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I. GENERAL PRINCIPLES
DEFINITION
The right, authority and duty, created and conferred by law, by which,
for a given period either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign
functions of government, to be exercised by that individual for the benefit of
the public. [Floyd R. Mechem quoted in Fernandez v. Sto. Tomas (1995)]
Breakdown of the Definition:
Nature: right, authority and duty
Origin: created and conferred by law
Duration: by which for a given period either:
(1) fixed by law or
(2) enduring at the pleasure of the appointing power
An individual is invested with some portion of the sovereign functions of the
government
Purpose: to be exercised by him for the benefit of the public.
PURPOSE
(1) to effect the end for the governments institution: common good;
(2) NOT profit, honor, or private interest of any person, family or class of
persons
Sec. 1. Public office is a public trust. Public officers and employees must, at
all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and
justice, and lead modest lives. [Philippine Constitution, Art. XI, Sec. 1]
Public office is a responsibility, not a right. [Morfe v. Mutuc (1968)]
ELEMENTS
(1) Created by law or by authority of law.
Public office must be created by:
(a) Constitution
(b) National Legislation
(c) Municipal or other bodys legislation, via authority conferred by
the Legislature.
The first element defines the mode of creation of a public office while
the other elements illustrate its characteristics.
(2) Possess a delegation of a portion of the sovereign powers of government,
to be exercised for the benefit of the public. There are certain GOCCs
which, though created by law, are not delegated with a portion of the
sovereign powers of the government (those that are purely proprietary in
nature), and thus may not be considered as a Public Office.
(3) Powers conferred and duties imposed must be defined, directly or
impliedly.
(4) Duties must be performed independently and without the control of a
superior power other than the law, UNLESS for duties of an inferior or
subordinate office that created or authorized by the Legislature and which
inferior or subordinate office is placed under the general control of a
superior office or body.
Defined as unhindered performance must have permanence and continuity
Note: The elements of permanence and continuity are dispensable.
On the dispensability of the element of permanence: an example is the
public office of the Board of Canvassers, yet its duties are only for a limited
period of time.
On the dispensability of the element of continuance: Mechem in one
case states that the the most important characteristic in characterizing a
position as a public office is the DELEGATION to the individual of some of
the sovereign functions of government.
(1) Here, the court held that Laurel, as chair of the National
Centennial Commission (NCC), is a public officer. The public office of
NCC was delegated and is performing executive functions: it enforces the
conservation and promotion of the nations historical and cultural heritage.
(2) Such delegated function is a policy embodied in the Constitution.
It is inconsequential that Laurel was not compensated during his tenure. A
salary is a usual (but not necessary) criterion for determining the nature of a
position. Also, the element of continuance is not indispensable. [Laurel v.
Desierto 2002]
- as in the case of Ad Hoc Bodies or commissions
Mature studies
and deliberations
but may be slow in
responding to
issues and
problems
Appointment
Definition
Imposition of additional
duties upon existing office
Appointing authority
selects an individual who
will occupy a certain
public office
Extent of Powers
Limited
Comprehensive
Security of Tenure?
No
Yes
Disqualifications
employment
during
their
Members of the
or
Constitutional Commission
Ombudsman and his
Deputies
Members of Constitutional
Commissions, the
Ombudsman and his
Deputies
Members of Constitutional
Commissions, the
Ombudsman and his
Deputies
Other Disqualifications
(1) Mental or physical incapacity
(2) Misconduct or crime: persons convicted of crimes involving moral
turpitude are USUALLY disqualified from holding public office.
(3) Impeachment
(4) Removal or suspension from office: not presumed non-imposable when
such ineligibility is not constitutional or statutory declared.
(5) Previous tenure of office: for example, an appointed Ombudsman is
absolutely disqualified for reappointment (Article XI, Constitution).
(6) Consecutive terms limit:
(a) Vice-President = 2 consecutive terms
(b) Senator = 2 consecutive terms
Discretionary
They are such as 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.
When the law commits to any officer the duty of looking into facts
and acting upon them, not in a way which it specifically directs, but after a
discretion in its nature, the function is quasi-judicial.
The presumption is that the public officer was chosen because he was
deemed fit and competent to exercise that judgment and discretion. Unless
the power to substitute another in his place has been given to him, a public
officer cannot delegate his duties to another.
