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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER


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CHAPTER I: DEFINITION, DISTINCTIONS employees must at all times be accountable to


AND CLASSIFICATIONS OF PUBLIC the people, serve them with utmost
OFFICERS responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead
modest lives.” (Sir said to memorize this)
Public Office- the right, authority and duty
created and conferred by law, by which for a Kinds of accountability:
given period, either fixed by law or enduring at
the pleasure of the appointing power, an 1. compliance
individual in invested with some portion of the 2. finances
sovereign function of the government, to be 3. managerial
exercised by him for the benefit of the public. 4. results
RADLAPSOBEP Kinds of sanctions for wrong-doing:

1. administrative- wrong-doer is
Notes: removed from office
2. civil- wrong-doer pays damages
Q: Why “some portion” only? 3. criminal- wrong-doer goes to jail
A: Because of the principle of separation of
powers. Cannot vest all 3 powers in just one
office.
Public office is not a property right:
Q: What are sovereign functions?
A: They are legislative, executive or judicial. 1. The holder of the office is subject to
removal or suspension according to
Q: Are public school teachers public officers? law:
A: Yes. They exercise an executive function by
implementing laws on education. • He is not denied due process if
his office is abolished before
his term expires or if he is
Purpose and nature of public office: removed or suspended
according to law
1. It is for effecting the common good
• He is not denied due process
2. It is a public trust (inconsistent with by the passage of statute
either a property or contract right) limiting or reducing his
compensation
3. It is a responsibility and not a right
• He has no property right in the
books and papers pertaining to
What does “public trust” mean? his office
1. The holder of the office is regarded as
a public servant
2. Holder is without vested right in any
2. The powers of his office are to be public office
exercised in behalf of the government
and all citizens • Exception: Constitutional
offices that provide for special
3. The public officer is subjected to the immunity regarding salary and
highest standards of accountability and tenure
service
Due process clause- cannot be invoked except
4. He shall at all times uphold public as to:
interest
1. security of tenure
2. salary, when provided by law
Art. XI Section 1 of Constitution: “Public
office is a public trust. Public officers and
3. Holder right is personal to him

Geof*Golda*Reeza*Sandi
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and cts are


• It is not property that passes to permanent specific
his heirs upon his death

Public Office: Public Employment:

1. Every public 1. Not every


office is an public
employment employment is
SEGOVIA VS NOEL 2. Characterized an office
by delegation 2. No delegation
Justice of the Peace assails a law of sovereign or exercise of
limiting his tenure of office (“shall serve until powers to the sovereign
65 years old” instead of “during good holder powers
behavior”). The law was given retroactive 3. Created by
effect so when he turned 65, he was ousted via 3. Created by
law contract of
quo warranto proceedings. employment
Though there is no vested right in an Essential elements of a public office:
office, if the right is to be taken away by
statute, the terms should be clear as to the 1. It is created by-
purpose of abolition of the office.
• The Constitution
Under the Constitution, members of
the judiciary enjoy security of tenure during • By law
good behavior. Congress is prohibited from • A body or agency to which the
passing a law re-organizing the judiciary when power to create the office has
it undermines their security of tenure. been delegated

2. It must be invested with authority to


Public office is not a contract: exercise some portion of the sovereign
power of the state to be exercised for
1. It creates no contractual obligation public interest
between the holder of the office and
the public 3. Its powers and functions are defined by
the Constitution, or by law, or through
2. The office exists by virtue of some law, legislative authority
it is not a natural right
4. The duties pertaining thereto are
3. although the holder of the office is performed independently, without
entitled to compensation, the salary is control of a superior power other than
a mere incident and forms no part of law
the office
• Exception: an inferior or
Public Office Public subordinate officer who is
Contract placed by legislature under the
Creation Incident of general control of a superior
sovereignty Originates officer or body
from will of
contracting 5. It is continuing and permanent and not
parties occasional or intermittent
Object Governmental
functions/affe Imposes
cts even obligations Creation of public office:
persons not only upon
bound by contracting 1. Generally, by some Constitutional or
contract parties statutory provision or by authority
Subject conferred by statute
Matter/Scop Duties are Limited
e continuing duration/Obje 2. By Congress

Geof*Golda*Reeza*Sandi
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acts are those executive,


• Creation of public offices is of the govt. legislative or
primarily a legislative function judicial
functions
• When an office is created by
Congress, that office is wholly
within the power of Congress PRECLARO VS CB

3. By the President, with respect to Not all contractual employees of the govt. are
bureaus, agencies or offices in the public officers. To be such, the following must
executive department (Source of concur:
power: Admin. Code, which grants to
the President “continuing authority to 1. he must be hired because of his skills
reorganize the administrative structure which is not possessed by anyone in
of the Office of the President”) the contracting agency;
Public offices, how abolished or modified:
2. the hiring agency must exercise
1. Where office is created by Congress, minimal control over him;
that body may abolish , control or 3. the contract must not last for more
modify it, unless prohibited by the than one (1) year
Constitution
Classification of public offices
2. Where office is created by the
Constitution, it may be modified or
1. As to nature
abolished by the people through a
a) Civil officers- covers
Constitutional provision. It is beyond
executive, legislative
the power of Congress to alter or
and judicial
abolish.

b) Military officers-
How are sovereign powers exercised? includes all offices in
the armed forces that
1. By enacting laws (legislative); or solely involve military
functions
2. Executing laws (executive); or
3. Adjudicating controversies (judicial) 2. As to creation
a) Constitutional
Tenure and duration: officers- created by
the Constitution
1. Need not be for a fixed period; may be
at the pleasure of the appointing power
b) Statutory officers-
Congress has full
2. Continuance of office holder is not
control as its creator
material; but continuance of the duties
attached to the office is indispensable
3. As to govt. department to which it
3. Permanence of office is not required,
belongs
however, something more than a single
transaction is required
a) Legislative officers

b) Executive officers
Public official Public officer Public
Employee
c) Judicial officers
- an officer of - required to - position has
the govt. take an oath, less dignity,
itself give a bond importance
4. As to branch of govt. served
- authorized and
- his duly to exercise independence
authorized either

Geof*Golda*Reeza*Sandi
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a) National officers- - Disqualified to be elected to office


includes any office in - Disqualified to hold an office, if elected or
the national/central appointed to it
govt.
• Qualification
- endowment or accomplishment that makes
b) Local officers- any
one fit for office
office in the political
- an act which is required prior to assuming
subdivisions like
office
regions, provinces,
cities, municipalities,
barangays, etc. • Nature of Right to Hold Public Office
- Not a natural right
5. As to exercise of discretion - exists only by virtue of a law creating or
conferring the right
a) Quasi-judicial officer- - Not a constitutional right
requires exercise of - A political privilege w/c depends upon the
judgment favor of the people

b) Ministerial officer- • Power of Congress to Prescribe


executes mandates Qualifications
lawfully issued by his
superior officer GEN RULLE: Congress prescribes
qualifications
6. As to compensation Restrictions:
1. subject to Constitution
a) Lucrative 2. rational basis: nexus bet. req’t
office/coupled with and duties of the position
an interest- with
salary - if the office was created by Congress,
Congress may prescribe qualifications
b) Honorary- no - if the Constitution prescribes qualifications,
compensation Congress may prescribe additional
qualifications unless prohibited
CHAPTER II. ELIGIBILITY AND - if the office is created by Constitution,
QUALIFICATIONS Congress has no power to require different
qualifications
• Eligibility
- state or quality of being legally
fitted/qualified to be chosen
- a continuing nature Ignacio v Banate
- must exist both at commencement and If law is clear as to qualification, then an
during occupancy of office unqualified person cannot be appointed
even in an acting capacity.
• Eligible
Power of Congress to Prescribe
- legally fitted/qualified to hold office
Disqualifications
- Admin Code
 Obtained passing grade in CS
GEN RULE: Congress can prescribe
exam
Except:
 Granted CS eligibility 1. when Consti says disqualifications
 Name entered in register of provided are exclusive
eligibles 2. when Consti attached disqualification,
such cannot be removed.
• Ineligibility
- lack of qualifications prscribed by Const of Vargas v Rilloraza
applicable law for holding public office No act of the legislature repugnant to
Constitution can become law. The method
• Ineligible of appointment of an SC justice provided
- Legally or otherwise disqualified to hold an by the Constitution is mandatory. Thus, the
office

Geof*Golda*Reeza*Sandi
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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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provision in the Act that added grounds for • Qualifications usually required of
disqualification is unconstitutional. public officers
- Citizenship
o Gen principle: aliens are not
• Construction of Restrictions on eligible to public office unless
Eligibility staute extends privilege to them.
- presumption of eligibility - age
 basis: right of voters to exercise their - suffrage
choice o gen rule: only electors are eligible
 right to aspire and to hold public o if law is silent: only electors are
office - right to public office is strictly eligible
construed against ineligibility o if not specifically excluded by
- right to public office should be strictly consti/law: persons not electors
construed against ineligibility may be appointed/elected
- residence
• Time of Possession of Qualifications o synonymous w/domicile
- if time specified by Consti/law – must be o personal presence, intention to
possessed at that time reside and conduct indicative of
intention
- if time not specified: resort to statutory - education
construction - literacy/ ability to read and write
- political affiliation
- 2 Possibilities: - civil service exam
o religious beliefs or opinions cannot
1. For eligibility for office be made a test of political right and
o time of election or appointment privilege
o time of commencement of term or o religious test: demands avowal or
induction into office repudiation of religious beliefs before
the performance of any act
2. For holding of office
o time of commencement of term or - SC has held in Pamil v Teleron that a priest
induction into office during the cannot be elected as mayor. But if it were
continuance of the incumbency decided today, it would be overturned as
Admin Code of 87 does not prohibit the
- BUT always: election of ecclesiastics to municipal office
o eligibility to public office is of a anymore.
continuing nature
o will of the people as expressed • Power of Congress to impose property
through the ballot cannot cure qualification
ineligibility - Gen Rule: not allowed as it is offensive to
equal protection, social justice,
republicanism and democracy
• Removal of disqualifications during
term • Qualification prescribed by Consti for
- not yet settled certain officials
- some held that removal validates title of
the incumbent; others take contrary view - All must be Natural-born citizens

Castañeda v Yap
Ag Resi Others
Elected mayor was less than the minimum e den
age requirement of 23 when proclaimed cy
elected. Losing party is not estopped from Pres &VP 40 10 Regist
questioning the eligibility of winner as a yr yrs ered
candidate’s ineligibility is always subject to s voter
question. up Can
on read
el and
ec write

Geof*Golda*Reeza*Sandi
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tio s At no time shall all 3


n belong to same
da u profession
y p
Senators 35 2 Regist
yr yrs ered Chair & Majority must be
s voter Comm members of the Bar
up Can of Com Qualifications
on read on provided by law
el and Human
ec write Rights
tio Ombuds 4 Members of the Bar
n man & 0 w/ 10 yrs practice
da Deputie y Possess probity,
y s r independence
Represen 25 1 yr Regist s Not candidate in
tatives yr ered preceding elections
s voter u
up Can p
on read
el and
ec write Qualification prescribed by Law for
tio certain officials
n
da A Others
y ge
Dept 2 Fil citizen
A Others Secretari 5y
g es rs
e u
Member 4 At least15yrs p
s of 0 judge/lawyer CA 4 At least15yrs
Suprem y Competence, Justices 0 judge/lawyer
e Court r integrity probity, yr Competence,
s independence s integrity probity,
u independence
u p (same as SC
p justice)
RTC 3 Must be lawyers w/
Chair & 3 Capacity for public Judges 0y at least 10 yrs
Comm 5 admin rs practice or
of Civil y Not candidate in u Held public office
Service r preceding elections p w/ requires
s membership in Phil
bar
u MTC, 3 Must be lawyers w/
p MetTC, 0y at least 5 yrs
MCTC rs practice or
Chair & 3 College degree Judges u Held public office
Comm 5 holders p w/ requires
of r Not candidate in membership in Phil
COMELE s preceding elections bar
C Majority must be
u members of Phil Bar - Elective local officials
p w/ 10 yrs practice o Citizens (natural-born or
naturalized)
Chair & 3 CPA or lawyers w/ 10 o Registered voter in place where
Comm 5 yrs practice intending to be elected
of Com y Not candidate in o Able to read/write Filipino or any
on Audit r preceding elections dialect

Geof*Golda*Reeza*Sandi
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- having been a candidate for any elective


position
Age on election day - under the Local Government Code
Governor, VG, 23yrs up o sentenced by final judgment for an
SP Members, offense involving moral turpitude, or
Mayor, VM of for an offense punishable by one
highly urbanized year or more of imprisonment within
Cities 2 years after serving sentence
Mayors, VM of 21yrs up o removed from office as a result of an
Other administrative case
Municipalities/ o convicted by final judgment for
Cities violating oath of allegiance to the
SP/SB members 18yrs up Republic
Brgy officials o dual citizenship
SK At least 15 but not o fugitive from justice
more than 21 o permanent residents in a foreign
country
Lapinid v CSC o insane or feeble-minded

CSC has no power of appointment except over CLU v Executive Secretary


its own personnel. Neither does it have the
authority to review the appointments made by The prohibition against holding dual
other offices except only to ascertain/review if or multiple offices or employment
the appointee possesses the required under Sec 13, Art VII of Consti must
qualifications. Department Head or appointing not be construed as applying to posts
authority is vested with the sound discretion of occupied by the Executive official
determining who among several l candidates specified therein without additional
for a vacant position has the best compensation in an ex-officio
qualifications. capacity as provided by law and as
required by the primary functions of
Formal qualifications: age, number of academic the said official’s office. The reason is
units in a certain course, seminars attended, that these posts do not comprise
etc., “any other office” w/in the
Informal qualifications: intangibles as contemplation of the constitutional
resourcefulness, team spirit, courtesy. prohibition but are properly an
initiative, loyalty, ambition, prospects for the imposition of additional duties and
future, and best interests of the service functions on said official.

Disqualifications to Hold Public Office The term “primary” used to describe


- Sources: Consti and Statutes functions refers to the order of
- Gen Rule: if lacking qualifications importance
Impeachment: and thusofrefer
a species to chief or
disciplinary
prescribed by Consti/Law, principal
proceeding againstfunctions. (ex. but
public officers DOTC
ineligible/disqualified Secretary acting as chairman
unique because highly politicized. of
- Other universally accepted causes for Maritime Industry Authority)
disqualification: Covers:
1. President & VP
- mental or physical incapacity 2. SC Justices
o remedy: judicial declaration of 3. Members of Consti Commissions
incapacity secured by other officers 4. Ombudsman
- misconduct or crime (see Chapter VIII)
- impeachment Nature: administrative proceeding but
- removal or suspension from office (see Congress the trial body is not an admin
Chapter VIII) agency. Hence, it is sui generis.
- previous tenure of office
- consecutive terms Quantum of evidence: Congress decides.
- holding more than one office Last impeachment it was “clear and
- relationship with appointing power convincing evidence”.
- office newly created or the emoluments of
which have been increased No review by SC as the authority of
- being an elective official 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
Chapter 3 an inherently executive power.

ACQUISITION OF RIGHT OR TITLE TO Power of courts to review appointment


OFFICE 1. unless gravely abused, the courts
will not attempt to control the power
A. In General to appoint

Modes of Commencing Official 2. writ of mandamus cannot be


Relations applied for to compel the exercise of
- obtained only in the manner prescribed by the discretion to appoint
the Constitution or by law
1. election 3. The right to choose those qualified
2. appointment for the position is a prerogative of the
appointing power that may be
Appointment availed of without liability, provided
- act of designation by the officer / board / however, that it is exercised in good
body to whom that power has been faith and not in a malicious, harsh,
delegated, of the individual who is to oppressive, vindictive or wanton
exercise the powers and functions of a manner, or out of malice or spite.
given office - whom to appoint is a political or
- the nomination or designation of an administrative question involving
individual to an office 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
Where appointing power resides the organizational structure and
environmental circumstances within
1. Inherently belongs to the people which the appointee must function.
- 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 Power of CSC to revoke appointments


appointed public officials
1. As long as the appointee
Nature of the appointing power possesses the qualification required
1. Rule: Appointment is an executive function by the law, the Commission has no
- whether exercised by the executive, authority to:
legislative, or judicial officers a. revoke an
appointment on the
ground that another
person is more qualified

Geof*Golda*Reeza*Sandi
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persuasive in character, not binding upon


b. direct the the party to whom it is made.
appointment of a
substitute of its choice or Obiter: One whose claim is
a successful protestant predicated solely upon a more or less
remote possibility that, in the event
2. If the appointment is void from the an office should be declared vacant,
beginning because of fraud on the he may be the recipient of the
part of the appointee or because it appointment, has no cause of action
was issued in violation of law, the against the office holder.
Commission may:
a. recall or Power of Appointment may be:
b. revoke said appointments
1. Absolute
Concepcion v. Paredes - choice of the appointing authority is
conclusive if it falls upon an eligible person.
Law provided that judges shall exchange
- no further consent or approval is
districts, through lots, every 5 years and that
necessary
no judge shall continue to serve in a district in
- the commission (formal evidence of
which he has been serving for 5 years.
appointment) may issue at once
The Philippine Legislature has no power to
enact laws which expressly or impliedly 2. Conditional
diminish the authority conferred by the Act - assent or approval by some other officer or
of Congress on the Chief Executive. In the body is necessary to complete the
CAB, the appointing power will not exercise appointment
judgment, but rather perform a ministerial - example: President can appoint certain
act in approving the appointment public officers with the consent of the
determined by chance which has been Commission on Appointments
substituted for executive judgment.
- The tolerance, acquiescence or mistake of
Reyes v. Abeleda the proper officials resulting in non-
observance of the requirements of law or
Next-In-Rank Rule: A person next-in- rules to complete the appointment does
rank, competent and qualified to hold the not render the requirements ineffective
position, is entitled to a vacancy occurring and unenforceable.-
in any competitive or classified position in
the government. Restrictions on the power to appoint.
If there are 2 or more persons under equal 1. General rules
circumstances, seniority must be given
preference. a. Appointee should possess the
prescribed qualifications.
Notes: It does not necessarily follow b. He should be selected solely with a
that the next-in-rank should be view to the public welfare.
appointed. Being next-in-rank o appointing power should exercise
endows one with merely a right to be power to appoint with disinterested
considered, not a right to skill and in a manner primarily for
automatically be appointed. the benefit of the public
c. It is against public policy to permit an
officer having an appointing power to
use such power to confer an office on
Cuyungkeng vs. Cruz himself.
Inclusion in the list of recommendees is not d. One cannot make a prospective
one of the qualifications to be appointed. In appointment to fill an office where the
addition, said list would constitute a appointee’s term is not to begin until
reduction and impairment of the appointing the appointing power’s own term has
power vested in the President by the expired.
Constitution. At most, the recommendation
is merely an advice, exhortation or 2. Restrictions imposed by the Constitution
indorsement, which is essentially

Geof*Golda*Reeza*Sandi
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a. Spouses and relatives by consanguinity or g. Political lame ducks are prohibited:


affinity - a candidate who has lost in any election
- within the fourth civil degree of the o cannot be appointed,
President within one year after such
- cannot be appointed, during that election
President’s tenure, as: o to any office in the
o Members of the ConCom government or any GO/CC
o Office of the Ombudsman or any of their subsidiaries
o Secretaries, undersecretaries,
chairmen or heads of bureaus or h. Elective officials are not eligible:
offices, including GO/CC and their - for appointment or designation in any
subsidiaries capacity to any public office or position
during his tenure
b. Prohibited midnight appointments are those:
- made two months immediately before the
next presidential elections up to the end of i. Appointive officials shall not hold:
his term - any other office or employment in the
- made by the President or the Acting government or any subdivision, agency or
president instrumentality thereof, including GO/CC or
- except if these are temporary their subsidiaries
appointments to executive positions when - UNLESS otherwise allowed by law or by the
continued vacancies will prejudice public primary functions of his position
service or endanger public safety
j. Ombudsman and his Deputies
c. Congress may, by law, vest the appointment - appointed by the President
of other officers lower in rank in the President - from a list of at least 6 nominees prepared
alone, in the court, or in the heads of by the Judicial and Bar Council
departments, agencies, commissions, or - from a list of 3 nominees for every vacancy
boards. thereafter
- no need for confirmation
d. Officials and employees in the judiciary may - must be filled within 3 months after they
be appointed by the Supreme Court in occur
accordance with the Civil Service Law.
- same rule for those in the Office of the When Appointment is Deemed
Ombudsman, other that the Deputies Complete

e. Members of the Supreme Court and judges -- The appointment becomes complete
of lower court: when the last act required of the
- appointed by the President appointing power is performed. Until the
- must come from a list of at least 3 process is completed, the appointee can
nominees prepared by the Judicial and Bar claim no vested right in the office nor
Council for every vacancy invoke security of tenure. --
- does not need confirmation
- lower court judges’ appointments must 1. If appointment is not subject to
issue within 90 days from the submission confirmation
of the list o commission (formal evidence of
appointment) may issue at once.
f. ConComs shall appoint:
- members without reappointment 2. Appointments subject to confirmation
o appointment to any o commission can issue only when
vacancy shall be only for confirmation is obtained
the unexpired term of the
predecessor 3. Appointments to positions in the
o no appointment or Civil Service must be submitted to
designation in the a the CSC for approval
temporary or acting - if appointee is qualified civil service
capacity eligible, CSC has no choice but to attest the
- officials and employees in accordance with appointment
law o attestation or confirmation does
not complete the appointment

Geof*Golda*Reeza*Sandi
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since such attestation, although an - when the appointing power does every act
essential part of the appointing within his power to make such
process, serves merely to assure appointment, his functions with respect to
the eligibility of the appointee the appointment are at an end and the
appointment is complete whether accepted
- if appointee later found ineligible, CSC or refused.
may reject appointment and appointment
shall lapse despite the attestation 2. necessary to possession of office
- necessary to enable the appointee to have
4. Effects of completed appointment full possession, enjoyment, and
responsibility of an office (PER)
a. No new or further appointment could be - appointee cannot impose his conditions for
made to a position already filled by a the acceptance of a public office
previously completed appointment which had
been accepted by the appointee through a Form of Acceptance
valid qualification and assumption of its duties. 1. Express
o verbally
b. Having once made the appointment, o in writing
appointing officer’s power over the office is o taking oath
terminated in all cases where by law the officer o posting of bond
is not removable by him.
2. Implied
c. Right to office vests in the person appointed o exercise of duties and functions
and he has the absolute unconditional power of o note: mere seeking for the office or
accepting or rejecting it. the consent to be voted or appointed,
though it may imply a promise to
Tomali v. CSC accept if elected or appointed, does
An appointment to a position in the civil not of itself amount to an actual
service is required to be submitted to the acceptance of the office
CSC for approval in order to determine, in
main, whether the proposed appointee is Is an individual appointed or
qualified to hold the position and whether elected to office compelled to
or not the rules pertinent to the process of accept such appointment or
appointment. election?

