LAW ON PUBLIC OFFICERS

A. GENERAL PRINCIPLES

PUBLIC OFFICE – the right, authority or duty, created and conferred by law, by which for
a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some sovereign power of government to be exercised by him for
the benefit of the public. (Sec. 32, Chapter 9, Revised Administrative Code 1987)

Public office is a public trust: Public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.” (Section 1, Article XI, 1987 Constitution)

Essential Elements of a Public Office

a. Created by the Constitution, a law, or an ordinance authorized by law;

b. A delegation of some portion of the sovereign power;
c. Powers and functions are defined by the Constitution, law, or legislative authority;
d. Duties pertaining thereto are performed independently, without control a superior
power;
e. Continuing and permanent in nature. (De Leon)

Characteristics of a Public Office

A. Public office is a public trust created in the interest and for the benefit of the public.
This requires that all government officials and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. (Lim vs Arce, A.M. No. P-89-312, January 9,
1992)
B. Public Office is not a property.
public office is personal to the incumbent or appointee thereto. Hence, it is NOT
TRANSMISSIBLE to his heirs upon his death.
 A public office is not property within the constitutional guarantees of due process. It is a
public trust or agency. Public officers are mere agents and not rulers of the people, no man
has a proprietary or contractual right to an office. (Commission on Elections v. Cruz, G.R.
No. 186616, November 20, 2009)

 Applying the doctrine of actio personalis moritur cum persona (a personal right of action
dies with the person), upon the death of the incumbent, no heir of his may be allowed to
continue holding his office in his place. (Castro vs. Commission on Elections G.R. No.
125249, February 7, 1997)

Exceptions: (When public office is property):

0 In quo warranto proceedings relating to the question as to which of the two persons is
entitled to a public office; When the dispute concerns one’s constitutional right to security of
tenure, public office is deemed analogous to property in a limited sense. (Lumiqued v.
Exevea, G.R. No. 117565, November 18, 1997)

C. No vested right in a public office.

GENERAL RULE: Public office is not property under the due process clause. There is no
vested right to a public office. [De Leon]

EXCEPTION: Public office is analogous to property in a limited context and due process
may be invoked when the dispute concerns one‘s constitutional right to security of tenure.
(Lumiqued v. Exevea, G.R. No. 117565; November 18, 1997)

Creation of Public Office

a. By the Constitution;
b. By A tribunal or body to which the power to create the office has been delegated;
c. By authority of law.

GENERAL RULE: The creation of a public office is primarily a legislative function.

The power to create a public office may be delegated by Congress, subject to the
requirements of a valid delegation of legislative powers.

EXCEPTION: Where the office is created by the Constitution itself.

The Sandiganbayan is not a constitutional court (or public office) but a constitutionally
mandated court. It was created by statute and not the Constitution, hence Congress may limit
its powers and jurisdiction. (Garcia v. Sandiganbayan, G.R. 114135, October 7,1994)

Modification and Abolition of Public Office

GENERAL RULE: The power to create an office includes the power to modify or abolish it.
(Hence, the power to modify or abolish an office is also primarily legislative.)

EXCEPTION: Where the Constitution prohibits such modification/abolition.

Public officer is an individual vested with public office

 A person who holds public office. Any person who, by direct provision of law, popular
election or appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches, public duties as an employee, agent or subordinate
official, of any rank or class shall be deemed to be a public officer. (Art. 203, Revised
Penal Code)
 Includes elective and appointive officials and employees, permanent or temporary,
whether in the classified, unclassified or exempt service, receiving, compensation, even
nominal, from the government as defined in the preceding subparagraph. (Sec. 2, R.A.
3019, Anti-graft and Corrupt Practices Act, 1960)
 The most important characteristic which distinguishes an office from an employment is
that the creation and conferring of an office involves a delegation to the individual of some
of the sovereign functions of the government, to be exercised by him for the benefit of the
public, and that the same portion of the sovereignty of the country, either legislative,
executive or judicial, attaches, for the time being, to be exercised for the public benefit.
Unless the powers so conferred are of this nature, the individual is not a public officer.
(Laurel v. Desierto, G.R. No. 145368, April 12, 2002)

Classification of Public Officers

Creation Constitutional or Statutory

Public Body Served National or Local

Branch of government to which their Executive, Legislative or Judicial

functions pertain
Nature of functions Civil or Military

Exercise of judgment or Discretion Discretionary or Ministerial

Legality of Title to Office De Jure or De Facto

Compensation Lucrative or Honorary

D. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE

a. By appointment: The act of designation by the officer, board, or body to whom that
power has been delegated of the individual who is to exercise the powers and functions of
a given office.

b. By election: The means by which the people choose their officials for a definite and fixed
period and to whom they entrust for the time being the exercise of the powers of the
government

c. Others:

 Succession by operation of law: when the office to which one succeeds is legally
vacated; or
 By direct provision of law: when the office is validly held in an ex-officio capacity by
a public officer

E. MODES AND KINDS OF APPOINTMENT

APPOINTMENT – the selection, by the authority vested with the power, of an individual
who is to perform the functions of a given office (Binamira vs Garucho, G.R. No. 92008 July
30, 1990). An act of designation by the executive officer, board, or body to whom that power
has been delegated, of the individual who is to exercise the duties and responsibilities of the
given position (Laxamana vs Borlaza, G.R. No. L-26965. September 20, 1972)

Nature of Appointment:

“Appointment is an essentially discretionary power and must be performed by the officer in

which it is vested according to his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred.”
(Luego v. CSC, G.R. No. 69137, August 5, 1986)

Appointment is generally an executive function

GENERAL RULE: Appointment to office is intrinsically an executive act involving the

exercise of discretion. (Concepcion v. Paredes, G.R. 17539, December 23, 1921)

EXCEPTION: Appointments requiring confirmation by the Commission on Appointments.

In such cases, the Commission on Appointments may review the wisdom of the appointment
and has the power to refuse to concur with it even if the President's choice possessed all the
qualifications prescribed by law. (Luego v. CSC, G.R. No. 69137, August 5, 1986)

Classification of Appointment

a. Permanent Appointment – extended to a person possessing the requisite qualifications,

including the eligibility required, for the position, and thus protected by the constitutional
guaranty of security of tenure. It implies the holding of the appropriate civil service
eligibility on the part of the appointee, unless the position involved requires no such
eligibility. Where the appointee does not possess the requisite eligibility, the appointment
is considered temporary.

 Regular Appointment – one made by the President while Congress is in session after
the nomination is confirmed by the Commission on Appointments and continues until
the end of term.
  Ad-interim Appointment – one made by the President while the Congress is not in
session, before confirmation by the Commission on Appointments, is immediately
effective, and ceases to be valid if disapproved or bypassed by the Com on
Appointments upon the next adjournment of Congress. It is a permanent appointment,
and its being subject to confirmation does not alter its permanent character.
(Pamantasan ng Luingsod ng Maynila v. Intermediate Appellate Court, G.R. No. L-
65439, November 13, 1985)

b. Temporary Appointment – an acting appointment; it is extended by law for the position,

and is revocable at will, without the necessity of just cause or a valid investigation.
(Maniebo vs. Court of Appeals, G.R. No. 158708, August 10, 2010)

Major Appointing Authorities

a. President
b. Civil Service Commission

President’s Power of Appointment: The President shall have the power to make
appointments during the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproved by the Commission on Appointments
or until the next adjournment of the Congress (Sec 16, Art VII, 1987 Constitution)
GENERAL RULE: The appointing power is the exclusive prerogative of the President,
upon which no limitation may be imposed by the Congress. (Rafael vs. Embroidery and
Apparel Control and Inspection Board, G.R. No. L-19978, September 29, 1967)

EXPECTION: Appointments which requires the concurrence of the Commission of

Appointments and the exercise of the limited power to prescribe the qualifications or
disqualifications of a given appointive office (Rafael vs. Embroidery and Apparel Control
and Inspection Board, G.R. No. L-19978, September 29, 1967)
Who may the President appoint?

The President shall appoint all the other officers of the Government whose appointments are
not otherwise provided by law and those whom he may be authorized by law to appoint,
except any restrictions which the Constitution may provide. When the law is silent as to who
is the appointing authority, it is understood to be the President of the Philippines. (Manalang
vs Quitoriano, G.R. No. L-6898, April 30, 1954)

Groups of officers whom the President shall appoint

1. As provided by the Constitution

a. Heads of the executive departments;

b. Ambassadors, other public ministers, and consuls;
c. Officers of the armed forces from the rank of colonel or naval captain
d. Other officers whose appointments are vested in him by the Constitution, such as:

i. Chairman and members of Commission on Elections, Commission on Audit, and

Civil Service Commission;
ii. Sectorial Representatives

2. All other officers of the Government whose appointments are not otherwise provided by
law;
3. Those whom the President may be authorized by law to appoint;
4. Officers of lower rank whose appointments the Congress may by law vest in the President
alone.
N.B.: Only the first group of appointees requires the consent of the Commission of
Appointments. (Agpalo, Law on Public Officers, 2005)

Modes of appointment made by the President:

a. Regular: Made by the President while Congress is in session after the nomination is
confirmed by the Commission on Appointments and continues until the end of the term.
b. Ad-Interim: One made by the President during the recess of Congress of officials whose
confirmation by the Commission of the Appointments in required by the Constitution.
This appointment is permanent until:

i. Disapproval by the Commission of Appointments; or

ii. Next adjournment of Congress.

Steps in the Appointing Process

1. For Regular Appointments:

a. Nomination by the President

b. Confirmation by the Commission on Appointments
c. Issuance of the commission
d. Acceptance by the Appointee
NOTE: In the case of ad interim appointments, the nomination, issuance of the appointment
and acceptance by the appointee precede the confirmation by the Commission on
Appointments.

2. For appointments which do not require confirmations:

a. Appointment by the appointing authority

b. Issuance of the Commission
c. Acceptance by the Appointee

NOTE: Acceptance of the appointee is an indispensable requirement for an appointment to

be valid.

N.B.: Where the appointment is to the career service of the Civil Service Commission, the
attestation by the CSC is required. An appointment becomes complete only when the last act
required of the appointing power is performed. Until the process is completed, the appointee
can claim no vested right in the office nor claim security of tenure. For the appointment to be
valid, the position must be vacant.

Appointments Requiring and Not Requiring Consent of the Commission on

Appointments (“Confirmation”)

a. Heads of the executive departments;

b. Ambassadors;
c. Other public ministers and consuls; (d)
d. Officers of the armed forces from the rank of colonel or nava captain; (e)
 e. Other officers whose appointments are vested in him by the Constitution (unless the
Constitution provides that “such appointments require no confirmation”). (Sec. 16[1],
Art. VII, 1987 Constitution)

F. ELIGIBILITY AND QUALIFICATION REQUIREMENT

ELIGIBILITY – the state or quality of being legally fit or qualified to be chosen and to
occupy the office. Eligibility is of a continuing nature and must exist both at the
commencement, and during the occupancy of an office.
QUALIFICATION – Endowment/act which a person must do before he can occupy a public
office. May be understood in two senses:

a. Endowment: refers to the qualities or attributes which make an individual eligible for
public office. It must be possessed at the time of appointment or election and
continuously for as long as the official relationship continues
b. Act: refers to the act of entering into the performance of the functions of the office.

