Sources: Atty.
ELMAN notes; \ | LAW ON PUBLIC OFFICERS
LAW ON PUBLIC OFFICERS
by: AO Rodolfo M. Elman, CESO lll
MDA, The Australian National University
LLB, Ateneo de Davao University
AB Econ., Ateneo de Manila University
PUBLIC OFFICE
1. Basic tenet underlying public office: Art. X1, Sec. 1, 1987
Constitution - "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 " (City
Mayor vs. CA, 182 SCRA 785; Re: Disapproval of Permanent
Appointment of Godofredo De Leon as RTC Clerk by the CSC,
569 SCRA 270).
Elements of a public office:
1. Created by law or may be based on an ordinance but
authorized by a law.
Question: Can an office be created thru the issuance of an
executive order?
Answer: Yes, but applicable only within the executive
branch. (Lagman vs. PTC, 2010)
2. Invested with some sovereign functions of government to
be exercised for public interest.
- The main characteristic of a public office is that there
is investiture of sovereign functions or part of such
functions to be performed by this person and so this
individual is classified as a public officer.
l
3. The functions must be defined expressly or impliedly by
law, exercised by an officer directly under the control of
the law.
4. The need of such office to have permanency or continuity
Q: What distinguishes a public office from a Contract?
1. The creation of a public office is an incident of sovereignty
whereas a contract has its origin because of the will of the
parties
2. Since it is by will of the contracting parties, it follows
therefore that only the contracting parties are bound by such
contract but not so in the case of a public office, even those not
part of this office, since it has its basis on a law, the public is
likewise obliged.
“PUBLIC OFFICE IS PUBLC TRUST”
a. Meaning of above principle: A public office is a gift or privilege
given by the people to certain individuals for the latter to
discharge sovereign or governmental powers in order that
communal good and interest may be served. A public officer is
obliged to act with due care in discharging the delicate duties of
his office to the best of his ability. He must comply with the
superlative command of the Constitution to render efficient
service to the people (Balais vs. Dep. Sheriff, 146 SCRA 56; Gano
vs. Leonen, 232 SCRA 98; Medilo vs. Asodisen, 233 SCRA 68).
The Supreme Court affirmed the constitutionality of Republic Act
9335, the Attrition Act of 2005, which provides for a system of
rewards and incentives for BIR and BOC officials and employees
who exceed their collection targets for a given year. The law also
penalizes with immediate separation from government service
BIR and BOC officials and employees that fail to meet their
collection targets or quotas. However, the SC voided as
unconstitutional Section 12 of RA 9335 which allows the
creation of a congressional oversight body to approve its
implementing rules and regulations. Any provision that
empowers Congress to play a role in the enforcement of the law
violates the principle of separation of powers. The SC said
Congress has arrogated judicial power unto itself by exercising
discretion to determine whether the IRR formulated by the
executive department conform to the provisions of the law. The
SC also dismissed the petition of Abakada Guro party-list seeking
to void RA 9335 on grounds that it “transforms officials and
employees of BIR and BOC into mercenaries and bounty
hunters” as the incentives invite corruption and undermine their
duty to serve with integrity, loyalty and efficiency to the
republic. A system of incentives for exceeding the set
expectations of a public office is not in contrast to the concept
of public accountability. Rather it recognizes and reinforces
dedication to duty, industry, efficacy and loyalty to public service
of deserving government personnel (Abakada Guro Party List v.
Purisima, 562 SCRA 251).
b. A public office is the right, authority and duty created and
conferred by law, by which for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
The individual so invested is a public officer.
*Case (Laurel vs. Desierto, 381 SCRA 48): Former VP Salvador
Laurel was appointed as the Chair of the National Centennial
Commission (NCC) created under Administrative Order No. 223.
The NCC was primarily tasked to take charge of the nationwide
preparations for the national Celebration of the Philippine
Centennial of the Declaration of the Philippine Independence.
Characterized as an “ad-hoc body”, the existence of the NCC
shall terminate upon completion of all activities related to the
celebration. Subsequently, Laurel was charged before the
Ombudsman for graft in connection with the alleged Centennial
Expo Scam exposed in the Senate. Laurel claimed that he was
not a public officer because the NCC was not a public office and
thus the Ombudsman had no power to investigate him and file
charges before the Sandiganbayan.
Held: The delegation to the individual of some of the sovereign
functions of the government is the most important characteristic
in determining whether a position is a public office or not. The
functions of the NCC can be described as executive functions.
The executive functions concerns the implementation of the
policies set forth by law. Under AO 223, one of the functions of
the NCC is “to undertake the overall study, conceptualization,
formulation and implementation of programs and projects on
the utilization of culture, arts, literature… as vehicles for history,
economic endeavors and reinvigoration of the spirit of national
unity. Further, the NCC has an admitted role in the country’s
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 Sources: Atty. ELMAN notes; \
economic development which is a fundamental state policy
under the Constitution (Art. XII, Sec. 1, National Economy and
Patrimony). Clearly, the NCC performs sovereign functions. It is
therefore a public office, and its Chair is a public officer. The
mere fact that he does not receive any compensation during his
tenure is immaterial and not conclusive. A salary is a usual but
not necessary criterion for determining the nature of the
position. It is a mere incident and forms no part of the office.
Where no salary or fees is attached to the office, it is a naked or
honorary office and is supposed to be accepted merely for the
public good.
Lagman vs. Ochoa & Biraogo vs. Phil. Truth Commission, Dec.
07, 2010
The creation of the PTC finds justification under Section 17,
Article VII of the Constitution, imposing upon the President the
duty to ensure that the laws are faithfully executed. Section 17
reads: “The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.” The President’s power to conduct
investigations to aid him in ensuring the faithful execution of
laws – in this case, fundamental laws on public accountability
and transparency – is inherent in the President’s powers as the
Chief Executive. The President’s power to conduct investigations
to ensure that laws are faithfully executed is well recognized. It
flows from the faithful-execution clause of the Constitution
under Article VII, Section 17 thereof.[56] As the Chief Executive,
the president represents the government as a whole and sees to
it that all laws are enforced by the officials and employees of his
department.
Nonetheless, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of
the envisioned truth commission is to investigate and find out
the truth “concerning the reported cases of graft and corruption
during the previous administration” only. The intent to single
out the previous administration is plain, patent and manifest.
*Case (Figueroa vs. People, 498 SCRA 298):
Private complainant Rivera, who filed a libel case against
petitioners Fegueroa and Flaviano of the People’s Daily Forum
resulting in their conviction, cannot be considered a public
officer so as to make the published article within the ambit of
privileged communication under the RPC. His being a member of
the market committee did not vest upon him any sovereign
function of government. The operation of a market is not a
governmental function but one undertaken by the city in its
private proprietary capacity. Also, his membership in the market
committee was in representation of the association of market
vendors, a non-governmental organization belonging to the
private sector.
(Javier vs. Sanddiganbayan, 599 SCRA 325)
The fact that petitioner Carolina Javier (who was charged with
graft before the Sandiganbayan for failure to return/liquidate
her cash advances despite the cancellation of her foreign trip)
came from the private sector to sit as a member of the National
Book Development Board (NBDB) does not take her position
| LAW ON PUBLIC OFFICERS
outside the meaning of a public office. The NBDB is a statutory
government agency created by RA 8047 to ensure the full
development of the book publishing industry. Also, under the
Anti-Graft Law, the nature of one’s appointment, and whether
the compensation received from the government is only
nominal, is immaterial. As she performs public functions in
pursuance of the objectives of RA 8047, verily she is a public
officer.
CLASSIFYING PUBLIC OFFICERS OF GOCC’s UNDER RA 3019
In Macalino vs. Sandiganbayan and Office of the Ombudsman
(376 SCRA 452), the Court ruled that since the Philippine
National Construction Corporation (PNCC) has no original
charter as it was incorporated under the general law on
corporations, it follows that petitioner Macalino (as PNCC
Assistant Manager) is not a public officer within the coverage of
RA 3019 and under the jurisdiction of the Sandiganbayan.
However, in PP v. Sandiganbayan (16 February 2005), the Court
ruled that the Sandiganbayan has jurisdiction over presidents,
directors or trustees, or managers of GOCCs without original
charter, for purposes of RA 3019. The two cases can be
reconciled as follows: In Macalino, the indictment was against a
mere employee of a GOCC without original charter – not the
president, director, trustee nor manager, for estafa which is not
among those specific crimes cited in the Sandiganbayan Law (RA
8249). In PP v. Sandiganbayan, the accused was the President
and COO of the Philippines Postal Savings Bank, a GOCC without
original charter, indicted under RA 3019.So, GOCCs need not
have original charters for Sandiganbayan jurisdiction to
attachfor violations of RA 3019 by Presidents, directors, trustees
or managers.
In Marilyn Geduspan vs. PP (451 SCRA 187),
it is of no moment that the position of petitioner Geduspan as
Manager of Philhealth, a GOCC, is merely classified as salary
grade 26. The position of Manager is one of those mentioned in
par. A, Section 4 of RA 8249. While the first part of the above-
quoted provision covers only officials of the executive branch
with SG 27 and higher, the second part thereof specifically
includes other executive officials whose positions may not be of
grade 27 and higher but who are by express provision of law
placed under the jurisdiction of the Sandiganbayan (ibid).
Presidents, directors or trustees, or managers of GOCCs are
under the jurisdiction of the Sandiganbayan. Petitioners Alzaga
and Bello were head of the Legal Department while petitioner
Satuito was Chief of Documentation with corresponding ranks of
Vice Presidents and Asst. Vice President. Although these
positions are not specifically enumerated in RA 8249, their ranks
as VPs and AVP are even higher than that of managers (Alzaga,
Bello and Satuito vs. Sandiganbayan, 505 SCRA 849).
CHARACTERISTICS OF PUBLIC OFFICE
c. Characterize public office:
It is not a property which can be the subject of inheritance.
However, where the controversy relates to who is rightly
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 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

entitled to the position, then it comes within the concept of

property where the protective shield of the due process clause AN INDIVIDUAL CANNOT BE FORCED TO
of the Constitution will assert itself (Segovia vs. Noel, 47 Phil. ACCEPT PUBLIC OFFICE
543).
Public office is personal to the incumbent and is not a property
which passes to his heirs. The heirs may no longer prosecute the 2. General rule: An individual cannot be forced to accept a
deceased protestee’s counterclaim for damages against the public office as it will violate the involuntary servitude clause
protestant for that was extinguished when death terminated his of the Constitution.
right to occupy the contested office (Abeja vs. Tanada, 236
SCRA 62). Exceptions:

Thus, applying the doctrine of actio personalis moritur cum
persona, upon the death of the incumbent, no heir of his may be
allowed to continue holding his office in his place (De Castro vs.
COMELEC, 267 SCRA 806). While the right to a public office is
personal and exclusive to the public officer, an election protest
is not purely personal and exclusive to the protestant or to the
protestee. The court is not ousted of authority to continue the
protest proceedings for an election protest involves not merely
conflicting private aspirations but is imbued with paramount
public interest (supra).
a. When the office is essential to the defense of the State (Sec.
4, Art. 11, 1987 Constitution).
b. When one is elected by popular election, he cannot refuse
to discharge the duties of the office without legal motive (Art.
234, Revised Penal Code).
c. When one is required to join posse comitatus (power of the
county). (Note: Posse comitatus is a common law term that
compels citizens to help the community in the maintenance and
preservation of peace and tranquility.

There is no such thing as a vested interest or an estate in an

office, or even an absolute right to hold it. Except constitutional
offices which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an office
or its salary (NLTRA vs. CSC, 221 SCRA 145).

OATH OF OFFICE
d. An oath of office is a qualifying requirement for a public
office, a prerequisite to the full investiture with the office. It is
only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary
and complete. The pendency of an election protest is not
sufficient basis to enjoin him from assuming office or from
discharging his functions (Mendoza vs. Laxina, Sr., 406 SCRA
156).
When a public officer takes his oath of office, he binds himself to
perform the duties of his office faithfully and to use reasonable
skill and diligence, and to act primarily for the benefit of the
public. In failing to measure up to this standard, respondent
should be held administratively liable for neglect of duty
(Ombudsman vs. Jurado, 561 SCRA 137).

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 Sources: Atty. ELMAN notes; \
DE JURE AND DE FACTO OFFICER
3. A de facto officer is one who, in good faith, has possession of
the office and has discharged the duties pertaining thereto
under color of authority, either derived from an election or
appointment, however irregular or informal. He is one who has
the reputation of being the officer he assumes and yet is not a
good officer in point of law. The difference between the basis of
the authority of a de jure officer and that of a de facto officer is
that one rests on right, the other on reputation (Arimao vs.
Taher, 498 SCRA 76).
Thus, during respondent’s occupancy of the position of
Education Supervisor II which ended when petitioner was
reverted to the same position after her promotional
appointment to Director II had been disapproved, respondent
should be deemed a de facto officer only (ibid). A de facto
officer, not having a good title, takes the salaries at his risk and
must therefore account to the de jure officer for whatever salary
he received during the period of his wrongful tenure. In this
case, respondent should account to petitioner for the salaries
she received from the time the disapproval of petitioner’s
promotion became final up to the time when petitioner was
declared on AWOL and dropped from the rolls. However,
respondent may be allowed to keep the emoluments received
during said period, there being no de jure officer at the time
(ibid). Even granting that the President, acting through the DILG
Secretary, possesses no power to appoint petitioner as Acting
Vice Governor, at the least, petitioner is a de facto officer
entitled to compensation as he assumed the Office of Vice
Governor under a color of appointment, exercised the duties of
said office for a long period of time and was acclaimed as such
by the people of Leyte (Menzon v. Petilla, 197 SCRA 251).
In cases where there is no de jure officer, a de facto officer, who
in good faith has had possession and has discharged the duties
of the office, is legally entitled to the emoluments of the office
(Civil Liberties Union vs. Executive Secretary, 194 SCRA 317).
A usurper is one who undertakes to act officially without any
color of right. Thus, an official who exercises the duties of an
elective office under a color of election thereto cannot be
considered a usurper, and it matters not that it was the trial
court and not the Comelec that declared him as the winner,
because both, at different stages of the electoral process, have
the power to so proclaim winners in electoral contests
(Malaluan vs. COMELEC, 254 SCRA 400; 2000 BQ).
A petition for quo warranto affecting title to public office must
be filed within one year from the date the petitioner was ousted
from his office to provide stability in the service so that public
business may not be unduly hampered (Madriga vs. Lecaroz,
191 SCRA 20).
Quo warranto as a special civil action (under Rule 66 of the
Revised Rules of Court) can only be commenced by the Solicitor
General or by any person claiming to be entitled to a public
office or position unlawfully held or exercised by another
(Tarrosa vs. Singson, 232 SCRA 553).
Any question of title to an office may not be determined in a suit
to restrain the payment of salary to the person holding office,
brought by one not claiming to be entitled to said office. To
| LAW ON PUBLIC OFFICERS
uphold the action would encourage every disgruntled citizen to
resort to the courts, thereby causing incalculable mischief and
hindrance to the efficient operations of the governmental
machinery (supra).
Quo warranto is a demand by the state upon some individuals or
corporations to show by what right they exercise some franchise
or privilege appertaining to the state which, according to the
Constitution and laws of the land, they cannot legally exercise
except by virtue of a grant or authority from the state… The writ
of quo warranto is never directed to an officer as such, but
always against the person -- to determine whether he is
constitutionally and legally authorized to perform any act in, or
exercise any function of the office to which he lays claim. Hence,
a judgment in quo warranto does not bind the public officer’s
successor in office. In this case, what was threshed out before
the trial court was the qualification and right of Pedro Mendoza
to the contested position of Director III, Customs Intelligence
and Investigation Service of the Bureau of Customs, as against
Ray Allas solely, and not against Allas’ successor – Godofredo
Olores (Mendoza vs. Allas, 302 SCRA 623). Allas cannot be held
personally liable for petitioner's back salaries and benefits where
the former was merely appointed to the subject position by the
President in the exercise of his constitutional power as Chief
Executive. Neither can the Bureau of Customs be compelled to
pay petitioner’s back salaries and benefits as it was not a party
to the petition for quo warranto (Mendoza vs. Allas, 302 SCRA
623).
Since they do not claim to be entitled to the Senate office of
Gordon, petitioners have no legal standing to file the quo
warranto petition to declare him as having forfeited his seat in
the Senate (Liban vs. Gordon, 593 SCRA 68). PNRC is not a GOCC
& the prohibition under Sec. 13, Art. Vl of the Constitution does
not apply.
The right to salary and other emoluments arising from public
employment is based on one’s valid appointment or election to
the office itself and accrues from the date of actual
commencement of the discharge of official duties. Jail Sen.
Superintendent Engano, albeit lacking in qualifications, was
nonetheless appointed by the President as BJMP Director and
had entered the performance of the duties of the position from
Sept. 27, 2001 to Oct. 2, 2001 when the appointing authority
recalled his appointment owing to some legal issues respecting
his qualification. He thus served for six days only, but as de facto
officer entitled to compensation. But respondents DILG
Secretary Lina and BJMP Director Alit cannot be held personally
liable for petitioner’s claim for salary , RATA and other benefits.
The BJMP cannot also be liable since it was not a party in the
quo warranto petition (Engano vs. CA, 493 SCRA 324).
Although the term of office of Gaminde as Commissioner, Civil
Service Commission, under an appointment extended to her by
the President on June 11, 1993, expired on February 2, 1999, she
served as de facto officer in good faith until February 2, 2000,
and thus entitled to receive her salary and other emoluments for
actual service rendered; consequently, the COA erred in
disallowing in audit such salary and other emoluments, including
that of her co-terminous staff (Gaminde vs. COA, GR 140335, 13
December 2000).
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 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

The representatives of the ex-officio members of the National

Amnesty Commission (NAC) cannot be considered de facto
officers because they were not appointed but were merely
designated to act as such. Further, they are not entitled to
something their own principals are prohibited from receiving.
Neither can they claim good faith, given the express prohibition
of the Constitution and the finality of the Civil Liberties Union
decision prior to their receipt of such allowances (NAC vs. COA,
437 SCRA 670).

