Professional Documents
Culture Documents
Public Office
Definition
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 appointing power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit
of the public. (Mechem)
A public office is created to effect the end for which government has been
instituted which is the common good; not profit, honor, or private interest of any
person, family or class of persons (63 A Am Jur 2d 667)
Nature: (1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti)
(2) It is a responsibility and not a right. (Morfe v. Mutuc)
Elements
(1) Must be created either by (a) the Constitution, (b) the Legislature, or (c)
a municipality or other body through authority conferred by the
Legislature;
(3) The powers conferred and the duties discharged must be defined,
directly or impliedly by the Legislature or through legislative authority;
Segovia v. Noel
Agcaoili v. Suguitan
The Supreme Court held that Agcaoili had not ceased to be a justice
of the peace by operation of Act No. 3107. The Segovia ruling was
reiterated, i.e. Act No. 3107 should be given prospective effect only, as
there was no express statement making the law applicable retroactively.
Public Office not property
A public office is not the property of the public officer within the
provision of the Constitution against deprivation of property without due
process of law or within an agreement in a treaty not to impair the property
or rights of private individuals.
Exceptions:
Cornejo v. Gabriel
Abeja v. Tanada
EXCEPTIONS:
Zandueta v. De la Costa
Public Officer
Volunteer Service under RA 6713
Definition
Illustrations:
EXCEPTIONS:
No presumption of power
Villegas v. Subido
Nothing is better settled in the law than that a public official exercises
power, not rights. The government itself is merely an agency through which
the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its
functions. As such, there is no presumption that they are empowered to
act. There must be a delegation of such authority, either express or
implied. In the absence of a valid grant, they are devoid of power.
Creation
(1) Constitutional
(2) Statutory
(1) National
(2) Local
(1) Legislative
(2) Executive
(3) Judicial
Nature of functions
(1) Civil
(2) Military
Exercise of Judgment or discretion
(1) Quasi-judicial
(2) Ministerial
(1) De Jure
(2) De Facto
Compensation
(1) Lucrative
(2) Honorary
DE FACTO OFFICERS
De Facto Doctrine
A: It is the principle which holds that a person, who, by the proper authority,
is admitted and sworn into office is deemed to be rightfully in such office
until:
A: Where the duties of the office are exercised under any of the following
circumstances:
De Jure De Facto
De Facto Intruder
A: Yes. HOWEVER, it must be noted that the good faith must be on the
part of
the public; not on the part of the intruder.
A judge who continued to exercise his duties after his appointment was
disapproved by the CA according to a newspaper report, but before receiving
the official notification regarding the rejection of his appointment (Regala v.
Judge of CFI);
A lawyer instructed by the Acting Provincial Governor to file an information
for homicide, where the latter had no authority to designate him as assistant
fiscal, and where the DOJ had not authorized him to act as such (People v.
Penesa);
A judge whose position has already been abolished by law, and yet
promulgates a decision in a criminal case after the abolition and over the
objection of the fiscal (People v. So)
Nueno v. Angeles
In this case, there were four (4) petitioners seeking to oust six (6) Board
Members. The Court held that this could not be done unless all 4 of them
were entitled to the offices of the 6.
The de facto officer may be liable for all penalties imposed by law
for any of the following acts:
Definition
Eligibility, which 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.
A:
Extensions of the terms of office of the incumbents;
The People's Court Act, which provided that the President could
designate Judges of First Instance, Judges-at-large of First Instance or
Cadastral Judges to sit as substitute Justices of the Supreme Court in
treason cases without them necessarily having to possess the required
constitutional qualifications of a regular Supreme Court Justice. (Vargas
v. Rilloraza);
Manalang v. Quitoriano
Congress cannot either appoint a public officer or impose upon the President
the duty to appoint any particular person to an office. The appointing power is the
exclusive prerogative of the President, upon which no limitations may be imposed
by Congress, except those resulting from:
Cuyegkeng v. Cruz
Flores v. Drilon
Where only one can qualify for the posts in question, the President is precluded
from exercising his discretion to choose whom to appoint. Such supposed power
of appointment, sans the essential element of choice, is no power at all and goes
against the very nature itself of appointment.
