JURISTS BAR REVIEW CENTER™

2022 Pre-Week Notes

Law on Public Officers

I. General principles

a. Const., art. XI, sec. 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.

b. Definition of a public office. 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 exercised by him for the benefit of the public. The
individual so invested is a public officer. (Javier v. Sandiganbayan, G.R.
No. 147026-27, September 11, 2009 citing Floyd R. Mechem, A Treatise
on the Law of Public Offices and Officers (1890).

c. Doctrines involving “Public Office” and “Public Officer”

i. A board member of a government agency, although from the

private sector, is still considered as a public officer (Javier v.
Sandiganbayan, G.R. No. 147026-27, September 11, 2009)

ii. An entity which implements the policies as set forth by law

performs sovereign functions, i.e., executive functions, is a public
office (Laurel v. Desierto, G.R. No. 145368, April 12, 2002)

iii. An official of a corporation, which is incorporated under the

Corporation Code and not majority owned by the government, is
not a public officer (People of the Philippines v. Morales, G.R. No.
166355, May 30, 2011)

iv. Contract of service (COS) employees are considered public officers

for purposes of RA 3019 (Preclaro v. Sandiganbayan, G.R. No.
111091, August 21, 1995)

d. Nature/characteristics of a public office

i. Public officers are mere agents and not rulers of the people. They
have no proprietary or contractual right to their office and merely
hold their office in trust for the people they represent. (Cornejo v.
Gabriel, G.R. No. 16887, November 17, 1920)

ii. The political right to be voted to a public office cannot be the

subject of a contract. (Saura v. Sindico, G.R. No. L-13403, March
23, 1960)

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 iii. There is no such thing as a vested interest or an estate in an office,
or even an absolute right to hold it. Except 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. (National Land Titles and Deeds Registration
Administration v. CSC, G.R. No. 84301, April 7, 1993)

iv. A public office is not a property right. No one has a vested right
to any public office, much less a vested right to an expectancy of
holding a public office. (Montesclaros v. COMELEC, G.R. No.
152295, July 9, 2002)

v. 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. (ABAKADA Guro Partylist v. Purisima, G.R.
No. 166715, August 14, 2008)

e. Scope of authority/implied powers. Implied powers are those that

can be inferred or are implicit in the wordings or conferred by necessary
or fair implication of the enabling act.” (Soriano v. Laguardia, G.R. No.
164785, April 29, 2009)

II. Kinds of appointment

a. General principles

i. The power to appoint is essentially executive in nature (Pimentel

v. Ermita, G.R. No. 164978, October 13, 2005)

ii. Appointment is a process. The following elements should always

concur in the making of a valid (which should be understood as
both complete and effective) appointment: (1) authority to
appoint and evidence of the exercise of the authority; (2)
transmittal of the appointment paper and evidence of the
transmittal; (3) a vacant position at the time of appointment; and
(4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the qualifications
and none of the disqualifications. (Velicaria-Garafil v. Office of the
President, G.R. No. 203372, June 16, 2015)

iii. Acceptance, which consists of assuming office and taking the oath,
is an indispensable requirement to complete an appointment.
(Velicaria-Garafil v. Office of the President, G.R. No. 203372, June
16, 2015)
iv. An appointment that is already accepted by the appointee cannot
be recalled/revoked by the appointing authority and shall remain
in force and effect until disapproved by the Civil Service

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 Commission. (Obiasca v. Basallote, G.R. No. 176707, February
17, 2010)

v. The Constitutional prohibition on midnight appointments does not

apply to vacancies in the Supreme Court or the judiciary (De
Castro v. Judicial and Bar Council, G.R. No. 191002, March 17,
2010)

b. Primarily confidential employees

i. Definition. A primarily confidential employee is an employee that

has primarily close intimacy with the appointing authority which
insures freedom of discussion and delegation and reporting
without embarrassment or freedom from misgivings of betrayals
of personal trust or confidential matters of state. (Tria v. Sto.
Tomas, G.R. No. 85670, July 31, 1991)

ii. Function. The functions of a primarily confidential employee is not

routinary, ordinary and day to day in character. A position is not
necessarily confidential though the one in office may sometimes
handle confidential matters or documents. Only ordinary
confidence is required for all positions in the bureaucracy. But, as
held in De los Santos, for someone holding a primarily confidential
position, more than ordinary confidence is required. (Civil Service
Commission v. Javier, G.R. No. 173264, February 22, 2008, citing
De los Santos v. Mallare, 87 Phil. 289 (1950)).

