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DEFINITIONS, DISTINCTIONS AND CLASSIFICATIONS Laurel v. Desierto, April 12, 2002 Pres. Ramos issued EO 128, “reconstituting the Committee for the preparation of the National Centennial Celebrations in 1998.” It renamed the Committee as the National Centennial Commission (NCC). Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. During the term of Pres. Estrada, the Senate Blue Ribbon Committee recommended the prosecution by the Ombudsman/DOJ of Laurel, as chair of the NCC, for violating the rules on public bidding, relative to the award of centennial contracts; for exhibiting manifest bias in the issuance of a Notice to Proceed to a contractor even in the absence of a valid contract, causing material injury to government and for participating in a scheme to preclude audit by COA. In his defense, Laurel argued that as chair of the NCC he was not a public officer. He argued that some of the characteristics of a public officer were not present in the position, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. Issue: WON Laurel was a public officer thus putting him within the ambit of the power of the Ombudsman to investigate any malfeasance, misfeasance and nonfeasance by a public officer or employee. Held: YES. Mechem describes the delegation to the individual of some of the sovereign functions of government as the most important characteristic in determining whether a position is a public office or not. The Court held that the NCC performed executive functions, which concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV thereof that the State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations. E.O. No. 128 itself cited the need to strengthen the NCC to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and
wider participation from the government and nongovernment or private organizations and the need to rationalize the relevance of historical links with other countries. The NCC was precisely created to execute the foregoing policies and objectives and to carry them into effect. Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. Laurel v. Desierto, July 1, 2002 (Resolution) MR of the Court’s earlier ruling. Issue: WON the earlier decision has serious constitutional repercussions because the composition of the NCC included members of the Cabinet, the Senate, the House of Representatives and the Supreme Court, who are prohibited by the Constitution from holding any other office during their term or tenure. Held: LAUREL’S ARGUMENT IS IRRELEVANT The issue in this case is whether petitioner, as Chair of the NCC, is a public officer under the jurisdiction of the Ombudsman. Assuming, as petitioner proposes, that the designation of other members to the NCC runs counter to the Constitution, it does not make petitioner, as NCC Chair, less a public officer. Such “serious constitutional repercussions” do not reduce the force of the rationale behind this Court’s decision. Preclaro v. Sandiganbayan, August 21, 1995 Preclaro was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 for demanding the sum of P200k from a construction company as part of the expected profit from the construction of a public building wherein he was Project Manager/Consultant. On appeal, Preclaro asserted that he was not a public officer as he was neither elected nor appointed to public office but was merely a private individual hired on a contractual basis for a particular project and for a specified period as evidenced by a contract of services. Issue: WON Preclaro was a public officer. Held: YES. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have since been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987.
The Non-Career service includes “contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency.” The fact that petitioner was not required to record his working hours by means of a Bundy clock or did not take an oath of office became unessential considerations in view of the above-mentioned provision of law clearly including petitioner within the definition of a public officer. II. ELIGIBILITY AND QUALIFICATIONS Civil Liberties Union v. Executive Secretary, February 22, 1991 A petition seeking a declaration of unconstitutionality of Executive Order No. 284 on the ground that said EO by providing that Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, in contravention of Section 13, Article VII of the 1987 Constitution which provides that the President, VicePresident, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. Issue: WON the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which states that Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold
any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries. Held: EO 284 IS VOID INSOFAR AS IT ALLOWS MEMBERS OF THE CABINET, THEIR UNDERSECRETARIES AND ASSISTANT SECRETARIES TO HOLD OTHER GOVERNMENT OFFICES OR POSITIONS IN ADDITION TO THEIR PRIMARY POSITIONS. While all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. Renato M. Lapinid v. CSC, Philippine Ports Authority and Juanito Junsay, May 14, 1991 Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor. This appointment was protested by Junsay, who contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto. [eto ba yung higher grade case?] Complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a resolution, the Commission held that Junsay had a preferential right to the position and ordered that he be appointed thereto.
Issue: WON the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter. Held: NO, the CSC was not authorized to do so. The Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee taking into account the totality of his qualifications, including those abstract qualities that define his personality is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. III. Acquisition of Right or Title to Office A. In General Tomali v. CSC, Tomali was appointed Development Management Officer II in the Office on Muslim Affairs (OMA). The appointment was extended by then OMA Executive Director Pundato. She assumed the duties and functions of the office four months later, at which time, the appointment had not yet been transmitted to the Civil Service Commission (CSC) for approval. Subsequently, the new Director of the OMA, Dr. Lucman, revoking the previous incomplete appointment of petitioner, appointed private respondent Rocaina Lucman to the position in question. Issue: WON Tomali’s appointment was validly revoked by Dr. Lucman. Held: YES, IT WAS VALIDLY REVOKED.
An appointment to a position in the civil service is required to be submitted to the CSC for approval in order to determine, in main, whether the proposed appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment are followed. Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective. Without the favorable certification or approval of the Commission, in cases when such approval is required, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the appointing authority. Until an appointment has become a completed act, it would likewise be precipitate to invoke the rule on security of tenure. The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement, on the necessity of approval of the Commissioner of Civil Service of appointments, ineffective and unenforceable. The employee, whose appointment was not approved, may only be considered as a de facto officer. Matibag v. Benipayo, COMELEC en banc appointed Pet as “Acting Director IV” of the EID. GMA appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of seven years. Commission on Appointments did not act on said appointments. President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason, for three times. In such capacity, Benipayo issued a Memorandum designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. Pet filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Issue/s & Held: WON the ad interim appointments to Benipayo, Borra and Tuason amount to temporary appointments prohibited by Section 1 (2), Article IX-C of the Constitution - NO WON the renewal of their ad interim appointments and subsequent assumption of office to the same positions
violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution – NO Ratio: An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. (Art VII, Sec 16, Const) The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued.” “A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective ‘until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’” Petitioner cites Black’s Law Dictionary which defines the term “ad interim” to mean “in the meantime” or “for the time being.” Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. However, the term “ad interim appointment”, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time.
An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that ”[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.” Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that “all x x x election cases shall be heard and decided in division”, the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration “shall be decided by the Commission en banc”, the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and
after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. The prohibition on reappointment in Section 1 (2), Article IXC of the Constitution applies neither to disapproved nor bypassed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. B. Appointments by the President Griño v. CSC, et al,
February 26, 1991 Demaisip resigned from the position of Prov. Atty. of Iloilo. Upon his recommendation, OIC Governor appointed Arandela (Senior Legal Officer) as Prov. Atty. Gelvezon (Legal Officer II) was then promoted to Senior Legal Officer. Dato-on and Geduspan were appointed as Legal Officer. Grino assumed post as Governor-elect of Iloilo. He terminated the named appointees, and reappointed Demaisip as Provincial Attorney – on the ground of loss and trust and confidence, because of an article that came out in the Panay News. Issue/s & Held: WON position of Provincial Attorney is primarily confidential - YES WON positions of Senior Legal Officer and Legal Officer are primarily confidential - NO WON they may be terminated on the ground of loss of confidence by the local executive – YES to provincial attorney, NO to Senior Legal Officer and Legal Officer Ratio: The position of Provincial Attorney is primarily confidential. The position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the highest degree of trust that the latter entertains for the counsel selected. (Cadiente ruling) Court also held that the while the work of the Chief Legal Counsel as of any lawyer for that matter, is impressed with a highly technical aspect, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. It is the client’s right to terminate the relationship, and once made such decision is impressed with the attribute of finality and should be respected. (Besa ruling) “Primarily confidential” denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment or freedom from misgivings of betrayals of personal trust on confidential matters of state. Thus, the tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures. When such confidence is lost and the officer holding such position is separated from the service, such cessation entails no removal but an expiration of his term. The main difference between a primary confidential officer and an officer whose term has expired is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and
determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from office-his merely expired. The Cadiente and Besa rulings apply by analogy to a provincial attorney. A city legal officer appointed by a city mayor to work for and in behalf of the city has for its counterpart in the province a provincial attorney appointed by the provincial governor. In the same vein, a municipality may have a municipal attorney who is to be named by the appointing power. The positions of city legal officer and provincial attorney were created under Republic Act No. 5185 which categorized them together as positions of "trust". Both the provincial attorney and city legal officer serve as the legal adviser and legal officer for the civil cases of the province and the city that they work for. Their services are precisely categorized by law to be "trusted services." Their functions clearly reflect the highly confidential nature of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he serves. The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest degree of trust. However, positions of Senior Legal Officer and Legal Officer are not primarily confidential. The legal work of Provincial or City Attorney, as distinguished from the relationship, can be delegated. The practice of delegating work of a counsel to his subordinates is apparent in the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officer to exercise administrative supervision and control over the acts and decision of his subordinates. Thus, there is no need to extend the professional relationship to the legal staff which assists the confidential employer. Since the positions occupied by these subordinates are remote from that of the appointing authority, the element of trust between them is no longer predominant. The importance of these subordinates to the appointing authority now lies in the contribution of their legal skills to facilitate the work of the confidential employee. At this level of the bureaucracy, any impairment of the appointing authority's interest as a client, which may be caused through the breach of residual trust by any of there lower-ranked lawyers, can be anticipated and prevented by the confidential employee, as a reasonably competent office head, through the exercise of his power to "review, approve, reverse, or modify" their acts and decisions. The subordinates have been employed due to their technical qualifications. Their positions are highly technical in character and not confidential, so they are permanent employees, and they belong to the category of
classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remain permanent as classified by the Civil Service Commission. Consequently, the holders of the said items; being permanent employees, enjoy security of tenure as guaranteed under the Constitution. Tria v. Sto. Tomas, CSC, et al, July 31, 1991 Tria was employed with FMIB as a Management and Audit Analyst I, a position expressly described in the letter of appointment as "confidential." Tria wrote a confidential report to the FMIB Deputy Commissioner detailing the nonfeasance of a FMIB lawyer and recommending the lawyer’s replacement, and then another report on a retired colonel this time submitted to the Office of the President. Tria applied for sick leave in order to seek interim employment abroad, as permitted in a CSC circular. At this time Assistant FMIB Comm sent him a letter reprimanding him for by-passing the FMIB Commissioners and sending a report straight to the Office of the President to the embarrassment of the FMIB. While his sick leave was approved by immediate superior, it was eventually denied by the FMIB higher-ups. He did not receive notice of denial and the letter of reprimand until he got back from the US. He was therefore terminated from service. Tria now seeks reinstatement. Issue/s & Held: WON termination was valid - NO WON Tria is a primarily confidential employee – NO Ratio: Characterizing a position as "primarily confidential" are two-fold: firstly, such characterization renders inapplicable the ordinary requirement of filling up a position in the Civil Service on the basis of merit and fitness as determined by competitive examinations; and secondly, while the 1987 Constitution does not exempt such positions from the operation of the principle set out in Article IX (B), Section 2 (3) of the same Constitution that "no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law," the "cause provided by law" includes "loss of confidence." A position in the Civil Service may be considered primarily confidential: (1) when the President of the Philippines, upon recommendation of the Civil Service Commission, has declared that position to be primarily confidential; or (2) when the position, given the character of the duties and functions attached to it, is primarily confidential in nature.
All positions in the EIIB were apparently declared as "highly confidential" by former President Marcos in Letter of Implementation No. 71, dated 4 September 1978. When one examines, however, the actual duties and functions of petitioner as a "Management and Audit Analyst I" in the FMIB, as set out in the job description of that position, one is struck by the ordinary and day to day character of such duties and functions: "prepares required survey materials, work plans and schedules; gathers data and makes investigations and analyzes (sic) of administrative problems relating to organization, personnel and procedure, etc…” It is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII, of the Constitution." Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of [discussion and delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust and confidential matters of state. It is evident that the duties of petitioner related to the study and analysis of organizational structures and procedures, with the end in view of making recommendations designed to increase the levels of efficiency and coordination within the organization so analyzed. Moreover, the modest rank and fungible nature of the position occupied by petitioner, is underscored by the fact that the salary attached to it was no more than P1,500.00 a month at the time he went on leave. There thus appears nothing to suggest that petitioner's position was "highly" or even" primarily confidential" in nature. The fact that petitioner may, sometimes, handle "confidential matters" or papers which are confidential in nature, does not suffice to characterize their positions as primarily confidential. Not being a primarily confidential employee, there must be another lawful cause to base his termination on. The Court found that there was none in this case since his failure to report first to the FMIB Commissioner (and went directly to the Office of the President), and his going sick leave were made in good faith. As to the reports, it was because no investigation was done after his first report which he made to the FMIB Commissioner. As to the sick leave, his immediate
supervisor approved it, and the latter was in a position to tell whether or not Tria’s presence in the office was necessary. Hilario v. CSC and Planas, March 31, 1995 Hilario was City Attorney of QC, who was appointed by OIC Mayor. When Mathay assumed post as Mayor-elect, the latter wrote him a letter that since his term was co-terminous with the appointing authority, Hilario was deemed resigned. Hilario insists that his position should be viewed under BP 337, the old law, under which law he was then appointed as City Attorney. Under BP 337, City Attorney is not expressly described as a confidential employee. Issue: WON Hilario is a confidential employee Held: YES. An examination of the provisions of BP 337 reveals no intention by the legislature to remove the confidential nature of the position of city legal officer. What it does, is to merely specify the various qualifications, powers and duties of a city legal officer which were not enumerated under Republic Act No. 5185. We have consistently held in previous cases that the position of City Legal Officer is a confidential one. Province of Camarines Sur v. CA and Dato, July 14, 1995 Tito Dato was appointed as Private Agent then promoted to Assistant Provincial Warden. Because he had no civil service eligibility, he could not be given a permanent appointment. Hence, he was only given a temporary appointment which was renewed annually. Eventually, Governor approved the change in Dato's employment status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. Said change of status however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the necessary civil service eligibility for the office he was appointed to. His appointment therefore remained temporary. He was suspended for criminal charges filed against him. Meanwhile, CSC wrote the Governor of Camarines Sur a letter informing him that the status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination. Issue: WON Dato was a permanent employee of the Province at the time of suspension Held: NO. At the time he was appointed Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an appropriate examination for the aforementioned position.
