Pre-Week

Reviewer
ADMINISTRATIVE LAW and
PUBLIC OFFICERS LAW

UP COLLEGE OF LAW
Bar Operations 2008
Political Law Team
Andi Lacuesta (Head), Steve Mercano (Deputy), Yvette Yaneza,
Steve
Mercano
(Admin
Law),
Jeneline
Nicolas
(Local
Government),
Mae
Macasero
(Public
Officers),
Kristine
Bongcaron, Romulo Ramirez, Joanna Capones (Constitutional
Law 1), Luis Jose F. Geronimo, Judith Ann Alejo, Ma. Florence
Therese D.G. Martirez, Gayle Isip-Reyes, Kristina Zamora,
Ferdinand Manebo, Emmeline Escobillo, Jennifer Reyes, Jericho
del Puerto (Constitutional Law 2), Andi Lacuesta, Jeneline
Nicolas, Steve Mercano, Christina Rondario, Bridget Rose Mesina
(Election Law), Christina Rondario, Tifanie Gerona (Public Intl
Law)

ADMINISTRATIVE LAW

(1) Government
grant or gratuity,
special privilege

I. GENERAL PRINCIPLES

GSIS, SSS, PAO

(2) Carrying out the
actual business of BIR
government

Customs, Immigration

growing complexities of modern life

multiplication of number of subjects
needing government regulation

Land Registration
Authority

increased difficulty of administering laws

(Pangasinan Transportation v Public
Service Commission)

(3) Service for public

benefit
Philpost

Why there is
a need for administrative agencies/bodies:
Branches of government lack:
(1) time,
(2) expertise, and
(3) organizational aptitude
for effective and continuing regulation of new
developments in society.

PNR

MWSS

NFA, NHA
(4) Regulation of
businesses
affected with
public interest

Administrativ
e law =
(a)
fixes the organization,
(b)
determines the competence of
administrative authorities, and
(c)
indicates to the individual
remedies for the violation of his rights.

LTFRB, NTC

SEC

ECC

NLRC

SEC

DAR

COA
(7) Government as
private party
b.

2 Senses of
Administration:
(1) function (2) organization

GSIS

as to the organic law of creation

(1)
Constitution
(2)
Legislative
enactment

(3)

2 Kinds of
Administration:

Executive Order;

authority of law

c.

internal (legal)

Administrativ
e Agency =
(a) any governmental organ or authority,
other than a court or legislative body,
which affects the rights of private parties
through rule-making and adjudication
(b) any department, bureau, office,
commission, authority, or officer of the
Government
authorized by law or EO to
(1) make rules
(2) issue licenses
(3) grant rights or privileges, and
(4) adjudicate cases.

as to hierarchy
(1)
Office of the
President; Cabinet
(2)
independent
Constitutional Commissions
CSC, COMELEC, COA
(3)
other constitutional
bodies
Sandiganbayan, Ombudsman,
NEDA, CHR, Natl Language
Commission, etc.

(4)

regulatory
commissions
SEC, NLRC, Insurance
Commission, LTC, CID, etc.
(5)
public corporations
UP, NPC, MWSS, NDC, DBP

Powers of an
Administrative Agency
a.
legislative
b.
judicial
c.
fixing
g / executing

Insurance Commission

HLURB
(5) Regulation of
private
businesses and
individuals
(6) Adjustment of
individual
controversies

external
(problems of govt regulations)

Kinds of
Administrative Law
a.
Statutes setting up administrative
authorities.
b.
Rules, regulations, or orders of
such authorities promulgated pursuant to
purposes for which they were created.
c.
Determinations, decisions, and
orders of such authorities to settle disputes
arising in their fields.
d.
Body of doctrines and decisions
dealing with the creation, operation, and
effect of determinations and regulations of
such authorities.

(1)
(2)

(3)

Bureau of Lands
Phil. Veterans Admin.

Factors
responsible for the emergence of
administrative agencies:

(1)
(2)

rule-making / quasiadjudicatory / quasi-

Kinds of
Administrative Rules or Regulations
(a)
supplementary / detailed
legislation
(b)
interpretative legislation
(c)
contingent legislation

II. CONTROL OF ADMINISTRATIVE ACTION

determinative
licensing
price/rate-

A.

Legislative
a. Powers of the Legislature
1.
creation and abolition
2.
appropriation
3.
investigation
4.
prescription of
legislative standards

implementin
Types of

Administrative Agencies
a.
as to purpose

5.

prescription of
minimum procedural requirements
b. Congressional Oversight Committee
1.
scrutiny
2.
Congressional
investigation

3.
B.

(g)
promotion of simplicity, eonomy,
or efficiency
(h)
maintenance of monetary
stability, promotion of
production and real income
cannot be delegated:

legislative supervision
legislative veto

(a)

Executive Powers
a.
appointment
b.
control
c.
supervision
sworn duty to preserve and defend the
Constitution and execute the laws

C.

Permissible delegation:
(a) ascertainment of fact
(b) filling in of details

Judicial

(c)

power of judicial review

2 views:
(a) radical (b) traditional / accepted
deference to agencies greater
expertise and experience in their
areas of specialization

D.

Ombudsman

III. POWERS AND FUNCTIONS OF ADMINISTRATIVE

AGENCIES
Distinctions:
Basis

Quasilegislative

Quasi-judicial

As to
procedural
standards

The procedure
is that normally
observed in the
making of rules.

The procedure
must observe the
requirements of
due process in the
7 cardinal rules.

As to time

Rule-making is
prospective in
character, for it
only governs
future acts.

Adjudication is
retrospective in
character, for it
investigates acts
already done and
then applies the
law on the facts.

As to
application

A.

Legislative rules
are of general
application

creation of municipalities
(not the merging of administrative
regions)
(b)
defining crimes

administrative rule-making
limits on rule-making:
(1) must be authorized by
law
(2) must not amend or be
inconsistent with the law
(3) must be germane to the
purpose of the law it was
meant to implement
(4) must not restrict,
expand, diminish, supplant,
or modify the law
(5) may not unilaterally
impose a new legislative
policy

(6)

may not delegate to a

mere constitutive unit the
rulemaking authority
legislatively vested in the
head of an executive
department
Indispensability of Publication
exceptions:
1. interpretative rules
2. internal regulations

3.

letters of instructions issued by

administrative superiors to
subordinates
All rules with respect to the fixing of
rates must first give notice and hearing.
Legislative Rules
promulgated pursuant
to its quasi-legislative /
rule-making functions.
create a new law, a
new policy, with the
force and effect of law.

Adjudicative
rulings apply only
to parties

need publication.
So long as the court
finds that the legislative
rules are within the
power of the
administrative agency
to pass, as seen in the
primary law, then the
rules bind the court.
The court cannot
question the wisdom or
correctness of the
policy contained in the
rules.

Legislative Function
non-delegation doctrine
Requisites for a valid delegation:
(1)
completeness
(2)
existence of
sufficient standard

may be express, implied, or

embodied in other statutes on
the same matter, not
necessarily in the same law
being challenged
judicial determination of
sufficiency of standards:
(a)
interest of law and order
(b)
public interest
(c)
justice, equity and the substantial
merits of the case
(d)
what is moral, educational, or
amusing
(e)
adequate and efficient instruction
(f)
reasonableness

Due process involves

whether the parties
were afforded the
opportunity to be
notified and heard
before the issuance of
the ruling.

B.

Interpretative Rules
passed pursuant to its
quasi-judicial capacity.
merely clarify the
meaning of a pre-existing
law by inferring its
implications.
need not be published.
The court may review
their correctness of the
interpretation of the law
given by the
administrative body, and
substitute its own view of
what is correct to the
administrative body. If it
is not within the scope of
the administrative
agency, court can only
invalidate the same but
not substitute its decision
or interpretation or give
its own set of rules.
Due process means that
the body observed the
proper procedure in
passing rules.

