LAW ON PUBLIC OFFICERS (Slides by Atty. F.

Gujilde)

Continuation
What is qualification?
Endowment that fits one for office
Act which a person is required by law to do
before assuming office like oath taking
There must be rational connection between
the requirements and duties.
Who prescribes qualification?
Congress
prescribes
eligibility,
qualifications, and disqualifications and
provide for methods of filling offices, subject
to constitutional limitations.
GENERAL QUALIFICATIONS:
Citizenship: Only citizens can apply or take
civil service examinations; Aliens cannot
hold office, either appointive or elective
Residence: synonymous with domicile;
imports intention to reside in one place;
personal presence in that place; conduct
indicative of such intention
Education: for appointive positions only
Civil Service
Required in appointive positions
CS eligible is prioritized over a non-eligible
for appointment to any vacant positon even
in a temporary capacity
When
should
a
public
officer
possess
qualifications?
It depends upon the Constitution or stature.
But generally, at the time of election,
appointment or assumption
If qualification is not specified with
reference to the time of election, it refers to
qualification to hold office rather than to be
elected to it.
Thus, disqualification existing at the time of
election may be removed before induction
to office or before the term of office begins.
Facts:
Frivaldo won as governor but was
disqualified by COMELEC for being an alien.
Thus, Lee was proclaimed at 830 pm on June
30, 1995. But at 2pm of the same day,
Frivaldo
re-acquired
his
Philippine
citizenship.
Lee contends that even if Frivaldo reacquired his citizenship, he is still
disqualified because citizenship is a
condition precedent to filing of candidacy.
Held:
Citizenship is required only at the time of
proclamation and at the start of term of
office. (Frivaldo v. COMELEC)
Facts:
Sec. 36(g) of the Dangerous Drugs Act of
2002 requires all candidates for public office
whether appointed or elected both in the

national or local government to undergo a

mandatory drug test.
The
COMELEC
issued
a
Resolution
prescribing the rules and regulations on the
mandatory drug testing of candidates for
public office in connection with the May 10,
2004 national and local elections.
It further says no person elected to any
public office assumes office without
mandatory drug test.
Petitioner contends that Pimentel, a
candidate for Senator, says the law and
resolution are unconstitutional because they
add to the senatorial qualifications set forth
in Article 6, Sec. 3, 1987 Consti.
Held:
Sec. 36(g) of the DDA of 2002 and COMELEC
Reso No. 6486 are both unconstitutional
because they infringe on the constitutional
definition of qualification or eligibility
requirements of senatorial candidates.
(Pimentel v. COMELEC)
Facts:
RA 4421 requires all candidates to post
surety bond equivalent to 1 year salary of
the position sought. Thus, the COMELEC
required candidates for President, VP,
senators and congressmen to post a surety
bond from a surety company acceptable to
it in the amount of P60,000, P40,000 and
P32,000, respectively.
Held:
It constituted property qualification which is
contrary
to
the
Constitution.
It
is
inconsistent with the Republican system and
the principle of social justice. (Maquera v.
Borra)
Disqualification
Conviction of the crime of malversation of
public funds
Impeachment
Being an ecclesiastic
Congress cannot add DQs than what is
provided for in the Constitution.
Property in the form of cash bond (Maquera
v Borra)
Lifestyle in the form of negative drug test
results (Pimentel v COMELEC)
Effects of pardon under the RPC
Article 36. A pardon shall not work the
restoration of the right to hold public office,
or the right of suffrage, unless such rights
be expressly restored by the terms of the
pardon.
A pardon shall in no case exempt the culprit
from the payment of the civil indemnity
imposed upon him by the sentence.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

Pardon does not automatically reinstate, it

merely restores eligibility for appointment
Facts:
An Asst. Treasurer was convicted for estafa
and ordered to pay at least P4000. She
moved to reconsider her conviction during
which
she
was
extended
absolute
presidential pardon which she accepted. She
thus argued the pardon wiped out her crime
and she should be reinstated without need
to re-apply and paid full back wages. She
also refused to pay the fine.
Held:
Pardon does not ipso facto restore a
convicted felon to the office necessarily
relinquished or forfeited by reason of
conviction although it restores her eligibility
for appointment to that office.
Pardon merely removed her disqualification.
She must re-apply. That her conviction did
not acquire finality when she was extended
pardon is of no moment, because pardon
presupposes a crime was committed.
(Monsanto v. Factoran)
Except: when acquittal is based on
innocence.
Facts:
Garcia was administratively charged with
dishonesty and criminally charged with
qualified theft due to loss of telegraph poles.
But he was acquitted based on innocence in
the criminal case.
Held:
If acquittal in criminal case is based on
innocence, acquittal in administrative case
follows. Thus, he should be reinstated and
paid back wages because the separation is
null and void. (Garcia v. COA Chairman)
Authority of the CSC to approve appointment is
limited to inquiry
Facts:
The CSC voided the appointment of Jordan
and replaced him with Borja who it
considers more qualified.
Held:
The authority of the CSC is limited to
determine whether the appointee possesses
appropriate civil service eligibility and other
qualifications. The authority to inquire
qualification does not include the power to
replace the choice of the appointing
authority as it constituted encroachment.
(Central Bank v CSC)
Even if there is evidence one possesses better
qualification than the other
Facts:

