Notes on the Law of Public Officers

7/30/2019 Notes on the Law of Public Officers

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NOTES ON THE LAW OF PUBLIC OFFICERS

1. PUBLIC OFFICERS are those who take part in the performance of public functions in thegovernment, performing in said government or any of its branches public duties of an employee, agent orsubordinate official of any rank or class in order to promote the general welfare.

The underlying principle pertaining to the study of public officers is found in Article XI, Section 1 of

the 1987 Constitution: 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, and efficiency, actwith patriotism and justice, and lead modest lives.

2. PUBLIC OFFICE is the right, authority and duty, created and conferred by law, by which anindividual is invested with some portion of the sovereign functions of the government, to be exercised by

him for the benefit of the public. The individual so invested is a public officer. The most important

characteristic which distinguishes an office from an employment or contract is that the creation andconferring of an office involve a delegation to the individual of some of the sovereign functions of

government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of

the country, either legislative, executive or judicial, attaches, to be exercised for the public benefit. Unlessthe powers conferred are of this nature, the individual is not a public officer.

Being a member of the market committee did not vest upon a person any sovereign function ofthe government, be it legislative, executive or judicial. The operation of a public market is not agovernmental function but merely an activity undertaken by the city in its private proprietary capacity.(FIGUEROA vs. PEOPLE (498 SCRA 298 Aug. 9, 2006)

3. Public office is a privilege. It is a gift vested by the people upon the individual so that the lattercan discharge the functions of the office. What defines a public office is the sovereign functions. If theperson is given the power and authority and duty to perform functions of the government, therefore, they

should be considered a public officer.The mandate of the National Centennial Commission as created under AO was enunciated in Article

XIV, Section 15 (of the Constitution) - Arts and letters shall enjoy the patronage of the State. The State

shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as wellas artistic creations which is a governmental function.

An honorary office does not involve monetary remuneration as distinguished from a lucrative office.An honorary office is nonetheless a public office because it was invested with sovereign functions of the

state. (LAUREL vs. DESIERTO (381 SCRA 48 April 12, 2002)

4. The oath of office is a defining requirement for a public office and is important for the fullinvestiture of office. In other words, the rank of the person in possession of such office becomesauthorized once he takes the oath of office.

5. An employee of a GOCC without original charter but created under a general law cannot be

considered a public officer, hence, his acts is not governed by the Anti-Graft Law and neither is heunder the authority of the Sandiganbayan. (MACALINO vs. SANDIGANBAYAN (376 SCRA452 2002). But if a GOCC has an original charter, anti-graft law applies. To be under thejurisdiction of the Sandiganbayan, a public officer does not need to hold a position with salarygrade 27 or higher. Even if with lower salary grade, for as long as the position is among those

included in Section 4 of RA6758, the Sandiganbayan will have jurisdiction. (Geduspan vs. Peoplle

of the Philippines, Feb. 11, 2005) (Section 4. Jurisdiction. The Sandiganbayan shall exerciseoriginal jurisdiction in all cases involving:a. Violations of Republic Act No. 3019, as amended,

otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and

Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of theaccused are officials occupying the following positions in the government, whether in a

permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officialsof the executive branch occupying the positions of regional director and higher, otherwiseclassified as Grade Grade 27 and higher, of the Compensation and Position Classification Act of

1989 (Republic Act No. 6758), specifically including: xxx (g) Presidents, directors or trustees,or managers of government-owned and controlled corporations, state universities oreducational institutions or foundations. )

6. A public office is not a property. It cannot be the subject of inheritance. Public Office is wholly

personal to the incumbent and cannot be passed on to his heirs. However, in SEGOVIA vs.

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NOEL (March 4, 1925), the SC once held that public office may be treated as property where theissue involves the lawful right to hold office, where a clear provision was violated in the coerciveseparation from office. In ABEJA vs. TAADA (August 20, 1994), involving an electoralprotest, the death of the protestee (incumbent official) extinguishes the right to prosecute the

counterclaim by the heirs as the latter cannot substitute the deceased in a case involving the latterselection.

7. As a general rule, No person can be compelled to accept a public office. This is consistent with

the involuntary servitude clause in the Constitution. However, there are well-establishedexceptions such as: (1) Section 4 of Article II of the 1987 Constitution Where the public office is

essential to the defense of the state. It is the prime duty of the government to protect the people.

Thus, the government may call upon the people to defend the state. The citizens may be requiredto render civil or military service. (2) Article 234 of the Revised Penal Code When one is elected

by popular election, he cannot refuse to discharge the duties of the public office without legal

motive, and, (3) Posse Comitatus Posse comitatus is a common law term that compels citizens tohelp the community in the maintenance and preservation of peace and tranquility.

8. A de facto officer is one who, in good faith has possession of office and in fact is discharging theduties pertaining to that office under the color of authority, either by election or appointment. To

be such, it is required that there is a regularly created office, the possession of that office has colorof title under the basis of election or appointment, and there must be physical possession. A de de

facto officer assumes the office on the basis of reputation but not in the point of law. On theone hand, a de jure officer is one whose right to office rests precisely on election or

appointment but he has not been in possession of office or he has been ousted therefrom. A

de facto officer is entitled to the rights of the office if there was no de jure officer. The basis of theauthority of a de jure officer rests upon a right, but not so in the case of a de facto officer. In the

case of usurper, there is no legal basis for the person to occupy the public office either by election

or by appointment. In other words in the case of a usurper, he acts without color of right, he is notentitled to any claim pertaining to the office.

9. The issue as to who has the right to office can only be questioned in quo warranto case. Suchpetition can only be filed by the Solicitor General or the person who claims to be deprived of

public office. If the individual is not entitled to the office, therefore, he has no standing to institute

the petition for Quo Warranto. One principle in Quo Warranto is that it is never directed to an

officer as such, but always against the person. If the order came out granting the petition to theissuance of the writ of quo warranto but the respondent officer is no longer in possession of such

office, the writ cannot be enforced against successor. The writ cannot bind the successor who has

acquired the office by virtue of a separate appointment. (MENDOZA vs. ALLAS (302 SCRA623)

10. The representatives of ex-officio members of the National Amnesty Commission cannot beconsidered as de facto officers because they were not appointed, but rather designated to act assuch. If the principal, under the Constitution, is prohibited from receiving such emoluments or

benefits, with more reason the agents, in this case the representatives of the ex-officio members,

cannot have better rights than the principal. (NATIONAL AMNESTY vs. COA (437 SCRA670)

11. A public officer can only be ousted from office for any of the legal grounds under PD 807 Section 36 and EO 292 - Section 46.

PD 807/same as EO 292, Section 46

SECTION 36. Discipline: General Provisions. (a) No officer or employee in the CivilService shall be suspended or dismissed except for cause as provided by law and after dueprocess.

(b) The following shall be grounds for disciplinary action:(1) Dishonesty;

(2) Oppression;

(3) Neglect of duty;(4) Misconduct;

(5) Disgraceful and immoral conduct;

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(6) Being notoriously undesirable;

(7) Discourtesy in the course of official duties;(8) Inefficiency and incompetence in the performance of official duties;

(9) Receiving for personal use of a fee, gift or other valuable thing in the course of

official duties or in connection therewith when such fee, gift, or other valuable thing isgiven by any person in the hope or expectation of receiving a favor or better treatment

than that accorded other persons, or committing acts punishable under the anti-

graft laws;

(10) Conviction of a crime involving moral turpitude;(11) Improper or unauthorized solicitation of contributions from subordinate employees

and by teachers or school officials from school children;

(12) Violation of existing Civil Service Law and rules or reasonable office regulations;(13) Falsification of official document;

(14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or

frequent unauthorized absences from duty during regular office hours;(15) Habitual drunkenness;

(16) Gambling prohibited by law;

(17) Refusal to perform official duty or render overtime service;(18) Disgraceful, immoral or dishonest conduct prior to entering the service;

(19) Physical or mental incapacity or disability due to immoral or vicious habits;(20) Borrowing money by superior officers from subordinates or lending by

subordinates to superior officers;(21) Lending money at usurious rates of interest;

(22) Willful failure to pay just debts or willful failure to pay taxes due to the government;

(23) Contracting loans of money or other property from persons with whom the office of theemployee concerned has business relations;

(24) Pursuit of private business, vocation or profession without the permission required by

`Civil Service rules and regulations;(25) Insubordination;

(26) Engaging directly or indirectly in partisan political activities by one holding non-

political office;(27) Conduct prejudicial to the best interest of the service;(28) Lobbying for personal interest or gain in legislative halls and offices without

authority;

(29) Promoting the sale of tickets in behalf of private enterprises that are not intended forcharitable or public welfare purposes and even in the latter cases if there is no prior

authority;

(30) Nepotism as defined in Section 49 of this Decree.(c) Except when initiated by the disciplining authority, no complaint against a civil service

official or employee shall be given due course unless the same is in writing and

subscribed and sworn to by the complainant.