General qualifications

a. Citizenship
b. Residence
c. Age
d. Educational attainment
 e. Civil Service
f. Right of suffrage
g. Political affiliation, in some cases

Authority to prescribe qualifications

1. When prescribed by the Constitution: Exclusive, unless the Constitution provides

otherwise.
2. When the office is created by statute: The Congress, generally, has plenary power ro
prescribe qualifications, but such must be:

a. Germane to the purpose of the office;

b. Not too specific, so as to refer to only one individual.

NOTE: The qualifications are continuing requirements and must be possessed not only at the
time of appointment, election, or assumption of office, but during the officer’s entire tenure.

In case of doubt, laws prescribing qualifications and disqualifications from office should be
liberally construed in favor of eligibility. (Agpalo, Comments on Omnibus Election Code,
1998)

Restrictions on the power of congress to prescribe qualifications:

 a. Congress cannot exceed its constitutional powers;
b. Congress cannot impose conditions of eligibility inconsistent with constitutional
provisions;
c. The qualification must be germane to the position ("reasonable relation" rule);
d. 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.
e. Congress cannot prescribe qualifications so detailed as to practically amount to making
a legislative appointment: it is unconstitutional and therefore void for being a
usurpation of executive power.

Qualifications of appointive constitutional officers

1. For the Chief Justice and Associate Justices of the Supreme Court

a. Natural born citizen of the Philippines;

b. At least 40 years old (at the time of appointment);
c. At least 15 years of experience as a judge of a lower court or engaged in the practice of
law in the Philippines; and
d. A person of proven competence and integrity, probity, and independence

2. For Chairmen and Members of the Civil Service Commission

a. Natural born citizen of the Philippines;

b. At least 35 years old (at the time of appointment);
c. Proven capacity for public administration; and
 d. Must not have been candidates for elective position in the elections immediately
preceding their appointment

3. For Chairmen and Members of the Commission on Elections

a. Natural born citizen of the Philippines;

b. At least 35 years old (at the time of appointment);
c. Holders of a college degree;
d. Must not have been candidates for elective position in the elections immediately
preceding their appointment;
e. Majority thereof including the chairman shall be members of the Philippine Bar; and
f. Engaged in the practice of law for at least 10 years

4. For Chairmen and Members of Commission on Audit

 a. Natural born citizen of the Philippines;
b. At least 35 years old (at the time of appointment);
c. Must not have been candidates for elective position in the elections immediately
preceding their appointment;
d. Professional attainment;
e. Certified Public Accountants;
f. Not less than 10 years of auditing experience;
g. Members of the Philippine Bar;
h. Engaged in the practice of law for at least 10 years; and
i. At no time shall all members of the commission belong to the same profession

5. For the Ombudsman and his deputies

a. Natural born citizen of the Philippines;

b. At least 40 years old (at the time of appointment);
c. Professional attainment;
d. A member of the Bar;
e. Specifically for the Ombudsman: At least 10 years of experience as a judge of a lower
court or engaged in the practice of law in the Philippines;
f. A person of proven competence and, integrity, probity, and independence; and
g. Must not have been candidates for elective position in the elections immediately
preceding their appointment

G. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

Disqualification to hold public office

Individuals who lack any of the qualifications prescribed by the Constitution or by law for a
public office are ineligible (i.e. disqualified from holding such office). [De Leon]
Authority to prescribe disqualifications
The legislature has the right to prescribe disqualifications in the same manner that it can
prescribe qualifications, provided the prescribed disqualifications do not violate the
Constitution.
General Disqualifications

 No candidate who lost in an election shall, within one year after such election, be
appointed to any office in the Government (Sec. 6, Art. IX-B, 1987 Constitution).
 No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure (Sec. 7[1], Art. IX-B, 1987, Constitution)
 Unless otherwise allowed by law or by the primary function of his position, no appointive
official shall hold any other position in Government (Sec 7[2], Art. IX-B, 1987
Constitution)
 In case of doubt, presumption is in favor of eligibility.

Specific disqualifications

 The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in the Constitution, hold any other office or
employment during their tenure. (Sec. 13, Art VII, 1987 Constitution)
 No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations of their subsidiaries, during his
term for which he was elected. (Sec. 13, Art. VI, 1987 Constitution; Adaza vs. Pacana,
G.R. No. L-68159, March 18, 1985)

A member of congress is disqualified to hold two classes of office:

1. Incompatible office – includes any kind of office or employment in the government, or

subdivision, agency, or instrumentality thereof, including GOCCs or their subsidiaries
during his term; and
2. Forbidden office – any office created or the emoluments of which have been increased
during the term for which he was elected, not merely during his tenure or period of actual
incumbency.

 The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions. (Sec. 12,
Art. VIII, 1987 Constitution; In Re: Manzano, A.M. No. 88-7-1861-RTC, October 5,
1988)
 No Member of a Constitutional Commission shall, during his tenure, hold any other office
or employment (Sec. 2, Art IX-A, 1987 Constitution). The same disqualification applies to
the Ombudsman and his Deputies. (Sec. 8, Art. XI, 1987 Constitution)
 The Ombudsman and his Deputies shall not be qualified to run for any office in the
election immediately succeeding their cessation from office. (Sec. 11, Art. XI, 1987
Constitution)
 Members of constitutional Commissions, the Ombudsman and his Deputies must not have
been candidates for any elective position in the election immediately preceding their
appointment. (Sec. 1, Art. IX-B; Sec. 1, Art IX-C; Sec. 1, Art IX-D; Sec. 8, Art. IX, 1987
Constitution)
 Members of Constitutional Commissions, the Ombudsman and his Deputies are appointed
to a term of seven (7) years, without reappointment. (Sec. 1[2], Art. IX-B; Sec. 1[2], Art
IX-C; Sec. 1[2], Art. IX-D; Sec. 11, Art XI, 1987 Constitution)
 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations. (Sec. 13, Art. VII, 1987 Constitution)

General prohibition on public officers

a. Sec. 7, Republic Act No. 6713 (or the Code of Conduct and Ethical Standards for
Public Officials and Employees) – that is, (a) Any financial or material interest in any
transaction requiring the approval of their office; (b) Outside employment and other
activities related thereto; (c) Disclosure and/or misuse of confidential information; and
(d) solicitation or acceptance of gifts;
b. Partisan political activity – an act designed to promote the election or defeat of a
particular candidate or candidates to a particular public office Under the 1987
Administrative Code, this prohibition does not include:

i. Expression of views on current political problems or issues;

ii. Mention of the names of the candidates for public office whom a public officer
supports;
iii. Does not apply to those holding political offices, but it shall be unlawful for them to
solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code; and
iv. Members of the Cabinet are exempt from this prohibition.

NOTE: The Administrative Code of 1987 has modified the restrictive provisions of the
Omnibus Election Code so that a public officer may express his views on current political
issues or mention of the name of their preferred candidate without committing an election
offense. However, solicitation of votes like distributing handbills for a particular candidate
is still electioneering, which is punishable under the Omnibus Election Code. (Agpalo,
Administrative Law, 2005)
c. Additional or double compensation (Sec. 8, Art. IX-B, 1987 Constitution)

EXCEPTIONS:

1. Those specifically authorized by law;

2. Pensions or gratuities (National Amnesty Commmission vs. Commission on Audit,
G.R. No. 156982, September 8, 2004).

d. Limitations on laborers: Laborers shall not be assigned to perform clerical duties;

e. Detail or Reassignment: No detail or re-assignment shall be made within three (3)
months before any election without approval of the Commission on Elections;
f. Nepotism: All appointments x x x made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited (Sec. 59, Subtitle A,
Title I, Book V, Administrative Code of 1987). As used in this section, one is guilty of
nepotism if an appointment is issued in favor of a relative within the third civil degree
of consanguinity or affinity of the appointing authority.
g. In the local government career service, the prohibition extends to the relatives of the
appointing or recommending authority, within the fourth civil degree of consanguinity
 or affinity. The nepotism rule covers all kinds of appointments whether original,
promotional, transfer and reemployment regardless of status including casuals and
contractual except consultants.” (Galeos vs. People of the Philippines, G.R. Nos.
174845-52, February 9, 2011)
h. Prohibition to strike;
i. Restriction against engaging in private business;
j. No officer or employee shall engage directly in any private business, vocation, or
profession or be connected with any commercial, credit, agricultural, or industrial
undertaking without a written permission from the head of Department; Provided, That
his prohibition will be absolute in the case of those officers and employees whose
duties and responsibilities require that their entire time be at the disposal of the
Government: Provided, further, That if an employee is granted permission to engage in
outside activities, the time so devoted outside of office hours should be fixed by the
chief of the agency to the end that it will not impair in any way the efficiency of the
officer or employee: And provided, finally, That no permission is necessary in the case
of investments, made by an officer or employee, which do not involve any real or
apparent conflict between his private interests and public duties, or in any way
influence him in the discharge of his duties, and he shall not take part in the
management of the enterprise or become an officer or member of the board of directors.
(Sec. 12, Rule XVIII, Revised Civil Service Rules; Abeto vs Garcesa, A.M. No. P-88-
269, December 29, 1995)

Prohibition on Nepotic Appointments

GENERAL RULE: The Civil Service Law prohibits all appointments in the national and
local governments or any branch or instrumentality thereof made in favor of the relative of:

a. appointing authority;
b. recommending authority;
c. chief of the bureau or office; or
d. person exercising immediate supervision over the appointee.
In the last two cases, it is immaterial who the appointing or recommending authority is. To
constitute a violation of the law, it suffices that an appointment is extended or issued in favor
of a relative of the chief of the bureau or office, or the person exercising immediate
supervision over the appointee (CSC v. Dacoycoy, GR 135805, February 29, 2000)

Relative: One who is related within the third degree of either consanguinity or of affinity.
[Sec. 59, Civil Service Law]

Exceptions: The prohibition on nepotic appointments in the Civil Service Law does not
apply if the appointee is:

a. person employed in a confidential capacity

b. teachers
c. physicians
d. member of the Armed Forces of the Philippines

H. POWERS AND DUTIES OF PUBLIC OFFICERS

The authority of public officers consists of those powers which are:

a. Expressly conferred upon him by act appointing him; and

b. Expressly annexed to the office by the law which created it, or some other law referring
to it.

Under the Doctrine of Necessary Implications, all powers necessary for the effective exercise
of the express powers are expressly granted.

