PUBLIC OFFICERS Note: This is not to be applied No vested right to public office

literally. The Board of Canvassers is a

PUBLIC OFFICE AND OFFICERS public office, yet its duties are only for a GENERAL RULE: A public office, being a mere
limited period of time. privilege given by
Public Office the state, does not
(cf. Barney v. vest any rights in
Definition Hawkins) the holder of the
office. This rule
A public office is the right, authority and duty created Public Officer v. Public Employment applies when the
and conferred by law, by which for a given period, either law is clear.
fixed by law or enduring at the pleasure of the appointing Public employment is broader than public
power, an individual is invested with some portion of the office. All public office is public employment, but not EXCEPTION: When the law
sovereign functions of the government, to be exercised by all public employment is a public office. is vague, the
him for the benefit of the public. (Mechem) persons holding
Generally, a position is a public office of the office is
when it is created by law, with duties cast upon the protected and he
Purpose and Nature incumbent which involve the exercise of some portion should not be
of the sovereign power, and in the performance of deprived of his
A public office is created to effect the end for which which the public is concerned. Public employment is office.
government has been instituted which is the common a position which lacks one or more of the foregoing
good; not profit, honor, or private interest of any person, elements. Segovia v. Noel
family or class of persons (63 A Am Jur 2d 667)
Public Office v. Public Contract It is a fundamental principle that a public
Nature: (1) A public office is a public trust. (Art. XI, Sec. 1, office cannot be regarded as the property of the
1987 Consti) Public Office Public incumbent and that a public office is not a public
(2) It is a responsibility and not a Contract contract. Nonetheless, Act. No. 3107 should be
right. (Morfe v. Mutuc) given a prospective effect in the absence of
Creation Incident of Originates legislative intent to the contrary. Although there is a
Elements sovereignty from will of vested right to an office, which may not be disturbed
contracting by legislation, yet the incumbent has, in a sense, a
(1) Must be created either by (a) the Constitution, parties right to his office. If that right is to be taken away by
(b) the Legislature, or (c) a statute, the terms should be clear.
municipality or other body through authority Object Carrying out of Obligations
conferred by the Legislature; sovereign as well as imposed Agcaoili v. Suguitan
governmental only upon
(2) Must possess a delegation of a portion of the functions affecting the The Supreme Court held that Agcaoili had
sovereign power of even persons not persons not ceased to be a justice of the peace by operation
government, to be exercised for the benefit of the bound by the who of Act No. 3107. The Segovia ruling was reiterated,
public; contract entered i.e. Act No. 3107 should be given prospective effect
into the only, as there was no express statement making the
(3) The powers conferred and the duties discharged contract law applicable retroactively.
must be defined, directly or
impliedly by the Legislature or through legislative
authority; Public Office not property
Subject Tenure, duration, Limited
Matter continuity duration
(4) The duties must be performed independently and A public office is not the property of the
without control of a public officer within the provision of the Constitution
Scope Duties that are Duties are against deprivation of property without due process of
superior power other than the law;
generally continuing very law or within an agreement in a treaty not to impair
and permanent specific to the property or rights of private individuals.
Exception: If the duties are those of an
the
inferior or subordinate office, created or
contract Exceptions:
authorized by the Legislature and by it
placed under the general control of a
superior office or body; Where The law Contract (1) In quo warranto
duties are proceedings relating to the question
(5) Must have some permanency and continuity defined as to which of 2
persons is entitled
to a public office

1
 created by law -- which new office is
(2) In an action for recovery U.S.T. v. Board of Tax Appeals incompatible with the former -- he will be
of compensation accruing by considered to have abandoned his former
virtue of The authority given to the President to office.
the public office "reorganize within one year the different executive
departments, bureaus and other instrumentalities of Exception: When the non-acceptance of
Cornejo v. Gabriel the Government" in order to promote efficiency in the the new appointment would affect public
public service is limited in scope and cannot be interest, and the public official is thereby
Due process is violated only if an office is extended to other matters not embraced constrained to accept.
considered property. However, a public office is not therein. Therefore, an executive order depriving the
property within the constitutional guaranties of due Courts of First Instance of jurisdiction over cases Estoppel to deny existence of office
process. It is a public trust or agency. As public involving recovery of taxes illegally collected is null
officers are mere agents and not rulers of the people, and void, as Congress alone has the "power to define, Q: When is a public officer estopped from denying
no man has a proprietary or contractual right to an prescribe and apportion the jurisdiction of the various that he has occupied a public office?
office. Every officer accepts office pursuant to law courts."
and holds office as a trust for the people whom he A: When he has acted as a public officer,
represents. esp. where he has received
Methods of Organizing offices public monies by virtue of his
Abeja v. Tanada office.
(1) Single-head: one head assisted by
Public office being personal, the death of subordinates. Swifter decision and
a public officer terminates his right to occupy the actions but may sometimes be hastily Public Officer
contested office and extinguishes his counterclaim for made. Volunteer Service under RA 6713
damages. His widow and/or heirs cannotbe
substituted in the counterclaim suit. (2) Board System: collegial body in formulating
polices and implementing Definition
programs. Mature studies and deliberations
Modes of Creation of Public Office but may be slow in A public officer is one who performs public functions /
responding to issues and problems. duties of government by virtue of direct provision of law,
(1) by the Constitution popular election, or appointment by competent
(2) by statute / law Modification and Abolition authority. His duties involve the exercise of discretion in
(3) by a tribunal or body the performance of the functions of the government, and
to which the power to create the office has GENERAL RULE: The power to create an office are not of a merely clerical or manual nature. (See Sec. 2
been delegated includes the (14), E.O. 292)
power to modify or
abolish it. (i.e., Note: For the purpose of applying the provisions
Scope and Extent of Power of legislature this is generally a of the Revised Penal
legislative Code, employees, agents,
GENERAL RULE: The creation of a public office function) or subordinate officials, of any
is primarily a rank or class, who perform
legislative EXCEPTIONS: public duties in the
function. government or in any of its
(1) Where the Constitution branches shall be deemed as
Exceptions: (1) where the offices are created prohibits such modification / abolition; public officers.
by the (2) Where the Constitution
gives the people the power to Illustrations:
Constitution; modify or abolish the office;
(2) where the Legislature In the case of Maniego
delegates such power. Ocampo v. Secretary of Justice v. People, a laborer who
was in charge of issuing
The legislative power to create a court summons and
Delegation of power to create public office carries with it the power to abolish it. When the court subpoenas for traffic
is abolished, any unexpired term is abolished also. violations in a judge's
Q: What is the effect where an office is created sala was convicted for
pursuant to illegally delegated powers? Zandueta v. De la Costa bribery under RPC
203. The court held
A: The office would have no existence. RULE: When a public official voluntarily that even temporary
accepts an appointment to an office newly performance of public

2
 functions is sufficient to
constitute a person as a
public official.
In the case of People v.
Paloma, a sorter and
filer of money orders in
the Auditor's Office of
the Bureau of Posts was
convicted for infidelity in
the custody of
documents. The court
pointed out that the
sorting and filing of
money orders in the
Bureau of Posts is
obviously a public
function or duty.
Who are not considered public officers?
Special policemen salaried by a private entity
and patrolling only the premises of such private
entity (Manila Terminal Co. v. CIR);
Concession forest guards (Martha Lumber Mill
v. Lagradante);
Company cashier of a private corporation
owned by the government (Tanchoco v. GSIS)
May a person be compelled to accept a public office?
GENERAL RULE: NO.
EXCEPTIONS:
(1) When citizens are
required, under
conditions provided by
law,
to render personal military or
civil service (Sec. 4, Art. II,
1987 Const.);
(2) When a person who,
having been elected by
popular election to a public
office, refuses without legal
motive to be sworn in or to
discharge the duties of said
office (Art. 234,
RPC; Note: the penalty shall
be either arresto mayor, or a
fine not exceeding P 1,000.00,
or both) DE FACTO OFFICERS
De Facto Doctrine
No presumption of power
Q: What is the de facto doctrine?
Villegas v. Subido
A: It is the principle which holds that a person, who,
Nothing is better settled in the law than by the proper authority, is admitted and sworn into
that a public official exercises power, not rights. The office is deemed to be rightfully in such office until:
government itself is merely an agency through which
the will of the state is expressed and enforced. Its (a) by judicial declaration in a proper proceeding he is
officers therefore are likewise agents entrusted with ousted therefrom; or
the responsibility of discharging its functions. As (b) his admission thereto is declared void.
such, there is no presumption that they are
empowered to act. There must be a delegation of Q: What is the purpose for the doctrine?
such authority, either express or implied. In the
absence of a valid grant, they are devoid of power. A: It is to ensure the orderly functioning of
government. The public cannot afford to check the
validity of the officer's title each time they transact
Classification of Public Offices and Public Officers with him.
Creation De Facto Officer defined
(1) Constitutional Q: When is a person a de facto officer?
(2) Statutory
A: Where the duties of the office are exercised
Public Body Served under any of the following circumstances:
(1) National (1) Without a known appointment or
(2) Local election, but under such
circumstances of reputation or
Department of government to which their functions pertain acquiescence as were calculated to
induce people, without inquiry, to
(1) Legislative submit to or invoke his action,
(2) Executive supposing him to the be the officer
(3) Judicial he assumed to be; or
Nature of functions (2) Under color of a known and valid
appointment or election, but where
(1) Civil the officer has failed to conform to
(2) Military some precedent requirement or
condition (e.g., taking an oath or
Exercise of Judgment or discretion giving a bond);
(1) Quasi-judicial (3) Under color of a known election or
(2) Ministerial appointment, void because:
Legality of Title to office (a) the officer was not
eligible;
(1) De Jure (b) there was a want of power
(2) De Facto in the electing or
appointing body;
Compensation (c) there was a defect or
irregularity in its
(1) Lucrative exercise;
(2) Honorary
3
 such ineligibility, want of power, or presumption
defect being unknown to the public. Validity of Valid, subject to Valid as to the of his right to
official acts exceptions (e.g., they public until such act)
(4) Under color of an election or an were done beyond the time as his title to
appointment by or pursuant to scope of his authority, the office is Rule on Entitled to receive Not entitled to
a public, unconstitutional law, etc.) adjudged compensation compensation only compensation
before the same is adjudged to be insufficient. during the time when no at all.
such. de jure officer is
Rule on Entitled to Entitled to declared;
Note: Here, what is Compensation compensation as a receive
unconstitutional is not the act matter of right; compensation He is paid only for actual
creating the office, but the act by only during the services rendered by
which the officer is appointed to an The principle of "no time when no de him.
office legally existing. (Norton v. work, no pay" is not jure officer is
County of Shelby) applicable to him. declared;
Q: Can an intruder / usurper ripen into a de facto officer?
Officer De Jure v. Officer De Facto He is paid only
for actual A: Yes. With the passage of time, a presumption
De Jure De Facto services may be created in the minds of the public that the
rendered by him. intruder has a right to act as a public officer.
Requisites (1) Existence of a de (1) De jure
jure office; office;
Officer De Facto v. Intruder Q: Is good faith a factor in the ripening of intruder status into
(2) must possess de facto status?
the legal (2) Color of right De Facto Intruder
qualifications or general A: Yes. HOWEVER, it must be noted that the good
for the office in acquiescen Nature Officer under any of the One who faith must be on the part of
question; ce by the 4 circumstances takes the public; not on the part of the intruder.
public; discussed under Part II possession of
(3) must be lawfully (above). an office and
chosen to such (3) Actual undertakes to
office; physical act officially
possession without any Elements of a De Facto Officership
(4) must have of the authority,
qualified himself office in either actual (1) De jure office
to perform the good faith or apparent (2) Color of right or general acquiescence by the
duties of such public;
office according (3) Actual physical possession of the office in good
Basis of Color of right or title to None. He
to the mode faith
authority office has neither
prescribed by Note: This is not absolutely true. An
lawful title nor
law. intruder / usurper may ripen
color of right
or title to into a de facto officer.
Basis of Right: he has the Reputation: Has office.
Authority lawful right / title to the the possession
office and performs the Examples of De Facto Officers
Validity of Valid as to the public Absolutely
duties under
"official" acts until such time as his title void; they
color of right, A judge who continued to exercise his duties after his
to the office is adjudged can be
without being appointment was disapproved by the CA according to a
insufficient impeached at
technically newspaper report, but before receiving the official
any time in
qualified in all notification regarding the rejection of his appointment
any
points of law to (Regala v. Judge of CFI);
proceeding
act
(unless and
until he A lawyer instructed by the Acting Provincial Governor to file
How ousted Cannot be ousted. Only by a direct continues to an information for homicide, where the latter had no
proceeding (quo act for so long authority to designate him as assistant fiscal, and where the
warranto); not a time as to DOJ had not authorized him to act as such (People v.
collaterally afford a Penesa);

