Professional Documents
Culture Documents
As to creation:
Public Office - is a creation incident of sovereignty
Contract - originates from the will of the contracting parties,
subject to limitations imposed by law
As to object:
Public Office - object is the carrying out of sovereign as well as
governmental functions affecting even persons not bound by
contract
Contract - imposes obligations only upon persons who entered
the same
As to subject matter and scope:
Public Office - embraces the idea of tenure, duration, and
continuity, and the duties connected therewith are generally
continuing and permanent
Contract - almost always limited in its duration and specific in its
objects. Its terms define and limit the rights and obligations of the
parties, and neither may depart therefrom without the consent of
the other.
ESSENTIAL ELEMENTS OF A PUBLIC OFFICE
1) It is created by the Constitution or by law or by some body or
agency to which the power to create the office has been
delegated
accordingly.
But not all acts of public officers are "official acts," i.e. acts
specified by law as an official duty or as a function attached to a
public position, and the presumption does not apply when an
official's acts are not within the duties specified by law,
particularly when his acts properly pertain or belong to another
entity, agency, or public official.
OFFICER / PUBLIC OFFICER / EMPLOYEE
Officer - one inseparably connected with an office, and so it may
be said that one who holds a "public office," as that term is herein
before defined, is a public officer. When there is no office, there
can be no public officer. A public officer is such an officer as
required by law to be elected or appointed, who has a designation
or title given to him by law, and who exercises functions
concerning the public, assigned to him by law.
Employee - when used with reference to a person in the public
service includes any person in the service of the government or
any of its agencies, divisions, subdivisions, or instrumentalities.
OFFICER vs EMPLOYEE
Law of Public Officers
Officer - distinguished from an "employee" in the greater
importance, dignity, and independence of his position, being
required to take an official oath, and perhaps give an official
bond, and in the liability to be called to account as public officer
or misfeasance or non-feasance in office.
A public officer must be invested by law with a portion of the
sovereignty of the State, and authorized to exercise functions
either of an executive, legislative, or judicial character.
The fact that the position is a subordinate one and that its holder
maybe accountable to a superior does not prevent it from being
an office, or the incumbent an officer as distinguished from a
mere employee. A subordinate or inferior is nonetheless an
officer. A degree if responsibility for results rests upon a public
officer that does not attach to a mere employee.
Revised Penal Code
Public Officer - Any person who, by direct provision of law,
popular election or appointment by competent authority, takes
Unincorporated
Government
Agency
GOCC's
Public Officer
*Waiver
CAN BE SUED
-if with consent
-liable if in the strict
application of the law or
if injustice exists
-if
it
performs
proprietary
functions
(depends)
- business character
- charter of GOCC states
that it can be sued
- personal capacity
- exceeded authority
- tort
- government has no
interest in outcome of
the case
express- if within the law
implied
contract,
initiates suit
CANNOT BE SUED
-yes, if it gives
consent
only
individual to an office.
WHERE APPOINTING POWER RESIDES
Inherently belongs to the people
The selection of persons to perform the functions of government
is primarily a prerogative of the people. Since the people are the
source of government, the power of selecting persons for public
office inherently belongs to them. But the people cannot always
be called upon to act immediately when the selection of an
official is necessary. It may be said, therefore, that the power of
appointment to public offices belongs to where the people have
chosen to place it by their Constitution or laws.
Entrusted to designated elected and appointed public officials
The appointment of public officials is generally looked upon a
properly belonging to the executive department. Appointments
may also be made by Congress or the courts, but when so made
should be taken as an incident to the discharge of functions within
their respective spheres. The exceptions made in favor of
Congress as to appointments to office strengthen rather than
weaken the grant of power to appoint officers in the executive.
ACCEPTANCE OF APPOINTMENT
CAUSES OF VACANCY
1) Vacancy in office results in cases of death, permanent disability,
removal from office or resignation of the incumbent.
2) Abandonment, expiration of term, conviction of a crime,
impeachment conviction, acceptance of incompatible office,
creation of a new office, reaching the age limit, and recall. A
vacancy may also arise by failure of persons chosen for office to
accept or qualify for the office.
