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A. General Principles I. Concept and Application
2) It is a responsibility and not a right. (Morfe v. Mutuc, 1968)
Must be created either by law or by authority of law; a. the Constitution, b. the Legislature, or c. Municipality or other body through authority conferred by the Legislature; Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public; There are certain GOCCs which, though created by law, are not delegated with a portion of the sovereign powers of the government (those that are purely proprietary in nature), and thus may not be considered as a Public Office. Powers conferred and duties imposed must be defined, directly or impliedly; Duties must be performed independently and without the control of a superior power other than the law, UNLESS for duties of an inferior or subordinate office that created or authorized by the Legislature and which inferior or subordinate office is placed under the general control of a superior office or body; Defined as unhindered performance. Must have permanence and continuity Note: The elements of permanence and continuity are dispensable. On the dispensability of the element of permanence: an example is the public office of the Board of Canvassers, yet its duties are only for a limited period of time. On the dispensability of the element of continuance: Mechem in one case states that the most important characteristics in characterizing a position as a public office is the DELEGATION to the individual of
Used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. [Fernandez v. Sto. Tomas (1995)] A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Mechem)
A public office is created to effect the end for which government has been instituted which is the common good; not profit, honor, or private interest of any person, family or class of persons (63 A Am Jur 2d 667)
1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti) Philippine Constitution, Art. XI Sec. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.
some of the sovereign functions of government.
Public Office v. Public Employment
Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. Public employment as a position lacks either one or more of the foregoing elements of a public office. (Bernard v. Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9]) o created by contract rather than by force of law
GENERAL RULE: A public office, being a mere privilege given by the state, does not vest any rights in the holder of the office. This rule applies when the law is clear. EXCEPTION: When the law is vague, the person‟s holding of the office is protected and he should not be deprived of his office.
Public Office is not Property
A public office is not the property of the public officer within the meaning of the due process clause of the non-impairment of the obligation of contract clause of the Constitution. Exceptions: (1) In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office; (2) In an action for recovery of compensation accruing by virtue of the public office. Cornejo v. Gabriel Due process is violated only if an office is considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office. Every officer accepts office pursuant to law and holds office as a trust for the people whom he represents.
Public Office v. Public Contract
Public Office Creation Incident of sovereignty Public Contract Originates from will of contracting parties Obligations imposed only upon the persons who entered into the contract
Carrying out of sovereign as well as governmental functions affecting even persons not bound by the contract Tenure, duration, continuity Duties that are generally continuing and permanent The law
Abeja v. Tanada Limited duration Duties are very specific to the contract Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit.
Subject Matter Scope
Where duties are defined
Creation of Public Office
Modes by the Constitution by statute / law
No vested right to public office
(2) Where the Constitution gives the people the power to modify or abolish the office. (i. His duties involve the exercise of discretion in the performance of the functions of the government. or appointment by competent authority. 1987 Constitution] II. (no abandonment) [Zandueta v. Except when the public official is constrained to accept because the nonacceptance of the new appointment would affect public interest. (See Sec. [UST v. Mature studies and deliberations but may be Definition: Board System Collegial body in formulating polices and implementing Administrative Code. esp. Board of Tax Appeals (1953)] Estoppel to deny existence of office Q: When is a public officer estopped from denying that he has occupied a public office? A: When he has acted as a public officer. 2 (14). VI. The President„s authority to "reorganize within one year the different executive departments. or body authorized to exercise . 30. De La Costa (1938)] Delegation of power to create public office Q: What is the effect where an office is created pursuant to illegally delegated powers? A: The office would have no existence. Exceptions: where the offices are created by the Constitution. Q: Is Abandonment equivalent to Abolition? A: When a public official voluntarily accepts an appointment to an office newly created by law -. Sec. by a tribunal or body to which the power to create the office has been delegated programs. where the Legislature delegates such power.O. this is generally a legislative function) EXCEPTIONS: (1) Where the Constitution prohibits such modification / abolition.. 292) Methods of Organizing Public Offices Method Single-Head Composition One head assisted by subordinates. Note: No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.which new office is incompatible with the former -. Modification and Abolition GENERAL RULE: The power to create an office includes the power to modify or abolish it. Efficiency Swifter decision and actions but may sometimes be hastily made. and are not of a merely clerical or manual nature.(14) The term officer includes any government employee. popular election. bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. Public Officer A public officer is one who performs public functions / duties of government by virtue of direct provision of law.e. where he has received public monies by virtue of his office.he will be considered to have abandoned his former office. agent. [Art. E. Scope and Extent of Power of legislature GENERAL RULE: The creation of a public office is primarily a legislative function. 2. slow in responding to issues and problems. sec.
