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Notes & Cases on the

LAW ON PUBLIC OFFICERS

Atty. Ronelito O. Ticoy
PUBLIC OFFICE
• 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.
ESSENTIAL ELEMENTS
• Created by Constitution or by law or by some body
or agency to which the power to create the office
has been delegated

• Invested with authority to exercise some portion of
the sovereign power of the State
Powers/Functions defined by the Constitution,
law, or through legislative authority

• Duties are performed independently without control
unless those of a subordinate

• Continuing / permanent in nature
LAUREL V. DESIERTO
(G.R. NO. 145368, APRIL 12, 2002)

The National Centennial
Commission, which is tasked to
spearhead the celebrations of the
centenary of Philippine Independence,
performed executive functions and is,
therefore, a public office.
LAUREL V. DESIERTO
(G.R. NO. 145368, APRIL 12, 2002)

The characteristics of a public
office include the delegation of
sovereign functions, its creation by
law and not by contract, an oath,
salary, continuance of the position,
scope of duties and the designation
of the position as an office. Among
these characteristics, the delegation
of some of the sovereign functions of
government is the most important.
LAUREL V. DESIERTO
(G.R. NO. 145368, APRIL 12, 2002)
The payment of salary is a usual but not
a necessary criterion for determining the
nature of a position. The salary is a mere
incident and forms part of the office. Where
no salary is paid, the office is characterized
as an honorary office, as opposed to a
lucrative office or an office of profit where
salary, compensation or fees are attached.
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.
A public officer within the meaning of
Art. 203 (RPC), includes all persons “who,
by direct provision of law, popular
election or appointment by competent
authority, shall take part in the
performance of public functions in the
Philippine Government, or shall perform
in said government or any of its
branches, public duties as an employee,
agent or subordinate official or any rank
or class.”
That definition is quite comprehensive,
embracing as it does, every public servant
from the highest to the lowest. For the
purposes of the Penal Code, it obliterates
the standard distinction in the law of public
officers between “officer” and “employees”.
An officer de facto is one who has
the reputation of being the officer he
assumes to be, and yet is not a good
officer in point of law. He must have
acted as an officer for such a length
of time, under color of title and under
such circumstances of reputation or
acquiescence by the public and public
authorities,
as to afford a presumption of
appointment or election, and
induce people, without injury, and
relying on the supposition that he
is the officer he assumes to be, to
submit to or invoke his action.
An officer de facto is to be
distinguished from an officer de
jure, and is one who has the
reputation or appearance of being
the officer he assumed to be but
who, in fact, under the law, has no
right or title to the office he
assumes to hold.
He is distinguished from a mere
usurper or intruder by the fact that
the former holds by some color of
right or title while the latter
intrudes upon the office and
assumes to exercise its functions
without either the legal title or color
of right to such office.
The conditions and elements of de
facto officership are the following: 1.)
there must be a de jure office; 2.) there
must be color of right or general
acquiescence by the public; and 3.) there
must be actual physical possession of the
office in good faith. One can qualify as a de
facto officer only if all the aforestated
elements are present.
It is settled that where there is
no de jure officer, a de facto officer,
who, in good faith has had
possession of the office and has
discharged the duties pertaining
thereto, is legally entitled to the
emoluments of the office, and may
in an appropriate action recover
the salary, fees and other
compensations attached to the
office.
This doctrine is, undoubtedly, supported
on equitable grounds since it seems unjust
that the public should benefit by the services
of an officer de facto and then be freed from
all liability to pay any one for such services.
Any per diem, allowances or other
emoluments received by the respondents by
the virtue of actual services rendered in the
questioned positions may therefore be
retained by them.
A public officer is deemed to be
on hold-over status if his term has
expired or his services terminated
but he should continue holding his
office until his successor is
appointed or chosen and has
qualified.
The appointing power has the
right of choice which he may
exercise freely according to his
judgment deciding for himself who
is best qualified for any competitive
position in the Civil Service.
An appointment, whether to a
vacancy or to a newly created
position, is essentially within a
discretionary power of whomsoever it
is vested. Once a candidate possesses
the minimum qualities required by the
law, sufficient discretion, if not
plenary, is granted to the appointing
authority. After all, the appointing
authority is the officer primarily
responsible for the administration of
the office.
and is likewise in the best position
to determine who among the
qualified candidates can efficiently
discharge the functions of the
position. Indeed, whom to appoint
among those qualified is an
administrative question involving
considerations of wisdom for the
best interest of the service only the
appointing authority can decide.
Although the CSC has the power to
approve or disapprove an appointment set
before it, it does not have the power to make
