LAW ON PUBLIC OFFICERS
Chapter One
DEFINITIIONS, DISTINCTIONS, AND CLASSIFICATIONS
Meaning of office.
Position or function by virtue of which a person has some employment in the affairs of
another, whether selected by appointment or election, whether appointed during the
pleasure of appointing power or for fixed term.
Meaning of public office.
Right, authority, and duty created and conferred by law, by which for a given period,
an individual is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
It is also a charge, station or employment conferred by appointment or election by a
government.
Purpose and nature of public offices.
statute limiting or reducing his compensation.
2. Without vested right in any public office – no one has a vested right over any public
office he holds, much less a vested right to an expectancy of holding public office.
Except Constitutional offices (special immunity as regards salary and tenure), no one
has any vested right to an office or its salary.
3. Right is in the nature of privilege entitled to protection – right to office is recognized
as a privilege entitled to the protection of the law.
When there is a dispute concerning one’s constitutional right to security of tenure,
public office is deemed analogous to property in a limited sense.
4. Right is personal to him – it is not a property which passes to his heirs upon death.
It cannot be inherited.
Public office, not a contract.
1. Creates no contractual relation between holder and the public – the incumbent is
not under contract so as to withdraw his tenure, salary, and the like, from the control
of the legislature, or to preclude the legislature from abolishing the office.
1. For the common good and not for profit, honor, or private interest
2. In the interest and for the benefit of the people, and belongs to them. Its nature is
inconsistent with either a property or contract. It is a responsibility not a right.
Public office, as a public trust.
1. Regarded as public servants – powers delegated are held in trust for the people
and are to be exercised in behalf of the government or of all citizens. Such trust
extends to all within the range of duties pertaining to his office.
2. Exists by virtue of some law – it is not a natural right. It exists only because and by
virtue of some law expressly or impliedly creating and conferring it.
3. Generally entitles holder to compensation – entitled to compensation for the
performance of his public duties when the law attaches it to the office. If no salary is
provided by law, incumbent is presumed to have accepted it without pay and cannot
recover anything for service rendered by him.
Public office and public contract distinguished.
2. Subject to highest standards of accountability and service
Const., Art. 11, sec. 1: “Public officer 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, act with patriotism and justice, and lead modest
lives.”
It exacts from him standards not generally demanded or required from ordinary
citizens. A public officer should at all times, uphold public interest over his personal
interest. Upon taking their oath, he binds himself to perform the duties of their office
faithfully and to use reasonable skill and diligence. The only justification for his
continuance is his ability to advance public ends and contribute to the public welfare.
Public office, not property.
1. Subject to removal or suspension according to law – it is not the property of the
holder. He is not denied due process when the office is abolished before the
expiration of his term; or by removal or suspension according to law; or by passing a
As to creation
As to object
As to subject matter
and scope
Public office
Incident of sovereignty
Carrying out of
sovereign as well as
governmental functions
Tenure, duration and
continuity, and the
duties connected
therewith, which are
generally continuing
and permanent
Public contract
From will of the
contracting parties,
subject to limitations of
law
Obligations imposed
only upon persons who
entered the same
Limited in duration and
specific in objects:
terms define and limit
the rights and
obligations of the
parties, neither may
depart therefrom
without consent of the
other
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Public office and public employment distinguished.
Key considerations
Manner of creation and
nature of duties
Public office
Every public office may
be an employment
1. Created by law,
2. With duties involving
the exercise of some
portion of the sovereign
power
3. Public is concerned
in the performance of
which
Modification or abolition of public offices.
Public employment
Every public
employment is not an
office
1. Created by contract
of employment
2. Lacks one or more
of the considerations
under public office
Essential elements of a public office.
Power to create involves power:
1. To modify
2. To abolish
3. To fix the number of positions and salaries of the holders.
The power is inherently legislative.
1. Created by Congress – Congress may control, modify, consolidate or abolish the
office whenever such course may seem necessary, expedient or conducive to the
public good, but subject to Constitutional limitations.
When the public need ceases to exist, there is no obligation to continue the office. It is
solely within the judgment of the governing authority to determine abolishment.
1. Created by the constitution, law or agency, to which the power to create was
delegated
2. Created by the Constitution – may be modified or abolished by the people through
a constitutional provision. Such are beyond the power of the legislature to alter or
discontinue.
2. Invested with an authority to exercise some portion of the sovereign power for
public interest
The mere mention of an office in the Constitution does not necessarily endow an
office with constitutional status.
3. Powers and functions are defined by the constitution, law or legislative authority
Exercise of sovereign powers and functions.
4. Duties are performed independently, without control of a superior power other than
law, unless they are those of a subordinate
1. Implied authority conferred by law must involve exercising some portion of the
sovereign power of the State in making, executing or applying the law, to the position
a public office.
5. Continuing and permanent in nature
Note: Compensation is not an essential element and is merely incidental to public
office
Creation of public office.
1. Generally – constitutional or statutory provision or by authority conferred by it
2. By congress – except by the constitution, creation is primarily a legislative function
a. By exigencies of government, legislature may create and define new duties
b. When created by the legislature, it may prescribe the mode of filling the office,
powers and duties, abolishment
3. By the President – offices in the executive department, President’s power of control
may justify him to inactivate functions of a particular office.
The President has continuing authority to reorganize administrative structure of the
Office of the President, including transfer of functions of the other executive
department offices to the Office of the President.
2. The duties of the office define whether or not one is a public officer, and the extent
of his authority is not material.
Effect: Official acts of a public officer enjoy the presumption of regularity, and the
presumption does not apply when the acts are not within the duties specified by law,
especially when this acts pertain or belong to another entity, agency or public official.
Tenure and duration.
The following elements are not material in defining a public office:
1. Existence of definite tenure
2. Continuance of office holder – whether the duties attached to the position continue
though the office holder was changed.
3. Permanence of office – whether there can be but one act or series of acts to be
done.
But something more permanent than a single transaction or transitory act is
commonly required to make the position a public office
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Meaning of officer/public officer/employee.
a. Civil – with executive, legislative or judicial functions
b. Military – with military functions
1. Public officer
2. As to creation
a. One who holds a public office.
b. An officer, required by law to be elected or appointed, who has a designation
or title by law, and who exercises functions concerning the public, assigned to
him by law.
2. Under the Admin Code, employee is any person in the service of the government
a. Officer – person whose duties, not being of a clerical or manual nature,
involves the exercise of discretion in the performance of the functions of the
government
b. When with reference to a person having authority to do a particular act or
perform a particular function, officer includes any government employee having
authority to do the act or exercise that function
a. Constitutional – by Constitution
b. Statutory – by Statute and under full control of Congress
3. As to the department of government to which it belongs
a. Legislative – enactment of laws
b. Executive – execution or administration of laws
c. Judicial – adjudication and interpretation of laws
4. As to branch of government served
a. National – national or central government
b. Local – political subdivisions of the government
5. As to whether exercise of discretion is required
Officer and employee distinguished.
1. In the law of public officer – officer:
a. Of greater importance
b. Dignity and independence of his position
c. Required to take an official oath or sometimes give an official bond
d. With liability to be called to account as a public officer for misfeasance or
nonfeasance
e. Invested by law with a portion of the sovereign power
f. Authorized to exercise functions either of an executive, legislative or judicial
character
g. May be subordinate or inferior
a. Quasi-judicial – require exercise of judgment
b. Ministerial – duty to execute the mandates lawfully issued, of their superior
6. As to compensation
a. Lucrative office, office of profit or office coupled with an interest – salary,
compensation or fees are attached and amount of which is supposed to be an
adequate compensation
b. Honorary office – no compensation is attached and is supposed to be
accepted merely for public good
7. As to legality of title to the office
2. Under the RPC – public officer – by election or appointment, takes part in the
performance of public functions in the government or performs in the government
public duties as an employee.
Meaning of public official.
a. De jure
b. De facto
8. Office of trust – if the duties and functions require the exercise of discretion,
judgment, experience and skill
1. An officer of the government itself, as distinguished from the officers or employees
of the government instrumentalities.
2. His duly authorized acts are acts of the government.
3. It is used synonymously with public officer.
Classification of public offices or public officers.
1. As to nature of functions:
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constitutional provisions.
Chapter Two
ELIGIBILITY AND QUALIFICATIONS
A. In general
2. Where office created by Congress
General Rule: Congress can set the qualifications and disqualifications.
Exception: If it impinges upon any express provision of the constitution.
Meaning of eligibility/eligible/ineligibility/ineligible.
3. Where office created by the Constitution
1. Eligibility – state or quality of being legally fitted or qualified to be chosen. It is of a
continuing nature and must exist both at the commencement and during occupancy of
an office.
General rule: Where the Constitution establishes specific eligibility requirements, they
are exclusive.
Exception: If the constitution expressly or impliedly gives power to set qualifications.
2. Eligible – legally fitted or qualified to hold an office.
Under Admin Code – it used to be a person who obtains a passing grade in a civil
service exam or is granted a civil service eligibility, and whose name is entered in the
register of eligibles.
4. Where qualifications prescribed by the Constitution – qualifications are not selfexecuting. They are mere announcements of general principles requiring legislation
for their enforcement.
3. Ineligibility – lack of the qualifications prescribed by law for holding public office.
Where the Constitution has prescribed certain qualifications, Congress may prescribe
additional qualifications unless it is prohibited.
4. Ineligible
Power of Congress to prescribe disqualifications.
a. Legally or otherwise disqualified to hold an office
b. Disqualified to be elected to an office
c. Disqualified to hold an office, if elected or appointed
d. A person disqualified to hold an office
General rule: Congress has the same right to provide disqualifications when it has
right to provide qualifications.
Exception: Where the intention of the constitution is that the disqualifications shall
embrace all that are to be permitted.
Meaning of qualification.
Construction of restrictions on eligibility.
1. Endowment or accomplishment that fits one for office
1. Presumption is in favor of the eligibility of one elected or appointed.
2. Act required by law to be done before entering upon the performance of duties.
2. Basis of presumption – constitutional and statutory provisions which tend to limit
the candidacy of any person for public office must be construed in favor of the right of
the voters to exercise their choice, and construed strictly.
Nature of right to hold public office.
1. Not a natural right – it exists only because and by virtue of some law creating and
conferring it. One must be eligible and possess the qualifications prescribed by law.
Election or appointment of one who is ineligible or unqualified gives him no right to
hold office.
3. Rule of liberal construction – right to public office should be strictly construed
against ineligibility. The right of a citizen to hold office is the general rule, ineligibility
the exception.
Time of possession of qualifications.
2. Not a constitutional right – it is a political privilege which depends upon the favor of
the people, coupled with reasonable conditions for the public good. He must comply
with reasonable, lawful and non-discriminatory terms laid down by law.
1. Where time specified by Constitution or law – necessary qualifications must be
possessed at the time specified by law
Power of Congress to prescribe qualifications.
2. Where Constitution or law is silent
1. In general
General rule: Congress is empowered to prescribe the qualifications, which must
always have a rational basis.
Exception: If it exceeds its constitutional powers or conditions imposed by
a. Some courts – eligibility means capacity of holding office
b. Other courts – conditions of eligibility must exist at the time of election or
appointment
c. Where provision refers to “holding office,” the qualifications are to be
determined at the time of the commencement of the term
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3. When qualifications must always exist – eligibility must be of a continuing nature,
existing at the time of commencement of the term and during the occupancy of office.
6. Ability to read and write – no constitutional prohibition against such imposition,
especially where there is a reasonable relationship to the duties of the position
The will of the people as expressed through the ballot cannot cure the vice of
ineligibility especially if mistakenly believed that the candidate is qualified
7. Political affiliation
Note: Local Government Code – “Qualifications of Elective Officials” (not of
candidates) does not specify any time when the candidate must possess
qualifications.
Note: Const., Art. 6, secs. 17 – 18 and Local Government Code: certain offices
require nomination by membership in a political party or group
8. Civil service examination – to insure that appointments are made only according to
merit and fitness.
Removal of disqualification during term.
Religious qualifications prohibited.
1. Some courts – removal of disqualification validates the title of the incumbent
2. Other courts – removal of disqualification does not validate the title of the
incumbent, depending on the nature of the disqualification, the mode of removing it,
the time at which it is removed, etc.
Const., Art. 3, sec. 5 – “no religious test shall be required for the exercise of civil or
political right.”
Religious test – one demanding avowal or repudiation of certain religious beliefs
before the performance of any act.
B. Particular Qualifications and Disqualifications
Note: SC ruled that a priest cannot be elected as municipal mayor.
Qualifications usually required of public officers.
Power of Congress to impose property qualifications.
Qualifications are continuing requirements and must be possessed at time of
appointment, election or assumption of office and during the officer’s entire tenure.
Once qualification is lost, title may be reasonably challenged
Formal Qualifications:
1. Citizenship – aliens are not eligible to public office unless the privilege is extended
to them by statute.
1. View that law is constitutional – unless prohibited by the Constitution, a legislature
has the power to impose property qualifications.
2. View that law is unconstitutional – There is no rational between qualifications for
administering public affairs and ownership of real property. Social justice
presupposes equal opportunity for all.
Qualifications prescribed by the Constitution for certain officers.
Note: Teaching in a public school may be performed by citizens only.
1. President and Vice-President
2. Age – if a candidate lacks the age qualification on the day of election, he can be
declared ineligible
3. Right to suffrage
a. Where the law is silent, it must be understood that only electors are eligible.
b. Where the age qualification is below minimum voting age: all persons equally
eligible to office and not excluded by some constitutional or legal disqualification
may be appointed to office.
4. Residence – domicile and residence are synonymous.
Requirements:
a. Intention to reside in a fixed place
b. Personal presence in that place with conduct indicative of such intention
a. natural-born citizen
b. registered voter
c. able to read and write
d. at least 40 years old on the day of the election
e. resident of at least 10 years immediately preceding day of election
2. Senators
a. natural-born citizen
b. at least 35 years old
c. able to read and write
d. registered voter
e. resident for not less than 2 years
3. Members of the House of Representatives
5. Education – prescribed when reasonably relates to the specialized demands of the
office.
a. natural-born citizen
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b. at least 25 years old
c. able to read and write
d. except for party-list representatives, registered voter in the district in which he
shall be elected
e. resident thereof for not less than 1 year
8. Chairman and members of CHR
For Chairman and 4 Commissioners:
a. natural-born citizen
b. at least 40 years old
c. for majority of which are members of the bar
4. Members of the SC and lower collegiate court
9. Ombudsman and his deputies
a. natural-born citizen
b. for SC, at least 40 years old
c. for SC, for 15 years or more:
i. a judge in the lower court, or
ii. engaged in the practice of law in the Philippines
d. a person of proven competence, integrity, probity and independence
5. Chairman and commissioners of CSC
a. natural-born citizen
b. at least 40 years old
c. with proven probity and independence
d. members of the Philippine bar
e. not have been a candidate
f. for Ombudsman, for 10 years and more:
i. judge, or
ii. engaged in the practice of law
For Chairman and 2 Commissioners:
Qualifications prescribed by law for certain officers.
a. natural-born citizen
b. at least 35 years old
c. has a proven capacity for public administration
d. not have been a candidate for any elective position in the elections
immediately preceding their appointment
6. Chairman and commissioners of Comelec
For Chairman and 6 Commissioners:
a. natural-born citizen
b. at least 35 years old
c. with a college degree
d. not have been a candidate
e. for majority of which, including Chairman:
i. members of the Philippine bar, and
ii. engaged for at least 10 years, in the practice of law
7. Chairman and commissioners of COA
For Chairman and 2 Commissioners:
a. natural-born
b. at least 35 years old
c. At no time shall all members be of the same profession, but:
i. CPA with not less than 10 years of auditing experience
ii. members of the Philippine bar and for at least 10 years, engaged in the
practice of law
d. not have been a candidate
1. Department Secretaries
a. citizens of the Philippines
b. not less than 25 years old
2. CA Justices – same qualifications for SC justices:
a. natural-born citizen
b. for SC, at least 40 years old
c. for SC, for 15 years or more:
i. a judge in the lower court, or
ii. engaged in the practice of law
d. a person of proven competence, integrity, probity and independence
3. RTC judges
a. natural-born citizen
b. at least 35 years old
c. for at least 10 years,
i. engaged in the practice of law, or
ii. has held public office requiring admission to practice of law
4. MTC, MeTC, MCTC judges
a. natural-born
b. at least 30 years old
c. for at least 5 years,
i. engaged in the practice of law, or
ii. has held public office requiring admission to practice of law
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5. Elective local officials
a. citizen
b. registered voter in the place
c. resident for at least 1 year
d. able to read and write Filipino or any local language or dialect
e. for Governor, Vice, Sangguniang Panlalawigan, and highly urbanized cities
Mayor, Vice, Sangguniang Panlungsod, at least 23 years old
f. for independent component cities, component cities, or municipalities Mayor,
Vice, Sanggunian Panlungsod, at least 21 years old
g. for Punong Barangay, Sangguniang Panlungsod or Bayan, at least 18 years
old
h. for Sangguniang Kabataan, from 15 to 21 years old only
Applicable to:
a. President
b. VP
c. Members of the SC
d. Members of the ConComs
e. Ombudsman.
Grounds:
a. culpable violation of the Constitution
b. treason
c. bribery
d. graft and corruption
e. other high crimes
f. betrayal of public trust
6. Members of the Board of Election Inspectors
For Chairman, member, or substitute member:
a. with good moral character and irreproachable reputation
b. registered voter in the place
c. without pending information for any election offense
d. never convicted of:
i. any election offense, or
ii. any other crime punishable by more than 6 months
e. able to speak and write English or local dialect
4. Removal or suspension from office – bars the removed officer from an election or
appointment to fill the vacancy for the unexpired term of the same position. Where
there is no constitutional or statutory provision, a removed person may still be elected
or appointed to a new term of the same office.
5. Previous tenure of office
a. President – no re-election
b. Chairmen and commissioners of CSC, Comelec, COA – no reappointment
c. Ombudsman and deputies – no reappointment and cannot run for office in the
election immediately succeeding their cessation from office.
Disqualifications to hold public office.
6. Consecutive terms
Those who lack any of the qualifications are ineligible or disqualified from holding
office. Appointment of ineligible or unqualified person is a nullity.
1. Mental or physical incapacity – idiot or non compos mentis is incapable of
accepting or holding an office. A blind person is not disqualified from holding an
office.
2. Misconduct or crime
a. persons convicted of crimes involving moral turpitude are usually disqualified.
b. disqualification through mere commission or only after conviction depends to
the wording of the applicable law
c. a violation of municipal ordinance to qualify as a crime must involve at least a
certain degree of evil doing, immoral conduct, corruption, malice, or want of
principles reasonably related to the requirements of public office. Violation of
municipal regulations does not constitute a crime.
3. Impeachment – judgment is limited to removal from office and disqualification to
hold any office. If convicted, shall be liable and subject to prosecution, trial, and
punishment according to law.
a. VP – not more than 2
b. Senator – not more than 2
c. Member of the house – not more than 3
d. Elective local officials, except barangay officials – not more than 3
7. Holding more than one office – no protected right to hold incompatible office.
Where a person is prohibited from holding two offices at the same time or accepted a
second incompatible office, he is deemed to vacate, or by implication, to resign from
the first office.
Limitations on the right to hold more than one office:
a. President, VP, Cabinet members and deputies – not to hold any other office or
employment during tenure
b. Congress – not to hold any other office in the government or in any of its
subsidiaries
c. SC and members of other courts – not to be designated to any agency
performing quasi-judicial or administrative functions
d. ConComs and Ombudsman – no other office or employment during tenure
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e. Appointive official – no other office or employment in the government or in any
of its subsidiaries
f. Armed forces in active service – cannot be appointed or designated in civilian
capacity in the government or in any of its subsidiaries
a. Within 2 years after serving sentence, with a final judgment for crimes
i. involving moral turpitude
ii. punishable by 1 or more years of imprisonment
b. Removed from office as a result of an administrative case
8. Relationship with appointing power – appointments should be based solely on
merit and fitness uninfluenced by any personal or filial consideration. Nepotism is
prohibited.
c. Convicted by final judgment for violating oath of allegiance to the Philippines
d. With dual citizenship
a. Prohibition on President from appointing spouse and relatives by
consanguinity or affinity within the 4th civil degree as members of the ConComs,
Office of the Ombudsman, as Secretaries, Undersecretaries, chairmen or heads
of bureaus of offices, including government subsidiaries.
b. All appointments of relatives within the third civil degree are prohibited, except
when after an appointment to a position, the person contracts marriage with
another in the same office.
e. Fugitive from justice in criminal or non-political cases, here or abroad
f. Permanent residents of foreign countries
g. Insane or feeble-minded
c. An appointment paper should be accompanied by a certification of the
appointing authority that he is not related to the appointee within the third degree
of consanguinity or affinity.
d. Exempted from rule on nepotism:
i. Person employed in confidential nature
ii. Teachers
iii. Physicians
iv. Armed forces members
9. Office newly created or the emoluments of which have been increased – no
appointment of member of congress to an office which may have been created or the
emoluments increased during term for which he was elected. Emoluments include
fixed salary, fees and compensations the incumbent is entitled to receive.
10. Being an elective official – not eligible for appointment or designation to any public
office during his tenure, to avoid “spoils system.” Appointment results to forfeiture of
seat.
11. Having been a candidate and losing for any elective position – within one year
after such election, cannot be appointed to government office and its subsidiaries to
avoid “political lame-ducks.”
Except: Losing candidates in barangay elections
Note: Members of ConComs – must not have been candidates for any elective
position in the elections immediately preceding their appointment.
12. Under the Local Government code – persons disqualified from running for any
elective local position:
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Chapter Three
ACQUISITION OF RIGHT OR TITLE TO OFFICE
A. In General
Modes of commencing official relations.
A public office can be obtained only in the manner prescribed by the Constitution or
by law; and not by a person’s own assumption or by employment of a person not
authorized by law.
Manner of selecting persons for public office:
1. By election
2. By appointment
The exclusive right to exercise the power of appointment is not included in the
general grant of power to the executive.
Power to appoint discretionary.
1. Power of courts to review appointment – Appointment involves the exercise of
discretion, which, unless gravely abused, courts will not attempt to control. It cannot
be the subject of mandamus.
a. The power to select an appointee is vested alone in the officers or bodies
authorized to appoint, but it is limited to candidates having qualifications required
by the civil service law and rules.
The appointing authority is in the best position to determine who among the
prospective appointees can effectively discharge the functions of the position.
Meaning of appointment.
Appointment is the act of designation by the executive officer, board, or body to whom
that power has been delegated, of the individual who is to exercise the powers and
functions of a given office.
b. It is the prerogative of the appointive power that may be availed of without
liability, provided that it is exercised in good faith and not in malicious or
oppressive manner, or out of malice or spite. Unless any unfairness or
arbitrariness can be shown, the choice of the appointing authority must be
upheld.
When appointing power resides.
1. Inherently belongs to the people – The selection of persons to perform the
functions of government is primarily a prerogative of the people.
The power of appointment to public offices belongs to where the people have chosen
to place it by their Constitution or laws.
2. Entrusted to designated elected and appointed public officials – Appointment is
generally looked upon as properly belonging to the executive department. It may also
be made by Congress and the courts, but taken as an incident to the discharge of
functions within their respective spheres.
Appointing power generally regarded as an executive function.
1. Where power exercised by executive department – The power of appointment to
public is generally regard as an executive function, whether exercised by the
executive, legislative or judicial officers.
The creation of a public office is a legislative function; the appointment of a particular
person is an executive function.
The legislative may confer the power of appointment on the President or on another
public officer or board within the executive department.
2. Where power exercised by other departments – Appointments by the several
departments of government are necessary to enable them to maintain their
independent existence, and do not involve encroachment upon the function of any
other branch.
c. The choice of an appointee is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service.
In appointment or promotion, the appointing authority considers not only civil
service eligibilities but also the performance, education, work experience, training
and seminars attended, agency examinations, and seniority.
d. Once the discretionary power of appointment is exercised and the appointee
assumed the duties and functions of his position, the appointment cannot
anymore be revoked by the appointing authority, except for cause.
2. Power of the Civil Service Commission revoke appointment – The CSC has no
authority to revoke an appointment on the ground that another person is more
qualified and to direct the appointment of a substitute.
a. An appointment is essentially within the discretionary power of to whom it is
vested, subject only to the condition that the appointee should possess the
qualifications required by the particular law.
b. An appointment may be void from the beginning due to fraud on the part of the
appointee or because it was issues in violation of law. Such appointment cannot
give rise to security of tenure on the part of the holder of the appointment, and
the Commission is empowered to take appropriate actions, such as recalling or
revoking the appointment that has been in disregard of applicable provisions of
law and regulations.
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Power may be absolute or conditional.
1. Absolute – The choice of the appointing authority if it falls upon an eligible person,
is conclusive. No further consent or approval is necessary.
2. Conditional – The assent or approval by some other officer is necessary to
complete the appointment. Appointment may be complete only when such assent or
confirmation is given.
In either case, the appointment becomes complete when the last act required of the
appointing power is performed. Until the process is completed, the appointee can
claim no vested right in the office or invoke security of tenure. Tolerance,
acquiescence or mistake of the proper officials resulting in non-observance of the
requirements of law to complete the appointment does not render the requirements
ineffective and unenforceable.
Restrictions on the power to appoint.
1. Generally – Appointees should possess the prescribed qualifications and be
selected solely with a view to the public welfare.
The power of appointment must be exercised with disinterested skill and in a manner
primarily for the benefit of the public
f. The Constitutional Commissions shall appoint their officials and employees in
accordance with law.
g. The Members of the CSC, COMELEC, and COA shall be appointed without reappointment. Appointment to any vacancy shall only for be for the unexpired term
of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.
h. No candidate who has lost in any election shall within one year after such
election, be appointed to any office in the Government or any government-owned
or –controlled corporations or in any of their subsidiaries.
i. No elective official shall be eligible for appointment or designation in any
capacity to any any public office or position during his tenure.
No appointive official shall hold any other office or employment in the
Government or any other subdivision, agency or instrumentality thereof, unless
otherwise allowed by law or by the primary functions of his position.
j. The officials and employees of the Office of the Ombudsman, other than the
Deputies, shall be appointed by the Ombudsman according to the Civil Service
Law.
2. Under the Constitution – the appointments by the President are subject to the
following:
k. The Ombudsman and his Deputies shall be appointed by the President from a
list of at least six nominees prepared by the Judicial and Bar Council, and from a
list of three nominees for every vacancy thereafter. Such appointments shall
require no confirmation.
a. The spouse and relatives within the 4th civil degree of consanguinity or affinity
shall not, during the his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices.
3. Under existing laws – Restrictions on the power to appoint are found primarily in
provisions prescribing the qualifications and disqualifications for holding public office.
No valid appointment when the office is not vacant.
b. Two months immediately before the next presidential elections up to the end of
his term, he shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public
service of endanger public safety.
c. Congress may, by law, vest appointment of other officers lower in rank in the
President alone, in the court, or in the heads of departments, agencies,
commissions, or boards.
d. The Supreme Court shall have the power to appoint all officials and
employees of the judiciary in accordance with the Civil Service Law.
e. The members of the SC and judges of lower court shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar
Council. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.
When appointment deemed complete.
1. Not subject to confirmation – Where the power of appointment is absolute, and the
appointee has been determined, no further consent or approval is necessary and the
formal evidence of appointment may issue at once.
2. Subject to confirmation – Where the assent or confirmation of some other officer is
required, the commission can issue only when such assent or confirmation is
obtained.
3. Approval by the CSC – Appointments to positions in the Civil Service must be
submitted to the Commissioner of Civil Service for approval.
a. Where the appointee is a qualified service eligible, the Commissioner has no
choice but to attest to the appointment. Attestation required is merely a check to
assure compliance with the Civil Service Law, but the appointment is subject to
the condition that if the Commissioner would later on reject the appointment by
reason of lack of eligibility, appointment shall lapse despite attestation.
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b. The acts of appointing power and approval of the CSC acting together though
not concurrently, but consecutively, are necessary to make an appointment
complete. In classified (now competitive) positions, appointment must be
approved by the Commission to be entitled to the protection against unjust
removal.
Confirmation or attestation of the appointment by the CSC does not complete the
appointment since it serves merely to assure the eligibility of the appointee.
4. Effects of completed appointment – Having once made the appointment, the
appointing officer’s power over the office is terminated in all cases where by law the
officer is not removable by him. No new or further appointment could be made to a
position already filled by a previously completed appointment which had been
accepted by the appointee through a valid qualification and assumption of its duties.
Acceptance of appointment.
Appointment to a public office necessarily precedes acceptance by the appointee.
1. Not necessary to completion or validity of appointment – Where there is no
provision of the law to the contrary, the appointee’s acceptance of the office is not
necessary to complete the appointment.
When the person charged with the appointment do every act within their power to
make such appointment, their functions with respect to the appointment are at an
end, and the appointment is complete whether accepted or refused.
2. Necessary to possession of office – The individual chosen to an office cannot be