234. III. Appointment Definition Extent of Powers Security of tenure? Is prior/1st Limited No …a 2nd designated . II. shall be deemed to be a public officer. Concession forest guards (Martha Lumber Mill v. or a fine not exceeding P 1. Lagradante).000. Selection or designation by popular vote. agent or subordinate official of any rank or class.governmental power in performing particular acts or functions. Designatio n Imposition of additional duties upon existing office Appointmen t Appointing authority selects an individual who will occupy a certain public office Comprehensiv e Yes …a 2nd appointive May a person be compelled to accept a public office? GENERAL RULE: NO. 1987 Const. v. Classification of Public Office and Public Officers Creation Public Body Served Department of government to which their functions pertain Nature of Functions Exercise of Judgment or Discretion Legality of Title to office Compensation Constitutional Statutory National Local Legislative Executive Judicial Civil Military Quasi-judicial Ministerial De Jure De Facto Lucrative Honorary Who are not considered public officers? · Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co.00. RPC. any person who.). under conditions provided by law. Company cashier of a private corporation owned by the government (Tanchoco v. shall take part in the performance of public functions in the Government of the Philippine Islands. popular election or appointment by competent authority. 3) When a person who. 2) to render personal military or civil service (Sec. 4. by direct provision of the law. CIR). or shall perform in said Government or in any of its branches public duties as an employee. Revised Penal Code Art 203. EXCEPTIONS: 1) When citizens are required. Modes of Acquiring Title to Public Office Modes of Commencing Official Relation 1. having been elected by popular election to a public office. or both) 2. Art. Who are public officers—for the purpose of applying the provisions of this and the preceding titles of this book. Note: the penalty shall be either arresto mayor. refuses without legal motive to be sworn in or to discharge the duties of said office (Art. Election a. GSIS) · · B.
Quimbo (1983)] The power to appoint is intrinsically an executive act involving the exercise of discretion. Appointee accepts. b. Appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law. The permanent appointee: must be qualified must be eligible Designation v.g. Commission issues appointment. For the appointment to be valid. ii. or discretion in choosing appointees. 3. Note: Conditional appointments are not permanent. e. Appointing authority appoints. Note: If a person is appointed to the career service of the Civil Service. Commission issues appointment. 4. sans the essential element of choice. b. Succession by operation of law. Such supposed power of appointment. Appointment Definition Designation Imposition of Appointment Selection of an . [Marohombsar v. 1. Paredes (1921)] The President„s power to appoint under the Constitution should necessarily have a reasonable measure of freedom. President nominates. iii. [Concepcion v. the Civil Service Commission must bestow attestation. an “acting” appointment is a temporary appointment and revocable in character. Temporary i. the President is precluded from exercising his discretion to choose whom to appoint. Drilon (1993)] is constitutionally guaranteed security of tenure (Duration) until lawful termination. Steps in Appointment Process For Appointments requiring confirmation Regular Appointments (NCIA) 1. Alonto (1991)] iv. an acting appointment. Ad-Interim Appointments (NIAC) 1. 3. Commission on Appointments confirms. 3. Direct provision of law. the position must be vacant [Castin v. Political. Appointee accepts. Vacancy for Validity. the temporary appointee NEED NOT be qualified or eligible.office abandone d when… position is assumed? NO position is assumed? Usually YES ii. CA (1992)] II. 2. Permanent i. Commission on Appointments confirms. Cruz (1960)] Where only one can qualify for the posts in question. [Cuyegkeng v. 2. Others: a. 3. latitude. 2. 4. iii. A temporary appointee is like a designated officer ¡V they: occupy a position in an acting capacity and do not enjoy security of tenure. is no power at all and goes against the very nature of appointment itself. [Sevilla v. President nominates. (No Security of Tenure) revocable at will: just cause or valid investigation UNNECESSARY. Classification of Appointments a. Appointee accepts. [Flores v. For Appointments Not Requiring Confirmation (AIA) 1. ex-officio officers C. Modes and Kinds of Appointment I. Commission issues appointment.
o Where the palpable excess of authority or abuse of discretion in .additional duties upon an existing office Extent of Powers Security of tenure? When deemed abandonment of prior office Limited No. the only condition being that the appointee should possess the qualifications required by law. before confirmation by the Commission on Appointments. use Mandamus. Sec. IV. 16. Other public ministers and consuls.) Heads of the executive departments. or at least sufficient. Who can the President appoint WITHOUT CA‟s approval? All other officers of the government whose appointments are not otherwise provided for by law. provided they are qualified and eligible. Other officers whose appointments are vested in him by the Constitution. Judges of lower courts. Sec. Their position most favorably determines who can best fulfill the functions of a vacated office. The appointing authority should be allowed the choice of men of his confidence. IX-D. Ad interim: made while Congress is not in session. [Lapinid v. IX-B. Members of the Supreme Court. UNLESS the law speaks in the most mandatory and peremptory tone. 1 (2) for COMELEC. Sec. Assumption of a designated position is not deemed abandonment of the 1st position individual to occupy a certain public office by one authorized by law to make such selection Comprehensive Yes. Assumption of a 2nd appointive position is usually deemed abandonment of the first office. Note: When abused. Those whom he may be authorized by law to appoint. Abeleda (1968)] Discretionary Act. Presumed. immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. primarily the department heads should be entrusted with plenary. It must be performed by the officer in whom it is vested. [Reyes v. 1987 Const. Ambassadors. Administrators of public officers. including Constitutional Commissioners (Art. This is a permanent appointment and it being subject to confirmation does not alter its permanent character. Art. 1 (2) for COA). Ombudsman and his deputies Kinds of Presidential Appointments Appointment is an essentially discretionary power. Officers of the armed forces from the rank of colonel or naval captain. III. and continues until the end of the term. VII. Regular: made by the President while Congress is in session after the nomination is confirmed by the Commission of Appointments. IX-C. There should always be full recognition of the wide scope of a discretionary authority. Art. Presidential Appointees Discretion of Appointing Official Who can be nominated and appointed only WITH the Commission on Appointments¡¦ consent? (Art. discretion. 1 (2) for CSC. Sec. CSC (1991)] Promotion of “next-in-rank” career officer is not Mandatory. considering all the circumstances.