(d) In meting out punishment, the same penalties shall be imposed for similar offenses andonly one penalty shall be imposed in each case. The disciplining authority may impose

the penalty of removal from the service, transfer, demotion in rank, suspension for not

more than one year without pay, fine in an amount not exceeding six months' salary, orreprimand.

12. The purpose of the Civil Service System is the application ofmerit system rather than thespoils system in the matter of appointment and tenure of office. The CSC is also mandated toensure the security of tenure of public officers as provided under Article IX-B, Section 2,

paragraph 3, the states: No officer or employee of the civil service shall be removed or suspended

except for cause provided by law. The objective of the Civil Service System is promotingprofessionalism and efficiency in public service. Appointment ought to be made on the basis of

merit and fitness. This is one important feature of the Civil Service System, together with the

security of tenure guarantee. The Civil Service System requires that appointment be made not onthe basis of political patronage but rather on the basis of merit system. MERAM vs. EDRALIN(154 SCRA 238)

13. The civil service embraces all branches, subdivisions, instrumentalities, and agencies of theGovernment, including government-owned or controlled corporations with original charters.

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Only those GOCCs with original charters are covered by the Civil Service Law Rules and

Regulations. If it incorporated under the provisions of a general law of the Corporation Code ofthe Philippines, the employee of the corporation is subject to the Labor Code and not under the

provisions of the Civil Service Law.

14. The CSC, as the prime implementor of the Civil Service System, is the sole arbiter ofcontroversies involving civil service employees - includes personnel actions such as reassignment

or promotion. If a litigant goes to court without first pursuing his administrative remedies, hisaction is premature, and he has no cause of action to ventilate in court pursuant to the doctrine ofexhaustion of administrative remedies. (CORSIGA vs. DEFENSOR (391 SCRA 267 Oct. 28,2002). Thedoctrinemandates that the aggrieved employee must resort first to the head office, andif aggrieves still, file an appeal to the CSC.

Under the Magna Carta Act, such administrative complaint against a public school teacher shouldbe lodged before the Investigating Committee created under Section 9 of the Magna Carta Act not

with the CSC. This means exclusive authority on the part of Department of Education. However,

participation by parties in the administrative proceedings without raising any objection thereto

bars them from raising any jurisdictional infirmity after an adverse decision is rendered againstthem. (Emin vs. De Leon)

The term Public School Teacher, as defined in Sec 9 of the Act, refers to all persons in the

classroom teaching, whether full time or part time basis, and would include guidance counselor,

school librarian, the arts and vocational instructor, and other terms. It does not however includethe public school teachers in the state colleges or universities, the school nurses, school physicians

or school dentists, or persons employed in the category of medical or hospital personnel.

15. Civil Service Law applies only to GOCCs with original charter. However, the employees

of GOCCs without original charter may still be subject to the jurisdiction of the Sandiganbayan(SB). Under the SB Law (RA 8249), there is no distinction whether the GOCC is with original

charter or without original charter. In People vs. SB (Feb 16, 2005), the SC ruled that the SB has

jurisdiction over presidents, directors of GOCC without original charter so long as the accusedofficer is high ranking official (HRO) of GOCC with or without original charter.

Moreover, subsidiaries of GOCCs without original charter does not fall within the authority of theCSC or the CS Law but under the Labor Code of the Phils. In the case of Davao City Water

District vs. CSC (201 SCRA 605), take note that PD 118 as amended was considered as a general

law but not anymore because PD 118 as amended by PD 1479 made it clear that employees ofwater districts are subject to the jurisdiction of the CSC, CS Laws, Rules and Regulations. What

about the requirement under PD 118 providing that the source of authorization in the local level

should be made through the passing of a resolution by the Sanggunian of the LGU. Despite thisrequirement, the resolution passed by the Sanggunian is not the law of the water district because

the passing of such resolution is merely in compliance with what is required under PD 118.

Privatization of GOCCs with original charter removes it from the jurisdiction of the Civil Service.For the jurisdiction of the Commission on Audit to remain, it is enough that the government still

maintains some investment or equity in that GOCC although not anymore with original charter.,

but only with respect to the equity of the government.

The Phil Veterans Bank, while having its own charter, nonetheless, by some provision of the law,

PVB is not considered a government bank because RA 3581 mandates that the government shallsubscribe 51% of the capital stock of the PVB using government funds. But nonetheless, the

statute itself mandates that the government should turn over the 51% shares of stock to the

veterans, their heirs and it is provided that the bank should be operated like any private

commercial bank.

16. An employee of a GOCC without original charter is deemed ipso facto resigned upon

filing of certificate of candidacy pursuant to Omnibus Election Law (Sec 66). The SC ruled thatthis provision of the Omnibus Election Code does not make any distinction whether with or

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without original charter. It holds that an employee of a subsidiary of a GOCC with original charter

shall be deemed automatically resigned upon the filing of the certificate of candidacy.

17. Positions under the new civil service law and revised administrative code are oftentimes

classified as a career and non-career positions. Career positions are characterized by entrancebased on merit and fitness be determined apart of practicable highly competitive examinations or

being on highly technical positions, the opportunity for advancement, and security of tenure.

18. Security of tenure does not mean the guarantee of perpetual employment, it simply meansthat either all employees can only be dismissed or transferred from service for grounds provided

under the law and after the observance of due process. In the case ofAchacoso vs Macaraig,

Achacoso, the fact that the person is appointed to a career position does not necessarily mean thathe already have in his favor the security of tenure if he himself is not a career service eligible. He

must possess have the qualifications for the security tenure to attach.

19. as scientific or technical, for example, a position of scientist or those of in the academe

whereby appointment to such position would require prior qualification by means of an

appropriate examinations. We have the career executive service (CESO) where an officerundergoes the stages as screened by the career executive service board.

20. The non-career positions include (1) Elective officials as they have fixed terms, (2)Confidential positions as they are subject to pleasure of the appointing power or based upon the

tenure of the appointing officer or the elective officer/official, (3) the chairmen and members of

the board/commission together with their confidential staff as they have fixed term, (4) thedepartment secretaries as well as those officials of cabinet ranks whose appointments are issued by

the president together with their confidential or personal staff, they belong to the non-career

service, (5) the contractual or temporary employees, being assigned for some period In the

condition, positions are classified either as competitive or non-competitive. Under art 19 sec 2part 2, appointment in the civil service shall be based according to merit and fitness to determine

as far as practical except to positions considered as primarily confidential, policy determining or

highly technical.