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 Sources: Atty. ELMAN notes; \
CIVIL SERVICE COMMISSION
4. Civil Service
a. Civil service employees cannot be removed or suspended
except for cause as provided by law (Art. 1X-B, Sec. 2(3), 1987
Constitution; Sec. 36 of PD 807; Sec. 46 of EO 292) [1999 BQ].
PURPOSE OF THE CSC
b. Purpose of the Civil Service system: Application of the merit
system instead of the spoils system in the matter of
appointment and tenure of office (Meram vs. Edralin, 154 SCRA
238; Mendoza vs. Quisumbing, 186 SCRA 108).
SCOPE OF THE CSC
c. Scope: The Civil Service embraces all branches, subdivisions,
instrumentalities and agencies of the government including
GOCCs with original charters (Art. 1X-B, Sec. 2(1), 1987
Constitution).
As such, it is the sole arbiter of controversies relating to the civil
service ( Rimonte vs. CSC, 244 SCRA 498).
Cases involving personnel actions, reassignment included,
affecting civil service employees, are within the exclusive
jurisdiction of the CSC (Mantala vs. Salvador, 206 SCRA 264;
Corsiga vs.Defensor, 391 SCRA 267).
The instant case involves personnel action in the government,
i.e., petitioner Go is questioning the reallocation and demotion
directed by the DBM which resulted in the diminution of his
benefits. Thus, the proper remedy available to Go is to question
the DBM denial of his protest before the CSC which has exclusive
jurisdiction over cases involving personnel actions, and not
before the Office of the President. In turn, the resolution of the
CSC may be elevated to the CA under Rule 43 and finally, before
the Supreme Court. Consequently, Go availed himself of the
wrong remedy when he went directly to the CA under Rule 43
without repairing first to the CSC. Here, the SC reversed the CA
dismissal of Go’s petition grounded on his wrong remedy as the
higher demands of substantial justice must transcend rigid
observance of procedural rules. The SC ruled that Go, being an
incumbent to his position as LTFRB Attorney Vl, SG-26, has at the
very least an equitable right to receive the corresponding salary
and emoluments attached thereto. The summary demotion to
SG-25, with decrease in salary and emoluments after he has
occupied his current rank and position, goes against his right to
continue enjoying the benefits accorded the position. His right
thereto has ripened into a vested right, of which he could be
deprived only by due process of law but which he was denied
thru the summary reallocation. The SC declared null and void the
summary reallocation and ordered Go’s reinstatement (Go vs.
CA and OP, 626 SCRA 180).
| LAW ON PUBLIC OFFICERS
LAW ON ADMINISTRATIVE JURISDICTION vs. PUBLIC SCHOOL
TEACHERS
Sec. 9 of the Magna Carta for Public School Teachers (RA 4670)
Coverage of term “teacher”: all persons engaged in classroom
teaching on full time basis including guidance counselors, school
librarians, industrial arts or vocational instructors and all other
persons performing supervisory or administrative functions.
Exclusions to the term “teacher”:
• Public school teacher in the professional staff of state
colleges or universities
• School nurses, physicians, dentists and other school
employees in the category of medical and dental
personnel
Although under the Civil Service Law (PD 807), the civil service
embraces every branch, agency, subdivision and instrumentality
of the government, including GOCCs whether performing
governmental or proprietary function, the CSC does not have
original jurisdiction over an administrative case against a public
school teacher. Jurisdiction over administrative cases of public
school teachers is lodged with the Investigating Committee
created pursuant to Section 9 of the Magna Carta for Public
School Teachers (RA 4670), now being implemented by Section
2, Chapter Vll of DECS Order No. 33, s. 1999, otherwise known as
the DECS Rules of Procedure. Still, the exercise of jurisdiction by
the CSC was sustained by the Court under the principle of
estoppel (Emin vs. De Leon, 378 SCRA 143).
That petitioner Sarah Ampong committed the dishonest act - in
taking the PBET exam in place of another person – before she
joined the RTC and while she was public school teacher under
the administrative supervision of the DECS does not take her
case out of the administrative reach of the Supreme Court.
Administrative supervision over a court employee belongs to the
Court, regardless of whether the offense was committed before
or after employment in the judiciary. The CSC should bring its
complaint against her before the Office of the Court
Administrator. However, the Court affirmed the CSC decision
dismissing her based on the principle of estoppel as she fully
participated in the proceedings before the CSC and was
accorded due process, apart from her admission to the offense
charge. She is estopped from subsequently attacking its
jurisdiction (Ampong v. CSC RO Xl, 563 SCRA 293).
Jurisdiction once acquired is not lost upon the instance of the
parties but continues p the case is terminated. Thus, when the
complainants filed their formal complaint with the DECS Region
6, jurisdiction was vested on the latter. It cannot be transferred
to the Ombudsman upon the instance of the complainants, even
with the acquiescence of the DECS and the subsequent
openness of the Ombudsman to transfer the case to its office,
especially where the DECS has already commenced proceedings
pursuant to Sec. 9 of RA 4670 (Ombudsman vs. Estandarte, 13
April 2007).
While petitioner has concurrent administrative disciplinary
authority with the DECS over public school teachers, Sec. 23 of
RA 6770 provides that the Ombudsman may refer a complaint to
the proper disciplinary authority. Respondent is a public school
teacher and is covered by RA 4670, the proceedings before the
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 Sources: Atty. ELMAN notes; \
DECS would have been the more appropriate venue to resolve
the dispute (Ombudsman vs. Pedro Delijero, Jr., 10 October
2010).
HIGHER EDUCATION MODERNIZATION ACT OF 1992 (RA 8282)
• Power of university’s Board of Regents under RA 8282 to
discipline its officials and employees not exclusive but
concurrent with CSC.
• The Const. & EO 292 grant to CSC jurisdiction over all civil
service positions in the government service, whether
career or non career.
• Academic freedom cannot be invoked where there are
allegations of CS law & rules violations (CSC vs. Sojor,
5/22/08)
The power of the university’s Board of Regents under RA 8282
(The Higher Education Modernization Act of 1997) to discipline
and remove its employees and officials is not exclusive but
concurrent with the CSC and that a case against a university
official may be filed either with the state university’s BOR or
directly with the CSC. The Constitution and the Administrative
Code grants to the CSC jurisdiction over all civil service positions
in the government service, whether career or non-career.
Respondent Henry Sojor, who was appointed by the governing
board of trustees of the university with a fixed term of office, is a
non-career civil service officer. Thus the Court granted the
petition of the CSC and reinstated its resolutions authorizing its
regional office to proceed with the formal investigation of the
administrative complaints directly filed before it against
respondent Sojor, president of the Central Visayas Polytechnic
College (CVPC), now the Negros Oriental State University
(NORSU), concerning violations of civil service rules. The Court
also ruled that academic freedom may not be invoked in this
case when there are alleged violations of civil service laws,
namely nepotism, dishonesty, falsification of official documents,
grave misconduct, and conduct prejudicial to the best interest of
the service, against Sojor. (GR No. 168766, CSC v. Sojor, May 22,
2008)
GOCC’s NOT COVERED BY THE CIVIL SERVICE LAW
a. PNOC-EDC vs. Leogardo, 175 SCRA 26
b. Bliss Development Corp. Employees Union vs. Calleja, 237
SCRA 271 (EO 180 not applicable to BDC)
c. PVBEU vs. PVB, 24 August 1990 ~PVB (RA 3518)
d. Phil. National Construction Corp., Macalino vs.
Sandiganbayan, 376 SCRA 452
PHILIPPINE NATIONAL RED CROSS
The Philippine National Red Cross is a GOCC with an original
charter under RA 95, as amended (Baluyot v. Holganza, 9
February 2000) [Note: This decision has been set aside in
Gordon case. Hence, PNRC is no longer covered by Civil Service
Law]
| LAW ON PUBLIC OFFICERS
The test in determining whether a GOCC is subject to the Civil
Service Law is the manner of its creation such that government
corporations created by special charter are subject to its
provisions while those incorporated under the general
corporation law are not within its coverage (PNOC-EDC v.
Leogardo, 175 SCRA 26).
Bliss Development Corporation is a government-owned
corporation created under the Corporation Law. It is without a
charter, governed by the Labor Code, hence, Executive Order
No. 180 which limits its application to GOCCs with original
charters, does not apply to it (Bliss Dev. Corp. Employees Union
v. Calleja, 237 SCRA 271).
The Food Terminal, Inc. (FTI) was organized under the
Corporation Law and was not created by a special law. In
accordance with Sec. 2 (1), Art. lX B of the Constitution, FTI is not
covered by civil service (Lumanta v. NLRC, 170 SCRA 79, ‘99BQ).
EO 180 (eff. June 1, 1987)
• EO defined & delineated the scope of constitutional right
of government employees to self-organization.
• Right to engage in concerted activities is subject to CS
law & rules & any legislation enacted by Congress.
• Resolution of complaints & cases involving them is not
left to collective bargaining or other concerted activities
but to CS law.
• Where dispute remains unresolved after exhausting all
available remedies, parties may refer dispute to PSLMC.
What is the status of PNRC? Did Gordon automatically forfeit
his Senate seat in holding the post of PNRC Chair?
PNRC is not a GOCC but a private organization performing public
functions. It does not have government assets & does not
receive appropriations from Congress. PNRC must remain
autonomous, neutral & independent.
*PNRC Board of Governors, w/c exercises all corporate powers
of PNRC, elects the Chair.
*Chairman is not an official or employee of the Government,
hence no violation of Sec. 13, Art. Vl of the Constitution.
*The PNRC Charter is void insofar as it creates the PNRC as a
private corporation. (Liban vs. Gordon 593 SCRA 68)
On Gordon’s MR of its decision declaring void the PNRC Charter
(RA 95) “insofar as it creates PNRC as a private corp. & it should
incorporate under Corp. Code xxx”, SC granted/ modified its
decision. The constitutionality of RA 95 was not raised as an
issue by the parties & should not have been passed upon by SC.
The PNRC is sui generis in nature; it is neither strictly a GOCC nor
a private corp. RA 95 remains valid & constitutional (Liban vs.
Gordon, January 18, 2011).
Dats | 7
 Sources: Atty. ELMAN notes; \
GOCC’S COVERED BY THE CIVIL SERVICE LAW
Not all corporations w/c are not GOC, are ipso facto private
corporations as there exists another class known as public
corporations w/c are treated by law as instrumentalities or
agencies of gov’t. w/c are subject not to tests of
ownership/economic viability but public purpose/interests. BSP
is a public corporation created by law for a public purpose
attached to DepEd under its charter and EO 292. Its funds are
subject to COA audit (BSP vs. COA, 6/7/11).
CASES:
BOY SCOUT OF THE PHILIPPINES
i) The Boy Scout of the Philippines may be regarded as both a
"government controlled corporation with an original charter"
and as an "instrumentality" of the Government within the
meaning of Art. lX-B (2) (1) of the Constitution. Employees of the
BSP are embraced within the Civil Service and are accordingly
governed by the Civil Service law and regulations. Hence, the
Labor Arbiter and the NLRC have no jurisdiction over the
complaint filed by employees of the BSP (BSP v. NLRC, 22 April
1991). [Note: This decision is modified by BSP vs. COA,
06/07/11]
DUTY FREE PHILIPPINES
An employee of the Duty Free Philippines (DFP) is a civil service
employee, and jurisdiction over his dismissal is lodged with the
CSC, not the NLRC; DFP was created under EO 46 to augment the
service facilities for tourists and to generate foreign exchange
and revenue for the government. DFP is under the exclusive
authority of the Philippine Tourism Authority (471 SCRA 776).
AFP-RSBS
The Armed Forces of the Philippines Retirement and Separation
Benefits System (AFP-RSBS) is a GOCC under RA 9182 (The
Special Purpose Vehicle Act of 2002). The AFP-RSBS was
established to guarantee continuous financial support to the AFP
military retirement system – it is similar to the GSIS and the SSS
since it serves as the system that manages the retirement and
pension funds of those in the military service. Its funds are in the
nature of public funds (Alzaga et al v. Sandiganbayan, 505 SCRA
848).
LOCAL WATER DISTRICTS (PD 198 as amended by PD 1479 and
RA 8286)
ii) Local water districts are quasi-public corporations whose
employees are subject to the provisions of the Civil Service Law.
Section 25 of PD 198, known as the Provincial Water Utilities Act
of 1973, exempting the employees of water districts from the
application of Civil Service Law was removed from the statute
books by PD 1479 (Hagonoy Water District v. NLRC, 165 SCRA
272).
PD 198, as amended, is a special law that provides for the source
of authorization and power to form and maintain a district.
While it is true that a resolution of a local Sanggunian is still
necessary for the final creation of a district, said resolution
| LAW ON PUBLIC OFFICERS
cannot be considered as its charter, the same being intended
only to implement the provisions of said decree (DCWD v. CSC,
201 SCRA 605; Feliciano v. Gison, 629 SCRA 103).
The Constitution and existing laws mandate the COA to audit all
government agencies, including GOCCs with original charters like
the water districts created under PD 198 (De Jesus v. COA, 403
SCRA 666).
PHILIPPINE VETERANS BANK
iii) The Philippine Veterans Bank is not a government bank
although it does have an original charter in the form of RA 3518.
The bank does not fall under the civil service and the relations of
the bank and its employees should be governed by the labor
laws. Under its charter, while 51% of the bank's capital stock was
initially fully subscribed by the government for the veterans or
compulsory heirs, the corresponding shares of stock were to be
turned over within 5 years to the beneficiaries who would have
the right to vote such common shares (PVBEU et al vs. PVB;
Medalla vs. Central Bank, 24 August 1990).
iv) A GOCC does not lose its character as such even if it is
organized under the general law. If its capital stock is owned by
the government and it is operated and managed by officers
charged with the mission of fulfilling the public objectives for
which it has been organized, it still comes within the letter of
Sec. 66 of the Omnibus Election Code which declares that: "Any
person holding public appointed office or position including...
officers and employees in GOCCs shall be considered ipso facto
resigned from his office upon the filing of his certificate of
candidacy". Thus, an employee of the PNOC-EDC, a subsidiary of
PNOC incorporated under the Corporation Law - the general law,
was considered as automatically resigned upon the filing of his
certificate of candidacy for the post of Councilor in his
hometown. Besides, when the Omnibus Election Code was
enacted, Congress was aware that under the Constitution, there
are two kinds of GOCCs, yet it made no effort to distinguish
them (PNOC-EDC vs. NLRC, 222 SCRA 831).
v) The established rule is that hiring and firing of employees of
GOCCs with original charter are governed by the provisions of
the Civil Service Law, rules and regulations. Jurisdiction over the
strike and the dismissal of employees of the Zamboanga City
Water District (ZCWD) is therefore lodged not with the NLRC but
with the CSC. Because the employees of the ZCWD had,
however, submitted themselves to the jurisdiction of the NLRC
and had not questioned it, actively participating rather in the
proceedings before it, the Supreme Court deemed any objection
to the NLRC over their case waived (ZCWD vs. Buat, 232 SCRA
587). In a later decision involving an employee of the Tala
Leprosarium who was dismissed from the service and had
sought relief from the NLRC that granted him the reliefs sought
for, the Court found the Labor Arbiter and the NLRC to have
acted in excess of their jurisdiction, since it is the CSC that had
jurisdiction over their case. Jurisdiction is conferred by law. No
agreement of the parties can provide one (Department of
Health Dr. Jose Rodriguez Memorial Hospital vs. NLRC, 251
SCRA 700).
Dats | 8
 Sources: Atty. ELMAN notes; \
PHILIPPINE POSTAL CORPORATION
vi) The Philippine Postal Corporation (PPC), being a GOCC with
an original charter, falls within the scope of the Civil Service.
Thus, as regards personnel matters, the Civil Service Law applies
to the PPC. Its Board of Directors is authorized under its charter
(RA 7354) to formulate and implement its own system of
compensation for its personnel, including the payment of RATA.
In the exercise of such power, it is not required to observe the
rules and regulations of the Compensation and Position
Classification Office (CPCO). Neither is it required to follow
strictly the amounts provided in the General Appropriations Act
as its annual budget is not covered thereby. However, since the
PPC charter expressly exempts it from the rules and regulations
of the CPCO, said Board is not required to follow the CPCO’s
guidelines in formulating a compensation system for the PPC
employees. In other words, the general rule is that the PPC is
covered by the Civil Service Law as regards all personnel matters
except those affecting the compensation structure and position
classification in the corporation which are left to the PPC Board
of Directors to formulate in accordance with law. It must be
stressed that the Board’s discretion on the matter of personnel
compensation is not absolute as the same must be exercised in
accordance with the standard laid down by law, i.e., its
compensation system, including the allowances granted by the
Board to PPC employees, must strictly conform with that
provided for other government agencies under RA 6758 (Salary
Standardization Law) in relation to the General Appropriations
Act. To ensure such compliance, the resolutions of the Board
affecting such matters should first be reviewed and approved by
the DBM pursuant to Section 6 of PD 1597 which requires the
PPC to report to the President, through the DBM, the details of
its salary and compensation system. (Intia, Jr. vs. COA, 306 SCRA
610).
The DBM has the sole power and discretion to administer the
compensation and position classification system of the national
government (Victorina Cruz vs. CA, 252 SCRA 599).
Compensation, allowances and other benefits received by PRA
officials and employees without the requisite approval or
authority of the DBM are unauthorized and irregular (Philippine
Retirement Authority vs. Bunag, 397 SCRA 27).
PNCC
vii) Employees of the Philippine National Construction
Corporation (PNCC) are not public officers within the coverage
of RA 3019, inasmuch as PNCC has no original charter as it was
incorporated under the general law on corporations, and the
Sandiganbayan has no jurisdiction over them (Macalino vs.
Sandiganbayan, 376 SCRA 452).
ROLE OF DBM
Reviews compensation and benefits plan of government
agencies and determine if same complies with prescribed
policies & guidelines issued in accordance w/ laws.
Formulates and implements the national budget of government.
| LAW ON PUBLIC OFFICERS
GOCC GOVERNANCE ACT OF 2011 (RA 10149)
• Promotes financial viability & fiscal discipline in GOCCs thru
the Governance Commission for GOCCs
• Evaluates performance & relevance of GOCCs, monitors
their operations
• Repeals GOCCs’ charters w/c fix the directors’ term by
reducing it to 1 yr.
• Incumbents up to 6/30/11
• Per diems for actual attendance… incentives as authorized
by GCG
• Restitution and Prosecution of corrupt public officers who
collected abusive perks & scandalously high compensation.
• Rationalization of salaries & benefits based on performance
of officials & employees w/due regard to financial capability
of GOCC.
• 1-yr. term limit of CEO of GOCC; elected by BOT/BOD; may
be removed by Board for cause.
d. The abolition of the Career Executive Service Board by the
CSC was an ultra vires act. The Board has been created by law
(PD 1, Sept. 1, 1974) and could only be abolished by the
legislature. The powers of the CSC to reorganize are confined to
offices under its control. Although administratively attached to
the CSC, the Board was intended by the legislature to be an
autonomous entity (Eugenio vs. CSC, GR 115863, 31 March
1995).
On the other hand, the Court sustained the CSC's authority to
abolish the Merit system and Protection Board (MSPB) and to
take cognizance of cases that had been elevated to the MSPB.
The Court, relying on the language of PD 1409 that created the
MSPB "in the Civil Service Commission" and the 1987
Administrative Code that re-created the Board as an office of the
CSC, ruled that the MSPB was created by law as part of the
integral structure and organization of the CSC and "thus a proper
subject of organizational change which the CSC is authorized to
undertake under Sec. 17, Book V of the present Civil Service
Law." (Rubenecia vs. CSC, GR 115942, 31 May 1995).
Since the CSC had abolished the MSPB, pursuant to Section 17,
Book V of the Administrative Code, it is the CSC itself that could
rule on appealed decisions in administrative cases involving
officials and employees of the civil service (Fernando vs. Sto.
Tomas, 234 SCRA 548).
Dats | 9
 Sources: Atty. ELMAN notes; \
CLASSIFICATION OF CIVIL SERVICE
5. Classification of Civil Service
CAREER AND NON-CAREER SERVICE
I. Under PD 807 and EO 292(CAREER AND NON-CAREER)
CAREER SERVICE
a. CAREER SERVICE is characterized by:
1) entrance based on merit and fitness to be determined as far
as practicable by competitive examinations, or based on highly
technical qualifications;
2) opportunity for advancement; and
3) security of tenure [1999 BQ] (Astraquillo vs. Manglapus;
Melchor vs. Saez, 190 SCRA 281).
What is included in the career service? (’99 BQ)
1. Open career
2. Closed Career
3. Positions in CES
4. Career officers other than CES
5. Commissioned officers/enlisted men in AFP
6. Personnel of GOCC
Qualification in an appropriate exam is required for appointment
to positions in the first and second levels in the career service;
provided that whenever there is a civil service eligible actually
available for appointment, no person who is not an eligible shall
be appointed even in a temporary capacity xxx
Exceptions: when immediate filling of vacancy is urgently
required in the public interest or when vacancy is not
permanent …
Security of tenure means that no officer or employee in the civil
service shall be suspended or dismissed except for cause as
provided by law and after due process [1999 BQ]. Together with
the merit and fitness rule, it is a basic feature of the civil service
system (Palmera vs. CSC, 235 SCRA 87).
The guarantee of security of tenure under the Constitution is not
a guarantee of perpetual employment – it only means that an
employee cannot be dismissed (or transferred) from the service
for causes other than those provided by law and only after due
process has been accorded the employee, but where it is the
law-making authority itself which furnishes the ground for the
transfer of a class of employees, no such capriciousness can be
raised (De Guzman Jr. vs. Comelec, 336 SCRA 188).
Astraquillo vs. Manglapus & Melchor vs. Saez, 190 SCRA 281
| LAW ON PUBLIC OFFICERS
Proximity rule: Salas’ position as Internal Security Staff was
remote from the appointing authority (Pagcor vs. Salas, 274
SCRA 414)
Three major levels/classes of positions in the Career Service
st
1) 1 level includes clerical, trades, crafts & custodial services
positions w/c involve non-professional or sub-professional work.
nd
2) 2 level includes professional, technical and scientific
positions… up to Division Chief level
rd
3) 3 level covers positions in the Career Executive Service
rd
Positions in the CES (3 level) CAREER EXECUTIVE SERVICE
under Sec. 8, Bk. V, EO 292
Undersecretary, Asst. Sec., Bureau Director, Asst. Bureau
Director, Reg. Director, Asst. Reg. Director, Chief of Department
Service & other officers of equivalent rank as may be identified
by the CESB, all of whom are appointed by the President.
(Ombudsman vs. CSC, 451 SCRA 570).
rd rd
3 level eligibility is not required for 3 level officials of the
Office of Ombudsman.
The letter & intent of the law is to circumscribe the Career
Executive Service (CES) to CES positions in the Executive Branch,
& that the Judiciary, the Constitutional Commissions, Office of
Ombudsman & CHR are not covered by the CES governed by the
CESB. Thus, the CA ruled to grant the petition of Mr. Inok for
security of tenure as Director ll of the COA despite absence of a
CES eligibility (Inok vs. CSC, 02 July 2002).
The Third Level covers only the positions in the CES as
enumerated in the Administrative Code of 1987 and those
identified by the CESB as of equivalent rank, all of whom are
appointed by the President of the Philippines (Modesto Agyao
Jr. vs. CSC, 18 January 2011).
To classify other positions not included in the enumeration as
covered by the CES and require appointees thereto to acquire
CES or CSE eligibility before acquiring security of tenure will lead
to unconstitutional & unlawful consequences. It will result either
in
1) vesting the appointing power for non- CES positions in
the President, in violation of the Constitution; or
2) Including in the CES a position not occupied by
presidential appointee, contrary to EO 292.
NON-CAREER SERVICE
b. NON-CAREER SERVICE is characterized by:
1) entrance on bases other than those of the usual test of merit
and fitness; and
2) tenure is limited to a period specified by law, or is co-terminus
with that of the appointing authority or subject to his pleasure,
or limited to the duration of a particular project. The Non-career
Dats | 10
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

service shall include x x x Chairman and members of Regalado, G.R. No. 77373, Aug.
commissions and boards with fixed terms of office and their 22, 1991).
personal or confidential staff.

What is included in the non-career service? COMPETITIVE AND NON-COMPETITIVE SERVICE

1. Elective officials and their personal or confidential staff

2. Department heads and other officials of Cabinet rank whose II. Under Art. lX-B, Sec. 2 (2) of 1987 Constitution
positions are at the pleasure of the President and their personal (COMPETITIVE AND NON-COMPETITIVE)
or confidential staff
a. COMPETITIVE POSITIONS: appointments made according to
3. Chairman and members of commissions and boards with merit and fitness.
fixed terms of office and their personal or confidential staff
b. NON-COMPETITIVE POSITIONS: those which by nature are -
4. Contractual personnel
i. primarily confidential - denotes not only confidence in the
5. Emergency and casual personnel aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings or betrayals
Regardless of the classification of the position held by a of personal trust on confidential matters of state.
government employee covered by civil service rules, be it career
ii. policy determining - one charged with the duty to
or non-career position, such employee may not be removed
formulate a method of action for the government or any of its
without just cause. An employee who belongs to the non-career
subdivisions.
service is protected from removal or suspension without just
cause and non-observance of due process (Jocom vs. Robredo & iii. highly technical - if the occupant is required to possess a
Regalado, 201 SCRA 73). technical skill or training in the supreme or superior degree.
RA 7104 creating the Commission on the Filipino Language
provides for 11 Commissioners to be headed by a chairman and
all appointed by the President and they serve full-time for a • Nature – and not label – that makes it competitive.
seven year term. Respondent Nita Buenaobra who is its Chair is Executive has power to declare classification of non-
a non-career service personnel whose tenure of seven years is competitive position (Sec. 12, Bk. V, EO 292)
fixed by RA 7104. Her removal from office is not at the pleasure
of the appointing authority (Office of the President vs.
Buenaobra, 501 SCRA 303).
Her removal ordered by the Office of the President, upon the
PAGC conclusion that she violated RA 3019 without any factual
findings, is without just cause (ibid).

Distinctions between career service and non-career service:

CAREER SERVICE NON- CAREER SERVICE
Entrance based on merits Entrance other than based on
and fitness except positions the merit and fitness.
which are :
1. Primarily Confidential
2. Highly technical and
3. Policy Determining
Determined by competitive Determine not by competitive
examination examination
Opportunity for No such opportunity
advancement to higher
career position
There is security of tenure Tenure is limited to a period
specified by law, coterminous
with the appointing authority or
subject to his pleasure, or which
is limited to the duration of a
particular purpose (Jocom v.

Dats | 11
 Sources: Atty. ELMAN notes; \
TERM OF OFFICE vs. TENURE OF OFFICE
Term – the time during w/c officer may claim to hold office as of
right and fixes the interval after w/c the incumbents shall
succeed one another.
Tenure – the term during which the incumbent actually holds
office.
Importance of distinction: Constitutional principle of non-
removal without due process of law would be negated if
Congress could legally make tenure of officials dependent on
pleasure of the President.
6. Term of an office as distinguished from the tenure of the
incumbent: The term means the time during which the officer
may claim to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one another. The
tenure represents the term during which the incumbent actually
holds the office. The term of office is not affected by the hold-
over. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent (Aparri vs. CA,
127 SCRA 240).
The distinction between term and tenure is important, for,
pursuant to the Constitution, ‘no officer or employee is the civil
service may be removed or suspended except for cause as
provided by law’ and this fundamental principle would be
defeated if Congress could legally make the tenure of some
officials dependent on the pleasure of the President, by clothing
the latter with blanket authority to replace a public officer
before the expiration of his term. When EO 163 was issued, the
purpose was to comply with the constitutional provision that
“the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be
provided by law” (Sec. 17(2), Art. Xlll, Const.). As the term of
office of the Chairman and the members of the CHR is 7 years,
without reappointment, as provided by EO 163, and to give the
CHR the needed independence, the tenure in office of said
Chairman and members cannot be made dependent on the
pleasure of the President. Hence, EO 163-A providing that the
tenure of said Chairman and the members of the CHR shall be at
the pleasure of the President is unconstitutional (Bautista vs.
Salonga, 172 SCRA 164).
The members of the House of Representatives Electoral Tribunal
are entitled to security of tenure like members of the judiciary.
Membership in it may not be terminated except for a just cause.
Disloyalty to party is not a valid ground for the expulsion of a
member of the House of Representatives Electoral Tribunal. Its
members must discharge their functions with impartiality and
independence from the political party to which they belong
(Bondoc vs. Pineda, 201 SCRA 792).
For the effective operation of the rotational scheme of the
Constitutional Commissions, the first Commissioner should start
on a common date and any vacancy before the expiration of the
term should be filled only for the unexpired balance of the term
(Republic vs. Imperial, 96 Phil. 770) [1999 BQ].
The terms of the first Chairmen and Commissioners of the
| LAW ON PUBLIC OFFICERS
Constitutional Commissions under the 1987 Constitution must
start on a common date, (that is, February 2, 1987 – the date of
the adoption of the 1987 Constitution), irrespective of the
variations in the dates of appointments and qualifications of the
appointees, in order that the expiration of the first terms of
seven, five, and three years should lead to the regular
recurrence of the two-year interval between expiration of the
terms. In case of a belated appointment or qualification, the
interval between the start of the term and the actual
qualification of the appointee must be counted against the
latter. Hence, the 7-year term of office of CSC Commissioner
Gaminde, who was appointed on June 11, 1993, expired on
February 2, 1999 since the term of her predecessor ended on
February 2, 1992. In the same manner, the term of her successor
must be deemed to start on February 2, 1999 and will expire on
February 2, 2006, notwithstanding that Gaminde served as de
facto officer until February 2, 2000 (Gaminde vs. COA, GR
140335, 13 December 2000).
The expiry of the term of petitioner, in his capacity as an ex
officio member of the Sangguniang Bayan of Nabua, Camarines
Sur being the elected President of the Liga ng mga Barangay,
coincides with the expiration of the term of office of regular
members (Hernandez vs. Lanzuela, October 13, 1999).
*Datu Michael Abas Kida vs. Senate of the Phil., October 18,
2011
A legislation allowing the elective officials in the ARMM to
remain in office in a holdover capacity until those elected in the
synchronized elections assume office is unconstitutional. It
would violate Sec. 8, Art. X of the Constitution which states that
the term of office of elective local officials, except barangay
officials which shall be determined by law, shall be three years
and no such official shall serve for more than 3 consecutive
terms. Since elective ARMM officials are local officials, they are
covered and bound by the three-year term limit prescribed by
the Constitution. Congress cannot extend their term through a
law allowing officials to serve in a holdover capacity. Congress
cannot also create a new term and effectively appoint the
occupant of the position for the new term. This is effectively an
act of appointment by Congress and an unconstitutional
intrusion into the constitutional appointment power of the
President.
RA 10153, which authorizes the President to appoint officers in
charge until those elected in the synchronized elections assume
office, is a valid law. The appointing power is embodied in Sec.
16, Art. Vll of the Constitution which states that the President
shall appoint all other officers of the government whom the
President may be authorized by law to appoint. Moreover, what
RA 10153 only does is to grant the President the power to
“appoint OICs for the office of the Regional Governor, Reg. Vice
Governor and members of the Regional Legislative Assembly
who shall perform the functions pertaining to said offices until
the officials duly elected in the May 2012 elections shall have
qualified and assumed office.” This power is different from
appointing elective ARMM officials for the abbreviated term
ending on the assumption to office of the officials elected in the
Dats | 12
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

May 2013 elections.

*Funa vs. COA Chair, April 24, 2012

Reynaldo Villar was already COA Commissioner for four years
(whose term would end Feb.2, 2011) when he was appointed
acting chair upon the retirement of his predecessor, Guillermo
Carague, on Feb. 2, 2008. On April 18 of same year, Pres. GMA
appointed him as permanent chair of COA. Villar claims his
appointment as COA chair gave him a fresh seven year term to
expire in 2015. Held: Villar’s appointment for a full seven-year
term is unconstitutional as it violated Sec. 1(2), Art. lX(D) of the
Constitution which reads:”The Chairman and Commissioners (on
Audit) shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years
without reappointment… Appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor.”
A COA Commissioner like respondent Villar who serves for a
period less than seven years cannot be appointed as chairman
when such position became vacant as a result of the expiration
of the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and constitutional, as the
appointee will be allowed to serve more than 7 years under the
constitutional ban.

PRIMARILY CONFIDENTIAL POSITIONS

7. The tenure of officials holding primarily confidential positions

ends upon loss of confidence, because their term of office lasts
only as long as confidence in them endures; and thus their
cessation involves no removal. When such confidence is lost and
the officer holding such position is separated from the service,
such cessation entails no removal but an expiration of term. In
Cadiente vs. Santos (142 SCRA 280) and Grino vs. CSC (GR
91602, 26 February 1991), the Supreme Court declared that the
positions of City Legal Officer and Provincial Attorney are
primarily confidential positions. But with respect to their legal
staff or subordinates, their positions are highly technical and not
confidential, so that they are permanent employees. In an obiter
in De Perio Santos vs. Macaraig, 10 April 1992, the position of
Permanent Representative to the United Nations in Geneva was
considered a primarily confidential position.

