Law on Public Officers

Outline of Topics:
I. Law on Public Officers
1. General Principles
2. Modes of Acquiring Title to Public Office
3. Modes and Kinds of Appointment
4. Eligibility and Qualification Requirements
5. Disabilities and Inhibitions of Public Officers
6. Powers and Duties of Public Officers
7. Rights of Public Officers
 8. Liabilities of Public Officers
a. Preventive Suspension and Back Salaries
b. Illegal Dismissal, Reinstatement and Back Salaries
9. Immunity of Public Officers
10. De Facto Officers
11. Termination of Official Relation
12. The Civil Service
a. Scope
b. Appointments to the Civil Service
c. Personnel Actions
13. Accountability of Public Officers
[a. Impeachment]
b. Ombudsman
(1) Judicial Review in Administrative
Proceedings
(2) Judicial Review in Penal Proceedings
c. Sandiganbayan
d. Ill-Gotten Wealth
14. Term Limits [????]
1. General Principles
a. Public Office the right, authority and duty (it has no

), created and conferred by law, by which

physical existence

for a given period, either fixed by law or enduring

at the pleasure of the creating power, an individual
is invested with some portions of the sovereign
functions of the government,
government to be exercised by
that individual for the benefit of the public. [Sto.
Tomas case]
Public office is a public trust
 ART. XI-ACCOUNTABILITY OF PUBLIC
OFFICERS
Section 1. Public office is a public trust.
Public officers and employees must, at all
times, be accountable to the people, serve
them with utmost responsibility, integrity,
loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.
Used in 2 Senses:
1. To any major fundamental unit of a
department (OFFICE OF THE OMBUDSMAN, OFFICE OF THE COURT
ADMINSTRATOR)

2. To a position held or occupied by an

individual (OFFICE OF THE MAYOR)
b. Public Officer one who holds a public office
A public officer is a person whose duties
involve the exercise of discretion in the
performance of the functions of government.
Employees (ARE THOSE WHO ONLY PERFORM MINISTERIAL
DUTIES)
RPC, Art. 203 Crimes Committed by Public
Officers [IT INCLUDES OR COVERS employees]
RA No. 3019 [also includes employees,
including government owned or controlled
corporations with original charters as well as
subsidiaries
 Is salary an element of public office? NO!! IT IS NOT AN ELEMENT OF
PUBLIC OFFICE AS LAWYERS AND NOTARIES ARE PUBLIC OFFICERS AND YET THEY DO
NOT RECEIVE SALARY FROM THE GOVERNMENT!!

-lawyers
-notaries
Laurel v. Desierto, April 12, 2002
President Aquino issued AO No. 233 constituting a
committee for the National Centennial Celebration of
1998. Subsequently, President Ramos named Salvador
Laurel as chair. Later he was charged with violating rules
on public bidding in the award of centennial contracts.
contracts
Laurel claims that he is not a public officer and the NCC was
not a public office. Does the OMB have jurisdiction over
him?
Held: Yes. As Chair of the NCC, Laurel is a public
officer. The characteristics of a public
office include delegation of sovereign
functions, its creation by law and not
by contract, an oath salary and
continuance of the position. While it may
be true that Laurel received no compensation,
salary is a mere incident and forms no part of the
office. The position of an NCC chair may be
characterized as an honorary, as opposed to a
lucrative office.
office
SO SALARY IS NOT AN ELEMENT OF PUBLIC
OFFICE!!
 Is continuity a requirement?

Art. VI. 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 government-owned or controlled
corporations or their subsidiaries, during his term
without forfeiting his seat.
NOTE THAT WHEN WE SPEAK OF PUBLIC OFFICE, CONTINUITY IS A
REQUIREMENT!!! THERE WAS THIS CONGRESSMAN WHO USED TO MAKE LECTURES
TO PHILJA.. DOJ MADE AN OPINION STATING THAT WHILE TEACHING IN PHILJA IS NOT AN
OFFICE, IT IS AN EMPLOYMENT.. YOU VIOLATED THE CONSTITUTION..
THE POINT SIMPLY IS THAT WHILE EMPLOYMENT NEED NOT REQUIRE CONTINUIITY, OFFICE
REQUIRES CONTINUITY AS ITS ELEMENT..!!
Other Characteristics:
1. Not a property right protected by the Bill of
Rights, but protected by due process [Bince
case](EMPHASIS IS THAT IT IS NOT PROTECTED BY THE BILL OF RIGHTS IN THAT
IT CAN BE ABOLISHED WHERE YOU CANNOT CLAIM THAT YOU WERE NOT GIVEN
PRIOR NOTICE.. HOWEVER, ONCE THERE IS A DISPUTE BETWEEN TWO PERSONS
CLAIMING AN OFFICE, EACH PARTY IS ENTITILED WITH DUE PROCESS BEFORE
COMELEC IN THE CASE OF A LOCAL ELECTIVE OFFICIAL..