Such lack of a civil service eligibility made his appointment temporary and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment - these are two distinct acts of the appointing authority. As to the CSC’s action of granting a permanent appointment to Dato, such was uncalled for. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments and after that function is discharged, its participation in the appointment process ceases. In the case at bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed the temporary status of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter. Gloria v. De Guzman, et al, October 6, 1995 Cerillo et al were employees of the Philippine Air Force College of Aeronautics (PAFCA). The PAFCA Board of Trustees issued Resolution which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities," in accordance with pertinent civil service law, rules and regulations. Thus, Cerillo et al were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. On March 24, 1992, Cerillo was relieved as Board Secretary of the PAFCA in accordance with Board Resolution by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services." Then, they were informed in December 1992 that they shall be deemed separated from the service upon the expiration of their temporary appointments. Cerillo et al filed a case for reinstatement. Issue: WON Cerillo et al may be reinstated Held: NO. The lower court’s judgment which orders the reinstatement of Ms. Rosario V. Cerillo to the position of
"Coordinator for Extension Services" is patently improper. Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. Cerillo’s assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services," her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only. The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a letter mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. Pursuant to this, the Board of Trustees declared that all faculty/ administrative employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments. This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot be terminated from the service. The fact that private respondent Cenillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. It has been ruled that the position of Board Secretary II, by its nature, is primarily confidential. Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority.
privilege. The action may be commenced by the Sol-Gen or the fiscal or by an individual who claims to be entitled. IV. POWERS, OFFICERS DUTIES AND NORMS OF PUBLIC Ordinarily, a judgment against a public officer with regard to a public right binds his successor in office. This rule, however, is not applicable to quo warranto cases, The judgment does not bind the respondent's successor even if the latter may trace his title to the same source. This follows from the nature of the writ itself. It is never directed to an officer as such, but always against the person—to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of the office. In the case at bar, the petition was solely against Allas. V. RIGHTS AND PRIVILEGES GSIS v. CSC, June 19, 1995 Belo was Vice-Governor of Capiz from January 1972 until February 1988. From December 1979 to February 1988, she held it in a hold-over capacity and within that time, from December 1976 to December 1979, she was paid on a per diem basis. Baradero was a member of the Sangguniang Bayan in Negros Occidental. He was also paid per diem for a time. Issue: WON regular service on a per diem basis, without any other form of compensation or emolument, is compensation to be creditable for retirement Held: YES. Traditional Definition of per diem in GSIS Law: a daily allowance given for each day an officer or employee of government is away from his home base The per diem was actually in the nature of compensation. What is controlling is the nature of the renumeration not the label attached to it. The per diem she received is not the kind described in the Government Service Insurance Act. That law shows a clear legislative intent to distinguish between compensation and incidental allowances. TEST: It is generally held that an allowance for expenses incident to the discharge of an office is not salary so if the remuneration received by the public official in performance of his duties does not constitute mere “allowance for expenses” but appears to be his actual base pay, then no amount of categorizing the salary as per diem would take the allowances from the term “service with compensation” for the purpose of computing the number of years of service in government.
Tarrosa v. Singson, May 25, 1994 Tarrosa as “taxpayer” files a petition for prohibition, questioning the appointment of Singson by Ramos as Governor of the Bangko Sentral ng Pilipinas for not having been confirmed by the Commission on Appointments. The petition is based on Sec 6 of RA7653, which established the BSP as the Central Money Authority of the Philippines. The said provision stated that the appointment of the Governor should be confirmed by the Commission on Appointments. Issue: WON the action may prosper Held: NO. The action is in the nature of a quo warranto proceeding as it seeks the ouster of Singson and alleges the latter is unlawfully holding or exercising the office. A quo warranto proceeding may only be commenced by the SolGen or “a person claiming to be entitled to a public office or position unlawfully held or exercised by another”. It is obvious that the instant petition was improvidently brought. To uphold the position would encourage every disgruntled citizen to resort to courts , thereby causing incalculable mischief and hindrance to the efficient operation of the governmental machinery. Obiter: For the information of all concerned, in Calderon v Carale, the Court ruled that Congress by law cannot expand the confirmation powers of the CoA and require confirmation for positions not expressly mentioned in Art VII, Sec 16 of the Constitution. Mendoza v. Allas and Olores, February 4, 1999 Mendoza worked in the Bureau of Customs as “Director III”. He was temporarily designated as Acting District Collector in Cagayan de Oro. Allas was appointed as “Acting Director III”by President Ramos so Mendoza was terminated. He filed a petition for quo warranto against Allas and won in the RTC. While the action was pending in the CA, Allas was promoted and Olores now occupied the position so CA denied the Motion for Execution. Issue: WON the CA can execute the judgment Held: NO. Quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the
Retirement benefits given to government employees in effect reward them for giving the best years of their lives to the service of their country. This is especially true with those in government service occupying positions of leadership or positions requiring management skills. The source of benefits is a social legislation. Belo believed in good faith that the short period was credited as she was not duly informed. The problem that she did not contribute for that period can be remedied by simply deducting the corresponding contributions from the benefits. It would be grossly inequitable—as it would violate the spirit and intent of government retirement and insurance laws-- to permanently penalize both Belo and Baradero. Due to the peculiar circumstances, it is the spirit and intent, not form, that should govern. Quiason, dissenting: First, GSIS has the power to determine what service is creditable for retirement purposes. Second, the obligation to pay premiums is equally essential as the period of services rendered. Belo had the option to continue membership when she started working for the LGU, but she did not exercise the option. As she did not contribute to the system, it would be unjust to compel GSIS to grant her retirement benefits. Bitonio, Jr. v. COA and Gangan, March 12, 2004 Bitonio was designated as DOLE Representative to the Philippine Economic Zone Authority (PEZA) pursuant to Sec 11, RA 7916 and he received per diems for every board meeting attended. Upon audit, COA disallowed payment of per diems on the strength of CLU v ExecSec which stated that cabinet members, their deputies and assistants, holding offices other than their primary office shall not receive additional compensation. Issue: WON the COA correctly disallowed the per diems Held: YES. Bitonio's presence in the PEZA Board meetings is solely by virtue of his capacity as representative of the Secretary of Labor. There was no separate or special appointment for such position. Since the Secretary of Labor is prohibited from receiving additional compensation for his additional office, such prohibition likewise applies to his representative. This case is on all fours with Dela Cruz v COA. A contrary rule would give the representatives a better right than their principals. There is no merit in the contention that the legislature was aware of CLU v ExecSec when they enacted RA 7916. It is a basic tenet that any legislative enactment must not be repugnant to the highest law of the land. It is important to note that the said law was later amended, deleting the payment of per diems.
National Amnesty Commission v. COA, Espino and Eulalia, September 8, 2004 The Secretaries of Justice, National Defense and Interior and Local Government were ex officio member of the NAC. They turned over their responsibility to representatives who were paid honoraria which were disallowed on audit. NAC passed AO 2, providing that representatives may be designated and they are entitled to per diems, allowances and other benefits. Still, the COA disallowed the benefits so NAC filed the present petition. Issue: WON the honoraria were correctly disallowed by COA Held: YES. The position of NAC is against the law and jurisprudence. The Constitution mandates the COA to ensure that the funds and properties of the government are validly, efficiently and conscientiously used as shown in Art IX-D. In accordance with this mandate and CLU v Exec Sec, COA issued Memo No., 97-038 which disallows additional compensation This memo does not require publication to be valid because it is merely an internal and interpretative regulation, implementing Sec 13, Art VII of the Constitution. The CLU decision gives 2 constitutional prohibitions: 1. the blanket prohibition of par 2, Sec 7, Art IX-B on all government employees holding multiple offices 2. the stricter prohibition in Sec 13, Art VII on the President and his official family The NAC ex officio members' representatives are covered by both prohibitions. The Government is never estopped by mistake or error on the part of its agents. Lastly, the representatives are not de facto officers entitled to benefits, pursuant to the CLU case, because they were not appointed but merely designated. De la Victoria v. Burgos and Sesbreño, June 27, 1995 There was judgment against asst City Fiscals Mabanto, Jr and De Rama, Jr, ordering them to pay damages so a notice of garnishment was served on petitioner de la Victoria as City Fiscal which directed her not to disburse, transfer, release or convey the salary checks of the defendants except to the deputy sheriff. She failed to comply so she was asked to explain why she should not be cited in contempt. Her defense: The salary checks are not owned by Mabanto, Jr. because they were not yet delivered to him so they were government funds based on Sec 16 of the Negotiable Instruments Law. Issue: WON the salary checks are government funds
Held: YES. Garnishment is a species of attachment for reaching credits belonging to the judgment debtor owing to him from a stranger to the litigation. In this case, the source of the salary of Mabanto is public funds and he receives it in check. Under Sec 16 of the NIL, every contract on a negotiable instrument is incomplete and revocable until delivery for the purpose of giving effect thereto. Tiro v Hontanosas: The salary check of the government officer or employee does not belong to him before it is physically delivered to him. Until that time, the check belongs to the government. The rationale behind this doctrine is obvious consideration of public policy: Commissioner of Public Highways v San Diego: The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by the law. Davide, dissenting. The ponencia failed to indicate the payroll period covered by the salary check and the month to which the RATA check corresponds. If the salary and RATA checks corresponded, respectively, to a payroll period and to a month which had already lapsed at the time the notice of garnishment was served, the garnishment would be valid. Upon expiration, the sums are deemed automatically segregated from the budgetary allocations. Vinzons-Chato v. Natividad and Blas, June 2, 1995 On December 10, 1993, petitioner Commissioner of Internal Revenue, citing the "exigencies of the revenue service," issued Revenue Travel Assignment Order No. 80-93 (RTAO 80-93), directing ninety revenue district officers to report to new assignments in the redesignated and renumbered revenue district offices nationwide. Private respondent Salvador Nori Blas was ordered to report to Revenue District No. 14 in Tuguegarao, Cagayan. In turn, petitioner Solon B. Alcantara was ordered to report to Blas' former post in San Fernando, Pampanga, now known as Revenue District No. 21. Blas’ Contention All that he asserts is his constitutional right to protection from a demotion not for cause, and without his consent under the guise of a "transfer in the exigencies of the service". He contends that his transfer constitutes a demotion because, in effect, his span of control in terms of jurisdiction and personnel has been considerably diminished. He claims that he has earned, through hard work, as evidenced by his service record, the position at San Fernando, Pampanga
which has a larger staff and revenue capacity and is much closer to Manila. Chato’s Contention 1. Private respondent did not have any vested right to his station in San Fernando, Pampanga since he was only designated to the post and not appointed thereto. Neither did private respondent show any right to be exempted from the reorganization. 2. Neither was the transfer a demotion, since there was no reduction in duties, responsibilities, status, rank, or salary. Issues: 1. WON there is a reduction in duties and responsibilities 2. WON there was a demotion and dislocation on the part of the plaintiff when the public defendant Chato issued Revenue Travel Assignment Order (RTAO) No. 80-93. Held: (NONE) 1. Blas’ transfer to the Tuguegarao revenue district did not really entail any diminution in rank, salary, status and responsibilities. Private respondent's claim that the Tuguegarao revenue district is smaller than that in San Fernando, Pampanga has no basis because, as already noted, the classification of RDOs' into Class A-1, A, B, C and D has been abolished and all RDO's are now considered to be of the same class. 2. Blas’ transfer is part of a nationwide reshuffle or reassignment of revenue district officers designed to improve revenue collection. It could be that private respondent is being transferred to a revenue district which he claims has less revenue capacity than San Fernando, Pampanga, precisely to improve the capacity of the new assignment. His new assignment should therefore be considered by him a challenge to his leadership as revenue district officer rather than a demotion or a penalty. 3. Private respondent failed to show patent illegality in the action of the Commissioner constituting violation of his right to security of tenure. To sustain his contention that his transfer constitutes a demotion simply because the new assignment is not to his liking would be to subordinate government projects, along with the great resources and efforts they entail, to the individual preferences and opinions of civil service employees. Such contention would negate the principle that a public office is a public trust and that it is not the private preserve of any person. Divinagracia, Jr. v. Sto. Tomas, May 31, 1995 A transfer is a movement from one position to another which is of equivalent rank, level, salary, without break in service. Promotion is the advancement from one position to another with an increase in duties and responsibilities as
authorized by law, and is usually accompanied by an increase in salary. A transfer that results in promotion or demotion, advancement or reduction, or a transfer that aims to lure the employee from the permanent position cannot be done without the employee’s consent. This would constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. The rule that unconsented transfers amount to removal is not without an exception. There are transfers which do not amount to removal. Such transfers can be effected without need for charges being proffered, without trial or hearing, and without the consent of the employee. The clue to such transfers may be found in the nature of the appointment. Where the appointment does not indicate a specific station, an employee may be transferred or assigned provided the transfer affects no substantial change in title, rank or salary. Such rule does not proscribe a transfer carried out under specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. Neither does illegality attach to the transfer or assignment of an officer pending the determination of an administrative charge against him or to the transfer of an employee from his assigned station to the main office, effected in good faith and in the interest of service. GSIS v. COA, November 10, 2004 The issue in this case is whether or not the GSIS may lawfully deduct any amount from the retirement benefits of respondents in light of Section 39, RA 8291, the last paragraph of which specifically provides: SEC. 39. Exemption from Tax, Legal Process and Lien.The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. Held: (NO) 1. It is clear from the above provision that COA disallowances cannot be deducted from benefits under RA 8291, as the same are explicitly made exempt by law from such deductions. Retirement benefits cannot be