Dats | 13
 Sources: Atty. ELMAN notes; \
ELIGIBILITY TO PUBLIC OFFICE
Qualifications generally required of public officers:
* Citizenship, residence, age, education and civil service
qualifications
• Qualification Standards
• Religious qualifications prohibited (Sec. 5, Art. lll,
Constitution)
• Ruling in Pamil vs. Teleron on basis of Sec. 2175 of old
Admin. Code (20 Nov. 1978) superseded by ’87 Const.
Property qualifications may not be imposed for the exercise of
right to run for public office. Law requiring candidates for public
office to post surety bond held unconstitutional as it violates
principle of social justice.(Maquera vs. Borra, 9/7/65)
Qualifications of local elective officials (Sec. 39, RA 7160)
Loss of any of the qualifications during incumbency a ground for
termination (Labo vs COMELEC, 176 SCRA 1)
DISQUALIFICATIONS FROM LOCAL ELECTIVE
POSITION
8. Disqualifications for local elective position under Sec. 40, RA
7160 [1999 BQ]:
a. Those sentence by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2)
years after serving sentence;
b. Those removed from office as a result of an
administrative case;
c. Those convicted by final judgment for violating the oath
of allegiance to the Republic;
d. Those with dual citizenship;
e. Fugitives from justice in criminal or non-political cases
here or abroad;
f. Permanent residents in a foreign country;
g. The insane or feeble-minded.
Those who have not served their sentence by reason of the
grant of probation which should not be equated with service of
sentence, should not be disqualified from running for a local
elective office because the two year period of ineligibility under
Sec. 40(a) of the LGC does not even begin to run.
Petitioner Moreno, the incumbent Punong Barangay at the time
of his conviction by the RTC of the crime of Arbitrary Detention
and who was sentenced to suffer imprisonment of 4 months and
1 day to 2 years and 4 months, should not have been
disqualified by the COMELEC from running for Punong Barangay
in the July 2002 Barangay Elections because he did not serve the
adjudged sentence having been granted probation. During the
period of probation, the probationer is not disqualified because
the accessory penalty of suspension from public office is put on
| LAW ON PUBLIC OFFICERS
hold for the duration of the probation (Moreno vs. COMELEC,
498 SCRA 549).
The ruling of the Court in Dela Torre vs. CoMELEC (258 SCRA
483) that conviction for an offense involving moral turpitude
stands even if the candidate was granted probation does not
apply to Moreno because Dela Torre was convicted for violation
of the Anti-Fencing Law, an offense involving moral turpitude
covered by the first part of Sec. 40(a), and he applied for
probation nearly 4 years after his conviction and only after
appealing his conviction, thus Dela Torre could not have been
eligible for probation. The perfection of an appeal is a
relinquishment of the alternative remedy of availing of the
Probation Law, the purpose of which is to prevent speculation or
opportunism on the part of the accused (ibid).
In Reyes vs. COMELEC (254 SCRA 514), the Court held that an
elective local executive officer, who is removed before the
expiration of the term for which he was elected, is disqualified
from being a candidate for a local elective position under Sec. 40
of RA 7160.
However, in Lingating vs. COMELEC (391 SCRA 629), the Court
held that the rule that an elective local officer, who is removed
before the expiration of the term for which he was elected, is
disqualified from being a candidate for a local elective position
does not apply where the decision of the Sangguniang
Panlalawigan (SP) finding a local mayor guilty of dishonesty,
falsification and malversation has not become final. The Reyes
ruling cannot be applied because when respondent Sulong was
re-elected Mayor of Lapuyan, Zamboanga del Sur in the May
1992 elections, the February 4, 1992 Decision of the SP has not
until now become final. Here, Sulong filed a motion for
reconsideration on Feb. 17, 1992 and the SP required
complainant Lingating to comment; and the complainant has not
filed a comment nor has the SP resolved the motion. The filing of
Sulong’s motion prevented the decision of the SP from
becoming final. Where there was failure of the SP to resolve the
motion before the elections, it is unfair to the electorate to be
told after they have voted for said official that after all he is
disqualified, especially so where at the time of the election, the
decision sought to be reconsidered had been rendered nearly
ten years ago.
In Mercado vs. Manzano (May 26, 1999), the Court clarified
that the phrase “dual citizenship” aforementioned refers to
“dual allegiance”. Thus, persons with mere dual citizenship are
not disqualified. For candidates with dual citizenship, it should
suffice if, upon filing of their certificate of candidacy, they elect
Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states.
By electing Philippine citizenship, such candidate at the same
time forswears allegiance to the other country of which he is
also a citizen and thereby terminates his status as a dual citizen,
although from the viewpoint of the foreign state he is still its
citizen. Accordingly, Manzano was qualified to run for Vice
Mayor of Makati in the 1998 election.
R.A. No. 9225 (Citizenship Retention and Reacquisition Act of
2003 or the Dual Citizenship Act) expressly provides for the
Dats | 14
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

conditions before those who re-acquired Filipino citizenship may
run for a public office in the Philippines. Section 5 of the said
law states:
Section 5. Civil and Political Rights and
Liabilities. – Those who retain or re-acquire Philippine
citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities
and responsibilities under existing laws of the
Philippines and the following conditions:
xxx
(2) Those seeking elective public office in the
Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer
authorized to administer an oath.
In Eusebio Eugenio Lopez v. Comelec (23 July 2008), petitioner
was born a Filipino but he deliberately sought American
citizenship and renounced his Filipino citizenship. He later on
became a dual citizen by re-acquiring Filipino citizenship. While
he was able to regain his Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of allegiance before the
Vice Consul of the Philippine Consulate General’s Office in Los
Angeles, California, the same is not enough to allow him to run
for a public office. The law mandates that a candidate with dual
citizenship must make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath. There is no evidence presented that will
show that Lopez complied with the provision of R.A. No. 9225.
For the renunciation to be valid, it must be contained in an
affidavit duly executed before an officer of law who is
authorized to administer an oath. The affiant must state in
clear and unequivocal terms that he is renouncing all foreign
citizenship for it to be effective. In the instant case, Lopez’s
failed to renounce his American citizenship as proven by the
absence of an affidavit. For failure of petitioner to prove that he
abandoned his allegiance to the United States, he is disqualified
from running for Barangay Chairman of Barangay Bagacay.
qualified for elective office, the law requires that the candidate
who is a green card holder must have waived his status as a
permanent resident or immigrant of a foreign country.
Therefore, his act of filing a certificate of candidacy for elective
office in the Philippines did not of itself constitute a waiver of his
status as a permanent resident or immigrant of the United
States. The waiver of his green card should be manifested by
some act or acts independent of and done prior to filing his
candidacy for elective office in the country. Without such prior
waiver, he was disqualified to run for any elective office.
In Altarejos vs. COMELEC (441 SCRA 655), the Court ruled that
although petitioner had petitioned for his repatriation as a
Filipino citizen under RA 8171 on 17 December 1997, this did not
restore his Filipino citizenship, because Sec. 2 of said law
specifically provides that “repatriation shall be effected by taking
the necessary oath of allegiance to the Republic of the
Philippines and registration (of the Certificate of Repatriation) in
the proper civil registry and the Bureau of Immigration.” In this
case, Altarejos took his oath of allegiance in December 1997, but
his Certificate of Repatriation was registered with the Civil
Registry only after 6 years or on February 18, 2004, and with the
Bureau of Immigration on March 1, 2004. Petitioner completed
all the requirements of repatriation only after he filed his
certificate of candidacy for a mayoralty position. Altarejos is
disqualified from being a candidate for the position of mayor of
San Jacinto, Masbate in the May 10, 2004 elections. In Bengson
vs. House of Representatives Electoral Tribunal (357 SCRA 545),
the Court ruled that repatriation results in the recovery of the
original nationality. Since the candidate for elective office was a
natural-born Filipino citizen before he became a naturalized
American citizen, he was restored to his former status as a
natural-born Filipino when he was repatriated (2002 BQ).

Failure to renounce foreign citizenship in accordance w/ Sec. 5

(2) of RA 9225 renders a dual citizen ineligible to run for & hold
elective public office. Unless Condon executes a sworn
renunciation of her Australian citizenship, she is ineligible to
hold office as Vice Mayor of Caba, La Union. That she won in the
2010 elections cannot cure the defect of her candidacy, despite
her taking an oath of allegiance to the Phil. state in Dec. 2005
and her filing of an unsworn declaration of denunciation of
Australian citizenship before the Dep’t of Immigration &
Indigenous Affairs in Canberra in Sept. 2006 (Teodora Sobejana-
Condon vs. Comelec, 9/7/12).

In Caasi vs. CA (191 SCRA 229), the Court ruled that Merito
Miguel of Bolinao, Pangasinan was not qualified to run for
Mayor of Bolinao because he was a green card holder. To be

Dats | 15
 Sources: Atty. ELMAN notes; \
APPOINTMENT vs. DESIGNATION
9. Appointment distinguished from designation. An appointment
is the selection by the proper authority of an individual who is to
exercise the powers and functions of a given office; a
designation merely connotes an imposition of additional duties,
usually by law, upon a person already in the public service by
virtue of an earlier appointment (National Amnesty Commission
vs. COA, 437 SCRA 657).
Designation does not entail payment of additional benefits or
grant upon the person so designated the right to claim the salary
attached to the position. The legal basis to claim such salary
attached thereto is a duly issued and approved appointment to
the position, and not a mere designation (ibid). Appointment
connotes permanency while designation implies temporariness.
Thus, to designate a public officer to another position may mean
to vest him with additional duties while he performs the
functions of his permanent office, as when an Undersecretary is
designated to discharge the functions of a Secretary pending the
appointment of a permanent Secretary (Triste vs. Leyte State
College, 17 December 1990).
Where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary
capacity and may be replaced at will by the appointing authority
(Benamira vs. Garrucho, 188 SCRA 154). Where the law says
that the officer is to be appointed by the President, designation
by the department secretary does not result in a permanent
appointment (supra).
KINDS OF APPOINTMENT IN THE CAREER
SERVICE
10. Kinds of appointment in the career service:
Kinds of appointment: permanent and temporary
Different steps in process of appointment
Acceptance of appointment not essential to its validity but
necessary to the full possession of the office
One who holds a temporary appointment has no fixed tenure of
office (Achacoso vs. Macaraig, 195 SCRA 237). That a position
belongs to CS does not automatically confer security of tenure
xxx.
A permanent appointment can be issued only to a person who
meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed [1994
BQ]. Where the appointee does not meet the appropriate
eligibility, his appointment could be regarded as temporary.
One who holds a temporary appointment has no fixed tenure of
office; his employment can be terminated at the pleasure of the
appointing power, there being no need to show that the
| LAW ON PUBLIC OFFICERS
termination is for cause (Achacoso vs. Macaraig, 195 SCRA 237).
The mere fact that a position belongs to the Career Service does
not automatically confer security of tenure on its occupant even
if he does not possess the required qualifications. A person who
does not have the requisite for the position cannot be appointed
to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of
appropriate eligibles (supra).
Acceptance of a temporary appointment where there was no
intention to abandon permanent position does not divest the
employee of security of tenure (Palmera vs. CSC, 235 SCRA 87).
But where the appointee applied for and accepted the
temporary appointment in exchange for his permanent position
and he acted on his own volition, with full knowledge of the
consequences of his act, he was thereby effectively divested of
security of tenure (Romualdez vs. CSC, 197 SCRA 168).
A residency or resident physician position in a medical specialty
is never a permanent one, since residency connotes training and
temporary status (Felix vs. Buenaseda, 240 SCRA 139).
The right to security of tenure is not available to those
employees whose appointments are temporary and
coterminous in nature. Here, petitioner’s appointment was
temporary as he did not have the required career executive
service eligibility. An appointee without such eligibility cannot
hold the position in a permanent capacity.
A temporary appointee can be removed even without cause and
at a moment’s notice. As to those with eligibilities, their right to
security of tenure pertains to their rank but not to the position
to which they were appointed. Petitioner’s temporary
appointment was coterminous or one that is co-existent with
the tenure of the appointing authority or at the latter’s pleasure.
As such, his replacement was not removal but an expiration of
term and no prior notice, due hearing or cause were necessary
to effect the same. One who holds a temporary appointment
has no fixed tenure of office, his employment can be terminated
at the pleasure of the appointing authority, there being no need
to show that the termination is for cause (Samuel Ong vs. Office
of the President, 01/30/12).
NO SPECIFIC DESIGNATION
11. Where the appointment does not indicate a specific station,
an employee may be transferred or reassigned provided the
transfer affects no substantial change in title, rank or salary. And
the rule that outlaws unconsented transfers as anathema to
security of tenure applies only to an officer who is appointed -
not merely assigned - to a particular station (Sta. Maria vs.
Lopez, 31 SCRA 637; De Guzman Jr. vs. Comelec, 336 SCRA 188).
The clue to such transfers may be found in the nature of the
appointment. Where the appointment does not indicate a
specific station, an employee may be transferred or reassigned
provided the transfer affects no substantial change in title, rank
and salary (supra).
A person appointed as Principal in the Division of City Schools,
Quezon City, NCR, and stationed as Principal in the Carlos Albert
High School in Quezon City, could lawfully be reassigned or
Dats | 16
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

transferred to any station or school in Quezon City, without

demotion in rank or diminution of salary, as the exigencies of
public service require even without her consent (DECS vs. CA,
183 SCRA 555).

REASSIGNMENT
A reassignment in good faith and in the interest of the
government service is permissible and valid even without the
employee's prior assignment (Bentain vs. CA, 209 SCRA 644).
A reassignment that is indefinite and results in a reduction in
rank, status and salary, is in effect, a constructive removal from
the service (supra). Where the reassignment of respondent
Bienvenido Icasiano from School Division Superintendent of
Quezon City to Vocational School Superintendent of the
Marikina Institute of Science and Technology, embodied in a
Memorandum of DECS Secretary Ricardo Gloria as approved by
the President of the Philippines, appears to be indefinite, such
reassignment violates respondent’s security of tenure. The lack
of temporariness of the assignment can be inferred from the
Memo to the effect that the reassignment will “best fit his
qualifications and experience” being “an expert in vocational
and technical education.” Nothing therein shows that the
reassignment is temporary or would only last until a permanent
replacement is found as no period is fixed (Gloria vs. CA &
casiano, 338 SCRA 10).
Appointments to the staff of the Civil Service Commission are
not appointments to a specified public office but rather
appointments to particular positions or ranks. Thus,
reassignment of petitioners, who were appointed to positions of
Directors of offices within the Commission, to the Commission's
regional offices, without their consent, did not violate their
constitutional right to security of tenure. Section 17 (Book V,
Title 1, Chapter 3) of the 1987 Revised Administrative Code had
expressly authorized the Commission to carry out "changes in
the organization" as the need arises (Fernandez vs. Sto. Tomas,
242 SCRA 193).
Although the reassignment is presumed regular and made in the
interest of public service unless proven otherwise or if it
constitutes constructive dismissal (CSC MC No. 40, s. 1998),
there is bad faith attendant to herein case evidenced by the fact
that the reassignment was issued days after the reassigned
officials filed a graft case against petitioner LWUA Administrator.
Also, his reassignment orders were illegal because by law, the
authority to reassign officers of the LWUA lies with the Board;
his authority is merely to recommend a reassignment to the
Board (Reyes, Jr. vs. Belisario, 596 SCRA 35). The presumption
of regularity, as relied upon by the Ombudsman in dismissing
the oppression charge, does not apply when an official’s acts are
not within the duties specified by law, particularly when his acts
pertain to another entity or public official. The authority to
reassign officers lies with the LWUA Board and not with the
petitioner administrator (supra).

Dats | 17
 Sources: Atty. ELMAN notes; \
CAREER EXECUTIVE SERVICE
12. Security of tenure in the Career Executive Service (CES) is
acquired with respect to rank and not to position.
2 requisites must concur in order that an employee in the CES
may attain security of tenure, to wit:
a) CES eligibility; and
b) appointment to appropriate CES rank.
Passing CES exam entitles examinee to conferment of CES
eligibility. Upon conferment, incumbent of CES position may
qualify for appointment to a CES rank. W/o CES eligibility, his
appointment did not acquire permanency & may be withdrawn
anytime w/o violating right to security of tenure (Caringal vs.
PCSO, 472 SCRA 577).
The guarantee of security of tenure to members of the CES does
not extend to the particular positions to which they may be
appointed – a concept which is applicable only to first and
second-level employees in the civil service – but to the rank to
which they are appointed by the President.
As Josefina Bacal does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, but merely
temporary, and she cannot claim security of tenure in respect of
that position. She did not acquire security of tenure by the mere
fact that she was appointed to the higher position of Chief Public
Attorney since she was not subsequently appointed to the rank
of CESO 1 based on her performance in that position as required
by the rules of the CES Board. Respondent as a CESO can be
reassigned from one CES position to another and from one
department, bureau or office to another. Within the CES,
personnel can be shifted from one office or position to another
without violation of their rights to security of tenure because
their status and salaries are based on their ranks and not on
their jobs. Respondent, who holds a CES Rank III, was correctly
and properly appointed by the appointing authority to the
position of Regional Director, a position which has a
corresponding CES Rank Level III, and this cannot be considered
a demotion nor violative of security of tenure. This was her
position before her appointment on Feb. 5, 1998 to the position
of Chief Public Attorney of the PAO, which requires a CES Rank
Level 1 for appointment thereto. She may have been considered
for promotion to Rank 1 to make her appointment as Chief
Public Attorney permanent. The fact, however, is that this did
not materialize as petitioner Carina Demaisip was appointed in
her place (Cuevas vs. Bacal, 347 SCRA 339).
On the fact that petitioner is a CES eligible, the law (Integrated
Reorganization Plan) allows in exceptional cases the
appointment of non-CES eligibles provided that the appointee
subsequently passes the CES Examinations. On the other hand,
as Bacal herself does not have the requisite qualification for the
position of Chief Public Attorney, she cannot raise the lack of
| LAW ON PUBLIC OFFICERS
qualification of petitioner Demaisip. In a quo warranto
proceeding, the person suing must show that he has a clear right
to the office allegedly held unlawfully by another. Absent that
right, the lack of qualification or eligibility of the supposed
usurper is immaterial (supra).
Under the Rules promulgated by the CES Board, what entitles an
examinee to a conferment of a CES eligibility is his passing the
CES examination. Upon conferment of a CES eligibility, an
incumbent of a CES position may qualify for appointment to a
CES rank. After such appointment, the appointee is entitled to
security of tenure. Petitioner, who was appointed Assistant
Department Manager of the PCSO, does not possess the
required CES eligibility. Hence, he has not security of tenure. His
appointment did not attain permanency, thus, it can be
withdrawn from him anytime without violation of the right to
security of tenure (Caringal vs. PCSO, 472 SCRA 577).
The Court affirmed the validity of petitioner Amores’ separation
from service without cause as Deputy Director for Hospital
Support Services at the Lung Center of the Philippines. Said
position belongs to the CES appointments to which by law
require that the appointees possess the corresponding CES
eligibility. Although the law permits on many occasions the
appointment of non-CES eligibles to CES positions in the
government in the absence of appropriate eligibles and when
there is necessity in the interest of public service to fill vacancies
in the government, however, in all such cases, the appointment
is at best merely temporary as it is said to be conditioned on the
subsequent acquisition of the required CES eligibility (Amores
vs. CSC, 29 April 2009).
The security of tenure of employees in the CES (except first and
second-level employees in the civil service), pertains only to rank
and not to the office or to the position to which they may be
appointed. Thus, a CESO may be transferred or reassigned from
one positon to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO suffers
no diminution of salary even if assigned to a CES position with
lower salary grade, as he is compensated according to his CES
rank and not on the basis of the position or office he occupies
(General vs. Roco, 350 SCRA 528).
While there is a distinction between position and rank, such that
a CESO may be transferred or reassigned from one position to
another without losing his rank, there can be no distinction
between resigning from a position and resigning from a rank.
The rank of a CESO is deactivated upon resignation from the
government service, which includes resignation of a CESO from
his position (Collantes vs. CA, CSC and DND, 06 March 2007).
A major feature of the Integrated Reorganization Plan which
was adopted and declared part of the law of the land by PD No.1
on Sept. 24, 1972 was the creation of the CES. This group of
career executives shall be carefully selected based on high
qualifications and competence… and shall act as catalysts for
administrative efficiency and agents of administrative
innovation. Their status and salary will be based on their rank
and not on the job that they occupy at any given time. The rank
classification in the CES will allow for mobility or flexibility of
assignments such that government could utilize their services or
special talents wherever they are most needed. Thus, mobility
and flexibility in the assignment of personnel to cope with the
exigencies of the service is the distinguishing feature of the CES
Dats | 18
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

(Cuevas vs. Bacal). CES a position not held by a presidential appointee, contrary to
the Administrative Code (Ombudsman vs. CSC, 528 SCRA 535).
The position of Director Manager ll at the PEZA is not among the
In order for a position to be covered by the CES, two elements
enumerated positions in the Career Executive Service, much
must concur. First, the position must either be (1) a position
less, a position that requires presidential appointment. For said
enumerated under Bk V, Title I(A), Chapter 2 of the
reason, Agyao only needs the approval of the PEZA Director-
Administrative Code of 1987, i.e. Undersecretary, Asst.
General to validate his appointment or re-appointment. As he
Secretary, Bureau Director, Asst. Bureau Director, Regional
need not possess a CESO or CSEE eligibility, the CSC has no valid
Director, Assistant Regional Director, Chief of Department
and legal basis in invalidating his appointment or re-
Service, or (2) a position of equal rank as those enumerated, and
appointment as Department Manager ll. The CA decision
identified by the CES Board to be such position of equal rank.
affirming the invalidation by the CSC of petitioner Agyao as
Second, the holder of the position must be a presidential
Department Manager ll of Philippine Economic Zone Authority
appointee. Failing in any of these requirements, a position
was thus reversed and set aside by the SC (Agyao vs. CSC, 18
cannot be considered as one covered by the third level or CES.
January 2011).
The holder of the position of Asst. Department Manager ll is
appointed by the PCSO General Manager, and not by the
President of the Philippines, accordingly, said position is not
POSITIONS EXCLUDED FROM CAREER EXECUTIVE SERVICE
covered by the third level or the CES, and does not require
Career Service Executive (CSE) eligibility. Therefore, the
appointments of Sarsonas and Ortega as Asst. Dep’t. Manager ll
do not require third level eligibility pursuant to the Civil Service Positions excluded from the coverage of the CES per CESB
Law, rules and regulations (CSC vs. CA, 635 SCRA 749). Resolution No. 799 (May 19, 2009):

The position of HIGC Vice President is not covered by the CES as
the position is not enumerated by law as falling under the third
level; respondent Cruz has not established that the position is
one of those identified by the CESB as being of equivalent rank
to those listed by law; and the holder thereof is not appointed
by the President (Home Insurance Guarantee Corp. vs. CSC, 220
SCRA 148).
a. Managerial and executive positions which have fixed term of
office as provided for in the charter of the agency or as specified
by law;
b. Managerial and executive positions in the non-career service
which include the following:
i. Elective officials and their personal or confidential staff;

A person occupying the position of Graft Investigation Officer lll ii. Secretaries and other officials of cabinet rank who hold
is not appointed by the President but by the Ombudsman as their positions at the pleasure of the
provided in Article lX of the Constitution. To classify said position President and their personal or confidential staff;
as belonging to the CES and require an appointee thereto to
acquire CES or CSE eligibility before acquiring security of tenure iii. Chairman and members of commission and boards with
would be absurd as it would result either in (1) vesting the fixed terms of office and their personal or
appointing power for said position in the President, in violation confidential staff;
of the Constitution; or (2) including in the CES a position not iv. contractual personnel; and
occupied by a presidential appointee, contrary to the
Administrative Code (Ombudsman vs. CSC, 451 SCRA 570). v. emergency and seasonal personnel.
rd
The position of Vice President of HIGC does not belong to the 3 c. Managerial and executive positions in the national
level of the career service. Respondent Cruz has not government belonging to the closed career systems which are
satisfactorily shown that his former position as Vice President in administered by special bodies such as the Foreign Service, PNP,
the HIGC belongs to the third level in the career service as State Colleges and Universities unless otherwise provided in
prescribed by law, nor has he established that it is one of those their respective charters, the Scientific Career Service and the
identified by the CESB as of equivalent rank to those listed by like;
law. Neither is it claimed tha he was appointed by the President
d. The position of Head Executive Assistant.
(Home Insurance Guarantee Corporation vs. CSC, 220 SCRA
148).
Under the Constitution, the Ombudsman is the appointing
authority for all officials and employees of the Office of the
Ombudsman, except the Deputy Ombudsmen. Director ll
positions in the Central Administrative Service and the Finance
Management Service of the Office of the Ombudsman are
appointed by the Ombudsman and not by the President. Hence,
they are not covered by the CES. The CES covers presidential
appointees only. To classify these positions as covered by the
CES and require appointees thereto to acquire CES or CSE
eligibility before acquiring security of tenure will lead to
unconstitutional and unlawful consequences. It will result either
in (1) vesting the appointing power for said position in the
President, in violation of the Constitution or (2) including in the