The CSC replaced Lapinid with Junsay

because the comparative evaluation sheets
show Lapinid got 75 while Junsay got 79.5.
Held:
Appointment is discretionary on the part of
the appointing authority. The authority of
the CSC is limited only to inquire whether
the appointee possesses qualifications
required by law. If the appointee does, the
CSC has no other choice but approve the
appointment. (Lapinid v CSC)
The duration of authority of the CSC
terminates after the inquiry
If the CSC finds the appointee is qualified, it
must approve. Otherwise, it disapproves.
It becomes functus officio- an officer or
agency whose mandate ended because the
date expired and the purpose for which it
was created was accomplished.
It mostly refers to lack of authority to rehear
a ca se after it has rendered judgment, they
are void of office. (Luego v CSC)
Appointment and designation are separate and
distinct
Facts:
Sevilla was Engineer of one city, but he was
also designated Acting City Engineer of
another city. Later, however, another was
appointed in a permanent capacity to the
position he was designated.
Issue:
Can
he
challenge
appointment?

the

permanent

Held:
No. His designation in an acting capacity
merely added his functions. It does not
confer security of tenure. (Sevilla v Santos)
Except: when the appointment is used in it
general sense, it includes designation.
Facts:
A retiree wanted to base his retirement
benefits on a designated position because
the salary is higher.
Held:
The law that sets the highest basic salary
rate as basis for computation did not intend
to distinguish between appointment and
designation.
Because it includes the highest salary rate
compensation for substitutionary services
or in an acting capacity. (Santiago v COA)
Net-in-rank rule is discretionary on the part of
the appointing authority.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

Facts:
The Customs Collector I was promoted as
Customs Collector III. The Customs Collector
II protested on the ground that he was the
person next-in-rank.
Held:
It is not mandatory that the person next-inrank is entitled to promotion. It only means
he is the first to be considered. (Santiago, Jr.
v. CSC)
Nest-in-rank rule applies only to promotions
Facts:
The positions of permanent public health
workers were abolished and new position
were created. Pursuant to the next-in-rank
rule, they insist appointment to the
available positions after reorganization, not
the new applicants.
Held:
The next-in-rank rule specifically applies
only to promotions and not to positions
crated
in
the
course
of
a
valid
reorganizations. (Panis v CSC)
Appointment is not complete if the appointee
refuses to accept and assume the office
Facts:
A judge of one judicial district was
appointed to another judicial district but he
refused. Despite his refusal, another was
appointed in his original district.
Held:
Appointment is the sole act of the
appointing authority while acceptance is the
sole act of the appointee. Without
acceptance in the form of assumption, the
appointment is not complete. (Borromeo v.
Mariano)
Preventive suspension does not require prior
notice and hearing because it is not a penalty.
Facts:
Carabeo was OIC Treasurer of Paranaque
who was charged with unexplained wealth
which was not declared in his SALN by
reason of which he was placed under
preventive suspension without prior notice
and hearing.
Held:
Prior notice and hearing are not required in
preventive suspension because it is not a
penalty but a mere preliminary step in
investigation. (Carabeo v CA)
Scope of authority includes all powers
necessary for the effective exercise of express
powers pursuant to the doctrine of necessary
implication

Facts:
A lawyer of the department of justice
detailed by the justice secretary to assist
the city fiscal with the same powers and
functions of an assistant city fiscal
investigated, signed and filed information
sheets.
The respondents moved to quash on the
ground of lack of authority.
Held:
The power to investigate, file and prosecute
criminal cases is inherent in the right to
assist. The duties of a public office include
all those:
Which truly lie within its scope;
Essential to accomplish the main
purpose of the office;
Relevant to accomplish the main
purpose even if they are merely incidental
and collateral.
If the law does not prohibit specific acts, all
related acts may be performed pursuant to
the doctrine of necessary implication. (Lo
Cham v. Ocampo, Canape v Jugo & People v
Dinglasan)
Kinds of authority
DISCRETIONARY- one where the law imposes a duty
upon a public officer and gives him the right to
decide how and when the duty shall be performed.
Discretion is a faculty conferred upon a
court or other official by which he may decide the
question either way and still be right. (Asuncion v De
Yriarte)
MINISTERIAL- one where its discharge by the officer
concerned is imperative and requires neither
judgment nor discretion on his part. (Lamb v Phipps)
A discretionary act cannot be compelled by
mandamus
Facts:
A stall was ordered closed by the mayor due
to violations and arrears. The stall owner
paid the arrears and compiled with
conditions but the mayor still refused to reopen.
Held:
The mayor cannot be compelled because
the
grant
of
business
licenses
is
discretionary act on his part in the exercise
of police power and for reasons of public
policy and sound public administration.
(Aprueba v. Ganzon)
Except: where there is grave abuse of
discretion, manifest injustice, palpable
excess of authority equivalent to denial of
settle rights and there is no other plain,
adequate or speedy remedy.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

Facts:
A civil case between the PCGG and sps
Romualdez and their dummies to recover
shares of stock is pending with the SB. A
company intervened, claiming ownership of
the shares. But the intervention was denied
because it will unduly delay the case,
among others.
Held:
The grant of intervention is a discretionary
act of the court that cannot be compelled by
mandamus.
But
since the
company
established legal interest in the matter at
litigation, the denial of intervention based
on flimsy grounds amount to grave abuse of
discretion. As such, mandamus lies against
the discretionary act of granting or denying
the motion to intervene. (First Phil. Holdings
v SB)
Note:
The writ is issued to compel the exercise of
discretion, but not the discretion itself.
RIGHTS
-

AND PRIVILEGES OF PUBLIC OFFICERS

Right to office
Right to compensation
Presidential immunity from suit
Doctrine of official immunity
Preference in promotion
Leave of absence
Retirement pay

