You are on page 1of 15

THE LAW ON PUBLIC OFFICERS

I. Public Office; Definition


• Aparri v CA G.R. No. L-30057, January 31 1984 - A public office is the right, authority, and duty created and conferred
by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the
benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political
system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or
impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in
an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity
as regards salary and tenure, no one can be said to have any vested right in an office or its salary Tobias-Pineda 1.75
• Laurel vs. Desierto, G.R. No. 145368, April 12, 2002

II. Public Office as a Public Trust


• GSIS v Mayordomo, G.R. No. 191218, May 31, 2011 - The Code of Conduct and Ethical Standards for Public Officials
and Employees enunciates the state policy to promote a high standard of ethics in public service, and enjoins public
officials and employees to discharge their duties with utmost responsibility, integrity and competence. Section 4 of the
Code lays down the norms of conduct which every public official and employee shall observe in the discharge and
execution of their official duties, specifically providing that they shall at all times respect the rights of others, and refrain
from doing acts contrary to law, good morals, good customs, public policy, public order, and public interest. Thus, any
conduct contrary to these standards would qualify as conduct unbecoming of a government employee.

III. Nature of Public Office

• ABAKADA-GURO Party List vs. Purisima, G.R. No. 166715, August 14, 2008 Public office is a public trust. It must be
discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By
demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all
government officials and employees have the duty to be responsive to the needs of the people they are called upon
to serve.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the
concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and
loyalty to public service of deserving government personnel.
• City Mayor of Zamboanga v CA, G.R. No. 80270 February 27, 1990
• Re: Report of Judge Vapor on the Habitual Absenteeism of Velez, A.M. No. P-14-3232, August 12, 2014; OCA v. Cruz,
A.M. No. P-14- 3260, September 16, 2014

IV. Public Officers


• Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015 –A public officer is defined in the Revised Penal Code as "any
person who, by direct provision of the law, popular election, or appointment by competent authority, shall take part in
the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government
or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or class.
Local government officials become accountable public officers either (1) because of the nature of their functions; or
(2) on account of their participation in the use or application of public funds.

Officer v Employee v Official


Public employment is broader than public office. All public office is public employment, but not all public employment is a
public office.

Generally, a position is a public office when it is created by law, with duties cast upon the incumbent which involve the
exercise of some portion of the sovereign power, and in the performance of which the public is concerned. Public
employment is a position which lacks one or more of the foregoing elements.
A public officer is one who performs public functions / duties of government by virtue of direct provision of law, popular
election, or appointment by competent authority. His duties involve the exercise of discretion in the performance of the
functions of the government, and are not of a merely clerical or manual nature. (See Sec. 2 (14), E.O. 292)

Note: For the purpose of applying the provisions of the Revised Penal Code, employees, agents, or subordinate officials, of
any rank or class, who perform public duties in the government or in any of its branches shall be deemed as public officers.

· Maniego v. People G.R. No. L-2971 April 20, 1951 - Though originally appointed as a mere laborer, defendant was on
several occasions designated or given the work to prepare motions for dismissal. He was consequently temporarily
discharging such public functions. And as in the performance thereof he accepted, even solicited, monetary reward,
he certainly guilty as charged. A laborer who was in charge of issuing summons and subpoenas for traffic violations in
a judge's sala is considered a public officer. The court held that even temporary performance of public functions is
sufficient to constitute a person as a public official.

• Galero v CA, G.R. No. 151121, July 21, 2008. – Although a security guard was required to submit his DTR, this was merely
used by the government used to verify the correctness of the security agency’s billing. This does not make him a a
government employee as he is employed only by UFSWCA, a private company supplying security services for both
Napocor and PPA.

• Farolan v Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991 When a public officer takes an oath of
office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and
diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use
that prudence, caution, and attention which careful persons use in the management of their affairs. The rule on
Presumption of regularity was also discussed din this case.

• Re: Request of Chief Justice Panganiban, A.M. No. 10-9-15-SC, 12 February 2013 - Under the old Administrative Code
(Act No. 2657), a government “employee” includes any person in the service of the Government or any branch
thereof of whatever grade or class. A government “officer,” on the other hand, refers to officials whose duties involve
the exercise of discretion in the performance of the functions of government, whether such duties are precisely
defined or not. Clearly, the law did not require a specific job description and job specification. Thus, the absence of a
specific position in a governmental structure is not a hindrance for the Court to give weight to one’s government
service as legal counsel and consultant, and consequently consider such as creditable government service for the
purpose of computing retirement benefits. Talaga?

• Azarcon v Sandiganbayan, G.R. No. 116033, February 26 1997 - Art. 203 of the RPC determines who public officers are.
Granting that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to
take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election.
Neither was he appointed by direct provision of law nor by competent authority. While BIR had authority to require
Azarcon to sign a receipt for the distrained truck, the National Internal Revenue Code did not grant it power to
appoint Azarcon a public officer. The BIR’s power authorizing a private individual to act as a depositary cannot be
stretched to include the power to appoint him as a public officer. Thus, Azarcon is not a public officer.