21. Under the Constitution , career service requires entrance through competitive examination

except for positions which are primarily confidential, highly technical, and policy determining. A

primarily confidential position is one where not only confidence in the aptitude and in the abilityof the appointee are required but also the existence of trust between the appointing firm and the

appointee which ensures freedom from harassment/betrayals of confidence on matters of public

interest. In policy-determining position, it is one where the appointee is charged with the duty to

formulate a record of action for the government or committee of each agencies or each of bodies.If a person is appointed to a policy determining position, it does not mean that he does not have

security of tenure. +

22. Term of office means the period within which the employee shall hold office as a matter

of right. On the other hand, tenure represents the actual occupancy of the appointee. So it is

possible that the tenure of office of the occupant is shorter than the term of office. In the case of

hold-over, a situation arises that the tenure of the public officer is beyond the term of his office.There is here no violation of law, so long as the law allows such hold-over. The distinction

between term and tenure is important, in r+elation to the constitution in the position of security of

tenure. No officer, employees shall be removed from office except for cause as may be providedby law and after observance of due process. If term of office of an officer is prescribed by the law,

there should be no reason to cut it off or interrupt except for causes provided by law.

23. The tenure of the officers holding primarily confidential positions coterminous with their

term because the term of these officers last as long as the confidence in them endures. So thisinvolves not removal but simply expiration of their term of office. In the Grio case, the position

of provincial attorney may be considered as primarily confidential, but not those lawyers under

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such head of office as they belong to the career service. In fact they occupy permanent positions

that they cannot be simply moved except for cause.

24. Eligibility is the state of lbeing to qualified to hold public office. It likewise refers to the

act which a person before entering upon the duties of office may be required to perform such as

the taking of an oath of office or the filing of a bond. The mere certification of a person by theCSC as civil service eligible does not amount to an appointment or ensuring appointment. The

matter of appointment involves sound discretion. To be appointed is an act of discretion to beexercised by the appointing power among the eligible who is best suited for the position.

Eligibility to public office must be possessed not only at the time of the appointees assumption or

qualification to office but it must exist during the entire period of occupancy of the public office.

In other words, if subsequently he acquired any of the disqualifications then it may be sufficient

basis for termination from office. So, eligibility to public office is of a continuing nature.

25. Section 40 of the Local Government Code refers to disqualification for local elective

position. (SRCDFPI)

In Moreno vs. Comelec, 498 S 549, the grant of probation operates to remove the ground ofdisqualification. However, in Dela Torre vs. Comelec, 258 S 483, The SC ruled that conviction for

crime involving moral turpitude still stands even if the candidate was granted probation. Take note

that the case of Moreno involves the crime of arbitrary detention which does not involve moralturpitude.

In Mercado vs. Manzano, Edu Manzano , dual citizenship is interpreted by the SC as dual

allegiance. What is prohibited under the law is one who has dual allegiance and not one who hasdual citizenship. Take note that dual allegiance is a voluntary act whereby a person renounces his

Philippine nationality or citizenship for another citizenship. This is not so in the case of dualcitizenship which it arises by reason of the concurrent application simultaneous of the variousnationality laws of states. So applying theprinciple of jus soli one born in the United States even

to Filipino parents acquires the citizenship of the place where he/she was born. But also applying

theprinciple of jus sanguinis the person also acquires the nationality of the parents. In the caseof Manzano, the SC ruled that upon the filing of the certificate of candidacy, the person elects

Philippine citizenship thus terminates the status as a person with dual citizenship.

In Caasim vs. CA, 191 S 229 the SC ruled that in order for a person who is a green card holder toqualify for elective office must not only file a certificate of candidacy for elective office. Such act

by itself does not constitute a waiver of his status as a permanent resident. But more than filing a

COC, for there to be a waiver, he must perform act/s independent of the filing. The same is truewith former natural born citizens who reacquired Philippine citizenship by virtue of RA9225.

26. Appointment is the choice or selection made by the proper authority/appointing power, of

a person who is to exercise the powers and functions of a given office. On the one hand,

Designation merely involves the imposition of additional function, usually by law, apart from the

functions pertaining to his principal office. Designation is merely temporary and one cannot claimthat there is violation of security of tenure or due process. In fact, designation here does not entail

the payment of additional benefits to the person so designated, unless there is a clear provision or

authority for the grant thereof. Appointment connotes permanency; whereas, designation impliestemporariness.

27. The genereal rule is, one who is not eligible he cannot be appointed to a position in thecareer service. Exceptions are: (1.) By reason of urgency, the need to fill up the position in the

interest of public service. But the same is only for a temporary capacity because the person to be

appointed should be an eligible. (2.) Appointment to a position in the non-career. This simplymeans that those offices are only for the period prescribed by law or for the duration of the

undertaking. So, there is temporariness.

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28. Where the appointment paper does not indicate a specific station, it follows that the

appointee may therefore be re-assigned or transferred. The presumption is that the transfer will notresult in changes either in the title, rank, or salary of the appointee. There is therefore, no violation

of security of tenure should he be re-assignment or transfer in the interest of public service so long

as such will not result in the change in the title, rank, or salary.

29. Before a person can be considered an officer de jure there must be both appointment and

qualification. The qualification standards. refers to the minimum requirements for a class ofposition pertaining either to experience, training, education, etc. If an individual lacks theappropriate civil service eligibility he can only be appointed in a temporary capacity because the

general rule is that appointment can only be issued to a person who possesses the qualifications for

the position including the required civil service eligibility. As an exception, a person who is a non-eligible may be appointed but only in a temporary capacity but only for a maximum period of 12

months.

30. Appointment may be classified as permanent or temporary.A permanent appointment isissued to a person to one who meets all the qualifications for the position, including the requisite

eligibility. Where the appointee in those circumstances is issued an appointment and he does notpossess the requisite qualifications, such appointment is merely temporary in nature. The one who

holds a temporary appointment has no fixed tenure of office. Such employment can be terminatedeven without cause because the termination is not removal. It would simply be an expiration of

term because he serves at the pleasure of the appointing authority.

If the appointment of the person is permanent and there was pressure upon him to accept atemporary appointment, the acceptance of such temporary appointment when there was no

intention to abandon the permanent position, should not divest him of security of tenure. InFELIX vs. BUENASEDA, a resident physicians position is never a permanent appointment

because the residency connotes training, meaning temporary in status. The resident physiciancannot claim security of tenure.

31. There are three (3) Level of Positions in Career Service1. SUB-PROFESSIONAL - Those positions which do not require the full 4-year college course

2. NON-SUPERVISORY OR SUPERVISORY POSITION Requires the completion of collegeeducation

3. CAREER EXECUTIVE SERVICE OFFICER as administered by Career Executive Service Board

There is a distinction here in the matter of security of tenure given to the first two levels asdistinguished from the security of tenure given to the third level. The security of tenure given to

the first two levels in career service is acquired with respect to their position, not so in the case of

one appointed in the third level. In the third level, the security of tenure is acquired with respect torank.

32. The Career Executive Service was already integrated in the reorganization adopted in PD

1. PD 1, which authorizes the creation of CESB, was never repealed by the 1987 Constitution.The major feature of this Career Executive Service is that the rank classification allows for the

mobility and flexibility of assignments. A Career Executive Service Officer may be reassigned or

transferred from one position to another or even from one department to another office in thegovernment and this does not constitute a violation of security of tenure because security of tenure

is acquired with respect to the rank.

33. The next-in-rank rule gives preferential treatment to such officer but does not meanautomatic appointment in his favor. The power to appoint is an exercise of discretion. This power

cannot be usurped by the Civil Service Commission. The role of the Civil Service Commission is

to approve or not to approve. It cannot do otherwise. It must approve the appointment if theappointee possesses the qualifications required for the position. Without the favorable

certification or approval of the Civil Service Commission in those cases where such approval is

required, no title to the office can be permanently vested in favor of the appointee. In this exerciseof discretion performed by the head of office is likewise applicable to promotional appointments.

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34. NEPOTISM is the recruitment of a relative by affinity or consanguinity. This is aprohibitive act by the Administrative Code and Local Government Code. The prohibition in Local

Government units, as provided in Section 79 of RA 7160, that the nepotism rule extends up to the

4th degree of consanguinity or affinity. In Civil Service Law, the prohibition applies up to the 3rd

degree by affinity or consanguinity. There are exceptions to this rule. Nepotism rule does not

apply to positions of: (1.) Teachers (2.)Government physicians, (3.) Members of the Armed

Forces of the Philippines. The nepotism rule applies not only to original appointments but even to

promotional appointments.