Right to Office
The right to office of an incumbent does not
depend on any contract.
It creates no contractual relation between
holder and the public.
It exists by virtue of some law.
It generally entitles holder to compensation.
Right to compensation
Salary- personal compensation provided to
be paid to him for his services, and it is
generally a fixed annual, or periodic
payment depending on the time and not on
the amount of services he may render.
Salary vs. Wages- salary is given to officers
of higher degree of employment than those
to whom wages are given.
Salary is interchangeably used with
compensation.
How to establish a right to compensation
The officer must show that he is the officer
de jure either by:
o
Lawful appointment
o
Election
o
Qualification
The GR is where there is a de jure officer,
the de facto officer, during his wrongful
incumbency, is not entitled to the

emoluments attached to the office, even if

he occupied the office in good faith.
But where the officer de jure assumed a
lower position under protest, he is entitled
to back pay differentials to avoid double
compensation.
A de facto officer cannot be made to
reimburse funds disbursed during his term
of office because his acts are valid as those
of a de jure officer.
As a de facto officer, he is also entitled to
emoluments for actual services rendered,
provided there is no sitting de jure officer.
(Sampayan v Daza)

Constitutional prohibitions on salaries

Prohibition against self-serving legislation
Sec. 10, Art. VI, 1987 PH Const.
Prohibition against self-serving approval
Sec. 6, Art. VII, 1987 const.
Prohibition against violation of independence
Sec. 10, Art. VIII, 1987 PH COnst
Back wages are awarded for the period of
suspension or dismissal if it is unjustified and
the employee is found innocent of the charge
Facts:
EE was suspended and dismissed for grave
misconduct and dishonesty. But he was
found innocent of the charges. The finding
of dishonesty was downgraded to violation
of reasonable office rule for failure to record
attendance
which
is
punishable
by
reprimand only.
Held:
The 2 conditions for award of back wages
are met. One, innocence. Two, suspension or
dismissal is unjustified. (CSC v Cruz)
Presidential immunity from suit
The 1987 Constitution has not reproduced
the explicit guarantee of immunity under
the previous Constitution.
But presidential immunity during tenure
remains as part of the law.
Once out of office, even before the end of
term, immunity is lost.
Its purpose is to assure the exercise of
presidential duties and functions is free from
any hindrance or distraction.
But the privilege may be invoked or waived by
the president only.
Facts:
Cory Aquino filed a criminal case for libel
against Beltran who wrote she hid under her
bed at night at the height of the coup.
Beltran argued she cannot file a criminal

4|Page

LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

case during her incumbency because

presidential immunity from suit includes
disability to sue.
Held:
Privilege of immunity from suit pertains to
the president alone by virtue of the office
and may be invoked only by the holder of
the office and not any other person in his or
her behalf. (Soliven v Makasiar, Beltran v
Makasiar)
Doctrine of official immunity
Error in good faith is covered
immunity

by

official

Facts:
Imported film scrap was found to be an
oriented
fiber
which
importation
is
prohibited. Customs officials withheld the
release, pending advice from the BOI which
took years before it allowed release. One of
them was sued for damages because the
delay cost the importer business losses.
Held:
The official is not personally liable because
he acted in good faith. Even if he erred, he
is not liable because the damage did not
result in injury to the importer. (Farolan v
Solmac)
Honest mistake in the interpretation of
ordinance is covered by immunity
Facts:
An ordinance authorized the treasurer to ask
thresher operators who apply for permit to
donate 1% of all threshed palay. Thus, he
prepared an agreement. The operator who
did not sign was refused payment of license
fee and renewal of permit. It turned out
however that the 1% is optional.
Held:
They acted within their authority pursuant
to their honest interpretation of the
ordinance. The error does not amount to
bad faith hence they are not liable for
damages. (Tuzon v CA)
Preference in promotion.
There is no mandatory nor peremptory
requirement in law that person next-in0rank
are entitled to preference in appointment.
But they would be among the first to be
considered for the vacancy, if qualified.
If the vacancy is not filled by promotion the
same shall be filled by transfer or other
modes of appointment. (Taduran v CSC)
Leave of absence
Right to vacation leave
At least 6 months continuous, faithful and
satisfactory service.

Entitled the employee to a 15-day vacation

leave of absence with full pay, exclusive of
Saturdays, Sundays and holidays.
For each calendar year of service.
Right to sick leave in addition to vacation leave
At least 6 months continuous, faithful and
satisfactory service
Entitles the ee to 15-day sick leave of
absence with full pay, exclusive of Saturday,
Sundays and holidays
For each calendar year of service
On account of sickness of the ee or any
member of his immediate family.
Retirement Pay
Pensions: regular allowances paid to the
retiree in consideration of services rendered
or in recognition of merit, civil or military.
Gratuity: a donation, an act of pure liberality
of the State.
Pension is an act of justice while gratuity is
an act of generosity.
Retirement
laws
should
be
liberally
construed in favor of the retiree because
they are intended to provide sustenance for
the retiree, and even comfort, when he has
no longer has the stamina to continue
earning his livelihood. (Santiago v COA)
Presumption of good faith and regularity in the
performance of duties
Even if the withholding of imported goods
turned out to be improper, the public officer
is not personally liable because his act
enjoys presumption of good faith and
regularity.
Even if the public officer erred in the
interpretation of ordinance resulting in the
delay of issuance of permit and business
losses, he is not personally liable if the
interpretation is honest although erroneous.
Error in the exercise of authority is covered by
immunity provided it is done within the scope
of authority in good faith, without willfulness,
malice or corruption.

Facts:
The results of a horse race was nullified by
the Commission on Races after it. The
winners claimed prizes and losers were
reimbursed of the amount of their bets. It
turned out however that it did not have the
authority to nullify the results of the race.
Held:
Honest belief that it had the power of
control is good faith. (PRC v Bonifacio)
The presumption of regularity may only be
rebutted by evidence so clear, strong and
convincing as to exclude all controversy.
Absent such, the presumption must be
upheld.