Acceptance of Public Office


No one can be compelled to accept appointment as a public officer.
Exceptions:
EXCEPTIONS:
(1) When citizens are required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. II,
1987 Const.);

(2) When a person who, having been elected by popular election to a public office, refuses without legal motive to be
sworn in or to discharge the duties of said office (Art. 234, RPC; Note: the penalty shall be either arresto mayor, or a fine
not exceeding P 1,000.00, or both)

V. Eligibility, Qualifications and Disqualifications


A. Eligibility is the term usually used in reference to the Civil Service Law, refers to the endowment / requirement /
accomplishment that fits one for a public office.
B. Qualification generally refers to the endowment / act which a person must do before he can occupy a public office.

1. Power to Prescribe Qualifications


GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office, subject to the
following restrictions:
⇒ Congress cannot exceed its constitutional powers;
⇒ Congress cannot impose conditions of eligibility inconsistent with constitutional provisions;
⇒ The qualification must be germane to the position ("reasonable relation" rule);
⇒ Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment.
(Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power.);
⇒ Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the
constitutional criteria are exclusive, and Congress cannot add to them except if the Constitution expressly or
impliedly gives the power to set qualifications.

• Property qualifications may not be imposed for the exercise of the right to run for public office.
• Loss of any of the qualifications during incumbency will be a ground for termination.
• Failure of an officer to perform an act required by law could affect the officer’s title to the given office.
• Prolonged failure or refusal to take the oath of office could result in forfeiture of the office.
• BP 881 – “the office of any ELECTED official who fails or refuses to take his oath of office within 6 months from his
proclamation shall be considered vacant UNLESS failure is for a cause/s beyond his control.
• Oath of office is a qualifying requirement for public office.
• Until he is qualified, the holdover officer is the rightful occupant.
• Oath of office taken before one who has no authority to administer oath, is no oath at all.
• Pendency of election protest is not sufficient basis to enjoin him from assuming office or from discharging his
functions.

2. Authority to Prescribe Qualifications


a) Where qualification is prescribed by the Constitution, these are generally exclusive unless the Constitution
provides otherwise
b) Where public office is created by statute, Congress has plenary powers to prescribe qualifications, provided
that these are:
i. germane to the objectives for which the office was created; and,
ii. not too specific as to fit a particular identifiable person and would effectively deprive the appointing
authority of discretion in the selection of the appointee

3. Disqualifications
Disqualification may be because of unfitness for public office or because the person is rendered ineligible for the
office.

a) Authority - The legislature can prescribe disqualifications in the same manner that it can prescribe
qualifications.
Limitation: these do not violate the constitution
b) General Disqualifications under the Constitution:
i. No candidate who lost in an election, shall, within 1 year after such election, be appointed to any
office in the Government.
ii. No elective official shall be eligible for appointment or designation in any capacity to any public office
or position during his tenure.
iii. No appointive official shall hold any other position in the Government, unless otherwise allowed by law
or the primary functions of his office.

c) Specific Disqualification under the Constitution


i. President, VP, Cabinet Members and their deputies and assistants shall not hold any other office or
employment during their tenure, UNLESS otherwise provided in the Constitution.
ii. No Senator or Member of the HR may hold any other office or employment in the Government
including GOCC, during his term without forfeiting his seat. Neither shall he be appointed to any office
which may have been created or the emoluments increased during the term for which he was elected.
iii. Members of the SC and of other courts established by law shall not be designated to any agency
performing quasi-judicial or administrative functions.
iv. No member of the Constitutional Commission shall during his tenure, hold any other office or
employment. Applies to Ombudsman and his deputies.
v. Ombudsman and his deputies shall not be qualified to run for office in the election immediately
succeeding their cessation.
vi. Members of the Constitutional Commission, Ombudsman and deputies must not have been candidates
for any elective position in the election immediately preceding their appointments.
vii. Members of the Constitutional Commission, Ombudsman and his deputies are appointed to a term of 7
years, without reappointment.
viii. Spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not
during his tenure be appointed:

⇒ As members of the Constitutional Commission


⇒ Office of Ombudsman
⇒ Secretaries
⇒ Undersecretaries
⇒ Chairmen/heads

• People v. Sandiganbayan, G.R. No. 164185. July 23, 2008 - Legal disqualification in Article 244 of the Revised Penal
Code simply means disqualification under the law. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution
and Section 94(b) of the Local Government Code of 1991

• Obiasca v. Basallote, G.R. No. 176707. February 17, 2010 – Respondent had all the qualifications and none of the
disqualifications. Her appointment became effective upon its issuance by the appointing authority and it remained
effective until disapproved by the CSC (if at all it ever was). Disregarding this rule and putting undue importance on
the provision requiring the submission of the appointment to the CSC within 30 days will reward wrongdoing in the
appointment process of public officials and employees. What was sought from her (the position description form duly
signed by Gonzales) was not even a prerequisite before her appointment papers could be forwarded to the CSC.
More significantly, respondent was qualified for the position.

• Achacoso vs. Macaraig, G.R. No. 93023, March 13, 1991 - A permanent appointment can be issued only “to a person
who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed.” The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right dependS on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate eligibles.

• Cuevas vs. Bacal, G.R. No. 139382, December 6, 2000 - Passing the CES examination entitles the examinee to a
conferment of CES eligibility and the inclusion of his name in the roster of CES eligibles.
Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an
incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the
President upon the recommendation of the Board. This process completes the official’s membership in the CES and,
most importantly, confers on him security of tenure in the CES.
To contend that a CES eligibility was all that was required to make her appointment to the position of Chief Public
Attorney permanent would give rise to an anomalous situation. Following such theory, even if respondent is not
appointed CESO I because her performance as Chief Public Attorney does not warrant her appointment to such
higher rank, she cannot be transferred to any other office to which her rank (CESO III) qualifies her.