Castaneda v. Yap
Frivaldo v. COMELEC
The citizenship requirement must be met only on election day. While the
Local Government Code requires one year residency immediately preceding
election day and the prescribed age on election day, no date is specified for
citizenship. The purpose of the citizenship requirement is to ensure leaders owing
allegiance to no other country. Such purpose is not thwarted, but instead achieved
by construing the requirement to apply at time of proclamation and at the start of
the term.
Natural-born citizen
40 years old on day of election
resident of the Philippines for at least 10 yrs immediately preceding election
day
Natural-born citizen
35 years old on day of election
able to read and write
registered voter
resident of the Philippines for not less than two years immediately
preceding election day
Natural-born citizen
25 years old on day of election
able to read and write
registered voter in district in which he shall be elected
resident thereof for not less than one year immediately preceding election
day
Natural-born citizen
35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position in elections immediately preceding
appointment
Natural-born citizen
35 years old at time of appointment
college degree holder
not a candidate for elective position in election immediately preceding
appointment
chairman and majority should be members of the bar who have been
engaged in the practice of law for at least 10 years (See Cayetano v. Monsod)
g. COA Commissioners
Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing experience or
Bar member engaged in practice of law for at least 10 years
Not have been candidates for elective position in elections immediately
preceding appointment
No religious test shall be required for the exercise of civil or political rights.
(Art. III, Sec. 5, 1987 Constitution)
(a) Election
(b) Appointment
(c) Others:
(i) Succession by operation of law;
Definition
Designation Appointment
Constitutional Provisions
Q: Who can the President nominate and appoint with the consent of the
Commission on Appointments?
A:
Heads of the executive departments (Art. VII, Sec. 16,
1987 Const.);
Ambassadors (ibid);
Q: Who can the President appoint without the need for CA approval?
(2) the next adjournment of the Congress (Sec. 16, Art. VII,
1987 Const.)
Qualification Standards:
Property Qualifications
The Supreme Court held that property qualifications are inconsistent with
the nature and essence of the Republican system ordained in our Constitution and
the principle of social justice underlying the same. The Court reasoned out that:
This is self-explanatory.
(1) A public official who has been convicted of a crime but has been
pardoned must secure a reappointment before he / she can
reassume his / her former position. (Monsanto v. Factoran)
(2) Pardon does not exempt the culprit from payment of the civil
indemnity imposed upon him / her by the sentence. (Art. 36, par. 2,
RPC)
(3) A convicted public official who has been pardoned is not entitled
to backpay and other emoluments due to him during the period of his
suspension pendente lite. (Monsanto v. Factoran)
� The only function of the CSC is to review the appointment in the light of
the requirements of the Civil Service Law, and when it finds the appointee
to be qualified and all other legal requirements have been otherwise
satisfied, it has no choice but to attest to the appointment. It cannot order
the replacement of the appointee simply because it considers another
employee to be better qualified. (Lapinid v. CSC)
� To hold that the Civil Service Law requires that any vacancy be filled by
promotion, transfer, reinstatement, reemployment, or certification in that
order would be tantamount to legislative appointment which is repugnant to
the Constitution. 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)
Effectivity of Appointment
Midnight appointments
Qualification to Office
Appointment and Qualification to Office Distinguished
Lacson v. Romero
Borromeo v. Mariano
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.
Oath of Office
An oath is an outward pledge whereby one formally calls upon God to witness
to the truth of what he says or to the fact that he sincerely intends to do what he
says.
Q: Who are obliged to administer oaths in all instances, and not just in
matters of official business?
A public officer must take his oath of office before entering upon the
discharge of his duties.
Requalification
Giving of Bonds
The bond is also an obligation binding the sureties to make good the
officer’s default. It is required not for the benefit of the office holder, but for
the protection of the public interest and is designed to indemnify those
suffering loss or injury by reason of misconduct or neglect in office.
De jure De facto
Fixed and definite period of time Period during which the incumbent
during which the officer may actually holds the office. It may be
claim to hold the office as of right shorter than the term.
Alba v. Evangelista
It is only in those cases in which the office is held at the pleasure of the
appointing power and where the power of removal is exercisable at its mere
discretion that the officer may be removed without notice or hearing.
RULES:
Where the term is not fixed: Congress may fix the terms of officers
other than those provided for in the
Const.