Compliance with the legal requirements for General Rule: No, a person may not
an appointment to a civil service position is be compelled to accept a public
essential in order to make it fully effective. office. (involuntary servitutude?)
Exceptions:
Without the favorable certification or 1. Consti: The Government may call
approval of the Commission, in cases when upon the people to defend the State
such approval is required, no title to the and, in the fulfillment thereof, all
office can yet be deemed to be citizens may be required, under
permanently vested in favor of the conditions provided by law, to render
appointee, and the appointment can still be personal military or civil service.
recalled or withdrawn by the appointing
authority. 2. Revised Penal Code: Persons who
having been elected by public
Until an appointment has become a election to a public office may suffer
completed act, it would likewise be the penalty of arresto mayor or a fine
precipitate to invoke the rule on security of not exceeding 1,000 pesos, or both:
tenure. - for refusal without legal motive to
be sworn in or discharge the duties of
said office
Acceptance of Appointment
1. not necessary to completion or validity Heal the world point: must accept
of appointment obligation because it is a social duty.
- because appointment is the sole act of MECHEM: Regardless of the question
those vested with the power to make it of whether a man can be compelled
to accept a public office, or can be

Geof*Golda*Reeza*Sandi
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punished for not accepting it, is clear


that every person who enters into Revocation
civil society and avails himself of the
benefits and protection of the 1. General Rule: Once appointment to an
government, must owe to society or office is made and complete, it is not
to the public, at least a social duty to subject reconsideration or revocation
bear his share of the public burdens, - appointee becomes entitle to the office
by accepting and performing, under (has security of tenure)
reasonable circumstances, the duties
of those public offices to which he Exception: when the officer is removable at
may be lawfully chosen. will of the appointing power

Notes: This is an improperly placed exception


Is a written appointment because if the officer is removable at will of the
necessary? appointing power, what happens is not a
revocation but a termination of term
YES.
- Valencia v. Peralta: It would be unfortunate 2. Where appointee has assumed position
if the title to the office of one upon whose - revocation can no longer be had; remedy
official acts public interests and private would be a removal for cause with notice
rights hinged, did or could be made to and hearing
depend upon the verbal declarations and - once the appointee assumes a position in
statements of the person having the power the civil service, he acquires a legal, not
to make the appointment, to be proved by merely an equitable right
parol and liable to be forgotten, o certain irregularities in said
misunderstood or misreported, subject to appointment may even be deemed
all the contingencies and infirmitites which cured by the subsequent
are incident to verbal evidence by parol, so probational and absolute
pregnant of mischief and misfortune as to appointment of the appointee
have led to the enactment of the statute of - the presence of a more qualified person
frauds. cannot be a ground for the appointee’s
removal provided that the latter possesses
the minimum qualifications required by law

NO.
- The right of the appointee to be inducted
into office depends upon the fact of B. Appointments By The President
appointment and not upon his ability to
establish that fact by the production of a Four Groups of Officials whom President
written appointment where the law does is Authorized to Appoint (CONST. Art VII,
not prescribe the manner in which the sec. 16)
appointing power shall make the
appointment, nor direct that any written 1. must have the consent of the
evidence of his action shall be furnished to Commission on Appointments (exclusive
the person appointed. (Mechem) list)
- Ykalina v. Oricio: President is authorized to - Congress cannot, by law, require
make an appointment, and nothing is said confirmation of appointments of other
as to the manner in which he shall make it, officers.
it may be contained in written o heads of executive departments
memorandum or merely oral. o ambassadors
Venecia v. Peralta o other public ministers and consuls
Petitioner was given a temporary o officers of the armed forces from the
appointment. Even if he took an oath as an rank of colonel or naval captain
ad interim officer, he cannot claim title to o regular members of the JBC
the position in the absence of proof that he o Chairman and Commissioners of the
was actually extended that appointment. CSC
o Chairman and Commissioners of the
The better rule requires some kind of o COMELEC
written memorial that could render title to
public office indubitable.

Geof*Golda*Reeza*Sandi
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o Chairman and Commissioners of the  voluntary: that which takes place


COA Members of the regional before the adjournment of
consultative commission Congress, like a Christmas recess
 compulsory: when Congress
2. all other officers whose appointments adjourns
are not otherwise provided by law o recess appointment power keeps in
o e.g. offices created by Congress- operation the business of government
where Congress omits to provide for when Congress is not in session
appointment o this type of appointment shall be
o or Congress has provided an effective upon rejection by the COA, or
unconstitutional way for such if not acted upon, at the adjournment
appointments of the next session, regular or special,
of Congress
3. those whom the President may be o President exercises a special
authorized by law to appoint prerogative and is bound to be prudent
o e.g. heads of GOCCs, to insure approval of his selection
undersecretaries, bureau heads/etc. either by previous consultation with the
o heads of the SEC and the Insurance members of the COA or by thereafter
Commission don’t need confirmation explaining to them the reason for such
because they are now considered selection.
civil service officers whose o WHY? Because an ad interim
appointments are to be made appointment contradicts the
according to merit and fitness theory of checks and balances
o Chairman and Members of the in that it permits the executive
Commission on Human Rights alone to make an appointment
permanent and effective in
4. other officers lower in rank whose character without previous
appointments the Congress by law scrutiny and concurrence of the
vests in the President alone (or in the legislative power, acting thru
courts, in the heads of departments, the COA
agencies, commissions or boards)
- lower in rank: officers subordinate to those NOTE: An ad interim appointment is
enumerated officers in whom respectively nevertheless permanent in nature
the power of appointment may be vested: and not a mere temporary or acting
o heads of executive departments, appointment, notwithstanding that it
agencies, commissions, and boards is subject to confirmation by the COA.
o does not include heads of bureaus
and offices not mentioned in the
Consti as among those to be Notes: MALI si de Leon when he
appointed by the President who are said: However, it may be recalled or
subordinates of Cabinet members revoked by the President before
 their appointments are confirmation.
vested in the President
Kinds of Presidential Appointments Because it is permanent, it takes
effect immediately. Even before
1. Regular confirmation, the appointment is
2. Ad Interim deemed complete. Remedy would
3. Permanent therefore be removal.
4. Temporary or acting

1. Regular
o those made while Congress is in Rosales vs. Yenko
session The original ad interim appointment was
o mere nominations subject to never released by the Office of the
confirmation President. The ad interim appointment
being incomplete, there was in fact and in
2. Ad Interim law no ad interim appointment that could
o those made while Congress is not in be validly transmitted to and acted upon
session or during its recess, whether by the Commission on Appointments.
such recess is:

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- Jurisprudence: There being no appointment


issued, designation does not entitle the
3. Permanent officer designated to receive the salary of
o those which last until lawfully the position. (? Can law provide otherwise?)
terminated

4. Temporary or Acting Steps in the Appointing Process


o those which last until a permanent (for positions subject to confirmation by
appointment is made Commission on Appointments)
o An acting appointment, being
essentially temporary or provisional
in character, cannot be validly 1) nomination
confirmed by the COA because the 2) confirmation
confirmation presupposes a valid 3) issuance of commission
nomination or ad interim
appointment
o Officer in an acting capacity has no 1. Nomination
personality to bring a quo warranto - exclusive prerogative of the President
action against the permanent which no limitation may be imposed by
appointee to the position since the Congress, except those resulting from the
former is not entitled to the office. need of securing the concurrence of the
o Has no fixed tenure of office and can COA and from the exercise of the limited
be terminated at the pleasure of the legislative power to prescribe the
appointing power qualifications to a given appointive office

Notes: Temporary appointees still


enjoy security of tenure, albeit a Rafael v. EACIB
limited one.
Where no new appointments are
necessary, and officials occupy another
Points to Remember: position in an ex-officio capacity, the
President is not deprived of his
1. appointments which are required to be constitutional power to make appointments
submitted tothe Commission on even if Congress prescribes which officials
Appointments are either regular or ad should occupy said ex-officio positions.
interim; both are permanent in nature
Officials who sit ex officio merely perform
2. Appointments that are for the President duties in the Board in addition to those
solely to make without the participation of they already perform under their original
the COA cannot be ad interim appointments.
appointments.
- The President’s voluntary act of They can be considered as merely on
submitting such appointments to the COA detail, subject to recall by their respective
and the latter’s act of confirming or chiefs.
rejecting the same would be without or in
excess of jurisdiction. 2. Confirmation
- power belongs to Congress
- A confirmation must be distinguished from
Designation the appointment itself, for in confirming the
- mere imposition of new or additional duties appointment, the COA does not in any
upon an officer to be performed by him in a sense choose the appointee.
special manner while he performs the - The act is not an exercise of an executive
function of his permanent office function and since it is not legislative in
- presupposes that the officer is already in character, it need not be performed at a
service by virtue of an earlier appointment regular session of Congress. (second part
- revocable and temporary in character from AmJur—not too sure about that since
for it does not confer upon the designee previous statement says that power
security of tenure in all the position or belongs to Congress)
office which he occupies in an acting
capacity only

Geof*Golda*Reeza*Sandi
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Career service includes: (wasn’t


really included in class discussion but
3. Issuance of a commission has been asked “in the bar”)
- the written evidence of the appointment, i. open career positions for appointments
but not the appointment itself - qualification in an appropriate examination
- defined as the written authority from a required
competent source given to the officer as ii. closed career positions which are scientific or
his warrant for the exercise of powers and highly technical in nature
duties of the office to which he is - faculty and academic staff of state colleges
commissioned and universities
- scientific and technical positions in
Commissions (appointive vs. elective officials) scientific and research institutions which
1. elected officers shall establish and maintain their own
- issuance of a commission is merely a merit system
ministerial act because his right to the
office is established by the result of the iii. Positions in the Career Executive Service
election and does not depend upon his - Undersecretary
getting a commission - Assistant Secretary
- Bureau Director
2. appointed officers - Assistant Bureau Director
- usually requires a commission - Chief of Department Service
- Other officers of equivalent rank as may be
identified by the Career Executive Service
C. Appointments in the Civil Service Board, all of whom are appointed by the
President
Scope of the Civil Service -
- All branches, subdivisions,
instrumentalities, and agencies of the iv. Career officers appointed by the President
Government including GOCCs with original - Foreign Service Officers in the Department
charter of Foreign Affairs

* Consti intends to extend the requirements v. Commissioned officers and enlisted men of
and benefits of the Civil Service System over the Armed Forces which shall maintain a
the administrative personnel of the entire separate merit system
government—national and local—including the
military establishment (de Leon). vi. Personnel of GO/CC
- whether performing governmental or
Purpose of the Civil Service system proprietary functions
- to enable the national and local government - do not fall under the non-career services
and all its instrumentalities and agencies to
render more efficient services to the public by vii. Permanent laborers
enabling them to obtain efficient public - whether skilled, semi-skilled, or unskilled
servants.

Classification of Positions in the Civil 2. non-career service


Service a. entrance on bases other than
usual test of merit and fitness
1. Career Service
2. Non-career service b. tenure limited to:
1. a period specified by law or
1. career service 2. a period co-terminous with
a. entrance based on merit and appointing authority or
fitness to be determined as far 3. subject to pleasure of
as practicable by competitive appointing authority or
examinations or based on 4. a period limited to the duration
highly technical qualifications of a particular project for which
b. security of tenure purpose employment was
c. opportunity for advancement made
to higher career positions
Non-career service includes:

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i. elective officials and their personal or 3. positions in the Career Executive


confidential staffs Service

ii. department heads and other officials of Points to Remember:


cabinet who hold positions at the pleasure
of the President and their personal or 1. Entrance to a higher level does not
confidential staffs require previous qualifications in the
iii. chairmen and members of commissions and lower level.
boards with fixed terms of office and their 2. Within the same level, no civil service
personal or confidential staff examination is required for promotion
v. contractual personnel, or to a higher position in one or more
related occupational groups.
those whose employment in the government is o but must have passed the
in accordance with a special contract examination for the level
- to undertake a specific work or job Constitutional Classification of
- requiring special or technical skills not Positions in the Career Service
available in the employing agency,
- to be accomplished within a specific period, 1. competitive: according to merit and
which in no case shall exceed one year and fitness to be determined as far as
- performs or accomplishes with a minimum practicable by competitive
direction or supervision from the hiring examinations
agency
On competitive examinations:
v. emergency and seasonal employee - substitutes for the uncontrolled will of the
appointing power
vi. casual employees - insures that appointments to office is made
- employment is not permanent from among those who, by examination,
- occasional, unpredictable, sporadic, and have shown themselves to be the best
brief in nature qualified

Classes of Positions in the Career A competitive examination:


Service a. must be given under an
objective standard of grading
1. clerical, trades, crafts, and custodial b. must conform to measures or
service positions standards which are sufficiently
2. professional, technical and scientific objective to be capable of
positions being challenged and reviewed,
3. positions in the Career Executive Service when necessary, by other
examiners of equal ability and
1. clerical, trades, crafts, and custodial experience
service positions c. must be competitive in
- non-professional or subprofessional work in substance, not merely in form
a non-supervisory or supervisory capacity d. even oral examinations may be
requiring less than 4 years of collegiate considered objective if the
studies questions are such as to best
- competitive exams required determined the practical and
- open to those inside and outside the technical qualifications of the
service who meet the minimum applicants to perform the
qualification requirements duties of the position to be
filled
2. professional, technical and scientific
positions
- non-supervisory or supervisory capacity 2. non-competitive
requiring at least 4 years of college work
up to Division Chief Level a. policy-determining
- competitive exams required o occupant is vested with the power
- open to those inside and outside the of formulating policies for the
service who meet the minimum government or any of its agencies,
qualification requirements

Geof*Golda*Reeza*Sandi
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subdivisions, instrumentalities (e.g.


Cabinet member) An examination of the provisions of BP 337
reveals no intention by the legislature to
remove the confidential nature of the
b. primarily confidential position of city legal officer. What it does, is
o denotes not only confidence in the to merely specify the various qualifications,
aptitude of the appointee for the powers and duties of a city legal officer
duties of the office but primarily which were not enumerated under R.A.
close intimacy which insures 5185.
freedom of [discussion and
delegation and reporting] without Tria v. Chairman
embarrassment or freedom from
misgivings of betrayals of personal Effects of characterizing a position as
trust or confidential matters of "primarily confidential:"
state (Delos Santos v. Mallare) o renders inapplicable the ordinary
o e.g. private secretary or a requirement of filling up a position in
confidential agent the Civil Service on the basis of merit
o Note: It is the nature of the position and fitness as determined by
which finally determines whether a competitive examinations
position is primarily confidential. o termination can be justified on the
o When a termination of official ground of loss of confidence because
relation occurs because of loss of in that case their cessation from
confidence, what occurs is an office involves no removal but the
expiration of the term of office. expiration of their term of office
A position in the Civil Service may be
c. highly technical in nature considered primarily confidential:
o when the President of the Philippines,
o occupant is required to possess skills upon recommendation of the CSC,
or training in a superior degree has declared that position to be
o nature of functions determine primarily confidential; or
characteristic of position o when the position, given the
character of the duties and functions
attached to it, is primarily
On classifications: confidential in nature.
1. Executive pronouncements can be
no more than initial determination Qualification standards in the
that are not conclusive in case of Civil Service
conflict. - expresses the minimum requirements for a
class of positions in terms of:
2. Whether or not the classification of a o education
position is really in accordance with the o training
Constitution is ultimately a judicial o experience
question. o civil service eligibility
o physical fitness
Griño v. CSC o other qualities required for
The fact that the position of provincial successful performance
attorney has already been classified as one o determined by the appointing
under the career service and certified as authority on the basis of the
permanent by the CSC cannot conceal or qualification standards for the
alter its highly confidential nature. particular position
 with the assistance and
This being the case, and following the approval of the CSC and in
principle that the tenure of an official consultation with the Wage
holding a primarily confidential position and Position Classification
ends upon loss of confidence, respondent Office
was not dismissed or removed from office o offsetting of deficiencies may be
when his services were terminated. His allowed, interchanging standards
term merely expired. allowed and this rests upon the sound
discretion of the appointing authority
Hilario v. CSC who is in the best position to determine

Geof*Golda*Reeza*Sandi
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the needs of his office and how to 1. What characterizes an appointment as


satisfy those needs permanent or temporary is not the nature
of the position but the nature of the
Use of qualification standards appointment extended, which, in turn,
a. as basis for civil service examinations depends on the eligibility of the appointee
of his lack of it --
b. as guides in the appointment and other
personnel actions in the adjudication of 2. A person with a civil service eligibility
protested appointments shall be qualified for a position requiring a
lower eligibility if he possesses the other
c. in determining training needs and requirements for appointments to such
position.
d. as aid in the inspection and audit of the
agencies’ personnel work programs 3. If the certificate issued by the CSC is null
and void, it may revoke it on said ground
Kinds of Appointment in the Career without notice and hearing to the
Service examinee concerned, applying the rule res
ipsa loquitor,
1. Permanent
o issued to a person who meets all
requirements Province of Camarines Sur vs. CA
o lasts until lawfully terminated The fact that private respondent obtained
o entitled to security of tenure civil service eligibility later on is of no
o a permanent appointment is N0T a moment. His having passed the supervising
continuation of a temporary security guard examination did not ipso
appointment facto convert his temporary appointment
into a permanent one.

What is required is a new appointment


2.Temporary/ Acting since a permanent appointment is not a
o meets all requirements except civil continuation of the temporary
service eligibility appointment.
o not to exceed 12 months
o appointee may be replace sooner if a
qualified civil service eligible Gloria v. De Guzman
becomes available Mere designation does not confer upon the
designee security of tenure to a position
 but remember, if there’s a civil
held in an acting capacity only.
service eligible available, non-
eligible cannot be appointed
Expiration of term is not illegal dismissal.
even in a temporary capacity
Not being a permanent appointment, the
designation of a position cannot be the
o can be terminated at the pleasure of
subject of a case for reinstatement.
the appointing power
Reinstatement is technically issuance of a
o can be transferred or reassigned
new appointment which is essentially
without violating the constitutionally
discretionary.
guaranteed right to security of tenure
| Note Consti prov: temporary
The CSC and Its Role on Appointments
employees in the Government
in the Civil Service
shall be given such protection
as may be provided by law.|
1. Approval required in all appointments,
whether original or promotional, to
o Note however that appointing
positions in the civil service EXCEPT:
authority does not have blanket
authority to remove such employee a. presidential appointments
at any time without cause where the
appointment is for a definite period. b. members of the:
o Armed Forces of the Philippines
Points to Remember
o Police forces
o Firemen

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o Jail guards a. non-compliance with the procedures/criteria


provided in the agency’s Merit Promotion Plan
2. Appointee need not be previously heard if
the disapproval is based on its nonconformity b. failure to pass through the agency’s
to applicable provisions of the law and on the Selection/Promotion Board
qualifications of the appointee.
- CSC may recall appointment on its own c. Violation of existing collective agreement
initiative and review the same de novo between management and employees relative
- Appointee has right to file a motion for to promotion
reconsideration and there challenge its
approval d. violation of other existing civil service law,
rules, and regulations
3. An appointment to the civil service is
required to be submitted to the Appointment through certification
Commission for approval in order to - issued to a person who has been selected
determine whether the proposed appointee from a list of qualified persons certified by
is qualified to hold the position and the Commission from an appropriate
whether or not the rules pertinent to the register of eligibles (i.e. list of names of
process of appointment are followed. those who passed competitive
- IRR of Admin Code: an appointment not examinations) and who meets all other
submitted to the Commission, within 30 requirements of the position
days from the date of the issuance which
shall be the date appearing on the face of - The persons appointed through
the instrument, shall be ineffective. certification must:
o No title can then yet be deemed to
be permanently vested in favor of o Serve a probationary period of 6
the appointee and the appointment months following their original
can still be recalled or withdrawn appointments
by the appointing authority o Must undergo a thorough character
investigation in order to acquire
4. Power is merely limited to the question of permanent civil service status
whether or not the appointee is qualified.
o not authorized to curtail the D. Vacancy
discretion of the appointing official
o has no power of appointment when an office is empty and without a
except over its own personnel nor legally qualified incumbent appointed or
does it have the authority to review elected to it with a lawful right to exercise
the appointments made by other its powers and duties
offices
o may however order the
reinstatement of an illegally
demoted or dismissed employee An office may be vacant when it is
occupied by one who:
5. Commission must keep a record of all 1. is not a de jure officer
appointment of all officers and employees 2. is a mere usurper
in the civil service. 3. is holding over

6. Section 10, Rule V of Omnibus Implementing Where a regular employee is illegally


Rules of RAC of 87: an appointment issued in dismissed, transferred or demoted, his
accordance with pertinent laws and rules shall position does not become vacant.
take effect immediately upon its issuance by
the appointing authority, and if the appointee Classification of Vacancy
has assumed the duties of the position, he shall
be entitled to receive his salary at once without 1. Original
awaiting the approval of his appointment by o when an office is created and no one
the Commission. has been appointed to fill it

6. OIR of RAC 87 enumerates grounds for recall 2. Constructive


even if appointment initially approved: o when the incumbent has no legal
right or claim to continue in office

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and can be legally replaced by o refusal of the office


another o does not become an officer
de jure; regarded as officer
3. Accidental de facto
o when the incumbent dies, resigns or
is removed Oath
- an outward pledge whereby one formally
4. Absolute calls upon God to witness the truth of what
o when the term of an incumbent he says.
expires and no successor is legally - Not indispensable; mere incident to the
qualified to the office office and constitutes no part of the office
itself
Causes of vacancy - If required by statute, usually merely
o death directory
o permanent disability - Oath-taking is mandatory for:
o removal from office o President
o resignation of the o Vice-President
incumbent o Acting President
o abandonment o Public officers and employees
o expiration of term o Consti: to uphold and
o conviction of crime defend the Constitution
o impeachment conviction o Admin Code: inc. every
o acceptance of incompatible member of the armed
office forces—to uphold and
o creation of a new office defend the Constitution
o reaching the age limit  Bear true faith
o recall and allegiance
o failure of person chosen to to it
accept of qualify for the  Obey the laws,
office legal orders
and decrees of
Filling of anticipated vacancies: duly
1. Legal if the appointment is to take constituted
effect during the term of the authorities
appointing authority  Faithfully
o appointing officer must be discharge to
empowered to do so the best of his
o no law must forbid it ability his
duties
 Voluntarily
2. Not legal if appointment is to take effect
assumes the
after the expiration of term of appointing
obligation
power
imposed by his
- Note however that jurisprudence says:
oath of office
successor MAY recall the appointment
without mental
E. Qualifying to Office
reservation or
purpose of
Qualification (as an act) to an
evasion
office
o elective and appointive local officials
o an act by which an appointed or
and employees
elective official signifies his
acceptance of the office and his
- officers authorized to administer oaths
undertaking to execute the trust
o notaries public
confided in him.
o Generally consists of: o members of the judiciary
o clerks of court
 Taking, subscribing, filing of an
official oath o secretary of either House of the
Congress of the Philippines
 If required by law, posting of
o Secretaries of departments
bond
o Bureau directors
 Effect of failure to qualify
o Registrars of deeds

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o Provincial governors and lieutenant - Seeks to protect the public by insuring the
governors orderly functioning of the government
o City mayors despite technical defects in title to office
o Any other officer in the service of the -
government whose appointment is De facto officer: one who is in possession
vested in the President of an office in the open exercise of its
o Officer whose duties, as defined by law functions under color of an election or an
or regulation, require presentation to appointment even though such election or
him of any statement under oath appointment may be irregular.

Bonds Elements of De Facto Officership


- required for: 1. There must be a de jure office.
o accountable public officers- those
to whom are entrusted the 2. There must be a color of right or
collection and custody of public general acquiescence by the public.
money - may consist in an election or appointment,
o public ministerial officers whose or in holding over the expiration of one’s
actions may affect the rights and term, or acquiescence by the public in the
interests of individuals acts of such officer for such length of time
as to raise the presumption of colorable
- in the nature of an indemnity bond rather right by election or appointment.
than a penal or forfeiture bond.
o A contract between the officer and
the government 3. There must be actual physical
o Binds the sureties to make good possession of the office in good faith.
the officer’s default - must also be accompanied by the faithful
o Not for the benefit of the office exercise of the functions of the officer and
discharge of its duties, since possession
holder, but for the protection of
alone makes the possessor a mere intruder
public interest
or usurper whose acts in the office are
wholly void.
- failure to provide bond, even when time is
prescribed, merely constitutes a ground for
De jure officer: one who has the lawful
forfeiture, and not forfeiture of the office
right to the office in all respects, but who
ipso facto
has either been ousted from it, or who has
o except of course if the giving of
never actually taken possession of it.
the bond is prescribed as a
condition precedent to the right to Requirements to become officer de
the office jure
 if so, office regarded as 1. must possess the legal qualifications for
vacated when the required the office
bond is not given within the
time limited by law 2. must be lawfully chosen to such office

3. must have qualified himself to perform


the duties of such office according to the
F. De Facto Officers mode prescribed by the Constitution of law
De facto doctrine: Usurper or intruder: one who takes
- a person who, by the proper authority, is possession of the office and undertakes to
admitted and sworn into office is deemed act officially without any color of right or
to be rightfully in such office until, by authority, either actual or apparent.
judicial declaration in a proper proceeding, - not an officer at all for any purpose
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
De Jure officer De Facto officer
every official whose claim to office could be
open to question right reputation

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lawful right or title possession of office; 1. Acts to de facto officers are valid, just
performance of duties like those of a de jure one, until the
title to office is adjudged as
insufficient.
cannot be removed in may be ousted in a 2. Third persons have a right to assume
a direct proceeding direct proceeding that the officer is legally qualified.
3. Also, the de facto officer is estopped
from taking advantage of his own
want of title.