•Flores v. Drilon, G.R. No. 104732, June 22, 1993 - Sec. 7 of Art. IX-B of the Constitution Provides: 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 government-owned or
controlled corporations or their subsidiaries.

• Jardeleza vs. Sereno, G.R. No. 213181, August 19, 2014 - The JBC is not expected to strictly apply the rules of evidence
in its assessment of an objection against an applicant. Just the same, to hear the side of the person challenged
complies with the dictates of fairness because the only test that an exercise of discretion must surmount is that of
soundness.
Jardeleza should have been included in the shortlist submitted to the President for the vacated position of Associate
Justice Abad. This consequence arose from the violation by the JBC of its own rules of procedure and the basic tenets
of due process.

• Ignacio vs. Banate, G.R. No. 74720, August 31, 1987) –


• Lecaroz v. Sandiganbayan, G.R. No. 130872, March 25, 1999 - An oath of office is a qualifying requirement for a public
office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all. And for as
long as he has not qualified, the holdover officer is the rightful occupant.

• Mendoza v. Laxina, G.R. No. 146875, July 14, 2003 For purposes of determining the continuity and effectivity of the
rights arising from respondent’s proclamation and oath taken on May 27, 1997, it is as if the said writ of execution
pending appeal was not issued and he was not ousted from office. The re-taking of his oath of office on November 16,
1999 was a mere formality considering that his oath taken on May 27, 1997 operated as a full investiture on him of the
rights of the office. Hence, the taking anew of his oath of office as Barangay Captain of Batasan Hills, Quezon City
was not a condition sine qua non to the validity of his re-assumption in office and to the exercise of the functions
thereof.

• General v. Roco, 350 SCRA 528, Jan. 29, 2001 - Two requisites must concur in order for an employee in the career
executive service may attain security of tenure: CES eligibility and appointment to the appropriate CES rank.

d) Citizenship
SECTION 33. Policy on Change of Citizenship Public officers and employees owe the State and the Constitution
allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the
status of an immigrant of another country during his tenure shall be dealt with by law.

• Caasi v CA, G.R. No. 88831, November 8, 1990 – The application for immigrant status and permanent residence in the
U.S. and possession of a green card attesting to such status are conclusive proof of permanent residency in the U.S.
despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as the
application for it. Absent clear evidence of an irrevocable waiver of that status or surrender of his green card to the
appropriate U.S. authorities one is disqualified to run for public office, and, if elected, this shall be considered as null
and void.

Compare to Mercado v Manzano GR 135083 1999

Vested Right to Public Office


• Comelec v Cruz, G.R. No. 186616, November 20, 2009 - Where respondents theorized that they had a right to be voted
upon by the electorate without being burdened by a law that effectively rendered them ineligible to run for their
incumbent positions, the SC held that they had no such right under the Constitution. The Constitution clearly provides
that Congress has the power to prescribe the qualifications for elective local posts; thus, the question of eligibility for
an elective local post is a matter for Congress, not for the courts, to decide. It is well settled x x x that a public office is
not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. x x x
The basic idea of the government x x x is that of a popular representative government, the officers being mere agents
and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office,
but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the
people he represents.

• Gov’t of Camarines Norte v Gonzales, G.R. No. 185740, July 23, 2013 – No proprietary title attaches to a public office,
as public service is not a property right. Excepting constitutional offices which provide for special immunity as regards
salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in government,
except those created by the constitution, may be abolished, altered, or created anytime by statute. And any issues
on the classification for a position in government may be brought to and determined by the courts

VI. Commencement of Official Relations


A. Appointment - To constitute an "appointment" to office, there must be some open, unequivocal act of appointment
on the part of the appointing authority empowered to make it, and it may be said that an appointment to office is made
and is complete when the last act required of the appointing authority has been performed. (Bermudez v Exec Secretary) In
either case, the appointment becomes complete when the last act required of the appointing power is performed.
B. Election
C. Others:
1. Succession by operation of law;
2. Direct provision of law, e.g. ex-oficio officers

• Fariñas vs. COMELEC, G.R. No. 147387, December 10, 2003 - substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve
at the pleasure of the appointing authority.

Terms:
o Appointment– selection by the authority vested with the power, of an individual who is to perform the functions of a
given office.
o Commission– written evidence of appointment
o Designation – imposition of additional duties

Designation Appointment

Definition Imposition of additional duties upon an Selection of an individual to occupy a certain


existing office public office by one authorized by law to make
such selection

Extent of Powers Limited Comprehensive

Security of tenure? No. Yes.

When deemed Assumption of a designated position is Assumption of a 2nd appointive position is usually
abandonment of prior not deemed abandonment of the 1st deemed abandonment of the first office.
office position

• Binamira vs. Garrucho, G.R. No. 92008, July 30, 1990 – where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. Designation is considered acting/temporary. No security of tenure.
• Funa v Ermita, G.R. No. 184740, February 11, 2010 – there is nothing in Sec. 1 (2) Article IX (D) that explicitly precludes a
promotional appointment from commissioner to chairman provided it is made under the aforestated
circumstances/conditions.
Promotional appointment does not grant fresh 7 year term.