mandamus will lie to compel the appointing authority to issue said appointments. It cannot be taken away EXCEPT for cause. Qualification: Where the assent. the constitutional criteria are exclusive. VII. (2) When there is fraud on the part of the appointee (Mitra v. Qualification generally refers to the endowment / act which a person must do before he can occupy a public office. Omnibus Rules). Judges-at-large of First Instance or Cadastral Judges to . Effects of a Complete. (Rule V. Where the Constitution establishes specific eligibility requirements for a particular constitutional office. [Gesolgon v.refusing to issue promotional appointment would lead to manifest injustice. (Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power. Sec. refers to the endowment / requirement / accomplishment that fits one for a public office. (3) Midnight appointments A completed appointment vests a legal right. 10. Power to Prescribe Qualifications GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office. Q: What legislative enactments are tantamount to legislative appointments? A: Extensions of the terms of office of the incumbents. Subido). V. Congress cannot impose conditions of eligibility inconsistent with constitutional provisions. is irrevocable and not subject to reconsideration. and with previous notice and hearing (due process). Midnight appointments A President or Acting President is prohibited from making appointments 2 months immediately before the next presidential elections and up to the end of his term. Subido). which provided that the President could designate Judges of First Instance. Eligibility and Qualification Requirements Eligibility. Final and Irrevocable Appointment GENERAL RULE: An appointment. Exceptions: (1) When the appointment is an absolute nullity (Mitra v. once made. The qualification must be germane to the position ("reasonable relation" rule). Sec. or approval of some other officer or body is needed before the appointment may be issue and be deemed complete. (Art. Lacson (1961)] D. and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications. subject to the following restrictions: Congress cannot exceed its constitutional powers.) o Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. 1987 Const. The People's Court Act. 15. Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment. VI. Effectivity of Appointment Q: When does an appointment take effect? o A: Immediately upon its issuance by the appointing authority. confirmation.). which is the term usually used in reference to the Civil Service Law.
Constitution) Vice President (Sec. Constitution) · Natural-born citizen · 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) Congressmen (Sec. (Vargas v. probity and independence) e) Civil Service Commissioners (Sec. Constitution) · Natural-born citizen · 40 years old on day of election · resident of the Philippines for at least 10 yrs immediately preceding election day b) Senator (Sec. e. Rilloraza). Where the Constitution or law is silent: There are 2 views: (1) qualification must be at the time of commencement of term or induction into office. VI. IXB. The right to public office should be strictly construed against ineligibility. sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice. A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Art. Once the qualifications are lost. Eligibility is Presumed IN FAVOR of one who has been elected or appointed to public office. Drilon). a) President (Sec. VII. 26) Qualifications usually prescribed . Art. 1 . 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 f) COMELEC Comm. Constitution) · Natural-born citizen · 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 d) Supreme Court Justice · Natural born citizen · at least 40 years old · 15 years or more a judge or engaged in law practice · of proven CIPI (competence. Quitoriano). 3. Monsod) Time of Possession of Qualifications Q: When must the qualifications be possessed? A: Where the time is specified by the Constitution or law: o At the time specified. the incumbent Mayor of Olongapo City (Flores v. Cruz) . VI. integrity. Medical Association as one of the qualifications for appointment. 6. IXC) · Natural-born citizen · 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. and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list (Cuyegkeng v. Art. and must exist throughout the holding of the public office. VI. (Sec. Art. A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created (contemplated in Manalang v. 1. A proviso which limits the choices of the appointing authority to only one eligible. Art. then the public officer forfeits the office. 2. 3. Art.g. (2) qualification / eligibility must exist at the time of the election or appointment * Eligibility is a continuing nature. (De Leon.