35. Subsequent passing of the CS examination does not ipso facto transform the appointment

from temporary to permanent. Even if he passed the Civil Service exam, this would require a newappointment. There should be a newly issued appointment. Nonetheless, even if he passed the

Civil Service exam, the appointing power is not duty-bound or obliged to issue such permanent

appointment. This would require not only compliance with the minimum requirement, includingthe civil service eligibility, there are other factors like training, etc. This will involve an exercise

of discretion. The real party in interest to challenge the disapproval by the Civil Service

Commission of the appointment is the appointing power.

36. Demotion is a movement from one position to another involving the issuance of a newappointment but with diminution of duties, status or rank. It clearly violates the Security of tenure.There may be, in fact, constructive dismissal from the service by reason of such demotion. This

may not be termed as such. This may be in the guise of reassignment. Where an appointee used to

have power of supervision of a considerable number of subordinates in her previous position andupon reassignment loses such power, there is a demotion in violation of SOT. Even if there is no

change in the title or salary received, the loss of such power is still considered a demotion.

(PADOLINA VS. FERNANDEZ 342 S 488)

37. REASSIGNMENT: The concept of reassignment pertains to the movement of an

employee from one organizational unit to another in the same department or agency and this doesnot involve a reduction in status, rank or salary. A reassignment done in good faith and in the

interest of the service is valid and does not require the consent of the employee. As a rule, this is

validfor as long as it is done bona fide. But the rule is different where the appointment issued to

the officer has a specific station. If the appointment is to some specific station, you can only bereassigned to another with your consent. If you do not consent, you cannot be compelled to be

reassigned. But if appointment does not indicate a specific station, one cannot complain of

violation of Security of Tenure. if you are reassigned to another unit without your consent so longas the same is done in good faith. What determines the validity of a transfer (or reassignment) is

the nature of the appointment issued to an individual. The transfer is valid if the appointment itself

does not indicate a permanent station, because if there is in fact a permanent station, the appointee

cannot be reassigned or transferred because this would involve a change in title, salary or rank.

38. Transfer is the movement from one department to another; one office to another. This

would require the prior consent of the employee. In fact, there should be an issuance of a newappointment because you are being transferred from one department to another. If a transfer is

made without the consent of the employee, this is tantamount to removal without cause. But if

there is consent, there is no violation of SOT because this does not involve a reduction in status,rank or title. The transfer contemplated by law is not physical transfer of office.

39. PRESIDENTIAL APPOINTMENTS (Bar Question)

1. Ad interim as opposed to regular appointments2. Appointments in acting capacity

3. Four types of presidential appointments:

a. Appointments which would require the concurrence of the Commission on Appointments

b. All other officers whose appointments are not otherwise provided by lawc. Those whom the President may be authorized to appoint

d. Officers lower in rank whose appointment the Congress may delegate to the President by

law.

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40. AD INTERIM APPOINTMENTS are Issued when the appointing or confirming body,the COAp is not in session and there is an urgent need to fill up the position to prevent obstruction

of functions. There is adjournment of the body required to concur in such appointment. Because of

the need of the service, the President may issue ad interim appointments. In ad interimappointments, precisely because the body required to concur is adjourned, the appointment takes

effect immediately. It is subject only to disapproval by COAp or as a result of the next

adjournment of Congress. (Bar Question). If the appointment is solely to be made by the president,

then this is NOT an ad interim appointment within the ambit of Constitutional provision Sec. 16,Art. 7 requiring confirmation of COAp. (See: Bautista vs. Salonga)

41. REGULAR APPOINTMENTS are Issued when Congress is in session. This does nottake effect immediately. There is a process. Steps: (1) Process of nomination; (done by the

President), (2) Submission of the COAp and there is action by the COAp i.e. concurrence; (3) On

the basis of this concurrence, issuance of the appointment by the President. Strictly speaking, thereis yet no appointment to speak unless it is acted upon by the COAp (except for ad interim

appointments.)

42. APPOINTMENTS IN ACTING CAPACITY are madewhile Congress is in session andthe person designated by the President already assume office without awaiting the action of the

COAp. This is in order to prevent paralization.

43. Distinction between ad interim appointments and acting appointments. Bothappointments are effective immediately. The differences now are:

1. In the case of ad interim appointments, it is extended only when Congress is in recess, whereas, in

the case of an acting appointment, this is extended anytime.2. An acting appointment need not be submitted to the COAp. This is not so in the case of an ad

interim appointment.3. The nature of an acting appointment is that it is a way of filling important positions in theexecutive branch to prevent a hiatus, or paralization of functions. The Department Sec. is the alter

ego of the President, and there is legal basis for the President to appoint such Department Sec.

Three (3) distinctions between ad interim appointment and regular appointment:

Ad interim Appointments Regular Appointments1. As to effectivity Ad interim appointments are effective

immediately and does not requireconfirmation from Commission on

Appointments

Not effective immediately

because the appointment requiresconfirmation of Commission on

Appointments

2. As to status/revocability Ad interim appointments are permanent

unless disapproved or bypassed by theCommission on Appointments upon the

next adjournment of Congress

Once appointment is approved or

confirmed by the Commission, itcontinues until the end of the

term of the appointee.

3. As to when the

appointment is made

Ad interim appointments are made

when Congress is not in session

Regular appointments are made

by the President while Congress

is in session after the nominationis confirmed by the Commission

on Appointments

The classification of appointments into regular and ad interim can be used only when referring to the four

(4) categories of appointments made by the President as provided in Art. VIII, Sec. 16, namely: (1) Headsof executive departments, (2) ambassadors, other public ministers and consuls; (3) Officers of the AFT,

from the rank of colonel or naval captain; (4) Officers whose appointments are vested in the President

under the Constitution. U

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Three (3) distinctions between ad interim appointments and appointment in acting capacity

Ad interim appointments Appointments in actingcapacity

1. As to scope of

appointment

Ad interim appointments involve

appointment requiring confirmationfrom the Commission on Appointment.

There is a need to submit the

appointments to the Commission onappointments

Appointments in acting capacity

or temporary appointments areprohibited when the same

involves appointment to

Constitutional Commission

2. As to permanence Ad interim appointments are permanent

unless disapproved or bypassed by theCommission on Appointments upon the

next adjournment of Congress

Temporary appointments are not

permanent. They cannot exceed12 months.

3. As to when appointment

made

Ad interim appointments are made

when Congress is not in session

Temporary appointments are not

necessarily made when Congressis not in session. It may be

extended any time.

4. As to revocability Valid until revoked or bypassed by CA

upon next adjournment of Congress

Revocable at will, without the

necessity of just cause or a valid

investigation.

Appointments in acting capacityare extended to one who may not

possess the requisite

qualifications or eligibilityrequired by law for the position.

Purpose of extending

appointments in acting capacity isto prevent paralization in theexecutive branch.

Bar Q: Four groups of appointments by the President

Art 7, Sec 16, Constitution: The President shall nominate and, with the consent of the Commission on

Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and

consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officerswhose appointments are vested in him in this Constitution. He shall also appoint all other officers of the

Government whose appointments are not otherwise provided for by law, and those whom he may be

authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower inrank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or

boards.

The President shall have the power to make appointments during the recess of the Congress, whether

voluntary or compulsory, but such appointments shall be effective only until disapproved by theCommission on Appointments or until the next adjournment of the Congress

1st sentence: It speaks of specific positions in the higher echelons of the government that would require

the concurrence of the Commissions on Appointments. All other appointments need not pass through

COAp. If the appointment is extended to a position is not among those enumerated on the 1st sentence,

then no need to pass through COAp.

