Professional Documents
Culture Documents
Chapter One
DEFINITIIONS, DISTINCTIONS, AND CLASSIFICATIONS
Meaning of office.
Position or function by virtue of which a person has some employment in the affairs of
another, whether selected by appointment or election, whether appointed during the
pleasure of appointing power or for fixed term.
Right, authority, and duty created and conferred by law, by which for a given period,
an individual is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
4. Right is personal to him it is not a property which passes to his heirs upon death.
It cannot be inherited.
1. For the common good and not for profit, honor, or private interest
2. In the interest and for the benefit of the people, and belongs to them. Its nature is
inconsistent with either a property or contract. It is a responsibility not a right.
Public office, as a public trust.
1. Regarded as public servants powers delegated are held in trust for the people
and are to be exercised in behalf of the government or of all citizens. Such trust
extends to all within the range of duties pertaining to his office.
2. Exists by virtue of some law it is not a natural right. It exists only because and by
virtue of some law expressly or impliedly creating and conferring it.
3. Generally entitles holder to compensation entitled to compensation for the
performance of his public duties when the law attaches it to the office. If no salary is
provided by law, incumbent is presumed to have accepted it without pay and cannot
recover anything for service rendered by him.
Public office and public contract distinguished.
As to creation
As to object
As to subject matter
and scope
Public office
Incident of sovereignty
Carrying out of
sovereign as well as
governmental functions
Tenure, duration and
continuity, and the
duties connected
therewith, which are
generally continuing
and permanent
Public contract
From will of the
contracting parties,
subject to limitations of
law
Obligations imposed
only upon persons who
entered the same
Limited in duration and
specific in objects:
terms define and limit
the rights and
obligations of the
parties, neither may
depart therefrom
without consent of the
other
Key considerations
Public office
Every public office may
be an employment
1. Created by law,
2. With duties involving
the exercise of some
portion of the sovereign
power
3. Public is concerned
in the performance of
which
1. Created by the constitution, law or agency, to which the power to create was
delegated
2. Invested with an authority to exercise some portion of the sovereign power for
public interest
The mere mention of an office in the Constitution does not necessarily endow an
office with constitutional status.
3. Powers and functions are defined by the constitution, law or legislative authority
4. Duties are performed independently, without control of a superior power other than
law, unless they are those of a subordinate
1. Implied authority conferred by law must involve exercising some portion of the
sovereign power of the State in making, executing or applying the law, to the position
a public office.
2. The duties of the office define whether or not one is a public officer, and the extent
of his authority is not material.
Effect: Official acts of a public officer enjoy the presumption of regularity, and the
presumption does not apply when the acts are not within the duties specified by law,
especially when this acts pertain or belong to another entity, agency or public official.
Tenure and duration.
The following elements are not material in defining a public office:
1. Existence of definite tenure
2. Continuance of office holder whether the duties attached to the position continue
though the office holder was changed.
3. Permanence of office whether there can be but one act or series of acts to be
done.
But something more permanent than a single transaction or transitory act is
commonly required to make the position a public office
1. Public officer
2. As to creation
a. One who holds a public office.
b. An officer, required by law to be elected or appointed, who has a designation
or title by law, and who exercises functions concerning the public, assigned to
him by law.
2. Under the Admin Code, employee is any person in the service of the government
a. Officer person whose duties, not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the functions of the
government
b. When with reference to a person having authority to do a particular act or
perform a particular function, officer includes any government employee having
authority to do the act or exercise that function
a. Constitutional by Constitution
b. Statutory by Statute and under full control of Congress
3. As to the department of government to which it belongs
a. Legislative enactment of laws
b. Executive execution or administration of laws
c. Judicial adjudication and interpretation of laws
4. As to branch of government served
a. National national or central government
b. Local political subdivisions of the government
5. As to whether exercise of discretion is required
2. Under the RPC public officer by election or appointment, takes part in the
performance of public functions in the government or performs in the government
public duties as an employee.
Meaning of public official.
a. De jure
b. De facto
8. Office of trust if the duties and functions require the exercise of discretion,
judgment, experience and skill
constitutional provisions.
Chapter Two
ELIGIBILITY AND QUALIFICATIONS
A. In general
Meaning of eligibility/eligible/ineligibility/ineligible.
3. Where office created by the Constitution
1. Eligibility state or quality of being legally fitted or qualified to be chosen. It is of a
continuing nature and must exist both at the commencement and during occupancy of
an office.
General rule: Where the Constitution establishes specific eligibility requirements, they
are exclusive.
Exception: If the constitution expressly or impliedly gives power to set qualifications.
4. Where qualifications prescribed by the Constitution qualifications are not selfexecuting. They are mere announcements of general principles requiring legislation
for their enforcement.
3. Ineligibility lack of the qualifications prescribed by law for holding public office.
Where the Constitution has prescribed certain qualifications, Congress may prescribe
additional qualifications unless it is prohibited.
4. Ineligible
General rule: Congress has the same right to provide disqualifications when it has
right to provide qualifications.
Exception: Where the intention of the constitution is that the disqualifications shall
embrace all that are to be permitted.
Meaning of qualification.
2. Act required by law to be done before entering upon the performance of duties.
2. Not a constitutional right it is a political privilege which depends upon the favor of
the people, coupled with reasonable conditions for the public good. He must comply
with reasonable, lawful and non-discriminatory terms laid down by law.
1. In general
General rule: Congress is empowered to prescribe the qualifications, which must
always have a rational basis.
Exception: If it exceeds its constitutional powers or conditions imposed by
The will of the people as expressed through the ballot cannot cure the vice of
ineligibility especially if mistakenly believed that the candidate is qualified
7. Political affiliation
Note: Const., Art. 6, secs. 17 18 and Local Government Code: certain offices
require nomination by membership in a political party or group
8. Civil service examination to insure that appointments are made only according to
merit and fitness.
Const., Art. 3, sec. 5 no religious test shall be required for the exercise of civil or
political right.
Religious test one demanding avowal or repudiation of certain religious beliefs
before the performance of any act.
a. natural-born citizen
b. registered voter
c. able to read and write
d. at least 40 years old on the day of the election
e. resident of at least 10 years immediately preceding day of election
2. Senators
a. natural-born citizen
b. at least 35 years old
c. able to read and write
d. registered voter
e. resident for not less than 2 years
3. Members of the House of Representatives
a. natural-born citizen
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a. natural-born citizen
b. at least 40 years old
c. with proven probity and independence
d. members of the Philippine bar
e. not have been a candidate
f. for Ombudsman, for 10 years and more:
i. judge, or
ii. engaged in the practice of law
1. Department Secretaries
a. citizens of the Philippines
b. not less than 25 years old
2. CA Justices same qualifications for SC justices:
a. natural-born citizen
b. for SC, at least 40 years old
c. for SC, for 15 years or more:
i. a judge in the lower court, or
ii. engaged in the practice of law
d. a person of proven competence, integrity, probity and independence
3. RTC judges
a. natural-born citizen
b. at least 35 years old
c. for at least 10 years,
i. engaged in the practice of law, or
ii. has held public office requiring admission to practice of law
4. MTC, MeTC, MCTC judges
a. natural-born
b. at least 30 years old
c. for at least 5 years,
i. engaged in the practice of law, or
ii. has held public office requiring admission to practice of law
Applicable to:
a. President
b. VP
c. Members of the SC
d. Members of the ConComs
e. Ombudsman.
Grounds:
a. culpable violation of the Constitution
b. treason
c. bribery
d. graft and corruption
e. other high crimes
f. betrayal of public trust
4. Removal or suspension from office bars the removed officer from an election or
appointment to fill the vacancy for the unexpired term of the same position. Where
there is no constitutional or statutory provision, a removed person may still be elected
or appointed to a new term of the same office.
5. Previous tenure of office
a. President no re-election
b. Chairmen and commissioners of CSC, Comelec, COA no reappointment
c. Ombudsman and deputies no reappointment and cannot run for office in the
election immediately succeeding their cessation from office.
a. Within 2 years after serving sentence, with a final judgment for crimes
i. involving moral turpitude
ii. punishable by 1 or more years of imprisonment
b. Removed from office as a result of an administrative case
Chapter Three
ACQUISITION OF RIGHT OR TITLE TO OFFICE
A. In General
Modes of commencing official relations.
A public office can be obtained only in the manner prescribed by the Constitution or
by law; and not by a persons own assumption or by employment of a person not
authorized by law.
Manner of selecting persons for public office:
1. By election
2. By appointment
The exclusive right to exercise the power of appointment is not included in the
general grant of power to the executive.
Power to appoint discretionary.
1. Power of courts to review appointment Appointment involves the exercise of
discretion, which, unless gravely abused, courts will not attempt to control. It cannot
be the subject of mandamus.
a. The power to select an appointee is vested alone in the officers or bodies
authorized to appoint, but it is limited to candidates having qualifications required
by the civil service law and rules.
The appointing authority is in the best position to determine who among the
prospective appointees can effectively discharge the functions of the position.
Meaning of appointment.
Appointment is the act of designation by the executive officer, board, or body to whom
that power has been delegated, of the individual who is to exercise the powers and
functions of a given office.
2. Under the Constitution the appointments by the President are subject to the
following:
k. The Ombudsman and his Deputies shall be appointed by the President from a
list of at least six nominees prepared by the Judicial and Bar Council, and from a
list of three nominees for every vacancy thereafter. Such appointments shall
require no confirmation.
a. The spouse and relatives within the 4th civil degree of consanguinity or affinity
shall not, during the his tenure, 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.
3. Under existing laws Restrictions on the power to appoint are found primarily in
provisions prescribing the qualifications and disqualifications for holding public office.
No valid appointment when the office is not vacant.
b. Two months immediately before the next presidential elections up to the end of
his term, he shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public
service of endanger public safety.
c. Congress may, by law, vest appointment of other officers lower in rank in the
President alone, in the court, or in the heads of departments, agencies,
commissions, or boards.
d. The Supreme Court shall have the power to appoint all officials and
employees of the judiciary in accordance with the Civil Service Law.
e. The members of the SC and judges of lower court shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar
Council. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.
b. The acts of appointing power and approval of the CSC acting together though
not concurrently, but consecutively, are necessary to make an appointment
complete. In classified (now competitive) positions, appointment must be
approved by the Commission to be entitled to the protection against unjust
removal.