deemed to be either fully possessed of its rights and privileges or subject to the
performance to the performance of its duties and obligations until he has accepted it.
An appointee cannot impose his own conditions for the acceptance of a public office.
He may only either accept or decline it.
Form of acceptance.
1. Express – When done verbally or in writing. The best evidence is taking the oath of
office.
2. Implied – Without formal acceptance, the appointee enters upon the exercise of the
duties and functions of an office.
Obligation of elected or appointed individual to accept office.
1. Generally not subject to compulsion – The general rule is that a person may not be
compelled to accept a public office. Except:
by popular election to a public office, shall refuse without legal motive to be
sworn in or discharge the duties of said office.
c. Male inhabitants of a certain age may be required by the State in the exercise
of its police power to assist in the protection of the peace and order of the
community.
2. Obligation in the nature of a social duty – Every person who enters into civil society
must owe to the public a social duty to bear his share of the public burdens by
accepting and performing the duties of the public office to which he may be lawfully
chosen.
Necessity of written appointment.
1. View that appointment should be evidenced in writing – There should be some
written memorial of the fact of appointment signed and executed by the appointing
power, for an appointment affects the public and not merely private rights, and should
be authenticated in a way that the public may know when and in what manner the
duty has to be performed.
2. Contrary view – The right of the appointee to be inducted depends upon the fact of
appointment and not upon his ability to establish that fact, where the law does not
prescribe the manner in which the appointing power shall make the appointment, nor
direct that any written evidence of the action be furnished to the appointee.
Revocation of appointment.
1. Where appointment is final and complete – The general rule is that an appointment
to an office, once made and complete, is not subject to reconsideration or revocation.
Revocation, to be successful, must be made before the appointment is complete. The
exception is where an officer is removable (removal vs. revocation) at will of the
appointing power.
2. Where appointee has assumed position – Upon assumption into office, the
appointee acquires a legal right, not merely equitable right, which is protected by
statute and by the Constitution, and it cannot be taken away from him either by
revocation or removal, except for cause and with notice and hearing.
Unless the appointment is an absolute nullity, or in the absence of fraud on the part of
the appointee, the irregularity must be deemed cured by the probational and absolute
appointment of the appointee and should be considered conclusive.
3. Where protestant more qualified than appointee – The appointing power cannot
effect the removal of the appointee by rescinding or revoking the appointment after it
is complete on the ground merely that the protestant is more qualified than the first
appointee, subject to the condition that the first appointee should possess the
minimum qualifications required by law.
a. Constitution: The Government may call upon the people to and all citizens may
be required to render personal military or civil service.
b. RPC: Penalty and fine is imposed upon any person who, having been elected
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B. Appointments by the President
Power of appointment of the President.
The power of the President to appoint officers in the government is conferred upon
him by the Constitution. There are 4 groups of officials whom the President is
authorized to appoint:
Kinds of Presidential appointments.
1. Regular – Those made while Congress is in session; nominations subject to the
confirmation of the Commission on Appointments;
2. Ad interim – Those made while Congress is not in session or during its recess;
3. Permanent – Those which last until they are lawfully terminated;
1. Heads of executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in the Constitution (i.e. members of
the Judicial and Bar Council, Chairman and Commissioners of the Civil Service
Commission, Chairman and Commissioners of the Commission on Elections,
Chairman and Commissioner of the Commission on Audit, and the Members of the
regional consultative commission).
2. All other officers whose appointments are not otherwise provided by law and they
refer to officers to be appointed to lower offices created by Congress where the latter
omits to provide for appointment to said office.
3. Those whom the President may be authorized by law to appoint such as the heads
of GOCCs, undersecretaries, heads of bureaus and offices, and other officials; and
4. Other officers lower in rank whose appointments the Congress by law vests in the
President alone.
Confirmation of appointments by Commission on Appointments.
1. Only those in (1) are appointed with the consent or confirmation of the
Commission on Appointments. Congress cannot require confirmation of appointments
of other officers.
Heads of bureaus and certain offices under the different departments which are not
called bureaus (e.g. SEC, Insurance Commission) no longer need the confirmation of
the Commission on Appointments.
2. Under the Constitution, the President appoints members of the SC, judges of lower
courts, including the Sandiganbayan, the Tanodbayan and his deputies, from a list
prepared by the Judicial and Bar Council. Such appointments need no confirmation.
3. The Chairman and members of the CHR are to be appointed by the President
without need of confirmation by the Commission on Appointments.
4. Temporary or acting – Those which last until a permanent appointment is issued.
Appointments which are required ro be submitted to the Commission on
Appointments are either regular or ad interim. Both are permanent in nature.
Appointments that are for the President solely to make without the participation of the
Commission on Appointments cannot be ad interim appointments.
Ad interim appointments.
1. Under the Constitution, Commission on Appointments meets only while Congress
is in session. Appointments made while Congress is not in session shall cease to be
effective upon rejection by the Commission on Appointments, or if not acted upon, at
the adjournment of the next session of Congress.
2. When making ad interim appointments, the President exercises a special
prerogative and is bound to be prudent, to ensure approval of his selection, either by
previous consultation with or thereafter explaining the reason for the selection to the
Commission on Appointments.
Temporary or acting appointments.
1. Generally, the power to appoint vested in the President includes the power to make
temporary or acting appointments, unless he is otherwise specifically prohibited by
the Constitution or law.
2. An acting appointment, being temporary or provisional in character, cannot be
validly confirmed by the Commission on Appointments.
3. A temporary appointment is an acting appointment. The appointee has no fixed
tenure and his employment can be terminated at the pleasure of the appointing power
without hearing or cause.
An ad interim appointment is permanent in nature, though it may be recalled or
revoked by the President before confirmation.
Appointments by other officials.
4. An unqualified person cannot be appointed even in an acting capacity.
Congress may, by law, vest in courts, heads of departments, agencies, commissions,
or boards the power to appoint officers lowers in rank in their respective offices.
“Lower in rank” – officers subordinate to those enumerated in whom respectively the
power of appointment may be vested.
Designations.
Designations is the mere imposition of new or additional duties upon an officer to be
performed by him in a special manner while he performs the function of his
permanent office.
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1. It is revocable and temporary for it does not confer upon the designee security of
tenure in all the position which he occupies in an acting capacity only.
2. there being no appointment issued, designation does not entitle the designee to
additional benefits or the right to claim the salary attached to the position.
It cannot also be validly acted upon by the Commission on Appointments.
2. Purpose – It is designed to eradicate the system of making appointments primarily
from political considerations, to eliminate the element of partisanship and personal
favoritism, to establish a merit system of fitness and efficiency, and to prevent
discrimination based on consideration other than fitness to perform duties.
It is to enable the national and local government and all its instrumentalities and
agencies to render more efficient services to the public by enabling them to obtain
efficient public servants.
Steps in the appointing process.
Classification of positions in the Civil Service.
1. Nomination – It is the exclusive prerogative of the President which no limitation
may be imposed by Congress, except those resulting from the need of the
concurrence of the Commission on Appointments and from the exercise of legislative
power to prescribe qualifications.
1. Career service – characterized by: a) entrance based on merit and fitness
determined by competitive exams or highly technical qualifications; b) security of
tenure; c) opportunity for advancement to higher career positions. It includes:
2. Confirmation – The power to confirm or reject certain appointments belongs to
Congress, through the Commission on Appointments.
a. Open career positions for appointments to which prior qualification in an
appropriate exam is required;
a. There is no appointment until it is confirmed.
b. Closed career positions which are scientific or highly technical in nature;
b. The President cannot confer power of participation in the Commission, nor the
Commission can create power to confirm appointments, over appointments
reserved solely to President by the Constitution.
c. Positions in the Career Executive Service;
c. The act of confirming is not legislative in character, thus it need not be
performed at a regular session of Congress.
d. Confirmation cannot be reconsidered after the President has been notified of
the confirmation and has completed the appointment by issuing a commission to
the appointee, who thereupon assumes office.
d. Career officers other than those in Career Executive Service who are
appointed by the President;
e. Commissioned officers and enlisted men of the AFP which shall maintain a
separate merit system;
f. Personnel of GOCCs who do not fall under the non-career service; and
g. Permanent laborers.
3. Issuance of commission – The “commission” is the written authority from a
competent source given to the officer as his warrant for the exercise of the powers
and duties of the office to which he is commissioned. It is a written evidence of
appointment.
a. There is no constitutional provision requiring the President to issue a
commission, but it serves as evidence of the consummation of the exercise of the
appointing power.
b. Elective (as distinguished from appointed) officers’ right to office is established
by the result of the election and not upon his getting a commission.
C. Appointments in the Civil Service
2. Non-career service – characterized by: a) entrance on bases other than usual test
of merit and fitness; b) tenure which is limited to a period specified by law or which is
co-terminous with that of the appointing power or subject to his pleasure, or limited to
the duration of a particular project. It includes:
a. Elective officials and their personal or confidential staff;
b. Department heads who hold positions at the pleasure of the President,
including their staff;
c. Chairmen and members of commissions and boards with fixed terms of office,
including their staff;
The Civil Service System.
d. Contractual personnel;
1. Scope – It embraces all branches, subdivision, instrumentalities and agencies of
the Government, including government-owned or controlled corporations with original
charter.
e. Emergency and seasonal personnel
3. Casual – Employment is not permanent but occasional, unpredictable, sporadic
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and brief in nature.
Exemption from rule of non-competitive positions.
Classes of positions in the career service.
Policy-determining, primarily confidential and highly technical positions are exempt
from merit and fitness requirement, but they are still subject to the constitutional
safeguard against removal or suspension except for cause.
1. Three major levels, which requires examinations:
a. Clerical, trades, crafts, custodial service – involve non-professional or sub
professional work in a non-supervisory or supervisory capacity requiring less
than four years of college;
b. Professional, technical and scientific positions – involve professional, technical
or scientific work in a non-supervisory or supervisory capacity requiring at least 4
years of college;
c. Career Executive Service
2. Requirement of competitive examinations – Entrance to levels (a) and (b) is
through competitive examinations, which shall be open to those inside and outside
the service who meet the minimum qualifications. Entrance to a higher level does not
require previous qualifications.
Entrance to (c) is prescribed by the Career Executive Service Board.
For promotion within the same level, no civil service examination is required provided
he has previously passed the same for the said level.
1. Policy-determining – Occupant is vested with the power or formulating policies for
the government or any of its agencies, subdivisions, or instrumentalities
2. Primarily confidential – Occupant enjoys more than the ordinary confidence in his
aptitude of the appointing power but bears primarily close intimacy which insures
freedom of intercourse without embarrassment or freedom from misgiving of betrayal
of personal trust on confidential matters of the State.
a. It can also be considered as such when the President, upon recommendation
of the Civil Service Commissioner, has declared it to be, provided that the duties
must have some relationship to the exemption and the classification must be
reasonable.
b. Such officials and employees continue only for so long as confidence in them
endures. Termination justified on the ground of loss of confidence because their
cessation from office involves no removal but merely the expiration of the term of
office.
3. Highly technical – Occupant is required to possess skills or training in the supreme
or superior degree.
Constitutional classification.
1. Competitive – Appointments are made according to merit and fitness to be
determined by competitive examinations.
It is the nature of the functions of the position that determines whether it is policydetermining, primarily confidential or highly technical.
Qualification standards in the Civil Service.
2. Non-competitive – Appointments do not have to take into account merit and fitness
as determined by competitive examinations. They are described as policydetermining, primarily confidential, or highly technical in nature.
A qualification standard expresses the minimum requirements for a class of positions
in terms of education, training and experience, civil service eligibility, physical fitness
and other qualities required for successful performance.
Determination of merit and fitness by competitive examinations.
As a general rule, the selection of any appointee to any government position shall be
made only according to merit and fitness to be determined by competitive
examination.
1. An examination, to be competitive, must be given under an objective standard of
grading; must conform to measures or standards which are sufficiently objective to be
capable of being challenged and reviewed, when necessary.
2. Examination must be competitive in substance, not merely in form.
3. An oral examination may be competitive where tests of manual or professional skill
are necessary, provided the exam questions are such as to best determine the
practical and technical qualifications of the applicants to perform the duties of the
position to be filled.
1. Use of qualification standards – a) As basis for civil service exams for positions in
the career service; b) as guides in the appointment and other personnel actions in the
adjudication of protested appointments; c) in determining training needs; d) as aid in
inspection and audit of the agencies’ personnel work programs.
2. Establishment, administration and maintenance of qualification standards – They
are the responsibility of the department or agency, with the assistance and approval
of the Civil Service Commission, in consultation with the Wage and Position
Classification Office. Qualification standards shall be administered in such manner as
to continually provide incentives to officers towards professional growth and foster the
career system in the government service.
3. Approval of qualification standards – Approval of qualification standards by the
commission is required since it is the central personnel agency of the government
entrusted with the enforcement of laws relative to the selection, promotion, and
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discipline of civil servants.
to the availability of funds” is not a conditional appointment.
4. Offsetting of deficiencies – Even if the appointee possesses the required eligibility,
there would be an abuse of discretion if the other qualifications are not satisfied.
When necessary, education, experience or training may be used interchangeably to
offset deficiencies except the required eligibility.
6. A regular government employee who has been illegally suspended or dismissed is
entitled to be reinstated; there is no vacancy to which an incumbent can be
permanently appointed, his appointment being considered temporary and has to give
way to the employee whose right to office has been recognized.
The decision as to when the conditions give rise to necessity to interchange
education with experience or training and vice versa rests upon the sound discretion
of the appointing authority.
7. One designated as officer in charge does not have any vested right over the
position nor even tenure in office.
Kinds of appointment in the career service.
1. Permanent – one issued to a person who meets all the requirements for the
position to which he is appointed. It lasts until lawfully terminated.
2. Temporary or acting – one issued to a person who meets all the requirements of
the position, except the appropriate civil service eligibility. It shall not exceed 12
months. The appointee may be replaced sooner if a qualified civil service eligible
becomes available.
What characterizes an appointment as permanent or temporary is not the nature of
the position but the nature of the appointment extended.
8. An appointment held at the pleasure of the appointing power is temporary in
nature.
Separation of temporary employees.
An appointment which is temporary in nature can be terminated or withdrawn at the
pleasure of the appointing power, without notice or hearing, and regardless of
grounds or reasons.
The fact that the appointment of an employee is classified as temporary does not
grant a blanket authority to the appointing power to remove him at any time without
cause where the appointment is for a definite period.
Qualification in an appropriate examination.
Instances of temporary appointment.
1. Where the appointee does not possess the required civil service eligibility, the
appointment is temporary. Subsequent acquisition of the required eligibility will not
make a temporary appointment regular or permanent.
The temporary appointee can be replaced even by non-eligible whenever there is no
civil service eligible actually available and ready to accept appointment.
2. A provisional (temporary) appointee is one with civil service eligibility but different
from that which is appropriate to the position for which he was appointed. The law
give him the privilege of occupying the position in the absence of an eligible and until
the availability of an appropriate eligible is certified.
3. Appointment by the President of someone to fill an executive office during the
absence or incapacity of the incumbent is temporary.
1. Temporary appointment of non-eligibles in the absence of eligibles – When there is
an eligible actually available for appointment, no person who not an eligible shall be
appointed even in a temporary capacity to any vacant position, except when the
immediate filling of the vacancy is urgently required in the public interest, in which
case, temporary appointments of non-eligibles may be made in the absence of
eligibles actually and immediately available.
2. Appointment to a position requiring lower eligibility – A person with an eligibility
acquired by successfully passing an examination shall be qualified for a position
requiring lower eligibility if he possesses the other requirements for appointment.
3. Issuance/revocation of certificate of eligibility – The Commissioner’s power to issue
a certificate of eligibility carries with it the power to revoke a certificate for being null
and void, and it may do so without notice and hearing to the examinee.
Approval/recall of appointments by the Civil Service Commission.
4. As long as the appointee has not passed any civil service examination in
accordance with the rules and regulations of the Civil Service, the nature of the
appointment is always temporary.
5. Where the appointment is subject to the consent and approval of the municipal
council, there is no complete appointment to speak of; at most, pending compliance
with the condition, the appointee is holding only a temporary and conditional
appointment.
An appointment issued and approved by the Commissioner of Civil Service “subject
The Commission is the central personnel agency of the government charged with the
duty of determining questions of qualifications of merit and fitness of one appointed to
the Civil Service.
1. Appointments required to be approved – Among its powers and functions is to
approve all appointments, whether original or promotional, to positions in the civil
service (except presidential appointments, AFP, police forces, firemen and jail
guards) and disapprove those where the appointees do not possess the appropriate
eligibility or required qualifications
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2. Right of appointee to a hearing in case of disapproval – When the disapproval is
based on non-conformity to applicable provisions of law on the qualifications of the
appointee, there is no need for a hearing. The appointee is given the opportunity to
be heard by filing a motion for reconsideration.
3. Effectivity of appointment until disapproval – An appointment shall take effect
immediately upon issue by the appointing authority if the appointee has assumed his
duties, he shall be entitled to receive his salary without awaiting the Commission’s
approval. The appointment shall remain effective until it is disapproved by the
Commission, without prejudice to liability of the appointing authority for appointments
issued in violation of law or rules.
Where favorable approval or certification is required and the same is not given, no
title to the office can yet be deemed to be permanently vested in favor of the
appointee, and the appointment can be recalled or withdrawn by the appointing
authority. Until an appointment is completed, one cannot invoke security of tenure.
only when the appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.
9. Grounds for recall:
a. Non-compliance with the procedures/criteria provided in the agency’s Merit
Promotion Plan;
b. Failure to pass the agency’s Selection/Promotion Board;
c. Violation of existing collective agreements between management and
employees relative to promotion;
d. Violation of other existing civil service law, rules and regulations.
An appointment may only be recalled on the above-cited grounds.
Appointment through certification.
4. Criterion to be employed – The Commission has authority to check whether or not
the appointee possesses the appropriate civil service eligibility or the required
approved qualifications. If he does, his appointment must be approved; if not, it
should be disapproved. No other criterion may be employed by it when it acts on
appointments. It is not authorized to curtail the discretion of the appointing official on
the nature or kind of appointments to be extended.
5. Extent of Commission’s authority – The authority of the Commission is limited to
reviewing appointments, approving or disapproving them in the light of the
requirements of the law. It does not have the power to make the appointment itself or
to direct the appointing power to change the employment status.
While the Commission has no authority to revoke an appointment on the ground that
another is more qualified, it may order the reinstatement of an illegally demoted or
dismissed employee.
6. Attestation of appointment – The Commission can only inquire into the eligibility of
the person chosen to fill the position. If it finds the person not qualified, the
appointment must be disapproved. When the appointee is qualified, and all other
requirements have been satisfied, the Commission has no choice but to attest to the
appointment.
Once the function is discharged, its participation in the appointment process ceases.
The only purpose of attestation is to determine whether the appointee possesses the
required eligibility; no more than that is left to the commission.
An appointment through the certification to a position shall be issued to a person who
has been selected from a list of qualified persons certified by the Commission from an
appropriate register of eligibles, and who meets all the other requirements of the
position.
All such persons must serve a 6-month probationary period following their original
appointment and shall undergo a thorough character investigation in order to acquire
permanent civil service status. He may be dropped from the service for unsatisfactory
conduct or want of capacity any time before the expiration of the probationary period,
and such action is appealable to the Commission.
D. Vacancy
Meaning of vacancy.
When an office is empty and without a legally qualified incumbent appointed or
elected to it with a lawful right to exercise powers and perform his duties.
Existence of physical vacancy not essential.
An office may be vacant when it is occupied by one who is not a de jure officer, a
usurper, or by one who is holding over. Although there is no physical vacancy in the
office exists, there is still a vacancy in the
sense that the appointing power may proceed to fill the office by choosing a
successor.
7. Keeping of records of all appointments – The Commission is required to keep a
record of all appointments of all officers and employees in the civil service. They must
be submitted by the appointing within 30 days of issuance, otherwise, the
appointment becomes ineffective 30 days thereafter.
Appointment to a non-vacant position.
8. Recall of appointment – Recall of an appointment initially approved may be done
There can be no appointment to a non-vacant position. The incumbent must have
No person, no matter how qualified and eligible for a certain position, may be
appointed to an office which is not vacant
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been lawfully removed or his appointment validly terminated before one could validly
install a successor. Where a regular employee is illegally dismissed, transferred , or
demoted, his position does not become vacant.
Classification of vacancy.
1. Ordinary – office is created and no one has been appointed to fill it
2. Constructive – when incumbent has no legal right or claim to continue in office and
can be legally replaced by another functionary
3. Accidental – when the incumbent, having died, resigned or been removed, there is
no one in esse discharging the duties of the office
4. Absolute – term of an incumbent having expired and the latter not having held over,
no successor is in being who is legally qualified to assume the office.
Causes of vacancy
Circumstances or events that bring about vacancy in office are set forth in the
constitution and the laws.
1. Death, permanent disability, removal from office or resignation of the incumbent.
a. If acceptance of resignation is necessary, there is no vacancy until accepted.
b. When illegally suspended or dismissed, office never becomes vacant.
Resignation or removal must be valid to create a vacancy
2. Abandonment, expiration of term, conviction of a crime, impeachment conviction,
acceptance of incompatible office, creation of a new office, reaching age limit, and
recall. Also, failure by chosen person to accept or qualify for office
Filling of anticipated vacancies.
1. Generally appointment legal – a prospective appointment to fill an anticipated
vacancy is legal in the absence of express law forbidding it. It vests title to the office
in the appointee. Example: When an officer resigns to take effect on a future date and
when accepted, the appointing officer may appoint successor which will take effect
when the resignation becomes operative.
2. Where appointment to take effect after expiration of appointing power – appointing
power cannot forestall the rights and prerogatives of their successors by appointing
successors to offices after its power to appoint has itself expired. Example; An
outgoing president nominated officials to be appointed which was submitted to the
Comm. On Appointments before it began its session. The New President can recall
those nominees, otherwise the outgoing president would be making an appointment
to take effect after he has ceased to be president.
E. Qualifying to Office
Qualification (as an act) to an office.
Officers, whether elected or appointed are usually required by law to do some act –
termed qualification – by which he shall signify his acceptance of the office and his
undertaking to execute the trust confided in him. It is presumed that all conditions
necessary to qualifying for a public position have been fulfilled before the appointee
takes office. It generally consist of the taking, and often subscribing and filing of an
official oath, and in some cases, of giving official bond, if any, required by law.
Effect of failure to qualify.
Deemed evidence of a refusal of office. However, a failure or neglect to qualify within
a particular time prescribed, if afterwards supplied, would not ordinarily be deemed
ipso facto a rejection of the office. Sickness, accidents and other fortuitous events
which excuses delay will justify the delay in qualifying. A person appointed to an office
who fails to qualify is regarded as a de facto officer.
Oath of office for public officers.
Oath – outward pledge where one formally calls upon God to witness to the truth of
what he says or to the fact that he sincerely intends to do what he says.
1. Under the constitution – president, VP, acting president – before entering their
offices. Same requirement for other public officers
2. Under the administrative code of 1987 – all public officers and employees including
every member of the armed forces - before entering upon the discharge of his duties,
take an oath or affirmation
3. Under the local government code – all elective and appointive local officials and
employee - upon assumption to office, subscribe an oath or affirmation of office in
prescribed form, filed with the local chief executive. Copy of such preserved in the
individual personnel records file
Necessity of oath of office.
It is mere incident to the office. Must be done within a specified time. It is generally
construed to be merely directory and mere delay in taking the oath, if it be afterwards
taken with approval of the public authorities, while it may be a ground for forfeiture
while delay continues, when the oath is taken, the delay is deemed valid.
The President, VP and acting president cannot enter on the execution of his/her office
without taking prescribe oath and affirmation. Oath taking is mandatory, It marks the
formal induction of the official in office.
Unless the law requires more, it is sufficient that oath be taken. It need not be in
writing or be subscribed by the affiant.
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Officers authorized to administer oaths.
1. Notaries, members of the judiciary, secretaries of congress, secretaries of
departments, bureau directors, registrar of deeds, provincial governors and lieutenant
governors, city mayors, and any other officer in the service of the government of the
Philippines whose appointment is vested in the President.
2. May be administered by another officer whose duties require presentation to him of
any statement under oath.
Except notaries, officers shall charge no fee, and Officers, except notary publics,
municipal judges and clerk of courts, are not obliged to administer oaths or execute
certificates save in matter of official business.
F. De Facto Officers
The de facto doctrine.
A person who, by the proper authority, is admitted and sworn into office is deemed to
be rightfully in such office until, by judicial declaration, he is ousted therefrom, or his
admission thereto is declared void.
Basis and reason for the doctrine.
It springs from the fear of the chaos if multiple and repetitious suits are filed
challenging every action taken by every official whose claim to the office could be
open to question, and seeks to protect the public by insuring the orderly functioning of
the government despite technical defects in his title to the office.
Public officers and employees required to give bonds.
De facto officer defined.
Accountable public officials or those to whom are entrusted the collection and custody
of public money, and public ministerial offices whose actions may affect the rights and
interests of individuals are usually required to give bonds.
One who is reputed to be the officer he assumed to be and yet is not a good officer in
the law’s point.
Nature of official bonds.
He is one where the duties of the office are exercised:
1. In the nature of indemnity bond and in effect, a contract between the officer and the
government, binding the officer to discharge the duties of his office.
1. without a known appointment or election but under circumstances of reputation or
acquiescence as to induce people, without inquiry, to submit or to invoke his action,
supposing him to be the officer
2. An obligation binding sureties to make good the officer’s default. It is for the benefit
of the public interest.
3. Creates a primary contractual obligation between the injured party and the officer
and the surety.
4. Merely collateral security for the performance of the officer’s duty.
Necessity of giving official bonds.
1. Requirement, a mere incident of office – it can be one of the consideration to
determine the character of the position, like an oath
2. Where time prescribed within which to give bond – if the statute requires bond, it
must be given within the fixed time after the officer’s election or appointment.
2. under color of a known and valid appointment or election but has failed to conform
to some precedent requirement or condition such as to take an oath or give a bond
3. under color of a known election or appointment, but was not eligible or want of
power in the appointing body or defect or irregularity in the exercise, and such facts
are unknown to the public
4. under color of an election or appointment by or pursuant to a law that is later
declared unconstitutional
A de facto officer is one in possession of an office in the open exercise of its functions
under color of an election or appointment even though the election or appointment
may be irregular or informal.
De jure officer defined.
a. When time couched in explicit language that it is merely directory and not
mandatory – failure to give bond does not ipso facto work a forfeiture of office
especially when not due to his fault, but it is a ground for forfeiture.
b. Time is expressly made a condition – office deemed vacated when the
required bond is not given within the time fixed by law.
One who has a lawful right to the office but who has either been ousted from it or who
has never actually taken possession of it.
Three Requirements to become de jure officer.
1. must possess the legal qualification for the office in question
2. must be lawfully chosen to such office
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3. must have qualified himself to perform the duties of the office according to the
mode prescribed by law.
Officer de jure and officer de facto distinguished.
De Jure Officer
Rests on a right
Lawful title or right to the office
Cannot be removed in a direct
proceeding
Note:
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De Facto Officer
Rests on reputation
Has possession and performs duties
under color of right without being
technically qualified
Can be ousted in a direct proceeding
against him
There can be no officer either de jure or de facto where there is no office to
fill.
There can be no de facto officer where there is no de jure office.
There may be a de facto officer in a de jure office.
2. When the de jure officer is also the de facto officer, lawful title and possession are
united and no other person can be an officer de facto to that office. Hence, there
cannot be two de facto incumbents of one office at the same time, and where two are
acting simultaneously, each under claim of right, the owner who appears to have the
better title will be recognized.
Elements of de facto officership.
All must be present:
1. there must be a de jure office
2. there must be a color of right or general acquiescence by the public
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Usurper or intruder defined.
He is one who takes possession of the office and undertakes to act officially without
any color of right or authority, either actual or apparent.
Officer de facto and usurper distinguished.
De Facto Officer
Color of right or title to the office
Assumes to exercise functions
where public does not know his lack
of title or authority
Removed only in a direct
proceeding against him
All acts otherwise legitimate are
valid in so far as the public or third
persons are concerned
Note:


Usurper
Neither lawful title nor color of right
to the title
Assumes to act as an officer where
public knows or ought to know that
he is a usurper
May be ousted at any time in any
proceeding
Acts absolutely null and void
Color of right may be by election, appointment, holding over after the
expiration of one’s term or acquiescence by the public
The de facto office must have some appearance of a right to the office. The
nonexistence of any general reputation or recognition as a public officer may
be enough to prevent the courts from giving such status to one who claims
to hold the office.
3. there must be actual physical possession of the office in good faith

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The possession must be in good faith, under color of right or title, and with
faithful exercise of the functions of the office.
Possession alone makes him a mere intruder or usurper.
Instances of de facto officers.
1. A Lawyer designated to be the Assistant Fiscal by the an Acting Provincial
Governor without authority to designate him as such or to order him to file an
information
2. A person proclaimed elected to public office but later ousted due to an election
contest
3. A person’s appointment to a competitive position not approved by the CSC
4. A public official or employee who assumed office under an incomplete appointment
It is the color of authority that distinguishes a de facto officer from a usurper.
A usurper may grow into an officer de facto if his assumption of office is
acquiesced as when he continues to act for so long a time to afford a strong
presumption that he has been duly appointed or elected and therefore has
the right to act.
5. Designation as acting mayor not made in accordance with the law (not made by the
Governor)
6. A judge in good faith who continues to act as such after the abolition of his court
Double occupancy of a single office.
7. A judge who continues to exercise his duties after the CSC disapproves his
appointment but before receiving notice of said disapproval
1. Two different persons cannot occupy and exercise the same office at the same
time. There can be no de jure officer and de facto officer in possession of the same
office at the same time.
8. A judge who in good faith continues to discharge duties after reaching the
retirement age
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9. An incumbent elective official appointed or designated to a government position
pursuant to a legislative act contravening the constitutional prohibition
10. A person appointed to an office subsequently declared ineligible
Office created under an unconstitutional statute.
1. View that occupant not even officer de facto
General Rule: An officer created by an unconstitutional statute is not even an officer
de facto nor is he an officer. An unconstitutional law is not law and it confers no rights,
it imposes no duties, it affords no protection, and it creates no office.
2. Contrary view
Exception: Where strict adherence would lead to uncertainty, chaos, and confusion,
great public inconvenience, or great hardship to litigants. Hence, the incumbent, for
the sake of the public policy and the protection of private rights, will be recognized as
an officer de facto until the unconstitutionality of the act has been judicially
determined.
Legal effects of acts of de facto officers.
Validity of the acts of de facto officers depends on whether such officers are
attempting to justify themselves, or whether the rights of third persons and the public
are involved.
1. as regards the officers themselves
General Rule: A party suing or defending in his own right must show that he is an
officer de jure because the acts of the de facto as far as himself is concerned are
void. Hence, he cannot justify his acts as binding or valid in any suit to which he is a
party.
Purpose: To discourage the seizure of public offices. Moreover, he is bound to know
whether he is a legal officer and if he attempts to exercise the duties of an officer
without authority he acts at his own peril.
Proceedings to try right or title of a de factor officer.
Title of an officer de facto, and the validity of his acts, must be directly questioned and
cannot be collaterally questioned in proceedings to which he is not a party.
1. A quo warranto proceedings may be instituted only by the person who claims to be
entitled to the office, or by the State through the Solicitor General or a public
prosecutor.
2. He must set forth the name of the person entitled to the office, and that of the
defendant (de facto or usurper) and all other persons who claim a right to the office.
He cannot oust two or more persons illegally holding the offices unless he is entitled
to both.
3. A public officer or employee is entitled to due process and security of tenure. The
law then presumes that a person acting in a public office was regularly performed and
that the official duty has been regularly performed.
Right to compensation of a de facto officer.
1. General rule– A de facto officer cannot maintain an action to recover compensation
attached to the office even though he has performed the duties thereof on the theory
that the acts of a de facto as far as himself is concerned are void. Only an officer de
jure can maintain an action for compensation.
2. Exception– A de facto officer in good faith who renders the required service may
recover compensation for the time he rendered service or retain the emoluments
received during that time


If lawfully paid to the de facto officer, the de jure officer who recovered the
office cannot compel the government to pay compensation again for a
second time.
Disbursing officers have a right to rely upon the apparent title of the officer
without inquiring whether another one has the better right.
3. Exception to the Exception: De factor officers who are merely designated are not
entitled to compensation or additional benefits.
Liabilities of a de facto officer.
2. as regards the public and third persons
1. He has the same degree of accountability for official acts as a de jure and cannot
escape liability because he was not qualified or he failed to give a bond.
General Rule: The acts of a de facto officer are valid as to third persons and the
public until his title is adjudged to be insufficient. The said authority may not be
collaterally attack or inquired into by third persons affected.
2. Even though his acts are valid and binding as to third persons and the public, he
may be liable for all penalties imposed by law for usurping or unlawfully holding office.
Note:



