Concept of The Public Office: Law On Public Officers Reviewer

CHAPTER 1
CONCEPT OF THE PUBLIC

OFFICE
LAW OF PUBLIC OFFICERS
deals with public office, its creation,
modification and dissolution, as well as the
eligibility of public officers, the manner of
their election or appointment and
assumption of office, their rights, duties,
powers, inhibitions and liabilities, and the
modes of terminating their official
relations.
Officer person whose duties involve the
exercise of discretion in the performance
of functions of the government
Elements of Public Office
1. Created by law or by authority of
law
2. Possess a delegation of a portion of
the sovereign powers of the
government to be exercised for the
benefit of the public
3. Powers are defined by the
legislature or through legislative
authority
4. Duties be performed independently
and without control of a superior
power other than the law
5. With permanence and continuity
Sources of Public Office (Creation)
1. Constitution (Office of the
President, Legislature, Supreme
Court)
2. Statutes (SEC, local government
offices)
3. Authority of law
Characteristics of public office
1. A public trust. It must be
discharged not for his own personal
benefit but for the public.
2. Not a hereditable possession. It
must be relinquished upon
expiration of term.
3. Not a property and is outside the
commerce of man. It cannot be
subject of contract.
4. Not protected by the due process
clause
CHAPTER 2
REQUIREMENTS FOR PUBLIC
OFFICE
Selection for Public Office
1. Appointment choice of the
public functionaries is made by the
particular officer designated by the
Constitution or the law.
2. Election choice is made by the

enfranchised citizenry through the
exercise of their suffrages.
Who can be appointed by the
President under the Constitution?
(Nos. 1-4 requires confirmation)
1. Heads of the executive
departments
2. Ambassadors, other public
ministers and consuls
3. Officers of the armed forces from
the rank of colonel or naval captain
4. Other officers whose appointments
are vested in him by the
Constitution
5. Other officers of the government
whose appointments are not
provided for by law
6. Those whom he may be authorized
by law to appoint
APPOINTMENT
act of designation by the
appointing officer, body or board,
to whom that power has been
delegated, of the individual who is
to exercise the functions of a given
office.
- Connotes permanency
- Results in security of tenure
- Executive in nature. The power of
appointment is vested by the
Constitution in the President.
- Requires acceptance by the
appointee to make it complete
DESIGNATION mere imposition of new
duties on the officer to be
performed by him in a special
manner.
- Temporariness
- Does not entitle the person
designated to security of tenure as
he occupies the position only in an
acting capacity
- Legislative in nature
Doctrine of qualified agency the acts
of the secretaries of such departments,
performed and promulgated in the regular
course of business are, unless disapproved
by the Chief Executive, presumptively the
acts of the Chief Executive.
Limitations on the Presidents power
to appoint
1. Confirmation by the legislature
2. Spouse and relatives by
consanguinity or affinity within the
4th civil degree
3. No appointments within 2 months
before the next presidential
election
4. Appointees must possess required
qualifications
1 | L a w o n P u b l i c O ffi c e r s R e v i e w e r
When the appointee is qualified and all

other legal requirements are satisfied, the
Civil Service Commission (CSC) has no
choice but to attest to the appointment in
accordance with the law. CSC is not
empowered to determine the kind of
appointment extended by the appointing
officer. CSC is only limited to approving or
reviewing the appointment, and in
determining whether or not the appointee
possess the qualifications and requisite or
eligibility.
Presidential Appointees: Positions in
Career Executive Service (Undersecretary,
Regional Director)
Appointed by Ombudsman: position in
Graft Investigation Officer
Can an individual be compelled to
accept an appointive office?
YES, if it is in connection with the
defense of State.
ELECTION mode of filling a public office,
by which the enfranchised citizenry
is able to participate directly in the
conduct of the government,
through the selection by them of
the functionaries who will represent
then therein.
VACANCY when there is no person
lawfully authorized to assume and
exercise at present the duties of the
office.
1. Original office is created and no one
has as yet been chosen to fill it.
2. Constructive incumbent has no legal
right to the office and may be legally
replaced by another.
3. Accidental incumbent is separated by
resignation, death, removal or
abandonment.
4. Absolute when the terms has expired
and no successor has legally qualified
to replace him.
QUALIFICATION
1. Disqualification
-Lack of disqualification is itself a
qualification
-Pardon based on innocence, ipso facto,
restores him to office. But pardon not
based on innocence requires reapplication
-Forbidden office. No Senator or member of
the HoR be appointed to any office
which may have been created or the
emoluments thereof increased during
the term for which he was elected.
-A defeated candidate may not be
appointed or re-appointed to any office
in the Government or any GOCC within
one year from the date of the election.
-No person may be appointed to the CSC is

he was candidate in the lection
immediately preceding his appointment
-Incompatible office. The President, VPres.,
the members of the Cabinet, and their
deputies shall not, unless otherwise
provided in the Constitution hold any
other office or employment during their
tenure.
-No elective official shall be eligible for
appointment or designation in any
capacity during his tenure
-Candidate who is a green card holder must
have waived his status as a permanent
resident of immigrant of a foreign
country
-Natural born citizens who have been
naturalized as citizens of a foreign
country may re-acquire Philippine
citizenship upon taking a prescribed
oath of allegiance to RP
2. Who may prescribe qualifications
-Constitution
-Statute
-Qualifications may not be changed by
private agreement
3. Limitations on the power of the
legislature to prescribe
qualifications
a. Legislature may not reduce or increase
the qualifications prescribed in an
exclusive manner by the Constitution
b. Legislature may prescribe only general
qualifications
c. Qualifications must be relevant to the
office which they are prescribed
Qualifications are continuing requirements
and so must be possessed not only on the
date of selection or assumption but for the
full duration of the officers incumbency.
CHAPTER 3
DE FACTO OFFICERS
De Facto Doctrine
It is not only the acts of the lawful
officer that are regarded as valid
and binding. Insofar as third persons
are concerned, legal effect is also
accorded to certain acts of a person
whose title is presumptively
legitimate or has no valid title to the
position he holds.
Rationale
Members of the public dealing with

government are not supposed to
verify credentials of every
functionary exercising public
functions. They have the right to
presume he is the officer he

assumes to be.
the legal
qualifications for
the
office in
question;
De Facto Officer
Chief Justice Butler one whose

acts, though not those of a lawful
officer, the law upon principles of
policy and justice, will hold valid so
far as they involve the interests of
the public and third persons, where
the duties were exercised:
(3) must be
lawfully
chosen to
such
office;
(1) Without a known appointment

or election, but under such
circumstances of reputation or
acquiescence as were calculated to
induce people, without inquiry, to
submit to or invoke his action,
supposing him to the be the officer
he assumed to be; or
(2) Under color of a known and
valid appointment or election, but
where the officer has failed to
conform
to
some
precedent
requirement or condition (e.g.,
taking an oath or giving a bond);
(4) must
have qualified
himself to
perform the
duties of such
office
according to
the mode
prescribed by
law.
Title
(3) Under color of a known election

or appointment, void because:
(a) the officer was not eligible;
(b) there was a want of power in
the electing or appointing body;
(c) there was a defect or
irregularity in its exercise;
such ineligibility, want of power, or
defect being unknown to the
public.
Possessio
n of
Office
How
ousted
(4) Under color of an election or an

appointment by or pursuant to a
public, unconstitutional law, before
the same is adjudged to be such
(State v. Carroll).
Validity
of official
acts
DISTINCTIONS
De Jure vs. De Facto
De Jure
Officer
De Facto
Officer
Requisite
s
(1)
Existenc
e of a de
jure office;
(2) must
possess
(1) De jure
office;
Rule on
Compensation
(2) Color of
right or
Has lawful
title to the
office
Has not been
able to take
possession of
it or has been
ousted from it
Cannot be
ousted except
for justifiable
reasons
Valid, subject
to exceptions
(e.g., they
were done
beyond the
scope of his
authority,
etc.)
Entitled to
compensation
as a matter of
right;
The principle
of "no work,
no pay" is not
applicable to
him.
general
acquiesc
ence by
the
public;
(3) Actual
physical
possessio
n of the
office in
good
faith
Has
imperfect or
colorable
title only
Actually
possesses
the office
Only by a
direct
proceeding
(quo
warranto);
not
collaterally
Valid as to
the public
until such
time as his
title to the
office is
adjudged
insufficient.
Entitled to
receive
compensatio
n only during
the time
when no de
jure officer
claims the
office; He
renders
service in
good faith.
Examples of De Facto Officers:

1. a person who has been declared winner
by the court or by the COMELEC in an
election protest and assumed office based
thereon and who has thereafter been
adjudged not entitled to the office is a de
facto officer because he exercised the
duties of the elective office under color of
election thereto and is thus entitled to the
emoluments of the office; not a usurper
because a usurper is one who undertakes
to act officially without any color or right
2. a judge who resigned in his position is
considered de facto officer until he is
formally notified of the acceptance of his
resignation, for a resignation to be
effective must be accepted by the officer
authorized to accept it
3. a person appointed to a position during
the period that the incumbent, who was
removed therefrom, was litigating his
action for reinstatement, may be
considered a de facto officer
4. a person who acts and discharges the
office pursuant to an appointment w/c
requires approval by another officer or
office, such as the Civil Service
Commission, is a de facto officer until the
appointment is finally approved or
disapproved if approved, he becomes a
de jure officer; if disapproved, he becomes
an usurper
5. an elected officer who has been
proclaimed and has assumed office but
was later on ousted in an election protest
or quo warranto is a de facto officer during
the time he held the office
Usurper
one who usurps an office and
undertakes
to
act
officially
without any color of right, as
distinguished from a de facto
officer who exercises the duties of
an office under a color of
appointment or election
Basis of
authority
Validity of
"official"
acts
Rule on
compensa
tion
Color of right
or title to
office
Valid as to
the public
until such
time as his
title to the
office is
adjudged
insufficient
Entitled to
receive
compensatio
n only
during the
time when
no de jure
officer is
declared;
paid only for
actual
services
rendered by
him.
either
actual or
apparent
None. He
has neither
lawful title
nor color of
right or title
to office.
Absolutely
void; they
can be
impeached
at any time
in any
proceeding
(unless and
until he
continues
to act for so
long a time
as to afford
a
presumptio
n of his
right to act)
Not entitled
to
compensati
on at all.
Color of Authority
the possession of an office and

discharging of duties derived from
an
election
or
appointment,
however irregular or informal
Q: Can an intruder / usurper ripen

into a de facto officer?
De Facto vs. Intruder
De Facto
Nature
Officer
under any of
the 4
circumstanc
es discussed
under Part II
(above).
Intruder
One who
takes
possession
of an office
and
undertakes
to act
officially
without any
authority,
A: Yes. With the passage of time, a

presumption may be created in the minds
of the public that the intruder has a right
to act as a public officer.
Q: Is good faith a factor in the
ripening of intruder status into de
facto status?
A: Yes. HOWEVER, it must be noted that
the good faith must be on the part
of the public; not on the part of the
intruder.
EXP: The De Facto officer may

claim or retain salaries IF:
1. He rendered services in GOOD
FAITH
2. There is NO DE JURE OFFICER
claiming the office
Requisites of a De Jure Office

(1) Existence of a de jure office;
(2) Color of right or general acquiescence
by the public;
(3) Actual physical possession of the
office in good faith
Challenge to a De Facto Officer
GR: The incumbency of a de facto

officer
acts
may
not
be
challenged collaterally or in an
action to which he is not a
party but in a direct proceeding
where title to the office will be the
principal issue
REMEDY: Quo warranto

proceedings
1. Existence of a De Jure Office

GR: There is no de facto officer where
there is no de jure office. There is NO
SUCH THING AS A DE FACTO OFFICE.
If the office itself is defective or
void, there is no de facto officer due
to lack of a de jure office.
If only the manner of filling the
office is unconstitutional, holder is
a de facto officer.
2. Color of Title
Derived from reputation or
acquiescence or from an invalid
appointment or election (also
Color of Authority)
Continues as long as the defect in
the appointment or election is
unknown to the public
All official acts are valid for all
legal purposes even after
appointment or election is
disapproved
3. Physical Possession of the Office
Without this requisite, discharge of
powers and duties of the office will
not be possible
Ceases to exist when the office has
been vacated by the de jure officer
or has been abolished
Who may file:

(1) The person who claims to be entitled
to the office;
(2) The Republic of the Philippines,
represented by
(a) the Solicitor-General; or
(b) a public prosecutor.
CHAPTER 4
THE CIVIL SERVICE
Civil Service
Effects of Acts of De Facto Officers
GR: Actsultra viresare not

binding. OnlyThe lawful acts of
a de facto officer are valid as to
third persons and the public
until his title to office is adjudged
insufficient
As to compensation
GR: De Facto officer cannot claim

a salary and other compensation
for services rendered by him and
may be required to pay it back if
he has collected such salary when
de jure officer claims the office.
Provided by: The Constitution

embraces
all
branches,
subdivisions, instrumentalities, and
agencies
of
the
Government,
including government-owned and
controlled corporations with original
charters
with original charters- means
that GOCCs refer to corporations
chartered
by
special
law
as
distinguished from those under the
Corporation Code; its employees are
covered by under the Civil Service,
those GOCCs under the Corporation
Code are governed by the Labor
Code
Members
of
Civil
Service
are
regulated by the following:
Article IX (B) of the Constitution
The Civil Service Decree
The Administrative Code of 1987
pertinent principles under the Law
of Public Officers
The Civil Service Commission
administers the Civil Service

governments
central
personnel
agency designated to set standards
and to enforce the laws and rules
governing the selection, utilization,
training and discipline of civil
servants
composed of a Chairman & Two
Commissioners who shall be:
1. natural-born citizens of the
Philippines
2. at least 35 years of age at the
time of their appointment
3. with proven capacity for public
administration
4. must NOT have been candidates
for any elective position in the
elections
preceding
their
appointment
Chairmen and commissioners are
appointed by the President with the
consent of the Commission on
Appointment for a term of seven
(7) years and may be removed
ONLY by impeachment
Objectives
The Constitution provides that
public office is a public trust. Public
officers and employees must at all
times be accountable to the people,
serve
them
with
utmost
responsibility,
integrity,
loyalty,
efficiency, act with patriotism and
justice, and lead modest lives.
To
insure
and
promote
the
constitutional
mandate
that
appointments in the Civil Service
shall be made according to merit
and fitness
To promote responsiveness and
courtesy in the civil service;
strengthen the merit and rewards
system;
integrate
all
human
resources development programs
for all levels and ranks; and
institutionalize
a
management
climate
conducive
to
public
accountability
Scope
The following are covered by The Civil
Service:
1.
2.
3.
4.
5.
branches
subdivisions
instrumentalities
agencies of the Government
government-owned and controlled
corporations with original charters
e.g.: Duty Free, Phil. Tourism
Authority, Philippine Amusement
and Gaming Corporation
The Civil Service and labor laws and

procedures, whenever applicable
shall be followed in resolutions of

complaints, grievances and cases
involving govt employees
Inter-union and Intra-union conflicts
shall be under original and exclusive
authority of the Bureau of Labor
Relations
Public
charitable
institutions,
although performing public functions
are not government agencies and,
thus, are not covered by the Civil
Service
Classifications of Positions
1. Career Service
2. Non-Career Service
1. CAREER SERVICE - characterized
by:
(1)
entrance based on merit and

fitness to be determined as far as
practicable
by
competitive
examinations, or based on highly
technical qualifications;
(2) opportunity for advancement to
higher career positions; and
(3) security of tenure.
Career Service includes:
1.
Open
Career
positions
for
appointment to which prior qualification in
an appropriate examination is required;
2. Closed Career positions which are
scientific or highly technical in nature;
these include the faculty and academic
staff of state colleges and universities,
and scientific and technical positions in
scientific or research institutions which
shall establish and maintain their own
merit systems;
3. Positions in the Career Executive
Service;
namely,
Undersecretary,
Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional
Director, Assistant Regional Director,
Chief of Department Service and other
officers of equivalent rank as may be
identified by the Career Executive
Service Board, all of whom are
appointed by the President;
4. Career officers, other than those in
the Career Executive Service, who are
appointed by the President, such as
the Foreign Service Officers in the
Department of Foreign Affairs;
5. Commissioned officers and enlisted

men of the Armed Forces which
shall maintain a separate merit
system;
6. Personnel of government-owned or
controlled corporations, whether
performing
governmental
or
proprietary functions, who do not fall
under the non-career service; and
7. Permanent laborers, whether skilled,
semi-skilled, or unskilled.
to undertake a specific work or job,

requiring special or technical skills not
available in the employing agency, to
be accomplished within a specific
period, which in no case shall exceed
one year, and performs or accomplishes
the specific work or job, under his own
responsibility with a minimum of
direction and supervision from the
hiring agency; and
5. Emergency and seasonal personnel
Eligibility
2. NON-CAREER SERVICE characterized by:

(1) entrance on bases other than those of
the usual tests of merit and fitness
utilized for the career service; and
(2) tenure1 which is limited to a period
specified by law, or which is
coterminous
with
that
of
the
appointing authority or subject to his
pleasure, or which is limited to the
duration of a particular project for
which purpose employment was made
Non-Career Service includes:
Appointments
1. Elective officials and their personal

or confidential staff;
2.
3.
4.
Department Heads and other

officials of Cabinet rank who hold
positions at the pleasure of the
President
and
their
personal
or
confidential staff(s);
Chairman
and
members
of
commissions and boards with fixed
terms of office and their personal or
confidential staff;
Must be possessed by an individual

that he may be legally fit or
qualified to be appointed in
government service, subject to
constitutional exceptions
Examinations are taken to acquire
eligibility e.g.: board and bar
examinations
granted to summa cum laude,
magna cum laude and cum laude
graduates of 4-year degree courses
under certain conditions
Once acquired, it may be availed by
the eligible any time
Non-eligible CANNOT be appointed
Made only according to merit and

fitness EXCEPT to positions which
are:
Policy-determining
Primarily confidential
Highly technical
by competitive examination.
May
be
TEMPORARY
or
1. permanent issued to a
person
who
meets
the
requirements for the position to
which he is appointed, including
appropriate eligibility prescribed, in
accordance with the provisions of
laws,
rules
and
standards
promulgated in pursuance thereof;
may serve a probationary period of
6 months and may be dismissed for
unsatisfactory conduct or want of
capacity-appealable
to
the
Commission
Contractual personnel or those

whose employment in the government
is in accordance with a special contract
1The
security of tenure of employees in the career

executive service (except first and second-level
employees in the civil service), pertains only to rank
and not to the office or to the position to which they
may be appointed. Thus, a CESO may be transferred
or reassigned from one position to another without
losing his rank which follows him wherever he is
transferred or reassigned. In fact, a CESO suffers no
diminution of salary even if assigned to a CES
position
with
lower
salary
grade,
as
the
compensation is according to CES rank and not on
the basis of the position or office occupied.
PERMANENT
2. temporary In the absence of

appropriate
eligibles
and
it
becomes necessary in the public
interest to fill a vacancy, a
temporary appointment is issued to
a person who meets all the

requirements for the position to
which he is being appointed except
the
appropriate
civil
service
eligibility: Provided, That such
temporary appointment shall not
exceed twelve (12) months, but the
appointee may be replaced sooner
if a qualified civil service eligible
becomes available;
Temporary
appointees
may
be
terminated anytime even without
cause. They have NO FIXED TENURE
(Abrot v. CA)
Acceptance
of
a
temporary
appointment divests the temporary
appointee of the constitutional
security of tenure even if he is a civil
service eligible (Tolentino v. De
Jesus)
A temporary appointee cannot ask to
be
reinstated
to
his
former
permanent position if his temporary
appointment
is
not
renewed
(Romualdez III v. CSC)
Temporary
appointment
cannot
become automatically permanent
after
the
temporary
appointee
acquires
civil
service
eligibility
(Maturan v. Maglana)
Temporary
Appointment
Issued upon prior
authorization of the
Commission of Civil
Service with the
provisions of Civil
Service Law to a
person who has not
qualified in an
appropriate exam
but otherwise
meets the
requirements for
appointment to a
regular position in
the competitive
service, whenever a
vacancy occurs and
filling thereof is
necessary in the
interest of service
and there is no
appropriate register
of eligibles at the
time of
appointment.
Provisional
Appointment
Given to a nonservice eligible, is
without a definite
tenure and is
dependent upon the
pleasure of the
appointing power
Republic Act 6850 government

employees holding career civil service
positions appointed under provisional or

temporary status who have rendered at
least a total of 7 years of efficient service
may be granted civil service eligibility to
qualify them for permanent appointment
in their positions
Regular
Appointment
Made during the
legislative session
Ad Interim
Appointment
Made during recess
Made only after the

nomination is
confirmed by the
Commission on
Appointments
Once confirmed,
continues until the
end of term of
appointee
Made before
confirmation of the
Commission on
Appointments
Shall cease to be
valid if disapproved
by the Commission
on Appointments or
upon the next
adjournment of
Congress;
Deemed by-passed
through inaction of,
and so disapproved
impliedly by, the
Commission on
Appointments
Note: The purpose of an ad interim

appointment is only to prevent a hiatus in
the discharge of official duties. Otherwise,
immobilization of the public office will
prejudice the people.
EXCEPTIONS
The following positions are excepted from
the
requirement
for
competitive
examinations:
1. Policy determining one charged
with the laying down of principal or
fundamental guidelines or rules; or
formulates a method of action for
government or any of its
subsidiaries
Examples: cabinet member, head of a
department
2. Primarily Confidential denotes
not only confidence in the aptitude
of the appointee for the duties of
the office but primarily close
intimacy which ensures freedom of
intercourse without embarrassment
or freedom from misgivings or
betrayals on confidential matters of
the state; or one declared so by the
President upon recommendation of
the Civil Service Commission
Examples: private secretary, confidential

agent
3. Highly Technical requires the
appointee thereto to possess
technical skill or training in a
superior degree
determined by the appointing authority

and approved by the Commission.
Nepotism
Examples: City Legal Officer, Scientist

NOTE: It is the nature of the
position which determines whether
a position is policy determining,
primarily confidential or highly
Promotion
Movement from one position to

another with increase in duties and
responsibilities as authorized by law
and usually accompanied by an
increase in pay
May be from one department or
agency to another, or from one
organizational unit to another in the
same department or agency
Indispensable
element:
advancement from one position to
another or an upward vertical
movement of the employees rank
or position
Increase in salary is only incidental
but never determinative of whether
promotion is bestowed
Next In Rank Rule
The person next in rank shall be

given preference in promotion
when the position immediately
above his is vacated.
The
appointing authority
still
exercises discretion and is not
bound by this rule, although he is
required to specify the special
reason/s for not appointing the
officer next-in-rank. This means
that the one who is next-in-rank is
given
only
preferential
consideration for promotion; but it
does not follow that he alone and
no one else can be appointed
Remedy of a by-passed qualified
next-in-rank: appeal initially to the
department head
Qualified next-in-rank refers to an

employee appointed on a permanent basis
to a position previously determined to be
next-in-rank to the vacancy proposed to
be filled and who meets the requisites for
appointment
thereto
as
previously
Favoritism toward relatives by the

appointing authority; prohibited
Prohibited Appointments:
All appointments in the National,
provincial, city and municipal
governments or in any branch or
instrumentality thereof, including
government-owned
or
noncompetitive service, made in favor
of a relative of:
1. the appointing
recommending authority
2. the chief of the bureau or
office
3. the persons exercising
immediately supervision
over him
Relations covered: extend to the
third degree of consanguinity or
affinity.
The following however, are exempt from

the nepotism rule:
persons employed in a confidential
capacity
teachers
physicians
members of the Armed Forces of
the Philippines
In each of these particular instances, a
full report of the appointment is
required to be made to the Civil
Services Commission.
Prohibition
to
President:
The
constitution provides that the spouse and
relatives by consanguinity or affinity
within the fourth civil degree of the
President shall not during his tenure be
appointed
as
Members
of
the
Constitutional Commissions, or to the
Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned
or
controlled
corporations and their subsidiaries.
Purpose
of
Nepotism:
Prohibition
against
To ensure that all appointments