Confirmation or attestation of the appointment by the CSC does not complete the
appointment since it serves merely to assure the eligibility of the appointee.
4. Effects of completed appointment Having once made the appointment, the
appointing officers power over the office is terminated in all cases where by law the
officer is not removable by him. No new or further appointment could be made to a
position already filled by a previously completed appointment which had been
accepted by the appointee through a valid qualification and assumption of its duties.
Acceptance of appointment.
Appointment to a public office necessarily precedes acceptance by the appointee.
1. Not necessary to completion or validity of appointment Where there is no
provision of the law to the contrary, the appointees acceptance of the office is not
necessary to complete the appointment.
When the person charged with the appointment do every act within their power to
make such appointment, their functions with respect to the appointment are at an
end, and the appointment is complete whether accepted or refused.
2. Necessary to possession of office The individual chosen to an office cannot be
deemed to be either fully possessed of its rights and privileges or subject to the
performance to the performance of its duties and obligations until he has accepted it.
An appointee cannot impose his own conditions for the acceptance of a public office.
He may only either accept or decline it.
Form of acceptance.
1. Express When done verbally or in writing. The best evidence is taking the oath of
office.
2. Implied Without formal acceptance, the appointee enters upon the exercise of the
duties and functions of an office.
Obligation of elected or appointed individual to accept office.
1. Generally not subject to compulsion The general rule is that a person may not be
compelled to accept a public office. Except:
a. Constitution: The Government may call upon the people to and all citizens may
be required to render personal military or civil service.
b. RPC: Penalty and fine is imposed upon any person who, having been elected
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The power of the President to appoint officers in the government is conferred upon
him by the Constitution. There are 4 groups of officials whom the President is
authorized to appoint:
2. Ad interim Those made while Congress is not in session or during its recess;
3. Permanent Those which last until they are lawfully terminated;
Designations.
Designations is the mere imposition of new or additional duties upon an officer to be
performed by him in a special manner while he performs the function of his
permanent office.
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1. It is revocable and temporary for it does not confer upon the designee security of
tenure in all the position which he occupies in an acting capacity only.
2. there being no appointment issued, designation does not entitle the designee to
additional benefits or the right to claim the salary attached to the position.
It cannot also be validly acted upon by the Commission on Appointments.
b. The President cannot confer power of participation in the Commission, nor the
Commission can create power to confirm appointments, over appointments
reserved solely to President by the Constitution.
d. Career officers other than those in Career Executive Service who are
appointed by the President;
e. Commissioned officers and enlisted men of the AFP which shall maintain a
separate merit system;
f. Personnel of GOCCs who do not fall under the non-career service; and
g. Permanent laborers.
2. Non-career service characterized by: a) entrance on bases other than usual test
of merit and fitness; b) tenure which is limited to a period specified by law or which is
co-terminous with that of the appointing power or subject to his pleasure, or limited to
the duration of a particular project. It includes:
a. Elective officials and their personal or confidential staff;
b. Department heads who hold positions at the pleasure of the President,
including their staff;
c. Chairmen and members of commissions and boards with fixed terms of office,
including their staff;
d. Contractual personnel;
Constitutional classification.
1. Competitive Appointments are made according to merit and fitness to be
determined by competitive examinations.
It is the nature of the functions of the position that determines whether it is policydetermining, primarily confidential or highly technical.
Qualification standards in the Civil Service.
2. Non-competitive Appointments do not have to take into account merit and fitness
as determined by competitive examinations. They are described as policydetermining, primarily confidential, or highly technical in nature.
1. Use of qualification standards a) As basis for civil service exams for positions in
the career service; b) as guides in the appointment and other personnel actions in the
adjudication of protested appointments; c) in determining training needs; d) as aid in
inspection and audit of the agencies personnel work programs.
2. Establishment, administration and maintenance of qualification standards They
are the responsibility of the department or agency, with the assistance and approval
of the Civil Service Commission, in consultation with the Wage and Position
Classification Office. Qualification standards shall be administered in such manner as
to continually provide incentives to officers towards professional growth and foster the
career system in the government service.
3. Approval of qualification standards Approval of qualification standards by the
commission is required since it is the central personnel agency of the government
entrusted with the enforcement of laws relative to the selection, promotion, and
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7. One designated as officer in charge does not have any vested right over the
position nor even tenure in office.
4. As long as the appointee has not passed any civil service examination in
accordance with the rules and regulations of the Civil Service, the nature of the
appointment is always temporary.
5. Where the appointment is subject to the consent and approval of the municipal
council, there is no complete appointment to speak of; at most, pending compliance
with the condition, the appointee is holding only a temporary and conditional
appointment.
An appointment issued and approved by the Commissioner of Civil Service subject
The Commission is the central personnel agency of the government charged with the
duty of determining questions of qualifications of merit and fitness of one appointed to
the Civil Service.
1. Appointments required to be approved Among its powers and functions is to
approve all appointments, whether original or promotional, to positions in the civil
service (except presidential appointments, AFP, police forces, firemen and jail
guards) and disapprove those where the appointees do not possess the appropriate
eligibility or required qualifications
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only when the appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.
9. Grounds for recall:
a. Non-compliance with the procedures/criteria provided in the agencys Merit
Promotion Plan;
b. Failure to pass the agencys Selection/Promotion Board;
c. Violation of existing collective agreements between management and
employees relative to promotion;
d. Violation of other existing civil service law, rules and regulations.
An appointment may only be recalled on the above-cited grounds.
Appointment through certification.
All such persons must serve a 6-month probationary period following their original
appointment and shall undergo a thorough character investigation in order to acquire
permanent civil service status. He may be dropped from the service for unsatisfactory
conduct or want of capacity any time before the expiration of the probationary period,
and such action is appealable to the Commission.
While the Commission has no authority to revoke an appointment on the ground that
another is more qualified, it may order the reinstatement of an illegally demoted or
dismissed employee.
6. Attestation of appointment The Commission can only inquire into the eligibility of
the person chosen to fill the position. If it finds the person not qualified, the
appointment must be disapproved. When the appointee is qualified, and all other
requirements have been satisfied, the Commission has no choice but to attest to the
appointment.
Once the function is discharged, its participation in the appointment process ceases.
The only purpose of attestation is to determine whether the appointee possesses the
required eligibility; no more than that is left to the commission.
D. Vacancy
Meaning of vacancy.
When an office is empty and without a legally qualified incumbent appointed or
elected to it with a lawful right to exercise powers and perform his duties.
Existence of physical vacancy not essential.
An office may be vacant when it is occupied by one who is not a de jure officer, a
usurper, or by one who is holding over. Although there is no physical vacancy in the
office exists, there is still a vacancy in the
sense that the appointing power may proceed to fill the office by choosing a
successor.
No person, no matter how qualified and eligible for a certain position, may be
appointed to an office which is not vacant
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been lawfully removed or his appointment validly terminated before one could validly
install a successor. Where a regular employee is illegally dismissed, transferred , or
demoted, his position does not become vacant.
Classification of vacancy.
1. Ordinary office is created and no one has been appointed to fill it
2. Constructive when incumbent has no legal right or claim to continue in office and
can be legally replaced by another functionary
3. Accidental when the incumbent, having died, resigned or been removed, there is
no one in esse discharging the duties of the office
4. Absolute term of an incumbent having expired and the latter not having held over,
no successor is in being who is legally qualified to assume the office.
Causes of vacancy
Circumstances or events that bring about vacancy in office are set forth in the
constitution and the laws.
1. Death, permanent disability, removal from office or resignation of the incumbent.
a. If acceptance of resignation is necessary, there is no vacancy until accepted.
b. When illegally suspended or dismissed, office never becomes vacant.
Resignation or removal must be valid to create a vacancy
2. Abandonment, expiration of term, conviction of a crime, impeachment conviction,
acceptance of incompatible office, creation of a new office, reaching age limit, and
recall. Also, failure by chosen person to accept or qualify for office
Filling of anticipated vacancies.
1. Generally appointment legal a prospective appointment to fill an anticipated
vacancy is legal in the absence of express law forbidding it. It vests title to the office
in the appointee. Example: When an officer resigns to take effect on a future date and
when accepted, the appointing officer may appoint successor which will take effect
when the resignation becomes operative.
2. Where appointment to take effect after expiration of appointing power appointing
power cannot forestall the rights and prerogatives of their successors by appointing
successors to offices after its power to appoint has itself expired. Example; An
outgoing president nominated officials to be appointed which was submitted to the
Comm. On Appointments before it began its session. The New President can recall
those nominees, otherwise the outgoing president would be making an appointment
to take effect after he has ceased to be president.
E. Qualifying to Office
Qualification (as an act) to an office.
Officers, whether elected or appointed are usually required by law to do some act
termed qualification by which he shall signify his acceptance of the office and his
undertaking to execute the trust confided in him. It is presumed that all conditions
necessary to qualifying for a public position have been fulfilled before the appointee
takes office. It generally consist of the taking, and often subscribing and filing of an
official oath, and in some cases, of giving official bond, if any, required by law.
Effect of failure to qualify.
Deemed evidence of a refusal of office. However, a failure or neglect to qualify within
a particular time prescribed, if afterwards supplied, would not ordinarily be deemed
ipso facto a rejection of the office. Sickness, accidents and other fortuitous events
which excuses delay will justify the delay in qualifying. A person appointed to an office
who fails to qualify is regarded as a de facto officer.
Oath of office for public officers.
Oath outward pledge where 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.
1. Under the constitution president, VP, acting president before entering their
offices. Same requirement for other public officers
2. Under the administrative code of 1987 all public officers and employees including
every member of the armed forces - before entering upon the discharge of his duties,
take an oath or affirmation
3. Under the local government code all elective and appointive local officials and
employee - upon assumption to office, subscribe an oath or affirmation of office in
prescribed form, filed with the local chief executive. Copy of such preserved in the
individual personnel records file
Necessity of oath of office.
It is mere incident to the office. Must be done within a specified time. It is generally
construed to be merely directory and mere delay in taking the oath, if it be afterwards
taken with approval of the public authorities, while it may be a ground for forfeiture
while delay continues, when the oath is taken, the delay is deemed valid.
The President, VP and acting president cannot enter on the execution of his/her office
without taking prescribe oath and affirmation. Oath taking is mandatory, It marks the
formal induction of the official in office.