AS TO NATURE: Ministerial vs. Discretionary Duty

A purely ministerial act or duty, in contradistinction to a discretionary act, is one which an

officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to
the mandate of legal authority, without regard to or the exercise of his own judgment, upon
the propriety or impropriety of the act done. If the law imposes a duty upon a public officer,
and gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. (Heirs of Spouses Venturillo vs. Quitain, 506 SCRA 102,
October 30, 2006)

MINISTERIAL DISCRETIONARY
As to discharge Discharge is imperative
and it must be done by the
public officer Public officer may do whichever
way he wants provided it is in
accordance with law and must
not be whimsical; otherwise it is
subject to judicial review.

As to Mandamus Can be compelled by Cannot be compelled by

mandamus mandamus except when there is
a grave abuse of discretion
Delegability Can be delegated Cannot be delegated, unless
otherwise provided by law.

JUDGMENT – a judicial function, the determination of a question of law. There is only one
way to be right.

DISCRETION - the faculty conferred upon a court or other officer by which he may decide
the question either way and still be right. (Asuncion vs. de Yriarte, G.R. No. 9321, September
24, 1914)

NOTE: But discretion, as exercised, is limited to the evident purpose of the act, i.e., sound
and legal discretion, not arbitrary, capricious or oppressive proceedings.

AS TO THE OBLIGATION OF THE OFFICER TO PERFORM HIS POWERS AND

DUTIES

A. MANDATORY

Powers conferred on public officers are generally construed as mandatory although the
language may be permissive, where they are for the benefit of the public or individuals.
PERMISSIVE

Statutory provisions define the time and mode in which public officers will discharge their
duties, and those which are obviously designed merely to secure order, uniformity, system
and dispatch in public business are generally deemed directory. If the act does not affect
third persons and is not clearly beneficial to the public, permissive words will not be
construed as mandatory.
AS TO THE RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATES

A. POWER OF CONTROL

It implies the power of an officer to manage, direct or govern, including the power to alter or
modify or set aside what a subordinate had done in the performance of his duties and to
substitute his judgment for that of the latter.

POWER OF SUPERVISION
Supervisory power is the power of mere oversight over an inferior body which does not
include any restraining authority over such body. A supervising officer merely sees to it that
the rules are followed, but he himself does not lay down such rules, nor does he have the
discretion to modify or replace them.

AUTHORITY OF PUBLIC OFFICERS

Authority of public officers consists of those which are:

a. expressly conferred by law;

b. incidental to the exercise of the powers granted; and
c. necessarily implied

Doctrine of necessary implication – all powers necessary for the effective exercise of the
express powers are deemed impliedly granted. Authority can be exercised only during the
term when the public officer is, by law, invested with the rights and duties of the office.

Constitutional duties of a public officer

 i. To be accountable to the people; to serve them with utmost responsibility, integrity,
loyalty and efficiency; to act with patriotism and justice; and to lead modest lives. (Sec.
1, Art. XI, 1987 Constitution).
ii. A public officer or employee shall, upon assumption of office and as often thereafter as
may be required by law, submit a declaration under oath of his assets and liabilities, and
net worth. It shall be disclosed to the public in a manner provided by law (Sec. 17, Art.
XI, 1987 Constitution).
iii. To owe the State and the Constitution allegiance at all times. (Sec. 18, Art. XI, 1987
Constitution).

General duties of a public officer

a. To obey the law;

b. To accept and continue in office;
c. To accept burden of office;
d. As to diligence and care: (a) Choice of subordinates, and (b) Supervision of
subordinates

Ethical duties of a public officer: As to outside activities, where personal interest is

involved, to act with civility.

Specific duties of a public officer

 a. Act promptly on letters and requests;
b. Submit annual performance reports;
c. Process documents and papers expeditiously;
d. Act immediately on public’s personal transactions; and
e. Make documents available to the public

Duty to make public records accessible to the public

GENERAL RULE: Public officials must make public documents accessible to and readily
available for the inspection by the public within reasonable hours and violation of this
provision makes public officials criminally liable. This rule implements the right of the
people to information of public concern under 1987 Constitution Article III Section 7.

EXCEPTION: State secrets of military, diplomatic, and similar matters. Availability of

access to a particular public record must be qualified by the nature of the information sought

Duty to make a statement of assets, liabilities, and net worth (SALN): Public officials and
employees have an obligation to accomplish and submit declarations under oath of, and the
public has the right to know, their assets, liabilities, net worth and financial and business
interests including those of their spouses and of unmarried children under eighteen (18) years
of age living in their households. (Sec. 8, Code of Conduct and Ethical Standards for Public
Officials and Employees)

Who should file a SALN?

a. Constitutional and national elective officials, with the national office of the
Ombudsman;
b. Senators and Congressmen, with the Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national executive officials with the
Office of the President;
c. Regional and local officials and employees, with the Deputy Ombudsman in their
respective regions;
d. Officers of the armed forces from the rank of colonel or naval captain, with the Office
of the President, and those below said ranks, with the Deputy Ombudsman in their
respective regions; and
 e. All other public officials and employees, defined in Republic Act No. 3019, as
amended, with the Civil Service Commission. (Sec. 8, RA 6713)

What must be included in the SALN?

a. real property, its improvements, acquisition costs, assessed value and current fair
market value;
b. personal property and acquisition cost;
c. all other assets such as investments, cash on hand or in banks, stocks, bonds, and the
like;
d. liabilities, and;
e. all business interests and financial connections. (Sec. 8, Code of Conduct and Ethical
Standards for Public Officials and Employees; Maruez vs. Judge Venancio Ovejera,
A.M. No. P-11-2903, Feb. 5, 2014)

When should the SALN be filed?: The documents must be filed: (a) within thirty (30) days
after assumption of office; (b)on or before April 30, of every year thereafter; and (c) within
thirty (30) days after separation from the service.

Mere misdeclaration of the SALN does not automatically amount to dishonesty

a. Only when the accumulated wealth becomes manifestly disproportionate to the public
officer’s or employee’s income or other sources of income, and the public officer or
employee fails to properly account or explain his other sources of income, does he
become susceptible to charges of dishonesty (Office of the Ombudsman vs. Racho, G.R.
No. 185685, January 21, 2011).
 b. Failure to disclose a spouse’s business interests and financial connections in the SALN
constitutes simple negligence (Presidential Anti-Graft Commission vs. Pleyto, G.R. No.
176058, March 23, 2011).

Duty to make divestment: A public official or employee shall avoid conflicts of interest at
all times. When a conflict of interest arises, he shall resign from his position in any private
business enterprise within thirty (30) days from his assumption of office and/or divest himself
of his shareholdings or interest within sixty (60) days from such assumption. The same rule
shall apply where the public official or employee is a partner in a partnership. The
requirement of divestment shall not apply to those who serve the Government in an honorary
capacity nor to laborers and casual or temporary workers (Section 9, RA 6713). In the absence
of any conflict of interest, divestment is NOT NECESSARY. (Agpalo, Administrative Law
and Law on Public Officer, 2005)

The Solicitor General’s duty to represent the government, its offices and instrumentalities and
its officials and agents – except in criminal cases or civil cases for damages arising from
felony – is mandatory. Although he has discretion in choosing whether or not to prosecute a
case or even withdraw therefrom, such discretion must be exercised within the parameters set
by law and with the best interest of the State as the ultimate goal.

G. RIGHTS OF PUBLIC OFFICERS

a. Right to office – just and legal claim to exercise powers and responsibilities of the public
office.

TERM – period during which the officer may claim to hold office as a right.

TENURE – period during which the officer actually hold office.

b. Right to salary – a personal compensation to be paid to him for services; it is generally a

fixed annual or periodical payment depending on the time and not on the amount of
services he may render. It is given to higher degree of employment.
 Where there is a de jure officer, a de facto officer who, in good faith, has possession of the
office and has discharged the duties thereof, is entitled to salary.
 The salary if a public officer cannot be subject to garnishment, attachment or order of
execution be seized before being paid to him, and appropriated to the payment of his
debts.
 Agreements affecting compensation are void as contrary to public policy.
 A de jure officer, upon establishing his title to the office cannot recover from the
public/government the amount so paid to the de facto officer for services performed by
him before the adjudication upon the title.

PER DIEM – allowance days actually spent in the performance of official duties

HONORARIUM – something given not as a matter of obligation, but in appreciation for

services rendered
FEE – payment for services rendered or on commission on moneys officially passing through
their hands

EMOLUMENTS – profits arising from the office, received as compensation for services or
which is annexed to the office as salary, fees, or perquisites.

c. Right of preference in promotion

PROMOTION – movement from one position to another with increase in duties and
responsibilities as authorized by law and usually accompanied by an increase in pay.

NEXT-IN-RANK RULE – the person next in rank shall be given preference in promotion
when the position immediately above his is vacated. But the appointing authority still
exercises his discretion and is not bound by this rule.

AUTOMATIC REVERSION RULE – the disapproval of the appointment of a person

proposed to a higher position invalidates the promotion of those in the lower position and
automatically restores them to their former positions.

d. Right to vacation and sick leaves

Elective local officials shall be entitled to the same leave privileges as those enjoyed by
appointive local officials, including the commutation and commutation thereof. (Sec. 81,
Local Government Code)

Officers and employees in the Civil Service shall be entitled to leave of absence, with or
without pay, as may be provided by law and the rules and regulations of the Civil Service
Commission in the interest of the service. (Sec. 60, Administrative Code of 1987)

e. Right to maternity or paternity leave

Respondent has been in the government service since November 16, 1990 and should
therefore be familiar with the Civil Service Law and Rules. Section 12, 13 and 14, Rule XVI
of the Civil Service Commission Resolution No. 91-1631 explicitly provide that only female
married employees in every instance of pregnancy and irrespective of its frequency can be
granted maternity leave. Said provisions state:

 Sec. 12. Married women in the government service who have rendered two (2) years or
more of continuous service, shall, in addition to the vacation and sick leave grant to
them, be entitled to maternity leave of sixty (60) days with full pay.
 For those who have rendered less than two (2) years of government service at the time
of the enjoyment of maternity leave, the computation of their maternity leave pay shall
be proportionate to their length of service.
 Sec. 13. Maternity leave shall be granted to female married employees in every instance
of pregnancy irrespective of its frequency.
 Sec. 14. When an employee wants to report back to duty before the expiration of her
maternity leave, she may be allowed to do so without refunding the commuted money
value of the unexpired portion of her maternity leave and she shall be paid the
 corresponding salary for the services rendered. (Concerned Employee vs. Nuestro, A.M.
No. P-02-1629, September 11, 2002)

PATERNITY LEAVE – the benefits granted to a married male employee allowing him not
to report for work for seven (7) days but continues to earn the compensation therefor, on the
condition that his spouse has delivered a child or suffered a miscarriage for purposes of
enabling him to effectively lend support to his wife in her period of recovery and/or in the
nursing of the newly-born child. (Sec. 3, Paternity Leave Act of 1996)
Conditions for entitlement of paternity leave benefits

1. he is employed at the time of delivery of his child;

2. he has notified his employer of the pregnancy of his wife and her expected date of
delivery subject to the provisions of Section 4 hereof; and:
3. his wife has given birth, suffers a miscarriage or an abortion. (Sec 3, Implementing
rules and Regulations of Republic Act No. 8187 for the Private Sector)

N.B.: Paternity leave is provided only to the first four pregnancies or miscarriages similar to
maternity leave.

f. Right to retirement pay

Retirement laws, in particular, are liberally construed in favor of the retiree because their
objective is to provide for the retiree’s sustenance and, hopefully, even comfort when he no
longer has the capability to earn a livelihood. The liberal approach aims to achieve the
humanitarian purposes of the law in order that efficiency, security, and well-being of
government employees may be enhanced. Indeed, retirement laws are liberally construed and
administered in favor of the persons intended to be benefited, and all doubts are resolved in
favor of the retiree to achieve their humanitarian purpose” (Government Service Insurance
System vs. De Leon, G.R. No. 186560, November 17, 2010)

g. Right to pension and gratuity

PENSION – regular allowance paid to an individual or a group individual by the government
in consideration of services rendered or in recognition or merit, civil or military.

