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CHAPTER I: DEFINITION, DISTINCTIONS AND CLASSIFICATIONS OF PUBLIC OFFICERS Public Office- 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 in invested with some portion of the sovereign function of the government, to be exercised by him for the benefit of the public. RADLAPSOBEP Notes: Q: Why “some portion” only? A: Because of the principle of separation of powers. Cannot vest all 3 powers in just one office. Q: What are sovereign functions? A: They are legislative, executive or judicial. Q: Are public school teachers public officers? A: Yes. They exercise an executive function by implementing laws on education. Purpose and nature of public office: 1. 2. 3. It is for effecting the common good It is a public trust (inconsistent with either a property or contract right) It is a responsibility and not a right

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.” (Sir said to memorize this) Kinds of accountability: 1. 2. 3. 4. compliance finances managerial results

Kinds of sanctions for wrong-doing: 1. 2. 3. administrativewrong-doer removed from office civil- wrong-doer pays damages criminal- wrong-doer goes to jail is

Public office is not a property right:

1.

The holder of the office is subject to removal or suspension according to law: • He is not denied due process if his office is abolished before his term expires or if he is removed or suspended according to law He is not denied due process by the passage of statute limiting or reducing his compensation He has no property right in the books and papers pertaining to his office

• What does “public trust” mean? 1. 2. The holder of the office is regarded as a public servant The powers of his office are to be exercised in behalf of the government and all citizens The public officer is subjected to the highest standards of accountability and service He shall at all times uphold public interest

2.

Holder is without vested right in any public office • Exception: Constitutional offices that provide for special immunity regarding salary and tenure

3.

4.

Due process clause- cannot be invoked except as to: 1. 2. 3. security of tenure salary, when provided by law Holder right is personal to him

Art. XI Section 1 of Constitution: “Public office is a public trust. Public officers and

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It is not property that passes to his heirs upon his death Public Office: 1. SEGOVIA VS NOEL 2.

and permanent

cts specific

are

Public Employment: 1. Not every public employment is an office No delegation or exercise of sovereign powers Created by contract of employment

Justice of the Peace assails a law limiting his tenure of office (“shall serve until 65 years old” instead of “during good behavior”). The law was given retroactive effect so when he turned 65, he was ousted via quo warranto proceedings. Though there is no vested right in an office, if the right is to be taken away by statute, the terms should be clear as to the purpose of abolition of the office. Under the Constitution, members of the judiciary enjoy security of tenure during good behavior. Congress is prohibited from passing a law re-organizing the judiciary when it undermines their security of tenure.

3.

Every public office is an employment Characterized by delegation of sovereign powers to the holder Created by law

2.

3.

Essential elements of a public office: 1. It is created by• • • The Constitution By law A body or agency to which the power to create the office has been delegated

2. Public office is not a contract: 1. It creates no contractual obligation between the holder of the office and the public The office exists by virtue of some law, it is not a natural right although the holder of the office is entitled to compensation, the salary is a mere incident and forms no part of the office Public Office Creation Incident of sovereignty Public Contract Originates from will of contracting parties Imposes obligations only upon contracting parties Limited duration/Obje

It must be invested with authority to exercise some portion of the sovereign power of the state to be exercised for public interest Its powers and functions are defined by the Constitution, or by law, or through legislative authority The duties pertaining thereto are performed independently, without control of a superior power other than law • Exception: an inferior or subordinate officer who is placed by legislature under the general control of a superior officer or body

3.

2. 3.

4.

5.

Object

Governmental functions/affe cts even persons not bound by contract Duties are continuing

It is continuing and permanent and not occasional or intermittent

Creation of public office: 1. Generally, by some Constitutional or statutory provision or by authority conferred by statute By Congress

Subject Matter/Scop e

2.

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• •

Creation of public offices is primarily a legislative function When an office is created by Congress, that office is wholly within the power of Congress

acts are those of the govt.

executive, legislative judicial functions

or

PRECLARO VS CB Not all contractual employees of the govt. are public officers. To be such, the following must concur: 1. he must be hired because of his skills which is not possessed by anyone in the contracting agency; the hiring agency must exercise minimal control over him; the contract must not last for more than one (1) year Classification of public offices 1. As to nature a) Civil officers- covers executive, legislative and judicial

By the President, with respect to bureaus, agencies or offices in the executive department (Source of power: Admin. Code, which grants to the President “continuing authority to reorganize the administrative structure of the Office of the President”) Public offices, how abolished or modified: 1. Where office is created by Congress, that body may abolish , control or modify it, unless prohibited by the Constitution Where office is created by the Constitution, it may be modified or abolished by the people through a Constitutional provision. It is beyond the power of Congress to alter or abolish.

3.

2. 3.

2.

b)
How are sovereign powers exercised?

1. 2. 3.

By enacting laws (legislative); or Executing laws (executive); or Adjudicating controversies (judicial) 2. As to creation

Military officersincludes all offices in the armed forces that solely involve military functions

Tenure and duration: 1. 2. Need not be for a fixed period; may be at the pleasure of the appointing power Continuance of office holder is not material; but continuance of the duties attached to the office is indispensable Permanence of office is not required, however, something more than a single transaction is required Public officer - required to take an oath, give a bond - authorized to exercise either Public Employee - position has less dignity, importance and independence 3.

a)

Constitutional officers- created by the Constitution Statutory officersCongress has full control as its creator

b)

3.

As to govt. department to which it belongs a) Legislative officers b) Executive officers c) Judicial officers

Public official - an officer of the govt. itself his duly authorized

4.

As to branch of govt. served

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a)

National officersincludes any office in the national/central govt. Local officers- any office in the political subdivisions like regions, provinces, cities, municipalities, barangays, etc.

• • •

Disqualified to be elected to office Disqualified to hold an office, if elected or appointed to it Qualification endowment or accomplishment that makes one fit for office an act which is required prior to assuming office Nature of Right to Hold Public Office Not a natural right exists only by virtue of a law creating or conferring the right Not a constitutional right A political privilege w/c depends upon the favor of the people Power of Congress Qualifications to Prescribe

b)

5.

As to exercise of discretion a) Quasi-judicial officerrequires exercise of judgment b) Ministerial officerexecutes mandates lawfully issued by his superior officer

6.

As to compensation a) Lucrative office/coupled an interestsalary b) Honorarycompensation CHAPTER II. ELIGIBILITY AND QUALIFICATIONS with with no

GEN RULLE: Congress prescribes qualifications Restrictions: 1. subject to Constitution 2. rational basis: nexus bet. req’t and duties of the position if the office was created by Congress, Congress may prescribe qualifications if the Constitution prescribes qualifications, Congress may prescribe additional qualifications unless prohibited if the office is created by Constitution, Congress has no power to require different qualifications

• • -

Eligibility state or quality of being legally fitted/qualified to be chosen a continuing nature must exist both at commencement and during occupancy of office Eligible legally fitted/qualified to hold office Admin Code  Obtained passing grade in CS exam  Granted CS eligibility  Name entered in register of eligibles Ineligibility lack of qualifications prscribed by Const of applicable law for holding public office Ineligible Legally or otherwise disqualified to hold an office

Ignacio v Banate If law is clear as to qualification, then an unqualified person cannot be appointed even in an acting capacity. Power of Congress Disqualifications to Prescribe

• • -

GEN RULE: Congress can prescribe Except: 1. when Consti says disqualifications provided are exclusive 2. when Consti attached disqualification, such cannot be removed. Vargas v Rilloraza No act of the legislature repugnant to Constitution can become law. The method of appointment of an SC justice provided by the Constitution is mandatory. Thus, the

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provision in the Act that added grounds for disqualification is unconstitutional. • Construction of Restrictions on Eligibility presumption of eligibility  basis: right of voters to exercise their choice  right to aspire and to hold public office - right to public office is strictly construed against ineligibility right to public office should be strictly construed against ineligibility Time of Possession of Qualifications if time specified by Consti/law – must be possessed at that time if time not specified: resort to statutory construction 2 Possibilities: o o 1. For eligibility for office time of election or appointment time of commencement of term or induction into office

• -

-

• -

-

-

-

Qualifications usually required of public officers Citizenship o Gen principle: aliens are not eligible to public office unless staute extends privilege to them. age suffrage o gen rule: only electors are eligible o if law is silent: only electors are eligible o if not specifically excluded by consti/law: persons not electors may be appointed/elected residence o synonymous w/domicile o personal presence, intention to reside and conduct indicative of intention education literacy/ ability to read and write political affiliation civil service exam o religious beliefs or opinions cannot be made a test of political right and privilege o religious test: demands avowal or repudiation of religious beliefs before the performance of any act SC has held in Pamil v Teleron that a priest cannot be elected as mayor. But if it were decided today, it would be overturned as Admin Code of 87 does not prohibit the election of ecclesiastics to municipal office anymore. Power of Congress to impose property qualification Gen Rule: not allowed as it is offensive to equal protection, social justice, republicanism and democracy Qualification prescribed by Consti for certain officials All must be Natural-born citizens Ag e Pres &VP 40 yr s up on el ec Resi den cy 10 yrs Others Regist ered voter Can read and write

2. For holding of office o time of commencement of term or induction into office during the continuance of the incumbency BUT always: o eligibility to public office is of a continuing nature o will of the people as expressed through the ballot cannot cure ineligibility Removal of disqualifications during term not yet settled some held that removal validates title of the incumbent; others take contrary view Castañeda v Yap Elected mayor was less than the minimum age requirement of 23 when proclaimed elected. Losing party is not estopped from questioning the eligibility of winner as a candidate’s ineligibility is always subject to question.

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• -

• -

• -

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Senators

Represen tatives

tio n da y 35 yr s up on el ec tio n da y 25 yr s up on el ec tio n da y A g e 4 0 y r s u p

s u p 2 yrs Regist ered voter Can read and write Chair & Comm of Com on Human Rights Ombuds man & Deputie s

At no time shall all 3 belong to same profession Majority must be members of the Bar Qualifications provided by law

1 yr

Regist ered voter Can read and write

4 0 y r s u p

Members of the Bar w/ 10 yrs practice Possess probity, independence Not candidate in preceding elections

Qualification prescribed by Law for certain officials A ge 2 5y rs u p 4 0 yr s u p 3 0y rs u p 3 0y rs u p Others Fil citizen

Others At least15yrs judge/lawyer Competence, integrity probity, independence

Dept Secretari es CA Justices

Member s of Suprem e Court

Chair & Comm of Civil Service

3 5 y r s u p

Capacity for public admin Not candidate in preceding elections

RTC Judges

Chair & Comm of COMELE C

3 5 r s u p

College degree holders Not candidate in preceding elections Majority must be members of Phil Bar w/ 10 yrs practice CPA or lawyers w/ 10 yrs practice Not candidate in preceding elections

MTC, MetTC, MCTC Judges

At least15yrs judge/lawyer Competence, integrity probity, independence (same as SC justice) Must be lawyers w/ at least 10 yrs practice or Held public office w/ requires membership in Phil bar Must be lawyers w/ at least 5 yrs practice or Held public office w/ requires membership in Phil bar

-

Chair & Comm of Com on Audit

3 5 y r

Elective local officials o Citizens (natural-born or naturalized) o Registered voter in place where intending to be elected o Able to read/write Filipino or any dialect

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Governor, VG, SP Members, Mayor, VM of highly urbanized Cities Mayors, VM of Other Municipalities/ Cities SP/SB members Brgy officials SK Age on election day 23yrs up -

21yrs up

18yrs up At least 15 but not more than 21

Lapinid v CSC CSC 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/review if the appointee possesses the required qualifications. Department Head or appointing authority is vested with the sound discretion of determining who among several l candidates for a vacant position has the best qualifications. Formal qualifications: age, number of academic units in a certain course, seminars attended, etc., Informal qualifications: intangibles as resourcefulness, team spirit, courtesy. initiative, loyalty, ambition, prospects for the future, and best interests of the service Disqualifications to Hold Public Office Sources: Consti and Statutes Gen Rule: if lacking qualifications prescribed by Consti/Law, ineligible/disqualified Other universally accepted causes for disqualification: mental or physical incapacity o remedy: judicial declaration of incapacity secured by other officers misconduct or crime (see Chapter VIII) impeachment removal or suspension from office (see Chapter VIII) previous tenure of office consecutive terms holding more than one office relationship with appointing power office newly created or the emoluments of which have been increased being an elective official

having been a candidate for any elective position under the Local Government Code o sentenced by final judgment for an offense involving moral turpitude, or for an offense punishable by one year or more of imprisonment within 2 years after serving sentence o removed from office as a result of an administrative case o convicted by final judgment for violating oath of allegiance to the Republic o dual citizenship o fugitive from justice o permanent residents in a foreign country o insane or feeble-minded CLU v Executive Secretary The prohibition against holding dual or multiple offices or employment under Sec 13, Art VII of Consti must not be construed as applying to posts occupied by the Executive official specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of the said official’s office. The reason is that these posts do not comprise “any other office” w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said official. The term “primary” used to describe functions refers to the order of importance and thus disciplinary Impeachment: a species ofrefer to chief or principal (ex. DOTC proceeding againstfunctions. officers but public Secretary acting as chairman of unique because highly politicized. Maritime Industry Authority) Covers: 1. President & VP 2. SC Justices 3. Members of Consti Commissions 4. Ombudsman Nature: administrative proceeding but Congress the trial body is not an admin agency. Hence, it is sui generis. Quantum of evidence: Congress decides. Last impeachment it was “clear and convincing evidence”. No review by SC as the authority of impeachment court is mandated by Consti. (sole authority) NOTE: These disqualifications are discussed in detailGeof*Golda*Reeza*Sandi in other chapters. So, to avoid repetition, I just enumerated in this section.

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2. Where power is exercised by other departments when Congress or the courts makes appointments, it should be taken as an incident to the discharge of functions within their respective spheres these appointments are necessary to enable the departments to maintain their independent existence does not involve an encroachment upon the function of any other branch Notes: When other departments exercise the power of appointment, they are still exercising an inherently executive power. Power of courts to review appointment 1. unless gravely abused, the courts will not attempt to control the power to appoint 2. writ of mandamus cannot be applied for to compel the exercise of the discretion to appoint 3. The right to choose those qualified for the position is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith and not in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite. whom to appoint is a political or administrative question involving considerations of wisdom and the interests of the service 4. Head of office is usually the best person to determine who is qualified for the position for he is familiar with the organizational structure and environmental circumstances within which the appointee must function.

Chapter 3 ACQUISITION OF RIGHT OR TITLE TO OFFICE A. In General Modes of Commencing Official Relations obtained only in the manner prescribed by the Constitution or by law 1. election 2. appointment Appointment act of designation by the officer / board / body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office the nomination or designation of an individual to an office

-

-

-

-

Where appointing power resides 1. Inherently belongs to the people people are the source of government, the power of selecting persons for public office thus inherently belongs to them

2. May be entrusted to designated elected and appointed public officials Nature of the appointing power 1. Rule: Appointment is an executive function whether exercised by the executive, legislative, or judicial officers

Power of CSC to revoke appointments 1. As long as the appointee possesses the qualification required by the law, the Commission has no authority to: a. revoke an appointment on the ground that another person is more qualified

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b. direct the appointment of a substitute of its choice or a successful protestant 2. If the appointment is void from the beginning because of fraud on the part of the appointee or because it was issued in violation of law, the Commission may: a. recall or b. revoke said appointments Concepcion v. Paredes Law provided that judges shall exchange districts, through lots, every 5 years and that no judge shall continue to serve in a district in which he has been serving for 5 years. The Philippine Legislature has no power to enact laws which expressly or impliedly diminish the authority conferred by the Act of Congress on the Chief Executive. In the CAB, the appointing power will not exercise judgment, but rather perform a ministerial act in approving the appointment determined by chance which has been substituted for executive judgment. Reyes v. Abeleda Next-In-Rank Rule: A person next-inrank, competent and qualified to hold the position, is entitled to a vacancy occurring in any competitive or classified position in the government. If there are 2 or more persons under equal circumstances, seniority must be given preference. Notes: It does not necessarily follow that the next-in-rank should be appointed. Being next-in-rank endows one with merely a right to be considered, not a right to automatically be appointed. -

persuasive in character, not binding upon the party to whom it is made. Obiter: One whose claim is predicated solely upon a more or less remote possibility that, in the event an office should be declared vacant, he may be the recipient of the appointment, has no cause of action against the office holder. Power of Appointment may be: 1. Absolute choice of the appointing authority is conclusive if it falls upon an eligible person. no further consent or approval is necessary the commission (formal evidence of appointment) may issue at once 2. Conditional assent or approval by some other officer or body is necessary to complete the appointment example: President can appoint certain public officers with the consent of the Commission on Appointments - The tolerance, acquiescence or mistake of the proper officials resulting in nonobservance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable.Restrictions on the power to appoint. 1. General rules a. b. Appointee should possess the prescribed qualifications. He should be selected solely with a view to the public welfare. o appointing power should exercise power to appoint with disinterested skill and in a manner primarily for the benefit of the public It is against public policy to permit an officer having an appointing power to use such power to confer an office on himself. One cannot make a prospective appointment to fill an office where the appointee’s term is not to begin until the appointing power’s own term has expired.

-

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c. Cuyungkeng vs. Cruz Inclusion in the list of recommendees is not one of the qualifications to be appointed. In addition, said list would constitute a reduction and impairment of the appointing power vested in the President by the Constitution. At most, the recommendation is merely an advice, exhortation or indorsement, which is essentially d.

2. Restrictions imposed by the Constitution

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a. Spouses and relatives by consanguinity or affinity within the fourth civil degree of the President cannot be appointed, during that President’s tenure, as: o Members of the ConCom o Office of the Ombudsman o Secretaries, undersecretaries, chairmen or heads of bureaus or offices, including GO/CC and their subsidiaries b. Prohibited midnight appointments are those: made two months immediately before the next presidential elections up to the end of his term made by the President or the Acting president except if these are temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety c. Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the court, or in the heads of departments, agencies, commissions, or boards. d. Officials and employees in the judiciary may be appointed by the Supreme Court in accordance with the Civil Service Law. - same rule for those in the Office of the Ombudsman, other that the Deputies e. Members of the Supreme Court and judges of lower court: appointed by the President must come from a list of at least 3 nominees prepared by the Judicial and Bar Council for every vacancy does not need confirmation lower court judges’ appointments must issue within 90 days from the submission of the list f. ConComs shall appoint: members without reappointment o appointment to any vacancy shall be only for the unexpired term of the predecessor o no appointment or designation in the a temporary or acting capacity officials and employees in accordance with law

g. Political lame ducks are prohibited: a candidate who has lost in any election o cannot be appointed, within one year after such election o to any office in the government or any GO/CC or any of their subsidiaries h. Elective officials are not eligible: for appointment or designation in any capacity to any public office or position during his tenure i. Appointive officials shall not hold: any other office or employment in the government or any subdivision, agency or instrumentality thereof, including GO/CC or their subsidiaries UNLESS otherwise allowed by law or by the primary functions of his position j. Ombudsman and his Deputies appointed by the President from a list of at least 6 nominees prepared by the Judicial and Bar Council from a list of 3 nominees for every vacancy thereafter no need for confirmation must be filled within 3 months after they occur When Appointment Complete is Deemed

-- The appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. -1. If appointment is not subject confirmation o commission (formal evidence appointment) may issue at once. to of

2. Appointments subject to confirmation o commission can issue only when confirmation is obtained 3. Appointments to positions in the Civil Service must be submitted to the CSC for approval if appointee is qualified civil service eligible, CSC has no choice but to attest the appointment o attestation or confirmation does not complete the appointment

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since such attestation, although an essential part of the appointing process, serves merely to assure the eligibility of the appointee if appointee later found ineligible, CSC may reject appointment and appointment shall lapse despite the attestation

-

when the appointing power does every act within his power to make such appointment, his functions with respect to the appointment are at an end and the appointment is complete whether accepted or refused. 2. necessary to possession of office necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office (PER) appointee cannot impose his conditions for the acceptance of a public office Form of Acceptance 1. Express o verbally o in writing o taking oath o posting of bond 2. Implied o exercise of duties and functions o note: mere seeking for the office or the consent to be voted or appointed, though it may imply a promise to accept if elected or appointed, does not of itself amount to an actual acceptance of the office Is an individual appointed or elected to office compelled to accept such appointment or election? General Rule: No, a person may not be compelled to accept a public office. (involuntary servitutude?) Exceptions: 1. Consti: The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. 2. Revised Penal Code: Persons who having been elected by public election to a public office may suffer the penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both: - for refusal without legal motive to be sworn in or discharge the duties of said office Heal the world point: must accept obligation because it is a social duty. MECHEM: Regardless of the question of whether a man can be compelled to accept a public office, or can be

4. Effects of completed appointment a. No new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee through a valid qualification and assumption of its duties. b. Having once made the appointment, appointing officer’s power over the office is terminated in all cases where by law the officer is not removable by him. c. Right to office vests in the person appointed and he has the absolute unconditional power of accepting or rejecting it. Tomali v. CSC 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. 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. Acceptance of Appointment 1. not necessary to completion or validity of appointment because appointment is the sole act of those vested with the power to make it

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punished for not accepting it, is clear that every person who enters into civil society and avails himself of the benefits and protection of the government, must owe to society or to the public, at least a social duty to bear his share of the public burdens, by accepting and performing, under reasonable circumstances, the duties of those public offices to which he may be lawfully chosen. Is a written necessary? appointment

Revocation 1. General Rule: Once appointment to an office is made and complete, it is not subject reconsideration or revocation appointee becomes entitle to the office (has security of tenure) Exception: when the officer is removable at will of the appointing power Notes: This is an improperly placed exception because if the officer is removable at will of the appointing power, what happens is not a revocation but a termination of term 2. Where appointee has assumed position revocation can no longer be had; remedy would be a removal for cause with notice and hearing once the appointee assumes a position in the civil service, he acquires a legal, not merely an equitable right o certain irregularities in said appointment may even be deemed cured by the subsequent probational and absolute appointment of the appointee the presence of a more qualified person cannot be a ground for the appointee’s removal provided that the latter possesses the minimum qualifications required by law

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YES. Valencia v. Peralta: It would be unfortunate if the title to the office of one upon whose official acts public interests and private rights hinged, did or could be made to depend upon the verbal declarations and statements of the person having the power to make the appointment, to be proved by parol and liable to be forgotten, misunderstood or misreported, subject to all the contingencies and infirmitites which are incident to verbal evidence by parol, so pregnant of mischief and misfortune as to have led to the enactment of the statute of frauds.