Proceedings to Try Right or Title of De


De facto officer Usurper Facto Officer
 The time to office and the validity
color of right or title no lawful title nor color
of acts of a de facto officer
of right or title
cannot be attacked collaterally.
public does not know public knows he is  These must be questioned in a
his lack of title or merely a usurper direct proceeding where such are
authority the main issues.
may be removed only can be ousted at any
in a direct proceeding time in any proceeding Quo Warranto
1. a special remedy for questioning title
to office
acts are valid acts are absolutely null
and void
2. It may be filed only by:
o the person claiming-title to the office
or
Barte v. Dichoso o the RP represented by the SolGen or
B was issued an ad interim appointment as public prosecutor.
Acting Vice Mayor. His appointment was  This is because the law presumes
later bypassed by the National Assembly an officer to have legally
and B was subsequently informed that a occupied a post and that official
new designation was under consideration. duty has been regularly
performed. This is in line with the
Well-settled is the rule that a public officer constitutional rights of an officer
having the capacity to act on behalf of the to due process and security of
Government in whom the exercise of tenure.
sovereignty is vested has to be chosen in
the manner and form provided by law. 3. Petitioner in a quo warranto proceeding
Otherwise, he would be a plain usurper of must set forth the name of the defendant
official functions. occupant and the name of the person
claiming title to the office. Others who also
Legal Effects of Acts of De Facto claim title to office may be made parties to
Officer determine their respective rights in the
same action.
As regards the officers themselves
1. Acts of a de facto officer as far as he Right to Compensation of a De Facto
himself is concerned are void. Officer
2. The party defending his/her right to
office must show that s/he is a de General Rule:
jure officer, not just de facto. A de facto officer, unlike a de
3. This is to discourage seizure of public jure officer, cannot maintain an
offices. action to recover salaries, fees,
4. The occupant must know whether or emoluments on the theory that
not he is legally entitled to office. acts of a de facto officer as far
as he himself is concerned are
void.

Exceptions:
As regards the public and third In the absence of bad faith on
persons the part of the officer, s/he may

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recover compensation due to - Thus, occupant is a usurper whose acts are


for services rendered as de invalid.
facto officer.
View 2: Occupant recognized as de facto
When the government in good until judicial determination of the
faith has relied on the officer's unconstitutionality of the act.
color of title and paid the de - This is for reasons of public policy and for
facto officer salary, the de jure the protection of private rights.
officer cannot claim the same - Otherwise, there will be uncertainty, chaos,
compensation. inconvenience and hardship to litigants.

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. CHAPTER IV: POWERS, DUTIES AND
NORMS OF CONDUCT OF PUBLIC
Liabilities of a De Facto Officer OFFICERS

A de facto officer has the same degree of


liability a de jure officer. What is the source of power of public
1. may be liable for all penalties for offices?
unlawfully holding an office.
2. S/he cannot excuse responsibility for 1. The people themselves
a crime committed in official capacity
by asserting that s/he is merely a de • Either directly or thru Congress, the
facto officer. people create public offices

Double Occupancy of a Single Office


• Their will finds expression in the
Constitution and the laws
Two persons (whether both de facto, or one
de jure and the other de facto) cannot
occupy the same office at the same time Notes:
when the law provides for only one
incumbent for that office. 1. The public is charged with notice of the
parameters of authority of public
If the de jure officer is also de facto, legal officers
title and possession to the office is united.
2. No one is excused from complying with
There can be no other de facto officer the law because of ignorance
to that office.

If 2 de facto officers, each under a claim of


right, occupy a post, the owner who Scope of power of a public officer:
appears to have the better legal title will
be recognized. 1. expressly conferred by the law under
which he was appointed

Offices Created under an 2. expressly annexed to the office by the


Unconstitutional Statute law that created it or some other law
referring to it
View 1: Occupant is not even a de facto
officer. 3. attached to the office as incident to it
- This is because an unconstitutional law is
not law; it confers no rights; imposes no
duties, affords no protection; it creates no LO CHAM VS OCAMPO
office; it is inoperative.
A lawyer in the DOJ was temporarily
detailed to assist the City Fiscal of Manila with

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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 1. Nature
any lawyer to temporarily assist a fiscal and
exercise the fiscal’s functions. • Ministerial- involves merely
execution of a specific duty
Why so? Because the duties of a public arising from fixed facts; cannot
office include those which are essential to the use own judgment
accomplishment of the main purpose for which
the office was created or which, although • Discretionary- require the
incidental, are germane to the principal exercise of reason and
purpose. discretion as to how an act
should be done

RCPI VS SANTIAGO

The Public Service Commission 2. Obligation to perform


imposed a fine on RCPI for failure to render
service expected of a radio operator. RCPI • Mandatory- if for the benefit of the
alleges PSC lacks power to impose the fine. public or individuals; intended for
the protection of citizens
The power is neither expressly nor
impliedly granted to the PSC in the Public
Service Act. Thus it has no power to impose the • Permissive- designed merely to
fine. secure order, uniformity, system
and dispatch in public business;
A public officer must locate in the does not affect 3rd persons; not
statute relied upon a grant of power before he beneficial to the public
can exercise it. The grant need not be express.
3. Relationship officer to his subordinates

Territorial limitation of authority: • Power of control- power to manage,


direct, govern, or set aside, alter
1. Limited to territory where the law has modify what a subordinate had
effect done and to substitute his own
judgment; this power to redo or
2. Action in a place not covered by law is undo is discretionary
invalid
• Power of supervision- mere
oversight; merely sees to it that
Duration of authority: the rules are followed; cannot
prescribe the manner for doing an
1. Public officer cannot exercise authority act
before his term begins and after it has Discretion- “the act or the liberty to decide
terminated according to the principles of justice and one’s
ideas of what is right and proper under the
2. If officer was appointed to perform a circumstances without willfulness or favor.”
single act, he becomes functus officio
once he has acted on that particular
subject 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 If mandatory- uses the word “shall”
will be deemed to have been granted.

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If discretionary- uses the word “may”


1. If the duty sought is purely ministerial,
If duty is partly ministerial and partly the courts will require the public officer
discretionary, mandamus will NOT lie. concerned to perform a specific action
(ex. “Sign the clearance of Lamb.”)

2. If the duty is purely discretionary, the


LAMB VS PHIPPS courts by mandamus will require action
only (ex. “Decide now what to do with
After many years of faithful service to Lamb’s clearance.”)
the government, Lamb retired and accounted
for all govt. property and funds in his
possession. Auditor Phipps refused to sign his Can discretionary powers be delegated?
clearance because of an alleged danger of a
probable suit by a creditor of the govt. No. Because the presumption is that
the officer who was granted the power was
Does Phipps have legal duty to sign the chosen for his competence to exercise that
clearance? Yes. Lamb’s accounts are balanced. judgment.

However, Lamb failed to exhaust the Exception: if the power to substitute


administrative remedy of appeal to the another in his place has been granted to him.
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. TORRES VS RIBO

The asst, district engineer and chief


APRUEBA VS GANZON clerk represented the district engineer and
division superintendent of schools in the
Cafeteria owners and operators filed provincial Board of Canvassers.
suit against the mayor for his refusal to allow
the opening of the cafeteria. They claim it is This cannot be done. The members of
the mayor’s ministerial duty to allow them to the Board are designated by law. No one
operate a cafeteria since they have no outside this enumerated list can serve in the
delinquency in rentals and have complied with Board because its powers are not purely
health regulations. ministerial.

Mayor has discretion to renew permit


to operate or not. Thus he cannot be subject to Ministerial act Discretionary
mandamus. The discretion to renew or not is
part of police power. When When there is When power
delegation is no express to delegate is
MIGUEL VS ZULUETA allowed prohibition granted to the
officer
Provincial engineer put “President
Garcia Hall” on the façade of the provincial When is it not When the law When no
capitol instead of just in a renovated session allowed requires the power to
hall therein. May he be compelled by act to be delegate is
mandamus to remove the sign? done by the granted
officer himself
Yes. Because the law expressly
prohibits the naming of public buildings after When must official acts be performed?
living persons. The object of mandamus is to
procure observance of the law. 1. Where the law states no time- must be
performed within a reasonable time

Mandamus- the remedy to compel action of a 2. Where the law forbids the performance
public official who is in unreasonable delay in of the act at any other time than that
exercising his clear duty imposed by law. provided- the time is mandatory

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3. Where the law provides for the time • mandamus- if the person
but does not prohibit doing the act at will sustain personal injury
any other time- time is directory only by the officers’ refusal to
act; or

Ratification of unauthorized acts: • injunction- if the person will


sustain personal injury for
Rules- which adequate
compensation cannot be
1. The state is not estopped by the had in law
unauthorized or illegal acts of its
agents. However these acts may be
ratified Standard of personal conduct for public
officials and employees (from the Code of
• Ratification does not apply if Conduct and Ethical Standards)
the act was absolutely VOID at
the time it was done, i.e. the 1. Commitment to public interest
principal (state) itself could not 2. professionalism
have lawfully done the act, or it 3. Justness and sincerity
could not have been lawfully 4. Political neutrality
done by anyone 5. Responsiveness to the public
6. Nationalism and patriotism
• If the act was merely voidable, 7. Commitment to democracy
it can be rendered valid by 8. Simple living
ratification

2. Where superior officers have authority Duties of the Civil Service Commission
to ratify acts of their inferiors, they are with respect to the above standards:
restricted to ratification of acts and
contracts which such superior officers 1. Promote their observance by
are themselves empowered to make disseminating information programs
and workshops authorizing merit
increases
AMERICAN TOBACCO CASE
2. Continue research and experimentation
An officer can delegate the power to on measures that provide positive
hear, but not to decide cases as the latter motivation to public officers and
involves the use of personal judgment and employees in raising general level of
appointment to the position has been based on observance of these standards
his personal qualifications.

To hold otherwise would be to violate System of incentives and rewards:


an individual’s right to procedural due process.
1. Criteria-

Judicial review of official acts: • Years of service


• Quality and consistency of
1. where act involves exercise of performance
discretionary power- judiciary will not • Obscurity of position
interfere unless there is: • Level of salary
• Unique and exemplary quality
• arbitrary decision
of achievement
• abuse of discretion
• Risk of temptation inherent in
• fraud or corruption that vitiates work; and
the action taken • Any similar circumstance or
consideration in favor of the
2. where act involves performance of
awardee
purely ministerial duty- can be either
compelled or restrained by:

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2. Forms of incentives and rewards- 2. Where personal interest is involved- he


cannot have an adverse interest in any
• Bonuses contract which he executes in behalf of
• Citations the public
• Directorship in GOCC
Duty to make financial disclosure:
• Local and foreign scholarship
grants
Art. XI Sec. 17 Constitution- “a public officer or
• Paid vacations
employee shall, upon assumption of office and
• Automatic promotion to next higher as often as may be required by law, submit a
position suitable to his declaration under oath of his assets, liabilities,
qualifications. If none is available, and net worth…”
salary increase equivalent to the
next higher position.
MORFE VS MUTUC

Duties of public officers as trustees for The constitutionality of the legal


the public: requirement on government officials and
employees to submit a sworn declaration of
In general, his duty does NOT include financial conditions, assets, and liabilities is
risking or giving up his life or incurring questioned as being allegedly in violation of a
permanent disability. However, when the need person’s right to due process, an oppressive
to do that becomes necessary, then the need exercise of police power, unlawful invasion of
for him to sacrifice is increased so as to right to privacy, unreasonable search and
preserve the peace and enforce the laws. seizure, violates prohibition against self-
incrimination, and insults personal integrity.

The law is presumed valid. But let’s


indulge petitioner’s specific allegations:

General duties: 1. The aim of the law is to curtail


corruption, thus it is for the public
1. Obey all law found in stature books good. This exercise of police power is
until its constitutionality is judicially valid
passed upon in a proper proceeding
2. The standard of due process is freedom
2. Accept and continue office when from arbitrariness. In this case, given
elected or appointed. Any attempt to the harsh realities of greed in public
resign does not relieve him of service, the law is reasonable
obligation to perform until a successor
is appointed 3. Right to privacy is subject to state
control in cases of public servants
3. Accept burden of office
4. Right against unreasonable search and
4. Be diligent, use reasonable skill and seizure is limited to safeguarding the
diligence, utilize public funds and sanctity of the home and the privacy of
property like a good father of the communication and correspondence
family
5. Guarantee against self-incrimination
5. Make the best available appointments, requires existence of actual cases
exercise ordinary care to see that criminal, civil or administrative before
subordinates perform their duties it can be invoked

Ethical duties: 6. AS to allegation that it insults integrity


of public officials, court cannot inquire
1. As to outside activities- refrain from into the wisdom of the legislation due
outside activities when they interfere to separation of powers
with his official duties. Congress has
power to ascertain what activities are Specific duties of public officials and
inconsistent with his official duties employees:

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• Legal constraints such as


1. Act promptly on letters and request- restraining orders
within 15 days from receipt
• Fault, failure or negligence of
• If the communication is within the party concerned
the jurisdiction of the office and
is routine- write a letter of • Force majeure
acknowledgment saying it will
be acted upon and specify the Who may sign the written action or
date when. If not routine, declaration of a public office?
inform them of actions to be
taken, or require documents if General rule: it must contain not more
necessary than 3 initials or signatures. In the absence of
the duly authorized signatory:
• If outside its jurisdiction- refer
the letter to the proper agency, 1. If there is only one official next-in-rank,
and acknowledge the letter by he is automatically the signatory
means of note or letter, attach
the letter of referral 2. If there are 2 or more next-in-rank, the
head of the department shall prescribe
2. Submit annual performance reports- through an office order the order of
within 45 working days from the end of priority
the year
3. If there is no official next-in-rank
3. Process documents and papers present and available, the head shall
expeditiously designate an officer-in-charge from
among those next lower in rank

4. Act immediately on the public’s Public disclosure of statements of assets


personal transactions and liabilities:

5. Make documents accessible to the Disclosure includes those of spouses


public and of unmarried children under 18 living in
the household.
Processing of papers and documents:
1. Statement of Assets and Liabilities and
Processing must be within reasonable Financial Disclosure- includes all public
time from preparation thereof. Determination employees and officials except if
of reasonable time: honorary, laborers, casual or temporary

1. Where the law prescribes a period,


then it shall be followed
• Contents-

2. Where no period is prescribed, the i. information on real


department head shall issue rules property and its fair
prescribing what is reasonable time, market value;
taking into account: ii. personal property and
its acquisition cost;
iii. all other assets such
• Nature, simplicity or complexity
as investments;
of the subject matter
iv. financial liabilities
current and long-term;
• Completeness or inadequacy of v. all business interest
requirements or data or and financial
information connections
• Lack of resources caused by
circumstances beyond the • When to file-
agency’s of officer’s control
i. within 30 days after
assumption of office;

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ii. on or before April 30


every year thereafter; 3. Accessibility of documents-
iii. within 30 days after
separation from service • Available for copying and
reproduction at all
• Where to file- reasonable hours
• Available for copying and
i. President, VP and reproduction within 10
constitutional officials- working days after filing
with the National Office • Any person who wants a
of the Ombudsman copy shall pay reasonable
ii. Senators and fee
congressmen- with the • Available to the public for
secretaries of the 10 years after filing. After
senate and the house that, may be destroyed
iii. Justices- with the clerk unless needed in an
of the SC investigation
iv. Judges- court 4. Prohibited acts- it shall be unlawful for
administrator any person to obtain or use any
v. All national executive statement filed for:
officials such as
members of cabinet • Any purpose contrary to morals or
and heads of GOCCs- public policy; or
with the Office of the • Any commercial purpose than by
President news and communications media
vi. Regional and local for dissemination to the general
officials both public
appointive and elective
and employees of 5. Review and compliance procedures-
GOCCs- with the the following have authority to
Deputy Ombudsman in determine the above statements have
their respective regions been properly accomplished:
vii. Officers of the Armed
Forces from rank of • Congress- the designated
colonel or naval committees, subject to approval by
captain- with the OP. If majority vote of either senate or
below said ranks, with house
the Deputy • Executive dept.- heads of
Ombudsman in their
departments, agencies, offices
respective regions
• Judicial dept.- chief justice
viii. All other public officials
and employees- with • Constitutional Commissions and
the CSC Offices- their respective chairman
and members
• Authority in favor of
Ombudsman to obtain from
all appropriate govt.
agencies documents that Transparency of transactions and access
show assets, liabilities and to information:
business interests in
previous years- all public It is the responsibility of heads of
officials and employees departments, offices and agencies to establish
must file this document measures that will ensure transparency in
within 30 days from public transactions in their respective offices.
assumption of office
Every office shall provide official
2. Identification and disclosure of information, except if:
relatives- up to 4th civil degree or
consanguinity or affinity

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1. it must be kept secret in the interest of


national defense or security or the • right incident to public office
conduct of foreign affairs - conferred by Consti and law
2. disclosure will put the life and safety of • right as a citizen
an individual in imminent danger - some must be curtailed due to the public
3. the information sought falls within character of employment:
established privilege, i.e. cabinet o not entitled to same protection from
sessions, SC deliberations, trade publications (privacy)
secrets, etc. o required to refrain form certain
4. information comprises drafts of political or business activity
decision, orders, rulings, memoranda, - however, government must show that
etc. restraints rationally relate to enhancement
5. information is personal, disclosure will of public service
constitute invasion of right of privacy
6. investigatory records where disclosure Right to Compensation
will-
• power of Congress to fix compensation
• interfere with enforcement - not inherently and exclusively legislative in
proceedings character
• deprive a person of right to fair - may be delegated to other bodies unless
trial Consti expressly or impliedly prohibits it
• disclose the identity of a - admin boards may fix compensation w/in
confidential source statutory limitations and such discretionary
• unjustifiably disclose actions is ordinarily not reviewable by the
investigative techniques courts
• prematurely disclose • it is not an element of public office
information such as: - merely an incident of public office
- attaches to the office, not the officer
i. currencies, securities, • objective: so that public officials will give
commodities, which will due attention to their duties & perform
likely lead to financial them better.
speculation
ii. a proposed official • Forms of Compensation
action not yet disclosed - compensation
to the public, where o pay for doing all that may be
disclosure may required, whether in the form of fixed
frustrate its salary, per diems, commissions
implementation - salary
o personal compensation to be paid for
Reforms on public administrative his services
systems: o generally, a fixed annual or periodical
payment depending on the time and
1. Conduct value development programs
not the amount of service
2. Conduct professional programs like
o vs. wages which are given to officers
technical trainings
of lower degree of employment and
3. Conduct studies and analyses or work
paid per day or week
systems
- per-diem
4. Develop and make available a service
o daily allowance given for each day an
guide for the transacting public
5. Consult the public for feedbacks and officer or employee is away from the
suggestions home base
6. Conduct research and experimentation o usually a reimbursement for extra
on innovative programs expenses
7. Designate a resident Ombudsman o the nomenclature given is not
8. Consult and dialogue with staff controlling; will not be considered per
diem if given in the nature of
remuneration or compensation for
CHAPTER V. RIGHTS AND PRIVILEGES full time work
o not deemed salary in relation to
In General Consti provision that no change in

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the compensation of officers shall


affect the salary of any officer during - from the intruder or usurper
his existing term o can recover from the
- honorarium intruder/usurper
o something given not as a matter of
obligation, but in appreciation for
services rendered
o voluntary donation in consideration Gen Rule (Monserrati case): A de facto
for services which admit of no officer that assumes office when there is a
compensation of money de jure officer assumes such office at his
- emoluments own risk.
o profit arising from the office
o does not refer to fixed salary alone Rodriguez vs. Tan
but includes such fees and
compensation as the incumbent is, One who has been proclaimed winner of an
by law, entitled to receive election and had assumed office but was
later ousted because of an election protest
• Basis of the Right to Compensation was a de facto officer hence entitled to the
- creation of law (not contractual in nature) compensation.
- for services rendered
o but not for those rendered under
There is no de jure officer until after
unconstitutional statute or provision
proclamation (decision on the protest).
thereof
Hence, de facto is entitled to the salary.
- legal title to office
o General Rule: one without legal title
to office either by appointment or
election is not entitled to recover Monroy vs. CA
salary
Where a mayor withdrew his certificate of
- amount of compensation: factors of
candidacy, he does not resume his post as
responsibilities and qualifications
mayor. Therefore he cannot be entitled to
o determining factor: nature of an
the compensation attached to said office.
official’s position
Mayor was ordered to reimburse the vice-
o it is the official’s Grade that
mayor.
determines his salary, not the other
way around.
• Salary not subject to Compensation
- Salary of a public officer/employee may
• Recovery of Compensation
not, by garnishment, attachment, or order
- from the government
of execution, be seized before being paid to
o generally, de jure cannot recover that
him and appropriated for payment of his
was has been paid to de facto unless debts.
the government continues to pay - Why?
even after notice of adjudication in o while the money is still with the
favor of the de jure
disbursing officer, it's still public
o in cases where there is no de jure,
funds
even a de facto may recover o public policy - will be fatal to public
compensation if:
service
in good faith
o tantamount to a suit against the
has possession of the office
government
has discharged the duties
- Garnishment: a species of attachment for
reaching credits belonging to the judgment
- from the de facto
debtor owing to him from a stranger to a
o after notice of adjudication in favor of
litigation.
de jure, the latter can recover from
the de facto
De la Victoria v Burgos
o if tenure is "wrongful", de jure can
recover The salary check of a government
o if he became de facto in GF and has official does not belong to him before
rendered the services, de jure cannot it is physically delivered to him. Until
recover that time, the checks belong to the

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government. Accordingly, before - The Constitution prohibits Congress from


there is actual delivery of the check, reducing the salary of certain constitutional
the payee has no power over it. Thus, officers during their term or tenure to
he cannot assign it without the secure their independence:
consent of the government. - President and Vice President (Art VI, Sec.6)
- Chief Justice, Associate Justices of the
Rationale: the functions and services Supreme Court, and judges of lower courts
of the state cannot be allowed to be (Art VIII, Sec. 10)
paralyzed by or disrupted by the - Chairmen and members of the
diversion of public funds from their Constitutional Commissions (Art. IX-A, Sec.
legitimate and specific objects as 3)
appropriated by law. - 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
De la Victoria v Burgos: even if salary is not take effect until after the expiration of
not in cash, the doctrine still applies. What the full term of the members of Congress
matters is the fact of delivery. In case of approving such increase.
ATM’s, the point when the bank credited
the money to the employee’s account is • Prohibition Against Receiving
determinative at which point public Additional, Double, or Indirect
money becomes private money. Compensation
• Agreements Affecting Compensation - Consti, Art. IX-B, Sec. 8: No elective or
- invalid as against public policy where it appointive public officer or employee shall
tends to pervert such compensation to a receive additional, double, or indirect
purpose other than for which it was compensation, unless specifically
intended and to interfere with the officer's authorized by law, nor accept without the
free and unbiased judgment in relation to consent of the Congress, any present,
the dirties of his office. emolument, office, or title of any kind from
- The following have reference to any foreign government.
unperformed services: Pensions or gratuities shall not be
o Agreement to accept, or acceptance considered as additional, double, or
of less or other than legal indirect compensation.
compensation-illegal, whether made
in good faith or not - The prohibition does not apply in the ff.
o Sale, assignment, or barter of salary- cases:
prohibited as against public policy. o Payment is specifically authorized by-
o Dividing compensation with others- Jaw in individual instances where it
invalid if it amounts to an appears just and necessary.
anticipatory assignment of the o Additional compensation is received
emoluments of office; public policy not from government or any of its
forbids assignments of salaries or entities.
fees before they are earned. Such o Double Appointments: Where there
bargains create no legal obligation. are two distinct offices, but officer
- Effects: can recover salary notwithstanding may draw the salary attached to the
acceptance of lesser compensation and 2nd position only when he is
that he is party to an illegal contract. specifically authorized by law.