Unless the law requires more, it is sufficient that oath be taken. It need not be in
writing or be subscribed by the affiant.
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F. De Facto Officers
The de facto doctrine.
A person who, by the proper authority, is admitted and sworn into office is deemed to
be rightfully in such office until, by judicial declaration, he is ousted therefrom, or his
admission thereto is declared void.
Basis and reason for the doctrine.
It springs from the fear of the chaos if multiple and repetitious suits are filed
challenging every action taken by every official whose claim to the office could be
open to question, and seeks to protect the public by insuring the orderly functioning of
the government despite technical defects in his title to the office.
One who is reputed to be the officer he assumed to be and yet is not a good officer in
the laws point.
1. In the nature of indemnity bond and in effect, a contract between the officer and the
government, binding the officer to discharge the duties of his office.
2. An obligation binding sureties to make good the officers default. It is for the benefit
of the public interest.
3. Creates a primary contractual obligation between the injured party and the officer
and the surety.
4. Merely collateral security for the performance of the officers duty.
Necessity of giving official bonds.
1. Requirement, a mere incident of office it can be one of the consideration to
determine the character of the position, like an oath
2. Where time prescribed within which to give bond if the statute requires bond, it
must be given within the fixed time after the officers election or appointment.
2. under color of a known and valid appointment or election but has failed to conform
to some precedent requirement or condition such as to take an oath or give a bond
3. under color of a known election or appointment, but was not eligible or want of
power in the appointing body or defect or irregularity in the exercise, and such facts
are unknown to the public
4. under color of an election or appointment by or pursuant to a law that is later
declared unconstitutional
A de facto officer is one in possession of an office in the open exercise of its functions
under color of an election or appointment even though the election or appointment
may be irregular or informal.
De jure officer defined.
a. When time couched in explicit language that it is merely directory and not
mandatory failure to give bond does not ipso facto work a forfeiture of office
especially when not due to his fault, but it is a ground for forfeiture.
b. Time is expressly made a condition office deemed vacated when the
required bond is not given within the time fixed by law.
One who has a lawful right to the office but who has either been ousted from it or who
has never actually taken possession of it.
Three Requirements to become de jure officer.
1. must possess the legal qualification for the office in question
2. must be lawfully chosen to such office
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3. must have qualified himself to perform the duties of the office according to the
mode prescribed by law.
Officer de jure and officer de facto distinguished.
De Jure Officer
Rests on a right
Lawful title or right to the office
De Facto Officer
Rests on reputation
Has possession and performs duties
under color of right without being
technically qualified
Can be ousted in a direct proceeding
against him
2. When the de jure officer is also the de facto officer, lawful title and possession are
united and no other person can be an officer de facto to that office. Hence, there
cannot be two de facto incumbents of one office at the same time, and where two are
acting simultaneously, each under claim of right, the owner who appears to have the
better title will be recognized.
Elements of de facto officership.
All must be present:
1. there must be a de jure office
2. there must be a color of right or general acquiescence by the public
Usurper
Neither lawful title nor color of right
to the title
Assumes to act as an officer where
public knows or ought to know that
he is a usurper
May be ousted at any time in any
proceeding
Acts absolutely null and void
The possession must be in good faith, under color of right or title, and with
faithful exercise of the functions of the office.
Possession alone makes him a mere intruder or usurper.
5. Designation as acting mayor not made in accordance with the law (not made by the
Governor)
6. A judge in good faith who continues to act as such after the abolition of his court
7. A judge who continues to exercise his duties after the CSC disapproves his
appointment but before receiving notice of said disapproval
1. Two different persons cannot occupy and exercise the same office at the same
time. There can be no de jure officer and de facto officer in possession of the same
office at the same time.
8. A judge who in good faith continues to discharge duties after reaching the
retirement age
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If lawfully paid to the de facto officer, the de jure officer who recovered the
office cannot compel the government to pay compensation again for a
second time.
Disbursing officers have a right to rely upon the apparent title of the officer
without inquiring whether another one has the better right.
3. Exception to the Exception: De factor officers who are merely designated are not
entitled to compensation or additional benefits.
Liabilities of a de facto officer.
1. He has the same degree of accountability for official acts as a de jure and cannot
escape liability because he was not qualified or he failed to give a bond.
General Rule: The acts of a de facto officer are valid as to third persons and the
public until his title is adjudged to be insufficient. The said authority may not be
collaterally attack or inquired into by third persons affected.
2. Even though his acts are valid and binding as to third persons and the public, he
may be liable for all penalties imposed by law for usurping or unlawfully holding office.
Note:
4. A rightful incumbent may recover from de facto officer the salary received even
though he occupied the office in good faith and under color of title. The rule is where
there is a de jure officer, a de facto officer, during his wrongful incumbency, is not
entitled to the emoluments attached to the office, even if he occupied the office in
good faith.
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Chapter Four
POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
Source of powers and authority of public office.
The people, directly or through representatives, create offices and agencies as they
deem desirable for the administration of the public function. They declare in what
manner and by what persons they shall be exercised. They prescribe the quantum of
power attached to the office and the conditions.
Authority of public officer not presumed.
Officers are agents entrusted with responsibility of discharging its functions. There is
no presumption of authority. In the absence of a valid grant, they are devoid of power.
Authority of public officer and private agents distinguished.
Private agents authority classified according to nature, effect, universal or special.
The same does not apply to public officers. Universal authority of a public officer
cannot exist. Some authorities are general in nature, some are limited and special.
b. Permissive statutory provisions define the time and mode in which public
officers will discharge their duties which are designed to secure order, uniformity,
system, and dispatch of public business.
Mere authorization to perform an act does not impose a mandatory duty upon a
public official. If the act does not affect third persons and is clearly beneficial to
the public, permissive words will not be construed as mandatory.
3. From the standpoint of the relationship of the officer to his subordinates
a. Power of control power of an officer to manage, direct or govern what a
subordinate had done in the performance of duties and to substitute his judgment
for that of the latter. He lays down the rules in the doing of an act and if he is not
followed, it is discretionary on his part to order the act undone or re-done by his
subordinate or do the act himself. Example; power of control of president over
the Cabinet members.
b. Power of supervision power of mere oversight over an inferior body. He sees
to it that the rules are followed, but he himself does not lay down such rules, nor
does he have the discretion to modify or replace them. He may order the work
undone or re-done but he cannot prescribe his own manner for doing the act.
Example; Power of the president over the local Government.
Ministerial and discretionary powers distinguished.
1. Nature of the act character of duty determined by the nature of the act to be
performed and not by the office of the performer. Nature is determined by the facts of
the particular case.
2. Exercise of discretion key distinction is whether the duty is mandatory or whether
the act complained of involves policy making or judgment
Proper execution of the office requires the exercise of judgment or discretion, the
presumption is that he was chosen because he was deemed fit and competent to
exercise that judgment and discretion.
Unless authorized, he has no power to delegate his duties to another.
Delegation of ministerial powers.
3. Illustrations:
a. Register of Deeds
i. When registering under Mortgage Law judicial, meaning discretionary
ii. When registering under Chattel Mortgage Law purely ministerial
2. Where time stated in the statute in the absence of a language prohibiting the
performance of an act at other than the time stated, such is merely directory and not
mandatory, unless the nature of the act or the language of the law clearly intends to
limit the power of the officer like accompanying it with negative words importing that
the acts shall not be done in any other manner or time that that designated and when
disregarded, it would injuriously affect public interest or public right.
Ratification of unauthorized acts.
1. Act of a public officer may not be binding if exercised defectively but his acts may
be ratified
a. Ratification does not apply where there is want of power to perform the original
act. (When the principal could not lawfully have done the act.
b. If merely voidable, the act can be rendered valid
2. In the absence of ratification, state is not estopped by the unauthorized or illegal
acts of its agents
3. Superior officers have the authority to ratify but they are restricted to the ratification
of acts and contracts which they themselves were empowered to make
3. Where act reviewed done without jurisdiction it is for the courts to finally
determine whether a public officer acted within the scope of his authority
1. Public office is a public trust must at all time be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives
2. Standards of personal conduct
a. Commitment to public interest public interest over personal interest. Al
government sources must be employed and used effectively, efficiently, honestly
and economically
b. Professionalism highest degree of excellence, professionalism, intelligence
and skill. There must be utmost devotion and dedication to duty.
d. Duty as to diligence and care - Public finds and property for official use and
purpose shall be utilized with the diligence of a good father of a family.
e. Duty in choice and supervision of subordinates The degree of care required
in selecting subordinates must depend upon the nature of the work to be
performed and the circumstances of each case.
2. Ethical duties bound to perform honestly, faithfully, and to the best of his ability,
and to act primarily for the benefit of the people. An attempt to exercise those powers
corruptly for some improper purpose is null and void.
a. Duty as to outside activities refrain from outside activities that interfere with
the proper discharge of their duties. Congress has the power to ascertain and
declare what activities are inconsistent with the proper performance of public
duties.
b. Duty where personal interest is involved not permitted to place himself in a
position which will subject him to conflicting duties or expose him to the
temptation of acting in any manner other than in the best interests of the public. A
public official may not use his official power to further his own interest.
c. Duty to act with civility Government service is people oriented. Belligerent
behavior has no place in government service. Public officers and employees
should be living examples of uprightness not only in performance of their official
duties, but also in their personal and private dealings with other people.
Duty to make financial disclosure.
To maintain public confidence, to avoid conflicts of interest, and to provide the
citizens with information concerning a public officers financial affairs, and thus enable
to public to better judge his integrity and fitness for office, the Constitution requires
financial disclosures on the part of all government personnel.
In the performance of their duties, all public officials and employees are under
obligation under the Code of Conduct and Ethical Standards for Public Officials and
Employees to:
1. In general sacrifice necessary for the safety and happiness of human society, and
the need of his sacrifice is increased in the case of officers appointed to preserve
peace and enforce laws.
1. Act promptly on letters and requests respond within 15 working days upon
receipt, contain the action taken on the request. The Reply must contain the action
taken on the request.
2. Submit annual performance reports within 45 working days from end of the year,
render a full and complete report of performance and accomplishments. Report shall
be available to the public. Report of compliance will be submitted to the CSC.
3. Process documents and papers expeditiously must be processed and completed
within a reasonable time from preparation, must contain not more than3 signatories.