In a case, the nomination by the outgoing President (whose term
expired on December 31, 1961) was submitted to the Commission
on Appointments before it began its session on January 2, 1962. It
was held that the new President could recall the nomination
before the Commission began its session. Otherwise, the outgoing
President would be making an appointment to take effect after he
has ceased to be President. (SIGUESTE vs SECRETARY OF JUSTICE,
9 SCRA 598)
QUALIFYING TO OFFICE
The person appointed or elected to a public office is usually
required by law, before entering upon the performance of his
duties, to do some act by which he shall signify his acceptance of
the office and his undertaking to execute the trust confided in
him. The act is ordinarily termed qualification. It generally
consists of the taking, and often of subscribing and filing of an
official oath and in some cases, of the giving of an official bond,
if any, required by law.
De Facto Officer - one who has the reputation of being the officer
he assumed to be and yet is not a good officer in point of law.
b) When to File
The documents must be filed:
1) Within thirty (30) days after assumption of office, statements of
which must be reckoned as of his first day of service;
2) On or before April 30 of every year thereafter, statements of
which must be reckoned as of the end of the preceding year
3) Within thirty (30) days after separation from the service,
statements of which must be reckoned as of his last day of office
c) Where to File
The two documents shall be filed by:
1) President, Vice-President and Constitutional Officials, with the
National Office of the Ombudsman
2) Senators and Congressmen, with the Secretaries of the Senate
and the House of Representatives, respectively; Justices, with the
Clerk of Court of the Supreme Court; Judges, with the Court
Administrator; and all national executive officials such as
Members of the Cabinet, Undersecretaries and Assistant
Secretaries, including the foreign service and heads of
government-owned or controlled corporations with original
charters and their subsidiaries and state colleges and universities,
with the Office of the President
3) Regional and local officials and employees, both appointive and
elective, including other officials and employees of
government-owned or controlled corporations and their
a) Any and all statements filed under the Act, shall be made
available for inspection at reasonable hours
b) Such statements shall be made available for copying or
reproduction after ten (10) working days from the time they are
filed as required by law
c) Any person requesting a copy of a statement shall be required
to pay a reasonable fee to cover the cost of reproduction and
mailing of such statement, as well as the cost of certification
d) Any statement filed under this Act shall be available to the
public for a period of ten (10) years after receipt of the statement.
After such period, the statement may be destroyed unless needed
in an ongoing investigation
e) Every official and employee shall also execute, within thirty (30)
days from date of assumption of office, the necessary authority in
favor of the Ombudsman to obtain, from all appropriate
government agencies, including the Bureau of Internal Revenue,
such documents as to show his assets, liabilities, and net profit,
and also his business interests, and financial connection in
previous years, including, if possible, the year when he first
assumed any office in the government.
4) Prohibited acts - It shall be unlawful for any person to obtain or
use any statement filed under the Act for:
a) Any purpose contrary to morals or public policy
b) Any commercial purpose other than by news and
communications media for dissemination to the general public
OF
TRANSACTIONS
AND
ACCESS
TO
affect the salary of any officer during his existing term. It is not a
fee unless clearly classified as such. So also is an honorarium
defined as something given not as a matter of obligation, but in
appreciation for services rendered, a voluntary donation in
consideration for services which admit of no compensation of
money (SANTIAGO vs COMMISSION ON AUDIT, 199 SCRA 128)
such as the monthly allowances given by local government units
to judges assigned within their territorial jurisdictions.
4) Sometimes the compensation of particular officers is made to
depend on fees for services rendered or on commission on
moneys officially passing through their hands. Where
compensation is paid under the fee system, or on the basis of the
amount of business done, or of public money passing through the
officer's hands, a maximum sum may be fixed beyond which the
officer is not to receive any emoluments.
5) When the term emoluments is used, it means the profit arising
from the office what which is received as compensation for
services or which is annexed to the office as salary, fees, or
perquisites. It does not refer to the fixed salary alone that us
attached to the office, but includes such fees and compensation
as the incumbent of the office is, by law, entitled to receive. It
may import more than "salary" or "fees." The term has been held
to include "salary, fees, compensation, perquisites, pensions, and
retirement benefits." (SANTIAGO vs COMMISSION ON AUDIT,
199 SCRA 128)
Allowances such as representation and transportation, housing,
etc., are included in the term "emoluments." (INTIA vs
COMMISSION ON AUDIT, 306 SCRA 593)
As a general proposition, a public official is not entitled to any
compensation if he has not rendered any service. Under the "no
work, no pay" principle, compensation is paid only for service
actually or constructively rendered.