NO. - The right of the appointee to be inducted into office depends upon the fact of appointment and not upon his ability to establish that fact by the production of a written appointment where the law does not prescribe the manner in which the appointing power shall make the appointment, nor direct that any written evidence of his action shall be furnished to the person appointed. (Mechem) Ykalina v. Oricio: President is authorized to make an appointment, and nothing is said as to the manner in which he shall make it, it may be contained in written memorandum or merely oral. Venecia v. Peralta Petitioner was given a temporary appointment. Even if he took an oath as an ad interim officer, he cannot claim title to the position in the absence of proof that he was actually extended that appointment. The better rule requires some kind of written memorial that could render title to public office indubitable.

B. Appointments By The President Four Groups of Officials whom President is Authorized to Appoint (CONST. Art VII, sec. 16) 1. must have the consent of the Commission on Appointments (exclusive list) - Congress cannot, by law, require confirmation of appointments of other officers. o heads of executive departments o ambassadors o other public ministers and consuls o officers of the armed forces from the rank of colonel or naval captain o regular members of the JBC o Chairman and Commissioners of the CSC o Chairman and Commissioners of the o COMELEC

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o

Chairman and Commissioners of the COA Members of the regional consultative commission

2. all other officers whose appointments are not otherwise provided by law o e.g. offices created by Congresswhere Congress omits to provide for appointment o or Congress has provided an unconstitutional way for such appointments 3. those whom the President may be authorized by law to appoint o e.g. heads of GOCCs, undersecretaries, bureau heads/etc. o heads of the SEC and the Insurance Commission don’t need confirmation because they are now considered civil service officers whose appointments are to be made according to merit and fitness o Chairman and Members of the Commission on Human Rights 4. other officers lower in rank whose appointments the Congress by law vests in the President alone (or in the courts, in the heads of departments, agencies, commissions or boards) lower in rank: officers subordinate to those enumerated officers in whom respectively the power of appointment may be vested: o heads of executive departments, agencies, commissions, and boards o does not include heads of bureaus and offices not mentioned in the Consti as among those to be appointed by the President who are subordinates of Cabinet members  their appointments are vested in the President Kinds of Presidential Appointments 1. 2. 3. 4. o Regular Ad Interim Permanent Temporary or acting

o o

o

voluntary: that which takes place before the adjournment of Congress, like a Christmas recess  compulsory: when Congress adjourns recess appointment power keeps in operation the business of government when Congress is not in session this type of appointment shall be effective upon rejection by the COA, or if not acted upon, at the adjournment of the next session, regular or special, of Congress President exercises a special prerogative and is bound to be prudent to insure approval of his selection either by previous consultation with the members of the COA or by thereafter explaining to them the reason for such selection. o WHY? Because an ad interim appointment contradicts the theory of checks and balances in that it permits the executive alone to make an appointment permanent and effective in character without previous scrutiny and concurrence of the legislative power, acting thru the COA  NOTE: An ad interim appointment is nevertheless permanent in nature and not a mere temporary or acting appointment, notwithstanding that it is subject to confirmation by the COA. Notes: MALI si de Leon when he said: However, it may be recalled or revoked by the President before confirmation. Because it is permanent, it takes effect immediately. Even before confirmation, the appointment is deemed complete. Remedy would therefore be removal.

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1. Regular those made while Congress is in session o mere nominations subject to confirmation o 2. Ad Interim those made while Congress is not in session or during its recess, whether such recess is:

Rosales vs. Yenko The original ad interim appointment was never released by the Office of the President. The ad interim appointment being incomplete, there was in fact and in law no ad interim appointment that could be validly transmitted to and acted upon by the Commission on Appointments.

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o 3. Permanent those which terminated last until lawfully

Jurisprudence: There being no appointment issued, designation does not entitle the officer designated to receive the salary of the position. (? Can law provide otherwise?)

4. Temporary or Acting those which last until a permanent appointment is made o An acting appointment, being essentially temporary or provisional in character, cannot be validly confirmed by the COA because the confirmation presupposes a valid nomination or ad interim appointment o Officer in an acting capacity has no personality to bring a quo warranto action against the permanent appointee to the position since the former is not entitled to the office. o Has no fixed tenure of office and can be terminated at the pleasure of the appointing power o Notes: Temporary appointees still enjoy security of tenure, albeit a limited one. Points to Remember: 1. appointments which are required to be submitted tothe Commission on Appointments are either regular or ad interim; both are permanent in nature 2. Appointments that are for the President solely to make without the participation of the COA cannot be ad interim appointments. - The President’s voluntary act of submitting such appointments to the COA and the latter’s act of confirming or rejecting the same would be without or in excess of jurisdiction. Designation mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office presupposes that the officer is already in service by virtue of an earlier appointment revocable and temporary in character for it does not confer upon the designee security of tenure in all the position or office which he occupies in an acting capacity only

Steps in the Appointing Process (for positions subject to confirmation Commission on Appointments) 1) nomination 2) confirmation 3) issuance of commission

by

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1. Nomination exclusive prerogative of the President which no limitation may be imposed by Congress, except those resulting from the need of securing the concurrence of the COA and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office Rafael v. EACIB Where no new appointments are necessary, and officials occupy another position in an ex-officio capacity, the President is not deprived of his constitutional power to make appointments even if Congress prescribes which officials should occupy said ex-officio positions. Officials who sit ex officio merely perform duties in the Board in addition to those they already perform under their original appointments. They can be considered as merely on detail, subject to recall by their respective chiefs.

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2. Confirmation power belongs to Congress A confirmation must be distinguished from the appointment itself, for in confirming the appointment, the COA does not in any sense choose the appointee. The act is not an exercise of an executive function and since it is not legislative in character, it need not be performed at a regular session of Congress. (second part from AmJur—not too sure about that since previous statement says that power belongs to Congress)

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3. Issuance of a commission the written evidence of the appointment, but not the appointment itself defined as the written authority from a competent source given to the officer as his warrant for the exercise of powers and duties of the office to which he is commissioned

Commissions (appointive vs. elective officials) 1. elected officers issuance of a commission is merely a ministerial act because his right to the office is established by the result of the election and does not depend upon his getting a commission 2. appointed officers usually requires a commission C. Appointments in the Civil Service Scope of the Civil Service All branches, subdivisions, instrumentalities, and agencies of the Government including GOCCs with original charter

Career service includes: (wasn’t really included in class discussion but has been asked “in the bar”) i. open career positions for appointments qualification in an appropriate examination required ii. closed career positions which are scientific or highly technical in nature faculty and academic staff of state colleges and universities scientific and technical positions in scientific and research institutions which shall establish and maintain their own merit system iii. Positions in the Career Executive Service Undersecretary Assistant Secretary Bureau Director Assistant Bureau Director Chief of Department Service Other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President

iv. Career officers appointed by the President Foreign Service Officers in the Department of Foreign Affairs v. Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system vi. Personnel of GO/CC whether performing governmental or proprietary functions do not fall under the non-career services vii. Permanent laborers whether skilled, semi-skilled, or unskilled 2. non-career service a. entrance on bases other than usual test of merit and fitness b. tenure limited to: 1. a period specified by law or 2. a period co-terminous with appointing authority or 3. subject to pleasure of appointing authority or 4. a period limited to the duration of a particular project for which purpose employment was made Non-career service includes:

* Consti intends to extend the requirements and benefits of the Civil Service System over the administrative personnel of the entire government—national and local—including the military establishment (de Leon). Purpose of the Civil Service system - to enable the national and local government and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants. Classification of Positions in the Civil Service 1. 2. Career Service Non-career service

1. career service a. entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications b. security of tenure c. opportunity for advancement to higher career positions

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i.

elective officials and confidential staffs

their

personal

or

3.

positions Service

in

the

Career

Executive

ii. department heads and other officials of cabinet who hold positions at the pleasure of the President and their personal or confidential staffs iii. chairmen and members of commissions and boards with fixed terms of office and their personal or confidential staff v. 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 with a minimum direction or supervision from the hiring agency v. emergency and seasonal employee vi. casual employees employment is not permanent occasional, unpredictable, sporadic, and brief in nature Classes of Positions in the Career Service 1. clerical, trades, crafts, and custodial service positions 2. professional, technical and scientific positions 3. positions in the Career Executive Service 1. clerical, trades, crafts, and custodial service positions non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than 4 years of collegiate studies competitive exams required open to those inside and outside the service who meet the minimum qualification requirements 2. professional, technical and scientific positions non-supervisory or supervisory capacity requiring at least 4 years of college work up to Division Chief Level competitive exams required open to those inside and outside the service who meet the minimum qualification requirements -

Points to Remember: 1. Entrance to a higher level does not require previous qualifications in the lower level. 2. Within the same level, no civil service examination is required for promotion to a higher position in one or more related occupational groups. o but must have passed the examination for the level Constitutional Classification of Positions in the Career Service 1. competitive: according to merit and fitness to be determined as far as practicable by competitive examinations On competitive examinations: substitutes for the uncontrolled will of the appointing power insures that appointments to office is made from among those who, by examination, have shown themselves to be the best qualified

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A competitive examination: a. must be given under an objective standard of grading b. must conform to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience c. must be competitive in substance, not merely in form d. even oral examinations may be considered objective if the questions are such as to best determined the practical and technical qualifications of the applicants to perform the duties of the position to be filled 2. non-competitive o a. policy-determining occupant is vested with the power of formulating policies for the government or any of its agencies,

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subdivisions, instrumentalities (e.g. Cabinet member) b. primarily confidential denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of [discussion and delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state (Delos Santos v. Mallare) o e.g. private secretary or a confidential agent o Note: It is the nature of the position which finally determines whether a position is primarily confidential. o When a termination of official relation occurs because of loss of confidence, what occurs is an expiration of the term of office. o c. highly technical in nature o o occupant is required to possess skills or training in a superior degree nature of functions determine characteristic of position On classifications: 1. Executive pronouncements can be no more than initial determination that are not conclusive in case of conflict. 2. Whether or not the classification of a position is really in accordance with the Constitution is ultimately a judicial question. Griño v. CSC The fact that the position of provincial attorney has already been classified as one under the career service and certified as permanent by the CSC cannot conceal or alter its highly confidential nature. This being the case, and following the principle that the tenure of an official holding a primarily confidential position ends upon loss of confidence, respondent was not dismissed or removed from office when his services were terminated. His term merely expired. Hilario v. CSC

An examination of the provisions of BP 337 reveals no intention by the legislature to remove the confidential nature of the position of city legal officer. What it does, is to merely specify the various qualifications, powers and duties of a city legal officer which were not enumerated under R.A. 5185. Tria v. Chairman Effects of characterizing a position as "primarily confidential:" o renders inapplicable the ordinary requirement of filling up a position in the Civil Service on the basis of merit and fitness as determined by competitive examinations o termination can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of their term of office A position in the Civil Service may be considered primarily confidential: o when the President of the Philippines, upon recommendation of the CSC, has declared that position to be primarily confidential; or o when the position, given the character of the duties and functions attached to it, is primarily confidential in nature. Qualification standards in the Civil Service expresses the minimum requirements for a class of positions in terms of: o education o training o experience o civil service eligibility o physical fitness o other qualities required for successful performance o determined by the appointing authority on the basis of the qualification standards for the particular position  with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office o offsetting of deficiencies may be allowed, interchanging standards allowed and this rests upon the sound discretion of the appointing authority who is in the best position to determine

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the needs of his office and how to satisfy those needs Use of qualification standards a. as basis for civil service examinations b. as guides in the appointment and other personnel actions in the adjudication of protested appointments c. in determining training needs and d. as aid in the inspection and audit of the agencies’ personnel work programs Kinds of Appointment in the Career Service 1. Permanent issued to a person who meets all requirements o lasts until lawfully terminated o entitled to security of tenure o a permanent appointment is N0T a continuation of a temporary appointment o

1. What characterizes an appointment as permanent or temporary is not the nature of the position but the nature of the appointment extended, which, in turn, depends on the eligibility of the appointee of his lack of it -2. A person with a civil service eligibility shall be qualified for a position requiring a lower eligibility if he possesses the other requirements for appointments to such position. 3. If the certificate issued by the CSC is null and void, it may revoke it on said ground without notice and hearing to the examinee concerned, applying the rule res ipsa loquitor, Province of Camarines Sur vs. CA The fact that private respondent obtained civil service eligibility later on is of no moment. His having passed the supervising security guard examination did not ipso facto convert his temporary appointment into a permanent one. What is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment. Gloria v. De Guzman Mere designation does not confer upon the designee security of tenure to a position held in an acting capacity only. Expiration of term is not illegal dismissal. Not being a permanent appointment, the designation of a position cannot be the subject of a case for reinstatement. Reinstatement is technically issuance of a new appointment which is essentially discretionary. The CSC and Its Role on Appointments in the Civil Service 1. Approval required in all appointments, whether original or promotional, to positions in the civil service EXCEPT: a. presidential appointments b. members of the: o Armed Forces of the Philippines o Police forces o Firemen

2.Temporary/ Acting o meets all requirements except civil service eligibility o not to exceed 12 months o appointee may be replace sooner if a qualified civil service eligible becomes available  but remember, if there’s a civil service eligible available, noneligible cannot be appointed even in a temporary capacity o o can be terminated at the pleasure of the appointing power can be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure | Note Consti prov: temporary employees in the Government shall be given such protection as may be provided by law.| Note however that appointing authority does not have blanket authority to remove such employee at any time without cause where the appointment is for a definite period.

o

Points to Remember

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o

Jail guards

a. non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan b. failure to pass through Selection/Promotion Board the agency’s

2. Appointee need not be previously heard if the disapproval is based on its nonconformity to applicable provisions of the law and on the qualifications of the appointee. CSC may recall appointment on its own initiative and review the same de novo Appointee has right to file a motion for reconsideration and there challenge its approval 3. An appointment to the civil service is required to be submitted to the Commission for approval in order to determine whether the proposed appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment are followed. IRR of Admin Code: an appointment not submitted to the Commission, within 30 days from the date of the issuance which shall be the date appearing on the face of the instrument, shall be ineffective. o No title can then 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

c. Violation of existing collective agreement between management and employees relative to promotion d. violation of other existing civil service law, rules, and regulations Appointment through certification issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles (i.e. list of names of those who passed competitive examinations) and who meets all other requirements of the position The persons certification must: o o appointed through

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4. Power is merely limited to the question of whether or not the appointee is qualified. o not authorized to curtail the discretion of the appointing official o has no power of appointment except over its own personnel nor does it have the authority to review the appointments made by other offices o may however order the reinstatement of an illegally demoted or dismissed employee 5. Commission must keep a record of all appointment of all officers and employees in the civil service. 6. Section 10, Rule V of Omnibus Implementing Rules of RAC of 87: an appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. 6. OIR of RAC 87 enumerates grounds for recall even if appointment initially approved:

Serve a probationary period of 6 months following their original appointments Must undergo a thorough character investigation in order to acquire permanent civil service status D. Vacancy

when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and duties

An office may be vacant when it is occupied by one who: 1. is not a de jure officer 2. is a mere usurper 3. is holding over Where a regular employee is illegally dismissed, transferred or demoted, his position does not become vacant. Classification of Vacancy o 1. Original when an office is created and no one has been appointed to fill it 2. Constructive when the incumbent has no legal right or claim to continue in office

o

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and can another o

be

legally

replaced

by

o o

3. Accidental when the incumbent dies, resigns or is removed 4. Absolute when the term of an incumbent expires and no successor is legally qualified to the office Causes of vacancy o death o permanent disability o removal from office o resignation of the incumbent o abandonment o expiration of term o conviction of crime o impeachment conviction o acceptance of incompatible office o creation of a new office o reaching the age limit o recall o failure of person chosen to accept of qualify for the office Filling of anticipated vacancies: 1. Legal if the appointment is to take effect during the term of the appointing authority o appointing officer must be empowered to do so o no law must forbid it -

refusal of the office does not become an officer de jure; regarded as officer de facto

o

2. Not legal if appointment is to take effect after the expiration of term of appointing power - Note however that jurisprudence says: successor MAY recall the appointment E. Qualifying to Office Qualification (as an act) to an office o an act by which an appointed or elective official signifies his acceptance of the office and his undertaking to execute the trust confided in him. o Generally consists of:  Taking, subscribing, filing of an official oath  If required by law, posting of bond  Effect of failure to qualify

Oath an outward pledge whereby one formally calls upon God to witness the truth of what he says. Not indispensable; mere incident to the office and constitutes no part of the office itself If required by statute, usually merely directory Oath-taking is mandatory for: o President o Vice-President o Acting President o Public officers and employees o Consti: to uphold and defend the Constitution o Admin Code: inc. every member of the armed forces—to uphold and defend the Constitution  Bear true faith and allegiance to it  Obey the laws, legal orders and decrees of duly constituted authorities  Faithfully discharge to the best of his ability his duties  Voluntarily assumes the obligation imposed by his oath of office without mental reservation or purpose of evasion o elective and appointive local officials and employees officers authorized to administer oaths o notaries public o members of the judiciary o clerks of court o secretary of either House of the Congress of the Philippines o Secretaries of departments o Bureau directors o Registrars of deeds

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o o o o

Provincial governors and lieutenant governors City mayors Any other officer in the service of the government whose appointment is vested in the President Officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath

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Seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office De facto officer: one who is in possession of an office in the open exercise of its functions under color of an election or an appointment even though such election or appointment may be irregular. Elements of De Facto Officership 1. There must be a de jure office. 2. There must be a color of right or general acquiescence by the public. may consist in an election or appointment, or in holding over the expiration of one’s term, or acquiescence by the public in the acts of such officer for such length of time as to raise the presumption of colorable right by election or appointment. 3. There must be actual physical possession of the office in good faith. must also be accompanied by the faithful exercise of the functions of the officer and discharge of its duties, since possession alone makes the possessor a mere intruder or usurper whose acts in the office are wholly void. De jure officer: one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. Requirements to become officer de jure 1. must possess the legal qualifications for the office 2. must be lawfully chosen to such office 3. must have qualified himself to perform the duties of such office according to the mode prescribed by the Constitution of law Usurper or intruder: one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. not an officer at all for any purpose

Bonds required for: o accountable public officers- those to whom are entrusted the collection and custody of public money o public ministerial officers whose actions may affect the rights and interests of individuals in the nature of an indemnity bond rather than a penal or forfeiture bond. o A contract between the officer and the government o Binds the sureties to make good the officer’s default o Not for the benefit of the office holder, but for the protection of public interest failure to provide bond, even when time is prescribed, merely constitutes a ground for forfeiture, and not forfeiture of the office ipso facto o except of course if the giving of the bond is prescribed as a condition precedent to the right to the office  if so, office regarded as vacated when the required bond is not given within the time limited by law

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F. De Facto Officers De facto doctrine: a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until, by judicial declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared void. Springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question

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De Jure officer right

De Facto officer reputation

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lawful right or title

possession of office; performance of duties may be ousted in a direct proceeding

1.

cannot be removed in a direct proceeding

2. 3.

Acts to de facto officers are valid, just like those of a de jure one, until the title to office is adjudged as insufficient. Third persons have a right to assume that the officer is legally qualified. Also, the de facto officer is estopped from taking advantage of his own want of title.

De facto officer color of right or title public does not know his lack of title or authority may be removed only in a direct proceeding acts are valid

Usurper no lawful title nor color of right or title public knows he is merely a usurper can be ousted at any time in any proceeding acts are absolutely null and void

Proceedings to Try Right or Title of De Facto Officer  The time to office and the validity of acts of a de facto officer cannot be attacked collaterally.  These must be questioned in a direct proceeding where such are the main issues. Quo Warranto 1. a special remedy for questioning title to office 2. It may be filed only by: the person claiming-title to the office or o the RP represented by the SolGen or public prosecutor.  This is because the law presumes an officer to have legally occupied a post and that official duty has been regularly performed. This is in line with the constitutional rights of an officer to due process and security of tenure. o 3. Petitioner in a quo warranto proceeding must set forth the name of the defendant occupant and the name of the person claiming title to the office. Others who also claim title to office may be made parties to determine their respective rights in the same action. Right to Compensation of a De Facto Officer General Rule: A de facto officer, unlike a de jure officer, cannot maintain an action to recover salaries, fees, emoluments on the theory that acts of a de facto officer as far as he himself is concerned are void. Exceptions: In the absence of bad faith on the part of the officer, s/he may

Barte v. Dichoso B was issued an ad interim appointment as Acting Vice Mayor. His appointment was later bypassed by the National Assembly and B was subsequently informed that a new designation was under consideration. Well-settled is the rule that a public officer having the capacity to act on behalf of the Government in whom the exercise of sovereignty is vested has to be chosen in the manner and form provided by law. Otherwise, he would be a plain usurper of official functions. Legal Effects of Acts of De Facto Officer As regards the officers themselves 1. Acts of a de facto officer as far as he himself is concerned are void. 2. The party defending his/her right to office must show that s/he is a de jure officer, not just de facto. 3. This is to discourage seizure of public offices. 4. The occupant must know whether or not he is legally entitled to office.

As regards persons

the

public

and

third

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recover compensation due to for services rendered as de facto officer. When the government in good faith has relied on the officer's color of title and paid the de facto officer salary, the de jure officer cannot claim the same compensation. Exception to the Exception: If the officer was not appointed but merely designated to an office, there generally can be no additional compensation for the 'performance of additional functions. Liabilities of a De Facto Officer A de facto officer has the same degree of liability a de jure officer. 1. may be liable for all penalties for unlawfully holding an office. 2. S/he cannot excuse responsibility for a crime committed in official capacity by asserting that s/he is merely a de facto officer. Double Occupancy of a Single Office Two persons (whether both de facto, or one de jure and the other de facto) cannot occupy the same office at the same time when the law provides for only one incumbent for that office. If the de jure officer is also de facto, legal title and possession to the office is united. There can be no other de facto officer to that office. If 2 de facto officers, each under a claim of right, occupy a post, the owner who appears to have the better legal title will be recognized. Offices Created under Unconstitutional Statute an

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Thus, occupant is a usurper whose acts are invalid. View 2: Occupant recognized as de facto until judicial determination of the unconstitutionality of the act. This is for reasons of public policy and for the protection of private rights. Otherwise, there will be uncertainty, chaos, inconvenience and hardship to litigants.