5|Page

LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

The burden of proof to overcome the

presumption lies on the one contesting the
same. (Pan Pacific Industrial Sales Co., Inc.)

Absence of essential elements of the crime

charged does not bar administrative liability
pursuant to the three-fold liability rule.
Facts:
A stenographic reporter charged the NLRC
Chairman with sexual harassment. The
Chairman argued the acts complained of do
not constitute sexual harassment because
the essential elements of demand for sexual
favor and made as a pre-condition to
employment or promotion were not alleged.
Held:
Administrative sanctions shall not be a bar
to prosecution in the proper courts for
unlawful acts of sexual harassment. The
offenders
culpability
is
not
to
be
determined solely on the basis of crime
charged, because he is charged with the
administrative offense, not the criminal
infraction, of sexual harassment. It is
enough that a substantial evidence to
support the administrative charge is found.

Kinds of Liability
Nonfeasance- neglect or refusal, without
sufficient cause, to perform an act which it
was the officers legal obligation to the
individual to perform. This is omission of
duty.
Misfeasance- or negligence, failure to use, in
the performance of a duty owing to the
individual, that degree of care, skill and
diligence which the circumstances of the
case reasonably demand. This is improper
act.
Malfeasance- acts without any authority,
excess, ignorance or abuse of power. This is
illegal act.
Test to determine if offense is committed in
relation to office.
Facts:
Crisostomo is a jail guard with murder of a
detainee under his custody before the
Sandiganbayan.
He
argues
lack
of
jurisdiction because there is no direct
relation between the commission of murder
and his public office.
Held:
The direct relation is shown in his duty as a
jail guard which is to ensure safe custody
and proper confinement of a detainee who
was murdered under his watch. (Crisostomo
v Sandiganbayan)

Dismissal of a criminal case does not bar

administrative liability even if both arise from
identical facts because they are separate and
distinct from each other.
Facts:
Cataquiz was criminally and administratively
charged for graft and corruption. He was
replaced and later dismissed from service,
disqualified to hold public office and
forfeited of retirement benefits. But the
criminal case was dismissed. He argued it
constitutes the law of the case.
As such, the administrative case must also
be dismissed. He also argued he could no
longer be dismissed because he was
dismissed by replacement earlier.
As such, the accessory penalties of
disqualification and forfeiture cannot be
imposed pursuant to the principle that the
accessory follows the principal.
Held:
Dismissal of the criminal case does not bar
administrative case and accessory penalties
pursuant to the three-fold liability rule.

Three-fold liability rule

It states that the wrongful acts or omissions
of a public officer may give rise to civil,
criminal and administrative liability.
An
action
for
each
can
proceed
independently of the others. (Office of the
Court Administrator v Enriquez)
They are separate and distinct from each
other.
Bad faith result in personal civil liability for
damages
Facts:
A governor suspended and dismissed a
quarry superintendent in defiance of the
order of the CSC and the OP to revert and
reinstate.
The superintendent was exonerated of the
charges.
Held:
The governor acted in bad faith. As such, he
is personally liable for damages in the
nature of civil liability. (San Luis v CA)

***
-

to require the head of office to personally

probe records, inspect documents of
investigate the motives of all individuals
involved in the transaction before signing it
is asking the impossible.
There has to be some added reason why the
head of office should examine the
documents in detail.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

Otherwise, he repeats the process all over

again, defeating delegation and division of
labor, which are good administrative
practices. (Arias doctrine)

Except: When there is no allegation of conspiracy

among the superior and subordinates.
Facts:
Under a city treasurer are 5 department
heads and 370 employees, one of whom is a
paymaster who malversed at least 18
million pesos of public funds. The city mayor
filed and administrative case against the
paymaster. But the Ombudsman impleaded
city treasurer for neglect of duty.
The city treasurer argues he could not be
held liable because he does not approve
cash advances. Invoking the Arias doctrine,
he said he had to rely on his subordinates
by virtue of division of labor and delegation
of functions.
Held:
The city treasure is still liable for neglect of
duty because his lack of supervision
contributed to the malversation of public
funds. As a matter of fact, he approved
paymasters requests based on papers
without particulars. Arias doctrine does not
apply because he was not charged in
conspiracy with the paymaster. He was
separately charged and found to be
negligent in his supervisory powers. (Cesa v
Omb.)

NO SLIDES DURING THE FEB. 13 LECTURE

PART V
The SC has exclusive administrative control
and supervision over all court personnel even
if they are presidential appointees.
-

Undue delay in disposition of a case is

administrative in nature. As such, it pertains
to the exclusive jurisdiction of the Supreme
Court. (Dolalas)
But falsification of certificates of service is
not only criminal for falsification but also
administrative for serious misconduct and
inefficiency.
As such, the Omb must not defer action and
refer it to SC to determine if he acted within
his scope of duties. (Maceda v Vasquez)

Discipline over non-presidential appointees

-

Book
V,
EO
292
of
the
Revised
Administrative Code:
(a) No officer or employee in the Civil
Service
shall
be
suspended
or

dismissed except for case as provided

by law and after due process.
(b) The following shall be ground for
disciplinary action:

Dishonesty

Oppression

Neglect of duty

Misconduct

Disgraceful and immoral

conduct

Being
notoriously
undesirable

Discourtesy in the course

of official duties

Inefficiency
and
incompetence
in
the
performance of official
duties

Receiving for personal use

of a fee, gift, or other
valuable thing in the
course of official duties or
in connection therewith
when such fee, gift, other
valuable thing is given by
any person in the hope or
expectation of receiving
favor or better treatment
than that accorded other
persons, or committing
acts punishable under the
anti-graft laws.

