of time.

Is public officer Generally not liable Liable if duty exercised liable? Exceptions: if there iscontrary to the manner fraud or malice prescribed by law.

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Limitations in the exercise of duties Villegas vs. Subido (30 SCRA 498) Commissioner of Civil Service can only inquire in the eligibility of the person chosen to fill up a vacant position. He has no control over local officials. There is no presumption of power; and as such, there is no presumption that he is empowered to act. No authority has been conferred upon him to change the designation by the mayor. In the absence of a valid grant, Commissioner is devoid of power. Grapilon vs. Municipal Council of Carigara (GR L-12347) Where the absent mayor is on official business, the vice-mayor is not entitled to assume the office of mayor, because the absence that would authorize the vice-mayor to act as mayor is only such absence as would disable the mayor from exercising the powers and prerogative of his office.

DISCIPLINE OF PUBLIC OFFICERS
Presumption of Good Faith Official Immunity and State Immunity Liabilities 1. Executive Department 2. Legislative Department 3. Judicial Department Impeachability vs. Immunity Three-fold responsibility 1. RPC 2. Civil Code 3. Administrative Code Personal Liability Liability of Superior Officers CSC Resolution No. 99-1936 URACCS Preventive Suspension a. CSC b. Ombudsman c. LGC d. RA 3019

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Aberca vs. Ver (GR L-69866) State immunity cannot be construed as a blanket license or a roving commission untrammelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. Dayrit vs. Phil. Pharmawealth, Inc. (GR 169304) The suability of government official depends on whether the official concerned was acting within his official capacity and whether the acts in the performance of official actions will result in financial liability against the government. Since judicial review of acts alleged to have been tainted with grave abuse of discretion is guaranteed by the Constitution, it necessarily follows that it is the official concerned who should be impleaded as defendant. The defense of immunity from suit does not apply in causes of action which fo not seek to impose a charge against the State. Vinzons-Chato vs. Fortune Tobacco Corp (GR 141309) A public officer who directly or indirectly violates the Constitutional rights of another may be validly sued for damages under Art. 32 of the Civil Code even if his acts were not so tainted with bad faith. A public officer may be validly sued in his/her private capacity for acts done in the course of the performance of the functions of the office where said officer: (1) acted with malice, bad faith, or negligence, or (2) where the public officer violated a constitutional right of the plaintiff. Chavez vs. Sandiganbayan (GR 91391) - Where the petitioner exceeds his authority as Solicitor General, acts in bad faith or maliciously conspires with the PCGG Commissioners in prosecuting Enrile, a complaint for damages may be filed against him. - Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the republic. - High position in the government does not confer a licenseto prosecute or recklessly injure another. - Actions governed by Articles 19, 20, 21 and 32 of the Civil Code may be taken against public officers or private citizens alike. Salumbides vs. Office of Ombudsman (GR 180917 The electorate’s condonation of the previous administrative infractions of the re-elected official cannot be extended to that of the reappointed coterminous employee, the underlying basis of the rule being to uphold the will of the people expressed through ballot. CSC vs. Dacoycoy (GR 135805) - One is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) Appointing authority b) Recommending authority c) Chief of the bureau or office d) Person exercising immediate supervision over the appointee - Supreme Court abandoned its prior decisions holding that Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges. Hence, as an aggrieved party, CSC may appeal the decision of CA to the SC. Gloria vs. CA (GR 131012)

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There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292). Although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Garcia vs. Mojica (314 SCRA 207) A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. Rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the official’s reelection, except that it must be prior to said date. - There is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. The decision of the Ombudsman (6 month suspension) will prevail over the LGC (60day suspension) if the evidence of guilt is strong. - The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. Santiago vs. Sandiganbayan (356 SCRA 636) - It is a ministerial duty of the court to issue an order of suspension upon the determination of the validity of the information filed before it. Once the information is found sufficient in form and substance, the court is bound to issue an order of suspension. - RA 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts which he has been charged – the use of the word “office” would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused.