and other personnel actions in the
civil service should be based on
merit and fitness and should never
depend on how close or intimate
an appointee is to the appointing
power
To take out of the discretion of the
appointing
or
recommending
authority the matter of appointing

or recommending for appointment
of a relative
When unconsented,
removal
Note: Charges of nepotism must be duly

proved.
Transfer
Other Personnel Actions
All appointments in the career

service shall be made ONLY
according to merit and fitness to
be
determined,
as
far
as
practicable,
by
competitive
examinations
A non-eligible cannot be appointed
to any position in the civil service
whenever there is a civil service
eligible actually available and
ready to accept appointment
Personnel Action any act denoting

the
movement
or
progress
of
personnel in the civil service, including
appointment through:
(1) Certification
(2) Promotion
(3) Transfer
(4) Reinstatement
(5) Reemployment
(6) Detail
(7) Reassignment
(8) Demotion
(9) Separation
All of which shall be in accordance with
the rules and regulations of the Civil
Service Commission.
1. Certification
issued to a person who has been
selected from a list of qualified persons
certified by the Commission from an
appropriate register of eligibles, and
who meets all the other requirements
of the position
Movement from
one position to
another which is
equivalent in
rank, level or
salary without
break in service
Lateral
movement
-
Promotion
Advancement
from one position
to another with an
increase in duties
and
responsibilities as
authorized by law,
usually
accompanied by
an increase in
salary
Scalar ascent
Illegal transfer is tantamount to

removal without cause EXCEPT
when an officer is appointed at
large in which case he may be
assigned or transferred to any
station, as he is not entitled to stay
permanently at any specific station
Request for transfer must be such

that there is an intention to
surrender a permanent office; it
denotes relinquishment of an office
in exchange for another office.
4. Reinstatement
-
3. Transfer
movement from one position to
another which is of equivalent
rank, level or salary without break
in service
not considered disciplinary when
made in the interest of public
service
Remedy if employee believes there
is no justification for the transfer:
appeal to the CSC
May be from one department to
another in the same department or
agency
Movement from non- career to
career service is NOT a transfer
to
Example: Regional Directors
2. Promotion (see previous page ^_^)
results
conferred to a person who has

been permanently appointed to a
position in the career service and
who has through no delinquency or
misconduct,
been
separated
therefrom
technically the issuance of a new
appointment which is essentially
discretionary
and
cannot
be
controlled not even by the Court as
long as it is exercised properly by
the appointing authority (Gloria v.
de Guzman)
may not be asked for by an officer
who was merely designated, a
designation not being a permanent
appointment (Gloria v. de Guzman)
a convicted public official who has
been
pardoned
is
NOT
automatically
entitled
to
reinstatement. He must re-apply.

(Monsanto v. Factoran)2
EXP
- a pardoned elementary school
principal, is after her pardon, for
considerations of justice and
equity entitled to or eligible to the
same position and, and not to the
lower classroom teacher, there
being
no
diminution
in
his
rank(Sabello v. DECS)
- If pardon is based on the innocence
of the individual or if executive
clemency is granted to cover the
administrative charges for the
same acts and he was acquitted for
having been found not to have
committed the offense imputed to
him, he is restored to his office ipso
facto
upon issuance
of the
clemency.
7. Reassignment
-
names of persons who have

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

one agency to another without the
issuance of an appointment, and
shall be allowed only for a limited
period in the case of employees
occupying professional, technical
and scientific positions
temporary in nature (Rep. v. CA)
2 For petitioner Monsanto, this is the bottom line: the

absolute disqualification or ineligibility from public
office forms part of the punishment prescribed by the
Revised Penal Code for estafa thru falsification of
public documents. It is clear from the authorities
referred to that when her guilt and punishment were
expunged by her pardon, this particular disability
was likewise removed. Thus, petitioner may apply for
reappointment to the office which was forfeited by
reason of her conviction. And in considering her
qualifications and suitability for the public post, the
facts constituting her offense must be and should be
evaluated and taken into account to determine
ultimately whether she can once again be entrusted
with public funds. Stated differently, the pardon
granted to petitioner has resulted in removing her
disqualification from holding public employment but
it cannot go beyond that. To regain her former post
as assistant city treasurer, she must reapply and
undergo the usual procedure required for a new
appointment.
an employee may be reassigned

from one organizational unit to
another in the same agency,
provided that such reassignment
shall not involve a reduction in
rank, status or salary
If without a definite period or
duration, violative of the security of
tenure of a government employee
Tantamount
to
a
floating
assignment if there is diminution in
rank
8. Demotion
-
5. Reemployment
Power to control impliedly includes

the power to detail (Borres v.
Canonoy)
movement from one position to

another which involves diminution
in duties, responsibilities, status or
rank which may or may not involve
reduction in salary
If without cause, tantamount to
removal
Personnel Development
Purpose: To improve the attitude and
competence of the civil service.
The Career and Personnel Development
Plan shall contain the following:
merit promotion
performance evaluation
in-service
training
(including
foreign & local scholarships and
training grants)
job rotation
suggestions and awards system
other plans for employees health,
welfare, counselling, recreation and
similar services
-Employees have the right to present their
complaints and grievances to the
management which shall be resolved at
the lowest possible level in the
department or agency. They shall have
the right to appeal to higher authorities.
Each department or agency shall
promulgate
rules
and
regulations
governing
expeditious,
fair
and
equitable
adjustment
of
such
complaints and grievances pursuant to
the policies of the CSC.
Discipline
-
Officers and employees in the Civil

Service including those appointed
to the policy-determining, primarily

confidential and highly technical
positions, enjoy security of tenure
and may not be suspended or
dismissed (except for just cause)
but may be disciplined.
Discipline shall be accorded to
those who violate public trust and
fail
to
serve
with
utmost
responsibility, integrity, loyalty and
efficiency and act with patriotism
and justice and live modest lives.
A. Grounds for Discipline

(1) dishonesty
(2) oppression
(3) neglect of duty
(4) misconduct
(5) disgraceful and immoral conduct
(6) being notoriously undesirable
(7) discourtesy in the course of
official duties
(8) inefficiency and incompetence in
the performance of official duties
(9) conviction of a crime involving
moral turpitude
(10)
falsification
of
official
documents
(11)
habitual drunkenness
(12)
gambling
(13)
refusal to perform official
duty or render overtime service
(14)
physical
or
mental
incapacity due to immoral or
vicious habits
(15)
wilful refusal to pay just
debts
(16)
wilful failure to pay taxes
due to the government
(17) habitual tardiness
Incompetence in the Performance of

Duty
-
intentionally
making
a
false
statement in any material fact, or
practicing or attempting to practice
any deception or fraud in securing
his
examination,
registration,
appointment or promotion.
understood to imply a disposition
to lie, cheat, deceive or defraud,
untrustworthiness
or
lack
of
integrity
Misconduct in Office
-
may either be
(1) simple misconduct; or
(2) grave misconduct
that
which
affects
ones
performance of his duties as an
officer and not such only as affects
his character as a private individual
any unlawful conduct on the part of
the person concerned
generally
means
wrongful,
improper or unlawful conduct
the manifest lack of adequate

ability
and
fitness
for
the
satisfactory performance of official
duties by reason of the officers
vices or vicious habits
has reference to any physical moral
or intellectual quality, the lack of
which substantially incapacitates
one to perform the duties of an
office
Equivalent to inefficiency
Determined after a probation
period of 6 months
Gross negligence
-
Dishonesty
-
motivated
by
premeditated,
obstinate or intentional purpose
does
not
necessarily
imply
corruption or criminal intent
Grave misconduct : acts so
corrupt or inspired by an intention
to violate the law, or constitute a
flagrant disregard of well-known
rules; It is a transgression of some
established definite rule of action,
a forbidden act, a dereliction of
duty, wilful in character and implies
wrongful intent and not a mere
error in judgment.
negligence characterized by the

want of even slight care, acting or
omitting to act in a situation where
there is a duty to act, not
inadvertently but wilfully and
intentionally, with a conscious
indifference to consequences in so
far as other persons may be
affected
Note: Causes which warrant dismissal of a

civil servant need not necessarily be workrelated or committed in the course of the
performance of duty by the person
charged.
B. Jurisdiction
-
granted to the Secretaries and

heads
of
agencies
and
instrumentalities, provinces, cities
and municipalities to investigate
and decide matters involving
disciplinary action against officers
and employees
decisions are final in case the
penalty imposed is suspension for
not more than thirty (30) days or
fine in an amount not exceeding
thirty (30) days salary
decisions are initially appealed to
the department and finally to the
Commission and pending appeal

shall be executory EXCEPT when
the penalty is removal.
The CSC decides upon appeal all
administrative disciplinary cases
involving the imposition of a
penalty of suspension for more
than thirty (30) days or fine in an
amount exceeding thirty (30) days
salary, demotion in rank or salary
or transfer, removal or dismissal
from office
The CSC is the sole arbiter of
controversies relating to civil
service. Disciplinary cases and
cases involving personnel actions
affecting employees in the civil
service are under its exclusive
jurisdiction.
The Sandiganbayan shall exercise
exclusive
jurisdiction
over
Presidents, directors or trustees,
or managers of government-owned
or controlled corporations, state
universities
or
educational
institutions or foundations (People
v. Sandiganbayan)
C. Procedure
-
A complaint against a civil

service official shall not be
given in due course unless it is
in writing and sworn to by
the complainant
EXP: in cases initiated by the
proper disciplining authority,
complaint need not be under
oath
an anonymous letter is not a
complaint but the CSC may act
on the same
A
complaint
may
be
commenced even against a
subordinate officer or employee
and filed at any time with the
CSC
The withdrawal of the complaint
does not result to its outright
dismissal or discharge
A
CounterAffidavit/Comment is required
of the respondent 5 days after
receipt of a formal charge and
preliminary investigation shall
be held 5 days after receipt of
complaint. Failure to submit
counter-affidavit shall be a
waiver of said right
If a prima facie case is
established,
a
formal
investigation shall follow even
without request of respondent.
Fifteen
(15)
days
after
conclusion
of
the
formal
investigation
a
report
containing the material facts of

the
investigation
shall
be
submitted to the Hearing Office.
decisions rendered by heads of
agencies for a penalty of
suspension for not more than
thirty (30) days or fine in an
amount not exceeding thirty
(30) days salary
shall be
FINAL and EXECUTORY
However, if the penalty is
suspension for more than thirty
(30) days or fine in an amount
exceeding thirty (30) days
salary it shall only be FINAL
after the lapse of 15 days,
the period for filing a motion for
reconsideration or appeal.
Only one (1) M.R. is allowed
on the following grounds:
(1) new evidence has been
discovered
which
materially
affects
the
decision rendered
(2) the
decision
is
not
supported
by
the
evidence on record
(3) errors
of
law
or
irregularities have been
committed prejudicial to
the
interest
of
the
movant.
D. Preventive Suspension
Section 19, Rule II of the Uniform
Rules on Administrative Cases in
the Civil Service empowers the
proper disciplining authority to issue
upon
(1) petition of the complainant; or
(2) motu propio
an order of preventive suspension to
any subordinate officer or employee
pending investigation if the charge
involves:
a.
b.
c.
d.
e.
dishonesty
oppression
grave misconduct
neglect in the performance of duty
if there are reasons to believe that
the respondent is guilty of the
charges which would warrant his
removal from office
-Preventive Suspension may be issued to

temporarily remove the respondent
from the scene of misfeasance or
malfeasance to preclude the possibility
of exerting undue influence or
pressure on the witness against him
or
tampering
of
documentary
evidence on file with his Office. It is
NOT a final determination of guilt.
It does not require prior notice and

hearing (not a violation of due process)
since it is not a penalty but a preliminary
step.
Two kinds of preventive
suspension:
(1) preventive suspension pending
investigation (Sec. 51, Civil Service Law,
EO No. 292)
(2) preventive suspension pending
appeal if the penalty imposed by the
disciplining authority is suspension or
dismissal
and,
after
review,
the
respondent is exonerated (Section 47, par.
4, Civil Service Law, EO No. 292).
Section 63 of the Local Government
Code of 1991
single preventive suspension: shall
not exceed sixty (60) days
several administrative cases: shall
not exceed ninety (90) days
within a single year on the same
grounds existing and known at the
time of the first suspension
E. Decision
If charges are not proved by