diminished by COA disallowances in view of the clear mandate of the foregoing provision. 2. Accordingly, the GSIS interpretation of Section 39 that COA disallowances have become monetary liabilities of respondents to the GSIS and therefore fall under the exception stated in the law is wrong. No interpretation of the said provision is necessary given the clear language of the statute. A meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein by construction. 3. That retirement pay accruing to a public officer may not be withheld and applied to his indebtedness to the government has been settled in several cases. In Cruz v. Tantuico, Jr., the Court, citing Hunt v. Hernandez, explained the reason for such policy thus: x x x The exemption should be liberally construed in favor of the pensioner. Pension in this case is a bounty flowing from the graciousness of the Government intended to reward past services and, at the same time, to provide the pensioner with the means with which to support himself and his family. Unless otherwise clearly provided, the pension should inure wholly to the benefit of the pensioner. Rabor v. CSC, May 31, 1995 Petitioner Dionisio Rabor is a Utility Worker who entered the government service at the age of 55 years. Pagatpatan, an official in the Office of the Mayor of Davao City, advised Dionisio M. Rabor to apply for retirement, considering that he had already reached the age of 68 years and 7 months, with 13 years and 1 month of government service. Rabor responded to this advice by exhibiting a "Certificate of Membership" issued by the Government Service Insurance System At the bottom of this "Certificate of Membership" is a typewritten statement of the following tenor: "Service extended to comply with 15 years service requirements” CSC Memorandum Circular No. 27, s. 1990 provides, in part: 1. Any request for extension of service of compulsory retirees to complete the fifteen years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS) and shall be granted for a period of not exceeding one (1) year. In this proceeding, petitioner Rabor contends that his claim falls squarely within the ruling of this Court in Cena v. Civil Service Commission. Issue: WON Civil Service Commission Memorandum No. 27 relating to extension of service of compulsory retirees should be upheld
Held: 1. It will be seen that Cena, in striking down Civil Service Commission Memorandum No. 27, took a very narrow view on the question of what subordinate rule-making by an administrative agency is permissible and valid. The rule on limiting to one the year the extension of service of an employee who has reached the compulsory retirement age of 65 years, but has less than 15 years of service under Civil Service Memorandum Circular No. 27, S. 1990, cannot likewise be accorded validity because it has no relationship or connection with any provision of P.D. 1146 supposed to be carried into effect. The rule was an addition to or extension of the law, not merely a mode of carrying it into effect. The Civil Service Commission has no power to supply perceived omissions in P.D. 1146. 2. Clearly, therefore, Cena when it required a considerably higher degree of detail in the statute to be implemented, went against prevailing doctrine. It seems clear that if the governing or enabling statute is quite detailed and specific to begin with, there would be very little need (or occasion) for implementing administrative regulations. It is, however, precisely the inability of legislative bodies to anticipate all (or many) possible detailed situations in respect of any relatively complex subject matter, that makes subordinate, delegated rule-making by administrative agencies so important and unavoidable. All that may be reasonably; demanded is a showing that the delegated legislation consisting of administrative regulations are germane to the general purposes projected by the governing or enabling statute. This is the test that is appropriately applied in respect of Civil Service Memorandum Circular No. 27, Series of 1990, and to this test we now turn. 3. The enabling statute that should appropriately be examined is the present Civil Service law found in Book V, Title I, Subtitle A, of Executive Order No. 292 dated 25 July 1987, otherwise known as the Administrative Code of 1987 and not alone P.D. No. 1146, otherwise known as the "Revised Government Service Insurance Act of 1977." For the matter of extension of service of retirees who have reached sixty-five (65) years of age is an area that is covered by both statutes and not alone by Section 11 (b) of P.D. 1146. It was on the bases of Section 12 of the present Civil Service Law set out in 1987 Administrative Code that the Civil Service Commission promulgated its Memorandum Circular No. 27. In doing so, the Commission was acting as "the central personnel agency of the government empowered to promulgate policies, standards and guidelines for efficient, responsive and effective personnel administration in the government." It was also discharging its function of "administering the retirement program for government
officials and employees" and of " evaluat[ing] qualifications for retirement." 4. In addition, the Civil Service Commission is charged by the 1987 Administrative Code with providing leadership and assistance "in the development and retention of qualified and efficient work force in the Civil Service" (Section 16 ) and with the "enforcement of the constitutional and statutory provisions, relative to retirement and the regulation for the effective implementation of the retirement of government officials and employees" (Section 16 ). We find it very difficult to suppose that the limitation of permissible extensions of service after an employee has reached sixty-five (65) years of age has no reasonable relationship or is not germane to the foregoing provisions of the present Civil Service Law. The physiological and psychological processes associated with ageing in human beings are in fact related to the efficiency and quality of the service that may be expected from individual persons. 5. Cena laid heavy stress on the interest of retirees or would be retirees, something that is, in itself, quite appropriate. At the same time, however, we are bound to note that there should be countervailing stress on the interests of the employer agency and of other government employees as a whole. The results flowing from the striking down of the limitation established in Civil Service Memorandum Circular No. 27 may well be "absurd and inequitable," as suggested by Mme. Justice Griño-Aquino in her dissenting opinion. An employee who has rendered only 3 years of government service at age 65 can have his service extended for 12 years and finally retire at the age of 77. This reduces the significance of the general principle of compulsory retirement at age 65 very close to the vanishing point. 6. Our conclusion is that the doctrine of Cena should be and is hereby modified to this extent: that Civil Service Memorandum Circular No. 27, Series of 1990, more specifically paragraph (1) thereof, is hereby declared valid and effective. Section 11 (b) of P.D. No. 1146 must, accordingly, be read together with Memorandum Circular No. 27. We reiterate, however, the holding in Cena that the head of the government agency concerned is vested with discretionary authority to allow or disallow extension of the service of an official or employee who has reached 65 years of age without completing 15 years of government service; this discretion is, nevertheless, to be exercised conformably with the provisions of Civil Service Memorandum Circular No. 27, Series of 1990. Tantuico Jr., v. Domingo, February 28, 1994 Petitioner, former chairman of the Commission on Audit, argues that notwithstanding the two clearances previously
issued, and respondent Chairman's (current chairman of COA) certification that petitioner had been cleared of money and property accountability, respondent Chairman still refuses to release the remaining half of his retirement benefits, a purely ministerial act. Issue: WON respondent Chairman of the COA should pay petitioner's retirement benefits in full and his monthly pensions beginning in March 1991 Held: Regardless of petitioner's monetary liability to the government that may be discovered from the audit concerning his fiscal responsibility as former COA Chairman, respondent Chairman cannot withhold the benefits due petitioner under the retirement laws. 1. In Tantuico, we cited Justice Laurel's essay on the rationale for the benign ruling in favor of the retired employees, thus: . . . Pension in this case is a bounty flowing from the graciousness of the Government intended to reward past services and, at the same time, to provide the pensioner with the means with which to support himself and his family. Unless otherwise clearly provided, the pension should inure wholly to the benefit of the pensioner. 2. Under Section 4, RA 1568 (An Act to Provide Life Pension to the Auditor General and the Chairman or Any Member of the Commission of Elections), the benefits granted by said law to the Auditor General and the Chairman and Members of the Commission on Elections shall not be subject to garnishment, levy or execution. Likewise, under Section 33, PD 1146, as amended (The Revised Government Service Insurance Act of 1977), the benefits granted thereunder "shall not be subject, among others, to attachment, garnishment, levy or other processes." 3. Well-settled is the rule that retirement laws are liberally interpreted in favor of the retiree because the intention is to provide for the retiree's sustenance and comfort, when he is no longer capable of earning his livelihood (Profeta vs. Drilon, 216 SCRA 777 ). Gloria v. CA, April 21, 1999 This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr., 1 but many incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave.
Issue: WON respondents who were put under preventive suspension have a right to compensation in case of exoneration 1. There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigations (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated 2. Preventive suspension pending investigation is not a penalty. It is a measure intended to enable to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. 3. There is no right to compensation for Preventive Suspension Pending Investigation even if employee is exonerated. The Ombudsman Act of 1989 (RA 6770) categorically provides that preventive suspension shall be "without pay." Sec. 24 reads: Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. 4. There is a right to compensation for Preventive Suspension Pending Appeal if employee is exonerated.
Preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. The respondent "shall be considered as under preventive suspension during the pendency of the appeal in the event he wins." On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the government's theory would be to make the administrative decision not only executory but final and executory 5. Private respondents are entitled to back salaries. They were exonerated of all charges against them for acts connected with the teachers' strikes of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated: Under Section 23 of the Rule Implementing Book V of EO 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. PAGCOR v. Salas, August 1, 2002 Salas was PAGCOR’s Internal Security Staff before the latter fired him for loss of confidence because he engaged in proxy betting. Salas filed a case against PAGCOR (Case 1) where the Supreme Court held that Salas was illegally dismissed because he was not a confidential employee who can be dismissed for loss of confidence. Reinstatement with full backwages was ordered without prejudice to the filing of administrative charges against Salas.
While this judgment was pending execution, PAGCOR reinstated Salas but imposed a 90-day suspension on him pending investigation on an administrative case (Case 2) for grave misconduct which PAGCOR filed against him. In the admin case, the CSC ordered Salas’ dismissal which is to retroact to the date of the commission of the offense. Held: Salas is entitled to backwages from the time he was illegally dismissed until his reinstatement. In Case 1, Salas was found to have been illegally dismissed. Therefore, the first dismissal effected by PAGCOR has no legal force and effect and Salas’ tenure of office was never interrupted. He is therefore entitled to all the rights and privileges that accrue to him by virtue of the office he held. The subsequent filing of Case 2 is immaterial since it is separate and distinct from the first charge, even though both cases were based on the same set of facts. In fact, after respondent was held to have been illegally dismissed in Case 1, it was as if he was not dismissed from service at all, and Case 2 is deemed to be his first charge. Prior thereto, he is considered to have been in petitioner’s continuous service, and entitled to all the rights and privileges his position enjoys. This is but the natural consequence of the Court’s finding of illegal dismissal. The subsequent dismissal cannot retroact to a date prior to the filing of an administrative case against respondent. The filing of an administrative case against Salas is the requisite ‘due process’ which must precede his removal if warranted. “Due process” here means that dismissal may be made only prospectively. Bunye v. Sandiganbayan, May 5, 1999 Petitioners are public officers (mayor, vice mayor, councilors, etc.) who enacted Resolution 45, and on the basis thereof, forcibly took possession of the New Public Market in Muntinlupa and thereafter took over the operation and management of the public market despite the fact that there was a valid and subsisting lease contract for a term of 25 years executed between the government and the Kilusang Magtitinda. A case was filed against them for violation of Sec. 3(e) of RA 3019. The Sandiganbayan found them guilty. Held: The petitioners are not guilty of graft and corruption. The subject lease contract was grossly disadvantageous to the government, as the monthly rentals were only 5% of the monthly income of the Kilusang Magtitinda. Moreover, the
Kilusang Magtitinda failed to comply with the contractual stipulations under the Health and Sanitation Clause. The elements of Sec. (3) of RA 3019 are as follows: 1. That the accused are public officers or private persons charged in conspiracy with them; 2. That said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; 3. That they cause undue injury to any party, whether the Government or a private party; 4. That such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and 5. That the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence. The element of undue injury is not present. While there was P13M received by the government from the market vendors, records show that the contract for the management and operation of the New Muntinlupa Public Market was awarded to the same Kilusang Magtitinda, but with a new set of duly elected officers. Thus the business interest of the stallholders concerned has never been adversely affected, and no market vendor was displaced or prevented from operating in the New Muntinlupa Public Market, as a result of the implementation of Resolution 45, No undue injury was caused by the petitioners to the market vendors or to Kilusang Magtitinda. Duterte and de Guzman v. Sandiganbayan, April 27, 1998 The Davao City government entered into a contract with SPI for the purchase of computer hardware and accessories. A civil case was thereafter filed against the city council and officers of SPI for the judicial declaration of nullity of the resolutions and ordinances which pushed for the contract, and a declaration of nullity of the contract itself. At the seller, the contract was mutually rescinded by Davao City and SPI. Thereafter, the Special Audit Team of the Commission on Audit submitted a report recommending the rescission of the subject contract. The Anti-Graft League filed a criminal case against the public officers involved and SPI for violation of Sec. 3(g) RA 3019, claiming the contract made entered into without public bidding and was grossly disadvantageous to the government as the acquisition cost was overpriced. Held: There is no basis in law or in fact to charge petitioners for violation of Sec. 3(g) RA 3019. To establish probable cause against the offender for violation of Sec. 3(g), the following elements must be present: 1. the offender is a public officer;
2. he entered into a contract or transaction in behalf of the government; and 3. the contract or transaction is grossly and manifestly disadvantageous to the government. Here, the second element of the crime that the accused public officers entered into a contract in behalf of the government is absent. The computerization contract was rescinded before the special audit report came out and before the Anti-Graft League filed its complaint with the Ombudsman on 1 August 1991. Hence, at that time the AntiGraft League instituted their complaint and the Ombudsman issued its Order on 12 November 1991, there was no longer any contract to speak of. The contract, after 6 May 1991 became in contemplation of law, non-existent, as if no contract was ever executed. Llorente, Jr. v. Sandiganbayan and Fuertes, March 11, 1998 Llorente was Mayor of Sindangan, Zamboanga. He was charged with violation of Sec.3(e), RA3019 for causing undue injury to Leticia Fuertes by refusing to sign and approve the payrolls and vouchers representing the latter’s salaries and other emoluments. Fuertes was the Assistant Municipal Treasurer of Sindangan but because she was detailed to other municipalities, she was dropped off the payroll. She was just given vouchers that she could use to claim her salary upon presentation of clearance from the different offices where she was detailed. According to Llorente, the delay in the release of Fuertes’ salary was because he was trying to verify the claims of overpayment by the Municipality of Piñan. However, Sandiganbayan found Llorente guilty. It found that the delay in the release of the salary was unreasonable and was done to harass Fuertes because the Mayor wanted to assign his political protégée to the position of Municipal Treasurer bypassing Fuertes who was next in seniority. It also took note that such delay caused difficulties in meeting her family’s financial obligations like paying for the tuition of her children. Issues: 1. 2. WON prosecution established the elements of undue injury and bad faith. No. WON Sec.3(e) RA3019 can be committed through nonfeasance.