4

A third-ranking councilor who is designated to act as mayor
by an officer other than the proper appointing authority
prescribed by law, and lacking the consent of the Provincial
Board (Codilla v. Martinez)
Examples of those not considered as De Facto Officers
A judge who has accepted an appointment as
finance secretary and yet renders a decision
after having accepted such appointment (Luna
v. Rodriguez);
A judge whose position has already been
abolished by law, and yet promulgates a
decision in a criminal case after the abolition
and over the objection of the fiscal (People v.
So)
Legal Effect of Acts of De Facto Officers
As regards the officers themselves
GENERAL RULE: A party suing or defending in
his own right as a
public officer must
show that he is an
officer de jure. It
is not sufficient
that he be merely
a de facto officer.
As regards the public and third persons
GENERAL RULE: The acts of a de facto officer
are valid as to
third persons and
the public until his
title to office is
adjudged
insufficient.
Official Acts of De Facto Officers not subject to collateral attack
RULE: The title of a de facto officer and the validity
of his
acts cannot be collaterally questioned
in proceedings to which he is not a
party, or which were not instituted to
determine the very question.
REMEDY: Quo warranto proceedings
Who may file:
(1) The person who claims to
be entitled to the office;
(2) The Republic of the
Philippines, represented
by
(a) the
Solicitor-General;
or
(b) a public
prosecutor
Nueno v. Angeles
In this case, there were four (4) petitioners
seeking to oust six (6) Board Members. The Court
held that this could not be done unless all 4 of them
were entitled to the offices of the 6.
Liabilities of De Facto Officers
The liability of a de facto officer is generally
held to be the same degree of accountability for
official acts as that of a de jure officer.
The de facto officer may be liable for all
penalties imposed by law for any of the
following acts:
(a) usurping or unlawfully holding office;
(b) exercising the functions of public
office without lawful right;
(c) not being qualified for the public
office as required by law.
The de facto officer cannot excuse his
responsibility for crimes committed in his official
capacity by asserting his de facto status.
ELIGIBILITY AND QUALIFICATIONS
Definition
Eligibility, which is the term usually used in reference to the
Civil Service Law, refers
to the endowment / requirement / accomplishment that fits one for
a public office.
Qualification generally refers to the endowment / act which a
person must do before
he can occupy a public office.
Power to Prescribe Qualifications
GENERAL RULE: Congress is empowered to
prescribe the
qualifications for
holding public
office, subject to
the following
restrictions:
Congress cannot exceed its constitutional
powers;
Congress cannot impose conditions of
eligibility inconsistent with constitutional
provisions;
The qualification must be germane to the
position ("reasonable relation" rule);
Congress cannot prescribe qualifications
so detailed as to practically amount to
making an appointment. (Legislative
appointments are unconstitutional and
therefore void for being a usurpation of
executive power.);
Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive, and
Congress cannot add to them except if
the Constitution expressly or impliedly
gives the power to set qualifications.
Q: What legislative enactments are tantamount to legislative
appointments?
A:
Extensions of the terms of office of the
incumbents;
The People's Court Act, which provided that the
President could designate Judges of First
Instance, Judges-at-large of First Instance or
Cadastral Judges to sit as substitute Justices of
the Supreme Court in treason cases without
them necessarily having to possess the
required constitutional qualifications of a regular
Supreme Court Justice. (Vargas v. Rilloraza);
5
 A proviso which limits the choices of the
appointing authority to only one eligible, e.g. the
incumbent Mayor of Olongapo City (Flores v.
Drilon);
A legislative enactment abolishing a particular
office and providing for the automatic transfer of
the incumbent officer to a new office
created (contemplated in Manalang v.
Quitoriano);
A provision that impliedly prescribes inclusion
in a list submitted by the Executive Council of
the Phil. Medical Association as one of the
qualifications for appointment; and which
confines the selection of the members of the
Board of Medical Examiners to the 12 persons
included in the list (Cuyegkeng v. Cruz) ;
Manalang v. Quitoriano
Congress cannot either appoint a public officer or impose
upon the President the duty to appoint any particular person to an
office. The appointing power is the exclusive prerogative of the
President, upon which no limitations may be imposed by
Congress, except those resulting from:
(1) the need of securing the concurrence
of the Commission on
Appointments; and
(2) the exercise of the limited legislative
power to prescribe the
qualifications to a given appointive
office.
Cuyegkeng v. Cruz
The power of appointment vested in the President by the
Constitution connotes necessarily a reasonable measure of
freedom, latitude, or discretion in the exercise of the power to
choose appointees.
Flores v. Drilon
Where only one can qualify for the posts in question, the
President is precluded from exercising his discretion to choose
whom to appoint. Such supposed power of appointment, sans
the essential element of choice, is no power at all and goes
against the very nature itself of appointment.
Time of Possession of Qualifications
Q: When must the qualifications be possessed?
A: Where the time is specified by
the Constitution or law: At able to read and write
the time specified registered voter
resident of the Philippines for not less than two years
immediately preceding election day
Where the Constitution or law is
silent: c) Congressmen (Sec. 6, Art. VI, Constitution)
There are 2 views: Natural-born citizen
25 years old on day of election
(1) qualification must be at the able to read and write
time of commencement of
registered voter in district in which he shall be elected
term or induction into office;
resident thereof for not less than one year immediately
preceding election day
(2) qualification / eligibility
must exist at the time of the
d) Supreme Court Justice
election or appointment
Natural born citizen
* Eligibility is a continuing nature, and must exist
throughout the holding of the public office. Once the at least 40 years old
qualifications are lost, then the public officer forfeits 15 years or more a judge or engaged in law practice
the office. of proven CIPI (competence, integrity, probity and
independence)
Castaneda v. Yap
e) Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)
Knowledge of ineligibility of a candidate and failure to
question such ineligibility before or during the election is not a bar Natural-born citizen
to questioning such eligibility after such ineligible candidate has 35 years old at time of appointment
won and been proclaimed. Estoppel will not apply in such a proven capacity for public administration
case. not a candidate for any elective position in elections
immediately preceding appointment
Frivaldo v. COMELEC
f) COMELEC Comm. (Sec. 1[1], Art. IXC)
The citizenship requirement must be met only on
election day. While the Local Government Code requires one Natural-born citizen
year residency immediately preceding election day and the 35 years old at time of appointment
prescribed age on election day, no date is specified for college degree holder
citizenship. The purpose of the citizenship requirement is to not a candidate for elective position in election immediately
ensure leaders owing allegiance to no other country. Such preceding appointment
purpose is not thwarted, but instead achieved by construing the chairman and majority should be members of the bar who
requirement to apply at time of proclamation and at the start of have been engaged in the practice of law for at least 10
the term. years (See Cayetano v. Monsod)
g) COA Commissioners
Qualifications usually prescribed
Natural-born citizen
a) President (Sec. 2, Art. VI, Constitution)
35 years old at time of appointment
Vice President (Sec. 3, Art. VII, Constitution)
CPA with >10 year of auditing experience or
Natural-born citizen Bar member engaged in practice of law for at least 10
years
40 years old on day of election
Not have been candidates for elective position in elections
resident of the Philippines for at least 10 yrs immediately
immediately preceding appointment
preceding election day
Cayetano v. Monsod Practice of law means
b) Senator (Sec. 3, Art. VI, Constitution)
any activity, in or out of court, which
requires the application of law, legal
Natural-born citizen
procedure, knowledge, training and
35 years old on day of election experience. Generally, to practice law
6
 is to give notice or render any kind of Q: Distinguish between designation and Officers of the armed forces from
service which requires the use in any appointment. the rank or colonel or naval captain
degree of legal knowledge or skill. (ibid);
Designation Appointment
Aquino v. COMELEC: Residency of not less Other officers whose appointments
than 1 year prior to the elections for the Definition Imposition of Selection of an are vested in him by the
position of Congressman. In election additional individual to Constitution (ibid), including
law, residence refers to domicile, i.e. the duties upon an occupy a Constitutional Commissioners (Art.
place where a party actually or existing office certain public IX-B, Sec. 1 (2) for CSC; Art. IX-C,
constructively has his permanent home, office by one Sec. 1 (2) for COMELEC; Art. IX-D,
where he intends to return. To authorized by Sec. 1 (2) for COA).
successfully effect a change of domicile, law to make
the candidate must prove an actual such selection Q: Who can the President appoint without the
removal or an actual change of need for CA approval?
domicile. Here, it was held that leasing
a condominium unit in the district was A: All other officers of the government whose
Extent of Limited Comprehensive
not to acquire a new residence or appointments are not otherwise provided for by
Powers
domicile but only to qualify as a law;
candidate.
Security of No. Yes.
tenure? Those whom he may be authorized
Marcos v. COMELEC: Domicile, which by law to appoint;
includes the twin elements of actual habitual
residence, and animus manendi, the When Assumption of Assumption of
deemed a designated a 2ndappointive Members of the Supreme Court;
intention of remaining there permanently. It
was held that domicile of origin is not easily abandonment position is not position is
of prior office deemed usually deemed Note: To be appointed from
lost, and that in the absence of clear and a list of at least 3 nominees
positive proof of a successful change of abandonment abandonment
of the of the first prepared by the Judicial and Bar
domicile, the domicile of origin should be Council (Art. VIII, Sec. 9, 1987
deemed to continue. 1st position office.
Const.)