the appointment itself or to direct the
appointing authority to change the
employment status of an employee. The
commission can only inquire into the
eligibility of the person chosen to fill a
position and if it finds the person qualified it
must so attest. If not, the appointment is
simply disapproved.
Where one without the appropriate
civil service eligibility is appointed to an
office requiring it, such appointment to
an office requiring it, such appointment
is only temporary and without a fixed
and definite term and is dependent
entirely upon the pleasure of the
appointing power. The fact that he
obtained civil service examination did
not ipso facto convert his temporary
In such case what is required is a
new appointment since a permanent
appointment is not a continuation of
the temporary appointment – these
are two distinct acts of the
appointing authority.
An ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Art. VII,
of the 1935 Const. (now, par. 2, Sec. 16, Art. VII
of the 1987 Const.), which provides that “the
President shall have the power to make
appointments shall be effective only until
disapproval by the Commission on
Appointments or until the next adjournment of
the Congress.” It is an appointment permanent
in nature, and the circumstance that it is
subject to confirmation by Commission on
Appointments does not alter its permanent
character.
An ad interim appointment is
disapproved certainly for a reason other
than that its provisional period has
expired. Said appointment is disapproved
certainly for a reason other than that its
provisional period has expired. Said
appointment is of course distinguishable
from an “acting” appointment which is
merely temporary, good until another
permanent appointment is used.
Appointment is the selection by the
proper authority of an authority of an
individual who is to exercise the
functions of an office. Designation, on
the other hand, connotes merely the
imposition of additional duties, upon a
person already in the public service by
virtue of an earlier appointment or
election. A mere “designation” does not
confer upon the designee security of
tenure in the position or office which he
occupies in an “acting” capacity only.
Appointment may be defined as the
selection, by the authority vested with the
power, of an individual who is to exercise
the functions of a given office. When
completed, usually with its confirmation, the
appointment results in security of tenure for
the person chosen unless he is replaceable at
pleasure because of the nature of his office.
Designation on the other hand, connotes
merely the imposition by law of additional
duties on an incumbent official… it is said
that appointment is essentially executive
while designation is legislative in nature.
There is neither mandatory
nor peremptory requirement in
the Civil Service Law that
persons next-in-rank are entitled
to preference in appointment.
What it does provide is that they
would be among the first to be
considered for the vacancy,
If qualified, and if the vacancy is not filled
by promotion, the same shall be filled by
transfer or other modes of appointment.
One who is next-in-rank is entitled to
preferential consideration for promotion
to the higher vacancy but it does not
necessarily follow that he and no one else
can be appointed.
The rule neither grants a vested right to
the holder nor imposes a ministerial duty on
the appointing authority to promote such
person to the next higher position. One who
is next-in-rank is entitled to preferential
consideration for promotion to the higher
vacancy but it does not necessarily follow that
he and no one else can be appointed. The rule
neither grants a vested right to the holder nor
imposes a ministerial duty on the appointing
authority to promote such person to the next
higher position.
When the President appointed petitioner
Bautista to the position of Chairman of the
Commission on Human Rights with the advice
to her that by virtue of such appointment
(not, until confirmed by the Commission on
Appointments), she could qualify and enter
upon the performance of her duties after
taking her oath of office, the presidential act
of appointment to the subject position which,
under the Constitution, is to be made,
in the first place, without the
participation of the Commission of
Appointments, was then and there a
complete and finished act, which, upon
the acceptance by Bautista, as shown by
her taking of the oath of office and actual
assumption of the duties of said office,
installed her, indubitably and
unequivocally, as the lawful Chairman of
the Commission on Human Rights for a
term of seven (7) years.
A civil service employee with a
permanent appointment cannot be
removed except for cause provided
by law. Well-entrenched is the rule
on security of tenure that such an
appointment is issued and the
moment the appointee assumes a
position in the civil service under a
completed appointment,
he acquires a legal, not merely
equitable right (to the position), which
is protected not only by statute, but
also by the Constitution and cannot be
taken away from him either by
revocation of the appointment, or by
removal, except for cause, and with
previous notice and hearing.
A reassignment which removes from a
public officer’s power of supervision over forty-
one employees who are part of her staff and
subordinates results in a diminution of her
status, and even if the reassignment is
temporary, it is diminution nevertheless.
A reassignment without a definite duration
is tantamount to a floating assignment that
results in a diminution nevertheless.
There is a valid restriction to the
exercise by government workers of their
right to peaceably assemble and petition to
government for redress of grievances.