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CHAPTER IV: POWERS, DUTIES AND NORMS OF CONDUCT OF PUBLIC OFFICERS What is the source of power of public offices? 1. • The people themselves Either directly or thru Congress, the people create public offices Their will finds expression Constitution and the laws in the

Notes: 1. The public is charged with notice of the parameters of authority of public officers No one is excused from complying with the law because of ignorance

2.

Scope of power of a public officer: 1. 2. expressly conferred by the law under which he was appointed expressly annexed to the office by the law that created it or some other law referring to it attached to the office as incident to it LO CHAM VS OCAMPO A lawyer in the DOJ was temporarily detailed to assist the City Fiscal of Manila with

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View 1: Occupant is not even a de facto officer. This is because an unconstitutional law is not law; it confers no rights; imposes no duties, affords no protection; it creates no office; it is inoperative.

3.

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the same powers and functions as the Asst. fiscal. Pwede o hindi? Classification of powers and duties: Pwede. The Revised Administrative Code gives the DOJ Secretary power to appoint any lawyer to temporarily assist a fiscal and exercise the fiscal’s functions. Why so? Because the duties of a public office include those which are essential to the accomplishment of the main purpose for which the office was created or which, although incidental, are germane to the principal purpose. 1. Nature • Ministerial- involves merely execution of a specific duty arising from fixed facts; cannot use own judgment Discretionaryrequire the exercise of reason and discretion as to how an act should be done

RCPI VS SANTIAGO The Public Service Commission imposed a fine on RCPI for failure to render service expected of a radio operator. RCPI alleges PSC lacks power to impose the fine. The power is neither expressly nor impliedly granted to the PSC in the Public Service Act. Thus it has no power to impose the fine. A public officer must locate in the statute relied upon a grant of power before he can exercise it. The grant need not be express. Territorial limitation of authority: 1. 2. Limited to territory where the law has effect Action in a place not covered by law is invalid 2. Obligation to perform • Mandatory- if for the benefit of the public or individuals; intended for the protection of citizens Permissive- designed merely to secure order, uniformity, system and dispatch in public business; does not affect 3rd persons; not beneficial to the public

3.

Relationship officer to his subordinates • Power of control- power to manage, direct, govern, or set aside, alter modify what a subordinate had done and to substitute his own judgment; this power to redo or undo is discretionary

Duration of authority: 1. Public officer cannot exercise authority before his term begins and after it has terminated If officer was appointed to perform a single act, he becomes functus officio once he has acted on that particular subject

2.

Power of supervisionmere oversight; merely sees to it that the rules are followed; cannot prescribe the manner for doing an act Discretion- “the act or the liberty to decide according to the principles of justice and one’s ideas of what is right and proper under the circumstances without willfulness or favor.” Limitation to discretion- must not be arbitrary, capricious, inquisitorial or oppressive.

Construction of grant of powers: Strict interpretation. Only those which are expressly imposed or necessarily implied will be deemed to have been granted.

If mandatory- uses the word “shall”

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If discretionary- uses the word “may” If duty is partly ministerial and discretionary, mandamus will NOT lie. partly

1.

If the duty sought is purely ministerial, the courts will require the public officer concerned to perform a specific action (ex. “Sign the clearance of Lamb.”) If the duty is purely discretionary, the courts by mandamus will require action only (ex. “Decide now what to do with Lamb’s clearance.”)

2. LAMB VS PHIPPS After many years of faithful service to the government, Lamb retired and accounted for all govt. property and funds in his possession. Auditor Phipps refused to sign his clearance because of an alleged danger of a probable suit by a creditor of the govt. Does Phipps have legal duty to sign the clearance? Yes. Lamb’s accounts are balanced. However, Lamb failed to exhaust the administrative remedy of appeal to the Governor-General. When the final decision of a question is left by law to the executive branch, the courts will not interfere until the remedy in that branch has been exhausted or is not always there. APRUEBA VS GANZON Cafeteria owners and operators filed suit against the mayor for his refusal to allow the opening of the cafeteria. They claim it is the mayor’s ministerial duty to allow them to operate a cafeteria since they have no delinquency in rentals and have complied with health regulations. Mayor has discretion to renew permit to operate or not. Thus he cannot be subject to mandamus. The discretion to renew or not is part of police power. MIGUEL VS ZULUETA Provincial engineer put “President Garcia Hall” on the façade of the provincial capitol instead of just in a renovated session hall therein. May he be compelled by mandamus to remove the sign? Yes. Because the law expressly prohibits the naming of public buildings after living persons. The object of mandamus is to procure observance of the law. Mandamus- the remedy to compel action of a public official who is in unreasonable delay in exercising his clear duty imposed by law.

Can discretionary powers be delegated? No. Because the presumption is that the officer who was granted the power was chosen for his competence to exercise that judgment. Exception: if the power to substitute another in his place has been granted to him.

TORRES VS RIBO The asst, district engineer and chief clerk represented the district engineer and division superintendent of schools in the provincial Board of Canvassers. This cannot be done. the Board are designated outside this enumerated list Board because its powers ministerial. The members of by law. No one can serve in the are not purely

Ministerial act When delegation allowed is When there is no express prohibition When the law requires the act to be done by the officer himself

Discretionary When power to delegate is granted to the officer When power delegate granted no to is

When is it not allowed

When must official acts be performed? 1. 2. Where the law states no time- must be performed within a reasonable time Where the law forbids the performance of the act at any other time than that provided- the time is mandatory

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3.

Where the law provides for the time but does not prohibit doing the act at any other time- time is directory only

mandamus- if the person will sustain personal injury by the officers’ refusal to act; or injunction- if the person will sustain personal injury for which adequate compensation cannot be had in law

Ratification of unauthorized acts: Rules1. The state is not estopped by the unauthorized or illegal acts of its agents. However these acts may be ratified • Ratification does not apply if the act was absolutely VOID at the time it was done, i.e. the principal (state) itself could not have lawfully done the act, or it could not have been lawfully done by anyone If the act was merely voidable, it can be rendered valid by ratification

Standard of personal conduct for public officials and employees (from the Code of Conduct and Ethical Standards) 1. 2. 3. 4. 5. 6. 7. 8. Commitment to public interest professionalism Justness and sincerity Political neutrality Responsiveness to the public Nationalism and patriotism Commitment to democracy Simple living

2.

Where superior officers have authority to ratify acts of their inferiors, they are restricted to ratification of acts and contracts which such superior officers are themselves empowered to make AMERICAN TOBACCO CASE

Duties of the Civil Service Commission with respect to the above standards: 1. Promote their observance by disseminating information programs and workshops authorizing merit increases Continue research and experimentation on measures that provide positive motivation to public officers and employees in raising general level of observance of these standards

2. An officer can delegate the power to hear, but not to decide cases as the latter involves the use of personal judgment and appointment to the position has been based on his personal qualifications. To hold otherwise would be to violate an individual’s right to procedural due process. Judicial review of official acts: 1. where act involves exercise of discretionary power- judiciary will not interfere unless there is: • • • 2. arbitrary decision abuse of discretion fraud or corruption that vitiates the action taken

System of incentives and rewards: 1. Criteria• • • • • • • Years of service Quality and consistency of performance Obscurity of position Level of salary Unique and exemplary quality of achievement Risk of temptation inherent in work; and Any similar circumstance or consideration in favor of the awardee

where act involves performance of purely ministerial duty- can be either compelled or restrained by:

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2.

Forms of incentives and rewards• • • • • • Bonuses Citations Directorship in GOCC Local and foreign scholarship grants Paid vacations Automatic promotion to next higher position suitable to his qualifications. If none is available, salary increase equivalent to the next higher position.

2.

Where personal interest is involved- he cannot have an adverse interest in any contract which he executes in behalf of the public Duty to make financial disclosure:

Art. XI Sec. 17 Constitution- “a public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth…” MORFE VS MUTUC

Duties of public officers as trustees for the public: In general, his duty does NOT include risking or giving up his life or incurring permanent disability. However, when the need to do that becomes necessary, then the need for him to sacrifice is increased so as to preserve the peace and enforce the laws.

The constitutionality of the legal requirement on government officials and employees to submit a sworn declaration of financial conditions, assets, and liabilities is questioned as being allegedly in violation of a person’s right to due process, an oppressive exercise of police power, unlawful invasion of right to privacy, unreasonable search and seizure, violates prohibition against selfincrimination, and insults personal integrity. The law is presumed valid. But let’s indulge petitioner’s specific allegations:

General duties: 1. Obey all law found in stature books until its constitutionality is judicially passed upon in a proper proceeding Accept and continue office when elected or appointed. Any attempt to resign does not relieve him of obligation to perform until a successor is appointed Accept burden of office Be diligent, use reasonable skill and diligence, utilize public funds and property like a good father of the family Make the best available appointments, exercise ordinary care to see that subordinates perform their duties Ethical duties: 1. As to outside activities- refrain from outside activities when they interfere with his official duties. Congress has power to ascertain what activities are inconsistent with his official duties

1.

The aim of the law is to curtail corruption, thus it is for the public good. This exercise of police power is valid The standard of due process is freedom from arbitrariness. In this case, given the harsh realities of greed in public service, the law is reasonable Right to privacy is subject to state control in cases of public servants Right against unreasonable search and seizure is limited to safeguarding the sanctity of the home and the privacy of communication and correspondence Guarantee against self-incrimination requires existence of actual cases criminal, civil or administrative before it can be invoked AS to allegation that it insults integrity of public officials, court cannot inquire into the wisdom of the legislation due to separation of powers of public officials and

2.

2.

3. 4.

3. 4.

5.

5.

6.

Specific duties employees:

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1.

Act promptly on letters and requestwithin 15 days from receipt • If the communication is within the jurisdiction of the office and is routine- write a letter of acknowledgment saying it will be acted upon and specify the date when. If not routine, inform them of actions to be taken, or require documents if necessary If outside its jurisdiction- refer the letter to the proper agency, and acknowledge the letter by means of note or letter, attach the letter of referral

• • •

Legal constraints restraining orders

such

as

Fault, failure or negligence of the party concerned Force majeure action or

Who may sign the written declaration of a public office?

General rule: it must contain not more than 3 initials or signatures. In the absence of the duly authorized signatory: 1. 2. If there is only one official next-in-rank, he is automatically the signatory If there are 2 or more next-in-rank, the head of the department shall prescribe through an office order the order of priority If there is no official next-in-rank present and available, the head shall designate an officer-in-charge from among those next lower in rank

2.

Submit annual performance reportswithin 45 working days from the end of the year Process documents expeditiously Act immediately on personal transactions and papers 3.

3.

4. 5.

the

public’s

Public disclosure of statements of assets and liabilities: Disclosure includes those of spouses and of unmarried children under 18 living in the household. 1. Statement of Assets and Liabilities and Financial Disclosure- includes all public employees and officials except if honorary, laborers, casual or temporary

Make documents accessible to the public

Processing of papers and documents: Processing must be within reasonable time from preparation thereof. Determination of reasonable time: 1. 2. Where the law prescribes a period, then it shall be followed Where no period is prescribed, the department head shall issue rules prescribing what is reasonable time, taking into account: • • Nature, simplicity or complexity of the subject matter Completeness or inadequacy of requirements or data or information Lack of resources caused by circumstances beyond the agency’s of officer’s control

Contentsi. ii. iii. iv. v. information on real property and its fair market value; personal property and its acquisition cost; all other assets such as investments; financial liabilities current and long-term; all business interest and financial connections

When to filei. within 30 days after assumption of office;

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ii. iii.

on or before April 30 every year thereafter; within 30 days after separation from service

3.

Accessibility of documentsAvailable for copying and reproduction at all reasonable hours • Available for copying and reproduction within 10 working days after filing • Any person who wants a copy shall pay reasonable fee • Available to the public for 10 years after filing. After that, may be destroyed unless needed in an investigation Prohibited acts- it shall be unlawful for any person to obtain or use any statement filed for: • • Any purpose contrary to morals or public policy; or Any commercial purpose than by news and communications media for dissemination to the general public •

Where to filei. President, VP and constitutional officialswith the National Office of the Ombudsman Senators and congressmen- with the secretaries of the senate and the house Justices- with the clerk of the SC Judgescourt administrator All national executive officials such as members of cabinet and heads of GOCCswith the Office of the President Regional and local officials both appointive and elective and employees of GOCCswith the Deputy Ombudsman in their respective regions Officers of the Armed Forces from rank of colonel or naval captain- with the OP. If below said ranks, with the Deputy Ombudsman in their respective regions All other public officials and employees- with the CSC

ii.

iii. iv. v.

4.

vi.

5.

vii.

Review and compliance proceduresthe following have authority to determine the above statements have been properly accomplished: • Congressthe designated committees, subject to approval by majority vote of either senate or house Executive dept.heads of departments, agencies, offices Judicial dept.- chief justice Constitutional Commissions and Offices- their respective chairman and members

• • •

viii.

Authority in favor of Ombudsman to obtain from all appropriate govt. agencies documents that show assets, liabilities and business interests in previous years- all public officials and employees must file this document within 30 days from assumption of office

Transparency of transactions and access to information: It is the responsibility of heads of departments, offices and agencies to establish measures that will ensure transparency in public transactions in their respective offices. Every office information, except if: shall provide official

2.

Identification and disclosure of relatives- up to 4th civil degree or consanguinity or affinity

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1. 2. 3.

4. 5. 6.

it must be kept secret in the interest of national defense or security or the conduct of foreign affairs disclosure will put the life and safety of an individual in imminent danger the information sought falls within established privilege, i.e. cabinet sessions, SC deliberations, trade secrets, etc. information comprises drafts of decision, orders, rulings, memoranda, etc. information is personal, disclosure will constitute invasion of right of privacy investigatory records where disclosure will• • • • • interfere with enforcement proceedings deprive a person of right to fair trial disclose the identity of a confidential source unjustifiably disclose investigative techniques prematurely disclose information such as: i. currencies, securities, commodities, which will likely lead to financial speculation a proposed official action not yet disclosed to the public, where disclosure may frustrate its implementation administrative

• • -

-

right incident to public office conferred by Consti and law right as a citizen some must be curtailed due to the public character of employment: o not entitled to same protection from publications (privacy) o required to refrain form certain political or business activity however, government must show that restraints rationally relate to enhancement of public service Right to Compensation

• -

• •

power of Congress to fix compensation not inherently and exclusively legislative in character may be delegated to other bodies unless Consti expressly or impliedly prohibits it admin boards may fix compensation w/in statutory limitations and such discretionary actions is ordinarily not reviewable by the courts it is not an element of public office merely an incident of public office attaches to the office, not the officer objective: so that public officials will give due attention to their duties & perform them better. Forms of Compensation compensation o pay for doing all that may be required, whether in the form of fixed salary, per diems, commissions salary o personal compensation to be paid for his services o generally, a fixed annual or periodical payment depending on the time and not the amount of service o vs. wages which are given to officers of lower degree of employment and paid per day or week per-diem o daily allowance given for each day an officer or employee is away from the home base o usually a reimbursement for extra expenses o the nomenclature given is not controlling; will not be considered per diem if given in the nature of remuneration or compensation for full time work o not deemed salary in relation to Consti provision that no change in

ii.

• -

-

Reforms systems: 1. 2. 3. 4. 5. 6. 7. 8.

on

public

Conduct value development programs Conduct professional programs like technical trainings Conduct studies and analyses or work systems Develop and make available a service guide for the transacting public Consult the public for feedbacks and suggestions Conduct research and experimentation on innovative programs Designate a resident Ombudsman Consult and dialogue with staff

-

CHAPTER V. RIGHTS AND PRIVILEGES In General

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-

-

the compensation of officers shall affect the salary of any officer during his existing term honorarium o something given not as a matter of obligation, but in appreciation for services rendered o voluntary donation in consideration for services which admit of no compensation of money emoluments o profit arising from the office o does not refer to fixed salary alone but includes such fees and compensation as the incumbent is, by law, entitled to receive Basis of the Right to Compensation creation of law (not contractual in nature) for services rendered o but not for those rendered under unconstitutional statute or provision thereof legal title to office o General Rule: one without legal title to office either by appointment or election is not entitled to recover salary amount of compensation: factors of responsibilities and qualifications o determining factor: nature of an official’s position o it is the official’s Grade that determines his salary, not the other way around. Recovery of Compensation from the government o generally, de jure cannot recover that was has been paid to de facto unless the government continues to pay even after notice of adjudication in favor of the de jure o in cases where there is no de jure, even a de facto may recover compensation if: in good faith has possession of the office has discharged the duties from the de facto o after notice of adjudication in favor of de jure, the latter can recover from the de facto o if tenure is "wrongful", de jure can recover o if he became de facto in GF and has rendered the services, de jure cannot recover

-

from the intruder or usurper o can recover intruder/usurper

from

the

Gen Rule (Monserrati case): A de facto officer that assumes office when there is a de jure officer assumes such office at his own risk. Rodriguez vs. Tan One who has been proclaimed winner of an election and had assumed office but was later ousted because of an election protest was a de facto officer hence entitled to the compensation. There is no de jure officer until after proclamation (decision on the protest). Hence, de facto is entitled to the salary.

• -

-

Monroy vs. CA Where a mayor withdrew his certificate of candidacy, he does not resume his post as mayor. Therefore he cannot be entitled to the compensation attached to said office. Mayor was ordered to reimburse the vicemayor. • Salary not subject to Compensation Salary of a public officer/employee may not, by garnishment, attachment, or order of execution, be seized before being paid to him and appropriated for payment of his debts. Why? o while the money is still with the disbursing officer, it's still public funds o public policy - will be fatal to public service o tantamount to a suit against the government Garnishment: a species of attachment for reaching credits belonging to the judgment debtor owing to him from a stranger to a litigation. De la Victoria v Burgos The salary check of a government official does not belong to him before it is physically delivered to him. Until that time, the checks belong to the

-

• -

-

-

-

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government. Accordingly, before there is actual delivery of the check, the payee has no power over it. Thus, he cannot assign it without the consent of the government. Rationale: the functions and services of the state cannot be allowed to be paralyzed by or disrupted by the diversion of public funds from their legitimate and specific objects as appropriated by law.

-

-

De la Victoria v Burgos: even if salary is not in cash, the doctrine still applies. What matters is the fact of delivery. In case of ATM’s, the point when the bank credited the money to the employee’s account is determinative at which point public money becomes private money. • Agreements Affecting Compensation invalid as against public policy where it tends to pervert such compensation to a purpose other than for which it was intended and to interfere with the officer's free and unbiased judgment in relation to the dirties of his office. The following have reference to unperformed services: o Agreement to accept, or acceptance of less or other than legal compensation-illegal, whether made in good faith or not o Sale, assignment, or barter of salaryprohibited as against public policy. o Dividing compensation with othersinvalid if it amounts to an anticipatory assignment of the emoluments of office; public policy forbids assignments of salaries or fees before they are earned. Such bargains create no legal obligation. Effects: can recover salary notwithstanding acceptance of lesser compensation and that he is party to an illegal contract. The moment the salary becomes private property, the public official/employee is free to contract.

The Constitution prohibits Congress from reducing the salary of certain constitutional officers during their term or tenure to secure their independence: President and Vice President (Art VI, Sec.6) Chief Justice, Associate Justices of the Supreme Court, and judges of lower courts (Art VIII, Sec. 10) Chairmen and members of the Constitutional Commissions (Art. IX-A, Sec. 3) Ombudsman and his Deputies (Art. XI, Sec. 10 and Art. VI, Sec. 10) Congress may increase the salaries of Senators and congressmen but such will not take effect until after the expiration of the full term of the members of Congress approving such increase. Prohibition Against Receiving Additional, Double, or Indirect Compensation Consti, Art. IX-B, Sec. 8: No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. The prohibition does not apply in the ff. cases: o Payment is specifically authorized byJaw in individual instances where it appears just and necessary. o Additional compensation is received not from government or any of its entities. o Double Appointments: Where there are two distinct offices, but officer may draw the salary attached to the 2nd position only when he is specifically authorized by law. Free Voluntary Service to the Government Refers to services rendered by persons who are in government without pay or compensation. Requirements: o Issuance of an appropriate document; o Fitness and suitability for the duties and responsibilities of the particular position; and

• -

-

• -

• -

Prohibition Against Diminution of Salary Congress has absolute power to fix or alter the compensation of public officers, except as provided by the Constitution.

-

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o -

Compliance nepotism.

with

the

rule

on

o

Functions or Services that Volunteers can Perform o Advisory, consultancy/counseling, recommendatory, professional services, staff work i.e research, and humanitarian Applicable laws and rules-RA6713 Code of Conduct and Ethical Standards for Public Officials and Employees and Implementing Rules Exemptions of volunteers o filing of statements of assets, liabilities, and net worth, and financial disclosures o requirement on divestment o eligibility requirements o security of tenure Prohibitions o Exercising supervisory functions over personnel; o Exercising functions or positions involving national security; o Access to confidential or classified information unless authorized by the proper authorities; o Occupying regular plantilla positions; o Having such services credited as government service and availing themselves of retirement benefits; o Using facilities and resources of the office for partisan political purposes; o Receiving any pecuniary benefit (i.e., honoraria, allowances, & other perquisites) in office. Other Rights

Mass actions done outside of gov’t office hours may be allowed and not deemed prohibited so long as such would not result in disruption of work.

-

-

-

The right to protection of temporary employees o given such protection as may be established by law [Art. IX-B, sec. 2 (6)]1. o they do not enjoy security of tenure but the provision cited above aims that they would be protected from indiscriminate dismissals and that their separation or replacement is made only for justifiable reasons. Freedom of members of Congress from arrest and from being questioned o Consti, Art VI, Sec.11: A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. The right not to be removed or suspended except for cause provided by law o implicit is the existence of a charge, due hearing, and finding of guilt by the proper authority. People v Jalosjos Jalosjos asked that he be fully allowed to fully discharge duties as congressman despite his conviction as on a non-bailable offense. Court held that government officials are subject to law. The performance of legitimate and even essential duties has never been an excuse to free a person from prison. His right to discharge his functions is suspended for a cause provided by law – conviction of a crime. Rights under the Civil Service Decree and the Administrative Code

-

-

-

• -

Rights Under the Constitution The right to self-organization o includes the right to form labor organizations or unions and the right to collective negotiation (Congress has yet to define this concept and provide a mechanism to carry out the constitutional intent). o excludes the right to bargain collectively with the government or to engage in concerted activities, i.e., right to strike since terms and conditions of government employment are fixed by law.

1

The right to preference in promotion : The Next-in-Rank Rule

Temporary employees of the Government shall be given such protection as may be provided by law.

