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Law on Public Officers

Finals Lecture
1. What are the Elements of Public Office?
It must be CREATED by LAW or by
AUTHORITY OF LAW
It must possess a DELEGATION of a
portion of sovereign powers of the
government
- to be exercised for the benefit of the
public
The POWERS conferred and DUTIES to be
discharged must be DEFINED
- Directly or impliedly, by the legislature
or through legislative authority
The
duties
must
be
performed
INDEPENDENTLY and without control of a
superior power other than the law
- UNLESS
> They be those of an inferior or
subordinate office
e Created or authorized by the
legislature
> And placed by it under the general
control of a superior office or body
It must have some PERMANENCE and
CONTINUITY and not be only temporary
or occasional
2. In case of the Board of Canvassers, after the
performance of their last act, will you consider
it as an office?
No. An office must have some
PERMANENCE and CONTINUITY and
not be only temporary or occasional
3. Is salary an element of public office?
No. Salary is merely an incident to an office
4. What are the characteristics of public office?
Public office is a PUBLIC TRUST
- It must be discharged by the encumbent
NOT FOR HIS OWN PERSONAL
AGGRANDIZEMENT but for the
benefit of the public for whom it is held
by him in trust
NOT a hereditable possession
- Must be relinquished upon the expiration
of the term attached to it

PERSONAL TO THE INCUMBENT


and NOT to be considered as property
Not a property and is OUTSIDE THE
COMMERCE OF MAN
- It cannot be a subject of a contract

NOT protected by the due process clause


- No vested right in public office
> EXCEPTION
e Due process is available in the
sense that an officer cannot be
deprived of an office without a
CLEAR EXPRESSION OF
LEGISLATIVE WILL
e When SALARY HAS BEEN
EARNED, it becomes a private
property and is entitled to due
process

The right to hold a public office is NOT a


natural right
- It exists only by virtue of a law expressly
or impliedly creating it
- No one have any vested right in an office
or its salary
> EXCEPTION
e Constitutional Offices, which
provide special immunity as
regards salary and tenure

5. Supposing the Congress enacted a law


abolishing an office thereby depriving the
occupant of his position, is it a violation of due
process?
No.
6. Removal from office vs Abolishment of Office
7. May a public office be inherited?
No. It is not a hereditable possession. It must
be relinquished upon the expiration of the
term attaching to it.
8. Section 26 Art 12 1987 Constitution
Section 26. The State shall guarantee equal
access to opportunities for public service,
and prohibit political dynasties as may be
defined by law.
- HOWEVER, the provision is non-self
executor

9. Are all those who are connected to the


government considered as public officers?
No. In order to be considered as a public
officer, it must involve a delegation of a
portion of the sovereign powers of the
government?

10. How is a public officer chosen?


By ELECTION or APPOINTMENT
11. What is Appointment?
The act of DESIGNATION by the
- appointing officer,
- body or
- board,
> To whom that power has been
delegated,
OF THE INDIVIDUAL,
> Who is to exercise the functions of a
given office.
12. How is Appointment different to Designation?
APPOINTMENT
There is
PERMANENCE
Selection of an
individual who is to
exercise the functions of
the given office
There is security of
tenure

DESIGNATION
Only
TEMPORARINESS
Imposition by law of
ADDITIONAL DUTIES
There is no security of
tenure
Does not grant the
occupant the payment of
additional benefits or
salary attached to such
position.
Presupposes that there
has been a previous
appointment and there is
merely an additional
imposition of duties

13. What is vacancy?


It exists when there is NO PERSON
LAWFULLY AUTHORZED to assume and
exercise AT PRESENT the duties of the
office

Costin vs Quimbo

No person, no matter how qualified and


eligible he is for the certain postion, may
be appointed to an office which is NOT
VACANT.
> REMEDY:
e The incumbent must first be:
1 Legally removed or
1 His appointment validly
terminated.

14. What are the different kinds of vacancies?


ORIGINAL
- When an office is CREATED and NO
ONE HAS YET BEEN CHOSEN TO
FILL IT

CONSTRUCTIVE
- When the incumbent has NO LEGAL
RIGHT TO THE OFFICE and may be
legally replaced by another

ACCIDENTAL
- When the incumbent is SEPARATED
BY ANY MODE OTHER THAN
EXPIRATION OF THE TERM
> Like death, resignation, removal or
abandonment

ABSOLUTE
- Term of the incumbent has expired and
NO SUCCESSOR HAS LEGALLY
QUALIFIED TO REPLACE HIM

15. Luego vs Civil Service Commission


The Civil Service Commission is NOT
EMPOWERED TO DETERMINE the kind
or nature of appointment extended by the
appointing officer
- Its authority being LIMITED TO
APPROVING OR REVIEWING the
appointment IN LIGHT OF THE
REQUIREMENTS of the Civil Service
Law.

When the appointee is QUALIFIED and all


other LEGAL REQUIREMENTS ARE
SATISFIED,
- The commission has no choice but to
attest to the appointment in accordance
with the civil service law.

16. A claim for back salary is merely an incident to


the main action, like reinstatement actions.
Thus, there can be no separate action for the
claim of back wages.
17. Discretionary
Nature
REMONTE CASE

of

Appointment

18. Abila Case


19. What is the Next-in-Rank Rule?
The person next in rank shall be given
preference IN PROMOTION when the
position IMMEDIATELY ABOVE HIS is
vacated
- It does not import any mandatory
requirement that the person next in rank
must be appointed to the vacancy
20. Supposing, in the same department, there is a
Chief Accountant and the next position to such
is a Deputy Accountant and third to the position
is an Administering officer. When the office of
the Chief Accountant became vacant, an
accountant from another department was
appointed to the vacant position. Is there a
violation of the next-in-rank-rule?
No. The Next-In-Rank rule can only be
invoked in case the vacancy is filled through

promotion. In this case, the vacancy was


filled through transfer.

Promotion
- An ADVANCEMENT from one position
to another or
- an
UPWARD
VERTICAL
MOVEMENT of the employees rank or
position

21. Ex Officio Capacity


22. Flores vs Drilon
23. Section 7 Art 9B 1987 Constitution
Section 7. No elective official shall be eligible for
appointment or designation in any capacity to any
public office or position during his tenure.
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 Governmentowned or controlled corporations or their
subsidiaries.