In absence of authorized signatures, the official nest in rank or officer in charge shall
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Except otherwise provided by law, action or decision must contain not more than 3
initials or signatures. The head of department shall prescribe rules on the proper
authority to sign in the absence of the regular signatory:
3. The department, agency or office to which the letter was referred must take action
in accordance with the letter. 15 days shall be counted from the receipt of the written
or verbal communication of the dept, office or agency concerned.
b. When to file
i. within 30 days after assumption of office
ii. on or before April 30 of every year
iii. within 30 days after separation from service
c. Where to file:
i. President, VP, Constitutional officials, with the National Office of the
Ombudsman
ii. Senators and Congressmen, with the Secretaries of the Senate and the
House of Rep, respectively; Justices, with the Court of Administrator; and all
national executive officials, such as members of the Cabinet,
Undersecretaries, and Assistant Secretaries, including the foreign service
and heads of GOCC with original charters and their subsidiaries and state
colleges and universities, with the office of the President.
iii. Regional and local officials and employees, both appointive and elective,
including other officials and employees of GOCC and their subsidiaries, with
the Deputy OMB in their respective regions.
v. Officers of the armed forces from the rank of colonel or naval captain, with
the Deputy OMB in their respective regions
v. All other public officials and employees, defined in RA 3019, as amended
with the CSC
A copy of the statement shall be filed with their respective departments.
d. authority in favor of ombudsman officials shall execute necessary authority in
favor of the ombudsman to obtain documents that may show their assets,
liabilities and net worth, other business and financial connections within 30 days
from assumption of their office.
3. Accessibility of documents
4. Develop and make available a service guide workflow chat showing procedures
or flow of documents. Aims to institutionalize a management climate conducive to
public accountability
5. Consult the public for feedbacks and suggestions
6. Conduct research and examination provide motivation to officials in raising the
level of observance of public service ethical standards
7. Designate a resident ombudsman act immediately on all requests for public
assistance
8. Consult and dialogue with staff
Chapter Five
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
A. In General
Rights incident to Public Office.
Rights of one elected or appointed to office, are in general, measured by the
Constitution or the law under which he was elected or appointed.
Where an office is created by a statute, the rights of an officer elected thereunder are
measured by the statute except insofar as he may be protected by any provision of
the Constitution.
The powers and duties of public officers are prescribed by the Constitution, or by
Statute or both.
Rights as a Citizen
1. Protection from publication commenting on his fitness and the like The mere fact
that one occupies a public office does not deprive him of the protection accorded to
citizens by the Constitution and laws. They are not entitled to the same protection
from publications commenting on his fitness, and the like, as what is accorded to
citizens.
1. Compensation pay for doing all that may be required of the official, whatever it is
in the form of a fixed salary or wages, per diems, fees, commissions or perquisites of
whatever character.
Honorarium something given not as a matter of obligation but in appreciation for
services rendered, a voluntary donation in consideration of services which admit of no
compensation in money
2. Salary personal compensation to be apid to him for his services; a fixed annual or
periodical payment depending on the time and not on the amount of the services he
may render; given to officers of higher degree of employment than those to whom
wages are given; regarded as compensation per annum
Wages- paid day by day or week by week
3. A per diem this is fixed not as ordinarily by the year or by the month but by the
day. A per diem is not deemed to be a salary within a constitutional provision that no
change in the compensation of officers shall affect the salary of any officer during his
existing term. it is not 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 or money (Ex. Monthly allowance given by the LGUs to judges
assigned within their territorial jurisdictions).
B. Right to Compensation
Power of Congress to fix compensation.
1. Power primarily but not exclusively legislature in character The power is primarily
legislature although not exclusive. Example is if the office is created by the
constitution, the Constitution itself may provide the compensation or may entrust the
matter to congress.
2. Power may be delegated subject to statutory limitations The power to fix the
compensation of public officers is not inherently and exclusively legislative in
character. It may delegate the power to other governmental bodies or officers, as for
example, governor, mayor, or sangguniang bayan, or other officers or official boards.
Administrative boards or other officers may fix compensation and such discretionary
action is not ordinarily reviewable by the courts.
facto officer for services rendered by him after notice of adjudication of the title to the
former. Where the tenure of the de facto officer is wrongful the salary received by
him during such tenure may be recovered
From the intruder or usurper one who intrudes into or usurps a public office has no
righ tot the salary or emoluments attached to the office. he stands even in a less
favorable position than an officer de facto
Salary not subject to garnishment
Garnishment is a species of attachment for reaching credits belonging to the
judgment debtor owing to him from a stranger to a litigation
Reasons:
1. While the money is still in the hands of the disbursing officer, it belongs to the
government
2. Public policy forbids such practice since it would be fatal to the public service
RA. No. 6758 (An Act Prescribing a Revised Compensation and Position
Classification System in the Government) provides that differences in pay are to be
based upon substantive differences in duties and responsibilities and qualification
requirements of the positions.
The nature of the officials position should be the determining factor in fixing of his or
her salary.
Law employs the scheme known as grade although different with respect to kind or
subject matter of work, are sufficiently equivalent as to level of difficulty and
responsibilities and level of qualification requirements of the work to warrant the
inclusion of such classes of positions within one range of basic compensation. It is
the officials grade that determines his or her salary, not the other way around.
6. Ex-officio position this is actually in legal contemplation part of the principal office.
The official concerned has no right to receive additional compensation for his services
in said position
Recovery of compensation
An action to recover the compensation attached to a public office belongs to the
person who has the true, rather than the colorable, title to the office, for in such action
the title to the office is put in issue
1. From the government A de jure officer cannot recover from the government
salary or compensation which has been paid to a de facto officer. It is a matter of
justice that the emoluments must go to the person (de facto officer) who actually
rendered the service unless the contrary is provided
2. From 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
Salaries of persons which cannot be decreased: President, VP, Chief Justice and
Associate Justices of the SC, Judges of lower court, Chairmen and members of the
Constitutional Commissions and Ombudsman and his deputies
Prohibition against receiving additional , double, or 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.
Pensions and gratuities shall NOT be considered as additional, double or
indirect compensation
2. Where the additional compensation is received not from the government or any of
its entities
3. Where there are two distinct offices, each of which ahs its own duties and
compensation, in which case both may be held by one person at the same time
Free voluntary service to the government
Free voluntary service services rendered by persons who are in the government
without pay or compensation
1. Requirements
a. Issuance of an appropriate document
b. Fitness and suitability for the duties and responsibilities of the particular
position
c. Compliance with the rule on nepotism
2. What they can perform
a. Advisory
b. Consultancy or counselling
c. Recommendatory
d. Professional services
e. Staff work such as planning or research
f. Humanitarian
3. Applicable laws and rules Code of Conduct and Ethical Standards and
Employees and implementing rules on:
a. Rewards and incentives
b. Norms of conduct and ethical standards
c. Duties and obligations of public officers and employees
C. Other Rights
Rights under the Constitution
1. The right to self-organization this shall not be denied to government employees.
The constitution grants to government employees in the civil service the right to form
unions enjoyed by workers in the private sector
Section 8 of Article 3 Right of the people including those employed in the public
and private sectors to form associations, unions, or societies for purposes not
contrary to law shall not be abridged
Section 3 Par 2 of Article 13 which mandates the State to guarantee the rights of all
workers to self organization, collective bargaining and negotiations and peaceful
concerted activities, including the right to strike in accordance with law
2. The right to protection of temporary employees They do not enjoy security of
tenure. They may be replaced any time a qualified civil service eligible becomes
available, or at the discretion of the appointing authority with or without cause
notwithstanding that their performance meets the standards of public service
demanded of them.
3. Freedom of members of Congress from arrest and from being questioned - Section
11 of Article 6 of Const. A Senator or Member of the House of Representatives
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shall, in all offenses punishable by not more than 6 years imprisonment, be privileged
from arrest while Congress in session. No member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or in any
committee thereof. - This grants 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: 1) existence of a charge 2) due hearing 3) finding of guilty by the proper
authority
Each department or agency shall evolve its own screening process, which may
include test of fitness in accordance with the standards and guidelines set by the Civil
service
If the vacancy is not filled by promotion as provided above, the same shall be filled by
transfer of present employees in the government service, by reinstatement, by
reemployment of persons separated through reduction in force, or by appointments of
persons with the civil service eligibility appropriate to the positions
A qualified next in rank employee shall have the RIGHT TO APPEAL initially to the:
Government agencies shall not approve or warrant mass leave of absences which
occur when five or more employees apply for leave simultaneously or almost at the
same time under circumstances evidencing collusion or common design to participate
in a prohibited mass action. They must have the right to collective negotiation
which is a new concept in the Constitution for resolving disputes or potential ones
between employer an employees. Intended primarily for unorganized labor and
government workers, it calls for discussion rather than confrontation in order to reach
a solution to issues affecting both parties
Rights under the Civil Service Degree and the new Administrative Code
Next-in-rank rule
3. The right not to be suspended or dismissed except for cause as provided by law
and after due process
4. Right to organize Government shall not be discriminated against in respect of
their employment by reason of their membership in employees organizations or
participation in the normal activities of their organizations
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Personnel actions
This means any action denoting the movement or progress of personnel in the civil
service
1. Appointment through certification an appointment whereby the person appointed
has been selected from a list of qualified persons certified by the CSC from an
appropriate register of eligibles and who meets all other requirements of the position
2. Promotion advancement from one position to another with an increase in duties
and responsibilities as authorized by law and usually accompanied by an increase in
pay
Any increase in salary should only be considered incidental but never determinative
of whether or not a promotion is being bestowed upon an employee
There is no law that compels an employee to accept a promotion for the reason that a
promotion is in the nature of a gift or reward, which a person has a right to refuse
3. Transfer movement from one position to another which is of equivalent rank, level
or salary without break in service involving the issuance of an appointment
It shall not be considered disciplinary when made in the interest of public service
The transfer may be from one department or agency to another (detail) or from one
organizational unit to another in the same department or agency (reassignment)
Any movement from non-career service to the career service shall not be considered
a transfer
4. Reinstatement restoration to a state or condition from which one has been
removed or separated
The award for backwages has been limited to a maximum period of 5 years
Where the reinstatement involves the exercise of sound judgment and discretion by
the appointing power, absent a showing of clear and certain right by a separated
employee, the remedy of mandamus is not available
Pension
More than an ct of generosity. It is
an act of justice emanating from the
desire to provide, though tardily,
adequate compensation for services
already rendered for which one had
not received complete and adequate
reward at the time when such
services were actually rendered
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Chapter Six
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
A. Under the Constitution
Disabilities of President, Vice-President, Members of Cabinet, and their
Deputies and Assistants.
4. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries during his
term of office.
4. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries.
Purpose: To prevent him from using his influence and pressure in the
awards of government contracts or for the purpose of financial benefit or
reward.
5. They shall strictly avoid conflict of interest in the conduct of their office.
The President is also prohibited during his tenure from appointing his spouse and
relatives by consanguinity or affinity within the fourth civil degree.
Purpose: To insure that the officials will devote full time and attention to their official
duties, prevent them from extending favors to their business and to assure public of
faithful performance of their functions.
Disabilities of Members of Congress.
Disability to their right to hold any other office or employment
5. They shall not intervene in any government office for his pecuniary benefit or where
he may be called upon to act on account of his office.
Purpose: To insure that every vote on any pending legislative measure shall
be dictated by no other consideration than public good whether or not he
derives pecuniary benefit or not.
1. They may not hold any other office or employment in the government or any of its
subdivision, agency or instrumentality, including any GOCC or their subsidiaries
during their term without forfeiting his seat.
2. They cannot be appointed to any office that may have been created or the
emoluments increased during the term for which he was elected.
2. They shall not engage in the practice of any profession or in the active
management or control of any business that in any way may be affected by the
functions of his office.
3. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries.
Prohibition against designation of members of judiciary to administrative
positions.
The members of the Supreme Court and of other courts established by law shall not
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Purpose: Appointive officials should devote their full time to their principal functions.
Prohibition against acceptance of any present from any foreign state.
What is prohibited is the acceptance of a present officially offered by the government
of the foreign state. However, it is permissible for an official of the Philippines to
accept a private or personal gift from the head of a foreign government. The
prohibition is directed only against public officers and not private citizens.
Purpose: To discourage and prevent foreign influence in the affairs of our
government.
Prohibition against receiving additional, double or indirect compensation.
Elective or appointed officers or employees shall not receive additional, double or
indirect compensation.
2. Justices, judges, prosecutors, etc., the property and rights in litigation or levied
upon an execution before their court. It includes acquiring by assignment and shall
also apply to lawyers with respect to property and rights that may be the object of
litigation. For the prohibition to operate, the sale or assignment must take place
during the pendency of the litigation involving the property.
Prohibitions imposed on the Governor and personnel of the Central Bank.
1. Outside interest of the Governor and Full-time Monetary Board Members
The BSP Governor and the monetary board members are required to limit their
activities with the Bank.
General rule: They may not accept other employment.
Exception: They can accept employment if the positions are for eleemosynary
organizations or by designation of the President that they represent the interest of the
government or its agency.
2. Practice of profession
2. Personnel- They are also prohibited from:
a. governors, mayors prohibited from practicing their professions or engaging in
any occupation other than exercise of functions as local chief executives
b. sanggunian members may practice their professions or engage in any
occupation except during session hours. However, those who are members of
the bar shall not:
i. appear as counsel before any court in any civil case where the LGU is
adverse party
ii. appear as counsel in criminal case where official of government is
accused of an offense in relation to his office
iii. collect any fee for appearance in administrative proceedings involving his
LGU
iv. use property and personnel of the government except when sanggunian
member is defending interest of the government
c. doctors may practice profession even during work hours only in occasions of
emergency, provided that officials concerned do not derive monetary
compensation
3. Partisan political activity No local official in the career civil service shall engage
in partisan political activity. However, elective officials can engage in partisan political
activities but cannot solicit contributions from subordinates or subject them to any
prohibited acts under the Omnibus Election Code.
Prohibition against purchase of certain property at public auction under the
Civil Code.
1. Public officers, the property of the State thathas been entrusted to them. The
prohibition applies to judges and government experts taking part in the sale.
3. Causing undue injury to any party or giving private party unwarranted benefit,
advantage or preference
4. Solicitation or acceptance of gifts shall not solicit, accept any gift from any
person in the course of their official duties
a. gift thing or right disposed of gratuitously, or any act of liberality. It shall not
include unsolicited gift of nominal or insignificant value not given in anticipation of
any favor
b. receiving any gift accepting a gift from a person other than member of his
family even on family occasions and celebrations such as Christmas in
anticipation of or exchange of any favor
c. loan simple loan and commodatums well as guarantees intended to ensure
approval
Prohibited acts and transactions under the Code of Conduct and Ethical
Standards.
c. acceptance of travel grants outside the Philippines of more than nominal value
if acceptance is appropriate or consistent with interests of the Philippines,
permitted by his head of office or agency
1. Financial and material interest shall not have any financial or material interest
in any transaction requiring his approval
2. Outside employment and other activities related thereto during their
incumbency shall not:
a. own, control, manage or accept employment in any private enterprise
regulated, supervised by his office unless expressly allowed by law
b. engage in private practice of profession unless authorized by law, provided
there is no conflict of interest
c. recommend any person to a private enterprise that has transactions with his
office
Prohibitions continue to apply for a period of 1 year after resignation, retirement,
or separation from public office except outside employment. However, the
professional concerned cannot practice profession in connection with any matter
before the office he used to occupy.
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Chapter Seven
LIABILITIES OF PUBLIC OFFICERS
A. In General
Doctrine of official immunity from liabilities for public officers.
The liability of a public officer is based upon and is co-extensive with his duty to the
individual or to the public.
Rationale for official immunity the promotion of fearless, vigorous and effective
administration of policies of government; so as not to deter competent people from
accepting public office; loss of valuable time caused by such actions; the unfairness
of subjecting officials to personal liability for the acts of their subordinates.
If the officer does not owe any duty to the individual complaining, the individual has
no right of action, even though he may have been injured by the action or non-action
of the officer. Simply, an individual has no cause of action against a public officer for a
breach of duty owing solely to the public.
An action for each can proceed independently of the others. The 3 remedies may be
pursued simultaneously or successively.
Criminal and civil cases different from administrative matters.
1. Purpose of criminal prosecution punishment of crime
Purpose of administrative proceedings mainly to protect the public services
2. A prosecution in a criminal proceeding is not a bar to prosecution in an
administrative proceeding and vice versa. Administrative cases are independent from
criminal actions for the same act or omission. A dismissal or conviction in one action
will not bar the filing of the other action and will not necessarily result in a similar
finding in the other action.
3. In administrative cases, double jeopardy does not lie.
4. Basic premise criminal and civil cases are different from administrative matters.
The disposition in the 1st two will not inevitably govern or affect the 3rd and vice versa.
5. Concept of prejudicial question involves only a civil and criminal case. (There is
no prejudicial question where one case is administrative and the other is civil or
criminal.)
Proceedings against public officers.
1. Evidence and procedure
Type of
Quantum of
Proceeding
Evidence
Criminal
Proof beyond
proceedings
reasonable
doubt
Meaning
The evidence must be
so strong that no other
logical explanation can
be derived from the
facts except that the
Burden of
proof on
Petitioner
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Civil
proceedings
Administrative
proceedings
Preponderance
of evidence
Substantial
evidence
defendant committed
the crime
A balance of
probabilities that it is
more likely to be true
than not true; that
there is greater than
50% chance that the
proposition is true
Such relevant
evidence as a
reasonable mind might
accept as adequate to
support a conclusion
Plaintiff
criminal or civil liability incurred during the previous term of office. Art. 89 of RPC
enumerates the grounds for extinction of criminal liability and the list does not include
re-election to office.
An administrative case involves only the persons actuations as a public officer as
they affect the public or populace he serves.
B. Civil Liability
Complainant
/ Petitioner
resulting from the performance of official acts except by express provision of law.
2. Liability for rendering an unjust judgment a judge may be held criminally liable for
dereliction of duty for knowingly rendering an unjust judgment or interlocutory order or
for rendering a manifestly unjust judgment or order by reason of inexcusable
negligence or ignorance.
To warrant a finding of gross ignorance of law, the order or decision must be contrary
to existing law and jurisprudence and the error must be so gross and patent as to
produce an inference of ignorance or bad faith or that the judge knowingly rendered
an unjust decision.
4. Quantum of proof necessary to support administrative charges substantial
evidence is necessary.
Liability of quasi-judicial officers for official acts.
1. Reasons for immunity same reasons for immunity of members of the judiciary
The immunity is not confined to members of Congress but extends to the members of
local legislative bodies.
Liability of members of the judiciary for official acts.
It is a general principle that no civil action or administrative sanction can be sustained
against a judicial officer for the recovery of damages by one claiming to have been
injured by the officers judicial action within his jurisdiction.
1. Reasons for immunity a result of the civil or administrative action would be to
occupy the judges time and mind with his defenses when he should be giving his
time wholly to his public duties; it would result to lower the estimation of his office by
the public; it would be an incentive to dishonest judgments and would invite him to
consult public opinion and prejudices; and it would open each case to endless
controversy.
General Rule: A judge is not liable for acts done in the exercise of judicial function.
Exception: The immunity does not apply to acts which are purely ministerial in nature
or if there was fraud, dishonesty, corruption, bad faith, malice, deliberate intent to
violate the law or a persistent disregard of well-known legal rules and principles in the
2. Misfeasance the failure to use, in the performance of a duty, that degree of care,
skill and diligence
3. Malfeasance the doing, through ignorance, inattention or malice, of that which the
officer has no legal right to do (e.g. the officer acts without any authority or exceeds,
ignores or abuses his powers)
Good faith and absence of malice constitute no defense in an action to hold a
ministerial officer liable for damages caused by his nonfeasance or misfeasance.
But an order of a superior is, in general, no justification for an unlawful act on the part
of a subordinate officer. A subordinate officer or employee shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy or good
customs, even if he acted under orders or instructions by his superiors.
However, where a ministerial officer is vested with no discretion and the law places
on him the imperative duty of obeying the orders of a superior, he is protected by the
command of his superior from liability.
1. Acts done within scope of official authority a public officer is generally not
personally liable to one injured as a result of an act performed within the scope of
official authority and in line of official duty.