VII. Appointment
A. Requisites
1. made according to merit and fitness
2. competitive examination

Exceptions:
1. policy determining - Officer lays down principal or fundamental guidelines or rules E.g. department head
2. primarily confidential - 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 or betrayal
on confidential matters of state
- NATURE of the position which determined whether a position is primarily confidential, policy-determining or highly
technical
- “proximity rule” – can be considered as confidential employee if the predominant reason why he was chosen by
the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant
which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal
trust or confidential matters of the State.

- Where the position occupied is remote from that of the appointing authority, the element of trust between them is
no longer predominant, and cannot be classified as primarily confidential

3. highly technical - requires possession of technical skill in a superior degree.


- Legal counsel of PNB
- City Legal Officer
- City Attorney
- Security Council and Security Guards of the Vice Mayor
B. Principles
1. Classification of a particular position as policy-determining, primarily confidential or highly technical amounts to no
more than an executive or legislative declaration that is not conclusive upon the courts, the true test is the nature of
the position
2. The exemption provided pertains only to exemption from competitive examination to determine merit and fitness to
enter the civil service
3. Exempt from competitive examination to determine merit and fitness.

C. Who can appoint - The power to appoint is intrinsically an executive act involving the exercise of
discretion. (Concepcion v. Paredes)
- The power and prerogative to a vacant position in the civil service is lodged with the appointing authority.
- In a department, appointing power is vested in the Department Secretary, although it may be delegated to the
Regional Director, subject to approval of the Department Secretary.

D. Constitutional Provisions
1. Who can the President appoint with the consent of the Commission on Appointments
a. Art. VII, Sec. 16, 1987 Constitution;
b. Art. IX-B, Sec. 1 (2) for CSC;
c. Art. IX-C, Sec. 1 (2) for COMELEC;
d. Art. IX-D, Sec. 1 (2) for COA).
e. All other officers of the government whose appointments are not otherwise provided for by law;

i. Those whom he may be authorized by law to appoint;


ii. Members of the Supreme Court and judges - Art. VIII, Sec. 9, 1987 Constitution
iii. Ombudsman and his deputies - Art. XI, Sec. 9, 1987 Constitution

2. Presidential appointments when Congress is in recess – these appointments shall be effective only until:

a. disapproval by the Commission on Appointments; or


b. the next adjournment of the Congress (Sec. 16, Art. VII, 1987 Const.)

3. Appointments extended by an Acting shall remain effective unless revoked by the elected President within 90 days
from his assumption or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)

E. Discretion of Appointing Authority


1. The power to appoint is a discretionary power and must be performed by the officer in whom it is vested.
2. Only condition: appointee must possess the minimum qualifications requirements prescribed by law (Lapinid vs CSC).
3. Appointing authority is in the best position to determine who among the prospective appointees can effectively
discharge the functions of the position.
4. Final choice of appointing authority should be respected and left undisturbed.
5. The Civil Service Commission may not and should not substitute its judgment for that of the appointing authority its only
function is review the appointment in the light of the requirements of the Civil Service Law. Neither can the CSC
change the nature of the appointment. (Luego v CSC, G. R. No. L-69137 August 5, 1986)
6. Career service officers are granted preference in promotion under the “next-in-rank” rule. However, the rule is not
mandatory, appointing authority should be allowed the choice of men of his confidence provided they are qualified
and eligible.
7. Provincial, city prosecutor and their assistants – appointed by President upon recommendation of Secretary of Justice.
The recommendation is merely and advice.
8. The appointing authority has discretion over the choice of the person who is to be appointed, the nature and
character of the appointment.
9. Discretion should be granted to those entrusted with the responsibility of administering the officers concerned,
primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions
of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering
all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary
authority. (Reyes v. Abeleda G.R. No. L-25491. February 27, 1968)
10. The requirement under the Civil Service Law that the appointing power set forth the reason for failing to appoint the
officer next in rank applies only in cases of promotion and not in cases where the appointing power chooses to fill the
vacancy by transfer, reinstatement, reemployment or certification, not necessarily in that order. (Pineda v. Claudio
G.R. No. L-29661. May 13, 1969)
11. Appointment is a political question.
12. Where there is palpable excess of authority or abuse of discretion in refusing to issue a promotional appointment such
as would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said
appointments. (Gesolgon v. Lacson G.R. No. L-16507. May 31, 1961)

F. Completeness of appointment
A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and
hearing (due process).

An appointment, once made, is irrevocable and not subject to reconsideration.


Qualification: Where the assent, confirmation, or approval of some other officer or body is needed before the
appointment may be issue and be deemed complete.
Exceptions:
o When the appointment is an absolute nullity (Mitra v. Subido G.R. No. L-21691. September 15, 1967);
o When there is fraud on the part of the appointee (Mitra v. Subido);
o Midnight appointments (article VII, Section 15) SC ruled that this does not apply to judicial appointments.

• Aparri - Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the
then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer because
he assumed office "under color of a known appointment or election, void because the officer was not eligible or
because there was a want of power in the electing body, or by reasons of some defect or irregularity in its exercise,
such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep.
409).
However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved March
15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the petitioner up to the
close of office hours on March 31, 1962. The questioned resolution corrected whatever requisite lacking in the earlier
Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the respondent Board and pursuant to "the
desire of the President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of
Republic Act 1160.