Religious Test or Qualification Judges of lower courts;

Nature of Appointing Power
No religious test shall be required for the exercise of Note: To be appointed from
civil or political rights. (Art. III, Sec. 5, 1987 Constitution) The power to appoint is intrinsically an
a list of at least 3 nominees
executive act involving the exercise of
prepared by the Judicial and Bar
discretion. (Concepcion v. Paredes)
Council (Art. VIII, Sec. 9, 1987
FORMATION OF OFFICIAL RELATION Const.)
The power and prerogative to a vacant position
Modes of Commencing Official Relation in the civil service is lodged with the appointing
Ombudsman and his deputies
authority.
(a) Election Note: To be appointed from
a list of at least 6 nominees
(b) Appointment Constitutional Provisions
prepared by the Judicial and Bar
Council, and from a list of 3
(c) Others: Q: Who can the President nominate and appoint
nominees for every vacancy
(i) Succession by operation of law; with the consent of the
thereafter (Art. XI, Sec. 9, 1987
Commission on Appointments?
Const.)
(ii) Direct provision of law, e.g. ex-oficio
officers A:
Heads of the executive
Q: Does the President have the power to
departments (Art. VII, Sec. 16,
make appointments when
Election: Selection or designation by a popular vote 1987 Const.);
Congress is in recess?
Ambassadors (ibid); A: Yes. However, such appointments shall be
Appointment effective only until:
Other public ministers and consuls
Definition (ibid);

7
 (1) disapproval by the Shall be used as basis for civil o
Commission on Appointments; service examinations for positions departments
or in the career service, as guides in and
appointment and other personnel agencies in
(2) the next adjournment of actions, in the adjudication of the
the Congress (Sec. 16, protested appointments, developmen
Art. VII, 1987 Const.) in determining training needs, and t of their
as aid in the inspection and audit of qualification
the agencies' personnel work standards.
Q: What is the effectivity of programs (ibid); (Sec. 5,
appointments extended by an Acting Rule IV,
President? Shall be administered in such Omnibus
manner as to continually provide Rules)
A: Such appointments shall incentives to officers and
remain effective unless employees towards professional Shall be established for all positions
revoked by the elected growth and foster the career system in the 1st and 2nd levels (Sec. 1,
President within 90 days from in the government service (ibid); Rule IV, Omnibus Rules);
his assumption or
reassumption of office. (Sec. It shall be
14, Art. VII, 1987 Const.) the Political Qualifications for an Office
responsibilit
y of the GENERAL RULE: Political qualifications are not
Qualification Standards and Requirements under the Civil departments required for public office.
Service Law and
agencies to Exceptions: (1) Membership in
Qualification Standards: establish, the electoral tribunals of either the
administer House of Representatives or
Express the minimum and Senate (Art. VI, Sec. 17, 1987
requirements for a class of positions maintain the Const.);
in terms of education , training and qualification
experience, civil service eligibility, standards (2) Party-list representation;
physical fitness, and other qualities on a
required for successful continuing (3) Commission on Appointments;
performance. (Sec. 22, Book V, basis as an
EO 292) incentive to (4) Vacancies in the
career Sanggunian (Sec. 45,
A statement of the advanceme Local Government
minimum qualifications of nt. (Sec. 7, Code)
a position which shall Rule IV,
include education, Omnibus Property Qualifications
experience, training, civil Rules)
service eligibility, In the cases of Maquera v. Borra and Aurea v.
and physical Their establishment, administration, COMELEC, the Supreme Court struck down R.A. 4421 which
characteristics and and maintenance shall be the required candidates for national, provincial, city and municipal
personality traitsrequired responsibility of the department / offices to post a surety bond equivalent to the one-year salary or
by the job. (Sec. 2, Rule agency, with the assistance and emoluments of the position to which he is a candidate, which
IV, Omnibus Rules) approval of the CSC and in shall be forfeited in favor of the govt. concerned if the candidate
consultation with the Wage and fails to obtain at least 10% of the votes cast.
With respect to a particular position, Position Classification Office (ibid);
such qualification standards shall The Supreme Court held that property qualifications
serve as the basis for the Whenever are inconsistent with the nature and essence of the Republican
determination by the appointing necessary, system ordained in our Constitution and the principle of social
authority of the degree of the CSC justice underlying the same. The Court reasoned out that:
qualifications of an officer or shall
employee (ibid); provide tech "Sovereignty resides in the people and all
nical government authority emanates from
assistance t them, and this, in turn, implies necessarily
that the right to vote and to be voted shall

8
 not be dependent upon the wealth of the
individual concerned. Social justice
presupposes equal opportunity for all, rich
and poor alike, and that, accordingly, no
person shall, by reason of poverty, be
denied the chance to be elected to public
office."
Aliens not eligible to public office
This is self-explanatory.
Effect of removal of qualifications during the term
Q: What happens if the qualification is lost which the
officer is holding office?
A: The officer must be terminated.
Effect of pardon upon the disqualification to hold public office
GENERAL RULE: A pardon shall not work the
restoration of the right to
hold public office. (Art. 36, Revised
Penal Code)
Exceptions: (1) Where such right to
hold public office
is expressly
restored by the
terms of the
pardon (Art. 36,
RPC);
(2) When a
person is granted
pardon because
he did not commit
the offense
imputed to him
(Garcia v.
Chairman, COA)
Rules governing effects of pardon:
(1) A public official who has been
convicted of a crime but has been
pardoned must secure a reappointment
before he / she can reassume his / her
former position. (Monsanto v. Factoran)
Note: Acquittal is the only
ground for automatic
reinstatement of a public
officer to his / her former
position.
(2) Pardon does not exempt the culprit its authority being limited to approving or reviewing
from payment of the civil indemnity the appointment in the light of the requirements of the
imposed upon him / her by the sentence. Civil Service Law. When the appointee is qualified
(Art. 36, par. 2, RPC) and all the legal requirements are satisfied, the CSC
has no choice but to attest to the
(3) A convicted public official who has appointment. (Luego v. CSC)
been pardoned is not entitled to backpay
and other emoluments due to him during Appointment is a political question.
the period of his suspension pendente
lite. (Monsanto v. Factoran) Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional
Discretion of appointing official appointment would lead to manifest injustice,
mandamus will lie to compel the appointing authority
Discretion, if not plenary, at least sufficient, should to issue said appointments. (Gesolgon v. Lacson)
thus be granted to those entrusted with
the responsibility of administering the officers
concerned, primarily the department heads. They Effectivity of Appointment
are in the most favorable position to determine who
can best fulfill the functions of the office thus Q: When does an appointment take effect?
vacated. Unless, therefore, the law speaks in the
most mandatory and peremptory tone, considering all A: Immediately upon its issuance by the appointing
the circumstances, there should be, as there has authority. (Rule V, Sec. 10, Omnibus Rules).
been, full recognition of the wide scope of such
discretionary authority. (Reyes v. Abeleda)
When appointment becomes complete, final and irrevocable
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested GENERAL RULE: An appointment, once
according to this best lights, the only condition being made,
that the appointee should possess the qualifications is
required by law. (Lapinid v. CSC) irrevoc
able
The only function of the CSC is to review the and
appointment in the light of the requirements of the not
Civil Service Law, and when it finds the appointee to subjec
be qualified and all other legal requirements have t to
been otherwise satisfied, it has no choice but to attest recons
to the appointment. It cannot order the replacement iderati
of the on.
Qualification: Where the assent,
appointee simply because it considers another confirmation, or approval of some other
employee to be better qualified. (Lapinid v. CSC) officer or body is
needed before the
To hold that the Civil Service Law requires that any appointment may
vacancy be filled by promotion, transfer, be issue and be
reinstatement, reemployment, or certification in that deemed complete.
order would be tantamount to legislative appointment
which is repugnant to the Constitution. The Exceptions: (1) When the
requirement under the Civil Service Law that the appointment is an
appointing power set forth the reason for failing to absolute nullity
appoint the officer next in rank applies only in cases (Mitra v. Subido);
of promotion and not in cases where the appointing
power chooses to fill the vacancy by transfer, (2) When there
reinstatement, reemployment or certification, not is fraud on the
necessarily in that order. (Pineda v. Claudio) part of the
appointee (Mitra v.
The CSC is not empowered to change the nature of Subido);
the appointment extended by the appointing officer,
9
 (3) Midnight (5) Secretary of Exec. Departments;
appointments Failure to qualify is deemed evidence of refusal (6) Bureau Directors;
of the office. (7) Register of Deeds;
A completed appointment vests a legal (8) Provincial governors;
right. It cannot be taken away EXCEPT for cause, It is a ground for removal: (9) City mayors;
and with previous notice and hearing (due process). (10) Municipal mayors;
If qualification is a (11) Any other officer in the service of the
condition precedent: Failure to government of the Philippines
Midnight appointments qualify ipso facto deemed whose appointment is vested in the
r President;
A President or Acting President is prohibited from ejectio (12) Any other officer whose duties, as
making appointments 2 months immediately before the next n of defined by law or regulation,
presidential elections and up to the end of his term. (Art. VII, Sec. the require presentation to him of any
15, 1987 Const.) office statement under oath

Exception: Temporary appointments to
executive positions when
continued vacancies
therein will prejudice public
service or endanger public
safety.
If not condition precedent: Failure is not ipso Q: Who are obliged to administer oaths in all
facto rejection instances, and not just in matters of official business?
Justifiable reasons for delay in qualifying A: (1) Notaries public;
include sickness, accident, and other fortuitous (2) Municipal judges;
events that excuse delay. (3) Clerks of court

ASSUMPTION AND TERM OR TENURE OF OFFICE
Qualification to Office
Appointment and Qualification to Office Distinguished
Appointment and qualification to office are separate and
distinct things. Appointment is the act of being designated to a
public office by the appointing authority. Qualification is the act
of signifying one's acceptance of the appointive position. This
generally consists of the taking / subscribing / filing of an official
oath, and in certain cases, of the giving of an official bond, as
required by law. (Mechem)
No one can be compelled to accept an appointment.
Lacson v. Romero
The appointment to a government post involves
several steps: (1) the President nominates; (b) the
Commission on Appointments confirms the appointment;
and (c) the appointee accepts the appointment by his
assumption of office. The first 2 steps are mere offers to
the post but the last step rests solely with the appointee
who may or may not accept the appointment.
Borromeo v. Mariano
A judge may not be made a judge of another district
without his consent. Appointment and qualification to
office are separate and distinct things. Appointment is the
sole act of the appointee. There is no power which can
compel a man to accept the office.
Effect of Failure to Qualify
The Omnibus Election Code provides that the Time of Taking the Oath of Office
officer must qualify (i.e., take his oath of office
and assume office) within 6 months from A public officer must take his oath of office before
proclamation. Otherwise, the position will be entering upon the discharge of his duties.
deemed vacant.
Requalification
Exception: If the
non-assumption of office is If a public officer is re-elected or re-appointed, he
due to a cause must take another oath and fulfill the other condition precedents
beyon before assuming office. The oath and other qualifications made
d his control. prior to assumption of his previous office will not be valid for
subsequent terms of office.
Qualification is significant because it
designates when security of tenure begins.
Giving of Bonds
Oath of Office
Persons required to give bond
An oath is an outward pledge whereby one formally calls upon
God to witness to the truth of what he says or to the fact that he Q: Who are the public officers generally required to
sincerely intends to do what he says. give a bond?
A: (1) Accountable public officers or those to whom
Although the law usually requires the taking of an oath, it is not
are entrusted the collection and custody
indispensable. It is a mere incident to the office and constitutes
of public money;
no part of the office itself. However, the President,
Vice-President and Acting President are required by the
(2) Public ministerial officers whose actions may
Constitution (Art. VII, Sec. 5) to take an oath or affirmation
affect the rights and interests of
before entering into the execution of their office. Such
individuals.
oath-taking is mandatory.
The bond is in the nature of an indemnity bond rather
Q: Who are authorized to administer oaths?
than a penal or forfeiture bond.
A: (1) Notaries public;
The bond is also an obligation binding the sureties
(2) Judges;
to make good the officers default. It is required not
(3) Clerks of court;
for the benefit of the office holder, but for the
(4) Secretary of House / Senate;
protection of the public interest and is designed to

10
 indemnify those suffering loss or injury by reason of Purpose of the Hold-Over Rule
misconduct or neglect in office. Where the term is fixed
by the Constitution: Congress has Public interest. It is to prevent a hiatus in the
no power to alter the term. government pending the time when a successor may be chosen
and inducted into office.
Effect of Failure to Give Bond within the Prescribed Period However, such term of office can be
shortened or extended Holding-Over Rules
If not condition precedent: Failure to give bond by the vote of the people ratifying a
merely constitutes a ground for constitutional amendment. (1) Where the law provides for it: The office
forfeitu does not become vacant
re of Where the term is not fixed: Congress may upon the expiration of the
the fix the terms of officers term if there is no successor
office; other than elected and qualified to
it those provided for in the Const. assume it. Incumbent will
is not f hold-over even if beyond
orfeitu Congress has the power to change the the term fixed by law.
re of tenure of officers holding offices created by
the it. However, if the term is lengthened and made to (2) Where the law is silent: Unless
office i apply to the incumbents, this could be tantamount to hold-over is expressly
pso a legislative appointment which is null and void. or impliedly
facto. prohibited, incumbent
When Term of Office Dependent upon "Pleasure of the may hold-over.
IF condition precedent: Failure to give bond within the President"
prescribed period (3) Where the Constitution limits
render Congress can legally and constitutionally make the the term of a public officer and
s the office tenure of certain officials dependent upon the pleasure of the does not provide for hold-over: Hold-over
vacant. President. (Alba v. Evangelista) is not permitted.