• Free Voluntary Service to the


The moment the salary becomes private Government
property, the public official/employee is - Refers to services rendered by persons who
free to contract. are in government without pay or
compensation.

• Prohibition Against Diminution of - Requirements:


Salary o Issuance of an appropriate
- Congress has absolute power to fix or alter document;
the compensation of public officers, except o Fitness and suitability for the duties
as provided by the Constitution. and responsibilities of the particular
position; and

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o Compliance with the rule on o Mass actions done outside of gov’t


nepotism. office hours may be allowed and not
deemed prohibited so long as such
- Functions or Services that Volunteers can would not result in disruption of work.
Perform
o Advisory, consultancy/counseling, - The right to protection of temporary
recommendatory, professional employees
services, staff work i.e research, o given such protection as may be
and humanitarian established by law [Art. IX-B, sec. 2
(6)]1.
- Applicable laws and rules-RA6713 Code of o they do not enjoy security of tenure
Conduct and Ethical Standards for Public but the provision cited above aims
Officials and Employees and Implementing that they would be protected from
Rules indiscriminate dismissals and that
their separation or replacement is
- Exemptions of volunteers made only for justifiable reasons.
o filing of statements of assets,
liabilities, and net worth, and - Freedom of members of Congress from
financial disclosures arrest and from being questioned
o requirement on divestment o Consti, Art VI, Sec.11: A Senator or
o eligibility requirements Member of the House of
o security of tenure Representatives shall, in all offenses
punishable by not more than six
- Prohibitions years imprisonment, be privileged
o Exercising supervisory functions over from arrest while the Congress is in
personnel; session. No Member shall be
o Exercising functions or positions questioned nor be held liable in any
involving national security; other place for any speech or debate
o Access to confidential or classified in the Congress or in any committee
information unless authorized by the thereof.
proper authorities;
o Occupying regular plantilla positions; - The right not to be removed or suspended
o Having such services credited as except for cause provided by law
government service and availing o implicit is the existence of a charge,
themselves of retirement benefits; due hearing, and finding of guilt by
o Using facilities and resources of the the proper authority.
office for partisan political purposes;
o Receiving any pecuniary benefit (i.e., People v Jalosjos
honoraria, allowances, & other Jalosjos asked that he be fully
perquisites) in office. allowed to fully discharge duties as
congressman despite his conviction
Other Rights as on a non-bailable offense. Court
held that government officials are
subject to law. The performance of
• Rights Under the Constitution
legitimate and even essential duties
has never been an excuse to free a
- The right to self-organization
person from prison. His right to
o includes the right to form labor
discharge his functions is suspended
organizations or unions and the right for a cause provided by law –
to collective negotiation (Congress conviction of a crime.
has yet to define this concept and
provide a mechanism to carry out the Rights under the Civil Service Decree
constitutional intent). and the Administrative Code
o excludes the right to bargain
collectively with the government or
- The right to preference in promotion : The
to engage in concerted activities, i.e.,
Next-in-Rank Rule
right to strike since terms and
conditions of government 1
employment are fixed by law. Temporary employees of the Government shall be given
such protection as may be provided by law.

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o If the vacancy is not filled by o Applies only in cases of promotion;


promotion, it shall be filled by: neither grants a vested right nor
transfer, reinstatement, imposes a ministerial duty.
reemployment, appointment. o One who is next-in-rank is given only
o Qualified next-in-rank employee can preferential consideration.
appeal to the secretaries or heads of
agencies including GOCCs with - Reason for rule
original charters  MSPB  CSC CA o Assumption is employee has gained
 SC within 30 days from receipt of not only superior skills, but also
decision by the aggrieved party greater dedication to the public
o Qualified next-in-rank refers to an service.
employee appointed on a permanent
basis to a position previously - Discretion of appointing authority
determined to be next-in-rank to the o Appointing authority is given
vacancy supposed to be filled and discretion to fill the vacancy among
who meets the requisites for several alternatives:
appointment as previously promotion,
determined by the appointing transfer,
authority and approved by the reemployment,
Commission. appointment.

Meram vs Edralin

The appointee is nine or ten salary ranges


The law merely gives the right to be below the next-in-rank personnel. Her
considered. One should not expect automatic appointment was based on erroneous
promotion as the appointing authority will still considerations (blood ties, influence,
exercise his discretion. ethnic/regional affiliations). Under Civil Service
Law, appointment should be based on merit
and fitness and should never depend on how
- The right to present complaints and intimate a friend or how closely related an
grievances appointee is to the powers that be. Thus, the
o includes the right to have them next-in-rank deserved to be appointed to the
adjudicated expeditiously, resolved vacated position.
at the lowest possible level and
appeal to higher authorities. • Personnel Actions
- According to the Civil Service Decree, it
- The right not to be suspended or dismissed denotes the movement or progress of
except for cause as provided by law and personnel in the civil service.
after due process - They must be in accordance with the rules,
standards, and regulations as may be
- The right to organize promulgated by the Commission.
o Government employees shall not be
discriminated against in respect of - Appointment through Certification
their employment by reason of their o Issued to a person from a list of
membership and participation in the qualified persons certified by the CSC
normal activities of their from an appropriate register of
organizations. eligibles (i.e. those who passed the
o Government interference in the competitive exams) and who meets
establishment, functioning, or all the other requirements of the
administration of government position.
employees organizations through
acts designed to place such - Promotion
organizations under the control of o Movement from one position to
government authority. another with an increase in duties
and responsibilities and accompanied
• Next-In-Rank Rule by an increase in salary.
- Not a mandatory requirement o Factors considered: performance,
training, education, fitness,
personality, potential

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substantial change in title, rank and


- Transfer salary( look into the 'nature of the
o Movement from one position to appointment)
another which is of equivalent rank, 2. a transfer carried out under a specific
level, or salary without break in statute that empowers the head of an
service involving the issuance of an agency to periodically reassign the
appointment employees and officers in order to
o An employee may appeal to the improve the service of the energy
Commission if he believes that there 3. transfer or reassignment of an officer
is no justification for his transfer. pending the determination of an
o Movement from non-career service to administrative charge against him;
the career service shall not be 4. the transfer of an employee from his
considered a transfer. alleged station to the main office,
o A temporary transfer is permissible effected in good faith and in the
even without the employee's prior interest of the service pursuant to Sec.
consent except when it is made as a 32 of the Civil Service Act.
prior step to his removal or is used as
a scheme to lure him away from his
permanent position or is designed to - Reinstatement
indirectly terminate his service or o Any person who has been
force his resignation. permanently appointed to a position
in the career service and who has,
Vinzons-Chato v Natividad through no delinquency or
misconduct, been separated
BIR organization was streamlined. therefrom, may be reinstated to a
Blas was transferred from Cagayan to position in the same level for which
Pampanga. His transfer did not entail he is qualified.
any diminution in rank, salary, status
and responsibilities. His transfer was - Reemployment
part of a nationwide o Applies to those who have been
reshuffle/reassignment. To sustain permanently appointed to positions
that his transfer constitutes demotion in the career service and who have
because it was not to his liking would been separated as a result of
subordinate gov’t projects to reduction in force and of
individual preferences of civil service reorganization.
employees. This negates the
principle that public office is a public - Detail
trust and that it is not the private o Movement of an employee from one
preserve of any person. department or agency to another
without the issuance of an
Divinagracia vs Sto. Tomas appointment; shall only be for a
limited period in the case of
A transfer that results in promotion or employees occupying professional,
demotion, advancement or reduction or a technical, and scientific positions.
transfer that aims to 'lure the employee away o Employee may appeal to CSC if he
from his permanent position,' cannot be done believes detail is without justification;
without the employees' consent. For that pending appeal, decision shall be
would, constitute removal from office. Indeed, executory unless otherwise ordered
no permanent transfer can take place unless by the Commission.
the officer or employee is first removed from
the position held, and then appointed to - Reassignment
another position. o Movement from one organizational
unit to another in the same
EXCEPTIONS (TO THE RULE THAT department which does not involve a
UNCONSENTED TRANSFER AMOUNTS TO reduction in rank, status, or salary,
REMOVAL): otherwise it is tantamount to
1. Where the appointment does not constructive removal in violation of
indicate a specific station, an employee his right to security of tenure.
may be transferred or assigned
provided the transfer affects no

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• Rights under the Revised Government o To entice or encourage faithful and


Service Insurance Act competent employees to enter or
remain in the service.
- Covered: o To allow employees who have
o All government employees upon become incapacitated by illness or
assumption to office pursuant to a accident to continue discharging his
valid appointment or election and duties to retire from the service with
oath of office a relative financial security, allowing
o Barangay and Sanggunian Officials younger and more vigorous
who receive basic pay persons to take their place.
o Elective Officials during their term
• Pension and Gratuity Distinguished
- Excluded:
o Uniformed members of the AFP and - Gratuity
the PNP and those not receiving basic o Donation; an act of pure liberality on
pay or salary the part of the State
o All covered employees mandated to o Benefits accruing under GSIS policy
pay contributions except members of are not gratuities; they are
the Judiciary and the Constitutional contractual obligations of the
Commissioners. government. The insured pays for
said policy by means of required
salary deductions.
- Benefits: o Vacation leave, sick leave, leave of
o Retirement absence with pay: these are not
o Separation gratuities, either. These are forms of
o Unemployment or Involuntary compensation for services rendered.
Separation
o Disability - Pension
o Survivorship o More than an act of generosity; it is
o Funeral an act of justice emanating from the
o Life Insurance desire to provide, though tardily,
adequate compensation for services
• Retirement already rendered for which one had
not received complete and adequate
- paid to member w/ at least 15 yrs of
reward at the time when services
service
were rendered.
- at least 60yrs old
o Benefits accruing under a
- not receiving monthly pension benefit from
permanent total disability government service insurance policy
are not gratuities but contractual
Rabor Case: (overturned Cena case) obligations of the government.
employees who have reached the
compulsory age of retirement (60yrs) but • Construction of Retirement Laws
has less than 15 yrs of service is given 1 - General Rule:
year extension to complete the required o Retirement laws or statutes creating
15yrs. This 1 year limit on extension is pensions, being remedial in
• valid and germane
Pension Definedto the purpose of the character, should be liberally
- Regular allowances paid to an individual or construed and applied in favor of the
group of individuals by the government in persons intended to be benefited by
consideration of services rendered, or in them.
recognition of merit, civil or military. o All doubts as to the intent of the law
should be resolved in favor of the
• Nature and Purpose of Pension retiree.
Note: SC, in the interest of liberal
- Not a gratuity, but a form of deferred
construction, allows seeming
compensation for services performed.
exceptions to fixed retirement
o Right commences upon retirement
rules, provided there are ample
and becomes an enforceable
reasons behind each grant of
obligation in court.
exception.
- Partakes of retained wages for a double
purpose:
- Exception:

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o The doctrine of liberal construction of No deductions were made from the salaries
retirement laws cannot be applied of the Vice-Governor during a short
where the clear intent of the interregnum before and after which she
applicable law and rules are had been receiving a fixed salary. She
demonstrably against the retiree's nevertheless wants to avail of retirement
claim. benefits during said interregnum despite
having failed to make contributions to the
Tantuico v Domingo GSIS.
Regardless of petitioner’s monetary liability to SC says that since (1) basis for retirement
the gov’t that may be discovered from the benefits is service to the government, (2)
audit concerning his accountability as COA contract between GSIS and government
chairman, his retirement benefits cannot be employee is virtually a contract of
withheld under retirement law. adhesion, (3) source of GSIS is social
Pension is a bounty flowing from the legislation, then the situation in this case
graciousness of the gov’t intended to reward can be rectified by allowing petitioner to
past services and provide pensioner with avail of the retirement benefits and simply
means to support himself and family. deducting a reasonable amount
corresponding to the contributions which
If such gratuity could not be attached or levied should have been deducted during the
upon execution, the appropriation of it by interregnum.
administrative action would lead to the same
prohibited result. Conte v. COA
Santiago v. COA Benefits provided under SSS Resolution No.
Retirement laws should be interpreted 56 are NOT considered simply as financial
liberally in favor of the retiree because assistance for retiring employees but as a
their intention is to provide for his supplementary retirement plan proscribed
sustenance, and hopefully, even comfort, by RA No. 4968.
when he no longer has the stamina to
continue earning his livelihood. Said RA bars the creation of any insurance
or retirement plan — other than the GSIS –
After devoting the best years of his life to for government officers and employees, in
public service, he deserves the order to prevent the undue and iniquitous
appreciation of a grateful government as proliferation of such plans.
best concretely expressed in a generous
retirement gratuity commensurate with the It is simply beyond dispute that the SSS
value and length of his services. . . had no authority to maintain and
implement such retirement plan,
He should be able to luxuriate in the particularly in the face of statutory
thought that he did his task well, and was prohibition; SSS cannot, in the guise of
rewarded for it. rule-making, legislate or amend laws or
worse, render them nugatory.
Allarde v. COA
Brion v. South Philippine Union Mission of
The provisions of Sec. 3, PD No. 1438 are the Seventh Day Adventist Church
clear. . .inasmuch as the law limits the
computation of the lump sum to 'the The conditions for eligibility for retirement
highest monthly salary plus the highest must be met only at the time or retirement;
monthly aggregate of transportation, living these conditions are not continuing ones
and representation allowances. . .' which must be complied with even after
one has retired.
It is understood that other allowances are
excluded. Inclusio unius est exclusio SDA no longer exercises control over the
alterius. employee's conduct because his
employment has already been deemed
Note: SC says honorarium is therefore not terminated.
included in the computation of retirement
benefits. As SDA chose not to include in its General
Conference Working Policy an analogous
GSIS v. CSC provision limiting/prohibiting a

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retiree/pensioner from engaging in speaking, his position never


competitive business; it cannot, for its lack became vacant and he is
of foresight, now seek to extricate itself considered as not having left the
from a messy situation through the office.
assistance of the Court.
Duty of plaintiff seeking reinstatement
• Right to Reimbursement and is to prove his right to the office
Indemnity. when he was dispossessed
- Right of public officer to reimbursement for therefrom. Illegally dismissed
legitimate charges incurred on the public employee/official is entitled to
account and (1) not covered by public reinstatement and the rights and
officer's salary or commission, (2) not privileges accruing by virtue of said
attributable to his own neglect or default. office. If reinstatement is no longer
- Right of public officer to be indemnified by feasible or cannot be enforced, he
public for consequences of acts he was should be entitled to a comparable
expressly or impliedly required to perform position, if feasible; he is also
upon the public account. entitled to back salaries

• Right to Reinstatement and Back Public officer/employee has the duty to


Salary act with reasonable diligence in
asserting his right to
- Reinstatement reinstatement.
o Restoration to a state or condition
from which one had been removed or Pardon does not ipso facto restore a
separated. convicted felon to public office. If
o One who is reinstated assumes the he wants to regain his former post,
position he had occupied prior to the he must re-apply and undergo the
dismissal. usual procedure required for new
- Backwages appointment.
o A form of relief that restores the
Tan Jr v OP
income that was lost by reason of
unlawful dismissal.
Tan was exonerated and reinstatement was
ordered. OP however did not make any
Where removal or suspension was
award for back salaries. Based on principle
lawful, officer is not entitled to
“no work, no pay”.
compensation for the period during
which he was so suspended or
SC held(citing Cristobal v Melchor) that when a
separated, in accordance with the
gov’t official or employee/official in the
principle of "as he works, he shall
classified civil service has been illegally
earn".
dismissed and his reinstatement has been
ordered, for all legal purposes, he is considered
Where removal or suspension was
as not having left his office so that he is
unlawful, officer can recover the
entitled to all rights and privileges that accrue
full amount of his unpaid salary
to him by virtue of the office that he held. Back
notwithstanding that during said
salaries is limited to 5 years.
period of his removal or
suspension, the salary was paid to
Gloria v CA
another appointee.
Right to back salaries: Two situations
Where suspended employee is later
found innocent, backwages may be A. For preventive suspension pending
allowed for the period when an investigation even if employee is exonerated –
employee was not allowed to work No! because of principle of “NO WORK NO
without his fault. PAY!!!!”

Where another was appointed to the MECHEM: An officer who has lawfully been
position of the illegally dismissed suspended from his office is not entitled to
or suspended employee, the compensation for the period during which he
aggrieved employee is entitled to was suspended even though it be subsequently
backwages because legally determined that the cause for which he was

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suspended was insufficient. The reason is that o if indispensable in the proper conduct
salary and perquisites are the reward of of the office, the records belong to
express or implied services and therefore the public
cannot belong to one who could not lawfully o if not required by taw and are
perform such services. prepared by the officer apart from his
official duties, and they are not
B. For preventive suspension pending appeal if indispensable in the proper conduct
employee is exonerated – yes! because he is of the office, officer acquires a
penalized even before his sentence is property right.
confirmed - Same rules apply with respect to
inventions. Whatever invention public
employee conceives and perfects is his
PAGCOR v Salas individual property unless:
o he merely produced what he was
It is already a settled rule that backwages employed to invent
may be granted to those who have been o he was otherwise employed to use
illegally dismissed and consequently his inventive faculties.
ordered reinstated, or to those acquitted of
the charge against them. However, • Right to Recover Reward for
backwages cannot exceed five years. Performance of Duty
- General Rule:
o A public officer will not be permitted
to recover a reward offered by the
Suspension public for the performance of an act
(as disciplinary measure) which was part of his official duty.
- Exception:
o Where law expressly authorizes
Lawful Unlawful recovery.
- Reason:
o Unethical to be rewarded for dirties
No reinstatement Entitled to for which you have already been
reinstatement compensated.
No backwages and
backwages

if another person appointed to your


position? If you win case, oust that person!
Position never became vacant.

If office is abolished? Reinstate to


comparable position.

May one waive his right to renstatement?


Yes!

• 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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Chapter 6 Table
Source of Prohibition Officers Covered When the prohibition apply Disabilities and Inhibitions
Under the Constitution President During their tenure Shall not hold any other office or
employment
- unless Consti provides
otherwise

shall not practice any other


profession

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 During their tenure -- same as President except ***--
deputies and assistants
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 During his term Cannot hold any other office or
of Representative - if he violates provision, employment in the Government,
he may forfeit seat or any subdivision, agency, or
- member of Congress shall instrumentality thereof, including
not be eligible for GO/CC or their subsidiaries
appointment to such
office even if he resigns
or loses his seat before Cannot personally appear as
the end of his term 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 non-
congressional 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

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 During their continuance in office Cannot hold any other office of
Commission 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 Cannot be designated to any


and other courts 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 Cannot engage, directly or


service indirectly, in any electioneering
or partisan political campaign
Any elective official During their tenure 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
Any appointive official 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

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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
Member of the armed forces in Shall not engage directly or
the active service 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
Ombudsman 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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Under the Civil Service Decree Officer or employee in the civil Cannot engage, directly or
service 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
Member of the armed forces 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
Any elective public officer or Cannot receive additional or
employee 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
Any appointive officer or Cannot receive additional or
employee 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
Laborers Cannot be assigned to perform

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clerical duties

Under the Local Government Any local government official or Prohibited business and
Code employee 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
Justices, judges, prosecuting Property and rights
attorneys, clerks of courts, - in litigation or levied upon
officers and employees an execution
connected with the - before the court within
administration of justice 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

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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 May not accept any other
Full time members of the employment, whether public or
Monetary Board 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
Personnel of the CB 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 Internal Officer or employee of the BIR May suffer the penalty of fine, or
Revenue Code 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 Public officers Influence another PO to perform
Practices Act 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 Public officials: includes elective Financial and material interest
Ethical Standards and appointive officials and
employees including those in Outside employment and other
government-owned or controlled activities related thereto
corporations and their
subsidiaries, permanent or Disclosure and/or misuse of
temporary, whether in the career confidential information
or non-career service, including
military and police personnel, Solicitation or acceptance of gifts
whether or not they receive
compensation, regardless of Divestment: when a conflict of
amount 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


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

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Disabilities of Members of A civil service employee is allowed to


Constitutional Commissions express his views on current political
- same as those for President, Vice- problems or issues, or to mention the name
President, Members of Cabinet, and their of his candidate for public office, even if
Deputies and Assistants such expression of views or mention of
names may result in aiding one particular
Prohibition against Designation of candidate.
Members of Judiciary to
Administrative Positions On the other hand, a civil service employee
- Constitution: Members of SC and other who contributes money for election
courts shall not be designated to any purposes violates the law because he "aids
agency performing quasi-judicial functions a candidate".
or administrative functions.
- (Consti, VIII, Sec. 12: The Members of the Distributing leaflets openly supporting a
Supreme Court and of other courts candidate was undoubtedly "aiding" such
established by law shall not be designated candidate.
to any agency performing quasi-judicial or
administrative functions. It was not merely mentioning the candidate
- Prof. Carlota's note: This is no longer a he supported or mere expression of his
jurisprudential rule because of the lessons opinion on current political problems but
we learned from martial law. was a solicitation of the elector's vote in
- Reasons: favor of a candidate.
o it violates the doctrine of separation
of powers
o it may compromise the Prohibition Against Appointment Of
independence of the members in the Elective Officials
performance of their judicial - No elective official shall be eligible for
functions appointment or designation in any capacity
o with so many cases pending in to any public office or position during his
courts, practice will result in further tenure. (Consti, IX, Sec. 7)
delay in their disposition - The disqualification incapacitates the
incumbent and renders his appointment
Prohibition Against Engaging In void, hence he does not forfeit his elective
Partisan Political Activities office. He may be appointed, provided he
- No officer or employee in the civil service first resigns his seat.
shall engage, directly or indirectly, in any
electioneering or partisan political
campaign. (Consti, Art. IX-B, Sec. 2(4) Prohibition Against Holding More than
- Professionalism in the armed forces and One Position By Appointive Officials
adequate remuneration and benefits of its
members shall be a prime concern of t General Rule:
State. The armed forces shall be insulated o No appointive official shall hold any
from partisan politics. other office or employment in the
- No member of the military shall engage Government or any subdivision,
directly or indirectly in any partisan agency or instrumentality thereof,
political activity, except to vote. [Consti, including government-owned or
Art. XVI, Sec. 5(3)] controlled corporations or their
subsidiaries.
- Partisan political activity
o Acts designed to have a candidate Exceptions:
elected or not, or to promote the When allowed by law
candidacy of a person(s) to a public When allowed by the primary functions
office. of his position (Consti, Art. IX-B,
Sec. 7)
- Civil service o The rule aims to remedy problem of
o Refers only to career service. Elective officials holding multiple positions
officials and members of the Cabinet which prevent them from devoting
are not included. full time to their principal functions
and result in double or multiple
People vs. De Venecia compensation.