GRATUITY – a donation and an act of pure liberality on the part of the state.

h. Right to reimbursement for expenses incurred in the due performance of his duty

A public officer who used a government vehicle is not entitled to, nor can he change, a
transportation allowance. (Domingo vs. Commission on Audit, G.R. No. 112371, October
7, 1998)

i. Right to longevity pay

j. Right to present complaints and grievances
k. Right to exercise the powers connected with the office
l. Right to self-organization: The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies for purposes not
contrary to law shall be abridged. (Section 8, Article III, 1987 Constitution)

Civil servants are now given the right to self-organized but they may not stage strikes (SSS
Employees Association vs. Court of Appeals, 175 SCRA 686, July 28, 1989)
LIABILITIES OF PUBLIC OFFICERS

GENERAL RULE: Public officers are not liable for injuries sustained by another as a
consequence of official acts done within the scope of his authority, except as otherwise
provided by law. A public office shall not be civilly liable for acts done in the performance of
his duties, unless there is a clear showing of bad faith, malice or negligence (Sec. 38[1],
Administrative Code 1987).
No subordinate officer or employee shall be civilly liable for acts done by him in good faith
in the performance of his duties. (Sec. 39, Chapter 9, Book 1, Administrative Code of 1987).

EXCEPTIONS:

a. Statutory liability under the Civil Code (Art. 27, 32 and 34, Civil Code);
b. When there is a clear showing of bad faith, malice or negligence (Sec 38, E.O. 292,
Chapter 9, Book 1, Administrative Code of 1987)
c. Liability on contracts;
d. Liability on tort; and
e. Under Sec. 24 of Local Government Code, local governments and their officials are not
exempt from liability for death or injury to persons or damage to property.

Presidential Immunity from Suit: While the President is immune from suit, he may not be
prevented from instituting suit.

Threefold Liability Rule: Wrongful acts or omissions of public officers may give rise to
civil, administrative, and criminal liability.

Official Immunity only protects public officials from tort liability for damages arising from
discretionary acts or functions in the performance of their official activities.
Liability of ministerial officers

a. NONFEASANCE – neglect or refusal to perform an act which is the officer’s legal

obligation to perform.
b. MISFEASANCE – failure to use that degree of care, skill and diligence required in the
performance of official duty.
 c. MALFEASANCE -doing through ignorance, inattention or malice, of an act which he
had no legal right to perform.

DOCTRINE OF COMMAND RESPONSIBILITY – A head of department or a superior

officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence or
misfeasance of his subordinates, unless he has actually authorized by written order the
specific act or misconduct complained of. (Sec. 38[3], Chapter 9, Book 1, Administrative
Code of 1987).

A superior officer is liable for acts of a subordinate when:

a. He negligently or willfully employs or retains unfit or incompetent subordinates;

b. He negligently or willfully fails to require subordinate to conform to prescribed
regulations;
c. He negligently or carelessly oversees business of office as to furnish subordinate an
opportunity for default;
d. He directed or authorize or cooperative in the wrong; and

e. Law expressly makes him liable.

GENERAL RULE: A superior officer shall be liable for acts of subordinate officers only if
he has actually authorized by written order the specific act or misconduct complained. They
are also liable for willful or negligent acts even if she acted under orders if such acts are
contrary to law morals, public policy and good customs.

EXCEPTION: All heads of office have to rely to a reasonable extent on their subordinates
and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a
department secretary entertains important visitors, the auditor is not ordinarily expected to
call the restaurant about the amount of the bill, question each guest whether he was present at
the luncheon, inquire whether the correct amount of food was served and otherwise
personally look into the reimbursement voucher’s accuracy, propriety, and sufficiency. There
has to be some added reason why he should examine each voucher in such detail. Any
executive head of even small government agencies or commissions can attest to the volume
of papers that must be signed. There are hundreds of document, letters and supporting paper
that routinely pass through his hands. The number in bigger offices or departments is even
more appalling. There should be other grounds that the mere signature or approval appearing
on a voucher to sustain a conspiracy charge and conviction. (Arias vs. Sandiganbayan, 180
SCRA 309, December 19, 1989)

Command Responsibility in Amparo Cases: The proceedings under the Rule on the Writ
of Amparo do not determine criminal, civil or administrative liability should not abate the
applicability of the doctrine of command responsibility, on the theory that this doctrine now
constitutes a principle of international law or contemporary international law in accordance
with the incorporation clause of the Constitution, Amparo proceedings determine:

1. Responsibility, or the extent the actors have been established to have participated in
whatever way, by action or omission, in an enforced disappearance, and as a measure of
the remedies this Court should craft, among them, the directive to file the appropriate
criminal and civil cases in the proper court against the responsible parties;

2. Accountability, or the measure of remedies that should be addressed to those:

a. who exhibited involvement in the enforced disappearance without bringing the level
of their complicity to the level of responsibility defined above;
b. who are imputed with knowledge relating to the disappearance and who carry the
burden of disclosure; and
c. who carry, but have failed to discharge, the burden of extra ordinary diligence in the
investigation of the enforced disappearance.
Thus, although there is no determination or criminal, civil or administrative liability, the
doctrine of command responsibility may, nevertheless, be applied to ascertain responsibility
and accountability within the foregoing definitions (Rodriguez vs. Macapagal-Arroyo, et al,
G.R. No. 191805, November 15, 2011).

2. Preventive Suspension and Back Salaries

Kinds of preventive suspension of government employees charged with offenses

punishable by removal or suspension

a. Preventive suspension pending investigation;

b. Preventive suspension pending appeal. If the penalty imposed by the disciplining
authority is suspension or dismissal and after review the respondent is exonerated.
(Civil Service Commission vs. Alfonso, G.R. No. 179452, June 11, 2009)

Preventive suspension pending investigation is not a penalty

It is a measure intended to enable the disciplining authority to investigate charges against

respondent by preventing the latter from intimidating or in any way influencing witnesses
against him. If the investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and the respondent will automatically be reinstated. If
after investigation, respondent is found innocent of the charges and is exonerated, he should
be reinstated. (Lastimosa vs. Vasquez, G.R. No. 116801, April 6, 1995)
The period of preventive suspension cannot be deducted from whatever penalty may be
imposed upon the erring officer (CSC Resolution No. 90-1066)

Periods for preventive suspension

 a. For local elective officials – 60 days (maximum) for single offense within a single year
for several offenses but not exceeding term of office.
b. For civil service officers and employees – 90 days (maximum)
c. Ombudsman may be suspended for 6 months.

 The proper disciplining authority may preventively suspend any subordinate officer under
his authority pending an investigation if the charge against such officer involves
dishonesty, oppression or grave misconduct, or neglect in the performance of a duty, or if
there are reasons to believe that the respondent is guilty of the charges which would
warrant removal from the service.
 If the investigation is not finished and a decision is not rendered within that period, the
suspension will be lifted and the respondent will automatically be reinstated. (The Board
of Trustees of the Government Service Insurance System vs. Velasco, G.R. No. 170463,
February 2, 2011)

Legal basis for an award of back salaries:

 Sec. 47, Book V of the Administrative Code of 1987: “An appeal shall not stop the decision
from being executor, and in case the penalty is suspension or removal, the respondent shall
be considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal.”
 This provision, however, on its face, does not support a claim for back salaries since it
does not expressly provide for back salaries during this period; our established rulings
hold that back salaries may not be awarded for the period of preventive suspension as the
law itself authorizes its imposition so that its legality is beyond question. To resolve the
seeming conflict, the Court crafted two conditions before an employee may be entitled to
back salaries:

a. The employee must be found innocent of the charges and;

b. His suspension must be unjustified.
The reasoning behind these conditions runs this way; although an employee is considered
under preventive suspension during the pendency of a successful appeal, the law itself only
authorizes preventive suspension for a fixed period is unjustified and must be compensated.
(Civil Service Commission vs. Cruz, G.R. No. 187858, August 9, 2011)

3. Illegal Dismissal, Reinstatement, and Back Salaries

 In the event the aspect of reinstatement is disputed, backwages, including separation pay,
shall be computed from the time of dismissal until the finality of the decision ordering the
separation pay. The finality of the decision cuts off the employment relationship and
represents the final settlement of the rights and obligations of the parties against each
other. Hence, backwages no longer accumulate upon the finality of the decision ordering
the payment of separation pay because the employee is no longer entitled to any
compensation from the employer by reason of the severance of his employment. Plainly, it
does not matter if the delay caused by an appeal was brought about by the employer or by
the employee. The rule is, if the Labor Arbiter's decision, which granted separation pay in
lieu of reinstatement, is appealed by any party, the employer-employee relationship
subsists and until such time when decision becomes final and executory, the employee is
entitled to all the monetary awards awarded by the Labor Arbiter. (C.I.C.M. Mission
Seminaries [Maryhurst, Maryheights, Maryshore and Maryhill] School of Theology, Inc.
vs. Perez, G.R. No. 220506, January 18, 2017)
 When an officer was unlawfully removed and was prevented for a time by no fault of his
own from performing the dutoies of his office, it was held that he might recover, and that
the amount that he had earned in other employment during his unlawful removal should
not be deducted from his unpaid salary. He may recover the full amount notwithstanding
that during the period of his removal, the salary has been paid to another appointed to fill
the vacancy unlawfully created.
 The “no-work-no-pay” principle does not apply where it has been sufficiently shown that a
public official was wromgfully prevented from entering the office and carrying out his
duties.
 If the illegal dismissal is found to have been made in bad faith by the superior officers,
then they will be held personally liable for the back salaries of the illegally dismissed
employee.
 The award of backwages is limited to a maximum of four (4) years and not to a full back
salaries from illegal termination up to reinstatement. (Constantino-David vs.
Pangandaman-Gania, G.R. No. 156039, August 14, 2003)

IMMUNITY OF PUBLIC OFFICERS

 It is well settled as a general rule that public officers of the government, in the
performance of their public functions, are not liable to third persons, either for the
misfeasance or positive wrongs, or for the nonfeasance, negligence or omissions of duty of
their official subordinates.
 The immunity of public officers from liability for the nonfeasance, negligence or
omissions of duty of their official subordinates and even for the latter’s misfeasance or
 positive wrongs rest upon obvious considerations of public policy, the necessities of the
public service and the perplexities and embarrassments of a contrary doctrine.