Rule IV. (Sec. 1987 Const. EO 292) · A statement of the minimum qualifications of a position which shall include education. (3) Commission on Appointments. Whenever necessary. The purpose of the citizenship requirement is to ensure that no alien. 17. and as aid in the inspection and audit of the agencies' personnel work programs (ibid). (Art. III. (Sec. in determining training needs. Shall be administered in such manner as to continually provide incentives to officers · Political Qualifications for an Office GENERAL RULE: Political qualifications are not required for public office. and physical characteristics and personality traits required by the job. [Maguera v. and maintenance shall be the responsibility of the department / agency. Omnibus Rules). such qualification standards shall serve as the basis for the determination by the appointing authority of the degree of qualifications of an officer or employee (ibid). 1987 Constitution) and employees towards professional growth and foster the career system in the government service (ibid). Poor people should also be allowed to be elected to public office because social justice presupposes equal opportunity for both rich and poor. VI. (4) Vacancies in the Sanggunian (Sec. (Sec. (2) Party-list representation. Book V. · · · . civil service eligibility. · It shall be the responsibility of the departments and agencies to establish. 5. COMELEC (1965)] Citizenship Aliens not eligible for public office. 7. with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office (ibid). administer and maintain the qualification standards on a continuing basis as an incentive to career advancement. 1. Sec. Rule IV. the CSC shall provide technical assistance to departments and agencies in the development of their qualification standards. training. Omnibus Rules) With respect to a particular position.). (Sec. civil service eligibility. Borra and Aurea v. experience. 45. 22. training and experience. Rule IV. Omnibus Rules) Shall be established for all positions in the 1st and 2nd levels (Sec. Shall be used as basis for civil service examinations for positions in the career service. Sec. · · Qualification Standards and Requirements under the Civil Service Law Qualification Standards: · Express the minimum requirements for a class of positions in terms of education . Local Government Code) No Property Qualifications · Since sovereignty resides in the people. and other qualities required for successful performance. administration. Omnibus Rules) Their establishment. 2. Rule IV.g) COA Commissioners · Natural-born citizen · 35 years old at time of appointment · CPA with >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 Religious Test or Qualification · No religious test shall be required for the exercise of civil or political rights. in the adjudication of protested appointments. 5. it is necessarily implied that the right to vote and to be voted should not be dependent upon a candidate„s wealth. as guides in appointment and other personnel actions. Exceptions: (1) Membership in the electoral tribunals of either the House of Representatives or Senate (Art. physical fitness.
36. (Art. Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications.e. no person owing allegiance to another nation. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. 6) 2..i. IX-B Sec 7 (2)) Note: There is no violation when another office is held by a public officer in an ex officio capacity (where one can„t receive compensation or other honoraria anyway). the Members of the Cabinet and their deputies or assistants Disqualifications shall not hold any other office or employment during their tenure. COA) year after such election. COMELEC (1996)] Effect of removal of qualifications during the term Q: What happens if the qualification is lost which the officer is holding office? A: The officer must be terminated. Vice President. Unless otherwise allowed by law or his position„s primary functions (Art. 36. Sec. [Frivaldo v. IX-B Sec. Effect of pardon upon the disqualification to hold public office GENERAL RULE: A pardon shall not work the restoration of the right to hold public office. (Art. 7(1)) 3.e. General Constitutional Disqualifications 1. Chairman. Revised Penal Code) Exceptions: (1) Where such right to hold public office is expressly restored by the terms of the pardon (Art. including government -owned or -controlled corporations or their subsidiaries Effect: or else he forfeits his seat Shall also not be appointed to any office when such was created or its emoluments were increased during his term. provided that the prescribed disqualifications do not violate the Constitution. UNLESS otherwise provided in the Constitution. Sec 13) shall not be designated to any agency performing quasijudicial or E. (Art. VII. COA (2004)] Public Officer The President. shall govern our people and country or a unit of territory thereof. as provided by law and as required by the primary functions of his office. 13) may not hold during his term any other office or employment in the Government. (Art. Losing candidates cannot be appointed to any governmental office within one Senator or Member of the House of Representatives Members of the Supreme Court and other courts established by law . or any subdivision. disqualified from holding such office). VI. Disabilities and Inhibitions of Public Officers Disqualifications to Hold Public Office IN GENERAL: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public office are ineligible (i. agency or instrumentality thereof. Appointive officials shall not hold any other governmental position. RPC). [ National Amnesty Commission v. (2) When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. IX-B Sec.
Sec. with his or her official functions. 8. Sec. IX-D. Section 7 of RA 6713 also generally provides for the prohibited acts and transactions of public officials and employees. Art XI. the practice will not conflict. XI. Art. Representative = 3 consecutive terms d. Sec. the Ombudsman and his Deputies shall not hold any other office or employment [during their tenure]. (Art. 1. manage. the private practice is authorized by the Constitution or by the law. consultant. Mental or physical incapacity 2. As an exception. 6. trustee or nominee in any private enterprise regulated. IX-C. (Art. 8. a public official or employee can engage in the practice of his or her profession under the following conditions: first. or accept employment as officer employee. Senator = 2 consecutive terms c. control. directly or indirectly. 1. X. VIII. 2) (Art. Art. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. without reappointment (Sec. VIII. 8) are appointed to 7-year term. Holding of office in the private sector. broker. Sec. o recommending authority. 11) shall not be appointed during President„s tenure as Members of the Constitutional Commissions. Removal or suspension from office: not presumed -> non-imposable when such ineligibility is not constitutional or statutory declared. o chief of the bureau office. Previous tenure of office: for example. Constitution) 7. . Sec. Art. supervised or licensed by their office unless expressly allowed by law. an appointed Ombudsman is absolutely disqualified for reappointment (Article XI. including governmentowned-or -controlled corporations.administrative functions. Relationship with the appointing power General Rule on Nepotism: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of: o appointing authority. the Ombudsman and his Deputies The President„s spouse and relatives by consanguinity or affinity within the fourth civil degree Other Disqualifications 1. Sec. Undersecretaries. Sec. Art. Impeachment 4. Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. Elective local officials = 3 consecutive terms (Sec. Sec. Section 7 (b)(1)of RA 6713 considers unlawful for public officials and employees during their incumbency to own. any pecuniary benefit by virtue of their holding of dual positions. 1(2) of Arts. XI. or o person exercising immediate supervision over the appointee Members of Constitutional Commissions. and to prevent individuals from deriving. agent. 9. C. chairmen or heads of bureaus or offices. and second. 13) 5. or tend to conflict. or the Office of the Ombudsman. 12) Members of the Constitutional Commission Ombudsman and his Deputies Members of Constitutional Commissions. (Art. Vice-President = 2 consecutive terms b. Sec. or as Secretaries. Consecutive terms limit: a. 8) must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IXB. Constitution). counsel. Holding more than one office: to prevent offices of public trust from accumulating in a single person. D. IXA. 1. 3. IX-B.
