Jordan Villota

Pakitago lang ha

LAW ON PUBLIC OFFICERS

By Carlo Cruz

BERNARDO, CAGAYAT & MAÑALAC

Chapter 5

AUTHORITY OF THE PUBLIC OFFICER

• authority of public officer: derived from People themselves

• Basis: The Philippines is a republican state. Sovereignty resides in the people, and all gov't authority
emanates from them.(art2,sec1)

Where exercised

• General rule: PO may exercise his powers only WITHIN THE TERRITORIAL LIMITS of his authority. any
act outside that area-n/v

Exception: president retains his status even if he is outside the country; warrant of arrest-vaild
anywhere in the phil, even outside the regions to w/c judges have been appointed.

When exercised

• Only during his term of office

• Act performed after the term -invalid EXCEPT as a de facto officer.

o Gillera v Fernandez: the Court upheld the validity of ad interim appointment to the position of
Auxiliary justice of the peace because the said appointment is a matter of emergency in order not to
disrupt public service.
• Term of office is NOT FIXED:1. Completion of a particular task; 2. Attainment of specific age.

How exercised

• Authority of PO: strictly construed, consistent w/ representative gov't is a gov't of limited powers

• In case of doubt, in favor of the public and against the exercise of the authority

• Express powers are subject to strict interpretation-construed as to powers only w/c are expressly
imposed or necessarily implied

o New york times v US: prior restraint of expression comes to the Court bearing a heavy presumption
against its validity. Gov't carries a heavy burden of showing justification for the enforcement of such
restraint.

o Poliand Industrial Limited v. National Development Company: President's LOI are administrative in
nature and do not have force and effect of law-can't be a valid source of obligation.

o Legaspi v Minister of Finance: grant of extraordinary legislative power to the president authorize him
to issue LOI W/c formed part of the law of the land only when there existed a grave emergency or threat
or imminence thereof or when the legislature failed or was unable to act

• Doctrine of necessary implications: all powers necessary to the exercise of the power expressly
granted are deemed impliedly granted as well.

o Angara v Electoral Commission: electoral commission power to hear and decide certain election cases
has implied power to adopt rules of procedure to be observed

o Malayan Integrated Industries corp v CA: approval of reclamation contract by executive secretary by
authority of president is presumed valid and performed in behalf of the president.

• Claim of Power – justified if the power is inherent like Police Power

• Administrative officer-may revoke, repeal or abrogate the acts or previous rulings of the predecessor
in office

o Aryana v. Republic: no requirement that pleadings filed by the lawyers of gov't must first be approved
by PCGG en banc and by the president.

• RA 1379-Authorizes the OSG to prosecute cases of forfeiture of property unlawfully acquired by any
PO

• Doctrine of qualified political agency-department secretaries may exercise powers delegated to them
by the president subject to the control of the latter.
• Under the doctrine, power of president to reorganize the national gov't may be delegated to his
cabinet member.

EFFECT OF EXERCISE

• PO is authorized, his acts are valid.

• Acts produce legal effects and considered binding upon the gov't as the principal of PO.

• If not previously authorized, act may still considered valid if it is subsequently ratified by gov't.

• By ratification, gov't assumed liabilities may arise from the act

• Only voidable acts may be ratified.

• Invalid act can't be ratified. Basis: gov't itself could not have legally done the act, it follows that none
of its agents can do so and subsequent ratification by the principal will not make the invalid act legal.

• Act not authorized, PO personally liable for it.

o Festejo v. Fernando: bureau director appropriated private lot and converted to public use without
paying the owner w/ just compensation. The suit was held to be against the private capacity of PO for
his unauthorized act.

• Principle of estoppel – does not operate against the gov't for the acts of its agents, and that it is never
estopped by any mistake, or error on their part.

KINDS OF DUTIES

1. Discretionary – allowed to determine how and when it is to be performed and decide this matter one
way or the other and be right either way.

o PHILIPPINE NATIONAL OIL COMPANY V CA: meaning of discretion-which is never absolute,

uncontrolled and unrestrained. The PO must exercise his discretion within the parameters set by the law,
and in case he abuses his discretion, court may correct such abuse.

2. Ministerial – given little latitude in its discharge, law exacting its discharge prescribes & defines the
time, mode and occasion of its performance w/ such certainty that NOTHING IS LEFT FOR JUDGEMENT
AND DISCRETION
EXERCISE OF DISCRETIONARY DUTY

• DISCRETION is based on good sense of judgment of PO – he is expected to discharge it directly and not
through the intervening mind of another.

o Binamira v Garrucho: officer to whom a discretion is entrusted cannot delegate it to another,

presumption being that he was chosen because he was deemed fit and competent to exercise that
judgment and discretion

• General rule: Discretion may not be delegated.