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o In the case of the President, Vice- UNDER EXISTING LAWS


President, members of Cabinet,
Prohibition Imposed on Civil Service
deputies and assistants may hold
Officers or Employees
another office only when specifically
authorized by the Constitution.
The Civil Service Decree provides the
following prohibitions:
Prohibition against Acceptance of any
o Political activity
Present, etc., from any Foreign State
Engage in any partisan political activity
- No elective or appointive public officer or
or take part in any election except
employee shall accept without the consent
to vote, or use his official authority
of the Congress, any present, emolument,
to coerce the political activity of
office, or title of any kind from any foreign
any other person or body.
government. (Consti, Art. IX-B, Sec. 8)
o Additional or double compensation
- The prohibition is to prevent alien influence
in domestic affairs. What is prohibited is o Limitation on employment of
the acceptance of a present officially laborers- laborers whether skilled,
offered by the government of a foreign semi-skilled or unskilled shall not be
state; hence an official may accept a assigned to perform clerical duties
private or personal gift. o Prohibition on detail or reassignment
within 3 months before any election
Prohibition against Receiving o Nepotism
Additional, Double, or Indirect Appointments in favor of a relative of
Compensation the appointing or recommending
- No elective or appointive public officer or authority, or of the chief of the
employee shall receive additional, double, bureau or office, or of the persons
or indirect compensation, unless exercising immediate supervision
specifically authorized by law. over him
- Pensions or gratuities shall not be
considered as additional, double, or Prohibition Imposed On Local
indirect compensation. (Consti, Art. IX-B, Government Officials
Sec. 8)
Prohibited business and pecuniary interest
Prohibition against Appointment of o engage in business transaction with
Members of the Armed Forces to the LGU in which he is an official
Certain Positions o interests in cockpit or other games
- No member of the armed forces in the licensed by LGU
active service shall, at any time, be o purchase real estate/property
appointed or designated in any capacity to forfeited in favor of LGU
a civilian position in the Government o be a surety for person contracting
including government-owned or controlled with LGU
corporations or any of their subsidiaries. o possess/use public property of LGU
(Const AXVI 85(4)) for private purposes
- Behind this prohibition is the principle of o other prohibitions under Code of
civilian supremacy over the military. Conduct and Ethical Standards for
Public Officials and Employees, and
Prohibition against Grant of Loan, other laws
Guaranty or other Form of Financial
Accommodation Practice of profession
- No loan, guaranty, or other form of o governors, city and municipal mayors
financial accommodation for any business prohibited from practicing their
purpose may be granted, directly or professions or engage in any
indirectly, by any government-owned or occupation
controlled bank or financial institution to o Sanggunian Members
the President, the Vice-President, the may practice profession, engage in
Members of the Cabinet, the Congress, the occupation, teach in schools except
Supreme Court, and the Constitutional during session hours
Commissions, the Ombudsman, or to any o Sanggunian members who are
firm or entity in which they have controlling members of the Bar shall NOT
interest, during their tenure.

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appear as counsel in case where LGU o required to limit their professional


or any office of the government is activities to those pertaining directly
the adverse party to their positions with the Bank
appear as counsel in any criminal case
wherein an officer of national/ local Personnel of the CB are prohibited from:
government is accused of offense o being an officer, director, employee,
in relation to office stockholder of any institution subject
collect fee for appearance in to supervision or examination by the
administrative proceedings CB
involving LGU of which he is an o requesting/receiving any gift from
official institute subject to supervision/
use property/personnel of the examination of CB
government except when the o revealing any info relating to
defending interest of the condition or business of any such
government institute
o Doctors o borrowing from any such inst unless
may practice even during official hours adequately secured, fully disclosed to
only on occasions of emergency, MB and subject to rules of MB.
provided that they derive no personnel of supervising and
monetary compensation examining departments are
prohibited from borrowing from a
bank under their supervision or
examination
Partisan political activity

Prohibition against Purchase of


Certain Property at Public Auction Prohibitions Imposed on Internal
Revenue Officers or Employees
Public officers and employees
o Cannot purchase government The NIRC imposes the penalty of fine,
property the administration of which imprisonment or both upon conviction of:
has been entrusted to them o officer/employee of BIR who divulges
o Applies to judges and government to any person or makes known in any
experts who in any manner way than may be provided by law
whatsoever take part in the sale information regarding the business,
Justices, judges, prosecuting attorneys, income, estate of any taxpayer,
clerks of superior and lower courts, and knowledge of which was acquired by
other officers and employees connected him in the discharge of his official
with administration of justice duties
o Cannot purchase property and rights o internal revenue officer who is or
in litigation or levied upon on shall become interested directly or
execution before the court within indirectly in the manufacture, sale or
whose jurisdiction or territory they importation of any article subject to
exercise their respective functions excise tax or repair or sale of any dye
o Includes the act of acquiring by for printing, or making of stamp, or
assignment labels.
o Applies to lawyers with respect to
property and rights which may be the Prohibited Acts and Transactions
object of any litigation in which they Under the Anti-graft and Corrupt
may take part by virtue of their Practices Act (Please see Table)
profession (Art. 1491, Civil Code)
- The prohibition is applicable to sales in Prohibited Acts and Transactions
legal redemption, compromises and under the Code of Conduct and Ethical
renunciations. (Art. 1492, Civil Code) Standards

Prohibitions Imposed on the Governor Financial and material interest in any


and Personnel of the Central Bank transaction requiring the approval of their
office
Outside interest of the Governor and full-
time Monetary Board members

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Outside employment and other activities as souvenir or mark of courtesy


related thereto during their incumbency: scholarship or fellowship grant or
o employment in any private medical treatment
enterprise regulated, supervised or travel grants
licensed by their office o Ombudsman is mandated to
o private practice of their profession, prescribe regulations to carry out
unless allowed by law, provided it will provisions on gift. The CSC has
not conflict with official functions primary responsibility for the
o recommend any person to a position administration and enforcement of
in a private enterprise which has a the Act.
regular or pending official transaction
with their office Divestment
Prohibitions continue to apply for a - A public official or employee shall avoid
period of one year after conflicts of interest at all times. When a
resignation, retirement, or conflict of interest arises, he shall resign
separation from office. The from his position in any private business
professional concerned cannot enterprise within 30 days from his
practice his profession in assumption of office and/or divest himself
connection with any matter before of his shareholdings or interest within 60
the office he used to be with within days from such assumption.
the same one-year period. - The same rule shall apply where the public
official or employee is a partner in a
Disclosure and/or misuse of confidential partnership.
information with respect to information - The requirement of divestment shall not
officially known to them by reason of their apply to those who serve the Government
office: in an honorary capacity nor to laborers and
o to further private interest/ give casual or temporary workers.
undue advantage to anyone
o to prejudice the public interest - "Conflict of interest"
o arises when a public official or
employee is a member of a board, an
officer, or a substantial stockholder
Solicitation or acceptance of gifts in the of a private corporation or owner or
course of their official duties or in has a substantial interest in a
connection with any operation being business, and the interest of such
regulated by or transaction affected by corporation or business, or his rights
their office or duties therein, may be opposed to
o Gift or affected by the faithful
any act of liberality, not including performance of official duty.
unsolicited gift of nominal or - "Substantial stockholder"
insignificant value not given in o means any person who owns, directly
anticipation of or in exchange for a or indirectly, shares of stock
favor from a public official sufficient to elect a director of a
o Receiving any gift corporation.
includes act of accepting a gift from o This term shall also apply to the
person other than member of parties to a voting trust.
family or relative, even on the
occasion of a family celebration or - "Divestment”
national festivity if the value of the o the transfer of title or disposal of
gift is neither normal or interest in property by voluntarily,
insignificant, or the gift is given in completely and actually depriving or
anticipation or in exchange for a dispossessing oneself of his right or
favor title to it in favor of a person or
persons other than his spouse and
o Loan relatives as defined in this Act.
covers simple loan, guarantees,
financial arrangements intended to - "Relatives"
ensure approval o refers to any and all persons related
o Gifts from foreign governments need to a public official or employee within
consent of Congress the fourth civil degree of

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consanguinity or affinity, including 1. those who owe duty solely to the


bilas, inso and balae. public- any breach is to be redressed
by public prosecution. An individual has
- “Family of public officials or employees" no right of action against the officer
o means their spouses and unmarried even if he is injured by the officer’s
children under 18 years of age. (RA action or inaction
6713)
2. those who owe some degree of duty to
CHAPTER VII: LIABILITIES OF PUBLIC individuals- individual has cause of
OFFICERS action against the officer

General rule: official immunity


3 kinds of liability of public officers and
Rationale: Main reason- the state may not be employees:
sued without its consent, and a suit against a
public officer for his official acts is in effect a 1. Civil- the erring officer reimburses the
suit against the state as its purpose is to hold it injured party
ultimately liable. Corollary reasons:
2. Criminal- the officer is punished
1. Promotion of fearless, vigorous and criminally, may go to jail or pay a fine
effective administration of policies of
govt. 3. Administrative- imposition of fine,
2. Public officers and employees may be reprimand, suspension, or removal
unduly hampered and intimidated by from office (Administrative liability
suits in the discharge of their duties discussed in next chapter)
3. Loss of time in such actions
4. Unfairness of subjecting officials to
personal liability for the acts of their Civil and criminal Administrative
subordinates
5. The ballot and removal procedures are - Purpose is to punish - Purpose is to protect
more appropriate methods of dealing the public services
with misconduct in public office

Exceptions to the general rule: - Prosecution in one is - Prosecution here


not a bar to another does not bar criminal
1. Suit to enforce liability for personal case civil or criminal action
torts- for reckless, malicious or corrupt
acts
- Dismissal of case - Dismissal does not
2. Suit to compel performance of official does not bar bar criminal action for
duty or restrain performance of an act- administrative action the same acts. Double
jeopardy does not lie
• to compel him to do an act
required by law
• to restrain him from enforcing a law - Finding of guilt - Vice-versa. Different
claimed to be unconstitutional; or (criminal) or liability degrees of guilt are
to compel the govt. to pay (civil) does not required
damages from an already necessary result in
appropriated assurance fund; or to same finding in
secure a judgment that the administrative case
impleaded officer may satisfy
himself with govt. assistance
• where the govt. itself has violated - Prejudicial question - No prejudicial
its own laws applies to criminal question where one
and civil cases case is administrative
and the other is either
criminal or civil
2 classes of public officers:

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- Quantum of proof - Admin: substantial or if the act is done beyond the scope of his
required in civil cases: evidence- such authority.
preponderance of relevant evidence as
evidence; in criminal: a reasonable mind RAMA VS CA
proof of guilt beyond might accept as
reasonable doubt adequate to support a If the public office is used as a tool for
conclusion oppression, or the public officer commits a
wrongful act, he is not protected by his office
- rules of procedure and he is personally liable.
are strictly adhered to - technical rules of
procedure not strictly Another exception to immunity from liability for
applied official acts: where the public officers are sued
in their personal capacities.
- requires due
process: parties are - entitled only to
afforded fair and administrative When injured party may not be awarded
reasonable decision based on damages:
opportunity to explain substantial evidence
their side or move for made of record and a 1. If the result complained of would have
reconsideration reasonable occurred notwithstanding the
opportunity to meet misconduct of the public officer
the charges during the
hearings 2. If the injured party or his attorney
contributed to the result in any degree
by his own fault or neglect
CIVIL LIABILITY

Requisites for recovery of damages Liabilities of different kinds of officials:


arising from acts of public officers:
1. The President
1. damage to the complaining party
personally- as distinguished from To put him on trial is to put on trial the
damage to individuals in general govt. itself. So the doctrine of state immunity
applies with more force on him.
2. a wrong or violation of his right
committed by the public officer- liability
is based on quasi-delict MOON VS HARRISON

It is the duty of the head of state to


PHILIPPINE RACING CLUB VS BONIFACIO enforce all laws until such time that they are
legally declared unconstitutional. To make him
General rule: a public officer is not personally liable in an action for damages for performance
liable to one injured in consequence of an act or non-performance of official duty would make
performed within the scope of official authority him the judge as to when a law is or is not
and in line with his official duty. constitutional.
2. Legislative officials
What brings the acts within his official
authority? Not necessary that they be Consti. Art. VI Sec. 11- “A senator or member
prescribed by statute, or specifically requested of the house shall, in all offenses punishable by
by a superior officer. Sufficient if done in not more than 6 years imprisonment, be
relation to matters committed by law to his privileged from arrest while congress is in
control or supervision or that they have more session… no member shall be questioned nor
or less connection to the dept. under whose be held liable in any other place for any speech
authority the officer is acting. or debate in the congress or any committee
thereof.”
DUMLAO VS CA
Reason for immunity- they were chosen by
Exception to the Philippine Racing Club general their constituents as best suited to represent
rule: public officer is liable if he caused them. The performance of their duties is
damage by his act done with malice, bad faith something they owe to the public.

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Kinds of liability of ministerial officers:

3. Members of the judiciary a) non-feasance or neglect or refusal


without sufficient excuse to perform his
Reason for immunity- the law holds him to legal duty
his duty to render judgment however b) misfeasance or failure to use in the
erroneous or disastrous to either party. performance of his duty that degree of
care, skill and diligence which the
Exceptions: circumstances of the case reasonably
demand
1. If acting in a ministerial capacity, c) malfeasance or the doing, either
and is careless or negligent through ignorance, inattention or
malice, or that which the officer has no
2. If judge renders an unjust judgment. legal right to do, as where he acts
He may be held liable for dereliction without any authority whatsoever or
of duty for knowingly rendering a exceeds or abuses his powers
manifestly unjust judgment or
interlocutory order by reason of
inexcusable negligence or 6. Superior officers with respect to
ignorance. acts of their subordinates

Test if judgment or order is unjust: it is General rule: Not liable. This is to protect
manifestly contrary to law or is not supported public officers from suits against another public
by the weight of evidence. servant for acts which he himself has not
engaged in. No vicarious liability in public
service.
Mere error in judgment does not give rise to
liability. The remedy is an appeal pursuant to Exceptions:
Rule 45 or 65 of the ROC.
a) he negligently or willfully employs
or retains unfit or improper persons
b) he negligently or willfully fails to
4. Quasi-judicial officers require them the due conformity to
the prescribed regulations
Reason for immunity- same as members of c) he carelessly or negligently
judiciary. But if he acts ministerially, he may be oversees, conducts or carries on the
liable for carelessness or negligence like any business of his office as to furnish
other ministerial officer. opportunity for the default
d) where he has directed, authorized
MERCADO VS MEDINA or cooperated in the wrong done
e) if the subordinate is paid by the
Non-feasance or dereliction of duty superior officer voluntarily or
implies a willful omission or neglect of official privately
duty, and not mere failure to do one particular f) clear showing of bad faith, malice,
thing. gross negligence or neglect to
perform duty within the period fixed
by law
5. Ministerial officers

General rule: liable if he neglects or fails to


perform his ministerial duty at all, or if he
performs it improperly. 7. Subordinates

Qualified exception: proof of good faith, but General rule: same as for those higher in rank.
this only serves to mitigate damages, because
the general rule is that good faith and absence If acting in good faith upon superior’s orders:
of malice constitute no defense for a not personally liable. Exception to this is if the
ministerial officer. act is unlawful.

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Liability for torts: if officer exceeds his neglects, without just cause, to perform his
authority, he is liable even if his conduct is official duty may file an action for damages
committed in the course of his employment. and other relief without prejudice to any
disciplinary administrative action.’
QUIMSING VS LACHICA

Law enforcing agents who acted in good faith Art. 32: (Malice or bad faith not required) “Any
are not liable for damages to persons claiming public servant or any private individual who
illegal arrest. directly or indirectly obstructs, defeats,
violates or in any manner impeded or impairs
MABUTOL VS PASCUAL any of the following rights and liberties of
another person shall be liable for damages:
Absent bad faith, public officials are not liable
for damages for performing a duty required by 1. freedom of religion
law to be done by them. 2. freedom of speech
3. freedom to write for the press
ESTEJO VS FERNANDO or to maintain a periodical
publication
If a public officer exceeds the power conferred 4. freedom from arbitrary or
to him by law, he cannot shelter himself under illegal detention
the plea that he is a public agent acting under 5. freedom of suffrage
color of office. In the eyes of the law, his acts 6. right against deprivation of
are wholly without authority. property without due process
of law
PALMA VS GRACIANO 7. right to just compensation
when private property is taken
As against cities and municipalities, the for public use
prosecution of crimes is not a corporate 8. right to equal protection
function, but governmental or political. In the 9. right to be secure in one’s
exercise of such function, municipal person, house, papers and
corporations are nor responsible for the acts of effects against unreasonable
their officers, except and only when, and only search and seizure
to the extent that they have acted by authority 10. liberty of abode and of
of the law and in conformity with the requisites changing it
prescribed in the law. 11. privacy of communication and
correspondence
12. right to become a member of
GENSON VS ADARLE associations for purposes not
contrary to law
A supervisor who tolerates his subordinates to 13. right to take part in a
moonlight on non-working days cannot be held peaceable assembly to petition
liable for anything that happens on such days. the govt. for redress of
grievances
14. right to be free from
CARREON VS PROVINCE OF PAMPANGA involuntary servitude in any
form
When a public officer exceeds his authority, he 15. right of accused against
may be held liable particularly for torts. This excessive bail
liability is even clearer when the act 16. right of accused to be heard by
complained of involves corporate or proprietary himself and counsel, to be
functions rather than those strictly informed of nature and cause
governmental in nature. of accusation, to have speedy
and public trial, to meet the
witnesses face to face, and
Liabilities under the Civil Code: have compulsory process to
secure attendance of witnesses
Independent civil actions 17. freedom from being compelled
to be witness against himself,
Art. 27: “Any person suffering material or to confess guilt except as state
moral loss because a public servant refuses or witness

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18. freedom from excessive fines,


cruel or unusual punishment RIVERA VS MUNICIPALITY OF MALOLOS
19. freedom of access to courts
Before a contract may be validly
entered into by a municipality, the law requires
Art. 34: “When a member of a city or that there must first be an appropriation of
municipal police force refuses or neglects to municipal funds to meet the obligation, validly
render aid or protection to any person in case passed by the municipal council and approved
of danger to life or property, such peace officer by the municipal mayor.
shall be primarily liable for damages, and the
city or municipality subsidiarily liable.”
RIVERA VS MACLANG
ZULUETA VS NICOLAS
If the action is against the public
Refusal of a fiscal to prosecute a case servant in his personal capacity and if the
when after investigation he finds no sufficient contract was executed invalidly by reason of
evidence to establish a prima facie case is not non-compliance with the law or applicable
a refusal without just cause to perform an municipal ordinances, he is personally liable.
official duty. He is vested with discretion as to
whether a prima facie case exists or not. Liability for unexplained wealth:

AMARO VS SUMAGUIT
1. RA 1379 (Forfeiture of Unexplained
An action for damages under Wealth Act): any property manifestly
independent civil actions is not precluded by out of proportion to the salary of a
the existence of other remedies such as public servant is deemed unlawfully
administrative complaint or criminal case. acquired
VITAL-GOZON VS CA
2. RA 3019 (Anti-Graft and Corrupt
Under Article 27, a public servant may Practices Act): penalizes certain acts of
be liable for moral damages as long as the public servants and private persons
physical suffering, mental anguish, fright, alike which constitute graft and corrupt
serious anxiety, besmirched reputation, practices
wounded feelings, moral shock, social
humiliation, etc suffered by the complainant
are the proximate result of the officer’s act or ALMEDA VS PEREZ
omission.
The proceedings under RA 1379 are civil in
Liability on contracts executed in behalf nature because it imposes merely forfeiture of
of the govt: unlawfully acquired property. The procedure
outlined is that for a civil action. Thus, there is
General rule: not liable a petition, answer, and hearing. If it were a
criminal proceeding, there would be a reading
Exceptions: of information, plea, and trial.

1. The public servant executes an Therefore the amendments sought


unambiguous personal setting forth newly-discovered acquisitions of
undertaking which makes no the respondent may be inserted in the petition
mention of the agency he without obtaining his consent (If it were a
serves criminal proceedings, amendments require
defendant’s consent).
2. The contract does not indicate
that it is executed by him in an CABAL VS KAPUNAN
official capacity
Forfeiture in RA 1379 partakes of a
3. The contract is grossly penalty or punishment, since the proceedings
prejudicial to the govt. are not to establish, recover, or redress private
(criminal liability attaches) or civil rights, but to try or punish the persons
charged.

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Thus, the right against self- 5. Liability for acts done under direction
incrimination is available, the proceedings of superior officer- Relieved from
being quasi-criminal in nature. 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
RA 1379: primarily liable.

* As to procedure- civil (Almeda case)

* As to substantive rights- criminal (Cabal); ALBERT VS GANGAN


Cabal applies if the respondent is required to
take the stand to divulge his assets and The mere fact that a public officer is
properties not known to the court 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.
Liability of accountable officers:
It would be improbable for him to check
1. Bond requirement- if his duties permit all the details or voluminous paperwork in his
or require possession or custody of agency. He relies mainly on recommendations
government funds or property of his subordinates in approving the
transaction.
2. Primary and secondary responsibility-
A person who signs questioned
• the head of the agency is transaction does not automatically become a
primarily responsible for all conspirator in a crime. His knowledge of the
govt. funds or property conspiracy must be proved by positive
pertaining to his agency evidence.

• persons entrusted with Requisites for liability:


possession or custody of such
funds or property shall be 1. there must a an expenditure of govt.
immediately responsible to the funds or use of govt. property
head of the agency (either 2. the expenditure is in violation of law
party may be liable to the 3. the official is found directly responsible
govt.) for it

3. General liability for lawful


expenditures- personal liability of the CRIMINAL LIABILITY
employee or officer directly responsible
General rule: no public official is above the law
4. Measure of liability of accountable
officers- Exceptions:

• For money value in case of 1. If the prohibited act is necessary for


improper or unauthorized use the performance of their duties such as
by himself or anyone for whose carrying weapons in the case of the
acts he is responsible; or for police or military
losses, damages, or
deterioration occasioned by 2. Failure to perform a duty commanded
negligence in keeping or use by law for causes beyond his control
whether or not in his actual and performance is impossible
custody at the time
• Liable for all losses resulting The following are NOT available as defenses:
from unlawful deposit, use or
application and for all losses 1. absence of corrupt intent in an action
attributable to negligence in based on statutory penalty for
keeping the funds misconduct such as taking illegal fees

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2. expiration of term of his office willful neglect to give receipts,


permitting violation of law
3. re-election does not extinguish criminal
liability incurred in previous term 9. Under the Omnibus Election Code-
election offenses

Crimes peculiar to certain public officers:


MACADANGDANG VS SANDIGAN
1. Under the Revised Penal Code
Budget officer signed falsified vouchers
• Malfeasance or misfeasance in for repair of govt. vehicles and made a request
office (ex. Malicious delay in for allotment of funds without first ascertaining
administration of justice, whether or not the repairs were needed.
bribery)
• Frauds and illegal exactions He is not liable. It was not his job to
and transactions inspect the vehicles, his job was to certify as to
• Malversation of public funds or the availability of funds.
property
It does not follow that he was part of
• Infidelity of public officers
the conspiracy. He may have signed the papers
• Other offenses: disobedience,
routinely. He is not liable criminally, but his lack
refusal or assistance of care may be ground for administrative
maltreatment of prisoners, action.
abandonment of duties,
usurpation of powers, unlawful
appointments ARIAS VS SANDIGAN
2. Under the Anti-Graft and Corrupt Land assessed at P5 per sq. meter in
Practices Act- bribery, a congressman 1973 was acquired by the govt. in 1978 for
acquiring pecuniary interest in any P80/sq. meter.
enterprise benefited by a law authored
by him, etc. The conviction was erroneous. There
can be no over-pricing for the purpose of a
3. Under the Code of Conduct and Ethical criminal conviction where no proof of such was
Standards adduced during the proceedings.
4. Under the Forfeiture of Unexplained Further, the mere signature of the
Wealth Act- unlawfully acquiring accused cannot be proof of conspiracy. Therese
property or transferring or conveying should be other ground than mere signature to
any unlawfully acquired property sustain conspiracy and conviction.
5. Under the Civil Service Decree- making
any appointment or employing any LLORENTE VS SANDIGAN
person in violation of the provisions of
this decree or commits fraud or Undue injury cannot be presumed even
misrepresentation concerning other after a wrong has been established. The
civil matters or refuses to comply with existence of undue injury must be proven as
such one of the elements of the crime.
6. Under the Govt. Auditing Code- Undue injury- actual damage (akin to
violation of provisions of warrants and that in civil law).
checks receivables for taxes, issuance
of official receipts Bad faith- does not simply connote bad
judgment. It imputes a dishonest purpose or
some moral obliquity or conscious doing of a
7. Under the Local Govt. Code wrong. It partakes of the nature of a fraud.
8. Under the Natl. Internal Revenue Code- Inaction- is included in “causing” the
extortion, willful oppression, knowingly injury. Even passive acts may cause undue
demanding unauthorized payment, injury.