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o

o

o

If the vacancy is not filled by promotion, it shall be filled by: transfer, reinstatement, reemployment, appointment. Qualified next-in-rank employee can appeal to the secretaries or heads of agencies including GOCCs with original charters  MSPB  CSC CA  SC within 30 days from receipt of decision by the aggrieved party 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 supposed to be filled and who meets the requisites for appointment as previously determined by the appointing authority and approved by the Commission.

o o -

Applies only in cases of promotion; neither grants a vested right nor imposes a ministerial duty. One who is next-in-rank is given only preferential consideration.

Reason for rule o Assumption is employee has gained not only superior skills, but also greater dedication to the public service. Discretion of appointing authority o Appointing authority is given discretion to fill the vacancy among several alternatives: promotion, transfer, reemployment, appointment. Meram vs Edralin

-

The law merely gives the right to be considered. One should not expect automatic promotion as the appointing authority will still exercise his discretion. The right to present complaints and grievances o includes the right to have them adjudicated expeditiously, resolved at the lowest possible level and appeal to higher authorities. The right not to be suspended or dismissed except for cause as provided by law and after due process The right to organize o Government employees shall not be discriminated against in respect of their employment by reason of their membership and participation in the normal activities of their organizations. o Government interference in the establishment, functioning, or administration of government employees organizations through acts designed to place such organizations under the control of government authority. Next-In-Rank Rule Not a mandatory requirement

The appointee is nine or ten salary ranges below the next-in-rank personnel. Her appointment was based on erroneous considerations (blood ties, influence, ethnic/regional affiliations). Under Civil Service Law, appointment should be based on merit and fitness and should never depend on how intimate a friend or how closely related an appointee is to the powers that be. Thus, the next-in-rank deserved to be appointed to the vacated position. • Personnel Actions According to the Civil Service Decree, it denotes the movement or progress of personnel in the civil service. They must be in accordance with the rules, standards, and regulations as may be promulgated by the Commission. Appointment through Certification o Issued to a person from a list of qualified persons certified by the CSC from an appropriate register of eligibles (i.e. those who passed the competitive exams) and who meets all the other requirements of the position. Promotion o Movement from one position to another with an increase in duties and responsibilities and accompanied by an increase in salary. o Factors considered: performance, training, education, fitness, personality, potential

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-

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• -

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Transfer o Movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment o An employee may appeal to the Commission if he believes that there is no justification for his transfer. o Movement from non-career service to the career service shall not be considered a transfer. o A temporary transfer is permissible even without the employee's prior consent except when it is made as a prior step to his removal or is used as a scheme to lure him away from his permanent position or is designed to indirectly terminate his service or force his resignation. Vinzons-Chato v Natividad BIR organization was streamlined. Blas was transferred from Cagayan to Pampanga. His transfer did not entail any diminution in rank, salary, status and responsibilities. His transfer was part of a nationwide reshuffle/reassignment. To sustain that his transfer constitutes demotion because it was not to his liking would subordinate gov’t projects to individual preferences of civil service employees. This negates the principle that public office is a public trust and that it is not the private preserve of any person. Divinagracia vs Sto. Tomas

2.

3. 4.

substantial change in title, rank and salary( look into the 'nature of the appointment) a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the energy transfer or reassignment of an officer pending the determination of an administrative charge against him; the transfer of an employee from his alleged station to the main office, effected in good faith and in the interest of the service pursuant to Sec. 32 of the Civil Service Act.

-

Reinstatement o Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. Reemployment o Applies to those who have been permanently appointed to positions in the career service and who have been separated as a result of reduction in force and of reorganization. Detail o Movement of an employee from one department or agency to another without the issuance of an appointment; shall only be for a limited period in the case of employees occupying professional, technical, and scientific positions. o Employee may appeal to CSC if he believes detail is without justification; pending appeal, decision shall be executory unless otherwise ordered by the Commission. Reassignment o Movement from one organizational unit to another in the same department which does not involve a reduction in rank, status, or salary, otherwise it is tantamount to constructive removal in violation of his right to security of tenure.

-

-

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 employees' consent. For that would, constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. EXCEPTIONS (TO THE RULE THAT UNCONSENTED TRANSFER AMOUNTS TO REMOVAL): 1. Where the appointment does not indicate a specific station, an employee may be transferred or assigned provided the transfer affects no

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• -

Rights under the Revised Government Service Insurance Act Covered: o All government employees upon assumption to office pursuant to a valid appointment or election and oath of office o Barangay and Sanggunian Officials who receive basic pay o Elective Officials during their term Excluded: o Uniformed members of the AFP and the PNP and those not receiving basic pay or salary o All covered employees mandated to pay contributions except members of the Judiciary and the Constitutional Commissioners. Benefits: o Retirement o Separation o Unemployment Separation o Disability o Survivorship o Funeral o Life Insurance

o o

To entice or encourage faithful and competent employees to enter or remain in the service. To allow employees who have become incapacitated by illness or accident to continue discharging his duties to retire from the service with a relative financial security, allowing younger and more vigorous persons to take their place.

• -

Pension and Gratuity Distinguished Gratuity o Donation; an act of pure liberality on the part of the State o Benefits accruing under GSIS policy are not gratuities; they are contractual obligations of the government. The insured pays for said policy by means of required salary deductions. o Vacation leave, sick leave, leave of absence with pay: these are not gratuities, either. These are forms of compensation for services rendered. Pension o More than an act of generosity; it is an act of justice emanating from the desire to provide, though tardily, adequate compensation for services already rendered for which one had not received complete and adequate reward at the time when services were rendered. o Benefits accruing under a government service insurance policy are not gratuities but contractual obligations of the government. Construction of Retirement Laws General Rule: o Retirement laws or statutes creating pensions, being remedial in character, should be liberally construed and applied in favor of the persons intended to be benefited by them. o All doubts as to the intent of the law should be resolved in favor of the retiree. Note: SC, in the interest of liberal construction, allows seeming exceptions to fixed retirement rules, provided there are ample reasons behind each grant of exception. Exception:

-

-

or

Involuntary -

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Retirement paid to member w/ at least 15 yrs of service at least 60yrs old not receiving monthly pension benefit from permanent total disability

Rabor Case: (overturned Cena case) employees who have reached the compulsory age of retirement (60yrs) but has less than 15 yrs of service is given 1 year extension to complete the required 15yrs. This 1 year limit on extension is • valid and germane to the purpose of the Pension Defined Regular allowances paid to an individual or group of individuals by the government in consideration of services rendered, or in recognition of merit, civil or military. • Nature and Purpose of Pension Not a gratuity, but a form of deferred compensation for services performed. o Right commences upon retirement and becomes an enforceable obligation in court. Partakes of retained wages for a double purpose:

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The doctrine of liberal construction of retirement laws cannot be applied where the clear intent of the applicable law and rules are demonstrably against the retiree's claim. Tantuico v Domingo

No deductions were made from the salaries of the Vice-Governor during a short interregnum before and after which she had been receiving a fixed salary. She nevertheless wants to avail of retirement benefits during said interregnum despite having failed to make contributions to the GSIS. SC says that since (1) basis for retirement benefits is service to the government, (2) contract between GSIS and government employee is virtually a contract of adhesion, (3) source of GSIS is social legislation, then the situation in this case can be rectified by allowing petitioner to avail of the retirement benefits and simply deducting a reasonable amount corresponding to the contributions which should have been deducted during the interregnum. Conte v. COA Benefits provided under SSS Resolution No. 56 are NOT considered simply as financial assistance for retiring employees but as a supplementary retirement plan proscribed by RA No. 4968. Said RA bars the creation of any insurance or retirement plan — other than the GSIS – for government officers and employees, in order to prevent the undue and iniquitous proliferation of such plans. It is simply beyond dispute that the SSS had no authority to maintain and implement such retirement plan, particularly in the face of statutory prohibition; SSS cannot, in the guise of rule-making, legislate or amend laws or worse, render them nugatory. Brion v. South Philippine Union Mission of the Seventh Day Adventist Church The conditions for eligibility for retirement must be met only at the time or retirement; these conditions are not continuing ones which must be complied with even after one has retired. SDA no longer exercises control over the employee's conduct because his employment has already been deemed terminated. As SDA chose not to include in its General Conference Working Policy an analogous provision limiting/prohibiting a

Regardless of petitioner’s monetary liability to the gov’t that may be discovered from the audit concerning his accountability as COA chairman, his retirement benefits cannot be withheld under retirement law. Pension is a bounty flowing from the graciousness of the gov’t intended to reward past services and provide pensioner with means to support himself and family. If such gratuity could not be attached or levied upon execution, the appropriation of it by administrative action would lead to the same prohibited result. Santiago v. COA Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully, even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. . . He should be able to luxuriate in the thought that he did his task well, and was rewarded for it. Allarde v. COA The provisions of Sec. 3, PD No. 1438 are clear. . .inasmuch as the law limits the computation of the lump sum to 'the highest monthly salary plus the highest monthly aggregate of transportation, living and representation allowances. . .' It is understood that other allowances are excluded. Inclusio unius est exclusio alterius. Note: SC says honorarium is therefore not included in the computation of retirement benefits. GSIS v. CSC

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retiree/pensioner from engaging in competitive business; it cannot, for its lack of foresight, now seek to extricate itself from a messy situation through the assistance of the Court. • Right to Reimbursement and Indemnity. Right of public officer to reimbursement for legitimate charges incurred on the public account and (1) not covered by public officer's salary or commission, (2) not attributable to his own neglect or default. Right of public officer to be indemnified by public for consequences of acts he was expressly or impliedly required to perform upon the public account. Right to Salary Reinstatement and Back

speaking, his position never became vacant and he is considered as not having left the office. Duty of plaintiff seeking reinstatement is to prove his right to the office when he was dispossessed therefrom. Illegally dismissed employee/official is entitled to reinstatement and the rights and privileges accruing by virtue of said office. If reinstatement is no longer feasible or cannot be enforced, he should be entitled to a comparable position, if feasible; he is also entitled to back salaries Public officer/employee has the duty to act with reasonable diligence in asserting his right to reinstatement. Pardon does not ipso facto restore a convicted felon to public office. If he wants to regain his former post, he must re-apply and undergo the usual procedure required for new appointment. Tan Jr v OP Tan was exonerated and reinstatement was ordered. OP however did not make any award for back salaries. Based on principle “no work, no pay”. SC held(citing Cristobal v Melchor) that when a gov’t official or employee/official in the classified civil service has been illegally dismissed and his reinstatement has been ordered, for all legal purposes, he is considered as not having left his office so that he is entitled to all rights and privileges that accrue to him by virtue of the office that he held. Back salaries is limited to 5 years. Gloria v CA Right to back salaries: Two situations A. For preventive suspension pending investigation even if employee is exonerated – No! because of principle of “NO WORK NO PAY!!!!” MECHEM: An officer who has lawfully been suspended from his office is not entitled to compensation for the period during which he was suspended even though it be subsequently determined that the cause for which he was

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Reinstatement o Restoration to a state or condition from which one had been removed or separated. o One who is reinstated assumes the position he had occupied prior to the dismissal. Backwages o A form of relief that restores the income that was lost by reason of unlawful dismissal. Where removal or suspension was lawful, officer is not entitled to compensation for the period during which he was so suspended or separated, in accordance with the principle of "as he works, he shall earn". Where removal or suspension was unlawful, officer can recover the full amount of his unpaid salary notwithstanding that during said period of his removal or suspension, the salary was paid to another appointee. Where suspended employee is later found innocent, backwages may be allowed for the period when an employee was not allowed to work without his fault. Where another was appointed to the position of the illegally dismissed or suspended employee, the aggrieved employee is entitled to backwages because legally

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suspended was insufficient. The reason is that salary and perquisites are the reward of express or implied services and therefore cannot belong to one who could not lawfully perform such services. B. For preventive suspension pending appeal if employee is exonerated – yes! because he is penalized even before his sentence is confirmed

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PAGCOR v Salas It is already a settled rule that backwages may be granted to those who have been illegally dismissed and consequently ordered reinstated, or to those acquitted of the charge against them. However, backwages cannot exceed five years.

if indispensable in the proper conduct of the office, the records belong to the public o if not required by taw and are prepared by the officer apart from his official duties, and they are not indispensable in the proper conduct of the office, officer acquires a property right. Same rules apply with respect to inventions. Whatever invention public employee conceives and perfects is his individual property unless: o he merely produced what he was employed to invent o he was otherwise employed to use his inventive faculties. o Right to Recover Reward for Performance of Duty General Rule: o A public officer will not be permitted to recover a reward offered by the public for the performance of an act which was part of his official duty. Exception: o Where law expressly authorizes recovery. Reason: o Unethical to be rewarded for dirties for which you have already been compensated.

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Suspension (as disciplinary measure) Lawful No reinstatement reinstatement No backwages backwages Unlawful Entitled to and

if another person appointed to your position? If you win case, oust that person! Position never became vacant. If office is abolished? comparable position. Reinstate to

May one waive his right to renstatement? Yes!

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Right to Property, Devices, and Inventions Title to public office carries with it the right to the insignia and property thereof. Refer to the facts of the case in settling the question of whether or not records, etc belong to the public.

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Source of Prohibition Under the Constitution

Officers Covered President

Chapter 6 Table When the prohibition apply During their tenure

Disabilities and Inhibitions Shall not hold any other office or employment unless Consti provides otherwise shall not profession practice any other

shall not participate, directly or indirectly in any business shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or special privilege grnated by the government or any subdivision, agency or instrumentality thereof including any government owned or controlled corporation or their subsidiaries shall strictly avoid conflict of interest in the conduct of their office *** cannot appoint his spouse and relatives by consanguinity or affinity within the 4th civil degree to certain positions Consti Article 6, section 13 cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

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Vice President

During their tenure

-- same as President except ***-cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Members of the Cabinet and their deputies and assistants

During their tenure

-- same as President except ***-cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Senator or Member of the House of Representative

During his term if he violates provision, he may forfeit seat member of Congress shall not be eligible for appointment to such office even if he resigns or loses his seat before the end of his term

Cannot hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including GO/CC or their subsidiaries Cannot personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies Shall not directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any GO/CC or its subsidiary.

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financial interest: that which involves financial investment or business out of which a member of Congress is to derive profit or gain

Shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office Cannot hold incompatible offices any kind of office or employment in the govt. xxx any other office of employment: includes any position in the govt outside Congress, including ex-0fficio membership of any noncongressional body, committee or commission in any guise whatsoever, unless the 2nd office of employment is connected with or in aid of legislative duties note: may hold another office by the automatically forfeits his elective office

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Cannot hold forbidden offices Cannot be appointed to

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any office which may have been created or the emoluments thereof increased during the term for which he was elected cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution Members of the Constitutional Commission During their continuance in office Cannot hold any other office of employment Cannot engage in the practice of any profession or in the active management or control of any business which in anyway may be affected by the functions of his office Cannot 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 GO/CC or their subsidiaries cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

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Members of the Supreme Court and other courts

Cannot be designated to any agency performing quasi-judicial or administrative functions cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Officer or employee in the civil service Any elective official During their tenure

Cannot engage, directly or indirectly, in any electioneering or partisan political campaign Not eligible for appointment or designation in any capacity to any public office or position Elective public officer or employee: cannot accept without the consent of Congress, any present, emolument, office, or title of any kind from any foreign government Elective public officer or employee: cannot receive additional, double or indirect compensation unless specifically authorized by law pensions or gratuities not contemplated by law Cannot hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GO/CC corporations or their subsidiaries unless allowed by law or

Any appointive official

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when required by the primary functions of his position cannot accept without the consent of Congress, any present, emolument, office, or title of any kind from any foreign government

appointive public officer or employee: cannot accept without the consent of Congress, any present, emolument, office, or title of any kind from any foreign government appointive public officer or employee: cannot receive additional, double or indirect compensation unless specifically authorized by law pensions or gratuities not contemplated by law Shall not engage directly or indirectly in any partisan political activity, except to vote Cannot be appointed or designated in any capacity to a civilian position in the Government including GO/CC or any of their subsidiaries cannot, directly or indirectly,be granted any loan, guaranty, or other form of financial accommodation for any business purpose by any GO/CC ir financial institution

Member of the armed forces in the active service

Ombudsman

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Under the Civil Service Decree

Officer or employee in the civil service

Cannot engage, directly or indirectly, in any partisan political activity or take part in any election except to vote Cannot use his official authority or influence to coerce the political activity of any other person or body Cannot be detailed or re-assigned within 3 months before any election Cannot engage, directly or indirectly, in any partisan political activity or take part in any election except to vote Cannot use his official authority or influence to coerce the political activity of any other person or body Cannot receive additional or double compensation unless specifically authorized by law Cannot accept, without the consent of the President, any present, emolument, office or title of any kind from any state Cannot receive additional or double compensation unless specifically authorized by law Cannot accept, without the consent of the President, any present, emolument, office or title of any kind from any state Cannot be assigned to perform

Member of the armed forces

Any elective employee

public

officer

or

Any appointive employee

officer

or

Laborers

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clerical duties Under Code the Local Government Any local government official or employee Prohibited business pecuniary interest Practice of profession Partisan political activity -- see main part of reviewer for specific provisions -Under the Civil Code Public officers and employees Cannot acquire by purchase, even at a public or judicial auction, either in person or thru the mediation of another the property of: the State or any subdivision thereof or any GO/CC or institution the administration of which has been entrusted to them applies to judges and government experts who, in any manner whatsoever, take part in the sale Property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions includes the act of acquiring by assignment shall apply to lawyers, with respect to the property and rights which may be the object of any and

Justices, judges, prosecuting attorneys, clerks of courts, officers and employees connected with the administration of justice

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litigation in which they may take part by virtue of their profession applicable to sales in legal redemption, compromises and renunciations

Under the Central Bank Act

Governor of Bangko Sentral Full time members of Monetary Board

the

Personnel of the CB

May not accept any other employment, whether public or private, remunerated or ad honorem, with the exception of positions in eleemosynary, civic, cultural and religious organizations - may also be designated by the President to represent the interest of the Government or other government agencies in matters connected with or affecting the economy or the financial system of the country Cannot be officer, director, employee or stockholder of any institution subject to supervision or examination by the Bangko Sentral except non-stock savings and loan associations and provident funds organized exclusively for employees of the Bank and except as otherwise provided in the act cannot request or receive any gift, present or pecuniary or material benefit for himself or another, from any institution subject to supervision or examination by the Bank

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must not reveal in any manner, except under order of the Court, the Congress or any government office or agency xxx any information relating to the condition or business of any such institution prohibited from borrowing from any such institution unless the loan is adequately secured, fully disclosed to the Monetary Board and further subject to further rules and regulations prescribed by the Board Under the National Revenue Code Internal Officer or employee of the BIR May suffer the penalty of fine, or imprisonment, or both, upon conviction: makes known any information regarding business, income, or estate of any taxpayer, the secrets, operation, style or work, or apparatus of any manufacturer or producer, or confidential information regarding the business of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties cannot be interested, directly or indirectly, in the manufacture, sale or importation of any article subject to excise taxes or

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in the manufacture or repair o sale of any dye for the printing, or making of stamp, or labels Under the Anti-Graft and Corrupt Practices Act Public officers Influence another PO to perform an act constituting a violation of lawful rules and regulations or an offense in connection with the official duties of the latter or allowing himself to be influenced to commit such violation or offense Requesting or receiving any gift or benefit in connection with any contract or transaction between the government and any other party where the public officer in his official capacity has to intervene under the law; or in consideration for the help given or to be given for securing or obtaining any government license of permit Causing any undue injury to any party, including the government or giving any private party unwarranted benefit, advantage, or preference in the discharge of his official functions 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

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thereby Having financial or pecuniary interest in any business, contract or transaction in which he is prohibited by the Consti or by law from having any interest Becoming interested, for personal gain, or having material interest in any transaction requiring the approval of a aboard or committee of which he is a member, even if he votes against the same or does not participate in the action of the board or committee Approving or granting any license, permit, privilege or benefit in favor of any person known to him to be not qualified or legally entitle to such license.

Under the Code of Conduct and Ethical Standards

Public officials: includes elective and appointive officials and employees including those in government-owned or controlled corporations and their subsidiaries, 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

Financial and material interest Outside employment and other activities related thereto Disclosure and/or misuse confidential information of

Solicitation or acceptance of gifts Divestment: when a conflict of interest arises, the public official or employee shall resign from his position in any private business

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enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption - divestment shall not apply to those who serve the government in an honorary capacity nor to laborers and casual temporary workers

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VI. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS A. Under the Constitution Disabilities of President, VicePresident, Members of the Cabinet, and their Deputies and Assistants Prohibitions: o shall not hold any other office or employment * Exception: where otherwise provided by the Constitution. o shall not practice any other profession. o shall not participate, directly or indirectly, in any business. o shall not be financially interested, contract with any franchise or special privilege granted by government/GOCCs o strictly avoid conflict of interest in the conduct of their office, i.e. any interest which might make them tend to put personal interest over governmentalduties and responsibilities Purposes: o insure officials mentioned will devote their full time and attention to their official duties o prevent them from extending special favors to their own private businesses that come under their official jurisdiction o assure the public that they will be faithful and dedicated in the performance of their functions Disabilities of Members of Congress Prohibitions with regard to right to hold other office/employment: o hold any other office or employment in the Government, GOCCs and subsidiaries, without forfeiting seat. o be appointed to any office which may have been created/emoluments thereof increased during the term for which he was elected. Prohibition with regard to right to engage in certain activities o personally appear as counsel before any court of justice, Electoral Tribunals, quasi-judicial and other administrative bodies. Exception: where otherwise provided by Disabilities of President, VicePresident, Members of the Cabinet, and their Deputies and Assistants Prohibitions: o shall not hold any other office or employment Exception: where otherwis o be interested financially interested in any contract, franchise or special privilege granted by the Government o intervene in any cause/matter before any office of the Government for his pecuniary benefit. Prof. Carlota says highlight the fact that public office is a public trust. Disqualifications to Hold any Other Office or Employment in the Government Incompatible Office o Includes any kind of office/employment in the government, subdivision, agency, GOCCs and subsidiaries during his term. Exception: when second employment is connected with or in aid of legislative activities Rationale: need to devote time and attention to the discharge of legislative responsibilities Forbidden Office o refers to any office created or the emoluments of which have been increased during the term for which he was elected, not merely during his tenure or period of actual incumbency. Note: permanently forbidden Prohibition against Financial Interest Appearance as counsel before Court of Justice, etc. Financial interest in any contract with the government Financial interest: involves financial investment or business out of which a member of Congress is to derive profit or gain. Financial interest in any special privilege by the Government Intervention in certain matters

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Disabilities of Members of Constitutional Commissions same as those for President, VicePresident, Members of Cabinet, and their Deputies and Assistants Prohibition against Designation of Members of Judiciary to Administrative Positions Constitution: Members of SC and other courts shall not be designated to any agency performing quasi-judicial functions or administrative functions. (Consti, VIII, Sec. 12: 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. Prof. Carlota's note: This is no longer a jurisprudential rule because of the lessons we learned from martial law. Reasons: o it violates the doctrine of separation of powers o it may compromise the independence of the members in the performance of their judicial functions o with so many cases pending in courts, practice will result in further delay in their disposition Prohibition Against Engaging In Partisan Political Activities No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (Consti, Art. IX-B, Sec. 2(4) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of t State. The armed forces shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. [Consti, Art. XVI, Sec. 5(3)] Partisan political activity o Acts designed to have a candidate elected or not, or to promote the candidacy of a person(s) to a public office. Civil service o Refers only to career service. Elective officials and members of the Cabinet are not included. People vs. De Venecia

A civil service employee is allowed to express his views on current political problems or issues, or to mention the name of his candidate for public office, even if such expression of views or mention of names may result in aiding one particular candidate. On the other hand, a civil service employee who contributes money for election purposes violates the law because he "aids a candidate". Distributing leaflets openly supporting a candidate was undoubtedly "aiding" such candidate. It was not merely mentioning the candidate he supported or mere expression of his opinion on current political problems but was a solicitation of the elector's vote in favor of a candidate. Prohibition Against Appointment Of Elective Officials No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Consti, IX, Sec. 7) The disqualification incapacitates the incumbent and renders his appointment void, hence he does not forfeit his elective office. He may be appointed, provided he first resigns his seat. Prohibition Against Holding More than One Position By Appointive Officials General Rule: o 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. Exceptions: When allowed by law When allowed by the primary functions of his position (Consti, Art. IX-B, Sec. 7) o The rule aims to remedy problem of officials holding multiple positions which prevent them from devoting full time to their principal functions and result in double or multiple compensation.