Judicial Functions and Powers

1. Investigation and adjudication
2. Power to issue subpoena and
declare contempt
While all agencies with quasijudicial functions have the power to

issue subpoenas, even if their charter

is silent as to it, not all of such
agencies also have the power to cite
for contempt. This must be expressly
granted in the charter. Else, the RTC
must be invoked.
3. Administrative searches and
seizures
power to issue warrant of arrest:
none, except in the case of
deportation of illegal / undesirable
aliens, following a final order of
deportation. (Qua Chee Gan v
Deportation Board)

(2)

History of the statute involved;

legislative intent
(3) Nature of problem involved

quest
ion of law vs. question of fact

quest
ion of discretion;
question of policy
(4) Finality of the decision
forum shopping, res judicata, litis
pendentia

IV. ADMINISTRATIVE PROCEDURE

Cardinal Primary Rights of Due Process:

(Ang Tibay v CIR)

1.

for reasons
of comity: Expedience, courtesy,
convenience
Failure to observe doctrine does not affect
jurisdiction of the court. The only effect of
non-compliance is it will deprive
complainant of a cause of action, which is
a ground to dismiss. But if not invoked at
the proper time, this ground is deemed
waived.

in administrative
proceedings, an opportunity to
seek reconsideration; or
(c)
an opportunity to
explain ones side

3.

The decision must be supported by

evidence.

4.

Evidence must be substantial.

Substantial Evidence
such relevant evidence as a
reasonable mind might accept as
adequate to support a conclusion,
even if other minds equally
reasonable would opine otherwise.
Decision must be rendered on the
evidence presented at the hearing or at
least contained in the record and
disclosed to the parties affected.
Independent consideration of judge
7.
Decision rendered in such a
manner as to let the parties know the
various issues involved and the reasons
for the decision rendered.

5.

6.

exceptions:
(a)
purely legal questions

(b)
steps to be taken are merely matters of
form

(c)
administrative remedy not exclusive but
merely cumulative or concurrent to a
judicial remedy

(d)
validity and urgency of judicial action or
intervention

(e)
no other plain, speedy, adequate remedy
in the ordinary course of the law

(f)
resort to exhaustion oppressive and
patently unreasonable; will only cause
great and irreparable damage which
cannot be prevented except by taking
the appropriate court action
(g)
the administrative remedy is only
permissive or voluntary and not a
prerequisite to the institution of judicial
proceedings

Notice and Hearing

a. When required
(a) when specifically required by
law
(b) when it affects a persons
status or liberty
b. When not required

(a)
(b)

to give the
agency a chance to correct its own errors
and prevent unnecessary and premature
resort to the courts

(b)

The tribunal must consider the evidence

presented.

Doctrine of Exhaustion of Administrative

Remedies

Right to a hearing; to present ones own

case and submit evidence in support
thereof
Presence at a trial is not necessarily
the essenec of due process. All that
the law requires is the element of
fairness, that the parties be given
notice of trial and:
(a)
an opportunity to be
heard

2.

right

vs. privilege

(h)
the controversy involves the rule-making
or quasi-legislative functions of an
administrative agency

urgent reasons

discretion is exercised by an
officer vested with it upon an
undisputed fact

(i)
administrative agency is in estoppel

(c)

(j)

if it involves the exercise of

discretion and there is no grave
abuse

(d)

where the appeal to the Office of the

President was not acted upon despite
follow-ups, and in the meantime, the
assailed administrative resolution
continued to be put in effect

(e)

(k)

when rules are to govern

future conduct of persons or
enterprises
in the valid exercise of police
power

the subject of controversy is private land,

in land case proceedings
(l)
unreasonable delay or official inaction

V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

There is an underlying power in the courts
to scrutinize the acts of administrative agencies
exercising quasi-judicial power on questions of
law and jurisdiction even though no right of
review is given by the statute.

(m)
administrative action is patently illegal
amounting to lack or excess of
jurisdiction

Availability of Judicial Review: Factors:

(1) WON what is involved is a question of

constitutionality

official or agency refuses to

exercise the duty itself.

(n)
resort to administrative remedy will amount
to a nullification of a claim
(o)
Issue of non-exhaustion of administrative
remedies rendered moot
(p)
quo warranto proceedings

(2)
Right of petitioner is clear and
controlling.
If the question is one of public
right and the object of
mandamus is to procure the
performance of a public duty, it
is sufficient to show that the
petitioner is a citizen even if he
has not special interest in the
result. (Taada v Tuvera)
(3)
No other plain, speedy and adequate
remedy.

(q)
law expressly provides for a different
review procedure

Doctirne of Primary Jurisdiction /

Preliminary Resort
effect:

(a)

not dismisal, but only

suspension until after the matters
within the competence of the
administrative agency are threshed
out and determined

(d)

(b)

Where primary jurisdiction to

determine preliminary matters is
vested in an administrative agency,
such determination is subject to
challenge in the courts.
when applicable:

a.

The
administrative body and the regular
court have concurrent and original
jurisdiction.
b.
The
question to be resolved requires
expertise of administrative agency.
c.
The
legislative intent on the matter is to
have uniformity in rulings.

d.

The
administrative agency is performing a
quasi-judicial or adjudicatory
function (not rule-making or quasilegislative.)

(6)

Controversy must
be ripe for adjudication.
exhaustion of administrative
remedies
(7)
Adequate relief is
not available through other
means or other forms of action or
proceeding.

exceptions:
(a) agency has exclusive jurisdiction
(b) the issue is not within the
competence of the administrative
body to act on
(c) the issue involved is clearly a
factual question that does not require
specialized skills and knowledge for
resolution

(e)
(f)

B. Extent of Judicial Review

question of fact vs. of law
question of fact:
(a) existence of a certain fact or
thing
(b) occurrence of an event

A. Modes of Judicial Review

(c)

which of the two versions of the

happening of an event is correct
question of law:
(a) Constitutionality of the statute
creating the agency and granting
its powers
(b) Validity of the agency action if
this transcend the limit
established by law
(c) Correctness of the agencys
interpretation and application of
the law

2 classes of methods:
statutory vs. non-statutory
direct vs. collateral

(a) Certiorari
(i)

simple or ordinary (Rule

45)
Rule 43, in the case of
administrative agencies
performing quasi-judicial
functions

(ii)

special civil action (Rule

VI. ENFORCEMENT OF AGENCY ACTION

65)

(b)
(c)

Habeas Corpus (Rule 102)

Injunction (Rule 58)

(g) Suit for Damages

Ripeness
2-fold test:
(1) fitness of the issue for judicial decision
(2) hardship on the parties due to
withholding of such court action

(a)
(b)

Declaratory Relief (Rule 63)

Requisites:
(1)
Subject matter
must be a deed, will, contract or
written instrument in which
petitioner is legally interested, or
law or governmental regulation
which affects his rights.
(2)
The terms of the
written instrument are, or the
validity of the law or regulation is,
doubtful and requires judicial
construction.
(3)
Petition is filed
before breach or violation of the
instrument or regulation.
(4)
There must be an
actual justiciable controversy
between persons with adverse
interests.
(5)
Petitioner must
have legal interest in the
controversy.

Prohibition (Rule 65)

Adjudicative function

Enforce decision.

Mandamus (Rule 65)

Rule-making function

Promulgate rules.

Executive function

Issue or withhold license.

Requisites:

(1)

Dispensing government
Dole out or withhold.
largess
Administrative enforcement includes:

Public officer or agency has a positive

duty, which is ministerial, and
unlawfully neglects to perform
such duty.
Mandamus will lie against a
discretionary duty when the

presumption of power of agency to enforce

its decisions emanating from its quasi-judicial
powers

 summary enforcement without need for

adjudication:

Elected
or
appointed
via
an
unconstitutional law, before adjudged as
such.

CIR: distraint
of personal property or levy on real
property
DOH:
abatement of nuisance
PCGG:
sequestration of ill-gotten wealth

If officials refuse to implement a final and

executory judgment, the remedy is
mandamus.

3. Who may Contest

Execution must conform to that ordained or

decreed in the dispositive part of the
decision. Where the order of execution is not
in harmony with and exceeds the judgment
which gives it life, the order pro tanto has no
validity. (Clavano v HLURB)

Quo warranto proceedings may be filed by:

The person claiming entitlement to
the office;
The Republic of the Philippines
(represented by the Solicitor-General or
a public prosecutor)
4. Liabilities of De Facto Officers

LAW ON PUBLIC
OFFICERS

Public Officer

performs discretionary governmental public

functions / duties

became such by law, election, or

appointment.