iii. Determination. The actual duties and functions of the position

shall determine whether the position is primarily confidential. (Tria
v. Sto. Tomas, G.R. No. 85670, July 31, 1991, citing Pinero v.
Hechanova, 18 SCRA 417 (1966)). Proximity of the position in
relation to that of the appointing authority may also be
considered. (Grino v. Civil Service Commission, G.R. No. 91602,
February 26, 1991)

iv. Term. When an incumbent of a primarily confidential position

holds office at the pleasure of the appointing power, and the
pleasure turns into a displeasure, the incumbent is not removed
or dismissed from office — his term merely expires, in much the
same way as an officer, whose right thereto ceases upon
expiration of the fixed term for which he had been appointed or
elected, is not and cannot be deemed removed or dismissed
therefrom, upon expiration of said term. (Grino v. Civil Service
Commission, G.R. No. 91602, February 26, 1991, citing Cadiente
v. Santos, 142 SCRA 280 (1986))

c. Presidential appointments

i. Only the following positions require the consent of the Commission

on Appointments:

1. Heads of the executive departments;

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 2. Ambassadors, other public ministers and consuls;
3. Officers of the armed forces from the rank of colonel or
naval captain; and
4. Other officers whose appointments are vested in the
President in the Constitution (i.e., constitutional
commission members (Art. IX-B, sec. 1(2), Art. IX-C, sec.
1(2), Art. IX-D, sec. 1(2)) and the regular members of the
Judicial and Bar Council (Art. VIII, sec.8(2)).

ii. Ad-interim appointments are appointments made while Congress

is in recess. Such appointments cover positions that require
Commission on Appointments confirmation. Below are the key
features of an ad-interim appointment:

1. Permanent and takes effect immediately.

2. Can no longer be revoked or withdrawn by the President
once the ad-interim appointee has qualified and assumed
office.
3. May be terminated for two causes: (1) Commission on
Appointments disapproval; or (2) Congress adjourned
without the Commission on Appointments acting on the
appointment. (Matibag v. Benipayo, G.R. No. 149036, April
2, 2002)

iii. The prohibition on reappointment, which applies to the

constitutional commission members (Art. IX-B, sec. 1(2), Art. IX-
C, sec. 1(2), Art. IX-D, sec. 1(2)) is not applicable to by-passed
ad interim appointments. (Matibag v. Benipayo, G.R. No. 149036,
April 2, 2002)

III. Disabilities and inhibitions of public officers

a. Prohibition on holding more than one office – appointive

i. General prohibition (Const., art. IX-B, sec. 7, par. 2)

General rule: No appointive official shall hold any other office or employment
in the government or any subdivision, agency, or instrumentality thereof,
including GOCCs or their subsidiaries.

Exceptions: (a) allowed by law; or (b) allowed by the primary functions of

his/her position (i.e., ex-officio).

ii. Stricter prohibition on the President, Vice-President, members of

the Cabinet, their deputies, and assistants (Const., art. VII, sec.
13)

General rule: The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not hold any other office or employment
during their tenure.

Exception: Unless otherwise provided in this Constitution

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The phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in
the Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under

Section 13, Article VII of the Constitution must not, however, be construed
as applying to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of said
officials' office. The reason is that these posts do no comprise "any other
office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials.
(Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22,
1991)

The prohibition covers “temporary designations” (see Funa v. Ermita, G.R. No.
184740, February 11, 2010; see also Funa v. Agra, G.R. No. 191644, February
19, 2013)

The prohibition imposed on the President and his official family is therefore
all-embracing and covers both public and private office or employment.
(Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22,
1991)

b. Prohibition against double compensation (Const., art. IX-B, sec. 8)

General rule: No elective or appointive public officer or employee shall receive

additional, double, or indirect compensation

Exception: (1) authorized by law; (2) pensions or gratuities

c. The only anti-dynasty provision in Philippine law – SK Reform Act

SEC. 10. Qualifications. – An official of the Sangguniang Kabataan, either

elective or appointee *** must not be related within the second civil degree
of consanguinity or affinity to any incumbent elected national official or to
any incumbent elected regional, provincial, city, municipal, or barangay
official, in the locality where he or she seeks to be elected ***”