Removed from office as a result of an administrative case. Power of Supervision o Supervisory power is the power of mere oversight over an inferior body which does not include any restraining authority over such body. but he himself does not lay down such rules. Powers and Duties of Public Officers Definition Discretionary Acts which require the exercise of reason in determining when. o A supervising officer merely sees to it that the rules are followed. including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter. Exception: When the law As to the Relationship of the Officer to his subordinates a. Liable if duty exercised contrary to the manner prescribed by law. NO. in obedience to the mandate of legal authority. Relative: related within the third degree of either consanguinity or of affinity. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment. Dual citizenship. and how to exercise the power Ministerial Acts which are performed in a given state of facts. YES. Power of Control o It implies the power of an officer to manage. in a prescribed manner. they create such offices and agencies as they deem to be desirable for the administration of the public Can be delegated? Generally. c. Phipps) Generally. Exception: When the power to . Source of Powers and Authority Under our political system. Generally not liable Exceptions: if there is fraud or malice expressly requires the act to be performed by the officer in person and / or prohibits such delegation In all cases. F. nor does he have the discretion to modify or replace them. Directly or indirectly through their chosen representatives. within 2 years after serving sentence. direct or govern. Under the Local Government Code (sec. Convicted by final judgment for violating the oath of allegiance to the Republic. Exceptions to rule on nepotism: o persons employed in a confidential capacity o teachers o physicians o members of the Armed Forces of the Philippines substitute / delegate has been given 10. where. b. 40) a. When is mandamus proper? Is public officer liable? Only if the duty to do something has been delayed for an unreasonable period of time. without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. d. the source of governmental authority is found in the people. b.
must find its source in some provision of the public law. Transparency of transactions and access to information Duties of Public Officers 1. It is the duty of every person having the requisite qualifications. their assets. What they do suffers from a fatal infirmity. One who accepts a public office does so with the burden. The degree of care required in selecting subordinates must depend upon the nature of the work to be performed and the circumstances of each case. when elected or appointed to a public office. f. As a general rule. 2. d. functions and declare in what manner and by what persons they shall be exercised. Ethical duties Every public officer is bound to perform the duties of his office honestly. The theory is that the public has the right to command the services of any citizen in any official position which it may designate. to accept it. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties. measured by the Constitution or the law under which he was elected or appointed. a public officer must obey a law found on the statute books until its constitutionality is judicially passed upon in a proper proceeding. they are devoid of power. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office. Duties as Trustees for the Public a. There must be a delegation of such authority. then. b. The right to be a public officer. As to outside activities: It is the duty of public officers to refrain from outside activities which interfere with the proper discharge of their duties 2. [Villegas v. To accept and continue in office. e. To accept the burden of office. Protection from publication commenting on his fitness and the like the mere fact that one occupies a public office does not deprive him of . Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. in such a manner as to be above suspicion of irregularities. 3. Subido (1969)] particularly where rights of individuals may be jeopardized by his neglect. The rights of one elected or appointed to office are. G. and to act primarily for the benefit of the public. In the absence of a valid grant. As to choice and supervision of subordinates It is the duty of a public officer having an appointing power to make the best available appointment. and a public officer has no power to vary or waive any statutory law. or to exercise the powers and authority of a public office. in general. As to diligence and care. faithfully and to the best of his ability. Rights incident to public office. The government itself is merely an agency through which the will of the state is expressed and enforced. Rights of Public Officers 1. As such there is no presumption that they are empowered to act. c. and the public has the right to know. net worth and financial and business interests including those of their spouses and of unmarried children under 18 years of age living in their household. either express or implied. Rights as a citizen. liabilities. To obey the law It is the duty of an officer to obey the general laws and the laws which prescribe the duties of his office. Duty to make public disclosure of statements of assets and liabilities Public officials and employees have an obligation under the Code of Conduct and Ethical Standards for Public Officials and Employees to accomplish and submit declarations under oath of. and is considered as accepting its burdens and obligations with its benefits.