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TERMINATION OF OFFICIAL RELATIONS
Hold-over principle: Concept: The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. Presumption: Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same. Purpose: This rule is demanded by the “most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.” Otherwise stated, the purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. [Galarosa v. Valencia, 227 SCRA 728 (Nov. 11, 1993)] Acts Punishable under the Revised Penal Code: A. Prolonging Performance of Duties and Powers (Article 237) - Elements: 1. Offender is holding a public office; 2. The period provided by law, regulations or special provision for holding such office, has already expired; 3. He continues to exercise the duties and powers of such office. B. Abandonment of Office or Position (Article 238) - Elements: 1. Offender is a public officer; 2. He formally resigns from his position; 3. His resignation has not yet been accepted; 4. He abandons his office to the detriment of the public service. Security of Tenure in the Judiciary: No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members (Sec. 2, Article VIII Constitution). Resignation of Elective Local Officials (Sec. 82, Local Government Code): (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities: a) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities;

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b) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities; c) The sanggunian concerned, in the case of sanggunian members; and d) The city or municipal mayor, in the case of barangay officials. (b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of Interior and Local Government. (c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working days from receipt thereof. (d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations. MODES OF TERMINATING OFFICIAL RELATIONS: [ERAP – IDCF (ER4A3P Is Dying For Corrupt Filipinos)] 1. Expiration of term or tenure 2. Reaching the age limit 3. Resignation 4. Recall 5. Removal 6. Abandonment 7. Acceptance of incompatible office 8. Abolition of office 9. Prescription of the right to office 10. Impeachment 11. Death 12. Failure to assume elective office within 6 months from proclamation 13. Conviction of a crime where disqualification is an accessory penalty 14. Filing of certificate of candidacy Expiration of term or tenure Term vs. Tenure [Nueno vs. Angeles (GR L-89)] - The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. o The term of office is not affected by the hold-over. o There is no principle, law or doctrine by which the term of an office may be extended by reason of war. - The tenure represents the term during which the incumbent actually holds the office. o The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.

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A. End of Fixed Term - Upon the expiration of the officer’s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must be ipso facto terminated. B. End of pleasure where one holds office at the pleasure of the appointing authority Alba v. Evangelista President can validly terminate tenure of Vice Mayor of Roxas City as the office was created at the pleasure of the President. What is involved here is not the question of removal, or whether legal cause should precede or not that of removal. What is involved here is the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President. Fernandez v Ledesma The Charter of Basilan City provides that the President shall appoint and may remove at his discretion any of the city’s officers, including its Chief of Police, with the exception of the municipal judge, who may be removed only according to law. The legislative intent is to make continuance in office dependent upon the pleasure of the President. Congress has the power to vest such power of appointment. Further, “A public office is the right for a given period, either fixed by law or enduring at the pleasure of the creating power.” Alba v. Evangelista states that the replacement is not removal, but an expiration of tenure, which is an ordinary mode of terminating official relations. What is involved is not removal, or whether legal cause should precede such removal, but the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President. C. Loss of Confidence in Primarily Confidential Employment Hernandez v. Villegas Even officers and employees of the civil service occupying primarily confidential positions are subject to the constitutional safeguard against removal or suspension except for cause. Official and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case, their cessation from office involves no removal but merely the expiration of the term of office. Ingles v. Mutuc The statement that an officer holding a position which is primarily confidential in nature is “subject to removal at the pleasure of the appointing power” is inaccurate. Such statement (a mere obiter in the case of De los Santos v. Mallare), if detached from the context of the decision in said case, would be inconsistent with the constitutional command to the effect that “no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law,” and it is conceded that one holding in the government a primarily confidential positions is “in the Civil Service.” This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of the appointing power. It should be noted however, that when such pleasure turns into displeasure, the incumbent is not “removed” or “dismissed” from office - his “term” merely “expires”