Dats | 19
 Sources: Atty. ELMAN notes; \
NEPOTISM
14. A promotional appointment that violates the prohibition
against nepotism is null and void, and void appointment cannot
give rise to security of tenure on the part of the holder of such
appointment (Debulgado vs. CSC, 237 SCRA 184). The purpose
of the prohibition against nepotism is precisely to take out of the
discretion of the appointing or recommending authority the
matter of appointing or recommending for appointment a
relative (supra).
rd
Sec. 59, EO 292: prohibition within 3 degree of consanguinity
or affinity
Sec. 67, EO 292: penalty of fine of not more than P1,000 or not
more than 6 years imprisonment or both
th
Sec. 79, RA 7160: prohibition within 4 degree of consanguinity
or affinity
A promotional appointment violative of nepotism rule is null and
void (Debulgado vs. CSC, 237 SCRA 184).
Exceptions to the rule
Although what was extended by petitioner Governor to
Benjamin, who had been holding a promotional appointment as
Civil Security Officer, was merely a designation – and not an
appointment – to the position of Provincial Administrator, the
prohibition vs. nepotism would include designation, because
what cannot be done directly cannot be done indirectly (Laurel V
vs. CSC, 203 SCRA 195).
Purpose of the rule vs. nepotism: take out of the discretion of
the appointing or recommending authority.
WHEN APPOINTEE MAY BE
REASSIGNED/TRANSFERRED
Where appointment indicates no specific station, employee may
be transferred or reassigned provided … no substantial change in
title, rank or salary.
5 year term Dean of College of Education (Sta. Maria vs. Lopez,
31 SCRA 637)
Reassignment of Gloria Navarro as Principal in Division of City
Schools, Quezon City (DECS vs. CA, 183 SCRA 555)
15. A demotion, under Sec. 11, Rule VII of the Omnibus Rules
Implementing Book V of EO 292, is defined as 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. A
| LAW ON PUBLIC OFFICERS
diminution in any one of those categories is sufficient to
constitute a demotion, and hence, tantamount to a virtual
dismissal (Padolina vs. Fernandez, 342 SCRA 448).
Whereas Sec. 10 of the same rule defines reassignment as the
movement of an employee from one organizational unit to
another in the same department or agency which does not
involve a reduction in rank, status, or salary and does not
require the issuance of an appointment. A demotion therefore
involves the issuance of an appointment (Fernando vs. Sto.
Tomas, 234 SCRA 547).
Reassignment in good faith and in the interest of the
government service is permissible and valid even without the
employee’s prior consent (supra). A reassignment which
removes from a public officer’s power of supervision over forty-
one employees who are part of her staff and subordinates
results in a diminution of her status, and even if the
reassignment is temporary, it is diminution nonetheless
(Padolina vs. Fernandez, 342 SCRA 442).
A transfer requires a prior appointment (Palma-Fernandez vs.
dela Paz, 160 SCRA 751).
If the transfer was made without the consent of the official
concerned, it is tantamount to removal without valid cause
contrary to the fundamental guarantee on non-removal except
for cause (Garces vs. CA, 259 SCRA 105).
EO 06-92 issued by Mayor Plaza of Butuan City – reconstituting
the City Social Services Development Office (CSSDO), devolving
or adding thereto 19 national DSWD employees, designating
petitioner Virginia Tuazon as OIC of the reconstituted CSSDO and
transferring its office from the original CSSDO building to the
DSWD building – did not violate respondents’ security of tenure.
The Mayor is empowered to issue the EO to give effect to the
devolution decreed by RA 7160. As the local chief executive, he
has the authority to reappoint devolved personnel and may
designate an employee to take charge of a department until the
appointment of a regular head. There was also no illegal
transfer. The change of respondents’ place of work from the
original CSSDO office to the DSWD building is not a transfer. It
was only a physical transfer of their office to a new one done in
the interest of public service. There were no new movements or
appointments from one position to another (Democrito Plaza
and Virginia Tuazon vs. Carolina Cassion, 435 SCRA 295).
*Vinzons-Chato vs. Judge Zenoroza and Estrella Martinez, 344
SCRA 18
>There is no merit in the argument of Martinez that she will be
demoted by her transfer to the National Office, Collection
Programs Division because she was reassigned to a position
totally alien to her proven area of expertise in assessment.
Martinez holds the appointment of Chief Revenue Officer II and
such appointment will not be altered by her subsequent
reassignment pursuant to RTAO 8-95 as Assistant Division Chief
of the Collection Programs. She was merely assigned as Assistant
Revenue District Officer of BIR Revenue District No. 34 and the
Commissioner is authorized to assign or reassign internal
revenue officers and employees of the BIR as the exigencies of
the service may require, without demotion in rank and salary
conformably with Civil Service rules and regulations. To sustain
her contention that her transfer constitutes a demotion simply
because the new assignment is not to her liking would be to
Dats | 20
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

subordinate government projects, along with the great

resources and efforts they entail, to the individual preferences
and opinions of civil service employees. On the issuance by
Judge Zenoroza of a preliminary injunction enjoining the transfer
of Martinez, the issuance by the Supreme Court of a temporary
restraining order has the effect of countermanding the same,
with the result that her transfer becomes effective again.

A detail as defined in EO 292 is the movement of an employee

from one agency to another without the issuance of an
appointment and shall be allowed only for a limited period in
the case of employees occupying professional, technical or
scientific positions. If the employee believes there is no
justification for the detail, he may appeal his case to the CSC.
Pending appeal, the decision to detail the employee shall be
executory unless otherwise ordered by the CSC. A reassignment
means that an employee is reassigned from one organizational
unit to another in the same agency, provided that same shall not
involve a reduction in rank, status or salary. A detail requires a
movement from one agency to another while a reassignment
requires a movement within the same agency. Moreover,
pending appeal with CSC, an order to detail is immediately
executory, whereas a reassignment order does not become
immediately effective (CSC vs. Minerva Pacheco, 01/31/12).

Dats | 21
 Sources: Atty. ELMAN notes; \
PRESIDENTIAL APPOINTMENTS
ad interim and regular (Art. Vll, Sec. 16 Const.); Distinction
Distinction between ad interim appointments from
appointments in an acting capacity; President’s issuance of
appointments in an acting capacity is not an impairment of
power of Congress (Pimentel vs. Ermita, 472 SCRA 589).
No obligation on Pres. to appoint automatically the
Undersecretary xxx
13. The power to appoint involves the exercise of discretion. The
appointing power has a wide latitude of choice as to who is best
qualified for the position, subject only to the condition that the
appointee should possess the qualifications required of him. If
he does, then the appointment cannot be faulted on the ground
that there are others better qualified who should be appointed
(Patagoc vs. CSC, 14 May 1990).
The reckoning point in determining the qualifications of an
appointee is the date of issuance of the appointment and not
the date of its approval by the CSC or the date of resolution of
the protest against it (CSC vs. De la Cruz, 437 SCRA 404).
Even if petitioner occupies a "next-in-rank" position, that fact
alone does not impose on the appointing authority the duty to
appoint petitioner. He who is next in rank may claim preferential
consideration, but he has no vested right to the office to which
he seeks appointment (Umoso vs. CSC, 234 SCRA 619).
An appointment to a position in the civil service is required to be
submitted to the CSC for approval (Tomali vs. CSC, 238 SCRA
527).
The CSC has the power to approve or disapprove an
appointment and not the power to make the appointment itself
or to direct that such appointment be made by the appointing
authority (Orbos vs. CSC, 189 SCRA 459; Luego vs. CSC, 143
SCRA 327; Lapinid vs. CSC, 197 SCRA 106).
Without a favorable certification or approval of the CSC, in cases
when such approval is required, no title to the office can yet be
deemed to be permanently vested in favor of the appointee, and
the appointment can still be recalled or withdrawn by the
appointing authority. Until an appointment has become a
completed act, it would likewise be precipitate to invoke the rule
on security of tenure (Tomali vs. CSC, 238 SCRA 576).
The CSC has the authority to recall appointments made in
disregard of the applicable provisions of the CS Law and
regulations (Sales vs. Carreon Jr., 515 SCRA 597).
Where the CSC disapproves an appointment, based on its non-
conformity to applicable provisions of law and on the
qualifications of the appointee, the appointee need not be
previously heard since the action does not involve the
imposition of an administrative disciplinary measure (Debulgado
vs. CSC, 237 SCRA 186).
The fact that an employee, with a temporary appointment,
| LAW ON PUBLIC OFFICERS
subsequently passed the civil service exam does not transform
his appointment from temporary to permanent retroactive to
the date of the release of the examination results. What would
have been required to transform his status from temporary to
permanent would have been a new appointment, since a
permanent appointment is not a continuation of a temporary
appointment but a new one (Province of Camarines Sur vs. CA,
246 SCRA 283).
Even under the terms of RA 6850 (An Act to Grant Civil Service
Eligibility under Certain Conditions to Government Employees
Appointed Under Provisional or Temporary Status Who Have
Rendered a Total of Seven Years of Efficient Service; Approved
Feb. 8,1990), not every temporary or provisional employee is
automatically deemed a permanent employee after rendering at
least 7 years. The CSC still needs to evaluate whether the
employee is qualified to avail of the privilege granted by the
statute. Moreover, that an appointee obtains a civil service
eligibility later on does not ipso facto convert his temporary
appointment into permanent. A new appointment is still
required (Maniebo vs. CSC, 627 SCRA 570). Even an
appointment initially approved by the CSC may be subsequently
recalled when found to be invalid (id.).
The success of petitioner in the civil service examinations, upon
the termination of her temporary appointment, did not establish
a legal obligation on the part of the administrators of the
Philippine State College of Aeronautics to reappoint her.
Acquisition of such eligibility is not the sole factor for
reappointment. Other relevant considerations include
performance, degree of education, work experience, training,
seniority and the confidence of the appointing power. In other
words, the choice of an appointee from among those who
possessed the required qualifications is a political and
administrative decision calling for considerations of wisdom,
convenience, utility and the interests of the service which can be
best made by the head of the office concerned (Gloria vs. de
Guzman, GR 116183, 06 October 1995).
The municipal mayor, being the appointing authority, is the real
party in interest to challenge the CSC’s disapproval of the
appointment of his appointee (Dagadag vs. Tongnawa, 450
SCRA 437).
Both the appointing authority and the appointee are equally real
parties in interest who have the requisite legal standing to bring
an action challenging the CSC disapproval of an appointment.
The CSC’s disapproval of an appointment is a challenge to the
exercise of the appointing authority’s discretion. The appointing
authority must have the right to contest the disapproval. The
appointee is also injured by the CSC disapproval because he is
prevented from assuming the office in a permanent capacity and
he would necessarily benefit if a favorable judgment is obtained
as an approved appointment would confer on him all the rights
and privileges of a permanent appointee (Abella Jr. vs. CSC, 442
SCRA 507).
Petitioner Quirog had the right to ask for reconsideration of, or
to appeal the adverse ruling of CSCROVll invalidating her
appointment as Provincial Agriculture Department Head on the
basis of the prohibition against the issuance of midnight
appointments per CSC Resolution dated June 4, 2001. In
contrast, by reason of the expiration of his term as governor,
Relampagos who had issued the permanent appointment to
Quirog on May 23, 2001 had lost the legal personality to contest
Dats | 22
 Sources: Atty. ELMAN notes; \
the disapproval of the appointment (Quirog vs. Gov.
Aumentado , 570 SCRA 582).
Quirog’s appointment was not violative of the CSC Resolution
prohibiting midnight appointments. The constitutional
prohibition on so-called midnight appointments, specifically
those made within 2 months immediately prior to the next
presidential elections, applies only to the President or Acting
President. It does not mean however that the prohibition may
not be applied to those made by chief executives of LGUs since it
is designed to discourage losing candidates from issuing
appointments for partisan purposes thereby depriving the
incoming administration of making the appointments in line with
its new policies. Also, there was no violation of the CSC
Resolution because it took effect only after the questioned
appointment was extended and after she took office on June 1.
Further, the fact that she was only permanently appointed to
the position of Department Head-OPA after a year of being the
Acting Provincial Agriculturist more than shows that the filling
up of the position resulted from deliberate action and a careful
consideration of the need for the appointment and her
qualifications. An appointee already discharging the duties
concomitant with the position for a year prior to her permanent
appointment cannot be considered a midnight appointee
(Quirog vs. Gov. Aumentado , 570 SCRA 582).
*De Rama v. CA, 353 SCRA 94
Shortly before the end of his term on June 30, 1995, Mayor
Abeja of Pagbilao, Quezon, who lost the preceding election for
the same position, appointed 14 employees. The newly elected
mayor wrote a letter to the Civil Service Commission seeking to
recall the appointments of the 14 as these were “midnight
appointments.” He claims that they were violative of Art. VII,
Sec. 15 of the 1987 Constitution prohibiting the President or the
Acting President from making appointments 2 months
immediately before the next presidential election and up to the
end of his term. Is the prohibition applicable to local chief
executives?
Held: No. The prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits
local elective officials from making appointments during the last
days of his or her tenure. The appointing authority, in the
absence of any prohibition, can validly issue appointments until
his term expires, as long as the appointee meets the
qualification standards for the position.
Art. Vll, Sec. 15 Constitution
“Two months immediately before the next presidential elections
and up to the end of his term, the President or Acting President
shall not make appointments, except temporary appointments
to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.”
*Nazareno vs. City of Dumaguete, 02 October 2009
As a general rule, appointments made by defeated local
candidates after the elections are prohibited to avoid
| LAW ON PUBLIC OFFICERS
animosities between outgoing and incoming officials, to allow
the incoming administration a free hand in implementing its
policies, and to ensure that appointments and promotions are
not used as tools for political patronage or as a reward for
services rendered to the outgoing local officials.
However, appointments made after elections by losing
candidates may be allowed under the following requisites:
a. the appointment has gone through the regular screening
by the Personnel Selection Board (PSB) before the prohibited
period on the issuance of appointment as shown by the PSB
report or minutes of its meeting;
b. the appointee is qualified;
c. there is a need to fill up the vacancy immediately in order
not to prejudice public service and/or endanger public safety;
and
d. the appointment is not one of those mass appointments
issued after the election.
KINDS OF PRESIDENTIAL APPOINTMENTS
16. Kinds of Presidential Appointments
a) An ad interim appointment is one made during the time
when the appointing or confirming body is not in session
and there is an existing clear and present urgency caused
by an impending obstruction or paralyzation of the
functions assigned to the office if no immediate
appointment is made (Marohombsar vs. Alonto, 194
SCRA 268).
b) Under Article Vll, Sec. 16 of the Constitution, an ad interim
appointment is immediately effective and is subject only
to disapproval by the Commission on Appointments or as
a result of the next adjournment of Congress (1991 BQ).
Appointments that are for the President solely to make,
i.e., without the participation of the Commission on
Appointments, cannot be ad interim appointments
(Bautista vs. Salonga, 172 SCRA 160).
The appointment by the President of Mary Concepcion to
the position of Chair of the Commission on Human Rights
which under the Constitution is to be made, in the first
place, without the participation of the Commission on
Appointments was then and there a complete and finished
act (supra). Ad interim appointments must be
distinguished from appointments in an acting capacity.
Both of them are effective upon acceptance. But ad
interim appointments are extended only during a recess of
Congress, whereas acting appointments may be extended
any time there is vacancy. More, ad interim appointments
are submitted to the Commission on Appointments for
confirmation or rejection; acting appointments are not
submitted to the Commission. Acting appointments are a
way of temporarily filling important offices but, if abused,
they can also be a way of circumventing the need for
confirmation by the Commission. Thus, to avoid abuses,
Dats | 23
 Sources: Atty. ELMAN notes; \
acting appointments cannot exceed one year as expressly
provided in Sec. 17(3), Ch. 5, Book lll of EO 292 (Pimentel
vs. Ermita, 472 SCRA 589).
Here, the appointment by Pres. GMA to respondents
Abad, Cruz Jr., Defensor, Durano, Gonzalez, Romulo, Villa
and Yap as acting secretaries of their respective
departments while Congress is in session is constitutional.
Her act impairs no power of Congress since the
Commission of Appointments is independent of Congress
and it powers do not come from Congress but from the
Constitution. Its exercise of powers is executive and not
legislative. The office of a department secretary may
become vacant while Congress is in session. Since he is the
alter ego of the President, the acting appointee must
necessarily have the President’s confidence. The President
may even appoint in an acting capacity a person not yet in
the government service as long as the President deems
that person competent. There is no abuse in the present
case as Pres. GMA issued ad interim appointments to
respondents immediately upon the recess of Congress,
way before the lapse of one year. (supra).
*Matibag v. Benipayo, 380 SCRA 49
On March 22, 2002, President Arroyo appointed, ad interim,
Benipayo as COMELEC Chairman, and Borra and Tuazon as
Commissioners. They took their oath and started discharging
their functions. The President submitted to the Commission on
Appointments the ad interim appointments but the body did not
act on said appointments until Congress declared a recess.
Petitioner, who has been reassigned by Benipayo to another
post in the COMELEC, questioned the legality of the latter’s ad
interim appointment. Is an ad interim appointment temporary
which goes against Sec. 1 (2), Art. IX-C of the Constitution
prohibiting the appointment of any COMELEC member in a
temporary or acting capacity?
Held: No. “Ad interim appointment” means a permanent
appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary
appointment that can be withdrawn or revoked anytime. An ad
interim appointment becomes complete and irrevocable once
the appointee has qualified into the office. It can only be
terminated for 2 causes in the Constitution. The first cause is
the disapproval of his ad interim appointment by the
Commission on Appointment. The second cause is the
adjournment of Congress without the Commission acting on the
appointment. In this case, the President did in fact appoint
permanent Commissioners to fill the vacancies, subject only to
confirmation by the Commission. They were not designated in a
temporary or acting capacity.
Matibag v. Benipayo
On March 22, 2002, President Arroyo appointed, ad interim,
Benipayo as COMELEC Chairman and Borra and Tuazon as
Commissioners. The President submitted to the Commission on
Appointments the ad interim appointments but the body did not
act on said appointments. On June 21, 2002, the President
renewed their appointments for the same 7 years term, and
| LAW ON PUBLIC OFFICERS
again Congress adjourned without the Commission acting on the
appointments. This went on for four times, and they took their
oaths and discharged their functions each time. Can the
President reappoint one whose appointment had been bypassed
by the Commission on Appointment?
Held: Yes. A by-passed appointment is one that has not been
finally acted upon on its merits. There is no final decision by the
Commission. Absent such decision the President has the
discretion to renew the ad interim appointment of a by-passed
appointee.
b) A regular appointment is one made during the sessions of
Congress (Sec. 16, par. 1, Art. V11, Constitution). There are three
stages in regular appointments, to wit: nomination by the
President, consent by the Commission on Appointments, and
appointment by the President. So there is no appointment yet in
the strict sense until it is confirmed.
OFFICER WHOM THE PRESIDENT SHALL
APPOINT
17. There are 4 groups of officers whom the President shall
appoint:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in the Constitution. (This
group is appointed with the consent of the Commission on
Appointments. The "other officers" referred to are the regular
members of the Judicial and Bar Council, the Chairman and
members of the CSC, COA and COMELEC, and the members of
the Regional Consultative Commission). The appointment of
Sectoral Representative, under Sec. 7, Art. XVlll of the
Constitution, is with the consent of the Commission on
Appointments (Quintos Deles vs. Commission on
Appointments, 177 SCRA 259).
Second, all other officers of the Government whose
appointments are not otherwise provided for by law.
Third, those whom the President may be authorized by law to
appoint.
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone. (Sarmiento vs.
Mison, 156 SCRA 549)
• The “other officers” whose appointments are vested in
the President under the Constitution refer to the
regular members of JBC, Chairmen & Commissioners
of Constitutional Commissions, members of the
Regional Consultative Commission xxx)
Dats | 24
 Sources: Atty. ELMAN notes; \
The President appoints the first group of officers with the
consent of the Commission on Appointments. The President
appoints the second and third groups of officers without the
consent of the Commission. The President appoints the third
group of officers if the law is silent on who is the appointing
power, or if the law authorizing the head of a department,
agency, commission, or board to appoint is declared
unconstitutional.
Anent the second group of officers, where there are offices
which have to be filled but the law does not provide the process
for filling them, the Constitution recognizes the power of the
President to fill the office by appointment. There is no
incompatibility between the President’s power of supervision
over local governments and autonomous regions, and the power
granted to the President, within the specific confines of RA
10153, to appoint OICs (Kida vs. Senate; Mapupuno vs.
Brilliantes; Lagman vs. Ochoa, 02/28/12).
Congress cannot by law expand the confirmation powers of the
Commission on Appointments and require appointment of other
government officials not expressly mentioned in the first
sentence of Sec. 16, Art. Vll (Tarrosa vs. Singson, 232 SCRA 555;
Calderon vs. Carale, 208 SCRA 254).
All other appointments by the President, such as the
a. appointments of a bureau head (Sarmiento vs.
Mison),
b. Central Bank Governor (Tarrosa vs. Singson),
Chairman and members of the Commission on Human
Rights (Baustista vs. Salonga), and
c. Chairman and members of the NLRC (Calderon vs.
Carale, 208 SCRA 254), are to be made without the
participation of the Commission on Appointments.
In Manalo vs. Sistoza (312 SCRA 239), the Court ruled as
unconstitutional Sections 26 and 31 of RA 6975 (as amended by
RA 8551) [which created the Department of Interior and Local
Government] providing that senior officers of the Philippine
National Police from Senior Superintendent, Chief
Superintendent, Deputy Director General to Director General or
Chief of PNP shall be appointed by the President subject to
confirmation by the Commission on Appointments. These police
officers are not among the public officials whose appointments
are required to be confirmed by the first sentence of Article Vll,
Section 16 (2002 BQ).
Congress, through a law, cannot impose on the President the
obligation to appoint automatically the undersecretary as her
temporary alter ego. An alter ego, whether temporary or
permanent, holds a position of great trust and confidence
(Pimentel vs. Ermita, 472 SCRA 589).
*De Castro v. JBC, March 17, 2010
Chief Justice Puno retired from the Supreme Court on May 10,
2010 upon reaching the compulsory retirement age of 70.
Section 4 (1), Article VIII (Judicial Department) of the
Constitution provides that any vacancy in the Supreme Court
shall be filled within 90 days from the occurrence thereof.
However, Sec. 15, Article VII (Executive Department) of the
| LAW ON PUBLIC OFFICERS
Constitution prohibits the President from making appointments
two (2) months before the next presidential election and up to
the end of her term, except appointments to executive positions
when continued vacancies therein will prejudice public service
or endanger public safety. Does the prohibition apply to
appointment in the Supreme Court?
Held: No. The framers did not intend to extend the prohibition
in Section 15, Article VII to the appointment of Members of the
Supreme Court. Had they intended to, they could have easily
and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, probably in
Section 4 (1), Article VIII. That such specification was not done
only reveals that the prohibition against the President or Acting
President making appointments within two months before the
next presidential elections and up to the end of the President’s
or Acting President’s term does not refer to the Members of the
Supreme Court. The express intent of the framers is to enshrine
in the Constitution, a command [to the President] to fill up any
vacancy therein within 90 days from its occurrence. The
President’s failure to do so will be a clear disobedience to the
Constitution.
In Re: Villanueva, 298 SCRA 408
Villanueva was appointed on 30 March 1998 by the President as
presiding judge of the Regional Trial Court, Bago City. He took
his oath on May 14, 1998. However, May 8, 1998 was
presidential elections and Sec. 15 of Art. VII of the Constitution
prohibits the President from making appointments 2 months
before the next presidential elections and up to the end of his
term. Also, Sec. 9 of Art. VIII states that vacancies in lower
courts shall be filled by the President within 90 days from the
submission of the list of at least 3 nominees by the Judicial and
Bar Council, while Sec. 4 of the same Article provides that the
President shall fill in vacancies in the Supreme Court within 90
days from their occurrence. Is Villanueva’s appointment valid?
Held: It is null and void. Two months immediately before the
next presidential elections and up to the end of his term, the
President is not required or allowed to make appointments.
Under Sec. 4 and Sec. 9 of Art. VIII, the President is required to
fill vacancies in the judiciary within the time frames provided
unless it is prohibited by Sec. 15, Art. VII. The prohibition on
appointments comes into effect only every six years. The
prevention of vote-buying through appointments and similar
evils outweigh the need of avoiding delays in filling up vacancies
or the disposition of cases. Temporary vacancies follow the
period of the ban, while prohibited appointments are long
lasting in their effects.
APPOINTMENT OF LOWER RANK OFFICERS
18. Under Sec. 16, Art. VII of the Constitution, there is a fourth
group of lower-ranked officers whose appointments Congress
may by law vest in the heads of departments, agencies,
Dats | 25
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

commissions, or boards. The clear intent is that these inferior or

lower in rank officers are the subordinates of the heads of
departments, agencies, commissions, or boards who are vested
by law with the power to appoint – this excludes a situation
where the appointing officer appoints an officer equal in rank as
him.
The law may not also authorize officers other than the heads of
the agency, commission, or their fellow trustees for the effect is
the same, which is to fill vacancies in the CCP Board.
A statute cannot circumvent the constitutional limitations on the
power to appoint by filling vacancies in a public office through
election by the co-workers in that office (ibid). Since the
President exercises control over “all the executive departments,
bureaus, and offices,” the President necessarily exercises control
over the CCP which is an office of the Executive Branch. Sec. 3 of
PD 15 stating that the CCP “shall enjoy autonomy of policy and
operation” may give the CCP Board a free hand in initiating and
formulating polcies and undertaking activities, but ultimately
these policies and activities are all subject to the President’s
power and control. Thus, the Chairman of the Cultural Center of
the Philippines (CCP) board is the head of the CCP who may be
vested by law, under Sec. 16, Art. VII of the Constitution, with
the power to appoint lower-ranked officers of the CCP (Rufino
vs.Endriga, 496 SCRA 16). I
nsofar as it authorizes the trustees of the CCP Board to elect
their co-trustees, Section 6(b) and (c) of PD 15 is
unconstitutional because it violates Sec. 16, Art. VII of the
Constitution.