1. APPOINTMENTS WHICH WOULD REQUIRE THE CONCURRENCE OF THE COAp.

1. Heads of executive departments;

2. Ambassadors, other public ministers and consuls;

3. Officers of the AFP from the rank of colonel or naval captain;4. Other officers whose appointments are vested in the President in the Constitution, namely:

a. Regular Members of the Judicial and Bar Council (Art. 8 Sec 8(2))

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b. Chairmen and members of COA, COMELEC and COAp. (Art. 9)

c. Members of the Regional Consultative Commission (Art. 10, Sec. 15)d. Appointment to the position of sectoral representative in Congress (Art. 18, Sec. 7)(Case:

Quintos-Deles vs. COAp)

2. ALL OTHER OFFICERS OF THE GOVERNMENT WHOSE APPOINTMENT ARE NOTOTHERWISE PROVIDED BY LAW: When the law itself is silent as to who the appointing power is,

such power to appoint belongs to the President.

3. THOSE WHOM THE PRESIDENT MAY BE AUTHORIZED BY LAW TO APPOINT (need notrequire concurrence of the COAp).

You have other officials whose appointments are still conferred to the president by law. If the law gives

authority to president to appoint, there is no need for the concurrence of the COAp because it is the law

itself giving the authority to the President and not the Constitution. If the appointment is solely to be madeby the President, this is not an ad interim appointment because once the appointment is issued, it is a

completed act.

4. OFFICERS LOWER IN RANK WHOSE APPOINTMENT THE CONGRESS MAY VEST TOTHE PRESIDENT BY LAW.

Sarmiento vs. Guizon The matter of the appointment of Bureau heads in the executive branch. Thehead of the Bureau of Customs take note, officers lower in rank therefore his appointment may by law

be vested in the President alone. Of course, the law itself may provide that the appointing power be not

the president. The law may provide that the appointing authority should be the Dept. Secretary or the headof the agency.

Bautista vs. Salonga (1989): The matter of appointment of the Commissioners and the Chair of theCommission of Human Rights is not subject to the concurrence of COAp. The appointment of the

president is a complete act in itself, valid already.

Congress has no power to expand the confirmation powers of the COAp. [Tarrosa vs. Singson (May1994) The appointment to the position of Governor of Bangko Sentral need not be with concurrence ofthe COAp]

Calderon vs. Carale (1992): Art. 215 of the Labor Code as amended by RA 6715 insofar as it requiresthe confirmation of the Commission on Appointments of appointments of the Chairman and Members of

the National Labor Relations Commission (NLRC) is unconstitutional and of no legal force and effect.

MANALO VS. SISTOZA (1999)1 - The matter of the provision in the law of the PNP, RA 6975 as

amended, creating the revitalized DILG. The law here provides that the Senior Police officers of the PNPfrom Senior Superintendent up to the Deputy Director General ought to be subject to the confirmation ofthe COAp. The SC ruled that this proviso in the law is unconstitutional because police officers are not

among those mentioned/enumerated in Art. 7, Sec. 16.

Under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to

be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officersof the armed forces from the rank of colonel or naval captain, and other officers whose appointments

are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by

law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

1Bar Question

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It is well-settled that only presidential appointments belonging to the first group require the

confirmation by the Commission on Appointments. The appointments of respondent officers who are notwithin the first category, need not be confirmed by the Commission on Appointments.

It is petitioner's submission that the Philippine National Police is akin to the Armed Forces of thePhilippines and therefore, the appointments of police officers whose rank is equal to that of colonel or

naval captain require confirmation by the Commission on Appointments.This contention is equally

untenable. The Philippine National Police is separate and distinct from the Armed Forces of the

Philippines.Under Section 4 of Article XVI of the 1987 Constitution,

"The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo

military training and service, as may be provided by law. It shall keep a regular force necessary for thesecurity of the State."

On the other hand, Section 6 of the same Article of the Constitution ordains that:

"The State shall establish and maintain one police force, which shall be national in scope and civilian

in character to be administered and controlled by a national police commission. The authority of local

executives over the police units in their jurisdiction shall be provided by law."

To so distinguish the police force from the armed forces, Congress enacted Republic Act 6975 whichstates in part:

Section 2. Declaration of policy - It is hereby declared to be the policy of the State to promote peace

and order, ensure public safety and further strengthen local government capability aimed towards the

effective delivery of the basic services to the citizenry through the establishment of a highly efficient andcompetent police force that is national in scope and civilian in character. xxx

The policy force shall be organized, trained and equipped primarily for the performance of policefunctions. Its national scope and civilian character shall be paramount. No element of the police force

shall be military nor shall any position thereof be occupied by active members of the Armed Forces of

the Philippines.

The police force is different from and independent of the armed forces and the ranks in the military are

not similar to those in the Philippine National Police. Thus, directors and chief superintendents of the

PNP, such as the herein respondent police officers, do not fall under the first category of presidentialappointees requiring the confirmation by the Commission on Appointments.

PIMENTEL VS. ERMITA One issue raised here is whether or not it is within the power of Congressin enacting a law imposing upon the President, the obligation to appoint automatically the undersecretary

as the presidents alter ego. The Supreme Court ruled that the Congress cannot by law impose upon the

President the duty to automatically appoint the undersecretary as her alter ego. Why? Becauseappointment involves a great deal of trust and confidence on the part of the president.

44. Termination of Official Relations1. Abolition of office;

2. Incompatibility of public offices;

3. Abandonment;4. Resignation;

5. Removal

a. Grounds for disciplinary actions6. Impeachment

7. Recall8. Expiration of term

9. Prescription of the right to office;10. Death;

11. Failure to assume elective office within 6 months from proclamation

12. Conviction of a crime13. Filing of a certificate of Candidacy

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45. ABOLITION OF OFFICE - Neither considered removal or separation from office; not

covered by SOT guarantee. This mode would require an important ingredient: abolition of officemust be done in good faith, bona fide. Otherwise, in the absence of good faith, the abolitionwould be a circumvention of the guaranteed security of tenure. It would already be construed as a

constructive dismissal.

Ginson vs. Municipality of Murcia (1988): The valid grounds for abolition would include byreasons of economy, or in order to remove redundancy of functions where there is overlapping of

functions. But this would not be present if, let us say, supposedly for the removal of redundancy offunctions, the new position created still performs the same duties and responsibilities. Clearly

negates good faith.

Dario vs. Mison (August 8, 1989): in place of these 334 abolished positions, there were 522 newemployees appointed. Clearly this negated good faith. Thus the abolition of the offices was not

bona fide.

+++

46. INCOMPATIBILITY OF PUBLIC OFFICES (Acceptance of another position to

another office) : There is antagonism that would arise in the performance of the two offices beingheld. It is, in fact, the performance of duties pertaining to two or more offices that are

incompatible with each other. Crucial Test: Whether one office is subordinate to the other suchthat the other office has to right to interfere with the other.

PIC vs. Elma the positions are incompatible. Because as Chief Presidential Legal Counsel, hewill be required to render legal opinions on his own actions as chairman of the PCGG.

Examples of incompatible offices: we have a provincial atty. or City Legal Officer and at the sametime holding the position of a Provincial or City Prosecutor. For one, the City atty. is an officer of

the LGU while the prosecutor is under the dept. of Justice in the National Government as he acts

in behalf of the people. But a more telling illustration here is the position of accountant andAuditor. So these positions cannot be occupied by the same officer. What principle applies here?

The principle of check and balance.

Effect of incompatibility of offices: The acceptance of a second position which is incompatible tothe first results in automatic forfeiture of the prior office. Meaning that the officer vacates the first

position by the acceptance of the second position.