(2) That the public officer commits the prohibited acts during the performance of his or her official duties in relation to his/her public positions (3) That he/she causes undue injury to any party, whether the gov’t or a private party (4) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence - Undue injury requires proof of actual injury or damage and must be specified, quantified and proven to the point of moral certainty o Undue: more than necessary, not proper or illegal o Injury: any wrong or damage done to another, either in his person, rights, reputation or property; the invasion of any legally protected interest of another - In this case, the allegations of financial stress caused by the delay in the release of Fuertes’ salary was inadequate and largely speculative this does not satisfy the requirement for undue injury Re: Evident Bad Faith - It was Fuertes’ failure to submit the required clearance that caused the delay in the release of her salaries - Such fault cannot be attributed to the Llorente - Bad faith imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud these were absent in this case Re: violation of Sec.3 (e) - This section requires a doing or a MISFEASANCE - The acts imputed to Llorente more properly falls under a nonfeasance since it involves a failure to do something according to the court this offense more properly falls under Sec.3(f) o "(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party." o In this case, the criminal act is the neglect or refusal to act w/in reasonable time and not the undue injury - However, since this is not the crime charged to Llorente, the SC refused to rule on his liability under this provision VI. DISABILITIES OFFICERS AND INHIBITIONS OF PUBLIC
Re: Undue Injury Elements of undue injury that must be proven beyond reasonable doubt: (1) That the accused is a public officer or a private person charged in conspiracy with the former
Javellana v. DILG and Santos, August 10, 1992 Atty. Javellana was elected councilor. While holding such position he handled cases, in one of which he represented employees who were dismissed by the City Engineer. A case was filed against him for violation of a DLG Memorandum Circular (in relation to RA 6713, Code of Conduct and Ethical Standards for Public Officials and Employees) which imposes limitations on the practice of profession of public officers. Held: Atty. Javellana, as a councilor, cannot handle cases that would represent interests adverse to the government. Complaints against public officers and employees relating or incidental to the performance of their duties are impressed with public interest. The illegal dismissal case handled by Javellana against the City Engineer is in effect a complaint against the City Government, the employees’ real employer, of which Javellana is a councilman. Hence, judgment against the City Engineer would be judgment against the City Government. By serving as counsel for the complaining employees Javellana violated the DLG Memo Circular (in relation to RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government. Javellana’s contention that Section 90 of the LGC and the circular which provides that only the SC has the authority to regulate the practice of law, is untenable. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The LGC and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it. Tuzon and Mapagu v. CA and Jurado, August 21, 1992 Petitioners are the mayor and treasurer of the municipality of Camalaniugan. The Sangguniang Bayan enacted a resolution requiring palay thresher operators to “donate” 1% of the palay threshed by them when they apply for a permit. Jurado was required by the petitioners to comply with the resolution, which the former refused. He filed a civil case against them invoking Art. 27, CC.1
Held: Petitioners cannot be held liable since they acted within the scope of their authority and without malice. One purpose of Art. 27 is to end the bribery system, where the public official, for some flimsy excuse, delays or refuses the performance of his duty until he gets a bribe. The provision presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. It has not even been alleged that the Mayor ‘s refusal to act on the application was an attempt to compel him to resort to bribery. It cannot be said either that the mayor and the municipal treasurer were motivated by personal spite or were grossly negligent in refusing to issue the permit and license to Jurado. It was not shown also that the petitioners singled out the private respondent for persecution. Neither does it appear that the petitioners stood to gain personally from refusing to issue to Jurado the mayor's permit and license he needed. Petitioners acted within the scope of their authority and in consonance with their honest interpretation of the resolution. It was not for them to rule on its validity. In the absence of a judicial decision declaring it invalid, its legality would have to be presumed. As executive officials of the municipality, they had the duty to enforce it as long as it had not been repealed by the Sangguniang Bayan or annulled by the courts. Wylie v. Rarang, May 28, 1992 The petitioners, officers of the United States Navy stationed in the country, were responsible for a column read by the base personnel which mentioned “Auring” in relation to the prohibited act of appropriating confiscated items for personal use, and described her as “a disgrace to her division” and the Office of Provost Marshal. Prior to the publication, the Office of the Provost Marshal explicitly recommended the deletion of the name “Auring” if the article were to be published. Notwithstanding the same, the article which continued to contain the name “Auring” was approved by petitioners and published. Respondent Aurora is the only “Auring” in the Office of the Provost Marshal and it was also conclusively proven that she was the person mentioned in the column when one of the petitioners wrote her an apology letter for the inadvertent publication. Aurora filed a suit for damages. Petitioners countered that they acted in the performance of their official prejudice to any disciplinary administrative action that may be taken.
functions as officers of the US Navy and are therefore immune from suit. Held: Petitioner officers are liable in their personal capacities, for a tortious act, for damages caused to Aurora. The law does not allow the commission of crimes in the name of official duty. Public officials can be held personally accountable, for acts claimed to have been performed in connection with official duties, where they acted ultra-vires or in bad faith. Here, the acts of petitioners are ultra vires and cannot be part of official duty. It was a tortious act which ridiculed the private respondent. Hence, Petitioners are liable in their personal capacities for the damages they caused the private respondent. VII. LIABILITIES OF PUBLIC OFFICERS Reyes, Domo-ong and Principio v. Rural Bank of San Miguel, February 27, 2004 Reyes (Head of BSP Supervision and Examination Sector) and Domo-ong (Director of the BSP Dept of Rural Banks) were held liable for violation of the “standards of professionalism” as prescribed in RA6713 or the Code of Conduct and Ethical standards for Public Officers and Employees. The acts of unprofessionalism imputed to petitioners were that they used the distressed financial condition of the Rural Bank of San Miguel (RBSM) as the subject of a case study in a seminar by the BSP and that they did the brokering of the sale of RBSM they urged RBMI to sell the bank and even introduced the President to possible buyers. However, according to Reyes and Domoong, the seminars were not conducted under their auspices and they did not do any act that constituted brokering. Issue: WON Reyes and unprofessionalism. NO. Domo-ong are guilty of
Art. 27, CC. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without
Re: use of RBSM’s distressed financial condition as a subject of a case study - Court found that their culpability is not grounded on an established fact but on an mere inference that the seminar was conducted under their auspices - The entity that conduct the seminar was the Resource Management Sector, a separate office under the control and supervision of another Deputy Governor and not the Supervision and Examination Sector (SES) of the BSP which is headed by Reyes - Even the allegation of RBSM that SES disclosed information about the former’s difficulties is not anchored on any concrete piece of evidence - The Court noted that the acts imputed involved the preparation of bids for the conduct of the seminar, purchase
of supplies and contract negotiations done by their subordinates Reyes and Domo-ong are holding high ranking positions and they cannot be expected to know of minute details such as the flow of files and documents that leave their desks - Court also noted that the negligence of the subordinate cannot be attributed to the superior in the absence of evidence showing the latter’s negligence. Re: Alleged brokering - Professionalism: conduct, aims, or qualities that characterize or mark a profession o Pertain to competence, efficiency, experience and proficiency - SC equates brokering with unprofessionalism but the question is whether the acts of Reyes constitute brokering - Broker: one who is engaged, for others, on a commission, negotiating contracts relative to property with the custody of which he has no concern; one whose occupation is to bring the parties together, in matters of trade, commerce or navigation - SC stated that brokering indicates the performance of certain acts for monetary consideration or compensation - In this case, there was no sufficient evidence to prove that Reyes had a financial interest in introducing the President of RBSM to different possible buyers. Moreover, the court noted that it is the policy of the BSP (the entity under which Reyes works) to promote mergers and consolidations to banks that would undergo such corporate combinations. His act of introducing different buyers were done in furtherance of such policy Tabuena v. Sandiganbayan, February 17, 1997 Tabuena and Peralta were charged with malversation by the Sandiganbayan. They were alleged to have malversed P55Million from the Manila International Airport Authority (MIAA) funds while they were acting as the entity’s Gen. Manager and Finance Services Manager. According to Tabuena, the amounts were disbursed in favor of the Philippine National Construction Corporation (PNCC) in settlement of an outstanding obligation. However, the Sandiganbayan found that no such outstanding obligation existed so it convicted Tabuena and Peralta of the crime charged. Tabuena’s defense was that he was verbally instructed by President Marcos to cause such disbursements. Furthermore, he received, from Ms. Gimenez, the private secretary of Pres. Marcos, a Presidential Memorandum, which they referred to as Marcos Memorandum, reiterating the verbal instruction to pay PNCC the amount of P55M through the Office of the President. In obedience to the
memorandum, Tabuena sought the help of Peralta and caused the withdrawal of the said amount form MIAA’s funds and the same was turned over to Ms. Gimenez who issued a receipt. Issue: WON Tabuena was guilty of malversation. NO. Held: Upon presentation of the Marcos Memorandum, the SC ruled in favor of Tabuena - The SC opined that Tabuena had no other choice but to make the withdrawals because the memorandum required him to do so. He could not be faulted if his act was in obedience and compliance with the presidential directive. It is undisputed that Pres. Marcos was Tabuena’s superior and that the former exercised control over government agencies such as MIAA and PNCC - The SC conceded that the memorandum was legal on its face and the defense of good faith proffered by Tabuena must be considered he acted under the honest belief that the P55M was a due and demandable debt - SC noted that even if the order is subsequently found illegal, if it is legal on its face, and the subordinate is not aware of its illegality, the subordinate is not liable in this case, there would only be a mistake of fact committed in good faith. - Not every unauthorized payment of public funds in malversation. - There is malversation when the public officer who has the custody of the public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable - SC noted that there was no proof that Tabuena had anything to do with the Marcos Memorandum there was no proof of conspiracy to make him liable for the act - Taking everything in consideration, SC found Tabuena entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose. Garcia v. Sandiganbayan and Office of the Ombudsman, June 22, 2005 General Garcia, PMA comptroller, along with his wife and kids, were charged with violation of RA1379. He was alleged to have amassed money and property which was manifestly disproportionate to his lawful income as a soldier. A civil case for forfeiture was filed with the Sandiganbayan among the other criminal cases against Garcia. Garcia filed a Motion to Dismiss on the ground that the Sandiganbayan did
not have jurisdiction over the civil case of forfeiture under RA1379. He alleges that the proper court for such action is the RTC as provided for in Sec.2(9) of the said law. Furthermore, he argues that the jurisdiction of the Sandiganbayan in civil actions pertains only to separate actions for recovery of unlawfully acquired property against Pres. Marcos, his family and cronies as can be gleaned from PD1606. Issue: WON Sandiganbayan has jurisdiction over petitions for forfeiture under RA1379. YES Held: The SC has already ruled in Republic v. Sandiganbayan that jurisdiction over violations of RA3019 and RA1379 is lodged with the Sandiganbayan - SC noted RA8249 under which law, the Sandiganbayan is vested with Exclusive Original Jurisdiction in all cases involving violations of RA3019, RA1379 and some provisions of the RPC - Republic v. Sandiganbayan also recognized that an action for forfeiture is an action in rem and is of a civil nature. However, the SC noted that the forfeiture of illegallyacquired property partakes the nature of a penalty and the court went further to cite jurisprudence and authorities in its declaration of the penal nature of forfeiture proceedings - Forfeiture: divestiture of property without compensation, in consequence of a default or an offense; imposed by way of punishment not by the mere convention of the parties, but by the lawmaking power, to insure a prescribed course of conduct - SC then ruled that violations of RA1379 are placed under the jurisdiction of the Sandiganbayan, even though the proceeding is civil in nature because the forfeiture of the illegally acquired property amounts to a penalty. The soundness of this reasoning becomes even more obvious when we consider that the respondent in such forfeiture proceedings is a public officer or employee and the violation of RA1379 was committed during the respondent officer or employee’s incumbency and in relation to his office exercise of jurisdiction over such cases are, therefore, in line with the purpose behind the creation of the Sandiganbayan as an anti-graft court—to address the urgent problem of dishonesty in public service VIII. TERMINATION OF OFFICIAL RELATIONS CSC v. Salas, June 19, 1997 Salas was appointed by PAGCOR Chairman as Internal Security Staff but he was terminated by the Board of Directors for loss of confidence because he allegedly engaged in proxy betting. Salas appealed to the Chairman and BOD of PAGCOR but such was denied. His appeal to the Merit Systems Protection Board was also denied on the
ground that he was a confidential employee which meant that he was not dismissed from service, rather, his term of office merely expired. CSC affirmed the decision of the MSPB. CA found that Salas is not a confidential employee and may not be dismissed for loss of confidence citing the “proximity rule” as basis. Pagcor filed an appeal before the SC. Issue: WON Salas is a confidential employee. NO. PAGCOR: Sec.16 of PD1869 states that “All employees of the casinos and related services shall be classified as confidential appointees.” This means that Salas was properly classified as a confidential employee Salas’ contention: It is the actual nature of an employee’s functions which determined whether or not a position is primarily confidential According to SC: Pagcor’s contention must fail. The classification under PD1869 is NOT absolute and allencompassing Before the passage of the Civil Service Act, there were 2 instances when a position is considered to be primarily confidential • When the president declared the position as such • When the nature of the functions of the office show a “close intimacy” between the appointee and the appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state With the enactment of Civil Service Act of 1959, the nature of the position determines whether a position is primarily confidential, policy-determining or highly technical - Executive pronouncements like the quoted portion of PD1869 can be no more than initial determinations that are not conclusive in case of conflict a strict reading of the quoted provision will violate the constitutionally protected right of an employee to security of tenure - Who will determine the “nature of the position” in case of conflict: the court has the final word such nature is determined not by the title but by the nature of the task that is entrusted to it - SALAS is NOT A CONFIDENTIAL EMPLOYEE - CA correctly applied the “proximity rule” enunciated in De los Santos v. Mallare case: "Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee
for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. . . ." - Confidential employee: predominant reason why he was chosen for the office was because the appointing authority believed that he can share a close intimate relationship with the former which ensures freedom of discussion w/o fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state - Proximity Rule: If the position occupied is remote from that of the appointing authority, element of trust is no longer predominant - Salas’ position involves ordinary and routinary duties and functions. Also his meager salary of P2,200 a month belies the confidential nature of his duties Lecaroz v. Sandiganbayan, March 25, 1999 Francisco Lecaroz (father) was the Mayor while his son Lenlie was the outgoing chairman of the Kabataang Barangay (KB) and also a member of the Sangguniang Bayan (SB). They were convicted of 13 counts of estafa through falsification of public documents committed in this way. In 1985 election, Joel Red won as KB Chairman and was subsequently appointed by Pres. Marcos as member of the SB. He received a telegram from the Nat’l Chairperson of the organization confirming his appointment and he forwarded this to Mayor Lecaroz. However, the latter informed him that his appointment still needed clearance from the Governor of Marinduque. Red received his appointment papers on January 1986 but forwarded them only on April 23, 1986 when Pres. Aquino was already in power. Despite his appointment papers, he was still not allowed by Mayor Lecaroz to sit as sectoral representative in the SB. Meanwhile, Mayor Lecaroz prepared and approved 26 sets of payrolls for Lenlie Lecaroz covering the period January 16, 1986 to January 30, 1987. Lenlie signed the payroll for Jan1-15, 1986 and authorized someone else to sign all the other payrolls. Red was finally able to receive his appointment papers from the Aquino Administration on October 1989. He filed several criminal complaints against Mayor and Lenlie Lecaroz because of their refusal to let him assume his position as KB representative in the SB. After preliminary investigation, Ombudsman filed wth the Sandiganbayan 13 informations for estafa through falsification of public documents against both Mayor & son and 1count of violation of Sec.3 (e) of RA3019 but only against the Mayor. Sandiganbayan found them guilty of the estafa ruling that Red’s assumption of the
KB Presidency was valid since he was elected for the position and took his oath of office before a member of the Batasang Pambansa. However, Sandiganbayan acquitted Lecaroz on the violation of RA3019 stating that he was justified in not allowing Red to assume his position in the SB as the latter was not properly appointed. Lecarozes appealed the Ombudsman’s decision to the SC, hence this petition. Issue: Whether Lenlie validly held office in a holdover capacity for the period that Red’s appointment was still incomplete? YES Re: Holdover Capacity Implies that the office has a fixed term and the incumbent is holding unto the succeeding term Usually provided by law that the officers elected/appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified The law abhors a vacuum in public office and this is what is sought to be avoided by the concept of holdover capacity - In this case, Red was elected as KB Chairman but he failed to qualify to take the position of SB member because his oath was invalid and he lacked his appointment papers - Because Red failed to qualify to take the office as KB Chairman and SB Member, Lenlie Lecaroz validly stayed in office in a holdover capacity Re: Oath of Office - a qualifying requirement for a public office and a prerequisite to his taking office - Only when the public officer has taken his oath does his right to enter into the office plenary and complete - In this case, Red took his oath before Assemblywoman Reyes. However, Admin code then in force stated that members of the Batasang Pambansa were not authorized to administer oaths - This meant that Red’s oath was made before someone who had no authority to administer the same this mean that his oath was invalid or amounted to no oath as all Re: Falsification Charges - SC noted that the crime charged required a showing that the malefactors acted with criminal intent or malice. Mere judgmental error cannot be considered to amount to the required criminal intent or malice In this case, SC found clear manifestations of good faith and lack of criminal intent There is a presumption of good faith when acts are done in the performance of official duty Mayor Lecaroz’ believed that his son was still validly holding the position of KB Chairman, albeit in a holdover capacity, and this warranted his inclusion in the payroll
- Moreover, SC found that the facts of the case do not show that all the elements of the crime was present (a) offender makes in a document statements in a narration of facts; (b) offender has a legal obligation to disclose the truth of the facts narrated; (c) facts narrated by the offender are absolutely false; and, (d) perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person - 1st and 3rd elements are missing since the Mayor was not making a narration of facts when he certified to the correctness of the payroll which included his son’s name and his belief that Lenlie was still in a holdover capacity had valid basis and is not absolutely false Sangguniang Bayan of San Andres, Catanduanes, v. CA, January 16, 1998 Antonio was elected barangay captain, and later president of the Association of Barangay Councils (ABC). In such capacity and pursuant to LGC of 1983, he was appointed by the President as member of the Sangguniang Bayan (SB). DILG Sec declared the election for president of Federation of Association of Barangay Councils (FABC), in which Antonio was a voting member, void for want of quorum. A reorganization being necessary, DILG Sec designated Antonio as a temporary member of the Sangguniang Panlalawigan (SP). Thus, he tendered his resignation as member of the Sangguniang Bayan to the Mayor (cc: governor, DILG and municipal treasurer). Aquino, then VP of ABC, was appointed in his stead and assumed office after taking his oath. SC reversed DILG secretary’s ruling & Antonio’s appointment to SP was declared void. He wrote the members of the SB, advising them of his re-assumption of his original position. SB passed a Resolution declaring that he had no legal basis for such claim. DILG opined that Antonio did not vacate his position because he was merely designated to SP. SB refused to budge. TC: resignation ineffective & inoperative because there was no acceptance. CA affirmed. Issue1: WON resignation was valid and complete Held: No. RESIGNATION – act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. For a complete and operative resignation from public office, there must be: (a) intention to relinquish a part of the term; (b) an act of relinquishment; &
(c) an acceptance by the proper authority. LGC 1983 provides that the resignation of a member of the sanggunian shall be acted upon by the sanggunian concerned. Here, his resignation letter was addressed only to the municipal mayor. Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be submitted, should be tendered to the appointing person or body. Sec. 146, BP 337: It is the President that appoints members of the sangguniang bayan. Thus, Antonio should have submitted his letter of resignation to the President, or his alter ego, the DILG Secretary. Although he supposedly furnished the DILG with a copy of his letter, there is no showing that it was duly received, much less, that it was acted upon. 3rd requisite was therefore lacking. Issue2: WON Antonio abandoned his office Held: Yes. ABANDONMENT OF OFFICE – voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. It is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through non-user. NON-USER – neglect to use a privilege or a right or to exercise an easement or an office. - The intent to abandon must be clear. Such intention may be express or inferred from his own conduct. 2 essential elements of abandonment: (a) intention to abandon; and (b) an overt or “external” act by which the intention is carried into effect. When an officer is “designated” to another post, he is usually called upon to discharge duties in addition to his regular responsibilities. The law does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions of both offices. Antonio’s overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that he had abandoned the contested office. While a temporary or accidental failure to perform his duties in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to
exercise the functions of the office for so long a period as to reasonable warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it. Public Interest Center, Inc. v. Elma, June 30, 2006 Elma was first appointed as PCGG Chairman. Later, during his tenure as such, he was also appointed as Chief Presidential Legal Counsel (CPLC). He took his oath of office, but waived any remuneration he may receive as CPLC. Issue: WON position of PCGG Chairman or that of CPLC falls under the prohIbition against multiple offices Held: Yes.- Sec. 13, Art. VII inapplicable. But Sec. 7, Art. IXB was violated. - Sec. 7 is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Sec. 13 is meant to be the exception applicable only to the President, Vice President, Members of the Cabinet, their deputies and assistants. (1) The general rule in Sec. 7, Art. IX-B permits an appointive official to hold more than 1 office only if “allowed by law or by the primary functions of his position.” Occupying 2 government offices and performing the functions of both is okay as long as there is no incompatibility. TEST: whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. Here, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. As CPLC, Elma will be required to give his legal opinion on his own actions as PCGG Chairman and review any investigation conducted by the PAGC, which may involve himself as PCGG Chairman. (2) Sec. 13, Art. VII applies in particular to Cabinet secretaries, undersecretaries and asst. secretaries. Thus, this provision is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a Sec, USec or AsSec. EXCEPTIONS OFFICES: TO THE RULE AGAINST a) b) MULTIPLE
those provided for under the Constitution posts occupied in an ex officio capacity as provided by law and as required by the primary functions of the official’s office.
- EX OFFICIO CAPACITY – denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office. - Thus, it will not suffice that no additional compensation was received by virtue of the 2nd appointment. It is mandatory that the 2nd post is required by the primary functions of the 1 st appointment and is exercised in an ex officio capacity. Canonizado v. Aguirre, February 15, 2001 MR of SC decision holding that petitioners’ removal as Commissioners of NAPOLCOM and the appointment of new Commissioners in their stead were nullities, and ordering their reinstatement and payment of full backwages. Resps point out that Canonizado was appointed by Pres. Estrada to the position of Inspector General of the Internal Affairs Service (IAS) of the PNP in the interim. According to resps, by virtue of that fact, Canonizado is deemed to have abandoned his claim for reinstatement, since the offices of NAPOLCOM Commissioner and Inspector Gen of IAS are incompatible. Issue: WON there existed an incompatibility Held. No Incompatibility but ABANDONMENT OF OFC – voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. EXCEPTIONS TO NON-USER: (1) temporary disability (2) involuntary failure to perform Where, while desiring and intending to hold office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office. By accepting the appointment to the 2nd office, Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. He who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. The incompatibility contemplated is not the mere physical impossibility of one person’s performing the duties of the 2 offices due to lack of time or the inability to be in 2 places at the same moment, but that which proceeds from the nature and relations of the 2 positions to each other as to give rise to contrariety and antagonism should one person attempt to
faithfully and impartially discharge the duties of one toward the incumbent of the other. There is no question that the 2 positions are incompatible. However, the rule will not apply because at no point did Canonizado discharge the functions of the 2 offices simultaneously. Rosales v. Mijares, November 17, 2004 When Rosales assumed office as Mayor, he told Mijares (municipal engineer) to resign, under pain of abolition of position. So as not to antagonize the mayor, Mijares later responded that he was open to the possibility of being transferred to the Provincial Engineering Office. Thus, the mayor indorsed him to the Provincial Governor. Mayor sent a letter to Mijares stating that his request for transfer was granted for 30 days. However, no action was taken by the Governor. Meanwhile, Mijares continued reporting for work at the Municipal Engineer’s Office. When the 30-day period elapsed, mayor sent another letter to Mijares, informing him that since he did not ask for an extension of his transfer, he is considered resigned. Mijares avers that since the request for transfer was not acted upon by the Governor, it never became effective. Issue: WON there was a valid transfer Held: No. TRANSFER – movement from one position without break in service involving the issuance of an appointment. According to the CSC Memorandum Circular: “An employee who seeks transfer to another office shall first secure permission from the head of the department or agency where he is employed, stating the effective date of the transfer.” “If, for whatever reason, the employee fails to transfer on the specified date, he shall be considered resigned and his reemployment in his former office shall be at the discretion of his head.” Thus, there has to be a written and not merely a verbal request for an employee to transfer to another office. The request must be such that he intended to surrender his permanent office. It must also be voluntary. If done without the employee’s consent, that would constitute removal from office. Unconsented transfer is anathema to security of tenure. A transfer that aims by indirect method to terminate services or to force resignation constitutes removal.
Mijares was coerced into resigning by mayor Rosales. Mijares never even filed any written request for transfer. Office of the Ombudsman v. CA, June 16, 2006 Corominas spouses filed an administrative complaint against DENR employees for trespassing on their land. Ombudsman found them guilty and imposed the penalty of 1 month suspension. CA, relying on Tapiador case, affirmed the guilty finding, but ruled that Ombudsman cannot impose a penalty because its power is limited only to the recommendation of a penalty. Issue: WON Ombudsman has the power to impose a penalty to an officer or employee found to be at fault. Held: Yes. Tapiador: mere obiter. By stating that the Ombudsman “recommends” the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer. The functions and duties enumerated in Sec. 13, Art. XI of the Constitution is not exclusive. Congress was given leeway to prescribe, subsequent legislation, additional powers to the Ombudsman. The provisions of RA 6770 reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. Otherwise, the Ombudsman would be a “toothless tiger.” De Rama v. CA, February 28, 2001 Upon his assumption to the position of Mayor, de Rama wrote CSC, seeking the recall of the appointments of 14 municipal employees, alleging that these were “midnight appointments” of the former mayor. CSC denied recall. Issue: WON appointments made by former mayor were valid
Held: The 14 employees were duly appointed. There was no showing that any of the, were not qualified for the positions they were appointed to. Moreover, their appointments took effect as soon as they were duly attested to by the CSC Head. - Upon the issuance of an appointment and the appointee’s assumption of the position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. - It is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, and not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well. - Here, there was no previous notice, much less a hearing. De Rama did not accord them due process. - Under the Omnibus Implementing Regulations of the Admin Code, an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the CSC. An approved appointment may still be recalled on any of the ff grounds: (a) non-compliance with the procedures/ criteria provided in the agency’s Merit Promotion Plan; (b) failure to pass through the agency’s Selection/Promotion Board; (c) violation of the existing collective agreement between management and employees relative to promotion; (d) violation of other existing civil service law, rules and regulations. Lastly, the constitutional prohibition on “midnight appointments” applies only to the President or acting President. De Leon v. CA and Montesa, January 22, 2001 Private respondent Atty. Montesa - not a Career Executive Service Officer (CESO) or a member of the Career Executive Service (CES) - was appointed Ministry Legal Counsel CESO IV in the Ministry of Local Government by then Minister Pimentel. His appointment was approved as permanent by the CSC. President Aquino promulgated EO 262 reorganizing the Ministry/Department. Secretary Santos, who succeeded
Minister Pimentel, designated Patricio as Chief of Legal Service replacing Montesa. Montesa filed petition for quo warranto before SC against Patricio and Secretary Santos SC ordered his reinstatement. [Because RA 6758 (Salary Standardization Law) took effect, wherein the position of Department Service Chiefs, which include the Department Legal Counsel, was reclassified and ranked with Assistant Bureau Directors under the generic title Director III, Montesa was reinstated as Department Legal Counsel and/or Director III.] Subsequently, DILG Secretary Alunan issued a Department Order relieving Montesa of his current duties and reassigning him as Director III (Assistant Regional Director) of Region XI “in the interest of public service and the smooth flow of operations in the concerned offices.” Montesa did not report to this newly assigned position and instead filed a 90day sick leave. Upon expiration thereof, he submitted a memorandum signifying his intent to re-assume his position as Department Legal Counsel/Chief of Legal Service to acting Secretary Aguirre, who advised Montesa to report to Region XI immediately. CSC affirmed Montesa’s reassignment through Resolution. Montesa did not report for work still; he filed a petition for review with the CA which did not issue a TRO/preliminary injunction against the CSC et al. 13 Dec 1995: President Ramos, upon recommendation of the Department, issued AO 235, dropping private respondent Montesa, Director III, Legal Service, from the roster of public servants for serious neglect of duty and absences without leave. 25 April 1996: CA ruled in favor of private respondent. It declared the Department Order reassigning Montesa null and void, insofar as it affects the latter and ordered his reinstatement as Department Legal Counsel/Chief of Legal Services, with payment of back salaries. Both sides moved for reconsideration – Montesa wanting his benefits and petitioners citing Ramos’s AO. CA modified its decision, holding the AO null and void insofar as it affects Montesa and also granting him his other allowances and stuff. HELD/RATIO: (1) Montesa does not have the required Career Executive Service eligibility. The position of Ministry Legal Counsel - CESO IV is embraced in the CES, and to be eligible therefor, a CES examination should be taken [and passed, duh]. Not having taken the necessary CES exam, Montesa did not at the time of his appointment up to the present, possess eligibility for a position in the CES.