preponderance of evidence, case
shall
be
dismissed
and
the
respondent reinstated with back
salaries if preventively suspended.
- It is not enough that an employee is
exonerated of the charges against him;
his suspension must likewise be
unjustified. On the other hand,
employees
who
are
considered
preventively
suspended
pending
appeal are entitled to payment of their
salaries if they are subsequently found
innocent
(and
such
suspension
exceeds 90 days) (Gloria vs. CA).
- Heirs are NOT entitled to salaries of
an
accused
who
died
pending
resolution of the criminal case against
him had his preventive suspension
been lifted as a consequence of
exoneration
because
his
death
resulted from dismissal of charges and
not his acquittal(Malanyaon v. Lising).
Right to Self-Organization
F. Appeal
-perfected...
within fifteen (15) days from
receipt of the decision upon
the filing of a notice of
appeal and
the submission of three (3)

copies
of
the
appeal
memorandum
Proof of service of the
appeal memorandum upon
the disciplining office
Proof of payment of the
appeal fee
Certification against forum
shopping
- Only one (1) petition for
reconsideration is allowed on
the following grounds:
(1) new evidence has been
discovered
which
materially
affects
the
decision rendered
(2) the
decision
is
not
supported
by
the
evidence on record
(3) errors
of
law
or
irregularities have been
committed prejudicial to
the
interest
of
the
movant.
Failure to perfect an appeal within
the reglementary period (15 days)
renders the judgment FINAL and
EXECUTORY.
Supreme Court abandoned its prior
decisions holding that Civil Service
Law does not contemplate a review
of decisions exonerating officers or
employees from administrative
charges. Hence, as an aggrieved
party, CSC may appeal the decision
of CA to the SC (Supreme Court v.
Dacoycoy).
provided by: the Constitution

includes those employed in the
public and private sectors to form
unions, associations, or societies
for purposes not contrary to law
and shall not be abridged
Government
employees
employment shall not be subject to
the condition that they shall not
join or shall relinquish their
membership
in
employees
organizations.
Civil servants are allowed to
organize but employees in the
civil service may not resort to
strikes,
walkouts
and
other
temporary work stoppages, like
workers in the private sector, to
pressure
the
Government
to
accede to their demands x x x
(Alliance of Government Workers v.

Minister or Labor and Employment)
Employees of GOCCs without
original
charters
may
avail
themselves of the right to selforganization under the Labor Code.
Those employed in GOCCs with
original charters may do so on the
basis
of
civil
service
laws,
particularly EO 180.
Authority of the
where exercised
public
officer;
GR: The public officer may exercise his

powers
ONLY
WITHIN
THE
TERRITORIAL
LIMITS
OF
HIS
AUTHORITY and any act performed
outside that area will be null and void.4

XPNs:
(1) National Officers
a member of the Cabinet
President
of
the
Philippines
(2) Those who discharge their
functions in a different
state.
Diplomats
Delegates
(3) Certain acts of judges
Issuance of warrants of
arrest which may be
served anywhere in the
Philippines.
(4) Certain acts of local officers
Mayor
transacting
official business in a
different municipality of
city on behalf of his
municipality.5
Authority of the public officer;

when exercised ONLY DURING HIS
TERM OF OFFICE
GR: Any act performed by the
public officer after his term of
office will be considered invalid.
XPNs:
(1) Where the public officer may be
regarded as a de facto officer.
GILLERA VS. FERNANDEZ6
AYTONA VS. CASTILLO7
Note: An appointment made by the
President to fill an anticipated vacancy
CHAPTER 5
AUTHORITY OF THE PUBLIC
OFFICER
Commissioner of Customs Tariff and Customs Code

of 1982
Bureaud Directors Administrative Code of 1987 or
laws creating their respective offices
Authority of the public officer;

where derived FROM THE PEOPLE3
4
This is in conformity with the constitutional

principle that the Philippines is a republican state.
Sovereignty resides in the people and all government
authority emanates from them. ART. II, Sec. 1
Illustration:
Powers of the President ART. VII
Legislature ART. VI
Supreme Court ART. VIII
Constitutional Commissions ART. IX
Powers of local officials LGC of 1991 or by special
charters
Examples:a judge cannot act outside his

judicial district
a mayor does not have jurisdiction outside
his municipality
It must be noted that despite his physical

presence, he could not be temporarily succeeded by
the vice-mayor.
occurring after his term will be

invalid even if the appointment itself
was made during his term.
(2) Where an officer is authorized
to hold over.
Note:
The acts of an officer who is
authorized to hold over continue
to be valid until his successor is
duly chosen and subsequently
qualifies.
Such an officer is regarded as de
jure and all his acts have the
same legal efficacy as those
An appointment extended by the President shortly

before his term ended is valid provided it is a result
of his deliberate action considering the qualifications
and exigencies of the service.
Facts:Aytona one was of those appointed by

outgoing president Garcia during the last minute of
his term. Aytona was appointed as the ad interim
governor of the Central Bank. When Macapagal took
his office as the next president he issued Order No. 2
which recalled Aytonas position and at the same
time he appointed Castillo as the new governor of
the Central Bank. Aytona then filed a quo warranto
proceeding claiming that he is qualified to remain as
the Central Bank governor and that he was validly
appointed by the ex-president. Macapagal averred
that
the
ex-presidents
appointments
were
scandalous, irregular, hurriedly done, contrary to law
and the spirit of which, and it was an attempt to
subvert the incoming presidency or administration.
Issue:
Whether or not Aytona should remain in his post.
performed by him before the

expiration of his fixed term.
Authority of a public officer; how
exercised STRICTLY CONSTRUED
Why
strict
construction8?
A
representative
government
is
a
government of limited powers. Any
doubt on this matter shall be resolved in
favour of the public and against the
exercise of the authority claimed.
Construction of powers
Confer/grant
those
powers
expressly imposed
Confer/grant
those
powers
necessarily implied (doctrine of
necessary implication)
Note: An administrative officer has
only such powers as are expressly
granted to him and those necessarily
implied in the exercise thereof. These
powers should not be extended
by implication beyond what may
be necessary for their just and
reasonable execution.
Doctrine of necessary implication
states that all powers necessary to the
exercise of the power expressly granted
are deemed impliedly granted as well.
Examples (Application of the doctrine):
ANGARA
VS.
ELECTORAL
COMMISSION The power of the
Electoral Commission to hear and
decide certain election cases
carries with it the implied power
to adopt rules of procedure to be
observed in the conduct of these
cases.
Inherent powers E.g. police
power may be asserted by the
national legislature despite the
absence of constitutional vesture.
Held:
Had the appointment of Aytona been done in good
faith then he would have the right to continue office.
Here, even though Aytona is qualified to remain in his
post as he is competent enough, his appointment
can nevertheless be revoked by the president.
Garcias appointments are hurried maneuvers to
subvert the upcoming administration and is set to
obstruct the policies of the next president. As a
general rule, once a person is qualified his
appointment should not be revoked but in here it
may be since his appointment was grounded on bad
faith, immorality and impropriety. In public service, it
is not only legality that is considered but also justice,
fairness and righteousness.
Note: The actual exercise of the

inherent powers of the state must
be made with due regard for
private rights. The exercise of
such powers must always be
liberally construed against the
government.
An administrative officer may
revoke, repeal or abrogate
the acts or previous rulings of
his predecessor in office.
The construction of a statute by
8 Strict construction is especially true in cases

involving private interests. E.g. those protected by
the Bill of Rights
those administering it is not

binding on their successors if,
thereafter, the latter becomes
satisfied
that
a
different
construction should be given.
Doctrine
of
qualified
political
agency states that department
secretaries
may
exercise
powers
delegated to them by the President
subject to the latters power of control.
Example (Application of the doctrine):
The power of the President to
reorganize
the
National
Government may validly be
delegated
to
his
cabinet
members exercising control over
a
particular
executive
department.
When powers are validly exercised
(1) Authorized acts of a public
officer9
(2) Acts of de facto officers10
(3) The act of the public officer
is not previously authorized
but
it
is
subsequently
ratified
by
the
government11.
Note: The principle of estoppels does not

operate against the government for the
acts of its agents, and that it is never
stopped by any mistake or error on their
part.
Kinds of duties of public officers
(1) Discretionary
(2) Ministerial
Discretionary duty15
The officer is allowed to determine
how and when it is to be performed
and to decide this matter one way
or the other and be right either
way.
The officer is allowed much leeway
in arriving at a decision as the duty
is conferred on him in recognition
of his good sense or judgment.
This discretionary duty is never
meant to be absolute, uncontrolled,
and unrestrained. No such power
may be validly granted to any
officer of the government except
perhaps in cases of national
emergency.
Exercise of discretionary duty
The public officer is expected to

discharge it DIRECTLY and not
through the intervening mind of
another. (Why? The conferment of
discretion is based on the good
sense of judgment of the public
officer.)
GR: A discretionary duty cannot

be delegated to another.
When
powers
are
invalidly
exercised
(1) Absolutely invalid acts of a
public officer. (void acts)
(2) Unauthorized acts of a public
officer12.
SALCEDO VS. CA13
FESTEJO VS. FERNANDO14
Why? The presumption is that he

is chosen because he was deemed
fit and competent to exercise that
judgment and discretion.
Such acts will produce legal effect and be

considered binding upon the government itself as the
principal of the public officer.
10
Such acts will produce legal effect and be

considered binding upon the government itself as the
principal of the public officer.
11
By such ratification, the government will be

deemed to have assumed whatever liabilities may
arise from the act of the previously unauthorized
public officer.
ONLY VOIDABLE ACTS MAY BE RATIFIED. An
absolutely invalid act cannot be validated by
ratification.
12
Where the act was not authorized, it is the

exclusive responsibility of the public officer who
committed it.
13
Where the act was not authorized, it is the

exclusive responsibility of the public officer who
committed it.
14
A bureau director appropriated a private lot and

converted it to public use without paying the owner
just compensation. The SC held that the suit was not
filed against the state but against him in his private
capacity for his unauthorized act.
15 Examples: Granting or withholding of a pardon by

the President; methods of regulation by the
Legislature; the court or other officials discretion in
the resolution of a question.
AMERICAN
TOBACCO
DIRECTOR OF PATENTS16
CO
VS.
A:
XPNs:
(When
delegation
is
allowed)
(1) When
the
power
to
substitute another in his
(public officers) place has
been given to him.
e.g. The Presidents power to conclude
treatises (can be assigned to his
subordinate).
(2) In the case of the President
of the Philippines, as he is
not expected to discharge
the totality of the executive
powers conferred upon him.
Why? It is physically impossible for
him to do so.
Q: May the exercise of discretion be
compelled?
16 Facts:
ATC et al filed before the Philippine Patent Office

concerning the use of trade mark and trade name.
ATC et al challenged the validity of Rule 168 of the
Revised Rules of Practice before the Philippine
Patent Office in Trademark Cases as amended,
authorizing the Director of Patents to designate any
ranking official of said office to hear inter partes
proceedings. Said Rule likewise provides that all
judgments determining the merits of the case shall
be personally and directly prepared by the Director
and signed by him. These proceedings refer to the
hearing of opposition to the registration of a mark or
trade name, interference proceeding instituted for
the purpose of determining the question of priority of
adoption and use of a trade-mark, trade name or
service-mark, and cancellation of registration of a
trade-mark or trade name pending at the Patent
Office. Petitioners filed their objections to the
authority of the hearing officers to hear their cases,
alleging that the amendment of the Rule is illegal
and void because under the law the Director must
personally hear and decide inter partes case. Said
objections were overruled by the Director of Patents,
hence, the present petition for mandamus, to compel
the Director of Patents to personally hear the cases
of petitioners, in lieu of the hearing officers.
Issue:
Whether or not the hearing done by hearing officers
are within due process.
If the public officer has been

given the discretion to act or
not to act upon a certain
matter NO, and his decision
cannot be the subject of judicial
reversal.
e.g. A court may not compel a local
legislative body to appropriate funds for the
celebration of a town fiesta as this matter is
entirely discretionary with the body.
If the duty is made imperative,

as when a deadline is fixed for
its discharge, and discretion is
granted only as to the manner
of its exercise YES, and his duty
may be compelled by judicial
process.
MERALCO SECURITIES CORPORATION VS.