47. ABANDONMENT: The abandonment must be total and voluntary. This is the voluntary

relinquishment of the office with the intent of terminating the officers possession and control of

such office. Elements: 1.) an intention to abandon, and 2.) the overt act of abandonment. There

is no abandonment of office where the non-performance of the (functions) of office arises from thetemporary disability. OR let us say, there is involuntary failure to perform for reasons beyond

the public officer/employees control. Here, it cannot be said that abandonment of the office is

total.48. RESIGNATION - Requisites: (1) There must be intention to relinquish surrender the

position; (2) Such relinquishment must be made voluntarily; (3) There must be acceptance by the

competent and lawful authority of such resignation. It follows that if the authorized officer to acton the resignation has not acted on the same and the public officer already separated himself from

his office (there is now abandonment of his office), he (pub. off.) becomes criminally liable under

Art. 238 of RPC which provides for a penalty of arresto mayor. So you cannot simply submit aresignation and consider the same as already valid. You must wait for the approval/acceptance of

such resignation, otherwise you will be held criminally liable for abandonment of office.

Local Govt Code, Sec. 82:

Resignation of Elective Local Officials. - (a) Resignations by elective local officials shall be deemed

effective only upon acceptance by the following authorities:

(1) The President, in the case of governors, vice- governors, and mayors and vice-mayors of highly

urbanized cities and independent component cities;

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(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-

mayors of component cities;

(3) The sanggunian concerned, in the case of sanggunian members; and

(4) The city or municipal mayor, in the case of barangay officials.

(b) Copies of the resignation letters of elective local officials, together with the action taken by the

aforesaid authorities, shall be furnished the Department of Interior and Local Government.

(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within

fifteen (15) working days from receipt thereof.

(d) Irrevocable resignations by sangguniang members shall be deemed accepted upon presentation

before an open session of the sanggunian concerned and duly entered in its records: Provided,however, That this subsection does not apply to sanggunian members who are subject to recall

elections or to cases where existing laws prescribe the manner of acting upon such resignations.

49. REMOVAL FROM PUBLIC OFFICE - Take note of the important provision under theConsti that no public officer or employee may be removed from office except for causes as

provided for by law. (Art. 9-b) Take note that in the CS Law and Administrative Code there is this

further phrase of "after due process.." What is the essence of this due process? It is simply theright of a person to be heard before being condemned.

AGUINALDO DOCTRINE: An elective official who is charged for an offense or misfeasances

during a prior or previous term could note longer be sanctioned during his present term becausethe present term is not a continuation of the previous term. The two terms are separate and

distinct from each other. The other reason here is if this gov't official runs for reelection and he

won and the alleged offense committed was done during his previous term, he cannot be

sanctioned in the succeeding term (if successfully elected) because there is condonation by thepeople. So this is also known as the principle of condonation. So the removal of a public officercannot extend beyond the term of which the alleged malfeasance, misfeasance, misconduct isconvicted. Take note that this doctrine applies only to administrative cases. As an act or

omission may give rise to both an administrative and a criminal liabilities. Even if in the

administrative case, there is this application of the Aguinaldo doctrine, this rule does not hold truefor his criminal liabilities. The imposition of penalty for criminal liability, despite re-election of

the public official, may still be had. Thus he may still be charged criminally.

50. ADMINISTRATIVE DISCIPLINARY ACTIONS -If the offense has nothing to dowith the official duties of the public officer, before the officer may be charged administratively,

the act or commission (complained of) must amount to a crime involving moral turpitude andthere must be a conviction in the criminal case (and includes the disqualification to hold

office). Let us say, A commits rape. Can he be charged with misconduct? No, unless there is a

conviction by final judgment. This is a prior requirement to the institution of the administrative

case. The exception to this rule is: when the act complained of also constitutes a violation ofadministrative rules. If such act also constitutes a violation of administrative rules, then there is no

more need for prior conviction by the court.

But if the act or omission constitutes a crime and is directly related to the office of the public

officer, such as misconduct, there is no need to await for a conviction in the criminal case .

Example, malversation -- it gives rise to an administrative case of misconduct. This does not mean

that there must be judgment first rendered in the criminal case. The admin case can proceedindependently of the criminal case.

LOCAL GOVERNMENT CODE:

SEC. 60. Grounds for Disciplinary Actions. - An elective local official may be disciplined, suspended,

or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

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(c)Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense punishable by at leastprision mayor;

(e)Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members ofthe sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang

barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an

immigrant of another country; and(h) Such other grounds as may be provided in this Code and other laws.

(i) An elective local official may be removed from office on the grounds enumerated above by order

of the proper court.

Note: See also PD 807 Title IX Section 36, Sec. 46, EO 292.

Take note that LIBEL per se is not an administrative offense.

51. Misconduct: Misconduct pertains to the failure of a public officer -- it affects theperformance of his duties as a public officer but also his character as a private individual. It may

be simple and grave. When do we say that the misconduct is grave? Here the element ofcorruption is present; the element of misuse of office; the flagrant disregard or violation of norms

and rules; clear intent to violate the law.So, if the crime is not connected with the official duties, the administrative case cannot be proceed

independently of the final conviction in the criminal case.

Rule is different in case of dishonesty:

52. Dishonesty - There is no need for the act constituting dishonesty be related to the officialfunctions and duties. This means that the act constituting dishonesty may or may not be connected

with public duties. Thus if a public officer is dishonest, it is not needed that it be related to his

office for the institution of the administrative case. Why? Take note that if a public officer isdishonest, this defect of character affects his right to continue discharging the duties of publicoffice.

So for example A, a public officer, falsifies a document (assuming it was not related to his duties).For example he forges the signature of his siblings to get his inheritance. This has nothing to do

with his official duties, right but this is dishonesty. But even so, if the evidence is sufficient, A can

already be removed even if the act or omission was not related to his official duties.

What about the willful failure to pay a just debt as a ground for disciplinary actions? This is

actually a light offense punishable by reprimand for the first transgression.

There are conditions before the administrative tribunal can take cognizance of this ground for

disciplinary action against the public officer: There must be a determination by the court that the

debt is just, meaning there is already a judgment by the civil court before the administrativetribunal can take cognizance. OR in the absence of a decision of the civil court that the publicofficer is indeed lawfully indebted to the creditor, the administrative tribunal can still take

cognizance of the case ifthe debt is acknowledged by the public officer-debtor. Thus this may bea basis of an administrative disciplinary action should there be a failure to pay such debt.

What principle applies if a public officer is charged with two or more offenses? What is the rule inthe matter of the imposition of the penalties? He shall be penalized with the penalty corresponding

to the most serious offense charged. The others shall be considered as aggravating circumstances.For example the public officer was also facing other charges and was likewise found guilty, the

penalty will not only be for 6 months 1 day but may be increased to 1 year.

Note: in cases like dishonesty, misconduct, first offense is already sufficient for dismissal.

Conduct prejudicial to the service warrants the penalty of suspension.

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53. EFFECT OF DISMISSAL FROM SERVICE - It has the effect of the forfeiture of

retirement benefits. In the RPC, among the accessory penalties, would include perpetualdisqualification for employment in the public service.

What about the value of the earned leaves? Are they forfeited too? No, because they are alreadyearned and thus public officer is entitled to them.

What about a person who is dropped from the rolls? (Basis for dropping a person from the rolls is

if he has been absent for more than 30 days without filing for an official leave.) Dropping from therolls this is not a disciplinary action, thus there is no forfeiture of the retirement benefits. Thus

there is still a possibility that he may be re-employed.

But the dropping from the rolls can only be done after the observance of due process.

Note that it is also possible that the agency need no longer wait for the expiration of the 30 dayperiod before it drops a public officer/employee from the roll if the exigencies of the service

demand his immediate presence, and despite order to him to report to work, he still refuses, then

the head of the agency may drop him from the rolls (even prior to the expiration of the 30 dayperiod) so long as there is due notice given to the public officer.

Dagadag vs. Tongnawa and Gammod:Mayor Dagadag dropped Tongnawa and Gammod (municipalengineer and municipal planning and development coordinator respectively) from the rolls since theirAWOL exceeded 30 days. CA ruled that the absences of an officer or employee before he can be

dropped from the roll must be for at least 30 days without approved leave. The absences without

authorized leave must be continuous, which means uninterrupted, or unbrokent totaling at least 30days. It has to be continuous.