Conviction of a crime
involving moral turpitude

Improper or unauthorized
solicitation
of
contributions
from
subordinate
employees
and by teachers or school
officials
from
school
children

Violation of existing Civil

Service Law and rules or
reasonable
office
regulations

Falsification
of
official
document

Frequent
unauthorized
absences or tardiness in
reporting for duly, loafing
or frequently unauthorized
absence from duty during
regular office hours.

Habitual drunkenness

Gambling prohibited by
law

Refusal to perform official

duty or render overtime
service

Disgraceful, immoral or
dishonest conduct prior to
entering the service

Physical
or
mental
incapacity or disability due

7|Page

LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

to immoral or vicious
habits
Borrowing
money
by
superior
officers
from
subordinates or lending by
subordinates to superior
officers.
Conduct prejudicial to the
best interest of the service
Lobbying
for
personal
interest
or
gain
in
legislative
halls
and
offices without authority
Promoting the sale of
tickets in behalf of private
enterprises that are not
intended for charitable or
public welfare purposes
and even in the latter
cases if there is no prior
authority
Nepotism

Section 59. Nepotism

(1) All appointments in the national,
provincial,
city
and
municipal
governments or in any branch or
instrumentality
thereof,
including
GOCCs, made in favor of a relative
of the appointing or recommending
authority, or of the chief of the bureau
or office, or of the persons exercising
immediate supervision over him, are
hereby prohibited.
As used in this Section, the word
relative and members of the family are
referred to are those related within
the
third
degree
either
of
consanguinity or of affinity.
(2) The following are exempted: (a) persons
employed in a coincidental capacity,
9b) teachers, 9c) physicians, and 9d)
members
of
the
AFP:
Provided,
however, That in each particular
instance
full
report
of
such
appointments shall be made to the
Commission.
The restriction mentioned in subsection
(1) shall not be applicable to the case of
a member of any family who, after his
or her appointment to any position in
an office or bureau, contracts marriage
with someone in the same office or
bureau, in which event the employment
ore retention therein of both husband
and wife may be allowed.
Impeachment
-

Article XI, 1987 Constitution

A method of national inquest into the
conduct of public men.
Purpose- to protect the people from official
delinquencies.

It is not to punish but only to remove and

officer who does not deserve to hold office.
Limited to removal from office and
disqualification to hold public office.
Without prejudice to filing of appropriate
cases.

Impeachment is beyond the presidents power

of executive clemency
-

Impeachable officials:
o
President
o
VP
o
Members of the SC
o
Members of the Con. Com.
o
The Ombudsman
Grounds for impeachment:
o
Culpable
violation
of
the
constitution
o
Treason
o
Bribery
o
Graft and corruption
o
Other high crimes
o
Betrayal of public trust
Betrayal of public trust refers to any
form of violation of oath of office even if it is
not criminally punishable offense.
Too broad, thus SC clarified this definition.
It refers to acts which are just short of
being
criminal
but
constitute
gross
faithlessness against public trust, tyrannical
abuse of power, inexcusable negligence of
duty, favoritism, and gross exercise of
discretionary powers.
Acts that constitute betrayal of public trust
as to warrant removal from office may be
less than criminal but must be attended by
bad faith and of such gravity and
seriousness as the other ground for
impeachment. (Gonzales v OP)

Administrative discipline over local elective

officials
-

LGC
Section 60.
actions.

Grounds

for

disciplinary

An elective local official may be:

Disciplined

Suspended or

Removed from office

He or she may be removed from office by
order of the proper court on any of the
following grounds
Disloyalty to the Republic

Culpable violation of the

Constitution

Dishonesty,
oppression,
misconduct in office, gross
negligence or dereliction
of duty

Commission
of
any
offense involving moral
turpitude or an offense

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

punishable by at least
prision mayor

Abuse of authority

Unauthorized absence for

15 consecutive working
days except sanggunian
members

Application
for,
or
acquisition
of
foreign
citizenship, residence or
status of immigrant
Section
61.
Form
and
filing
of
administrative complaints.
Form- verified complaint
Where filedo
Office of the President- elective
official of a province, HUC,
independent component city or
component city
o
Decisions of the Op are final and
executory
o
SPelective
official
of
a
municipality
o
SP or SB- elective official of a
barangay
o
Decision of SP or SB is final and
executory

o
o
o

Sec. 64. Salary pending suspension

o
Not entitled to salary during
suspension
o
But if exonerated and reinstated
paid
full
salary
and
other
emoluments (Ganaden v CA)
Sec. 65. Rights of respondent
o
Full opportunity to appear and
defend himself in person or by
counsel
o
The party in inquiry may or may
not be assisted by counsel, and the
body has no duty to furnish him
with counsel. (Remolona v CA)
o
Confront
and
cross-examine
witnesses
o
Production of evidence through
compulsory process
Sec. 68. Execution pending appeal.
o
Appeal does not prevent decision
from becoming final and executory
o
If respondent wins an appeal
The period during which
the appeal is pending shall
be considered a period of
preventive suspension
o
If the appeal exonerates
He shall be paid salary
and other emoluments
during the pendency of
the appeal (Ganaden v
CA)

Section 67. Administrative Appeals.