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Act complained of is an office


publication saying that a certain “Auring” was a
BUNYE VS SANDIGAN disgrace to the office.

There is no undue injury where the It is a tort under CC Art. 2176. It is ultra
complainants have never been adversely vires and not part of official duty, thus the
affected and they were not displaced or respondents are liable in their personal
prevented from operating their business. capacities.
DUTERTE VS SANDIGAN

3 elements in illegal transactions:

1. offender is a public officer


2. the contract is entered into in behalf of
the govt.
3. the contract is manifestly
disadvantageous to the govt.

If the assailed contract is no longer existent VIII. TERMINATION OF OFFICIAL


at the time the complaint is filed (such as when RELATIONS
it ash been rescinded), then the 2nd element is
Specifically
absent/not established.
• Modes of Termination
(remember MS. ERDRAA PRIACiR)
JAVELLANA VS DILG - Expiration of term or tenure
- Reaching age limit (retirement)
Javiero and Catapang charged City - Death or permanent disability
Engineer Divinagracia with illegal dismissal. - Resignation
Javiero and Catapang were represented in that - Acceptance of incompatible office
case by Javellana, a councilman of that city. - Abandonment
Divinagracia questioned Javellana’s personality - Prescription to right of office
to represent J and C. - Removal
- Impeachment
The complaint for illegal dismissal filed - Abolition of office
by J and C against Divinagracia is in effect a - Conviction of a crime
suit against the city govt., their real employer, - Recall
of which Javellana is councilor. Javellana cannot
therefore represent an interest adverse to the - One mode - by virtue of a revolution
govt.
Natural Causes
TUZON VS CA

Art. 27 of CC was meant to end the • Expiration of Term of Office


bribery system where a public official, for some - Unless authorized to hold over, rights,
flimsy excuse, delays or refuses the .duties and authority ipso facto cease
performance of his duty until he gets some - Term
kind of bribe. o Fixed and definite time prescribed by
law or Constitution by which an
The official is not liable where it does officer may hold an office.
not appear that he stood to gain by the act o It does not apply to appointive offices
complained of, or where records show that the at the pleasure of the appointing
ordinance or law in question has been power
uniformly applied to all. In the absence of a - Non-renewal of appointment is a valid
judicial decision declaring a law invalid, its mode of termination.
legality would have to be presumed.
• Removal vs. Expiration of Term
- Removal:
WYLIE VS RARANG o Oust officer before expiration of his
term

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- Expiration of Term: confidential. In fact, he was a civil service


o Where no term is fixed by law and eligible whose removal was illegal.
the incumbent is relieved by the
appointing power, it is as though • Commencement of Terms of Office
Congress itself fixed the term. - Ordinarily, commencement is fixed for
o Where an appointment is for a some appreciable period after the election
definite and renewable period, non- or appointment
renewal is an expiration of the term - Where no time is fixed:
o elective officers - date of election
• Term vs. Tenure o appointive officers- date of
- Term: appointment
o time during which the officer may - Runs "from" a certain date, the day of date
claim to hold the office as a matter of is excluded
right and fixes the interval after
which the several incumbents shall • Power of Congress to Fix, Shorten, or
succeed one another Lengthen Term
o not affected by hold over
- Fixed by the Constitution
- Tenure: o beyond the power of Congress to
o period during which incumbent affect tenure
actually holds office
Nueno vs. Angeles - Not fixed by the Constitution
o Congress may limit duration of term.
The term of office is fixed by law and can’t
Where terms are prescribed by law,
be extended by reason of war.
public policy forbids that the
beginning and expiration of the
Alba v. Alba term be left to the discretion of the
person holding the office or of the
Congress can legally and constitutionally body having the appointing power.
make the tenure of certain officials Budgetary authority cannot shorten the
dependent upon the pleasure of the' term of office by refusing to
President. The replacement of the appropriate funds
appointee is not a removal but an
expiration of term.
• Holding-over After Expiration of Term
Cadiente vs. Santos
- Hold-over status
The tenure of officials holding primarily- o Term has expired
confidential positions ends upon loss of o Public officer continues to hold office
confidence. The termination of the services until his successor is appointed or
of the city legal officer by the mayor is not chosen
removal but expiration of term.
NOTE in LocGov: express provision that - Status of hold-over officer
legal officer's term is co-terminus with that o de jure: if hold-over is authorized
of the local chief executive o otherwise, de facto

Primarily confidential: denotes not only


confidence in the aptitude of the appointee - Purpose:
for the duties of the office but primarily o To prevent a hiatus in the
close intimacy which insures freedom of government
intercourse, without embarrassment and o Public interest requires that public
freedom from misgivings of betrayals of offices should be filled at all times,
personal trust on confidential matters of without interruption
state.
- Applies:
Cristobal vs. Melchor o when there is a fixed term annexed
The services of a private secretary in the to the office
office of the President were terminated. o when provided by law
However, no evidence was adduced to o when not provided by law
show that the position was primarily

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unless such holding-over is expressly vacancy; only the courts can make
or impliedly prohibited, the his finding conclusive.
incumbent may continue to hold
office. Acts or Neglect of Officer
o when the Constitution limits the term
without providing for hold-over • By Resignation
- Right to resign is recognized.
- Officer may hold-over until successor is
Distinguish where office created by: chosen
- Right must be declared in a much more
Law Constitution restrictive manner so that public officers
GR: May holdover GR: No won’t throw off their responsibility at their
Holdover own pleasure.
XCPT: when prohibited XCPT: None
• Meaning of Resignation
- Formal renunciation or relinquishment of a
public office
Duldulao v. Ramos - Implies the incumbent expressing in some
A municipality was converted into the form, express or implied, of the intention to
province of Occidental Mindoro. The CFI surrender, renounce, relinquish his right to
Judge and the Register of Deeds continue office and the acceptance by competent
to hold office in the absence of a contrary and lawful authority
provision. The law abhors a vacuum; to
hold otherwise is to allow paralyzation of • Form of Resignation
judicial functions. - If requirement is provided by law, must be
substantially complied with
• Office Created for the Accomplishment - Otherwise, resignation may be made by
of a Specific Act any method indicative of the purpose.
- The office terminates and the officer's o It need not be in writing and may be
authority ceases with the accomplishment oral or implied by conduct.
of the purpose.
- For example, the board of canvassers is • What constitutes Resignation
deemed functus officio with the - intention to relinquish a part of the term
proclamation of candidates. - accompanied by an act of relinquishment
- a written resignation must be signed by the
• Reaching Age Limit party tendering it
- Members of judiciary - a written resignation given to the board
o Until 70 years old or become authorized to receive it and fill the vacancy
incapacitated to discharge the duties is prima-facie but not conclusive evidence
of the office. of the intent to relinquish
o Other laws provide for compulsory
retirement at the age of 65 years. RULES:
- NOTE: retirement will NOT render 1. Resignation must be voluntary.
administrative case moot and academic. 2. There must be clear intention to
resign.
• Death or Permanent Disability Gonzales vs. Hernandez
- Death To constitute a complete and operative act
o to be filled by one person only of resignation, the officer or employee
office is vacant must show clear intention to relinquish or
o 2 or more officers exercise authority surrender his position xxx and there must
the whole office is not vacant; survivor be and acceptance by a competent and
may execute the office unless joint lawful authority.
action is expressly, required.
In CAB, there was a conditional resignation
- Permanent Disability and since G's position in the GSIS was
o covers both mental or physical temporary in nature, there was no
o appointing power will have to decide abandonment.
whether the disability created
Ortiz vs. COMELEC

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Retirement laws are construed liberally in


favor of the retiree. At present, there is no more automatic
resignation upon filing of candidacy.
A courtesy resignation cannot properly be
interpreted as resignation in the legal
sense for it is not necessarily a reflection of • Necessity of Acceptance of
a public official's intention to surrender his Resignation
position; rather, it manifests his submission
to the will of the political authority and the - Abandonment unlawful before acceptance.
appointing power. o Person who abandons his office to
the detriment of the public service
Since 0's courtesy resignation was shall suffer the penalty of arresto
accepted by the President he is deemed to mayor.
have completed his term of office, hence, o A resignation is inoperative and
entitled to retirement benefits. ineffective in the absence of
acceptance.
Estrada v Desierto o A public official may be deemed to
have relinquished his office due to
Resignation is a factual question and its his voluntary abandonment of his
elements are beyond quibble: there must office.
be intent to resign and the intent must be
coupled by acts of relinquishment. Its - Resignation revocable before acceptance.
validity is not governed by any formal o Prior to acceptance, the resignation
requirement as to form. It can be IMPLIED! is not complete and the officer
As long as resignation is clear, it must be remains in office.
given effect. o The rule rests on the dictates of
public policy.
ERAP’s ersignation has to be determined o The acts of an officer before the
from his acts and omissions or the totality
official notification of acceptance of
of prior, contemporaneous and posterior
his resignation are de facto.
facts and circumstantial evidence bearing
a material relevance on the issue. Using
• Form of Acceptance
this totality test, SC held that Erap
o By a formal declaration or
resigned.
o By the appointment of a successor
o By due filing at proper office w/out
SIR: Intention to voluntarily relinquish ojection
position is missing!
• To whom Resignation is Tendered Punsalan vs. Mendoza
- to the person designated by statute in the M can validly reassume the governorship of
absences of statutory direction, to the Pampanga after having tendered his
officer or body having authority to appoint resignation since the action on the
his successor or to call an election to fill resignation was held in abeyance by the
the office President and when the President finally
- a resignation tendered to an improper acted, he shelved the resignation and
person or body is a nullity approved the KBL caucus recommendation
for M to reassume the governorship.
Legaspi vs. Espina
Since petitioner thereby forfeited any right • Withdrawal of Resignation
to the office of Mayor when he filed his - Resignation may be withdrawn before it is
certificate of candidacy for Congressman, acted upon
his present petition seeking reinstatement - A prospective resignation may amount but
to the office of Mayor has lost all basis. to a notice of intention to resign at a future
day, or a proposition to resign.
The automatic and permanent loss of office - Possession of the office is still retained and
of any elective official who runs for an may not be necessarily surrendered until
office other than the one he is actually the expiration of the legal term of the office
holding makes no exception for officials because the officer may recall his
under suspension at the time they file their resignation or withdraw his proposition to
certificate of candidacy for another office. resign

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that he will not be permitted to, as where


• Repudiation of Resignation the law requires the approval of the
- A resignation is not effective although a provincial board before a municipal official
successor has been appointed to take the can resign.
place of the first incumbent if the - Where the first office is held under a
resignation has been transmitted without different government from that which
his consent conferred the second
- The resignation of a public officer procured - Where the officer is expressly authorized
by fraud or by duress is voidable and may by law to accept another office and
be repudiated. - Where the second office is temporary.
- A resignation given as an alternative to
have charges filed against the public officer • By Abandonment of Office
may be repudiated, for the resignation - A public office becomes vacant by
cannot be accepted as having been given abandonment and non-user. When an office
voluntarily and willingly. is abandoned, the former incumbent
cannot legally repossess it even by forcible
• Effect of Duress or Fraud reoccupancy.
- When an employee resigns from service,
there is a presumption of voluntariness. • Meaning of Abandonment
- If an officer charged with misconduct - The voluntary relinquishment of an office
chooses to resign when given the by the holders of all right, title or claim
alternative to do so in lieu of termination, with the intention of not reclaiming it, or
his resignation is not given under duress. terminating his possession and control.
- In ascertaining abandonment, intention is
If resignation is accepted, officer can the first and paramount object of inquiry
repossess office if: for there can be no abandonment without
1. No person yet appointed to office, the intent to abandon.
and - The failure to perform the duties pertaining
2. Appointing authority consents to to the office must be with active or
reassumption. imputed intention on the part of the officer
• By Acceptance of an Incompatible or to relinquish the office.
Prohibited Office
- He who, while occupying one office, • When there is Abandonment of Office
accepts another incompatible with the first, - When there is clear intention to abandon
ipso facto, absolutely vacates the first office (can be inferred from conduct)
office. - Acceptance of another office
- If the law or Constitution forbids the - Failure to discharge duties of office or to
acceptance by the public officer of any claim or resume it
other office, it is not a case of - Acquiescence by the officer in his wrongful
incompatibility but of legal or constitutional removal
prohibition. - There must be concurrence of intention
o If the appointment to the latter office and overt acts from which it may be
is void because of disqualification or inferred that the public officer concerned
ineligibility, the appointee does not has no more interest. Intention is a
forfeit his original office. question of fact.
o Principles normally governing
• When Offices are Incompatible with abandonment of office should not be
each other too strictly applied to cases occurring
- Incompatibility is to be found during war.
o in the character of the offices and
their relation to each other Canonizado v Aguirre
o in the subordination of one to the
other and Petitioner, after accepting another position,
o in the nature of the functions and sought reinstatement to his former position
duties which attach to them. from which he was removed under a
provision of law which was subsequently
• Exceptions to the Rule on Holding declared violative to his constitutional right
Incompatible Offices to security of tenure.
- Where the officer cannot vacate the first
office by his own act, upon the principle

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His appointment and acceptance of • By Prescription of Right to Office


another position is not deemed
abandonment. His removal from his - The proceeding by quo warranto is the
original position by virtue of a proper and appropriate remedy against a
constitutionally infirm act necessarily public officer or employee for his ouster
negates a finding of voluntary from office which should be commenced
relinquishment. He was compelled to leave within one year after the cause of such
his former position. ouster or the right of the plaintiff to hold
such office or position arose.
• Abandonment and Resignation - Rationale for 1 yr period: title to public
Distinguished office should not be subjected to
- Resignation and abandonment are uncertainties but should be determined as
incompatible and contradictory. speedily as possible.
o However, abandonment may be
considered as a species of
resignation. Acts of the Government or the People
- The concomitant effect of both is that the
former holder of the office can no longer • Meaning of Removal
legally repossess or reclaim it. - Removal entails the ouster of an incumbent
before the expiration of his term.
- It implies that the office exists after the
Abandonment Resignation
ouster.
- Another term used is dismissal.
Voluntary act Voluntary act
• What constitutes Removal
Relinquishment through Formal relinquishment - Removal may be expressed or implied.
non-user
- Appointment to Another Office
A requisite for resignation Not a requisite for
o The general rule is that where an
abandonment
officer may be removed by a superior
officer at the latter's pleasure, the
SB of San Andres vs CA act of removal is accomplished
merely by the appointment of
Resignation is an act of giving up or the act another officer in his place.
of an officer by which he declines his office o In order to render the removal
and renounce further right to use it. It must effective in all cases, the incumbent
include the following: must be notified.
1. an intention to relinquish part of
the term - Transfer to Another Office
2. an act of relinquishment o The transfer of an officer without his
3. an acceptance by proper authority. consent is equivalent to his illegal
There was no resignation in this case as removal or separation form the first
records are bereft of any evidence that office.
Antonio’s resignation was accepted by the o A transfer requires a prior
proper authority.
appointment and acceptance is
indispensable to complete an
BUT there was abandonment which is a
appointment.
voluntary relinquishment of an office by
the holder with the intention of terminating
- Demotion
his possession and control thereof. It is a
o The movement from one position to
species of resignation. While resignation is
another involving the issuance of an
a formal relinquishment, abandonment is a
appointment with diminution in
voluntary relinquishment through a non-
duties, responsibilities, status or rank
user (a neglect to use a privilege/right or to
which may or may not involve a
exercise an easement of office.
reduction in salary.
o Demotion to a lower position with a
• Instances of Abandonmnent/Non
lower rate of compensation is also
Abandonment
equivalent to removal if no cause is
- determining factor is the presence of
shown for it
intention to relinquish title

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- Reassignment o If the statute does not designate the


o The movement from one term of the office, the appointee will
organizational unit to another in the hold only during the pleasure of the
department or agency which does appointing power, and may be
not involve a reduction in rank, removed at pleasure at any time
status, or salary and does not require without notice or hearing.
the issuance of an appointment. If • Exercise of Power of Removal
done in good faith and in the interest - May be absolute or conditional.
of service, it is permissible and valid
even without the employee’s prior - It is absolute when it is vested in the
consent. unlimited discretion of the removing officer
to be exercised at such time and for such
• Legislative Regulation of Removal reasons as the latter may deem proper and
- Congress, in vesting the appointment of sufficient.
officers of lower rank in the President along
or in the heads of departments, may limit - It is conditional when the time, the manner,
and restrict the power of removal as it or the reason is placed beyond the mere
deems best for the public interest. discretion of the removing officer.
- Where the Constitution prescribes the - In any case, the power of removal cannot
method of removal and the causes for be exercised without notice and hearing
which public officers may be removed, where the employee enjoys security of
these methods and grounds are exclusive tenure.
and it is beyond the power of Congress to
remove incumbents in any other manner or
for any other cause. Carlots: There is no such thing as absolute
power to remove!
• Administrative Liability Incurred in a
Previous Term by an Elective Official
- Re-election of a public official extinguishes • Power of Removal of the President
only the administrative but not the criminal - The Constitution contains no provision
liability incurred by him during his previous expressly vesting in the President the
term of office. power to remove executive officials from
o His re-election operates as a their posts.
condonation of the officer's previous - Nevertheless, the power is possessed by
misconduct. him as it is implied form any of the
following:
• Removals Incident of Right of o from his power to appoint
Appointment o from the nature of the executive
- The power to remove is deemed lodged in power
the same body or person in which the o from the President's duty to execute
power to appoint is vested. the laws
o from the President's control of all
- Where term of office not fixed by law. departments, bureaus and offices,
o The general rule is that the power of and
removal is incident to the power to o from the provision that "no officer or
appoint. employee in the Civil Service shall be
removed or suspended except for
- Where term of office fixed by law. cause provided by law
o Implied power of summary removal is
not incident to the power of • Civil Service Officers and Employees
appointment. entitled to Security of Tenure
o It is the fixity of the term which - Security of tenure means that an officer or
destroys the power of removal at employee in the civil service shall not be
pleasure. suspended of dismissed except for cause
This is true although the appointment as provided by law and after due process.
is classified as temporary.
- The Constitution requires that the
- Where holding of position at pleasure of appointments shall be made according to
appointing power or subject to some merit and fitness and that removal or
supervening event.

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suspension shall be for cause provided by


law. - Members of Congress
- Removal for cause provided by law o Each House may punish members for
guarantees both substantive and disorderly behavior and with
procedural due process. concurrence of 2/3 of all its
o Such cause as a general rule must members, suspend or expel a
affect the functions or administration member.
of the office which the officer or o A penalty of suspension when
employee holds or be connected with imposed shall not exceed 60 days.
the performance of his duties and - President, Vice-president, Members of the
must be restricted to something of a Supreme Court and Members of the
substantial nature directly affecting Constitutional Commissions and the
the rights and interests of the public. Ombudsman
- No complaint against a civil service officer o They may be removed from office, on
or employee shall be given due course impeachment for and conviction of:
unless it is in writing and subscribed and culpable violation of the Constitution
sworn to by the complainant. treason
o Officer or employee must be bribery
informed of the charges against him. graft and corruption
other high crimes
• Guarantee of Security of tenure betrayal of public trust
extends to both career and non-career
positions - Members of the Judiciary
- Both are protected from o shall hold office during good behavior
removal/suspension without just cause and until age 70 or become incapacitated
non-observance of procedural due process. to discharge the duties of their office.
- In case of primarily confidential employees, o For members of the Supreme Court,
when pleasure turns into displeasure,, they should not have committed any
incumbent is not removed or dismissed. His of the offenses which are grounds for
term merely expires. impeachment.
o For judges of lower courts, the
Cause - means legal cause, that provided by determination of the SC as to
law. whether there has been a deviation
or not from the requirement is
Gen Rule: cause must be related to the conclusive since it alone has the
performance of functions of the public office. power to order their dismissal.
o Also note the provisions in the Canon
“for cause” means both substantial and of Judicial Ethics.
procedural due process.
- Civil service officers or employees
Since there is no law which provides for “loss of o shall not be removed or suspended
confidence” as a ground for removal, that is not except for cause provided by law.
removal but expiration of term. o The security of tenure in CES (except
1st & 2nd level ee in civil service)
Constitution does not distinguish. Thus, WON pertains only to rank and not to the
career/non-career, confidential or technical, office or to the position to which they
such are subject to security of tenure. may be appointed.

Power to remove connotes power to discipline. De Leon v CA

Sources of grounds for removal: The mere fact that a position belongs to the
1. Consti Career Service does not automatically confer
2. Civil Service law security of tenure on its occupant even if he
3. Loc. Gov’t Code 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.

