ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
-
Under the Local Government Code, the preventive suspension of a local
elective official shall not extend beyond 60 days, provided that it shall not
extend beyond 90 days in the event that several administrative cases are
filed against him
DECISION
If the charges are not proved by a preponderance of evidence, the case shall be
dismissed and the respondent reinstated with back salaries and benefits if
preventively suspended.
In the determination of the penalties to be imposed, the extenuating, mitigating,
aggravating or alternative circumstances may be considered.
NOTE: An appeal shall not stop the decision from being executory, and in case the
penalty is suspension or removal, the respondent shall be considered as having
been under preventive suspension during the pendency of the appeal in the event
he wins the appeal.
→ Being found liable for a lesser offense is not equivalent to exoneration.
Likewise, an employee cannot be found administratively liable for acts not alleged
in the formal charges.
APPEAL
→ An appeal sent by mail shall be deemed filed on the date shown by the
postmark on the envelope which shall be attached to the records of the case and,
in case of personal delivery, the date stamped thereon by the proper office.
The Commission has the standing to appeal a decision which adversely affects
the civil service.
NOTE: Decisions, order or rulings of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within 30 days from receipt of
a copy thereof. The remedy of an aggrieved party from a resolution issued by the
Civil Service Commission is to file a petition for review under Rule 43 of the Rules
of Court within 15 days from notice of the resolution.
2021[2nd]
→ Having appellate jurisdiction over decisions of the Commission, the Court of
Appeals has the discretion to issue an ancillary writ of preliminary injunction to
secure the rights of the respondent pending appeal of his dismissal.
slow down com be a
remedy
✓ RIGHT TO SELF ORGANIZATION
All government employees, including those in GOCCs, except members of the AFP,
police officers, policemen, firemen and jail guards, can form, join or assist
employees’ organizations of their own choosing for the furtherance and protection
of their interests.
-
NOTE: High level employees whose functions are not normally considered as
policy-making or managerial or whose duties are of a highly confidential nature
shall not be eligible to join the organization of rank-and-file government
employees.
Government employees’ organizations shall register with the Commission and the
DOLE which, with the support of the majority of the employees in their respective
organizational units, shall be entitled to be designated as the sole and exclusive
representatives of the employees.
Although civil servants are now given the right to organize, they may, however, not
stage strikes.
C5: AUTHORITY OF THE PUBLIC OFFICER
AUTHORITY OF THE PUBLIC OFFICER - is derived from the people themselves
conformably to the constitutional principle that “the Philippines is a republican
state. Sovereignty resides in the people and all government authority emanates
from them.”
This authority is conferred upon him either by the Constitution itself or by statute.
WINENOTES.AUSL-2024 | 26
ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
President
•
may
2021[2nd]
exercise his power anywhere
WHERE IS IT EXERCISED?
→ The public officer may exercise his powers only within the territorial limits of his
authority and that any act performed outside that area will be null and void.
not be extended by implication beyond what may be necessary for their just and
reasonable execution.
EFFECTS:
valid
authorized
long
→ As long as the public officer is authorized and even if not, provided he is a de
facto officer, his acts will be regarded as valid. Such acts will produce legal effect
and be considered binding upon the government itself as the principal of the
public officer.
→ Even if not previously authorized, the act may still be considered valid if it is
subsequently ratified by the government. Only voidable acts, and not absolutely
invalid acts, may be ratified.
→ Where the act was not authorized, it is the exclusive responsibility of the public
officer who committed it.
as
WHEN IS IT EXERCISED?
→ The public officer may exercise his authority only during his term or office.
Hence, any act performed by him after such term will be considered invalid, except
where he may be regarded as a de facto officer.
,
void
For
lack
OF
authority
→ An appointment made by the President to fill an anticipated vacancy occurring
after his term will be invalid even if the appointment itself was made during his
void
term. midnight appointment
is
•
→ Where an officer is authorized to hold over, his acts continue to be valid until his
successor is duly chosen and subsequently qualifies. Such an officer is regarded
as de jure and all his acts have the same legal efficacy as of those performed by
him before the expiration of his fixed term.
any
•
President
doubt
does not
shall
have
be
resolved in
the
favor
Discretionary
of the
→ An officer to whom a discretion is entrusted cannot delegate it to another, the
presumption being that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and unless the power to
substitute another in his place has been given to him, he cannot delegate his
duties to another.
to
DOCTRINE OF NECESSARY IMPLICATION - provides that all powers necessary to
the exercise of the power expressly granted are deemed impliedly granted. Where
a general power is conferred or duly enjoined, every particular power necessary for
the exercise of the one or the performance of the other is also conferred.