De jure officer may even recover from him

the salary he received (Monroy v CA).
EXCEPTIONS

NO de jure officer.

When the de jure officer assumed

another position under protest with pay Gen.
Manager,
Philippine Ports Authority v.
Monserate (April 17, 2002)

(Who MAY BE Public Officers) The term

officer includes any government employee,
agent, or body authorized to exercise
governmental power in performing particular
acts or functions (Sec. 2(14) Administrative
Code), like:

III. ELIGIBILITY AND QUALIFICATIONS

A. Definitions

Eligibility: endowment / requirement /

accomplishment that fits one for a public
office.

Qualification: endowment / act which a

person must do before he can occupy a
public office.

Persons in authority and their agents.

Article 152, Revised Penal Code.

Temporary performer of public

functions.

GR: Acceptance to Office Compelled

EXC:

military or civil service (AII S4 Const);

person elected refuses without legal

motive

Same as de jure officer, even for crimes.

5. De Facto Officers Compensation None

An intruder / usurper may be presumed a

de facto officer with the passage of time,
when the public presumes in their minds
IN GOOD FAITH that the intruder is
rightfully acting as a public officer.

BP 881: the office of any elected official

who fails or refuses to qualify within six

months from his proclamation shall be
considered vacant unless said failure is for
cause or causes beyond his control.

Power = Delegated (Presumed)

De Facto Officers

B. Who Prescribes Qualifications

1. De Facto Doctrine
A person admitted and sworn into office by the
proper authority is deemed to be rightfully in such
office UNTIL:
(a) he is ousted by judicial declaration in a
proper proceeding; or
(b) his admission thereto is declared void.
Purpose: Orderly functioning of government.

GR: Congress (who can also prescribe

disqualifications).

RESTRICTIONS on Congress Power:

Constitution;

The qualification must be germane to

the position ("reasonable relation" rule);

2. De Facto Officer exercises official duties under

ANY of these circumstances:

Congress
cannot
prescribe
qualifications so detailed as to practically
amount to making a legislative appointment.

No known appointment or election

Regarded as officer by reputation or
acquiescence;

Known and valid appointment or

election
Failure to perform condition precedent
(e.g., oath-taking or bond);

C. Time of Possession of Qualifications

Known and valid appointment or

election, but such is VOID because:
Hes ineligible;
Unauthorized electing or appointing
body;
Defective or irregular exercise of
function;

As specified by Constitution or law.

If unspecified, 2 views:

1.
2.

(Important)
The
public
is
UNAWARE of such ineligibility, want of
power, or defect.

Eligibility exists as long as officer is qualified.

Yap)

qualification during commencement

of term or induction into office;
qualification / eligibility during
election or appointment

Estoppel inapplicable. (Castaneda v.

hold any other office or employment.

(Art. IX-A, Sec. 2)

Citizenship requirement should be

possessed on start of term ( on filing
candidacy). (Frivaldo v. COMELEC, June 28,
1996)

5) Previous disqualification applies to the

Ombudsman and his Deputies. (Art. XI,
Sec. 8)
6) The Ombudsman and his Deputies are
disqualified to run for any office in the
election immediately succeeding their
cessation from office. (Art. XI, Sec. 11)

D. Eligibility = Presumed

Practice of Law any activity, in or out of

7) Members of Constitutional Commissions,

the Ombudsman and his Deputies must
not have been candidates for any
elective position in the elections
immediately preceding their
appointment (Art IX-B, Sec. 1; Art. IX-C,
Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8)

court, which requires the application of law,

legal procedure, knowledge, training and
experience. (Cayetano v. Monsod)

Residency

defined. In
residence refers to domicile.

election

law,

Presumption

in favor of domicile of origin.

Domicile requires the twin elements of actual
habitual residence and animus manendi (intent
to permanently remain). Domicile of origin is
deemed to continue absent a clear and positive
proof of a successful change of domicile.
(Marcos v. COMELEC)

8) Members of Constitutional Commissions,

the Ombudsman and his Deputies are
appointed to 7-year term, without
reappointment (Sec. 1(2) of Arts. IX-B,
C, D; Art. XI, Sec. 11)
9) During the Presidents tenure, his spouse
and relatives by consanguinity or affinity
within the fourth civil degree shall not be
appointed as Members of the
Constitutional Commissions, or the
Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including
government-owned or -controlled
corporations. (Art. VIII, Sec. 13)

E. Disqualifications to Hold Public Office

General Constitutional Disqualifications

a)
Losing candidates
should not be appointed to any
governmental office within one year
after such election. (Art. IX-B Sec. 6)

b)

c)

Elective officials
during their tenure are ineligible for
appointment or designation in ANY
capacity to ANY public office or
position (Art. IX-B Sec. 7(1))
Appointive officials
shall not hold any other governmental
position.
Unless otherwise allowed by law
or his positions primary functions
(Art. IX-B Sec 7 (2))

Note: No violation if another office is

held in an ex officio capacity (no

compensation or other honoraria) when
provided by law and required by his
offices primary functions (National
Amnesty Commission v COA, September
8, 2004)

Other Disqualifications
Mental or physical incapacity

1.

2.

Misconduct or crime: persons convicted of

crimes involving moral turpitude are
USUALLY disqualified from holding public
office.

3.

Impeachment

4.

Removal or suspension from office:

5.

Previous tenure of office: for example, an

appointed Ombudsman is absolutely
disqualified for reappointment (Article XI,
Constitution).

6.

Consecutive terms limit:

a. Vice-President = 2 consecutive
terms
b. Senator = 2 consecutive terms
c. Representative = 3 consecutive
terms
d. Elective local officials = 3
consecutive terms (Sec. 8, Art. X,
Constitution)

7.

Holding more than one office: to prevent

offices of public trust from accumulating in
a single person, and to prevent individuals
from deriving, directly or indirectly, any
pecuniary benefit by virtue of their dual
position-holding.

8.

Relationship with the appointing power

Exceptions to rule on nepotism:

Confidential employees
teachers
physicians
members of the Armed
Forces of the Philippines

9.

Under the Local Government Code

Specific Constitutional Disqualifications

1) 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, UNLESS otherwise
provided in the Constitution, (Art. VII,
Sec. 13)
2) No Senator or Member of the House of
Representatives during his term may
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, or else he forfeits his seat.
He shall also not be appointed to any
office when such was created or its
emoluments were increased during his
term. (Art. VI, Sec 13)
3) Members of the Supreme Court and other
courts established by law shall not be
designated to any agency performing
quasi-judicial or administrative functions.
(Art. VIII, Sec. 12)

a.
Conviction for a crime involving
moral turpitude or punishable by 1 year
or more of imprisonment, within 2 years
after serving sentence;

4) Members of the Constitutional

Commission during their tenure shall not

b.

Administratively removed;

c.
Conviction for violating of oath of
allegiance to the Republic;
d.

Dual citizenship;

Note: If a person is appointed to the career

service of the Civil Service, the Civil Service
Commission must bestow attestation.

e.
Fugitive from justice in criminal
or non-political cases here or abroad;
f.
Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to
avail of the same right after the
effectivity of the Local Government
Code;
g.

Definition

Appointment

Imposition of
additional duties
upon existing
office

Appointing
authority selects
an individual who
will occupy a
certain public
office

Extent of
Powers

Limited

Comprehensive

Security of
tenure?

No.

Yes.

Is prior/1st
office
abandoned
when

a 2nd
designated
position is
assumed?
NO

a 2nd
appointive
position is
assumed? Usually
YES

Presidential Appointees

The insane or feeble-minded.

Designation

Doesnt need concurrence of Commission on

Appointments
All other officers of the government whose
appointments are not otherwise provided for
by law;
Those whom he may be authorized by law to
appoint;
Members of the Supreme Court;
Judges of lower courts;
Ombudsman and his deputies
Kinds
of
Appointments

Permanent

Presidential

Regular: while Congress is in session

effective after confirmation by Commission
on Appointments

Ad interim: while Congress is not in

session immediately effective and ceases
to be valid if disapproved or bypassed by the
Commission on Appointments.

Executive and Discretionary. (Concepcion v.

Paredes)
Must be unhindered and unlimited by
Congress.
Free.