Where filedSangguniang
Panlungsod
of
component city or Sangguniang
Bayan Sangguniang Panlalawigan
o
Sangguniang
Panlalawigan
and
Sangguniang Panlungsod of HUC
and ICC Office of the President
Section 63. Preventive suspension
Who suspends
o
Presidentelective
official
of
province, HUC or ICC
o
But with concurrent jurisdiction
with the Ombudsman (Hagad v
Dadole)
o
Governor- elective official of a CC
or municipality
o
Mayor- elective official of a
barangay
o

When- an time after issues are joined

Basis for Preventive Suspension
-

evidence of guilt is strong

disciplining
authority
decides
when
evidence of guilt is strong (Nera v Garcia)
Reason for preventive suspension:
o
Given the gravity of the offense,
there is great probability that
continuance in office
o
Influence the witnesses
o
Pose a threat to the safety and
integrity of the records and other
evidence
Limitations:

Single case: not beyond 60 days

Multiple cases: not more than 90
days
Within a single year or on the same
grounds existing and known during
first suspension

Jurisdiction of the Ombudsman

-

The full administrative disciplinary

authority of the Ombudsman is not
limited to recommendation only, it
includes
the
powers
to
remove,
suspend, demote, fine, censure and
prosecute public officers found at fault.
Facts:
DENR employees were suspended by the
Omb for simple misconduct. They argued
that the Omb is without authority to
suspend them because its power is merely
recommendatory pursuant to Tapiador.
Held:
The Tapiador ruling says the power of the
Ombudsman is merely recommendatory is a
mere obiter dictum.
The term recommend in the Constitution
should not be literally interpreted but
construed in tandem with the Ombudsman
Act
which
vests
full
administrative
disciplinary authority from recommendation
to implementation.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

The Ombudsman is not intended to be

passive, but an activist watchman armed
with the power to prosecute and enforce
anti-graft laws. (Ombudsman v Armilla)
The
administrative
disciplinary
authority of the Ombudsman is not
merely
recommendatory,
but
mandatory.
Facts:
An employee of the Tricycle Regulatory
Office invoked the Tapiador ruling after
being found guilty of misconduct for failure
to remit fees collected from tricycle drivers.
Held:
The Ombudsman is the real party in interest
in administrative cases because it stands to
suffer if decisions adverse to it become final
and executory.
If deprived with authority, enforcement of its
mandated functions as protector of the
people is defeated. (Ombudsman v Beltran)
The word recommend is mandatory and the
proper officer whom it is coursed through has
no choice but to enforce it.
Facts:
Santos is LTFRB special collection and
disbursing officer who was dismissed by the
Ombudsman for dishonesty after she was
found by COA with a cash shortage. She
went to the CA saying that the Ombudsman
cannot directly dismiss her because its
disciplinary
power
is
merely
recommendatory.
The CA agreed with her.
Sec. 13(3), Article XI of the 1987
Constitution:
Direct the officer concerned to take
appropriate action against a public official or
employee at fault, and recommend his
removal,
suspension
demotion,
fine,
censure,
or
prosecution
and
ensure
compliance therewith.
Sec. 15(3) of RA 6770:
xxx or who neglects to perform an act or
discharge a duty required by law, and
recommend
his
removal,
suspension,
demotion, fine, censure, or prosecution, and
ensure compliance therewith.
Held:
Do not be too literal.
Ledesma v CA said that such literal
interpretation
is
too
restrictive
and
inconsistent with the wisdom and spirit
behind the creation of the Office of the
Ombudsman.
The word recommend as used in the
Constitution and the Ombudsman Act
means that the implementation of the order
to remove, suspend, demote, fine, censure

and prosecute be coursed through the

proper officer. And that officer has no choice
but enforce it.
Provided, That the refusal by any officer
without just cause to comply with an order
of the Ombudsman to remove, suspend,
demote, fine, censure or prosecute and
officer or employee who is at fails or who
neglects to perform an act ground for
disciplinary action against said officer.
This
strongly
indicates
that
recommendation is not merely advisory
within the bounds of the law.
(Ombudsman v CA and Santos)
The Ombudsman has the power to prosecute
criminal
cases
involving
public
officers
including the power to conduct preliminary
investigation.
Facts:
The Ombudsman conducted preliminary
investigation and found probable cause
against a BIR employee who claimed to be a
CPA by falsifying official documents and
deputized the city prosecutor to file and
prosecute falsification charges.
The employee argued the Ombudsman has
no power to prosecute and conduct
preliminary investigation
because the
Constitution merely empowered it to direct
the officer concerned to take appropriate
action and recommend.
Held:
It is true that the framers intended to
withhold prosecutorial powers from the
Ombudsman. However, they also did not
hesitate to recommend legislation to
prescribe its other powers, duties and
functions.
Section 13(8), Article XI empowers it to
exercise such other powers and perform
such other functions or duties as Congress
may legislate.
Thus, the Ombudsman Act of 1989 was
enacted granting it power to prosecute
including power to investigate. (Camanag v
Guerrero)
The jurisdiction of the Ombudsman over GOCCs
is confined only to those with original charters.
Facts:
PAL officers were charged for violation of RA
3019 before the Ombudsman after they
allegedly used their positions to secure a
contract for a company they were
stockholders. They moved to dismiss for
lack of jurisdiction, saying PAL is a private
entity and they were not public officers. It
was denied because PAL is now a GOCC
after its controlling interest was acquired by
the government through the GSIS.
Held:

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

The jurisdiction of the Ombudsman over

GOCCs is confined only to those with
original charters. While it is true that PAL is
now a GOCC after its controlling interest was
acquire by the government through GSIS, it
has no original charter. It was originally
organized as a private entity seeded with
private
capital
under
the
general
corporation law.
Juco defines the phrase with original
charter as chartered by special law as
distinguished from corporations organized
under the Corporation Code. (Khan Jr v
Ombusman)
A public officer may be dismissed from service
for private and personal acts
Facts:
A postmaster was dismissed after found
guilty of dishonesty for faking the eligibility
of his wife. He argued his dismissal violates
due process because it was not for cause
since the dishonest act was not committed
in the performance of his official duties as
postmaster.
Held:
A public officer may be dismissed from
service for an offense not related to work or
foreign to his performance of official duties
because dishonesty affects fitness to
continue in office. (Remolona v CSC)
Dishonesty defined.
-