2. Not transmissible upon death [De Castro

case] FPJ CASE WHERE SUSAN ROCES WAS MADE A SUBSTITUTE TO
REPLACE FPJ IN AN ELECTION PROTEST.. IT CANNOT BE DONE AS IT IS
NOT TRANSMISSIBLE!!
Bar Question, 2011
59. A private person constituted by the court as
custodian of property attached to secure a debt
sought to be recovered in a civil proceeding is
A. a private sheriff.
B. a public officer .(MAY BE HIS A PUBLIC OFFICER FOR
THAT PURPOSE ONLY)

C. a private warehouseman.
D. an agent of the party to whom the property will
ultimately be awarded.
2. Modes of Acquiring Pubic Office

a. appointment
b. election
c. succession [limited] [only when
specifically allowed by law and only in
elective positions]
positions
-SUCCESSION APPLIES ONLY TO SOMEONE
WHO IS ALREADY IN PUBLIC OFFICE
(LGU)
3. Modes and Kinds of Appointment
A. Appointment the designation of a person by the
person or persons having authority therefor to
discharge the duties of some office or trust.

Can the law itself appoint? The law creates the office
and provides for the qualifications but it cannot
designate the person who is to occupy it.
CONSIDER APPOINTMENT AS EXECUTIVE IN
NATURE.. IT CANNOT BE EXERCISED BY THE
CONGRESS!!
Can one be appointed to a non-vacant
position?
[Filling of a position where the previous
occupant has been illegally dismissed.
(General Manager v. Monserate, Apr. 17,
2002] (YOU ARE NOT ALLOWED TO APPOINT ONE TO A NON VACANT POSITION AS
WHEN YOU FILL A POSITION WHERE THE PREVIOUS OCCUPANT HAS BEEN ILLEGALLY
DISMISSED. IN THE EVENT THE LATTER IS RESTORED TO THE POSITION, THE APPOINTMENT
MADE TO THAT NEW ONE WILL BE VOIDED!!! RESTORED EMPLOYEE IS CONSIDERED AS NOT
TO HAVE LEFT THE OFFICE FOR ANY MOMENT!!

Exception: Anticipated vacancy, where no

law prohibits the appointment. [resignation
to take effect in the future]
THIS HAPPENS USUALLY WHEN A PERSON TENDERS RESIGNATION EFFECTIVE ON
SOME DATE.. PRIOR TO THE EFFECTIVITY THEREOF, THE APPOINTING AUTHORITY
MAY APPOINT SOMEONE TO THAT ANTICIPATED VACANCY PROVIDED THAT NO
LAW PROHIBITS SUCH APPOINTMENT
De Rama v. CA, 353 SCRA 94 (2001)-
Can local executives appoint during the
midnight period provided in the Constitution?
IF WE TAKE A LOOK AT THE LGC, THERE IS NO PROHIBITION ON MIDNIGHT
APPOINTMENT.. SUCH PROHIBITION IS APPLIED ONLY TO THE PRESIDENT!!

Appointments during election ban-

OEC, Sec. 261 (g): 45 days before a regular
election and 30 days before a special election.