• Exception: in case of the president-he is not expected to discharge the totality of executive powers
because it is physically impossible.

o American Tobacco Co. V. Director of Patents: power to delegate the hearing of inter partes cases to his
subordinate. Hearings may make preliminary rulings on the myriads of questions raised at the hearing of
these cases, the ultimate decision on the merits is left to the Director of patents-allowed by law.

• May the exercise of discretion be compelled?

Will depend on the kind of discretion.

- Discretion to act or not to act – cannot be subject of judicial reversal

- Duty is imperative when a deadline is fixed for its discharge and discretion is only as to the manner of
its exercise-may be compelled by judicial process

- Can be compelled by writ of mandamus- if the body simply refuses to take any action

- General action only – PO may be req'd yo discharge the imperative duty but not in any specific manner,
in favor of this or that party.

• Discretion not totally unlimited.

- Restricted by the very qualities that justified its conferment(judgment and good sense of delegate).

- If performed arbitrarily or capriciously or known as GRAVE ABUSE OF DISCRETION, may be corrected by

judicial proceedings via petition on certiorari

EXERCISE OF MINISTERIAL DUTY

• Mechanical act, exercise does not require employment of discretion or judgment

• Can be delegated and no particular qualification req'd for discharge because the law itself defines
w/precision the occasion and manner of its exercise

• Can be compelled by judicial action

• can be a specific action – a particular duty imposed by law not merely general action in case of
discretion.

• Subject to judicial review & reversal w/requirements of the law imposing it.

• May be corrected in appropriate action and PO has no reason to complain because it is not his
discretion or judgment that is being disturbed.

LAW ON PUBLIC OFFICERS

By Carlo Cruz

BERNARDO, CAGAYAT & MAÑALAC

Chapter 6

INHIBITIONS

(Kumuha kayo ng consti codal-gist lang per article nilagay ko dito.^_^)

• Inhibitions-restraint upon the public officer against doing of certain acts w/c may legally be done by
others.

• Disqualifications-denotes the lack of a needed eligibility for a certain office.

• Inhibitions prescribed by CONSTITUTION OR STATUTE, may be general or specific.

Constitutional Inhibitions

1. ARTICLE 7,section 6- pres & vice-pres shall not receive any other emolument

2. Article 7, section 13-shall not hold any other office or employment during tenure; not practice
profession or business or contract w/ the gov't; avoid conflict of interest
-EO allowing appointive officials of the executive dep. to hold other positions-unconstitutional

3. Article 6, section 13- no senator or member of house of rep may hold other office or employment

4. Article 6,section 14-no senator or member of house of rep may personally appear as counsel before
court of justice/electoral tribunals

5. Article 9, section 2- no member of Consti. Commission hold any other office or employment:neither
engage in practice of profession

-Inhibition applies to ombudsman and his deputies

6. Article 9-B, section 2-no officer in civil service shall engage in any electioneering/partisan political
campaign

- Partisan political activity-active support for/affiliation w/the cause of a political party or candidate.

- Under Civil Service Decree-no officer in civil service shall engage in partisan activity but nothing to
prevent any official from expressing his views on political problems or mentioning names of candidates
whom he supports; public officers holding political positions may take part in political and electoral
activities but it is unlawful to solicit contributions from their subordinates

- Members of cabinet are exempted from this prohibition against partisan

- No member of military shall engage in any partisan political activity EXCEPT to vote, (applies only to
active member and not to reservists)

7. Article 9-b, sec7- no elective official shall be eligible for appointment in any capacity to Any public
office or position. Unless allowed by law, appointive official shall not hold any other office

8. Article 9-b, sec8-elective/appointive shall not receive any addt'l compensation, unless authorized by
law. (Pensions/gratuities not included w/ prohibition)

9. Article11,sec16-no loan, guaranty may be granted by financial inst to pres., vp, congress, cabinet, SC,
CONSTI COMMISSION, OMBUDSMAN

Constitutional Disqualifications

1. ARTICLE 7, sec13-relatives by consanguinity/affinity w/in 4th civil degree shall not be appointed by
the pres as member of consti commission, ombudsman, sec, usec,chair or heads of bureau

2. Article 6, sec13-no senator or house of rep be appointed to any office w/c may have been created
/emoluments increased

3. Article 8, sec12-members of SC & other courts shall not be designated to any agency performing
quasi-judicial/admin functions,
4. Article 9b,sec1(1)- appointees to consti Commissions must not be a candidate for any elective position
in the elections immediately preceding their appointment

5. Article9b,sec6-no candidate who lost in any election shall be appointed within one yr after election

o Brillantes vs Yorac: designation by Pres. Of respondent yorac as acting chairman of COMELEC was
unconstitutional

OTHER INHIBITIONS

. No officer shall purchase any property sold by the government for non-payment of any tax. Purchase is
done is void.