Acceptance of appointment – last act to complete an appointment

G. Judicial Review of Appointments – Appointment is generally a political question (as long as the appointee possesses
the minimum qualifications as prescribed by law for the position.)

Action for usurpation of office – Who claims a valid title to the office. Quo Warranto

H. Revocation of appointment

• Flores v Drilon G.R. No. 104732, June 22, 1993 – no elective official shall be eligible for appointment or designation
during his tenure. No appointive official shall hold any other office or employment in government.
• Bermudez v Torres, G.R. No. 131429, August 4, 1999, 311 SCRA 733 – Not essential to be recommended by Secretary.
The phrase “upon recommendation of the Secretary” found in Sec. 9, Chap II, Title III, Book IV of the RAC is a mere
advice, essentially persuasive in character and not binding or obligatory. The President as head of the executive
department can disregard
• Farinas

I. Permanent and Temporary Appointments

1. Permanent
a) Extended to person possessing the requisite qualifications
b) Security of tenure

2. Temporary
a) Acting appointment
b) May not possess the requisite qualifications
c) Revocable at will, without necessity of just cause or a valid investigation
d) Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the
temporary appointment into a permanent one; new appointment is necessary
e) Appointment to a position in the Career Service of the Civil Service does not necessarily mean that the
appointment is a permanent one. It depends on the nature of the appointment which, in turn, depends on the
appointee’s eligibility or lack of it.
f) Acceptance by petitioner of a temporary appointment resulted in the termination of official relationship with his
former permanent position.
g) Temporary appointment shall not exceed 12 months
h) Mere designation does not confer security of tenure – person designated occupies the position only in an acting
capacity.
i) Appointment is subject to conditions, appointment is not permanent.
j) Appointee cannot claim a complete appointment as long as the re-evaluation incidental to the re-organization is
still pending.
k) “unless terminated sooner” – even if co-terminous with the project, it is nevertheless subject to the appointing
authority.
l) Where temporary appointment is for a FIXED period, appointment may be revoked only at the expiration of the
period OR if before, it must be for a valid and just cause.

• Ambas v Buenaseda, G.R. No. 95244, September 4, 1991 temporary appointment with fixed period revoked only at
expiration of the period.
• Ong v Office of the President, G.R. No. 184219, January 30, 2012
• Maturan vs. Maglana, G.R. No. L-52091, March 29, 1982 Not qualified when first appointed = cannot be reinstated.
Needs new appointment
• Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958 – What characterizes an appointment is not the nature of the
item filled but the nature of the appointment extended. If such were not the case then there would never be
temporary appointments for permanent positions.
• De Leon v. Court of Appeals, G.R. No. 127182, January 22, 2001
• Orcullo v. Civil Service Commission, G.R. No. 138780, May 22, 2001
• Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, G.R. No. L-65439 November 13, 1985 ad interim
appointment is not necessarily temporary. When the board is not in session, the President is authorized to issue ad
interim appointments. Permanent but terms are only until the Board disapproves of them. If confirmed, ad interim
becomes regular.

3. Presidential Appointments
a) Regular– One made by the President while Congress is in session after the nomination is confirmed by the
Commission on Appointments and continues until the end of the term.
– Ceases to be valid if disapproved or bypassed by CA upon next adjournment of Congress
– Permanent appointment
– That it is subject to confirmation does not alter its permanent character.

b) Ad-interim – Made while Congress is not in session, before confirmation by the Commission on Appointments, is
immediately effective

-Regular and Ad-interim Classification may be used only when referring to the following:

1) Heads of Executive Department;


2) Ambassadors and other Publi Ministers and Consuls
3) Officers of the AFP, from rank of colonel or naval captain
4) Officers whose appointments are vested in the President under the Constitution

• Bautista v Salonga G.R. No. 86439 April 13, 1989

4. Steps in Appointing Process

a) For REGULAR Appointments


1) Nomination by President 2) Confirmation by COA 3) Issuance of the Commission 4) Acceptance by the
appointee
b) AD-INTERIM Appointment
1) Nomination by President 2) Issuance of the Commission 3) Acceptance by the appointee 4) Confirmation by
COA
c) DO NOT require Confirmation
1) Appointment by Appointing Authority 2) Issuance of the Commission 3) Acceptance by the Appointee

– Where appointment is to the CAREER SERVICE of the CIVIL SERVICE, attestation by the Civil Service Commission is required.
Otherwise, not deemed complete. Appointment not submitted to the CSC w/in 30 days from the issuance (date appearing
on the face of the appointment) shall be ineffective.

– CSC is authorized to check of the appointee possesses the qualifications and appropriate eligibility; if he does, appointment
must be approved; of not, it is disapproved.

– Appointment is complete when the last act required of the appointing power is performed; until the process is completed,
appointee can claim no vested right in the officer nor claim security of tenure.