D. Qualification Standards and Requirements

under the Civil Service Law
1. Qualification Standards

It enumerates the minimum requirements for

a class of positions in terms of: (TEPOC)

education

training and experience

civil service eligibility

physical fitness and

other qualities required for successful

performance.
(Sec.
22,
Book
V,
Administrative Code)

The Departments and Agencies are

responsible for continuously establishing,
administering
and
maintaining
the
qualification standards as an incentive to
career advancement. (Sec. 7, Rule IV,
Omnibus Rules)

Such establishment, administration, and

maintenance shall be assisted and approved
by the CSC and shall be in consultation with
the Wage and Position Classification Office
(ibid)

It shall be established for all positions in the

1st and 2nd levels (Sec. 1, Rule IV, Omnibus
Rules)

3. Classification of Appointments
Permanent
Temporary
Eligibility and
Needed
Not Needed
Qualification
Until a permanent
Until lawful
Duration
appointment is
termination
issued
None
EXCEPT FixedPeriod Temporary
Appointments:
Security of
may be revoked
Exists
Tenure
ONLY at the
periods expiration.
Revocation before
expiration must be
for a valid cause.
4. Steps in Appointing Process

Needs concurrence of Commission on

Appointments
Heads of the executive departments (Art. VII,
Sec. 16, Constitution);
Ambassadors (ibid);
Other public ministers and consuls (ibid);
Officers of the armed forces from the rank or
colonel or naval captain (ibid);
Other officers whose appointments are
vested in him by the Constitution (ibid),
including Constitutional Commissioners (Art.
IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2)
for COMELEC; Art. IX-D, Sec. 1 (2) for
COA).

Vacancy for Validity of appointment. (Costin

v Quimbo)

2. Nature of Power to Appoint

For Appointments not requiring confirmation

(AIA)
1. Appointing authority appoints.
2. Commission issues appointment.
3. Appointee accepts.

For Appointments requiring confirmation:

Regular Appointments (NCIA)
1. President nominates.
2. Commission on Appointments confirms.
3. Commission issues appointment.
4. Appointee accepts.

2. Political Qualifications for an Office (i.e.

membership in a political party)

GR: Not Required.

EXC:

Membership in the electoral tribunals of

either the House of Representatives or
Senate (Art. VI, Sec. 17, Constitution);

Party-list representation;

Ad-Interim Appointments (NIAC)

1. President nominates.
2. Commission issues appointment.
3. Appointee accepts.
4. Commission on Appointments confirms.

Commission on Appointments;
Vacancies in the Sanggunian (Sec. 45, Local
Government Code)

Recall. CSC Jurisdiction includes the

authority to recall an appointment which has
been initially approved when it is shown that the
same was issued in disregard of pertinent CSC
laws, rules and regulations.

3. Effect of pardon upon the disqualification to

hold public office

GR: Does not restore the right to hold public

office. (Art. 36, Revised Penal Code)

EXC:

Pardons terms expressly restores such (Art.

36, RPC);

Review Appointees Qualifications. 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.
(Lapinid v. CSC)

Reason for pardon = non-commission of the

imputed crime. (Garcia v. Chairman, COA)

E. Discretion of Appointing Official

Presumed.

What it cannot do.

It cannot order the replacement of the

appointee simply because it considers
another employee to be better qualified.
(Lapinid v. CSC)
The CSC cannot co-manage or be a
surrogate administrator of government
offices and agencies.

Scope
choice of person

nature and character of the appointment (i.e.

permanent or temporary)

Promotion of next-in-rank career officer

Mandatory.

When Abused, use Mandamus.

Upon recommendation = Merely Advisory.

I. Appointments to the Civil Service

F. Effectivity of Appointment
Immediately upon appointing authoritys
issuance of appointment papers. (Rule V, Sec.
10, Omnibus Rules).

G. Effects of a complete, final and irrevocable

appointment

GR: It cannot be taken away EXCEPT for

cause, and with previous notice and hearing
(due process).

EXC:

It cannot change the nature of the

appointment extended by the appointing
officer. (Luego v. CSC)

SCOPE:
Embraces
all
branches,
subdivisions, instrumentalities and agencies
of the Government, including GOCCs with
original charters (Art. IX-B Sec. 2(1),
Constitution)
Classes of Service
Career Service
merit and fitness
(i.e. competitive
examination)
Exceptions
(nature of
position):

Appointment = Absolute Nullity (Mitra v.

Subido);

Appointee commits fraud

Subido);

Midnight appointments

(Mitra

Po

Qualification

v.

General Rule: A President or

Acting President (only) shall not
appoint 2 months immediately before
the next presidential elections until his
term ends. (Art. VII, Sec. 15,
Constitution)
Exception:
Temporary
appointments to executive positions
when continued
vacancies will
prejudice public service or will endanger
public safety.

Commissions

No
examinations

Pri

H.
Civil
Service
Jurisdiction

Non-career
Service

Hi

Tenure

Secured

(CSCs)

Exclusive Jurisdiction
Disciplinary cases
cases
involving
personnel
action
affecting the Civil Service employees
appointment through certification
promotion
transfer
reinstatement
reemployment
detail, reassignment
demotion
separation
employment status
qualification standards

period
specified by
law
coterminous
with the
appointing
authority
duration of a
particular
project

Other Personnel Actions

Promotion - movement from one

position to another with increase in duties,
responsibilities and pay.

Next-in-rank Rule.

The person next in rank shall

be
given
PREFERENCE
in
promotion when the position
immediately above his is vacated.

Preference

Automatic
Appointment

Appointing
authority shall specify the special


NO reduction in rank, status or
salary.

reason or reasons for not

appointing the officer next-in-rank.

Should have a definite date or

duration (c.f. Detail). Otherwise, a
floating assignment = a diminution
in status or rank.

Automatic Reversion Rule.

In a chain of promotions, the

disapproval
of one
persons
promotion invalidates the promotion
of those in the lower positions and
automatically restores them to their
former positions.

But the affected persons are

entitled to payment of salaries for
services actually rendered at a rate
fixed
in
their
promotional
appointments. (Sec. 13 of the
Omnibus
Rules
Implementing
Administrative Code)

Reemployment. Names of persons who

have been appointed permanently to
positions in the career service and who have
been separated as a result of reduction in
force and/or reorganization, shall be entered
in a list from which selection from
reemployment shall be made.

V. ASSUMPTION AND TERM OR TENURE OF

OFFICE

Appointment through Certification is

issued to a person who is:
selected from a list of qualified
persons certified by the Civil Service
Commission from an appropriate
register of eligibles

A. Qualification to Office
designates commencement
tenure.

of

security

of

1. Appointment and Qualification to Office

Distinguished

Transfer is a movement from one

position to another which is of equivalent
rank, level or salary without break in service.

Appointment is the appointing authoritys act of

designating a person to a public office.

If UNconsented = violates security

of tenure.
EXCEPTIONS:

Temporary Appointee

A man cannot be compelled to accept office.

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. (Borromeo v. Mariano)

Career
Executive
Service
Officer whose status and salaries
are based on ranks ( positions)

Qualification is the appointees act of signifying

his 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)

Reinstatement. It is technically the

issuance of a new appointment and is
discretionary on the part of the appointing
power.
It cannot be the subject of an
application for a writ of mandamus.

Appointment

Qualification

Who may be reinstated to a

position in the same level for which he is
qualified:

Any permanent appointee of a

career service position

No commission of delinquency
or misconduct, and is not
separated.

Same
effect
as
Executive
Clemency, which completely obliterates
the adverse effects of the administrative
decision which found him guilty of
dishonesty. He is restored ipso facto
upon grant of such. Application for
reinstatement = unnecessary.

Appointee

Act
Done

Designates
Appointee To a
Public Office

Accepts Appointive
Position

It is evidence of refusal of the office.

It is a ground for removal.
IF qualification = condition

precedent
failure to qualify = rejection of the office

Detail is the movement of an employee

from one agency to another without the
issuance of an appointment.

BUT If qualification condition precedent

failure to qualify rejection

Limited period.

Professional,
scientific positions.

Appointing
Authority

2. Effect of Failure to Qualify

Who
Acts

technical

3. Justifiable reasons for delay in qualifying:

Sickness

Accident

Other fortuitous events that excuse delay.

and

Temporary.

4. Time Limit for Qualification. 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.

Reassignment in the SAME agency.