2. Exceptions:
a. Where the superior negligently or wilfully employs or retains unfit or improper
persons
b. Where he negligently or wilfully fails to require subordinates the due conformity
to the prescribed regulations
c. Where he carelessly or negligently oversees, conducts or carries on the
business of his office as to furnish the opportunity for default
An officer who acts outside the scope of his jurisdiction and without authorization of
law may be amenable to personal liability in a civil suit. (Festejo v. Fernando)
f. A superior is liable for the misconduct or negligence within the scope of the
employment of those employed by or under him voluntarily or privately and paid
by or responsible to him
1. For failure or neglect to perform official duty Art. 27: Any person suffering
material or moral loss because a public servant or employee refuses or neglects,
without just cause, to perform his official duty may file an action for damages and
other relief against the latter without prejudice to any disciplinary administrative action
that may be taken.
g. Where there is a clear showing of bad faith, malice or gross negligence or for
neglect to perform a duty within a period fixed by law or regulation or within a
reasonable period
h. Where he has actually authorized by written order the specific act or omission
complained of
2. For violating rights and liberties of private individuals Art. 32: Any public officer
or employee who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the rights and liberties provided under the Bill of Rights of
another person shall be liable to the latter for damages. (e.g. freedom of religion, of
speech, of suffrage, liberty of abode, right to the equal protection of the laws)
Liability of subordinates.
1. Same rules as those applicable to officers of higher rank in general, rules
applicable to officers of higher rank for official misconduct are the same as those
To be liable under Art. 32, it is not required that the defendant should have acted with
malice or bad faith.
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3. For failure to render aid or protection to a person Art. 34: When a member of a
city or municipal police force refuses or fails to render aid or protection to any person
in case of danger to life or property, such peace officer shall be primarily liable for
damages, and the city or municipality shall be subsidiarily responsible therefor.
Refusal of the fiscal/prosecutor to prosecute when after an investigation he finds no
sufficient evidence to establish a prima facie case is not a refusal to perform an
official duty. (Zulueta v. Nicolas)
Note: The duty of a prosecutor to investigate is ministerial while the duty to file a
complaint is discretionary.
Liability on contracts executed in behalf of the government.
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: A public officer becomes personally liable on such contracts when: 1) the
officer intended to render himself personally liable; 2) when he makes no mention of
the public agency he serves; or 3) when he does not indicate that it is executed in an
official capacity.
Liability for unexplained wealth.
1. RA 1379 (Forfeiture of Unexplained Wealth Act) declares the forfeiture in favor of
the State of any property found to have been unlawfully acquired by any public official
or employee.
provided for in a civil action. Thus, amendment of the charges or the petition for
forfeiture may be made before trial or in the course of trial without need of another
investigation. It follows that amendments setting forth newly discovered acquisitions
may be inserted in the petition without obtaining the consent of respondents. (Almeda
v. Perez)
2. RA 3019 (Anti-Graft and Corrupt Practices Act) penalizes certain acts of public
officers and private persons which constitute graft or corrupt practices or which may
lead thereto.
The Act requires every public officer to file a true, detailed and sworn SALN,
including a statement of the amounts and sources of his income, the amounts of his
personal and family expenses and the amount of income tax paid for the next
preceding calendar year.
It provides that if in accordance with the provisions of RA 1379, a public official has
been found to have acquired during his incumbency, whether in his name or in the
name of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a ground for
dismissal or removal. Properties in the name of the spouse and unmarried children of
such public official may be taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into
consideration in the enforcement of this notwithstanding any provision of law to the
contrary.
Notes in class:
Under the Act whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary
as such public officer or employee and to his other lawful income and income from
legitimately acquired property, said property shall be presumed prima facie to have
been unlawfully acquired.
1. The ombudsman can investigate such cases anytime but has to wait until the end
of the pending proceedings before he files a case against the said official.
The Act creates a presumption against the public officer or employee, who acquires
property grossly disproportionate to his income, that the property was unlawfully
acquired. The presumption, once established, may be rebutted by the public officer or
employee by showing to the courts satisfaction that his acquisition of the property
was lawful. The burden of proof is on the respondent to establish by clear and
convincing evidence that the property in question was lawfully acquired to overcome
the presumption of illegitimacy. Failing this, the court shall declare the questioned
property forfeited in favor of the state.
The courts are not bound by the SALN filed by the public officer or employee. The
accuracy of entries in the SALN becomes material in criminal or administrative
proceedings of violation of the Anti-Graft and Corrupt Practices Act.
2. Freezing of assets can be done ex parte but once you look into the bank accounts,
there should be a hearing.
4. If the charge is plunder, it is very hard to prove because there are 2 tiers theres a
predicate crime and then money laundering.
Liability of accountable officers to the government.
1. Bond requirement every officer of any government agency whose duties permit
or require the possession or custody of government funds or property shall be
properly bonded in accordance with law.
Forfeiture proceedings are actions in rem and civil in nature. A full-blown trial is not
required under the Act.
2. Primary and secondary responsibility the head of any agency of the government
is immediately and primarily responsible for all government funds and property
pertaining to his agency.
A proceeding under the Act terminates in the forfeiture of properties illegally acquired
in favor of the State. The procedure outline in the law leading to forfeiture is that
Persons entrusted with the possession/custody of the funds or property under the
agency head shall be immediately responsible to the agency head, without prejudice
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The mere fact that a public officer is the head of an agency does not necessarily
mean that he is the party ultimately liable in case of questionable transactions in his
agency. His knowledge of the illegality of the transaction and his active and knowing
participation must be proved. An official or employee shall be personally liable for
unauthorized expenditures if the following requisites are present: 1) there is an
expenditure or use of government funds or property; 2) it is in violation of law or
regulation; 3) the official is found directly responsible for it. (Albert v. Gangan)
C. Criminal Liability
Generally.
No officer is above the law and all may be punished for criminal acts. Acting in official
capacity will not relieve him from criminal liability. However, public officers can be
exempted by statues from certain crimes.
Public officers may not be held criminally liable for failure to perform a duty when
performance is impossible due to causes beyond their control. But absence of corrupt
intent is no defense to an action against an officer for a statutory penalty for
misconduct.
Mere expiration of his term will not prevent the prosecution and punishment of a
public officer for a crime committed in office; nor does re-election extinguish criminal
liability incurred by him during a previous term.
5. Civil Service Decree penalty is a fine not exceeding 1,000 or imprisonment not
exceeding 6 months or both when public officer makes appointments in violation of
the provisions of the decree, commits fraud, deceit, intentional misrepresentation of
material facts concerning other civil matters, refuses or neglects to comply with any
such provision or rules.
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Chapter Eight
TERMINATION OF OFFICIAL RELATIONS
A. Specifically
Modes of termination of official relations.
Legal modes:
Natural Causes
1. Expiration of term or tenure of office;
2. Reaching age limit (retirement);
3. Death or permanent disability;
4. Resignation;
Acts or Neglect of Officer
5. Acceptance of an incompatible office;
6. Abandonment of office;
7. Prescription of right to office;
Acts of the Government or People
8. Removal;
9. Impeachment;
10. Abolition of office;
11. Conviction of a crime;
12. Recall.
(13. Revolution)
A single act may be against two or more provisions of law and may give rise to
criminal as well as civil and administrative liability. Hence, absolution from criminal
charge does not a bar administrative prosecution or vice versa.
B. Natural Causes
By expiration of term or office.
Term is the fixed and definite time prescribed by law by which an officer may hold an
office.
Upon expiration of term, an officers rights, duties and authority ipso facto ceases
unless he is authorized by law to hold over. It is then the right of the occupant himself
to hold the office that is terminated.
Removal and expiration of term distinguished.
Congress may give to terms of office for a fixed or indefinite tenure, even for
life.
Where the term is prescribed by law, public policy forbids the beginning and
expiration of terms be left to the discretion of person holding the office, or the
body having the appointing power.
When Congress creates the office, it has the power to modify the term. It can
also change the tenure of the officers holding offices that it created.
To remove an officer is to oust him from office before the expiration of term.
1. It is expiration of term not removal where law does not fix term of office and the
appointing authority relives the incumbent, its legal effect is as if theres a term is
fixed.
Tenure
Period during which incumbent
actually holds office.
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Hold over status the officers term has expired or his services terminated but he
continues holding his office until his successor is appointed or chosen had qualified.
1. Death of incumbent renders the office vacant. Upon his death, the public official
ceases to hold office, and all rights, duties, obligations are extinguished. However, if
the authority is conferred over two or more officers, death of one terminates his
authority and leaves a vacancy but the entire office is not vacant. Unless the joint
action of all is expressly required, the survivors may execute the office.
1. Where holding over provided by law An officer elected or appointed for a fixed
term shall hold not only for that term but until his successor are elected and qualified.
Hence, an office does not become vacant if there is no qualified successor.
2. Where holding over not provided by law The prevailing opinion is that the
incumbent may continue to hold office unless expressly or impliedly prohibited.
3. Where Constitution limits term When the term is provided but there is no
provision to continue office after the expiration of his term then holding over is not
permitted.
4. Application of hold over It only applies where a fixed term is annexed to an office.
It may be made applicable to both elective and appointive officers but it can be
restricted.
In determining whether a hold-over provision applies to a particular public officer the
court would be guided by statutory construction unless there are compelling
indications that the provision is clearly wrong. It is not applicable where the term is for
an indefinite duration.
By resignation.
3. Resignation should not be used either as an escape nor as an easy out to evade
administrative sanction
1. The office-holder may resign or retire at any time he chooses (Prohibition against
involuntary servitude)
2. However, after an office is conferred and assumed, it cannot be laid down without
the consent of the appointing power
Meaning of resignation.
6. Status He is a de jure officer when authorized by law if not he is a de facto
officer.
Officer created for the accomplishment of a specific act.
Upon accomplishment of the purpose of the single act the officers authority ceases.
The termination of the official relationship is equivalent to the expiration of the term.
Illustration: Board of canvassers upon proclamation of the candidates they do not
have the authority to re-canvass the returns nor they can be compelled to do so by
mandamus.
Age of Retirement for members of the SC and judges of lower court: 70 years old
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By abandonment of office.
Abandonment
Voluntary
Relinquishment through non-user
Implies non-user but non-user does
not itself imply abandonment
Resignation
Voluntary
Formal relinquishment
Not a requisite of abandonment
Failure to perform duties must be with active or imputed intention on the part of the
officer to relinquish office.
Instances of abandonment.