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in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected is not and cannot be deemed “removed” or “dismissed” therefrom, upon the expiration of said term. The main difference between the former - the primarily confidential officer - and the latter is that the latter’s term is fixed or definite, whereas that of the former is not pre-fixed but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not “removed” or “dismissed” from officer - his term has merely expired. Gray v. De Vera President appointed Gray as Board secretary of the People’s Homesite and Housing Corporation but was later terminated through a board resolution due to loss of confidence. SC reversed ruling that Gray’s appointment was a permanent one. Although the President, EO 99, declared the position of secretary to the board of a government corporation “primarily confidential in nature,” it does not follow that a board secretary whose appointment was permanent may be removed from office without a formal charge specifying the ground for removal and without giving him an opportunity to be head. Such removal was illegal since there was no lawful cause for removal. By declaring that the position is primarily confidential in nature, the President intended that the position be filled by an appointee of unquestioned honesty and integrity. The act of Gray in reporting the board’s act of mismanagement and misconduct was in consonance with the honesty and integrity required for the position. Cariño v. ACCFA SC reversed termination of lawyers who were appointed as permanent employees of ACCFA. That petitioners’ positions are primarily confidential is immaterial. The Constitution merely excepts primarily confidential positions from the coverage of “the rule requiring appointments in the civil service to be made on the basis of merit and fitness as determined from the competitive exams,” but does not exempt such positions from the operation of the principle that no officer or employee in the civil service shall be removed or suspended except for cause as provided by law, which recognizes no exception. Reaching the age limit Conditions for entitlement to retirement benefits (R.A. No. 8291) a) he has rendered at least fifteen (15) years of service; b) he is at least sixty (60) years of age at the time of retirement; and c) he is not receiving a monthly pension benefit from permanent total disability. Compulsory Retirement Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least sixty-five (65) years of age with at least fifteen (15) years of service; Provided that if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations.

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Retirement benefits (1) the lump sum payment defined in RA No. 8291 payable at the time of retirement plus an old-age pension benefit equal to the basis monthly pension payable monthly for life, starting upon expiration of the give-year (5) guaranteed period covered by the lump sum; or (2) cash payment equivalent to eighteen (18) months of his basic monthly pension plus monthly pension for life payable immediately with no five-year (5) guarantee. Beronilla v GSIS The compulsory retirement of government officials and employees upon reaching the age of 65 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their work and their relations with their superiors as well as the public would impose on them. UP Board of Regents v. Auditor General A BOR resolution extended the services of a UP professor for another year. In the same year, he reached the age of 65. The Auditor General questioned the legality of the resolution arguing that the services rendered after the compulsory retirement age were illegal and that he was not entitled to compensation. SC upheld Auditor General ruling that as government employees, UP professors are compulsorily covered by the Retirement Law which creates a uniform retirement system for all members of the GSIS. Rabor v. CSC At the age of 55, Rabor was hired as a government employee at the Davao City Mayor’s Office in 1978. In 1991, he was advised to apply for retirement. He was already 68 years old with 13 years of service. He requested that his services be extended in order that he may complete the 15-year service requirement. This was denied and Rabor claimed that the doctrine enunciated in Cena v. CSC should be applied in his case. SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No. 27, s. of 1990 cited in the decision in Cena v. CSC, provides that “any request for the extension of service of compulsory retirees to complete the 15-year service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular GSIS members, and shall be granted for a period not exceeding one (1) year.” Cena further stated that the authority to grant the extension was a discretionary one vested in the head of the agency concerned. To reiterate, the head of the government agency concerned is vested with discretionary authority to allow or disallow extension of service of an employee who has reached 65 years old without completing 15 years of government service; this discretion to be exercised conformably with CSC Memo Circular No. 27, s. of 1990. Resignation

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Ortiz vs. COMELEC (GR 78957) - Petitioner's separation from government service as a result of the reorganization ordained by the then nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority. - Verily, a "courtesy resignation" cannot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional officials like whose removal from office entails an impeachment proceeding. For even if working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal rights as those in reputation and eligibility for other employment. Republic vs. Singun (GR 149356) - The final act of a resignation’s acceptance is the notice of acceptance. A public officer is not deemed resigned if there is no acceptance by the proper authority. - Until the resignation is accepted, tender or offer to resign is revocable. And the resignation is not effective where it was withdrawn before it was accepted. Estrada vs. Desierto (GR 146710-15) Resignation is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. Gamboa vs. CA (GR L-38068) Acceptance is necessary for resignation of a public officer to be operative and effective. Sanguniang Bayan of San Andres, Catanduanes vs. CA (GR 118883) Resignation is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: a. an intention to relinquish a part of the term; b. an act of relinquishment; and c. an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code. Recall