 This doctrine is applicable only whenever a public officer is in the performance of his
public functions. On the other hand, this doctrine does not apply whenever a public officer
acts outside the scope of his public functions.

Community vs. State Immunity

OFFICIAL STATE
IMMUNITY IMMUNITY
Consent Public officers
of the
government, in The state
the performance cannot be sued
of their public without its
functions, consent.
are not liable to
third persons,
either for the
misfeasance or
positive wrongs,
or for the
nonfeasance,
negligence or
omissions of
duty of their
official
subordinates.
Scope Limited in Has a broad
scope. Protects application.
only the public Protects the
official in the entire
performance of sovereign.
his
governmental
function.
Basis A protective Rests upon the
aegis for public principle that
officials against the king could
tort liability do no wrong.
arising from Protects the
discretionary entire
acts or functions government
in the from any
 performance of liability
their official arising from
duties. tort.
Nature Only a qualified Absolute
immunity. immunity
Protection
applies only to
activities within
the scope of
office that are
made in good
faith and are not
reckless,
malicious, or
corrupt.

When does official immunity cease to apply?

a. An officer exceeded his authority;

b. An officer is sued in his personal or private capacity for acts done beyond the scope of
his authority or for unlawful or tortious acts while discharging official function.

A. DE FACTO OFFICERS

DE FACTO OFFICER – one whose title to the office is presumptively legitimate or who
reasonably appears to be the officer he assumes to be although he really does not have valid
title in the position he is holding. An officer who assumed office under a color of a known
appointment or election. It is void because:

a. The officer was not illegible;

b. There was want of power in the election body
c. By reason of some defect or irregularity in its exercise.
 d. Such ineligibility, want of power, or defect unknown to the public.

A public officer or employee who assumed office under an INCOMPLETE

APPOINTMENT, even if such appointment is tolerated or acquiesced by superior officers
and even when the appointee had served for years. (Corpuz vs. Court of Appeals, G.R. No.
123989, January 26, 1998)

One who has the reputation or appearance of being the officer he assumed to be but who, in
fact, has no right to or title to the office he assumes to hold.

Elements of a De Facto Officer

1. Validly existing (de jure) office: The office occupied by the de facto officer must be
legitimate, except that there is some defect in the title of the officer holding it.

NOTE: There is no such thing as a de facto office under Constitutional law. There may be a
de facto officer in a de jure office, but there cannot be a de facto officer in a de facto office. If
what is defective is not the title to the office but the office itself, then the possessor thereof is
not a de facto officer.

2. Actual and physical possession of the office in good faith: The office must be actually
held by the de facto officer if his acts are to affect the public and third persons.

3. Color of title to the office

COLOR OF AUTHORITY – an authority derived from appointment, however irregular or

informal, so that the incumbent be not a mere volunteer.

There is color or title to the office in any of the following cases:

a. By reputation or acquiescence, the public, without injury, relies on the supposition that
he is the public officer that he purports to be. This is acquired usually when the
 individual has acted as an officer for such length of time that the public believes that he
is the public officer that he assumes to be.
b. Under a known and valid appointment or election, but the officer failed to conform to
the requirements imposed by law.
c. Under a known appointment or election, void because of the ineligibility of the officer,
or want of authority of the appointing or electing authority, or because of an irregularity
in his appointment or election, such ineligibility, want of authority or irregularity being
unknown to the public.
d. Under a known appointment or election pursuant to all unconstitutional law, before the
law is declared unconstitutional.

A general acquiescence by the public or a recognition by the public who deals with him
of his authority as a holder of the position

DE JURE DE FACTO
OFFICE OFFICER
Basis Takes Has
possession of possession of
an office a public office
based on based on
right. reputation.
Authority An officer Has
who in all possession
respects is and performs
legally the duties
appointed or under color of
elected and right without
qualified to being
exercise the technically
office. qualified in all
points of law
to act.
Removal Cannot be May be ousted
removed in a in a direct
direct proceeding
proceeding against him by
quo warranto.
Security of Enjoys Does not
tenure security of enjoy security
tenure. May of tenure. May
be removed be removed
from office from office
 only with just even without
cause. just cause.

Legal Effects of Acts of De Facto Officers

 The official acts of a de facto officer are just as valid for all purposes as those of a de jure
officer, so far as the public or third persons who are interested therein are concerned. The
principle is one founded in policy and convenience. (Tayko vs. Capistrano, G.R. No. L-
30188, October 2, 1928)
 The acts of the de facto public officers, insofar as they affect the public, are valid, binding,
and with full legal effect. The doctrine is intended not for the protection of the public and
individuals who get involved in the official acts of persons discharging the duties of a
public office. (Monroy vs. Court of Appeals, 20 SCRA 620, July 1, 1967)
 Acts of de facto officers are valid insofar as third parties are concerned.

Entitlement to Salaries

GENERAL RULE: Rightful incumbent may recover from de facto officer salary received
by latter during time of wrongful tenure even though latter is in good faith and under color of
title.

EXCEPTION: When there is no de jure public officer, de facto officer who is in good faith
has had the possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may, in an appropriate action, recover the salary,
fees, and other compensation attached to the office.

De Facto Officer vs. Usurper

DE FACTO USURPER
OFFICER
Color Of Has color of Has neither
right or title right or title lawful title or
to the office color of right
or title
Public Assumes to Simply
knowledge exercise assumes to act
of lack of functions as officer
 authority where public where the
does not public knows
know his lack he is such a
of title or usurper
authority
Removal May be Can be ousted
removed only at any time in
in a direct any
proceeding proceeding
against him
Validity of De facto Usurper’s acts
acts officer’s acts are absolutely
done in the null and void
exercise of
authority are
valid in so far
as the public
is concerned

TERMINATION OF OFFICIAL RELATION

A. Natural Causes

1. Expiration of the term/tenure of office

TERM - Period of time during which a public officer has the right to hold the public office.

TENURE – Period of time during which the public officer actually held office.

Expiration of term automatically terminates the services of a public officer, except as

otherwise provided by law. (Mendoza vs. Quisumbing, G.R. No. 78053, June 4, 1990)

Rule on Appointees: An appointment which has a definite period and is renewable for a
definite period EXPIRES when it is NOT RENEWED. It is not dismissal, but an expiration
of the term. (Felix vs. Buenaseda, G.R. No. 109704, January 17, 1995)

Rule on Primarily Confidential Positions

Where a person holds his position at the pleasure of the superior or subject to some
supervening event, his separation from office due to the happening of the contingency or by
will of the superior is also deemed an expiration of the term. (Pangilinan vs. Maglaya, G.R.
Nos. 104216, August 20, 1993)

The term may not be extended or shortened but tenure during which the member of the
Congress actually holds office may be shortened by circumstances within or beyond the
power of said officer.
Expiration of term or tenure vis-à-vis Hold-over

A public officer is entitled to hold office until successor is elected, or appointed, and has
qualified, except where the Constitution provides otherwise or where the Constitutional
provision on security of tenure will be violated.

It is usually provided by law that officers elected or appointed for a fixed term shall remain in
office not only for that term but until their successors have been chose and qualified.

When a public officer is placed on hold-over status, it means that his term has expired or his
services have terminated but that he should continue to hold his office until his successor is
appointed or chosen and has qualified. (Mendoza vs. Quisumbing, G.R. No. 78053, June 4,
1990)

Purposes:

1. To prevent public inconvenience because of a vacancy; and

2. To prevent a hiatus in the performance of public service; (Lecaros vs. Sandiganbayan,
G.R. No. 130872, March 25, 1999)

2. Reaching the age of retirement

 1. Members of Judiciary: 70 years of age.
2. Other government officers and employees: 65 years of age (Compulsory Retirement)

3. Optional retirement age under GSIS Act (Act No. 186)

a. Completion of 30 years of service upon reaching 57 years of age

b. 30 years of service, regardless of age
c. 25 years of service, regardless of age, provided the last 3 years of service are
continuous

The retiree has the option under which scheme he wants to be retired in order to give him the
best benefits. His choice BINDS the EMPLOYER. This is based on the principle that the
retirement statues must be construed as to give meaning and effect to their humanitarian
purposes. (Lopez vs. Court of Appeals, G.R. No. 104158, November 6, 1992)
4. Death or permanent disability

5. Acts or Neglect of Officers

a. Resignation – 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:

1. The officer or employee must SHOW A CLEAR INTENTION to surrender, renounce,

and relinquish the office;
2. Acceptance by competent authority. (Ortiz vs. Commission on Elections, G.R. No.
78957, June 28, 1988)

Competent authorities needed to effect a valid resignation

1. To Competent authority provided by law.

2. If law is silent and public Officer is appointed, tender to appointing officer.
3. If law is silent and public officer is elected, tender to officer authorized by law to call
election to fill vacancy:
 a. President and Vice President – Congress
b. Members of Congress – to their respective chambers
c. Governors, Vice governors, mayors and Vice Mayors of highly-urbanized cities and
independent component cities – to President
d. Municipal Mayors and Vice Mayors/City Mayors and Vice Mayors of component
cities – Provincial Governor;
e. Sanggunian Members – to Sanggunian concerned; and
f. Elective Barangay Official – to Municipal or City Mayors

Until the resignation is accepted, the tender or offer to resign is revocable, unless otherwise
provided by law. (Joson vs Nario, G.R. No. 91548, July 13, 1990)

Automatic Resignation upon filing of a certificate of candidacy: Any person holding a

public appointive office or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy (Sec. 66, Omnibus Election Code).Hence, rule is not applicable to those occupying
elective offices.

Once the certificate is filed, the seat is forfeited forever and nothing except a new election or
appointment can restore the ousted official. Thus, the withdrawal of the certificate and the
approval of COMELEC will NOT WORK TO REINSTATE the public officer to his former
position. (Monroy vs. Court of Appeals, G.R. No. L-23258, July 1, 1967)

b. Acceptance of an incompatible office

GENERAL RULE: Acceptance of a later position which is incompatible with the earlier one
operates to vacate the earlier position held. (Canonizado vs Aguirre, G.R. No. 133132,
February 15, 2001)

Ipso facto vacates the other: There is no necessity for any proceeding to declare or
complete the vacation of the first office.

EXCEPTION: Officers authorized by law to accept the other offices.