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o

In the case of the President, VicePresident, members of Cabinet, deputies and assistants may hold another office only when specifically authorized by the Constitution.

UNDER EXISTING LAWS Prohibition Imposed on Civil Service Officers or Employees The Civil Service Decree provides the following prohibitions: o Political activity Engage in any partisan political activity or take part in any election except to vote, or use his official authority to coerce the political activity of any other person or body. o Additional or double compensation o Limitation on employment of laborers- laborers whether skilled, semi-skilled or unskilled shall not be assigned to perform clerical duties o Prohibition on detail or reassignment within 3 months before any election o Nepotism Appointments in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him Prohibition Imposed Government Officials On Local

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Prohibition against Acceptance of any Present, etc., from any Foreign State No elective or appointive public officer or employee shall accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. (Consti, Art. IX-B, Sec. 8) The prohibition is to prevent alien influence in domestic affairs. What is prohibited is the acceptance of a present officially offered by the government of a foreign state; hence an official may accept a private or personal gift. Prohibition against Receiving Additional, Double, or Indirect Compensation No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. Pensions or gratuities shall not be considered as additional, double, or indirect compensation. (Consti, Art. IX-B, Sec. 8) Prohibition against Appointment of Members of the Armed Forces to Certain Positions No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries. (Const AXVI 85(4)) Behind this prohibition is the principle of civilian supremacy over the military. Prohibition against Grant of Loan, Guaranty or other Form of Financial Accommodation No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure.

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Prohibited business and pecuniary interest o engage in business transaction with the LGU in which he is an official o interests in cockpit or other games licensed by LGU o purchase real estate/property forfeited in favor of LGU o be a surety for person contracting with LGU o possess/use public property of LGU for private purposes o other prohibitions under Code of Conduct and Ethical Standards for Public Officials and Employees, and other laws Practice of profession o governors, city and municipal mayors prohibited from practicing their professions or engage in any occupation o Sanggunian Members may practice profession, engage in occupation, teach in schools except during session hours o Sanggunian members who are members of the Bar shall NOT

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appear as counsel in case where LGU or any office of the government is the adverse party appear as counsel in any criminal case wherein an officer of national/ local government is accused of offense in relation to office collect fee for appearance in administrative proceedings involving LGU of which he is an official use property/personnel of the government except when the defending interest of the government o Doctors may practice even during official hours only on occasions of emergency, provided that they derive no monetary compensation

o

required to limit their professional activities to those pertaining directly to their positions with the Bank

Partisan political activity Prohibition against Purchase Certain Property at Public Auction of

Personnel of the CB are prohibited from: o being an officer, director, employee, stockholder of any institution subject to supervision or examination by the CB o requesting/receiving any gift from institute subject to supervision/ examination of CB o revealing any info relating to condition or business of any such institute o borrowing from any such inst unless adequately secured, fully disclosed to MB and subject to rules of MB. personnel of supervising and examining departments are prohibited from borrowing from a bank under their supervision or examination

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Public officers and employees o Cannot purchase government property the administration of which has been entrusted to them o Applies to judges and government experts who in any manner whatsoever take part in the sale Justices, judges, prosecuting attorneys, clerks of superior and lower courts, and other officers and employees connected with administration of justice o Cannot purchase property and rights in litigation or levied upon on execution before the court within whose jurisdiction or territory they exercise their respective functions o Includes the act of acquiring by assignment o Applies to lawyers with respect to property and rights which may be the object of any litigation in which they may take part by virtue of their profession (Art. 1491, Civil Code) The prohibition is applicable to sales in legal redemption, compromises and renunciations. (Art. 1492, Civil Code) Prohibitions Imposed on the Governor and Personnel of the Central Bank Outside interest of the Governor and fulltime Monetary Board members

Prohibitions Imposed on Internal Revenue Officers or Employees The NIRC imposes the penalty of fine, imprisonment or both upon conviction of: o officer/employee of BIR who divulges to any person or makes known in any way than may be provided by law information regarding the business, income, estate of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties o internal revenue officer who is or shall become interested directly or indirectly in the manufacture, sale or importation of any article subject to excise tax or repair or sale of any dye for printing, or making of stamp, or labels. Prohibited Acts and Transactions Under the Anti-graft and Corrupt Practices Act (Please see Table) Prohibited Acts and Transactions under the Code of Conduct and Ethical Standards Financial and material interest in any transaction requiring the approval of their office

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Outside employment and other activities related thereto during their incumbency: o employment in any private enterprise regulated, supervised or licensed by their office o private practice of their profession, unless allowed by law, provided it will not conflict with official functions o recommend any person to a position in a private enterprise which has a regular or pending official transaction with their office Prohibitions continue to apply for a period of one year after resignation, retirement, or separation from office. The professional concerned cannot practice his profession in connection with any matter before the office he used to be with within the same one-year period. Disclosure and/or misuse of confidential information with respect to information officially known to them by reason of their office: o to further private interest/ give undue advantage to anyone o to prejudice the public interest

as souvenir or mark of courtesy scholarship or fellowship grant or medical treatment travel grants o Ombudsman is mandated to prescribe regulations to carry out provisions on gift. The CSC has primary responsibility for the administration and enforcement of the Act. Divestment A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption. The same rule shall apply where the public official or employee is a partner in a partnership. The requirement of divestment shall not apply to those who serve the Government in an honorary capacity nor to laborers and casual or temporary workers. "Conflict of interest" o arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty. "Substantial stockholder" o means any person who owns, directly or indirectly, shares of stock sufficient to elect a director of a corporation. o This term shall also apply to the parties to a voting trust. "Divestment” o the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor of a person or persons other than his spouse and relatives as defined in this Act. "Relatives" o refers to any and all persons related to a public official or employee within the fourth civil degree of

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Solicitation or acceptance of gifts in the course of their official duties or in connection with any operation being regulated by or transaction affected by their office o Gift any act of liberality, not including unsolicited gift of nominal or insignificant value not given in anticipation of or in exchange for a favor from a public official o Receiving any gift includes act of accepting a gift from person other than member of family or relative, even on the occasion of a family celebration or national festivity if the value of the gift is neither normal or insignificant, or the gift is given in anticipation or in exchange for a favor Loan covers simple loan, guarantees, financial arrangements intended to ensure approval o Gifts from foreign governments need consent of Congress o

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consanguinity or affinity, including bilas, inso and balae. “Family of public officials or employees" o means their spouses and unmarried children under 18 years of age. (RA 6713) CHAPTER VII: LIABILITIES OF PUBLIC OFFICERS General rule: official immunity Rationale: Main reason- the state may not be sued without its consent, and a suit against a public officer for his official acts is in effect a suit against the state as its purpose is to hold it ultimately liable. Corollary reasons: 1. 2. 3. 4. 5. Promotion of fearless, vigorous and effective administration of policies of govt. Public officers and employees may be unduly hampered and intimidated by suits in the discharge of their duties Loss of time in such actions Unfairness of subjecting officials to personal liability for the acts of their subordinates The ballot and removal procedures are more appropriate methods of dealing with misconduct in public office

1.

those who owe duty solely to the public- any breach is to be redressed by public prosecution. An individual has no right of action against the officer even if he is injured by the officer’s action or inaction those who owe some degree of duty to individuals- individual has cause of action against the officer

2.

3 kinds of liability of public officers and employees: 1. 2. 3. Civil- the erring officer reimburses the injured party Criminal- the officer is punished criminally, may go to jail or pay a fine Administrative- imposition of fine, reprimand, suspension, or removal from office (Administrative liability discussed in next chapter) Administrative - Purpose is to protect the public services Prosecution here does not bar criminal civil or criminal action - Dismissal does not bar criminal action for the same acts. Double jeopardy does not lie - Vice-versa. Different degrees of guilt are required

Civil and criminal - Purpose is to punish

Exceptions to the general rule: 1. Suit to enforce liability for personal torts- for reckless, malicious or corrupt acts Suit to compel performance of official duty or restrain performance of an act• • to compel him to do an act required by law to restrain him from enforcing a law claimed to be unconstitutional; or to compel the govt. to pay damages from an already appropriated assurance fund; or to secure a judgment that the impleaded officer may satisfy himself with govt. assistance where the govt. itself has violated its own laws

- Prosecution in one is not a bar to another case - Dismissal of case does not bar administrative action

2.

- Finding of guilt (criminal) or liability (civil) does not necessary result in same finding in administrative case - Prejudicial question applies to criminal and civil cases

No prejudicial question where one case is administrative and the other is either criminal or civil

2 classes of public officers:

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- Quantum of proof required in civil cases: preponderance of evidence; in criminal: proof of guilt beyond reasonable doubt - rules of procedure are strictly adhered to

- Admin: substantial evidencesuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion - technical rules of procedure not strictly applied - entitled only to administrative decision based on substantial evidence made of record and a reasonable opportunity to meet the charges during the hearings

or if the act is done beyond the scope of his authority. RAMA VS CA If the public office is used as a tool for oppression, or the public officer commits a wrongful act, he is not protected by his office and he is personally liable. Another exception to immunity from liability for official acts: where the public officers are sued in their personal capacities. When injured party may not be awarded damages: 1. If the result complained of would have occurred notwithstanding the misconduct of the public officer If the injured party or his attorney contributed to the result in any degree by his own fault or neglect

requires due process: parties are afforded fair and reasonable opportunity to explain their side or move for reconsideration

2.

CIVIL LIABILITY Requisites for recovery of damages arising from acts of public officers: 1. damage to the complaining party personally- as distinguished from damage to individuals in general a wrong or violation of his right committed by the public officer- liability is based on quasi-delict Liabilities of different kinds of officials: 1. The President To put him on trial is to put on trial the govt. itself. So the doctrine of state immunity applies with more force on him. MOON VS HARRISON It is the duty of the head of state to enforce all laws until such time that they are legally declared unconstitutional. To make him liable in an action for damages for performance or non-performance of official duty would make him the judge as to when a law is or is not constitutional. 2. Legislative officials Consti. Art. VI Sec. 11- “A senator or member of the house shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while congress is in session… no member shall be questioned nor be held liable in any other place for any speech or debate in the congress or any committee thereof.” Reason for immunity- they were chosen by their constituents as best suited to represent them. The performance of their duties is something they owe to the public.

2.

PHILIPPINE RACING CLUB VS BONIFACIO General rule: a public officer is not personally liable to one injured in consequence of an act performed within the scope of official authority and in line with his official duty. What brings the acts within his official authority? Not necessary that they be prescribed by statute, or specifically requested by a superior officer. Sufficient if done in relation to matters committed by law to his control or supervision or that they have more or less connection to the dept. under whose authority the officer is acting. DUMLAO VS CA Exception to the Philippine Racing Club general rule: public officer is liable if he caused damage by his act done with malice, bad faith

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Kinds of liability of ministerial officers: 3. Members of the judiciary Reason for immunity- the law holds him to his duty to render judgment however erroneous or disastrous to either party. Exceptions: 1. 2. If acting in a ministerial capacity, and is careless or negligent If judge renders an unjust judgment. He may be held liable for dereliction of duty for knowingly rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or ignorance. a) non-feasance or neglect or refusal without sufficient excuse to perform his legal duty b) misfeasance or failure to use in the performance of his duty that degree of care, skill and diligence which the circumstances of the case reasonably demand c) malfeasance or the doing, either through ignorance, inattention or malice, or that which the officer has no legal right to do, as where he acts without any authority whatsoever or exceeds or abuses his powers 6. Superior officers with respect to acts of their subordinates General rule: Not liable. This is to protect public officers from suits against another public servant for acts which he himself has not engaged in. No vicarious liability in public service. Exceptions: a) b) 4. Quasi-judicial officers Reason for immunity- same as members of judiciary. But if he acts ministerially, he may be liable for carelessness or negligence like any other ministerial officer. MERCADO VS MEDINA Non-feasance or dereliction of duty implies a willful omission or neglect of official duty, and not mere failure to do one particular thing. 5. Ministerial officers General rule: liable if he neglects or fails to perform his ministerial duty at all, or if he performs it improperly. Qualified exception: proof of good faith, but this only serves to mitigate damages, because the general rule is that good faith and absence of malice constitute no defense for a ministerial officer. c) he negligently or willfully employs or retains unfit or improper persons he negligently or willfully fails to require them the due conformity to the prescribed regulations he carelessly or negligently oversees, conducts or carries on the business of his office as to furnish opportunity for the default where he has directed, authorized or cooperated in the wrong done if the subordinate is paid by the superior officer voluntarily or privately clear showing of bad faith, malice, gross negligence or neglect to perform duty within the period fixed by law

Test if judgment or order is unjust: it is manifestly contrary to law or is not supported by the weight of evidence. Mere error in judgment does not give rise to liability. The remedy is an appeal pursuant to Rule 45 or 65 of the ROC.

d) e) f)

7. Subordinates General rule: same as for those higher in rank. If acting in good faith upon superior’s orders: not personally liable. Exception to this is if the act is unlawful.

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Liability for torts: if officer exceeds his authority, he is liable even if his conduct is committed in the course of his employment. QUIMSING VS LACHICA Law enforcing agents who acted in good faith are not liable for damages to persons claiming illegal arrest. MABUTOL VS PASCUAL Absent bad faith, public officials are not liable for damages for performing a duty required by law to be done by them. ESTEJO VS FERNANDO If a public officer exceeds the power conferred to him by law, he cannot shelter himself under the plea that he is a public agent acting under color of office. In the eyes of the law, his acts are wholly without authority. PALMA VS GRACIANO As against cities and municipalities, the prosecution of crimes is not a corporate function, but governmental or political. In the exercise of such function, municipal corporations are nor responsible for the acts of their officers, except and only when, and only to the extent that they have acted by authority of the law and in conformity with the requisites prescribed in the law. GENSON VS ADARLE A supervisor who tolerates his subordinates to moonlight on non-working days cannot be held liable for anything that happens on such days. CARREON VS PROVINCE OF PAMPANGA When a public officer exceeds his authority, he may be held liable particularly for torts. This liability is even clearer when the act complained of involves corporate or proprietary functions rather than those strictly governmental in nature. Liabilities under the Civil Code: Independent civil actions Art. 27: “Any person suffering material or moral loss because a public servant refuses or

neglects, without just cause, to perform his official duty may file an action for damages and other relief without prejudice to any disciplinary administrative action.’ Art. 32: (Malice or bad faith not required) “Any public servant or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impeded or impairs any of the following rights and liberties of another person shall be liable for damages: 1. 2. 3. 4. 5. 6. 7. 8. 9. freedom of religion freedom of speech freedom to write for the press or to maintain a periodical publication freedom from arbitrary or illegal detention freedom of suffrage right against deprivation of property without due process of law right to just compensation when private property is taken for public use right to equal protection right to be secure in one’s person, house, papers and effects against unreasonable search and seizure liberty of abode and of changing it privacy of communication and correspondence right to become a member of associations for purposes not contrary to law right to take part in a peaceable assembly to petition the govt. for redress of grievances right to be free from involuntary servitude in any form right of accused against excessive bail right of accused to be heard by himself and counsel, to be informed of nature and cause of accusation, to have speedy and public trial, to meet the witnesses face to face, and have compulsory process to secure attendance of witnesses freedom from being compelled to be witness against himself, to confess guilt except as state witness

10. 11. 12. 13.

14. 15. 16.

17.

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18. freedom from excessive fines, cruel or unusual punishment 19. freedom of access to courts Art. 34: “When a member of a city or municipal police force refuses or neglects to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality subsidiarily liable.” ZULUETA VS NICOLAS Refusal of a fiscal to prosecute a case when after investigation he finds no sufficient evidence to establish a prima facie case is not a refusal without just cause to perform an official duty. He is vested with discretion as to whether a prima facie case exists or not. AMARO VS SUMAGUIT An action for damages under independent civil actions is not precluded by the existence of other remedies such as administrative complaint or criminal case. VITAL-GOZON VS CA Under Article 27, a public servant may be liable for moral damages as long as the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, etc suffered by the complainant are the proximate result of the officer’s act or omission. Liability on contracts executed in behalf of the govt: General rule: not liable Exceptions: 1. The public servant executes an unambiguous personal undertaking which makes no mention of the agency he serves The contract does not indicate that it is executed by him in an official capacity The contract is grossly prejudicial to the govt. (criminal liability attaches)

RIVERA VS MUNICIPALITY OF MALOLOS Before a contract may be validly entered into by a municipality, the law requires that there must first be an appropriation of municipal funds to meet the obligation, validly passed by the municipal council and approved by the municipal mayor. RIVERA VS MACLANG If the action is against the public servant in his personal capacity and if the contract was executed invalidly by reason of non-compliance with the law or applicable municipal ordinances, he is personally liable. Liability for unexplained wealth:

1.

RA 1379 (Forfeiture of Unexplained Wealth Act): any property manifestly out of proportion to the salary of a public servant is deemed unlawfully acquired RA 3019 (Anti-Graft and Corrupt Practices Act): penalizes certain acts of public servants and private persons alike which constitute graft and corrupt practices ALMEDA VS PEREZ

2.

The proceedings under RA 1379 are civil in nature because it imposes merely forfeiture of unlawfully acquired property. The procedure outlined is that for a civil action. Thus, there is a petition, answer, and hearing. If it were a criminal proceeding, there would be a reading of information, plea, and trial. Therefore the amendments sought setting forth newly-discovered acquisitions of the respondent may be inserted in the petition without obtaining his consent (If it were a criminal proceedings, amendments require defendant’s consent). CABAL VS KAPUNAN Forfeiture in RA 1379 partakes of a penalty or punishment, since the proceedings are not to establish, recover, or redress private or civil rights, but to try or punish the persons charged.

2.

3.

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Thus, the right against selfincrimination is available, the proceedings being quasi-criminal in nature.

5.

RA 1379: * As to procedure- civil (Almeda case) * As to substantive rights- criminal (Cabal); Cabal applies if the respondent is required to take the stand to divulge his assets and properties not known to the court

Liability for acts done under direction of superior officer- Relieved from liability if he notified his superior in writing of the illegality of the payment or disposition prior to that act. IN this case, the superior officer will be primarily liable.

ALBERT VS GANGAN The mere fact that a public officer is head of his agency does not mean that he is party ultimately liable simply because he was the final approving authority of the questioned transaction. It would be improbable for him to check all the details or voluminous paperwork in his agency. He relies mainly on recommendations of his subordinates in approving the transaction. A transaction conspirator conspiracy evidence. person who signs questioned does not automatically become a in a crime. His knowledge of the must be proved by positive

Liability of accountable officers: 1. Bond requirement- if his duties permit or require possession or custody of government funds or property Primary and secondary responsibility• the head of the agency is primarily responsible for all govt. funds or property pertaining to his agency persons entrusted with possession or custody of such funds or property shall be immediately responsible to the head of the agency (either party may be liable to the govt.)

2.

Requisites for liability: 1. 2. 3. there must a an expenditure of govt. funds or use of govt. property the expenditure is in violation of law the official is found directly responsible for it

3.

General liability for lawful expenditures- personal liability of the employee or officer directly responsible Measure officers• of liability of accountable

CRIMINAL LIABILITY General rule: no public official is above the law Exceptions: 1. If the prohibited act is necessary for the performance of their duties such as carrying weapons in the case of the police or military Failure to perform a duty commanded by law for causes beyond his control and performance is impossible

4.

For money value in case of improper or unauthorized use by himself or anyone for whose acts he is responsible; or for losses, damages, or deterioration occasioned by negligence in keeping or use whether or not in his actual custody at the time Liable for all losses resulting from unlawful deposit, use or application and for all losses attributable to negligence in keeping the funds

2.