Third persons cannot always investigate the right of one assuming to hold an
office.
They also have a right to assume that officials are apparently qualified.
The de facto officer is estopped from taking advantage of his own want of
title.
3. He cannot excuse responsibility for crimes committed in his official capacity by
asserting that he is a de facto officer.
4. A rightful incumbent may recover from de facto officer the salary received even
though he occupied the office in good faith and under color of title. The rule is where
there is a de jure officer, a de facto officer, during his wrongful incumbency, is not
entitled to the emoluments attached to the office, even if he occupied the office in
good faith.
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Chapter Four
POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
Source of powers and authority of public office.
The people, directly or through representatives, create offices and agencies as they
deem desirable for the administration of the public function. They declare in what
manner and by what persons they shall be exercised. They prescribe the quantum of
power attached to the office and the conditions.
Authority of public officer not presumed.
Officers are agents entrusted with responsibility of discharging its functions. There is
no presumption of authority. In the absence of a valid grant, they are devoid of power.
Authority of public officer and private agents distinguished.
Private agents – authority classified according to nature, effect, universal or special.
The same does not apply to public officers. Universal authority of a public officer
cannot exist. Some authorities are general in nature, some are limited and special.
law has no effect
2. Action at a place not authorized by law ordinarily invalid – where public officer
authorized by law to perform his office at a particular place, action at a place not
authorized by law is invalid. Example; judge levying and selling property outside its
jurisdiction is invalid.
Duration of authority.
1. Duration of term – can exercise no authority before his term begins or after it has
terminated
2. Where officer chosen to act in reference to a particular subject – his powers
exhaust themselves in the acting, and having once acted, he is henceforth functus
officio and can neither act again in reference to the same subject matter nor undo
what he has done.
Construction of grant of powers.
Express grants of power are subject to a strict interpretation and will be construed as
conferring those powers only which are expressly imposed or necessarily implied.
Ascertainment of authority of public officer.
Classification of powers and duties.
It is presumed that all persons having occasion to deal with public officers have
knowledge of his authority. They must see to it that the authority is sufficient for the
assumed purposes.
There is no apparent authority in a public officer. The public must ascertain the scope
of authority, and are chargeable with notice of the contents of the law conferring that
authority.
But every citizen has the right to assume that a public officer charged by law with
certain duties knows his duties and performs the same in accordance with the law.
Scope of power of a public officer.
1. Expressly conferred by law under which he has been appointed or elected
2. Expressly annexed to the office by law which created it or some other law referring
to it
3. Attached to the office as incidents to it
Generally, the powers are prescribed by the Constitution or statutes. They only have
those powers expressly granted to them. If broader powers are desirable, must be
conferred by the proper authority; cannot be merely assumed nor created by the
courts.
1. From their nature:
a. Ministerial – absolute, certain, and imperative involving merely execution of a
specific duty arising from fixed and designated facts. No judicial power or
discretion as to the interpretation of the law, and the course to be pursued is
fixed by law
Ministerial act – one which a person performs on a given statement of facts, and
in a prescribed manner, in obedience to the mandate of legal authority, without
regard to, or the exercise of, his own judgment upon the propriety or impropriety
of the act done
His only duty is obedience and he cannot excuse himself by undertaking to show
the unconstitutionality or irregularity of the proceeding.
b. Discretionary – those that necessarily require the exercise of reason in the
adaptation of means to an end, and discretion in determining how or whether the
act shall be done or the course pursued.
Discretion arises when the act may be performed in one of two or more ways,
either of which would be lawful, and where it is left to the will or judgment of the
performer to determine in which way it will be performed.
2. From the standpoint of the obligation of the officer to perform his powers and duties
Territorial limitation of authority of public officers.
1. Limited to territory where law has effect – authority cannot exist in places where the
a. Mandatory – powers are construed to be mandatory although the language
may be permissive, where they are for the benefit of the public
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b. Permissive – statutory provisions define the time and mode in which public
officers will discharge their duties which are designed to secure order, uniformity,
system, and dispatch of public business.
Mere authorization to perform an act does not impose a mandatory duty upon a
public official. If the act does not affect third persons and is clearly beneficial to
the public, permissive words will not be construed as mandatory.
3. From the standpoint of the relationship of the officer to his subordinates
a. Power of control – power of an officer to manage, direct or govern what a
subordinate had done in the performance of duties and to substitute his judgment
for that of the latter. He lays down the rules in the doing of an act and if he is not
followed, it is discretionary on his part to order the act undone or re-done by his
subordinate or do the act himself. Example; power of control of president over
the Cabinet members.
b. Power of supervision – power of mere oversight over an inferior body. He sees
to it that the rules are followed, but he himself does not lay down such rules, nor
does he have the discretion to modify or replace them. He may order the work
undone or re-done but he cannot prescribe his own manner for doing the act.
Example; Power of the president over the local Government.
Ministerial and discretionary powers distinguished.
1. Nature of the act – character of duty determined by the nature of the act to be
performed and not by the office of the performer. Nature is determined by the facts of
the particular case.
2. Exercise of discretion – key distinction is whether the duty is mandatory or whether
the act complained of involves policy making or judgment
d. Sheriff executing writ of execution – Ministerial
e. Local city treasurer in accepting tax which is not correct – Discretionary.
Hence he/she is not obliged to accept deficient taxes
Meaning of discretion.
Act or liberty to decide according to the principles of justice and one’s ideas of what is
right and proper under the circumstances, without willfulness or favor. According to
the dictates of their own judgment and conscience, uncontrolled by the judgment and
conscience of others.
Exercise of discretion limited.
It is limited by the legal construction, to the evident purpose of the act, and to what is
known as sound and legal discretion, excluding all arbitrary, capricious, inquisitorial
and oppressive proceedings.
By such exercise of discretion, an officer may decide either way, and though
mistaken, still be right in the sense of being exempt from liability.
Remedy to compel exercise of duty.
Where there is a clear duty imposed and an unnecessary and unreasonable delay
occurs, courts will intervene by mandamus.
If the duty is purely ministerial, courts will require specific action; if purely
discretionary, mandamus will require action only. For example, a tribunal was vested
to decide a particular action, however, after an unreasonable amount of time, the
tribunal didn’t took cognizance of the case, Mandamus will lie only up to try the case
but not to supplant the decision of the tribunal.
Delegation of discretionary powers.
a. Not discretionary – involves enforcement or administration of a mandatory duty
at the operational level, even if professional expert evaluation is required
b. Ministerial act – nothing is left to the discretion of the person who must
perform. It is a simple, definite duty arising under conditions admitted or proved
to exist and imposed by law
Proper execution of the office requires the exercise of judgment or discretion, the
presumption is that he was chosen because he was deemed fit and competent to
exercise that judgment and discretion.
Unless authorized, he has no power to delegate his duties to another.
Delegation of ministerial powers.
3. Illustrations:
a. Register of Deeds
i. When registering under Mortgage Law – judicial, meaning discretionary
ii. When registering under Chattel Mortgage Law – purely ministerial
Where the act is purely of a mechanical executive or ministerial in nature, the
performance of duties of this nature may, unless expressly prohibited, be properly
delegated to another.
But where the law expressly requires the act to be performed by the officer in person,
it cannot, though ministerial, be delegated to another.
b. Payment of Salary - Ministerial
Time to perform official acts.
c. Issuance of Cockpit License under municipal ordinance by Mayor – Both
ministerial and discretionary. Mandamus will not lie
1. Where no time stated in the statute – performed within a reasonable time.
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2. Where time stated in the statute – in the absence of a language prohibiting the
performance of an act at other than the time stated, such is merely directory and not
mandatory, unless the nature of the act or the language of the law clearly intends to
limit the power of the officer like accompanying it with negative words importing that
the acts shall not be done in any other manner or time that that designated and when
disregarded, it would injuriously affect public interest or public right.
Ratification of unauthorized acts.
1. Act of a public officer may not be binding if exercised defectively but his acts may
be ratified
a. Ratification does not apply where there is want of power to perform the original
act. (When the principal could not lawfully have done the act.
b. If merely voidable, the act can be rendered valid
2. In the absence of ratification, state is not estopped by the unauthorized or illegal
acts of its agents
3. Superior officers have the authority to ratify but they are restricted to the ratification
of acts and contracts which they themselves were empowered to make
They shall endeavor to discourage wrong perceptions of their roles as dispensers
or peddlers of undue patronage
c. Justness and sincerity – remain true to the people at all times. Must act with
justness and sincerity and not discriminate against anyone. Must respect the
rights of others and shall refrain from doing acts contrary to law, good morals,
good customs, public policy, etc. They shall not extend or dispense undue favors
except with respect to appointments of relatives in confidential positions
d. Political neutrality – provide service to everyone without unfair discrimination
and regardless of party affiliation or preference
e. Responsiveness to the public – extend prompt, courteous, and adequate
service. Provide information on their policies and procedures in a clear and
understandable language, openness of information, conduct public consultation
and hearing, encourage suggestions, simplify and systemize policy, rules,
procedures, avoid red tape, etc
f. Nationalism and patriotism – to be loyal to the Republic and the Filipino people
at all times, promote the use of locally-produced goods, encourage appreciation
and pride of country and people. Must maintain and defend the country’s
sovereignty against foreign intrusion
Judicial review of official acts.
1. Where the act involves exercise of discretionary power – officer is sole and
exclusive judge of the existence of those facts. Judiciary will not interfere in the
absence of abuse in discretion, or fraud or corruption that vitiates consent.
2. Where act involves performance of purely ministerial duty – when performance is
refused, he could be compelled by mandamus for its performance. When such duty is
threatened to be violated by some positive official act, an injunction may be had to
prevent it
g. Commitment to democracy – maintain public accountability, manifest by the
deeds the supremacy of the civilian over the military. Must uphold the constitution
and put loyalty to country above loyalty to person or party
h. Simple living – modest lives. Must not indulge in extravagant or ostentatious
display of wealth. Must live within the official’s visible means of income as
correctly disclosed
3. Duties of the CSC – adopt positive measures to promote:
3. Where act reviewed done without jurisdiction – it is for the courts to finally
determine whether a public officer acted within the scope of his authority
a. Observance of these standards including information dissemination of
programs and workshops
Norms of conduct of public officials and employees.
b. Continuing research on measures which provide positive motivation to public
officials
1. Public office is a public trust – must at all time be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives
2. Standards of personal conduct
a. Commitment to public interest – public interest over personal interest. Al
government sources must be employed and used effectively, efficiently, honestly
and economically
b. Professionalism – highest degree of excellence, professionalism, intelligence
and skill. There must be utmost devotion and dedication to duty.
System of incentives and rewards.
This system is established to motivate and inspire public servants to uphold the
highest standards of ethics.
1. Criteria – employees who have demonstrated exemplary service and conduct on
the basis of their observance of norms of personal conduct. The following criteria
shall be considered:
a. years of service
b. quality and consistency of performance
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c. obscurity of the position
d. level of salary
e. unique and exemplary quality of achievement
f. risk or temptation inherent in the work
g. any similar circumstances or consideration
2. Form of incentives and rewards
a. bonus
b. citation
c. directorship in GOCCs
d. local and foreign scholarship grants e. paid vacations
e. automatic promotion to next higher position, provided, if there is no next higher
position or it is not vacant, position be included in the next budget except when
creation will cause organizational distortion. Where no next higher position
immediately available, salary increase equivalent to next higher position. When a
new position is created, that which is vacated is deemed abolished.
The grant of awards shall be governed by the merit and fitness principle.
3. Committee on awards – It is composed of the Ombudsman, the chairman of the
CSC, Comm. on Audit and 2 government employees appointed by the President as
members. Their responsibilities are:
a. Periodic, continuing review of performance of officials
b. Establish system of annual incentives and rewards
c. Determine the form of rewards to be granted
d. Formulate and adopt rules to govern the conduct of activism, including
guideline for evaluating nominees, and mechanism for recognizing the awardees
in public ceremonies, and the creation of sub-committees.
Evaluation of nominees may be assisted by technical experts.
d. Duty as to diligence and care - Public finds and property for official use and
purpose shall be utilized with the diligence of a good father of a family.
e. Duty in choice and supervision of subordinates – The degree of care required
in selecting subordinates must depend upon the nature of the work to be
performed and the circumstances of each case.
2. Ethical duties – bound to perform honestly, faithfully, and to the best of his ability,
and to act primarily for the benefit of the people. An attempt to exercise those powers
corruptly for some improper purpose is null and void.
a. Duty as to outside activities – refrain from outside activities that interfere with
the proper discharge of their duties. Congress has the power to ascertain and
declare what activities are inconsistent with the proper performance of public
duties.
b. Duty where personal interest is involved – not permitted to place himself in a
position which will subject him to conflicting duties or expose him to the
temptation of acting in any manner other than in the best interests of the public. A
public official may not use his official power to further his own interest.
c. Duty to act with civility – Government service is people oriented. Belligerent
behavior has no place in government service. Public officers and employees
should be living examples of uprightness not only in performance of their official
duties, but also in their personal and private dealings with other people.
Duty to make financial disclosure.
To maintain public confidence, to avoid conflicts of interest, and to provide the
citizens with information concerning a public officer’s financial affairs, and thus enable
to public to better judge his integrity and fitness for office, the Constitution requires
financial disclosures on the part of all government personnel.
4. Secretariat – The CSC shall provide secretariat services to the Committee
Specific duties of public officials and employees.
Any department may institute its own rewards program in addition to the ones
provided.
Duties of public officers as trustees for the public.
In the performance of their duties, all public officials and employees are under
obligation under the Code of Conduct and Ethical Standards for Public Officials and
Employees to:
1. In general –sacrifice necessary for the safety and happiness of human society, and
the need of his sacrifice is increased in the case of officers appointed to preserve
peace and enforce laws.
1. Act promptly on letters and requests – respond within 15 working days upon
receipt, contain the action taken on the request. The Reply must contain the action
taken on the request.
a. Duty to obey the law
b. Duty to accept and continue in office. An attempt to resign from an office does
not relieve an officer from the obligation of performing his duties, at least until a
successor is appointed.
c. Duty to accept burden of office
2. Submit annual performance reports – within 45 working days from end of the year,
render a full and complete report of performance and accomplishments. Report shall
be available to the public. Report of compliance will be submitted to the CSC.
3. Process documents and papers expeditiously – must be processed and completed
within a reasonable time from preparation, must contain not more than3 signatories.
In absence of authorized signatures, the official nest in rank or officer in charge shall
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sign for and in their behalf.
4. Act immediately on the public’s personal transactions – must attend to anyone who
wants to avail himself of the services of their offices, act promptly and expeditiously.
Example of this is giving of tickets which contains time and date wherein service will
be done without delay.
5. Make documents accessible to the public – Documents shall be open and
accessible to public within reasonable hours
c. lack of resources caused by circumstances beyond the control of the
department
d. legal constraints
e. fault, failure or negligence of the party concerned which renders decision or
action not possible or premature
f. fortuitous event or force majeure
Actions on requests and petitions.
Signing of any written action or decision.
1. General Rule: when a request or petition can be disposed of promptly and
expeditiously, must do so immediately. In no case shall it be beyond 15 working days
from receipt.
Except otherwise provided by law, action or decision must contain not more than 3
initials or signatures. The head of department shall prescribe rules on the proper
authority to sign in the absence of the regular signatory:
2. Written requests – within 15 working days upon receipt, provided that:
1. Only one official next-in-rank – automatically be the signatory
2. 2 or more next-in-rank – appropriate office prescribe order
3. No next-in-rank – head shall designate an OIC
a. communication is within jurisdiction of the agency, officer must:
i. write acknowledgement if matter merely routinary
ii. matter non-routinary – write acknowledgment, action to be taken and other
additional requirements when all have been submitted back to him, inform
the party of the action to be taken and when such action can be expected.
b. communication outside the jurisdiction:
i. refer letter to proper office, telegram or verbal
ii. acknowledge the communication, inform party of referral to proper
department proper office must act on the communication within 15 working
days.
Public disclosure of statements of assets and liabilities.
Public official and employees have an obligation to accomplish and submit
declarations under oath, and the public has the right to know, their assets, liabilities
and net worth and financial and business interest including those of that of the spouse
and unmarried children under 18.
1. Statement of assets and liabilities and financial disclosure – All public officials and
employees except those in honorary capacity, laborers and casual or temporary
workers shall file SALN.
a. Contents. Two documents shall contain information on the following:
3. The department, agency or office to which the letter was referred must take action
in accordance with the letter. 15 days shall be counted from the receipt of the written
or verbal communication of the dept, office or agency concerned.
i. real property, improvements, acquisition costs, assessed value, FMV
ii. personal property, acquisition cost
Processing of papers and documents.
iii. all other assets like investment, cash on hand or in banks, stocks, bonds
All official papers and documents must be processed and completed within a
reasonable time from the preparation thereof.
1. When law prescribes a period, the same shall be followed
2. When no period prescribed in the law – issue action within a reasonable time,
considering the following factors:
a. nature, simplicity or complexity of the subject matter
iv. financial liabilities, current and long-term
v. all business interests and financial connections whether as proprietor,
investor, promoter, shareholder, officer, managing director, creditor, lawyer,
legal consultant, or adviser, financial or business consultant, accountant,
auditor, and the like, the names and old addresses of the business
enterprises or entities, the dates when such interests or connections were
established and such other details as will show the nature of the interest or
connections.
b. completeness or inadequacy of requirements or of data and information
necessary for the decision
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b. When to file
i. within 30 days after assumption of office
ii. on or before April 30 of every year
iii. within 30 days after separation from service
c. Where to file:
i. President, VP, Constitutional officials, with the National Office of the
Ombudsman
ii. Senators and Congressmen, with the Secretaries of the Senate and the
House of Rep, respectively; Justices, with the Court of Administrator; and all
national executive officials, such as members of the Cabinet,
Undersecretaries, and Assistant Secretaries, including the foreign service
and heads of GOCC with original charters and their subsidiaries and state
colleges and universities, with the office of the President.
e. execute authority in favor of the Ombudsman
4. Prohibited acts – obtain or use any statement
a. for any purpose contrary to morals or public policy
b. for any commercial purpose other than by news and media communication for
dissemination to the general public
5. Review and compliance procedures – determine is properly accomplished
a. In case of Congress, the designated committees of both houses, subject to
approval by affirmative vote of majority of each house
b. In Executive department, the heads of departments, agency, or offices, subject
to approval by secretary of DOJ
c. In Judicial department, the chief justice
iii. Regional and local officials and employees, both appointive and elective,
including other officials and employees of GOCC and their subsidiaries, with
the Deputy OMB in their respective regions.
v. Officers of the armed forces from the rank of colonel or naval captain, with
the Deputy OMB in their respective regions
v. All other public officials and employees, defined in RA 3019, as amended
with the CSC
A copy of the statement shall be filed with their respective departments.
d. authority in favor of ombudsman – officials shall execute necessary authority in
favor of the ombudsman to obtain documents that may show their assets,
liabilities and net worth, other business and financial connections within 30 days
from assumption of their office.
d. In ConComs and other constitutional officers, the chairmen, In office of the
ombudsman, the ombudsman
Transparency of transactions and access to information.
1. Ensure transparency of public transactions – The Dept, offices, agencies has
responsibility to establish measures and standards that will ensure transparency of
and openness in public transactions in their offices
2. Provide official information – provide information to any requesting public except:
a. Information must be kept secret in the interest of national defense or security
or conduct of foreign affairs
b. Put the life and safety of someone in imminent danger
2. Identification and disclosure of relatives – identify relatives in the government which
shall include up to fourth civil degree of relationship, either of consanguinity or affinity,
including bilas, inso, and balae.
c. Information falls within the concepts of privileged information
3. Accessibility of documents
e. It would disclose information of a personal nature and would constitute
unwarranted invasion of privacy
d. It comprises of drafts of decisions, orders, rulings, policy-decisions
a. statements made available for inspection at a reasonable hour
b. made available for copying or reproduction after 10 days from the time they
are filed
c. pay reasonable fee to cover the cost of reproduction and mailing and
certification
d. available to the public for a period of 10 years after receipt of statement.
Afterwards, it shall be destroyed unless needed in an ongoing investigation.
f. It would disclose investigatory records compiled for law enforcement purposes,
or the production of records would:
i. interfere with enforcement proceedings
ii. deprive a person of a right to fair trial or impartial adjudication
iii. disclose identity of a confidential source
iv. unjustifiably disclose investigative techniques and procedures
g. It would disclose information, premature disclosure would:
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i. lead to significant financial speculations or significantly endanger the
stability of any financial institution
ii. it would significantly frustrate implementation of proposed official action
except the letter (f)(ii) shall not apply in any instance where the department,
office or agency has already disclosed to the public the content or nature of
its proposed action, or where the department, office, or agency is required
by law to make such disclosure on its own initiative prior to taking official
action on such protocol.
3. Establish information systems – effect the widest possible dissemination of
information, and such information systems must inform the public:
4. Develop and make available a service guide – workflow chat showing procedures
or flow of documents. Aims to institutionalize a management climate conducive to
public accountability
5. Consult the public for feedbacks and suggestions
6. Conduct research and examination – provide motivation to officials in raising the
level of observance of public service ethical standards
7. Designate a resident ombudsman – act immediately on all requests for public
assistance
8. Consult and dialogue with staff
a. policies, rules, procedures
b. work programs, projects, performance targets
c. performance reports
d. all other documents
Such information cannot be used to build public image or advance his own personal
interest.
Reforms on public administrative systems.
1. Conduct value development programs – Such Program shall include
a. ethical and moral values
b. rights, duties and responsibilities of public servants
c. nationalism and patriotism
d. justice and human rights
e. democracy in a free and just society
f. Philippine history, culture, tradition
g. Socio-economic conditions
Continuing refresher courses to promote a high standard of ethics in public service
shall be conducted.
2. Conduct professional, etc. programs – enhance to the highest degree,
professionalism, excellence, intelligence and skills in the performance and discharge
of duties and responsibilities
3. Conduct studies and analyses of work systems. Such system shall:
a. identify systems and procedures that lead or contribute to negative
bureaucratic behaviors
b. simplify rules and procedures to avoid red tape
c. devise or adopt systems and procedures that promote official and employee
morale and satisfaction
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Chapter Five
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
A. In General
Rights incident to Public Office.
Rights of one elected or appointed to office, are in general, measured by the
Constitution or the law under which he was elected or appointed.
Compensation, not an element of public office.
Compensation is not indispensable to a public office. it is not part of the office but
merely incident thereto, and attaches to the office itself, and not to the officer.
In fact, it is sometimes expressly provided that certain officers shall receive no
compensation, and a law creating an office without any provision for compensation
may carry with it the implication that the service are to be rendered gratuitously.
Forms of compensation defined and distinguished
Where an office is created by a statute, the rights of an officer elected thereunder are
measured by the statute except insofar as he may be protected by any provision of
the Constitution.
The powers and duties of public officers are prescribed by the Constitution, or by
Statute or both.
Rights as a Citizen
1. Protection from publication commenting on his fitness and the like – The mere fact
that one occupies a public office does not deprive him of the protection accorded to
citizens by the Constitution and laws. They are not entitled to the same protection
from publications commenting on his fitness, and the like, as what is accorded to
citizens.
1. Compensation – pay for doing all that may be required of the official, whatever it is
in the form of a fixed salary or wages, per diems, fees, commissions or perquisites of
whatever character.
Honorarium – something given not as a matter of obligation but in appreciation for
services rendered, a voluntary donation in consideration of services which admit of no
compensation in money
2. Salary – personal compensation to be apid to him for his services; a fixed annual or
periodical payment depending on the time and not on the amount of the services he
may render; given to officers of higher degree of employment than those to whom
wages are given; regarded as compensation per annum
Wages- paid day by day or week by week
2. Engaging in certain political and business activities – The governmental interest in
maintaining a high level of service of its employees in the performance of their tasks
may require public employees to suspend or refrain from certain political or business
activities which are embraced within the constitutional rights of others, when such
activities are reasonably deemed inconsistent with their public status and duties
To justify restrictions – the government must show that the restraints RATIONALLY
relate to the enhancement of the public service
3. A per diem – this is fixed not as ordinarily by the year or by the month but by the
day. A per diem is not deemed to be a salary within a constitutional provision that no
change in the compensation of officers shall affect the salary of any officer during his
existing term. it is not fee unless clearly classified as such. So also is an honorarium
defined as something given not as a matter of obligation, but in appreciation for
services rendered, a voluntary donation in consideration for services which admit of
no compensation or money (Ex. Monthly allowance given by the LGUs to judges
assigned within their territorial jurisdictions).
B. Right to Compensation
Power of Congress to fix compensation.
1. Power primarily but not exclusively legislature in character – The power is primarily
legislature although not exclusive. Example is if the office is created by the
constitution, the Constitution itself may provide the compensation or may entrust the
matter to congress.
2. Power may be delegated subject to statutory limitations – The power to fix the
compensation of public officers is not inherently and exclusively legislative in
character. It may delegate the power to other governmental bodies or officers, as for
example, governor, mayor, or sangguniang bayan, or other officers or official boards.
Administrative boards or other officers may fix compensation and such discretionary
action is not ordinarily reviewable by the courts.
4. Sometimes the compensation is made to depend fees for service rendered, or on
commission on moneys officially passing through their hands. A maximum sum may
be fixed beyond which the officer is not to receive any emoluments.
5. Emoluments – profit arising from the office, that which is rendered as
compensation for services or which is annexed to the office as salary, fees, or
perquisites. It includes such fees and compensation as the incumbent of the office is,
by law, entitled to receive. The term has been held to include salary, fees,
compensation, perquisites, pensions, and retirement benefits
Basis of right to compensation
1. Creation of law – his right to compensation is not the creation of contract because it
exists as the creation of law (constitution, statute or ordinance). When compensation
exists, it belongs to him not by force of any contract but because the law attaches it to
the office
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2. Services rendered – the right to compensation grows out of the rendition of
services. After services have been rendered by a public officer, the compensation
earned cannot be taken away by a subsequent law, but cannot recover, as a rule,
salary for a period during which he performed no services. Under the principle “no
work, no pay” principle, compensation paid only for service actually or constructively
rendered
3. Compensation fixed by law – if no compensation is fixed or attached by law, the
public officer is presumed to have accepted the office to serve gratuitously
4. Legal title to office – one without a legal title to office either by lawful appointment
or election and qualification is not entitled to recover salary or compensation attached
to the office
facto officer for services rendered by him after notice of adjudication of the title to the
former. Where the tenure of the de facto officer is “wrongful” the salary received by
him during such tenure may be recovered
From the intruder or usurper – one who intrudes into or usurps a public office has no
righ tot the salary or emoluments attached to the office. he stands even in a less
favorable position than an officer de facto
Salary not subject to garnishment
Garnishment is a species of attachment for reaching credits belonging to the
judgment debtor owing to him from a stranger to a litigation
Reasons:
5. Amount of compensation – Section 5, Article 9B of Constitution: “The Congress
shall provide for the standardization of the compensation of government officials,
including those in government-owned or –controlled corporations with original
charters, taking into account the nature of the responsibilities pertaining to, and the
qualifications required for their positions.
1. While the money is still in the hands of the disbursing officer, it belongs to the
government
2. Public policy forbids such practice since it would be fatal to the public service
RA. No. 6758 (An Act Prescribing a Revised Compensation and Position
Classification System in the Government) provides that differences in pay are to be
based “upon substantive differences in duties and responsibilities and qualification
requirements of the positions.”
3. The garnishment or attachment of an officer’s salary is tantamount to a suit against
the State in its own court, which is prohibited except with his consent
The nature of the official’s position should be the determining factor in fixing of his or
her salary.
Agreement by a public officer respecting his compensation may rightfully be
considered invalid as against public policy where it tends to pervert such
compensation to a purpose other than for which it was intended
Law employs the scheme known as grade – although different with respect to kind or
subject matter of work, are sufficiently equivalent as to level of difficulty and
responsibilities and level of qualification requirements of the work to warrant the
inclusion of such classes of positions within one range of basic compensation. It is
the official’s grade that determines his or her salary, not the other way around.
6. Ex-officio position – this is actually in legal contemplation part of the principal office.
The official concerned has no right to receive additional compensation for his services
in said position
Recovery of compensation
An action to recover the compensation attached to a public office belongs to the
person who has the true, rather than the colorable, title to the office, for in such action
the title to the office is put in issue
1. From the government – A de jure officer cannot recover from the government
salary or compensation which has been paid to a de facto officer. It is a matter of
justice that the emoluments must go to the person (de facto officer) who actually
rendered the service unless the contrary is provided
2. From de facto officer – as a corollary rule to the above, a de jure officer can
recover either from the government or the de facto officer the amount paid to the de
Agreements affecting compensation
1. Agreement to accept, or acceptance of less or other than legal compensation –
illegal
2. Sale, assignment or barter – the salary or emoluments of public office are not
considered proper subject of barter and sale. Public policy prohibits the assignment
of unearned salaries or fees
3. Dividing compensation with others – agreement is invalid; this amounts to an
anticipatory assignment of the emoluments of the office. Such bargains create no
legal obligation. The fact that the officer may be a party to the crime in illegal contract
does not defeat his right to recover the compensation allowed by law, for it does not
depend upon the contract, but upon the provisions of the law fixing the compensation
Prohibition against diminution of salary
Except as otherwise provided by the Constitution, Congress has absolute power to fix
or alter the compensation of public officers.
Under the Const, Congress is given the power to fix the salaries of certain
Constitutional officers, but after it has done so, it may not reduce the salary of any of
them during his term or tenure.
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Salaries of persons which cannot be decreased: President, VP, Chief Justice and
Associate Justices of the SC, Judges of lower court, Chairmen and members of the
Constitutional Commissions and Ombudsman and his deputies
Prohibition against receiving additional , double, or indirect compensation
“No elective or appointive public officer employee shall receive additional,
double, or indirect compensation UNLESS specifically authorized by law, nor
accept without the consent of the Congress, any present, emolument, office, or
title of any kind from any foreign government.
Pensions and gratuities shall NOT be considered as additional, double or
indirect compensation”
d. Prohibitions and sanctions enumerated in the Implementing rules
e. Civil and Criminal liability
4. Exemptions – They are exempted from filing statements of assets, liabilities and
net worth and financial disclosure, the requirement on divestment, and the
appropriate eligibility requirement for their designations, and shall NOT enjoy security
of tenure
5. Prohibitions
a. Exercising supervisory functions over personnel
b. Exercising functions of positions involving national security
This prohibition does not apply:
1. Where the employee is specifically authorized by law in individual instances where
the payment of such compensation appears not only just but necessary
c. Having access to confidential or classified information unless authorized by
proper authorities
d. Occupying regular plantilla positions
2. Where the additional compensation is received not from the government or any of
its entities
3. Where there are two distinct offices, each of which ahs its own duties and
compensation, in which case both may be held by one person at the same time
Free voluntary service to the government
e. Having such services credited as government service and availing themselves
of retirement benefits
f. Using facilities and resources of the office for partisan political purposes
g. Receiving any pecuniary benefit such as honoraria allowance and other
perquisite of office
Free voluntary service – services rendered by persons who are in the government
without pay or compensation
1. Requirements
a. Issuance of an appropriate document
b. Fitness and suitability for the duties and responsibilities of the particular
position
c. Compliance with the rule on nepotism
2. What they can perform
a. Advisory
b. Consultancy or counselling
c. Recommendatory
d. Professional services
e. Staff work such as planning or research
f. Humanitarian
3. Applicable laws and rules – Code of Conduct and Ethical Standards and
Employees and implementing rules on:
a. Rewards and incentives
b. Norms of conduct and ethical standards
c. Duties and obligations of public officers and employees
C. Other Rights
Rights under the Constitution
1. The right to self-organization – this shall not be denied to government employees.
The constitution grants to government employees in the civil service the right to form
unions enjoyed by workers in the private sector
Section 8 of Article 3 – “Right of the people including those employed in the public
and private sectors to form associations, unions, or societies for purposes not
contrary to law shall not be abridged”
Section 3 Par 2 of Article 13 which mandates the State to “guarantee the rights of all
workers to self organization, collective bargaining and negotiations and peaceful
concerted activities, including the right to strike in accordance with law”
2. The right to protection of temporary employees – They do not enjoy security of
tenure. They may be replaced any time a qualified civil service eligible becomes
available, or at the discretion of the appointing authority with or without cause
notwithstanding that their performance meets the standards of public service
demanded of them.
3. Freedom of members of Congress from arrest and from being questioned - Section
11 of Article 6 of Const. – “A Senator or Member of the House of Representatives
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shall, in all offenses punishable by not more than 6 years imprisonment, be privileged
from arrest while Congress in session. No member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or in any
committee thereof.” - This grants parliamentary immunities to members of Congress
4. The right not to be removed or suspended except for cause provided by law Implicit in the Constitutional prohibition against removal or suspension EXCEPT for
cause is the: 1) existence of a charge 2) due hearing 3) finding of guilty by the proper
authority
Each department or agency shall evolve its own screening process, which may
include test of fitness in accordance with the standards and guidelines set by the Civil
service
If the vacancy is not filled by promotion as provided above, the same shall be filled by
transfer of present employees in the government service, by reinstatement, by
reemployment of persons separated through reduction in force, or by appointments of
persons with the civil service eligibility appropriate to the positions
A qualified next in rank employee shall have the RIGHT TO APPEAL initially to the:
Participation in prohibited activity or mass action
This refers to any collective activity undertaken by the government employees either
by themselves or through their employees’ organizations, with the intent of effecting
work stoppage or service disruption in order to realize their demands or force
concessions, economic or otherwise, from their respective agencies or the
government
Concerted activity done outside government office hours may be allowed and shall
not be deemed prohibited so long as such would not result in disruption of work
1. Government workers can form associations for purposes not contrary to law. The
constitutional grant to government workers of the right to form labor organizations or
unions does NOT guarantee them the right to bargain collectively with the
government or to engage in concerted activities including the right to strike, which are
enjoyed by private employees.
2. Since the terms and conditions of government employees are fixed by law,
government workers cannot use the same weapons employed by workers in the
private sector to secure concessions from their employees.
Any government employees who join or participate in prohibited concerted activity
shall be held administratively liable for the offense of conduct prejudicial to the best
interest of the service
1. Secretaries or heads of agencies or instrumentalities including GOCCs with original
charters, and then to the
2. Merit System Protection Board, and finally to
3. Civil Service Commission.
Qualified next-in-rank refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy proposed to be filled
and who meets the requisites for appointment thereto as previously determined by
the appointing authority and approved by the Commission
The nature of a protest case filed with the CSC questioning an appointment is not
strictly an adversary proceeding where the protestant and protestee play active roles.
It is an action of the protestant against a determination made by the appointing
authority. Indeed, it is the appointing authority adversely affected where the CSC
disapproves the appointment made. Its participation in the determination of the issue
is INDISPENSABLE
2. The right to present complaints and grievances – Employees have the right to
present their complaints or grievances to the management and have them
adjudicated as expeditiously as possible in the best interest of the agency, the
government as a whole, and the employee concerned.
Government agencies shall not approve or warrant mass leave of absences which
occur when five or more employees apply for leave simultaneously or almost at the
same time under circumstances evidencing collusion or common design to participate
in a prohibited mass action. They must have the right to collective negotiation
which is a new concept in the Constitution for resolving disputes or potential ones
between employer an employees. Intended primarily for unorganized labor and
government workers, it calls for discussion rather than confrontation in order to reach
a solution to issues affecting both parties
It shall be resolved at the lowest possible level in the department or agency
Rights under the Civil Service Degree and the new Administrative Code
Next-in-rank rule
1. The right to preference in promotion - When a vacancy occurs in a position in the
first and second level of the Career service, the employees in the department who
occupy the next lower positions in the occupational ground under which the vacant
position is classified, shall be considered for promotion
Not a mandatory requirement – it applies only to cases of promotion. It neither grants
a vested right to the holder not imposes a ministerial duty on the appointing authority
to promote such person to the next higher position. It is given PREFERENTIAL
consideration for promotion to a vacant position, but it does not necessarily follow that
he alone and no one else can be appointed
3. The right not to be suspended or dismissed except for cause as provided by law
and after due process
4. Right to organize – Government shall not be discriminated against in respect of
their employment by reason of their membership in employees’ organizations or
participation in the normal activities of their organizations
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Reason – the appointing authority is granted DISCRETION and prerogative of choice
of the one he deems fit for appointment. All that a CSC is actually allowed to do is to
check whether or not the appointee possesses the appropriate civil service eligibility
or the required qualifications.
Discretion of the appointing authority – the appointing authority, under the law, is
allowed to fill vacancies by promotion, transfer or present employees, reinstatement,
re-employment and appointment of outsiders who have appropriate civil service
eligibility, not necessarily in order
5. Reemployment – names of persons who have been appointed permanently to
positions in the career service and who have been separated as a result of reduction
in force and/or reorganization, shall be entered in a list from which selection or
reemployment shall be made
6. Detail – movement of an employee from one department or agency to another
without the issuance of an appointment and shall be allowed only for a limited period
in the case of employees occupying professional, technical and scientific positions
7. Reinstatement – an employee may be reassigned from one organizational unit to
another in the same department but such reassignment shall not involve a reduction
in rank, status or salary. It does not require the issuance of an appointment
Personnel actions
This means any action denoting the movement or progress of personnel in the civil
service
1. Appointment through certification – an appointment whereby the person appointed
has been selected from a list of qualified persons certified by the CSC from an
appropriate register of eligibles and who meets all other requirements of the position
2. Promotion – advancement from one position to another with an increase in duties
and responsibilities as authorized by law and usually accompanied by an increase in
pay
Any increase in salary should only be considered incidental but never determinative
of whether or not a promotion is being bestowed upon an employee
There is no law that compels an employee to accept a promotion for the reason that a
promotion is in the nature of a gift or reward, which a person has a right to refuse
3. Transfer – movement from one position to another which is of equivalent rank, level
or salary without break in service involving the issuance of an appointment
It shall not be considered disciplinary when made in the interest of public service
The transfer may be from one department or agency to another (detail) or from one
organizational unit to another in the same department or agency (reassignment)
Any movement from non-career service to the career service shall not be considered
a transfer
4. Reinstatement – restoration to a state or condition from which one has been
removed or separated
8. Demotion- movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status, grade or rank which
may or may not involve reduction in salary, although usually accompanied by a
decrease in salary
A demotion by assigning an employee to a lower or less important position in the
same service which has a lower rate of compensation is tantamount to removal, if no
cause is shown for it
Pensions
These are regular allowances paid to an individual or group of individuals by the
government in consideration of services rendered, or in recognition of merit, civil, or
military
It is not a gratuity but rather a form of DEFERRED compensation for services
performed and his right thereto commences to vest upon his entry into retirement
system and becomes an enforceable obligation in court upon fulfillment of all
conditions under which is to be paid
Where the employee retires and meets the eligibility requirements, he acquires a
VESTED RIGHT to benefits that is protected by the due process guarantee
It partakes of the nature of “retained wages” – 1) to entice or encourage faithful and
competent employees to enter or remain in service 2) allow employees who have
become incapacitated by illness to continue discharging the duties to retire from
service with a relative financial security
Gratuity
Donation and act of pure liberality on
the part of the state
The award for backwages has been limited to a maximum period of 5 years
Where the reinstatement involves the exercise of sound judgment and discretion by
the appointing power, absent a showing of clear and certain right by a separated
employee, the remedy of mandamus is not available
Pension
More than an ct of generosity. It is
an act of justice emanating from the
desire to provide, though tardily,
adequate compensation for services
already rendered for which one had
not received complete and adequate
reward at the time when such
services were actually rendered
Construction of retirement laws
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Retirement laws or statues creating pensions being remedial in character, should be
liberally construed and applied in favor of persons intended to be benefited by them,
and all doubts as to the intent of the law should be resolved in favor of the retiree to
achieve its humanitarian purposes so that the efficiency, security and well being of
government employees may be enhanced
To deny an innocent employee his backwages during his suspension would be
tantamount to punishing him after his exoneration from his charges which caused his
dismissal from service
A party’s claim for backwages may be the appropriate subject of an ordinary civil
action NOT mandamus
Right to reimbursement and indemnity
When a public officer, in the due performance of his duties, has been expressly or
impliedly required by law to incur expenses on the public account, not covered by his
salary or commission and not attributable to his own neglect or default, the
reasonable and proper amount thereof forms a legitimate charge against the public
for which he should be reimbursed
Right to reinstatement and back salary
These are separate distinct reliefs given to an illegally dismissed official or employee
Reinstatement – restoration to a state or condition from which one had been removed
or separated. One who is reinstated assumes the position he had occupied prior to
the dismissal
Back salary – form of relief that restores the income that was lost by reason of
unlawful dismissal
1. When removal or suspension lawful – one who has been lawfully separated or
suspended from his office is NOT entitled to compensation for the period during which
he was so suspended or separated, even if it be subsequently determined that the
cause for which he was suspended was insufficient
Denial of salary to an employee during the period of his suspension if he should be
later found guilty is proper because he had given ground for his suspension
2. Where removal or suspension unlawful – where an officer entitled to fixed annual
salary was unlawfully removed or suspended and was prevented for a time by no fault
of his own from performing the duties of the office, it was held that he might recover,
and that the amount that he had earned in other employment during his unlawful
removal should not be deducted from his unpaid salary
What is material is not the nature of the appointment but the act of wrongful
deprivation of office. if the illegal dismissal is found to have been made in bad faith
by the superior officers, then they will be held PERSONALLY accountable for the
back salaries of the illegally dismissed employee
Award of backwages Is limited to a maximum period of FIVE years. But an officer
claiming back his office is not entitled to salary during the pendency of the case
3. Where suspended employee later found innocent – backpay may be allowed for
the period when an employee is not allowed to work without his fault as when he was
preventively suspended for alleged dishonesty and gross negligence but later found
innocent of the charges causing his suspension
4. Where employee not completely exonerated or reinstatement not the result of
exoneration – if the employee is not completely exonerated of the charges, such as
when the penalty of dismissal is reduced to mere suspension or to a fine, he would
not be entitled to the payment of back salaries
5. Where another appointed to position of illegally dismissed or suspended employee
– when an regular government employee was illegally suspended or dismissed,
legally speaking, his position never became vacant and he is considered as not
having left his office
6. Duty of plaintiff seeking reinstatement to prove his right to the office – he must
establish that when dispossessed, he was entitled to the office. In a quo warranto
proceeding, the person suing must show that he has clear right to the office allegedly
held unlawfully by another. Absent such right, the lack of qualification or eligibility of
the supposed usurper is immaterial
7. Right to reinstatement to former or at least comparable position – when a
government official or employee has been illegally dismissed, and his reinstatement
has later been ordered, for all legal purposes he is considered as not having left his
office, so that he is entitled to all the rights and privileges to accrue to him by virtue of
the office he held
8. Duty to act with reasonable diligence in asserting right to reinstatement - it is not
proper that the title to public office should be subjected to continued uncertainty, and
the people’s interest requires that such right should be determined as speedily as
practicable. The laws aid the vigilant and not those who slumber on their rights
A petition for quo warranto and mandamus affecting titles to public office must be filed
within one (1) year from the date the petitioner is ousted from position. The claim for
back salaries and damages is also subject to the prescriptive period of one (1) year
9. Where pardon extended to convicted employee – a pardon, unless expressly
grounded on the person’s innocence or unless the right to a public office is expressly
restored by it, does NOT ipso facto restore a convicted felon to public office. it merely
restores his eligibility for appointment to that office, and to regain his former post, he
must re-apply and undergo the usual procedure required for new appointment
Rights to property, devices, and inventions
1. Title to a public office carries with it the right, during the incumbency of the officer,
to the insignia and property thereof
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2. The question whether the records or discoveries made or prepared by an officer
while he is occupying the office, belong to the public, must be determined with
reference to the facts of the case
If they are indispensable in the proper conduct of office, the officer may NOT take
them as his own property even though he has prepared them on his own time and
paid form them with his own funds
If they are not required by law and are prepared by the officer apart from his official
duties and are not indispensable, they the officer may acquire a property right therein
Right to recover reward for performance of duty
It is the duty of a public officer to execute the functions of his office for the
compensation attached to it by law, and he will not be permitted, unless expressly
authorized by law, to recover a reward offered by the public for the performance of an
act which was part of his official duty to perform if he could
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Chapter Six
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
A. Under the Constitution
Disabilities of President, Vice-President, Members of Cabinet, and their
Deputies and Assistants.
Disability to their right to engage in certain activities
3. They may not personally appear as counsel before any court, election tribunal, or
quasi-judicial body.