NOTE: If he has been given the discretion to act or not to act upon a certain
matter, his decision not to act cannot be the subject of a judicial reversal.
The claim of power may also be justified on the ground that the power is inherent.
An example is the police power, which may be asserted by the national legislature
despite the absence of constitutional vesture.
•
the
construction of
a
statute by
those
administering
it
is
not
binding
on
their
Discretion is not totally unlimited. It is restricted by the very qualities that justified
its conferment—the judgment and good sense of the delegate. If these are not
employed in the discharge of the duty, or if the duty was performed arbitrarily or
capriciously, or with disregard of rights, there results what is known as a grave
abuse of discretion, which may be corrected in appropriate judicial proceedings.
successors
NOTE: An administrative officer has only such powers as are expressly granted to
him and those necessarily implied in the exercise thereof. These powers should
•
Doctrine
Of
Qualified Political Agency
-
latter's
•
Each
head
OF
department
is
the
secretaries
department
power
President 's
of
alter
control
ego
may
exercise
powers
delegated
to
them
by the
Pres
subject
=
KINDS OF DUTIES
ministerial
1. Discretionary - if the officer is allowed to determine how and when it is to
be performed and to decide this matter one way or the other and be right
either way. The officer is allowed much leeway in arriving at a decision as
the duty is conferred on him in recognition of his good sense or judgment.
public
HOW IS IT EXERCISED?
→ Representative government is a government of limited powers. Any doubt on
this matter shall be resolved in favour of the public and against the exercise of the
authority
promulgate
authority claimed.
-
as
to
•
TIDCOR ( trade and
investment
Development
Corp )
.
-
the
doctrine QPA
cannot
be
extended
WINENOTES.AUSL-2024 | 27
ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
☐
mechanical
example
:
tax
act
this
collector / COMELEC
g.
2. Ministerial - the officer is given little latitude in its discharge, prescribing
and defining the time, mode and occasion of its performance with such
certainty that nothing is left for judgment or discretion.
→ No particular qualification is required for the discharge of this kind of duty
because the law itself defines with precision the occasion and manner of its
exercise. Thus, the ministerial duty can be compelled by judicial action.
perform his
• must
For the enhancement
(
crime
-
powers and duties For the
his own interest
OF
benefit of
people
and
is
excluded
inhibition applies only
during
the
legislator's
tenure
against personal
appearance
as
counsel
my
4. No Senator or Member of the HoR may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or
quasi-judicial and other administrative bodies.
Neither shall he, directly or indirectly, be interested financially in
pecuniary benefit
any contract with, or in any franchise or special privilege granted
economic gain
by the Government, or any subdivision, agency, or instrumentality
thereof, including any GOCC, or its subsidiary, during his term of
office. He shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called
upon to act on account of his office.
5. No member of a ConComm shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of any profession
Duane case
or in the active management or control of any business which, in any way,
holding
may be affected by the functions of his office, nor shall he be financially
position in
member
interested, directly or indirectly, in any contract with, or in any franchise or
OF the
governing
privilege granted by the Government, any of its subdivisions, agencies, or
boards
instrumentalities, including government- owned or controlled corporations
or their subsidiaries. This inhibition applies as well to the Ombudsman and
his Deputies.
6. No officer or employee in the civil service shall engage, directly or
except
active support
affiliation
to
political
indirectly, in any electioneering or partisan political campaign. party candidate
7. No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure. Unless
otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof,
including GOCCs or their subsidiaries. incompatible office
8. No elective or appointive public officer or employee shall receive
additional, or indirect compensation, unless specifically authorized by law,
nor accept without the consent of Congress any present emolument,
office, or title of any kind from any foreign government.
Pension or gratuities shall not be considered as additional,
public
principle
double, or indirect compensation.
public
9. No loan, guaranty, or other form of financial accommodation for any
business purpose may be granted, directly or indirectly, by any
-
C6: INHIBITION
INHIBITION - it is a restraint upon the public officer against the doing of certain
acts which may legally be done by others. It differs from disqualification, although
the two terms are used interchangeably, in that the latter denotes the lack of a
needed eligibility for a certain office.
2021[2nd]
not
as
→ Inhibitions are prescribed either by the Constitution or by statute and may be
general or specific in their application.
•
CONSTITUTIONAL INHIBITION
1. The President and VP shall not receive during their tenure any other
emolument from the Government or any other source.
2. The President, Vice President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in the
Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially
Constitution
refers
1987
office
holding
interested in any contract with, or in any franchise, or special
appointment
designation
privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including GOCCs or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their
office.