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* The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987 Constitution). * Procedure for recall is provided in Sections 69-75 of the Local Government Code. Garcia v. COMELEC SC upheld initiation of recall through the Preparatory Recall Assembly. Recall is a mode of removal of a public officer by the people before the end of his term of office. The people’s prerogative to remove a public officer is an incident to their sovereign power, and in the absence of constitutional restraint, the power is implied in all government operations. There are two reasons why a Preparatory Recall Assembly is allowed: (1) to diminish the difficulty of initiating recall through direct action of the people; (2) to cut down on expenses. Moreover, the Constitution does not provide for any particularly mode of initiating recall elections. Initiation by the Preparatory Recall Assembly may be considered as initiation of recall by the people, although done indirectly through representatives. In any event, the composition of the Preparatory Recall Assembly is politically neutral, so loss of confidence cannot be said to be inspired by difference in political party affiliation. Santos vs. Macaraig (GR 94070) Petitioner’s actuation constituted neither dishonesty or misconduct, hence, the reprimand that was meted to her was unmerited. However, as holder of a primarily confidential position, petitioner’s foreign assignment was at the pleasure of the President. The recall order terminating her tour of duty in Geneva and returning her to the home office was merely a change of post or transfer of location of work. The appointing power, the President, has the right of choice which she may exercise freely, according to her best lights. Removal De Los Santos vs. Mallare (GR L-3881) The "merit system" in government service will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law. This means that there should be bona fide reasons and action may be taken only after the employee shall have been given a fair hearing. This affords the public employees reasonable security of tenure. Sta. Maria vs. Lopez (GR L-30773; 18 February 1970) A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to "lure the employee away from his permanent position", cannot be done without the employee's consent. For that would constitute removal from office. When an officer is reduced in rank or grade and suffers a big cut in pay, he is demoted; and when he is demoted, he is removed from office. But a demotion means something more than a reduction in salary: there may be a demotion in the type of position though the salary may remain the same. A transfer that aims by indirect method to terminate services or to force resignation also is removal.

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Abandonment * A public office may become vacant ipso facto by abandonment and non-user. When an office is once abandoned, the former incumbent cannot legally repossess it even by forcible re-occupancy. * Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. Moreover, the officer should manifest a clear intention to abandon the office and its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient. Sangguniang Bayan of San Andres, Catanduanes v. CA (284 SCRA 276) Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy. Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officer’s actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Therefore, there are two essential elements of abandonment; first, an intention to abandon and, second, an overt or “external” act by which the intention is carried into effect. Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers’ voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an “acting” judge-atlarge. The situation is one wherein he cannot legally hold two offices of similar category at the same time. Zandueta v. Dela Costa When a public official accepts an appointment to an office newly created or reorganized by law which new office is incompatible with his former office, qualifies for the position, takes the necessary oath, and executes acts inherent in the newly created office, he will be considered to have abandoned the office he

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was occupying by virtue of his former appointment and he cannot question the constitutionality of the law by virtue of which he was appointed. Floresca v. Quetulio Floresca’s refusal to assume his pre-war post as Justice of the Peace and his subsequent acceptance of other employments without any pretense on his part that he simultaneously continued to perform the functions of the Justice of the Peace, clearly show deliberate abandonment of the latter office. Ortiz v. De Guzman Ortiz allowed three years to elapse since he was ousted from office without having taken any steps to reclaim his former office. SC held that he cannot ask for reinstatement. A public employee who voluntarily abandons his office for a long time is estopped from asking for reinstatement. In order to constitute an abandonment of office, it must be total, and under such circumstances as to clearly indicate an absolute relinquishment. Temporary absence is not sufficient where no statute fixes the period beyond which the absence must continue. In all cases, the officer should manifest a clear intention to abandon the office and its duties. Yet, this intention may be inferred from his conduct. If his acts and statements are such as to clearly indicate absolute relinquishment, a vacancy will be thereby created and no judicial determination is necessary. When once abandoned, the former incumbent cannot legally repossess the office. Madrid v. Auditor General One claiming the right to a position in the civil service must institute the proper proceeding within one year from the date of separation, otherwise he is deemed to have abandoned his office or even acquiesced or consented to his removal, and thus is not entitled to seek reinstatement. The rationale is to inform the Government of the rightful holder of the office and to prevent payment of salary to both claimants. Magana v. Auditor General Having accepted the benefits accruing from the abolition of his office, he is estopped from questioning its validity or deemed to have waived the right to contest the same. Villegas v. Subido Villegas did not abandon his office as mayor of the City of Manila when he assumed the position of Director of NAWASA because he had been merely designated in an acting capacity and was not appointed to the said position. Tan v. Gimenez The fact that, during the time his appeal was pending and was thus deprived of his office and salary, an employee sought employment in another branch of the government does not constitute abandonment of his former position. Acceptance of incompatible office * He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to