Management prerogative.

removal without cause.

Requirements:

10

 If Bond = condition precedent renders office

B. Oath of Office

vacant.

1. Definition
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.
Obligatory?

GENERALLY NO. It may be dispensable,

because 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 mandatorily
required by the Constitution (Art. VII, Sec. 5)
to take an oath or affirmation before entering
into the execution of their office.

D. Term and Tenure of Office

1. Term of Office and Tenure of Office
Distinguished
Term of Office Tenure of Office
De jure
De facto
Fixed and definite period
Period during which the
of time during which the
incumbent ACTUALLY
officer MAY CLAIM THE
HOLDS the office. It may
RIGHT TO HOLD the
be shorter than the term.
office
2. Legislature holds Power to Fix and Change
the Term of Office

BUT, Nachura states: Only when the

public officer has satisfied the prerequisite of

taking his oath of office can his right his
position be considered plenary and
complete. Until then, the holdover officer is
the rightful occupant. (Lecaroz v
Sandiganbayan)

When the Constitution is silent

When Congress itself created the office

2. Persons Authorized to Administer Oaths

Notaries public;
Judges;
Clerks of court;
Secretary of House / Senate;
Secretary of Exec. Departments;
Bureau Directors;
Register of Deeds;
Provincial governors;
City mayors;
Municipal mayors;
Presidential appointees
Any other officer whose duties, as defined by
law or regulation, require presentation to him
of any statement under oath

Exception: Applying Lengthened Term to

Incumbents = Legislative Appointment Null
and Void
NO POWER WHEN Constitution fixes term.
But such term of office can be shortened or
extended when people vote to ratify a
constitutional amendment.

3. When Term/Tenure of Office Dependent upon

Presidents Pleasure

3. Persons Obliged to Administer Oaths in All

Instances
Notaries public
Municipal judges
Clerks of court

When Congress legally and constitutionally

makes it so. (Alba v. Evangelista)
Effect. The public officer may be removed
without notice or hearing when the appointing
power can exercise the power of removal at his
mere discretion. (Alba v. Evangelista)

4. No Vested Interest in Term of Office

4. When to Take Oath of Office

Before discharging duties.

An incumbent cannot validly object to the

alteration of his term. Public office is a privilege
revocable by the sovereignty ( by him) at will.
Thus he has no vested right in his office.
(Greenshow v. U.S.)

5. Term of Office Not Extended by Reason of

War

5. Requalify if Re-Elected/-Appointed
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 prior oath and other qualifications made
before assuming his previous office are valid
for his subsequent terms of office.

There is no principle, law or doctrine by which

the term may be extended by reason of war.
(Nueno, et al. v. Angeles)

E. Doctrine of Holdover
1. The Doctrine

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
has qualified. (Mechem)

C. Giving of Bonds
1. The Bond

Nature. An indemnity bond ( penal / forfeiture

bond).

When Charged. Whenever the officer defaults,

sureties are held liable.

2. Purpose

Public interest: to prevent hiatus in the public

service pending the time when a successor
may be chosen and inducted into office.

Purpose and Beneficiaries.

To indemnify those suffering loss or injury

due to officers misconduct or neglect in office.
To protect public interest

3. Holdover Rules

Office holders benefit

2. Persons Required to Give Bond

Financially accountable public officers (i.e.
entrusted with collection and custody of
public money);
Public ministerial officers whose actions may
affect an individuals rights and interests.

3. Effect of Failure to Give Bond within the

Prescribed Period

If

Bond condition precedent merely

constitutes a GROUND for forfeiture ( ipso
facto) of the office.

11

When the law expressly 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.
Holding-over public officer = de jure officer.
When the law is silent:
GENERAL RULE: Incumbent may hold-over.
Law-making body favors it.

EXCEPTION: When hold-over is prohibited,

expressly (i.e. provision stating hold-over is
prohibited) or impliedly (i.e. law fixes a specific
date for the end of the term).

Impermissible when the Constitution limits the

term of a public officer and does not provide for
hold-over.

D. Duration

Limited to that term he is invested by law with

the rights and duties of the office.

Note: Art 237 of the Revised Penal Code

penalizes any public officer who shall continue
to exercise the duties and powers of his office
beyond the period provided by law.

Police officers may arrest criminals outside

Philippine territory;
Doctrine of HOT pursuit

E. Construction of Grant

STRICT. Grant of powers will be construed as

conferring only those expressly imposed or
necessarily implied.

F. Commencement of Term of Office

F. Classification of Powers

1. If time = fixed

On specified date.

Discretionary

2. If time fixed

On Election or Appointment date.

3. If law fixing the term = ambiguous

Follow the shorter/est term.

Definition

4. If office = vacant AND terms duration and

commencement are fixed

Person elected to fill the

vacancy shall hold the office only for the
UNEXPIRED PORTION of the term.
5. If terms [duration = fixed] AND [beginning or
end fixed]

Person selected to fill the

vacancy may serve the FULL term
Delegable?

6. Where an officer is appointed to an office

created to perform a single act

Office terminates with the

accomplishment of its purposes.

VI. POWERS
OFFICERS

AND

DUTIES

OF

PUBLIC
When is
mandamus
proper?

A. Source

The people sovereign

Public Officers authority consists of those
powers:
Expressly conferred upon him by the act
appointing him
Expressly annexed to the office by law
Attached to the office by common law as
incidents to it

Public
Generally NO.
officer liable
for his
Exceptions:
official
Fraudulent or
acts?
Malicious acts.

B. Scope

YES if exercise of
duty = contrary to
laws prescribed
manner.

Powers expressly granted by law.

1. Discretionary Power

All official powers truly covered by the Doctrine

of Necessary Implication:
those essential to the accomplishment of the
offices main purpose; or

those germane to and serve to promote the

accomplishment of the principal purpose,
although incidental or collateral (Lo Cham v.
Ocampo).

C. Territorial Extent

Ministerial
Acts performed:
in a given
state of facts,
in a prescribed
Acts requiring
manner,
exercise of
in obedience
reason in
to the mandate of
determining
when, where, and legal authority
disregarding his
how to exercise
own judgment
the power
upon the acts
propriety or
impropriety
(Lamb v. Phipps)
Generally, YES.
Generally, NO.
Exception: When
Exception: When the law expressly:
officer is given
requires officer
the power to
to perform the act
substitute /
in person
delegate.
prohibits
delegation
When doing of
duty has been
delayed for an
unreasonable
time.
Mandamus can
only compel the
Always.
officer to MAKE a
decision (dictate
HOW to decide)
(BF Homes v
National Water
Resources
Council)

GENERAL RULE: If a public officer is

authorized by law to perform his duties at a
particular place, performing them in a place not
authorized by law is ordinarily invalid. (Note:
This applies to all public officers whose duties
are essentially local in nature, e.g. judges.)
EXCEPTIONS:
Consuls;

12

Definition. A lawful conferment of a power or

right upon an officer to act officially in certain
circumstances, according to their OWN
(others) judgment and conscience. (Lamb v.
Phipps)
Power of Board of Canvassers = Quasi-Judicial
= Discretionary. (Torres v. Ribo)
Generally Unrestricted by Mandamus when the
law imposes upon the officer the right or duty to
exercise judgment in reference to ANY matter
requiring his action (Aprueba v. Ganzon).
Quasi-Judicial Officers Acts. Auditors and
comptrollers, as accounting officers, are
generally quasi-judicial officers. They perform
ministerial duties only when the sum due is
conclusively fixed by law or pursuant to law.
Other than that, their actions are usually judicial

and discretionary (ministerial), including

claims for settlement and certification of
balances they deem due. Mandamus wont
apply. (Lamb v. Phipps)

2. Specified

Merely directory

Exceptions:

Mandamus
inapplicable
to
contractual
obligations (i.e. via police power). 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.
Mandamus never lies to enforce the
performance
of
contractual
obligations.
(Aprueba v. Ganzon)

Exceptions:

1. If act was absolutely void when committed

Cannot be ratified

2. If merely voidable

Can be ratified and rendered valid

3. Government not estopped by its officers
unauthorized or illegal acts

Officially Competent. When public

officer is officially competent to remove or
rectify an unlawful act. (Miguel v. Zulueta)

No Remedy. When Plain, Speedy or

Adequate remedy Available. (First Phil.
Holdings Corp v Sandiganbayan)

Discretion Judgment
Judgment is a judicial function, the
determination of a question of law. There is
only one way to be right.
Discretion is the faculty conferred upon a court
or other officer which he may decide the
question either way and still be right.