SAVELLANO Mandamus only lies to
enforce the performance of a ministerial
act or duty and not to control the
performance of a discretionary power.
Purely administrative and discretionary
functions may not be interfered with by
the courts. Mandamus may not be
resorted to so as to interfere with the
manner in which the discretion shall be
exercised or to influence or coerce a
particular determination.
Discretion means the power or right
conferred upon the office by law acting
officially under certain circumstances
The SC ruled that the power to decide resides solely
in the administrative agency vested by law, this does
not preclude a delegation of the power to hold a
hearing on the basis of which the decision of the
administrative agency will be made. The rule that
requires an administrative officer to exercise his own
judgment and discretion does not preclude him from
utilizing, as a matter of practical administrative
procedure, the aid of subordinates to investigate and
report to him the facts, on the basis of which the
officer makes his decisions. It is sufficient that the
judgment and discretion finally exercised are those of
the officer authorized by law. Neither does due
process of law nor the requirements of fair hearing
require that the actual taking of testimony be before
the same officer who will make the decision in the
case. As long as a party is not deprived of his right to
present his own case and submit evidence in support
thereof, and the decision is supported by the
evidence in the record, there is no question that the
requirements of due process and fair trial are fully
met.
In short, there is no abnegation of
responsibility on the part of the officer concerned as
the actual decision remains with and is made by said
officer. It is, however, required that to give the
substance of a hearing, which is for the purpose of
making determinations upon evidence the officer
who makes the determinations must consider and
appraise the evidence which justifies them.
Held:
according to the dictates of his own

judgment and conscience and not
controlled by the judgment or the
conscience of others.
For all its wide latitude discretion is not
totally unlimited. It is restricted by the
very
qualities
that
justified
its
conferment the judgment and good
sense of the delegate. Hence, if these
are not employed in the discharge of the
duty, that is, if the duty was performed
arbitrarily or capriciously, or with
disregard of rights, there results what is
known as a grave abuse of discretion,
which
may
be
corrected
in
appropriate judicial proceeding17.
What may be required is general
action only. This means that the public
officer may not be required to discharge
the imperative duty, but not in any
specific manner. How he performs his
duty is his own prerogative, and this
may not be usurped by others from the
delegate to which the people have seen
fit to entrust it.
e.g. Where an administrative body simply refuses to
take any action whatsoever, the court may issue a
writ of mandamus to compel it to take some action,
but should not attempt to prescribe the action to be
taken and thereby control the discretion or judgment
of the board of officer.
Ministerial duty18
When the officer is given little
latitude its discharge.
When
the
law
exacting
its
discharge prescribes and defines
the time, mode, and occasion of its
performance with such certainty
that nothing is left for judgment or
discretion.
Practically a mechanical act.
defines with precision the occasion

and manner of its exercise.
A
ministerial
duty
can
be
compelled by judicial action.
The exercise of this duty is subject
to judicial review and reversal if it
is not exercised in accordance with
the requirements of the law
imposing it.
What is required is a specific action
that it particularly imposed by law.
Discretionary
Duty
Ministerial Duty
Generally it is not
susceptible of
delegation.
Susceptible of
delegation.
CAN BE
COMPELLED.
If the duty is made
imperative, as when
a deadline is fixed
for its discharge,
and discretion is
granted only as to
the manner of its
exercise.
Can be compelled
by judicial action.
(Must be performed
in any case.)
CANNOT BE
COMPELLED.
If the public officer
has been given the
discretion to act or
not to act upon a
certain matter.
Exercise of Ministerial Duty
Since the exercise of a ministerial

duty
does
not
require
the
employment
of
discretion
or
judgment, it is susceptible of
delegation. What may be done by
the delegate may be subdelegated
by him to others.
No
particular
qualification
is
required for the discharge of this
kind of duty because the law itself
Includes the
authority to decide
whether or not to
act at all.
No similar option is
allowed.
What is required is
merely general
action.
What may be
required is specific
action, that is, the
particular duty
imposed by law.
Can be a subject of
a judicial review if
there has been
grave abuse of
discretion.
Can be subject to
judicial review if it is
not exercised in
accordance with the
requirements of the
law imposing it.
17
Example: A judge who denies a motion for

postponement filed by a lawyer obviously ill at the
time of the hearing.
18 Examples: Duty of the tax collector to

acknowledge payment by issuing an official receipt ;
duty of the COMELEC to give due course to a
certificate of candidacy duly accomplished and
seasonably filed.
Arbitrary or
capricious
discharge of this
duty amounts to
grave abuse of
discretion and may
be ccorrected by
certiorari.
Discharge of this
duty may be
corrected in an
appropriate action,
and the public
officer will have no
reason to complain.
Note: Civil Liberties Union vs. The

Executive Secretary21 An EO
allowing appointive officials of the
Executive Department to hold over
positions in the government is
unconstitutional.
20 Art. VII, Sec. 13
CHAPTER 6
INHIBITIONS
21 Civil Liberties Union vs. Executive Secretary
Inhibition a restraint upon the public

officer against the doing of certain acts
which may legally be done by others.
Note:
Crime is excluded.
Prescribed
either
by
Constitution or by statute.
May be general or specific.
granted by the Government or any

subdivision,
agency
or
instrumentality thereof, including
GOCCs or their subsidiaries. They
shall strictly avoid conflict of interest
in the conduct of their office20.
the
Reason for inhibitions: The public

officer is a steward who must perform
his powers and duties for the benefit of
the people and not for the enhancement
of his own interests
Inhibition
Disqualification
Restraint upon the

public
officer
against the doing of
certain acts which
may
legally
be
done by others
The lack of needed

eligibility
for
a
certain office.
FACTS:
On 25 July 1987, Cory issued EO 284 which allows
members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government
offices or positions in addition to their primary
positions subject to limitations set therein. The CLU
excepted this EO averring that such law is
unconstitutional. The constitutionality of EO 284 is
being challenged by CLU on the principal submission
that it adds exceptions to Sec 13, Art 7 other than
those provided in the Constitution; CLU avers that by
virtue of the phrase unless otherwise provided in
this Constitution, the only exceptions against
holding any other office or employment in
Government are those provided in the Constitution,
namely: (i) The Vice-President may be appointed as a
Member of the Cabinet under Sec 3, par. (2), Article
7; and (ii) the Secretary of Justice is an ex-officio
member of the Judicial and Bar Council by virtue of
Sec 8 (1), Article 8.
ISSUE:
Whether or not EO 284 is constitutional.
Constitutional Inhibitions
(1) The President and the Vice-President
shall not receive during their tenure
any other emolument from the
Government or any other source19.
(2) The Pres., VP, the members of the
Cabinet, their deputies or assistants
shall not, unless otherwise provided
in the Constitution, hold any other
office or employment during their
tenure. They shall not during said
tenure, directly or indirectly practice
any other profession, participate in
any business, or be financially
interested in any contract with, or in
any franchise, or special privilege
19 Art. VII, Sec. 6
HELD:
Sec 13, Art 7 provides:
Sec. 13. The President, Vice-President, the Members

of the Cabinet, and their deputies or assistants shall
not, unless otherwise provided in this Constitution,
hold any other office or employment during their
tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in
any business, or be financially interested in any
contract with, or in any franchise, or special privilege
granted by the Government or any subdivision,
agency, or instrumentality thereof, including
government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
(3) No Senator or Member of the House

of Representatives may hold any
other office or employment in the
Government, or any subdivision,
agency or, or instrumentality thereof,
including
GOCCs
or
their
subsidiaries, during his term without
forfeiting his seat22.

of Representatives may personally
appear as counsel before any court
of justice or before the Electoral
Tribunals, or quasi-judicial and other
administrative bodies. Neither shall
he,
directly
or
indirectly,
be
interested financially in any contract
with, or in any franchise or special
privilege
granted
by
the
agency, or instrumentality thereof,
including
any
GOCC,
or
its
subsidiary, during his term of office.
He shall not intervene in any matter
before any office of the Government
for his pecuniary benefit or where he
may be called upon to act on
account of his office23.
It is clear that the 1987 Constitution seeks to prohibit

the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding
during their tenure multiple offices or employment in
the government, except in those cases specified in
the Constitution itself and as above clarified with
respect
to
posts
held
without
additional
compensation in an ex-officio capacity as provided
by law and as required by the primary functions of
their office, the citation of Cabinet members (then
called Ministers) as examples during the debate and
deliberation on the general rule laid down for all
appointive officials should be considered as mere
personal opinions which cannot override the
constitutions manifest intent and the peoples
understanding thereof. In the light of the construction
given to Sec 13, Art 7 in relation to Sec 7, par. (2), Art
IX-B of the 1987 Constitution, EO 284 is
unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their
primary position to not more than 2 positions in the
government and government corporations, EO 284
actually allows them to hold multiple offices or
employment in direct contravention of the express
mandate of Sec 13, Art 7 of the 1987 Constitution
prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
(5) No member of a Constitutional

Commission shall, during his tenure,
hold any other office or employment.
Neither shall he engage in the
practice of any profession or in the
active management or control of any
business which, in any way, may be
affected by the functions of his
office, nor shall he be financially
interested, directly or indirectly, in
any contract with, or in any franchise
or
privilege
granted
by
the
Government, any of its subdivisions,
agencies,
or
instrumentalities,
including
government-owned
or
controlled corporations or their
subsidiaries24. This inhibition applies
as well to the Ombudsman and his
deputies25.
(6) No officer or employee in the civil

service shall engage, directly or
indirectly, in any electioneering or
partisan political campaign26.
Partisan political activity27

means active support for or affiliation
23 Art. VI, Sec. 14

24 Art. IX, A, Sec.2
25 Art. XI, Sec. 8
26 Art. IX, B, Sec. 2(4); BP Blg. 881, Sec. 261(b)
22 Art. VI, Sec. 13

27
Examples:Being a candidate for any

elective office
Being
a delegate to any political
convention
Being an officer or member of any

political
committee,
party
or
organization
Delivering speeches, canvassing or

soliciting of votes or political support
or contributions for any political party
or candidate
with the cause of a political party or

candidate.
including
Government-owned
or
subsidiaries30.
Note:
PD 807, Sec. 45
Santos vs. Yatco Members of

the Cabinet are exempted from
this prohibition.
Art. XVI, Sec. 529 - This

inhibition applies only to active
members of the AFP.
28
(7) No elective official shall be eligible

for appointment or designation in
any capacity to any public office or
position during his tenure.Unless
otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any
Government or any subdivision,
agency or instrumentality thereof,
Becoming actively identified with the

success or failure of any candidate or
candidates for election to public
office
(8) No elective or appointive public

officer or 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 or gratuities
shall not be considered as additional,
double, or indirect compensation31.
(9) No loan, guaranty, or other form of

financial accommodation for any
business purpose may be granted,
directly
or
indirectly,
by
any
government-owned
or
controlled
bank or financial institution to the
President, the Vice-President, the
Members of the Cabinet, the
Congress, the Supreme Court, and
the Constitutional Commissions, the
Ombudsman, or to any firm or entity
in which they have controlling
interest, during their tenure32.
Constitutional Disqualifications
28 Section 45. Political Activity. No officer or

employee in the Civil Service including members of
the Armed Forces, shall engage directly or indirectly
in any partisan political activity or take part in any
election except to vote nor shall he use his official
authority or influence to coerce the political activity
of any other person or body. Nothing herein provided
shall be understood to prevent any officer or
employee from expressing his views on current
political problems or issues, or from mentioning the
names of candidates for public office whom he
supports: Provided, That public officers and
employees holding political offices may take part in
political and electoral activities but it shall be
unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts
involving subordinates prohibited in the Election
Code.
29 The armed forces shall be insulated from partisan

politics. No member of the military shall engage,
directly or indirectly, in any partisan political activity,
except to vote.
(1) The
spouse
and
relatives
by
consanguinity or affinity within the
fourth civil degree of the President
shall not, during 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, including government-owned
or controlled corporations and their
subsidiaries.
30 Art. IX, B, Sec. 7