a public officer is. attachment or order of execution. The power to fix the compensation of public officers is not inherently and exclusively legislative in character. 2005) . The salary of a public officer may not. it may delegate the power to other government bodies or officers. appropriated for the payment of his debts. Burgos. the official shall. Hence. d. c. be held liable civilly to reimburse the injured party o Criminal Liability: if he law has attached a penal sanction. suspension or removal from office. (De Leon. be seized before being paid to him and. The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. as is accorded to the ordinary citizen. Engaging in certain political and business activities a. 3. him not by force of any contract but because the law attaches it to the office. H. by garnishment. the officer may be punished criminally o Administrative Liability: such violation may also lead to imposition of fine. in some cases. Liabilities of Public Officers g. 2. 5. Rights under the Constitution a. The governmental interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others. 2008) h. by reason of the public character of his employment or office. in general. 4. Other Rights 1. his right to compensation is not the creation of contract. Devices and Inventions b. nor is the office itself a contract. (1995)] Basis of Right to Compensation f. 6. Unless the Constitution expressly or impliedly prohibits Congress from doing so. A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission: o Civil Liability: if the individual is damaged by such violation. 7. It exists as the creation of law and belongs to Three-fold Responsibility of Public Officers (De Leon. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects. However. The rationale behind this doctrine is obvious consideration of public policy. (Agpalo. 8. The relation between an officer and the public is not the creation of contract. held not entitled to the same protection from publications commenting on his fitness and the like. Freedom of members of Congress from arrest and from being questioned d. e. [De la Victoria v. Right to protection of temporary employees c. the protection accorded to citizens by the Constitution and the laws. when such activities are reasonably deemed inconsistent with their public status and duties. Right to self-organization b. Right not to be removed or suspended except for cause provided by law Rights under the Civil Service Decree and the New Administrative Code Next-in-Rank Rule Personnel Actions Rights under the Revised Government Service Insurance Act Right to Reimbursement and Indemnity Right to Reinstatement and Back Salary Rights to Property. This administrative liability is separate and distinct from the penal and civil liabilities. 2008) Right to Compensation b. as appropriated by law. reprimand.
Reinstatement and Back Salaries Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally dismissed official or employee. The threat of suit could also deter competent people from accepting public office. He may recover the full amount notwithstanding that during the period of his removal. Secretary of Education. preventive suspension pending investigation The proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation. It is generally recognized that public officers and employees would be unduly hampered. preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and. Official Immunity Distinguished from State Immunity The immunity of public officials is a more limited principle than governmental immunity since its purpose is not directly to protect the sovereign. or even exceed the authority given them. Immunity of Public Officers Doctrine of Official Immunity from Liabilities for Public Officers Rationale: promotion of fearless. oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from service (De Leon. Where an officer was unlawfully removed and was prevented for a time by no fault of his own from performing the duties of his office. if those who act improperly. It served to protect the impersonal body politic or government itself from tort liability. Illegal Dismissal. 2008) b. after review. but rather to do so only collaterally. 2008) No compensation is due for the period of preventive suspension pending investigation because such is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. if the charge against such officer involves dishonesty. by protecting the public official in the performance of his government function. deterred and intimidated in the discharge of their duties. . no pay” principle does not apply where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and carrying out his duties If the illegal dismissal is found to have been made in bad faith by the superior officers then they will be held personally accountable for back salaries of the illegally dismissed employee. (2003)] I. vigorous and effective administration of policies of government. (De Leon. The “no work. Gania. Official Immunity serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. (2000)] Employees are entitled to compensation for the period of their suspension pending appeal if they are found innocent. the respondent is exonerated [Caniete v. were not protected to some reasonable degree by being relieved from private liability. Such suspension is actually punitive so that a public officer should be reinstated with full pay for the period of the suspension.Preventive Suspension and Back Salaries Kinds of Preventive Suspension a. it was held that he might recover. The award of backwages is limited to a maximum period of 5 years and not to full back salaries from illegal termination up to reinstatement [David v. and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. The doctrine of sovereign immunity principally rested upon the tenuous ground that the king could do no wrong. the salary has been paid to another appointed to fill the vacancy unlawfully created.
Basis of Authority Reputation: Has the possession and performs the duties under color of right. Entitled to receive compensation only during the time when no de jure officer is declared. etc. .. is admitted and sworn into office is deemed to be rightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom. no pay" is not applicable to him. Validity of official acts J.) Entitled to compensation as a matter of right. (4) must have qualified himself to perform the duties of such office according to the mode prescribed by law. Q: What is the purpose for the doctrine? A: It is to ensure the orderly functioning of government. Only by a direct proceeding (quo De Facto Officer defined Q: When is a person a de facto officer? A: Where the duties of the office are exercised under any of the following circumstances: (1) Without a known appointment or election. The protection afforded by the doctrine generally applies only to activities within the scope of office that are in good faith and are not reckless. warranto). Official Immunity not Absolute A public officer enjoys only qualified. but under such circumstances of reputation or How ousted Cannot be ousted. De Facto Officers Officer De Jure v. (2) Color of right or general acquiescence by the public. without being technically qualified in all points of law to act. (3) Actual physical possession of the office in good faith Rule on Compensation Valid. who. Officer De Facto Requisites De Jure (1) Existence of a de jure office. He is paid only for actual services rendered by him. malicious or corrupt. The principle of "no work. The public cannot afford to check the validity of the officer's title each time they transact with him. they were done beyond the scope of his authority.g. by the proper authority. subject to exceptions (e. De Facto Doctrine Q: What is the de facto doctrine? A: It is the principle which holds that a person. (2) must possess the legal qualifications for the office in question. not absolute immunity. (3) must be lawfully chosen to such office. Right: he has the lawful right / title to the office De Facto (1) De jure office. or (b) his admission thereto is declared void. not collaterally Valid as to the public until such time as his title to the office is adjudged insufficient.