• Grounds for Removal or Suspension Montesa’s appointment did not attain


under the Constitution permanency. Not having taken the necessary

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CES exam to obtain the requisite eligibility, he Culpable violation of the Constitution
did not at the time of his appointment up to Dishonesty, oppression, misconduct in
present possess the needed eligibility position office, neglect of duty
in the CES. His appointment was merely Commission of offense involving moral
temporary and thus, he can be transferred or turpitude or punishable by at least
reassigned without violating the prision mayor (vs Civil Service law
constitutionally guaranteed right to security of which requires conviction)
tenure. Abuse of authority
Unauthorized absences for 15
General v Roco consecutive working days
Application or acquisition of foreign
Under Sec. 27(1) of Civil Service Law and citizenship or residence or in
Integrated Reorganization Plan, two requisites immigrant status of another
must occur in order that a CES employee may country
attain security of tenure: Other grounds provided by law
1. CES eligibility
2. appointment to appropriate CES rank o Removal from office on the above
grounds must be by order of the
Thus a CES officer may be proper court.
transferred or reassigned from one o The President has no power to
position to another without losing his remove elective local officials.
rank which follows him wherever he o Heads of LGU's may investigate and
is transferred or reassigned. No decide matters involving disciplinary
diminution of salary even if actions against officers and
transferred to a CES position w/ lower employees under their jurisdiction.
salary grade as he is compensated
according to CES rank and not on the Pablico v Villapando
basis of the position or office he The Office of the President has no
occupies. power to remove elected officials
since such power is vested in the
proper courts as expressly provided
• Termination of Temporary in Sec 60 LGCode. There is a very
Appointments clear legislative intent to make the
- temporary appointments can be power of removal a judicial
terminated at the pleasure of the prerogative as seen in the Senate
appointing power without notice and deliberations.
regardless of ground
- temporary appointee has no tenure of
office, therefore, strictly speaking there is Carlots: What is proper court? This is a weird
no removal decision. At what point should the court
interfere?
- Term fixed by law
o allows the appointee to hold office If we follow this ruling it would result in
until expiration of the period absurdity.
o the occupancy of anyone temporarily 1st stage: admin proceedings.
appointed is precarious and does not 2nd stage: judicial proceedings
come within the contemplation of the
Constitutional prohibition against This would make the court a “rubber stamp”
removal or suspension except for court as it would just implement the decision of
cause admin agency. This is contrary to the function
and nature of a Court.
• Grounds for Disciplinary Action Under
the Local Government Code

- Elective local officials may be • Grounds for Disciplinary Action under


o disciplined; the Civil Service Law
o suspended; - Civil Service officers or employees may be
o removed on the following grounds suspended or dismissed only "for cause" as
committed while in office: provided by law and after due process
Disloyalty to the republic under the following grounds:

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o Dishonesty in writing and subscribed and sworn


o Oppression to be given due course
o Neglect of Duty - Penalties:
o Misconduct (doesn’t have to be o Removal from service
related to office vs LGCode where it o Transfer
has to be misconduct in office) o Demotion in rank
o Disgraceful and immoral conduct o Suspension for not more than one
o Being notoriously undesirable year without pay
o Discourtesy o Fine in an amount not exceeding 6
o Inefficiency and incompetence months' salary
o Receipt for personal use of a fee, gift o Reprimand
or other valuable thing in connection Same penalty shall be imposed for
with performance of official duties similar offenses and only one
o Conviction of crime involving moral penalty shall be imposed in each
turpitude (vs LGCode where only case
commission is enough)
o Improper and unauthorized • Withdrawal of Complaint
solicitation of contribution from - Rule: Withdrawal of the complaint does not
subordinate employees and by have the legal effect of exonerating the
teachers from school children respondent from administrative disciplinary
o Violation of Civil service law, rules action
and regulations - The Supreme Court does not look with
o Falsification of official documents favor the affidavit of retraction especially
o Frequent unauthorized absences or when it is executed as an afterthought
tardiness o However, where an administrative
o Habitual drunkenness case cannot proceed without active
o Gambling participation of complainant, court
o Refusal to perform official duty or may find itself without alternative but
to dismiss the complaint.
overtime
o Disgraceful, immoral, dishonest
conduct prior to entering the service
o Physical or mental incapacity
• Misconduct in Office
o Borrowing money by superior officers
from subordinated or lending by
- Misconduct
subordinates to superior officers
o Transgression of some established
o Usurious lending
and definite rule of action more
o Willful failure to pay just debts or
particularly, unlawful behavior or
taxes Contracting loans of money
gross negligence by the public officer
o Pursuit of private business, vocation
implies wrongful intent and not mere
or profession without the permission
error of judgment
o Insubordination
must be such as to affect his
o Engaging in partisan politics performance of his duties as an
o Conduct prejudicial to best interest of officer and not only as affects his
the service character as a private individual
o Lobbying for personal interest or gain
in legislative hall and offices without o Related to and connected with
authority performance of official duties
o Promoting ticket sales in behalf of amounting either to maladministration
private enterprises or willful, intentional neglect and
o Nepotism failure to discharge the duties of
office
- General Rule: other grounds for disciplinary action
o No compliant against a civil service may not be connected with
official shall be given due course performance of official duties
unless it is in writing and subscribed if crime involves moral turpitude,
to and sworn to by complainant conviction by final judgment is
- Exception: required
o When complaint initiated by
disciplining authority it need not be o Committed during a prior term

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an elective official cannot be removed


for administrative misconduct While it is true that the charge of act of
committed during a prior term, his lasciviousness ay involve moral turpitude
re-election to office operates as but before the provincial governor and
condonation board may act and proceed against the
removal cannot extend beyond the public official, a conviction by final
term during which the alleged judgment must precede the filing of the
misconduct was committed administrative complaint.
if official is not removed before his
term of office expires, he can no
longer be removed on the theory Palma case not yet overturned.
that each term is separate from
other terms The nexus requirement has been greatly
the above rule has no application to watered down.
criminal cases pending against re- Carlots: One can bypass this nexus
elected public official neither does requirement. Charge the officer
it apply where the decision of administratively under the Ombudsman Law.
removal is served before the re- (Lastimosa v Vasquez)
election where it had become final
for his failure to appeal This is due to the fact that Constitutional
provision defining the powers of Ombudsman is
o Proved by substantial evidence very broad. Also, the Ombudsman law itself has
no nexus requirement as it does not distinguish
between cases WON nexus exists.
Remolana v CSC
Dishonesty is considered a grave offense
punishable by dismissal under EO292. The rule
is that dishonesty, in order to warrant dismissal Sarigumba vs. Pasok
need not be committed in the course of the
performance of duty by the person charged. Deputy Sheriff who enforced a writ outside
the region of the court which issued it and
Rationale: if a government officer/employee is went out of his way to unduly favor a party
dishonest or is guilty of oppression or grave in the case is guilty of misconduct which
misconduct, even if said defects of character warrants removal from office.
are not connected with his office, they affect
his right to continue in office. By reason of his The enforcement of the writ is irregular
office, he possess certain influence and power because as an officer of the court he ought
which renders the victims of his grave to have known that he cannot enforce the
misconduct, oppression and dishonesty less writ outside of the court's jurisdiction.
disposed and prepared to resist and counteract
his evil acts and actuations.
CSC v Lucas
Nera vs. Garcia
In grave misconduct, the elements of
corruption, intent to violate the law, and A clerk (appointive officer) was charged
flagrant disregard for established rule must be with malversation of funds belonging to a
manifest. These are not present in CAB as private entity, before he could file his
there was no proof of malicious intent which answer he was suspended without notice
can classify misconduct as grave, For touching and hearing. The suspension is not illegal
the ankles and thighs, Lucas was charged being merely preventive and not a
simple misconduct. punishment or penalty.

Palma vs. Fortich There is nothing improper in suspensions


pending investigation.
Mayor was administratively charged and
preventively suspended based solely on
The fact that funds misappropriated was
the filing of three separate criminal cases
private and not connected to the
for acts of lasciviousness.
performance of his duty will not affect the
validity of the suspension because when
The ground for filing the administrative
the charge is dishonesty, oppression or
complaint and suspension is misconduct in
grave misconduct, there is no need to
office.
establish its connection to the duty.

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o The purpose is to take out of the


Ochate vs. Deling discretion of the appointing authority
the matter of appointing a relative.
Mayor was convicted of slight physical
injuries and charged with illegal fighting;
subsequently an administrative complaint Laurel v CSC
was filed against him on the grounds of
neglect of duty and conviction by final The position of Provincial Administrator is not
judgment of crime involving moral primarily confidential as it belongs to the
turpitude. career service. Hence, it is subject to rule
against nepotism. Designation is included in
The suspension of the mayor on such the ban on nepotic appointments as it is a
grounds is not valid because the acts or temporary appointment. To exempt
omissions cannot be safely said to be designations would allow easy circumvention of
related to the performance of his official the law and render such prohibitions toothless.
duties and he does not have to be Mayor to
commit the offenses charged.
• Grounds for Disciplinary Action under
the Code of Conduct and Ethical
• Nepotism Standards
- Civil Service Decree prohibits all
appointments in the national and local - this code elucidates the State policy of
governments or any branch or promoting high standard of ethics and
instrumentality made in favor of a relative utmost responsibility in the public service
of the: - These are grounds for administrative
o Appointing authority; disciplinary action and w/out prejudice to
o Recommending authority; criminal and civil liabilities
o Chief of the bureau office; or o Directly/indirectly having financial
o Person exercising immediate and material interest in any
supervision over the appointee. transaction requiring the approval
of his office.
- This restriction is not applicable to the case o Owning/controlling or accepting
of a member of any family who, after his or employment in any private
her appointment, contracts marriage with enterprise regulated/supervised by
someone in the same office or bureau. his office.
o Engaging in private practice unless
- Relative: authorized
o Related within the third degree of o Recommending a person to any
either consanguinity or of affinity. position in a private enterprise w/c
Nepotism is a pernicious evil has regular/ pending transaction w/
impeding the civil service and his office unless mandated by law
efficiency of its personnel. or int’l agreement.
o Disclosing/misusing confidential or
classified information officially
known to him by reason of his
office
- Exemptions from operation of the rules of o Soliciting or accepting in/directly
nepotism: any gift or favor or anything
o Confidential employees w/monetary value in connection
o Teachers w/his office except:
o Physicians; and  Unsolicited gifts w/nominal
o Members of the AFP value
 Gift from family on a family
- Purpose of the prohibition: celebration
o to ensure that all appointments and  Nominal donations from
other personnel actions in the civil people w/ no transaction
service should be based on merit and w/his office
fitness and should never depend on  Donations from private
how close or intimate an appointee is orgs for
to the appointing power.

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humanitarian/artistic constitute an Investigating Committee in


purpose the DILG.
 Donations from gov’t to - The law on suspension or removal of public
gov’t entities officials should be strictly construed. Where
 Gifts/grants from foreign the DA is given only the authority to
gov’ts and Congress suspend and not to remove, it should not
consents
COMPLAIN BEFORE VENUE IMPOSED
o Obtaining/using any statement T AGAINST WHOM OF BY:
filed under this code for purpose ELECTIVE FILED: HEARING
contrary to morals and public OFFICIAL S,
policy OF: INVESTIG
o Unfair discrimination in rendering ATION:
public service
o Disloyalty to the Republic Province Office of Place OP
o Failure to act promptly on letters the where
and requests w/in15 days from President official
receipt (OP), renders
o Failure to process documents w/in decision or holds
reasonable time shall be office
o Failure to attend to anyone who final and
wants to avail himself of the executory
services of the office Highly OP, Place OP
o Failure to file statement of assets Urbanized decision where
and liabilities & disclosure of bus. City shall be official
Interests final and renders
o Failure to resign from private executory or holds
position w/in 30 days from office
assumption of public office when Independe OP, OP
conflict of interest arises or failure nt decision
to divest of interest w/in 60days Componen shall be
t City final and
executory
Administrative Investigation of
Componen OP, Governo
Elective Local Officials t City decision r
shall be
• Administrative offense
final and
- Every act or conduct or omission w/c executory
amounts to, or constitutes, any of the
grounds for disciplinary action, imposition
of suspension is valid although the Cities and OP, OP
aggregate thereof exceeds 6 months and Municipali decision
the unexpired portion of the official's term ties w/in shall be
as long as the suspension imposed for each MMIa final and
administrative offense and the successive executory
service of suspension does not exceed the
unexpired portion of the term of office. Municipalit Sanggunian Place Governo
(Salalima vs. Guingona) y g where r
Panlalawiga Sangguni
- Administrative Order 23 provides that n (SPanlal), an
administrative disciplinary cases filed appealable concerne
against elective local officials of provinces, to the OP d is
highly urbanized cities, independent located
component cities, component cities and
cities and municipalities within Metro
ManiIa shall be acted upon by the OP, as Barangay Sanggunian Place Mayor
the Disciplining Authority (DA). g where
- The DA may act thru the Executive Panlungsod Sangguni
Secretary. Secretary of DILG is designated (SPanlun) an
as Investigating Authority (IA) who may or concerne
Sanggunian d is
g Bayan located
(SB),
decision
shall Geof*Golda*Reeza*Sandi
be
final and
executory
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be permitted to manipulate the law by


arbitrarily exercising the power to suspend • Preventive Suspension (PS)
in a manner that results in the removal of - PS may be imposed by the DA if officials
an elected official from office. (Salalima v. belong to the ff. LGUs:
Guingona) o Provinces
o Highly urbanized cities
• Initiation of Complaint o Independent component cities
- by any private individual or government o Cities and municipalities within MMIa.
officer or employee by filing a sworn - PS shall be imposed by the Governor if the
written complaint. official belongs to a component city but
- motu propio by the OP or any government only upon direct order of the DA and if the
agency authorized by law to ensure LGUs official is under formal administrative
act within their powers and functions. investigation by the OP.
- No PS shall be imposed within 90 days
• Filing of Complaint immediately prior to any local election.
- if official belongs to LGU within MMIa, o A PS imposed prior to the 90-day
complaint is filed w/the OP, Malacanang. period shall automatically be lifted
- If LGU outside of MMIa, complaint may be upon the start of the period.
filed with the Regional Director of DILG, - PS may be imposed:
who shall transmit the same to the DILG o at any time after issues are joined
Secretary within 48 hours from receipt. o when the evidence of guilt is strong
- DILG Secretary will then transmit the same o given the gravity of the offense there
to the OP within 48 hours from receipt. is great probability that the
- The governor must be furnished a copy in continuance in office of the
case LGU concerned is a component city. respondent could:
Metropolitan Manila Authority must be influence the witnesses or
furnished a copy in case LGU concerned is pose a threat to the safety and
a city or municipality w/in MMIa. The DILG integrity of records and other
must be furnished a copy in all cases. evidence.
- Any single PS shall not extend beyond 60
days. In case of several administrative
cases are filed, PS cannot exceed 90 days
• Notice and Filing of Answer within a single year on the same ground/s
- within 7 days after filing of complaint, DA existing or known at the time of the first
shall require official to submit verified suspension.
answer. answer shall be filed with OP, - Upon expiration of PS, official shall be
Malacanang, if LGU is within MMIa. deemed reinstated to office w/o prejudice
Otherwise, it may be filed with DILG to the continuation of the proceedings
Regional Director concerned. against him.
- Transmittal procedure in filing of complaint - Proceedings shall be terminated within 120
shall be followed. days from time he was formally notified of
- The complainant shall be furnished a copy case against him.
of the answer. o If delay in the proceedings is due to
his fault, neglect or request (other
• Preliminary investigation (PI) than the appeal duly filed), duration
- Within 48 hours from receipt of answer, the of delay shall be excluded in the
DA shall refer the complaint and answer to computation of the time of
the IA, who shall commence investigation termination of the case.
w/in 10 days from receipt. - Official shall receive no salary or
- Within 20 days from receipt of the compensation during PS but upon
complaint and answer, the IA shall subsequent exoneration and
determine WON there is a prima facie case reinstatement, his full salary, including
to warrant the institution of formal accrued emoluments shall be paid.
administrative proceedings.
o If IA finds no such prima facie case, it • Formal Investigation (Fl)
shall submit its recommendation to - Unreasonable delay to commence the Fl
the DA for the motu propio dismissal within the period prescribed in the
of the case. preliminary conference order by the
- No PI shall be imposed within 90 days person/s assigned to investigate shall be a
immediately prior to a local election.

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ground for administrative disciplinary administrative penalties or disabilities


action. imposed upon local elective officials in
- Fl shall be terminated by the IA w/in 90 administrative disciplinary cases, subject
days from start. terms he may impose in the interest of the
- Unreasonable failure to complete Fl shall service.
be a ground for administrative disciplinary
action. A.O. 23

• 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 Complaint
for such decision. Motu proprio
- Respondent and interested parties shall be
immediately furnished copies.
- Decision of the DA shall become final and Notice to file answer
executory after the lapse of 30 days from (answer filed)
receipt, unless a Motion for
Reconsideration (MR) is filed within the Refer to Inv. Authority for PI
period.
o Only 1 MR shall be allowed, except in
meritorious cases.
o Filing of MR shall suspend the dismissal Formal
running of the 30-day period. motu proprio Investigation
recommended Preventiv
• Appeal e
Decision suspensi
- An appeal shall not prevent a decision from
becoming final or executory. Disciplining
- When there is execution pending appeal, Authority
the official shall be deemed to have been Dismisses Motion for Recon
placed under PS during the pendency of an (once only)
Executio
appeal, if the event he wins such appeal. n
- In case appeal results in exoneration, the Pending
official shall be paid his full salary and all Appeal
Appeal
accrued emoluments during the pendency
of the appeal.
Executive
Clemency
• 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. Joson vs. Torres
o It shall not be a bar to the candidacy
Rules on removal and suspension of
of the suspended official provided he
elective local officials are more stringent
meets the qualifications for the
than those governing appointive officials.
office.
- Penalty of removal from office may be
When an elective official is removed or
imposed by order of proper court or the DA,
suspended, the people are deprived of the
whichever acquires jurisdiction first, to the
services of the person they had elected.
exclusion of the other.
o Removal as a result of administrative
Thus, suspension and removal are imposed
investigation is a bar to the
only after the elective official is accorded
candidacy of the removed official for
his rights and the evidence against him
any elective position.
strongly dictates their imposition.
• Executive Clemency Disciplinary Action Against Appointive
- In meritorious cases and after his decision Local Officials and Employees
has become final and executory, the
President may commute or remove

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• Investigation and adjudication of • An appeal shall not prevent the execution


administrative complaints against of a decision of removal or suspension. In
appointive local officials shall be governed case of exoneration, official or employee
by the Civil Service Law and other shall be reinstated to his position w/o loss
pertinent laws. of any rights pertaining to his office.

• Preventive Suspension • Disciplinary Jurisdiction of the CSC


- Local chief executives (LCE) may suspend
any official or employee under his authority - CSC has authority to administer the Civil
pending investigation for a maximum Service and the power to exercise quasi-
period of 60 days, if the charge involves judicial functions:
dishonesty, oppression or grave o It has the power to hear and decide
misconduct or neglect in the performance administrative disciplinary cases
of duly, or if there is reason to believe that instituted directly with it or brought
the respondent is guilty of the charge w/c to it on appeal.
would warrant his removal. o It has the power to enforce or order
- Upon expiration of PS, official shall be execution of its decisions, resolutions
deemed reinstated to office without and orders.
prejudice to the continuation of the
proceedings against him. - CSC shall decide upon appeal all admin
- If delay in the proceedings is due to his cases involving the imposition of a penalty
fault, neglect or request, the duration of of suspension for more than 30 days or a
delay shall be excluded in the computation fine exceeding 30 days' salary, demotion in
of the time of suspension. rank or salary or transfer, removal or
dismissal from office.
• Administrative Investigation
- In any LGU, admin investigation may be - CSC is an agency within purview of the law
conducted by any person or committee with respect to its employees. (Enrique vs.
authorized by the LCE. CA)
o Such person or committee shall
conduct hearings and submit their - Complaint may be filed directly with the
findings and recommendations to the CSC by a private citizen.
LCE within 15 days from the - CSC may hear and decide the case or it
conclusion of the hearings. may deputize any department, agency or
- Admin cases shall be decided within 90 official/s to conduct an investigation.
days from time when respondent was - Results of the investigation must be
formally notified of the charges. submitted to the CSC with the
recommended penalty or any other action
• Disciplinary Jurisdiction to be taken.
- The LCE may impose the ff. penalties:
o removal, - Heads of departments, agencies,
o demotion in rank, instrumentalities, provinces, cities and
o suspension for not more than 1 year municipalities shall have jurisdiction to
without pay, investigate and decide matters involving
o fine not exceeding 6 months' salary, disciplinary action against employees
o reprimand or under their jurisdiction.
o Investigations may be entrusted to a
o any other form of discipline.
regional director or similar officials.
- If the decision includes imposition of
- If penalty is suspension without pay for not
suspension for not more than 30 days or
more than 30 days, LCE's decision shall be
fine not exceeding 30 days' salary, decision
final.
shall be final. If not, it is appealable to the
o If heavier than suspension of 30
CSC.
days, decision of the LCE is
- Decision may be appealed first to the
appealable to the CSC.
department, with the agency concerned,
o CSC shall decide the appeal within 30
and then to the CSC.
days from receipt
- Pending appeal, it shall be executory
except when penalty is removal. Decision
• Execution Pending Appeal shall only be executory when confirmed by
the dept or agency head concerned.

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- An appeal shall not prevent a decision from • Mandamus is remedy to enforce an order of
becoming final or executory, and when the the CSC w/c has become final and
penalty is suspension or removal, the executory.
official shall be deemed to have been
placed under PS during the pendency of an • Summary procedure is no longer allowed in
appeal, if the event he wins such appeal. hearing and deciding cases before the CSC.
- Appeals, where allowable, must be made Sec. 40 of PD 807, which dispenses with
by the "party adversely affected" by the the conduct of an investigation and allows
decision immediate removal based on certain
grounds, was already repealed by RA 6654.
GSIS vs. CSC o Sec. 40 of PD 804 is unconstitutional
The authority of a tribunal or agency to to the extent that it deprives the
decide cases is inutile unless it also employee procedural due process.
includes the authority to execute its (Rosete vs. CA)
judgments, unless the law otherwise
provides. PROCEDURE IN ADMINISTRATIVE CASES
AGAINST NON-PRESIDENTIAL APPOINTEES
Mendez v. CSC
• Under PD 807 (Civil Service Decree)
This refers to the employee against whom
the admin case was filed.
• Commencement of Proceedings
The law does not contemplate a review of
- Admin proceedings may be commenced
decisions exonerating officers from admin
against a subordinate officer or employee
charges (meaning: complainants cannot
by:
appeal in the event the official charged is
o The head of the dept or office of
exonerated).
equivalent rank or head of LGU, or
chief of agency or regional director.
Remedy of appeal may only be availed of
o Or upon sworn written complaint of
when the employee charged is found guilty
of the charges. any other person.

CSC vs. Dacoycoy - The complainant shall submit sworn


statements covering his testimony and his
The above ruling was overturned when the witnesses' testimony, with his
SC held that the CSC had become a "party documentary evidence.
adversely affected" by the decision of the
CA w/c reversed the CSC's decision to - If on the basis of such papers, no prima
remove the employee charged. facie case is found, the DA shall dismiss
the case.
As an aggrieved party adversely affected
by the decision w/c seriously prejudiced the - If there is a prima facie case:
civil service, the CSC may appeal to the SC. o The DA shall notify the respondent of
the charges.
[The 2 cases were decided by the SC, in o He shall be allowed to answer within
different divisions, in the same year (1999). 72 hours from receipt of such notice.
The Mendez ruling was decided earlier.] o He shall indicate WON he elects a
formal investigation if his answer is
• CSC has no power to reconsider its decision insufficient for dismissal of the
which has become final and executory, charges.
even in the event of discovery that such o If his answer is found satisfactory,
judgment may be erroneous. the charges against him shall be
o Doctrine of finality of judgment dismissed.
provides that once a decision
becomes final and executory, it is • Formal Investigation
removed from the power and - Although no request for a formal
jurisdiction of the court w/c rendered investigation was made, one shall be
it. conducted if the merits of the case cannot
o This doctrine also applies to quasi- be judiciously decided based on the
judicial agencies. complaint and answer alone.