31 Art. IX, B, Sec. 8
32 Art. XI, Sec. 16

of Representatives may hold any
agency, or instrumentality thereof,
including
government-owned
or
subsidiaries, during his term without
forfeiting his seat. Neither shall he be
appointed to any office which may
have
been
created
or
the
emoluments thereof increased during
the term for which he was elected.
(3) The Members of the Supreme Court
and of other courts established by
law shall not be designated to any
agency performing quasi-judicial or
administrative function.
(4) Appointees to the Constitutional
Commissions must not have been
candidates for any elective positions
in
the
elections
immediately
preceding their appointment.
Other Inhibitions
(please see book)
Other Disqualifications
(please see book)
Effects of violation
Sanctions for violation of the

inhibition will depend upon the law
imposing it or implementing the
constitutional restriction.
The restriction against a public

official from using his public
position as a vehicle to promote or
advance his private interests
extends beyond his tenure on
certain matters in which he
intervened as a public official.
(5) No candidate who has lost in any

election shall, within 1 year after
such election, be appointed to any
office in the Government, or any
GOCC or in any of its subsidiaries.
Note: Brillantes vs, Yorac33
33 FACTS:
In December 1989, a coup attempt occurred
prompting the president to create a fact finding
commission which would be chaired by Hilario
Davide. Consequently he has to vacate his
chairmanship of the COMELEC. Yorac was temporarily
placed as his substitute. Brillantes then questioned
such appointment urging that under Art 10-C of the
Constitution in no case shall any member of the
COMELEC be appointed or designated in a temporary
or acting capacity:. Brillantes claimed that the choice
of the acting chairman should not be appointed for
such is an internal matter that should be resolved by
the members themselves and that the intrusion of
the president violates the independence of the
COMELEC as a constitutional commission.
ISSUE:
CHAPTER 7
SALARY AND PERQUISITES
Purpose
HELD:
The Supreme Court ruled that although all
constitutional commissions are essentially executive
in nature, they are not under the control of the
president in the discharge of their functions. The
designation made by the president has dubious
justification as it was merely grounded on the quote
administrative expediency to present the functions
of the COMELEC. Aside from such justification, it
found no basis on existing rules on statutes. Yoracs
designation is null and unconstitutional.
Whether or not the designation made by the

president violates the constitutional independence of
the COMELEC.
1. to attract competent men to the

government service
2. if adequate, will lessen the
temptation for graft as there would
be little need for the public officer
to augment his income through
illegal methods
3. to lend the necessary prestige to
the office
3.
4.
Source of Salary
-
5.
Constitution or Statute
The SC clarified that despite its
declaration of executive order no.
284,
which
allowed
cabinet
members,
undersecretaries
or
assistant
secretaries
to
hold
multiple
positions,
as
unconstitutional, said officers were
nonetheless allowed to retain the
per
diems,
allowances
or
emoluments received by them in
connection with their multiple
positions, because they acted as de
facto officers. As such, they are
entitled to said compensation for
actual services. 34
Good faith as a defense
o The
SC
upheld
the
disallowance by the COA of
certain
benefits
and
privileges to the personnel
of a local water district
because such were granted
to them by said districts
board of directors and by
virtue of a CBA. However,
the
MCWD
affected
personnel who received the
given
benefits
and
privileges acted in good
faith under the honest belief
that the CBA authorized
such
payment.
Consequently, they need
not refund them.35
6.
7.
Salary and Due Process

-
Constitutional Limitations
1. The salaries of Senators and
members
of
the
House
of
Representatives
shall
be
determined by law.36
2. The salaries of the President and
the
Vice
President
shall
be
determined by law and shall not be

decreased during their tenure.37
The salary of the Chief Justice and
the Associate Justices of the SC,
and of judges of lower courts shall
be fixed by law.38
The salary of the Chairman and
Commissioners
of
the
Constitutional Commissions shall
be fixed by law and shall not be
decreased during their tenure.39
The salaries of the Ombudsman
and his deputies, which shall be the
same as those provided for the
chairmen
and
Members,
respectively of the Constitutional
Commissions,
shall
not
be
decreased during their term of
office.40
The Congress shall provide for the
standardization of compensation of
government
officials
and
employees, including those in
government-owned or controlled
corporations with original charters
taking into account the nature of
the responsibilities pertaining to,
and the qualifications required for
their positions.
No elective or appointive public
officer or employee shall receive
additional, double, or indirect
compensation.
where the salary is granted by

statute, it may be withdrawn by
statute
no reduction or abolition of salary
can operate retroactively to affect
salaries earned or accrued.
Where the law limits the grant of
certain benefits to a specified class
of persons, such limitation must be
enforced even if it prejudices
certain parties due to a previous
mistake committed by public
officials in granting such benefit.
37
No increase in said compensation shall take

effect until after the expiration of the term of the
term if the incumbent during which such increase
was approved.
34 Civil Liberties Union vs. Executive Secretary, 194
38 Salaries of the Justices of the SC are subject to
SCRA 317
withholding tax (Nitafan vs. Commissioner of Internal

Revenue.)
35 Abanilla vs. COA 468 SCRA 87

36 No increase in compensation until after the
expiration of the full term.
39 Article IX,A, Section 3

40 Article IX,Section 10
Right to Salary
-
based on the right to the office

itself and accrues from the date of
actual commencement of the
discharge of official duties
in the case of de jure officer who
has been unlawfully prevented
from assuming the office, the
salary accrues to him from the date
of the deprivation of the office
the right of the de jure officer to his
salary should be asserted against
the de facto officer who had
collected it and not against the
government, except where the
government continued paying the
salary to the de facto officer even
after the adjudication of title in
favor of the officer de jure
where a public officer under
investigation or prosecution is
preventively
suspended
but
subsequently exonerated, he is
entitled to payment of the salaries
corresponding to the period of his
preventive suspension
where an accused died pending his
trial for corrupt practices, his heirs
were not entitled to payment of
back salaries accruing during his
preventive suspension because he
had not been exonerated41
Declaration
of
validity
of
a
preventive suspension based on
the following grounds shall not
entitle the official or employee to
his reinstatement:
o When the order was issued
by one not authorized by
law
o When it is not based on any
of the grounds or causes
warranted by law
o When it was issued without
a formal charge
o Or when although lawful in
the sense that it is based on
recognized grounds, the
duration of the imposed
preventive suspension has
exceeded the prescribed
periods, in which case the
payment of back salaries
shall correspond to the
excess period only
the payment of back salaries shall
await the final outcome of the
principal case
the
phrase
full
exoneration
contemplates a finding of not guilty
for the offense. Downgrading of the
charge to a lesser offense shall
not
be
construed
as
full
exoneration.
41 Malanyaon vs. Lising 106 SCRA 237
Back salaries are also payable to

an officer illegally dismissed or
otherwise unjustly deprived of his
office, the right to recover accruing
from the date of deprivation.
A claim for back salaries must be
coupled
with
a
claim
for
reinstatement
subject
to
the
prescription of one year.
Where an employee has voluntarily
accepted a lower position, which he
continues to hold, estoppel bars
relief seeking payment of a salary
equivalent to that of a higher
position
An employee who is reinstated to
his former position but who has
pending
administrative
and
criminal charges against him may
only be paid his back salaries when
he is absolved of the charges.
Section 59 of the Uniform Rules in
Administrative Cases in the Civil
Service42, provides for the effects of
exoneration on certain penalties
Prohibited Disposition of Salary

-
Public
policy
prohibits
the
attachment,
garnishment
or
assignment of the salary of a public
officer.
The salary check of a government
officer or employee such as a
teacher does not belong to him
before it is physically delivered to
him. Until that time, the check
belongs
to
the
government.
Accordingly, before there is actual
delivery of the check, the payee
has no power over it; he cannot
assign it without the consent of the
government.43
A public officer is not legally bound
by a pledge made by him while still
a candidate that, if elected, he will
not collect his salary or will donate
42
a. In case the penalty imposed is fine, the same

shall be refundedb. In case the penalty imposed is
demotion, the exonerated employee shall be restored
to his former position without loss of seniority rights
with payment of salary differentials
c. In case the penalty imposed is transfer, he shall
immediately be restored to his former post unless he
decides otherwise. In case there is demotion in rank,
salary or status, he shall be restored to his former
rank, salary or status.
d. In case the penalty imposed is suspension, he shall
immediately be reinstated to his former post without
loss of seniority rights with payment of back salaries.
Mandatory leave benefits shall not be chared
against respondent leave credits.
The respondent who is exonerated by final
judgment shall be entitled to the leave credits for the
period he has been out of the service
43 Tiro vs. Hontanosas
it back to the government or give it

to some other beneficiary
Leaves
-
Vacation and sick leaves shall be

cumulative and any part taken
during the calendar year in which
earned shall be carried over to the
succeeding years.
The are also commutable to cash
where the functionary voluntarily
resigns, retires, or is separated
from the service through no fault of
his
own,
provided
that
the
commutation shall not exceed 300
days
of
accumulated
leaves,
exclusive of Saturdays, Sundays
and holiday.
Any officer or employee of the
government
who
retires
or
voluntarily resigns or is separated
from service through no fault of his
own and whose leave benefits are
not covered by any special law,
shall
be
entitled
to
the
commutation
of
all
the
accumulated vacaton and/or sick
leave to his credit and that all
officials and employees shall be
required to go on vacation leave for
a minimum of 5 working days
annually.44
Elective officials shall be entitled to
the same leave privileges as those
enjoyed
by
appointive
local
officials, including the cumulation
and commutation thereof.45
All
government
officers
or
employees
are
entitled
to
commutation of all leave credits
without limitation and regardless of
the period when the credits were
earned provided the claimant was
in the service as of Jan 9, 1986.
Determination of leave benefits is
within the functions of the Civil
service Commission.
Retirement
-
Insurance
-
officers and employees of the

government, including brgy and
other local government employees
and officials as well as disability,
pre-need insurance, unemployment
and separation benefits under
schemes administered by the
Government
Service
Insurance
System.
44 EO no. 1077 (Jan. 9, 1986)

45 Section 81, Local Government Code or RA 7160
Permanent and regular appointees

and elective officers, are covered
by compulsory insurance.
computed on the basis of highest

salary, emolument and allowances
received by the retiring employee
Retirement laws art whenrally
interpreted in favor of the retiree
because their intention is to
provide for his sustenance and
hopefully even comfort when he no
longer has the stamina to continue
earning his livelihood.
Retirement is compulsory for any
member of the GSIS holding a
regular
and
permanent
appointment if:
o He has attained the age of
65 years
o Rendered at least 15 years
of
service
to
the
government
o The last 3 years of such
service
have
been
continuous
a retiree is entitled to a 5 year
lump sum payment of the present
value of his annuity thereafter to
be paid monthly as long as he lives
If at the time of his retirement,
disability or death, he had rendered
at least 20 years continuous
service, he shall be entitled to 1
month salary for each year of
service for the first 20 years; and 1
month salary for each year of
service over 20 up to 30 years; and
2 months salary for each year of
service over 30 years based on the
highest salary received.
The retiree, for purposes of
complying
with
the
required
number of years under a certain
retirement law46, may combine his
years of service in the private
sector
represented
by
his
contributions to the SSS with his
government
service
and
contributions to the GSIS to satisfy
the required years of service under
PD No. 1146 and RA No. 8291.
PD 1146 is available to retirees
who have been in the government
service after May 31, 1997 but
before June 24, 1977. The retiree
must have rendered at least 15
years of service, regardless of age.
If the retiree is below 60 years old
upon retirement, he may avail
himself of retirement benefits only
upon attaining his 60th birthday.
46 Portability Law, RA No. 7699
Republic Act 660 provides for a

retirement package for government
employees who were in the service
on or before May 31, 1977. Under
this law, the retirees last three
years of service prior to retirement
must be continuous, except in
cases of death, disability, abolition,
and phase-out of position due to
reorganization.
Republic Act No. 1616 applies to
retirees
who
were
in
the
government service on or before
May 31, 1977. Under this scheme,
the retiree must have rendered at
least 20 years of service regardless
of age and employment status, and
his last 3 years of service prior to
retirement must be continuous,
except in cases of death, disability,
abolition or phase out of position
due to reorganization.
Retirement
laws
are
liberally
interpreted in favor of the retiree:
o The retirement pay accruing
to a public officer may not
be withhel and applied to
his indebtedness to the
government.47
o The SC rejected the denial
of claim for retirement
benefits of the decedents
wife for the mere reason
that she is not the primary
beneficiary because such
proviso in RA 8282 which
qualifies the term primary
beneficiaries
is
unconstitutional
for
it
violates the due process
and
equal
protection
clause.48
o The SC declared the ruled
on limiting to only 1 year
the extension of service of
an employee who has
reached the compulsory
retirement of 65 years, but
has less than 15 years of
service under Civil service
memorandum Circular No.
27 s. 1990.The Civil Service
Commission has no power
to
supply
perceived
omissions in PD 1146.49
o The SC declared that the 1
year
limitation
on
the
extension of service of a
47 Tantuico vs. Domingo