. A member of cabinet may not hold more than 2 positions in the gov't; this shall not apply to ad hoc
bodies or committees w/c the president is chairman.

- If the official holds more positions that what is allowed, he must relinquish the excess position in favor
of a subordinate official who is next in rank

. No judge or judicial officer shall sit in any case w/c he/his wife or child is pecuniarily interested as heir,
legatee, creditor or otherwise or in w/c he is related to either party w/in the 6th degree of
consanguinity/affinity or to counsel w/in 4th degree

- Cruz v joven, neither is the mere filing of an admin case against a judge a ground for disqualifying him
from hearing the case for.

. No judge or official of superior courts or OSG shall engage in private practice as a member of the bar

. No chairman/commissioner of COMELEC shall sit any case in w/c he has manifested bias or prejudice or
antagonism against any party thereto

. Chairman/members of CHR shall not hold any other office/employment. Neither shall they engage in
the practice of any profession or active control of any business

. Unlawful for any local gov't official/employee to

- Engage in any business transaction w/local gov't unit in w/c he is an official or power of supervision

- Hold such interests in any cockpit or games licensed by gov't

- Purchase any real estate or other property forfeited in favor of such local gov't unit for unpaid taxes

- Be surety for any person contracting/doing business w/the local gov't for w/c a surety is req'd.
o Borja v. Sulyap, inc.: SC rejected the contention that a compromise agreement should be annulled
because the lawyer who assisted in the execution of the same was at the time an employee of QC gov't
and prohibited from engaging in the private practice of his profession.

• Private practice of profession does not pertain to an isolated court appearance; rather, it
contemplates a succession of acts of the same nature habitually or customarily holding one's self to the
public as a lawyer.

• Practice of law-customarily habitually holding one's self out to the public, as a lawyer and demanding
payment for it.

- In Maderada v Mediodea, practice of law-involves the exercise of a profession or vocation usually for
gain, mainly as attorney by acting in a representative capaacity and as counsel by rendering legal advice
to others.

. All governors, city &municipal mayors are prohibited from practicing their profession or engaging in
any occupation other than the exercise of their function as local chief executives.

- Sanggunian members may practice their professions, engage in any occupation, or teach in schools
except during session hours, provided, members of the bar shall not:

1. Appear as counsel before any court in civil case where gov't is the adverse party

2. Appear as counsel in criminal case where official of gov't is the accused

3. Collect any fee

4. Use property & personnel of gov't except he is defending the interest of gov't

o Salomon v National Electrification Administration: person designated as a member of the Sangguniang

Panlalawigan loses her right to continue as duly elected director of an electric cooperative

o Javellana v Dep of interior and local gov't: prohibited a councilman from acting as counsel in a case
against the gov't

Private dealings of public officers should not be mixed w/their public duties.

o Domingo v Sandiganbayan: essential elements of the violation of ra 3019, sec 3(h):

The accused is a public officer

Has direct it indirect financial/pecuniary interest in any businessHe intervenes in the official capacity in
connection w/such interest or is prohibited from having such interest by the commission or law.

. Civil servants shall not strike against the gov't as a means of securing changes in terms/conditions of
employment
. The prohibited acts found in ra 6713, code of conduct and Ethical Standards for Public Officials and
Employees

Other Disqualifications

1. All appointments made in favor of a relative w/in 3rd degree of consanguinity/affinity of

appointing/recommending authority are prohibited.

- Shall not apply to positions in confidential capacity; teacher;physician;AFP; after appointment contract
marriage w/ someone in same office

2. Laborers-not be assigned to clerical duties

3. Disqualification for elective local position:

. Sentenced by final judgment in offense involving moral turpitude/punishable by 1yr/more of

imprisonment,w/in 2 yrs after serving sentence

. Removed from office as a result of admin case

. Convicted by final judgment for violating oath of allegiance

. Dual citizenship

. Fugitives from justice(criminal/nonpolitical cases;here/abroad)

. Permanent resident of foreign country

. Insane/feeble-minded

o Balayon, jr vs Ocampo: municipal judge may not engage in notarial work EXCEPT as notaries public ex
officio

4. Former judge dismissed from judiciary and disqualified for any reappointment in any branch of govt.
The judge accepted a legal consultancy w/ Local waters utilities admin(GOCC)

- SC held his position is not merely advisory in nature. Adviser does not exercise supervisory powers over
LWUA employees nor does he issue written instructions to them

5. Circular no. 86-255 of CoA prohibits gov't agencies from hiring private lawyers EXCEPT in special cases
because of their expertise in special fields.