AS TO THE OBLIGATION OF THE OFFICER TO PERFORM HIS
POWERS AND DUTIES
Mandatory
Powers conferred on public officers are generally construed as
mandatory although the language may be permissive, where they are for the
benefit of the public or individuals.
Permissive
Statutory provisions define the time and mode in which public officers
will discharge their duties, and those which are obviously designed merely
to secure order, uniformity, system and dispatch in public business are
generally deemed directory.
If the act does not affect third persons and is not clearly beneficial to
the public, permissive words will not be construed as mandatory.
AS TO THE RELATIONSHIP OF THE OFFICER TO HIS
SUBORDINATES
Power of Control
It implies the power of an officer to manage, direct or govern,
including the power to alter or modify or set aside what a subordinate had
done in the performance of his duties and to substitute his judgment for that
of the latter.
Power of Supervision
Supervisory power is the power of mere oversight over an inferior
body which does not include any restraining authority over such body.
A supervising officer merely 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.
AUTHORITY OF PUBLIC OFFICERS
Authority of public officers consists of those which are:
(1) Expressly conferred upon him by the act appointing him
(2) Expressly annexed to the office by law and
(3) Attached to the office by common law as incidents to it
Doctrine of necessary implication all powers necessary for the effective
exercise of the express powers are deemed impliedly granted.
Authority can be exercised only during the term when the public officer is,
by law, invested with the rights and duties of the office.
SOURCE OF POWERS AND AUTHORITY
Under our political system, the source of governmental authority is
found in the people. Directly or indirectly through their chosen
representatives, they create such offices and agencies as they deem to be
desirable for the administration of the public functions and declare in what
manner and by what persons they shall be exercised.
Their will, in these respects, finds its expression in the Constitution
and the laws. The right to be a public officer, then, or to exercise the powers
and authority of a public office, must find its source in some provision of the
public law.
Nothing is better settled in the law than that a public official exercises
power, not rights. The government itself is merely an agency through which
the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its functions.
As such there is no presumption that they are empowered to act. There must
be a delegation of such authority, either express or implied. In the absence of
a valid grant, they are devoid of power. What they do suffers from a fatal
infirmity. [Villegas v. Subido (1969)]
Ethical duties
Every public officer is bound to perform the duties of his office
honestly, faithfully and to the best of his ability, in such a manner as to be
above suspicion of irregularities, and to act primarily for the benefit of the
public.
As to outside activities
It is the duty of public officers to refrain from outside activities which
interfere with the proper discharge of their duties.
DUTY TO MAKE PUBLIC DISCLOSURE OF STATEMENTS OF
ASSETS AND LIABILITIES [SEC. 17, ART. XI]
Public officials and employees have an obligation under the Code of
Conduct and Ethical Standards for Public Officials and Employees to
accomplish and submit declarations under oath of, and the public has the
right to know, their assets, liabilities, net worth and financial and business
interests including those of their spouses and of unmarried children under 18
years of age living in their household.
TO OWE THE STATE AND THE CONSTITUTION ALLEGIANCE
AT ALL TIMES [SEC. 18, ART XI]
RIGHTS OF PUBLIC OFFICERS
RIGHTS INCIDENT TO PUBLIC OFFICE
The 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.
Right to office The just and legal claim to exercise the powers and
the responsibilities of the public office.
Term
Period during which the
officer may claim to hold the
office as of right
Tenure
Period during which the
officer actually holds office
RIGHTS AS A CITIZEN
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 the laws.
However, by reason of the public character of his employment or
office, a public officer is, in general, held not entitled to the same protection
from publications commenting on his fitness and the like, as is accorded to
the ordinary citizen.
Engaging in certain political and business activities
The governmental interest in maintaining a high level service by
assuring the efficiency of its employees in the performance of their tasks
may require public employees to suspend or refrain from certain political or
business activities that are embraced within the constitutional rights of
others, when such activities are reasonably deemed inconsistent with their
public status and duties.
RIGHT TO SALARY
Salary personal compensation to be paid to the public officer for his
services, and it is generally a fixed annual or periodical payment depending
on the time and not on the amount of the services he may render.
Distinguished from wages in that salary is given to officers of higher
degree of employment than those to whom wages are given.