During their tenure, they are subject to these prohibitions:
1. They shall not hold, unless otherwise provided in the Constitution, any other office
or employment.
2. They shall not practice any other profession.
Purpose: To remove any possibility of undue influence upon the judges of
the courts or heads of these bodies. Moreover, the appearance is prohibited
even if no fees are charged for it.
4. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries during his
term of office.
3. They shall not participate, directly or indirectly, in any business.

4. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries.
Financial interest – is any contract that involves financial investment or
business out of which he derives profit or gain. However, borrowing money
from a GOCC is cannot be considered as such.

The prohibition on financial interest in any contract with the government
extends to his spouse. However, it does not extend to his brother or son
unless used as a dummy.

Purpose: To prevent him from using his influence and pressure in the
awards of government contracts or for the purpose of financial benefit or
reward.
5. They shall strictly avoid conflict of interest in the conduct of their office.
The President is also prohibited during his tenure from appointing his spouse and
relatives by consanguinity or affinity within the fourth civil degree.
Purpose: To insure that the officials will devote full time and attention to their official
duties, prevent them from extending favors to their business and to assure public of
faithful performance of their functions.
Disabilities of Members of Congress.
Disability to their right to hold any other office or employment
5. They shall not intervene in any government office for his pecuniary benefit or where
he may be called upon to act on account of his office.

Purpose: To insure that every vote on any pending legislative measure shall
be dictated by no other consideration than public good whether or not he
derives pecuniary benefit or not.
1. They may not hold any other office or employment in the government or any of its
subdivision, agency or instrumentality, including any GOCC or their subsidiaries
during their term without forfeiting his seat.
Disabilities of members of Constitutional Commissions.
2. They cannot be appointed to any office that may have been created or the
emoluments increased during the term for which he was elected.
2. They shall not engage in the practice of any profession or in the active
management or control of any business that in any way may be affected by the
functions of his office.