before the same is adjudged to be such. Note: This is not absolutely true. there was a want of power in the electing or appointing body. to submit to or invoke his action. supposing him to the be the officer he assumed to be. c. With the passage of time. proceeding (unless and until he continues to act for so long a time as to afford a presumption of his right to act) Not entitled to compensation at all. Q: Is good faith a factor in the ripening of intruder status into de facto status? A: Yes. HOWEVER. want of power. Elements of a De Facto Officership (1) De jure office (2) Color of right or general acquiescence by the public. b. void because: a. Note: Here. or (2) Under color of a known and valid appointment or election. or defect being unknown to the public. Intruder Nature De Facto Officer under any of the 4 circumstances discussed under Part II (above). but the act by which the officer is appointed to an office legally existing. it must be noted that the good faith must be on the part of the public. unconstitutional law. Absolutely void. (3) Under color of a known election or appointment. County of Shelby) Rule on compensation adjudged insufficient Entitled to receive compensation only during the time when no de jure officer is declared. He has neither lawful title nor color of right or title to office. without inquiry. a presumption may be created in the minds of the public that the intruder has a right to act as a public officer. but where the officer has failed to conform to some precedent requirement or condition (e. they can be impeached at any time in any Q: Can an intruder / usurper ripen into a de facto officer? A: Yes. not on the part of the intruder. the officer was not eligible. Basis of authority Color of right or title to office Liabilities of De Facto Officers A de facto officer generally has the same degree of liability in accountability for official acts like a de jure officer.acquiescence as were calculated to induce people. either actual or apparent None. there was a defect or irregularity in its exercise. He is paid only for actual services rendered by him. Intruder One who takes possession of an office and undertakes to act officially without any authority. (3) Actual physical possession of the office in good faith. (Norton v.. Officer De Facto v. what is unconstitutional is not the act creating the office. taking an oath or giving a bond). The de facto officer may be liable for all imposable penalties for ANY of the following acts: Validity of "official" acts Valid as to the public until such time as his title to the office is . An intruder / usurper may ripen into a de facto officer.g. (4) Under color of an election or an appointment by or pursuant to a public. *such ineligibility.
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. When Incompatible Incompatibility is to be found in the character of the offices and their relation to . Reaching the age limit (retirement) This mode results in the compulsory and automatic retirement of a public officer. A written resignation. Resignation Resignation is the formal renunciation or relinquishment of a public office. To constitute resignation of public office. His acts. 4. but not conclusive evidence of the intention to relinquish the office. It is a fixed and definite period of time to hold office. Acceptance of an incompatible office It is contrary to the policy of the law that the same individual should undertake to perform inconsistent and incompatible duties. exercising the functions of public office without lawful right. delivered to the board or officer authorized to receive it and fill the vacancy thereby created. CA ) 3. perform its functions and enjoy its privileges and emoluments until the expiration of said period Tenure of office represents the period during which the incumbent actually holds office. even though he entered into the office in good faith and under color of title. [Monroy v. as far as he himself is concerned. accompanied by the act of relinquishment.o o o usurping or unlawfully holding office. duties and authority as a public officer must ipso facto cease Term of office 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 5. necessarily renders the office vacant. (63A Am. Right to Compensation of De Facto Officer GENERAL RULE. It implies an expression by the incumbent in some form. are void. One who. fees or other emoluments attached to the office. succeed one another. duties and obligations pertinent to the office are extinguished Permanent disability covers both physical or mental disability. while occupying one office. is prima facie. ipso facto. Expiration of the term or tenure of office Upon the expiration of the officer¡¥s term. A de facto officer cannot sue for the recovery of salary. renounce and relinquish his right to the office and its acceptance by competent and lawful authority. Termination of Official Relation 1. which is by law to be filled by one person only.[ Monroy v CA (1967) EXCEPTIONS Where there is no de jure public officer. for the duties he has performed. None. his rights. there must be an intention to relinquish a part of the term. Death or permanent disability The death of the incumbent of an office. unless he is authorized by law to hold over. 2d 1094-1095) The rightful incumbent may recover from the de facto officer the salary received by the latter during his wrongful tenure. Jur. absolutely vacates the first office. K. express or implied. The public official cease to hold office upon his death and all his rights. 2. of the intention to surrender. ineligibility for the public office as required by law The de facto officer cannot excuse responsibility for crimes committed in his official capacity by asserting his de facto status. accepts another incompatible with the first.