3. No Senator or Member of the HoR may hold any other office or
employment in the Government, or any subdivision, agency, or
instrumentality thereof, including GOCCs or their subsidiaries, during his
term without forfeiting his seat.
the
to
and
the
of
the
nature
of
not to
/
the
.
•
PNRC
is
not
a
government
office
or
an
office
in
For
means
vote
w/
or
cause
OF
the
a
/
-
commitment
office is a
to
the
fundamental
that
a
trust
GOCC
WINENOTES.AUSL-2024 | 28
ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
government-owned or controlled bank or financial institution to the
President, the Vice-President, the Members of the Cabinet, the Congress,
the Supreme Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have controlling
interest, during their tenure.
CONSTITUTIONAL DISQUALIFICATION
→ The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as Members of
the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
GOCCs and their subsidiaries.
→ No Senator or Member of the House of Representatives shall be appointed to
any office which may have been created or the emoluments thereof increased
during the term for which he was elected.
→ The members of the Supreme Court and of other courts established by law shall
not be designated to any agency performing quasi-judicial or administrative
functions.
→ Appointees to the Constitutional Commissions must not have been candidates
for any elective position in the elections immediately preceding their appointment.
void
OTHER INHIBITION
any purchase
● No officer or employee of the government shall purchase directly or
indirectly any property sold by the government for non-payment of any tax,
fee or any other public charge. Any such purchase shall be void.
● Even if allowed by law or by the primary functions of his position, a
member of the Cabinet, undersecretary, assistant secretary or other
appointive official of the Executive Department may hold not more than
two positions in the government and government corporations and
receive the corresponding compensation therefor: Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
● No judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of consanguinity
=
→
2021[2nd]
or affinity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has been presided in any
inferior court when his ruling or decision is the subject of review, without
the written consent of all parties in interest, signed by them and entered
upon the record. A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just or valid reasons other
than those mentioned above.
● No judge or other official or employee of the superior courts or of the
Office of the Solicitor General shall engage in private practice as a
member of the bar or give professional advice to clients.
● No Chairman or commissioner of the COMELEC shall sit in any case in
which he has manifested bias or prejudice or antagonism against any
party thereto and in connection therewith, or in any case in which he
interest
pecuniary
would be disqualified under the Rules of Court.
● The Chairman and the Members of the Commission on Human Rights
shall not, during their tenure, hold any other office or employment. Neither
additional
shall they engage in the practice of any profession or in the active
management or control of any business which in any way will be affected
by the functions of their office, nor shall they be financially interested,
directly or indirectly, in any contract with, or in any franchise or privilege
granted by the government, or any of its subdivisions, agencies, or
instrumentalities, including GOCCs or their subsidiaries.
● Civil servants shall not strike against the Government as a means of
securing changes in the terms and conditions of employment.
OTHER DISQUALIFICATIONS
→ All appointments in the national, provincial, city and municipal governments or
in any branch or instrumentality thereof, including GOCCs, made in favour of a
relative within the third degree of consanguinity or affinity, or of the appointing or
recommending authority, or of the chief of the bureau of office, or of the person
exercising immediate supervision over him, are prohibited.
→ The following are disqualified from running for any elective local position:
•
municipal judges
may
not
engage in
notarial
work
except
as
notaries public
ex
officio
.
WINENOTES.AUSL-2024 | 29
ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
-
Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by 1 year or more for imprisonment,
within 2 years after serving sentence
Those removed from office as a result of an administrative case
Those convicted by final judgment for violating the oath of allegiance to
the Republic
Those with dual citizenship
Fugitives from justice in criminal or non-political cases here or abroad
Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the
effectivity of the Local Government Code
The insane or feeble-minded
-
-
C7: SALARY AND PREREQUISITES
government
service
demands
the service
•
every
public
servant
shall
at
great
sacrifice
.
One who cannot live
all times uphold public interest
over
w/ the
his
modest
personal
salary of
a
public Office
has
no
business
staying
SALARY - it is NOT an essential element of a public office. In fact, there is such a
thing as an honorary
office,
to which no compensation is attached and where the
this
exception
incumbent is prepared and willing to serve gratis.
is
rather than
in
tax
interest
PURPOSES OF COMPENSATION AND PREREQUISITES
1. To attract competent men to the government service
2. To lessen the temptation for graft as there would be little need for the
public officer to augment his income through illegal methods
3. To lend the necessary prestige to the office
4. To pay and to reward the public officer for the loyalty and dedicated
service
•
LIMITATIONS
1. The salaries of Senators and Members of the House of Representatives
shall be determined by law. No increase in said compensation shall take
effect until after the expiration of the full term of all the Members of the
Senate and the House of Representatives.