(2) Montesa’s appointment did not attain permanency. Consequently, his appointment as Ministry Legal Counsel CESO IV/ Department Legal Counsel and/or Director III, was merely temporary. Thus, he could be transferred or reassigned without violating his right to security of tenure, and arguments regarding his unconsented transfer are not applicable. Non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in CES positions, a privilege even their eligible counterparts do not enjoy. Abella, Jr. v. CSC, November 17, 2004 1996: Petitioner Abella Jr, lawyer, retired as Department Manager of the Legal Services Department of the now Philippine Economic Zone Authority. He held a civil service eligibility for the position of Department Manager pursuant to CSC Resolution 850 . CSC issued Memorandum Circular 21  which redefined the eligibility for positions in the CES and provides that “Incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other Career Executive Service positions, these incumbents shall be under temporary status in said other CES positions until they qualify.” 1998: Petitioner was hired by Subic Bay Metropolitan Authority on a contractual basis. He was issued a permanent employment by SBMA as Department Manager III, Labor and Employment Center . Upon submission to the CSC however, it was disapproved on the ground that petitioner’s eligibility was not appropriate. Hence, pursuant to the 1994 Circular, he was issued a temporary appointment to the same position. CSC affirmed SBMA’s action. Petitioner filed a petition for review with the CA, assailing the constitutionality of the 1994 Circular as it rendered his earned civil service eligibility ineffective for the position of Department Manager III. CA skirted the constitutionality issue and held that: Only the appointing officer, Citing CSC Memorandum Circular 40 1998 and Mathay v. Civil Service Commission, may request reconsideration of the action taken by the CSC on appointments. Thus, petitioner did not have legal standing to question the disapproval of his appointment.
On reconsideration, CA added that petitioner was not the real party in interest, as his appointment was dependent on the CSC’s approval. He had no vested right in the office, since his appointment was disapproved. HELD/RATIO: (1) Petitioner has standing to challenge CSC’s disapproval; he is also the real party in interest. * SC discussed diff between standing and RPII – the former has constitutional underpinnings, the latter is one who would be benefited or injured by the judgment, or one entitled to the avails of the suit. If legal standing is granted to challenge the constitutionality or validity of a law or governmental act despite lack of personal injury on the challenger’s part, then more so should petitioner be allowed to contest the CSC Order disapproving his appointment. He was clearly prejudiced by the disapproval, since he could not continue his office. Also, while the appointing authority is indeed adversely affected by the CSC Order and is a real party in interest, the appointee is rightly a real party in interest too - he is prevented from assuming the office in a permanent capacity and he would necessarily benefit if a favorable judgment is obtained, as an approved appointment would confer on him all the rights and privileges of a permanent appointee. (2) But the CSC correctly denied his permanent appointment, petitioner not possessing CES eligibility. Positions in the career service, for which appointments require examinations, are grouped into three major levels those in the third level (CES positions) require Career Service Executive Eligibility (CSEE) as a requirement for permanent appointment. Petitioner argues that his eligibility, through the Executive Leadership and Management training program [under the 1979 CSC Resolution], could no longer be affected by a new eligibility requirement. He claims that being eligible as Department Manager of the Legal Services Department, PEZA he should retain his eligibility for the position of Department Manager III, Labor and Employment Center , SBMA, notwithstanding the classification of the latter as a CES position. -The Circular did not revoke petitioner’s ELM eligibility. It’s just that under it, his eligibility for a CES position was inadequate. Eligibility must conform to the requirements of the position - in petitioner’s case, a CSEE was necessary. Thus, petitioner’s right to security of tenure was not impaired. First, security of tenure in the CES - except in the case of first and second level employees in the civil service pertains only to rank, not to the position to which the
employee may be appointed. Second, petitioner had neither rank nor position prior to his reemployment. (3) No need for prior notice and hearing. Classification of positions in career service was a quasi-legislative, not a quasi-judicial, issuance. The CSC, in approving or disapproving an appointment, merely examines the conformity of the appointment with the law and the appointee’s possession of all the minimum qualifications and none of the disqualification. Remolona v. CSC, August 2, 2001 Remolona is the Postmaster at the Postal Office Service in Infanta, Quezon; his wife Nery Remolona is a teacher at the Kiborosa Elementary School . 3 Jan 1991: Francisco America, District Supervisor of DECS at Infanta, Quezon, inquired with the CSC re: the civil service eligibility of Nery Remolona who purportedly got a rating of 81.25% as per Report of Rating issued by the National Board for Teachers. America also disclosed he received information that Nery was campaigning for a fee of P8K per examinee for a passing mark in the teacher's board examinations. CSC Chairman issued an order directing an investigation. It was discovered that Nery Remolona’s name was not in the list of passing and failing examinees; furthermore, the examination number she claimed as hers actually corresponds to one Marlou Madelo, who took the examination in Cagayan de Oro and got a rating of 65%. During the preliminary investigation conducted by Director Pasion, only petitioner appeared and signed a written statement of facts which summarized how he paid for and procured for his wife the alleged fake eligibility. He also said that his wife had no knowledge thereof. Director recommended the filing of the appropriate administrative action against petitioner but absolved the Mrs. since it has not been shown that she willfully participated in the offense. A formal charge was filed against both the spouses for possession of fake eligibility, falsification and dishonesty. CSC Regional Director, after hearing, issued a Memorandum recommending that the spouses be found guilty as charged. CSC adopted the recommendation and meted the penalty of dismissal to spouses Remolona, but on MR, CSC absolved Nery. CA dismissed the petition for review filed by the petitioner. ISSUE: WON a civil service employee can be dismissed from the government service for an offense which is not work-related or which is not connected with the performance of his official duty.
HELD/RATIO: YES. (1) Remolona, guilty of dishonesty, a grave offense which need not be committed in the course of the performance of duty by the person charged. Dishonesty is considered a grave offense punishable by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing Book V of Administrative Code of 1987. And the rule is that dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. Rationale: if a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected connected with his office, they affect his right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service. (2) Remolona’s right to due process was not violated when he was not assisted by counsel during the preliminary investigation and his confession may be used as evidence to justify dismissal. The right to counsel in the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, under existing laws [Civil Service Act and Implementing Rules of the Admin Code], a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding, respondent has the option of engaging the services of counsel or not. Remolona was not accused of any crime in the investigation which was conducted merely for the purpose of ascertaining the facts and whether there is prima facie evidence sufficient to form a belief that an offense cognizable by the CSC has been committed and that petitioner is probably guilty thereof and should be administratively charged. Hence, admissions
made by Remolona during such investigation may be used as evidence to justify his dismissal. (3) Dismissal not too harsh a penalty. Although no pecuniary damage was incurred by the government, as petitioner posits, there was still falsification of an official document that constitutes gross dishonesty which cannot be countenanced, considering he was an accountable officer and occupied a sensitive position. The Code of Conduct and Ethical Standards for Public Officials and Employees enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the public service. CSC v. Lucas, January 21, 1999 Raquel Linatok, assistant information officer at the Agricultural Information Division, Department of Agriculture, filed with the office of the Secretary an affidavit-complaint against Jose Lucas, a photographer of the same agency, for misconduct (allegedly touching the former’s thigh, and throwing her out of the office after she kicked him for touching her). DA’s Board of Personnel Inquiry issued summons requiring Lucas to answer the complaint. Lucas submitted a letter to the BOPI assistant head denying the charges - that he accidentally brushed Linatok’s leg when he reached for his shoes and there was no malicious intent when such happened. After formal investigation, the BOPI issued a resolution finding Lucas guilty of simple misconduct and recommending a penalty of suspension for 1 month and 1 day. Secretary of Agriculture approved the recommendation. Lucas appealed to the CSC which issued a resolution finding Lucas guilty of grave misconduct and imposed on him the penalty of dismissal from the service. Lucas’s reconsideration was denied. Lucas appealed to the CA which set aside the CSC resolution and reinstated the BOPI one. Hence, this petition for review on certiorari. SC affirmed CA. (1) Simple and grave misconduct are distinct offenses. Memorandum Circular No. 49-89 classifies administrative offenses into grave, less grave and light. Grave misconduct falls under grave offenses; simple misconduct is classified as a less grave offense. The former is punishable by dismissal while the latter is punishable either by suspension (1 month and 1 day to 6 months), if it is the first offense; or by dismissal, if it is the second. Thus, they should be treated as separate and distinct offenses.
(2) Elements of corruption, clear intent to violate law or flagrant disregard of establish rule, lacking in case at bar. Landrito vs. CSC: In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest.” (3) Lucas was not duly informed of the grave misconduct charge. A basic requirement of due process is that a person must be duly informed of the charges against him and that a person can not be convicted of a crime with which he was not charged. Lucas came to know of the modification of the charge against him only when he received notice of the resolution dismissing him from the service. (4) Administrative proceedings not exempt from fundamental principles such as due process. The right to substantive and procedural due process is applicable in administrative proceedings. (5) Lucas’s act, while not condoned by the Court remains to be a less grave offense. Even in jest, Lucas had no right to touch Linatok’s leg. However, under the circumstances, such act is not constitutive of grave misconduct, in the absence of proof that Lucas was maliciously motivated. It is also noted that Lucas has been in the service for 20 years and this is his first offense. Bernardo v. CA, May 27, 2004 Petitioner Bernardo entered the government service as Claims Adjuster of Land Bank, Baliuag Branch. 27 Jan 1986: Bernardo deposited P500K in his savings account. After making the deposit, he photocopied that page in his bank passbook where the deposit was reflected and, on the same day, withdrew the amount. He executed, in his capacity as treasurer-in-trust of Markay Trading and Manpower Services [which was still in the process of incorporation] a Treasurer’s Affidavit, falsely certifying that “at least 25% of the authorized capital stock of the corporation has been subscribed and 25% of the total subscription has been paid and received by me in cash or property in the amount of P500K in accordance with the Corporation Code.” On the same day, Bernardo executed a letter-authority to the SEC authorizing it to examine and verify the deposit in Land Bank Baliuag, in his name as Treasurer-in-Trust for the said corporation. 30 Jan 1986: Markay Trading submitted its Articles, signed by Bernardo as one of the incorporators, to SEC. He also
executed an affidavit that he was elected treasurer. Turns out, Bernardo never opened an account with Land Bank Baliuag for the account of the corporation. Meanwhile, Bernardo was promoted to Assistant Branch Manager. 18 Sept 1989: Land Bank filed a formal charge against Bernardo for gross neglect, grave misconduct, conduct prejudicial to the best interest of the bank, and serious violation of CSC rules and regulations. The Hearing Officer, after formal investigation, found Bernardo guilty of 1) engaging in business, occupation or vocation without securing the permission of Land Bank in violation of CSC Rules and 2) committing acts of falsification amounting to grave misconduct in office, and further recommended that the penalty of forced resignation be meted out, in light of the fact that there were 2 other administrative cases pending against him. Land Bank approved the HO’s recommendations. On appeal, the Merit Systems Protection Board affirmed Land Bank and additionally found Bernardo guilty of misrepresentation of a material fact amounting to dishonesty for engaging directly in a private business without the permission required by the CSC rules and regulations. CSC found Bernardo guilty of grave misconduct, conduct prejudicial to the best interest of the service, and engaging in private business without prior authority from the head of office and anchored its ruling on the ground that Bernardo, being a bank employee, utilized such position to commit irregular acts [depositing and withdrawing the P500K. HELD/RATIO: (1) Petitioner was deprived of his right to be informed of the charges against him insofar as CSC’s finding that he’s administratively liable for depositing P500K in his name as treasurer-in-trust of MTMSI, and withdrawing the amount prior to the incorporation thereof in the absence of any resolution of its Board of Directors authorizing him to do so, although not alleged in the formal charges. (2) Still, he is guilty of grave misconduct and conduct prejudicial to the best interest of the service based on the evidence. He was guilty of Misrepresentation amounting to Dishonesty for the ff acts: making a false statement in his letter to the SEC [that P500K was deposited - but in his personal account, not the corporation’s, and withdrawn the same day]; making a statement in a sworn affidavit that he received money and property for the payment of the corporation’s subscription when he did not in fact receive anything, etc “Misrepresentation” - a false statement about a material fact in any contract or other transaction that misleads the
party to whom it is made. “Dishonesty” - concealment or distortion of truth in a matter of fact. It signifies absence of integrity, a disposition to betray, cheat deceive or defraud, bad faith Furthermore, he was guilty of Misrepresentation of a Material Fact when he represented his personal account to be the corporation’s, thus putting the Bank’s integrity in jeopardy and also to the prejudice of the corporation’s creditors, if any. Petitioner not guilty of Misrepresentation amounting to Falsification of Documents because the latter contemplates that he must have acted in his capacity as an employee or official and must have altered the genuine document or execute the false document relevant to or in connection with the performance of his duty as such. - Bernardo acted in his capacity as Treasurer of Markay Trading (3) Reiterating Remolona: causes which warrant the dismissal of a civil servant need not necessarily be workrelated or committed in the course of the performance of duty by the person charged. The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public’s faith and confidence in the government. CSC v. Belagan, October 19, 2004 Magdalena and Ligaya filed separate complaints against respondent Dr. Belagan, DECS Superintendent. Magdalena - for sexual indignities and harassment. That she filed an application for a permit to operate a pre-school, a condition precedent for the approval of which is the inspection of the school premises for which respondent volunteered. During inspection, respondent put his arms around her and kissed her cheek. He also asked her for a date when she followed up on the application. Ligaya – for sexual harassment and various malfeasances. That on 4 separate occasions, respondent touched her breasts, kissed her cheek, touched her groins, embraced her from behind and pulled her close to him, his organ pressing the lower part of her back. Also, that respondent (1) delayed payment of the teachers’ salaries; (2) failed to release pay differentials of substitute teachers; (3) willfully refused to release the teachers’ uniforms, proportionate allowances and productivity pay; and (4) failed to constitute the Selection and Promotion Board, as required by the DECS rules and regulations. DECS conducted a joint investigation, found respondent guilty, and ordered his dismissal from service.