The following are NOT available as defenses: 1. absence of corrupt intent in an action based on statutory penalty for misconduct such as taking illegal fees

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2. 3.

expiration of term of his office re-election does not extinguish criminal liability incurred in previous term 9.

willful neglect to give permitting violation of law

receipts,

Under the Omnibus Election Codeelection offenses MACADANGDANG VS SANDIGAN

Crimes peculiar to certain public officers: 1. Under the Revised Penal Code • Malfeasance or misfeasance in office (ex. Malicious delay in administration of justice, bribery) Frauds and illegal exactions and transactions Malversation of public funds or property Infidelity of public officers Other offenses: disobedience, refusal or assistance maltreatment of prisoners, abandonment of duties, usurpation of powers, unlawful appointments Budget officer signed falsified vouchers for repair of govt. vehicles and made a request for allotment of funds without first ascertaining whether or not the repairs were needed. He is not liable. It was not his job to inspect the vehicles, his job was to certify as to the availability of funds. It does not follow that he was part of the conspiracy. He may have signed the papers routinely. He is not liable criminally, but his lack of care may be ground for administrative action. ARIAS VS SANDIGAN Land assessed at P5 per sq. meter in 1973 was acquired by the govt. in 1978 for P80/sq. meter. The conviction was erroneous. There can be no over-pricing for the purpose of a criminal conviction where no proof of such was adduced during the proceedings. Further, the mere signature of the accused cannot be proof of conspiracy. Therese should be other ground than mere signature to sustain conspiracy and conviction. LLORENTE VS SANDIGAN Undue injury cannot be presumed even after a wrong has been established. The existence of undue injury must be proven as one of the elements of the crime. Undue injury- actual damage (akin to that in civil law). Bad faith- does not simply connote bad judgment. It imputes a dishonest purpose or some moral obliquity or conscious doing of a wrong. It partakes of the nature of a fraud. Inaction- is included in “causing” the injury. Even passive acts may cause undue injury.

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2.

Under the Anti-Graft and Corrupt Practices Act- bribery, a congressman acquiring pecuniary interest in any enterprise benefited by a law authored by him, etc. Under the Code of Conduct and Ethical Standards Under the Forfeiture of Unexplained Wealth Actunlawfully acquiring property or transferring or conveying any unlawfully acquired property Under the Civil Service Decree- making any appointment or employing any person in violation of the provisions of this decree or commits fraud or misrepresentation concerning other civil matters or refuses to comply with such Under the Govt. Auditing Codeviolation of provisions of warrants and checks receivables for taxes, issuance of official receipts Under the Local Govt. Code Under the Natl. Internal Revenue Codeextortion, willful oppression, knowingly demanding unauthorized payment,

3. 4.

5.

6.

7. 8.

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BUNYE VS SANDIGAN There is no undue injury where the complainants have never been adversely affected and they were not displaced or prevented from operating their business. DUTERTE VS SANDIGAN 3 elements in illegal transactions: 1. 2. 3. offender is a public officer the contract is entered into in behalf of the govt. the contract is manifestly disadvantageous to the govt.

Act complained of is an office publication saying that a certain “Auring” was a disgrace to the office. It is a tort under CC Art. 2176. It is ultra vires and not part of official duty, thus the respondents are liable in their personal capacities.

If the assailed contract is no longer existent at the time the complaint is filed (such as when it ash been rescinded), then the 2nd element is absent/not established. • JAVELLANA VS DILG Javiero and Catapang charged City Engineer Divinagracia with illegal dismissal. Javiero and Catapang were represented in that case by Javellana, a councilman of that city. Divinagracia questioned Javellana’s personality to represent J and C. The complaint for illegal dismissal filed by J and C against Divinagracia is in effect a suit against the city govt., their real employer, of which Javellana is councilor. Javellana cannot therefore represent an interest adverse to the govt. TUZON VS CA Art. 27 of CC was meant to end the bribery system where a public official, for some flimsy excuse, delays or refuses the performance of his duty until he gets some kind of bribe. The official is not liable where it does not appear that he stood to gain by the act complained of, or where records show that the ordinance or law in question has been uniformly applied to all. In the absence of a judicial decision declaring a law invalid, its legality would have to be presumed. WYLIE VS RARANG • -

VIII. TERMINATION OF OFFICIAL RELATIONS Specifically Modes of Termination (remember MS. ERDRAA PRIACiR) Expiration of term or tenure Reaching age limit (retirement) Death or permanent disability Resignation Acceptance of incompatible office Abandonment Prescription to right of office Removal Impeachment Abolition of office Conviction of a crime Recall One mode - by virtue of a revolution Natural Causes

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Expiration of Term of Office Unless authorized to hold over, rights, .duties and authority ipso facto cease Term o Fixed and definite time prescribed by law or Constitution by which an officer may hold an office. o It does not apply to appointive offices at the pleasure of the appointing power Non-renewal of appointment is a valid mode of termination. Removal vs. Expiration of Term Removal: o Oust officer before expiration of his term

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Expiration of Term: o Where no term is fixed by law and the incumbent is relieved by the appointing power, it is as though Congress itself fixed the term. o Where an appointment is for a definite and renewable period, nonrenewal is an expiration of the term Term vs. Tenure Term: o time during which the officer may claim to hold the office as a matter of right and fixes the interval after which the several incumbents shall succeed one another o not affected by hold over Tenure: o period during which actually holds office Nueno vs. Angeles incumbent

confidential. In fact, he was a civil service eligible whose removal was illegal. • Commencement of Terms of Office Ordinarily, commencement is fixed for some appreciable period after the election or appointment Where no time is fixed: o elective officers - date of election o appointive officersdate of appointment Runs "from" a certain date, the day of date is excluded Power of Congress to Fix, Shorten, or Lengthen Term Fixed by the Constitution o beyond the power of Congress to affect tenure Not fixed by the Constitution o Congress may limit duration of term. Where terms are prescribed by law, public policy forbids that the beginning and expiration of the term be left to the discretion of the person holding the office or of the body having the appointing power. Budgetary authority cannot shorten the term of office by refusing to appropriate funds Holding-over After Expiration of Term Hold-over status o Term has expired o Public officer continues to hold office until his successor is appointed or chosen Status of hold-over officer o de jure: if hold-over is authorized o otherwise, de facto Purpose: o To prevent a hiatus in the government o Public interest requires that public offices should be filled at all times, without interruption Applies: o when there is a fixed term annexed to the office o when provided by law o when not provided by law

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The term of office is fixed by law and can’t be extended by reason of war. Alba v. Alba Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the' President. The replacement of the appointee is not a removal but an expiration of term. Cadiente vs. Santos The tenure of officials holding primarilyconfidential positions ends upon loss of confidence. The termination of the services of the city legal officer by the mayor is not removal but expiration of term. NOTE in LocGov: express provision that legal officer's term is co-terminus with that of the local chief executive Primarily confidential: 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 and freedom from misgivings of betrayals of personal trust on confidential matters of state. Cristobal vs. Melchor The services of a private secretary in the office of the President were terminated. However, no evidence was adduced to show that the position was primarily

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unless such holding-over is expressly or impliedly prohibited, the incumbent may continue to hold office. o when the Constitution limits the term without providing for hold-over Distinguish where office created by: Law GR: May holdover Holdover XCPT: when prohibited Constitution GR: No XCPT: None

vacancy; only the courts can make his finding conclusive. Acts or Neglect of Officer • By Resignation Right to resign is recognized. Officer may hold-over until successor is chosen Right must be declared in a much more restrictive manner so that public officers won’t throw off their responsibility at their own pleasure. Meaning of Resignation Formal renunciation or relinquishment of a public office Implies the incumbent expressing in some form, express or implied, of the intention to surrender, renounce, relinquish his right to office and the acceptance by competent and lawful authority Form of Resignation If requirement is provided by law, must be substantially complied with Otherwise, resignation may be made by any method indicative of the purpose. o It need not be in writing and may be oral or implied by conduct. What constitutes Resignation intention to relinquish a part of the term accompanied by an act of relinquishment a written resignation must be signed by the party tendering it a written resignation given to the board authorized to receive it and fill the vacancy is prima-facie but not conclusive evidence of the intent to relinquish RULES: 1. Resignation must be voluntary. 2. There must be clear intention to resign. Gonzales vs. Hernandez To constitute a complete and operative act of resignation, the officer or employee must show clear intention to relinquish or surrender his position xxx and there must be and acceptance by a competent and lawful authority. In CAB, there was a conditional resignation and since G's position in the GSIS was temporary in nature, there was no abandonment. Ortiz vs. COMELEC

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Duldulao v. Ramos A municipality was converted into the province of Occidental Mindoro. The CFI Judge and the Register of Deeds continue to hold office in the absence of a contrary provision. The law abhors a vacuum; to hold otherwise is to allow paralyzation of judicial functions. • Office Created for the Accomplishment of a Specific Act The office terminates and the officer's authority ceases with the accomplishment of the purpose. For example, the board of canvassers is deemed functus officio with the proclamation of candidates. Reaching Age Limit Members of judiciary o Until 70 years old or become incapacitated to discharge the duties of the office. o Other laws provide for compulsory retirement at the age of 65 years. NOTE: retirement will NOT render administrative case moot and academic. Death or Permanent Disability Death o to be filled by one person only office is vacant o 2 or more officers exercise authority the whole office is not vacant; survivor may execute the office unless joint action is expressly, required. Permanent Disability o covers both mental or physical o appointing power will have to decide whether the disability created

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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69

Retirement laws are construed liberally in favor of the retiree. 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. Since 0's courtesy resignation was accepted by the President he is deemed to have completed his term of office, hence, entitled to retirement benefits. Estrada v Desierto Resignation is a factual question and its elements are beyond quibble: there must be intent to resign and the intent must be coupled by acts of relinquishment. Its validity is not governed by any formal requirement as to form. It can be IMPLIED! As long as resignation is clear, it must be given effect. ERAP’s ersignation has to be determined from his acts and omissions or the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, SC held that Erap resigned. SIR: Intention to voluntarily relinquish position is missing! To whom Resignation is Tendered to the person designated by statute in the absences of statutory direction, to the officer or body having authority to appoint his successor or to call an election to fill the office a resignation tendered to an improper person or body is a nullity Legaspi vs. Espina Since petitioner thereby forfeited any right to the office of Mayor when he filed his certificate of candidacy for Congressman, his present petition seeking reinstatement to the office of Mayor has lost all basis. The automatic and permanent loss of office of any elective official who runs for an office other than the one he is actually holding makes no exception for officials under suspension at the time they file their certificate of candidacy for another office. • -

At present, there is no more automatic resignation upon filing of candidacy. • Necessity Resignation of Acceptance of

Abandonment unlawful before acceptance. o Person who abandons his office to the detriment of the public service shall suffer the penalty of arresto mayor. o A resignation is inoperative and ineffective in the absence of acceptance. o A public official may be deemed to have relinquished his office due to his voluntary abandonment of his office. Resignation revocable before acceptance. o Prior to acceptance, the resignation is not complete and the officer remains in office. o The rule rests on the dictates of public policy. o The acts of an officer before the official notification of acceptance of his resignation are de facto. Form of Acceptance o By a formal declaration or o By the appointment of a successor o By due filing at proper office w/out ojection Punsalan vs. Mendoza M can validly reassume the governorship of Pampanga after having tendered his resignation since the action on the resignation was held in abeyance by the President and when the President finally acted, he shelved the resignation and approved the KBL caucus recommendation for M to reassume the governorship. Withdrawal of Resignation Resignation may be withdrawn before it is acted upon A prospective resignation may amount but to a notice of intention to resign at a future day, or a proposition to resign. Possession of the office is still retained and may not be necessarily surrendered until the expiration of the legal term of the office because the officer may recall his resignation or withdraw his proposition to resign

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Repudiation of Resignation A resignation is not effective although a successor has been appointed to take the place of the first incumbent if the resignation has been transmitted without his consent The resignation of a public officer procured by fraud or by duress is voidable and may be repudiated. A resignation given as an alternative to have charges filed against the public officer may be repudiated, for the resignation cannot be accepted as having been given voluntarily and willingly. Effect of Duress or Fraud When an employee resigns from service, there is a presumption of voluntariness. If an officer charged with misconduct chooses to resign when given the alternative to do so in lieu of termination, his resignation is not given under duress. If resignation is accepted, officer can repossess office if: 1. No person yet appointed to office, and 2. Appointing authority consents to reassumption.

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that he will not be permitted to, as where the law requires the approval of the provincial board before a municipal official can resign. Where the first office is held under a different government from that which conferred the second Where the officer is expressly authorized by law to accept another office and Where the second office is temporary. By Abandonment of Office A public office becomes vacant by abandonment and non-user. When an office is abandoned, the former incumbent cannot legally repossess it even by forcible reoccupancy. Meaning of Abandonment The voluntary relinquishment of an office by the holders of all right, title or claim with the intention of not reclaiming it, or terminating his possession and control. In ascertaining abandonment, intention is the first and paramount object of inquiry for there can be no abandonment without the intent to abandon. The failure to perform the duties pertaining to the office must be with active or imputed intention on the part of the officer to relinquish the office. When there is Abandonment of Office When there is clear intention to abandon office (can be inferred from conduct) Acceptance of another office Failure to discharge duties of office or to claim or resume it Acquiescence by the officer in his wrongful removal There must be concurrence of intention and overt acts from which it may be inferred that the public officer concerned has no more interest. Intention is a question of fact. o Principles normally governing abandonment of office should not be too strictly applied to cases occurring during war. Canonizado v Aguirre Petitioner, after accepting another position, sought reinstatement to his former position from which he was removed under a provision of law which was subsequently declared violative to his constitutional right to security of tenure.

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By Acceptance of an Incompatible or Prohibited Office He who, while occupying one office, accepts another incompatible with the first, ipso facto, absolutely vacates the first office. If the law or Constitution forbids the acceptance by the public officer of any other office, it is not a case of incompatibility but of legal or constitutional prohibition. o If the appointment to the latter office is void because of disqualification or ineligibility, the appointee does not forfeit his original office. When Offices are Incompatible with each other Incompatibility is to be found o in the character of the offices and their relation to each other o in the subordination of one to the other and o in the nature of the functions and duties which attach to them. Exceptions to the Rule on Holding Incompatible Offices Where the officer cannot vacate the first office by his own act, upon the principle

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His appointment and acceptance of another position is not deemed abandonment. His removal from his original position by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment. He was compelled to leave his former position. • Abandonment and Resignation Distinguished Resignation and abandonment are incompatible and contradictory. o However, abandonment may be considered as a species of resignation. The concomitant effect of both is that the former holder of the office can no longer legally repossess or reclaim it. Abandonment Voluntary act Relinquishment through non-user Resignation Voluntary act Formal relinquishment

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By Prescription of Right to Office The proceeding by quo warranto is the proper and appropriate remedy against a public officer or employee for his 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. Rationale for 1 yr period: title to public office should not be subjected to uncertainties but should be determined as speedily as possible. Acts of the Government or the People

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Meaning of Removal Removal entails the ouster of an incumbent before the expiration of his term. It implies that the office exists after the ouster. Another term used is dismissal. What constitutes Removal Removal may be expressed or implied. Appointment to Another Office o The general rule is that where an officer may be removed by a superior officer at the latter's pleasure, the act of removal is accomplished merely by the appointment of another officer in his place. o In order to render the removal effective in all cases, the incumbent must be notified. Transfer to Another Office o The transfer of an officer without his consent is equivalent to his illegal removal or separation form the first office. o A transfer requires a prior appointment and acceptance is indispensable to complete an appointment. Demotion o 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 a reduction in salary. o Demotion to a lower position with a lower rate of compensation is also equivalent to removal if no cause is shown for it

A requisite for resignation Not a requisite for abandonment SB of San Andres vs CA Resignation is an act of giving up or the act of an officer by which he declines his office and renounce further right to use it. It must include the following: 1. an intention to relinquish part of the term 2. an act of relinquishment 3. an acceptance by proper authority. There was no resignation in this case as records are bereft of any evidence that Antonio’s resignation was accepted by the proper authority. BUT there was abandonment which is a voluntary relinquishment of an office by the holder with the intention of terminating his possession and control thereof. It is a species of resignation. While resignation is a formal relinquishment, abandonment is a voluntary relinquishment through a nonuser (a neglect to use a privilege/right or to exercise an easement of office. • Instances of Abandonmnent/Non Abandonment determining factor is the presence of intention to relinquish title

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Reassignment o The movement from one organizational unit to another in the department or agency which does not involve a reduction in rank, status, or salary and does not require the issuance of an appointment. If done in good faith and in the interest of service, it is permissible and valid even without the employee’s prior consent. Legislative Regulation of Removal Congress, in vesting the appointment of officers of lower rank in the President along or in the heads of departments, may limit and restrict the power of removal as it deems best for the public interest. Where the Constitution prescribes the method of removal and the causes for which public officers may be removed, these methods and grounds are exclusive and it is beyond the power of Congress to remove incumbents in any other manner or for any other cause. Administrative Liability Incurred in a Previous Term by an Elective Official Re-election of a public official extinguishes only the administrative but not the criminal liability incurred by him during his previous term of office. o His re-election operates as a condonation of the officer's previous misconduct. Removals Incident of Right of Appointment The power to remove is deemed lodged in the same body or person in which the power to appoint is vested. Where term of office not fixed by law. o The general rule is that the power of removal is incident to the power to appoint. Where term of office fixed by law. o Implied power of summary removal is not incident to the power of appointment. o It is the fixity of the term which destroys the power of removal at pleasure. This is true although the appointment is classified as temporary. Where holding of position at pleasure of appointing power or subject to some supervening event.

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If the statute does not designate the term of the office, the appointee will hold only during the pleasure of the appointing power, and may be removed at pleasure at any time without notice or hearing. Exercise of Power of Removal May be absolute or conditional. o It is absolute when it is vested in the unlimited discretion of the removing officer to be exercised at such time and for such reasons as the latter may deem proper and sufficient. It is conditional when the time, the manner, or the reason is placed beyond the mere discretion of the removing officer. In any case, the power of removal cannot be exercised without notice and hearing where the employee enjoys security of tenure. Carlots: There is no such thing as absolute power to remove!

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Power of Removal of the President The Constitution contains no provision expressly vesting in the President the power to remove executive officials from their posts. Nevertheless, the power is possessed by him as it is implied form any of the following: o from his power to appoint o from the nature of the executive power o from the President's duty to execute the laws o from the President's control of all departments, bureaus and offices, and o from the provision that "no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law Civil Service Officers and Employees entitled to Security of Tenure Security of tenure means that an officer or employee in the civil service shall not be suspended of dismissed except for cause as provided by law and after due process. The Constitution requires that the appointments shall be made according to merit and fitness and that removal or

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73

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suspension shall be for cause provided by law. Removal for cause provided by law guarantees both substantive and procedural due process. o Such cause as a general rule must affect the functions or administration of the office which the officer or employee holds or be connected with the performance of his duties and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. No complaint against a civil service officer or employee shall be given due course unless it is in writing and subscribed and sworn to by the complainant. o Officer or employee must be informed of the charges against him. Guarantee of Security of tenure extends to both career and non-career positions Both are protected from removal/suspension without just cause and non-observance of procedural due process. In case of primarily confidential employees, when pleasure turns into displeasure,, incumbent is not removed or dismissed. His term merely expires.

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Members of Congress o Each House may punish members for disorderly behavior and with concurrence of 2/3 of all its members, suspend or expel a member. o A penalty of suspension when imposed shall not exceed 60 days. President, Vice-president, Members of the Supreme Court and Members of the Constitutional Commissions and the Ombudsman o They may be removed from office, on impeachment for and conviction of: culpable violation of the Constitution treason bribery graft and corruption other high crimes betrayal of public trust Members of the Judiciary o shall hold office during good behavior until age 70 or become incapacitated to discharge the duties of their office. o For members of the Supreme Court, they should not have committed any of the offenses which are grounds for impeachment. o For judges of lower courts, the determination of the SC as to whether there has been a deviation or not from the requirement is conclusive since it alone has the power to order their dismissal. o Also note the provisions in the Canon of Judicial Ethics. Civil service officers or employees o shall not be removed or suspended except for cause provided by law. o The security of tenure in CES (except 1st & 2nd level ee in civil service) pertains only to rank and not to the office or to the position to which they may be appointed. De Leon v CA

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Cause - means legal cause, that provided by law. Gen Rule: cause must be related to the performance of functions of the public office. “for cause” means both substantial and procedural due process. Since there is no law which provides for “loss of confidence” as a ground for removal, that is not removal but expiration of term. Constitution does not distinguish. Thus, WON career/non-career, confidential or technical, such are subject to security of tenure. Power to remove connotes power to discipline. Sources of grounds for removal: 1. Consti 2. Civil Service law 3. Loc. Gov’t Code -

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. Montesa’s appointment did not attain permanency. Not having taken the necessary

Grounds for Removal or Suspension under the Constitution

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CES exam to obtain the requisite eligibility, he did not at the time of his appointment up to present possess the needed eligibility position in the CES. His appointment was merely temporary and thus, he can be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. General v Roco Under Sec. 27(1) of Civil Service Law and Integrated Reorganization Plan, two requisites must occur in order that a CES employee may attain security of tenure: 1. CES eligibility 2. appointment to appropriate CES rank Thus a CES officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. No diminution of salary even if transferred to a CES position w/ lower salary grade as he is compensated according to CES rank and not on the basis of the position or office he occupies. • Termination of Temporary Appointments temporary appointments can be terminated at the pleasure of the appointing power without notice and regardless of ground temporary appointee has no tenure of office, therefore, strictly speaking there is no removal Term fixed by law o allows the appointee to hold office until expiration of the period o the occupancy of anyone temporarily appointed is precarious and does not come within the contemplation of the Constitutional prohibition against removal or suspension except for cause Grounds for Disciplinary Action Under the Local Government Code Elective local officials may be o disciplined; o suspended; o removed on the following grounds committed while in office: Disloyalty to the republic • -

Culpable violation of the Constitution Dishonesty, oppression, misconduct in office, neglect of duty Commission of offense involving moral turpitude or punishable by at least prision mayor (vs Civil Service law which requires conviction) Abuse of authority Unauthorized absences for 15 consecutive working days Application or acquisition of foreign citizenship or residence or in immigrant status of another country Other grounds provided by law

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Removal from office on the above grounds must be by order of the proper court. The President has no power to remove elective local officials. Heads of LGU's may investigate and decide matters involving disciplinary actions against officers and employees under their jurisdiction. Pablico v Villapando The Office of the President has no power to remove elected officials since such power is vested in the proper courts as expressly provided in Sec 60 LGCode. There is a very clear legislative intent to make the power of removal a judicial prerogative as seen in the Senate deliberations.

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Carlots: What is proper court? This is a weird decision. At what point should the court interfere? If we follow this ruling it would result in absurdity. 1st stage: admin proceedings. 2nd stage: judicial proceedings This would make the court a “rubber stamp” court as it would just implement the decision of admin agency. This is contrary to the function and nature of a Court.