IV. Powers and duties of public officers

a. Norms of conduct under RA 6713 only applies to the personal conduct

of public officers with reference to their “execution of official
duties”. (Samson v. Restrivera, G.R. No. 178454, March 28, 2011)

b. Statements of Assets Liabilities and Net Worth (SALN) -- SALN must be

filed: (i) within thirty (30) days after assumption of office; (ii) on or

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 before April 30 of each year; and (iii) within thirty (30) days after
separation from the service

V. De facto and de jure officers

a. A person can qualify as de facto officer only if all are present (See
Tuanda v. Sandiganbayan, G.R. No. 110544, October 17, 1995):

i. There must be a de jure office;

ii. There must be color of right or general acquiescence by the
public; and
iii. There must be actual physical possession of the office in good
faith.

b. Effects of the acts of de facto officers:

i. Valid for all purposes as those of a de jure officer (Dennis A.B.

Funa v. Alberto C. Agra, G.R. No. 191644, February 19, 2013)

ii. Entitled to compensation, emoluments, and allowances during

the time he/she held the office (See Eulogio Roriguez v. Carlos
Tan, G.R. No. L-3913, August 7, 1952)

VI. Accountability of public officers

a. Public officials may only be held personally liable for acts performed in
connection with his/her official duties where they have acted ultra vires
or where there is a showing of bad faith (Police Sr. Supt. Romeo Uy v.
Sergio Jr and Sales v. Jacalan, G.R. No. 232814, February 3, 2021)

b. Three-fold liability of public officers. Basic in the law of public officers

is the three-fold liability rule, which states that the wrongful acts or
omissions of a public officer may give rise to civil, criminal and
administrative liability. An action for each can proceed independently
of the others. (Domingo v. Rayala, G.R. No. 155831, February 18,
2008)

c. Liability for acts of subordinates. The mere fact that a public officer is
the head of an agency does not necessarily mean that he/she is the
party ultimately liable in case of disallowance of expenses for
questionable transactions of his/her agency. His/her knowledge of the
conspiracy and his/her active and knowing participation therein must
be proved by positive evidence. (Albert v. Gangan, G.R. No. 126557,
March 6, 2001)

d. Preventive suspension pending investigation and preventive

suspension pending appeal

i. Preventive suspension pending investigation: not a penalty but

only means of enabling the disciplining authority to conduct an
unhampered investigation. No right to compensation even if
he/she is exonerated.

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 ii. Preventive suspension pending appeal: punitive although it is in
effect subsequently considered illegal if respondent is exonerated
and the administrative decision finding him guilty is reversed.
The exonerated employee should be reinstated with full pay
for the period of the suspension. (See Gloria v. Court of
Appeals, G.R. No. 1131012, April 21, 1999)

iii. The 5-year limit on back wages applied in previous cases has no
legal basis. Full back wages should be awarded. (Campol v. Balao-
as, G.R. No. 197634, November 28, 2016)

e. The condonation doctrine was abandoned starting April 12, 2016. The
condonation doctrine may still be invoked for elections held before such
date. (See Madreo v. Bayron, G.R. No. 237330, November 3, 2020)

f. The Ombudsman

i. The Ombudsman does not have revisory power over the exercise
of discretion by administrative bodies (MWSS v. Ombudsman,
G.R. No. 109113, January 25, 1995)

ii. The Ombudsman can exercise investigatory powers even without

a pending case (Bureau of Internal Revenue v. Ombudsman,
G.R. No. 115103, April 11, 2002)

iii. The Ombudsman also has jurisdiction over cases involving public
officers and employees cognizable by courts other than the
Sandiganbayan (Ombudsman v. Enoc, G.R. No. 145957-68,
January 25, 2002)

iv. The Ombudsman cannot investigate members of the Judiciary

(Judge Renato Fuentes v. Ombudsman, G.R. No. 124295, October
23, 2001)

v. The Ombudsman’s orders are not merely recommendatory but are

mandatory. (Ledesma v. Court of Appeals, G.R. No. 161629, July
29, 2005)

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