Test of Incompatibility

 Incompatibility proceeds from the nature and relations of the two positions to each other
as to give rise to contrariety and antagonism should one person attempt to faithfully and
impartially discharge the duties of one toward the incumbent of the other. (Canonizado vs.
Aguirre, G.R. No. 133132. February 15, 2001)
 Incompatibility may be created by Constitution or law. Thus, an elective official may not
hold another elective or appointive position simultaneously, without vacating the earlier
one in favor of the latter except when the Constitution or law permits. (Adaza vs. Pacana,
G.R. No. L-68159, March 18, 1985)

b. Abandonment of office – the voluntary relinquishment of an office by the holder with the
intention of terminating his possession and control thereof. (Canonizado vs. Aguirre, G.R.
No. 133132, February 15, 2001)

Essential elements of abandonment:

1. Intention to abandon;
2. An overt act by which the intention is carried into effect. (Canonizado vs. Aguirre, G.R.
No. 133132, February 15, 2001)

GENERAL RULE:

 A person holding a public office may abandon such office by non-use or acquiescence.
(Canonizado vs. Aguirre, G.R. No. 133132, February 15, 2001)
 Unauthorized and unexplained absence without leave may constitute abandonment of
office. (Tadeo vs. Daquiz, AM No. P-91-650, Jul 21, 1993)
 An employee permanently employed who accepts a temporary appointment to another
position is deemed to have abandoned the permanent position.

EXCEPTIONS:

1. Non-use of the office does not constitute abandonment when the non-performance of
functions results from temporary disability or from involuntary failure to perform.
(Canonizado vs. Aguirre, G.R. No. 133132. February 15, 2001);
2. Acceptance of designation in another office in ACTING CAPACITY doesn’t amount
to abandonment of the permanent position. (City of Manila vs. Subido, G.R. No. L-
25835, May 20, 1966)

6. Prescription of right to office

7. Failure to assume elective office within six (6) months from proclamation

B. ACTS OF GOVERNMENT

1. Removal – entails the ouster of an incumbent before the expiration of his term. It implies
that the office exists after the ouster. Another term used is dismissal.

Removal from office may be express or implied

 1. Appointment of another officer in the place of the incumbent operates as a removal in
the latter was notified.
2. The transfer of an officer or employee without his consent from one office to another,
whether it results in promotion or demotion, advancement or reduction in salary, is
equivalent to illegal removal or separation from the first office. (Gloria v. Court of
Appeals, G.R. No. 119903. August 15, 2000)
3. Demotion to a lower position with a lower rate of compensation is also equivalent to
removal if no cause is shown for it. (De Guzman v. Civil Service Commission, G.R. No.
101105, March 11, 1994)

It is the forcible and permanent separation of the incumbent from the office before the
expiration of his term (Ingles v. Mutuc, G.R. No. L-20390, November 29 1968)

Constitutional guarantee of security of tenure: No officer or employee of the civil service

shall be removed or suspended except for cause provided by law. (Sec.2[3], Art. IX-B, 1987
Constitution)

 Demotions and transfers without just cause are tantamount to removal

 Removal or resignation from office is not a bar to a finding of administrative liability.
(Office of the President vs. Cataquiz, G.R. No. 183445, September 14, 2011)
 Removal not for a just cause, or non-compliance with the prescribed procedure constitutes
a reversible error and entitles the officer or employee to reinstatement with back salaries
and without loss of seniority rights.

Extent of President’s Removal Power

a. With respect to non-career officers exercising purely executive functions whose tenure
is not fixed by law (i.e. members of the Cabinet), the President may remove them with
or without cause and Congress may not restrict such power.
b. With respect to officers exercising quasi-legislative or quasi-judicial functions (i.e.
members of the SEC), they may be remove only on grounds provided for by law to
protect their independence.
c. With respect to constitutional officers removable only by means of impeachment, and
judges of lower courts, they are not subject to the removal of the President.
d. With respect to civil service officers, the President may remove them at his pleasure
with or without cause.
2. Impeachment – the method of national inquest into the conduct of public men. It is
described as the most formidable weapon in the arsenal of democracy. (Cruz, Philippine
Political Law, 2002)

Purpose: To protect the people from official delinquencies or malfeasances. It is primarily

intended for the protection of the State, not for the punishment of the offender.

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on
impeachment for, and conviction of, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment. (Sec, 2, Art. XI, 1987 Constitution)

The House of Representatives has the sole power to initiate all cases of impeachment
while the Senate sits as a court for the trial of the impeachment cases. Judgment in cases
of impeachment shall not extend further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but the party convicted shall
nevertheless ne liable and subject to prosecution, trial and punishment, according to law.
(Sec. 3, Art. XI, 1987 Constitution)

3. Abolition of office: Must be made in good faith, with the clear intent to do away with the
office, not for personal or political reasons, and cannot be implemented in a manner
contrary to law. (Mendoza vs. Quisumbing, G.R. No. 78053, June 4, 1990)

 REORGANIZATION – takes place when there is an alteration of the existing

structure of government offices or units therein, including the lines of control,
 authority and responsibility between them. (Mendoza vs. Quisumbing G.R. No.
78053, June 4, 1990)

 As a general rule, reorganization is carried out in “good faith” if it is for the purpose
of economy or to make bureaucracy more efficient. In that event, no dismissal (in case
of a dismissal) or separation actually occurs that as it may, if the “abolition” takes
place and whatever “abolition” is done, is void ab initio. There is an invalid
“abolition” as where there is merely a change of nomenclature are bellied by the
existence of ample funds. (Department of Trade and Industry vs. Civil Service
Commission, G.R. No. 96739, October 13, 1993)

 Under Section 31, Book III of Executive Order No. 292, "the President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the
functions of other Departments or Agencies to the Office of the President provided it
is done in good faith. (Buklod ng Kawaning EIIB vs. Zamora, G.R. No. 142801-802,
July 10, 2001)
  Reorganization "involves the reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions." It alters the
existing structure of government offices or units therein, including the lines of control,
authority and responsibility between them.8 While the power to abolish an office is
generally lodged with the legislature, the authority of the President to reorganize the
executive branch, which may include such abolition, is permissible under our present
laws. (Canonizado vs. Aguirre G.R. No. 133132, January 25, 2000)

 The general rule has always been that the power to abolish a public office is lodged
with the legislature. This proceeds from the legal precept that the power to create
includes the power to destroy. A public office is either created by the Constitution, by
statute, or by authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that brought it into
existence. (Buklod ng Kawaning EIIB vs. Zamora, G.R. No. 142801-802. July 10,
2001)

EXCEPTION: The power to abolish a public office is belongs to Congress, the President, as
far as bureaus, agencies or offices in the executive department are concerned has the power of
control which may justify him to inactivate the functions of a particular office, or certain laws
may grant him the broad authority to carry out reorganization measures.

4. Conviction of a crime: When the penalties of perpetual or temporary absolute

disqualification or penalties of perpetual or temporary disqualification are imposed upon
conviction of a crime, termination of official relation results, for one of the effects of the
imposition of said penalties is the deprivation of the public office which the offender may
have held. Conviction means conviction in a trial court, It contemplates a court finding
guilt beyond reasonable doubt followed by a judgment upholding and implementing such
finding.
5. Recall – a method of removal prior to the expiration of the term of a public officer on
account of loss of confidence exercised by the registered voters of a local government unit.

Limitation on Recall

1. Any elective official may be subject of a recall election only once during his term of
office for loss of confidence; and No recall shall take place within one year from date
of the official’s assumption to office or one year immediately preceding a regular local
election.
2. Appointive and elective officials Not Deemed Resigned upon Filing of COC – Sec
13(3) of RA 9369 and Sec. 66 of BP 881, which makes an appointive official ipso facto
resigned from his office upon filing of COC, were declared unconstitutional. (Eleazar
vs. Quinto, G.R. No. 189698, February 22, 2010)

Equal protection clause violated: It creates a situation of obvious discrimination against

appointive officials who were deemed ipso facto resigned upon filing of COCs while elective
officials were not. The differential treatment was not germane to the purpose of the law.

Overbroad: It pertains to all civil servants holding appointive posts without distinction as to
whether they occupy high positions in government or not. And also, the provision is directed
to the activity of seeking any and all public offices, whether they be partisan or non-partisan
in character, whether they be in national, municipal or barangay level.

6. Prescription of the right to office

7. Failure to assume elective office six (6) months from proclamation

VACANCY – a situation when an office is empty and without a legally qualified incumbent
appointed or elected to it with a lawful right to exercise its powers and performs its duties.

Classifications of Vacancy
 a. Original – office is crated and no one has been appointed to fill it;
b. Constructive – incumbent has no legal right or claim to continue in office and can be
legally replaced by another functionary;
c. Accidental – incumbent having died, resigned, or removed, there is no one in ease
discharging the duties of the office; and
d. Absolute – term of an incumbent has expired, and the latter not having held over, no
successor is in being, who is legally qualified to assume the office.

THE CIVIL SERVICE (Article IX-B, 1987 Constitution)

Scope: The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies
of the government, including government-owned or controlled corporations with original
charters. (Sec 2[1], Art, IX-B, 1987 Constitution)

Appointments to the civil service

GENERAL RULE:Appointments in the civil service shall be made ONLY according to

merit and fitness. (Sec 2, Art, IX-B, 1987 Constitution)

EXCEPTIONS: Appointment to the following positions:

a. Policy Determining Position – one vested with the power of formulating a method of
action for the government or any of its subdivisions.
b. Highly Confidential Position– anoffice where the duties are not merely clerical. The
performance of which requires skill, judgment, trust, and confidence; and involves the
responsibility of the other which he represents.
c. Highly Technical Office – an office which requires skills or training in the highest
degree. (Quiason, Jr and Agpalo, The Civil Service Law, 1959)

NOTE: Entrance to any of these 3 offices DO NOT REQUIRE competitive examination or

civil service eligibility. (Agpalo, Law on Public Officers, 2005)

CLASSIFICATIONS OF POSITIONS IN THE CIVIL SERVICE

 a. Career Service
b. Non- career service

CHARACTERISTICS OF CAREER SERVICE(Cruz, Philippine Political Law, 2002)

b. Entrance based on merit and fitness to be determined as far as practicable by

competitive examination or highly technical qualifications;
c. Opportunity for advancement to higher career positions
d. Security of Tenure (Jocom vs Regalado, G.R. No. 77373, August 22, 1991)

Career service officers enjoy security of tenure as guaranteed under the 1987 Constitution
and the Civil Service Decree of the Philippines. The right to security of tenure is not
tantamount to immunity from dismissal. As long as the dismissal was for a legal cause and
the requirements of due process were met, the law will not prevent their removal from office.
(Lacson vs. Executive Secretary, G.R. Nos. 165399, etc., May 30, 2011)

Positions included in the career service:

1. Open Career Positions – where prior qualification in an appropriate examination is

required.
2. Close Career Positions (e.g. scientific or highly technical in nature)
3. Career Executive Service (e.g. undersecretaries, bureau directors)
4. Career Officers, other than those belonging to the Career Executive Service, who are
appointed by the President, such as those in the Foreign Office.
5. Positions in the Armed Forces, although governed by a separate merit system.
6. Personnel of government-owned or controlled corporations with original charters
7. Permanent Laborers, whether skilled, semi-skilled, or unskilled.
CHARACTERISTIC OF NON-CAREER SERVICE

a. Entrance on bases other than the usual test of merit and fitness utilized for the career
service
b. Tenure is limited to: (a)a period specified by law; (b)co-terminus with that of the
appointing authority or subject to his pleasures
c. Enjoys the Constitutional guarantee that they cannot be removed except for cause and after
due hearing. (Jocom vs. Regalado, G.R. No. 77373, August 22, 1991)

Positions included in the non-career service

a. Elective officials and their personal and confidential staff

b. Department heads and officials of Cabinet rank who hold office at the pleasure of the
President and their personal and confidential staff
c. Chairmen and members of commissions and boards with fixed terms of office, and their
personal and confidential staff
d. Contractual personnel or those whose employment in the government is in accordance
with a special contract to undertake a specific work or job.