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the first does not affect the rule. And even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected. * If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition. * Incompatibility of offices exists where: a) There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. b) One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated. c) The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices. Exceptions to the Rule on Holding of Incompatible Offices a. Where the officer cannot vacate the first office by his own act, upon the principle that he will not be permitted to thus do indirectly what he could not do directly, as where the law requires the approval of the provincial board before a municipal official can resign. b. First office is held under a different government from that which conferred the second. c. Officer is expressly authorized by law to accept another office. d. Second office is temporary. Canonizado vs. Aguirre (GR 133132) Effect of Acceptance of an Incompatible Office to a Claim for Reinstatement: It is a well-settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one person’s performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment of any PNP personnel, whereas the NAPOLCOM has the power of control and supervision over the PNP. However, the rule on incompatibility of duties will not apply to the case at bar because at no point did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first office by

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the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. x x x Thus, to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently. Canonizado was compelled to leave his position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent position by a desire to continue serving the country, in whatever capacity. Surely, this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and one’s family, either of which are sufficient to justify Canonizado’s acceptance of the position of Inspector General. A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP. Abolition of office * As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. * To consider an office abolished, there must have been an intention to do away with it wholly and permanently. * Abolition vs. Removal: Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with the abolished office as an accessory following the principal. Busacay v. Buenaventura Busacay was laid off as toll collector when the bridge was destroyed. However, the bridge was later reconstructed and opened to the public with a new collector being appointed. Busacay was ordered reinstated by the SC. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. In the case at bar, there was never any thought of not rebuilding the bridge. The collapse of the bridge did not work to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-opening, the collector’s right to the position was similarly and automatically restored.

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Manalang v. Quitoriano The National Employment Service was established by R.A. No. 761 in lieu of the Placement Bureau. Quitoriano was appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manalang who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. A removal implies that the office still exists. R.A. No. 761, creating NES, expressly abolished the Placement Bureau and, by implication, the office of the Director of the Placement Bureau. Had Congress intended the NES to be a mere enlargement of the Placement Bureau, it would have directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commissioner and thus could not have been removed therefrom. Abolition Must Be in Good Faith As well settled to the rule that the abolition of an office does not amount to an illegal removal or separation of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law. Mendoza vs. Quisumbing (GR 78053) Facts: After the February 1986 political upheaval, the political leadership decided to proclaim the formation of a revolutionary government headed by President Corazon C. Aquino. Immediately after the President was sworn into office, she issued Proclamation No. 1 declaring as policy the reorganization of the government. Thereafter, the President issued Executive Orders directing the reorganization of various different departments of the government which affected their employees, among those affected was Francisco Mendoza. Issues: (1) Whether or not the various reorganization programs in different agencies and/or departments of the government implementing the orders issued pursuant to the President’s proclamations were valid, and (2) Whether or not the letter-order of the then Secretary Quisumbing which terminated his employment as Schools Division Superintendent of Surigao City was valid. Held: There is no dispute over the authority to carry out a valid reorganization in any branch or agency of Government. Pursuant to the Provisional Constitution and the various Executive Orders issued by the President when she was the sole lawmaking authority, the different Departments of Government were authorized to carry on reorganization programs. The grant of authority, however, was accompanied by guidelines and limitations. It was never intended that department and agency heads would be vested with untrammelled and automatic authority to dismiss the millions of government workers on the stroke of a pen and with the same sweeping power determine under their sole discretion who would be appointed or reappointed to the vacant positions. Reorganization was mandated by the People to remove "all iniquitous vestiges of the previous regime." Under this mandate, the mass of lowly employees in the bottom rungs of the governmental hierarchy, ordinarily constant and apolitical, were not intended to be summarily dismissed unless basic reasons outweighed or overcame the rights to their jobs built up so laboriously over the years. The promotion of simplicity, economy and efficiency is the usual standards which enables a delegation of powers in reorganization statutes to pass the test of validity. Because the heads of departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and progressive ideas on