It implies that the office exists after the ouster. the Members of the Constitutional Commissions. 3. in the subordination of one to the other and in the nature of the functions and duties which attach to them It exists where: o There is conflict in such duties and functions. (1958)] 8. or betrayal of public trust. the design that one acts as a check on the other would be frustrated o The Constitution of the law itself declares the incompatibility even though there is no inconsistency in the nature and functions of the offices 6. Absent any constitutional prohibition. (Sec. but not by impeachment. otherwise. 2. Conviction of a crime When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime. It is 11. the Members of the Supreme Court. title. other high crimes. Abandonment of office Abandonment means the voluntary relinquishment of an office by the holder of all right. and punishment. trial. Its purpose is to protect the people from official delinquencies or malfeasances. 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. 9. quo warranto is the proper remedy against a public officer for is ouster from office which should be commenced within one year after the cause of such ouster or the right of the plaintiff to hold such office or position arose. Pajo. or claim thereto with the intention of not reclaiming it or terminating his possession and control thereof. so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both o One is subordinate to te other and is subject in some degree to its supervisory power for obviously in such a situation. Constitution) 7. an office created by Congress may be abolished by it during the term of the incumbent. (Sec. Such power may be exercised at any time and even while the office is occupied by a duly elected or appointed incumbent. but the party convicted shall nevertheless be liable and subject to prosecution. the action will be barred Rationale for the one year period: Title to public office should not be subjected to uncertainties but should be determined as speedily as possible. Removal from office may be express or implied. culpable violation of the Constitution. Removal Removal entails the ouster of an incumbent before the expiration of his term. each other. XI. Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. and the Ombudsman may be removed from office on impeachment for. termination of official relation results. The President. treason. for one of te effects of the . according to law. XI. [Castillo v. 10. All other public officers and employees may be removed from office as provided by law. the Vice-President. Art. Constitution) The House of Representatives has the sole power to initiate all cases of impeachment while the Senate sits as a court for the trial of impeachment cases. The fundamental principle afforded to civil service employees against removal ―except for cause as provided by law‖ does not protect them against abolition of the positions held by them in the absence of any other provision expressly or impliedly prohibiting abolition thereof. Abolition of office As a general rule. primarily intended for the protection of the State. and conviction of. not for the punishment of the offender. Art. Impeachment Impeachment has been defined as a method of national inquest into the conduct of public men. graft and corruption. bribery. Prescription of right to office Under the Rules of Court.
other offenses or felonies (whether simple or complexed with other crimes) committed by public officers and employees in relation to their office. XI. RA 6770): 1. Members of the Judiciary 12. 2. [Hagad v. 1379 b. Accountability of Public Officers Impeachment Impeachment has been defined as ―a criminal proceeding against a public officer. an elective official may be removed at any time during his term by the vote of the people at an election called for such purpose or at a general election.A. 2005) Its purpose is to protect the people from official delinquencies or malfeasances. 2005) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. bribery 4.000. or a fine of P6. Constitution) 1. Art. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic. instrumentalities and agencies. not for the punishment of the offender. Conviction means conviction in a trial court. (Agpalo. treason 3. where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years. culpable violation of the Constitution 2. Civil and criminal cases filed pursuant to and in connection with Executive Orders No. (1995)] Exceptions to Ombudsman’s Disciplinary Power The Ombudsman has no disciplinary power over the following (Sec. (De Leon. 1. RA 6770) The disciplinary power of the Ombudsman is not exclusive but is shared with other disciplinary authorities of the government. XI. Recall Through recall. 2008) Grounds (Sec. 3. 3019 and No. 21. and d. Dozo-Dadole. Ombudsman Disciplinary Power Over Public Officers The Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions. L. 21. betrayal of public trust The acts which are impeachable grounds must be committed in the performance of the official„s public office. and 14-a issued in 1986. violations of R. (Sec. It contemplates a court finding guilt beyond reasonable doubt followed by a judgment upholding and implementing such finding. Constitution) Sandiganbayan Exclusive Original Jurisdiction over a. . Art. graft and corruption 5. The disciplinary power of the Ombudsman over elective officials is concurrent with the power vested in the officials specified in the Local Government Code of 1991. (Sec. local government. other high crimes 6. before a quasi-judicial political court. instituted by written accusation called “articles of impeachment”. 14. including Members of the Cabinet. Officials who may be removed only by impeachment 2. No. crimes committed by public officers and employees embraced in Title VIII of the Revised Penal Code c. (Agpalo. It is primarily intended for the protection of the State. government-owned or controlled corporations and their subsidiaries.2. Members of Congress 3. imposition of said penalties is the deprivation of the public office which the offender may have held.
X. percentage. Term of Office Term of office of barangay and sangguniang kabataan officials: 3 years No barangay elective official shall serve for more than 3 consecutive terms in the same position Reckoned from the 1994 barangay elections Voluntary renunciation of office for any length of time shall not be considered as an interruption M. property. equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking.Ill Gotten Wealth Ill-gotten wealth means any asset. subordinates and/or business associates by any combination or series of the following means or similar schemes: o through misappropriation. conversion. 8. receiving or accepting directly or indirectly any shares of stock. o by establishing agricultural. o by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions. Constitution. 1. (Sec. relationship. 2. business enterprise or material possession of any person acquired by himself directly or indirectly through dummies. Term Limits All elective local officials. gift. share. 1992 or the date provided by law . Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected. o by obtaining. connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. No official shall serve for more than 3 consecutive terms for the same position. or o by taking undue advantage of official position. kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned. RA 9164: Synchronized Barangay and Sangguniang Kabataan Elections (2002) Sec. directly or indirectly. 1992. Sec. industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests. RA 7080) All local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30. any commission. Art. o by receiving. or malversation of public funds or raids on the public treasury. agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries. nominees. 43 LGC) Term of office: 3 years from noon of June 30. authority. agents. except barangay officials (Sec. misuse.