5. Civil Service Appointments


a) Classification of Civil Service Positions
Section 7 of Presidential Decree No. 807.

a.1. Career Service

- Entrance based on merit and fitness, as far as practicable by competitive examinations


- Or based on highly and technical qualifications
- Opportunity for advancement to higher career positions
- Security of tenure
- Includes:
a.1.1 Open Career Service

-Prior qualification in an appropriate examination is required

a.1.2 Closed Career Service

-Scientific or highly technical

a.1.3 Career Executive Service

-Undersecretaries, bureau directors, etc.

a.1.4 Positions in the Armed Forces of the Philippines

-Governed by a different merit system

a.1.5 Career Officers

-Other than those belonging to Career Executive Service, appointed by President, e.g. foreign service

a.1.6 Personnel of GOCC w/ original charters


a.1.7 Permanent laborers (skilled, semi-skilled or unskilled)
a.1.8 Career Executive Service
• requirements to attain security of tenure

i. Career executive service eligibility

ii. Appointment to the appropriate career executive service rank

• Security of tenure pertains only to rank and not to the office or position

a.2. Non-Career Service


- Entrance on bases other than those of the usual tests utilized for the career service
- Tenure
Ø limited to a period specified by law or
Ø which is co-terminous with that of the appointing authority or
Ø subject of his pleasure or
Ø which is limited to the duration of a particular project for which purpose the employment was made.

- Includes:

a.2.1 Elective officials, personal and confidential staff


a.2.2 Department Heads and officials of Cabinet rank who holds office at the pleasure of the President, personal and
confidential staff
a.2.3 Chairmen and members of commissions/boards w/ fixed terms of office, personal and confidential staff
a.2.4 Contractual personnel/ those whose employment in government is in accordance with a special contract to
undertake a specific work or job requiring special or technical skills not available in employing agency, to be
accomplished within a period not exceeding 1 year, under his own responsibility, with minimum direction and
supervision
a.2.5 Emergency and seasonal personnel

– Enumeration in the Civil Service decree, which defined the non-career service is not an exclusive list. Commission
can supplement this list.

– Coterminous status may be classified as:


Ø co-terminous with project – duration of particular project for which employment was made.
Ø co-terminous with appointing authority – tenure of appointing authority or at his pleasure
Ø co-terminous with incumbent – co-existent with appointee, such that after the latter’s resignation,
separation or termination of the services, the position shall be deemed automatically abolished.
Ø co-terminous with a specific period – for a specific period, upon expiration, position is deemed abolished.

• CSC v Javier G.R. No. 173264, February 22, 2008. – A primarily confidential position is characterized by the close
proximity of the positions of the appointee and appointee as well as the high degree of trust and confidence inherent
in their relationship.
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. Functions must not be routinary, ordinary and day to day in character. A position is not necessarily
confidential although one in office may sometimes handle confidential matters. Corporate secretary is primarily
confidential.

6. Prohibition on Midnight Appointments

A President or Acting President is prohibited from making appointments 2 months immediately before the next
presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.)

Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

• In Re Appointments of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-SC Nov. 9, 1998

7. Prohibition on appointive public officials from holding multiple offices or employment in the government

• RESOLUTION NO. 02-0020 CUNANAN, Dennis L. Re: Query; Double Appointment – compatibility requirement
Exceptions, as provided in the Constitution

• Public Interest Center, Inc. v. Elma, G.R. No. 138965, June 30, 2006, 494 SCRA 53 – re: incompatible offices

8. Political Lame Ducks


• Resolution NO. 02-0012, GATO, Vicente S., Re: Query; Hiring of Non-winning Election Candidates on Job Order Basis –

9. Nepotism
section 59 RAC – appointment in favor of a relative within the third degree of consanguinity or affinity of the
appointing authority; recommending authority; chief of the bureau/office; person exercising immediate supervision
over the appointee
Exceptions: Confidential capacity
Teachers
Physicians, and
Members of the AFP

• CSC v. Cortes, G.R. No. 200103. April 23, 2014 –


• CSC v. Dacoycoy, G.R. no. 135805. April 29, 1999 –

10. Oath of Office & Assumption of Office


• Chavez v Ronidel, G.R. No. 180941, June 11, 2009 –assumption of office = acquire a legal right to the position which is
protected by law and the constitution.
Appointment could not be invalidated solely because of the agency’s failure to submit copies of ROPA required by
CSC resolution
Non compliance with the rules was justified and insufficient to invalidate an appointment

J. Appointment and Qualification to Office Distinguished

1. Definition
a. Appointment - the act of being designated to a public office by the appointing authority.
b. Qualification - the act of signifying one's acceptance of the appointive position. This generally consists of the
taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by
law. (Mechem)

No one can be compelled to accept an appointment.

• Lacson v. Romero - The appointment to a government post involves several steps: (1) the President nominates; (b)
the Commission on Appointments confirms the appointment; and (c) the appointee accepts the appointment by his
assumption of office. The first 2 steps are mere offers to the post but the last step rests solely with the appointee who
may or may not accept the appointment.

• Borromeo v. Mariano - A judge may not be made a judge of another district without his consent. Appointment and
qualification to office are separate and distinct things. Appointment is the sole act of the appointee. There is no
power which can compel a man to accept the office.

2. Effect of Failure to Qualify

a) Failure to qualify is deemed evidence of refusal of the office.


b) It is a ground for removal.
c) If qualification is a condition precedent: Failure to qualify is ipso facto deemed to mean rejection of the office
If not condition precedent: Failure is not equivalent to ipso facto rejection.