Congress can legally and constitutionally make the tenure of certain officials
dependent upon the pleasure of the President. (Alba v. Evangelista)
Where the office is held at the pleasure of the appointing power and such
appointing power can exercise the power of removal at his mere discretion, the
public officer may be removed without notice or hearing. (Alba v. Evangelista)
Doctrine of Holdover
A: A public officer whose term has expired or services have been terminated is
allowed to continue holding his office until his successor is appointed or chosen
and had qualified. (Mechem)
Holding-Over Rules
(1) Where the law provides for it: The office does not become vacant
upon the expiration of the term if there is
no successor elected and qualified to
assume it. Incumbent will hold-over even
if beyond the term fixed by law.
RULES:
(1) Where the time is fixed: The term will begin on the specified
date.
(2) Where no time is fixed: The term will generally begin on the
date
of the election or the appointment.
Lo Cham v. Ocampo
The duties of a public office includes all those which truly are within its
scope:
The duration of the authority of public officers is limited to that term during which
he is, by law, invested with the rights and duties of the office.
Classification of Powers
Discretionary Ministerial
Q: What is discretion?
Lamb v. Phipps
Torres v. Ribo
The powers of the Board of Canvassers are quasi-judicial and therefore
discretionary.
Aprueba v. Ganzon
The privilege of operating a market stall under license is not absolute but
revocable under an implied lease contract subject to the general welfare
clause.
Miguel v. Zulueta
A:
To correct a gross abuse of discretion, a palpable excess of
authority resulting in manifest injustice (Gesolgon v. Lacson);
Q: In filing a mandamus suit, when does a taxpayer not have to show that
he has any legal or special interest in the results of such suit?
A: When the question is one of public right and the object of the mandamus
is to procure the enforcement of a public duty, such as the observance
of the law. (Miguel v. Zulueta)
Exceptions:
(1) When there is something in the statute which shows a
different intent (Araphoe City v. Union Pac);
� Where superior officers have authority to ratify the acts of their inferiors, they
are restricted to the ratification of acts and contracts which they themselves are
empowered to make.
� It is not enough that the public officer acted beyond his powers in order that
he may be held liable for damages. If the act committed is reasonably related
to his duties and the officer was in good faith, he will not be held liable.
� As between an individual and his government, the individual cannot plead the
void act of an official to shield him from the demand of the government that he
(the individual) fulfill an obligation which he has contracted with the
government, after the benefits accruing to him as a result of that obligation have
been received. The government can neither be estopped nor prejudiced by the
illegal acts of its servants. (Government v. Galarosa)
Hilado v. Collector
A tax circular issued on a wrong construction of the law cannot give rise to
a vested right that can be invoked by a taxpayer.
Q: What are the standards of personal conduct provided for in Sec. 4, RA 6713?
Right to Office
The right to office is the right to exercise the powers of the office to the exclusion
of others.
GENERAL RULES:
� One who intrudes into or usurps a public office has no right to the
salary or emoluments attached to the office.
Salary: time-bound
Wages: service-bound
Per Diem: allowance for days actually spent for special duties
The salary or emoluments in public office are not considered the proper
subject of barter and sale. (22 R.C.L. 541)
Rodriguez v. Tan
When the government continues to pay the de facto officer even after
the notice of adjudication of the protest in favor of the de jure officer.
When notice of adjudication of the title to the de jure officer has been
given, and the de facto officer still continues to exercise duties and receive
salaries and emoluments.
At all instances.
Commutable Reimbursable
RULES:
RULES:
BUT: If he is subsequently exonerated, he can recover salary for the period of his
preventive suspension.
� If he was given penalty of removal from office, but was completely exonerated upon
appeal: YES, he can recover because he was completely exonerated.
� If he was given penalty of removal from office, but his penalty was commuted from
removal to mere suspension, or demotion: NO, because he was still found guilty
although the penalty was reduced.
ADMINISTRATIVE DISCIPLINE
Olonan v. CSC
Administrative charges were filed against the PUP President and other officers for
violations of RA 3019 with the CSC. Olonan et.al. filed a motion to dismiss the complaint
contending principally that the CSC has no jurisdiction to try and decide the case against
her, she being a presidential appointee. The CA upheld Olonan’s contention. There is
nothing in the provisions of the Constitution or the Administrative Code of 1987 which
gives the CSC the power to discipline presidential appointees like petitioner herein. Sec.
47(1), Book V of EO 292 which provides that “a complaint may be filed directly with the
CSC by a private citizen against a government official or employee in which case it may
hear and decide the case” must be read together with Sec. 48 which is entitled “Procedure
in Administrative Cases Against Non-Presidential Appointees.” The very subject of Sec.