Incompatible office – (refers to number 1) It includes any position in the
government outside of Congress, including ex officio membership of any
non-congressional body, committee or commission in any guise whatsoever,
unless the second office or employment is connected with or in aid of
legislative duties.
Forbidden office – (refers to number 2) The period for ineligibility does not
end until after the member’s term has expired not his tenure. Hence, he shall
still be ineligible for appointment to such office even if he resigns or losses
his seat before the end of his term.
1. They shall not hold any other office or employment.
3. They shall not be financially interested, directly or indirectly, in any contract with, or
in any franchise or special privilege granted by the government or any subdivision,
agency or instrumentality thereof, including any GOCC or their subsidiaries.
Prohibition against designation of members of judiciary to administrative
positions.
The members of the Supreme Court and of other courts established by law shall not
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be designated to any agency performing quasi-judicial or administrative bodies.
Pensions and gratuities shall not be considered additional compensation.
Reasons for the prohibition:
1. The designation violates the doctrine of separation of powers.
2. It may compromise the independence of members.
3. It will result to further delay in the disposition of cases pending in the courts.
Prohibition against appointment of members of the armed forces to certain
positions.
Members of the armed forces in active duty are prohibited from being appointed or
designated in any capacity to a civilian position.
Prohibition against engaging in partisan political activities.
Officers and employees of the CSC and members of the military are prohibited from
engaging directly or indirectly in any partisan political activity.
Partisan politics – acts designed to have a candidate elected or not, or to promote the
candidacy of a person to a public office. It is also synonymous to electioneering or
partisan political campaign.
The prohibition covers only career service employees. Elective officials and cabinet
members who are holding political offices are not embraced in the prohibition.
Prohibition against grant of loan, guaranty or other form of financial
accommodation.
No form of financial accommodation for any business purpose may be granted by any
GOCC bank to the President, VP, members of the cabinet, congress, SC, ConComs,
Ombudsman, and any firm or entity in which the officials have a controlling interest
during their tenure. The prohibition does not apply to personal loans or to firms
wherein he has no controlling interest.
Purpose: To prevent the public officials from using their influence to secure a loan for
personal benefit.
Prohibition against appointment of elective officials.
B. Under Existing Laws
During his tenure in office, an elective official is disqualified for appointment or
designation to any public office or position in the government. Appointment to the
later office is void.
Exception: The appointment will be valid if he resigns from his elective seat.
Prohibition against holding more than one position by appointive officials.
An appointive official may hold any other office or employment in a GOCC only when
allowed by law or required by his primary functions.
Case 1: When allowed by law, the positions may be totally unrelated to each other.
Case 2: When the functions are related, the prohibition does not applyeven in the
absence of an enabling law.
Prohibition imposed on civil service officers or employees.
1. Political activity – cannot engage in any partisan political activity or take part in
any election campaign except to vote nor shall use official authority or influence to
coerce political activity of another person. This does not extend to expressing views
on current political issues or from mentioning names of candidates whom he
supports. Those holding political offices may take part in political activities but are
prohibited from soliciting contributions from subordinates.
2. Additional or double compensation – elective or appointive official cannot
receive additional or double compensation unless authorized by law, nor can they
accept any present, emolument, office or title of any kind from a foreign state unless it
is with the President’s consent
Purpose: Appointive officials should devote their full time to their principal functions.
Prohibition against acceptance of any present from any foreign state.
What is prohibited is the acceptance of a present officially offered by the government
of the foreign state. However, it is permissible for an official of the Philippines to
accept a private or personal gift from the head of a foreign government. The
prohibition is directed only against public officers and not private citizens.
Purpose: To discourage and prevent foreign influence in the affairs of our
government.
Prohibition against receiving additional, double or indirect compensation.
Elective or appointed officers or employees shall not receive additional, double or
indirect compensation.
3.Limitation on employment of laborers – laborers shall not be assigned to perform
clerical duties
4. Prohibition on detail or reassignment– no detail or reassignment within 3
months before any election
5. Nepotism – cannot appoint members of the family within the third degree either of
consanguinity or of affinity. However, the prohibition is subject to exceptions.
Prohibition imposed on local government officials.
1. Prohibited business and pecuniary interest– unlawful for any local government
official or employee directly or indirectly to:
a. engage in business transactions with LGU in which has the power of
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supervision or where he is an official whereby money or property is to be
transferred from the LGU to another person or firm
b. hold interests in any cockpit or other games licensed by the LGU
c. purchase real property forfeited in favor of the LGU for unpaid taxes or by
virtue of a legal process
d. be a surety for any person contracting with the LGU
e. possess or use any public property of the LGU for private purposes
f. all other prohibitions relating to conduct of business provided for in the Code of
Conduct and Ethical Standards for Public Officials and Employees and other
applicable laws
2. Justices, judges, prosecutors, etc., the property and rights in litigation or levied
upon an execution before their court. It includes acquiring by assignment and shall
also apply to lawyers with respect to property and rights that may be the object of
litigation. For the prohibition to operate, the sale or assignment must take place
during the pendency of the litigation involving the property.
Prohibitions imposed on the Governor and personnel of the Central Bank.
1. Outside interest of the Governor and Full-time Monetary Board Members–
The BSP Governor and the monetary board members are required to limit their
activities with the Bank.
General rule: They may not accept other employment.
Exception: They can accept employment if the positions are for eleemosynary
organizations or by designation of the President that they represent the interest of the
government or its agency.
2. Practice of profession
2. Personnel- They are also prohibited from:
a. governors, mayors prohibited from practicing their professions or engaging in
any occupation other than exercise of functions as local chief executives
b. sanggunian members may practice their professions or engage in any
occupation except during session hours. However, those who are members of
the bar shall not:
i. appear as counsel before any court in any civil case where the LGU is
adverse party
ii. appear as counsel in criminal case where official of government is
accused of an offense in relation to his office
iii. collect any fee for appearance in administrative proceedings involving his
LGU
iv. use property and personnel of the government except when sanggunian
member is defending interest of the government
c. doctors may practice profession even during work hours only in occasions of
emergency, provided that officials concerned do not derive monetary
compensation
3. Partisan political activity– No local official in the career civil service shall engage
in partisan political activity. However, elective officials can engage in partisan political
activities but cannot solicit contributions from subordinates or subject them to any
prohibited acts under the Omnibus Election Code.
Prohibition against purchase of certain property at public auction under the
Civil Code.
1. Public officers, the property of the State thathas been entrusted to them. The
prohibition applies to judges and government experts taking part in the sale.
a. being an officer, director, employee or stockholder directly or indirectly of an
institution supervised by the BSP unless it is a non stock savings and loan
association and provident funds for BSP employees
b. requesting or receiving gifts or pecuniary benefit from an institution supervised
by the BSP
c. revealing in any manner except under order of the court or Congress or
government office authorized by law or under such conditions as may be
prescribed by the board, information relating to the condition or business of any
such institution. This prohibition does not apply if the information is for the Board
or the Governor or person with written authority to receive it.
d. borrowing from any such institution unless the loan is adequately secured, fully
disclosed to the board. Personnel of the supervising and examining departments
are prohibited from borrowing from a bank under their supervision or
examination.
Prohibitions imposed on internal revenue officers or employees.
1. Divulging information about the tax payer acquired by him in the discharge of his
official duties.
2. Becoming interested directly or indirectly in manufacture, sale or importation of any
article subject to tax.
Prohibited acts and transactions under the Anti-Graft and Corrupt Practices
Act.
1. Influencing another officer to perform an act that violates lawful rules or an offense
connected to official duty, or allowing himself to be influenced;
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2. Requesting or receiving any gift in connection with a government contract or
transaction; or consideration for help to get license
a. further private interest or give undue advantage to anyone
b. prejudice public interest
3. Causing undue injury to any party or giving private party unwarranted benefit,
advantage or preference
4. Solicitation or acceptance of gifts – shall not solicit, accept any gift from any
person in the course of their official duties
4. Entering, on behalf of the government, any contract manifestly and grossly
disadvantageous to the same
a. gift – thing or right disposed of gratuitously, or any act of liberality. It shall not
include unsolicited gift of nominal or insignificant value not given in anticipation of
any favor
5. Having financial or pecuniary interest in any business, contract or transaction in
which he is prohibited by law from having any interest
6. Becoming interested, for personal gain, or having material interest in a transaction
requiring approval of the board of which he is a member, whether he gives a
favorable vote or not
b. receiving any gift – accepting a gift from a person other than member of his
family even on family occasions and celebrations such as Christmas in
anticipation of or exchange of any favor
c. loan – simple loan and commodatums well as guarantees intended to ensure
approval
7. Approving or granting license to anyone known to him as not qualified
Congress must give consent to gifts and grants from foreign governments:
Penalties: imprisonment, perpetual disqualification from office and confiscation or
forfeiture. Those involved in fraud upon government property shall bepreventively
suspended.
a. acceptance and retention by public official of a gift of nominal value received
as souvenir or out of courtesy
Prohibited acts and transactions under the Code of Conduct and Ethical
Standards.
b. acceptance of gift in the nature of scholarship or fellowship grant or medical
treatment
Public officials under this code includes:
c. acceptance of travel grants outside the Philippines of more than nominal value
if acceptance is appropriate or consistent with interests of the Philippines,
permitted by his head of office or agency
1. Financial and material interest – shall not have any financial or material interest
in any transaction requiring his approval
2. Outside employment and other activities related thereto– during their
incumbency shall not:
a. own, control, manage or accept employment in any private enterprise
regulated, supervised by his office unless expressly allowed by law
b. engage in private practice of profession unless authorized by law, provided
there is no conflict of interest
c. recommend any person to a private enterprise that has transactions with his
office
Prohibitions continue to apply for a period of 1 year after resignation, retirement,
or separation from public office except outside employment. However, the
professional concerned cannot practice profession in connection with any matter
before the office he used to occupy.
The Ombudsman is mandated to prescribe regulations necessary to carry out the
purpose in the abovementioned provisions. The Code does not restrict or prohibit any
educational, scientific, or cultural exchange programs subject to national security
requirements.
Divestment.
1.Public officials or employees must avoid conflicts of interest at all times. When a
conflict of interest arises, shall resign from his position in any private enterprise within
30 days from assumption of office or divest him of shareholdings within 60 days from
assumption. Moreover, if conditions for conflict of interest concur, divestment
mandatory even if he has already resigned from his position in any private business
enterprise.
2. The requirement of divestment shall not apply to those who serve the government
in honorary capacity nor to laborers and casual temporary workers
3. Under the code:
3. Disclosure and/or misuse of confidential information– shall not use or divulge,
confidential or classified information officially known to him by reason of office and not
made available to the public, either:
a. Conflict of interest – when a public official is partner, stockholder of a private
corporation and has substantial interest therein that may be opposed or affect the
faithful performance of his duty
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b. Substantial stockholder – person who owns directly or indirectly shares of
stock sufficient to elect a director
c. Divestment – the transfer of title or disposal of interest in property voluntarily,
completely and actually depriving or dispossessing oneself of his right or title to it
in favor another person other than his relative
d. Relative – any person within the fourth civil degree of consanguinity and
affinity
e. Family of public officials – spouses, unmarried children under 18 years old
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Chapter Seven
LIABILITIES OF PUBLIC OFFICERS
as an instrument for perpetrating an injustice.
Liability based upon and co-extensive with duty.
A. In General
Doctrine of official immunity from liabilities for public officers.
The liability of a public officer is based upon and is co-extensive with his duty to the
individual or to the public.
Rationale for official immunity – the promotion of fearless, vigorous and effective
administration of policies of government; so as not to deter competent people from
accepting public office; loss of valuable time caused by such actions; the unfairness
of subjecting officials to personal liability for the acts of their subordinates.
If the officer does not owe any duty to the individual complaining, the individual has
no right of action, even though he may have been injured by the action or non-action
of the officer. Simply, an individual has no cause of action against a public officer for a
breach of duty owing solely to the public.
Official immunity and State immunity distinguished.
Three-fold responsibility of public officers for wrongful act or omission.
Official immunity or immunity of public officials – it is more limited. It protects the
public official from tort liability for damages arising from discretionary acts in the
performance of his official duties. But an officer who exceeds the power conferred on
him by law cannot hide behind this principle; the official becomes personally liable.
1. Civil liability to reimburse the injured party
2. Criminal liability if the law provides a penal sanction
3. Administrative liability
State immunity – it directly protects the sovereign/government from tort liability. It
does not apply in causes of action which do not seek to impose a charge or financial.
The state is not bound by the mistake, neglect or wrongdoing of its agents and
officers.
Official immunity not absolute.
1. Suit to enforce liability for personal torts – mere allegation that a government officer
is being sued in his personal capacity does not automatically remove him from official
immunity. Neither does mere invocation of official character suffice to insulate the
officer from liability for damages.
a. A public officer enjoys only qualified immunity. The protection afforded by
official immunity generally applies only to activities within the scope of office that
are in good faith and are not reckless, malicious or corrupt. But the general rule
is that there is a presumption of good faith.
b. Where damages are sought in an action filed against a public officer which, if
granted, could result in his personal liability, he may be properly represented by a
private counsel.
2. Suit to compel performance of official duty or restrain performance of an act – the
general rule is that state/government may not be sued without its consent and, in
effect, a suit against a public officer for his official acts is a suit against the state. The
exceptions are:
a. A public officer may be sued as such to compel him to do an act required by
law.
b. Where the government itself has violated its own laws, the aggrieved party
may directly implead the government (even without filing his claim first with the
COA as usually required) because the doctrine of state immunity cannot be used
An action for each can proceed independently of the others. The 3 remedies may be
pursued simultaneously or successively.
Criminal and civil cases different from administrative matters.
1. Purpose of criminal prosecution – punishment of crime
Purpose of administrative proceedings – mainly to protect the public services
2. A prosecution in a criminal proceeding is not a bar to prosecution in an
administrative proceeding and vice versa. Administrative cases are independent from
criminal actions for the same act or omission. A dismissal or conviction in one action
will not bar the filing of the other action and will not necessarily result in a similar
finding in the other action.
3. In administrative cases, double jeopardy does not lie.
4. Basic premise – criminal and civil cases are different from administrative matters.
The disposition in the 1st two will not inevitably govern or affect the 3rd and vice versa.
5. Concept of prejudicial question – involves only a civil and criminal case. (There is
no prejudicial question where one case is administrative and the other is civil or
criminal.)
Proceedings against public officers.
1. Evidence and procedure
Type of
Quantum of
Proceeding
Evidence
Criminal
Proof beyond
proceedings
reasonable
doubt
Meaning
The evidence must be
so strong that no other
logical explanation can
be derived from the
facts except that the
Burden of
proof on
Petitioner
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Civil
proceedings
Administrative
proceedings
Preponderance
of evidence
Substantial
evidence
defendant committed
the crime
A balance of
probabilities that it is
more likely to be true
than not true; that
there is greater than
50% chance that the
proposition is true
Such relevant
evidence as a
reasonable mind might
accept as adequate to
support a conclusion
Plaintiff
criminal or civil liability incurred during the previous term of office. Art. 89 of RPC
enumerates the grounds for extinction of criminal liability and the list does not include
re-election to office.
An administrative case involves only the person’s actuations as a public officer as
they affect the public or populace he serves.
B. Civil Liability
Complainant
/ Petitioner
Administrative proceedings – technical rules of procedure and evidence are not
strictly applied and administrative due process cannot be fully equated with due
process in its strict judicial sense.
2. Right to be informed of findings and recommendations of an investigating
committee in an administrative case – respondent is not entitled to be informed of the
findings and recommendations of any investigating committee. He is only entitled to
the administrative decision.
3. Object of administrative proceedings – it is improvement of public service and the
preservation of the public faith and confidence in the government and not the
punishment of the officer or employee.
4. Right to counsel – there is no law or jurisprudence which mandates the assistance
by counsel in an administrative case.
5. Effect of death of respondent in administrative cases – general rule: does not
preclude a finding of administrative liability.
Exception: the death of respondent necessitates the dismissal of the administrative
case upon a consideration of any of the following factors: 1) observance of
respondent’s right of due process; 2) presence of exceptional circumstances in the
case on the grounds of equitable and humanitarian reasons.
Administrative liability incurred in a previous term by an elective official.
1. Re-election operates as electorate condonation of a previous misconduct – having
been re-elected, an elective official is no longer amenable to administrative sanctions
for infractions allegedly committed during the preceding term because each term is
separate from other terms. Re-election to office operates as a condonation of the
official’s previous misconduct to the extent of cutting off the right to remove him. This
applies regardless of the date of filing of the administrative complaint as long as the
wrongdoing was committed prior to the re-election date.
2. Condonation rule – does not apply to appointive officials.
3. Re-election of a public official extinguishes only the administrative but not the
Requisites for recovery of damages arising from acts of public officers.
In order to create the right of action, these must concur:
1. Damage to an individual
2. A wrong or violation of the right of an individual committed by a public officer
The liability of public officers is only in their official capacity.
General Rule: No judgment can be rendered to make them personally liable in their
private capacity.
Exception: When there is an allegation that such officials have maliciously and in bad
faith acted outside the scope of their official authority or jurisdiction, public officials
may be held responsible in their private capacities.
Prevailing jurisprudence holding public officials personally liable for damages arising
from illegal acts done in bad faith are premised on said officials having been sued
both in their official and personal capacities.
Absent any showing of bad faith, malice or gross negligence, every public official is
entitled to the presumption of good faith and regularity in the performance/discharge
of official duties.
A public officer who commits tort or other wrongful act done in excess or beyond the
scope of his duty is not protected by his office and is personally liable therefor. (Rama
v. CA)
Effect of contributory negligence of injured party.
General Rule: Public officers should be made to answer in damages to all persons
injured through their malfeasance, omission or negligence.
Exception: If there is contributory negligence; the result complained of would have
followed, notwithstanding their misconduct, or if the injured party himself contributed
to the result in any degree by his own fault or neglect, the public officers cannot be
held responsible.
Liability of the President for official acts.
1. Criminal liability – the Chief Executive is the first man of the State; an offense
against him is an offense against the State.
2. Liability for damages – to put the Chief Executive on trial is to put on trial the
government itself. He should not be subjected to personal liability for damages
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resulting from the performance of official acts except by express provision of law.
acts of a judge in his judicial capacity.
Liability of other executive officials for official acts.
2. Liability for rendering an unjust judgment – a judge may be held criminally liable for
dereliction of duty for knowingly rendering an unjust judgment or interlocutory order or
for rendering a manifestly unjust judgment or order by reason of inexcusable
negligence or ignorance.
1. Functions involve exercise of discretion – Government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights
which any reasonable person would have known.
2. Reasons for immunity – the imposition of monetary costs for mistakes would deter
the governmental decision maker from exercising his judgment independently,
forcefully and in a manner best serving the public interest. Moreover, officials with a
broad range of duties and authority must often act swiftly and firmly at the risk that an
action deferred will be futile or constitute an abdication of office.
3. Acts of heads of executive departments – the acts of the secretaries, performed
and rendered in the regular course of business, are presumptively the acts of the
President unless disapproved by the President.
a. It must be shown that the judgment is unjust as it is contrary to law or is not
supported by the evidence and it was made with conscious and deliberate intent
to do an injustice.
b. It must be shown that, although he acted without malice, he failed to observe
in the performance of his duty that diligence, prudence and care which the law
requires. Negligence and ignorance are inexcusable if they imply manifest
injustice which cannot be explained by a reasonable interpretation.
3. Liability for gross ignorance of law and incompetence – a judge may be penalized
by suspension when there is gross misjudgment or gross ignorance of the law.
Judges must keep themselves posted in the latest law and jurisprudence.
Liability of legislative officials for official acts.
1. Privileges accorded members of Congress – Sec. 11, Art. VI of Constitution: A
senator or Member of the House shall, in all offenses punishable by not more than 6
years imprisonment, be privileged from arrest while Congress is in session. No
Member shall be questioned nor be held liable in any other place for any speech or
debate in the Congress or in any committee thereof.
2. Reasons for immunity – to enable the representatives to execute the functions of
their office without fear of civil or criminal prosecution. Because of this, a public
legislative officer is not liable to individuals for his legislative action.
To warrant a finding of gross ignorance of law, the order or decision must be contrary
to existing law and jurisprudence and the error must be so gross and patent as to
produce an inference of ignorance or bad faith or that the judge knowingly rendered
an unjust decision.
4. Quantum of proof necessary to support administrative charges – substantial
evidence is necessary.
Liability of quasi-judicial officers for official acts.
1. Reasons for immunity – same reasons for immunity of members of the judiciary
The immunity is not confined to members of Congress but extends to the members of
local legislative bodies.
Liability of members of the judiciary for official acts.
It is a general principle that no civil action or administrative sanction can be sustained
against a judicial officer for the recovery of damages by one claiming to have been
injured by the officer’s judicial action within his jurisdiction.
1. Reasons for immunity – a result of the civil or administrative action would be to
occupy the judge’s time and mind with his defenses when he should be giving his
time wholly to his public duties; it would result to lower the estimation of his office by
the public; it would be an incentive to dishonest judgments and would invite him to
consult public opinion and prejudices; and it would open each case to endless
controversy.
General Rule: A judge is not liable for acts done in the exercise of judicial function.
Exception: The immunity does not apply to acts which are purely ministerial in nature
or if there was fraud, dishonesty, corruption, bad faith, malice, deliberate intent to
violate the law or a persistent disregard of well-known legal rules and principles in the
2. Liability for ministerial acts – if it be judicial or quasi-judicial in nature, the officer is
exempt. But when the quasi-judicial officer acts ministerially he is liable for
carelessness or negligence.
Liability of ministerial officers for official acts.
1. General rule – where the law imposes upon a public officer the performance of
ministerial duties in which a private individual has a special and direct interest, the
officer will be liable to such individual for any injury which he may sustain as a result
of the failure or neglect of the officer to perform the duty at all or perform it properly.
The officer is also liable for nonfeasance, misfeasance and malfeasance.
2. Requisites for liability – plaintiff must show that these concur: 1) that he has
sustained a special and peculiar injury; 2) that it results from a breach of duty which
the officer owed to him
The ministerial officer who performs in the prescribed manner and with due care and
diligence an act imposed upon him by law incurs no liability to any individual however
much the latter may be injured.
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Kinds of liability of ministerial officers.
governing subordinate officers.
1. Nonfeasance – the neglect or refusal, without sufficient excuse, to perform an act
which is the officer’s legal duty to the individual to perform
2. Where acts done pursuant to orders or instructions of a superior – a subordinate
official who acts in good faith under orders or instructions of a superior officer acting
in pursuance to law, even if it is later held unconstitutional, is not personally liable in
an action for damages.
2. Misfeasance – the failure to use, in the performance of a duty, that degree of care,
skill and diligence
3. Malfeasance – the doing, through ignorance, inattention or malice, of that which the
officer has no legal right to do (e.g. the officer acts without any authority or exceeds,
ignores or abuses his powers)
Good faith and absence of malice constitute no defense in an action to hold a
ministerial officer liable for damages caused by his nonfeasance or misfeasance.
But an order of a superior is, in general, no justification for an unlawful act on the part
of a subordinate officer. A subordinate officer or employee shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy or good
customs, even if he acted under orders or instructions by his superiors.
However, where a ministerial officer is vested with no discretion and the law places
on him the imperative duty of obeying the orders of a superior, he is protected by the
command of his superior from liability.
Liability of superior officer for acts of subordinates.
Liability for tortious acts.
1. General rule: public officers of the government, in the performance of their public
functions, are not civilly liable to 3rd persons. The negligence of subordinates cannot
always be ascribed to their superior in the absence of the latter’s own negligence.
1. Acts done within scope of official authority – a public officer is generally not
personally liable to one injured as a result of an act performed within the scope of
official authority and in line of official duty.
2. Exceptions:
a. Where the superior negligently or wilfully employs or retains unfit or improper
persons
b. Where he negligently or wilfully fails to require subordinates the due conformity
to the prescribed regulations
c. Where he carelessly or negligently oversees, conducts or carries on the
business of his office as to furnish the opportunity for default
2. Acts done without or in excess of official authority – officers and employees of a
state are not immune from suit for their own tortious conduct, even where such
conduct is committed in the course of their employment. If a public officer exceeds the
power conferred on him by law, he cannot shelter himself by the plea that he is a
public agent acting under color of his office.
A public official is not liable for damages for performing a duty required by law and
absent bad faith. (Mabutol v. Pascual)
d. Where he has directed, authorized or cooperated in the wrong
An officer who acts outside the scope of his jurisdiction and without authorization of
law may be amenable to personal liability in a civil suit. (Festejo v. Fernando)
e. Where liability is expressly provided in the statute
Liability under the Civil Code.
f. A superior is liable for the misconduct or negligence within the scope of the
employment of those employed by or under him voluntarily or privately and paid
by or responsible to him
1. For failure or neglect to perform official duty – Art. 27: “Any person suffering
material or moral loss because a public servant or employee refuses or neglects,
without just cause, to perform his official duty may file an action for damages and
other relief against the latter without prejudice to any disciplinary administrative action
that may be taken.”
g. Where there is a clear showing of bad faith, malice or gross negligence or for
neglect to perform a duty within a period fixed by law or regulation or within a
reasonable period
h. Where he has actually authorized by written order the specific act or omission
complained of
2. For violating rights and liberties of private individuals – Art. 32: “Any public officer
or employee who directly or indirectly obstructs, defeats, violates or in any manner
impedes or impairs any of the rights and liberties” provided under the Bill of Rights “of
another person shall be liable to the latter for damages.” (e.g. freedom of religion, of
speech, of suffrage, liberty of abode, right to the equal protection of the laws)
Liability of subordinates.
1. Same rules as those applicable to officers of higher rank – in general, rules
applicable to officers of higher rank for official misconduct are the same as those
To be liable under Art. 32, it is not required that the defendant should have acted with
malice or bad faith.
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3. For failure to render aid or protection to a person – Art. 34: When a member of a
city or municipal police force refuses or fails to render aid or protection to any person
in case of danger to life or property, such peace officer shall be primarily liable for
damages, and the city or municipality shall be subsidiarily responsible therefor.
Refusal of the fiscal/prosecutor to prosecute when after an investigation he finds no
sufficient evidence to establish a prima facie case is not a refusal to perform an
official duty. (Zulueta v. Nicolas)
Note: The duty of a prosecutor to investigate is ministerial while the duty to file a
complaint is discretionary.
Liability on contracts executed in behalf of the government.
General Rule: A public officer acting within the scope of his authority and in his official
capacity is not personally liable on contracts executed in behalf of the government.
Exception: A public officer becomes personally liable on such contracts when: 1) the
officer intended to render himself personally liable; 2) when he makes no mention of
the public agency he serves; or 3) when he does not indicate that it is executed in an
official capacity.
Liability for unexplained wealth.
1. RA 1379 (Forfeiture of Unexplained Wealth Act) declares the forfeiture in favor of
the State of any property found to have been unlawfully acquired by any public official
or employee.
provided for in a civil action. Thus, amendment of the charges or the petition for
forfeiture may be made before trial or in the course of trial without need of another
investigation. It follows that amendments setting forth newly discovered acquisitions
may be inserted in the petition without obtaining the consent of respondents. (Almeda
v. Perez)
2. RA 3019 (Anti-Graft and Corrupt Practices Act) penalizes certain acts of public
officers and private persons which constitute graft or corrupt practices or which may
lead thereto.
The Act requires every public officer to file a “true, detailed and sworn SALN,
including a statement of the amounts and sources of his income, the amounts of his
personal and family expenses and the amount of income tax paid for the next
preceding calendar year.”
It provides that “if in accordance with the provisions of RA 1379, a public official has
been found to have acquired during his incumbency, whether in his name or in the
name of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a ground for
dismissal or removal. Properties in the name of the spouse and unmarried children of
such public official may be taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into
consideration in the enforcement of this notwithstanding any provision of law to the
contrary.”
Notes in class:
Under the Act “whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his salary
as such public officer or employee and to his other lawful income and income from
legitimately acquired property, said property shall be presumed prima facie to have
been unlawfully acquired.”
1. The ombudsman can investigate such cases anytime but has to wait until the end
of the pending proceedings before he files a case against the said official.
The Act creates a presumption against the public officer or employee, who acquires
property grossly disproportionate to his income, that the property was unlawfully
acquired. The presumption, once established, may be rebutted by the public officer or
employee by showing to the court’s satisfaction that his acquisition of the property
was lawful. The burden of proof is on the respondent to establish by clear and
convincing evidence that the property in question was lawfully acquired to overcome
the presumption of illegitimacy. Failing this, the court shall declare the questioned
property forfeited in favor of the state.
3. A forfeiture case becomes criminal when there’s a transfer of property to another
person.
The courts are not bound by the SALN filed by the public officer or employee. The
accuracy of entries in the SALN becomes material in criminal or administrative
proceedings of violation of the Anti-Graft and Corrupt Practices Act.
2. Freezing of assets can be done ex parte but once you look into the bank accounts,
there should be a hearing.
4. If the charge is plunder, it is very hard to prove because there are 2 tiers – there’s a
predicate crime and then money laundering.
Liability of accountable officers to the government.
1. Bond requirement – every officer of any government agency whose duties permit
or require the possession or custody of government funds or property shall be
properly bonded in accordance with law.
Forfeiture proceedings are actions in rem and civil in nature. A full-blown trial is not
required under the Act.
2. Primary and secondary responsibility – the head of any agency of the government
is immediately and primarily responsible for all government funds and property
pertaining to his agency.
A proceeding under the Act terminates in the forfeiture of properties illegally acquired
in favor of the State. The procedure outline in the law leading to forfeiture is that
Persons entrusted with the possession/custody of the funds or property under the
agency head shall be immediately responsible to the agency head, without prejudice
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to the liability of either party to the government.
1. Revised Penal Code – crimes committed by public officers are classified as:
3. General liability for unlawful expenditures – expenditures or uses of government
funds or property in violation of law or regulations is a personal liability of the official
or employee directly responsible therefor.
a. Malfeasance and misfeasance in office
b. Frauds and illegal exactions and transactions
4. Measure of liability of accountable officers – every officer accountable for
governmental property is liable for its money value in case of improper or
unauthorized use or misapplication by himself or any person for whose acts he may
be responsible for. Also, he is liable for all losses, damages or deterioration due to
negligence in the keeping or use of the property.
Every officer accountable for government funds is liable for all losses due to unlawful
deposit, use, application or negligence in keeping of the funds.
5. Liability for acts done by direction of superior officer – every accountable officer is
personally liable by reason of his having acted under the direction of a superior officer
in paying out, applying or disposing of the funds or property over which he is
chargeable. If he notified the superior officer in writing of the illegality of payment,
application or disposition, he does not become personally liable.
The superior officer directing any illegal payment, application or disposition is
primarily liable for the loss. The accountable officer who fails to serve the required
notice is secondarily liable.
c. Malversation of public funds or property
d. Infidelity of public officers (putting one’s interest ahead of the interest of the
State)
e. Other offenses and irregularities committed by public officers
2. Anti-Graft and Corrupt Practices Act – penalty for violations in Section 3 of RA
3019 is imprisonment for not less than 1 year nor more than 10 years, perpetual
disqualification from public office, and confiscation or forfeiture of any prohibited
interest or unexplained wealth.
3. Code of Conduct and Ethical Standards
a. Any public official or employee committing any violation of this Act shall be
punished with a fine not exceeding the equivalent of 6 months salary or
suspension not exceeding 1 year or removal depending on gravity of offense
after due notice and hearing.
The mere fact that a public officer is the head of an agency does not necessarily
mean that he is the party ultimately liable in case of questionable transactions in his
agency. His knowledge of the illegality of the transaction and his active and knowing
participation must be proved. An official or employee shall be personally liable for
unauthorized expenditures if the following requisites are present: 1) there is an
expenditure or use of government funds or property; 2) it is in violation of law or
regulation; 3) the official is found directly responsible for it. (Albert v. Gangan)
If the violation is punishable by a heavier penalty under another law, he shall be
prosecuted under the latter one. Violations of sections on prohibited acts, SALN
and financial disclosure and divestment are punishable with imprisonment not
exceeding 5 years or a fine not exceeding 5,000 or both and disqualification to
hold public office.
C. Criminal Liability
b. Any violation proven in a proper administrative proceeding shall be sufficient
cause for removal or dismissal of the official or employee, even if no criminal
prosecution is instituted against him.
Generally.
No officer is above the law and all may be punished for criminal acts. Acting in official
capacity will not relieve him from criminal liability. However, public officers can be
exempted by statues from certain crimes.
Public officers may not be held criminally liable for failure to perform a duty when
performance is impossible due to causes beyond their control. But absence of corrupt
intent is no defense to an action against an officer for a statutory penalty for
misconduct.
c. Private individuals who participated in conspiracy with public officials or
employees shall be subject to the same penal liabilities as the public officials and
shall be tried jointly with them.
4. Forfeiture of Unexplained Wealth Act – punishes with imprisonment not exceeding
5 years or fine not exceeding 10,000 or both any public officer or employee who shall
transfer/convey unlawfully acquired property.
Mere expiration of his term will not prevent the prosecution and punishment of a
public officer for a crime committed in office; nor does re-election extinguish criminal
liability incurred by him during a previous term.
5. Civil Service Decree – penalty is a fine not exceeding 1,000 or imprisonment not
exceeding 6 months or both when public officer makes appointments in violation of
the provisions of the decree, commits fraud, deceit, intentional misrepresentation of
material facts concerning other civil matters, refuses or neglects to comply with any
such provision or rules.
Crimes peculiar to certain public officers.
6. Government Auditing Code – penalty is a fine not exceeding 1,000 or imprisonment
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not exceeding 6 months or both for violations of certain sections.
7. Local Government Code – penalty is imprisonment of 6 months and 1 day to 6
years or fine of 3,000 to 10,000 or both when there is a violation of Section 89 (refer
to Chapter 6B).
8. NIRC – punishes:
a. Every official or employee charged with the enforcement of the Code guilty of
extortion or willful oppression through the use of his office, knowingly demanding
or receiving unauthorized payment, willful neglect to give receipts, etc. – penalty
of fine of 50,000 to 100,000 and imprisonment for 10 to 15 years, plus perpetual
disqualification to hold public office, vote, participate in public election
b. Unlawful divulgence of trade secrets or confidential information known to any
officer or employee of the BIR in official capacity – penalty of fine of 5,000 to
18,000 or imprisonment for 6 months to 5 years or both
c. Having unlawful interest in business - penalty of fine of 5,000 to 10,000 or
imprisonment for 2 years and 1 day to 4 years or both
d. Violation of withholding tax – penalty of fine of 5,000 to 50,000 or
imprisonment for 6 months and 1 day to 2 years or both
9. Omnibus Election Code – election offenses committed by public officers are
punishable under this Code.
Notes in class:
1.
General Rule: There is a right to information.
Exception: Executive privilege
Exception to exception: Executive privilege cannot be used to conceal a crime.
2. Difference between RA 6713 and RA 3019 version of infidelity of public officers
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Chapter Eight
TERMINATION OF OFFICIAL RELATIONS
A. Specifically
Modes of termination of official relations.
Legal modes:
Natural Causes
1. Expiration of term or tenure of office;
2. Reaching age limit (retirement);
3. Death or permanent disability;
4. Resignation;
Acts or Neglect of Officer
5. Acceptance of an incompatible office;
6. Abandonment of office;
7. Prescription of right to office;
Acts of the Government or People
8. Removal;
9. Impeachment;
10. Abolition of office;
11. Conviction of a crime;
12. Recall.
(13. Revolution)
A single act may be against two or more provisions of law and may give rise to
criminal as well as civil and administrative liability. Hence, absolution from criminal
charge does not a bar administrative prosecution or vice versa.
B. Natural Causes
By expiration of term or office.
Term– is the fixed and definite time prescribed by law by which an officer may hold an
office.
Upon expiration of term, an officer’s rights, duties and authority ipso facto ceases
unless he is authorized by law to hold over. It is then the right of the occupant himself
to hold the office that is terminated.
Removal and expiration of term distinguished.
2. It is expiration of term not dismissal where an appointment (for a definite and
renewable period) is not renewed.
Term and tenure distinguished.
Term of office
Time during which officer may claim
to hold the office as of right; fixes
interval of succession
Fixes interval of succession
Fixed period of time to hold office
Not affected by holding-over of
incumbent after expiration of term
Commencement of Terms of office.
The law creating a public office usually prescribes the limits of the terms.
1. The date for the commencement of the term is fixed after the election or
appointment.
2. Where no time is fixed, the term begins on date of the election. For appointed
officers, at the date of appointment.
3. Where the term “runs from a certain date,” the day of the date is excluded in the
computation.
Power of Congress to fix, shorter, or lengthen term.
1. where term fixed by the Constitution – it is beyond the power of Congress to affect
the tenure of constitutional office. However, the term can be shortened or extended
by the vote of the people ratifying a constitutional amendment but intention to change
the term must be clearly disclosed.
2. where term not fixed by the constitution – Congress may fix the term of an office.

Congress may give to terms of office for a fixed or indefinite tenure, even for
life.

Where the term is prescribed by law, public policy forbids the beginning and
expiration of terms be left to the discretion of person holding the office, or the
body having the appointing power.

When Congress creates the office, it has the power to modify the term. It can
also change the tenure of the officers holding offices that it created.

Budgetary authority has no power to shorten a term of office fixed by the
legislative act by refusing to appropriate funds.
To remove an officer – is to oust him from office before the expiration of term.
1. It is expiration of term not removal where law does not fix term of office and the
appointing authority relives the incumbent, its legal effect is as if there’s a term is
fixed.
Tenure
Period during which incumbent
actually holds office.
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Holding over after the expiration of term.
Death or permanent disability.
Hold over status – the officer’s term has expired or his services terminated but he
continues holding his office until his successor is appointed or chosen had qualified.
1. Death of incumbent renders the office vacant. Upon his death, the public official
ceases to hold office, and all rights, duties, obligations are extinguished. However, if
the authority is conferred over two or more officers, death of one terminates his
authority and leaves a vacancy but the entire office is not vacant. Unless the joint
action of all is expressly required, the survivors may execute the office.
1. Where holding over provided by law – An officer elected or appointed for a fixed
term shall hold not only for that term but until his successor are elected and qualified.
Hence, an office does not become vacant if there is no qualified successor.
2. Where holding over not provided by law – The prevailing opinion is that the
incumbent may continue to hold office unless expressly or impliedly prohibited.
3. Where Constitution limits term – When the term is provided but there is no
provision to continue office after the expiration of his term then holding over is not
permitted.
2. Permanent disability covers either mental or physical disability. When degree of
incapacity is at issue (i.e. when the appointee refuses to give up the position) the
appointing power will have to make the decision whether the condition of the public
official has created a vacancy but a judicial determination of the fact is necessary to
render it conclusive.
C. Acts or Neglect of Officer
4. Application of hold over – It only applies where a fixed term is annexed to an office.
It may be made applicable to both elective and appointive officers but it can be
restricted.
In determining whether a hold-over provision applies to a particular public officer – the
court would be guided by statutory construction unless there are compelling
indications that the provision is clearly wrong. It is not applicable where the term is for
an indefinite duration.
By resignation.
5. Purpose of hold-over provision – It is to prevent a hiatus in the government until a
successor may be chosen as public interest requires that public offices should be
filled at all times, without interruption.
3. Resignation should not be used either as an escape nor as an easy out to evade
administrative sanction
1. The office-holder may resign or retire at any time he chooses (Prohibition against
involuntary servitude)
2. However, after an office is conferred and assumed, it cannot be laid down without
the consent of the appointing power
Meaning of resignation.
6. Status – He is a de jure officer when authorized by law if not he is a de facto
officer.
Officer created for the accomplishment of a specific act.
Upon accomplishment of the purpose of the single act the officer’s authority ceases.
The termination of the official relationship is equivalent to the expiration of the term.
Illustration: Board of canvassers – upon proclamation of the candidates they do not
have the authority to re-canvass the returns nor they can be compelled to do so by
mandamus.
Resignation – The formal renunciation or relinquishment of a public office. It implies
an expression by the incumbent, either express or implied, of the intention to
surrender, renounce, and relinquish his right to the office and its acceptance by
competent and lawful authority.
Form of resignation.
1. Where by law a resignation is required to be made in any particular form, that form
must be substantially complied with
By reaching of age limit.
2. Where no such form is prescribed, no particular mode is required, but resignation
may be made by any method indicative of the purpose
Results in compulsory and automatic retirement of a public officer.
What constitutes resignation.
Age of Retirement for members of the SC and judges of lower court: 70 years old
To constitute resignation of public office, there must be:
1. An intention to relinquish a part of the term
2. Accompanied by the act of relinquishment, and
3. An Acceptance by the proper authority
Public Officers and employees: 65 years old
Note: Retirement of a judge does not render the admin case against as moot and
academic.
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To whom resignation tendered.