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Grounds for Disciplinary Action under the Civil Service Law Civil Service officers or employees may be suspended or dismissed only "for cause" as provided by law and after due process under the following grounds:

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o o o

o
o o o o o

o
o

o o o o o o o o o o o o o o o o o o -

Dishonesty Oppression Neglect of Duty Misconduct (doesn’t have to be related to office vs LGCode where it has to be misconduct in office) Disgraceful and immoral conduct Being notoriously undesirable Discourtesy Inefficiency and incompetence Receipt for personal use of a fee, gift or other valuable thing in connection with performance of official duties Conviction of crime involving moral turpitude (vs LGCode where only commission is enough) Improper and unauthorized solicitation of contribution from subordinate employees and by teachers from school children Violation of Civil service law, rules and regulations Falsification of official documents Frequent unauthorized absences or tardiness Habitual drunkenness Gambling Refusal to perform official duty or overtime Disgraceful, immoral, dishonest conduct prior to entering the service Physical or mental incapacity Borrowing money by superior officers from subordinated or lending by subordinates to superior officers Usurious lending Willful failure to pay just debts or taxes Contracting loans of money Pursuit of private business, vocation or profession without the permission Insubordination Engaging in partisan politics Conduct prejudicial to best interest of the service Lobbying for personal interest or gain in legislative hall and offices without authority Promoting ticket sales in behalf of private enterprises Nepotism

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in writing and subscribed and sworn to be given due course Penalties: o Removal from service o Transfer o Demotion in rank o Suspension for not more than one year without pay o Fine in an amount not exceeding 6 months' salary o Reprimand Same penalty shall be imposed for similar offenses and only one penalty shall be imposed in each case Withdrawal of Complaint Rule: Withdrawal of the complaint does not have the legal effect of exonerating the respondent from administrative disciplinary action The Supreme Court does not look with favor the affidavit of retraction especially when it is executed as an afterthought o However, where an administrative case cannot proceed without active participation of complainant, court may find itself without alternative but to dismiss the complaint.

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Misconduct in Office Misconduct o Transgression of some established and definite rule of action more particularly, unlawful behavior or gross negligence by the public officer implies wrongful intent and not mere error of judgment must be such as to affect his performance of his duties as an officer and not only as affects his character as a private individual o Related to and connected with performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of office other grounds for disciplinary action may not be connected with performance of official duties if crime involves moral turpitude, conviction by final judgment is required Committed during a prior term

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General Rule: o No compliant against a civil service official shall be given due course unless it is in writing and subscribed to and sworn to by complainant Exception: o When complaint initiated by disciplining authority it need not be

o

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an elective official cannot be removed for administrative misconduct committed during a prior term, his re-election to office operates as condonation removal cannot extend beyond the term during which the alleged misconduct was committed if official is not removed before his term of office expires, he can no longer be removed on the theory that each term is separate from other terms the above rule has no application to criminal cases pending against reelected public official neither does it apply where the decision of removal is served before the reelection where it had become final for his failure to appeal o Proved by substantial evidence Remolana v CSC Dishonesty is considered a grave offense punishable by dismissal under EO292. The rule is that dishonesty, in order to warrant dismissal need not be committed in the course of the performance of duty by the person charged. Rationale: if a government officer/employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. By reason of his office, he possess certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and counteract his evil acts and actuations. CSC v Lucas In grave misconduct, the elements of corruption, intent to violate the law, and flagrant disregard for established rule must be manifest. These are not present in CAB as there was no proof of malicious intent which can classify misconduct as grave, For touching the ankles and thighs, Lucas was charged simple misconduct. Palma vs. Fortich Mayor was administratively charged and preventively suspended based solely on the filing of three separate criminal cases for acts of lasciviousness. The ground for filing the administrative complaint and suspension is misconduct in office.

While it is true that the charge of act of lasciviousness ay involve moral turpitude but before the provincial governor and board may act and proceed against the public official, a conviction by final judgment must precede the filing of the administrative complaint. Palma case not yet overturned. The nexus requirement has been greatly watered down. Carlots: One can bypass this nexus requirement. Charge the officer administratively under the Ombudsman Law. (Lastimosa v Vasquez) This is due to the fact that Constitutional provision defining the powers of Ombudsman is very broad. Also, the Ombudsman law itself has no nexus requirement as it does not distinguish between cases WON nexus exists.

Sarigumba vs. Pasok Deputy Sheriff who enforced a writ outside the region of the court which issued it and went out of his way to unduly favor a party in the case is guilty of misconduct which warrants removal from office. The enforcement of the writ is irregular because as an officer of the court he ought to have known that he cannot enforce the writ outside of the court's jurisdiction.

Nera vs. Garcia A clerk (appointive officer) was charged with malversation of funds belonging to a private entity, before he could file his answer he was suspended without notice and hearing. The suspension is not illegal being merely preventive and not a punishment or penalty. There is nothing improper in suspensions pending investigation. The fact that funds misappropriated was private and not connected to the performance of his duty will not affect the validity of the suspension because when the charge is dishonesty, oppression or grave misconduct, there is no need to establish its connection to the duty.

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Ochate vs. Deling Mayor was convicted of slight physical injuries and charged with illegal fighting; subsequently an administrative complaint was filed against him on the grounds of neglect of duty and conviction by final judgment of crime involving moral turpitude. The suspension of the mayor on such grounds is not valid because the acts or omissions cannot be safely said to be related to the performance of his official duties and he does not have to be Mayor to commit the offenses charged. • Nepotism Civil Service Decree prohibits all appointments in the national and local governments or any branch or instrumentality made in favor of a relative of the: o Appointing authority; o Recommending authority; o Chief of the bureau office; or o Person exercising immediate supervision over the appointee. This restriction is not applicable to the case of a member of any family who, after his or her appointment, contracts marriage with someone in the same office or bureau. Relative: o Related within the third degree of either consanguinity or of affinity. Nepotism is a pernicious evil impeding the civil service and efficiency of its personnel.

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The purpose is to take out of the discretion of the appointing authority the matter of appointing a relative. Laurel v CSC

The position of Provincial Administrator is not primarily confidential as it belongs to the career service. Hence, it is subject to rule against nepotism. Designation is included in the ban on nepotic appointments as it is a temporary appointment. To exempt designations would allow easy circumvention of the law and render such prohibitions toothless.

Grounds for Disciplinary Action under the Code of Conduct and Ethical Standards this code elucidates the State policy of promoting high standard of ethics and utmost responsibility in the public service These are grounds for administrative disciplinary action and w/out prejudice to criminal and civil liabilities o Directly/indirectly having financial and material interest in any transaction requiring the approval of his office. o Owning/controlling or accepting employment in any private enterprise regulated/supervised by his office. o Engaging in private practice unless authorized o Recommending a person to any position in a private enterprise w/c has regular/ pending transaction w/ his office unless mandated by law or int’l agreement. o Disclosing/misusing confidential or classified information officially known to him by reason of his office o Soliciting or accepting in/directly any gift or favor or anything w/monetary value in connection w/his office except:  Unsolicited gifts w/nominal value  Gift from family on a family celebration  Nominal donations from people w/ no transaction w/his office  Donations from private orgs for

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Exemptions from operation of the rules of nepotism: o Confidential employees o Teachers o Physicians; and o Members of the AFP Purpose of the prohibition: o to ensure that all appointments and other personnel actions in the civil service should be based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing power.

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o

o o o o o o

o

humanitarian/artistic purpose  Donations from gov’t to gov’t entities  Gifts/grants from foreign gov’ts and Congress consents Obtaining/using any statement filed under this code for purpose contrary to morals and public policy Unfair discrimination in rendering public service Disloyalty to the Republic Failure to act promptly on letters and requests w/in15 days from receipt Failure to process documents w/in reasonable time Failure to attend to anyone who wants to avail himself of the services of the office Failure to file statement of assets and liabilities & disclosure of bus. Interests Failure to resign from private position w/in 30 days from assumption of public office when conflict of interest arises or failure to divest of interest w/in 60days

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constitute an Investigating Committee in the DILG. The law on suspension or removal of public officials should be strictly construed. Where the DA is given only the authority to suspend and not to remove, it should not
COMPLAIN T AGAINST ELECTIVE OFFICIAL OF: BEFORE WHOM FILED: VENUE IMPOSED OF BY: HEARING S, INVESTIG ATION:

Province

Highly Urbanized City

Office of the President (OP), decision shall be final and executory OP, decision shall be final and executory OP, decision shall be final and executory

Place OP where official renders or holds office

Independe nt Componen t City

Place OP where official renders or holds office OP

Administrative Investigation of Elective Local Officials • Administrative offense Every act or conduct or omission w/c amounts to, or constitutes, any of the grounds for disciplinary action, imposition of suspension is valid although the aggregate thereof exceeds 6 months and the unexpired portion of the official's term as long as the suspension imposed for each administrative offense and the successive service of suspension does not exceed the unexpired portion of the term of office. (Salalima vs. Guingona) Administrative Order 23 provides that administrative disciplinary cases filed against elective local officials of provinces, highly urbanized cities, independent component cities, component cities and cities and municipalities within Metro ManiIa shall be acted upon by the OP, as the Disciplining Authority (DA). The DA may act thru the Executive Secretary. Secretary of DILG is designated as Investigating Authority (IA) who may

Componen OP, t City decision shall be final and executory Cities and Municipali ties w/in MMIa OP, decision shall be final and executory

Governo r

OP

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Municipalit Sanggunian Place Governo y g where r Panlalawiga Sangguni n (SPanlal), an appealable concerne to the OP d is located Barangay Sanggunian Place Mayor g where Panlungsod Sangguni (SPanlun) an or concerne Sanggunian d is g Bayan located (SB), decision shall Geof*Golda*Reeza*Sandi be final and executory

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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be permitted to manipulate the law by arbitrarily exercising the power to suspend in a manner that results in the removal of an elected official from office. (Salalima v. Guingona) • Initiation of Complaint by any private individual or government officer or employee by filing a sworn written complaint. motu propio by the OP or any government agency authorized by law to ensure LGUs act within their powers and functions. Filing of Complaint if official belongs to LGU within MMIa, complaint is filed w/the OP, Malacanang. If LGU outside of MMIa, complaint may be filed with the Regional Director of DILG, who shall transmit the same to the DILG Secretary within 48 hours from receipt. DILG Secretary will then transmit the same to the OP within 48 hours from receipt. The governor must be furnished a copy in case LGU concerned is a component city. Metropolitan Manila Authority must be furnished a copy in case LGU concerned is a city or municipality w/in MMIa. The DILG must be furnished a copy in all cases.

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• Notice and Filing of Answer within 7 days after filing of complaint, DA shall require official to submit verified answer. answer shall be filed with OP, Malacanang, if LGU is within MMIa. Otherwise, it may be filed with DILG Regional Director concerned. Transmittal procedure in filing of complaint shall be followed. The complainant shall be furnished a copy of the answer. Preliminary investigation (PI) Within 48 hours from receipt of answer, the DA shall refer the complaint and answer to the IA, who shall commence investigation w/in 10 days from receipt. Within 20 days from receipt of the complaint and answer, the IA shall determine WON there is a prima facie case to warrant the institution of formal administrative proceedings. o If IA finds no such prima facie case, it shall submit its recommendation to the DA for the motu propio dismissal of the case. No PI shall be imposed within 90 days immediately prior to a local election.

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Preventive Suspension (PS) PS may be imposed by the DA if officials belong to the ff. LGUs: o Provinces o Highly urbanized cities o Independent component cities o Cities and municipalities within MMIa. PS shall be imposed by the Governor if the official belongs to a component city but only upon direct order of the DA and if the official is under formal administrative investigation by the OP. No PS shall be imposed within 90 days immediately prior to any local election. o A PS imposed prior to the 90-day period shall automatically be lifted upon the start of the period. PS may be imposed: o at any time after issues are joined o when the evidence of guilt is strong o given the gravity of the offense there is great probability that the continuance in office of the respondent could: influence the witnesses or pose a threat to the safety and integrity of records and other evidence. Any single PS shall not extend beyond 60 days. In case of several administrative cases are filed, PS cannot exceed 90 days within a single year on the same ground/s existing or known at the time of the first suspension. Upon expiration of PS, official shall be deemed reinstated to office w/o prejudice to the continuation of the proceedings against him. Proceedings shall be terminated within 120 days from time he was formally notified of case against him. o If delay in the proceedings is due to his fault, neglect or request (other than the appeal duly filed), duration of delay shall be excluded in the computation of the time of termination of the case. Official shall receive no salary or compensation during PS but upon subsequent exoneration and reinstatement, his full salary, including accrued emoluments shall be paid. Formal Investigation (Fl) Unreasonable delay to commence the Fl within the period prescribed in the preliminary conference order by the person/s assigned to investigate shall be a

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

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ground for administrative disciplinary action. Fl shall be terminated by the IA w/in 90 days from start. Unreasonable failure to complete Fl shall be a ground for administrative disciplinary action. Decision Within 30 days after receipt of report and transmittal of records from the IA, the DA shall render a decision in writing, stating clearly and distinctly the facts and reasons for such decision. Respondent and interested parties shall be immediately furnished copies. Decision of the DA shall become final and executory after the lapse of 30 days from receipt, unless a Motion for Reconsideration (MR) is filed within the period. o Only 1 MR shall be allowed, except in meritorious cases. o Filing of MR shall suspend the running of the 30-day period. Appeal An appeal shall not prevent a decision from becoming final or executory. When there is execution pending appeal, the official shall be deemed to have been placed under PS during the pendency of an appeal, if the event he wins such appeal. In case appeal results in exoneration, the official shall be paid his full salary and all accrued emoluments during the pendency of the appeal. Imposition of Penalty (either Suspension or Removal) Penalty of suspension shall not exceed the unexpired term of the official or a period of 6 months for every administrative offense. o It shall not be a bar to the candidacy of the suspended official provided he meets the qualifications for the office. Penalty of removal from office may be imposed by order of proper court or the DA, whichever acquires jurisdiction first, to the exclusion of the other. o Removal as a result of administrative investigation is a bar to the candidacy of the removed official for any elective position. Executive Clemency In meritorious cases and after his decision has become final and executory, the President may commute or remove

administrative penalties or disabilities imposed upon local elective officials in administrative disciplinary cases, subject terms he may impose in the interest of the service. A.O. 23

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Complaint Motu proprio Notice to file answer (answer filed) Refer to Inv. Authority for PI

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Formal Investigation Decision Motion for Recon (once only) Appeal Executive Clemency

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Joson vs. Torres Rules on removal and suspension of elective local officials are more stringent than those governing appointive officials. When an elective official is removed or suspended, the people are deprived of the services of the person they had elected. Thus, suspension and removal are imposed only after the elective official is accorded his rights and the evidence against him strongly dictates their imposition. Disciplinary Action Against Appointive Local Officials and Employees

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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81

Investigation and adjudication of administrative complaints against appointive local officials shall be governed by the Civil Service Law and other pertinent laws. Preventive Suspension Local chief executives (LCE) may suspend any official or employee under his authority pending investigation for a maximum period of 60 days, if the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duly, or if there is reason to believe that the respondent is guilty of the charge w/c would warrant his removal. Upon expiration of PS, official shall be deemed reinstated to office without prejudice to the continuation of the proceedings against him. If delay in the proceedings is due to his fault, neglect or request, the duration of delay shall be excluded in the computation of the time of suspension. Administrative Investigation In any LGU, admin investigation may be conducted by any person or committee authorized by the LCE. o Such person or committee shall conduct hearings and submit their findings and recommendations to the LCE within 15 days from the conclusion of the hearings. Admin cases shall be decided within 90 days from time when respondent was formally notified of the charges. Disciplinary Jurisdiction The LCE may impose the ff. penalties: o removal, o demotion in rank, o suspension for not more than 1 year without pay, o fine not exceeding 6 months' salary, o reprimand or o any other form of discipline. If penalty is suspension without pay for not more than 30 days, LCE's decision shall be final. o If heavier than suspension of 30 days, decision of the LCE is appealable to the CSC. o CSC shall decide the appeal within 30 days from receipt Execution Pending Appeal

An appeal shall not prevent the execution of a decision of removal or suspension. In case of exoneration, official or employee shall be reinstated to his position w/o loss of any rights pertaining to his office. Disciplinary Jurisdiction of the CSC CSC has authority to administer the Civil Service and the power to exercise quasijudicial functions: o It has the power to hear and decide administrative disciplinary cases instituted directly with it or brought to it on appeal. o It has the power to enforce or order execution of its decisions, resolutions and orders. CSC shall decide upon appeal all admin cases involving the imposition of a penalty of suspension for more than 30 days or a fine exceeding 30 days' salary, demotion in rank or salary or transfer, removal or dismissal from office. CSC is an agency within purview of the law with respect to its employees. (Enrique vs. CA) Complaint may be filed directly with the CSC by a private citizen. CSC may hear and decide the case or it may deputize any department, agency or official/s to conduct an investigation. Results of the investigation must be submitted to the CSC with the recommended penalty or any other action to be taken. Heads of departments, agencies, instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against employees under their jurisdiction. o Investigations may be entrusted to a regional director or similar officials. If the decision includes imposition of suspension for not more than 30 days or fine not exceeding 30 days' salary, decision shall be final. If not, it is appealable to the CSC. Decision may be appealed first to the department, with the agency concerned, and then to the CSC. Pending appeal, it shall be executory except when penalty is removal. Decision shall only be executory when confirmed by the dept or agency head concerned.

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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An appeal shall not prevent a decision from becoming final or executory, and when the penalty is suspension or removal, the official shall be deemed to have been placed under PS during the pendency of an appeal, if the event he wins such appeal. Appeals, where allowable, must be made by the "party adversely affected" by the decision GSIS vs. CSC The authority of a tribunal or agency to decide cases is inutile unless it also includes the authority to execute its judgments, unless the law otherwise provides. Mendez v. CSC This refers to the employee against whom the admin case was filed. The law does not contemplate a review of decisions exonerating officers from admin charges (meaning: complainants cannot appeal in the event the official charged is exonerated). Remedy of appeal may only be availed of when the employee charged is found guilty of the charges. CSC vs. Dacoycoy The above ruling was overturned when the SC held that the CSC had become a "party adversely affected" by the decision of the CA w/c reversed the CSC's decision to remove the employee charged. As an aggrieved party adversely affected by the decision w/c seriously prejudiced the civil service, the CSC may appeal to the SC. [The 2 cases were decided by the SC, in different divisions, in the same year (1999). The Mendez ruling was decided earlier.]

Mandamus is remedy to enforce an order of the CSC w/c has become final and executory. Summary procedure is no longer allowed in hearing and deciding cases before the CSC. Sec. 40 of PD 807, which dispenses with the conduct of an investigation and allows immediate removal based on certain grounds, was already repealed by RA 6654. o Sec. 40 of PD 804 is unconstitutional to the extent that it deprives the employee procedural due process. (Rosete vs. CA)

PROCEDURE IN ADMINISTRATIVE CASES AGAINST NON-PRESIDENTIAL APPOINTEES • • Under PD 807 (Civil Service Decree) Commencement of Proceedings Admin proceedings may be commenced against a subordinate officer or employee by: o The head of the dept or office of equivalent rank or head of LGU, or chief of agency or regional director. o Or upon sworn written complaint of any other person. The complainant shall submit sworn statements covering his testimony and his witnesses' testimony, with his documentary evidence. If on the basis of such papers, no prima facie case is found, the DA shall dismiss the case. If there is a prima facie case: o The DA shall notify the respondent of the charges. o He shall be allowed to answer within 72 hours from receipt of such notice. o He shall indicate WON he elects a formal investigation if his answer is insufficient for dismissal of the charges. o If his answer is found satisfactory, the charges against him shall be dismissed. Formal Investigation Although no request for a formal investigation was made, one shall be conducted if the merits of the case cannot be judiciously decided based on the complaint and answer alone.

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CSC has no power to reconsider its decision which has become final and executory, even in the event of discovery that such judgment may be erroneous. o Doctrine of finality of judgment provides that once a decision becomes final and executory, it is removed from the power and jurisdiction of the court w/c rendered it. o This doctrine also applies to quasijudicial agencies.

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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Investigation shall be held not earlier than 5 days nor later than 10 days from receipt of answer and shall be finished within 30 days from the filing of the charges. The DA shall render the decision within 30 days from the termination of the investigation or submission of the report of the investigator (must be submitted within 15 days from the termination). Direct evidence shall consist of the sworn statements and documents submitted in support of the complaint and answer, and additional evidence which was unavailable at the time of the filing of the pleadings mentioned. o Respondent and complainant shall be cross-examined on the basis of such direct evidence. There may be redirect and recross-examinations. Both parties may choose to have counsel, require attendance of witnesses and make use of subpoena and subpoena duces tecum. Investigation shall be conducted only for the purpose of ascertaining the truth and without necessarily adhering to technical rules. It shall be conducted by the DA or his authorized representative. The phrase "any other party" shall be understood to be a complainant other than the head of the dept or office of equivalent rank, or head of LGU, or chief of agency or regional director. Casuela vs. Office of the Ombudsman The 5-day bar rule is conducting the admin investigation is indispensable, and enables both parties to explore the possibility of clarifying their problems and accords the defendant therein adequate time to prepare a suitable defense in case no settlement is obtained.

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A Petition for Reconsideration shall be based ONLY on the ff: o Newly discovered evidence which materially affects the decision rendered. o Decision is not supported by the evidence on record. o Errors of law or irregularities prejudicial to the interest of the respondent. Only 1 Petition for Reconsideration shall be entertained. o o Under EO 26-A: All contested cases under the Admin Code shall be decided within 30 days from date of submission for resolution, unless a different period is provided for by special law. Where action is merely recommendatory to immediate superior or head of office, he shall submit such recommendation within 20 days from date of submission of the case for resolution. Approving officer shall have 10 days to decide the case. A case is deemed submitted for resolution upon expiration of period for filing of memorandum, position paper or last pleading required. Every officer charged with resolution of the case shall submit to his superior within 10 days ff. the end of every month a sworn statement of disposition of cases. Only one MR shall be allowed, which shall be decided within 15 days from date of submission for resolution. Only opposition to such MR shall be the only pleading allowed, apart from the MR itself. Failure to submit such sworn statement of disposition of cases shall cause the w/holding of the salary of the officer concerned, until he complies.