The power to fix the compensation of public officers is not inherently
and exclusively legislative in character.
Unless the Constitution expressly or impliedly prohibits Congress
from doing so, it may delegate the power to other government bodies or
officers.
The salary of a public officer may not, by garnishment, attachment or
order of execution, be seized before being paid to him and, appropriated for
the payment of his debts.
The rationale behind this doctrine is obvious consideration of public
policy. The functions and public services rendered by the State cannot be
allowed to be paralyzed or disrupted by the diversion of public funds from
their legitimate and specific objects, as appropriated by law. [De la Victoria
v. Burgos, (1995)]
BASIS OF RIGHT TO COMPENSATION
The relation between an officer and the public is not the creation of
contract, nor is the office itself a contract. Hence, his right to compensation
is not the creation of contract. It exists as the creation of law and belongs to
him not by force of any contract but because the law attaches it to the office.
The right to compensation grows out of the services rendered. After
services have been rendered, the compensation thus earned cannot be taken
away by a subsequent law.
As a general proposition, a public official is not entitled to any
compensation if he has not rendered any service. [Acosta v. CA, (2000)]
Right of a de facto officer to salary where there is no de jure officer, a de
facto officer who, in good faith, has possession of the office and has
discharged the duties thereof, is entitled to salary.
RIGHT TO BACK SALARIES
Back salaries are payable to an officer illegally dismissed or otherwise
unjustly deprived of his office, the right to recover accruing from the date of
deprivation. The claim for back salaries must be coupled with a claim for
reinstatement and subject to the prescriptive period of 1 year.
To fall under this exception, 2 conditions must be complied with:
(1) the employee must be found innocent of the charges
(2) his suspension must be unjustified.
Right to Vacation Leave and Sick Leave with Pay under Sec. 81 of the
LGC, elective officials shall be entitled to the same leave privileges as those
enjoyed by appointive local officials, including the accumulation and
commutation thereof. Government officers and employees are entitled to
commutation of all leave credits without limitation and regardless of the
period when the credits were earned provided the claimant was in the service
as of Jan. 9, 1985. [Presidential Memo Circular No. 54]
RIGHT TO RETIREMENT PAY
given to government employees to reward them for giving the best
years of their lives in the service of their country. Retirement laws are
liberally construed in favor of the retiree [Profeta v. Drilon (1992)]. It
may not be withheld and applied to his indebtedness to the
government [Tantuico v. Domingo (1994)]
RIGHTS UNDER THE CONSTITUTION
Right to self-organization
NEXT-IN-RANK RULE
This rule specifically applies only in cases of promotion. It neither
grants a vested right to the holder nor imposes a ministerial duty on the
appointing authority to promote such person to the next higher position.
One who is next-in-rank to a vacancy 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.
Reason for the rule: The preference given assumes that employees
working in an office for longer period have gained not only superior skills
but also greater dedication to the public service provided that the acts of the
appointing power are bona fide for the best interest of the public service and
the person chosen has the needed qualifications.
PERSONNEL ACTIONS
Any action denoting the movement or progress of personnel in the
civil service is known as personnel action.
It includes:
(a) appointment through certification
(b) promotion
(c) transfer
(d) reinstatement
(e) reemployment
(f) detail
(g) reassignment
(h) demotion and
(i) separation
RIGHTS UNDER THE REVISED GOVERNMENT SERVICE
INSURANCE ACT
Covered employees are entitled to retirement benefits, separation
benefits, unemployment or involuntary separation benefits, disability
benefits, survivorship benefits, funeral benefits and life insurance benefits.
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.
Pending Appeal
Punitive in character
relieved from private liability. The threat of suit could also deter competent
people from accepting public office.
OTHER PUBLIC POLICY CONSIDERATIONS:
(1) loss of valuable time caused by such actions
(2) unfairness of subjecting officials to personal liability for the acts of their
subordinates suspension is unjustified
(3) a feeling that the ballot and removal procedures are more appropriate
methods of dealing with the misconduct in public office.
OFFICIAL
IMMUNITY
DISTINGUISHED
FROM
STATE
IMMUNITY
The immunity of public officials is a more limited principle than
governmental immunity since its purpose is not directly to protect the
sovereign, but rather to do so only collaterally, by protecting the public
official in the performance of his government function.