2. The salaries of the President and the Vice President shall be determined
by law and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of the
incumbent during which shall increase was approved.
subject
witholding
3. The fr
salary of the Chief Justice and of the Associate Justices of the
Supreme Court, and of the judges of the lower courts shall be fixed by law.
During their continuance in office, their salary shall not be decreased.
4. The salary of the Chairman and the Commissioners of the Constitutional
Commissions shall be fixed by law and shall not be decreased during their
tenure.
5. The salaries of the Ombudsman and his Deputies, which shall be the
same as those provided for the Chairmen and Members, respectively, of
the Constitutional Commissions, shall not be decreased during their term
of office.
to
EFFECTS OF VIOLATION
→ Sanctions for the violation of the inhibition will depend upon the law imposing it
or implementing the constitutional restriction.
•
2021[2nd]
is
property right
SALARY AND DUE PROCESS right
→ Even as the salary may be increased, it may also be reduced and, in fact,
altogether be abolished at the discretion of the law-making body. In the latter
event, the functionary who is prejudiced as a result cannot complain.
-
to
salary
not
a
NOTE: No reduction or abolition of salary can operate retroactively to affect
salaries already earned or accrued. Such salaries are regarded as vested property
rights and such will come under the protection of due process. To be valid, the law
should have prospective effect only, to cover salaries yet to be earned.
rule
SOURCE OF SALARY - may be provided by the Constitution or by statute.
RIGHT TO SALARY
It is based on the right to the office itself and accrues from the date of actual
commencement of the discharge of official duties. In the case of the 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.
WINENOTES.AUSL-2024 | 30
ADMIN,LAW ON PUBLIC OFFICER & ELECTION LAW; CRUZ NOTES | Atty. Guerrero
→
•
•
salary
Department
The
policy
of
OF
Budget
equal pay
For
and
Management
substantially
equal
-
review salaries
to
of
gov't
personnel
work
GR: The de facto officer cannot himself benefit from his status and so is not
allowed as a rule to collect salaries for services rendered.
XPN: where he had acted in good faith and there is no officer de jure claiming the
office.
NOTE: Where a public officer under investigation or prosecution is preventively
suspended but subsequently exonerated, he is entitled to payment of the salaries
corresponding to the period of his preventive suspension.
→ Back salaries are also payable to an officer illegally dismissed or otherwise
unjustly deprived of his office, the right to recover accruing from the date of
deprivation. A claim for back salaries cannot stand by itself. It must be coupled
with a claim for reinstatement. Claims for back salaries are subject to the
prescriptive period of 1 year.
An employee who is reinstated to his former position but who has pending
administrative and criminal charges against him may only be paid his back
salaries when he is absolved of the charges.
General
2021[2nd]
standardization
Provision :
a
public official is
not
entitled
to
any compensation
if
he
has not
rendered
any
service
•
social
legislation
must
be
liberally
construed in Favor
of the
beneficiaries
.
RETIREMENT - Retirement benefits are given to government employees, in effect,
to reward them for giving the best years of their lives to the service of their
country. Retirement laws are liberally interpreted in favour of the retiree to provide
for his sustenance and hopefully even comfort when he no longer has the stamina
to continue earning his livelihood.
→ Retirement is compulsory for any member of the GSIS holding a regular and
permanent appointment if:
he has attained the age of 65 years
rendered at least 15 years of service to the government, and
the last 3 years of such service have been continuous.
MEDICARE - All employees covered by GSIS are also automatically and
compulsory covered by the Philippine Medicare Act. Other employees expected to
remain in the government service for at least one year from the date of coverage
may also be included upon recommendation of their employees.
.
PROHIBITED DISPOSITION OF SALARY - Public policy prohibits the attachment,
garnishment or assignment of the salary of a public officer not only because such
salary still belongs to the state as long as it has not yet been actually collected by
the public officer.
LEAVES - In addition to salary, the public functionary is given vacation, sick and, in
recharge his
the case of women, maternity leave privileges. batteries
revitalize him
•
/ to
INSURANCE - Officers and employees of the government enjoy life insurance
benefits administered by the Government Service Insurance System (GSIS).
Permanent and regular appointees, and elective officers, are covered by
compulsory insurance. Other functionaries who have been appointed for at least
two months may avail themselves of optional insurance. Part of the premium in
compulsory insurance is paid by the government, the balance being deducted
from the salary of the insured.
WINENOTES.AUSL-2024 | 31