48 implicitly limits the scope of the CSC’s jurisdiction in administrative cases to non-
presidential appointees and makes patent the conclusion that the disciplinary authority
over presidential appointees lies elsewhere – the President as appointing power himself.
Dolalas v. Ombudsman-Mindanao
Citing the Maceda case, the SC power of administrative supervision over judges
and court personnel is exclusive. Investigation by the Ombudsman violates the specific
constitutional mandate of the SC and undermines the independence of the judiciary.
Grounds
Sec. 46(a), Book V of EO 292 provides that “No officer or employee
in the Civil Service shall be suspended or dismissed except for cause as provided
by law and after due process.” The grounds constituting just cause are enumerated
in Sec. 46(b).
Jurisdiction
Original complaints may be filed: (a) directly with the CSC or (b) with the
Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities for officers and employees under their jurisdiction.
In case the decision rendered by a bureau or office head is appealable to the
Commission, the same may be initially appealed to the department and finally to the
Commission and pending appeal, the same shall be executory except when the
penalty is removal, in which case the same shall be executory only after confirmation
by the Secretary concerned.
Decisions imposing the penalty of suspension for more than thirty days or fine in
an amount exceeding thirty days’ salary, demotion in rank or salary or transfer,
removal or dismissal from office shall be appealable to the CSC.
Complainant shall submit sworn statements covering his testimony and those
of his witnesses together with his documentary evidence.
If based on such papers a prima facie case is found not to exist, the disciplining
authority shall dismiss the case. Otherwise, he shall notify the respondent in writing of
the charges against the latter.
Respondent shall be allowed not less than seventy-two hours after receipt of
the complaint to answer the charges in writing under oath, together with supporting
sworn statements and documents. He shall also indicate whether or not he elects a
formal investigation if his answer is not considered satisfactory.
If the answer is found satisfactory, the disciplining authority shall dismiss the
case.
Either party may avail himself of the services of counsel and may require the
attendance of witnesses and the production of documentary evidence in his favor
through the compulsory process of subpoena or subpoena duces tecum.
Appeals, where allowable, shall be made by the party adversely affected by the
decision within fifteen days from receipt of the decision unless a petition for
reconsideration is seasonably filed, which petition shall be decided within fifteen days.
A petition for reconsideration shall be based only on any of the following
grounds:
(a) new evidence has been discovered which materially affects the decision
rendered;
(b) the decision is not supported by the evidence on record; or
(c) error of law or irregularities have been committee which are prejudicial to the
interests of the respondent.
Summary Proceedings
(1) When the charge is serious and the evidence if guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and
there is reasonable ground to believe that he is guilty or the present
charge; and
Preventive Suspension
(a) dishonesty; or
(b) oppression or grave misconduct; or
(c) neglect in the performance of duty; or
(d) if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.
Maximum period for preventive suspension is ninety (90) days for national
officials. Under the Local Government Code, local appointive and elective officials may
be preventively suspended for only sixty (60) days. If the case is filed in the
Ombudsman, the latter may impose a preventive suspension for a period of six (6)
months.
When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of ninety
(90) days after the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the service.
Penalty
In meting out punishment, the same penalties shall be imposed for similar
offenses and only one penalty shall be imposed in each case.
The disciplining authority may impose the penalty of removal from the service,
demotion in rank, suspension for not more than one year without pay, fine in an
amount not exceeding six months’ salary, or reprimand. (Sec. 46(d), Book V, EO 292)
If the respondent is found guilty of two or more charges or counts, the penalty
imposed should be that corresponding to the most serious charge or count and the
test may be considered as aggravating circumstances. (Sec. 17 of the Implementing
Civil Service Rules and Regulations)
A reprimand whether given by the Civil Service Commission or the head of
department or agency shall be considered a penalty. However, a warning or an
admonition shall not be considered a penalty. (Sec. 15 of the Implementing Civil
Service Rules and Regulations)
Tobias v. Veloso
In meritorious cases and upon recommendation of the CSC, the President may
commute or remove administrative penalties or disabilities imposed upon officers or
employees in disciplinary cases, subject to such terms and conditions as he may
impose in the interest of the service.
Complaint shall be included in the Order of Business within ten sessions days
and referred to the proper Committee within three sessions days thereafter.