It is possible that a local government official's salary may be less
than that prescribed for his Grade since his salary depends also
on the class and financial capability of his or her respective local
government unit. Nevertheless, it is the law which fixes the
official's grade. (BINAY vs SANDIGANBAYAN, 316 SCRA 65)
RECOVERY OF COMPENSATION
1) From the government - A de jure officer cannot, for the most
part, recover from the government salary or compensation which
has been paid to a de facto officer. It is a matter of simple justice
that the emoluments must go to the person (de facto officer) who
actually rendered the service unless the contrary is provided.
Thus a candidate who assumed office in perfect good faith after
he was duly proclaimed elected is entitled to retain the
compensation paid him during his incumbency notwithstanding
a protest filed against him (RODRIGUEZ vs TAN, 91 Phil, 724) for
his assumption and tenure cannot be considered wrongful,
(MONROY vs COURT OF APPEALS, 20 SCRA 621) considering that
he would have been subjected to a penalty had he not accepted
the office. But where the government continues to pay the officer
de facto after the notice of adjudication of the protest in favor of
the officer de jure, the latter may recover from the government
the amount so paid after such adjudication and notice.
2) From the de facto officer - As a corollary rule to the above, a de
jure officer can recover either from the government or the de
facto officer the amount paid to the de facto officer for services
ceased to be Mayor after his COC was filed on September 15; (b)
Del Rosario became municipal Mayor upon his having assumed
office on September 21; (c) Monroy must reimburse as actual
damages the salaries to which Del Rosario was entitled as Mayor
from September 21, 1961, up to time he can reassume said office;
and (d) Monroy must pay Del Rosario P1000 as moral damages.
The Court of Appeals affirmed this adjudgment in toto except for
the ward of moral damages which was eliminated. Hence, this
petition by certiorari to review the ruling of the CA.
ISSUE: Whether or not Del Rosario is entitled to the salary of the
office from September 21, 1961, up to the time he can reassume
office
HELD: Yes. De facto officer liable to reimburse salaries received
to rightful incumbent. - "The general rule that the rightful
incumbent of a public office may recover from a de facto officer
the salary received by the latter during the time of his wrongful
tenure, even though he entered into the office in good faith and
under color of title" applies to this case.
Possession of the title of office, not of the office itself, is decisive.
A de facto officer, not having good title, takes the salaries at his
risk and must, therefore, account to the de jure officer for
whatever amount of salary he received during the period of his
wrongful retention of public office. Where a Mayor withdrew his
COC for Congressman and reassumed the position of Mayor, thus
preventing the Vice-Mayor for discharging the duties of the
position of Mayor, the Mayor should reimburse to the Vice-Mayor
as the rightful occupant of Mayor the salaries which he had
received.
Rodriguez ruling not applicable. - "The ruling in Rodriguez vs Tan
that no such reimbursement shall be made, is not applicable to
the case at bar because the Tan case involved a duly proclaimed
elected official who was later ousted. The de facto doctrine was
formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and
individuals who get involved in the official acts of persons
discharging the duties of an office without being lawful officers."
Withdrawal of COC did not restore Monroy to his former
position. - "The withdrawal of the COD does not restore Monroy
to his former position. It does not render the withdrawal void ab
initio. Once filed, the permanent legal effects produce thereby
remain even if the certificate itself be subsequently withdrawn.
PROHIBITION AGAINST RECEIVING ADDITIONAL, DOUBLE, AND
INDIRECT COMPENSATION
No elective or appointive public officer employee shall receive
additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the
Congress, any present, emolument, office, or title of any kind
from any foreign government.
The prohibition is designed to counter the evils of double
compensation. It does not apply where:
1) The payment of additional, double, or indirect compensation
to a particular officer or employee is specifically authorized by
law in individual instances where the payment of such
compensation appears not only just but necessary. (SADUESTE
vs MUNICIPALITY OF SURIGAO, 72 Phil. 485) The prohibition is
aimed against the giving of extra compensation by executive or
administrative order.