48 Dycaico vs SSS
49 Cena vs. Civil Service Commission
government employee who

has reached the compulsory
retirement
age
of
65
imposed
under
Memorandum Circular No.
27 is valid and reasonable.
50
Retirement pay accruing to a public

officer may not be withheld and
applied to his indebtedness to the
government.
A per diem is a daily allowance
given for each day an officer or
employee of the government as
away from his home base. Such
allowance may be construed also
as compensation but generally it is
excluded from the compensation
provided under the Government
Service Insurance Law.
Philhealth
-
covers health care and health

insurance program for the benefit
of
government
and
private
employees,
and
even
selfemployed individuals.
All employees covered by the GSIS,
including their dependents, are
also automatically covered.
guarantees
health
benefit
packages
for
inpatient
and
outpatient care but does not
include non-prescription drugs and
devices,
alcohol
abuse
or
dependency treatment, cosmetic
surgery and optometric services.
CHAPTER 8
LIABILITY OF PUBLIC OFFICERS
KINDS OF DUTIES
Duty owing to the public in general

- The duty of the President to
maintain peace and order; of
the legislature to regulate
smuggling; and of the judiciary
to try an accused.
- It cannot give rise to liability in
favor of particular individuals.
To illustrate, where a person
contracts an epidemic disease
which the legislature has not
seen fit to control through the
enactment of the necessary
laws, he may not sue the body
for the prejudice suffered by
him as a result of its inaction.
50 Toledo vs. COMELEC
Duty owing to particular individuals

- The duty of the sheriff to
enforce a writ of execution, or
of a register of deeds to issue a
certificate of title, or of a clerk
of court to serve copies of a
decision upon the parties.
- Its improper performance or
non-performance will give rise
to a cause of action in an
individuals favour for any
injury sustained by him. To
illustrate, if the sheriff, for no
valid reason, delays the service
of a writ of execution until such
time as the judgment debtor
shall
have
succeeded
in
spiriting away his properties
and
so
prevented
the
enforcement of the decision,
the injured the litigant an hold
the sheriff liable.
LIABILITY IN GENERAL
Book
I,
Chapter
9
of
the
Administrative Code of 1987:
Sec. 38: Liability of Superior Officers.
1. A public officer shall not be

civilly liable for acts done in the
performance of his official
duties, unless there is a clear
showing of bad faith, malice or
gross negligence.
2. Any public officer who, without
just cause, neglects to perform
a duty within a period fixed by
law or regulation, or within a
reasonable period if none is
fixed, shall be liable for
damages to the private party
concerned without prejudice to
such other liability as may be
prescribed by law.
3. A head of a department or a
superior officer shall not be
civilly liable for the wrongful
acts,
omissions
of
duty,
negligence, or misfeasance of
his subordinates, unless he has
actually authorized by written
order the specific act or
misconduct complained of.
Sec. 39: Liability of Subordinate
Officers. No subordinate officer or
employee shall e civilly liable for acts done
by him in good faith in the performance of
his duties. However, he shall be liable for
willful or negligent acts done by him which
are contrary to law, morals, public policy,
and good customs even if he acted under
orders or instructions of his superiors.
It has been ruled that accountable officers
cannot profess ignorance of laws or
administrative circulars for it is required

that they must update their knowledge
with whatever laws or any administrative
issuances that may be issued by
competent authorities.
THE PRESIDENT
The President shall be immune
from suit to guarantee the independence
of the public official who otherwise might
be unwilling to make the right decisions
for fear that he might be called to account
therefor in a court of law by disgruntled
individuals adversely affected by his act.
The President may generally not be held
liable for his acts because they are mainly
discretionary and owing to the public in
general. Thus, a victim of a crime cannot
hold the President answerable for the
latters alleged failure to execute penal
laws because this a duty owed by him to
the people in general and not to any
particular individual. The doctrine of
separation of powers prevents the courts
from interfering with the President when
he decides what are known political
questions, except when his decision is
tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The incumbent presidents are immune
from suit during the period of their
incumbency and tenure but not beyond.
Cabinet members also cannot be held
liable for acts done by them in the
exercise of their discretion and within the
limits of their authority without the
attendance of malice, bad faith or gross
negligence.
LEGISLATORS
Members
of
the
legislature
discharge duties owing to public in general
so they cannot be held liable, individually
or collectively, for the performance or nonperformance of their duties. However, in
Mendoza vs. de Leon, the plaintiff was
awarded damages against the individual
members of the municipal council who
cancelled the franchise of the plaintiff
without valid cause since the municipal
council
was
exercising
proprietary
functions.
JUDGES
Judges shall not be liable for their
acts except only when they act without
jurisdiction as the law will not protect
them for exercising powers that do not
belong to them. In the absence of fraud,
dishonesty, or corruption, the acts of
judge are not subject to disciplinary
action, even though such acts are
erroneous.
To
hold
a
judge
administratively liable for gross ignorance
of law, the assailed act must not only be

contrary to existing law or jurisprudence,
but must also be motivated by bad faith,
fraud, dishonesty or corruption on his part.
The proper recourse of a party
aggrieved by the decision of a judge is to
file a motion for reconsideration or to
appeal to or file a petition for certiorari
with the proper court and not to file an
administrative complaint.
There is not much justification for
holding a judge liable in an independent
civil action for damages since it would
likely impair his independence and his
prestige, there would be multiplicity of
litigation and a strong possibility that
competent men will hesitate to join the
Judiciary.
QUASI-JUDICIAL OFFICERS
Decisions rendered by quasijudicial officers may be reversed by courts
of justice upon showing that there is a
grave abuse of discretion however, they
may not be held liable if they act within
the scope of their authority and without
bad faith, malice or corruption.
In Philippine Racing Club v.
Bonifacio, the Supreme Court declared
that the Commission on Races cannot be
held liable for damages even though they
do not have the power to cancel races
since they acted in their official capacity in
the honest belief that they have the power
to act upon the matter.
LOCAL OFFICIALS
The rules governing the liability of
officials in the national government are
applicable to local officials in the
discharge of their discretionary and
ministerial functions. Under the LGC, any
officer of the LGU whose duty permits or
requires the possession or custody of local
government funds shall be accountable
and responsible for the safekeeping
thereof. Unless the accountable officer
registers his objections in writing, he shall
not be relieved of liability for illegal or
improper use or application or deposit of
government funds or property by reason
of his having acted upon the direction of a
superior officer.
Misconduct, misfeasance or malfeasance

must 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 office to warrant the removal from office
of an officer.
Misconduct is a transgression of some
established or definite rule of action, more
particularly, unlawful behaviour or gross
negligence by the public officer.
LIABILITY
FOR
SUBORDINATES
ACTS
OF
As a general rule, superior officers

cannot be held liable for the acts of their
subordinates. However, a superior officer
may be held liable if:
MINISTERIAL OFFICERS
Ministerial act an act performed
in a prescribed manner, in obedience to
the law or mandate of legal authority,
without regard to, or exercise of, the
judgment of the individual upon the
propriety of the act being done.
A ministerial officer can be liable for
Nonfeasance is the neglect or
refusal,
without
sufficient
excuse, to perform an act which

it was the officers legal duty to
the individual to perform.
Misfeasance or negligence is
the failure to use, in the
performance of a duty owing to
the individual, that degree of
care, skill and diligence which
the circumstances of the case
reasonably demand.
Malfeasance is the doing,
either
through
ignorance,
inattention or malice, of that
which the officer has no legal
right to do at all, as where he
acts without any authority
whatever, or exceeds, ignores
or abuses his powers.
Where, being charged with the

duty of employing or retaining his
subordinates, he negligently or
wilfully employs or retains unfit or
improper persons
Where, being charged with the
duty to see that they are appointed
and qualified in a proper manner,
he negligently or wilfully fails to
require them the due conformity to
the prescribed regulations
Where
he
so
carelessly
or
negligently oversees, conducts or
carries on the business of his office
as to furnish the opportunity for the
default
And a fortiori where he has
directed, authorized or cooperated
in the wrong.
Personal Liability
A public officer may be held liable,
either contractual or tortiuous,
when he committed an act without

authority or with malice or in bad
faith.
Bad faith imputes a dishonest
purpose or some moral obliquity
and conscious doing of a wrong; a
breach of sworn duty through some
motive or intent or ill will; it
partakes of the nature of fraud.
Good faith honesty of intention,
and freedom from knowledge f
circumstances which ought to put
the holder upon inquiry; an honest
intention to abstain from taking
any unconscientious advantage of
another,
even
through
technicalities of law, together with
absence of all information, notice
or benefit or belief of facts which
render
transactions
unconscientious.
Any contract entered into contrary
to the requirements of Sections 46
and 47 of Chapter 8 of Subtitle B of
Book 5 of the Administrative Code
of 1987 shall be void and the
officer or officers who entered into
such contract shall be liable to the
government or to the other
contracting party.
Sec. 377 of the LGC provides
that:
The person immediately
accountable for government
property shall be liable for
its money value in case of
the illegal, improper or
unauthorized
use
or
misapplication thereof.
He shall not be relieved
from liability by reason of
his having acted under the
direction of a superior
officer unless he registers
his objection in writing.
In case of loss, damage, or
deterioration of government
property arising from, or
attributable to negligence in
security, the head of the
security agency shall be
held liable therefor.
In matters of tort, it will not be imputable
to the public officer if it is shown that he
acted within the limits of his authority
without the attendance of bad faith.
In cases of illegal dismissal made in bad
faith or due to personal malice of the
superior officers, they shall be held
personally accountable for the employees
back salaries. Moreover, if the public
officers act is ultra vires and tainted with
bad faith, he may be held answerable in

his individual capacity.
REMEDIES AGAINST PUBLIC OFFICERS

Three kinds of remedies available a public
officer:
Civil
Criminal
Administrative
May
be
invoked
separately,
alternately,
simultaneously
or
successively.
Art. 27 of the Civil Code- any
person suffering from moral or
material 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.
The criminal responsibility of the
public officer or employee is
provided in Title 2 and 7 of the
Revised Penal Code and other
penal statutes such as R.A. No.
3019 or the Anti-Graft and Corrupt
Practices Act. The Solicitor General
is not authorized to represent a
public officer charged with criminal
offenses.
Sandiganbayan
has
jurisdiction
over
offenses
committed by public officers and
employees in relation to their office
where the penalty prescribed by
law
is
higher
than
prison
coreccional or imprisonment for six
years or a fine of P6, 000.00.
As for administrative action, it may
be taken against any public officer
on the usual grounds of oppression,
dishonesty,
insubordination,
immorality,
inefficiency,
negligence, drunkenness, partisan
political activity and the like. These
charges are to be proved before
the proper administrative body like
the CSC, SC in the case of the
members of the judiciary or its
personnel.
The defeat of any of the three
remedies discussed above will not
necessarily preclude resort to the
other remedies or affect decisions
reached thereunder, as different
degrees of evidence are required in
these several actions.
Proceedings against a public officer

or
employee
for
misconduct,
malfeasance
cannot
just
be
withdrawn at any time by the
complainants for the latter are
considered as witnesses only.
Example: a peace officer who
searches a private dwelling without
a warrant and over the owners
objections may be held civilly liable
for damages, including moral and
exemplary damages, under Article
32 of the Civil Code. At the same
time, he may also be prosecuted
for violation of domicile as defined
and penalized under Article 128 of
the Revised Penal Code. An
administrative action may likewise
be filed against him for his
arbitrary and oppressive act.
CHAPTER 9
TERMINATION OF OFFICIAL
RELATIONS
Public is not supposed to be held:
1.
Perpetuity and relinquishment only

upon the death of the incumbent.
2. Not inheritable
Modes of termination
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
Expiration of the term