The Committee, after hearing, and by a majority vote of all its members, shall
submit its report to the House within sixty session days from such referral, together
with the corresponding resolutions. The resolution shall be calendared for
consideration of the House within ten session days from receipt thereof.
A vote of at least one-third of all the members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution.
The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the members of the Senate.
Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold office under the Republic of the Philippines, but the
party convicted shall nevertheless be liable and subject to prosecution, trial and
punishment according to law.
No impeachment proceedings shall be initiated against the same official more
than once within a period of one year.
(6) Unauthorized absence for fifteen (15) consecutive days, except in the case
of members of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay
(7) Application for, or acquisition of, foreign citizenship or residence or the
status of
an immigrant of another country
(8) Such other grounds as may be provided in this Code and other laws.
Procedure
A verified complaint may be filed against any erring local elective official and submitted
to the following disciplinary authorities:
Sangguniang panlungsod or
sangguniang bayan - elective barangay official
(2) Answer
Within seven (7) days after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, as the case may be, shall require the respondent
to submit his verified answer within fifteen (15) days from receipt thereof
(3) Investigation
The investigation of the case shall be commenced within ten (10) days after
receipt of such answer of the respondent.
Preventive Suspension
Preventive suspension may be imposed at any time after the issues are joined,
when the evidence of guilt is strong, and given the gravity of the offense, there is great
probability that 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.
However, any single preventive suspension of local elective officials shall not
extend beyond sixty (60) days.
Furthermore, in the event that several administrative cases are filed against an
elective official, he cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and known at the time of
the first suspension.
Rights of Respondent
The respondent shall be accorded full opportunity to appear and defend himself in
person or by counsel, to confront and cross-examine the witnesses against him, and to
require the attendance of witnesses and the production of documentary process of
subpoena or subpoena duces tecum.
The investigation of the case shall be terminated within ninety (90) days from
the start thereof.
Within thirty (30) days after the end of the investigation, the Office of the
President or the sanggunian concerned shall render a decision in writing stating
clearly and distinctly the facts and the reasons for such decision.
The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for every administrative offense, nor shall
said penalty be a bar to the candidacy of the respondent so suspended as long as he
meets the qualifications required for the office.
Administrative Appeals
Decisions in administrative cases may, within thirty (3) days from receipt
thereof, be appealed to the following:
An appeal shall not prevent a decision from becoming final or executory. The
respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal in the event he wins such appeal. In the event the
appeal results in an exoneration, he shall be paid his salary and such other emoluments
during the pendency of the appeal.
Modes of Termination
End of pleasure where one holds office at the pleasure of the appointing authority
Alba v. Evangelista
President can validly terminate tenure of Vice Mayor of Roxas City as the office
was created at the pleasure of the President. What is involved here is not the
question of removal, or whether legal cause should precede or not that of removal.
What is involved here is the creation of an office and the tenure of such office,
which has been made expressly dependent upon the pleasure of the President.
Fernandez v Ledesma
The Charter of Basilan City provides that the President shall appoint and may
remove at his discretion any of the city’s officers, including its Chief of Police, with
the exception of the municipal judge, who may be removed only according to law.
The legislative intent is to make continuance in office dependent upon the pleasure
of the President. Congress has the power to vest such power of appointment.
Further, “A public office is the right for a given period, either fixed by law or
enduring at the pleasure of the creating power.” Alba v. Evangelista states that the
replacement is not removal, but an expiration of tenure, which is an ordinary mode
of terminating official relations. What is involved is not removal, or whether legal
cause should precede such removal, but the creation of an office and the tenure
of such office, which has been made expressly dependent upon the pleasure of
the President.
Hernandez v. Villegas
Even officers and employees of the civil service occupying primarily confidential
positions are subject to the constitutional safeguard against removal or suspension
except for cause.
Official and employees holding primarily confidential positions continue only for
so long as confidence in them endures. The termination of their official relation
can be justified on the ground of loss of confidence because in that case, their
cessation from office involves no removal but merely the expiration of the term of
office.
Ingles v. Mutuc
Gray v. De Vera
President appointed Gray as Board secretary of the
People’s Homesite and Housing Corporation but was later terminated through a
board resolution due to loss of confidence. SC reversed ruling that Gray’s
appointment was a permanent one. Although the President, EO 99, declared the
position of secretary to the board of a government corporation “primarily
confidential in nature,” it does not follow that a board secretary whose appointment
was permanent may be removed from office without a formal charge specifying the
ground for removal and without giving him an opportunity to be head. Such removal
was illegal since there was no lawful cause for removal.