2. Ministerial Power (Lamb v. Phipps)

A purely ministerial act is performed by an
officer or tribunal in a given state of facts, in a
prescribed manner, in obedience to the
mandate of legal authority, disregarding the
exercise of his own judgment upon the acts
propriety or impropriety.

It is a simple, definite duty arising under

conditions admitted or proved to exist and
imposed by law.

It is a precise act, accurately marked out,

enjoined upon particular officers for a particular
purpose.

Provision has negative words importing the

doing of acts only in such specified manner or
time.

I. Ratification of Unauthorized Acts

Abusive. When officer commits grave

abuse of discretion, manifest injustice or
palpable excess of authority equivalent to
a denial of a settled right to which the
petitioner is entitled (First Phil. Holdings
Corp v Sandiganbayan)

Statute shows a different intent (Araphoe City

v. Union Pac);
Disregard of statute would injuriously affect a
public interest or public right;

Especially when the individual benefited. As

between an individual and his government, an
individual cannot plead the void act of an official
to shield him from the governments demand
that he (the individual) fulfill an obligation which
he has contracted with the government. Not
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)
Officers Wrong Construction Disregarded. 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. (Hilado v.
Collector)

I. Accountability and Responsibility of Public

Officers and Employees

Norm of Performance of Duties: standards of

personal conduct provided for in Sec. 4, RA
6713

Commitment to public interest;

Professionalism;

Justness and sincerity;

Political neutrality;

Responsiveness to the public;

Nationalism and patriotism;

Commitment to democracy;

Simple living

G. Duties of Public Officers

J. Prohibitions

1. General (Constitutional)
a)
To be accountable
to the people; to serve them with utmost
responsibility,
integrity,
loyalty
and
efficiency to act with patriotism and
justice, and to lead modest lives (Art. XI,
Sec. 6)
b)
To
submit
a
declaration under oath of his assets,
liabilities and net worth upon assumption
of office and as often thereafter as may be
required by law (Art. XI, Sec 17)
c)
To owe allegiance
to the State and the Constitution at all
times (Art. XI, Sec. 18)

(a)

Partisan political activity. No civil

service officer or employee shall engage,
directly or indirectly, in any electioneering or
partisan political campaign. (Sec. 5(3), Sec. IXB)

Armed Forces included.

Civil Service Law prohibits them to:

engage directly or indirectly in any

partisan political activity

take part in any election, except vote

use official authority to coerce any

person or body in political activity.

2. Specific

The Solicitor General is

represent the government.

duty-bound

to

Except in criminal cases or civil cases for

damages arising from felony (Gonzales v
Chavez)

H. Time of Execution of Powers

1. Specified

Within a reasonable time

13

OKAY to express views on current

political problems (Caltex v Bonifacio)
Prohibition on Campaigning except on
campaign period. This provision is diff
from Sec. 79 BP 881 which makes it
unlawful for any person or any political
party to engage in election campaign or
partisan political activity except during
campaign period.
Election campaign or partisan political
activity refers to an act designed to
promote the election or defeat of a
candidate/s to public office.

If done for the purpose of enhancing the

chances of aspirants for nomination for
candidacy to a public office by a political
party, it shall not be considered as
election campaign or partisan political
activity.

Public Office Intruder / Usurper Right to

Salary / Compensation attached to office.

3. Some Constitutional Provisions Affecting

Salaries

Increase of salaries of members of

Congress shall take effect after expiration of the
full term of the Members of the Senate and the
House of Representatives who approved
increase. (Sec 10, Art. VI)

(b)

Additional
double
or
indirect
compensation unless:

law specifically authorizes such

Congress consents to any foreign

governments any present emolument, office or
title of any kind from (Sec. 8, Art. IX-B)

(c)

Loans guaranty, or other form of

financial accommodation for any business
purpose may be granted, directly or indirectly,
by any government-owned or controlled bank or
financial institution to the ff:
(1) President
(2) Vice President
(3) Members of the Cabinet
(4) The Congress
(5) The Supreme Court
(6) The Constitutional Commissions
(7) The Ombudsman
(8) To any firm to which they have
controlling interest during their tenure

Presidents and Vice Presidents salary:

shall be fixed by law
shall not be decreased during their tenure
increase shall take effect after expiration of
the term of the incumbent who approved
increase (Sec. 6, Art. VII)

Judiciary members salary shall not be

decreased during their stay in office (Sec. 10,
Art. VIII). BUT imposition of income taxes on
their salaries unconstitutional diminution
(Nitafan v Tan)

Additional,
double
or
indirect
compensation are PROHIBITED (Sec. 8, Art.
IX-B)

Standardization of compensation (Sec. 5,

Art. IX-B) enunciated in RA 6758 or Salary
Standardization Law.

(d)

Limitation on Laborers. They shall not

be assigned to perform clerical activities.

4. Compensation element of public office

(e)

Detail or assignment within three

months before any election UNLESS Comelec
approves

(f)

Nepotism: All appointments made in

favor of a relative (within the third civil degree of
consanguinity or affinity) of the appointing
authority or the chief of the bureau or office of
the persons exercising immediate supervision
over him. This covers all appointments and
designations, including subsequent personnel
actions. (ex. promotion, reinstatement etc).

indispensable
part
merely incident
some public offices are served gratuitously.

5. Salary vs Wages vs Per Diems

Salary
Time-Bound

Wages
Service-Bound

Per Diem
Allowance
for
Days
Actually
Spent for special
duties

6. Public Officers Salary Attachable

VII. RIGHTS AND PRIVILEGES OF PUBLIC
OFFICERS

A. Right to Office

It is the right to exercise the powers of the office

to the exclusion of others.

B. Right to Salary or Compensation

1. BASES

The legal title to the office

The fact that the law

compensation to his office

Compensation requires validly-created office. A

public officer is not entitled to compensation for
services rendered under an unconstitutional
statute or provision thereof.

EXCEPT if some other statute provides

otherwise.

Money in the hands of public officers, though

due to government employees, cannot be
garnished by these employees creditors. The
State cannot be sued without its consent.
(Director of Commerce and Industry v.
Concepcion)

7. Agreements Affecting Compensation Void

attaches

2. GENERAL RULES

The salary of a public officer or employee may

NOT be:
seized by garnishment, attachment, or order of
execution before it is paid to him
appropriated for paying his debts.

Invalid as against public policy

It tends to pervert such compensation to a
purpose other than that for which it was
intended
Interferes with the officer's free and unbiased
judgment in relation to the duties of his office.
(This is usually with reference to unperformed
services and the salary or fees attached
thereto.)
Future or Unearned Salaries Assignable
Salary or emoluments in public office proper
subjects of barter and sale. (22 R.C.L. 541)

Compensation stipulated official service =

gratuitous. If law does not fix compensation, the
public officer is presumed to have accepted
rendering the service office gratuitously.

Subsequent law cant eradicate compensation

for past services. After a public officer has
rendered services, his earned compensation
cannot be taken away by a subsequent law.
HOWEVER, he cannot recover salary for the
period he did not perform services.
Officer without legal title cant recover salary or
compensation attached to office.

8. Right to Recover Salary: De Jure Officer and

De Facto Officer

14

The prevailing party in an election protest can

no longer recover the salary paid to the ousted
officer (a duly proclaimed elective official who
assumed office but is subsequently ousted).

Double

Double
There are 2 positions,
and
with
additional
functions
and
emoluments for both
positions

Salary

during

Reason. They have no official hours of work.

NOTE: However, this ruling may be considered
abandoned by Section 81 of the Local
Government Code stating that elective local
officials shall be entitled to the same leave
privileges as those enjoyed by appointive local
officials.

G. Right to Retirement Pay

Liberally construed in retirees favor. (Proferata

v Drilon)
Basic Value of the retiring government officials
terminal leave = HIGHEST monthly salary
(Belicena v Sec. of Finance)

or
H. Others

Period

of

If preventively suspended, salary

recoverable.
EXCEPT if subsequently exonerated
recoverable.