CSC affirmed decision with respect to Magdalena, but dismissed Ligaya’s complaint. It found respondent guilty of grave misconduct and ordered his dismissal. Belagan filed MFR alleging a string of cases filed against Magdalena before MTC Baguio City, that these cast doubt on her character, integrity, and credibility. CSC denied paren his MFR. But on appeal, CA reversed CSC: that Magdalena is an unreliable witness, her character being questionable. That given her aggressiveness and propensity for trouble, “she is not one whom any male would attempt to steal a kiss.” In fact, her “record immediately raises an alarm in any one who may cross her path.” The CA also absolved respondent from the charges, considering his “unblemished” service record for 37 years. HELD/RATIO: (1) General Rule: the character of a party is regarded as legally irrelevant in determining a controversy. The exception to this, invoked by respondent is Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence: “The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.” But this applies only in criminal, not administrative, cases!!! Assuming the exception applies in case at bar, respondent’s argument cannot be sustained because the character evidence must be only those which would establish the probability or improbability of the offense charged. In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalena’s chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her which do not establish the probability or improbability of the offense charged. (2) With respect to attacking Magdalena’s credibility, a different provision applies. Section 11, Rule 132 of the same Revised Rules on Evidence renders a witness impeachable by evidence attacking his general reputation for truth, honesty, or integrity. Although she is the offended party, Magdalena , by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation.
(3) BUT, Magdalena’s derogatory record is not sufficient to discredit her credibility. First, it is well-settled that evidence of one’s character or reputation must be confined to a time not too remote from the time in question. What is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. In the case at bar, the complaints against Magdalena were filed in like, the 80’s, while the instant administrative case was filed in 1994. “It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform.” Second, respondent did not prove that Magdalena was convicted in any of these cases. (4) Respondent’s act clearly constitutes grave misconduct, which should be punishable by dismissal. In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest. Corruption as an element of grave misconduct consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. This is apparently present in respondent’s case as it concerns not only a stolen kiss but also a demand for a “date,” an unlawful consideration for the issuance of a permit to operate a pre-school. (5) However, in light of respondent’s 37 years in the service, length of service being a Mitigating Circumstance, and the fact that this is his first administrative charge, the penalty meted out was merely suspension without pay for 1 year. Villanueva v. CA, July 20, 2006 (naked in the couch case) Villanueva was a Legislative Assistant II at the time he and a married woman were found naked asleep on the couch. The House Disciplinary Board found him guilty of grave misconduct, disgraceful and immoral conduc prejudicial to best interest of service. He was suspened for 1 year. After the MR, he was dismissed by the Board and all his benefits forfeited. The CSC found him guilty of disgraceful and
immoral conduct and was suspended. On appeal to the CA, it reinstated the Board's decision and dismissed him, finding that the offense related to his official conduct as it was made possible precisely by his functions; moreover, he had used his office to commit the misconduct. Issue: WON Villanueva was guilty of grave misconduct in office Held: NO. The offense here was in no way connected to the performance of his functions and duties. It falls short of the grave misconduct as defined by law. He was guilty of disgraceful and immoral conduct having engaged in an illicit affair, for which he can be administratively liable. For first offense of such, penalty is just suspension. Misconduct means intentional wrongdoing. But Misconduct IN OFFICE has a definite meaning which is such that it affects the performance of duties as an officer and not such only as affects his character as a private individual. To constitute an administrative offense, it must RELATE TO or BE CONNECTED with the performance of his official functions and duties. We separate the personal from the public. The misconduct herein was not related to his functions or duties. Laurel V v. CSC, October 28, 1991 (nepotic appointment of the brother) Laurel V as governor appointed his brother as senior executive assistant, and later to be provincial administrator. Later on, also as civil security officer. After being questioned, CSC removed his brother from the post of acting provincial administrator as the same was a nepotic appointment. Issue: WON the post of provincial administrator was primarily confidential such that it was exempt from nepotism prohibition Held: NO. It is a nepotic appointment. Firstly, Laurel was estopped by his own prior admission that the post was part of the career service. Secondly, looking at the characteristics of the position, it is indeed career service in nature. The post is thus subject to the prohibition against nepotic appointments. There is also a standing prohibition from desigating one to a career service position and a non-career position (the latter embraced the brothers' 2 other appointments). Finally, the Court said that as between "designation" and "appointment" there is no distinction, based on the intent of PD 807. For purposes of nepotism, they are the same.
Hagad v. Gozo-Dadole, December 12, 1995 Criminal and administrative complaints were filed against respondents (officials of Mandaue City) with the Office of the Deputy Ombudsman for violation of RA 3019, Arts. 170 & 171, RPC, and RA 6713. The respondents were put under preventive suspension. Respondents opposed this and filed a MTD, assailing the jurisdiction of the Ombudsman, claiming that under the Local Government Code, the Office of the President and not the Office of the Ombudsman could lawfully take cognizance of the administrative complaints against any elective official of a province, a highly urbanized city, or an independent component city to impose disciplinary sanctions including preventive suspensions. Issue1: WON the LGC divested the Ombudsman of his investigatory powers over local government officials? Held: NO. The general investigatory power of the Ombudsman is decreed by Sec. 13(1), Art. XI of the Consti, while his statutory mandate to act on administrative complaints is in sec. 19 of RA 6770 (Ombudsman Act). Sec. 21 names the officials subject to the disciplinary authority of the Ombudsman and Sec. 24 gives him authority to put these officials under preventive suspension. The LGC has conferred, but not on an exclusive basis, on the Office of the President disciplinary authority over local elective officials. The LGC did not withdraw the power of the Ombudsman theretofore vested under RA 6770 conformably with the constitutional mandate. There is nothing in the LGC to indicate that it has repealed the pertinent provisions of the Ombudsman Act. Issue2: WON the 6-month preventive suspension under the Ombudsman Act is repugnant to the 60-day preventive suspension under the LGC Held: No. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 RA 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so
warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Issue3: WON the Ombudsman committed grave abuse of discretion when it issued the preventive suspension without any hearing. Held: No. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventive suspension would occur prior to any finding of guilt or innocence. Moreover, the respondents were put on preventive suspension only after it was found that the evidence of guilt was strong. Pablico v. Villapando, July 31, 2002 A complaint for abuse of authority and culpable violation of the Consti was filed against Mayor Villapando for entering into a consultancy agreement with a defeated Mayoralty candidate in the recent elections. They argued that the consultancy agreement amounted to an appointment to a government position within the prohibited 1-year period. The Office of the President affirmed the Sangguniang Panlalawigan’s penalty of dismissal. V-Mayor Pablico assumed his office. The CA declared void these decisions and ordered Villapando’s reinstatement. Issue: WON local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on erring local elective officials. Held: No. Under the LGC (Sec. 60) only a court of law may do that. The Rules and Regulations implementing the LGC cannot amend or contravene the law. Hence, the power to remove erring local elective officials from service is lodged exclusively with the courts. The IRR insofar as it vests power on the “disciplining authority” to remove from office these officials, is void for being repugnant to the law it seeks to implement. CSC v. Dacoycoy, April 29, 1999 A complaint for habitual drunkenness, misconduct and nepotism was filed against Dacoycoy, a Vocational School Administrator. The CSC found Dacoycoy guilty of 2 counts of nepotism because his 2 sons were working as a utility man and a driver in the school, and ordered his dismissal.
The CA said that since there was neither appointment nor recommendation, there’s no nepotism. It reversed the CSC. The CSC appealed. Issue1: Scope of Nepotism Held: There’s Nepotism in this case. Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority; b) recommending authority; c) chief of the bureau or office, and d) person exercising immediate supervision over the appointee. Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. In this case, though Dacoycoy neither appointed nor recommended directly, the ban on nepotism was circumvented when the recommending authority was Dacoycoy’s subordinate. Issue2: “the party adversely affected” who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. Held: Ruling that the party adversely affected by the decision refers to the government employee against whom the administrative case was filed is expressly abandoned. In this case, it is the CSC who has become the party adversely affected by the CA’s ruling, which seriously prejudices the civil service system. Dissents: law does not contemplate review of decisions exonerating officers or employees from administrative charges. To allow this would be stocking the stakes too much against our civil servants. CSC is not the aggrieved party, hence it has no legal personality to elevate the case to the appellate authority. The aggrieved party, has long been held, is the government employee against whom an administrative complaint is filed. Rubenecia v. CSC, May 31, 1995 Teachers of Catarman High School filed before the MSPB a complaint against Rubenecia for dishonesty, nepotism,
oppression and violation of Civil Service Rules. During the pendency of the case, the CSC issued a Resolution which provided that cases then pending before the MSPB were to be elevated to the CSC for decision. The CSC, accordingly, took over Rubenecia’s case and found him guilty and ordered his dismissal. Issue1: WON CSC had authority to issue its Resolution and assume jurisdiction over the case: Held: Yes. (Rubenecia’s argument is that since MSPB was created by law, it could only be abolished by law). The MSPB was originally created by PD 1409, which states: “There is hereby created in the CSC a Merit Systems Board.” Sec. 16 of the present Civil Service Law found in the Administrative code of 1987 followed the same line and recreated the Merit Systems Board as an office of the CSC and gave it a new name: Merit System Protection Board. MSPB was intended to be an office of the CSC. It was not an autonomous entity created by law. The Resolution sought to streamline the operations of the CSC and eliminate the duplication of functions. The previous procedure made it difficult for cases to be resolved within a reasonable period of time. Moreover, the resolution did not purport to abolish the MSPB nor to effect the termination of public employment between the CSC and any of its officers or employees. Even if the the Resolution had purported to do so (abolish MSPB), Rubenecia, not being an employee of the MSPB, has no personality or standing to contest such termination of public employment. Issue2: WON Rubenecia was denied due process Held: No. The fundamental rule of DP requires that a person be accorded notice and an opportunity to be heard. These were present in this case. The Formal Charge against Rubenecia was sufficient notice, which enabled him to prepare his defense. His answer to the formal charge was considered. In any case, his MFR cured whatever defect might have existed in respect of the alleged denial of procedural dp. Denial of dp cannot be successfully invoked by a party who has had the opportunity to be heard on his MFR. CSC v. Cortez, June 3, 2004 Cortez, Chief Personnel Specialist of the Examination and Placement Services Division (EPSD) of Civil Service Regional Office No. X, Cagayan de Oro City was formally charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service for issuing stamps that have been previously issued to be able to
pocket the money (price of the stamps). The CSC found her guilty and dismissed her. The CA said that dismissal is too harsh considering that this is her 1st offense and she had been in service for 21 years. The CA considered her forcibly resigned with a right to all the benefits she may be entitled to. The CSC said that what she did constituted dishonesty, grave misconduct and prejudicial to the best interest of the service which under the rules are all grave offenses punishable by dismissal. Cortez says that her length of service and the fact that this is her 1 st offense, and that there was no damage to the government should be taken into consideration. Issue: WON the penalty of dismissal is too harsh Held: No. Civil Service Law says dismissal for the following offenses: dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service. Although in some cases, the SC lowered the penalty of dismissal to either forced resignation or suspension, under the facts, Cortez is not entitled to a lower penalty. Length of service is an alternative circumstance which can be taken for or against the respondent. In this case, Cortez’s length of service should be taken against her because it was her length of service which helped her in the commission of the offense. Cortez earned her position as Chief of EPSD because of her length of service. This position allowed her to have access to previously issued stamps. Her act irreparably tarnished the integrity of the CSC. The gravity of her offense is the reason why the circumstance of “1 st offense” cannot be considered in her favour. CSC ruling reinstated. Canonizado v. Aguirre, January 25, 2000 (NAPOLCOM office was not abolished) RA 8551 which effectively shortened the terms of the incumbent NAPOLCOM commissioners and removed them from office was being assailed for being unconstitutional. In defense of the law, the SG argues that the law intended to impliedly abolish the NAPOLCOM by means of reorganization by changing the functions and composition of the same. Issue: WON there was a valid abolition of the NAPOLCOM Held: NO there was None. Petitioners reinstated. Requirement for an abolition to be valid is that the same be done in GOOD FAITH and not for political or personal reasons or to circumvent the security of tenure of civil service employees. Abolition connotes the intention to do away with the office wholly and permanently. Here there was a substantial identity of functions between the old and
new office; and they were not irreconcilable. The changes introduced are not essential as the organizational structure was pretty much the same. There is a valid reorganization when there is an alteration of the existing structure of the government office including lines of control, authority and responsibility between them. Eugenio v. CSC, March 31, 1995 (office created by law has to be abolished by law also) CSC issued a resolution which streamlined the organizational structure of the CESB and "abolished" the same. Now, it was to become the Office of the CES (Career Executive Service) of the CSC. Petitioner Eugenio was given CES eligibility and recommended by the CESB (now abolished) for a CESO rank. With the abolition, she was effectively put "on hold" and was unable to get her rank. She filed this petition to anul the resolution assailing the authority of the CSC to abolish by a mere resolution, an office created by law. Issue: WON the CESB could be abolished by the CSC resolution Held: NO. CESB was created by PD No. 1 and as such it can only be abolished by another law, passed by the legislature. Here there was no such law, in fact it was even included in the GAA that year. Section 16 and 17 must be read together - to show that the offices under CSC do not include the CESB, as such, its power to reorganize does not cover it. The CESB is merely administratively attached to the CSC, meaning solely for purposes of policy and program coordination. Fernandez v. Sto. Tomas, March 7, 1995 The OPIA was merged with the OPR to create the RDO. This was effected by the CSC via resolution. It is being assailed by petitioners as violative of their right to security of tenure. Issue: WON the resolution validly merged the said offices. Held: Yes. No violation of security of tenure. The resolution formed a new grouping, renamed some of the offices of the CSC(which included the OPR and OPIA) and it reallocated some functions. The purpose was to decentralize and devolve the functions of the CSC. The SC found that the motives were legitimate and that the same did not amount to an abolition of a public office. None of the changes in the organization involved a termination of a relationship of public employment between the CSC and any of its officers. The law precisely allowed the CSC to effect
reorganization as the need arises. There was also a valid delegation of the legislative function to the CSC. There was no violation of their right to security of tenure since their appointment was to the rank, not to a particular post. Petitioners were merely reassigned - validly at that. Buklod ng Kawaning EIIB v. Zamora, July 10, 2001 President Aquino issued EO 127 which established EIIB (Economic Intelligence and Investigation Bureau) - EIIB was an agency primarily responsible for antismuggling operations - 11 years later, President Estrada issued EO 191 which deactivated EIIB on the ground that there was an overlapping of functions with the Bureau of Customs and NBI - He then issued EO 196 which created the Presidential Anti-Smuggling Task Force—“Aduana” - Because of the issuance of both EOs EIIB personnel were separated from service - Buklod ng Kawaning EIIB then filed this case alleging that EO 191 and EO 196 are unconstitutional for being violative of their security of tenure and that it was a usurpation of the power of Congress to abolish EIIB Issue: WON EO 191 and EO 196 are unconstitutional. Held: NO! they are constitutional. Further, the President has the authority to reorganize the executive department. General Rule: the power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to destroy. Exception: as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures. This case reiterates the ruling in Larin v. Executive Secretary where the court held that President has the authority to effect organizational changes in the department or agency under the executive structure. EO 292 (Administrative Code of 1987): also has an express grant of such power. Here, EIIB falls under the Office of the President and hence, subject to the President’s continuing authority to reorganize —which includes the reduction of personnel, consolidation of offices, or abolition thereof.