- Government Corporate Counsel-principal law office and lead counsel of all GOCCs and their
subsidiaries
EFFECTS OF VIOLATION

- SANCTIONS depend upon the law imposing it or implementing constitutional restriction

- Remedies available like: petition to prohibit payment of unlawful compensation; impeachment(art11

of consti)

- Breach of statutory inhibitions -considered some as penal offenses or administrative grounds for
discipline.

LAW ON PUBLIC OFFICERS

By Carlo Cruz

BERNARDO, CAGAYAT & MAÑALAC

CHAPTER 7

SALARY AND PERQUISITES

Compensation and perquisites are attached to public office for the ff reasons:

• To attracts competent men to the government service

• For remuneration, 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 (Stef: weeeehhh?!)

• To lend the necessary prestige to the office (e.g. official residence of head of state)

• Necessity to pay and reward for his loyal and dedicated service rendered by him to the people

• Improve his motivation and efficiency

Salary

• Right to salary - Basis: legal title to the office and the fact that the law attaches compensation to the
office
• Not essential element of a public office (e.g. Honorary office – no compensation attached; incumbent
is willing to serve gratis)

Source of Salary

• Constitution or Statute

• 1987 Constitution, Sec 17, Transitory Provisions

President: annual salary of 300k

VP, Senate Pres., Speaker of HoR and Chief Justice: 240k

Senator, Members of HoR, Assoc Justice and Chairmen of ConComs: 204k

Members of ConCom: 180k

• PD 1606: salaries of justices of Sandiganbayan

o Intia Jr vs COAudit: Where the law confers upon an entity the power to fix the salaries and
emoluments of its employees, said entity may include representation and transportation allowances
among the emoluments that may be given, subject to the standards laid down by said law.

o Alliance of Gov’t Workers vs Minister of Labor and Employment: in gov’t employment, it is the
legislature and, where properly given delegated power, the administrative heads of government which
fix the terms and conditions of employment. And this is effected thru laws and not thro collective
bargaining agreements

Limitations on the power of legislature to alter salaries

1. Salaries of Senators and Members of HoR shall be determined by law.

• No increase shall take effect until after expiration of the full term of all members of Senate and HoR

2. Salaries of Pres and VP shall be determined by law and shall not be decreased during their tenure

• No increase shall take effects until after expiration of term of the incumbent during which such
increase was approved

3. Salary of Chief Justice ad of the Assoc Justice and of judges of lower courts shall be fixed by law

• During contninuance in office, their salary shall not be decreased

o NItafan vs CIR: salaries of Justices of the SC are subject to withholding tax

4. Salary of the Chairman and Commissioners of the ConComs shall be fixed by law and shall not be
decreased during their tenure

5. Salaries of the Ombudsman and his Deputies, which shall be the same as those provided for the
Chairmen and Members, respectively, of the ConCom, shall not be decreased during their term of office

• The congress shall provide for the standardization of compensation of govt officials and employees
including GOCCs with original charters

• No elective or appointive public officer or employee shall receive additional, double or indirect
compensation, government unless specifically authorized by law

• Nor accept, without consent of congress any present, emolument, office, or title of any kind from any
foreign govt

• Right to alter salaries subject to requirements of due process

Salary and Due Process

• Where salary is granted by statute, it may be withdrawn by statute

• No vested right in salary unless expressly protected by the Constitution, thus, may be subjected to
change by legislature (in this case, salary not a property right)

• Salary granted by legislature may be modified, decreased or abolished by the same

• Nevertheless, this power is subject to the rule that no reduction or abolition of salary can operate
retroactively to affect salaries already earned or accrued

• Law should have prospective effect only

o KMG vs COAudit: Where the law expressly 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

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

• When entitled: appointment upon issuance by the appointing authority, without waiting approval of
said appointment by the COApp
• Department of Budget and Management – vested with authority to review the salaries of govt
personnel, particularly with respect to the standardization of the same

o Monroy vs CA: 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

• In case of DE FACTO officer

o GR: He cannot collect salaries for services rendered(Matthews vs Superiors)

o Exception: He had acted in good faith and there is no officer de jure claiming the office (Patterson vs
Benson)

o Rodriguez vs Tan: A de facto senator was allowed to retain salaries collected by him prior his ouster
because on the ground of good faith

• Right of the de jure officer should be asserted against the de facto officer who had collected it and not
against the govt