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- Investigation shall be held not earlier than - A Petition for Reconsideration shall be
5 days nor later than 10 days from receipt based ONLY on the ff:
of answer and shall be finished within 30 o Newly discovered evidence which
days from the filing of the charges. materially affects the decision
- The DA shall render the decision within 30 rendered.
days from the termination of the o Decision is not supported by the
investigation or submission of the report of evidence on record.
the investigator (must be submitted within o Errors of law or irregularities
15 days from the termination). prejudicial to the interest of the
- Direct evidence shall consist of the sworn respondent.
statements and documents submitted in Only 1 Petition for Reconsideration
support of the complaint and answer, and shall be entertained.
additional evidence which was unavailable
at the time of the filing of the pleadings o Under EO 26-A:
mentioned. o All contested cases under the Admin
o Respondent and complainant shall be Code shall be decided within 30 days
cross-examined on the basis of such from date of submission for
direct evidence. There may be resolution, unless a different period is
redirect and recross-examinations. provided for by special law.
- Both parties may choose to have counsel, o Where action is merely
require attendance of witnesses and make recommendatory to immediate
use of subpoena and subpoena duces superior or head of office, he shall
tecum. submit such recommendation within
- Investigation shall be conducted only for 20 days from date of submission of
the purpose of ascertaining the truth and the case for resolution.
without necessarily adhering to technical Approving officer shall have 10 days to
rules. decide the case.
- It shall be conducted by the DA or his o A case is deemed submitted for
authorized representative. resolution upon expiration of period
- The phrase "any other party" shall be for filing of memorandum, position
understood to be a complainant other than paper or last pleading required.
the head of the dept or office of equivalent o Every officer charged with resolution
rank, or head of LGU, or chief of agency or of the case shall submit to his
regional director. superior within 10 days ff. the end of
every month a sworn statement of
Casuela vs. Office of the Ombudsman disposition of cases.
The 5-day bar rule is conducting the admin o Only one MR shall be allowed, which
investigation is indispensable, and enables shall be decided within 15 days from
both parties to explore the possibility of date of submission for resolution.
clarifying their problems and accords the o Only opposition to such MR shall be
defendant therein adequate time to the only pleading allowed, apart from
prepare a suitable defense in case no the MR itself.
settlement is obtained. o Failure to submit such sworn
statement of disposition of cases
• Allowable Appeals shall cause the w/holding of the
- Appeals shall be made by the party salary of the officer concerned, until
adversely affected by the decision within 5 he complies.
days from receipt of the decision unless a
Petition for Reconsideration is seasonably Merit System Protection Board
filed, which shall be decided within 15 • Predecessor Merit Systems Board
days. - Creating Law: PD # 1409
- Notice of appeal shall be filed with the DA, o Composition:
which shall forward the same to the Commissioner
appellate authority within 15 days from 2 Associate Commissioners
filing the notice.
- Only the respondent can appeal from the - Appointing Power
decision of the MSPB. (Mendoza vs. CSC) o the Civil Service Commissioner (who
[The MSPB has been abolished]
serves as the Executive Officer)
- Qualifications: same as RTC judges

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- Removal: for cause as provided by law


MSPB was granted power of contempt.
- Renamed by: Administrative Code of 1987 Hence, it is a quasi-judicial agency.
o Composition:
However, (Rubenecia v CSC) provides that
Chairman
admin cases pending on appeal before the
2 Members
MSPB be brought directly or elevated to CSC
for final resolution. In effect, MSPB was
- Organization: part of the CSC
deprived of jurisdiction.
- Powers and Functions:
Carlots: Jurisdiction was vested on MSPB by
o hear and decide administrative cases
law (PD1409). Thus only law can confer or
involving officers and employees of
deprive courts and quasi-judicial agencies of
the civil service
jurisdiction (Pelaez v Auditor General).
decision is final
except: involving dismissal or
CSC can only reorganize. But when pursuant
separation form the service
to such, it ends up depriving a QJ agency of
(appealable to the CSC)
jurisdiction, then such cannot be valid.
o hear and decide cases brought by
employees aggrieved by the • Preventive Suspension
determination of appointing
authorities involving personnel - Preventive Suspension (for regular
actions and violations of the merit administrative investigations)
system o for civil service employees charged
o take cognizance of complaints with offenses punishable by removal
affecting functions of the CSC which or suspension
are unacted upon by other agencies
o administer oaths, issue subpoenas, - Kinds:
take testimony in any inquiry, punish
for contempt (see notes for comment o Pending investigation
on this) Imposed by whom: proper disciplining
o promulgate rules and regulations, authority
subject to approval of CSC, to carry
out the functions of the board Basis for imposition:
▪ When the charge involves
- the jurisdiction of the board is exclusive, dishonesty, oppression, grave
except for CSC jurisdiction to hear and misconduct, neglect in the
decide administrative disciplinary cases performance of a duty
instituted directly with it or on appeal (Sec ▪ If there are reasons to believe
9(1) of the Civil Service Decree) that the respondent is guilty of
charges which would warrant
• The powers of the CSC his removal from the service
- final arbiter over personnel action-
empowered to review the decisions of the Designation of a replacement is not a
MSPB requirement to give effect to the
- no power to review decisions exonerating preventive suspension
officers and employees
Duration
Rubenecia v CSC ▪ should not amount to a denial
of due process
The change instituted by CSC Res. 93-2387 ▪ cannot be for an indefinite
is valid. The functions of MSPB relating to period
the determination of administrative ▪ cannot be for an unreasonable
disciplinary cases were re-allocated to the length of time
Commission itself. These changes were ▪ should be co-equal with the
prescribed by the Commission to period prescribed for describing
streamline the operation of CSC which administrative disciplinary
required the simplification of systems, cases
cutting of red tape, and elimination of ▪ if case is decided in less than
unnecessary bureaucratic layer. 90 days, duration is less than
90 days

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▪ if case is decided in more than payment of salaries during


90 days, should be a maximum suspension.
of 90 days o Sec. 24 of the Ombusdman Act of
▪ if not a presidential appointee: 1989 (RA 6770) states that
must be automatically preventive suspension shall be
reinstated after the days from "without pay."
the date of suspension from
office o No compensation is due for the
▪ when the delay is due to the period of preventive suspension
fault, negligence or petition of pending investigation. Reasons:
the respondent, the period of Not receiving compensation even when
delay shall not be counted in exonerated is one of the sacrifices
computing the period of which holding a public office
suspension requires for the public good
Preventive suspension is authorized by
Preventive Suspension law so it is not unjustified
CSC Law 90 days
LGCode 60 days o An officer/ employee is allowed to
Ombudsman Law 6 months recover compensation for the period
Anti-graft Law 90 days of suspension pending appeal
PNP Law Until resolution of Requirements:
case ▪ the employee is exonerated
▪ suspension must be unjustified
o Pending appeal (not among the bases
Requisites: enumerated)
▪ Penalty imposed on the Reasons:
respondent is suspension or ▪ It is punitive
removal ▪ he punishment is considered
▪ Respondent has been illegal if the employee is
exonerated after review exonerated and the decision
- Purpose of Preventive Suspension finding him guilty is reversed
o To prevent the officer or employee
from using his position, and the o "But though an employee is
powers and prerogatives of his office considered under preventive
to intimidate or influence potential suspension, during the period of
witnesses, or tamper with records appeal in the event he wins, his
which may be vital in the suspension is unjustified because
prosecution. what the law authorizes is preventive
suspension for a period not
- Preventive Suspension is not violative of exceeding 90 days. Beyond that
the Constitution period, the suspension is illegal.
o Even before charges against him/her Hence, the employee is entitled to
are heard and s/he is given the reinstatement and full pay."
opportunity to prove his innocence, Does “full pay" mean for the entire
and the chance to file his answer to period of appeal, or just the excess
the administrative complaint over 90 days of the sum of the
o It is not a penalty, so it can be period of preventive suspension
decreed after charges have been pending investigation and appeal?
brought and under investigation
suspended officer or employee remains o Amount of award or compensation
entitled to the constitutional should not exceed the equivalent of 5
presumption of innocence since years pay, at the rate last received
his/her culpability must still be before the suspension was imposed
established
Gen. Principles on Preventive Suspension
- Right to Compensation during Preventive 1. PS is not a penalty
Suspension 2. There is no violation of due process if
o Sec. 52 of the present Civil Service one is preventively suspended with
Law (EO 292) has no provision for 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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o 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


• Preventive Suspension (for
administrative charges before the - Requirements for the application of this
Ombudsman) - RA 6770 (Ombudsman provision
Act of 1989) o that the accused is a public official,
whether:
- Who may suspend: appointive or elective official
o The Ombudsman permanent or temporary employee
o His/her deputy career or non-career
o that there be a pre-suspension
- Under what conditions: hearing
o evidence of guilt is strong (as to determine the validity of the
determined by the Ombudsman), and information
o any of the following: furnishes the court with a basis to:
▪ the charge involves dishonesty, ▪ suspend the accused and
oppression, grave misconduct proceed with the trial of the
or neglect in the performance case, or
of duty ▪ refuse the suspension of the
▪ the charge would warrant a accused and dismiss the case,
removal from the service or
▪ the respondent's continued ▪ correct any part of the
stay in office may prejudice the proceeding which impairs its
case filed against him validity, as when the accused
asserts, among others, the
- Who may be suspended: Officers under right to preliminary
Ombudsman's disciplinary authority: investigation, or that the crime
o All elective and appointive officials of imputed does not constitute a
the government, including members specific crime warranting the
of the cabinet mandatory suspension, or that
o Excluding: the information is subject to
officials which may be removed only by quashal based on Rule 117
impeachment ▪ it is the ministerial duty of the
members of Congress court to issue the order of
the Judiciary preventive suspension once the
validity of the information's
- How is preventive suspension effected: established
o pending investigation ▪ that s/he be indicted under a
o duration: discretion of the valid information as
Ombudsman determined in the pre-
until the case is terminated suspension hearing
maximum of 6 months ▪ that the office from which s/he
▪ unless the delay in the is suspended is any office s/he
disposition of the case is due to might concurrently be holding,
the respondent's fault, and not necessarily the
negligence or petition particular office under which
▪ period of delay not included in s/he was charged
computing the 6-month period
▪ longer period of 6 months is to - Criminal prosecution is not necessarily
emphasize and implement the abated by an elective officer's reelection.
authority of the Office of the
Ombudsman over public • Preventive Suspension for Specific
officials and employees Public Officers
o without pay

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- Members of the PNP (under RA 6975) TO JUSTIFY …


o under Sec 47, if charged with a grave Evidence of guilt must It is enough that:
offense (penalty is 6 yrs and 1 day or be strong and 1. 1. there is
more) until the termination of the 1. the charge ag. the reasonable
case officer or employee ground to
o Civil Service Law and IRR applicable should involve believe that the
only insofar as not inconsistent with dishonesty, respondent has
RA 6975 oppression, grave committed the
misconduct or act or acts
- Local Elective Officials (under the Local neglect in the complained of;
Government Code, RA 7160) performance of
2. 2. evidence of
o 60 days max duty; culpability is
o this is because: 2. the charges should strong
respondent is elected by the people warrant removal 3. 3. gravity of the
may be ordered only after "issues are from service; or offense so
joined" 3. the continued stay warrants; or
▪ all preliminary requirements in office of
4. 4. the
and exchanges have been respondent would continuance in
completed prejudice the case office of the
▪ respondent had already filed filed against him. respondent
his counter-affidavits to the could influence
affidavits of the complainant the witnesses or
and the complainant's pose a threat to
witnesses the safety and
integrity of the
- Presidential Appointees and Other Elective records and
Officials other evidence
o should not be unreasonably long (due
process questions) • Removal and Suspension
right to hold office after acquittal would Distinguished
have been nullified
term could be shortened or appointee Removal Suspension
could be removed without cause Duration Permanent Temporary
established after hearing in the disenfranchiseme stoppage of
guise of preventive suspension nt an official
electorate entitled to the services of power and
the elective official of their choice pay but if
would be inflicted with injustice suspension is
when the s/he is unable to perform to continue
his/her functions until the end
o Constitutionality of preventive of the case,
suspension of a member of Congress might be a
is still debatable virtual
removal since
Hagad v Gozo-Dadole the
prosecution
The 6-month preventive suspension might take
without pay under the Ombudsman longer than
Act is not repugnant to the 60-day the
preventive suspension in the LGC respondent's
term of office
Preventive suspension Preventive Nature Administrative Not a penalty
under Ombudsman Act suspension under penalty Only a
LGC measure of
protection to
insure proper
and impartial
conduct of an
investigation

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Time of At the During the Disqualification for employment in the


Impositio termination of period of government service for one year
n the investigation investigation Disqualification for reemployment in a
or the final Even before class or position in the government
disposition of the charges are service if the resignation contains
case heard such condition
o Administrative penalty is not a bar to
the conviction under general penal
• Schedule of Administrative Penalties laws

- The CSC has classified penalties for


administrative offenses under PD 807and - Removal of Administrative Penalties
RA 6713: o President may commute or remove
o Grave Offenses administrative penalties or
Dismissal disciplinary cases
Suspension from and 1 day to 1 year Requirements:
for first offense, dismissal for ▪ In meritorious cases and
second offense ▪ Upon recommendation of the
o Less Grave Offenses CSC
Suspension from 1 month and 1 day to Subject to terms and conditions
6 months for first offense, dismissal President may impose in the
for second offense interest of the service
o Light Offenses
Reprimand for the first offense, THE SANDIGANBAYAN
suspension from 1 day to 30 days
• Jurisdiction of the Sandiganbayan
for the second offense, and
dismissal for the third offense
- Subject Matter
o PD 1606, amended by RA 7975 and
- Imposition of Special Penalties
o Offenses under PD 807 RA 8249
o violations of RA 3019 (Anti-Graft and
Forced resignation instead of dismissal
Transfer, demotion or fine instead of Corrupt Practices Act) and RA 1379
suspension from 1 month and 1 (Forfeiture of Unlawfully Acquired
day to 1 year Property)
Fine instead of suspension from 1 day o crimes committed by public officers
to 30 days and employees under Title VIII of the
o Offenses under RA 6713 RPC
Only one penalty imposed for each o other offenses or felonies committed
case involving one or more charges by public officers and employees in
or counts relation to their office where the
penalty prescribed is
- Determination of Penalties to be imposed higher than prision correccional or
o Aggravating and mitigating imprisonment of 6 years
fine of P6000
circumstances may be considered
civil and criminal cases filed pursuant
o If found guilty of two or more charges
to E01, E02, E014, and EO 14-A
or counts, penalty imposed should be
for the most serious charge or count
- Persons
and the rest are considered
o PD 1606 sec 4(a) and (b)
aggravating circumstances
in general, SG 27 or higher
for other government officers, check
- Accessory penalties
enumeration in pages 462-463
o Dismissal
private individuals charged as co-
Cancellation of eligibility
principals, accomplices, or
Forfeiture of leave credits
accessories
Forfeiture of retirement benefits
Disqualification for reemployment in
the government service • Exclusive original jurisdiction of
o Forced resignation ordinary courts (RTC, MTC)
Forfeiture of leave credits
Forfeiture of retirement benefits - When none of the accused are:

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o occupying SG27 or higher positions


o 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 • Officials subject to Ombudsman
functions of a public officer: disciplinary authority
o must be direct relation between the
crime and the office - All elective and appointive officials
o offense cannot exist without the o Including:
public office Members of cabinet
LGUs
- SB has exclusive appellate jurisdiction over GOCCs and subsidiaries
RTC decisions in exercise of: o Excluding:
o Original jurisdiction officials removed by impeachment
o Appellate jurisdiction members of Congress
members of the Judiciary
The Ombudsman
• Only Office of the Ombudsman may
• Powers, Functions, and Duties of the
investigate officials removable by
Ombudsman
impeachment
- Investigate (motu proprio or upon
complaint by any person) any apparently
• By Impeachment
illegal, unjust, improper, or inefficient act
or omission of any public official,
- Meaning
employee, office or agency
o a method of national inquest into the
- Direct any such official conduct of public men
o to perform, or expedite any act or
- Purpose of impeachment
duty required by law or
o to protect the people (the State) from
o to stop, prevent and correct any
official delinquencies or
abuse or impropriety
malfeasances
o not the punishment of the offender
- Direct the officer concerned
o to take appropriate action against a o penalties are incidental to the
public official or employee at fault protection of the people
and
o to recommend his: - How removed:
o impeachment for and
removal
suspension o conviction of impeachable offenses
demotion
fine - Impeachable offenses
censure o culpable violation of the constitution
prosecution o treason
o and to ensure compliance of the o bribery
above o graft and corruption
o other high crimes
- Determine the cause of inefficiency, red o betrayal of public trust
tape, mismanagement, fraud and
corruption and make recommendations for - Officers removable by impeachment
their elimination and the observance of o President
high standards of ethics and efficiency o Vice-President
o Members of the Supreme Court
Tapiador v Ombudsman o Members of the Constitutional
Commission
The Ombudsman has no power to directly o The Ombudsman
dismiss Tapiador from the BID. Under the
Constitution, the Ombudsman can only - Procedure for impeachment
recommend the removal of an erring public o House of Representatives initiates
official, to the official concerned. the case

Geof*Golda*Reeza*Sandi
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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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o Senate sits as the court for trial of occupant who Right to


the case would lose his security of
position Post tenure does
- Liability of convicted officer subsists and not exist in a
o Removal from office occupant is non-existent
o Disqualification to hold any office merely office
o Liable and subject to criminal separated
prosecution, trial, and punishment
Manalang vs. Quitoriano
• By Abolition of Office
M, the director of a bureau which was
abolished claims that he was illegally
- Who has the power to abolish
removed by virtue of failure to appoint him
o General Rule:
head of the new office which replaced the
Congress may abolish, without
abolished bureau.
infringing upon the rights of
employees or officers affected
There has been no removal because M was
o Exception:
never the director of the new office. The
President, when power is delegated to new office is separate from the old one, as
him/her the law abolishing the old office and
LGU, when power is delegated to it creating the new one allowed the "transfer"
People, when amending the (which connotes a separate and distinct
Constitution office) rather than "retention' of qualified
personnel.
- When to exercise the power Eugenio v CSC
o anytime, even when someone is
occupying the office
o no deprivation of right of incumbent CSC has no power to abolish the CESB. It
because s/he has no contractual right cannot be disputed that as the CESB was
or property interest in the office created by law, it can only be abolished by the
acceptance of office is with the legislature. This follows an unbroken stream of
understanding that it may be rulings that the creation and abolition of public
abolished anytime offices is primarily a legislative function.
tenure of office is not affected by the
Constitutional prohibition against
From its inception. the CESB was intended to
the impairment of Contracts
be an autonomous entity, albeit
o security of tenure (no removal except
administratively attached to CSC. By said
for cause) does not protect them attachment, CESB was not made to fall within
from abolition, except if there is a the control of CSC for its reorganization. The
provision prohibiting the abolition of purpose of attaching a functionally inter-related
the position government agency to another is to attain
"policy and program coordination."
- What constitutes abolition
o intention to do away with it wholly
and permanently - Abolition must not constitute removal
o not when the position is the same without cause
one formerly held but bearing a o valid exercise of power of abolition
different name made in good faith
o removal, which is ousting from office absence of political or personal
before the expiration of the term and motivation (there is some
implies the existence of the office reasonable ground for abolishing
after the ouster the position)
not implemented in violation of law
- Removal from office and termination by o exception to valid exercise of power
abolition distinguished to abolish
- done in bad faith
Removal Abolition
Effect There is an No more
office with an occupant - Effect of a valid and bona fide abolition of
office

Geof*Golda*Reeza*Sandi
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C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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o denies to an incumbent right to


security of tenure The creation of a new office requiring huge
outlay shortly before the abolition of their
positions shows that the excuse of
Basic Principles in Abolition
economy and efficiency is unimpressive.
1. Congress can create offices (plenary
power)
Fernandez v Sto. Tomas
2. Corrolarily, it has plenary power to
abolish
CSC had legal authority to re-arrange,
3. It is subject to 2 limitations
merge, and rename some of the admin
a. Can’t abolish consti offices
Offices, and allocate/reassign certain
b. Consti prescription on
functions from one Office to another. This
security of tenure
was for "effecting changes in the
Termination Through Reorganization
organization to streamline the CSC’s
- Definition operations and improve delivery of service.
o alteration of the existing structure of CSC has not abolished any public office as
government offices or units therein, that term is used in the law of public
including the lines of control, officers. None of the "changes in
authority and responsibility between organization" introduced carried with it or
them to: necessarily involved the termination of the
promote greater efficiency relationship of public employment between
remove redundancy of functions the CSC and any of its officers and
effect economy employees
make it more responsive to the needs
of its public clientele Buklod v Executive Secretary

- May result in loss of position through: Gen Rule: the President has no authority to
o removal or reorganize the executive department.
o abolition of office
Exceptions: as far as bureaus, agencies or
- Validity of reorganization offices in the executive department are
o examples: concerned, the President’s power of control
may be required by law independently may justify him to:
of constitutional authorization 1. inactivate the functions of a
must be based on a valid purpose particular office
must not result in removal without 2. certain laws may grant him the
cause in violation of right to broad authority to carry out
security of tenure reorganization measures.
a finding of reorganization in bad faith
must be supported by substantial Gen Rule: A reorganization is carried out in
evidence (good faith is presumed) good faith if it is for the purpose of
similarity of functions of old office and economy or to make bureaucracy more
new office is bad faith efficient. In that event, no dismissal or
in reorganization, there is no removal separation actually occurs because the
of incumbent position itself ceases to exist. And in that
case, security of tenure would not be
Briones vs. Osmena, Jr. Chinese Wall.

The CFI declared that the abolition by the • By Conviction of a Crime


Municipal Board of the positions in the - Under the RPC, the conviction of a crime
Office of the City Mayor were made without carries with it the penalties of perpetual or
the approval of the Department Head as temporary absolute/special disqualification
required by a Circular and by EO 506. (Articles 30 and 31), even if the official was
in an elective position
The SC sustained the decision declaring the - if acquitted, should be reinstated
abolition of the positions null and void, - Under the Civil Service Decree (Section
because of the falsity of the grounds 36(10]), conviction of a crime involving
(economy and efficiency) given by the MB moral turpitude is a ground for disciplinary
when it abolished the office, such that the action.
abolition was a subterfuge for their
removal without cause.

Geof*Golda*Reeza*Sandi
“ ______________________________________” 92
C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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People vs. Consigna o Person pardoned may apply for


reappointment to the office forfeited
Where the accused was acquitted of the
by reason of conviction but the
crime of malversation, reinstatement
fact of his having committed the
should follow.
offense should be taken into
consideration when evaluating his
As the court said, had he been convicted,
eligibility to the public office.
he would have been denied of the right to
o The civil liability of the person
reinstatement, therefore if the converse
pardoned which arose from the crime
were to take place (i.e. accused is
he has been convicted of is not
acquitted), he should be reinstated.
extinguished by pardon
This case is not to be considered as a
• By Recall
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 - Definition
powers extend only to the finding of guilt or o the procedure by which an elective
innocence of the accused, not the backwages office may be removed at any time
and reinstatement, remains controlling. Other during his term by the vote of the
remedies should be left to proper proceedings. 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
- What constitutes conviction effective speedy for the removal of
o As appearing in constitutional and an official who is not giving
statutory provisions should be taken satisfactory service to the public, and
to mean conviction in a trial court. whom the (regardless of whether
o Court finding guilt beyond reasonable official, to his own perception, is
doubt followed by judgment discharging his duty to the best of his
upholding such finding abilities).
o A plea of guilty accepted by the o grounded on loss of confidence of the
court, together with sentence, electorate in their public official
amounts to conviction o political in nature, not the exercise of
o Lack or absence of proof beyond a judicial function.
reasonable doubt in a criminal case o source of power in a republic is the
does not mean the absence of other people, therefore they have the
evidence which may be deemed power to remove their officials.
adequate in civil cases
(preponderance of evidence) or - Recall of local elective officials
administrative proceedings o Exercised by the registered voters of
(substantial evidence). a local government unit where official
belongs
- Effects of Pardon
o May be initiated by a preparatory
o Pardon granted after conviction recall assembly (PRA) found in every
erases the penalties and legal province, city, district and
disabilities of an individual and municipality
restores a person to his civil rights Composition
Does not restore the right to public ▪ Provincial level:
office unless expressly restored by  Mayors,
the pardon  Vice mayors,
▪ Must be stated in express,
 Sanggunian members
explicit and positive language, of municipalities and
and cannot be merely inferred component cities
▪ Pardon is grounded on the ▪ City level:
person's innocence
 All youth barangay
However, eligibility for appointment to
members,
the same office is restored
 Sangguniang barangay
members in city

Geof*Golda*Reeza*Sandi
“ ______________________________________” 93
C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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▪ Legislative district level In a public and conspicuous place


 Where Sangguniang For not less than 10 days nor more
Panlalawigan members than 20 days for purposes of
elected by district: All verification
elective municipal
officials in district Upon the lapse of period, COMELEC or
 Where Sangguniang its representative shall announce
Panlungsod members acceptance of candidates to the
elected by district: All position and prepare the list of
elective barangay candidates including the name of
officials in the district the official sought to be recalled
▪ Municipal level
 all punong barangay o COMELEC shall set the date of the
and Sangguniang election, after filing of resolution or
barangay members in petition not later than
the municipality 30 days in the case of barangay, city
and municipal officials
o May be initiated by registered voters 45 days in the case of provincial
of the local elective official subject to officials
recall
- Effectivity of recall
- Process of recall o Upon the election and proclamation
of a successor who garners the
o Initiation by: highest number of votes.
Majority of PRA members may convene o If official sought to be recalled wins,
in a public place and initiate a he shall continue in office.
recall proceeding against elective
official - Prohibition from resignation
▪ recall of provincial, city, or o Elective local official sought to be
municipal officials must be recalled shall not be allowed to
initiated through a resolution resign while recall process in
adopted by majority of all PRA progress.
members in a session called for
that purpose - Limitations on recall
25% of the total number of registered o may be conducted only once (1)
voters in the LGU concerned (those during the term of the elective
who voted when the official sought official's term of office
to be recalled was elected) may o no recall within 1 year from date of
petition for the initiation of a recall assumption of office
o no recall 1 year immediately
o a written petition for recall must be preceding a regular local election
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

o filed before the COMELEC

o COMELEC or its duly authorized


representative shall cause
publication of the petition

Geof*Golda*Reeza*Sandi
“ ______________________________________” 94
C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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RECALL CHART

Resolution of Petition for Recall


PRA by voters

Majority of PRA Signed by 25%


of registered voters

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 & Confidence affirmed


Proclamation & official continues in
Of Successor office

NOTE: RA 9244 – ABOLISHED PRA


Hence, recall may be initiated by petition.

Geof*Golda*Reeza*Sandi
“ ______________________________________” 95
C2005 PUBLIC OFFICERS AND ELECTION LAW REVIEWER
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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

Geof*Golda*Reeza*Sandi