GENERAL RULE: All officers and employees in the career and non-career service are
appointive.

EXCEPTION: Elective officials in the non-career service. (Agpalo, Law on Public Officers,
2005)

Requisites of a valid appointment(Conde vs. National Tobacco Corp, G.R. No. L-11985
January 28, 1961)

a. Appointing authority must be vested with power to make the appointment at the time
the appointment is made;
  An appointment extended by one who has no power to appoint is null and void.
(Niere vs. Court of First Instance of Negros Occidental, G.R. No. L-30324,
November 29, 1973)

b. Appointee possess all the qualifications and none of the disqualifications prescribed by
the law for the position: The qualifications and lack of disqualifying traits must be
reckoned at the time of the appointment and during the incumbency;

c. The position is vacant

 There is vacancy when the there is no person lawfully authorized to assume and
exercise at present the duties of the office. (Ferrer vs. Hechanova, G.R. No. L-
24418, January 25, 1967)
  Where there is no vacancy, no valid appointment. (Morata vs. Court of Appeals,
G.R. No. L-18978, May 25, 1964)

d. Appointment has been approved by the Civil Service Commission: The appointing
authority is required to submit to the Civil Service Commission ALL
APPOINTMENTS which require its approval within 30 days from issuance, otherwise
the appointment becomes effective 30 days thereafter.

e. Appointee accepts the appointment by taking the oath and entering the discharge of the
office.

 Absence of any one of the requisites makes the appointment incomplete or invalid.
(Provincial Board of Cebu vs. Presiding Judge of Cebu, G.R. No. 34695 March 7,
1989)

POWERS AND LIMITATIONS OF THE CSC

 a. Determine whether or not the proposed appointee is qualified to hold the position
b. Determine whether or not the rules pertinent to the process of appointment are followed
(Luego vs CSC, G.R. NO. L-69137August 5, 1986)

Approval of the CSC = Attestation

 Attestation is required merely as a check to assure compliance with the civil service laws
(Luego vs. Civil Service Commission, G.R. NO. L-69137, August 5, 1986)
 The power of the CSC is limited to reviewing appointments on the basis of the Civil
Service Law.
 In the case of Province of Camarines Sur vs. Court of Appeals, G.R. No. 103125,
May 17, 1993 The Civil Service Commission has no authority to: (a) Revoke the an
appointment simply because it believes that a protestant is better qualified to occupy the
disputed office; (b) Make the appointment itself; (c) Direct the appointing authority to the
change the employment status of an public employee; (d) Inquire into the right of the
appointing officer to hold office – this is the function of a quo warranto proceeding. But it
may inquire whether the office itself or the appointing officer possesses the prerogative to
issue the appointment. (City of Manila vs. Subido, G.R. No. L-25835, May 20, 1966)

When does an appointment take effect?

The appointment shall take effect immediately upon its issuance by the appointing authority.
It shall remain effective until it is disapproved by the Civil Service Commission.

 Appointee accepts the appointment by taking the oath and entering the discharge of the
office.
 Acceptance is indispensable to the complete the appointment. (Garces vs. Court of
Appeals, G.R. No. 114795, July 17, 1996)
 The taking of the oath and the entry into the discharge of the duties of the office amount to
an acceptance of the position. (Garces vs. Court of Appeals, G.R. No. 114795, July 17,
1996)
 Taking of the oath is indispensable. (Agpalo, Law on Public Officers, 2005 Edition)
 A public officer or employee who does not take the oath may be considered only a de
facto officer and he enjoys no guarantee of security of tenure. (Lecaros vs.
Sandiganbayan, G.R. No. 130872, March 25, 1999)

1. Appointments to the Civil Service

Permanent
Appointment
Extended to a person
possessing the
requisite qualifications,
including the eligibility
required for the
position, and thus
protected by the
constitutional guaranty
of security of tenure.
(Achaoso vs Macaraig,
G.R. No. 93023,
March 13, 1991)

Temporary
(Acting
Appointment) Extended to one who
may not possess the
requisite qualifications
or eligibility required
by law for the position,
and is revocable at
will, without the
necessity of just cause
or a valid
investigation.

Purpose: No person
may be appointed to a
public office,
 unless he or she
possesses the requisite
qualifications.
The exception to the
rule is where,
in the absence of
appropriate eligibles,
he or she may be
appointed to merely in
a temporary capacity.
Such a temporary
appointment is not
made for the benefit of
the appointee. Rather,
an acting or temporary
appointment seeks to
prevent a hiatus in the
discharge of official
functions by
authorizing a person to
discharge the same
pending the selection
of a permanent
appointee. (Civil
Service Commission
vs. Darangina, G.R.
No. 167472, January
31, 20017)

Temporary
Appointment for
fixed period The appointment may
be revoked only at the
expiration of the period
or, if revocation is
made before such
expiration, the same
has to be for a valid
and just cause.

The essence of an
appointment in an
acting capacity is its
temporary nature. It is
a stop-gap measure
intended to fill an
office for a limited
 time until the
appointment of a
permanent occupant to
the office. (Pimentel
vs. Ermita, G.R. No.
164978, Oct. 13, 2005)

2. Personnel actions

Security of Tenure Provision of the Constitution: No officer or employee in the civil

service shall be suspended to dismissed, except for cause provided by law and after due
process or after he shall have been given the opportunity to defend himself. (Sec 2[3], Art IX-
B, 1987 Constitution)

 “For cause”:Reasons which the law and sound public policy recognize as sufficient
warrant for suspension or removal. A legal cause and not merely causes which the
appointing power in the exercise of discretion may deem sufficient. (Tria vs Sto. Tomas,
G.R. No. 85670, July 31, 1991)
 Security of tenure attaches once an appointment is issued and the completed and the
appointee assumes the position. (Mauna vs Civil Service Commission, G.R. No. 97794,
May 13, 1994)

Personnel Action Amounting to illegal removal (Agpalo, Law on Public Officers, 2005)

A. Extending Temporary Appointment

 As a rule, an acting appointment is temporary and revocable at the pleasure of the

appointing power. But extending temporary appointment to a permanently appointed
employee to another position cannot be used to oust an incumbent. (Gayatao vs. Civil
Service Commission, G.R. No. 93064, June 22, 1992)
  The rule is that a permanent employee remains a permanent employee unless he is
validly removed. Extending to him a temporary appointment and thereafter removing
him is illegal. (Gabriel vs. Domingo, G.R. No. 87420, September 17, 1990)

B. Transfer or Re-assignment -movement from one position to another which is equivalent

in rank, level and salary, without a break in service.

 The law authorizes the re-assignment of an employee from one organizational unit to
another in the same agency, provided that the re-assignment shall not involve a
reduction in rank, status, and salary. (Fernandez vs. Sto Tomas, G.R. No. 116418,
March 7, 1995)
 A transfer that results in promotion or demotion, advancement or reduction or a
transfer that aims to lure the employee away from his permanent position, cannot be
done without the employee’s consent. For that would constitute removal from office.
(Sta. Maria vs. Lopez, G.R. No. L-30773, February 18, 1970)

 What is prohibited are transfers which are tantamount to illegal removals (i.e. cases of
unconsented transfers)(Bentain vs. Court of Appeals, G.R. No. 89452, June 9, 1992)

C. Detail – a temporary assignment of personnel.

GENERAL RULE: A temporary assignment of personnel is permissible even without the

employee’s prior consent. (Bentain vs. Court of Appeals, G.R. No. 89452, June 9, 1992)
Cases when detail is not allowed:
 a. Transfer is a preliminary step toward an employee’s removal
b. It is a scheme to lure him away from his permanent position
c. Detail was designed to indirectly terminate his service
d. Detail was designed to indirectly force his resignation (Bentain vs. Court of Appeals,
G.R. No. 89452, June 9, 1992)

A detail or reassignment that is indefinite and results in the reduction in rank, status, and
salary is, in effect, a constructive dismissal from service. (Bentain vs. CA, G.R. No. 89452,
June 9, 1992)

D. Shortening of term

A law or ordinance shortening the term of office of a public officer or employee, when at the
time of his appointment, he knew he would hold office during good behavior, amounts to a
plain and simple removal without cause and hearing. (Tapales vs. President of the University
of the Philippines, G.R. No. L-17523, March 30, 1963)

E. Control power doesn’t extend to removal

The power of control of the President over all officers and employees of the executive
department refers to the power to alter, modify, or nullify, or set aside what a subordinate
officer has done in the performance of his duties and to substitute the judgment of the former
for that of the latter. It does not extend to the power to remove an officer or employee in the
executive department. (Ang-Sngco vs. Castillo, G.R. No. L-17169, November 30, 1963)
F. Demotion

The movement from one position to another involving the issuance of an appointment with
diminution in duties, responsibilities, status, or rank which may or may not involve reduction
in salary.

G. Denial of optional retirement and refusal to reinstate

 Optional retirement under RA 1616 may be allowed to any official or employee,

appointive or elective, regardless of age and employment status, who has rendered at least
20 years of service- the last 3 years of which are continuous.
 If the application for optional retirement is denied, the official is entitled to reinstatement
with backwages. The head of the office may not refuse reinstatement on the ground that
the official has committed acts of misconduct. (Commission on Human Rights vs. Civil
Service Commission, G.R. No. 101207, October 1, 1993)
 Disciplinary cases involving “personnel action” affecting employees in the civil service
including “appointment through certification, promotion, transfer, reinstatement,
reemployment, detail, reassignment, demotion and separation”, as well as employment
status and qualification standards, are all within the exclusive jurisdiction of the CSC.
(Mantala vs. Salvador, G.R. No. 101646, February 13, 1992)

NOTE: These personnel action infringes on the Constitutional right for security of tenure.

ACCOUNTABILITY OF PUBLIC OFFICERS

IMPEACHMENT – a criminal proceeding against a public officer, before a quasi – judicial

political court, instituted by written accusation called

Articles of Impeachment (Agpalo, Law on Public Officers, 2005), whose purpose is to

protect the people from official delinquencies or malfeasances. The penalties attached to
impeachment are merely incidental to the primary intention of protecting the people as a body
politic (De Leon, The Law on Public Officers and Election Law, 2008).