May be designated by statute
In the absence of a statutory direction, a public officer should tender his
resignation to the officer or body having authority to appoint his successor or
to call an election to fill the office
A resignation tendered to an improper person or body is a nullity
Necessity of acceptance of resignation.
1. Abandonment unlawful before acceptance
a. Any public officer who, before the acceptance of his resignation, shall abandon
his office to the detriment of the public service shall suffer the penalty of arresto
mayor
b. A resignation is inoperative and ineffective in the absence of acceptance
2. Resignation revocable before acceptance
a. Without acceptance by the proper authority the tender or offer to resign is
revocable unless otherwise provided
b. The resignation is not complete and the officer remains in office
c. The acts of an officer before the official notification of acceptance of his
resignation are de facto
Form of acceptance.
1. Express (formal declaration)
2. Implied (appointment of a successor)
Withdrawal of resignation.
An immediately effective resignation may be withdrawn before it is acted upon, but
not after acceptance
A public employee is entitled to withdraw a prospective resignation if the employee
does so before:
1. Its effective date
2. It has been accepted
3. The appointing power acts in reliance on the resignation
Repudiation of resignation.
Resignation may be repudiated in the following instances:
1. It has been transmitted without the officer’s consent
2. It has been procured by fraud or duress
3. It is not given voluntarily and willingly
Effect of duress or fraud.
Fraud or duress makes the resignation voidable and may be repudiated
Note:
It is not duress to threaten to do what one has the legal right to do, or to threaten to
take any measure authorized by law and the circumstances of the case
Duress or fraud must be proven because when an employee resigns from
government service, there is a presumption of voluntariness
By acceptance of an incompatible or prohibited office.
1. It is contrary to the policy of the law that the same individual should undertake to
perform inconsistent and incompatible duties. An officer who, while occupying one
office, accepts another incompatible with the first, ipso facto, absolutely vacates the
first office
His title is thereby terminated without any other act or proceeding
2. If the law or Constitution forbids the acceptance of any other office other than that
which he holds, it is not a case of incompatibility but of prohibition
a. If the appointment to the latter office is void because of disqualification or
ineligibility, the appointee does not forfeit his original office
b. The law or Constitution may allow the holding of another office resulting in the
forfeiture of the first office
When offices incompatible with each other.
Incompatibility is found in the character of the offices and their relation to one another.
It exists where:
1. There is conflict of duties and functions
2. One is subordinate to the other and is subject to its supervisory power
3. The law declares incompatibility even though there is not inconsistency in the
nature and functions of the offices
Exceptions to rule on holding incompatible offices.
1. Where the officer cannot vacate the first office by his own act
2. Where the first office is held under a different government from that which
conferred the second
3. Where the officer is expressly authorized by law to accept another office
4. Where the second office is temporary
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By abandonment of office.
performance of its functions became impossible, constitutes an abandonment or
voluntary relinquishment of the office
1. A public office may become vacant ipso facto by non-user or acquiescence
2. A statute may declare that the mere filing of a certificate of candidacy for a second
office by the holder of one office operates as an abandonment
3. Abandoment may also result from the intentional and completed relinquishment of
any claim to the office.
Note: When an office is once abandoned, the former incumbent cannot legally
repossess it
Meaning of abandonment.
Abandonment – The voluntary relinquishment of an office by the holder of all right,
title or claim thereto without valid or justifiable reason with the intention of not
reclaiming it, or terminating his possession and control thereof
b. Non-performance of the duties of an office does not constitute abandonment
where such nonperformance results from temporary disability or from involuntary
failure to perform
5. Acquiescence by the officer
a. Abandonment may also result from an acquiescence by the officer in his
wrongful removal or discharge
b. When an officer vacates his office due to an unconstitutional statute, his
surrender will not be deemed an abandonment and the officer may recover the
office
Abandonment and resignation distinguished.
Resignation and abandonment are incompatible and contradictory.
Note: There can be no abandonment without the intent to abandon
When there is abandonment of office.
1. Clear intention to abandon office
a. Abandonment must be total and absolute, and clearly indicate an absolute
relinquishment of office
b. Two essential elements of abandonment:
i. Intention to abandon
ii. An over or “external” act by which the intention is carried into effect
2. Acceptance of another office
a. There must be deliberation and freedom of choice, either to keep the old office
or renounce it for another
b. Acceptance of temporary appointment may show lack of intention to abandon
3. Concurrence of overt acts and intention
Temporary absence is not sufficient. There must be concurrence of the intention to
abandon and some overt acts from which it may be inferred that the officer has not
more interest.
4. Failure to discharge duties of office, or to claim or resume it
a. Under normal conditions, failure to discharge the duties of an office over any
particular period of time, or to claim or resume it after a period in which
Abandonment
Voluntary
Relinquishment through non-user
Implies non-user but non-user does
not itself imply abandonment
Resignation
Voluntary
Formal relinquishment
Not a requisite of abandonment
Failure to perform duties must be with active or imputed intention on the part of the
officer to relinquish office.
Instances of abandonment.
See pg. 382-384 in De Leon, 2011.
Acts not constituting abandonment.
See pg. 384-386 in De Leon, 2011.
By prescription of right to office.
A person who claims a right to a public office occupied by another may bring an
action to determine by what authority the latter assumes to hold and exercise the
office in question and ascertain who is entitled to it
1. Prescriptive period for filing petition for quo warranto
Should be commenced within one (1) year after the cause of such ouster or the right
of the plaintiff to hold such office or position arose
2. Rationale for the one-year period
a. Title to public office should not be subjected to uncertainties but should be
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determined as speedily as possible
b. The period runs even when there is no person as yet appointed to succeed in
the position and even during the pendency of a motion for reconsideration in the
administrative level
c. Appointments may be allowed to positions without specification of any
particular office or station
3. Demotion – Movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status or rank which may or
may not involve reduction in salary
3. Non-application of prescriptive period
Exception circumstances attending, however, may justify the non-application of the
prescriptive period in order to grant relief that will serve the ends of justice
D. Acts of the Government or the People
a. Demotion is equivalent to removal if no cause is shown for it
b. Requires the issuance of an appointment
4. Reassignment – The movement of an employee from organization unit to another
in the department or agency which does not involve a reduction in rank, status, or
salary
By removal.
Offices may also become vacant by the removal or dismissal of the incumbent from
the service. It may be arbitrary or for cause.
a. A reassignment in good faith and in the interest of the service is permissible
and valid even with(out) the employee’s prior consent
b. Does not require the issuance of an appointment
Meaning of removal.
Removal – The ouster of an incumbent before the expiration of his term

Implies that the office exists after the ouster

Another term used is dismissal
What constitutes removal.
A removal from office may be expressed or implied
1. Appointment of another officer
The general rule is that where an officer may be removed by a superior officer at the
latter’s pleasure, the act of removal is accomplished merely by the appointment of
another officer in his place, so far as the officer himself is concerned, but in order to
render the removal effective in all cases, the incumbent must be notified
2. Transfer to another office
a. The transfer of an officer or employee without his consent from one office to
another, whether it results in promotion or demotion, advancement or reduction
in salary, is equivalent to his illegal removal or separation from the first office
b. A temporary transfer or assignment of personnel is permissible even without
the employee’s prior consent
i. However, it cannot be done when the transfer is a preliminary step toward
his removal, or is a scheme to lure him away from his permanent position, or
designed to indirectly terminate his service, or force his resignation
ii. An employee cannot be transferred unless for causes provided for by law
and after due process
5. Constructive removal or dismissal – defined as a quitting because continued
employment is rendered impossible, unreasonable or unlikely, when there is
demotion in rank or of pay
It exists when an act of clear discrimination, insensibility or disdain by an employer (or
superior) becomes unbearable to the employee, leaving him with no option but to
forego his continued employment
Legislative regulation of removal.
1. Where office created by statute – Ordinarily, where an office is created by statute, it
is wholly within the power of Congress, and its legislative power extends to the
subject of regulating removals from the office.
2. Where Constitution prescribes method of and cause for removal – The method and
grounds established are exclusive, and it is beyond the power of Congress to remove
incumbents in any other manner, or for any other cause.
Removal as incident of right of appointment.
The power to remove is deemed lodged in the same body or person in which the
power to appoint is vested
1. Where term of office not fixed by law
a. The general rule is that the power of removal is incident to the power to
appoint
b. There is no removal involved but extinguishment of the right of an officer to
hold office by expiration of his term
2. Where term of office fixed by law
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An individual appointed to a post for a fixed term may be removed prior to the term’s
expiration only for cause
3. Where holding of position at pleasure of appointing power or subject to some
supervening event
a. If the statute does not designate the term of the office, the appointee will hold
only during the pleasure of the appointing power, and may be removed at
pleasure at any time without notice or hearing
5. temporary, provisional or acting appointments – remove at pleasure, with or without
cause
6. offices created by law, “at pleasure of the President” – not a removal but expiration
of term. But where it is authorized that removal be at pleasure, removal may only be
for cause
7. appointments based on merit and fitness – tenure co-terminous with appointing
authority, or subject to his pleasure
8. Local elective officals – see infra
b. Where a person holds his position at the pleasure of a superior or subject to
some supervening event, his separation from office is not removal but the
expiration of his term
Exercise of the power of removal.
Civil service officers and employees entitled to security of tenure.
Security of tenure – An officer or employee in the Civil Service shall not be
suspended or dismissed except for cause as provided by law and only after due
process is accorded
The power of removal when conferred may be absolute or conditional
1. Absolute – The power is vested with the unlimited discretion of the removing officer
to exercise at such time and for such reasons as he may deem proper and sufficient
1. Ground for suspension or removal – Removal or suspension shall be “for cause
provided by law.”
2. Substantive aspect
2. Conditional – The time, manner, or reason for removal is placed beyond the mere
discretion of the removing officer
Power of removal of the President.
a. It means for reasons which the law and sound public policy recognize as
sufficient ground for removal or suspension or demotion and after due process is
accorded the officer or employee
The power of removal of the President is possessed by him, as it is implied from:
1. Power to appoint
2. The power to remove is executive in nature
3. Duty to execute the laws
4. Control of all departments, bureaus and offices
5. “No officer or employee in the Civil Service shall be removed or suspended except
for cause provided by law
b. Such cause must relate to and affect (as a general rule) the functions or
administration of the office or be connected with the performance of his official
duties and must be restricted to something of a substantial nature directly
affecting the rights and interests of the public
A presidential appointee who belongs to the career service of the Civil Service comes
under the direct disciplining authority of the President
3. Procedural aspect – The guarantee of procedural due process requires notice and
opportunity to be heard before one is suspended or dismissed
c. The guarantee of security of tenure is meant to prevent capricious exercise of
the power to dismiss, not a guarantee of perpetual employment
Extent of the President’s power of removal.
a. Complaints must be in writing and subscribed and sworn to by the complainant
1. non-career officers exercising purely executive functions whose tenure not fixed by
law – removal with or without cause, Congress may not restrict power
b. A decision rendered without due process is void ab initio and may be attacked
directly or collaterally
2. quasi-legislative or quasi-judicial functions – removed only on grounds provided by
law
3. constitutional officers removable by impeachment – not subject to power of
removal by the President
Guarantee extends to both those in career and non-career positions.
All permanent officers and employees in the Civil Service, regarless of their status,
whether career or non-career, are entitled to the constitutional and statutory
guarantee of security of tenure
4. civil service officers – only for cause
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Grounds for removal or suspension under the Constitution.
1. Members of Congress – each House may punish its members for disorderly
behavior
a. With the concurrence of 2/3 of all its members, the House may suspend or
expel a member
b. A penalty of suspension shall not exceed 60 days
2. (Impeachable officers) The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman
a. Culpable violation of the Constitution
b. Treason
c. Bribery
d. Graft and corruption
e. Other high crimes
f. Betrayal of public trust
3. Members of the judiciary
a. They shall hold office during good behavior until they reach the age of seventy
(70) years or become incapacitated to discharge the duties of their office
b. With reference to members of the Supreme Court, it implies that they have no
committed any of the offenses which are grounds for impeachment
In other words, the occupancy or incumbency of any one so appointed to the said
post is temporary
3. Term of appointment for a definite period fixed by law
a. Temporary appointments can only be removed for a just cause
b. “the mantle of protection against arbitrary dismissals is accorded to an
employee even if he is non-eligible and holds a temporary appointment.”
Grounds for disciplinary action under the Local Government Code.
1. Disloyalty to the Republic of the Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office and neglect of duty
4. Commission of any offense involving moral turpitude or an offense punishable by at
least prision mayor
5. Abuse of authority
6. Unauthorized absence for fifteen (15) consecutive working days except in the case
of members of the sangguniang panlalawigan, sangguniang panglunsod,
sangguniang bayan, and sangguniang barangay
7. Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country
8. Such other grounds as may be provided by law
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court
Grounds for disciplinary action under the Civil Service Law.
c. As regards judges of lower courts, the determination by the Supreme Court is
conclusive since it alone has the power to order their dismissal
4. Civil Service officers or employees – can only be removed or suspended for “cause
provided by law”
1. Dishonesty
2. Oppression
3. Neglect of duty
Termination of temporary appointments.
4. Misconduct
An appointment which is temporary in nature can be terminated at pleasure of the
appointing power, without notice, and regardless of grounds or reasons
5. Disgraceful and immoral conduct
1. Appointee without requisite qualifications
6. Being notoriously undersirable
A person who does not have the requisite qualifications for a position cannot be
appointed to it or, only as an exemption to the rule, may be appointed to it merely in
an acting capacity in the absence of appropriate eligibles
7. Discourtesy in the course of official duties
2. Former incumbent illegally removed or suspended
9. Receiving for personal use a fee, gift or other valuable thing in the course of official
duties or in connection therewith when such fee, gift, or other valuable thing is given
by any person in the hope or expectation of receiving a favor or better treatment than
that accorded other persons, or committing acts punishable under the anti-graft laws
When an incumbent is illegally removed or suspended, legally speaking, his position
never becomes vacant; hence there is no vacancy to which another could be
permanently appointed
8. Inefficiency and incompetence in the performance of official duties
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10. Conviction of a crime involving moral turpitude
11. Improper or unauthorized solicitation of contribution from subordinate employees
and by teachers of school officals from school children
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
Misconduct in office.
12. Violation of existing Civil Service Law and rules or reasonable office regulations
13. Falsification of official documents
14. Frequent unauthorized absences or tardiness in reporting for duty, loafing or
frequent unauthorized absences from duty during regular office hours
15. Habitual drunkenness
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 the government
Misconduct of a public officer or employee – A transgression of some established and
definite rule of action more particularly, unlawful behavior or gross negligence by the
public officer