Exception: where the govt continued paying the salary to the de facto officer even after the adjudication
of title in favour of the officer de jure

o Macabuhay vs Manuel: A PO under investigation or prosecution preventively suspended but

subsequently exonerated is entitled to payment of salaries corresponding to the period of his preventive
suspension

• “null and void” preventive suspension declared by competent authority – entitles the PO to
reinstatement and back wages for the period of the unlawful preventive suspension provided that it is
based on the ff grounds:

1. PS was issued by one not authorized by law

2. PS not based on any of the grounds or causes warranted by law

3. PS issued without formal charge

4. Although lawful in the sense that it was based on the recognized grounds, the duration has exceeded
the prescribe periods (in this case, back salaries shall correspond to excess period only)

• “Fully exonerated” – entitled to back salaries

• Illegally dismissed or unjustly deprived of office – entitled to recover accruing from the date of
deprivation

o GR: No service, No compensation (Balitaosan vs Sec of Education)

o Exception: inability to work or render any service from the time respondent was illegally dismissed up
to time of reinstatement (Constantino -David vs Pangandaman-Gania)
• Claim for back salaries MUST be coupled with claim for reinstatement

• Prescriptive period for claims for back salaries: 1 year

Prohibited Disposition of Salary

• Public policy prohibits:

a. Attachment

b. Garnishment

c. assignment (without consent of govt)

of salary since it belongs to the State as long as it has not yet been actually collected by the PO

• Reason: such inhibited acts would diminish the interest of the public functionary in his work since he
would have nothing to look forward to as compensation for his services

Leaves

1. Vacation leave

Purpose: to revitalize him for his own benefit and that of the public service

2. Sick leave

3. maternity leave (for women):

60 days

With full pay

IF rendered 2 or more years of continuous service

Half-pay if period of service is shorter

Covers unintentional abortions and miscarriages

Available as the need arises even if more than once during the same calendar year

Commutable to cash

4. leave of absence, with or without pay

• Vacation and sick leaves shall be cumulative and any part not taken during the calendar year shall be
carries over to the succeeding years

• Vacation and sick leaves COMMUTABLE TO CASH where:

a. PO voluntarily resigns

b. Retires

c. Separated from the service thru no fault of his own

PROVIDED THAT: commutation not exceed 300 days of accumulated leaves, exclusive of Saturdays,
Sundays and holidays

These leaves shall be with pay and shall consist of 15 days for each year of actual service

• Local Govt Code (RA 7160): elective officials entitled to same leave privileges as those enjoyed by
appointive officials

• PO not required by law to work on Saturdays, Sundays and holidays, even if accumulated the leave
credits

• CSC – has the power to determine leave benefits

Insurance

1. Life insurance

2. Retirement insurance

3. accidental insurance

4. Disability insurance

5. pre-need insurance

6. unemployment and separation benefits

7. medicare and benefits (by Phil Health Insurance Commission)

• Permanent and regular appointees and elective officers are covered by compulsory insurance

• Part of premium paid by govt, the balance being deducted from the salary of insured

Retirement
• To reward them for giving the best years of their lives to the service of their country

• Retirement laws liberally interpreted in favour of the retiree

• Compulsory for any member of the GSIS holding a regular and permanent appointment if:

a. He has attained the age of 65 years

b. Rendered at least 15 years of service to the govt; and

c. Last 3 years of such service have been continuous

Retiree entitled to 5-year lump sum payment of present value of his annuity and annuity thereafter to
be paid monthly as long as he lives

Modes of retirement; benefits

• RA 8291: retiree must have rendered at least 15 years of service and must be at least 60 years of age
and must not be a permanent total disability pensioner. He may choose from either lump sum
equivalent to 60 months of basic monthly pension or cash payment and basic monthly pension to 18
times basic monthly pension

• Portability Law (Act 7699): the retiree may combine his years of service in the private sector
represented by his contributions to SSS with his govt service and contributions to the GSIS

• PD 1146: retiree must have rendered at least 15 years of service regardless of age

• RA 660: a) Automatic pension, b) initial 3-yr lump sum or c) monthly pension for life depending on
some circumstances

• RA 1616: a) gratuity payable by last employer based on total creditable service converted into gratuity
months multiplied by the highest compensation received; b) refund of retirement premiums consisting
of personal contributions of the employee plus interest, and govt share without interest, payable by
GSIS

Philhealth

• Compulsory coverage by GSIS to all employees

• Health benefit packages for inpatient and outpatient care which includes allowances for hospital room
and board, services and health care professionals, diagnostics, labs and other medical exams, use of
surgical or medical equipment and facilities, inpatient education packages and prescription drugs,
personal preventive services and emergency and transfer services