Where the office is held at the pleasure of the

Term and Tenure of Office appointing power and such appointing power can exercise the Commencement of Term of Office
power of removal at his mere discretion, the public officer may be
Term of Office and Tenure of Office Distinguished removed without notice or hearing. (Alba v. Evangelista) RULES:

Term of (1) Where the time is fixed: The term

Office Tenure of No Vested Interest in Term of Office will begin on the specified date.
Office
Public office is a privilege revocable by the (2) Where no time is fixed: The term
De sovereignty at will. An incumbent cannot validly object to the will generally begin on the date
jure De facto alteration of his term since he has no vested right in his o
office. (Greenshow v. U.S.) f the election or the
Fixed and definite period of time Period during which appointment.
the incumbent
during which the officer may actually holds Term of Office Not Extended by Reason of War
the office. It may be POWERS AND DUTIES OF PUBLIC OFFICERS
claim to hold the office as of right shorter than the term. There is no principle, law or doctrine by which the
term may be extended by reason of war. (Nueno, et al. v. Source of Government Authority: The people, the sovereignty.
Angeles)
Alba v. Evangelista Scope of Powers of a Public Officer

It is only in those cases in which the office is held at Doctrine of Holdover Lo Cham v. Ocampo
the pleasure of the appointing power and where the power of
removal is exercisable at its mere discretion that the officer may Q: What is the doctrine of hold-over? The duties of a public office includes all those which
be removed without notice or hearing. truly are within its scope:
A: A public officer whose term has expired or services have been
terminated is allowed to continue holding his office until his (1) those which are essential to the
Power of the Legislature to Fix and Change the Term of Office successor is appointed or chosen and had accomplishment of the main purpose for
qualified. (Mechem) which the office was created; or
RULES:

11
 (2) those which, although incidental or impropriety of the act Lamb v. Phipps
collateral, are germane to and serve to done (Lamb v.
promote the accomplishment of the Phipps) Auditors and comptrollers, as accounting officers,
principal purpose. are generally regarded as quasi-judicial
Can be Generally, NO. Generally, YES. officers. They perform mere ministerial duties only in
delegated? cases where the sum due is conclusively fixed by law
Territorial Extent of Powers of Public Officer Exception: When Exception: When or pursuant to law. Except in such cases, the action
the power to the law expressly of the accounting officers upon claims coming before
GENERAL RULE: Where a public officer is authorized by law substitute / delegate requires the act to be them for settlement and certification of balances
to perform the duties of his has been given performed by the found by them to be due, is not merely ministerial but
office at a particular place, officer in person and judicial and discretionary. Mandamus will therefore
action at a place not / or prohibits such not issue.
authorized by law is ordinarily delegation
invalid. (Note: This rule is
applicable to all public officers When is Only if the duty to do In all cases. Torres v. Ribo
whose duties are essentially mandamus something has been
local in nature, e.g. judges.) proper? delayed for an The powers of the Board of Canvassers are
unreasonable period quasi-judicial and therefore discretionary.
EXCEPTIONS: (1) Consuls; of time.
Aprueba v. Ganzon
(2) Police officers,
Is public Generally not liable Liable if duty
who may arrest Mandamus will not issue to control or review the
officer Exceptions: if there exercised contrary to
persons for crimes exercise of discretion of a public officer where the law
liable? is fraud or malice the manner
committed outside imposes on him the right or duty to exercise judgment
prescribed by law.
Philippine in reference to any matter in which he is required to
territory; act.

(3) Doctrine of Discretion; Discretionary Power The privilege of operating a market stall under
hot pursuit Ministerial Duty license is not absolute but revocable under an implied
lease contract subject to the general welfare clause.
Q: What is discretion?
Duration of Authority of Public Officers Mandamus never lies to enforce the performance
A: Discretion, when applied to public functionaries, means a of contractual obligations.
The duration of the authority of public officers is limited to that power or right conferred upon them by law of acting
term during which he is, by law, invested with the rights and duties of the officially in certain circumstances, according to the dictates
office. of their own judgment and conscience, uncontrolled by the Miguel v. Zulueta
judgment or conscience of others. (Lamb v. Phipps)
Construction of Grant of Powers Public officers may properly be compelled by
Q: What is a ministerial act? mandamus to remove or rectify an unlawful act if to
Strict construction. Will be construed as conferring only those do so is within their official competence.
powers which are expressly imposed or necessarily implied. A: A purely ministerial act is one which an officer
or tribunal performs in a given state of
Classification of Powers facts, in a prescribed manner, in Q: When will the writ of mandamus issue?
obedience to the mandate of legal
authority, without regard to or the A:
Discretionary Ministerial
exercise of his own judgment upon the
To correct a gross abuse of discretion, a
propriety or impropriety of the act
Definition Acts which require the Acts which are palpable excess of authority resulting in
done. A ministerial act is one to which
exercise of reason in performed in a given manifest injustice (Gesolgon v. Lacson);
nothing is left to the discretion of the
determining when, state of facts, in a person who must perform. It is a simple,
where, and how to prescribed manner, Where the question of constitutionality is
definite duty arising under conditions
exercise the power in obedience to the raised by the petitioner (Cu Unjieng v.
admitted or proved to exist and imposed
mandate of legal Patstone);
by law. It is a precise act, accurately
authority, without marked out, enjoined upon particular
regard to or the officers for a particular purpose. (Lamb v.
exercise of his own Q: When will the writ of mandamus never issue?
Phipps)
judgment upon the
propriety or A: (1) To control discretion;

12

exists;
Q: In filing a mandamus suit, when does a taxpayer not have
to show that he
results of such suit?
A:
Time of Execution of Powers
Ratification of Unauthorized Acts
(2) When another adequate remedy
If merely voidable: Can be
ratified and rendered valid Right to Salary or Compensation
(3) To enforce the performance of
contractual obligations, as in the GENERAL RULES:
issuance of a Where superior officers have authority to ratify the acts of
license / permit (Aprueba v. their inferiors, they are restricted to the ratification of acts A public officer is not entitled to compensation
Ganzon); and contracts which they themselves are empowered to for services rendered under an unconstitutional
make. statute or provision thereof.
It is not enough that the public officer acted beyond his Exception: If some other statute
powers in order that he may be held liable for damages. If provides otherwise.
has any legal or special interest in the the act committed is reasonably related to his duties and
the officer was in good faith, he will not be held liable. If no compensation is fixed by law, the public
officer is assumed to have accepted the office
When the question is one of public right and the to serve gratuitously.
object of the mandamus is to procure the Government not estopped by the unauthorized or Illegal acts of officers
enforcement of a public duty, such as the After services have been rendered by a public
observance of the law. (Miguel v. Zulueta) officer, the compensation thus earned cannot
As between an individual and his government, the individual be taken away by a subsequent law. However,
cannot plead the void act of an official to shield him from he cannot recover salary for a period during
the demand of the government that he (the individual) fulfill which he performed no services.
an obligation which he has contracted with the government,
Where not indicated: Within a reasonable after the benefits accruing to him as a result of that One without legal title to office either by lawful
time obligation have been received. The government can appointment or election and qualification is not
neither be estopped nor prejudiced by the illegal acts of its entitled to recover salary or compensation
Where indicated: Merely directory servants. (Government v. Galarosa) attached to the office.
Exceptions: Hilado v. Collector One who intrudes into or usurps a public office
has no right to the salary or emoluments
(1) When there is something A tax circular issued on a wrong construction of the attached to the office.
in the statute which law cannot give rise to a vested right that can be invoked by
shows a different intent a taxpayer.
(Araphoe City v. Union Compensation not an element of public office
Pac);
Accountability and Responsibility of Public Officers and Employees Compensation is not indispensable to public office. It
(2) Where a disregard of the is not part of the office but merely incident thereto. It is
provisions of the statute Norm of Performance of Duties sometimes expressly provided that certain officers shall receive
would injuriously affect no compensation, and a law creating an office without any
a public interest or Q: What are the standards of personal conduct provided for in provision for compensation may carry with it the implication that
public right; Sec. 4, RA 6713? the services are to be rendered gratuitously.
(3) When the provision is A: (1) Commitment to public interest; Salary, Wages, and Per Diems Defined and Distinguished
accompanied by (2) Professionalism;
negative words (3) Justness and sincerity;
importing that the acts (4) Political neutrality; Salary: time-bound
shall not be done in (5) Responsiveness to the public; Wages: service-bound
any other manner or (6) Nationalism and patriotism; Per Diem: allowance for days actually spent for
time than that (7) Commitment to democracy; special duties
designated. (8) Simple living
Salary of Public Officer Not Subject to Attachment
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS The salary of a public officer or employee may
not, by garnishment, attachment, or order of
If act was absolutely void Right to Office execution, be seized before being paid by him,
at the time it was done: Cannot be and appropriated for the payment of his debts.
ratified The right to office is the right to exercise the powers of the office
to the exclusion of others.
13
 Money in the hands of public officers, although (a) the government? RULES:
it may be due government employees, is not
liable to the creditors of these employees in the When the government continues to pay Pensions / gratuities are not considered as
process of garnishment because the sovereign the de facto officer even after the notice of additional, double, or indirect compensation.
State cannot be sued in its own courts except adjudication of the protest in favor of the de jure (Sec. 8, Art. IX-B, 1987 Constitution)
by express authorization by statute. Until paid officer.
over by the agent of the government to the By its very nature, a bonus partakes of an
person entitled to receive it, public funds cannot (b) A de facto officer? additional remuneration or compensation.
in any legal sense be part of his effects subject (Peralta v. Auditor General)
to attachment by legal process. (Director of When notice of adjudication of the title to
Commerce and Industry v. Concepcion) the de jure officer has been given, and the de facto An allowance for expenses incident to the
officer still continues to exercise duties and receive discharge of the duties of office is not an
Future or Unearned Salaries Cannot be Assigned salaries and emoluments. increase of salary, a perquisite, nor an
emolument of office. (Peralta v.
The salary or emoluments in public office are not (c) An intruder / usurper? Auditor-General)
considered the proper subject of barter and sale. (22 R.C.L.
541) At all instances.
Can Public Officer Recover Salary for Period of Suspension?
Agreements Affecting Compensation Held Void
Additional or Double Compensation Prohibited RULES:
An agreement by a public officer respecting his
compensation may rightfully be considered invalid as against Q: Differentiate additional compensation from If preventively suspended: N
public policy where it tends to pervert such compensation to a double compensation. O, he cannot recover salary.
purpose other than that for which it was intended, and to interfere
with the officer's free and unbiased judgment in relation to the Additional BUT: If he is
duties of his office. (This is usually with reference to Double subsequently exonerated,
unperformed services and the salary or fees attached thereto.) he can recover
There is only 1 position, salary for the period
Right to Recover Salary: De Jure Officer and De Facto Officer but There are 2 positions, and of his preventive suspension.
with additional functions
Monroy v. CA and del Rosario and the public officer is If he was given penalty of
getting additional removal from office, but
Where a mayor filed a certificate of compensation. e was YES, he can recover
candidacy for congressman then withdrew such moluments for both positions. because
certificate and reassumed the position of mayor, thus completely
preventing the vice-mayor from discharging the duties exonerated upon he was
of the position of mayor, the mayor should reimburse Q: Differentiate the 2 kinds of allowances. completely exonerated.
to the vice-mayor, as the right rightful occupant of the appeal:
position of mayor, the salaried which he had received. Commutable
Reimbursable If he was given penalty of
removal from office, but
Rodriguez v. Tan Given by virtue of the position The public his NO, because he was still
officer must present found
Where a duly proclaimed elective official whether or not he incurred a penalty
who assumes office is subsequently ousted in an receipt or certification under was commuted from guilty
election protest, the prevailing party can no longer expenses for which the allowance oath although the penalty was
recover the salary paid to the ousted officer. The that such amount was spent removal to mere
ousted officer, who acted as de facto officer during is given. Received as a matter in order suspension, reduced.
his incumbency, is entitled to the compensation, that the public officer or demotion:
emoluments and allowances which are provided for of right. may
the position. recover the money spent. If the suspension / removal
from office is
Exception: If there was fraud on the There is a conclusive presumption unjustified: YES.
part of the de facto officer which would that it was spent.
vitiate his election.
Q: In summary, when can payment of salaries corresponding
Q: When can the de jure officer recover from: to the period
when an employee was suspended be allowed?