Dats | 26
 Sources: Atty. ELMAN notes; \
MODES OF TERMINATING OFFICIAL RELATIONS
19. Modes of Terminating Official Relations
1. Expiration of term or tenure
2. Reaching the age limit for retirement
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an incompatible office
8. Abolition of office
9. Prescription of the right to office
10. Impeachment
11. Death
12. Failure to assume office
13. Conviction of a crime
14. Filing for a certificate of candidacy
Abolition is neither removal or separation.
Reorganization is valid when done in good faith. A
reorganization is in good faith if it is for purpose of economy or
make bureaucracy more efficient. If so, there is no dismissal
since the position itself ceases to exist. But if the abolition is for
political reason or to defeat security of tenure, or there is mere
change of nomenclature of positions, the abolition is void. Here,
no actual reorganization took place, i.e. reduction of personnel ,
consolidation of offices or abolition for the purpose of economy,
or redundancy of functions, but a simple revamp of personnel.
He separated 394 personnel but replaced them w/ 522. (Dario
vs. Mison, 176 SCRA 84)
a) Abolition of Office neither means removal or separation from
office and is not covered by the protection of the security of
tenure in the Constitution. This principle however carries with it
a caveat. The abolition must be done in good faith (Gingson vs.
Murcia, 08 February 1988), not for political or personal reasons,
or in order to circumvent the constitutional security of tenure of
civil service employees (Canonizado vs. Aguirre, 323 SCRA 312).
Abolition which merely changes the nomenclature of positions is
invalid and does not result in the removal of the incumbent
(Dario vs. Mison, 176 SCRA 84).
The renaming and restructuring of the PGH and its component
units cannot give rise to a valid and bona fide abolition of the
position of PGH Director; this is because where the abolished
office and the offices created in its place have similar functions,
the abolition lacks good faith (Guerrero vs. Arizabal, 186 SCRA
108).
A recognized cause for termination of employment of a
government employee is the abolition by law of his office as a
result of reorganization carried out by reasons of economy or to
remove redundancy of functions, or clear and explicit
constitutional mandate for such termination of employment
(Reyes vs. Drilon).
| LAW ON PUBLIC OFFICERS
The removal of petitioners pursuant to RA 6715 – which
declared vacant the positions of the Commissioners, Executive
Labor Arbiters and Labor Arbiters of the NLRC and provided for
the removal of the incumbents upon the appointment and
qualification of their successors – was unconstitutional; RA 6715
did not expressly or impliedly abolish the offices of petitioners,
there being no irreconcilable inconsistency in the nature, duties
and functions of the petitioners’ offices under the old law and
the new law (Mayor vs. Macaraeg, 194 SCRA 672).
The change in the NLRC’s nature -- that is, the NLRC prior to the
passage of the amendatory law was considered an integral part
of the DOLE, while the new law (RA 6715) changed that by
declaring the NLRC attached to the DOLE for program
coordination only – was not sufficient to justify a conclusion that
the new law abolished the offices of the labor commissioners
(supra).
*Canonizado vs. Aguirre, 323 SCRA 313
>The main issue is the constitutionality of RA 8551 (Phil National
Reform and Reorganization Act of 1998) by virtue of which
petitioners Canonizado et al, who were all members of the
NAPOLCOM were separated from office. Petitoners claim that
such law violates their constitutional right to security of tenure.
Public respondents assert that the RA reorganized the
NAPOLCOM resulting in the abolition of petitioners’ offices.
Public respondents insist that Sec. 8 of RA 8551 which provides
that the terms of the current Commissioners (herein petitioners)
are deemed expired discloses the legislative intent to impliedly
abolish the NAPOLCOM created under RA 6975 pursuant to a
bona fide reorganization. They cite the various changes
introduced by the new law, namely: while NAPOLCOM was
collegial body within the DILG under RA 6975, it is made an
agency attached to the DOLE for program coordination only;
expansion of the membership of the NAPOLCOM from four to
five Commissioners by adding the PNP Chief as ex-officio
member; three of the regular Commissioners shall come from
the civilian sector while the fourth from the law enforcement
sector. The Court however finds that the revisions do not
constitute such essential changes in the nature of the
NAPOLCOM as to result in an implied abolition of such office. Its
organizational structure, as well as its powers and duties,
remains essentially the same and that, except for the addition of
the PNP Chief, the composition of the NAPOLCOM is also
identical under the two laws. There has been no revision in its
line of control, authority and responsibility, neither has there
been a reduction in its membership, nor a consolidation of
abolition of the offices constituting the same. Also, under both
laws, the Secretary of the Department shall act as ex-officio
Chairman of the Commission and the Vice-Chairman shall be one
of the Commissioners designated by the President. It is apparent
that RA 8551 effected a reorganization of the PNP, not of the
NAPOLCOM.
Ruling: Section 8 of RA 8551 is unconstitutional for being in
violation of the petitioners’ right to security of tenure. The
removal from office of the incumbent petitioners (petitioners
herein) as a result of the application of such unconstitutional
provision and the appointment of new Commissioners in their
stead is void. Petitioners are entitled to reinstatement and to
the payment of full backwages reckoned from the date they
were removed from office.
Dats | 27
 Sources: Atty. ELMAN notes; \
Ruling on petitioners’ MR: The inevitable consequence of the
Court’s declaration that Section 8 of RA 8551 is unconstitutional
is that all acts done pursuant to such provision shall be null and
void, including the removal of petitioners and Adiong from their
positions in the NAPOLCOM and the appointment of new
commissioners in their stead. There can be no valid appointment
to a non-vacant position. Accordingly, Adiong’s appointment on
11 March 1998 for a term of two years, pursuant to Section 8
thereof, is void. However, he should be permitted to enjoy the
remainder of his term under RA 6975. Thus, all the
Commissioners appointed under RA 8551 (Adiong, Cairme,
Magahum and Factoran) should be removed from office, in
order to give way to the reinstatement petitioners, including
Adiong, although under his original appointment under RA 6975.
(Canonizado vs. Aguirre, 351 SCRA 660)
* Sec. 8 of RA 8551 which provides that the terms of the
current Commissioners are deemed expired is unconstitutional,
being in violation of petitioners’ security of tenure guarantee.
The revisions in the new law do not constitute essential changes
in the nature of NAPOLCOM as to result in the implied abolition
of such office. Its organizational structure, powers & duties
remain the same. RA 8551 effected a reorganization of the PNP
and not the NAPOLCOM. All acts done pursuant to Sec. 8 are null
& void. There can be no valid appointments to non-vacant
positions. (Canonizado vs. Aguirre, 323 SCRA 313)
The NEA Board has the power to terminate all of NEA’s
employees in connection with a reorganization of the agency.
Under Rule 33, Sec. 3(b) of the IRR of the EPIRA Law, all NEA
employees shall be considered legally terminated with the
implementation of a reorganization program pursuant to a law
enacted by Congress or under Sec. 5(a)(5) of PD 269 thru which
the reorganization was carried out. Reorganization involves the
reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. It
could result in the loss of one’s position thru removal or
abolition of an office. However, for a reorganization for the
purpose of economy or efficiency to be valid, it must pass the
test of good faith, otherwise it is void. Here, the termination of
all the NEA employees was within the NEA Board’s power and
may not be impugned absent proof of bad faith (United
Claimant Association of NEA vs. National Electrification
Administration, 01/1/12).
INCOMPATIBILITY OF OFFICES
Acceptance of another office incompatible w/ the first office
ipso facto vacates the first office.
When is there incompatibility of offices? Not mere physical
impossibility of one person performing… but contrariety arises
from nature & relations…
Positions of Inspector General of IAS and NAPOLCOM
Commissioner are incompatible. NAPOLCOM has power of
control over PNP. Also, RA 8551 prohibits an IAS personnel from
sitting in a committee…
| LAW ON PUBLIC OFFICERS
b) Acceptance of another office incompatible with the first office
ipso facto vacates the first office and the officer’s title is thereby
terminated without any act or proceeding. Public policy dictates
against allowing the same individual to perform inconsistent and
incompatible duties. The incompatibility is not the mere physical
impossibility of one person’s performing the duties of the two
offices due to a lack of time or the inability to be in two places at
the same moment, but that which 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, 351 SCRA 661).
The positions of NAPOLCOM Commissioner and Inspector
General of the Internal Affairs Service (IAS) of the PNP are
incompatible with each other considering that RA 8551 prohibits
any personnel of the IAS from sitting in a committee charged
with the task of deliberating on the appointment, promotion or
assignment of any PNP personnel, whereas the NAPOLCOM has
the power of control and supervision over the PNP. However,
the rule on incompatibility of duties will not apply to the case of
Canonizado because at no point did Canonizado discharge the
functions of the two offices simultaneously. He was forced out
of his first office by the enactment of Section 8 of RA 8551. Thus,
when Canonizado was appointed as Inspector General on June
30, 1998, he had ceased to discharge his functions as
NAPOLCOM Commissioner. He never occupied the two positions
nor discharged their respective functions concurrently (supra).
The general rule in Sec. 7, Art. IX-B of the Constitution permits
an appointive official to hold more than one office only if
“allowed by law or by the primary functions of his position” and
as long as there is no incompatibility. The crucial test in
determining whether incompatibility exists between two offices
is whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other (Public
Interest Center Inc. vs. Elma, 494 SCRA 54).
Sec.7 enjoins the concurrent appointments of respondent
Magdangal Elma as PCGG Chairman and Chief Presidential Legal
Counsel (CPLC) inasmuch as they are incompatible offices. As
CPLC, he will be required to give his legal opinion on his own
actions as PCGG Chairman, the PCGG being an agency under the
Executive Department, and review any investigation conducted
by the Presidential Anti-Graft Commission, which may involve
himself as PCGG Chairman (ibid).
*Liban v. Gordon, 593 SCRA 68 (2009)
During Richard Gordon’s incumbency as member of the Senate,
he was elected Chairman of the Board of the Philippine National
Red Cross (PNRC). The PNRC was specially created in 1947 by RA
No. 95 in compliance with the country’s obligations under the
Geneva Convention of 1929. Did Gordon forfeit his seat in the
Senate pursuant to Sec. 13, Art. VI of the Constitution,
prohibiting a Senator from holding any office in a government-
owned or controlled corporation?
Held: No. The PNRC, while created by RA No. 95, is not a
government-owned and controlled corporation, but a private
Dats | 28
 Sources: Atty. ELMAN notes; \
corporation performing governmental functions. It is privately-
owned, non-profit, donor-funded, voluntary, humanitarian
organization. The PNRC does not have government assets and
does not receive appropriation from the Congress. Gordon was
elected by the private-sector controlled board, and not
appointed by the President or by any subordinate government
official. Not being a government-official or employee, the PNRC
Chairman does not hold a government office or employment.
ABANDONMENT OF OFFICE
c) Abandonment of an office is the voluntary and total
relinquishment of an office by the holder, with the intention of
terminating his possession and control thereof. There are two
essential elements: first, an intention to abandon; and second,
an overt or external act by which the intention is carried into
effect. However, nonperformance of the duties of an office does
not constitute abandonment where such nonperformance
results from temporary disability or from involuntary failure to
perform. Abandonment may also result from an acquiescence by
the officer in his wrongful removal or discharge, for instance,
after a summary removal, an unreasonable delay by an officer
illegally removed in taking steps to vindicate his rights (Adiong
vs. CA, 371 SCRA 375).
The intention to abandon his position is shown by Antonio’s
failure to perform his function as member of the Sangguniang
Bayan (SB), his failure to collect the salary for the position, his
failure to object to the appointment of Aquino as his
replacement and his prolonged failure to initiate any act to
reassume his post in the SB after the reorganization of the
Sangguniang Panlalawigan (SP) of Catanduanes and his
designation as member of the SP were voided by the Supreme
Court (SB of San Andres vs. CA, 284 SCRA 276, 2000 BQ).
Where, while desiring to hold the office, and with no intention
to abandon it, the officer vacates it in deference to the
requirement of a law which is afterwards declared
unconstitutional, such a surrender will not be deemed an
abandonment and the officer may recover the office
(Canonizado vs. Aguirre, 351 SCRA 667).
By accepting the position of Inspector General during the
pendency of his appeal – brought precisely to assail the
constitutionality of his removal from the NAPOLCOM –
Canonizado cannot be deemed to have abandoned his claim for
reinstatement to the latter position. Canonizado was impelled to
accept this subsequent position by a selfless and noble desire to
continue serving the country in whatever capacity, coupled with
the worthy goal of providing for oneself and one’s family. A
contrary rule would deprive him of his right to live, which
contemplates not only a right a earn a living but also a right to
lead a useful and productive life. However, before he can
reassume his post as Commissioner, he should first resign as
Inspector General of the IAS-PNP (supra).
RESIGNATION
d) Resignation implies an expression of the incumbent in some
form, express or implied, of the intention to surrender,
renounce and relinquish the office, and its acceptance by
competent and lawful authority (Ortiz vs. Comelec, 28 June
1988).
| LAW ON PUBLIC OFFICERS
Its elements are: there must be an intent to resign and the
intent must be coupled by acts of relinquishment (Gonzales vs.
Hernandez, 2 SCRA 228).
Abandonment by the incumbent of his office before acceptance
of his resignation is punishable under Art. 238 of the Revised
Penal Code (Punsalan vs. Mendoza, 19 November 1985; Joson
vs. Nario, 187 SCRA 453).
Abandonment of position as member of the Sangguniang Bayan
is shown by his failure to perform the functions as such member,
failure to collect the salary for the position, failure to object to
the appointment of his replacement and to initiate any act to
reassume his post after the SB reorganization was voided; he
cannot be deemed to have lost his office by resignation because
he submitted his resignation to the Mayor and not to the
Sangguaniang Bayan as provided under Sec. 82 of the Local
Government Code (SB of San Andres vs. CA, supra).
A "courtesy resignation" cannot be properly interpreted as
resignation in the legal sense for it is not necessarily a reflection
of a public official's intention to surrender his position. Rather, it
manifests his submission to the will of the political authority and
the appointing power (Ortiz vs. Comelec).
The mere fact that the President, by himself or through another,
requested for Collantes’ resignation does not give the President
the obligation to appoint him to another position. There can be
no implied promises of another position just because the
resignation was made out of courtesy. Also, an express promise
of another position would be void because there can be no
derogation of the discretion of the appointing power and
because its object is outside the commerce of man (Collantes vs.
CA, CSC and DND, 06 March 2007).
Resignation should not be used either as an escape or as an easy
way out to evade administrative liability by court personnel
facing administrative sanction. The mere expedient of resigning
from the service will not extricate respondent from the
consequences of his acts (Igoy vs. Soriano, 367 SCRA 70).
That respondent considers himself resigned is of no
consequence to the administrative charges against him. The
jurisdiction of the Court was acquired at the time of the filing of
the complaint; it was not lost by the resignation of respondent
from his office during the pendency of the case (Court Personnel
of RTC-San Carlos City vs. Llamas, 447 SCRA 71).
Respondent Clerk of Court’s resignation before the investigation
indicates his guilt, in the same way that flight by an accused in a
criminal case is indicative of his guilt. His resignation will not be
a way out of the administrative liability he incurred while in the
active service. While he can no longer be dismissed, a penalty
sufficiently commensurate with the offense he committed may
still be imposed (Gonzales v. Escalona, 566 SCRA 4).
A government employee who has been separated from the civil
service by operation of law by the filing of her Certificate of
Candidacy, pursuant to Sec. 66 of the Omnibus Election Code,
may still be administratively charged under CS rules. Even if the
most severe of administrative sanctions – that of separation
from the service – may no longer be imposed on petitioner,
there are other penalties which may be imposed, namely, the
Dats | 29
 Sources: Atty. ELMAN notes; \
disqualification to hold any government office and the forfeiture
of benefits. The hasty filing by petitioner, Cashier of the
Provincial Treasurer’s Office, of her certificate of candidacy four
days after the Provincial Treasurer asked her to explain her cash
shortage of P1.4M appears a mere ploy to escape administrative
liability (Pagano vs. Nazarro, 533 SCRA 622).
Whether or not petitioner Estrada resigned as President has to
be determined from his acts and omission before, during and
after January 20, 2001 or by the totality test, that is, the totality
of prior, contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance on the
issue (Estrada vs. Desierto, GR 146738, 2 March 2001).
Even if Estrada can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground
that he is merely unable to govern temporarily. That claim has
been laid to rest by Congress as both houses of Congress have
recognized respondent Arroyo as the President. The decision
that respondent is the de jure President made by a con-equal
branch of government cannot be reviewed by the Supreme
Court. The question of inability to discharge the powers and
duties of the presidency is political in nature and addressed
solely to Congress by constitutional fiat (supra). Petitioner’s
claim that the pendency of cases filed against him before
Ombudsman bars him from resigning under Section 12 of RA
3019 is untenable. Section 12 of RA 3019 cannot be invoked by
the petitioner for it contemplates of cases whose investigation
or prosecution do not suffer from any insuperable legal obstacle
like the immunity from suit of a sitting President.
Jurisdiction of the tribunal is acquired at time of filing of
complaint; it is not lost by resignation of respondent from office
during the pendency of the case.
Although the Ombudsman is not precluded by Sec. 20(5) of RA
6770 from conducting the investigation, Ombudsman can no
longer institute an admin case vs. Andutan – who had resigned
as Dep. Dir. of DOF on basis of Memo of the Exec. Sec. directing
all non-career officials to vacate their positions – because he was
not a public servant at time the case was filed (Omb. vs.
Andutan, Jr., July 27, 2011).
d) Failure to make a courtesy call to one’s superior is not an
offense, much less a ground to terminate a person’s
employment. Nor is her failure to submit her appointment
papers a cause for her outright dismissal (Adiong vs. CA, 371
SCRA 374).
If a person is dismissed, he should be informed of the reason.
The reason should be in the Civil Service Law or, at least, in the
law authorizing the removal (Montesa vs. Santos, 23 May 1991;
Dario vs. Mison, 08 August 1989; and Lopez vs. Sto. Tomas, 14
September 1991).
Sec. 40 of PD 807 which authorized summary dismissal has been
repealed by RA 6654, approved on 20 May 1988 and published
in the Official Gazette on 30 May 1988. This section was violative
of due process in so far as it deprived the civil servant of the
right to defend himself against the ex parte decision to dismiss
| LAW ON PUBLIC OFFICERS
him (Abalos vs. CSC, 196 SCRA 81; Rosete vs. CA, 264 SCRA
149).
When a government official or employee in the classified civil
service has been illegally suspended or dismissed, and his
reinstatement had later been ordered, for all legal purposes he
is considered as not having left his office, so that he is entitled to
all the rights and privileges that accrue to him by virtue of the
office he held (Tanala vs. Legaspi, 13 SCRA 566; Rosete vs. CA,
264 SCRA 148).
An illegally terminated civil service employee is entitled to back
salaries limited only to a maximum period of five (5) years and
not full back salaries from her illegal termination up to her
reinstatement (Dr. Marohombsar vs. CA, 18 February 2000).
A public official could not be removed for misconduct
committed during a prior term and his reelection operated as a
condonation of the officer's previous misconduct to the extent
of cutting off the right to remove him therefore. Each term is
separate and the people by re-electing him are deemed to have
forgiven his misconduct (Aguinaldo vs. Comelec, 212 SCRA 768;
2000 BQ). T
he rationale for this ruling is that removal cannot extend beyond
the term during which the alleged misconduct was committed. If
a public official is not removed before his term expires, he can
no longer be removed if he is thereafter reelected for another
term (Reyes vs. Comelec, 254 SCRA 516).
However, this doctrine of forgiveness or condonation cannot
apply to criminal acts which the re-elected official may have
committed during his previous term. The administrative liability
of a public officer is separate and distinct from his penal liability
(People vs. Jalosjos, 324 SCRA 692).
The re-election of Jalosjos to the position of Congressman is not
a reasonable classification in criminal enforcement. The
functions and duties of the office are not substantial distinctions
which lift him from the class of prisoners interrupted in their
freedom. His continued incarceration is a valid and
constitutionally mandated curtailment of his rights to provisional
liberty pending appeal of his conviction (ibid).
Election, or more precisely, re-election to office, does not
obliterate a criminal charge. Petitioner Trillanes’ electoral victory
only signifies pertinently that when the voters elected him to the
Senate, “they did so with full awareness of the limitations on his
freedom of action [and] with the knowledge that he could
achieve only such legislative results which he could accomplish
within the confines of prison.” In debunking the
disenfranchisement argument, the overarching tenet is that the
mandate of the people yields to the Constitution which the
people themselves ordained to govern all under the rule of law.
The performance of legitimate and even essential duties by
public officers has never been an excuse to free a person validly
in prison. Never has the call of a particular duty lifted a prisoner
into a different classification from those others who are validly
restrained by law (Trillanes v. Judge Pimentel, 27 June 2008).
The members of the House of Representatives Electoral Tribunal
(HRET) are entitled to security of tenure like members of the
judiciary. Membership in it may not be terminated except for a
just cause. Disloyalty to party is not a valid ground for the
expulsion of a member of the HRET. Its members must discharge
their functions with impartiality and independence from the
political party to which they belong (Bondoc vs. Pineda, 201
Dats | 30
 Sources: Atty. ELMAN notes; \
SCRA 792, 2002 BQ).
ADMINISTRATIVE ACTIONS AGAINST GOVERNMENT
EMPLOYEES
There are two (2) categories of administrative actions against
government employees, to wit:
(a) those related to the discharge of the functions of the officer
concerned (neglect of duty, oppression, corruption or other
forms of maladministration of office) and
(b) those not so connected with said functions (Palma vs.
Fortich, 147 SCRA 403).
Under the second category, when the crime involving moral
turpitude is not linked with the performance of official duties,
conviction by final judgment is required as a condition precedent
to administrative action (supra).
To warrant removal from office of an officer, the misconduct,
misfeasance or malfeasance must be directly related to and
connected with the performance of official duties (Nueva Ecija
vs. Alomia, 212 SCRA, 330).
Serious misconduct in office is such misconduct which affects
the performance of his duties as a public officer and not only his
character as a private individual (NBI vs. Judge Villanueva, 370
SCRA 2; Manuel vs. Calimag, 307 SCRA 657; Llamas-Tan vs. CA,
358 SCRA 121).
Misconduct, warranting removal from office of an officer, must
have a direct relation to and be connected with the performance
of official duties (PAGCOR vs. Rilloraza, 359 SCRA 525; Maguad
vs. de Guzman, 307 SCRA 657).
In grave misconduct as distinguished from simple misconduct,
the elements of corruption, clear intent to violate the law or
flagrant disregard of established rule, must be manifest (CSC vs.
Belagan, 440 SCRA 578).
In other words, where the crime committed is not essentially
connected with the performance of the official duties, the
officer may not be proceeded administratively based thereon
until a final judgment of conviction shall have been rendered by
the court of justice (Provincial Board of Zamboanga del Norte
vs. Guzman, 21 SCRA 957).
The exception is when the crime or act committed also
constitutes a violation of administrative rules; there no
conviction is required (Mutia vs. Pacariem, 494 SCRA 448).
To warrant dismissal, dishonesty need not be duty-connected.
Willful failure to pay just debts: claims adjudicated by a court or
claims the existence & justness of w/c are admitted by the
debtor.
If respondent is found guilty of 2 or more charges, penalty to be
imposed is that corresponding to most serious charge and the
rest are aggravating.
| LAW ON PUBLIC OFFICERS
Effects of dismissal
Entitlement of dismissed employee to leave credits.
Libel per se is not an administrative offense (ibid).
Dishonesty, in order to warrant dismissal, need not be
committed in the course of the performance of duty by the
person charged. The rationale for this rule is that if a
government officer is dishonest, even if said defect of character
is not connected with his office, it affects his right to continue in
office (Remolona vs. CSC, 362 SCRA 304).
Under Section 55 (A-14), Rule lV, of the Revised Uniform Rules
on Administrative Cases in the Civil Service of 1999, if the
respondent is found guilty of two or more charges, the penalty
to be imposed should be that corresponding to the most serious
charge and the rest shall be considered aggravating
circumstances (Judge Badoles-Algodon vs. Sheriff Zaldivar, 497
SCRA 448).
The penalty of dismissal shall carry with it forfeiture of
retirement benefits and the perpetual disqualification for
reemployment in the government service (Section 58 of the
Uniform Rules on Administrative Cases in the Civil Service; Igoy
vs. Soriano, 495 SCRA 3). Despite their dismissal from the
service, government employees are entitled to the leave credits
that they have earned during the period of their employment. As
a matter of fairness and law, they may not be deprived of such
remuneration, which they have already earned prior to their
dismissal (Paredes, A.M. No. CA-91-3-P, 14 April 2004; Igoy vs.
Soriano, 495 SCRA 2).
Under CSC Circular No. 12, s. 1994, the action dropping
petitioner from the rolls is non- disciplinary in nature and does
not result in the forfeiture of his benefits nor his disqualification
from re-employment in the government. Likewise, dropping
from the rolls of petitioner is without prejudice to his re-
appointment at the discretion of the appointing authority and
subject the CS laws and rules (Gonzales vs. CSC, 390 SCRA 126).
Note that under Sec. 35, Rule XVl of the Omnibus Rules
Implementing EO 292 and CSC Memo Circular No. 12, s. 1994,
officers and employees who are absent for at least 30 days
without approved leave are considered on AWOL and shall be
dropped from the service after due notice. However, when the
exigencies of the service require his immediate presence and he
fails/refuses to return to the service, the head of office may drop
him from the service even prior to the expiration of the 30-day
period.
Under Sec. 46, Book V of EO 292, one of the causes for
separation from government service is mental incapacity or
disability due to immoral or vicious habits, which is done by way
of disciplinary proceeding. Mental incapacity not arising from
immoral or vicious habits is also a cause for separation under
Sec. 26 of EO 292 and Art. lX(B) of the 1987 Constitution, which
demand of government officers continuing merit and fitness,
and such cause is carried out through a non-disciplinary process.
The only difference between the two modes of separation – the
Dats | 31
 Sources: Atty. ELMAN notes; \
disciplinary and the non-disciplinary – is that the first carries
administrative disabilities, such as forfeiture of retirement
benefits and perpetual disqualification from employment in the
government service, while the second does not. Even if
considered a non-disciplinary mode of separation, dropping
from the rolls due to mental incapacity not arising from immoral
or vicious habits is subject to the requirements of due process
(Romagos vs. Metro Cebu Water District, 533 SCRA50).
Where a municipal mayor orders the suspension or dismissal of
a municipal employee on grounds he believes to be proper, but
his order is reversed or nullified by the CSC or the Court of
Appeals (such as in this case), he has the right to contest such
adverse ruling. His right to appeal flows from the fact that his
power to appoint carries with it the power to remove. The
second reason is because the salaries of the respondents, being
municipal officials, are drawn from municipal funds. The mayor
has real and substantial interest in the outcome of the
administrative cases against respondents (Mayor Dagadag vs.
Tongnawa, 450 SCRA 446). Where the petitioner ceases to be
mayor, the appeal and/or action he initiated may be continued
and maintained by his successor if there is substantial need to
do so (ibid).
Under Section 60 of the Local Government Code, the
sangguniang bayan has no power to remove an elective
barangay official. Apart from the Ombudsman, only a proper
court may do so. Unlike the sangguniang bayan, the powers of
the Ombudsman are not merely recommendatory (Ombudsman
vs. Rodriguez, 625 SCRA 299).
IMPEACHMENT
e) 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, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust (1999 BQ). All other public
officers and employees may be removed from office as provided
by law, but not by impeachment (Sec. 2, Art.Xl, 1987
Constitution). (See Cuenco vs. Fernan, 17 February 1988; 1988
BQ).
Cronyism is a legal ground for the impeachment of the
President. This refers to violation of the oath of office and
includes cronyism which involves unduly favoring a crony to the
prejudice of public interest (2000 BQ).
*Re: Undated Letter, 580 SCRA 106
On July 15, 2008, the Court En Banc deliberated on the draft
decision of Justice Reyes in the consolidated cases of
Limkaichong v. Comelec, Villando v. Comelec, Biraogo v.
Nograles and Limkaichong, and Paras v. Nograles, and
approved it. The draft decision was released to the press.
Subsequent investigation by a special committee created by the
Supreme Court revealed that Justice Reyes was responsible for
the leakage. Justice Reyes, however, reached the compulsory
retirement age of 70 while the investigation was in progress.
Considering that Justice Reyes was an impeachable officer, can
| LAW ON PUBLIC OFFICERS
the SC subject him to an administrative investigation?
Held: That Justice Reyes was an impeachable officer when the
investigation started is immaterial. The rule prohibiting the
institution of disbarment proceedings against an impeachable
officer applies only during his tenure and does not create
immunity from liability for possibly criminal acts or for alleged
violations of the Code of Judicial Conduct or other violations.
Once the said impeachable officer is no longer in office because
of his removal, resignation, retirement or permanent disability,
the Court may proceed against him and impose the
corresponding sanctions for misconduct committed during his
tenure, pursuant to the Court’s power of administrative
supervision over members of the bar. Provided that the
requirements of due process are met, the Court may penalize
retired members of the Judiciary for misconduct committed
during their incumbency.
*Office v. Mojica, 452 SCRA 714
The Deputy Ombudsman for the Visayas, who was the subject of
administrative and criminal complaints before the Ombudsman,
is not an impeachable officer who may only be removed through
impeachment. The list of impeachable officers enumerated in
Section 2, Article XI of the 1986 Constitution is exclusive. Only
the following are impeachable officers: the President, the Vice
President, the members of the Supreme Court, the members of
the Constitutional Commissions, and the Ombudsman. Only the
Ombudsman, not his deputies, is impeachable.
*Marcoleta v. Borra, 582 SCRA 474, March 30, 2009 [Morales]
A complaint for disbarment was filed against COMELEC
Commissioner Borra for violation of the Code of Judicial Conduct
and the Code of Conduct and Ethical Standards for Public
Officials and Employees. While the disbarment complaint was
pending, Commissioner Borra retired, having completed his 7-
year term. Can disbarment proceed?
Held: No. As an impeachable officer who is at the same time a
member of the Bar, Commissioner Borra must first be removed
from office via the constitutional route of impeachment before
he may be held to answer administratively for his supposed
errant resolutions and actions. However, Commissioner Borra
having retired from the COMELEC, the Court may proceed to
pass upon the merits of the complaint. But since the grounds of
the disbarment complaint which are supposed errors of
judgment or grave abuse of discretion in the appreciation of
facts, are proper for an appeal, complainant’s remedy is judicial,
not administrative.
*Francisco, Jr. v. NMMP, Inc., 425 SCRA 44
In Oct. 2003, a second impeachment complaint accompanied by
a Resolution of Endorsement was filed against Chief Justice
Davide before the House of Representatives. The ground of the
complaint is the alleged anomaly in the administration by the
Chief Justice of the Judiciary Development Fund. Can the SC
determine whether the offenses alleged in the second
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 Sources: Atty. ELMAN notes; \
impeachment complaint constitute valid impeachable offenses
under the Constitution?
Held: No. The Court has no jurisdiction because any discussion
of the issue would require the Court to make a determination of
what constitutes an impeachable offense. Such a determination
is a purely political question which the Constitution has left to
the discretion of the legislature. Although Sec. 2, Art. XI
enumerates six ground of impeachment, two of these, namely,
other high crimes and betrayal of public trust, elude precise
definition. Clearly, the issue calls upon this court to decide a
non-justiciable political question which is beyond the scope of its
judicial power.
Note: In the impeachment trial of CJ Corona, he was accused,
among others, of not including some properties in his
declaration of his assets, liabilities and net worth in violation of
RA 3019. The Senate acting as impeachment court found him
guilty of this charge and declared that his deliberate act of
excluding substantial assets (P80M in 3 peso accounts & $2.4M
in 4 $ accounts) from his sworn SALN constitutes a culpable
violation of the Constitution.
RECALL
• Recall: formal withdrawal by electorate of their trust in
elective official’s ability to discharge his office.
• Loss of confidence as ground for recall is a political
question where only the people are the judge
(Evardone vs. Comelec, 204 SCRA 464).
• Elective local official sought to be recalled shall not be
allowed to resign while recall process is in progress
(Sec. 73 RA 7160).
• No recall within 1 yr. from date of official’s assumption
to office or 1 yr. immediately preceding a regular local
election (Sec. 74 RA 7160).
f) Under Sections 69-71 of the Local Government Code of 1991
(RA 7160)[as amended by RA 9244], the recall of any elective
provincial, city, municipal or barangay official shall be
commenced by a petition of a registered voter in the LGU
concerned and supported by the registered voters subject to the
following percentage requirements:
l. At least 25% in the case of LGUs with a voting population of
not more than 20,000.
ll. At least 20% in the case of LGUs with a voting population of
at least 20,000 but not more than 75,000; but in no case shall
the required petitioners be less than 5,000.
lll. At least 15% for LGUs with a voting population of at least
75,000 but not more than 300,000; but in no case shall the
required petitioners be less than 15,000; and
lV. At least 10% for LGUs with a voting population of over
300,000; but in no case less than 45,000.
The petition shall be filed with the COMELEC which shall certify
to the sufficiency of the required number of signatures and
| LAW ON PUBLIC OFFICERS
thereafter cause its publication once a week for 3 consecutive
weeks at petitioners’ expense and at the same time post copies
in conspicuous places. After the lapse of the prescribed period,
the COMELEC shall announce the acceptance of candidates,
including the official sought to be recalled who shall not be
allowed to resign while the recall process is in progress. Upon
filing of a valid petition for recall, the COMELEC shall set the date
of the election or recall. Any elective local official may be the
subject of recall election only once during his term for loss of
confidence and no recall shall take place within 1 year from the
date of the official’s assumption to office or 1 year immediately
preceding a regular local election.
CONCEPT OF HOLDOVER
20. The concept of holdover when applied to a public officer
implies that the office has a fixed term and the incumbent is
holding onto the succeeding term. Absent an express or implied
constitutional or statutory provision to the contrary, an officer is
entitled to stay in office until his successor is appointed or
chosen and has qualified (Lecaroz vs. Sandiganbayan, 305 SCRA
396).
Sec. 8, Art. X of Constitution categorically sets a limitation on the
period within which all elective local officials can occupy their
offices. Elective ARMM officials, being also local officials, are
bound by the three-year term limit prescribed by the
Constitution. Congress has no authority to extend the three-year
term limit by inserting a holdover provision in RA 9054. The
significant difference between the present case and the past
cases where the S.C. has recognized the validity of holdover
provisions in various laws is that while the past cases all refer to
elective barangay or SK officials whose terms of office are not
explicitly provided for in the Constitution, the present case
refers to local elective officials – the ARMM Governor. The
ARMM Vice Governor and the members of the Regional
Legislative Assembly – whose terms fall within the 3-year term
limit set by Sec. 8 Art. X. Even assuming that a holdover is
constitutionally permissible, and there had been statutory basis
for it (namely Sec.7, Art. Vll of RA 9054, the rule of holdover can
only apply as an available option where no such express or
implied legislative intent to the contrary exists; it cannot apply
where such contrary intent is evident (Kida vs. Senate;
Mapupuno vs. Brillantes; Lagman vs. Ochoa, 02/28/12).
PREVENTIVE SUSPENSION
21. Preventive Suspension
a. Two kinds of preventive suspension of civil service employees
who are charged with offenses punishable by removal or
suspension:
(1) preventive suspension pending investigation (Sec. 51, EO
292); and
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 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