Resignation
Abandonment
Acceptance of an incompatible
office
Removal
Recall
Impeachment
Forfeiture
Abolition of office
Death
I. Expiration ofthe term

Term-
period during the individual has a

right of public office
Definite period of time prescribed
by law which an officer may
hold
an
office
(Nueno vs.
Angeles)
Right to hold a public office
- Legal claim to hold and enjoy
the powers and responsibilities
of the office.
Tenure of office
- Actual period of incumbency
of public officer
Hold- over
- May applied to public officer,
implies that the office has fixed
term
and
holding on
term.
incumbent
is
the succeeding
Note:
The term may not be fixed number of
years but terminable upon the opening of
a certain event or contingency.
Example:
Ingles vs. Mutuc

Incumbent of primarily confidential position
holds office at the pleasure only of the
appoint ting power. When
such pleasure
turns Into displeasure, the incumbent is not
removed from office his term merely expires.
Republic vs. Imperial
If an accidental vacancy occurs in an office
where the beginning and the end of the
term specified, the replacement shall serve
only for the unexpired term of the
predecessor. But, where only the period of
the term is specified and the incumbent
vacates his office before the end of period ,
his successor shall commence his term for
the full , unless otherwise provided by law.
II. Resignation
- a formal
method of
renunciation
coupled
with
physical
act
of
relinquishment of the office , and
subject to approval by
superior
authorities, that the incumbent should
observe.
-While
not
indispensably
required,
resignation usually made in writing,
addressed to the authority empowered
to accept it.
Estrada vs. Desierto
Resignation must have an intent to resign and
the intent must be coupled by acts of
relinquishment. It can be oral. It can be
implied. As long as the resignation is clear, it
must give legal effect.The resignation of the
petitioner cannot be doubted.
It was
confirmed by his leaving Malacanang
Joson vs.Nario
M ere presentation of resignation does not
work a vacancy, and a resignation is not
complete
until
accepted
by
proper
authority.
Biddle vs. Willard
The resignation may be withdrawn as long as
it has not yet been accepted, or if it was
tendered as a result of mistake, threat or any
vice of consent.
Courtesy resignation
Cannot be interpreted as resignation in
the legal sensefor it is not necessarily a
reflection of public officials intention to
surrender his position.
III. Abandonment
A total surrender, relinquishment ,
disclaimer or cession of the public office
and includes the intention as well as the

external act bywhich it is carried out.
Two
essential
elements
of
abandonment
1. An intention to abandon
2. An overt act by which the intention
is carried to in effect
Example of abandonment:
- Public officer simply stops
reporting for work and refuses
to continue discharging his
duties.
- Failure of Dean of a state
college to return to work after
the expiration of one-year leave
with pay (Ramos vs. Elfano)
Not considered abandonment:
- Mayor had abandoned his
position as such by accepting a
designation as acting director of
the NAWASA because he was
serving as temporary capacity
only. (City of Manila vs. Subido)
- When an employee accepted
another
position
in
the
Government
during
the
pendency of his appeal from
administrative decision, such
acceptance does not consider
abandonment.
Note:
if the employee was illegally dismissed, he
may, by his inaction or by sleeping on his
right, in law, be considered as having
abandon the office to which he is entitled
to be reinstated.
IV. Acceptance of Incompatible Office
-Incompatibility exists when the character
or nature of officer or relation to each
other are such the one person should not
hold both because of the antagonism
which result in the attempt by one person
to faithfully and impartially discharge the
duties of one, toward the incumbent of the
other.
Zandueta Case
- when public official voluntarily accepts an
appointment to a newly created office, which
discharge his function , he will be considered
to have abandon the office he was occupying
by virtue of his former appointment.
Section 13, Article VI of the

Constitution
- a Senator or House of Representative
shall forfeit his sit from the moment he
hold another office or employment in the
Government.
V. Removal
-The forcible and permanent separation of
the incumbent from office before the
expiration of his term.
Suspension
-Temporary divestiture of the right to the
officeduring part of the term and does not
have the effect of vacating the office.
the express power to appoint carries
with the implied power to remove
Note:
General rule: officers appointed by the
President are also removable by him.
Except: members of the Supreme
Court and of Constitutional Commission.
Elected official may not be removed by
the President.
Demotion and transfers are tantamount
for removal.
VI. Impeachment
-A method of national inquest into the
conduct of public men. It is an
extraordinary
means
of
removal
exercised by the legislature over the
selected number of officials, for the
purpose being to ensure the highest care
in their indictment and conviction and the
imposition of specialpenalties in case of
the fining of guilt, taking into account the
degree or nature of the offense
committed and the high status of the
wrongdoers.
Impeachable officers
- President of the Philippines
- Vice President
- Members of the supreme court
- Members
of
Constitutional
Commissions
- Ombudsman
Grounds
1. Culpable violation of the constitutionwrongful, intentional or wilful disregard or
louting of fundamental law
2. Treason- committed by any person,
owing allegiance to the Government of
the Philippine, levies war against it or
giving aid and comfort to the enemy.
3. Bribery- committed by public officer
who shall agree to perform an act in
consideration of any offer, promise or gift
received by him personally.
4. Other high crimes
5. Graft and Corruption
6. Betrayal of public trust- catch-all to
cover all manner of offenses unbecoming
a public functionaries.
Procedure
- House
of
representative,
exclusive power to initiate all
cases of impeachment.
- Senate, sole power to try and
decide cases of impeachment
1. File
verified
complaint
for
impeachment by member of HR,
which includes order of business
within 10 days and session days

thereafter.
2. Committee after hearing, by majority
of all members, will submit report to
the house within 60 session days from
receipt.
3. Votecast of all members of the house
was necessary to affirm impeachment
which
include the article of
impeachment
4. Senate shall forthwith proceed.
No impeachment proceeding shall be
initiated against the same official
morethan once within a period of 1 year.
Judgment
- Impeachment shall not extend
further than removal from office
and disqualification to hold any
office under Rep. of the Phil.
- Judgment of Congress was not
subject to judicial review.
- Judgment of conviction in
impeachment
proceeding
cannot subject to pardoning
power of the President.
- Convicted
official
may
prosecuted in an ordinary
criminal action
VII. Forfeiture
-to divest the incumbent of his title to his
office as a result of positive act, either
culpable or innocent
Example:
-person holding public appointive office
upon filing of certificate of candidacy was
considered ipso facto resigned from his
office.
VIII. Recall
-a method of removal employed directly
by the people themselves through the
exercise of their suffrages
-power of recall for loss of confidence shall
be exercised by the registered voters of
local government unit which the local
elective official subject to such recall.
Initiation of recall
-Petition of registered voter in LGU
concerned
and
supported
by
the
registered voters in LGU concerned during
the election which the official sought to be
recalled
subject
to
the
following
percentage
25%- with a voting population of
not more than (20,000)
20%- voting population of at least
20,000 but not more than 75,000,
provided that the petitioner not
less than 5,000
15%- voting population of 75,000

but not more than 300,00,
provided that the petitioner not
less than 15,000
10%- voting population
over
300,000, the required petitioner
not less than 45,000
Election of recall
- In barangay, city, or municipal
officials recall shall not be later
than
30
days
upon
the
completion of procedure
- In case of provincial officials, 45
days.
Important cases:
Andreo vs. COMELEC
Private respondent served for two
consecutive term as mayor and thereafter on
May 1998 ran again for the third term but lost.
His opponent faces recall, private respondent
in recall election and won. Immediately
thereafter the said term private respondent
filed certificate of candidacy for mayor. Court
held that his loss in May 1998 election is
considered as interruption in the continuity of
his service as mayor.
Socrates vs. COMELEC
Constitution prohibits an immediate re-election
for a fourth term following three consecutive
terms. The constitutions however, do not
prohibit a subsequent re-election for afourth
term as long as the re-election is not
immediately after the end of third consecutive
term.
Lonzanida vs. COMELEC
-involuntary severance from office for any
length of time short of the full term provided by
law amounts to an interruption of continuity of
service
IX. Abolition of office

The power to create includes the power to
destroy; except where the office was
created by the Constitution, it my abolish
by the same legislature that brought into
the exercise.
Ocampo vs. Scretary of Justice
The petitioner was not removed from office for
removal implies that the office exists after the
ouster. In this case, nothing remained of the
office after its abolition.
As well settled rule as that the abolition of an
office does not amount to an illegal removal of
an incumbent is the principle that, in order to
be valid, the abolition must be made in good
faith.
Removal is bad faith

1. Where the significant increase in
the number of positions in the new
staffing pattern of the department
or agency concerned
2. Where an office is abolished and
other performing substantially the
same functions is created.
3. Where incumbents are replaced by

those less qualified in terms of
status
of
appointment
,
performance and merit.
4. Where there is reclassification of
offices in the department or agency
concerned and the reclassified
offices perform substantially the
same function as the original office
5. Where the remove violates the
order of separation provided in
Section 3 of RA 6656.
Order of removal shall be followed
1. Casual employees with less than 5
years of the government service
2. Casual employees with 5 years or
more of government service
3. Employee
holding
temporary
appointments
4. Employee
holding
permanent
appointments
Note:
Officers and employees holding a
permanent appointment shall be given
preference for appointment to the new
positions in the approved staffing pattern
comparable to their former position or in
case there are not enough comparable
positions, positions next lower in rank.
XI.
Exception: Those caseswhere the clear

intention
is
to
have
vacancies
appointments at regular intervals.
Note:
Where the office is occupied by a single
incumbent, the office will cease to
function until a successor is able to qualify
and take over.
Death of only member of the Sangguniang
Panlungsod will not prevent the body from
functioning as the remaining members are
still sufficient to constitute a quorum to do
business.
Death
It terminates the incumbents right to the

office as it terminates everything else.
General rule: death or other permanent
disability creates a vacancy in the office,
so that successor is entitled to hold an
office for a full term.

Concept of The Public Office: Law On Public Officers Reviewer

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Concept of The Public Office: Law On Public Officers Reviewer

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CHAPTER 1

CONCEPT OF THE PUBLIC

2. Election choice is made by the

When the appointee is qualified and all

-No person may be appointed to the CSC is

Members of the public dealing with

presume he is the officer he

Chief Justice Butler one whose

(1) Without a known appointment

(3) Under color of a known election

(4) Under color of an election or an

Examples of De Facto Officers:

the possession of an office and

Q: Can an intruder / usurper ripen

A: Yes. With the passage of time, a

EXP: The De Facto officer may

Requisites of a De Jure Office

Challenge to a De Facto Officer

GR: The incumbency of a de facto

REMEDY: Quo warranto

1. Existence of a De Jure Office

Who may file:

Effects of Acts of De Facto Officers

GR: Actsultra viresare not

GR: De Facto officer cannot claim

Provided by: The Constitution

The Civil Service Commission

administers the Civil Service

The Civil Service and labor laws and

shall be followed in resolutions of

entrance based on merit and

5. Commissioned officers and enlisted

to undertake a specific work or job,

2. NON-CAREER SERVICE characterized by:

1. Elective officials and their personal

Department Heads and other

Must be possessed by an individual

Made only according to merit and

Contractual personnel or those

security of tenure of employees in the career

2. temporary In the absence of

a person who meets all the

Republic Act 6850 government

positions appointed under provisional or

Made only after the

Note: The purpose of an ad interim

Examples: private secretary, confidential

determined by the appointing authority

Examples: City Legal Officer, Scientist

Movement from one position to

Next In Rank Rule

The person next in rank shall be

Qualified next-in-rank refers to an

Favoritism toward relatives by the

The following however, are exempt from

To ensure that all appointments

authority the matter of appointing

Note: Charges of nepotism must be duly

Other Personnel Actions

All appointments in the career

Personnel Action any act denoting

Illegal transfer is tantamount to