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reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two Constitutions and the statutes governing reorganization, the said reorganizations (in these consolidated petitions) were set aside. The letter-order was also set aside, and the Secretary of DECS was ordered to restore petitioner Mendoza to his position as Schools Division Superintendent of Surigao City without loss; of seniority rights and with back salaries reckoned from the date of his termination. Dario vs. Mison (GR 81954) The present Constitution does not provide for automatic vacancies. Removals “not for cause” must be resulting from reorganization; and must pass the test of good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition done is void ab initio. There is an invalid abolition as where there is merely a change of nomenclature of positions or where claims of economy are belied by the existence of ample funds.” Briones v. Osmeña Briones and Rosagaran were employees in the Office of the City Mayor since 1937 and 1940, respectively, In 1956, the City created 35 new positions and abolished 32, of which the positions of Briones and Rosagaran were included. Consequently, the two were terminated. SC held that the termination was not valid. While abolition does not imply removal of the incumbent, this rule is true only where the abolition is made in good faith. In other words, the right to abolish cannot be used to discharge employees in violation of the Civil Service law nor can it be exercised for personal or political reasons. Facundo v. Pabalan There is no law which expressly authorizes a municipal council to abolish the positions it has created. However, the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules providing otherwise. But the office must be abolished in good faith. Cruz v. Primicias As well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void. In the case at bar, while 22 positions were abolished, 28 new positions with higher salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon their pleasure and discretion.

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Prescription of the right to office Unabia v. City Mayor No reinstatement is possible in the case at bar. Even if the removal was void for lack of cause, Unabia filed his petition for reinstatement with the CFI after a delay of one year and fifteen days. Any person claiming a right to a position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. Reason is public policy and convenience, stability in the public service. Impeachment * Who are subject to impeachment:  The President  the Vice-President  the Members of the Supreme Court  the Members of the Constitutional  Commissions  Ombudsman * Reasons for impeachment  culpable violation of the Constitution  treason  bribery  graft and corruption  other high crimes  betrayal of public trust. * All other public officers and employees may be removed from office as provided by law, but not by impeachment * Impeachment Process (Section 3, Art. XI): 7. Who may initiate: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 8. Verified Complaint  A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof  Verified Complaint shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter.  The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution.  The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. 9. Number of Votes necessary

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 A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution.  The vote of each Member shall be recorded. 10. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. 11. No impeachment proceedings shall be initiated against the same official more than once within a period of one year. 12. The Senate shall have the sole power to try and decide all cases of impeachment. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate.  When sitting for that purpose, the Senators shall be on oath or affirmation.  When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. Failure to assume elective office within 6 months from proclamation Under Sec. 11, Omnibus Election Code (BP 881): The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. Filing of certificate of candidacy * Sec. 66 of the Omnibus Election Code states that any person holding appointive public offices or positions, including active AFP members, is considered ipso facto resigned from office by the mere filing of certificate of candidacy. * Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing, save a new election or appointment, can restore the ousted official. * Note: The following provisions have been repealed by Sec. 14 of R.A. 9006 (Fair Election Act of 2001): i. Sec. 67 of B.P. 881 which states that any elective official, whether national or local, running for any office OTHER than one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto resigned from office by the mere filing of a certificate of candidacy. ii. The first proviso of Sec. 11 of R.A. 8436 which states that "Any elective official, running for any officer other than one which he is holding in a permanent capacity, except for President and Vice-

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President, shall be considered ipso facto resigned upon the start of the campaign period."