Where teachers committed acts
prejudicial to the best interest of the
service by staging the mass protests on
regular school days, abandoning their
classes and refusing to go back even after
they had been ordered to do so, they may
be validly dismissed.
The duties of a public office include
all those which truly lie within its scope,
those which are essential to the
accomplishment of the main purpose for
which the office was created, and those
which, although incidental and collateral,
are germane to, and serve to promote the
accomplishment of the principal
purposes.
As a rule, mandamus lies only to
compel an officer to perform a
ministerial duty and not a
discretionary act. A writ of
mandamus will not issue to control
or review the exercise of a public
officer since it is his judgment that is
to be exercised and not that of the
court.
Thus, the courts will not
interfere to modify, control or
inquire into the exercise of this
discretion unless it be alleged and
proven that there has been an abuse
or an excess of authority on the part
of the officer concerned.
“Discretion”, when applied to
public functionaries, means a power
or right conferred upon them by law
of acting officially, under certain
circumstances, uncontrolled by the
judgment upon the propriety or
impropriety of the act done.
If the law imposes a duty upon a
public officer and gives him the
rights to decide how or when the
duty shall be performed, such duty
is discretionary and not ministerial.
The duty is ministerial only when
the discharge of the same requires
neither the exercise of official
discretion nor judgment.
Simply because a person in chain
of processing officers happens to
sign or initial a voucher as it is going
the rounds, it does not necessarily
follow that the said person becomes
the part of a conspiracy in an illegal
scheme.
In the absence of any proof that
a public officer has acted with
malice or bad faith, he cannot be
charged with personal liability for
damages that may thereafter result.
Indeed, municipal officers are liable
for damages if they act maliciously
or wantonly, and if the work which
they perform is done to injure an
individual rather than to discharge a
public duty.
Such malice or bad faith on the
part of a public officer in the
performance of his duties must be
shown persuasively.
To constitute a complete and
operative resignation of the public office,
there must be an intention to relinquish a
part of the term, accompanied by the act
of relinquishment. A resignation implies
an expression of the incumbent in some
form, express or implied, of the intention
to surrender, renounce, and relinquish
the office and the acceptance by
competent and lawful authority.
Acceptance is necessary for
resignation of a public officer to be
operative and effective, otherwise the
officer is subject to the penal provisions
of Article 238 of the Revised Penal Code.
Clearly, a public officer cannot abandon
his office or position before his
resignation is accepted but the
incumbent official would not be in a
position to determine the acceptance of
his resignation unless he has been duly
notified thereof.
An acting appointee is separated
by a method of terminating official
relations known in the law of public
officers as expiration of the term.
His term is understood at the outset
as without any fixed period and
enduring at the pleasure of the
appointing authority. When
required to relinquish his office,
he cannot complain that he is being
removed in violation of his security
of tenure because removal imports
the separation of the incumbent
before the expiration of his term.
This is allowed by the Constitution
only when it is for cause as provided
by law.
The acting appointee is separated
precisely because his term has expired.
Expiration of the term is not covered by
the constitutional provision on security of
tenure because removal imports the
separation of the incumbent before the
expiration of his term. This is allowed by
the Constitution only when it is for cause
as provided by law. The acting appointee
is separated precisely because his term
has expired. Expiration of the term is not
covered by the constitutional provision
on security of tenure.
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.
The main difference between the
former – the primarily confidential officer –
and the latter is that the latter’s term is
fixed or definite, whereas that of the
former is not pre-fixed, but indefinite, at
the time of his appointment or election,
and becomes fixed and determined when
the appointing power expresses its
decision to put an end to the services of the
incumbent. When this event takes place,
the latter is not removed or dismissed from
the office – his term merely expired.
Dismissal is defined as the ouster of
the incumbent before the expiration
of his term. Before it is effected, the
requirements of due process must be
complied with.
The power to reorganize is not
unlimited the same being done in
good faith. It is essential that it be
based on a valid purpose, such as
the promotion of efficiency and
economy in the government
through a pruning of offices or the
streamlining of their functions.
It is settled in our law that
the abolition of an office within
the competence of a legitimate
body if done in good faith
suffers from no infirmity. Valid
abolition of offices is neither
removal nor separation of the
incumbents.
A public office may become
vacant by abandonment. In order to
constitute abandonment of office, it
must be total and under such
circumstances clearly to indicate an
about relinquishment. Temporary
absence is not sufficient. There must
be an intention, actual or imputed,
to abandon the office.
A person holding a public office
may abandon such office by non-user
or acquiescence. Non user refers to a
neglect to use a right or privilege or to
exercise an office. However, non-
performance of the duties of an office
does not constitute abandonment
where such non-performance results
from temporary disability or from
involuntary cause.
An example of abandonment by
acquiescence is, after removal,
an unreasonable delay lapses by
the failure of an officer illegally
removed to take steps to
vindicate his rights.
Where an employee who has
satisfied the requirements for
retirement under more than one
section of the retirement law, he is
entitled to choose the provision of
law under which he shall retire.
An employee’s act of touching a co-
employee’s leg is not constitutive of
grave misconduct, in the absence of
proof that the former was maliciously
motivated.
No compensation is due for the period of
the preventive suspension pending
investigation but only for the period of
preventive suspension pending appeal in the
event the employee is exonerated.

Payment of salary during the period of
compensation is allowed: 1) when an
employee is found innocent of the charges
which caused his suspension; and 2) when
the suspension is unjustified.
The preventive suspension of civil
service employees charged with
dishonesty, oppression or grave
misconduct, or neglect of duty is
authorized by the Civil Service Law. It
cannot, therefore, be considered
“unjustified”, even if later the charges
are dismissed so as to justify the
payment of salaries to the employee
concerned.