14

A: (1) When he is found innocent of the
charges which
caused his suspension;
(2) When the suspension
is unjustified
(Abellera v. City of
Baguio)
ADMINISTRATIVE DISCIPLINE
Over Presidential Appointees
Olonan v. CSC
Administrative charges were filed against the PUP President and
other officers for violations of RA 3019 with the CSC. Olonan et.al. filed a
motion to dismiss the complaint contending principally that the CSC has no
jurisdiction to try and decide the case against her, she being a presidential
appointee. The CA upheld Olonans contention. There is nothing in the
provisions of the Constitution or the Administrative Code of 1987 which gives
the CSC the power to discipline presidential appointees like petitioner herein.
Sec. 47(1), Book V of EO 292 which provides that a complaint may be filed
directly with the CSC by a private citizen against a government official or
employee in which case it may hear and decide the case must be read
together with Sec. 48 which is entitled Procedure in Administrative Cases
Against Non-Presidential Appointees. The very subject of Sec. 48 implicitly
limits the scope of the CSCs jurisdiction in administrative cases to
non-presidential appointees and makes patent the conclusion that the
disciplinary authority over presidential appointees lies elsewhere the
President as appointing power himself.
Power to Appoint Implies the Power to Remove; Exceptions
a) Justices of the Supreme Court (by impeachment)
b) Members of Constitutional Commissions (by
impeachment)
c) Ombudsman (by impeachment)
d) Judges of inferior courts (disciplinary or removal
power vested
in the Supreme Court)
Bonifacio Sans Maceda v. Vasquez
A judge who falsifies his Certificate of Service is administratively
liable to the SC for serious misconduct and inefficiency under Sec. 1, Rule
140 of the Rules of Court and criminally liable to the State under the Revised
Penal Code for his felonious act. Where a criminal complaint against a judge
or other employee arises from their administrative duties, the Ombudsman
must defer action on said complaint and refer the same to the SC for
determination whether said judge or court employee had acted within the
scope of their administrative duties. Thus, the Ombudsman should first refer
the matter to the SC for determination of whether the certificates reflected the
true status of his pending case load, as the SC had the necessary records to
make such a determination. Art. VIII, Sec. 6 of the Constitution exclusively
vests in the SC administrative supervision over all courts and court
personnel.
Dolalas v. Ombudsman-Mindanao
Citing the Maceda case, the SC power of administrative
supervision over judges and court personnel is exclusive. Investigation by the
Ombudsman violates the specific constitutional mandate of the SC and
undermines the independence of the judiciary.
Over Non-Presidential Appointees
Grounds
Sec. 46(a), Book V of EO 292 provides that No officer or employee
in the Civil Service shall be suspended or dismissed except for
cause as provided by law and after due process. The grounds
constituting just cause are enumerated in Sec. 46(b).
Jurisdiction
Original complaints may be filed: (a) directly with the CSC or (b) with the
Secretaries and heads of agencies and instrumentalities, provinces,
cities and municipalities for officers and employees under their
jurisdiction.
Decisions of Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall be final in case the penalty
imposed is suspension for not more than thirty days or fine in an
amount not exceeding thirty days salary.
In case the decision rendered by a bureau or office head is appealable to
the Commission, the same may be initially appealed to the department
and finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same
shall be executory only after confirmation by the Secretary concerned.
Decisions imposing the penalty of suspension for more than thirty days
or fine in an amount exceeding thirty days salary, demotion in rank or
salary or transfer, removal or dismissal from office shall be appealable
to the CSC.
Procedure in Administrative Cases Against Non-Presidential Appointees
Administrative proceedings may be commenced against a
subordinate officer or employee by the Secretary or head of office of
equivalent rank, or head of local government, or chiefs of agencies, or
regional directors, or upon sworn written complaint of any other person.
For complaints filed by any other person
Complainant shall submit sworn statements covering his testimony and
those of his witnesses together with his documentary evidence.
If based on such papers a prima facie case is found not to exist, the
disciplining authority shall dismiss the case. Otherwise, he shall notify
the respondent in writing of the charges against the latter.
Respondent shall be allowed not less than seventy-two hours after
receipt of the complaint to answer the charges in writing under oath,
together with supporting sworn statements and documents. He shall
also indicate whether or not he elects a formal investigation if his
answer is not considered satisfactory.
If the answer is found satisfactory, the disciplining authority shall dismiss
the case.
Although a respondent does not request a formal investigation, one shall
nevertheless be conducted when from the allegations of the complaint
and the answer of the respondent, including the supporting documents,
the merits of the case cannot be decided judiciously without conducting
such an investigation.
The decision shall be rendered by the disciplining authority within thirty
days from the termination of the investigation or submission of the
report of the investigator, which report shall be submitted within fifteen
days from the conclusion of the investigation.
Either party may avail himself of the services of counsel and may require
the attendance of witnesses and the production of documentary
evidence in his favor through the compulsory process of subpoena or
subpoena duces tecum.
Appeals and Petition for Reconsideration
Appeals, where allowable, shall be made by the party adversely affected
by the decision within fifteen days from receipt of the decision unless a
petition for reconsideration is seasonably filed, which petition shall be
decided within fifteen days.
A petition for reconsideration shall be based only on any of the following
grounds:
(a) new evidence has been discovered which materially affects
the decision rendered;
(b) the decision is not supported by the evidence on record; or
(c) error of law or irregularities have been committee which are
prejudicial to the interests of the respondent.
Only one petition for reconsideration shall be allowed.
Mendez v. Civil Service Commission
The remedy of appeal in civil service cases may be availed of
only in a case where respondent is found guilty of the charges
against him. But when the respondent is exonerated of said
charges, as in this case, there is no occasion for appeal. PD 807
shows that it does not contemplate a review of decisions
exonerating officers or employees from administrative charges.
Party adversely affected by the decision in Section 39 of the
15
 Civil Service Law refers to the government employee against
whom case was filed.
Summary Proceedings
No formal investigation is necessary and the respondent may be
immediately removed or dismissed if any of the following
circumstances is present:
(1) When the charge is serious and the evidence if
guilt is strong;
(2) When the respondent is a recidivist or has been
repeatedly charged and there is reasonable
ground to believe that he is guilty or the present
charge; and
(3) When the respondent is notoriously undesirable.
Preventive Suspension
The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending an
investigation, if the charge against such officer or employee involves:
(a) dishonesty; or
(b) oppression or grave misconduct; or
(c) neglect in the performance of duty; or
(d) if there are reasons to believe that the respondent is
guilty of charges which would warrant his removal
from the service.
Maximum period for preventive suspension is ninety (90) days for
national officials. Under the Local Government Code, local appointive
and elective officials may be preventively suspended for only sixty (60)
days. If the case is filed in the Ombudsman, the latter may impose a
preventive suspension for a period of six (6) months.
When the administrative case against the officer or employee under
preventive suspension is not finally decided by the disciplining authority
within the period of ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service.
Penalty
In meting out punishment, the same penalties shall be imposed for
similar offenses and only one penalty shall be imposed in each case.
The disciplining authority may impose the penalty of removal from the
service, demotion in rank, suspension for not more than one year
without pay, fine in an amount not exceeding six months salary, or
reprimand. (Sec. 46(d), Book V, EO 292)
If the respondent is found guilty of two or more charges or counts, the
penalty imposed should be that corresponding to the most serious
charge or count and the test may be considered as aggravating
circumstances. (Sec. 17 of the Implementing Civil Service Rules and
Regulations)
A reprimand whether given by the Civil Service Commission or the head
of department or agency shall be considered a penalty. However, a
warning or an admonition shall not be considered a penalty. (Sec. 15 of
the Implementing Civil Service Rules and Regulations)
Tobias v. Veloso
Reprimand is a penalty. In this case, police chief is not
entitled to back wages as Sec. 16 of the Police Act of 1966
expressly provides that a suspended member of the police force
shall be entitled to his salary for the period of his suspension
upon exoneration. A reprimand is not equivalent to an
exoneration. It is more severe than an admonition, which is
considered a mild rebuke. A reprimand is administered to a
person in fault by his superior officer or a body to which he
belongs. It is an administrative penalty, although it may be slight
form of punishment.
NOTE: A warning is an act or fact of putting one on his guard;
an admonition is a
gentle or friendly reproof or a mild rebuke; while a
reprimand is a formal and public censure or a
severe reproof.
Removal of Administrative Penalties or Disabilities
In meritorious cases and upon recommendation of the CSC, the
President may commute or remove administrative penalties or
disabilities imposed upon officers or employees in disciplinary cases,
subject to such terms and conditions as he may impose in the interest
of the service.
Over Elective Officials
Impeachment
A verified complaint may be filed by any member of the House of
Representatives or by any citizen upon a resolution of endorsement by
any member thereof.
Complaint shall be included in the Order of Business within ten sessions
days and referred to the proper Committee within three sessions days
thereafter.
The Committee, after hearing, and by a majority vote of all its members,
shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolutions. The resolution
shall be calendared for consideration of the House within ten session
days from receipt thereof.
A vote of at least one-third of all the members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution.
In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the Philippines is on trial, the
Chief Justice of the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of two-thirds of all
the members of the Senate.
Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and
subject to prosecution, trial and punishment according to law.
No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
Local Elective Officials (Sec. 60-68, Local Government Code)
Grounds for Disciplinary Actions
(1) Disloyalty to the Republic of the Philippines
(2) Culpable violation of the Constitution
(3) Dishonesty, oppression, misconduct in office, gross
negligence, or
dereliction 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 days,
except in the case of members of the sangguniang
panlalawigan, sangguniang panlungsod,
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 in this Code and
other laws.
Procedure
16
(1) Verified Complaint component city or The penalty of suspension shall not exceed the unexpired term of the
municipality; or respondent or a period of six (6) months for every administrative
A verified complaint may be filed against any erring local elective official offense, nor shall said penalty be a bar to the candidacy of the
and submitted to the following disciplinary authorities: c) By the mayor: if the respondent is an respondent so suspended as long as he meets the qualifications
elective official of the required for the office.
Office of the President - elective official of a barangay.
province, a highly The penalty of removal from office as a result of an administrative
urbanized Preventive suspension may be imposed at any time after the issues are investigation shall be considered a bar to the candidacy of the
city, joined, when the evidence of guilt is strong, and given the gravity of the respondent for any elective position.
an offense, there is great probability that the continuance in office of the
indepe respondent could influence the witnesses or pose a threat to the safety Administrative Appeals
ndent and integrity of the records and other evidence.
compo Decisions in administrative cases may, within thirty (3) days from receipt
nent However, any single preventive suspension of local elective officials shall thereof, be appealed to the following:
city or not extend beyond sixty (60) days.
compo a) The sanggunian panlalawigan: in the
nent Furthermore, in the event that several administrative cases are filed case of decisions of:
city; against an elective official, he cannot be preventively suspended for
more than ninety (90) days within a single year on the same ground or (1) sangguniang panlungsod
Sangguniang panlalawigan - elective grounds existing and known at the time of the first suspension. of component cities; and
official of a municipality
Upon expiration of the preventive suspension, the suspended elective (2) sangguniang bayan;
Sangguniang panlungsod or official shall be deemed reinstated in office without prejudice to the
sangguniang bayan - elective continuation of the proceedings against him, which shall be terminated
barangay official within one hundred twenty (120) days from the time he was formally
notified of the case against him. b) The Office of the President: in the case of
(2) Answer decisions of:
Note: The respondent official preventively suspended from
Within seven (7) days after the administrative complaint is filed, the Office office shall receive no salary or compensation during such (1) the sangguniang
of the President or the sanggunian concerned, as the case may be, shall suspension; but upon subsequent exoneration and reinstatement, panlalawigan;
require the respondent to submit his verified answer within fifteen (15) days he shall be paid full salary or compensation including such (2) the sangguniang
from receipt thereof emoluments accruing during such suspension. panlungsod of highly
urbanized cities;
(3) Investigation Note: No preventive suspension shall be imposed within ninety (3) the sangguniang
(90) days immediately prior to any local election. If preventive panglungsod of
The investigation of the case shall be commenced within ten (10) suspension has been imposed prior to the 90-day period independent component
days after receipt of such answer of the respondent. immediately preceding local election, it shall be deemed cities.
automatically lifted upon the start of the aforesaid period.
However, no investigation shall be held within ninety (90) days Decisions of the Office of the President
immediately prior to any local election, and no preventive suspension shall be Rights of Respondent shall final and executory.
imposed within the said period.
The respondent shall be accorded full opportunity to appear and Execution Pending Appeal
Preventive Suspension defend himself in person or by counsel, to confront and cross-examine the
witnesses against him, and to require the attendance of witnesses and the An appeal shall not prevent a decision from becoming final or
Preventive suspension may be imposed: production of documentary process of subpoena or subpoena duces tecum. executory. The respondent shall be considered as having been placed under
preventive suspension during the pendency of an appeal in the event he wins
a) By the President: if the respondent is an Form and Notice of Decision such appeal. In the event the appeal results in an exoneration, he shall be
elective official of a province, paid his salary and such other emoluments during the pendency of the
a highly urbanized or an The investigation of the case shall be terminated within ninety (90) days appeal.
indepe from the start thereof.
ndent
compo Within thirty (30) days after the end of the investigation, the Office of the TERMINATION OF OFFICIAL RELATIONS
nent President or the sanggunian concerned shall render a decision in
city; writing stating clearly and distinctly the facts and the reasons for such Modes of Termination
decision.
b) By the governor: if the respondent is an 1) Expiration of Term or Tenure of Office
elective official of a