See pg. 382-384 in De Leon, 2011.
Acts not constituting abandonment.
See pg. 384-386 in De Leon, 2011.
By prescription of right to office.
A person who claims a right to a public office occupied by another may bring an
action to determine by what authority the latter assumes to hold and exercise the
office in question and ascertain who is entitled to it
1. Prescriptive period for filing petition for quo warranto
Should be commenced within one (1) year after the cause of such ouster or the right
of the plaintiff to hold such office or position arose
2. Rationale for the one-year period
a. Title to public office should not be subjected to uncertainties but should be
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By removal.
Offices may also become vacant by the removal or dismissal of the incumbent from
the service. It may be arbitrary or for cause.
Meaning of removal.
Removal The ouster of an incumbent before the expiration of his term
An individual appointed to a post for a fixed term may be removed prior to the terms
expiration only for cause
3. Where holding of position at pleasure of appointing power or subject to some
supervening event
a. If the statute does not designate the term of the office, the appointee will hold
only during the pleasure of the appointing power, and may be removed at
pleasure at any time without notice or hearing
2. Conditional The time, manner, or reason for removal is placed beyond the mere
discretion of the removing officer
Power of removal of the President.
a. It means for reasons which the law and sound public policy recognize as
sufficient ground for removal or suspension or demotion and after due process is
accorded the officer or employee
b. Such cause must relate to and affect (as a general rule) the functions or
administration of the office or be connected with the performance of his official
duties and must be restricted to something of a substantial nature directly
affecting the rights and interests of the public
A presidential appointee who belongs to the career service of the Civil Service comes
under the direct disciplining authority of the President
3. Procedural aspect The guarantee of procedural due process requires notice and
opportunity to be heard before one is suspended or dismissed
1. non-career officers exercising purely executive functions whose tenure not fixed by
law removal with or without cause, Congress may not restrict power
b. A decision rendered without due process is void ab initio and may be attacked
directly or collaterally
All permanent officers and employees in the Civil Service, regarless of their status,
whether career or non-career, are entitled to the constitutional and statutory
guarantee of security of tenure
In other words, the occupancy or incumbency of any one so appointed to the said
post is temporary
3. Term of appointment for a definite period fixed by law
a. Temporary appointments can only be removed for a just cause
b. the mantle of protection against arbitrary dismissals is accorded to an
employee even if he is non-eligible and holds a temporary appointment.
Grounds for disciplinary action under the Local Government Code.
1. Disloyalty to the Republic of the Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office and neglect of duty
4. Commission of any offense involving moral turpitude or an offense punishable by at
least prision mayor
5. Abuse of authority
6. Unauthorized absence for fifteen (15) consecutive working days except in the case
of members of the sangguniang panlalawigan, sangguniang panglunsod,
sangguniang bayan, and sangguniang barangay
7. Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country
8. Such other grounds as may be provided by law
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court
Grounds for disciplinary action under the Civil Service Law.
1. Dishonesty
2. Oppression
3. Neglect of duty
A person who does not have the requisite qualifications for a position cannot be
appointed to it or, only as an exemption to the rule, may be appointed to it merely in
an acting capacity in the absence of appropriate eligibles
9. Receiving for personal use a fee, gift or other valuable thing in the course of official
duties or in connection therewith when such fee, gift, or other valuable thing is given
by any person in the hope or expectation of receiving a favor or better treatment than
that accorded other persons, or committing acts punishable under the anti-graft laws
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12. Violation of existing Civil Service Law and rules or reasonable office regulations
13. Falsification of official documents
14. Frequent unauthorized absences or tardiness in reporting for duty, loafing or
frequent unauthorized absences from duty during regular office hours
15. Habitual drunkenness
Misconduct in office One that affects the officers performance of his duties as an
officer and not only as affects his character as a private individual
1. Related to, and connected with, performance of official duties To warrant removal
from office of an officer or employee, the misconduct, misfeasance, or malfeasance
must (as a general rule) have a direct relation to and be connected with the
performance of official duties, amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the office.
An offense is deemed to be committed in relation to the accuseds office when the
offense cannot exist without the office
23. Contracting loans of money or other property from persons with whom the office
of the employee concerned has business relations
2. Committed during a prior term An elected public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election to
office operates as a condonation by the people of the officers previous misconduct to
the extent of cutting off the right to remove him therefor
24. Pursuit of private business, vocation or profession without the permission required
by the Civil Service rules and regulations
Removal cannot extend beyond the term during which the alleged misconduct was
committed
25. Insubordination
26. Engaging, directly or indirectly, in partisan political activities by one holding nonpolitical office
a. The causes which warrant the dismissal of a civil servant need not necessarily
be work-related or committed in the course of the performance of duty by the
person charged
29. Promoting the sale of tickets in behalf of private enterprises that are not intended
for charitable or public welfare purposes and even in the latter cases if there is no
prior authority
30. Nepotism
Grounds for disciplinary action under the Code of Conduct and Ethical
Standards.
Such term applies to a broader range of transgressions of rules not only of social
behavior but of ethical practice or logical procedure or prescribed method.
Section 4 of the Code commands that public officials and employees x x x at all
times respect the rights of others, and x x x refrain from doing acts contrary to law,
good morals, good customs, public policy, public order, public safety and public
interest.
Nepotism.
1. Situations covered The Civil Service Decree prohibits all appointments in the
national and local governments or any branch or instrumentality thereof, including
GOCCs, made in favor of a relative of the:
For specific grounds, see pg. 419-423 in De Leon, 2011. (More or less the same as
grounds for administrative disciplinary actions)
Administrative investigation of elective local officals.
a. Appointing authority
b. Recommending authority
c. Chief of the bureau or office
d. Person exercising immediate supervision over the appointee
Note: The word relative and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
2. Persons not covered
a. Persons employed in a confidential capacity
b. Teachers
c. Physicians
d. Members of the Armed Forces of the Philippines
(This is all codal/procedural stuff check pg. 423-432, De Leon 2011 for details
1. Form and filing of administrative complaints should be verified and in writing
2. Notice of hearing
a. Within 7 days after the complaint is filed, the respondent has 15 days from
receipt to file his answer
b. The investigation shall commence within 10 days after receipt of the answer
3. Preventive suspension
a. Shall not extend beyond 60 days
Note: in each particular instance, full report of such appointment must be made to the
Civil Service Commission
b. Cannot be suspended for more than 90 days within a single year on the same
ground or grounds existing and known at the time of the first suspension
b. Within 30 days after the end of the investigation a decision shall be rendered
stating clearly the facts and reasons for such decision
c. Penalty of suspension shall not exceed 6 months
d.Removal from office shall be considered a bar to the candidacy of the
respondent for any elective position
7. Administrative appeals
a. Appeals must be perfected within 30 days from receipt of judgment
b. Appealable to either the sangguniang panlalawigan or the Office of the
President
8. Execution pending appeal an appeal shall not prevent a decision from becoming
final or executory
Administrative Order No. 23 prescribes the rules and procedures applicable to
administrative disciplinary cases filed against elective local officials
10. Grounds Where evidence of guilt is strong and there is great probability that the
continuance in office could influence witnesses or pose a threat to the safety and
integrity of the records and other evidence.
11. Duration Preventive suspension shall not exceed 60 days; 90 days in the case
of several administrative cases.
12. Automatic reinstatement Upon expiration of the preventive suspension, the
official shall be deemed reinstated without prejudice to the continuation of the
proceeding against him, which shall be terminated within 120 days from the time of
notice.
1. How initiated
13. Salary of respondent pending suspension no salary during suspension
a. May be initiated by a private individual or government officer by filing a sworn
written complaint
b. May also be initiated motu proprio by the Office of the President or a
government agency
3. Notice Within 7 days after the complaint is filed, the respondent shall be ordered
to submit his answer within 15 days from receipt of the order.
18. Execution pending appeal - An appeal shall not prevent a decision from becoming
final or executory.
21. Removal considered a bar to the candidacy of the respondent for any elective
position.
22. Executive clemency The President may commute or remove administrative
penalties or disabilities.
officers and employees under their jurisdiction. Their decisions shall be final in case
the penalty imposed is suspension for not more than 30 days or fine in an amount not
exceeding 30 days salary.
4. Investigation by a regional director or similar official may be entrusted to him or
similar officials who shall make the report and recommendation to the chief of bureau
or department
2. Preventive Suspension
a. local chief executive may suspend for a period not exceeding 60 days any
subordinate employee or official under his authority if the charge involves
dishonesty, oppression or grave misconduct or neglect in the performance of
duty or if there is reason to believe that the respondent is guilty of the charges.
b. upon expiration of the period, the suspension is automatically lifted hence the
employee or official being automatically reinstated. If the delay is due to the fault
of the respondent, the time of the delay shall not be counted in computing the
period of suspension herein provided.
3. Administrative investigation it may be conducted by a person or committee duly
authorized by the local chief executive. Hearings on the cases will be conducted and
it shall be decided within 90 days from the time respondent shall be notified of the
charges
4. Disciplinary jurisdiction the local chief executive may impose the penalty of
removal from service, demotion in rank, suspension for not more than 1 year without
pay, fine in an amount not exceeding 6 months salary or reprimand and otherwise
discipline officials and employees under his jurisdiction. If the penalty imposed is
heavier than suspension of 30 days, the decision shall be appealable to the CSC.
5. Execution pending appeal an appeal shall not prevent the execution of a decision
of removal or suspension of a respondent-appellant
5. Execution of decision pending appeal an appeal shall not stop the decision from
being executory. In case the penalty is suspension/ removal the respondent shall be
considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal
6. Reconsideration of a final and executory decision not allowed the CSC has no
power or authority to reconsider its decision which has become final and executory
even if the Commission later discovers that its judgment is erroneous. The ratio is
grounded on the doctrine of finality of judgment. Mandamus is the remedy to enforce
a decision of the CSC that has become final and executory.
7. Power to terminate employment academic freedom of institutions of higher
learning- these institutions are inherently endowed with the right to establish their
policies, academic or otherwise, unhampered by external controls or pressure. They
have the academic freedom to determine for itself on academic grounds, who may
teach, what may be taught, how it shall be taught and who may be admitted to study.
Appeal by party adversely affected by the decision.
Appeals, where allowable, shall be made by the party adversely affected by the
decision. The law doesnt contemplate a review of decisions exonerating officers or
employees from administrative charges. Judgment of exoneration is not appealable.