As an administrative offense, dishonesty is

defined as the disposition to lie, cheat,
deceive, or defraud, untrustworthiness, lack
of integrity, lack of honesty, probity or
integrity in principle, lack of fairness and
straightforwardness,
disposition
to
defraud, deceive or betray. (PAGCOR v
Rillarosa)
It is the concealment or distortion of
truth in a matter of fact relevant to ones
office or connected with the performance of
his duties. (Alfonso v OP)

The Military Ombudsman is not prohibited to

perform other functions affecting non-military
personnel.
Thus,
it
has
jurisdiction
to
investigate police officer even if they are
civilian personnel of the government.
-

And there is no distinction between the duty

to investigate and the power to conduct
preliminary investigation.
Facts:
Different composite teams of police officers
were
investigated
by
the
deputy
ombudsman for the military for their
involvement in the rubout of 11 suspected

members of the notorious robbery gang,

kuratong baleleng.
They argued the duty of the Omb to
investigate is separate and distinct from the
power to conduct preliminary investigation
which remains with the Special Prosecutor.
The Military Omb has no jurisdiction over
police officers because they are civilian
personnel of the government.
Held:
Based on the deliberations of the framers,
there is no distinction between the duty to
investigate and the power to conduct
preliminary investigation. There is also no
showing that such power remains with the
Special Prosecutor.
There is no evidence from the deliberation
that the Military Omb is prohibited from
performing other functions affecting nonmilitary personnel.
Secc. 31 of the Omb Act authorizes the Omb
to designate personnel of his office or
deputize any prosecutor or government
lawyer to act as special investigator or
prosecutor.
Thus, the Omb may refer cases involving
non-military personnel for investigation to
the Military Omb. (Acop v Ombudsman,
Lacson v Casacalang)

The
School
Superintendent
has
original
jurisdiction over administrative cases involving
public
school
teachers.
As
such,
the
Ombudsman must yield, except, where is
estoppel.
Facts:
A public school teacher was charged with
falsification,
dishonesty
and
grave
misconduct before the Omb after he failed
to produce original copy of his TOR, which
authenticity was denied by the school
registrar.
He filed his counter-affidavit. But he was
found guilty of dishonesty and dismissed
from service.
He argues the School Superintendent has
exclusive jurisdiction over administrative
cases against public school teachers under
the Magna Carta for Public School teachers.
Held:
Magna Carta grants jurisdiction to the
Investigating Committee headed by the
School Superintendent over erring public
school teachers. But the Ombudsman Act
likewise grants the Omb with jurisdiction
over acts or omissions that are contrary to
law. The Constitution empowers the Omb to
investigate acts or omissions that appear to
be illegal, unjust, improper or inefficient.
Deloso v Domingo defined illegal act or
omission of any public official as any crime
committed by a public officer, even if the

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

act or omission is not related with the

performance of official duty.
Ombudsman v Estandarte rules that per
Magna Carta for Public School Teachers,
original jurisdiction over administrative
cases against public school teachers
pertains to the School Superintendent.
Purpose is to impose a separate
standard and procedural requirement
for administrative cases involving
public school teachers.
The President and the Ombudsman have
concurrent authority to remove the Deputy and
Special Prosecutor under certain conditions
Facts:
Mendoza held hostage and hilled foreign
tourists because the Omb failed to act on
his motion for reconsideration. The Incident
Investigation
and
Review
Committee
recommended Deputy Omb Gonzales for
dismissal. The Office of the President found
him guilty of gross neglect of duty and
grave misconduct constituting betrayal of
public trust.
The IIRC blamed Gonzales for not acting on
the motion for recon filed by Mendoza for
more than 9 months without justification.
Worse, they merely offered to review the
motion for recon when they received the
demand of Mendoza to resolve it. They
should have resolved it right away or
suspended the enforcement of dismissal.
This aggravated the situation and triggered
the collapse of the negotiation.
Thus, the iirc found Gonzales guilty of
serious and inexcusable negligence and
gross violation of the rule that motions for
recon must be resolved within 5 days from
filing.
since this is a consolidated case:
Meanwhile, Major Carlos Garcia, his wife and
2 sons were charged with plunder and
money laundering by Special Prosecutor
Wnedell
Barreras-Sulit
before
the
Sandiganbayan. Garcia moved to bail but
was denied because there is strong
prosecution evidence.
But suddenly, Sulit sought approval of the
plea bargaining agreement entered into with
Garcia.
The Sandiganbayan resolved that the
change of plea is warranted and the plea
bargaining
agreement
complies
with
jurisprudential requirements.
Outraged by the back deal that could allow
Garcia to get off the hook, Congress
investigated and recommended to the
President that Sulit be dismissed after filing
charges for acts or omissions amounting to
betrayal of public trust.