*WRT the validity of the reorganization Reorganizations are valid provided they are pursued in good faith and it is in GF if it is for the purpose of economy or to make bureaucracy more efficient. Evidence of BF: 1. where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned 2. where an office is abolished and another performing substantially the same functions is created 3. where incumbents are replaced y those less qualified in terms of status of appointment, performance and merit 4. where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices 5. where the removal violates the order of separation HERE, the deactivation of EIIB and creation of Aduana was in GF. There is no employment of new personnel since the staff will be composed of people who are already in the public service. Further, it was shown that Aduana’s allocation of funds is much lesser than that of EIIB. Valid abolition of offices is neither removal nor separation of the incumbents. ELECTION LAW I. GENERAL PRINCIPLES Relampagos v. Cumba, April 27, 1995 Relampagos and Cumba were candidates for the position of Mayor. Cumba was then proclaimed winner. - Relampagos filed an election protest before the RTC RTC: Relampagos won in the election and not Cumba - Cumba then filed an appeal before the COMELEC - Relampagos filed a motion for execution pending appeal and RTC then issued the writ of execution. MFR filed by Cumba wa denied - Cumba filed before the COMELEC a petition for certiorari to annul the decision granting the writ of execution COMELEC: granted Cumba’s petition for certiorari and held that it has jurisdiction in certiorari, prohibition and mandamus cases citing Section 50 of BP 697 which allegedly still remains in force in view of the fact that BP 881 did not
expressly repeal such provision. Issue: WON the COMELEC has jurisdiction over petitions for, certiorari, prohibition, and mandamus in election cases where it has exclusive appellate jurisdiction. Held: YES. BP 697 which is entitled “an act to govern the election of members of the Batasang Pambasa on May 14, 1984 and the selection of sectoral representatives thereafter, appropriating funds therefor or for other purposes” provides in Section 50 that COMELEC is vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases. This provision has NOT been repealed by BP 881. Section 282 of BP 881 which is the repealing clause did not expressly repeal BP 697. Further, Section 50 of BP 697 is not inconsistent with the provisions of BP 881 or our election laws. COMELEC is the most logical body whenever it performs judicial functions to take jurisdiction of petitions for certiorari, prohibition and mandamus because it has appellate jurisdiction in election cases granted by the Constitution itself. The CA has no more appellate jurisdiction. Moreover, certiorari jurisdiction of the Supreme Court in election cases should properly be limited to decisions, orders or rulings of the Commission on Elections, not from lower courts. Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C, acts as a court of justice performing judicial power and said power includes the determination of whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily follows that the Comelec, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in aid of its appellate jurisdiction. RTC also committed grave abuse of discretion when it issued the writ of execution. Upon perfection of the appeal filed by Cumba, it was then divested of jurisdiction. Aquino v. COMELEC, September 18, 1995 Facts:Aquino filed his certificate of candidacy for the position of Congressman in the 2 nd district of Makati City and in such certificate, he indicated that he resided in Makati for 10 months - Move Makati, a political party, filed a petition to disqualify Aquino on the ground that he lacked the necessary residence requirement—should be at least 1 year. - A day after, Aquino then filed another certificate of candidacy amending the first one he filed. This time stating
that he resided in Makati for 1 year and 13 days. - COMELEC: dismissed the petition for disqualification - MFR was filed with the COMELEC en banc - Elections were held and Aquino won - Move Makati then filed an urgent motion ad cautelam to suspend the proclamation of Aquino - Aquino opposed such order. He filed a motion to lift the suspension of proclamation and also raised the issue of WON the determination of his qualifications after the elections is lodged exclusively in the HRET. - COMELEC en banc: granted the petition to disqualify Aquino. Issue: WON COMELEC still has jurisdiction to determine the disqualification of Aquino. Held: YES! The court made a distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position of the wining candidate. Under Section 17 Article VI of the 1987 Constitution, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives. While the proclamation of a winning candidate in an election is ministerial, BP 881 allows suspension of proclamation. Even after the elections, the COMELEC is empowered to continue to hear and decide questions relating to the qualifications of candidates. This rule is applicable not only in disqualification cases but also to deny due course to or cancel a certificate of candidacy. Further, COMELEC erred in its order proclaiming the candidate obtaining the second highest number of votes. The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. Social Weather Stations. Inc. v. COMELEC, May 5, 2001 Facts: SWS is a research institution which conducts surveys while Kamahalan Publishing publishes such election surveys.
from enforcing Section 5.4 of RA 9006 (Fair Election Act) 2 arguing that it constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. o These surveys did not cause confusion among the voters and there is no evidence to show that there is an immediate and inevitable danger in the voting process. - COMELEC justifies such as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election o Further, the restriction is only for a limited duration. There is no total ban Issue: WON Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression and the press. Held: YES! The ban on election surveys cannot be justified on the ground that there are other countries which has a similar restriction. The court noted that the US has no such restriction. The test to determine the constitutional validity of Section 5.4 of RA 9006 is the O’brien test (US v. O’Brien): A government regulation is sufficiently justified: 1. if it is within the constitutional power of the Government; 2. if it furthers an important or substantial governmental interest; 3. if the governmental interest is unrelated to the suppression of free expression; and 4. if the incidental restriction on alleged Freedoms of speech, expression and press is no greater than is essential to the furtherance of that interest. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. HERE, Section 5.4 fails to meet the above criteria. First, it fails to meet the 3rd criterion. Tthe purpose of the restriction is for the integrity of election. However, such governmental interest in fact suppresses a whole class of expression and not just election surveys. Such governmental interest is not limited to a class of expression which may be proscribed.
-They filed this action for prohibiton to enjoin COMELEC
Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election.
organizations, the electorate voted. Further, the prohibition may only be for a limited time but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Second. It fails to meet the 4 th criterion of the O’Brien test. Section 5.4 aims at the prevention of lastminute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." However, these cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. These aims can be achieved by other means. The COMELEC has the power to confiscate bogus survey results calculated to mislead voters. As to the bandwagon effect, such cannot justify the restriction of free speech. ABS-CBN Broadcasting Corp. v. COMELEC, January 28, 2000 Facts: COMELEC issued a resolution which restrained ABSCBN or other groups from conducting exit survey on the ground that they might conflict with the official COMELEC count and the unofficial count of NAMFREL. Issue: WON COMELEC’s resolution is valid. Held: NO! The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the COMELEC cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the COMELEC so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or In determining whether there was an abridgment of freedom of speech, the court applied the clear and present danger test-- The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. HERE, the ban was aimed at ensuring a free, orderly, honest, credible and peaceful election. COMELEC contends that an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further makes the exit poll highly unreliable. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process. HOWEVER, the SC held that such arguments are purely speculative. The exit polls merely consist of the opinion of the polling group as to who the electorate has probably voted for. Further, there is no showing that conducting such exit poll is disruptive. There are other ways by which COMELEC can achieve the purposes mentioned by limiting the area for conducting exit polls or only allowing a professional survey to conduct such. The interviewers may be required to explain to voters that they are not required to answer or that it is not part of the official balloting process and etc. Moreover, the contention that it violates the sanctity of the ballot has no merit. ABS-CBN does not seek to access the ballots cast by the voters. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Philippine Press Institute, Inc. v. COMELEC, May 22, 1995 Facts: PPI is contesting the constitutional validity of a COMELEC resolution No. 2772, directing publishers of mass media to provide free print space as COMELEC Space and it also seeks to prohibit undue reference to candidates or political parties, on the ground that it amounts to a taking of a private property for a public purpose without just compensation, it constitutes involuntary servitude, and it is violative of freedom of speech. COMELEC alleges that its subsequent resolution (res. No. 2772-A) clarified that the former resolution does not force publishers to provide the space under pain of prosecution.
Held: SC said that the case is not moot and academic as resolution 2772-A did not redraft pertinent sections of res. No. 2772. The resolution amounts to an undue taking of private property as the taking is not justified under the police power of the State. No attempt was made to demonstrate that a real and palpable or urgent necessity for the taking of print space confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and calibrated response to such necessity available to the Comelec. With regard to the prohibition to undue reference, the issue is not ripe for judicial review due to the lack of actual case or controversy. II. THE COMMISSION ON ELECTIONS III. REQUIREMENTS BEFORE THE ELECTION IV. ELECTION CAMPAIGN AND EXPENDITURES V. THE ELECTION VI. CONTESTED ELECTIONS Balindong v. COMELEC, August 9, 1996 Facts: Petitioner contends that the COMELEC gravely abused its discretion in refusing to annul the results in Precinct No. 4 despite its finding that the transfer of the polling place was not in accordance with law and to order a technical examination of the signatures and thumbmarks in the List of Voters and in the Voters' Affidavits. Held: The Supreme Court held that, although the COMELEC declared the transfer of the polling place to be illegal, the fact is that only 66, out of 255 registered voters in Precinct No. 4, were not able to vote. This was not enough to change the outcome of the election as the petitioner’s rival leads by 149 votes. Technical examination of voting paraphernalia involving analysis and comparison of voters' signatures and thumbprints thereon is prohibited in pre-proclamation cases. Loong v. COMELEC, May 16, 1996 Facts: Private respondent was successful in having the election in Parang, Sulu annulled. The COMELEC, however, did not heed the petition of the petitioner in having the elections in 5 other municipalities in Sulu annulled on the ground of “fair play” as he has only brought it upon the awareness of COMELEC after the petition for annulment of private respondent. Held: While, however, the COMELEC is restricted, in preproclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and other analogous causes in actions for
annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters' signatures and fingerprints in order to determine whether or not the elections had indeed been free, honest and clean. The COMELEC acted within its jurisdiction in taking cognizance of the private respondents' petition to annul the election results of or to declare failure of elections in Parang, Sulu, but it committed grave abuse of discretion when confronted with essentially the same situation in petitioners' own petition to annul the elections of or to declare failure of elections in 5 municipalities. The COMELEC arbitrarily and without valid ground dismissed the said petition respecting the aforementioned five municipalities. The untimeliness of the petition is an untenable argument for such dismissal, because law provides for a reglementary period within which to file annulment of elections when there is as yet no proclamation. The COMELEC exercised grave abuse of discretion in dimissing the case on the doctrine of fairness although it already noted some badges of fraud in elections on the said 5 municipalities. Justice, fairness and equity, therefore, require that the Commission should conduct a similar technical examination to determine if voting irregularities in the Municipality of Parang were similarly perpetrated in these five municipalities Ampatuan v. COMELEC, January 31, 2002 Facts: Petitioner questions whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents’ petition for declaration of failure of elections after he had been proclaimed. Held: The Supreme Court held that it was not divested of its jurisdiction. The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation. The petitioner’s proclamation and assumption cannot be presumed to be legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections. Respondents’ allegation of massive fraud and terrorism that attended the election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. If the allegations could be proven, it could warrant a declaration of failure of elections.
Velayo v. COMELEC, March 9, 2000 Facts: Petitioner was not given notice about the preproclamation proceedings instituted against him by the private respondent before the COMELEC. All that he received was the en banc decision of COMELEC annulling his proclamation. The basis of the decision was the new and additional evidence submitted by the private respondents which were not presented before the Municipal Board of Canvassers. Held: The Supreme Court held that although the law provides that pre-proclamation cases are summary in nature, it cannot be stretched to mean ex parte. The adverse party must at the very least be notified so that he can be apprised of the nature and purpose of the proceeding. Also, the decision of COMELEC must be based on the official records and evidence adduced by the parties before the Board of Canvassers. It appears in this case that the decision was not based on that but on new and additional evidence which were not presented before the Board of Canvassers. Even if these evidence were to be considered, they don’t have enough evidentiary value as they were only affidavits of watchers of private respondent. Separate Opinion (Mendoza): Noting and hearing is no longer required as effected by the amendment of the Omnibus Election Code. This is not violative of Due Process as the parties have already been duly heard before the board of canvassers, and their case elevated to the COMELEC on the basis of the records of the board. The COMELEC in this case bent over to accommodate private respondent by allowing new and additional evidence. This was in disregard of the clear mandate of the law to base its decision on the records and evidence elevated to it by the board of canvassers. This deprived the petitioner due process. VII. ELECTION OFFENSES