NOTE THE DISTINCTION OF PROHIBITION ON MIDNIGHT APPOINTMENT AND ELECTION

BAN..
FIRST, THE NUMBER OF DAYS
SECOND, IN CASE OF LOCAL OFFICIALS, THE PROHIBITION OF APPOINTMENT IS
NOT ABSOLUTE AS HE CAN STILL APPOINT DURING SUCH ELECTION BAN
PROVIDED HE IS ABLE TO PROCURE AUTHORITY FROM THE COMELEC
Who can appoint?
The power to appoint is executive in
nature.
i. President
a. by himself alone (PLENARY)
b. with the consent of the COA
c. with the recommendation of the JBC
ii. Supreme Court/Congress/Commissions/OMB (THEY
ARE AUTHORIZED TO MAKE APPOINTMENTS)
iii. Heads of Departments/Offices/RDs (FOR INSTANCE THE
APPOINTMENT OF ASSISTANT PROSECUTION ATTORNEY (APA) IS APPIOINTED BY THE
SECRETARY OF JUSTICE.. ALSO PAO LAWYERS ARE APPOINTED BY HEAD OF PAO ATTY
ACOSTA.. RDS ARE ALLOWED TO APPOINT FIRST LEVEL EMPLOYEES

iv. Local Executives

- locally paid employees
Barangay Chairmen:
-barangay secretary
-treasurer not subject to CSC attestation
See Alquizola v. Ocol, 313 SCRA 273 (1999)
APPOINTMENT MADE BY PUNONG BARANGAY REQUIRES THE CONCURRENCE OF THE
BARANGAY COUNCIL OTHERWISE IT IS NULL AND VOID
Some Modifications:
1. City, municipal and provincial Treasurer and
their Assistants,
Assistants Local Executive nominates 3 and
the Secretary of Finance appoints from the list
2. Provincial, City or Municipal Budget Officer.
Officer
[Local Chief Executive nominates 3, and the DBM
Secretary appoints from the list---E.O. No. 112] Bar
Question 1999, No. 5]
2. Chief of Police [Chosen by the Mayor from a list
of 5 recommended by the Regional Police Director.
The Regional Director then appoints]
Andaya v. RTC, 319 SCRA 696 (1999)
The Regional Director, Police Command
No. 7, submitted a list of 5 for the Mayor to
choose from. The Mayor did not choose
because he wanted someone not in the list.
The RTC ordered the Regional Director to
include the name in the list.
Held: Under Sec. 51 of RA 6975, the
Mayor must choose from the list of 5
given to him, then the Regional Police
Director appoints that person. Mayor
has no power to appoint, much less
can he require the Regional Police
Director to include the name of any
officer.
c. Prohibitions
on appointments
[Constitution]
1. Art. IX no designation in a temporary or
acting capacity to the 3 Commissions
2. Art. VIII no designation of justices of the
Supreme Court and judges of lower courts to an
agency performing judicial and quasi-judicial
function
3. Art. XV no member of the AFP in active
service shall be appointed or designated to a
civilian position
B. Designation [Acting]- (SIMPLY MEANS A PERSON IS HOLDING A
POSITION IN ACTING CAPACITY)

Dimaandal v. COA, 291 SCRA 324 (1998)

Dimaandal, then Supply Officer III, was designated as Acting
Assistant Provincial Treasurer by the Governor. Is he entitled
to the difference in salary and allowances?
Held: The designation by the Governor is void. Under Sec.
471 of the LGC, an Assistant Treasurer can only be
appointed by the Secretary of Finance. Under Art. 2077
of the Administrative Code, the appointing authority can
order payment to the employee designated or temporarily
appointed.

NOTE THAT DESIGNATION CONNOTES ADDITIONAL

DUTIES
Moreover, designation only connotes additional duties to
a person already in public service.
service It does not entail the
right to receive the salary for the position.
position

Lessons: 1. Only the appointing authority can designate

[except if QPA applies] AS WHEN A CITY PROSECUTOR MAY BE
APPOINTED BY THE SECRETARY OF JUSTICE IN VIEW OF THE DOCTRINE OF
QUALIFIED AGENCY!!! THE ACTS OF THE SECRETARY ARE DEEMED TO THE ACTS
OF THE PRESIDENT!
2. One can only be entitled to the salary If the
appointing authority ALLOWS IT IN the designation.
[3. It is temporary and one does not enjoy security
of tenure.]
Presidents Power to Designate-

Administrative Code 0f 1987:

Section 17. Power to Issue Temporary
Designation. -
 (1) The President may temporarily designate an
officer already in the government service or any
other competent person to perform the functions
of an office in the executive branch, appointment
to which is vested in him by law, when: (a) the
officer regularly appointed to the office is unable
to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a
vacancy;
ONLY THE PRESIDENT CAN DESIGNATE SOMEBODY WHO IS NOT IN
GOVERNMENT SERVICE!!ANY OTHER COMPETENT PERSON!!
FOR OFFICIALS LOWER THAN THE PRESIDENT, THEY CANNOT DESIGNATE AN
OUTSIDER..
THE PRESIDENT CAN MAKE DESIGNATION WHETHER OR NOT THE CONGRESS IS
IN SESSION!! DESIGNATION REQUIRES NO CONFIRMATION!!
 (2) The person designated shall receive the
compensation attached to the position,
position unless
he is already in the government service in which
case he shall receive only such additional
compensation as, with his existing salary, shall
not exceed the salary authorized by law for the
position filled. The compensation hereby
authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary
designation exceed one (1) year.
 4. Eligibility and Qualification
Requirements

The Constitution or the Congress,

Congress by law,
can provide for qualifications and
disqualifications.
CONGRESS IS ALLOWED TO PROVIDE FOR QUALIFICATIONS AS IT IS THE ONE WHO
CREATES OFFICE!!
NOTE ALSO THE PROVISIONS IN THE CONSTITUTION WHERE IT PROVIDES THE
QUALIFICATIONS BUT AUTHORIZES CONGRESS TO ADD SOME MORE AS IN THE
CASE OF THE COMMISSION OF HUMAN RIGHTS AND JUDGES IN LOWER COURTS!!
Juliano v. Subdio, 62 SCA 481
Alino was appointed by the Mayor as City Legal
Officer. The CSC, however, disapproved it on the
ground that he lacked 4 years of trial work. This
qualification, however, is not found in any statute.
Held: The CSC has no authority, not even in the
exercise of its constitutional power to adopt
measures to promote efficiency in government
service to add qualifications to an office.

Only the Constitution or the Congress,

Congress by law, can
provide for qualifications and disqualifications.
Limits on Congress:
1. The Congress cannot also provide for
narrow qualifications in such a way that
the appointing authority is forced to
appoint one person. [Flores v. Drilon:
Qualifications of the Chairman of the SBMA
He must be the Mayor of Olongapo City.

The principle here is that THE POWER TO APPOINT IS DISCRETIONARY AND IT

CEASES TO BE DISCRETIONARY IF THE APPOINTING AUTHORITY IS LEFT WITH NO
CHOICE BUT TO APPOINT THE RECOMENDEE!
2. Unless clearly provided otherwise, the
Congress cannot add to the qualifications
insofar as constitutional positions (FOR THE
PURPOSE OF PRESERVING AND MAINTAINING INDEPENDENCE OF SUCH

BODIES). Pimentel v. COMELEC

IN THIS CASE, THE LAW PASSED BY CONGRESS PROVIDED FOR THE
MANDATORY DRUG TESTING ON ALL CANDIDATES!! HELD:
UNCONSTITUTIONAL!! YOU CANNOT ADD QUALIFICATION SET FORTH
IN THE CONSTITUTION!!
What about disqualifications(NEGATIVE TRAITS THAT RENDERS
YOU UNFIT TO HOLD AN OFFICE)? Examples:

1. Sec. 66 of the LGC: The penalty of

removal from office as a result of an
investigation shall be considered a bar to
the candidacy of respondent for any
elective position.

NOTE THAT CONGRESS CAN ADD

DISQUALIFICATIONS even to positions OF
SENATOR, PRESIDENT ETC as manifested
in the above provisions!!
 2. BP Blg. 881:Section 12 Disqualifications. - Any
person who has been declared by competent
authority insane or incompetent,
incompetent or has been
sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of
more than eighteen months or for a crime
involving moral turpitude, shall be
disqualified to be a candidate and
to hold any office, unless he has been given
plenary pardon or granted amnesty.