17
 a) End of a fixed term an ordinary mode of terminating official relations. What is President appointed Gray as Board secretary of the Peoples
b) End of Pleasure where one holds office at involved is not removal, or whether legal cause should precede Homesite and Housing Corporation but was later terminated
pleasure of appointing authority such removal, but the creation of an office and the tenure of such through a board resolution due to loss of confidence. SC
c) Loss of confidence in primarily confidential office, which has been made expressly dependent upon the reversed ruling that Grays appointment was a permanent one.
employment pleasure of the President. Although the President, EO 99, declared the position of secretary
to the board of a government corporation primarily confidential in
2) Reaching the age limit; Retirement Loss of Confidence in Primarily Confidential Employment nature, it does not follow that a board secretary whose
3) Bona fide abolition of office appointment was permanent may be removed from office without
4) Abandonment of office Hernandez v. Villegas a formal charge specifying the ground for removal and without
5) Acceptance of an incompatible office giving him an opportunity to be head. Such removal was illegal
6) Resignation Even officers and employees of the civil service occupying since there was no lawful cause for removal.
7) Resignation primarily confidential positions are subject to the constitutional
8) Removal for cause safeguard against removal or suspension except for cause. By declaring that the position is primarily confidential in nature,
9) Temporary appointments termination the President intended that the position be filled by an appointee
10) Recall Official and employees holding primarily confidential positions of unquestioned honesty and integrity. The act of Gray in
11) Impeachment continue only for so long as confidence in them endures. The reporting the boards act of mismanagement and misconduct was
12) Prescription of right to office termination of their official relation can be justified on the ground in consonance with the honesty and integrity required for the
13) Death of loss of confidence because in that case, their cessation from position.
14) Conviction of crime where disqualification is an accessory penalty office involves no removal but merely the expiration of the term of
15) Filing of certificate of candidacy office. Cario v. ACCFA
16) Performance of act or accomplishment of purpose for which the
office was created SC reversed termination of lawyers who were appointed as
permanent employees of ACCFA. That petitioners positions are
Ingles v. Mutuc primarily confidential is immaterial. The Constitution merely
excepts primarily confidential positions from the coverage of the
Expiration of Term or Tenure of Office The statement that an officer holding a position which is rule requiring appointments in the civil service to be made on the
primarily confidential in nature is subject to removal at the basis of merit and fitness as determined from the competitive
End of Fixed Term pleasure of the appointing power is inaccurate. Such statement exams, but does not exempt such positions from the operation of
(a mere obiter in the case of De los Santos v. Mallare), if the principle that no officer or employee in the civil service shall
Upon the expiration of the officers term, unless he is authorized by detached from the context of the decision in said case, would be be removed or suspended except for cause as provided by law,
law to hold over, his rights, duties and authority as a public officer inconsistent with the constitutional command to the effect that no which recognizes no exception.
must be ipso facto terminated. officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law, and it is
End of pleasure where one holds office at the pleasure of the appointing conceded that one holding in the government a primarily Reaching the Age Limit; Retirement
authority confidential positions is in the Civil Service.
Conditions for entitlement to retirement benefits (R.A. No. 8291)
Alba v. Evangelista This should not be misunderstood as denying that the
incumbent of a primarily confidential position holds office at the a) he has rendered at least fifteen (15) years of service;
President can validly terminate tenure of Vice Mayor of Roxas pleasure only of the appointing power. It should be noted b) he is at least sixty (60) years of age at the time of retirement; and
City as the office was created at the pleasure of the President. however, that when such pleasure turns into displeasure, the c) he is not receiving a monthly pension benefit from permanent total
What is involved here is not the question of removal, or whether incumbent is not removed or dismissed from office - his term disability.
legal cause should precede or not that of removal. What is merely expires in much the same way as an officer, whose right
involved here is the creation of an office and the tenure of such thereto ceases upon expiration of the fixed term for which he had Compulsory Retirement
office, which has been made expressly dependent upon the been appointed or elected is not and cannot be deemed
pleasure of the President. removed or dismissed therefrom, upon the expiration of said Unless the service is extended by appropriate authorities, retirement shall
term. The main difference between the former - the primarily be compulsory for an employee at least sixty-five (65) years of age with at
Fernandez v Ledesma confidential officer - and the latter is that the latters term is fixed least fifteen (15) years of service; Provided that if he has less than fifteen (15)
or definite, whereas that of the former is not pre-fixed but years of service, he may be allowed to continue in the service in accordance
The Charter of Basilan City provides that the President shall indefinite, at the time of his appointment or election, and with existing civil service rules and regulations.
appoint and may remove at his discretion any of the citys officers, becomes fixed and determined when the appointing power
including its Chief of Police, with the exception of the municipal expresses its decision to put an end to the services of the Retirement benefits
judge, who may be removed only according to law. The incumbent. When this event takes place, the latter is not
legislative intent is to make continuance in office dependent upon removed or dismissed from officer - his term has merely (1) the lump sum payment defined in RA No. 8291 payable at the time of
the pleasure of the President. Congress has the power to vest expired. retirement plus an
such power of appointment. Further, A public office is the right old-age pension benefit equal to the basis monthly pension
for a given period, either fixed by law or enduring at the pleasure Gray v. De Vera payable monthly for life, starting upon expiration of the give-year
of the creating power. Alba v. Evangelista states that the (5) guaranteed period covered by the lump sum; or
replacement is not removal, but an expiration of tenure, which is