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Allowable Appeals Appeals shall be made by the party adversely affected by the decision within 5 days from receipt of the decision unless a Petition for Reconsideration is seasonably filed, which shall be decided within 15 days. Notice of appeal shall be filed with the DA, which shall forward the same to the appellate authority within 15 days from filing the notice. Only the respondent can appeal from the decision of the MSPB. (Mendoza vs. CSC) [The MSPB has been abolished]

Merit System Protection Board • Predecessor Merit Systems Board Creating Law: PD # 1409 o Composition: Commissioner 2 Associate Commissioners Appointing Power o the Civil Service Commissioner (who serves as the Executive Officer) Qualifications: same as RTC judges

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

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Removal: for cause as provided by law Renamed by: Administrative Code of 1987 o Composition: Chairman 2 Members Organization: part of the CSC Powers and Functions: o hear and decide administrative cases involving officers and employees of the civil service decision is final except: involving dismissal or separation form the service (appealable to the CSC) o hear and decide cases brought by employees aggrieved by the determination of appointing authorities involving personnel actions and violations of the merit system o take cognizance of complaints affecting functions of the CSC which are unacted upon by other agencies o administer oaths, issue subpoenas, take testimony in any inquiry, punish for contempt (see notes for comment on this) o promulgate rules and regulations, subject to approval of CSC, to carry out the functions of the board the jurisdiction of the board is exclusive, except for CSC jurisdiction to hear and decide administrative disciplinary cases instituted directly with it or on appeal (Sec 9(1) of the Civil Service Decree) The powers of the CSC final arbiter over personnel actionempowered to review the decisions of the MSPB no power to review decisions exonerating officers and employees Rubenecia v CSC The change instituted by CSC Res. 93-2387 is valid. The functions of MSPB relating to the determination of administrative disciplinary cases were re-allocated to the Commission itself. These changes were prescribed by the Commission to streamline the operation of CSC which required the simplification of systems, cutting of red tape, and elimination of unnecessary bureaucratic layer.

MSPB was granted power of contempt. Hence, it is a quasi-judicial agency. However, (Rubenecia v CSC) provides that admin cases pending on appeal before the MSPB be brought directly or elevated to CSC for final resolution. In effect, MSPB was deprived of jurisdiction. Carlots: Jurisdiction was vested on MSPB by law (PD1409). Thus only law can confer or deprive courts and quasi-judicial agencies of jurisdiction (Pelaez v Auditor General). CSC can only reorganize. But when pursuant to such, it ends up depriving a QJ agency of jurisdiction, then such cannot be valid. • Preventive Suspension Preventive Suspension (for regular administrative investigations) o for civil service employees charged with offenses punishable by removal or suspension Kinds: o Pending investigation Imposed by whom: proper disciplining authority Basis for imposition: ▪ When the charge involves dishonesty, oppression, grave misconduct, neglect in the performance of a duty ▪ If there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service Designation of a replacement is not a requirement to give effect to the preventive suspension Duration ▪ should not amount to a denial of due process ▪ cannot be for an indefinite period ▪ cannot be for an unreasonable length of time ▪ should be co-equal with the period prescribed for describing administrative disciplinary cases ▪ if case is decided in less than 90 days, duration is less than 90 days

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

85

▪ ▪

if case is decided in more than 90 days, should be a maximum of 90 days if not a presidential appointee: must be automatically reinstated after the days from the date of suspension from office when the delay is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension Suspension 90 days 60 days 6 months 90 days Until resolution of case

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payment of salaries during suspension. Sec. 24 of the Ombusdman Act of 1989 (RA 6770) states that preventive suspension shall be "without pay." No compensation is due for the period of preventive suspension pending investigation. Reasons: Not receiving compensation even when exonerated is one of the sacrifices which holding a public office requires for the public good Preventive suspension is authorized by law so it is not unjustified An officer/ employee is allowed to recover compensation for the period of suspension pending appeal Requirements: ▪ the employee is exonerated ▪ suspension must be unjustified (not among the bases enumerated) Reasons: ▪ It is punitive ▪ he punishment is considered illegal if the employee is exonerated and the decision finding him guilty is reversed "But though an employee is considered under preventive suspension, during the period of appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period, the suspension is illegal. Hence, the employee is entitled to reinstatement and full pay." Does “full pay" mean for the entire period of appeal, or just the excess over 90 days of the sum of the period of preventive suspension pending investigation and appeal? Amount of award or compensation should not exceed the equivalent of 5 years pay, at the rate last received before the suspension was imposed

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Preventive CSC Law LGCode Ombudsman Law Anti-graft Law PNP Law o

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Pending appeal Requisites: ▪ Penalty imposed on the respondent is suspension or removal ▪ Respondent has been exonerated after review Purpose of Preventive Suspension o To prevent the officer or employee from using his position, and the powers and prerogatives of his office to intimidate or influence potential witnesses, or tamper with records which may be vital in the prosecution. Preventive Suspension is not violative of the Constitution o Even before charges against him/her are heard and s/he is given the opportunity to prove his innocence, and the chance to file his answer to the administrative complaint o It is not a penalty, so it can be decreed after charges have been brought and under investigation suspended officer or employee remains entitled to the constitutional presumption of innocence since his/her culpability must still be established Right to Compensation during Preventive Suspension o Sec. 52 of the present Civil Service Law (EO 292) has no provision for

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Gen. Principles on Preventive Suspension 1. PS is not a penalty 2. There is no violation of due process if one is preventively suspended with due process (notice and hearing). 3. Rules applicable to PS depends on the law under which the proceedings are conducted. 4. There are 2 types of PS: Geof*Golda*Reeza*Sandi a. PS pending investigation b. PS pending appeal.

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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no requirement of prior notice and hearing because it is not a penalty

Preventive Suspension (for criminal investigations)- under the Anti-Graft and Corrupt Practices Act (RA3019) Mandatory under Section 13 Requirements for the application of this provision o that the accused is a public official, whether: appointive or elective official permanent or temporary employee career or non-career o that there be a pre-suspension hearing to determine the validity of the information furnishes the court with a basis to: ▪ suspend the accused and proceed with the trial of the case, or ▪ refuse the suspension of the accused and dismiss the case, or ▪ correct any part of the proceeding which impairs its validity, as when the accused asserts, among others, the right to preliminary investigation, or that the crime imputed does not constitute a specific crime warranting the mandatory suspension, or that the information is subject to quashal based on Rule 117 ▪ it is the ministerial duty of the court to issue the order of preventive suspension once the validity of the information's established ▪ that s/he be indicted under a valid information as determined in the presuspension hearing ▪ that the office from which s/he is suspended is any office s/he might concurrently be holding, and not necessarily the particular office under which s/he was charged Criminal prosecution is not necessarily abated by an elective officer's reelection. Preventive Suspension Public Officers for Specific

Preventive Suspension (for administrative charges before the Ombudsman) - RA 6770 (Ombudsman Act of 1989) Who may suspend: o The Ombudsman o His/her deputy Under what conditions: o evidence of guilt is strong (as determined by the Ombudsman), and o any of the following: ▪ the charge involves dishonesty, oppression, grave misconduct or neglect in the performance of duty ▪ the charge would warrant a removal from the service ▪ the respondent's continued stay in office may prejudice the case filed against him Who may be suspended: Officers under Ombudsman's disciplinary authority: o All elective and appointive officials of the government, including members of the cabinet o Excluding: officials which may be removed only by impeachment members of Congress the Judiciary How is preventive suspension effected: o pending investigation o duration: discretion of the Ombudsman until the case is terminated maximum of 6 months ▪ unless the delay in the disposition of the case is due to the respondent's fault, negligence or petition ▪ period of delay not included in computing the 6-month period ▪ longer period of 6 months is to emphasize and implement the authority of the Office of the Ombudsman over public officials and employees o without pay

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Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

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Members of the PNP (under RA 6975) o under Sec 47, if charged with a grave offense (penalty is 6 yrs and 1 day or more) until the termination of the case o Civil Service Law and IRR applicable only insofar as not inconsistent with RA 6975 Local Elective Officials (under the Local Government Code, RA 7160) o 60 days max o this is because: respondent is elected by the people may be ordered only after "issues are joined" ▪ all preliminary requirements and exchanges have been completed ▪ respondent had already filed his counter-affidavits to the affidavits of the complainant and the complainant's witnesses Presidential Appointees and Other Elective Officials o should not be unreasonably long (due process questions) right to hold office after acquittal would have been nullified term could be shortened or appointee could be removed without cause established after hearing in the guise of preventive suspension electorate entitled to the services of the elective official of their choice would be inflicted with injustice when the s/he is unable to perform his/her functions o Constitutionality of preventive suspension of a member of Congress is still debatable Hagad v Gozo-Dadole The 6-month preventive suspension without pay under the Ombudsman Act is not repugnant to the 60-day preventive suspension in the LGC

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TO JUSTIFY … Evidence of guilt must be strong and 1. 1. the charge ag. the officer or employee should involve dishonesty, oppression, grave misconduct or neglect in the performance of 2. duty; 2. the charges should warrant removal 3. from service; or 3. the continued stay in office of 4. respondent would prejudice the case filed against him.

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It is enough that: 1. there is reasonable ground to believe that the respondent has committed the act or acts complained of; 2. evidence of culpability is strong 3. gravity of the offense so warrants; or 4. the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Suspension Suspension Temporary stoppage of an official power and pay but if suspension is to continue until the end of the case, might be a virtual removal since the prosecution might take longer than the respondent's term of office Not a penalty Only a measure of protection to insure proper and impartial conduct of an investigation

Removal Distinguished

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Removal Duration Permanent disenfranchiseme nt

Preventive suspension under Ombudsman Act

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Nature

Administrative penalty

Geof*Golda*Reeza*Sandi

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

88

Time of Impositio n

At the termination of the investigation or the final disposition of the case

During the period of investigation Even before charges are heard

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Schedule of Administrative Penalties The CSC has classified penalties for administrative offenses under PD 807and RA 6713: o Grave Offenses Dismissal Suspension from and 1 day to 1 year for first offense, dismissal for second offense o Less Grave Offenses Suspension from 1 month and 1 day to 6 months for first offense, dismissal for second offense o Light Offenses Reprimand for the first offense, suspension from 1 day to 30 days for the second offense, and dismissal for the third offense Imposition of Special Penalties o Offenses under PD 807 Forced resignation instead of dismissal Transfer, demotion or fine instead of suspension from 1 month and 1 day to 1 year Fine instead of suspension from 1 day to 30 days o Offenses under RA 6713 Only one penalty imposed for each case involving one or more charges or counts Determination of Penalties to be imposed o Aggravating and mitigating circumstances may be considered o If found guilty of two or more charges or counts, penalty imposed should be for the most serious charge or count and the rest are considered aggravating circumstances Accessory penalties o Dismissal Cancellation of eligibility Forfeiture of leave credits Forfeiture of retirement benefits Disqualification for reemployment in the government service o Forced resignation Forfeiture of leave credits Forfeiture of retirement benefits -

Disqualification for employment in the government service for one year Disqualification for reemployment in a class or position in the government service if the resignation contains such condition o Administrative penalty is not a bar to the conviction under general penal laws Removal of Administrative Penalties o President may commute or remove administrative penalties or disciplinary cases Requirements: ▪ In meritorious cases and ▪ Upon recommendation of the CSC Subject to terms and conditions President may impose in the interest of the service THE SANDIGANBAYAN • Jurisdiction of the Sandiganbayan Subject Matter o PD 1606, amended by RA 7975 and RA 8249 o violations of RA 3019 (Anti-Graft and Corrupt Practices Act) and RA 1379 (Forfeiture of Unlawfully Acquired Property) o crimes committed by public officers and employees under Title VIII of the RPC o other offenses or felonies committed by public officers and employees in relation to their office where the penalty prescribed is higher than prision correccional or imprisonment of 6 years fine of P6000 civil and criminal cases filed pursuant to E01, E02, E014, and EO 14-A Persons o PD 1606 sec 4(a) and (b) in general, SG 27 or higher for other government officers, check enumeration in pages 462-463 private individuals charged as coprincipals, accomplices, or accessories Exclusive original jurisdiction ordinary courts (RTC, MTC) When none of the accused are: of

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
(wala na kaming maisip na title.bahala ka na sa blank na yan)

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occupying SG27 or higher positions military or PNP officers

• Carlots: This is Obiter! Sandiganbayan had been removing public officers for years.

When there is no allegation that the offense charged was necessarily connected with the discharge of the duties or functions of a public officer: o must be direct relation between the crime and the office o offense cannot exist without the public office SB has exclusive appellate jurisdiction over RTC decisions in exercise of: o Original jurisdiction o Appellate jurisdiction The Ombudsman

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Powers, Functions, and Duties of the Ombudsman Investigate (motu proprio or upon complaint by any person) any apparently illegal, unjust, improper, or inefficient act or omission of any public official, employee, office or agency Direct any such official o to perform, or expedite any act or duty required by law or o to stop, prevent and correct any abuse or impropriety Direct the officer concerned o to take appropriate action against a public official or employee at fault and o to recommend his: removal suspension demotion fine censure prosecution o and to ensure compliance of the above Determine the cause of inefficiency, red tape, mismanagement, fraud and corruption and make recommendations for their elimination and the observance of high standards of ethics and efficiency Tapiador v Ombudsman The Ombudsman has no power to directly dismiss Tapiador from the BID. Under the Constitution, the Ombudsman can only recommend the removal of an erring public official, to the official concerned.

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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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Senate sits as the court for trial of the case

Liability of convicted officer o Removal from office o Disqualification to hold any office o Liable and subject to criminal prosecution, trial, and punishment By Abolition of Office Who has the power to abolish o General Rule: Congress may abolish, without infringing upon the rights of employees or officers affected o Exception: President, when power is delegated to him/her LGU, when power is delegated to it People, when amending the Constitution When to exercise the power o anytime, even when someone is occupying the office o no deprivation of right of incumbent because s/he has no contractual right or property interest in the office acceptance of office is with the understanding that it may be abolished anytime tenure of office is not affected by the Constitutional prohibition against the impairment of Contracts o security of tenure (no removal except for cause) does not protect them from abolition, except if there is a provision prohibiting the abolition of the position What constitutes abolition o intention to do away with it wholly and permanently o not when the position is the same one formerly held but bearing a different name o removal, which is ousting from office before the expiration of the term and implies the existence of the office after the ouster Removal from office and termination by abolition distinguished Effect Removal There is an office with an Abolition No more occupant

occupant who would lose his position Post subsists and occupant is merely separated

Right to security of tenure does not exist in a non-existent office

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Manalang vs. Quitoriano M, the director of a bureau which was abolished claims that he was illegally removed by virtue of failure to appoint him head of the new office which replaced the abolished bureau. There has been no removal because M was never the director of the new office. The new office is separate from the old one, as the law abolishing the old office and creating the new one allowed the "transfer" (which connotes a separate and distinct office) rather than "retention' of qualified personnel. Eugenio v CSC CSC has no power to abolish the CESB. It cannot be disputed that as the CESB was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function. From its inception. the CESB was intended to be an autonomous entity, albeit administratively attached to CSC. By said attachment, CESB was not made to fall within the control of CSC for its reorganization. The purpose of attaching a functionally inter-related government agency to another is to attain "policy and program coordination." Abolition must not constitute removal without cause o valid exercise of power of abolition made in good faith absence of political or personal motivation (there is some reasonable ground for abolishing the position) not implemented in violation of law o exception to valid exercise of power to abolish done in bad faith Effect of a valid and bona fide abolition of office

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denies to an incumbent right to security of tenure

Basic Principles in Abolition 1. Congress can create offices (plenary power) 2. Corrolarily, it has plenary power to abolish 3. It is subject to 2 limitations a. Can’t abolish consti offices b. Consti prescription on security of tenure Termination Through Reorganization Definition o alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to: promote greater efficiency remove redundancy of functions effect economy make it more responsive to the needs of its public clientele May result in loss of position through: o removal or o abolition of office Validity of reorganization o examples: may be required by law independently of constitutional authorization must be based on a valid purpose must not result in removal without cause in violation of right to security of tenure a finding of reorganization in bad faith must be supported by substantial evidence (good faith is presumed) similarity of functions of old office and new office is bad faith in reorganization, there is no removal of incumbent Briones vs. Osmena, Jr. The CFI declared that the abolition by the Municipal Board of the positions in the Office of the City Mayor were made without the approval of the Department Head as required by a Circular and by EO 506. The SC sustained the decision declaring the abolition of the positions null and void, because of the falsity of the grounds (economy and efficiency) given by the MB when it abolished the office, such that the abolition was a subterfuge for their removal without cause. • -

The creation of a new office requiring huge outlay shortly before the abolition of their positions shows that the excuse of economy and efficiency is unimpressive. Fernandez v Sto. Tomas CSC had legal authority to re-arrange, merge, and rename some of the admin Offices, and allocate/reassign certain functions from one Office to another. This was for "effecting changes in the organization to streamline the CSC’s operations and improve delivery of service. CSC has not abolished any public office as that term is used in the law of public officers. None of the "changes in organization" introduced carried with it or necessarily involved the termination of the relationship of public employment between the CSC and any of its officers and employees Buklod v Executive Secretary Gen Rule: the President has no authority to reorganize the executive department. Exceptions: as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to: 1. inactivate the functions of a particular office 2. certain laws may grant him the broad authority to carry out reorganization measures. Gen Rule: A 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, security of tenure would not be Chinese Wall. By Conviction of a Crime Under the RPC, the conviction of a crime carries with it the penalties of perpetual or temporary absolute/special disqualification (Articles 30 and 31), even if the official was in an elective position if acquitted, should be reinstated Under the Civil Service Decree (Section 36(10]), conviction of a crime involving moral turpitude is a ground for disciplinary action.

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People vs. Consigna Where the accused was acquitted of the crime of malversation, reinstatement should follow. As the court said, had he been convicted, he would have been denied of the right to reinstatement, therefore if the converse were to take place (i.e. accused is acquitted), he should be reinstated. This case is not to be considered as a precedent because here, there was a finding by the court of an absolute lack of evidence. The Daleon case, which stated that the court's powers extend only to the finding of guilt or innocence of the accused, not the backwages and reinstatement, remains controlling. Other remedies should be left to proper proceedings. • -

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Person pardoned may apply for reappointment to the office forfeited by reason of conviction but the fact of his having committed the offense should be taken into consideration when evaluating his eligibility to the public office. The civil liability of the person pardoned which arose from the crime he has been convicted of is not extinguished by pardon

By Recall Definition o the procedure by which an elective office may be removed at any time during his term by the vote of the people at an election called for such person or at a general election. Purpose and nature of the power of recall o purpose of recall is to provide an effective speedy for the removal of an official who is not giving satisfactory service to the public, and whom the (regardless of whether official, to his own perception, is discharging his duty to the best of his abilities). o grounded on loss of confidence of the electorate in their public official o political in nature, not the exercise of a judicial function. o source of power in a republic is the people, therefore they have the power to remove their officials. Recall of local elective officials o Exercised by the registered voters of a local government unit where official belongs

What constitutes conviction o As appearing in constitutional and statutory provisions should be taken to mean conviction in a trial court. o Court finding guilt beyond reasonable doubt followed by judgment upholding such finding o A plea of guilty accepted by the court, together with sentence, amounts to conviction o Lack or absence of proof beyond reasonable doubt in a criminal case does not mean the absence of other evidence which may be deemed adequate in civil cases (preponderance of evidence) or administrative proceedings (substantial evidence). Effects of Pardon o Pardon granted after conviction erases the penalties and legal disabilities of an individual and restores a person to his civil rights Does not restore the right to public office unless expressly restored by the pardon ▪ Must be stated in express, explicit and positive language, and cannot be merely inferred ▪ Pardon is grounded on the person's innocence However, eligibility for appointment to the same office is restored

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May be initiated by a preparatory recall assembly (PRA) found in every province, city, district and municipality Composition ▪ Provincial level:  Mayors,  Vice mayors,  Sanggunian members of municipalities and component cities ▪ City level:  All youth barangay members,  Sangguniang barangay members in city

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Legislative district level  Where Sangguniang Panlalawigan members elected by district: All elective municipal officials in district  Where Sangguniang Panlungsod members elected by district: All elective barangay officials in the district Municipal level  all punong barangay and Sangguniang barangay members in the municipality

In a public and conspicuous place For not less than 10 days nor more than 20 days for purposes of verification Upon the lapse of period, COMELEC or its representative shall announce acceptance of candidates to the position and prepare the list of candidates including the name of the official sought to be recalled o COMELEC shall set the date of the election, after filing of resolution or petition not later than 30 days in the case of barangay, city and municipal officials 45 days in the case of provincial officials

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May be initiated by registered voters of the local elective official subject to recall

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Process of recall o Initiation by: Majority of PRA members may convene in a public place and initiate a recall proceeding against elective official ▪ recall of provincial, city, or municipal officials must be initiated through a resolution adopted by majority of all PRA members in a session called for that purpose 25% of the total number of registered voters in the LGU concerned (those who voted when the official sought to be recalled was elected) may petition for the initiation of a recall a written petition for recall must be dirty signed before the election registrar in a public place in the presence of representative of the petitioner representative of official sought to be recalled filed before the COMELEC COMELEC or its duly authorized representative shall cause publication of the petition

Effectivity of recall o Upon the election and proclamation of a successor who garners the highest number of votes. o If official sought to be recalled wins, he shall continue in office. Prohibition from resignation o Elective local official sought to be recalled shall not be allowed to resign while recall process in progress. Limitations on recall o may be conducted only once (1) during the term of the elective official's term of office o no recall within 1 year from date of assumption of office o no recall 1 year immediately preceding a regular local election

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RECALL CHART

Resolution of PRA Majority of PRA

Petition for Recall by voters Signed by 25% registered voters

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Filing w/ COMELEC Petition: Publication and Verification  genuiness/authenticity of sigatures # of signatures Announce acceptance of candidate Prepare list of candidates Set date of election Election (2nd year) Effectivity of Recall Election & Proclamation Of Successor Confidence affirmed & official continues in office

NOTE: RA 9244 – ABOLISHED PRA Hence, recall may be initiated by petition.

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95

The term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that he has served 3 consecutive terms, he must also have been elected to that same position for the same number of times before disqualification can apply. Bernas: “If one is elected to representative to serve the unexpired term of another, that unexpired term, no matter how short will be considered one term for purposes of computing the number of successive terms allowed.” This only applies to members of House of Representatives where there is no recall election provided.

Claudio vs COMELEC The resolution of PRA was adopted w/in 1 yr prohibited period but filed w/in 1 yr allowable period. SC held that there are 3 limitations on periods where official may be subject to recall as imposed by Sec. 74 LGCode. 1. Par A prohibits the holding of such election more than once during the term of office of the elective official. 2. Par B prohibits the holding of such election w/in 1yr from the date official assumed office. 3. Par C prohibits the holding of a recall election w/in 1yr immediately preceding an election. Adormeo vs COMELEC

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