Who may be impeached:

 a. President;
b. Vice-President;
c. Justices of the Supreme Court;
d. Chairmen and Members of the Constitutional Commission;
e. Ombudsman

Grounds for Impeachment (Sec 2, Art. XI, 1987 Constitution)

a. Culpable violation of the Constitution – the deliberate and wrongful breach of the
Constitution. Violation of the Constitution made unintentionally, in good faith, and mere
mistakes in the proper construction of the Constitution do not constitute and impeachable
offense.
b. Treason – committed by any person who, owing allegiance to the Government of the
Philippines, not being a foreigner, levies war against them or adheres to their enemies,
giving them aid or comfort within the Philippines or elsewhere. (Art. 114, Revised Penal
Code)
c. Bribery

DIRECT BRIBERY – committed by any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of this official duties, in
consideration of any offer, promise, gift or present received by such officer, personally or
through the mediation of another. If the object for which the gift was received or promised
was to make the public officer refrain from doing something which it was his official duty
to do. (Art. 210, Revised Penal Code)

INDIRECT BRIBERY – committed by a public officer when he accepts gifts offered to

him by reason of his office. (Art. 211, Revised Penal Code)
d. Graft and Corruption: This must be understood in the light of the provisions of
the Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). Any violation of the
prohibited acts provided therein constitutes a ground for impeachment.

e. Other high crimes: The exact meaning of "other high crimes or betrayal of public trust"
as an impeachable offense is still undefined. The framers of the Constitution put
impeachment into the hands of the legislative branch and transformed it from a matter of
legal definition to a matter of political judgment. Hence, the definition of an impeachable
offense depends on the majority of the House of Representatives considers it to be a given
moment in history. (De Leon, Philippine Constitutional Law, 1999)
f. Betrayal of Public Trust – a new ground for impeachment, which covers "any violation
of the oath of office involving loss of popular support even if the violation may not
amount to a punishable offense." (De Leon, Philippine Constitutional Law, 1999)

Effect of Conviction

a. Removal from office;

b. Disqualification to hold any other office under the Republic of the Philippines; and
c. Party convicted shall be liable and subject to prosecution, trial and punishment
according to law.
Limitations on Impeachment Cases: The House of Representatives shall have the exclusive
power to initiate all cases of impeachment (Sec 3[1], Art XI, 1987 Constitution). Not more
than one impeachment proceeding shall be initiated against the same official within a period
of one year.

METHODS OF INITIATING IMPEACHMENT CASES:

a. A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution or endorsement by any Member
thereof.
b. It shall be included in the Order of Business within 10 session days, and referred to the
proper Committee within three session days thereafter.
c. 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 resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.
d. Majority vote of at least 1/3 of all the Members of the House shall be necessary to
affirm or override the said resolution. The vote of each member shall be recorded.
e. 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.(Sec 3[1], Art XI, 1987 Constitution)

OMBUDSMAN

 There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy
each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment
may likewise be appointed. (Sec 5, Art XI, 1987 Constitution)
 The duty and privilege of the Ombudsman to act as protector of the people against the
illegal and unjust acts of those who are in the public service emanate from no less than
the1987 Constitution.
 In the exercise of his duties, the Ombudsman is given full administrative disciplinary
authority. His power is not limited merely to receiving, processing complaints, or
recommending penalties. He is to conduct investigations, hold hearings, summon
witnesses and require production of evidence and place respondents under preventive
 suspension. This includes the power to impose the penalty of removal, suspension,
demotion, fine, or censure of a public officer or employee

The provisions in R.A. No. 6770 taken together reveal the manifest intent of the lawmakers to
bestow on the Office of the Ombudsman full administrative disciplinary authority. These
provisions cover the entire gamut of administrative adjudication which entails the authority
to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its
rules of procedure, summon witnesses and require the production of documents, place under
preventive suspension public officers and employees pending an investigation, determine the
appropriate penalty imposable on erring public officers or employees as warranted by the
evidence and, necessarily, impose the said penalty.(Cabalit vs. Commission on Audit Region
VII, G.R. No. 180236, January 17, 2012)

Functions

1. Investigate any act or omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or inefficient;
2. Direct any public official or employee of the Government, or any subdivision, agency
or instrumentality thereof, as well as any GOCC with original charter, to perform or
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties;
3. Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith;
4. Direct the officer concerned, in any appropriate case, and subject to such limitation as
may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds
or properties, and report any irregularity to the COA for appropriate action;
5. Request any government agency for assistance and information necessary in the
discharge of its responsibilities and examine, if necessary, pertinent records and
documents;
6. Publicize matters covered by its investigation when circumstances so warrant and with
due process;
7. Determine the causes if inefficiency, red tape, mismanagement, fraud and corruption
and to make recommendations for their elimination and observance of high standards of
ethics and efficiency;
8. Promulgate its rules of procedure and exercise such other powers or perform such
function or duties as may be provided by law;
9. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual
appropriations shall be automatically and regularly released.
Judicial review in administrative proceedings

H. A respondent who is found administratively liable by the Office of the Ombudsman and is
slapped with a penalty of suspension of more than one month from service has the right to
file an appeal with the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure, as amended. But although a respondent is given the right to appeal, the act of
filing an appeal does not stay the execution of the decision of the Office of the
Ombudsman; it is immediately executory pending appeal” (Ganaden vs. Court of Appeals,
G.R. Nos. 170500 & 170510-11, June 1, 2011)

I. An officer or employee under administrative investigation may be allowed to resign

pending decision of his case but it shall be without prejudice to the continuation of the
proceeding against him. It shall also be without prejudice to the filing of any
administrative, criminal case against him for any act committed while still in the service.
(Office of the Ombudsman vs. Andutan, Jr. G.R. No. 164679, July 27, 2011)

Judicial review in penal proceedings: Where the respondent is absolved of the charge and
in case of conviction where the penalty imposed is public censure or reprimand, suspension
of not more than one month, or a fine equivalent to one month salary, the decision shall be
final, executory and unappealable.In all other cases, the decision may be appealed to the
Court of Appeals on a verified petition for review under the requirements and conditions set
forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written
Notice of the Decision or Order denying the Motion for Reconsideration (Administrative
Order No. 7, Rules of Procedure of the Office of the Ombudsman)

SANDIGANBAYAN

ORIGINAL JURISDICTION

a. Violation of R.A. 3019 as amended; R.A. 1379; and Chapter II, Sec. 2, Title VII, Book II
of the Revised Penal Code where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting or interim capacity
at the time of the commission of the offense:
(1) Official of the Executive branch with the position of regional director or higher, or with
Salary Grade Level 27 (G27) according to R.A. 6758, specifically including:
 i. Provincial governors, vice-governors, Board members, provincial treasurers, engineers
and other provincial department heads;
ii. City mayors, vice-mayors, city councilors, city treasurer, assessors, engineers and other
city department heads;
iii. Officials of the diplomatic service from consuls or higher;
iv. PA/PAF colonels; PN captains and all officers of higher rank;
v. Officers of the PNP while occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
vi. City/provincial prosecutors and their assistants, and official and prosecutors in the
Office of the Ombudsman and special prosecutor; and
vii. Presidents, directors, trustees, or managers of GOCC’s state universities or
educational institutions or foundations;

1. Members of Congress and officials thereof with G27 and up;

2. Members of the Judiciary without prejudice to the Constitution;
3. Chairmen and members of the Constitutional Commissions without prejudice to the
Constitution; and
4. All other national and local officials with G27 or higher

NOTE: Aside from the aforementioned, the Supreme Court held in Serana vs.
Sandiganbayan (G.R. No.162059, January 29, 2008) that a UP student regent is a public
officer subject to the jurisdiction of the Sandiganbayan.

J. Section 4(a)(1)(g) of P.D. No. 1606 explicitly vested the Sandiganbayan with jurisdiction
over Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations. Petitioner fails
under the category. As the Sandiganbayan pointed out, the BOR performs functions
similar to those of a board of trustees of a non-stock corporation. By express mandate of
law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.
Moreover, it is well established that compensation is not an essential element of public office.
At most, it is merely incidental to the public office.

Delegation of sovereign functions is essential in the public office. An investment in an

individual of some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public makes one a public officer” (Serana vs. Sandiganbayan,
G.R. No. 162059, January 22, 2008)

In Ambil Jr. vs. Sandiganbayan (G.R. No. 175457, July 6, 2011), the Supreme Court held that
even a public officer, specifically a provincial jail warden with a salary grade of 22, may be
under the jurisdiction of Sandiganbayan in line with the conspiracy principle.

K. Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question.
The same is true as regards petitioner Apelado, Sr. As to him, Certification from the
Provincial Government Department Head of the HRMO shows that his position as
Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of
the accused are occupying positions corresponding to salary grade ‘27’ or higher shall
exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was
charged as a co-principal with Governor Ambil, Jr., over whose position the
Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said
public officer in the proper court which had exclusive original jurisdiction over them-the
Sandiganbayan. Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.’s
willful cooperation in executing petitioner Ambil, Jr.’s order to move Adalim from jail,
despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide
behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a
person under detention by legal process is elementary. Truth be told, even petitioner
governor who is unschooled in the intricacies of the law expressed reservations on his
power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and
Apelado, Sr., resulting in the violation charged, makes them equally responsible as
conspirators” (Ambil vs. Sandiganbayan, G.R. No. 175457, July 6, 2011)

EXCLUSIVE ORIGINAL JURISDICTION: Petitions for the issuance of the writs of

mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and
processes in aid of its appellate jurisdiction, Provided, that jurisdiction over these petitions
shall be not exclusive of the Supreme Court.
EXCLUSIVE APPELLATE JURISDICTION: Final judgments, resolutions or orders of
regional trial courts whether in the exercise of their own original jurisdiction or of their
appellate jurisdiction

Ill-gotten wealth: The right of the state to recover properties unlawfully acquired by public
officials or employee, from them or from their nominees or transferees, shall not be
barred by prescription, laches or estoppel but it applies only to civil actions and not to
criminal cases.

B. TERMS LIMITS

a. The term of office of all elective officials: three (3) years, starting from noon of June
30, 1992 or such date as may be provided for by law, except that of elective barangay
officials and members of the sangguniang kabataan: Provided, That all local officials
first elected during the local elections immediately following the ratification of the
1987 Constitution shall serve until noon of June 30, 1992.
b. No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.
c. The term of barangay officials and members of the sangguniang kabataan shall be for
five (5) years, which shall begin after the regular election of barangay officials on the
second Monday of May 1997: Provided, That the sangguniang kabataan members who
were elected in the May 1996 elections shall serve until the next regular election of
barangay officials. (Sec 1, Republic Act No. 8524, An Act Changing The Term Of
Office Of Barangay Officials And Members Of The Sangguniang Kabataan From
Three (3) Years To Five (5) Years, Amending For The Purpose Section 43 Of Republic
Act Numbered Seven Thousand One Hundred Sixty, Otherwise Known As The Local
Government Code Of 1991, And For Other Purposes.)

Term of Senators: 6 years. It shall commence at noon, 30th day of June next following his
election. (Sec 4, Art VI, 1987 Constitution)

Term of Representatives: 3 years. It shall commence at noon, 30th day of June next
following his election. (Sec 7, Art VI, 1987 Constitution)