• The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume
office) within 6 months from proclamation. Otherwise, the position will be deemed vacant.

Exception: If the non-assumption of office is due to a cause beyond his control.

• Justifiable reasons for delay in qualifying include sickness, accident, and other fortuitous events that excuse
delay.
• Qualification is significant because it designates when security of tenure begins.

3. Necessity of Oath of Office

• Although the law usually requires the taking of an oath, it is not indispensable. It is a mere incident to the
office and constitutes no part of the office itself.
• However, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5)
to take an oath or affirmation before entering into the execution of their office. Such oath-taking is
mandatory.

• Time of Taking the Oath of Office – must be done before entering upon the discharge of his duties.

• Requalification - If a public officer is re-elected or re-appointed, he must take another oath and fulfill the
other condition precedents before assuming office. The oath and other qualifications made prior to
assumption of his previous office will not be valid for subsequent terms of office

4. Bonds
5. Attestation of appointment by the CSC

VIII. The Civil Service Commission


A. Jurisdiction of the Civil Service Commission

• Disciplinary cases
• Cases involving personnel action
• Employment status and qualification standard
• Recall an appointment initially approved – when issued with disregard to Civil Service Laws, rules and regulations
• Approving and reviewing appointments to determine their compliance with the Civil Service Law
• On its own, does not have the authority to terminate employment or drop members from the roll

B. Appointments to the Civil Service

Scope: ALL branches, subdivision, instrumentalities and agencies of the Government, including GOCC with original
charter.

• Lapinid vs. CSC, G.R. No. 96298, May 14, 1991 – CSC has no power of appointment except over its own personnel.
Neither does it have the authority to review the appointments made by other offices except only to ascertain if the
appointee possess the required qualifications.

IX. Vacancy

"an appointment to a non-vacant position in the civil service is null and void ab initio."
• Concurring Opinion of J. Carpio Morales in Funa v Ermita

Hold-over doctrine
•Lecaroz v Sandiganbayan, GR No. 130872. March 25, 1999

X. De Jure and De Facto Officers


A. De Facto Officers -Reputation of being an officer and yet is not a good officer in point of law.
1. Legal Effect – Actions that affect the public are valid, binding and with full legal effect. (For the protection of the
public)
2. Elements
a. validly existing public office
b. actual physical possession of said office
c. color of title to the office that affords a presumption of election/appointment and induce people to submit to or
invoke his action.

I. by reputation/acquiescence
II. known and valid appointment/election but officer failed to conform to a requirement imposed by law
III. known appointment or election, void (though unknown to public) because of :
Ø ineligibility of officer
Ø want of authority of appointing/electing authority
Ø irregularity in appointment/election
Ø known appointment/election pursuant to unconstitutional law, before law was declared
unconstitutional.

3. Entitlement of Salaries
– Generally, the incumbent of a public office may recover from an officer de facto the salary received by the latter
during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title.
– Where there is NO DE JURE officer, the officer de facto who in good faith has had possession of the office and has
discharged the duties is legally entitled to emoluments.

• Regala v CFI Judge of Bataan (G.R. No. L-781, November 29, 1946) – informal information of rejection of
appointment; still de facto before receiving the official notification regarding the rejection of his appointment.
(Compare to Solis v CA, G.R. Nos. L-29777-83 March 26, 1971)
• Codilla v Martinez (G.R. No. L-14569, November 23, 1960) A third-ranking councilor who is designated to act as
mayor by an officer other than the proper appointing authority prescribed by law, and lacking the consent of
the Provincial Board
• Luna v Rodriguez (G.R. No. L-12647. November 26, 1917) When a judge accepted an appointment as finance
secretary, he already vacated his position as judge and, therefore, can no longer be considered a de facto
officer.

B. Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites (1) Existence of a de jure office; (1) De jure office;

(2) must possess the legal qualifications


for the office in question; (2) Color of right or general acquiescence
by the public;
(3) must be lawfully chosen to such office;
(3) Actual physical possession of the office
(4) must have qualified himself to perform in good faith
the duties of such office according
to the mode prescribed by law.

Basis of Authority Right: he has the lawful right / title to the Reputation: Has the possession and
office performs the duties under color of right,
without being technically qualified in all
points of law to act

How ousted Cannot be ousted. Only by a direct proceeding (quo


warranto); not collaterally

Validity of official acts Valid, subject to exceptions (e.g., they Valid as to the public until such time as his
were done beyond the scope of his title to the office is adjudged insufficient.
authority, etc.)

Rule on Compensation Entitled to compensation as a matter of Entitled to receive compensation only


right; during the time when no de jure officer is
declared;
The principle of "no work, no pay" is not
applicable to him. He is paid only for actual services rendered
by him.

C. Officer De Facto v. Intruder


• Codilla v Martinez
• Funa v Ermita
• Topacio v Ong

De Facto Intruder

Nature Officer under any of the 4 circumstances One who takes possession of an office and
discussed under Part II (above). undertakes to act officially without any
authority, either actual or apparent

Basis of authority Color of right or title to office He has neither lawful title nor color of right
or title to office.
Validity of "official" acts Valid as to the public until such time as his Absolutely void; can be impeached at any
title to the office is adjudged insufficient time in any proceeding (unless and until he
continues to act for so long a time as to
afford a presumption of his right to act)

Rule on compensation Entitled to receive compensation only Not entitled to compensation at all.
during the time when no de jure officer is
declared;

He is paid only for actual services rendered


by him.