The OP initiated an administrative case

against Sulit.
But she invoked prematurity and lack of
jurisdiction.
Both Gonzales and Sulit challenged the
constitutionality of Sec 8(2) of the
Ombudsman Act of 1989.
It says the deputy or special prosecutor may
be removed from office by the President for
any of the grounds for the removal of the
Ombudsman, and after due process.
Issue:
Whether the Office of the President has
jurisdiction
to
exercise
administrative
disciplinary
power
over
a
deputy
ombudsman or a special prosecutor who
belong to a constitutionally-created Office of
the Ombudsman
Held:
While the disciplinary authority of the
Ombudsman is extensive and covers all
public officers except those removable by
impeachment, it is not exclusive.
Sec 8(2) of the Ombudsman Act says that
the Deputy or Special Prosecutor may be
removed from office by the President for any
of the grounds for impeachment of the
Ombudsman, after due process.
Unquestionably, the Omb has jurisdiction to
discipline his or her own men.
Also unquestionably, the President has
concurrent authority with the Omb to
remove the deputy and the special
prosecutor under certain conditions.
That it must be for any of the grounds for
removal of the Ombudsman.
o
Culpable
violation
of
the
Constitution
o
Other high crimes
o
Bribery
o
Treason
o
Betrayal of public trust
That due process is observed
Sec 8(2) is not unconstitutional.
Removal of the Omb by impeachment is
clear under the law but the removal of the
deputy and special prosecutor is not.
While the Office of the President is vested
with
concurrent
authority
with
the
Ombudsman, neglect of duty or misconduct
in office without intentional wrong doing of a
grave and serious kind, does not amount to
betrayal of public trust.
And instead of pursuing or building a strong
case despite the strength of evidence
against Garcia, she entered in to a plea
bargain which is grossly disadvantageous to
the government.

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

This could lead to administrative liability

hence the office of the President should
continue the investigation. (Office of the
President & Sulit v Ochoa)

The PCGG and the Ombudsman do not have

the concurrent jurisdiction to investigate
cases of ill-gotten wealth.
Instead, the jurisdiction of the PCGG and the
Omb to investigae cases of ill-gotten wealth
are separated by period of time.

The Ombudsman has concurrent jurisdiction

with the DOJ.

Jurisdiction of the Military Ombudsman over

police officers.

Facts:
Honasan was charged with the crime of
coup detat before the DOJ pursuant to the
Joint Circular between the Omb and the DOJ.
Contention of Honasan: He argued that it is
the Omb that has jurisdiction to conduct
preliminary investigation
because the
imputed acts relate to his public office.
Should the case be filed, it should be with
the Sandiganbayan and not the regular
courts, because he receives Salary Grade 31
as senator.
Contention of the DOJ: it has jurisdiction to
conduct preliminary investigation pursuant
to the Revised Administrative Code. Coup
detat is not directly related to his public
office as a senator. The challenge against
the constitutionality of the Joint Circular is
misplaced. The jurisdiction of the DOJ is a
statutory grant under the Administrative
Code and is not derived from any of the
provisions of the Joint Circular.
Held:
Section 13(1). Article XI does not exclude
other government agencies tasked by law to
investigate and prosecute public officials.
Otherwise, there would not have been par. 8
allowing the Omb to promulgate its rules of
procedure, exercise other powers and
perform other functions as maybe provided
by law. As such, the ombudsman Act of
1989 was enacted with primary jurisdiction
over
cases
cognizable
by
the
Sandiganbayan.
The jurisdiction over cases cognizable by
the Sangianbayan is concurrent with all
investigatory agencies of the government
duly authorized to conduct preliminary
investigation under the Rules of Criminal
Procedure.
The only qualification is that, the Omb may
take over the investigation at any stage in
the exercise of its primary jurisdiction.
While the Omb has jurisdiction to
investigate and prosecute any illegal act or
omission of any public official, such
authority is merely primary and not
exclusive. (Honasan v DOJ Panel of
Investigators)

Facts:
Agbay was detained for touching the
genitals of a minor while aboard a tricycle. A
complaint for child abuse was filed against
him by the mother before the MTC. The
lawyer demanded the police officers to
release him since they failed to deliver him
to the proper judicial authority within 36
hours from detention. MTC ordered his
commitment.
Agbay filed before the Omb-Visayas a
complaint for delay in the delivery of
detained persons against the police officers
who refused to release him.
By virtue of MC No. 14, the Deputy Omb for
the Visayas transferred the case to the
Deputy Military Ombudsman for proper
disposition.
The Military Omb dismissed the case. He
moved to reconsider, but was denied.
Aagbay argued that the Military Omb has no
jurisdiction to act on a complaint against
police officers because of the civilian
character of the PNP.
Held:
The Military Omb has jurisdiction to
investigate civilian personnel of the
government, including personnel of the PNP.
Accordingly, the Ombudsman may refer
cases involving non-military personnel for
investigation by the deputy for military
affairs. The issuance of MC No. 14 is simply
an exercise of the power to utilize its own
personnel and to designate and deputize.
(Agbay v Military Ombudsman)

Jurisdiction of the Ombudsman to investigate

ill-gotten wealth

Appeal does not stay the execution of

administrative decisions of the Ombudsman
penalizing dismissal or suspension.
Facts:
Ganaden, Mina, Bautista, and Narciso are
NPC employees. They were charged with
three administrative cases before the
Ombudsman for dishonesty, misconduct and
acts inimical to public service. Ganaden,
Bautista and Narcis were found guilty of
dishonesty and suspended for one year.
Meanwhile, they retired early from NPC.
When they learned about the decision of
dismissal and suspension, they were already
employed at the NTC. Hence, the Omb

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LAW ON PUBLIC OFFICERS (Slides by Atty. F. Gujilde)

directed CEO Ortiz to dismiss and suspend

them. Ortiz did. They petitioned CA to cite
Ortiz in contempt.
Contention of petitioners: Invoking Lopez v
CA and Lapid v CA, they argued that the
execution of Om decision is automatically
stayed upon the filing of an appeal and is
stayed throughout the pendency of the
appeal.
Held:
These cases are antiquated.
The Ombudsman Rules of Procedure
allowing stay of execution pending appeal

has been amended on Sept 15, 2003 by

Administrative Order No. 17.
It says the Ombudsman decision in
administrative cases shall be executed as a
matter of course. An appeal shall not stop
the decision from being executory. In case
the penalty is removal and suspension, and
the respondent wins such appeal, he shall
be considered under preventive suspension
and paid the salary and other emoluments
he did not receive by reason of the
suspension or removal.

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