54. Is it possible for a public officer to be removed from public service on the ground of mentalincapacity/instability? Yes, there are two modes of separation:

1. Administrative action may be commenced on the grounds of mental incapacity due to immoral orvicious habits.

2. Non-disciplinary administrative action but on the ground of mental incapacity or disability (or

simply on the inability of the public officer to perform the duties of the public office by reason of

mental incapacity)

55. What is the difference between the 2 modes of separation? First mode- there are correspondingaccessory impositions, i.e. forfeiture of benefits, perpetual disqualification. Second mode- publicofficer may still recover benefits.

ROMAGOS VS. METRO CEBU WATER DISTRICT 533 SCRA 50

HELD: Causes for separation from government service of an officer or employee is mental incapacity,

viz.

Sec. 46. x x x (b) The following shall be grounds for disciplinary actions: x x x (19) Physical or mental

incapacity or disability due to immoral or vicious habits.

Separation from the service for such cause is done by way of a disciplinary proceeding governed by

Rule II of CSC Memorandum Circular No. 19, series of 1999 (MC 19-99). The minimum procedural

requirements thereof are: a) that notice of the charge be served on the officer or employee; and, b) that

the latter be given opportunity to be heard.

Before an officer or employee may be dropped from the rolls for mental incapacity, the following

elements and process must obtain: first, that it has been observed that the subject officer or employeehas been behaving abnormally for an extended period; second, that it has been established through

substantial evidence that such abnormal behavior manifests a continuing mental disorder and incapacity

to work; third, that a written notice is issued by the subjects immediate supervisor, describing theformers continuing mental disorder and incapacity to work and citing the reports of his co-workers or

immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by

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the appointing authority or head of office, informing the subject of his separation from the service due

to mental incapacity.

Thus, a declaration of mental disorder does not automatically translate to a judgment of mental

incapacity to perform work. A window remains open for the affected officer or employee to counteropinion on his mental condition and to show that his ability to work remains unimpaired. Only then

may the appointing authority or head of office decide on whether said officer or employee is no longer

mentally capable of performing his work and should be discharged. These requirements are designed to

obviate misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment.

56. JURISDICTION

PD 807 Section 37.Disciplinary Jurisdiction.

(a) The Commission shall decide upon appeal all administrative disciplinary cases involving the

imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty

days' salary, demotion in rank or salary or transfer, removal or dismissal from Office. A complaint may

be filed directly with the Commission by a private citizen against a government official or employee inwhich case it may hear and decide the case or it may deputize any department or agency or official or

group of officials to conduct the investigation. The results of the investigation shall be submitted to the

Commission with recommendation as to the penalty to be imposed or other action to be taken.

(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shallhave jurisdiction to investigate and decide matters involving disciplinary action against officers and

employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is

suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In casethe decision rendered by a bureau or office head is appealable to the Commission, the same may be

initially appealed to the department and finally to the Commission and pending appeal, the same shall

be executory except when the penalty is removal, in which case the same shall be executory only after

confirmation by the department head.

(c) An investigation may be entrusted to regional director or similar officials who shall make the

necessary report and recommendation to the chief of bureau or office or department within the period

specified in Paragraph d of the following Section.

(d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension orremoval, the respondent shall be considered as having been under the preventive suspension during the

pendency of the appeal in the event he wins an appeal.

Lets say that an employee of the DAR is charged, where shall the complaint be filed? It may be filed withthe DAR authorities; under the revised administrative code and/or the CS Law, the same administrative

complaint may be filed with the CSC.

Let us say it is in fact lodged before the CSC, now the law gives the CSC the option either to takecognizance of the case, but generally, if the case involves merely a low ranking employee belonging to

the 1st and 2nd level, the CSC will refer the case to the administrative authority of the employee, in this

case the DAR. But this is without prejudice to the appellate authority of the CSC.

Now, what about elective officials?

SEC. 61. Form and Filing of Administrative Complaints. - A verified complaint against any erring local

elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independentcomponent city or component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sangguniang

panlalaw igan whose decision may be appealed to the Office of the President; and

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(c) A complaint against any elective barangay official shall be filed before the sangguniang

panlungsod or sangguniang bayan concerned whose decision shall be final and executory.

Applying the provisions of the LGC, EO 292 and the CS law, since the chief executive of the localgovernment unit has the discretionary to appoint, he also has the power to discipline. This concludes that

the power to discipline includes the power to remove. So clearly, the Chief executive of the LGU, matters

relative to misfeasances committed by appointive public officials of that LGU, these heads of the LGUshave the competence to impose disciplinary actions after the observance of due process.

Let us say in fact that the Chief of the LGU imposes the penalty of dismissal from service, of courseunder the law the aggrieved party has the right to appeal. Question, where should the aggrieved party

appeal his case? The appeal may be taken first by an MFR to the Chief Exec. If denied the remedy is

before the CSC. Is there any other higher body if on appeal to the CSC, the commission affirms the

dismissal? The CA may take cognizance.

Here, if there is reversal of the Chief Executive's decision as affirmed by the CSC but reversed by the CA,

who becomes the aggrieved party for the purpose of appealing to the SC? The aggrieved party now is theChief executive. He is now the proper party to appeal the said case to the SC or even in an MFR to the

CA. So where the decision itself of the CSC is reversed by the CA, then the aggrieved party is the CSC.

(Take note that the power to appoint carries with it the power to remove after the finding of guilt indisciplinary proceedings)

Let us say that during the pendency of the appeal, the mayor who initiated the action in appealing thedecision to higher authorities is replaced in the election, may the successor who was not even a party who

initiated the appealed case take the place of his predecessor? YES, the fact that the mayor is no longer in

the service certainly is not a basis for the dismissal because the successor-in-interest (the newly elected

mayor) takes the place of the previous mayor. He represents the LGU, who is in fact the aggrieved partyhere, not the mayor in his personal capacity but the local government. It is certainly within the

competence of the successor to maintain the action initially initiated.

57. IMPEACHMENT - Who are impeachable officials?

1987 CONSTI, Art. 11 Section 2. The President, the Vice-President, the Members of the Supreme

Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from

office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery,graft and corruption, other high crimes, or betrayal of public trust. All other public officers and

employees may be removed from office as provided by law, but not by impeachment.

Commissioners of the Commission on Human Rights are not impeachable officers (Bautista vs. Salonga)The SC held that the terms of the commissioners are fixed at a period of 7 years, and they cannot be

replaced sooner than 7 years, unless the ground is recognized under the law. The Commissioners can only

be removed on grounds provided by law, but they are not impeachable officers because only thosecommissioners of the constitutional commissions mentioned in Art. 11, Sec. 2 are the so-call impeachable

officers.

In the 2000 Bar, the question asked was, is cronysm a ground for impeachment? What is cronysm?Cronysm is in fact a legal ground for impeachment because it involves betrayal of public trust. This is a

violation of the oath of office and this includes unduly favoring a crony to the prejudice of public interest.

All other officers may be removed on grounds provided by law but not by impeachment.

CUENCO VS. FERNAN 158 SCRA 29 (1988) where there was an anonymous complaint allegedlycoming from certain employees of the Supreme Court complaining of the alleged violations committed by

Associate Justice Fernan. The matter was brought before the Supreme Court because of the legal

repercussions. The Supreme Court ruled that it does not mean that such official is above the law. It simply

means that there must be compliance of the fundamental requisites embodied under the Constitutionthatis to oust the official through the mode of impeachment. Should there be action, whether disbarment case

filed before such official, the same ought to be dismissed.

58. RECALL18


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SEC. 69. By Whom Exercised. - The power of recall for loss of confidence shall be exercised by theregistered voters of a local government unit to which the local elective official subject to such recall

belongs.

Under the Local Government Code, the other mode is the Recall of the local elective official. Take note

that the mode mentioned in the LGC that is through preparatory recall assembly has already been

amended by RA 9244 and thus you have here any elective local official may be the subject of recall

proceedings upon the sole ground of loss of confidence.