Cariño v. ACCFA
Compulsory Retirement
Retirement benefits
(1) the lump sum payment defined in RA No. 8291 payable at the time of retirement
plus an
old-age pension benefit equal to the basis monthly pension payable monthly for
life, starting upon expiration of the give-year (5) guaranteed period covered by the
lump sum; or
(2) cash payment equivalent to eighteen (18) months of his basic monthly pension
plus monthly pension for life payable immediately with no five-year (5) guarantee.
Beronilla v GSIS
Rabor v. CSC
At the age of 55, Rabor was hired as a government employee at the Davao
City Mayor’s Office in 1978. In 1991, he was advised to apply for retirement. He
was already 68 years old with 13 years of service. He requested that his services
be extended in order that he may complete the 15-year service requirement. This
was denied and Rabor claimed that the doctrine enunciated in Cena v. CSC should
be applied in his case.
SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No. 27,
s. of 1990 cited in the decision in Cena v. CSC, provides that “any request for the
extension of service of compulsory retirees to complete the 15-year service
requirement for retirement shall be allowed only to permanent appointees in the
career service who are regular GSIS members, and shall be granted for a period
not exceeding one (1) year.” Cena further stated that the authority to grant the
extension was a discretionary one vested in the head of the agency concerned. To
reiterate, the head of the government agency concerned is vested with
discretionary authority to allow or disallow extension of service of an employee
who has reached 65 years old without completing 15 years of government service;
this discretion to be exercised conformably with CSC Memo Circular No. 27, s. of
1990.
Bona Fide Abolition of Office
To consider an office abolished, there must have been an intention to do away
with it wholly and permanently.
Busacay v. Buenaventura
Busacay was laid off as toll collector when the bridge was destroyed. However,
the bridge was later reconstructed and opened to the public with a new collector
being appointed. Busacay was ordered reinstated by the SC. To consider an office
abolished, there must have been an intention to do away with it wholly and
permanently. In the case at bar, there was never any thought of not rebuilding the
bridge. The collapse of the bridge did not work to destroy but only to suspend the
position of toll collector thereon, and upon its reconstruction and re-opening, the
collector’s right to the position was similarly and automatically restored.
Manalang v. Quitoriano
The National Employment Service was established by R.A. No. 761 in lieu of
the Placement Bureau. Quitoriano was appointed as NES Commissioner in spite
of the recommendation of the Labor secretary to appoint Manalang who was the
incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano
was valid. A removal implies that the office still exists. R.A. No. 761, creating NES,
expressly abolished the Placement Bureau and, by implication, the office of the
Director of the Placement Bureau. Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have directed the retention, not the
transfer, of qualified personnel to the NES. Manalang has never been NES
Commissioner and thus could not have been removed therefrom.
As well settled to the rule that the abolition of an office does not amount to an illegal
removal or separation of its incumbent is the principle that, in order to be valid, the
abolition must be made in good faith, not for personal or political reasons, and not
implemented in violation of law.
Briones v. Osmeña
Briones and Rosagaran were employees in the Office of the City Mayor since
1937 and 1940, respectively, In 1956, the City created 35 new positions and
abolished 32, of which the positions of Briones and Rosagaran were included.
Consequently, the two were terminated. SC held that the termination was not valid.
While abolition does not imply removal of the incumbent, this rule is true only where
the abolition is made in good faith. In other words, the right to abolish cannot be
used to discharge employees in violation of the Civil Service law nor can it be
exercised for personal or political reasons.
Facundo v. Pabalan
Cruz v. Primicias
As well settled as the rule that the abolition of an office does not amount to an
illegal removal of its incumbent is the principle that, in order to be valid, the abolition
must be made in good faith. Where the abolition is made in bad faith, for political
or personal reasons, or in order to circumvent the constitutional security of tenure
of civil service employees, it is null and void. In the case at bar, while 22 positions
were abolished, 28 new positions with higher salaries were simultaneously
created. No charge of inefficiency is lodged against petitioners. In truth and in fact,
what respondents sought to achieve was to supplant civil service eligibles with
men of their choice, whose tenure would be totally dependent upon their pleasure
and discretion.