(2) preventive suspension pending appeal if the penalty his suspension or dismissal is found and declared to be illegal.
imposed by the disciplining authority is suspension or dismissal Thus, the order of payment of full backwages in this case is
and after review, the respondent is exonerated (Sec. 47[4]). without lawful basis. To allow private respondent to receive full
back salaries would amount to rewarding him for his misdeeds
Preventive suspension pending investigation is not a penalty,
and compensating him for services that were never rendered
but a measure to enable the disciplining authority to investigate
(id.).
charges against respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. Although the Court did not find respondent guilty of gross
Pending investigation, such respondent is not entitled to neglect of duty, respondent Rabang was however liable for
compensation for the period of suspension even though it be simple neglect of duty. Hence, he was not exonerated from
subsequently determined that the cause for which he was liability. Moreover, his separation from the service, which is
suspended was insufficient (Gloria vs. CA, 306 SCRA 287; considered as preventive suspension during the pendency of his
Caniete vs. DECS Secretary, 333 SCRA 850) [2001 BQ]. appeal, was not unjustified as it was to protect public interest
considering that he was charged with gross negligence/gross
In Gloria, the public school teachers therein were either
neglect of duty and found guilty thereof by the DOTC and the
suspended or dismissed for allegedly participating in the strikes
CSC. Further, the decision of dismissal by the CSC is executory
sometime in September and October 1990. They were
based on Book V of the Administrative Code of 1987, unless on
eventually exonerated of said charge and found guilty only of
appeal, the dismissal is ordered restrained by the CA. The Court
violation of reasonable office rules and regulations by failing to
sustained the penalty of suspension for three months without
file applications for leave of absence. Thus, the penalty of
pay imposed on respondent by the CA for simple neglect of duty
dismissal earlier imposed on them was reduced to reprimand
since this is his first offense in his fifteen years of service in the
and their reinstatement was ordered. Moreover, the Court
Government and the petitioner CSC and the DOTC were ordered
affirmed the payment of back salaries of said teachers explaining
to reinstate the respondent to his former position before he was
that although “employees who are preventively suspended
dismissed from the service. However, respondent is not entitled
pending investigation are not entitled to the payment of their
to payment of backwages during the period of time he was
salaries even if they are not exonerated, we do not agree with
considered to be on preventive suspension (CSC v. Rabang, 14
the government that they are not entitled to compensation for
March 2008).
the period of their suspension pending appeal if eventually they
are found innocent.”
Preventive suspension pending appeal is actually punitive b. The proper disciplining authority may preventively suspend
although it is in effect subsequently considered illegal if any subordinate employee pending an investigation, if the
respondent is exonerated and the administrative decision charge against such employee involves dishonesty, oppression
finding him guilty is reversed. Hence, he should be reinstated or grave misconduct, or neglect in the performance of duty, or if
with full pay for the period of the suspension. To deny back there are reasons which would warrant his removal from the
wages during his suspension would be tantamount to punishing service (Sec. 51, EO 292).
him after his exoneration from the charges which caused his
Such preventive suspension, authorized by the Civil Service Law,
dismissal from the service (id). In Caniete, the Court squarely
cannot therefore be considered "unjustified", as it is one of
applied the Gloria ruling as the facts are substantially the same.
those sacrifices which holding a public office requires for the
public good (Gloria vs. CA, 306 SCRA 287). The maximum period
of preventive suspension is 90 days (Sec. 52, EO 292). (See also
Teachers exonerated of original charges & found guilty only of
Teotico vs. Agda, Sr., 29 May 1991; Orbos vs. Bungubung, 21
violation of reasonable office rules are entitled to compensation
November 1990).
(Gloria vs. CA, 306 SCRA 287)
Postal Clerk originally dismissed from service (for his shortages)
but penalty reduced by CSC to 6 mos. suspension is not entitled c. Under Sec. 24 of the Ombudsman Act (RA 6770), the
to back salary. To recover, it must be shown that suspension was Ombudsman or his Deputy may preventively suspend for a
unjustified or officer was innocent of the charge (Sales vs. period not more than six months any employee pending an
Mathay, 129 SCRA 180). investigation, if the evidence of guilt is strong, and (a) the charge
against such employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the charge
would warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
A civil service employee terminated from the service and later
found innocent of the charges is entitled to back salaries
(Relucio vs. CSC, GR 147182, 21 November 2002; Castro vs.
Gloria, GR 132174, 20 August 2001, citing Bangalisan vs. CA,
276 SCRA 619 and Alipat vs. CA, 308 SCRA 781), limited to a
period not exceeding five years (Adiong vs. CA, GR 136480, 4
December 2001), and not to full back salaries from her illegal
termination up to her reinstatement (Adiong vs. CA, 371 SCRA
375). In City Mayor of Zamboanga vs. CA (182 SCRA 785), the
Court held that back salaries may be ordered paid to an officer
or employee if he is exonerated of the charge against him and

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 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

on a local elective official instead of the maximum 60 days

prescribed by Section 63 of the LGC is not flawed where the
d. Under Sec. 13 of the Anti-Graft and Corrupt Practices Act (RA
same was based on Section 13 of RA 3019 (Nicart, Jr. vs.
3019), any public officer against whom any criminal prosecution
Sandiganbayan, 495 SCRA 73;Ysidiro vs. Hon. Teresita J.
under a valid information under RA 3019 or under the provisions
Leonardo de Castro, 02/06/12).
of the Revised Penal Code on bribery is pending in court, shall be
suspended from office. RA 3019 makes it mandatory for the Sandiganbayan to suspend
any public officer against whom as valid information charging
The word "office" applies to any office which the officer charged
violation of that law, Book ll, Title 7 of the Revised Penal Code,
may be holding, and not only to the particular office under
or any offense involving fraud upon government or public funds
which he was charged (Bayot vs. Sandiganbayan, 128 SCRA
or property is filed, and the lower court has neither discretion
383).
nor duty to determine whether preventive suspension is
Thus, the suspension of then Cavite Mayor Bayot was sustained required (Bolastig vs. Sandiganbayan, 235 SCRA 103).
even as he was charged for acts committed as COA auditor.
For the purpose of resolving the propriety of petitioners’
In Deloso vs. Sandiganbayan (173 SCRA 409), Governor Deloso’s suspension pendente lite, it is sufficient that the information
suspension was held proper even if at the time of its issuance he unequivocally recites that the offense charged involves fraud
was already occupying the office of governor and not the upon government or public funds or property. The falsification
position of municipal mayor that he held previously when of a DTR constitutes fraud involving public funds because it
charged with graft. enables the employee concerned to be paid salary and to earn
leave credits for services which were never rendered (Flores vs.
In Libanan vs. Sandiganbayan (233 SCRA 163), the suspension Layosa, 436 SCRA 339).
order of Libanan was upheld based on his indictment as
Sanggunian Bayan member even if he was already the duly The suspension contemplated in Article Vl, Section 16(3) of the
elected and incumbent Vice Governor of Eastern Samar. Constitution – which provides that each house may punish its
members for disorderly behaviour, and, with the concurrence of
In Berona vs. Sandiganbayan (435 SCRA 306), the Court upheld two-thirds of all its members, suspend or expel a member – is a
the suspension of Dr. Berona although he resigned as Provincial punishment that is imposed by the Senate or House of
Heath Officer during the pendency of the Sandiganbayan Representatives upon an erring member. It is distinct from the
proceedings and won as the Municipal Mayor of Pilar, Abra. suspension under Section 13 of RA 3019 which is not a penalty
but a preventive measure (Santiago vs. Sandiganbayan, 356
SCRA 636; 2002 BQ).
The purpose of the law in requiring a pre-suspension hearing is
to determine the validity of the information so that the court
can have a basis to either suspend the accused and proceed with
the trial on the merits of the case, or withhold the suspension
and dismiss the case, or correct any part of the proceedings that
impairs its validity. Once a proper determination of the validity
of the information has been made, it becomes the ministerial
duty of the court to forthwith issue the order of preventive
suspension (Talaga v. Sandiganbayan, 570 SCRA 622).
A preventive suspension of an elective public officer under Sec.
13 of RA 3019 is mandatory after the determination of the
validity of the information. In the case at bar, while there was no
pre-suspension hearing held to determine the validity of the
informations that had been filed against petitioners, the
numerous pleadings filed for and against them have achieved
the goal of this procedure. The right to due process is satisfied
not just by an oral hearing but by the filing and the consideration
by the court of the parties’ pleadings, memoranda and other
position papers (Juan vs. People, 322 SCRA 126).
The accused should be given a fair and adequate opportunity to
challenge the validity of the criminal proceedings against him,
e.g., that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not
constitute a violation of RA 3019 or the bribery provisions of the
Revised Penal Code which warrant his mandatory suspension
from office under Section 13 of RA 3019 (Santiago vs.
Sandiganbayan, 356 SCRA 637).
The preventive suspension should be limited to 90 days under
Sec. 42 of PD 807 (now Sec. 52 of EO 292) [1990 BQ: Deloso vs.
Sandiganbayan, 173 SCRA 409].
A 90-day preventive suspension imposed by the Sandiganbayan