Improper and wrong conduct
Implies wrongful intent and not mere error of judgment
Corrupt, or inspired by an intention to violate the law or a persistent
disregard of well-known legal rules
Misconduct in office – One that affects the officer’s performance of his duties as an
officer and not only as affects his character as a private individual
1. Related to, and connected with, performance of official duties – To warrant removal
from office of an officer or employee, the misconduct, misfeasance, or malfeasance
must (as a general rule) have a direct relation to and be connected with the
performance of official duties, amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the office.
An offense is deemed to be committed in relation to the accused’s office when the
offense cannot exist without the office
23. Contracting loans of money or other property from persons with whom the office
of the employee concerned has business relations
2. Committed during a prior term – An elected public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election to
office operates as a condonation by the people of the officer’s previous misconduct to
the extent of cutting off the right to remove him therefor
24. Pursuit of private business, vocation or profession without the permission required
by the Civil Service rules and regulations
Removal cannot extend beyond the term during which the alleged misconduct was
committed
25. Insubordination
3. Not work related or committed in the course of performance of duty
26. Engaging, directly or indirectly, in partisan political activities by one holding nonpolitical office
27. Conduct prejudicial to the best interest of the service
a. The causes which warrant the dismissal of a civil servant need not necessarily
be work-related or committed in the course of the performance of duty by the
person charged
28. Lobbying for personal interest or gain in legislative halls and offices without
authority
b. When an officer or employee is disciplined, the object sought is not the
punishment of such officer or employee but the improvement of the public service
and the preservation of the public’s faith and confidence in the government
29. Promoting the sale of tickets in behalf of private enterprises that are not intended
for charitable or public welfare purposes and even in the latter cases if there is no
prior authority
4. Proved by substantial evidence – The quantum of proof required is only substantial
evidence.
30. Nepotism
Substantial evidence – such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion
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5. Conduct unbecoming of a police officer – Unbecoming conduct is equivalent to
improper performance.
Grounds for disciplinary action under the Code of Conduct and Ethical
Standards.
Such term applies to a broader range of transgressions of rules not only of social
behavior but of ethical practice or logical procedure or prescribed method.
Section 4 of the Code commands that “public officials and employees x x x at all
times respect the rights of others, and x x x refrain from doing acts contrary to law,
good morals, good customs, public policy, public order, public safety and public
interest.”
Nepotism.
1. Situations covered – The Civil Service Decree prohibits all appointments in the
national and local governments or any branch or instrumentality thereof, including
GOCCs, made in favor of a relative of the:
For specific grounds, see pg. 419-423 in De Leon, 2011. (More or less the same as
grounds for administrative disciplinary actions)
Administrative investigation of elective local officals.
a. Appointing authority
b. Recommending authority
c. Chief of the bureau or office
d. Person exercising immediate supervision over the appointee
Note: The word “relative” and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
2. Persons not covered
a. Persons employed in a confidential capacity
b. Teachers
c. Physicians
d. Members of the Armed Forces of the Philippines
(This is all codal/procedural stuff – check pg. 423-432, De Leon 2011 for details
1. Form and filing of administrative complaints – should be verified and in writing
2. Notice of hearing
a. Within 7 days after the complaint is filed, the respondent has 15 days from
receipt to file his answer
b. The investigation shall commence within 10 days after receipt of the answer
3. Preventive suspension
a. Shall not extend beyond 60 days
Note: in each particular instance, full report of such appointment must be made to the
Civil Service Commission
b. Cannot be suspended for more than 90 days within a single year on the same
ground or grounds existing and known at the time of the first suspension
3. Designation included in prohibition
a. The prohibition includes designation because what cannot be done directly
cannot be done indirectly
b. It covers all kinds of appointments be they original, promotional, transfer or
reemployment regardless of status
4. Purpose of prohibition
a. To ensure that all appointments and other personnel actions in the civil service
should be based on merit and fitness and should never depend on how close or
intimate and appointee is to the appointing power
b. To take out of the discretion of said authority the matter of appointing or
recommending for appointment a relative
c. Upon expiration of the preventive suspension, the official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings
against him, which shall be terminated within 120 days from notice
4. Salary of the respondent pending suspension – no salary during suspension
Upon exoneration and reinstatement, the officer is entitled to emoluments accruing
during his suspension
5. Rights of respondent
a. Full opportunity to appear and defend himself
b. Confront and cross-examine witnesses
c. Require the attendance of witnesses and the production of evidence in his
favor
6. Form and notice of decision
a. Investigation shall terminate within 90 days from the start
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b. Within 30 days after the end of the investigation a decision shall be rendered
stating clearly the facts and reasons for such decision
c. Penalty of suspension shall not exceed 6 months
d.Removal from office shall be considered a bar to the candidacy of the
respondent for any elective position
9. Power to suspend – Preventive suspension may be imposed by the Disciplining
Authority.
90-day ban – No preventive suspension shall be imposed within 90 days immediately
prior to any local election.
7. Administrative appeals
a. Appeals must be perfected within 30 days from receipt of judgment
b. Appealable to either the sangguniang panlalawigan or the Office of the
President
8. Execution pending appeal – an appeal shall not prevent a decision from becoming
final or executory
Administrative Order No. 23 prescribes the rules and procedures applicable to
administrative disciplinary cases filed against elective local officials
10. Grounds – Where evidence of guilt is strong and there is great probability that the
continuance in office could influence witnesses or pose a threat to the safety and
integrity of the records and other evidence.
11. Duration – Preventive suspension shall not exceed 60 days; 90 days in the case
of several administrative cases.
12. Automatic reinstatement – Upon expiration of the preventive suspension, the
official shall be deemed reinstated without prejudice to the continuation of the
proceeding against him, which shall be terminated within 120 days from the time of
notice.
1. How initiated
13. Salary of respondent pending suspension – no salary during suspension
a. May be initiated by a private individual or government officer by filing a sworn
written complaint
b. May also be initiated motu proprio by the Office of the President or a
government agency
Upon exoneration and reinstatement, the officer is entitled to emoluments accruing
during his suspension.
14. Formal investigation – Period to commence formal investigation shall be stated in
the preliminary conference.
2. Where complaint filed
a. Records Office, Office of the President, Malañang, Manila
b. Regional Director of the DILG, who shall transmit the same to the Secretary of
the Interior and Local Government, within 48 hours from receipt. The Secretary of
the Interior and Local Government shall then transmit the same to the Office of
the President within 48 hours from receipt.
15. Termination of final investigation – Formal investigation shall be terminated within
90 days from the start thereof.
16. Rendition of decision – Within 30 days after receipt of the report of the
Investigating Authority, and the transmittal of records, the Disciplining Authority shall
render a decision.
17. Finality of decision – Decision becomes final after 30 days from receipt thereof.
3. Notice – Within 7 days after the complaint is filed, the respondent shall be ordered
to submit his answer within 15 days from receipt of the order.
18. Execution pending appeal - An appeal shall not prevent a decision from becoming
final or executory.
4. Where answer filed – same as complaint. See no. 2 above
5. Commencement of preliminary investigation – Investigating authority shall
commence investigation with 10 days from receipt of the complaint.
19. Penalty - suspension or removal, depending on the evidence. Aggravating or
mitigating circumstances may be considered.
20. Suspension – shall not exceed 6 months
6. Evaluation – Investigating authority will determine whether there is a prima facie
case within 20 days fro receipt of the complaint.
7. Dismissal motu proprio – If there is no prima facie case, dismissal will be
recommended to the disciplining authority.
21. Removal – considered a bar to the candidacy of the respondent for any elective
position.
22. Executive clemency – The President may commute or remove administrative
penalties or disabilities.
8. 90-day ban – No preliminary investigation shall be imposed within 90 days
immediately prior to any local election.
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Disciplinary action against appointive local officials and employees
1. Administrative Discipline – investigation and adjudication of administrative
complaints as well as supervision and removal shall be in accordance with civil
service law rules and other laws. Results of such investigations shall be reported to
the CSC.
officers and employees under their jurisdiction. Their decisions shall be final in case
the penalty imposed is suspension for not more than 30 days or fine in an amount not
exceeding 30 days’ salary.
4. Investigation by a regional director or similar official – may be entrusted to him or
similar officials who shall make the report and recommendation to the chief of bureau
or department
2. Preventive Suspension
a. local chief executive may suspend for a period not exceeding 60 days any
subordinate employee or official under his authority if the charge involves
dishonesty, oppression or grave misconduct or neglect in the performance of
duty or if there is reason to believe that the respondent is guilty of the charges.
b. upon expiration of the period, the suspension is automatically lifted hence the
employee or official being automatically reinstated. If the delay is due to the fault
of the respondent, the time of the delay shall not be counted in computing the
period of suspension herein provided.
3. Administrative investigation – it may be conducted by a person or committee duly
authorized by the local chief executive. Hearings on the cases will be conducted and
it shall be decided within 90 days from the time respondent shall be notified of the
charges
4. Disciplinary jurisdiction – the local chief executive may impose the penalty of
removal from service, demotion in rank, suspension for not more than 1 year without
pay, fine in an amount not exceeding 6 months salary or reprimand and otherwise
discipline officials and employees under his jurisdiction. If the penalty imposed is
heavier than suspension of 30 days, the decision shall be appealable to the CSC.
5. Execution pending appeal – an appeal shall not prevent the execution of a decision
of removal or suspension of a respondent-appellant
5. Execution of decision pending appeal – an appeal shall not stop the decision from
being executory. In case the penalty is suspension/ removal the respondent shall be
considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal
6. Reconsideration of a final and executory decision not allowed – the CSC has no
power or authority to reconsider its decision which has become final and executory
even if the Commission later discovers that its judgment is erroneous. The ratio is
grounded on the doctrine of finality of judgment. Mandamus is the remedy to enforce
a decision of the CSC that has become final and executory.
7. Power to terminate employment – academic freedom of institutions of higher
learning- these institutions are inherently endowed with the right to establish their
policies, academic or otherwise, unhampered by external controls or pressure. They
have the academic freedom to determine for itself on academic grounds, who may
teach, what may be taught, how it shall be taught and who may be admitted to study.
Appeal by “party adversely affected by the decision.”
Appeals, where allowable, shall be made by the party adversely affected by the
decision. The law doesn’t contemplate a review of decisions exonerating officers or
employees from administrative charges. Judgment of exoneration is not appealable.
In administrative cases, the complainant is a mere witness of the State, and therefore,
has no legal personality to interpose an appeal except where respondent failed to
question the appeal.
Disciplinary jurisdiction of the CSC
Withdrawal of complaint against respondent
1. Scope – all employees of Government branches, subdivisions, instrumentalities,
agencies, GOCCs. The CSC is the single arbiter of all controversies pertaining to civil
service positions in the government service, whether career or non-career. In
investigating complaints against civil servants, the Commission is not bound by
technical rules of procedure and evidence applicable in judicial proceedings. When a
government body has jurisdiction to hear and decide cases involving specific matters,
such jurisdiction is presumed to be exclusive unless proved otherwise.
2. Appellate jurisdiction over administrative disciplinary cases – shall decide on
appeal all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than 30 days, fine in an amount greater than 30 days salary,
demotion in rank or salary or transfer, removal or dismissal from office. Final orders or
resolutions of the CSC are appealable to the CA, through a petition for review.
3. Jurisdiction of heads of departments, agencies and instrumentalities – shall have
jurisdiction to investigate and decide matters involving disciplinary action against
Loss of interest of complainant doesn’t necessarily preclude or bar the taking of
disciplinary action against an officer or employee.
1. Criminal and administrative cases impressed with public interest – cases involving
misconduct, nonfeasance, misfeasance or malfeasance in office of officers and
employees are of paramount public interest for they relate to public office, which is
public trust.
2. People’s faith and confidence in government involved – the withdrawal of the
complaint doesn’t have the legal effect of exonerating the respondent from
administrative disciplinary action. The issue is not whether the complaint has a cause
of action against the respondent but whether the employee charged has breached the
norms and standard of public office.
3. Truth and justice, not choice of witness, must rule – general rule is that courts look
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with disfavor upon retractions of testimonies previously given in court. The reason is
because affidavits of recantation can easily be secured through intimidation or for
monetary consideration.
a. newly discovered evidence
b. decision not supported by evidence on record
c. errors of law or irregularities have been committed prejudicial to the interest of
the respondent
Cessation from office of respondent
Under EO No 26-A, the following regulations are provided:
Cessation from office because of death, resignation or retirement neither warrants the
dismissal of the complaint against him while he was still in the service nor render said
administrative case moot and academic.
Procedure in administrative cases against non-Presidential appointees.
1. Commenced against any officer or upon sworn, written complaint of any other
person
2. Complaint by another person – submit sworn statements of his testimony and
witnesses, documents. If prima facie case is not found to exist – dismissal of the
case. If prima facie case exists – notify respondent of charges, in writing, attach copy
of complaint with sworn statements and documents. Respondent allowed not less
than 72 hours to answer in writing under oath, with supporting statements and
documents, and whether he elects a formal investigation if answer is not satisfactory.
If answer is satisfactory– dismissal of the case.
3. If respondent does not request formal investigation, one shall still be conducted
because merits of the case cannot be decided without investigation
4. Investigation shall be held not earlier than 5 days nor later than 10 days from
receipt of answer; finished within 30 days from filing of the charges unless extended
by Commission. The decision shall be rendered within 30 days from termination of
investigation. The 5-day bar rule is indispensable because it enables the parties to
explore possibility of clarifying the misunderstanding.
5. The direct evidence consists of sworn statements and documents without prejudice
to presentation of additional evidence deemed necessary but unavailable at the time
of the filing. There shall be a right to cross-examination.
1. Period for deciding cases or incidents- all contested cases shall be decided within
30 days from the date of submission for resolution; officer’s action is only
recommendatory to his immediate superior, he shall submit his recommendation
within 20 days from submission of the case and the approving officer shall have 10
days from submission of the recommendation; a case is deemed submitted upon
expiration of the period for filing the memorandum, position paper or last pleading;
officer charged with the resolution shall submit to his superior within 10 days a sworn
Statement of Disposition of Cases; only 1 MR shall be allowed
2. Abbreviation of Proceedings- all administrative agencies are directed to adopt the
following in their respective rules
a. amicable settlement, compromise and arbitration
b. mandatory use of affidavits and preferred use of deposition if needed
c. submit a draft of the decision they seek which states the facts and law upon
which it is based, aside from the memorandum
d. rules avoiding postponement of hearings or trials
3. Applicability – government agencies, including any department, bureau, board,
office, commission, authority or officer of the national government authorized by law
or executive order to adjudicate cases
Merit System Protection Board.
1. Composition- Commissioner and two associated Commissioners, appointed by the
Civil Service Commissioner
2. Powers and Functions
6. Either party may avail the services of counsel. There’s a right to subpoena and
subpoena duces tecum.
a. hear and decide administrative cases involving officers and employees of the
civil service
7. The investigation only for purposes of ascertaining the truth and without
necessarily adhering to technical rules. The investigation is to be conducted by the
disciplining authority.
b. hear and decide cases brought by officers and employees who are aggrieved
by the determination of the authorities involving personnel actions and violations
of the merit system
8. Appeals, where allowable, be made within 15 days from receipt of decision unless
petition for reconsideration is seasonably filed (to be decided within 15 days). Notice
of appeal filed with disciplining authority, which shall forward records of the case with
notice of appeal to appellate authority, within 15 days. Notice of appeal shall state
date of decision appeal, date of receipt, grounds relied upon.
c. take cognizance of complaints affecting functions of the Commission
d. administer oaths, issue subpoena and subpoena duces tecum, take
testimonies, punish for contempt
e. promulgate rules and regulations to carry out the functions of the Board
9. Petition for reconsideration on the following grounds:
3. Appellate jurisdiction of the Civil Service Commission- jurisdiction of the Board is
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exclusive but the Commission, as the final arbiter on any matter concerning personnel
action in the government, is empowered by law to review the decisions of the Board.
the suspension. If conviction is affirmed, period of suspension becomes part of
the final penalty of suspension or dismissal.
Preventive suspension.
b. confirmation of dismissal by department secretary is executory pending
appeal. Since dismissal remains valid until modified or set aside, the intervening
period during which employee is not permitted to work cannot be argued as
unjustified suspension
1. Kinds
a. Pending investigation
b. Pending appeal if penalty is suspension or dismissal, and after review,
respondent is exonerated
2. Preventive suspension pending investigation – charge against official involves
dishonesty, oppression or grave misconduct, neglect of duty, or reasons to believe
that respondent is guilty of the charges which would warrant his removal from service.
Designation of a replacement is not a requirement for preventive suspension
a. purpose of suspension – prevent the officer from using his position and the
powers and prerogatives of his office to intimidate or in any way influence a
potential witness or destroy or tamper records, immaterial that no evidence to
prove that respondent may use influence on witnesses or tamper with records. It
is sufficient that there exists the possibility.
b. It is not violative of the constitution because it is not a penalty and the
suspended officer/employee remains entitled to the presumption of innocence
until his culpability is established. Not being a penalty, the period during which
one is under preventive suspension is not considered part of the actual penalty of
suspension
c. If the investigation is not finished and decision not rendered within proper time
– automatic reinstatement; if found innocent of the charges – reinstated
3. The right to compensation where employee is exonerated
5. Suspension from office under RA 3019, sec. 13 – accused is suspended from
office during pendency of criminal case against him. No distinction as to permanent or
temporary employee, career or non- career service. Criminal prosecution not abated
by an officer’s re-election. Preventive suspension is mandatory upon determination of
the validity of the information. Law does not require proof of guilt during presuspension hearing. All it secures is adequate opportunity to challenge validity or
regularity of the proceedings against him.
6. Pre-condition for suspension – its imposition is not automatic or self-operative. This
means that there should be the existence of a valid information, determined at a presuspension hearing, whose purpose is to determine the validity of the information and
either: suspend and try the case or not suspend and dismiss the case, or correct
matters that impair the validity. Once validity is determined, it is the ministerial duty of
the court to issue the order for preventive suspension
7. Duration of suspension – it cannot be for an indefinite period or for an
unreasonable length of time
a. If the case is decided before 90 days, suspension will last less than 90 days. If
case not decided within 90 days, suspension cannot exceed 90 days. There must
be automatic reinstatement. Exception: delay caused by the respondent
b. Exonerated employee not entitled to salaries unless suspension is unjustified
and found innocent of the charges
a. No payment of salaries during suspension when suspension is pending
investigation. There is compensation when suspension is pending appeal in the
event that official is exonerated.
8. In the case of the PNP – the suspension from office charged with a grave offense
where penalty is 6 years and 1 day or more, which will last until termination of the
case. Suspension cannot be terminated before termination of the case
b. The preventive suspension cannot be considered ‘unjustified’ even if the
charges are later dismissed so as to justify the payment of salaries to the
employee concerned. Preventive suspension limited to 90 days unless delay in
conclusion of investigation due to the fault of the respondent.
9. In the case of local elective officials – 60 days maximum suspension is justifiable
as respondent was elected by the people but suspension may be ordered only after
preliminary requirements and exchanges have been completed
c. Despite the fact that officer is meted out a reprimand (which is the first offense
punishable in violations of office rules), he should be given back his salaries
during suspension
4. Preventive suspension pending appeal – entitled to compensation for the period of
the appeal if found innocent
a. preventive suspension pending appeal is punitive although considered illegal if
respondent is exonerated. He must be reinstated with full pay for the period of
10. In the case of presidential appointees and other elective officials –If initially
justified at first may later raise due process questions if extended for an unreasonable
length of time. This principle applies with greater force to elective officials.
11. Where suspension imposed by the Ombudsman – Ombudsman or his deputy
may suspend any officer or employee pending an investigation and the preventive
suspension shall continue until the case is terminated but should not be more that 6
months, without pay, except when delay due to the fault of the respondent. Reason is
to emphasize and implement the authority of the Ombudsman’s Office as mandated
by the Constitution.
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12. Prior notice and hearing not required – as preventive suspension is not a penalty
but only a preliminary step in an administrative investigation
13. Members of Congress covered by RA 3019 – Order of suspension prescribed by
RA 3019 is distinct from the power of Congress to discipline its own ranks (Sec 16 (3)
Article 6). The power of congress to discipline members is a punitive measure
imposed upon determination by Congress upon an erring member. RA 3019 talks
about a preliminary, preventive measure imposed for misbehavior of a respondent as
a member of congress.
Removal and Suspension distinguished.
1. As to duration – the difference between the power to remove and the power to
suspend is only one of degree. Suspension is qualified expulsion and whether it’s
termed suspension or expulsion, it constitutes either permanent or temporary
disenfranchisement. When the suspension of an officer continues until final
disposition of a criminal prosecution, it becomes a virtual removal.
2. As to nature – preventive suspension during the period of an administrative
investigation is not a penalty in itself
3. As to time of imposition – while preventive suspension is not in a nature of a
penalty, removal is the penalty, which may only be meted upon him at the termination
of the investigation or final disposition of the case
Schedule of administrative penalties.
A. Penalties for Grave Offenses
1. Dismissal
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dishonesty,
gross neglect of duty
grave misconduct
being notoriously undesirable
conviction of a crime involving moral turpitude
falsification of official document
physical or mental disability due to vicious habits
engaging in partisan politics when holding non-political office
receiving gifts for personal use, given by someone in the hopes of receiving
a favor in return
contracting loans of money or property from persons with whom office of
official has business relations
soliciting or accepting gifts or anything of monetary value, which may affect
functions of his office
disloyalty to the country and the people
First Offense – Suspension 6 months and 1 day to 1 year
Second Offense – Dismissal
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oppression
disgraceful and immoral conduct
inefficiency and incompetence in performing official duties
frequent unauthorized absences or tardiness
refusal to perform official duty
gross insubordination
conduct grossly prejudicial to the best interest of the service
indirectly or directly having financial and material interest (pecuniary or
proprietary interest by which a person will gain or lose something) in any
transaction requiring approval of office
employment, controlling, owning etc in a private enterprise regulated or
licensed by his office unless expressly allowed by law
practice of profession unless authorized by the constitution
disclosing or misusing confidential information to further private interest or
give undue advantage to anyone
obtain or use any statement filed for purpose contrary to morals, public
policy, etc other than for information dissemination to the general public
B. Penalties for Less Grave Offenses
First Offense – Suspension 1 month and 1 day to 6 months
Second Offense – Dismissal
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simple neglect of duty
simple misconduct
gross discourtesy in the course of official duties
gross violation of existing Civil Service Law and rules of serious nature
insubordination
habitual drunkenness
nepotism
recommending any person to a position in a private enterprise which has
regular official transaction with his office unless mandated by law or
international agreements
unfair discrimination in rendering public service due to party affiliation or
preference
failure to file sworn statements of assets and liabilities, etc
failure to resign from position in private business within 30 days from
assumption of office, or divest himself of his shareholdings within 60 days
from such assumption of public office when conflict of interest arise
C. Penalties for Light Offenses
First Offense – Reprimand
Second Offense – Suspension 1 day to 30 days
Third Offense – Dismissal
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neglect of duty
discourtesy
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improper or unauthorized solicitation of contribution
violation of reasonable office rules
gambling prohibited by law
refusal to render overtime service
disgraceful, immoral or dishonest conduct prior to entering service
borrowing money by superiors, lending by subordinates to superiors
lending money at usurious interest
willful failure to pay just debts or taxes due to the government
pursuit of private business without permission required by civil service rules
lobbying for personal interest or gains without authority
promoting sale of tickets not intended for charitable or public welfare
failure to act promptly on letters and requests within 15 days from receipt
failure to process documents and complete action on documents within
reasonable time
failure to attend to anyone who wants to avail of services of the office
or remove administrative penalties and/or disabilities subject to terms and conditions
he may impose.
Cases of dishonesty, graft and corruption, malversation must be decided within 10
days from filing
2. Officials and private individuals subjects to its jurisdiction - exclusive, original
jurisdiction over (a), (b), (c) where one or more of the accused are officials occupying
the following positions in the government, whether in an acting, interim or permanent
capacity
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D. Imposition and Determination of Penalties
1. Offenses under PD 807
a. forced resignation instead of dismissal
b. transfer, demotion, fine instead of suspension 1 month and 1 day to 1 year
c. fine instead of suspension 1 day to 1 month
2. Offenses under RA 6713 – one penalty for each case (one administrative case
which may involve one or more charges)
3. Mitigating and aggravating circumstances may be considered. If found guilty of 2 or
more charges, penalty to be imposed would be that corresponding to the most
serious charge, the rest considered as aggravating. Second or third offense need not
be the same offense previously committed
E. Accessory Penalties
1. Dismissal – carries with it that of cancellation of eligibility, forfeiture of leave credits
and retirement benefits, disqualifications for re- employment in government service
2. Forced resignation – forfeiture of leave credits and retirement benefits,
disqualification for employment in government service for 1 year. Where resignation
contains conditions of disqualifications regarding re-employment in a class of position,
respondent shall be disqualified from re-employment in such positions
Note: Administrative liability and punishment not a bar to criminal prosecution.
F. Removal of Administrative Penalties or Disabilities
In meritorious cases and upon recommendation of the CSC, President may commute
The Sandiganbayan.
1. Cases subject to its jurisdiction (exclusive original)
a. RA 3019 and RA 1379
b. crimes under Title VIII of RPC (ex. Bribery, malversation of public funds)
c. Offenses or felonies in relation to office where the penalty is higher than
prision correccional or imprisonment of 6 years or fine of 6000
d. civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14,
14-a issused in 1986
a. officials of the executive branch occupying positions of regional director and
higher, otherwise classified as grade 27 and higher, specifically including:
i. Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads
ii. City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads
iii. Officials of the diplomatic service occupying the position of consul and
higher
iv. Philippine army and air force colonels, naval captains, and all officers of
higher rank
v. Officers of the PNP while occupying the position of provincial director
and those holding the rank of senior superintendent or higher
vi. City and provincial prosecutors in the Office of the Ombudsman and
Special Prosecutor
vii. Presidents, directors, trustees, or managers of GOCCs, state
universities or educational institutions or foundations
b. Members of Congress and officials thereof classified as Grade 27 and up
under the Compensation and Position Classification Act of 1989
c. Members of the Judiciary without prejudice to the provisions of the Constitution
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d. Chairmen and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution;
e. All other national and local officials classified as Grade 27 and higher under
the Compensation and Position Classification Act of 1989.
f. Other offenses or felonies whether simple or complexed with other crimes
committed in relation to their office by the public officials and employees
mentioned in Section 4(a), PD 1606, as amended by RA 7975
g. Civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14,
and 14A, issued in 1986.
By Impeachment.
1. Impeachable officials- President, Vice President, Members of the Supreme Court,
Members of the Constitutional Commissions and the Ombudsman
Note: An impeachable officer who is a member of the BAR cannot be disbarred
without first being impeached
2. Power to initiate and to try impeachment cases- it belongs to the House of
Representatives to initiate all cases of impeachment while the Senate sits as court for
the trial of impeachment cases. The judgment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines
Note: In case of private individuals charged as co-principals, accomplices or
accessories with the public officers, they shall be tried jointly with said public officers
in the proper courts, which shall exercise exclusive jurisdiction over them
Meaning and Purpose of Impeachment.
3. Jurisdiction of ordinary courts – none of the accused on salary grade 27, exclusive
original jurisdiction of RTC, MeTC, MTC, MCTC.
2. Its purpose it to protect the people from official delinquencies or malfeasances –
intended for the protection of the State
In the absence of allegation that offense committed in relation to official duty, must be
tried in ordinary courts. Jurisdiction of the Sandiganbayan is the specific actual
allegation in the Information that indicates the close intimacy between the discharge
of the accused’s official duties and the commission of the offense charged.
By abolition of office.
Sandiganbayan – exclusive appellate jurisdiction over final judgments, resolutions or
orders of the RTC whether in the exercise of its original or appellate jurisdiction
The Ombudsman.
1. Defined as a method of national inquest into the conduct of public men
1. Authority with power to abolish- as a general rule, Congress may abolish any office
it creates. The power may be exercised by the President or by local governments
when said power has been delegated to them
2. Abolition of office even during term of incumbent- the power to abolish may be
exercised at any time and even while the office is occupied by a duly elected or
appointed incumbent for there is no obligation on Congress or the people to continue
a useless office.
1. Powers, functions, duties of Ombudsman
a. investigate any act or omission of any public official, employee, office or
agency when such act appears to be illegal, unjust, improper or inefficient
b. direct any such official to perform or expedite any act or duty required by law ,
to stop, prevent and correct any abuse or impropriety in performing his duties
c. direct the officer concerned to take appropriate action against public official at
fault, recommend removal, suspension, demotion, etc
d. determine the causes of inefficiency, red tape, mismanagement, fraud etc
2. Officials subject to Ombudsman disciplinary authority – has disciplinary authority
over all elective and appointive officials of the government including GOCCs, cabinet
members, local government except those removable only by impeachment, members
of congress and judiciary. Only body authorized to investigate officials removable by
impeachment.
a. by abolishing a public office, the incumbent is not deprived of any
constitutional rights as there is no contractual right or property interest in the
office
b. the fundamental principle to civil service employees against removal except for
cause doesn’t protect them from abolition in the absence of any provision
prohibiting abolition
What constitutes abolition.
There must have been intention to do away with it wholly and permanently. There is
no abolition where the position is the same one formerly held although it bears a
different name.
To remove is to oust an officer from office before the expiration of his term, and
implies that the office exists after the ouster.
Removal from office and termination by abolition of an office distinguished.
Removal – there is an office with an occupant who would thereby lose his position,
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implying that the post subsists, and one is merely separated therefrom
Abolition – doesn’t involve removal; after abolition there is no occupant. No tenure to
a non-existent office as the right disappeared with the abolished office.
pardoned may apply for reappointment to the office which was forfeited by reason of
his conviction and undergo the usual procedure required for a new appointment
a. A pardon of a public officer merely removes the disqualification from holding
public employment but it cannot go beyond that as public office is public trust
Abolition must not constitute removal without cause.
1. Right to public office not absolute- abolition doesn’t involve removal and therefore
he has no right to demand that he be kept on the payroll. There is no such thing as an
absolute right to hold office
2. Where abolition done in bad faith- the exception to abolishment is abolishing in bad
faith. If the abolishment is void, incumbent is deemed never to have ceased to hold
office
b. A pardon doesn’t extinguish the civil liability of the grantee arising from the
crime he has been convicted of
By recall.
An elective official may be removed at any time during his term by the vote of the
people at an election called for such purpose or at a general election
Purpose and nature of the power of recall.
3. Requisites of valid abolition: in good faith, not for personal or political reasons or to
circumvent incumbent’s security of tenure, not implemented in violation of law.
1. Effective speedy remedy for removal- speedy remedy for the removal of an official
who isn’t giving satisfactory service to the public
Termination through reorganization.
2. It is political in nature and not the exercise of judicial function
Reorganization – alteration of the existing structure of government offices, including
the lines of control, authority and responsibility between them to promote greater
efficiency, remove redundancy, effect economy. It may result in the loss of one’s
position through removal or abolition of office. It must be for a valid purpose and done
in good faith. A finding that reorganization was done in bad faith must be supported
by substantial evidence as good faith is presumed.
3. It is essentially the power of removal exercised by the people
Recall of local elective officials.
1. By whom exercised- shall be exercised by the registered voters of a local
government unit to which the local elective official subject to recall belongs
By conviction of a crime.
2. Initiation of the recall process
When the penalties (perpetual or temporary absolute disqualification or perpetual or
temporary special disqualification) are imposed upon conviction, termination of official
relations results as one of the effects of said penalties under RPC is the deprivation of
the public office or employment which the offender may have held, even if conferred
by popular election. It necessarily vacates the public office held by the offender;
conversely, reinstatement should follow acquittal.
What constitutes conviction.
Conviction means conviction in trial court. It contemplates a court finding of guilt
beyond reasonable doubt by a judgment upholding and implementing such finding.
There must not only be an adjudication of guilt, but in addition, a judgment whether it
imposes a sentence or suspends sentence. In administrative cases, substantial
evidence is the rule.
a. may be initiated by a preparatory recall assembly or by the registered voters of
the local government unit
b. there shall be a preparatory recall assembly per province, city, district and
municipality
c. a majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceeding. For provincial, city or
municipal officials, recall shall be validly initiated through a resolution adopted by
majority of all the members of the preparatory recall assembly
d. recall of any elective provincial, city, municipal or barangay official may also be
initiated upon petition of at least 25% of the total number of registered voters in
the local government unit concerned
Effects of pardon.
1. If granted after conviction, it frees the individual from all the penalties and legal
disabilities and restores him to all civil rights. A pardon doesn’t ipso facto restore a
convicted felon to public office
i. A written petition shall be filed with the Comelec through its office in the
local government unit concerned. The Comelec shall cause the publication
of the petition for a period not less than 10 days nor more than 20 days for
the purpose of verifying the authenticity of the petition
2. Such pardon restores his eligibility for appointment to that office. The person
ii. Upon lapse of period, Comelec shall announce the acceptance of
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candidates to the position and prepare the list afterwards
iii. Election on recall- upon filing of a valid resolution or petition, the Comelec
shall set the date of the election on recall, which shall not be later than 30
days after the filing in case of the barangay, city or municipal officers and 45
days in the case of provincial officials. Officials sought to be recalled are
automatically considered candidates
iv. Effectivity of recall- shall be effective only upon the election and
proclamation of a successor in the person of the candidate receiving the
highest number of votes cast during the election on recall
v. Prohibition from resignation- the official sought to be recalled shall not be
allowed to resign while recall process is in progress
vi. Limitations on recall
1) an official shall only be subject to one recall election during his term
2) no recall shall be held within one year from the date of the official’s
assumption of office or one year immediately preceding a regular local
election
Note: All expenses incident to recall are borne by the Comelec
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