D. Legal Effect of Acts of De Facto Officers


1. As regards the officers themselves
GENERAL RULE: A party suing or defending in his own right as a public officer must show that he is an officer de
jure. It is not sufficient that he be merely a de facto officer.

2. As regards the public and third persons


GENERAL RULE: The acts of a de facto officer are valid as to third persons and the public until his title to office is
adjudged insufficient.

E. Official Acts of De Facto Officers not subject to collateral attack


RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in proceedings to
which he is not a party, or which were not instituted to determine the very question.
F. REMEDY: Quo warranto proceedings
- a special form of legal action used to resolve a dispute over whether a specific person has the legal right to hold
the public office that he or she occupies.
- used to test a person’s legal right to hold an office, not to evaluate the person’s performance in the office. For
example, a quo warranto action may be brought to determine whether a public official satisfies a requirement
that he or she resides in the district; or whether a public official is serving in two incompatible offices.
- Quo warranto is not available to decide whether an official has committed misconduct in office. A person who
commits misconduct in a public office may be penalized or even removed from office, but quo warranto is not the
proper forum for those cases. Other processes are available for that purpose.

Who may file:


a. The person who claims to be entitled to the office;
b. The Republic of the Philippines, represented by
I. the Solicitor-General; or
II. a public prosecutor

• Nueno v. Angeles - G.R. No. L-89 February 1, 1946 - Where four (4) petitioners sought to oust six (6) Board Members, the
Court, citing section 7 of rule 68, held that this could not be done unless all 4 of them were entitled to the offices of the
6.

G. Liabilities of De Facto Officers


Generally, they are held to be the same degree of accountability for official acts as that of a de jure officer.

The de facto officer may be liable for all penalties imposed by law for any of the following acts:

1. usurping or unlawfully holding office;


2. exercising the functions of public office without lawful right;
3. not being qualified for the public office as required by law.

· The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de
facto status.

• General Manager, PPA v. Monserate, G.R. No. 129616. April 17, 2002
• Funa v. Agra, G.R. No. 191644. February 19, 2013
• Dimaandal vs. Commission on Audit, G.R. No. 122197, June 26, 1998
• Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015
• Re: Nomination of Atty. Lynda Chaguile, A.M. No. 13-04-03-SC, December 10, 2013
• Tuanda vs. Sandiganbayan, G.R. No. 110544, October 17, 1995
• Funa v. Agra, G.R. No. 191644, 19 February 2013
• Binamira vs. Garrucho, G.R. No. 92008, July 30, 1990
• Jalosjos vs. COMELEC, G.R. No. 193314, June 25, 2013
• Monroy vs. Court of Appeals, G.R. No. L-23258, July 1, 1967
• Civil Liberties Union vs. Executive Secretary, G.R. No. 83896, February 22, 1991

You may wish to read: Ranada, Santiago Jr., The De Facto Officer in Philippine Law, 9 Ateneo L.J. 27 (1959)

X. Term of office and Tenure of the incumbent


A. Term of Office and Tenure of Office Distinguished
Term of Office Tenure of Office
Fixed and definite period of time during which the Period during which the incumbent actually holds the
officer may claim to hold the office as of right office. It may be shorter than the term.

• Alba v. Evangelista G.R. Nos. L-10360 and L-10433. January 17, 1957 (read also concurring opinion)
• Achacoso vs. Macaraig, G.R. No. 93023, March 13, 1991
• Cuevas vs. Bacal, G.R. No. 139382, December 6, 2000
• De Leon vs. G.R. No. 127182, January 22, 2001
• Ong vs. Office of the President, G.R. No. 184219, January 30, 2012
• Provincial Government of Camarines Norte v. Gonzales, G.R. 185740, 23 July 2013
• Manalang-Demigillo v. Trade and Investment Development Corp. of the Philippines, G.R. No. 168613, 5 March 2013
• Adalim v. Taniñas, G.R. No. 198682, 10 April 2013
• Gaminde v COA, G.R. No. 140335, December 13, 2000

XI. Personnel Actions

A. Transfer - Movement from one position to another of equivalent rank, level or salary without break in service.
o May be imposed as an administrative penalty.
o Unconsented transfer violates security of tenure.
o Career Executive Service personnel can be shifted from one office to another without violating their right to security
of tenure, because salary and status is based on their ranks and not on the positions to which they are assigned.

• De Guzman, Jr. v. COMELEC G.R. No. 129118, July 19, 2000

B. Detail - requires a movement from one agency to another;


o Movement of an employee from one agency to another without the issuance of an appointment
o Allowed only for a limited period of time in the case of employees occupying professional, technical and scientific
positions
Temporary in nature

• CSC v. Yu, G.R. No. 189041, July 31, 2012

C. Reassignment –
o Reassigned from one organizational unit to another in the same agency
o Not involve reduction in rank, status or salary
o Management prerogative vested in the CSC, any department or agency embraced in Civil Service
o Does not constitute removal without cause
o Should have definite date and duration.
o Lack of specific duration is tantamount to floating assignment thus a dimunition in status or rank.

• Republic v Pacheco, G.R. No. 178021, January 25, 2012


--- LAST CASE FOR MARCH 13