Dats | 35
 Sources: Atty. ELMAN notes; \
RIGHTS, DUTIES AND PRIVILEGES OF PUBLIC
OFFICE
22. Rights, Duties and Privileges
Basis of right to salary : legal title to office & law attaches
compensation to the office.
• Salary of public officer is not subject to garnishment.
• Salary of public officer is not subject of assignment.
• Agreement affecting compensation is against public
policy.
• No elective or appointive public officer shall receive
additional/double compensation unless specifically
authorized by law (Sec. 8, Art. lX B)
• Pensions or gratuities are not considered as additional,
double or indirect compensation [Sec. 8(2) Art. lX B].
• Grant of pension an act of liberality & not a salary, in
compliance w/ state’s duty xxx.
PENSION
(a) The grant of a pension, besides being an act of liberality, is in
compliance with state's duty emposed by social justice to help
the aged and disabled persons who, in their prime, have served
the government with loyalty. A pension is not therefore a salary
or compensation (Antallan vs. GSIS, 29 November 1988). Well
settled is the rule that the retirement laws are liberally
interpreted in favor of the retiree because the intention is to
provide for the retiree's sustenance and comfort, when he no
longer has the stamina to continue earning his livelihood
(Profeta vs. Drilon, 216 SCRA 777).
Only full-time services w/ compensation are credited for
retirement purposes. Valdez’ services rendered in Mariano
Memorial State University, Phil. Veterans Investment Dev. Co.
and as OIC – VG of Ilocos Norte were rendered part-time & w/o
compensation as defined in RA 8291. Also, his employment at
MECO is not embraced by the civil service. His salary received
thereat cannot be basis xxx as same was beyond RA 7658
(Valdez vs. GSIS, 30 June ’08).
In Simeon Valdez v. GSIS (June 30, 2008), petitioner argued that
his services rendered as Director of MECO should have been
credited for retirement purposes and that his salary thereat
should have been the highest remuneration considered in the
computation of his retirement benefits. He likewise insisted that
his respective tenures as Member of the Board of Regents of
Ilocos Norte Institute of Technology (INIT) and the MMSU, as
Director of the PHIVIDEC and as OIC Vice-Governor of Ilocos
Norte be included as government service in the computation of
his retirement benefits. Though at the time of its incorporation
(during the effectivity of the 1973 Constitution) MECO was yet
under the coverage of the Philippine Civil Service, petitioner’s
services rendered thereat for that period, however, still cannot
| LAW ON PUBLIC OFFICERS
be accredited as government service because at the time of his
retirement/filing of the case/complaint, the above quoted
provision (i.e., Section 2(1), Article IX) of the 1987 Constitution
has already come into effect. The established rule is that the
statute (in this case, the Constitution) in force at the time of the
commencement of the action determines the jurisdiction of the
administrative body. It was likewise no error for the CSC to deny
accreditation of petitioner’s services rendered for MMSU,
PHIVIDEC and INIT, concurrently, because of the lack of
sufficient basis to compute services rendered therefor converted
to their full-time equivalent, reckoned in hours or days actually
rendered, using a Forty-(40) hour week as basis, in accordance
with the Rules and Regulations Implementing the Government
Service Insurance System Act of 1997. RA No. 8291 dictates that
for purposes of computation of government service, only full-
time services with compensation are included. The GSIS has
pointed out that the services in the MMSU, PHIVIDEC and as OIC
Vice-Governor of Ilocos Norte cannot be credited because, aside
from having been rendered part-time in said agencies, the said
positions were without compensation as defined in Section 2(i)
of RA No. 8291. Petitioner’s insistence that the emoluments he
received as MECO director be the basis in the computation of his
retirement benefits, the same being the highest basic salary
rate, is unavailing. Indeed, the salaries that he received at the
time he served as MECO director were unusually high for any
position covered by the civil service. Petitioner received a
monthly pay of P40,000.00 in addition to a P65,000.00
representation and travel allowance and US$2,500.00 per diem
for overseas board meetings. The Constitution itself mandated
the standardization of compensation of government officials and
employees covered by the civil service under Article IX B, Section
5, viz:
Sec. 5. The Congress shall provide for the
standardization of compensation of government officials
and employees, including those in government-owned or
controlled corporations with original charters, taking into
account the nature of the responsibilities pertaining to,
and the qualifications required for their positions.
The salary received by petitioner during his stint at MECO
appears to be way beyond that authorized by RA No. 6758,
otherwise known as the Salary Standardization Law. For this
reason, it is doubtful that petitioner’s employment with the
MECO is embraced by the civil service.
The grant of a signing bonus by the MIAA Board of Directors to
their employees, as a reward for the successful conclusion of
collective negotiations agreement, is illegal. Signing bonus is not
one of the benefits contemplated in RA 6758. It is also not a
truly reasonable compensation since conduct of peaceful
collective negotiations should not come with a price tag (MIAA
vs. COA,02/14/12).
The acceptance by the employees of the disallowed grant, in the
absence of any competent proof of bad faith on their part – as
they had no participation in the approval and issuance of the
resolution of the BOD and assumed the valid exercise of power
by the BOD under the MIAA Charter – will not suffice to render
them liable for refund. But this is not true as far as the BOD.
Their authority under Sec. 8 of the MIAA Charter is not absolute
as their exercise thereof is subject to existing laws and
regulations and they cannot deny knowledge of SSS vs. COA and
Dats | 36
 Sources: Atty. ELMAN notes; \
the issuances of the Executive Department prohibiting the grant
of the signing bonus. They cannot claim good faith (ibid).
RETIREMENT PAY
(b) Retirement pay may not be applied to indebtedness to the
government. The old Administrative Code provides that when
any person is indebted to government, the auditor may direct
the proper officer to withhold the payment of any money due
him or his estate, the same to be applied in satisfaction of such
indebtedness. But this proviso cannot be construed to authorize
a deduction of the value of the Treasury Warrant from a
government employee's retirement benefits. His retirement pay
may not be withheld by administrative fiat to answer for the
shortage while in office (Cruz vs. Tantuico, 166 SCRA 671;
Tantuico vs. Domingo, 230 SCRA 391) [1996 BQ].
The benefits granted under the GSIS Act (PD 1146) shall not be
subject to attachment, garnishment, levy or other processes;
this, however, does not apply to obligations of the members to
the System, or to the employer, or when the benefits are
assigned by the member with the authority of the System (Sec.
33, PD 1146). The latest GSIS enactment, RA 8291, provides for a
more detailed and wider range of exemptions under Sec. 39.
Aside from exempting benefits from judicial processes, it also
unconditionally exempts benefits from quasi-judicial and
administrative processes, including COA disallowances, as well
as financial obligations of the member arising out of the exercise
of performance of his official functions or incurred relative to his
work. The only exception to such pecuniary accountability is
when the same is in favor of the GSIS (GSIS vs. COA, 441 SCRA
534).
The “monetary liability in favor of GSIS” refers to indebtedness
of the member to the System including unpaid social insurance
premiums and balances on loans obtained by the retiree from
the System, which do not arise in the performance of his duties.
(ibid). The COA disallowances that were properly disallowed by
COA would have been deducted from their salaries, were it not
for the fact that respondents retired before such deductions
could be effected. While the GSIS cannot directly proceed
against respondents’ retirement benefits, it can seek restoration
of the amounts by court action for its recovery. There is no
prohibition against enforcing a final monetary judgment against
respondents other assets (ibid). Also, if a public officer is
convicted by final judgment under RA 3019 or for any offense
involving fraud upon government or public funds or property, he
shall lose all retirement or gratuity benefits under any law; and
in the event that he has already been separated from the service
and has already received such benefits, he is liable to restitute
the same to the government (Sec. 13, RA 3019).
| LAW ON PUBLIC OFFICERS
EMOLUMENT
(c) The term “emolument” includes salary, fees, compensation,
perquisites, pensions and retirement benefits (Phil.
Constitutional Association vs. Gimenez, 15 SCRA 479). The COA,
on the basis of the State Auditor’s finding of cash shortage
against petitioner municipal treasurer which has not been
satisfactorily disputed, can direct the proper officer (municipal
mayor) to withhold the petitioner’s salary and other
emoluments, under Sec. 21, Ch. 4(B), Book V of the 1987
Administrative Code which is substantially the same as Sec. 37 of
PD 1445, up to the amount of her alleged shortage but not to
apply the withheld amount to the alleged shortage for which her
liability is still being litigated. If found not liable for the cash
shortage, the withheld salary and other emoluments will be
released to her; otherwise, it will be applied in payment of her
indebtedness (Santiago vs. COA, 537 SCRA 740).
SSS
(d) The benefits provided under SSS Res. 56, which grants
financial incentive to SSS employees to avail of retirement
benefits under RA 660 as amended rather than the retirement
benefits under RA 1616 as amended, though referred to as
"financial assistance" equivalent in amount to the difference
between what a retiree would have received under RA 1616 less
what he was entitled to under RA 660, constituted additional
retirement benefits. Such scheme constitute a supplementary
retirement plan proscribed by RA 4968 (The Teves Retirement
Law) which bars the creation of any insurance or retirement plan
- other than the GSIS - for government employees, to prevent
the undue and inequitous proliferation of such plans. SSS Res. 56
is therefore void and of no effect (Conte vs. COA, 264 SCRA 20).
While GSIS has authority to create a financial scheme for its
retiring employees, it is limited only to employees availing of
early retirement caused by reorganization in GSIS. Retirement
Financial Plan (RFP) adopted by GSIS Board is void as it is not an
early retirement scheme but rewards GSIS retiring employees,
who already enjoy salaries higher than their counterparts, with
large chunks of benefits despite their P15B deficiency. It would
have to dip into its principal fund to the prejudice of its
members. Those who received the RFP benefits are liable for the
return thereof (GSIS vs. COA, 10/19/11).
If public officer is convicted by final judgment under RA 3019
xxx, he loses all retirement or gratuity benefits. In case he
already received same, he is liable to restitute (Sec. 13RA3019).
On basis of Auditor’s finding of cash shortage of P3.58 M vs.
petitioner mun. treasurer, COA can direct proper officer to
withhold her salary/other emoluments [under Sec. 21, Ch. 4, Bk.
V of EO 292 & Sec. 37 of PD 1445] up to amount of alleged
shortage pending litigation of her liability (Santiago vs. COA,
537 SCRA 740).
Dats | 37
 Sources: Atty. ELMAN notes; \
PER DIEM
(e) Under Section 13 of PD 198, per diem is precisely intended to
be the compensation of members of board of directors of water
districts. By specifying the compensation which a director is
entitled to receive in a month and providing “no director shall
receive other compensation” than the amount provided for per
diems, the law clearly indicates that directors of water districts
are authorized to receive only the per diem authorized by law
and no other compensation or allowance in whatever form
Baybay Water District vs. COA, 374 SCRA 482).
Practice in granting the benefit, through the erroneous
application and enforcement of the law by public officers, no
matter how long continued, cannot give rise to any vested right
if it is contrary to law. The fact that the Salary Standardization
Law (RA 6758) speaks of allowance as “benefits” paid in addition
to the salaries incumbents are presently receiving makes it clear
that the law does not refer to the compensation of directors of
water districts as they do not receive salaries but per diems for
their compensation and they are in fact limited to policy-making
and are prohibited from the management of the districts.
Directors of water districts are not organic personnel and as
such are excluded from the coverage of RA 6758. Their
relationship to the water district is more fiduciary than that of
employer-employee. Finally, the grant of similar benefits (per
diems and other allowances) to the directors of the NAPOCOR is
based on the Revised NAPOCOR Charter (RA 6395 as amended
by PD 1360). Unlike PD 198, the NAPOCOR Charter expressly
granted members of its board of directors the right to receive
allowances in addition to their per diems, subject only to the
approval of the Secretary of Energy (supra). Thus, members of
the board of water districts cannot receive allowances and
benefits more than those allowed by PD 198 (De Jesus vs. COA,
403 SCRA 667).
LWUA Resolution No. 313, s.1995, which grants compensation
and other benefits to the members of the BOD of Local Water
Districts (in this case, Bacolod City Water District), is not in
conformity with Sec. 13 of PD 198. However, having been
granted said allowances and bonuses in 1999, before the Court
declared in Baybay Water District the illegality of payment of
additional compensation other than the allowed per diem in Sec.
13 of PD 198, as amended, they can be considered to have
received the same in good faith, hence, they need not refund
them (Querubin vs. COA Legal and Adjudication Office, 433
SCRA 773).
Since the instant controversy had arisen prior to the
promulgation of the Baybay Water District ruling, petitioners
need not refund the allowances and bonuses they received but
disallowed by COA where they received those benefits in good
faith (De Jesus vs. CSC, 471 SCRA 626; Barbo vs. COA, 568 SCRA
304).
• Sec. 13 PD 198 now amended by RA 9286 as approved
on 04/02/04
*Apart from per diem, each director shall receive allowances &
benefits as the Board may prescribe subject to LWUA approval
• Alternates of ex-officio members of NHA Board not
entitled to extra compensation (Dela Cruz vs. COA,
371 SCRA 158)
| LAW ON PUBLIC OFFICERS
Since the Executive Department Secretaries, as ex-officio
members of the NHA Board, are prohibited from receiving extra
(additional) compensation, whether it be in the form of a per
diem or an honorarium or an allowance, it follows that
petitioners who sit as their alternates cannot likewise be entitled
to receive such compensation. A contrary rule would give
petitioners a better right than their principals (Dela Cruz vs.
COA, 371 SCRA 158).
Note: Relate above to GOCC Governance Act of 2011 (RA 10149)
re rationalization of salary & benefits based on performance.
INP members are not excluded from the retirement benefits
given to PNP retirees under RA 6975 as amended by RA 8551.
INP was not abolished but merely transformed or absorbed. Sec.
38 provides that retirement benefits schedule have retroactive
effect (DBM vs. Manila’s Finest Retirees Association,
05/09/07).
*Bitonio v. COA, 425 SCRA 437
The Special Economic Zone Act of 1995 (RA 7916) designated the
Secretary of the Department of Labor and Employment or his
authorized representative as a member of the Philippine
Economic Zone Authority (PEZA) Board. The law further
authorized members to receive per diems of not less than the
amount equivalent to the representation allowances of the
members of the Board. Is petitioner, who attended several
board meetings as representative of the Secretary, entitled to
per diems?
Held: No. Sec. 13 of Art. VII of the 1987 Constitution prohibits
Cabinet Secretaries, Undersecretaries, and their Assistant
Secretaries from holding other government offices or positions
in addition to their primary positions and to receive
compensations therefor, except where the Constitution
expressly provides. It must be noted that petitioner’s presence
in the PEZA Board meetings is solely by virtue of his capacity as
representative of the Secretary of Labor. As the petitioner
himself admitted, there was no separate or special appointment
for such position. Since the Secretary of Labor is prohibited
from receiving compensation for his additional office or
employment, such prohibition likewise applies to the petitioner
who sat in the Board only in behalf of the Secretary of Labor.
The prohibition from receiving extra compensation applies,
whether it be in the form of a per diem or an honorarium or an
allowance, or some other euphemism.
(f) Since the INP was not abolished but merely transformed to
become the PNP, INP members which included the herein
respondents are therefore not excluded from availing
themselves of the retirement benefits accorded to PNP retirees
under Sections 74 and 75 of RA 6975 as amended by RA 8551.
That respondents were no longer in the government service at
the time of enactment of RA 6975 is not an impediment to their
entitlement to the new retirement scheme under said sections,
since their membership in the INP was an antecedent fact that
allowed them to avail themselves of the benefits of the
Dats | 38
 Sources: Atty. ELMAN notes; \
subsequent laws. RA 6975 considered them as PNP members,
always referring to their membership and service in the INP in
providing for their retirement benefits. In fact, under Section
38of the amendatory law (RA 8551), the rationalized retirement
benefits schedule “shall have retroactive effect in favor of PNP
members and officers retired or separated from the time
specified in the law.” Said provision should be made applicable
to INP members who had retired prior to the effectivity of RA
6975. For the INP was merely absorbed by the PNP and not
abolished (DBM, PNP and CSC vs. Manila’s Finest Retirees
Association, 09 May 2007).
RIGHT TO SELF ORGANIZATION
Exercise of rights to peaceably assemble and petition for redress
of grievances must be w/in reasonable limits xxx without work
stoppage (Bangalisan vs. CA, 276 SCRA 619; Jacinto vs. CA, 281
SCRA 657; Alipat vs. CA, 308 SCRA 781; Dela Cruz vs. CA, 305
SCRA 303)
(g) Executive Order No. 180 (eff. June 1, 1987), which defined
and delineated the scope of the constitutional right of
government employees to self-organization, concedes to them,
like their counterparts in the private sector, the right to engage
in concerted activities, including the right to strike, however,
those activities must be exercised in accordance with law, i.e.,
are subject both to Civil Service Law and Rules and any
legislation that may be enacted by Congress.
The resolution of complaints, grievances and cases involving
government employees is not ordinarily left to collective
bargaining or other related concerted activities, but to Civil
Service Law and labor laws and procedures whenever applicable.
In case any dispute remains unresolved after exhausting all
available remedies, the parties may jointly refer the dispute to
the Public Sector Labor-Management Council for appropriate
action. What is more, the Rules implementing EO 180 clearly
provide that since the "terms and conditions of employment in
the government, including any political subdivision or
instrumentality thereof and GOCCs with original charters are
governed by law, the employees therein shall not strike for the
purpose of securing changes thereof" (Arizala vs. CA, 14 Sept.
1990).
Employees of the SSS (SSS vs. CA, 175 SCRA 686) and public
school teachers (Manila Public School Teachers Assn. vs.
Secretary of Education, 200 SCRA 323) do not have a
constitutional right to strike (2000 BQ). This does not mean
however that they may not be given the right to strike by
statute. Government employees do not have the right to strike
because there is as yet no law permitting them to strike
(Republic vs. CA, 20 December 1989). The right of government
employees to organize is limited to the formation of unions or
associations only, without including the right to strike (Gesite vs.
CA, 444 SCRA 52).
The teachers cannot claim that their right to peaceably assemble
and petition for the redress of grievances has been curtailed
because they can still exercise this right without stoppage of
classes (Bangalisan vs. CA, 276 SCRA 619). Where public school
teachers absent themselves without proper authority, from their
| LAW ON PUBLIC OFFICERS
schools during regular school days, in order to participate in
mass protest, their absence ineluctably results in the non-
holding of classes and in the deprivation of students of
education, for which they are responsible, and they may be
penalized not for the exercise of their right to assemble
peacefully and to petition the government for a redress of
grievances but for conduct prejudicial to the best interest of the
service (Jacinto vs. CA, 281 SCRA 657).
The mass actions of September/October 1990 participated in by
the public school teachers of Metro Manila amounted to a strike
in every sense of the term, constituting as they did, a concerted
and unauthorized stoppage of or absence from work which it
was said teachers’ sworn duty to perform (Alipat vs. CA, 308
SCRA 781).
The fact that the conventional term ‘strike’ was not used by the
striking teachers to describe their common course of action is
inconsequential, since the substance of the situation, and not its
appearance, is deemed controlling. There was work stoppage
and petitioners’ purpose was to realize their demands by
withholding their services (Gesite vs. CA, 444 SCRA 51).
Their constitutional rights to peaceably assemble and petition
the government for redress of grievances, to be upheld like any
other liberty, must be exercised within reasonable limits so as
not to prejudice the public welfare. On the contrary, they
committed acts prejudicial to the best interest of the service by
staging the mass protests on regular school days, abandoning
their classes and refusing to go back even after they had been
ordered to do so. Had the teachers availed of their free time-
recess, after classes, weekends or holidays to dramatize their
grievances and to dialogue with the proper authorities within
the bounds of the law, no one – not the DECS, the CSC or even
the Supreme Court – could have held them liable for their
participation in the mass actions (De la Cruz vs. CA, 305 SCRA
303; Secretary of DECS vs. CA, 342 SCRA 49).
On whether back wages may be awarded to the teachers who
were ordered reinstated the service after the dismissal orders
issued by the DECS Secretary were commuted by the CSC to six
months’ suspension, the answer is in the negative on the ground
that the teachers were neither exonerated or unjustifiably
suspended. When the teachers have given cause for their
suspension – i.e., the unjustified abandonment of classes to the
prejudice of their students – they were not fully innocent of the
charges against them although they were found guilty only of
conduct prejudicial to the best interest of the service and not
grave misconduct or other offenses warranting their dismissal
from the service; being found liable for a lesser offense is not
equivalent to exoneration (Alipat vs. CA).
The right to "form, join or assist employees organization of their
own choosing" under EO 180 is not regarded as existing or
available for purposes of collective bargaining but simply "for
the furtherance and protection of their interests." Excluded from
negotiation by government employees are the "terms and
conditions of employment that are fixed by law", as only those
terms and conditions not otherwise fixed by law "may be subject
of negotiation between the duly organized employees'
organizations and government authorities".
Declared to be not negotiable are matters that require
appropriation of funds, e.g., increase in hospitalization, medical
and dental services, increase in retirement benefits (Sec. 3, Rule
Dats | 39
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

Vlll) and those that involve the exercise of management Congress and internal deliberations of the Supreme
prerogative, e.g., appointment, promotion, assignment/detail, Court) [Chavez vs. PCGG, 09 December 1998].
penalties as a result of disciplinary actions, etc. (Sec. 4, id).
The right to information does not extend to matters recognized
Considered negotiable are such matters as schedule of vacation
as ‘privileged information’ under the separation of powers, by
and other leaves, work assignment of pregnant women;
which the Court meant Presidential conversations,
recreational, social, athletic, and cultural activities and facilities
correspondences, and discussions in closed-door Cabinet
(Sec. 2, id).
meetings (Neri v. Senate Committee on Accountability of Public
Officers and Investigations (564 SCRA 153). It is well-established
in jurisprudence that neither the right to information nor the
[Constitutional provisions on the right to self-organization of
policy of full public disclosure is absolute, there being matters
government employees:
which, albeit of public concern or public interest, are recognized
a. Art. lll Sec. 8: The right of the people, including those as privileged in nature. The types of information which may be
employed in the public and private sectors, to form unions or considered privileged have been elucidated in Almonte v.
associations not contrary to law shall not be abridged. Vasquez (314 Phil 150), Chavez v. PCGG (360 Phil 133), Chavez
v. Public Estate’s Authority (433 Phil 506) and most recently in
b. Art. lX B Sec. 2 (5): The right to self-organization shall not be Senate v. Ermita (488 SCRA 1) where the Court reaffirmed the
denied to government employees. validity of the doctrine of executive privilege which includes
c. Art. Xlll Sec. 3: The state shall guarantee the rights of all matters of diplomatic character and under negotiation and
workers to self-organization, collective bargaining and review. Diplomatic negotiations, therefore, are recognized as
negotiation, including the right to strike in accordance with law.] privileged in this jurisdiction, the JPEPA negotiations constituting
no exception. However, such privilege is only presumptive. For
as Senate v. Ermita holds, recognizing a type of information as
RIGHT TO INFORMATION privileged does not mean that it will be considered privileged in
all instances. Only after a consideration of the context in which
(h) The right to information under the Constitution is a self- the claim is made may it be determined if there is a public
executory provision which can be invoked by any citizen before interest that calls for the disclosure of the desired information,
the courts, though Congress may provide for reasonable strong enough to overcome its traditionally privileged status.
conditions upon the access to information such as those found
in RA 6713 “Code of Conduct and Ethical Standards for Public
Officials and Employees” (Gonzales vs. Narvasa, 337 SCRA 736). The documents on the proposed JPEPA as well as the text which
The right to information under the Bill of Rights guarantees the is subject to negotiations and legal review by the parties fall
right of the people to demand information on matters of public under the exceptions to the right of access to information on
concern while Sec. 28, Art. ll of the Constitution recognizes the matters of public concern and policy of public disclosure. They
duty of officialdom to give information even if nobody demands come within the coverage of executive privilege. At the time
(Province of North Cotabato vs. GRP, 568 SCRA 410). when the Committee was requesting for copies of such
documents, the negotiations were ongoing as they are still now
The right to information is a public right and when a mandamus and the text of the proposed JPEPA is still uncertain and subject
proceeding involves the assertion of a public right, the to change. Considering the status and nature of such
requirement of personal interest is satisfied by the mere fact documents then and now, these are evidently covered by
that the petitioner is a citizen, and therefore part of the general executive privilege consistent with existing legal provisions and
public which possesses the right (Legaspi vs. CSC, 150 SCRA settled jurisprudence. (Akbayan v. Aquino, 16 July 2008)
530).
Some of the recognized exemptions from compulsory disclosure
are:
(1) state secrets regarding military, diplomatic and
other national security matters;
(2) trade or industrial secrets (pursuant to the
Intellectual Property Code and other related laws) as
well as banking transactions (pursuant to the Secrecy
of Bank Deposits Act);
(3) classified law enforcement matters, such as those
relating to the apprehension, prosecution and
detention of criminals, which courts may not inquire
into prior to such arrest, detention and prosecution;
and
(4) confidential or classified information officially
known to public officials and employees by reason of
their office and not made available to the public
pursuant to RA 6713 (ex. Closed door Cabinet
meetings and executive sessions of either house of

Dats | 40
 Sources: Atty. ELMAN notes; \
DUTIES OF PUBLIC OFFICERS
Duty under Art. Xl Sec. 17 Const.
• A public officer shall, upon assumption of office & as
often as may be required by law, submit a declaration
under oath of his assets, liabilities and net worth.
• In the case of the Pres., the VP, the members of the
S.C., the constitutional commissions and other
constitutional offices, and offices of the armed forces
w/ general or flag rank, the declaration shall be
disclosed to the public in the manner provided by law.
Unexplained Wealth of Public Officers
Basis of Lifestyle Check:
*Sec. 1 Art. Xl Constitution
*Sec. 8 RA 3019 in re to RA 1379
*PNB vs. Gancayco, 15 SCRA 91
*Banco Filipino vs. Purisima, 161 SCRA 576
*Marquez vs. Desierto, 359 SCRA 773
• Exceptions to the rule vs. disclosure of bank deposits
under RA 1405 (UBP vs. CA, 321 SCRA 563)
Sec. 8 RA 6426
• Except w/written permission of depositor, “ in no
instance shall FCDs be examined, inquired or looked
into by any person, gov’t official, bureau or office
whether judicial or administrative or legislative or any
other entity whether public or private.”
• Still, the constitutional principle of public
accountability overrides the absolute confidentiality of
foreign currency deposits.
• RA 6426 cannot be an exception to the clear command
and tenor of Art. Xl Sec. 17 Const.
• No conflict bet. RA 6713 & RA 6426: Sec. 8 of RA 6426
merely prohibits inquiry of a FCD account by an entity
or person other than depositor himself. But nothing in
RA 6426 prohibits the depositor from making a
declaration on his own of such FC, especially where
Const. mandates the public officer to declare all assets
under oath.
Anti-Graft & Corrupt Practices Act
(RA 3019)
• Sec. 3: Corrupt Practices of Public Officers
• Sec. 4: Prohibition on private individuals – unlawful for
any person to capitalize or exploit his family or close
personal relation xxx by requesting any present or gift
xxx
| LAW ON PUBLIC OFFICERS
• Sec. 5: Prohibition on certain relatives – unlawful for
rd
any relative w/in 3 degree of the Pres., VP, Pres. of
Senate, Speaker xxx to intervene in any business,
transaction or contract with the Government.
• Sec. 6 – unlawful for any member of Congress during
his term to acquire any personal pecuniary interest in
any specific business enterprise w/c will be benefited
by any law authored by him xxx
• Sec. 7 : SALN (cf Sec. 8 RA 6713)
• Sec. 8 : Prima facie evidence of and dismissal due to
unexplained wealth
• Sec. 11 : Prescription of offenses is 15 years
• Sec. 12: Public officer not allowed to resign…
• Sec. 13: Suspension and loss of benefits
Section 3. Corrupt practices of public officers. In addition to acts
or omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public
officer to perform an act constituting a violation of
rules and regulations duly promulgated by competent
authority or an offense in connection with the official
duties of the latter, or allowing himself to be
persuaded, induced, or influenced to commit such
violation or offense.
(b) Directly or indirectly requesting or receiving any
gift, present, share, percentage, or benefit, for himself
or for any other person, in connection with any
contract or transaction between the Government and
any other part, wherein the public officer in his official
capacity has to intervene under the law.
(c) Directly or indirectly requesting or receiving any
gift, present or other pecuniary or material benefit, for
himself or for another, from any person for whom the
public officer, in any manner or capacity, has secured
or obtained, or will secure or obtain, any Government
permit or license, in consideration for the help given or
to be given, without prejudice to Section thirteen of
this Act.
(d) Accepting or having any member of his family
accept employment in a private enterprise which has
pending official business with him during the pendency
thereof or within one year after its termination.
(e) Causing any undue injury to any party, including
the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or
request, without sufficient justification, to act within a
reasonable time on any matter pending before him for
Dats | 41
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

the purpose of obtaining, directly or indirectly, from

any person interested in the matter some pecuniary or
Code of Conduct & Ethical Standards for Public Officials (RA
material benefit or advantage, or for the purpose of
6713)
favoring his own interest or giving undue advantage in
favor of or discriminating against any other interested • Sec. 5: Duties
party.
• Sec. 6: Prohibited Acts and Transactions of Public
(g) Entering, on behalf of the Government, into any officials & employees: They shall not
contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the ~have financial/material interest in transaction requiring the
public officer profited or will profit thereby. approval of their office.

(h) Director or indirectly having financing or pecuniary ~own, control, manage or accept employment as officer,
interest in any business, contract or transaction in employee xxx in any private enterprise regulated or licensed by
connection with which he intervenes or takes part in their office
his official capacity, or in which he is prohibited by the unless expressly allowed by law.
Constitution or by any law from having any interest.
(i) Directly or indirectly becoming interested, for
personal gain, or having a material interest in any • Prohibitions: not allowed to -
transaction or act requiring the approval of a board, ~engage in the private practice of their profession unless
panel or group of which he is a member, and which authorized by Constitution or law, provided such practice will
exercises discretion in such approval, even if he votes not conflict or tend to conflict w/their official functions.
against the same or does not participate in the action
of the board, committee, panel or group. ~recommend any person to any position in a private enterprise
w/c has a pending official transaction with their office.
Interest for personal gain shall be presumed against
those public officers responsible for the approval of ~divulge confidential or classified information not made
manifestly unlawful, inequitable, or irregular available to the public xxx
transaction or acts by the board, panel or group to ~solicit or accept any gift, gratuity, favor or entertainment from
which they belong. any person xxx
(j) Knowingly approving or granting any license, • RA 6713
permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, • Sec. 8: Statements and Disclosure; who shall file; when
permit, privilege or advantage, or of a mere to file
representative or dummy of one who is not so
• Sec. 9: Divestment – A public official shall avoid
qualified or entitled.
conflicts of interest at all times. When a conflict of
(k) Divulging valuable information of a confidential interest arises, he shall resign from his position in any
character, acquired by his office or by him on account private business xxx
of his official position to unauthorized persons, or
releasing such information in advance of its authorized
release date.
The person giving the gift, present, share, percentage or benefit
referred to in subparagraphs (b) and (c); or offering or giving to
the public officer the employment mentioned in subparagraph
(d); or urging the divulging or untimely release of the
confidential information referred to in subparagraph (k) of this
section shall, together with the offending public officer, be
punished under Section nine of this Act and shall be
permanently or temporarily disqualified in the discretion of the
Court, from transacting business in any form with the
Government.