Reorganization
Alandy was the incumbent Assistant General Manager of the PCSO. In 1954,
Resolution No. 314 was passed to reorganize the PCSO. The position of Assistant
General Manager was converted to General Field Supervisor to which Alandy was
appointed. However, in 1955, the position of Assistant General Manager was again
created through Resolution No. 422 and a different person was appointed to the
position. SC invalidated the new appointment and reinstated Alandy to his position
as PCSO Assistant General Manager. What occurred here is that the position of
Assistant General Manager was not abolished but was merely converted to
another position. As such, the conversion merely caused the giving of additional
functions to Alandy, who still held the position of Assistant General Manager.
Dario v. Mison
Rubenecia v. CSC
Abandonment of Office
A public office may become vacant ipso facto by abandonment and non-user.
When an office is once abandoned, the former incumbent cannot legally repossess it
even by forcible re-occupancy.
Summers v. Ozaeta
Floresca v. Quetulio
Floresca’s refusal to assume his pre-war post as Justice of the Peace and his
subsequent acceptance of other employments without any pretense on his part
that he simultaneously continued to perform the functions of the Justice of the
Peace, clearly show deliberate abandonment of the latter office.
Ortiz v. De Guzman
Ortiz allowed three years to elapse since he was ousted from office without
having taken any steps to reclaim his former office. SC held that he cannot ask for
reinstatement. A public employee who voluntarily abandons his office for a long
time is estopped from asking for reinstatement. In order to constitute an
abandonment of office, it must be total, and under such circumstances as to clearly
indicate an absolute relinquishment. Temporary absence is not sufficient where no
statute fixes the period beyond which the absence must continue. In all cases, the
officer should manifest a clear intention to abandon the office and its duties. Yet,
this intention may be inferred from his conduct. If his acts and statements are such
as to clearly indicate absolute relinquishment, a vacancy will be thereby created
and no judicial determination is necessary. When once abandoned, the former
incumbent cannot legally repossess the office.
One claiming the right to a position in the civil service must institute the proper
proceeding within one year from the date of separation, otherwise he is deemed
to have abandoned his office or even acquiesced or consented to his removal, and
thus is not entitled to seek reinstatement. The rationale is to inform the
Government of the rightful holder of the office and to prevent payment of salary to
both claimants.
Having accepted the benefits accruing from the abolition of his office, he is
estopped from questioning its validity or deemed to have waived the right to
contest the same.
Villegas v. Subido
Villegas did not abandon his office as mayor of the City of Manila when he
assumed the position of Director of NAWASA because he had been merely
designated in an acting capacity and was not appointed to the said position.
Tan v. Gimenez
The fact that, during the time his appeal was pending and was thus deprived
of his office and salary, an employee sought employment in another branch of the
government does not constitute abandonment of his former position.
He who, while occupying one office, accepts another office incompatible with
the first, ipso facto absolutely vacates the first office. That the second office is inferior
to the first does not affect the rule. And even though the title to the second office fails
as where election is void, the rule is still the same, nor can the officer then regain the
possession of his former office to which another has been appointed or elected.
(a) There is conflict in such duties and functions so that the performance of
the duties of one interferes with the performance of the duties of another,
as to render it improper for considerations of public policy for one person to
retain both.
(b) One is subordinate to the other and is subject in some degree to its
supervisory powers for in such situation where both are held by the same
person, the design that one acts as a check on the other would be frustrated.
(c) The Constitution or the law itself, for reasons of public policy, declares
the incompatibility even though there is no inconsistency in the nature and
functions of the offices.
(a) Where the officer cannot vacate the first office by his own act, upon the
principle that he will not be permitted to thus do indirectly what he could not
do directly, as where the law requires the approval of the provincial board
before a municipal official can resign.
(b) First office is held under a different government from that which
conferred the second.
A resignation of a public officer need not be in any particular form, unless some
form is prescribed by statute. Ordinarily, it may either be in writing or by parol. The
conduct of an employee may properly be regarded as constituting a resignation from
the position held by him. However, to constitute a complete and operative resignation
of public office, there must be an intention to relinquish a part of the term,
accompanied by the act of relinquishment.
However, many other cases take the view that to be effective, the resignation
must be accepted by competent authority. Without acceptance, the resignation is
nothing and the officer remains in office. (63 Am Jur 2d., sec. 163)
Gonzales v. Hernandez
Ortiz v. COMELEC
Prof. Barlongay: Courtesy resignation is not allowed in (1) career positions and
(2) non-career positions with security of tenure (i.e. local elective officials).