In administrative cases, the complainant is a mere witness of the State, and therefore,
has no legal personality to interpose an appeal except where respondent failed to
question the appeal.
with disfavor upon retractions of testimonies previously given in court. The reason is
because affidavits of recantation can easily be secured through intimidation or for
monetary consideration.
1. Period for deciding cases or incidents- all contested cases shall be decided within
30 days from the date of submission for resolution; officers action is only
recommendatory to his immediate superior, he shall submit his recommendation
within 20 days from submission of the case and the approving officer shall have 10
days from submission of the recommendation; a case is deemed submitted upon
expiration of the period for filing the memorandum, position paper or last pleading;
officer charged with the resolution shall submit to his superior within 10 days a sworn
Statement of Disposition of Cases; only 1 MR shall be allowed
2. Abbreviation of Proceedings- all administrative agencies are directed to adopt the
following in their respective rules
a. amicable settlement, compromise and arbitration
b. mandatory use of affidavits and preferred use of deposition if needed
c. submit a draft of the decision they seek which states the facts and law upon
which it is based, aside from the memorandum
d. rules avoiding postponement of hearings or trials
3. Applicability government agencies, including any department, bureau, board,
office, commission, authority or officer of the national government authorized by law
or executive order to adjudicate cases
Merit System Protection Board.
1. Composition- Commissioner and two associated Commissioners, appointed by the
Civil Service Commissioner
2. Powers and Functions
6. Either party may avail the services of counsel. Theres a right to subpoena and
subpoena duces tecum.
a. hear and decide administrative cases involving officers and employees of the
civil service
7. The investigation only for purposes of ascertaining the truth and without
necessarily adhering to technical rules. The investigation is to be conducted by the
disciplining authority.
b. hear and decide cases brought by officers and employees who are aggrieved
by the determination of the authorities involving personnel actions and violations
of the merit system
8. Appeals, where allowable, be made within 15 days from receipt of decision unless
petition for reconsideration is seasonably filed (to be decided within 15 days). Notice
of appeal filed with disciplining authority, which shall forward records of the case with
notice of appeal to appellate authority, within 15 days. Notice of appeal shall state
date of decision appeal, date of receipt, grounds relied upon.
exclusive but the Commission, as the final arbiter on any matter concerning personnel
action in the government, is empowered by law to review the decisions of the Board.
Preventive suspension.
1. Kinds
a. Pending investigation
b. Pending appeal if penalty is suspension or dismissal, and after review,
respondent is exonerated
2. Preventive suspension pending investigation charge against official involves
dishonesty, oppression or grave misconduct, neglect of duty, or reasons to believe
that respondent is guilty of the charges which would warrant his removal from service.
Designation of a replacement is not a requirement for preventive suspension
a. purpose of suspension prevent the officer from using his position and the
powers and prerogatives of his office to intimidate or in any way influence a
potential witness or destroy or tamper records, immaterial that no evidence to
prove that respondent may use influence on witnesses or tamper with records. It
is sufficient that there exists the possibility.
b. It is not violative of the constitution because it is not a penalty and the
suspended officer/employee remains entitled to the presumption of innocence
until his culpability is established. Not being a penalty, the period during which
one is under preventive suspension is not considered part of the actual penalty of
suspension
c. If the investigation is not finished and decision not rendered within proper time
automatic reinstatement; if found innocent of the charges reinstated
3. The right to compensation where employee is exonerated
8. In the case of the PNP the suspension from office charged with a grave offense
where penalty is 6 years and 1 day or more, which will last until termination of the
case. Suspension cannot be terminated before termination of the case
c. Despite the fact that officer is meted out a reprimand (which is the first offense
punishable in violations of office rules), he should be given back his salaries
during suspension
4. Preventive suspension pending appeal entitled to compensation for the period of
the appeal if found innocent
a. preventive suspension pending appeal is punitive although considered illegal if
respondent is exonerated. He must be reinstated with full pay for the period of
10. In the case of presidential appointees and other elective officials If initially
justified at first may later raise due process questions if extended for an unreasonable
length of time. This principle applies with greater force to elective officials.
11. Where suspension imposed by the Ombudsman Ombudsman or his deputy
may suspend any officer or employee pending an investigation and the preventive
suspension shall continue until the case is terminated but should not be more that 6
months, without pay, except when delay due to the fault of the respondent. Reason is
to emphasize and implement the authority of the Ombudsmans Office as mandated
by the Constitution.
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12. Prior notice and hearing not required as preventive suspension is not a penalty
but only a preliminary step in an administrative investigation
13. Members of Congress covered by RA 3019 Order of suspension prescribed by
RA 3019 is distinct from the power of Congress to discipline its own ranks (Sec 16 (3)
Article 6). The power of congress to discipline members is a punitive measure
imposed upon determination by Congress upon an erring member. RA 3019 talks
about a preliminary, preventive measure imposed for misbehavior of a respondent as
a member of congress.
Removal and Suspension distinguished.
1. As to duration the difference between the power to remove and the power to
suspend is only one of degree. Suspension is qualified expulsion and whether its
termed suspension or expulsion, it constitutes either permanent or temporary
disenfranchisement. When the suspension of an officer continues until final
disposition of a criminal prosecution, it becomes a virtual removal.
2. As to nature preventive suspension during the period of an administrative
investigation is not a penalty in itself
3. As to time of imposition while preventive suspension is not in a nature of a
penalty, removal is the penalty, which may only be meted upon him at the termination
of the investigation or final disposition of the case
Schedule of administrative penalties.
A. Penalties for Grave Offenses
1. Dismissal
2.
dishonesty,
gross neglect of duty
grave misconduct
being notoriously undesirable
conviction of a crime involving moral turpitude
falsification of official document
physical or mental disability due to vicious habits
engaging in partisan politics when holding non-political office
receiving gifts for personal use, given by someone in the hopes of receiving
a favor in return
contracting loans of money or property from persons with whom office of
official has business relations
soliciting or accepting gifts or anything of monetary value, which may affect
functions of his office
disloyalty to the country and the people
oppression
disgraceful and immoral conduct
inefficiency and incompetence in performing official duties
frequent unauthorized absences or tardiness
refusal to perform official duty
gross insubordination
conduct grossly prejudicial to the best interest of the service
indirectly or directly having financial and material interest (pecuniary or
proprietary interest by which a person will gain or lose something) in any
transaction requiring approval of office
employment, controlling, owning etc in a private enterprise regulated or
licensed by his office unless expressly allowed by law
practice of profession unless authorized by the constitution
disclosing or misusing confidential information to further private interest or
give undue advantage to anyone
obtain or use any statement filed for purpose contrary to morals, public
policy, etc other than for information dissemination to the general public
neglect of duty
discourtesy
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The Sandiganbayan.
1. Cases subject to its jurisdiction (exclusive original)
a. RA 3019 and RA 1379
b. crimes under Title VIII of RPC (ex. Bribery, malversation of public funds)
c. Offenses or felonies in relation to office where the penalty is higher than
prision correccional or imprisonment of 6 years or fine of 6000
d. civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14,
14-a issused in 1986
By Impeachment.
1. Impeachable officials- President, Vice President, Members of the Supreme Court,
Members of the Constitutional Commissions and the Ombudsman
Note: An impeachable officer who is a member of the BAR cannot be disbarred
without first being impeached
2. Power to initiate and to try impeachment cases- it belongs to the House of
Representatives to initiate all cases of impeachment while the Senate sits as court for
the trial of impeachment cases. The judgment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines
3. Jurisdiction of ordinary courts none of the accused on salary grade 27, exclusive
original jurisdiction of RTC, MeTC, MTC, MCTC.
In the absence of allegation that offense committed in relation to official duty, must be
tried in ordinary courts. Jurisdiction of the Sandiganbayan is the specific actual
allegation in the Information that indicates the close intimacy between the discharge
of the accuseds official duties and the commission of the offense charged.
By abolition of office.
1. Authority with power to abolish- as a general rule, Congress may abolish any office
it creates. The power may be exercised by the President or by local governments
when said power has been delegated to them
2. Abolition of office even during term of incumbent- the power to abolish may be
exercised at any time and even while the office is occupied by a duly elected or
appointed incumbent for there is no obligation on Congress or the people to continue
a useless office.
implying that the post subsists, and one is merely separated therefrom
Abolition doesnt involve removal; after abolition there is no occupant. No tenure to
a non-existent office as the right disappeared with the abolished office.
pardoned may apply for reappointment to the office which was forfeited by reason of
his conviction and undergo the usual procedure required for a new appointment
a. A pardon of a public officer merely removes the disqualification from holding
public employment but it cannot go beyond that as public office is public trust
b. A pardon doesnt extinguish the civil liability of the grantee arising from the
crime he has been convicted of
By recall.
An elective official may be removed at any time during his term by the vote of the
people at an election called for such purpose or at a general election
Purpose and nature of the power of recall.
3. Requisites of valid abolition: in good faith, not for personal or political reasons or to
circumvent incumbents security of tenure, not implemented in violation of law.
1. Effective speedy remedy for removal- speedy remedy for the removal of an official
who isnt giving satisfactory service to the public
By conviction of a crime.
2. Initiation of the recall process
When the penalties (perpetual or temporary absolute disqualification or perpetual or
temporary special disqualification) are imposed upon conviction, termination of official
relations results as one of the effects of said penalties under RPC is the deprivation of
the public office or employment which the offender may have held, even if conferred
by popular election. It necessarily vacates the public office held by the offender;
conversely, reinstatement should follow acquittal.
What constitutes conviction.
Conviction means conviction in trial court. It contemplates a court finding of guilt
beyond reasonable doubt by a judgment upholding and implementing such finding.
There must not only be an adjudication of guilt, but in addition, a judgment whether it
imposes a sentence or suspends sentence. In administrative cases, substantial
evidence is the rule.
Effects of pardon.
1. If granted after conviction, it frees the individual from all the penalties and legal
disabilities and restores him to all civil rights. A pardon doesnt ipso facto restore a
convicted felon to public office
i. A written petition shall be filed with the Comelec through its office in the
local government unit concerned. The Comelec shall cause the publication
of the petition for a period not less than 10 days nor more than 20 days for
the purpose of verifying the authenticity of the petition
2. Such pardon restores his eligibility for appointment to that office. The person
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