Dats | 42
 Sources: Atty. ELMAN notes; \
LIABILITIES OF PUBLIC OFFICERS
23. Liabilities of Public Officers
(a) A public officer who under the Constitution is required to be
a member of the Philippine Bar as a qualification for the office
held by him and who may be removed from office only by
impeachment, cannot be charged with disbarment during his
incumbency. Further, such public officer, during his incumbency,
cannot be charged criminally before the Sandiganbayan or any
other court with any offense which carries with it the penalty of
removal from office, or any penalty service of which would
amount to removal from office. The Tanodbayan, fiscal or any
prosecuting officer should forthwith dismiss any charge brought
against said public officer (In re: Raul Gonzales, 160 SCRA 771).
There is a fundamental procedural requirement that must be
observed before such liability may be determined and enforced.
A member of the Supreme Court must first be removed from
office via the constitutional route of impeachment under
Sections 2 and 3 of Art. Xl, 1987 Constitution. Should his tenure
be thus terminated by impeachment, he may then be held to
answer either criminally, or administratively (by disbarment
proceedings), for any wrong or misbehavior that may be proven
against him (Lecaroz vs. Sandiganbayan, 128 SCRA 324).
(b) Sec. 444 (d) of the Local Government Code provides that the
municipal mayor shall receive a minimum monthly
compensation corresponding to salary grade 27 as prescribed
under RA 6758. Consequently, conformably with RA 7975, the
Sandiganbayan has jurisdiction over violations of RA 3019
against municipal mayors (Binay vs. Sandiganbayan, 316 SCRA
65; Llorente vs. Sandiganbayan, 322 SCRA 329).
(c) The SSAL under Sec. 8 of RA 6713 serves as the basis of the
government and the people in monitoring the income and
lifestyle of officials and employees in the government in
compliance with the Constitutional policy to eradicate
corruption, promote transparency in government, and ensure
that all government employees and officials lead just and
modest lives . For this reason, the SSAL muat be sworn to and
made accessible to the public, subject to reasonable
administrative regulations (Flores vs. Montemayor, 629 SCRA
181). Even if a motor vehicle (2001 Ford Expedition) was
acquired through chattel mortgage, it is the employee’s ethical
and legal obligation to declare and include the same in his SSAL
(id.)
(d) Section 8 of RA 3019 is intended to amend Section 2 of RA
1405 (Secrecy of Bank Deposits Law) by providing an additional
exception to the rule against the disclosure of bank deposits.
Thus, the properties in the name of the spouse and unmarried
children of the public official or employee, his relatives or any
other persons may be taken into consideration in connection
with cases of unexplained wealth in accordance with the
provisions of RA 1379 (Banco Filipino vs. Purisima, 161 SCRA
576).
| LAW ON PUBLIC OFFICERS
An examination of RA 1405 would reveal the following
exceptions: 1. where the depositor consents in writing; 2.
impeachment cases; 3. by court order in bribery or dereliction of
duty cases against public officials; 4. deposit is subject of
litigation; 5. Sec. 8 of RA 3019, in cases of unexplained wealth
(PNB vs. Gancayco, 15 SCRA 91).
In Union Bank of the Philippines vs. CA, 321 SCRA 563, two
other exceptions are added:
a) a special or general examination of a bank that is specifically
authorized by the Monetary Board on a reasonable ground that
a bank fraud or serious irregularity has been or is being
committed and that it is necessary to look into the deposit to
establish such fraud or irregularity; and
b) in an examination made by an independent auditor hired by
the bank for audit purposes and for exclusive use of the bank.
In Marquez vs. Desierto, 359 SCRA 773, the Court held that
before an in camera inspection by the Ombudsman of bank
accounts may be allowed, there must be a pending case before a
court of competent jurisdiction. Further, the account must be
clearly identified, the inspection limited to the subject matter of
the pending case before the court of competent jurisdiction. In
the case at bar, there is yet no pending litigation before any
court. What exists is an investigation by the Office of the
Ombudsman. What the Ombudsman wishes to do is to fish for
additional evidence to formally charge Lagdameo et al. with the
Sandiganbayan.
The elements which must concur for the prima facie
presumption of unlawful acquisition under Sec. 3 of RA 1379 to
apply are: (1) the offender is a public officer or employee; (2) he
may have acquired a considerable amount of money or property
during his incumbency; and (3) said amount is manifestly out of
proportion to his salary as such public officer and to his other
lawful income and the income from legitimately acquired
property (Republic vs. Sandiganbayan, 406 SCRA 190).
LIABILITY OF HEAD OF OFFICE
• The agency head is immediately & primarily
responsible for all government funds & property
pertaining to his agency (Sec. 102 PD 1405).
• Expenditures of government funds or uses of
government property in violation of law or regulations
shall be a personal liability of the official or employee
found to be directly responsible therefor (Sec. 103 PD
1405).
• That the head of office is the final approving authority
of the questionable transaction and that those who
processed the same were directly under his
supervision does not necessarily make him the party
ultimately liable in case of disallowance. There is no
evidence to show that petitioner had knowledge of the
fraudulent scheme (P36.79M Amako loan) (Albert vs.
Gangan, 353 SCRA 673).
• Heads of offices have to rely to a reasonable extent on
their subordinates and on good faith of those who
Dats | 43
 Sources: Atty. ELMAN notes; \
prepare bids, purchase supplies or enter into
negotiations. He cannot be swept into a conspiracy
conviction simply because he did not personally
examine every single detail. There should be other
grounds than Arias’ mere signature on a voucher – as a
pre-audit to payment of the purchase of land allegely
overpriced – to sustain a conspiracy charge &
conviction (Arias vs. Sandiganbayan, 180 SCRA 310).
• In the absence of substantial evidence of gross neglect
of petitioner, administrative liability could not be
based on the principle of command responsibility. He
could not be made administratively liable without
proof of actual act or omission constituting neglect of
duty (RED Principe vs. OMB, 374 SCRA 460).
• Negligence of subordinates cannot always be ascribed
to their superior in the absence of evidence of the
latter’s own negligence. Sans evidence, administrative
liability could not be based on command responsibility
(De Jesus vs. Guerrero, 598 SCRA 342).
• The SC upheld the decision of Ombudsman as affirmed
by CA dismissing petitioner from the service on basis
of command responsibility. His duties as electrical div.
chief include seeing to it that proper annual
inspections are made. He failed miserably to perform
such duties. Manor Hotel was issued a certificate of
st
electrical inspection only on its 1 year (1991) but got
business permits for the succeeding years even w/o
actual inspections. His division could not even produce
the approved elec. plans & specs of the hotel
(Montallana vs. CA, GR 179677, 08/08/12).
• General Rule: Superiors cannot be held liable for acts
of their subordinates
• Exceptions
~ having the duty of employing or retaining subordinates, he
negligently or willfully employs or retains unfit/improper
persons.
~ he negligently or willfully fails to require the due conformity
to prescribed regulations.
~ he carelessly or negligently oversees or conducts business of
his office as to provide opportunity for the default.
~ he authorized or cooperated in the wrong.
• As a rule, a public official may not recover damages for
charges of falsehood related to his official conduct
unless he proves that the statement was with actual
malice. The test for actual malice is – with knowledge
that it was false or w/reckless disregard of whether it
was false or not (Banas vs. CA, 325 SCRA 263).
• ‘state immunity from suit’ doctrine applies to
complaints vs. officials for acts in performance of their
duties. The rule is not applicable if the public official is
sued in his personal capacity (Lansang vs. CA, 23 Feb.
’00)
(e) The mere fact that a public officer is the head of the agency
does not necessarily mean that he is the party ultimately liable
| LAW ON PUBLIC OFFICERS
in case of disallowance of expenses for questionable
transactions of his agency. He cannot be held personally liable
for the disallowance simply because he was the final approving
authority of the transaction and that the officers/employees
who processed the same were directly under his supervision
(Albert vs. Gangan, 353 SCRA 680; Peralta vs. Desierto, 473
SCRA 323).
It would be a bad precedent if a head of office plagued by all too
common problems – dishonest or negligent subordinates,
overwork, multiple assignments or positions, or plain
incompetence – is suddenly swept into a conspiracy conviction
simply because he did not personally examine every single detail
… before affixing his signature as the final approving authority
(Arias vs. Sandiganbayan, 180 SCRA 309).
All heads of offices have to rely to a reasonable extent on their
subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations (supra). Arias is a
criminal case whereas the instant case is an administrative case.
As conviction in criminal cases involve deprivation of life or
liberty of the accused, proof beyond reasonable doubt must be
established by the prosecution, unlike in administrative cases
which only require substantial evidence (Bedruz vs.
Ombudsman, 484 SCRA 452).
In the absence of substantial evidence of gross neglect of
petitioner, administrative liability could not be based on the
principle of command responsibility. The principles under the
Revised Administrative Code of 1987 clearly provide that a head
of a 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 (Principe vs.
FFIB, Office of the Ombudsman, 374 SCRA 460).
Petitioner DENR Regional Executive Director for Region lV, who
was dismissed by the Ombudsman for gross neglect of duty in
connection with the collapse of the housing project at the
Cherry Hills Subdivison, because he was the one who signed and
approved the ECC, could not be made administratively liable
without proof of actual act or omission constituting neglect of
duty. The responsibility of monitoring housing and land
development projects is not lodged with the office of petitioner.
The Court thus annulled the decision of the Ombudsman (id.).
The negligence of subordinates cannot always be ascribed to
their superior in the absence of evidence of the latter’s own
negligence (De Jesus vs. Guerrero, 598 SCRA 342).
Although as a general rule, superior officers cannot be held
liable for the acts of their subordinates, there are exceptions: (1)
where, being charged with the duty of employing or retaining his
subordinates, he negligently or willfully employs or retains unfit
or improper persons; or (2) where, being charged with the duty
to see that they are appointed or qualified in a proper manner,
he negligently or willfully fails to require them the due
conformity to the prescribed regulations; or (3) where he so
carelessly or negligently oversees, conducts or carries on the
business of his office as to furnish the opportunity for the
default; or (4) and a fortiori where he has directed, authorized or
cooperated in the wrong (Ombudsman vs. Jurado, 561 SCRA
138).
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 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

(f) As a rule, a public official may not recover damages for

charges of falsehood related to his official conduct unless he
proves that the statement was made with actual malice. The test
for actual malice which the Court has adopted in defamation
and libel cases is – “…with knowledge that it was false or with
reckless disregard of whether it was false or not”. In the case at
bar, the extortion charges filed by petitioner Banas against
respondent BIR Regional Director Larin – in response to the tax
evasion cases filed by the latter against the former -- amounted
to a baseless prosecution. Petitioner presented no evidence to
prove Larin extorted money. When the tax investigation against
Banas started, Larin was not yet the RD. Thus, there is sufficient
basis for the award of moral and exemplary damages in favor of
Larin where he suffered anxiety and humiliation because of such
baseless prosecution by a taxpayer. However, considering that
the award is in favor of a government official in connection with
his official function, it is with caution that the Court affirms
granting moral damages, for it might open the floodgates for
government officials counter-claiming in suits filed against them
in connection with their functions and lest the amounts awarded
would make citizens hesitant to expose corruption in
government for fear of suits from vindictive officials. (Banas vs.
CA, 325 SCRA 263)
STATE IMMUNITY
(g) The doctrine of state immunity from suit applies to
complaints filed against public officials for acts done in the
performance of their duties. The rule is that the suit must be
regarded as one against the State where satisfaction of
judgment against a public officer concerned will require the
State itself to perform a positive act, such as appropriation of
the amount necessary to pay the damages awarded to plaintiff.
The rule does not apply where the public official is charged in his
official capacity for acts that are unlawful and injurious to the
rights of others. Neither does it apply where the public official is
clearly being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been
committed while he occupied a public position (Lansang vs. CA,
23 February 2000).
*Philippine Agila Satellite v. Trinidad-Lichauco, 489 SCRA 160
A case was filed by Philippine Agila Satellite against
Undersecretary Lichauco of the Department of Trade and
Communication. The first cause of action, for injunction, sought
to establish that the award of orbital slot for the launching of a
satellite should be enjoined since the DOTC had previously
assigned the same orbital slot to PASI. The second cause of
action was for declaration of nullity of award to the unknown
bidder as it was beyond Lichauco’s authority. Can Lichauco
invoke immunity from suit?
Held: No. State immunity from suit does not apply. When the
performance of official functions by an officer of the
government will result in a charge against or financial liability to
the government, the complaint must be regarded as a suit
against the State itself. The causes of action do not seek to
impose a charge or financial liability against the State, but
merely the nullification of state action. The prayers in these two
causes of action are for the revocation of the Notice of Bid and
the nullification of the purported award. Had it been so that
petitioner additionally sought damages in relation to said causes
of action, the suit would have been considered as one against
the State. Had the petitioner impleaded the DOTC, an
unincorporated government agency, and not Lichauco herself,
the suit would have been considered as one against the State.
(h) Money in the hands of public officers, although it may be due
government employees, is not liable to the creditors of these
employees in the process of garnishment. One reason is that the
State, by virtue of its sovereignty, may not be sued in its own
courts except by express authorization by the Legislature, and to
subject its officers to garnishment would be to permit indirectly
what is prohibited directly. Another reason is that money sought
to be garnished, as long as they remain in the hands of the
disbursing officer of the Government, belong to the latter,
although the defendant in garnishment may be entitled to a
specific portion thereof (People vs. Enfermo, 476 SCRA 516).

*Calub v. CA, 331 SCRA 55

DENR officers apprehended a motor vehicle loaded with
illegally sourced lumber. Criminal cases for violation of the
Forestry Code were filed against the vehicle owner but were
dismissed on the ground of reasonable doubt. Thereafter, the
owner filed a complaint for recovery of possession of the vehicle
with an application for replevin against the DENR officers before
the RTC.

Held: A suit against a public officer for his official acts is a suit
against the State if its purpose is to hold the State ultimately
liable. The protection afforded to the public officers by this
doctrine generally applies only to activities within the scope of
their authority done in good faith. In the present case, in
enforcing the Forestry Code through the seizure carried out, the
DENR officers were performing their functions and they did so
within the limits of their authority. Hence, a suit against them
who represent the DENR is a suit against the State and it cannot
prosper without the State’s consent.

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 Sources: Atty. ELMAN notes; \
DISABILITIES AND INHIBITIONS OF PUBLIC
OFFICERS
24. Disabilities and Inhibitions of Public Officers
A. Under the 1987 Constitutiona. Art. Vl Section 13: 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 GOCCs or their
subsidiaries, during his term without forfeiting his seat.
[Incompatible Office]. Neither shall he be appointed to any
office which may have been created or the emoluments thereof
increased during the term for which he was elected. [Forbidden
Office].
b. Art. Vl Section 14: No senator or member of the House of
Representatives may personally appear as counsel before any
court of justice or before the Electoral Tribunals, or quasi-judicial
and other administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the government, etc.,
including GOCCs, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the
government for his pecuniary benefit or where he may be called
upon to act on account of his office.
c. Art. lX-B Section 7: No elective official shall be eligible for
appointment or designation in any capacity to any public office
or position during his tenure. (see Flores vs. Drilon, 223 SCRA
568 re case of Gordon as SBMA Chairman and Mayor of
Olongapo City).
Unless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including GOCCs or their subsidiaries.
Case: For accepting employment as a member of the PLEB of
Quezon City while concurrently employed as Legal Officer V of
the Manila Urban Settlement Office, in violation of Art. lX-B, Sec.
7, the Administrative Code of 1987 and the Local Government
Code, which in turn contravene his Attorney’s Oath and Code of
Professional Responsibility; and by engaging in the illegal
practice of law, respondent Cesar Fajardo was suspended for six
months from the practice of law by the Supreme Court
(Lorenzana vs. Fajardo, 462 SCRA 1). The practice of law by
government lawyers, to fall within the prohibition of statutes
has been interpreted as customarily habitually holding one’s self
out to the public, as a lawyer and demanding payment for such
services (ibid). However, Fajardo’s appointment as a member of
the Lupong Tagapamayapa of Barangay Novaliches Proper in
Quezon City is lawful because Section 406 of the LGC allows
government employees to sit as lupon or pangkat members. Nor
could he be found liable for receiving honoraria as a Lupon
member since the LGC authorizes Lupon members to receive
honoraria and other emoluments (ibid).
| LAW ON PUBLIC OFFICERS
d. Art. Vll Section 13: 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, directly or
indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the government
etc. They shall strictly avoid conflict of interest in the conduct of
their office.
The spouse or 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 GOCCs or their subsidiaries.
[Note that chiefs of bureaus and offices and their assistants are
not included among those officials under par. 1 above. The
exemption is to give them a chance to engage in some lawful
activity to augment their income. Existing civil service service
rules provide that government employees are prohibited from
engaging in business unless with the permission of their
department heads who must make sure that same does not
interfere with the work of the officials and employees or bring
about any conflict of interest.]
While under Sec. 7, Art. lX-B all other appointive officials in the
civil service are allowed to hold other office or employment in
the government during their tenure when such is allowed by law
or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words,
Sec.7, Art. lX-B is meant to lay down the general rule applicable
to all elective and appointive public officials and employees,
while Sec. 13, Art. Vll is meant to be the exception applicable
only to the President, Vice President, Cabinet members, their
deputies and assistants (National Amnesty Commission vs.
COA, 437 SCRA 655). Specifically identified by the Court as
excluded from the scope of the prohibition are public officers
who merely have the rank of secretary, undersecretary or
assistant secretary (Civil Liberties Union vs. Executive
Secretary). Section 13, Article VII of the Constitution is not
applicable to the PCGG Chairman nor to the CPLC – positions
held by Elma – as neither of them is a secretary, undersecretary
nor an assistant secretary, even if the former may have the rank
as the latter positions. Despite the non-applicability of Sec. 13,
Art. VII to respondent Elma, he remains covered by the general
prohibition under Sec. 7, Art. IX-B and his appointment must still
comply with with the compatibility standard (Public Interest
Center Inc. vs. Elma, 494 SCRA 62).
The prohibition against holding dual or multiple offices or
employment under Art. Vll Sec. 13 must not however be
construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an
ex-officio capacity as provided by law and as required by the
primary functions of said officials' office. The reason is that these
posts do not comprise "any other office" within the
contemplation of the constitutional prohibition but are properly
an imposition of additional duties and functions on said officials
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 Sources: Atty. ELMAN notes; \
(Civil Liberties Union vs. Executive Secretary, 22 February 1991).
If the functions required to be performed are merely incidental,
remotely related, inconsistent, incompatible, or otherwise alien
to the primary functions of a cabinet official, such additional
functions would fall under the purview of "any other office"
prohibited by the Constitution (ibid).
In the NAC vs. COA case, the NAC ex officio members’
representatives who were all appointive officials with ranks
below Assistant Secretary are covered by two constitutional
prohibitions. First, the NAC ex officio members’ representatives
are not exempt from the general prohibition under Sec. 7, Art lX-
B because there is law or administrative order creating a new
office or position and authorizing additional compensation
therefore. The representatives assumed their responsibilities not
by virtue of a new appointment but by mere designation from
the ex officio members who were themselves also designated as
such. Second, they are also covered by the strict constitutional
prohibition imposed on the President and his official family. The
laws, rules or prohibitions that cover the ex officio member
apply with equal force to his representative. The representative
cannot have a better right than his principal.
While petitioners are not among those officers mandated by law
to sit as members of the National Housing Authority (NHA)
Board, they are “alternates” of the said officers, “whose acts
shall be considered the acts of their principals”. Since the
Executive Department Secretaries, as ex-officio members of the
NHA Board, are prohibited from receiving “extra (additional)
compensation, whether it be in the form of a per diem or an
honorarium or an allowance, it follows that petitioners cannot
likewise be entitled to receive such compensation. A contrary
rule would give petitioners a better right than their principals
(Dela Cruz vs. COA, 371 SCRA 157). Since the ex-officio member
is prohibited from receiving additional compensation for a
position held in an ex-officio capacity, so is his representative
likewise restricted (Bitonio, Jr. vs. COA, 425 SCRA 437).
B. Under Sec. 7(b)(2) of the Code of Ethical Standards for Public
Officials and Employees (RA 6713), the private practice of
profession is prohibited. Thus, lawyers in government service
cannot handle private cases for they are expected to devote
themselves full-time to the work of their respective offices
(Ramos vs. Imbang, 530 SCRA 759). In this instance, In this
instance, respondent, a PAO lawyer, disregarded the
prohibitions against handling private cases and accepting
attorney’s fees, for which acts he was disbarred from the
practice of law (ibid). Section 7(b)(2) prohibits public officials
and employees from engaging in the private practice of their
profession during their incumbency. As an exception, she can
engage in the practice of her profession under the following
conditions: first, the private practice is authorized by the
Constitution or by the law; and second, the practice will not
conflict or tend to conflict with her official functions (Query of
Atty. Karen Buffe, former Clerk of Court, 596 SCRA 379). The
Section 7 prohibitions continue to apply for a one year period
after her resignation, retirement or separation from public
office, except for the private practice of profession (b)(2), which
can already be undertaken even within the one year prohibited
period. As an exception to this exception, the one year
| LAW ON PUBLIC OFFICERS
prohibited period applies with respect to any matter before the
office the public officer used to work with. Considering Atty.
Buffe’s ready admission through her query of violating Sec.
7(b)(2), the principle of res ipsa loquitur finds application and no
evidentiary hearing is required before she may be disciplined for
professional misconduct. She has been afforded the opportunity
to be heard through her letter-query and Manifestation filed
before the Court (supra).
As a rule, government lawyers are not allowed to engage in the
private practice of their profession during their incumbency
(Buffe case). By way of exception, a government lawyer can
engage in the practice of his or her profession under the
following conditions: first, the private practice is authorized by
the Constitution or by the law; and second, the practice will not
conflict or tend to conflict with his or her official functions. The
last paragraph of Section 7 provides an exception to the
exception. In case of lawyers separated from the government
service, a one-year prohibition is imposed to practice law in
connection with any matter before the office he used to be with
(Olazo vs. Tinga, 637 SCRA 15). Generally, a lawyer who holds a
government office may not be disciplined as a member of the
Bar (thru disbarment or suspension) for misconduct in the
discharge of his duties as a government official, except when his
misconduct also constitutes a violation of his oath as a lawyer.
The burden rests on the complainant to present clear,
convincing and satisfactory proof for the Court to exercise its
disciplinary powers. Here, the legal service rendered by the
respondent was limited only in the preparation of a single
document. No evidence of conflicting interests shown.
*NEA vs. CSC, 25 January 2010
The designation of NEA personnel as Acting General Manager
and/or Project Supervisor in the cooperatives did not violate
Sec. 7(a) of RA 6713. The prohibition under the NEA law against
NEA personnel from participating in any question pertaining to a
public service entity where he is directly or indirectly interested
has the purpose of preventing such personnel from exercising
the power of his office for personal pecuniary gain, which may
cause grave damage and prejudice to public interest. In the
same manner, government officials and employees are
prohibited under Section 7 (a) of RA No. 6713 from having direct
or indirect financial or material interest in any transaction
requiring the approval of their office, since personal interest
would be involved. On the other hand, when the NEA
Administrator, subject to the confirmation of the Board,
designates pursuant to the NEA Charter (PD 1645) a NEA
personnel to an electric cooperative where a vacancy in a certain
position occurs and/or when the interest of the cooperative or
the program so requires, such designation is primarily geared to
protect the interest of the government and the loans it extended
to the cooperative. Thus, any NEA personnel so designated in
the electric cooperative cannot be considered as having
direct or indirect interest in the cooperative for its own
personal interest, but only for the purpose of protecting the
interest of NEA as the primary source of funds for the electric
cooperative. Thus, the NEA designation of its own employees as
Acting General Manager and/or Project Supervisor to the
electric cooperatives is to ensure that the affairs of the
cooperatives are being managed properly, so as not to prejudice
petitioner's interest therein. Also, this is to ensure that
Dats | 47
 Sources: Atty. ELMAN notes; \ | LAW ON PUBLIC OFFICERS

whatever loans were extended by petitioner to the cooperatives

would be repaid to the government. The designation of NEA
personnel is not violative of Section 7 (b) of RA No. 6713
regarding outside employment by a public officer and employee,
considering that the designation of petitioner's personnel as
Acting General Manager and Project Supervisor of the electric
cooperatives was by virtue of Section 5 (a)(6) of PD No. 269 as
amended; thus, such designation was part of petitioner's
exercise of its power of supervision and control over the electric
cooperatives. The CSC cannot invoke the conflict of interest
provision under the NEA Law and Section 7 (a) and (b) of RA No.
6713 as bases for ordering the recall of the NEA personnel
assigned to the electric cooperative and for directing the NEA to
cease and desist from designating its personnel to the electric
cooperative. PD No. 1645 does not make any distinction as to
who should be the designee. Finally, the payment to NEA
personnel designated to cooperatives of allowances and other
benefits on top of their regular salaries from petitioner is
violative of their own charter which does not provide for such
payment and, thus, inimical to the best interest of public service.
It also violates the first paragraph of Section 8, Article IX-B of the
Constitution, which proscribes additional, double, or indirect
compensation.

(Phil. Copyright 2012 RME)

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