What is this loss of confidence? This is simply the formal withdrawal of the electorate of their trust in the

local elective officials ability to discharge the functions of the elective office.

In Bardone vs. Comelec: The Court ruled that the loss of confidence as a ground to remove a local

elective public official is a political question. So what conclusion do we reach here if it is a politicalquestion? Therefore the court has no power to rule on the validity of the recall of the local elective

official. Since this is a political question, this belongs to the political realm where only the people are the

sole judges.

SEC. 74. Limitations on Recall. - (a) Any elective local official may be the subject of a recall electiononly once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or

one (1) year immediately preceding a regular local election.

Take note likewise of Sec. 74 of the LGC, the local elective official can only be the subject of recall

proceedings once during his term. And further, no recall may take place within one year from the date ofassumption to office of the public official nor shall such recall proceedings be had immediately one year

preceding the regular local elections. So this means that if the local elective official has a term of 3 years,

he can only be recalled during the 2nd year.

Public officer may still, in fact, continue performing the duties of the public office even beyond his

(fixed) term of office. So you have the concept of hold over as applied to the public official. This meansthat the officer has a fixed term and he continues to discharge the functions of the office even beyond the

expiration of the term. Is this possible? Yes, in the absence of express or implied provision in the

Constitution or law to the contrary, the rule is that the public officer entitled to stay in office until his

successor is appointed or chosen and qualifies for public office.

59. PREVENTIVE SUSPENSION There are two kinds of P/S of a public officer who ischarged with the commission of offenses punishable either by suspension or removal from office:

1. P/S pending investigation this is recognized under Sec. 41 of PD 807 and Sec. 51 0f EO 292

2. P/S pending appeal this happens when as a result of the proceedings, there is a finding of guilt(meaning there is substantial evidence that the public officer is guilty of the offense charged

warranting his dismissal or suspension from office).

Preventive suspension pending investigation is not a penalty. It is simply the initial step in theconduct of administrative proceedings. The basis here is that there is a need for the conduct of an

impartial proceedings and this can only be had if the respondent public officer is removed through

issuance of P/S in order to prevent him from unduly harassing witnesses or theres the possibilityof concealment or destruction of records which are vital evidence in the adjudication of the

administrative case against the public officer.

Take note that the period within which this preventive suspension may be given is different as

applied to local elective officials. Why? Because under the law, the p/s that may be foisted against

him comes only when there is a joinder of issues. When is there joinder of issues? When the local

elective official has already filed his answer within the period provided under the LGC or when,despite order (to file answer) there is refusal (on the part of the local elective official to file the

same) and there is now the lapse of the period, it is only then that an order for his preventive

suspension may be issued.

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In the case of the appointive officer, under the CS Law and EO 292, the issuance of the p/s may be

done at any time after the filing of the administrative case, so long as the conditions are compliedwith: that is whenever the charge involves oppression, serious neglect of duty, etc-- those grave

offenses under the law and evidence of guilt is strong, then p/s may already be issued even without

the respondent yet filing his answer.

One other distinction (between elective and appointive officials) is that as applied to appointive

officials, there can be no recovery of the salaries and other emoluments during the period of p/s

pending investigation even if the respondent is found innocent of the charge.

Not so as applied to elective local officials, why? Because the law itself authorizes the recovery of

the salaries of the local elective official should he be found innocent of the charges.

Under the LGC, the maximum period of preventive suspension for serious offense is only 60 days.

Whereas under the CS Law/ EO 292, the maximum preventive suspension is up to 90 days. Wherethe local elective official is charged with several administrative offenses, the maximum shall be up

to 90 days.

Under the Ombudsman Act, the maximum preventive suspension is up to 6 months.

So, proceedings has before the agency concerned or before the CSC shall follow the requirements

under the CS Law meaning the maximum preventive suspension shall be up to 90 days now,the administrative proceedings under the LGC as applied to elective local officials does not follow

the CS Law. Why? Because they are non-career. Take note that local elective officials belong to

the non-career service because they have a fixed term of office.

Of course, those appointive public officers in the local government unit shall be charged in

accordance with CS rules and regulations. So meaning, if the (appointive) public officer charged isan employee of the LGU, what should govern are the provisions of CS Law or EO 292.

But if the proceedings are undertaken by the OMB, then its office has its own rules. So themaximum p/s is up to 6 months.

As applied to appointive public officers charged in accordance to the CS Rules and regulations,

there can be no recovery of back salaries during such period of preventive suspension pendinginvestigation even if the respondent is exonerated. Not so in the case of local elective officials

because of Sec. 64 of the LGC which expressly provides for the recovery.

SEC. 64. Salary of Respondent Pending Suspension. - The respondent official preventively suspended

from office shall receive no salary or compensation during such suspension; but, upon subsequent

exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments

accruing during such suspension.

Why the difference here? Prior to CS Law, there was a provision providing for the recovery of back

salaries pending investigation. This no longer holds true because of deletion of such provision. What isthe concept of preventive suspension? It is not yet a penalty. It allows the conduct of an impartial

proceedings; it prevents the respondent from using his influence to harass the witnesses and the

complainant and the need to preserve the records used as evidence.

So with proceedings in the office of the OMB, there can be no recovery of back salaries during the period

of preventive suspension.

The second type of preventive suspension is after the investigation, there is now a decision rendered bythe investigating or hearing officer, and the penalty may either be suspension (not to exceed one year) or

dismissal from the service.

The law provides that such decision is already (immediately) executory -- despite the filing of the motion

for reconsideration or appeal, unless there be a restraining order issued by the Court of Appeals, theproceedings had before the OMB or before the Civil Service (bitin! :0 )

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If on appeal the respondent is found innocent of the charges, there can be recovery of the back salaries

during the period.. because let us say, if the decision is already made executory, therefore, the publicofficer is already out of the service, right? In the event that he wins the appeal, such period of preventive

suspension as a penalty since he is already out of the service, shall be considered as the period of

preventive suspension to enable the public officer to recover back salaries. Now, the earlier rulings of theSupreme Court, the recovery is only up to 5 years. Not anymore, so (the recovery is now already) from

the time of illegal dismissal up to the time of reinstatement.

What happens if on appeal, there is here a modification in the decision?

Gloria vs. CA- the teachers were in fact exonerated of the original charges. The original charge wasgrave misconduct by reason of their participation in series of concerted activities. So they joined a seriesof strikes and despite orders of Dep Ed officials, they refused to return to work. So they were

administratively charged. After proceedings, they were dismissed from the service. On appeal, these

teachers were found innocent. They were found guilty of violating reasonable office rules and regulationsbecause they did not file for leave before they went on strike.

Question: Was there exoneration here? Yes, they were exonerated of the original charges. If they wereexonerated, they are entitled to recovery of back salaries despite the fact that they were found guilty of the

light offense of violation of reasonable office rules.

This (Gloria case) should be distinguished from Bangalisan case where the public school teachers whowere dismissed, but on appeal were found guilty of a less grave offense. They were found liable for

conduct prejudicial to the best interest of the service. Is there exoneration here? No, the public school

teachers who were earlier found guilty of grave misconduct but on appeal they were found liable for thelesser charge of conduct prejudicial to the best interest of the service were in fact not exonerated. If they

were not exonerated, it follows that there can be no recovery of back salaries.

In CSC vs. Rabang (March 14, 2008) Rabang here was found guilty by the DOTC as well as the CSCfor gross negligence and neglect of duty. He was ordered dismissed from the service by the CSC. On

appeal to the CA, the CA imposed mere suspension of 3 months for simple neglect of duty. Can there berecovery of salaries?

No, there was no exoneration in this case and therefore there can be no payment of back salaries as he was

in fact found liable.

Facts: Rabang was found guilty of misconduct, gross negligence in the performance of official duties

and conduct prejudicial to the best interest of the service for registering a stolen vehicle. The DOTCimposed penalty of suspension for 6 mont

Documents

Notes on the Law of Public Officers