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GATO, Vicente S.
Re: Query; Hiring of Non-winning
Election Candidates on Job Order Basis
x---------------------------------------------------------------x


RESOLUTION NO. 02-0012


Honorable Vicente S. Gato, Province of Batanes, requests clarification on the issue of
whether a non-winning candidate in an election may be subsequently hired on job order bases.

The request of Governor Gato reads, as follows:

This is to seek the legal opinion of the Civil Service Commission if the
Provincial Government of Batanes is allowed to hire, on job Order basis, the
services of candidates who lost in the recent elections.

It is embodied in the Compendium on Local Autonomy and Local
Government that the prohibition on the hiring of losing candidates does not cover
casual or consultancy employment per DILG Opinion No. 69-1993, however, this
query is being forwarded to obtain you opinion/advise in aid of policy decision-
making in view of the fact that the above-cited DILG opinion can not be considered
for audit.

Pertinent to the instant query is Section 4, Rule XIII, Omnibus Rules on Appointment
and Other personnel Actions (CSC Memorandum Circular No. 40, s. 1998, as amended)
which provides, as follows:

Section 4. A person who lost in an election (except Barangay election)
shall not be eligible for appointment or reemployment to any office in the
government or any government-owned or controlled corporation within one year
following such election.

This same prohibition is clearly spelled out in the 1987 Constitution, as well as in the
Local Government Code of 1991, as follows:

SEC. 6. 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 corporation or in any of its subsidiaries.
(Section 6, Article IX-B, 1987 Constitution)

Section 94. Appointment of Elective and Appointive Local Officials;
Candidates Who Lost in an Election.

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x x x

(b) Except for losing candidates in barangay elections no
candidate who lost in any election shall, within one (1) year after such
election, be appointed to any office in the Government or any
government-owned or controlled corporations or in a any of their
subsidiaries. (Section 94. Local Government Code of 1991)

It is clear from the foregoing that a non-winning candidate in an election, except barangay
elections, is precluded from being appointed or re-employed in the government or in any
government-owned or controlled corporation for a period of one (1) year from the date of the
recently-concluded election. The rationale behind this prohibition is the extirpation of the spoils
system, considering that the foregoing provisions are directed against the so-called political
lameducks.

The issue now to be resolved is whether job order services in the government may be
considered as included within the purview of an appointive office, as to come within the one-year
prohibition under CSC Memorandum Circular No. 40, s. 1998.

In an intimately related case (MELENDEZ, Amador O., CSC Resolution No. 01-1606
dated October 4, 2001), the Commission has occasion to rule on the issue of whether a non-
winning candidate in an election may be appointed to a consultant position within one-year from
the date of such recently-concluded election. In said Resolution, the Commission ratiocinated that
the purpose of the prohibition is not defeated when a non-winning election candidate is hired as
consultant considering that the services of a consultant are not directly delivered to the people who
rejected him-her but more to the person who hires him/her. The pertinent portions of said
Resolution read, as follows:

After a careful evaluation of the records, the Commission funds the hiring
as consultant of a non-winning candidate in an election beyond the purview of the
one-year prohibition provided under CSC Memorandum Circular No. 40, s. 1998 . .
.

x x x

It logically follows that consultants do not hold a public appointive office
within the contemplation of Civil Service Law and Rules.

Further, since the services of a consultant are not directly delivered to the
1

2
________________________________
1 BERNAS, Joaquin G., SJ., The 1987 Philippine Constitution, A Reviewer-Primer, 1997 Ed., p. 354.
2 DE LEON and DE LEON, The Law on Public Officers and Election, 1994 Ed., p. 45
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people who rejected him/her in an election but more to the person who hires
him/her, it is the stand of the Commission that the rationale behind the prohibition
will not be defeated by hiring said defeated candidates as consultants.

The foregoing ruling may similarly be applied to non-winning candidates hired on job-order
basis, considering that the reason behind the prohibition will not be defeated through such mode of
hiring. In like manner as services of consultants, services rendered on job-order basis are not
delivered directly to the people who rejected such defeated candidate but more to the specific
agency/unit in need of the particular services offered by such defeated candidate.

More importantly, under CSC Memorandum Circular No. 38, s. 1993 (now reproduced
under Rule XI, Omnibus Rules on Appointment and Other Personnel Actions/CSC
Memorandum Circular No. 40, s. 1998), services rendered under contracts of services and job
orders are not considered government services; and contracts do not have to be submitted to the
CSC for approval; the employees involved in the contract or job orders do not enjoy the benefits
enjoyed by government employees such as PERA, COLA and RATA; no employer-employee
relationship exists; and they are not covered by civil service law. 3

From all the foregoing, it logically follows that those employed on job order basis do not hold
a public appointive office within the contemplation of Civil Service law and rules.

Accordingly, candidates who ran and lost in the recently-concluded May 14, 2001 elections,
may be hired on job order basis in the provincial government of Batanes; and the same does not
violate the rule prohibiting appointments of losing candidates in an election within one-year from
the date of such election.

WHEREFORE, the Commission hereby rules that the hiring on job order basis of non-
winning candidates in an election may be allowed, considering that job order contract is not an
appointment within the contemplation of Civil Service Law and rules.

Quezon City, January 3, 2002


___________________________
3 CSC Resolution No. 98-2895 dated November 10, 1998.
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(Signed)
KARINA CONSTANTINO-DAVID
Chairman

(Signed) (Signed)
JOSE F. ERESTAIN, JR. J. WALDEMAR V. VALMORES
Commissioner Commissioner


Attested by:


(Signed)
ARIEL G. RONQUILO
Director III, CPS