18
(2) cash payment equivalent to eighteen (18) months of his basic
monthly pension plus monthly pension for life payable
immediately with no five-year (5) guarantee.
Beronilla v GSIS
The compulsory retirement of government officials and
employees upon reaching the age of 65 years is founded on
public policy which aims by it to maintain efficiency in the
government service and, at the same time, give to the retiring
public servants the opportunity to enjoy during the remainder of
their lives the recompenses for their long service and devotion to
the government, in the form of a comparatively easier life, freed
from the rigors, discipline and the exacting demands that the
nature of their work and their relations with their superiors as well
as the public would impose on them.
UP Board of Regents v. Auditor General
A BOR resolution extended the services of a UP professor for
another year. In the same year, he reached the age of 65. The
Auditor General questioned the legality of the resolution arguing
that the services rendered after the compulsory retirement age
were illegal and that he was not entitled to compensation. SC
upheld Auditor General ruling that as government employees, UP
professors are compulsorily covered by the Retirement Law
which creates a uniform retirement system for all members of the
GSIS.
Rabor v. CSC
At the age of 55, Rabor was hired as a government employee at
the Davao City Mayors Office in 1978. In 1991, he was advised
to apply for retirement. He was already 68 years old with 13 years
of service. He requested that his services be extended in order
that he may complete the 15-year service requirement. This was
denied and Rabor claimed that the doctrine enunciated in Cena v.
CSC should be applied in his case.
SC ruled that the Cena doctrine is not applicable. CSC Memo
Circular No. 27, s. of 1990 cited in the decision in Cena v. CSC,
provides that any request for the extension of service of
compulsory retirees to complete the 15-year service requirement
for retirement shall be allowed only to permanent appointees in
the career service who are regular GSIS members, and shall be
granted for a period not exceeding one (1) year. Cena further
stated that the authority to grant the extension was a
discretionary one vested in the head of the agency concerned. To
reiterate, the head of the government agency concerned is
vested with discretionary authority to allow or disallow extension
of service of an employee who has reached 65 years old without
completing 15 years of government service; this discretion to be
exercised conformably with CSC Memo Circular No. 27, s. of
1990.
Bona Fide Abolition of Office
As a general rule, absent some Constitutional prohibition, Congress may
abolish any office it creates without infringing upon the rights of the
officer or employee affected.
To consider an office abolished, there must have been an intention to do
away with it wholly and permanently.
Termination by virtue of the abolition of the office is to be distinguished
from removal. There can be no tenure to a non-existent office. After the
abolition, there is in law no occupant. In case of removal, there is an
office with an occupant who would thereby lose his position. It is in that
sense that from the standpoint of strict law, the question of any
impairment of security of tenure when there is an abolition of office
does not arise. The right itself disappeared with the abolished office as
an accessory following the principal.
Busacay v. Buenaventura
Busacay was laid off as toll collector when the bridge was
destroyed. However, the bridge was later reconstructed and
opened to the public with a new collector being appointed.
Busacay was ordered reinstated by the SC. To consider an office
abolished, there must have been an intention to do away with it
wholly and permanently. In the case at bar, there was never any
thought of not rebuilding the bridge. The collapse of the bridge
did not work to destroy but only to suspend the position of toll
collector thereon, and upon its reconstruction and re-opening, the
collectors right to the position was similarly and automatically
restored.
Manalang v. Quitoriano
The National Employment Service was established by R.A. No.
761 in lieu of the Placement Bureau. Quitoriano was appointed
as NES Commissioner in spite of the recommendation of the
Labor secretary to appoint Manalang who was the incumbent
Director of the Placement Bureau. SC held that appoint of
Quitoriano was valid. A removal implies that the office still exists.
R.A. No. 761, creating NES, expressly abolished the Placement
Bureau and, by implication, the office of the Director of the
Placement Bureau. Had Congress intended the NES to be a
mere enlargement of the Placement Bureau, it would have
directed the retention, not the transfer, of qualified personnel to
the NES. Manalang has never been NES Commissioner and thus
could not have been removed therefrom.
Abolition Must Be in Good Faith
As well settled to the rule that the abolition of an office does not amount
to an illegal removal or separation of its incumbent is the principle that, in
order to be valid, the abolition must be made in good faith, not for personal or
political reasons, and not implemented in violation of law.
Briones v. Osmea
Briones and Rosagaran were employees in the Office of the City
Mayor since 1937 and 1940, respectively, In 1956, the City
created 35 new positions and abolished 32, of which the
positions of Briones and Rosagaran were included. Consequently,
the two were terminated. SC held that the termination was not
valid. While abolition does not imply removal of the incumbent,
this rule is true only where the abolition is made in good faith. In
other words, the right to abolish cannot be used to discharge
employees in violation of the Civil Service law nor can it be
exercised for personal or political reasons.
Facundo v. Pabalan
There is no law which expressly authorizes a municipal council to
abolish the positions it has created. However, the rule is
well-settled that the power to create an office includes the power
to abolish it, unless there are constitutional or statutory rules
providing otherwise. But the office must be abolished in good
faith.
Cruz v. Primicias
As well settled as the rule that the abolition of an office does not
amount to an illegal removal of its incumbent is the principle that,
in order to be valid, the abolition must be made in good faith.
Where the abolition is made in bad faith, for political or personal
reasons, or in order to circumvent the constitutional security of
tenure of civil service employees, it is null and void. In the case at
bar, while 22 positions were abolished, 28 new positions with
higher salaries were simultaneously created. No charge of
inefficiency is lodged against petitioners. In truth and in fact, what
respondents sought to achieve was to supplant civil service
eligibles with men of their choice, whose tenure would be totally
dependent upon their pleasure and discretion.
Reorganization
Reorganization occurs where there is an alteration of the existing
structure of government offices or units therein, including the lines of control,
authority and responsibility between them to promote greater efficiency, to
remove redundancy of functions, or to effect economy and make it more
responsive to the needs of their public clientele. It may result in the loss of
ones position through removal or abolition of office. Reorganization of the
government may be required by law independently of specific constitutional
authorization. But in order to be valid, it must also be done in good faith.
Board of Directors of PCSO v. Alandy
Alandy was the incumbent Assistant General Manager of the
PCSO. In 1954, Resolution No. 314 was passed to reorganize
the PCSO. The position of Assistant General Manager was
converted to General Field Supervisor to which Alandy was
appointed. However, in 1955, the position of Assistant General
Manager was again created through Resolution No. 422 and a
different person was appointed to the position. SC invalidated the
new appointment and reinstated Alandy to his position as PCSO
Assistant General Manager. What occurred here is that the
position of Assistant General Manager was not abolished but was
19
 merely converted to another position. As such, the conversion
merely caused the giving of additional functions to Alandy, who
still held the position of Assistant General Manager.
Dario v. Mison
In pursuance of its reorganization policy, Pres. Aquino issued EO
127 in 1987 which provided for the reorganization of the Bureau
of Customs. Pursuant to EO 127, Commissioner Mison
terminated a total of 310 employees. Upon appeal, the CSC
ordered the reinstatement of 283 employees which was upheld
by the SC. The dismissal are not valid. There is no dispute that
pursuant to the Freedom Constitution and the various executive
orders issued by Pres. Aquino, the different departments of
government were authorized to carry on reorganization programs.
But the nature and extent of the power to reorganize were
circumscribed by the source of the power itself. The
Reorganization process is made up of two stages. The first stage,
which was effected pursuant to Proclamation 3, allowed removals
not for cause, and it ended on 02 February 1987. On the other
hand, the second stage is a continuing one from 02 February
1987 pursuant to the 1987 Constitution. The 1987 Constitution
requires that removal not for cause must be a result of
reorganization. Such removals must also pass the test of good
faith, a test obviously not required under the first stage which was
envisioned as a purgation.
A reorganization is carried out in good faith if it is for the
purpose of economy or to make the bureaucracy more efficient.
Good faith, as a component of reorganization under a
constitutional regime, is judged from the facts of each case. In the
case at bar, there was lack of good faith. Misons argument that
the reorganization is progressive would be valid only if it was
pursuant to Proclamation 3. However, in spite of her immense
revolutionary power, Pres. Aquino still promulgated EO 17 which
established
safeguards against the propensity that accompany
reorganizations and established the rule that dismissals should
be based on findings of inefficiency, graft and unfitness to render
public service. Assuming then that the reorganization in the first
stage was progressive and still valid, such dismissals as ordered
by Mison would still have to comply with the terms set down in
EO 17.
Rubenecia v. CSC
SC upheld power of the CSC to transfer jurisdiction over
administrative appeals from the Merit Systems Protection Board
to the CSC en banc itself. The 1987 Administrative Code made
clear that the MPSB was intended to be an office of the CSC like
any other of the other 13 offices in the CSC. In other words, the
MPSB was a part of the internal structure and organization of the
CSC. It was not an autonomous entity created by law and merely
attached for administrative purposes to the CSC. Thus, it was a
proper subject of organizational change which the CSC is
authorized to undertake under the present Civil Service law. The
resolution merely re-allocated to the CSC itself the functions of
the MPSB relating to the determination of administrative
disciplinary cases to streamline the operation of the CSC. It did
not purport to abolish the MPSB nor to effect the termination of
the relationship of public employment between CSC and any of
its officers or employees.
Abandonment of Office
A public office may become vacant ipso facto by abandonment and
non-user. When an office is once abandoned, the former incumbent
cannot legally repossess it even by forcible re-occupancy.
Abandonment must be total and absolute, and must be under such
circumstances as clearly to indicate an absolute relinquishment thereof.
Moreover, the officer should manifest a clear intention to abandon the
office and its duties. Abandonment by reason of acceptance of another
office, in order to be effective and binding, must spring from and be
accompanied by deliberation and freedom of choice, either to keep the
old office or renounce it for another. Temporary absence is not
sufficient.
Summers v. Ozaeta
Summers, a cadastral judge, assumed office as CFI judge due to
an ad interim appointment. However, the ad interim appointment
was disapproved and Summers now seeks to be reappointed as
cadastral judge. SC held that Summers voluntary acceptance of
the position of CFI judge amounted to a waiver of his right to hold
the position of cadastral judge during the term fixed and
guaranteed by the Constitution. He accepted and qualified for the
position of judge-at-large by taking the oath of office of
judge-at-large, and not merely of an acting judge-at-large. The
situation is one wherein he cannot legally hold two offices of
similar category at the same time.
Zandueta v. Dela Costa
When a public official accepts an appointment to an office newly
created or reorganized by law which new office is incompatible
with his former office, qualifies for the position, takes the
necessary oath, and executes acts inherent in the newly created
office, he will be considered to have abandoned the office he was
occupying by virtue of his former appointment and he cannot
question the constitutionality of the law by virtue of which he was
appointed.
Floresca v. Quetulio
Florescas refusal to assume his pre-war post as Justice of the
Peace and his subsequent acceptance of other employments
without any pretense on his part that he simultaneously continued
to perform the functions of the Justice of the Peace, clearly show
deliberate abandonment of the latter office.
Ortiz v. De Guzman
Ortiz allowed three years to elapse since he was ousted from
office without having taken any steps to reclaim his former office.
SC held that he cannot ask for reinstatement. A public employee
who voluntarily abandons his office for a long time is estopped
from asking for reinstatement. In order to constitute an
abandonment of office, it must be total, and under such
circumstances as to clearly indicate an absolute relinquishment.
Temporary absence is not sufficient where no statute fixes the
period beyond which the absence must continue. In all cases, the
officer should manifest a clear intention to abandon the office and
its duties. Yet, this intention may be inferred from his conduct. If
his acts and statements are such as to clearly indicate absolute
relinquishment, a vacancy will be thereby created and no judicial
determination is necessary. When once abandoned, the former
incumbent cannot legally repossess the office.
Madrid v. Auditor General
One claiming the right to a position in the civil service must
institute the proper proceeding within one year from the date of
separation, otherwise he is deemed to have abandoned his office
or even acquiesced or consented to his removal, and thus is not
entitled to seek reinstatement. The rationale is to inform the
Government of the rightful holder of the office and to prevent
payment of salary to both claimants.
Magana v. Auditor General
Having accepted the benefits accruing from the abolition of his
office, he is estopped from questioning its validity or deemed to
have waived the right to contest the same.
Villegas v. Subido
Villegas did not abandon his office as mayor of the City of Manila
when he assumed the position of Director of NAWASA because
he had been merely designated in an acting capacity and was not
appointed to the said position.
Tan v. Gimenez
The fact that, during the time his appeal was pending and was
thus deprived of his office and salary, an employee sought
employment in another branch of the government does not
constitute abandonment of his former position.