The doctrine of sovereign immunity principally rested upon the
tenuous ground that the king could do no wrong. It served to protect the
impersonal body politic or government itself from tort liability.
Official Immunity serves as a protective aegis for public officials from
tort liability for damages arising from discretionary acts or functions in the
performance of their official duties.
OFFICIAL IMMUNITY NOT ABSOLUTE
A public officer enjoys only qualified, not absolute immunity. The
protection afforded by the doctrine generally applies only to activities within
the scope of office that are in good faith and are not reckless, malicious or
corrupt.
But acts of a public officer are protected by the presumption of good
faith. Even mistakes concededly committed by such a public officer in the
discharge of his official duties are not actionable as long as it is not shown
that they were motivated by malice or gross negligence amounting to bad
faith.
IMMUNITY FROM SUIT OF THE PRESIDENT
General Rule: The President shall be immune from suit during his tenure.
Exception:
(1) Impeachment complaint [Sec. 2 Art. XI, Constitution]
(2) While the President is immune from suit, she may not be prevented from
instituting a suit.
A non-sitting President does not enjoy immunity from suit, even for
acts committed during the latters tenure [In the Matter of the Petition for the
Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez;
Rodriguez v. Macapagal-Arroyo (2011)]
DE FACTO OFFICERS
DE FACTO DOCTRINE
It is the doctrine that a person who is admitted and sworn into office
by the proper authority is deemed to be rightfully in such office until:
(1) he is ousted by judicial declaration in a proper proceeding; or
(2) his admission thereto is declared void.
Doctrines Purpose: to ensure the orderly functioning of government. The
public cannot afford to check the validity of the officer's title each time they
transact with him.
DE FACTO OFFICER DEFINED
One who has the reputation of being the officer that he assumes to be,
and yet is not a good officer in point of law. [Torres v. Ribo (1948)]
He must have:
(1) acted as an officer for such length of time,
(2) under color of title and under such circumstances of reputation or
acquiescence by the public and public authorities,
(3) as to afford a presumption of election or appointment, and
(4) induce people, without inquiry, and relying on the supposition that he is
the officer he assumes to be, to submit to or invoke his action.
A person is a de facto officer when the duties of his office are
exercised under ANY of the following circumstances:
(1) There is no known appointment or election, but people are induced by
circumstances of reputation or acquiescence to suppose that he is the officer
he assumes to be. Consequently, people do not to inquire into his authority,
and they submit to him or invoke his action;
(2) He possessed public office under color of a known and valid appointment
or election, but he failed to conform to some precedent requirement or
condition (e.g., taking an oath or giving a bond);
(3) He possessed public office under color of a known election or
appointment, but such is VOID because:
De Facto
Requisites
De jure office;
He assumed office under
color of right or general
acquiescence by the
public; He actually and
physically possessed the
faith.
Reputation: He possesses
office and performs its
duties under color of
right, but he is not
technically qualified to
act in all points of law
How Ousted
Cannot be ousted.
In a direct proceeding
(quo warranto);
(collaterally)
Rules on Compensation
Rightfully entitled to
compensation;
The principle "No work, no
pay" is inapplicable to him.
Conditionally entitled to
receive compensation:
only when no de jure
officer is declared;
He is paid only for actual
services rendered.
De Facto
He possesses office and
performs official acts
without actual or
apparent authority.
None. Neither lawful title
nor color of right to
Rules of Compensation
Entitled to receive
compensation only when
no de jure officer is
declared and only for
actual services rendered.
Not entitled to
compensation at all
(2) As regards the public and third persons: The acts of a de facto officer are
valid as to third persons and the public until his title to office is adjudged
insufficient.
Rationale: The doctrine is intended not for the protection of the public
officer, but for the protection of the public and individuals who get involved
in the official acts of persons discharging the duties of a public office.
(3) De Facto Officers Official Acts are not subject to collateral attack
Rule: A de facto officers and his acts validity cannot be collaterally
questioned (in proceedings where he is not a party, or were not instituted to
determine the very question).
Remedy: Quo warranto proceedings filed by:
(a) The person claiming entitlement to the office;
(b) The Republic of the Philippines (represented by the
Solicitor-General or a public prosecutor).