2) The additional compensation is received not from the
government or any of its entities
3) There are two distinct offices, each of which has its own
duties and compensation, in which case both may be held by
one person at the same time. The prohibition refers to double
compensation and not to double appointments and the
performance of functions if more than one office. But the officer
may draw the salary attached to the second position only when
he is specifically authorized by law.
Pensions or gratuities shall not be considered as additional,
double, or indirect compensation. So, a retired public officer or
employee who has been reappointed or elected to a public office
may continue to receive his pension or gratuities from the
government and his salary at the same time, unless it is otherwise
provided by law.
OTHER RIGHTS
1) The right to preference in promotion
Rights under the Constitution
1) The right to self-organization - The right to self-organization
shall not be denied to government employees. The quoted
provision grants to government employees in the civil service
the right to form unions enjoyed by workers in the private
sector.
2) The right to protection of temporary employees - Temporary
employees of the government shall be given such protection as
may be established by law.
3) Freedom of Members of Congress from arrest and from being
questioned - privileged from arrest while Congress is in session.
The provisions grant parliamentary immunities to members of
Congress.
4) The right not to be removed or suspended except for cause
provided by law - Implicit in the constitutional prohibition against
removal or suspension except for cause, is the existence of a
charge, due hearing, and the finding of guilt by the proper
authority.
Participation in Prohibited Activity or Mass Action
Prohibited concerted activity or mass action refers to "any
collective activity undertaken by government employees either by
themselves or through their employees' organizations, with the
intent of effecting work stoppage ir service disruption in order to
realize their demands or force concessions, economic, or
otherwise, from their respective agencies or the government."
However, a concerted activity or mass action done outside of
government office hours may be allowed and shall not be deemed
prohibited so long as such would not result in disruption of work.
1) Even if there is no statement of the right to self-organization in
the Constitution, government workers can form associations for
purposes not contrary to law. However, they are prohibited from
staging strikes, demonstrations, mass leaves, walk-outs and other
forms of mass actions which will result in temporary stoppage or
disruption of public services.
2) SInce the terms and conditions of government employment are
COMPULSORY MEMBERSHIP
or
BENEFITS
1) Retirement Benefits - old age pension shall be paid to a
member who
a) has at least 15 years of service
b) is at least 60 years of age
c) is not receiving a monthly pension benefit from permanent
total disability
The same wrongful act or omission of a public officer may give rise
or subject him to civil, criminal and/or administrative liability. An
action for each can proceed independently of the others. These
three remedies against a public officer may be pursued
simultaneously and successively.
ADMINISTRATIVE LIABILITY INCURRED IN A PREVIOUS TERM BY
AN ELECTIVE OFFICIAL
1) Reelection operates as electorate condonation of a previous
misconduct
2) Condonation does not extend to reappointed coterminous
employees
3) Reelection does not extinguish criminal or civil liability
LIABILITY OF THE PRESIDENT FOR OFFICIAL ACTS
1) Civil responsibility
2) Criminal liability
3) Liability for damages
LIABILITY OF OTHER EXECUTIVE OFFICIALS FOR OFFICIAL ACTS
1) Functions involve exercise of discretion
2) Reasons for Immunity
3) Acts of heads of executive departments
LIABILITY OF LEGISLATIVE OFFICIALS FOR OFFICIAL ACTS
NATURAL CAUSES
General Rule: A public officer acting within the scope of his
authority and in his official capacity is not personally liable on
contracts executed in behalf of the government
Exception: One who executes an unambiguous personal
undertaking which makes no mention of the public agency he
serves or does not indicate that it is executed in an official
capacity, may not escape liability by claiming that the public
agency was the real principal
CRIMINAL LIABILITY
ACTS OF THE GOVERNMENT OR THE PEOPLE
1) Aside from furnishing grounds for disqualification or holding
office and for suspension or removal from office, various offenses
arising out of an abuse or wrongful usurpation of authority are
held by specific statutory provisions, to be felonies or
1) By Removal
Security of Tenure - simply means that an officer or employee in