Acceptance of an Incompatible Office
He who, while occupying one office, accepts another office incompatible
with the first, ipso facto absolutely vacates the first office. That the
second office is inferior to the first does not affect the rule. And even
though the title to the second office fails as where election is void, the
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 rule is still the same, nor can the officer then regain the possession of
his former office to which another has been appointed or elected.
If the law or Constitution as an expression of public policy forbids the
acceptance by a public officer of any other office other than that which
he holds, it is not a case of incompatibility but of legal prohibition.
Incompatibility of offices exists where:
(a) 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 another, as to
render it improper for considerations of public policy
for one person to retain both.
(b) One is subordinate to the other and is subject in
some degree to its supervisory powers for in such
situation where both are held by the same person, the
design that one acts as a check on the other would be
frustrated.
(c) The Constitution or the law itself, for reasons of
public policy, declares the incompatibility even though
there is no inconsistency in the nature and functions
of the offices.
Exceptions to the Rule on Holding of Incompatible Offices
(a) Where the officer cannot vacate the first office by his own
act, upon the principle that he will not be permitted to
thus do indirectly what he could not do directly, as
where the law requires the approval of the provincial
board before a municipal official can resign.
(b) First office is held under a different
government from that which conferred the
second.
(c) Officer is expressly authorized by law to
accept another office.
(d) Second office is temporary.
Resignation
A resignation of a public officer need not be in any particular form, unless
some form is prescribed by statute. Ordinarily, it may either be in
writing or by parol. The conduct of an employee may properly be
regarded as constituting a resignation from the position held by him.
However, to constitute a complete and operative resignation of public
office, there must be an intention to relinquish a part of the term,
accompanied by the act of relinquishment.
The right of a public officer to resign is well recognized, even where it is
provided than an officer may hold over until election and qualification of
a successor. The right is sometimes recognized or secured by
constitution or statute.
The views in the various jurisdictions are conflicting in regard to what
constitutes acceptance of a resignation and whether an acceptance is
required. According to some authorities, no acceptance is necessary to
render a resignation effective, especially when the resignation is
unconditional and purports to take effect immediately. Indeed, it may be
provided by statute that the resignation of a public officer is to take
effect at the time of filing it.
However, many other cases take the view that to be effective, the
resignation must be accepted by competent authority. Without
acceptance, the resignation is nothing and the officer remains in office.
(63 Am Jur 2d., sec. 163)
Prof. Barlongay: Two (2) elements are necessary to constitute an
effective acceptance:
(1) intention to relinquish office coupled with actual
relinquishment; and
(2) acceptance of resignation.
Gonzales v. Hernandez
Gonzales filed a letter of resignation the pertinent portion of
which reads: x x x subject to the result of my appeal with the
Civil Service Board of Appeals, and to the provisions of the
Resolution of the Cabinet on July 17, 1939. SC held that
Gonzales, although his conditional resignation was
unconditionally accepted, cannot be considered as having
resigned from office. There was no resignation to speak of. To
constitute a complete and operative act of resignation, the officer
or employee must show a clear intention to relinquish or
surrender his position. In the case at bar, there was no such
intention as Gonzales resignation was subject to the result of his
appeal.
Ortiz v. COMELEC
Petitioners separation from the government as a result of the
reorganization ordained by former Pres. Aquino may not be
considered a resignation within the laws contemplation.
Resignation is defined as the act of giving up or the act of an
officer by which he declines his office and renounces the further
right to use it. To constitute a complete and operative act of
resignation, the officer or employee must show a clear intention
to relinquish his position accompanied by the act of
relinquishment and its acceptance by competent and lawful
authority. Based on the facts, petitioners resignation lacks the
element of clear intention to surrender his position. We cannot
presume such intention from the letter he sent placing himself at
the disposal of the President. He did not categorically state that
he was unconditionally giving up his position. It should be good to
note that said letter was actually a response to Proclamation No.
1 of Pres. Aquino calling all appointive public officials to offer their
courtesy resignation.
A courtesy resignation cannot properly be interpreted as resignation in
a legal sense. It just manifests the submission of a person to the will of
the political authority.
Prof. Barlongay: Courtesy resignation is not allowed in (1) career
positions and (2) non-career positions with security of tenure (i.e.
local elective officials).
Removal for Cause
No officer or employee of the civil service shall be removed or
suspended except for cause provided by law (Sec. 2(3), Art. IX, 1987
Constitution).
Grounds for Removal from Office
For Presidential appointees, Prof. Barlongay states that there is no
specific law providing for the grounds for their removal. Determination
of grounds is just a matter of practice and by analogy, the grounds
used for non-presidential appointees are made applicable.
For civil service officials and employees, see Sec. 46, Book V, E.O. No.
292 which provides for at least 30 grounds for disciplinary action.
For local elective officials, Sec. 60 of the Local Government Code
provides for the grounds where an elective local official may be
disciplined, suspended or removed from office.
Misconduct need not be in office in case of appointive officers.
Misconduct must be in office in case of elective officers.
Nera v. Garcia
Under the Revised Administrative Code, the rule in preventive
suspension provides that a Bureau Chief may suspend, with the
approval of the head of the department, any subordinate officer
or employee if he is charged with dishonesty, oppression or
grave misconduct or neglect in the performance of duty. The
same words are expressed in the civil service law. From these
provisions, suspension was proper even if the dishonest act was
not in the performance of his duty since under the Revised
Administrative Code and the Civil Service Law, dishonesty was
not qualified by the phrase in the performance of duty.
Ochate v. Ty Deling
The SC held that the facts alleged in the administrative charge,
as substantiated by the affidavits of the complainants, do not
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 justify the administrative proceedings instituted against the
petitioner and his suspension by the governor. The alleged libel
imputed to the mayor was not such misconduct even if the term
misconduct in office be taken in its broadest sense. The radio
broadcast in which the objectionable utterances were made had
nothing to do with his official functions and duties as a mayor.
Misconduct committed during a prior term, not a ground for dismissal
Pascual v. Provincial Board
The SC held that the weight of authority follows the rule which
denies the right to remove one from office because of misconduct
during a prior term. Offenses committed or acts done during a
previous term are generally held not to furnish cause for removal
and this is especially true where the Constitution provides that
the penalty in proceedings for removal shall not extend beyond
the removal from office and disqualification from holding office for
the term for which the officer was elected and appointed. The
underlying theory is that each term is separate from other terms
and that re-election to office operates as a condonation of the
officers previous misconduct to the extent of cutting off the right
to remove him therefore.
Aguinaldo v. Santos
SC held that Aquinaldo should not be removed from office. His
re-election to the position of Governor of Cagayan has rendered
the administrative case pending before it moot and academic.
Offenses committed or acts done, during a previous term are
generally not held to furnish cause for removal. The Court should
never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of
their right to elect their officers. When the people have elected a
man to office, it must be assumed that they did this with
knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if guilty of any. It is
not for the court, by reason of such fault or misconduct, to
practically overruled the will of the people.
The rule then is that a public officer cannot be removed for
administrative misconduct committed during a prior term, since
his reelection to office operates as a condonation of the officers
previous misconduct to the extent of cutting off the right to
remove him therefore. This rule, however, is not applicable to
criminal cases pending against the petitioner for acts he may
have committed during the failed coup.
Transfer from One Position to Another May or May Not Constitute
Violation of Security of Tenure
A transfer is a 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, in which case, the employee concerned shall be informed of
the reasons therefore. If the employee believes that there is no
justification for the transfer, he may appeal to the SC.
The transfer may be from one department or agency to another or from
one organizational unit to another in the same department or agency;
Provided, however that any movement from the non-career service to
the career service shall not be considered a transfer.
Lacson v. Romero
Lacson was appointed provincial fiscal of Negros Oriental by the
President. However, three years after, another person was
appointed to the same position while Lacson was nominated to
the position of provincial fiscal of Tarlac. Lacson never accepted
the appointment and did not assume the duties of said office. The
SC held that Lacson has the right to occupy the office of
provincial fiscal of Negros Oriental as he neither accepted nor
assumed the office of provincial fiscal of Tarlac and no one can
compel his to do so.
The intended transfer of Lacson to Tarlac, if carried out
without the approval of Lacson, would be equivalent to a removal
from his office in Negros Oriental. The reason is that a fiscal is
appointed for each province and Lacson could not legally hold
and occupy the two posts of fiscal of Tarlac and Negros Oriental
simultaneously. Therefore, to be a fiscal of Tarlac must mean his
removal from office in Negros.
Since the transfer in the case at bar is considered a removal,
such should be for cause in order for the other person to legally
occupy the office in Negros. There was no cause for Lacsons
removal. He therefore remains as fiscal of Negro.
Termination of Temporary Appointment
Quitiquit v. Villacorta
The appointment being temporary in character, the same can be
terminated at pleasure by the appointing power.
Ferrer v. de Leon
One holding an office in a temporary capacity may be ousted at
anytime with or without cause.
What determines character of appointment
Hojilla v. Marino
The controlling factor in determining the character of the
appointment is the appointment itself. Even if a position is
permanent, if the appointment is made temporary, the
appointment is determinative. What is determinative is not the
nature of the office (permanent or temporary), but the nature of
the appointment.
One appointed to a position of another who was illegally suspended or
dismissed, holds it in temporary capacity and must yield to the latter.
The reason for this is that there was no valid termination.
Recall
The Congress shall enact a local government code which shall provide
for a more responsive and accountable local government structure
instituted through a system of decentralization with effective
mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987
Constitution)
Procedure for recall is provided in Sections 69-75 of the Local
Government Code.
Garcia v. COMELEC
SC upheld initiation of recall through the Preparatory Recall
Assembly. Recall is a mode of removal of a public officer by the
people before the end of his term of office. The peoples
prerogative to remove a public officer is an incident to their
sovereign power, and in the absence of constitutional restraint,
the power is implied in all government operations. There are two
reasons why a Preparatory Recall Assembly is allowed: (1) to
diminish the difficulty of initiating recall through direct action of the
people; (2) to cut down on expenses. Moreover, the Constitution
does not provide for any particularly mode of initiating recall
elections. Initiation by the Preparatory Recall Assembly may be
considered as initiation of recall by the people, although done
indirectly through representatives. In any event, the composition
of the Preparatory Recall Assembly is politically neutral, so loss
of confidence cannot be said to be inspired by difference in
political party affiliation.
Prescription of Right to Office
Unabia v. City Mayor
No reinstatement is possible in the case at bar. Even if the
removal was void for lack of cause, Unabia filed his petition for
reinstatement with the CFI after a delay of one year and fifteen
days. Any person claiming a right to a position in the civil service
is required to file his petition for reinstatement within one year,
otherwise he is deemed to have abandoned his office. Reason is
public policy and convenience, stability in the public service.
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 Prof. Barlongay: The one-year period is the prescriptive period to claim
public office (whether through quo warranto or otherwise). The
one-year period presupposes judicial action, not administrative action.

Filing of Certificate of Candidacy

Sec. 66 of the Omnibus Election Code states that any person

holding appointive public offices or positions, including active AFP
members, is considered ipso facto resigned from office by the mere
filing of certificate of candidacy.

Only the moment and act of filing are considered. Once the certificate is
filed, the seat is forever forfeited and nothing, save a new election or
appointment, can restore the ousted official.

Note: The following provisions have been repealed by Sec. 14 of R.A.

9006 (Fair Election Act of 2001):

Sec. 67 of B.P. 881 which states that any

elective official, whether national or local,
running for any office OTHER than one
which he is holding in a permanent
capacity, except for President and Vice
President, shall be considered ipso facto
resigned from office by the mere filing of a
certificate of candidacy.

The first proviso of Sec. 11 of R.A.

8436 which states that "Any elective
official, running for any officer other than
one which he is holding in a permanent
capacity, except for President and
Vice-President, shall be considered ipso
facto resigned upon the start of the
campaign period."

Performance of Act or Accomplishment of Purpose for which the Office

was Created

Performance of act or accomplishment of purpose renders

office functus officio.

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