LIABILITY OF DE FACTO OFFICERS
A de facto officer generally has the same degree of liability in
accountability for official acts like a de jure officer.
The de facto officer may be liable for all imposable penalties for ANY
of the following acts:
(1) usurping or unlawfully holding office;
(2) exercising the functions of public office without lawful right;
(3) ineligibility for the public office as required by law
The de facto officer cannot excuse responsibility for crimes
committed in his official capacity by asserting his de facto status.
RIGHT TO COMPENSATION OF DE FACTO OFFICER
General Rule: None. A de facto officer cannot sue for the recovery of
salary, fees or other emoluments attached to the office, for the duties he has
performed. His acts, as far as he himself is concerned, are void. (63A Am.
Jur. 2d 1094-1095)
The rightful incumbent may recover from the de facto officer the
salary received by the latter during his wrongful tenure, even though he
entered into the office in good faith and under color of title. [Monroy v CA
(1967)]
Exceptions:
(1) Where there is no de jure public officer, the officer de facto who in
good faith has had possession of the office and has discharged the duties
Accepting Authority
Congress
Members of Congress
Respective Houses
President
Governor
Sanggunian Members
Sanggunian concerned
Municipal
Appointing Authority
or
City
COURTESY RESIGNATION
Courtesy Resignation cannot properly be interpreted as a resignation
in the legal sense for it is not necessarily a reflection of a public officials
intention to surrender his position. Rather, it manifests his submission to the
will of the political authority and the appointing power [Ortiz v. COMELEC
(1988)]
ACCEPTANCE OF AN INCOMPATIBLE OFFICE
It is contrary to the policy of the law that the same individual should
undertake to perform inconsistent and incompatible duties.
General Rule: One who, while occupying one office, accepts another
incompatible with the first, ipso facto, absolutely vacates the first office.
WHEN INCOMPATIBLE
Incompatibility is to be found in the character of the offices and their
relation to each other, in the subordination of one to the other and in the
nature of the functions and duties which attach to them
It exists where:
(1) There is conflict in such duties and functions, so that the
performance of the duties of one interferes with the performance of
the duties of the other as to render it improper from consideration of
public policy for one person to retain both.
(2) One is subordinate to the other and is subject in some degree to its
supervisory power for obviously in such a situation, the design that
one acts as a check on the other would be frustrated.
(3) The Constitution of the law itself declares the incompatibility even
though there is no inconsistency in the nature and functions of the
offices.
Exceptions:
(1) Where the public officer is authorized by law to accept the other
office (ex officio capacity)
(2) In case of the forbidden office, it is the second office that is
absolutely void
ABANDONMENT OF OFFICE
Abandonment is the voluntary relinquishment of an office by the
holder of all right, title, or claim thereto with the intention of not reclaiming
it or terminating his possession and control thereof.
REQUISITES
(1) Intention to abandon
(2) Overt act by which the intention is carried into effect
SPECIES OF RESIGNATION
While resignation in general is a formal relinquishment, abandonment
is a voluntary relinquishment through nonuser.
Non-user refers to a neglect to use a privilege or a right or to exercise
an easement or an office [Municipality of San Andres, Catanduanes v. CA
(1998)]
Abandonment may also result from acquiescence by the officer in his
wrongful removal [Canonizado v. Aguirre (2001)].
Civil Service Rules an officer or employee shall be automatically separated
from the service if he fails to return to the service after the expiration of oneyear leave of absence without pay. Also, officers and employees who are
absent for at least 30 days without approved leave (AWOL) shall be dropped
from the service after due notice.
PRESCRIPTION OF RIGHT TO OFFICE
Under the Rules of Court, quo warranto is the proper remedy against a
public officer for is ouster from office which should be commenced within
one year after the cause of such ouster or the right of the plaintiff to hold
such office or position arose; otherwise, the action will be barred.
Rationale for the one year period: Title to public office should not be
subjected to uncertainties but should be determined as speedily as possible.
Filing of an action for administrative remedy does not suspend the
period for filing the appropriate judicial proceeding.
REMOVAL
Removal entails the ouster of an incumbent before the expiration of
his term. It implies that the office exists after the ouster. Another term used
is dismissal.
Removal from office may be express or implied.
(1) Appointment of another officer in the place of the incumbent
operates as a removal if the latter was notified.
(2) 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