If removed BUT completely exonerated upon

appeal = recoverable.
If reinstatement by an act of liberality
(exoneration) of the Court of Appeals
recoverable.
If removed BUT later penalty commuted (i.e. to
suspension / demotion) recoverable: he was
still found guilty, although the penalty was
reduced.
If the suspension / removal unjustified, =
recoverable.

Right to Reimbursement for expenses incurred

in the due performance of his duty. BUT a
public officer who uses a government vehicle is
not entitled to, nor can he charge, a
transportation allowance (Domingo v COA, Oct.
7, 1998)
Right to Indemnity against any liability incurred
in the bona fide discharge of their duties.

Right to Longevity Pay

Right to Separation Pay

Given to Civil Service employees who are
separated from the service only for reason of
reorganization (Sec. 16, Art XVIII).

Right to additional allowances and benefits

under the Local Government Code. LGUs may
provide additional allowances and benefits to
national government officials stationed to their
municipality or city.

VIII. Liability of Public Officers

1. The Doctrine

A public officer enjoys qualified (absolute)

immunity. The protection generally applies only
to activities:

However Maleniza v COA held that elective

officials entitled to accrued vacation and sick
leave credits

F. Right to Maternity Leave

C. Doctrine of Official Immunity

After tenure, cannot be invoked for civil

damages arising out of acts done during his
tenure (Estrada v Desierto, March 2, 2001)

E. Right to Vacation and Sick Leave

An allowance for expenses incident to the

discharge of the duties of office increase of
salary, a prerequisite nor an emolument of
office. (Peralta v. Auditor-General)
of

Result of extended immunity: promotion of

fearless and effective administration of the
governments policies.

D. Right to Preference in Promotion

Does not prevail over the appointing authoritys

discretion.

Compensation

Bonus
=
additional
remuneration
compensation. (Peralta v. Auditor General)

Indirectly Protect the Sovereign by protecting

the public official in the performance of his
governmental function

3. Presidential Immunity from Suit

Applicable only during tenure.

Pensions / gratuities additional, double, or

indirect compensation. (Sec. 8, Art. IX-B, 1987
Constitution)

10. Recovery
Suspension

Liability for Impulsiveness. The mayor filed a

certificate of candidacy for congressman. Later
he withdrew and decided to reassume
mayoralty position, thus preventing the vicemayor from discharging mayoralty duties. The
mayor should reimburse the vice-mayor for the
salary he received upon reassuming mayoralty,
during which time the rightful occupant of the
mayoralty position is the vice-mayor. (Monroy
v. CA and del Rosario)

Additional
There is only 1 position,
but the public officer is
getting
additional
compensation.

A de jure officer can recover salary from:

the Government when:
it has received notice of adjudication
of the protest in favor of de jure officer and
afterwards still continues to pay the
de facto officer.
a De Facto Officer when:
he receives notice of adjudication of
the title to the de jure officer and
he still continues to exercise official
duties
and
receive
salaries
and
emoluments.
an Intruder / Usurper: Always.

or

reckless, malicious or corrupt.

2. Purpose of the Doctrine

Exception:
If de facto officer committed
electoral fraud.

9.
Additional
Prohibited

Reason. The latter acted as de facto officer

during his incumbency; he thus entitled to
compensation, emoluments and allowances
that were provided for the position (Rodriguez
v. Tan)

GENERAL RULE: Not for injuries sustained by

another as a consequence of official acts done:

within the scope of his official authority

in good faith.

within the scope of office;

done in good faith; and

15

 HOWEVER, Section 24 of the Local Government

Code holds officials liable for death or injury to
persons or damage to property.

Held. The Commissioners acted

outside the scope of their authority. They
are only empowered to supervise
(control) the conduct of races.

EXCEPT: When law provides otherwise.

Determining acts inclusion in

scope of duties. It is sufficient that the
acts relate to matters under his
control or supervision as defined by
law, OR that the acts are more or less
connected to the officers department.

1.

Bad Faith, Malice or

Negligence is clearly shown. (Sec. 38(1) Admin
Code)

2.

Subordinate officers
or employees acts that are willful or negligent
acts which are contrary to law, morals, public
policy and good customs even if subordinate
acted upon his superiors orders or instructions.
(Sec. 39, Admin Code)

For the acts validy, it is not

necessary that they be prescribed by
statute, or that they be specifically
directed or requested by a superior
officer.

3.

Refusal or Neglect of
Duty. Any person suffering moral or material
loss because a public officer refuses or
neglects, without just cause, to perform his
official duty, may file an action for damages and
other relief against the public officer.
This is without prejudice to administrative
disciplinary action against the officer. (Art. 27,
Civil Code)

However, the Commissioners were

ABSOLVED from liability because they
acted officially in the honest belief that
they had such power.
3. Acts of Liability of a Ministerial Officer

4.

Liability of public
officer for violation of constitutional rights of
individuals. (Art. 32, Civil Code)

5.

Liability of peace
officers who fail to respond or give assistance
to persons in danger of injury to life or property.
Note: The municipal corporation is subsidiarily
liable. (Art. 34, Civil Code)

6.

Non-performance of
Duty. Any public officer who, without just cause,
neglects to perform a duty within a period fixed
by law or regulation, or within a reasonable
period if none is fixed, shall be liable for
damages to the private party concerned without
prejudice to other applicable penaties. (Sec.
38(2) Chapter 9, Book I, Administrative Code)

2. When a Public Officer if Subject to Civil

Liability

MISfeasance: failure to perform an official duty

carefully, skillfully and diligently.
MALfeasance:
acting, either through
ignorance, inattention or malice, without legal
right.
GENERALLY, a ministerial officers Good Faith
and Absence of Malice are immaterial defenses
for nonfeasances or misfeasances.
HOWEVER, good faith or honest mistake may
mitigate damages.

4. Superior Officers Liability for Subordinates

Acts

1. Threefold Liability Rule.

The wrongful acts or omissions of a public

officer may give rise to civil, criminal and
administrative liability.

An action can proceed independently of the

others.

Dismissal or relief from the criminal

action/liability does not carry with it relief from
administrative liability

NONfeasance:
neglect or refusal, without
sufficient excuse, to perform his legal duty.

GENERAL RULE: A superior public officer is

not civilly liable to 3rd persons whenever his
subordinates wrongfully act, omit or neglect to
perform his duty, or commit misfeasance.
Those in the chain of command are not subject
to suit on any theory of vicarious responsibility.
(Sec 38(3), Chap 9, Book I, Admin Code)

EXCEPTIONS when the superior:

has actually authorized, by written order, the
specific act or misconduct complained of. (Sec
38(3), Chap 9, Book I, Admin Code)
negligently or willfully hires or retains unfit or
improper persons;

is

charged with reviewing an appointees

qualifications and negligently or willfully fails to
require the appointee to conform with the
prescribed regulations
is careless or negligent in overseeing his
subordinates conduct or the latters carrying
out of his business, furnish the latter
opportunity for default;
directed, authorized or cooperated in the
wrong;
is expressly liable as statute provides.

The following must concur:

The individuals injury is established.
The public officer violated (a right of) OR (a
duty he owes to) the individual.
The officer acted:
maliciously and in bad faith; and
outside the scope of his / her authority
(ultra vires).
A public officers mistakes committed in good
faith actionable.

5. Liability of Subordinates

NO personal liability for acts done:

in good faith and
under superiors lawful orders

LIABLE for willful or negligent acts that are

contrary to law, morals, public policy or good
customs, EVEN IF he acted under his
superiors orders.

Illustration. (Phil. Racing Club v. Bonifacio)

Facts.
The
members
of
the
Commission on Races cancelled a horse
race held by the Philippine Racing Club
due to a faulty start, but only after holders
of the winning tickets were able to claim
their prizes. Because of the Commissions
tardy cancellation, the Club also had to
refund the losing ticket holders. The Club
sued the Commission for civil liability.

6. Liability on Contracts

The public officer shall be personally liable

for contracts he entered into without or in
excess of his authority.

16

7. Liability for Tortuous Acts

Exclusive.

Public officers are not immune from suit arising

from their own tortuous conduct, even if such
conduct is committed in the course of their
employment.
The public officer shall be personally liable IF
he acts beyond the scope of his authority, or
exceeds his lawfully-conferred powers.