For Presidential appointees, Prof. Barlongay states that there is no specific law
providing for the grounds for their removal. Determination of grounds is just a matter
of practice and by analogy, the grounds used for non-presidential appointees are
made applicable.
For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292
which provides for at least 30 grounds for disciplinary action.
For local elective officials, Sec. 60 of the Local Government Code provides for
the grounds where an elective local official may be disciplined, suspended or removed
from office.
Nera v. Garcia
Ochate v. Ty Deling
The SC held that the weight of authority follows the rule which denies the right
to remove one from office because of misconduct during a prior term. Offenses
committed or acts done during a previous term are generally held not to furnish
cause for removal and this is especially true where the Constitution provides that
the penalty in proceedings for removal shall not extend beyond the removal from
office and disqualification from holding office for the term for which the officer was
elected and appointed. The underlying theory is that each term is separate from
other terms and that re-election to office operates as a condonation of the officer’s
previous misconduct to the extent of cutting off the right to remove him therefore.
Aguinaldo v. Santos
SC held that Aquinaldo should not be removed from office. His re-election to
the position of Governor of Cagayan has rendered the administrative case pending
before it moot and academic.
Offenses committed or acts done, during a previous term are generally not held
to furnish cause for removal. The Court should never remove a public officer for
acts done prior to his present term of office. To do otherwise would be to deprive
the people of their right to elect their officers. When the people have elected a man
to office, it must be assumed that they did this with knowledge of his life and
character, and that they
disregarded or forgave his fault or misconduct, if guilty of any. It is not for the court,
by reason of such fault or misconduct, to practically overruled the will of the people.
The rule then is that a public officer cannot be removed for administrative
misconduct committed during a prior term, since his reelection to office operates
as a condonation of the officer’s previous misconduct to the extent of cutting off
the right to remove him therefore. This rule, however, is not applicable to criminal
cases pending against the petitioner for acts he may have committed during the
failed coup.
It shall not be considered disciplinary when made in the interest of public
service, in which case, the employee concerned shall be informed of the reasons
therefore. If the employee believes that there is no justification for the transfer, he may
appeal to the SC.
The transfer may be from one department or agency to another or from one
organizational unit to another in the same department or agency; Provided, however
that any movement from the non-career service to the career service shall not be
considered a transfer.
Lacson v. Romero
The intended transfer of Lacson to Tarlac, if carried out without the approval of
Lacson, would be equivalent to a removal from his office in Negros Oriental. The
reason is that a fiscal is appointed for each province and Lacson could not legally
hold and occupy the two posts of fiscal of Tarlac and Negros Oriental
simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from
office in Negros.
Since the transfer in the case at bar is considered a removal, such should be
for cause in order for the other person to legally occupy the office in Negros. There
was no cause for Lacson’s removal. He therefore remains as fiscal of Negro.
Quitiquit v. Villacorta
Hojilla v. Marino
Recall
The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative and
referendum …(Sec. 3, Art. X, 1987 Constitution)
Garcia v. COMELEC
No reinstatement is possible in the case at bar. Even if the removal was void
for lack of cause, Unabia filed his petition for reinstatement with the CFI after a
delay of one year and fifteen days. Any person claiming a right to a position in the
civil service is required to file his petition for reinstatement within one year,
otherwise he is deemed to have abandoned his office. Reason is public policy and
convenience, stability in the public service.
Prof. Barlongay: The one-year period is the prescriptive period to claim public
office (whether through quo warranto or otherwise). The one-year period presupposes
judicial action, not administrative action.
Only the moment and act of filing are considered. Once the certificate is filed,
the seat is forever forfeited and nothing, save a new election or appointment, can
restore the ousted official.
Note: The following provisions have been repealed by Sec. 14 of R.A. 9006 (Fair
Election Act of 2001):
Sec. 67 of B.P. 881 which states that any elective official, whether
national or local, running for any office OTHER than one which he is
holding in a permanent capacity, except for President and Vice
President, shall be considered ipso facto resigned from office by the
mere filing of a certificate of candidacy.
The first proviso of Sec. 11 of R.A. 8436 which states that "Any
elective official, running for any officer other than one which he is
holding in a permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned upon the start of
the campaign period."