The Supreme Courts power of

administrative supervision over judges and
court personnel is exclusive. (Dolalas v.
Ombudsman-Mindanao)

Separation

of Powers. Investigation by the

Ombudsman undermines the independence of
the judiciary. (Dolalas v. OmbudsmanMindanao)

Reason. The unauthorized acts of government

officials are not acts of State, and so the public
officer may be held personally liable. (Shauf v
CA; Wylie v Rarang)

B. Over Non-Presidential Appointees

8. Criminal Liability still exists whether:

The Public Official officially acted.

The Public Officials term expired after

committing misdemeanor in office.

The Public Official is re-elected after incurring

criminal liability in his previous term of office.

1. Grounds

IX. ADMINISTRATIVE DISCIPLINE

Sec. 46(a), Book V of the Administrative Code:

No officer or employee in the Civil Service
shall be suspended or dismissed except for
cause as provided by law and after due
process.
Sec. 46(b) enumerates the grounds constituting
just cause.

2. Jurisdiction
A. Over Presidential Appointees
1. Disciplinary Authority
Appointing Authority

Lies

with

the

CSC

can only discipline non-presidential

appointees. (Olonan v. CSC)
Read together Sections 47(1) and 48 of Book
V of the Administrative Code.
Sec. 47(1) 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.
Sec. 48 is entitled Procedure in
Administrative Cases Against Non-Presidential
Appointees.
The very subject of Sec. 48 implicitly limits
the scope of the CSCs jurisdiction in
administrative cases to non-presidential
appointees and makes the patent conclusion
that it is the President as appointing power who
has disciplinary authority over presidential
appointees.

2. Power to Appoint Implies the Power to

Remove; Exceptions:

Justices
of the Supreme Court
(by
impeachment)

Members of Constitutional Commissions (by

impeachment)

Ombudsman (by impeachment)

Judges of inferior courts (disciplinary or

removal power vested in the Supreme Court)

File original complaints:

directly with the CSC or
with the Secretaries and Heads of agencies
and instrumentalities, provinces, cities and
municipalities for officers and employees under
their jurisdiction.
Their decision to impose a penalty of
suspension of at most 30 days OR a fine
of at most 30 days salary is FINAL.
Decisions imposing other penalties
are APPEALABLE to the CSC:

Such other penalties are:

suspension for more than 30
days
fine in an amount exceeding
30 days salary
demotion in rank or salary
transfer
removal
dismissal from office.

Official has OPTION to initially

appeal to the department and finally
to the CSC.

Execution
available.

pending

appeal

Except when the penalty is

removal executory only after
the Secretary confirms.
3. Procedure in Administrative Cases Against
Non-Presidential Appointees

Sec. 6, Art. VIII of the Constitution exclusively

vests the Supreme Court with administrative
supervision over all courts and court personnel.
(Bonifacio Sans Maceda v. Vasquez)

Where a criminal complaint against a

judge or other employee arises from their
administrative duties, the Ombudsman
must defer action on said complaint and
refer the same to the SC who will
determine whether said judge or court
employee had acted within the scope of
their administrative duties. (Bonifacio Sans
Maceda v. Vasquez)

(Against whom) a subordinate officer or

employee by the Secretary or head of office of
equivalent rank, or head of local government, or
chiefs of agencies, or regional directors
(How) upon sworn written complaint of any
other person.
1. Complainant shall submit his:
sworn
statements
covering
his
testimony and those of his witnesses and
documentary evidence.
2.

If prima facie case:

exist disciplining authority shall

dismiss the case.

A judge who falsifies his Certificate of

Service is administratively liable to the SC
for serious misconduct and inefficiency
under Sec. 1, Rule 140 of the Rules of
Court and criminally liable to the State
under the Revised Penal Code for his
felonious act. The Ombudsmans referral
to the SC is for determining whether the
Certificates falsified the true status of his
pending case load, as the SC had the
necessary records to make such a
determination. (Bonifacio Sans Maceda v.
Vasquez)

exists he shall notify the

respondent of the charges against the
latter in writing.
3. Respondent shall be allowed at least
seventy-two hours after receipt of the complaint
to answer the charges:
in writing
under oath
together
with
supporting
sworn
statements and documents

17

 indicating whether or not he elects a

formal investigation should his answer be
found unsatisfactory.

4.

If the answer = satisfactory disciplining

authority shall dismiss.
5. If the disciplining authority cannot
judiciously decide the merits of the case on the
bases of the:
Complainants allegations;
Respondents answers; and
Their supporting documents
he shall conduct a formal investigation,
regardless of respondents preference not to
elect one.
6.

(By Who on Whom) The proper disciplining

authority may preventively suspend any
subordinate officer or employee under his
authority

(When) Pending an investigation

(Grounds):
dishonesty; or
oppression or grave misconduct; or
neglect in the performance of duty; or
if there are reasons to believe that the
respondent is guilty of charges which would
warrant his removal from the service.

(Maximum period)
90 days for national officials
60 days for local appointive and elective
officials

Either party may avail of:

a counsels services;

subpoena

to

compel

witnesses

EXCEPT if the case is filed in the

Ombudsman may impose a 6-months
preventive suspension.

to

attend;

subpoena

duces tecum to compel

production of documentary evidence in his
favor.

7. The disciplining authority shall decide

within 30 days from:
termination of the investigation OR

submission

of investigators report
should be submitted within 15 from the
conclusion of the investigation.

7. Penalty

4. Appeal OR Petition for Reconsideration

Appeal within 15 days from receipt of the

decision.

Similar offenses can only be penalized once

regardless of its number.

Only one penalty imposable for each case.

If respondent is guilty of TWO OR MORE
charges or counts, the disciplining authority
shall impose the MOST SERIOUS charge or
count. The rest are aggravating circumstances.
(Sec. 17 of the Implementing Civil Service
Rules and Regulations)

Imposable penalties:
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, The
Administrative Code)

Available only when respondent is found

guilty (exonerated) because:
PD 807 does not contemplate a review
of decisions exonerating officers or
employees from administrative charges.

Party adversely affected by the

decision in Section 39 of the Civil Service
Law refers to the government employee
against whom case was filed. (Mendez v.
Civil Service Commission)

Seasonably file a petition for reconsideration.

Exclusive grounds:

Newly discovered evidence which

materially affects the rendered decision;
The decision is unsupported by the
evidence on record; or

A penalty. A reprimand, whether

given by the Civil Service Commission or
the head of department or agency, shall be
considered a penalty. (Sec. 15 of the
Implementing Civil Service Rules and
Regulations) and (Tobias v. Veloso)

Existence of error of law or

irregularities which prejudice respondents
interests.

Warning. A warning or an
admonition shall not be considered a
penalty. (Sec. 15 of the Implementing Civil
Service Rules and Regulations)

It is decided within 15 days from petition.

Available only once.

Warning

5. Summary Proceedings

If the administrative case against a NONPRESIDENTIAL APPOINTEE under preventive

suspension is not finally decided by the
disciplining authority within the period of ninety
(90) days after suspension date, the
respondent shall be automatically reinstated in
the service.

Admonition

Formal investigation necessary respondent

may be immediately removed or dismissed

Reprimand

Grounds for application:

When the charge is serious AND the

evidence if guilt is strong;
When the respondent is a recidivist or has
been repeatedly charged AND there is
reasonable ground to believe that he is guilty of
the present charge; and
When the respondent is notoriously
undesirable.

act or fact of putting one on his

guard
gentle or friendly reproof or a mild
rebuke
formal and public censure or
a severe reproof

Removal of Administrative Penalties

Disabilities
Requisites:
In meritorious cases AND
upon recommendation of the CSC.

or

Who Removes. The President may commute

or remove administrative penalties or

disabilities imposed upon officers or employees

When. In disciplinary cases

6. Preventive Suspension

18

 Condition.

Subject to the Presidents terms

and conditions imposed in the interest of the
service.
C. Over Elective Officials
Elective Official

Where to File Complaint

Administratively Sued
Provincial or city official
Municipal official

Office of the President

Sangguniang
Panlalawigan
Sangguniang

Barangay official

Panlungsod or
Sangguniang Bayan

19