SO YOU CANNOT RUN FOR PRESIDENT IF FALL

UNDER THIS CATEGORY.. NOTE THE WORD
DISQUALIFIED TO BE A CANDIDATE AND TO
HOLD ANY OFFICE!!
 3. Revised Penal Code penalties providing for
disqualification from office in case of conviction.
Pimentel v. COMELEC RA No. 9165
Section 36. Authorized Drug Testing. .. The
following shall be subjected to undergo drug testing:
xxx
(g) all candidates for national or local government
shall undergo a mandatory drug test. ILLEGAL!
OBSERVATION: CRITICSM
1. IT SEEMS LIKE IT IS NOT A QUALIFICATION OR DISQUALIFICATION BECAUSE IT IS ONLY SAYS
THAT YOU MUST UNDERGOE DRUG TESTING!! IT DOES NOT SAY WHAT WILL HAPPEN IF YOU
TURNED OUT TO BE POSITIVE, HOW CAN YOU DECLARE IT CONSITITUTIONAL?
2. ASSUMING THAT IT IS A DISQUALIFIATION AS IT SEEMS TO SAY THAT IF YOU TURNED OUT TO BE
POSITIVE, YOU CANNOT RUN FOR ANY POSITION, CONGRESS IS NOT PROHIBITED FROM
ADDING DISQUALIFICATIONS EVEN TO CONSITITUTIONAL POSITIONS~
IT SHOULD HAVE BEEN DECLARED ONLY UNCONSTITUTIONAL IN SO FAR AS IT ADDS TO THE
QUALIFICATION FOR SENATOR PROVIDED BY THE CONSTITUTION.. HOWEVER, EMPHASIS
SHOULD BE PLACED THAT IT COULD NOT BE ILLEGAL AS TO CANDIDATES FOR LOCAL
GOVERNMENT SINCE CONGRESS CAN ADD QUALIFICATIONS TO POSITIONS FOR LOCAL
ELECTIVE OFFICIALS IN LGC
HENCE, WE ARE CRITITZCIZING WHY THE WHOLE PROVISIONS DECLARED TO BE
UNCONSTITUTIONAL!
BUT THE PRINCIPLE IS THAT CONGRESS CANNOT ADD QUALIFICATIONS TO A CONSTITUTIONAL
POSITION!!!!! THE AUTHORITY HAS ALREADY SETTLED THAT!!
 Qualifications: Used
IN PUBLIC OFFICERS THE WORD

in two senses-
1. as attributes or qualities of the
individual (NATURAL BORN, AT LEAST 25 YRS OLD)

2. fails to qualify (FAILURE)

a. taking of oath [Mandiza v. Laxina, 406
SCRA 156]
b. posting of bond
Art. 236 of the RPC: Anticipation of Duties
(PUNISHABLE UNDER THIS PROVISIONS IF YOU ASSUME OFFICE WITHOUT TAKING
AN OATH!!
Usual Qualifications:
1. citizenship, whether natural-born or naturalized, or
dual
2. Age
3. Residency (LOCAL ELECTIVE OFFICIALS)
4. Register voter
5. Literacy ABLE TO READ AND RIGHT
6. Profession
7. Civil Service Eligibility
Disqualifications: Negative Attributes USUALLY FOUND IN
THE CONSTITUIONS OR LAW (Constitutional or Statutory)
1. Candidate in the immediately preceding election
[Commissions]
2. Loser in a previous election within one year [Art. IX-B] LAME
DUCK PROVISION WHERE YOU ARE BARRD FROM BEING APPOINTED WITHIN ONE
YEAR FROM THE DATE OF PREVIOUS ELECTION WHERE YOU LOSE!!
3. Office or emolument created/increased during your term
APPLIES TO SENATORS AND CONGRESSMEN
4. Arising from relationship Presidential relatives within 4th civil
degree
5. Military personnel in active service to civilian positions [Art.
XVI]
 2010 Bar Exam, No. XVII
During his campaign sortie in Barangay Salamanca,
Mayor Galicia was arrested at a PNP checkpoint for
carrying highpowered firearms in his car. He was
charged and convicted for violation of the COMELEC
gun ban. He did not appeal his conviction and
instead applied for executive clemency. Acting on the
favorable recommendation of the Board of Pardons
and Parole, the President granted him pardon. Is he
eligible to run again for an elective position? Explain
briefly. (5%)
NO! HE INELIGIBLE BECAUSE THERE WAS NO RECOMMENDATION FROM THE
COMELEC!!!! NOTE THE OFFENSE UNDER WHICH HE WAS CONVICTED IS AN
ELECTION OFFENSE AND THE PRESIDENT CANNOT GRANT PARDON WITHOUT
COMELEC RECOMMENDATION.. WE ARE SETTLED WITH THIS ALREADY!!!
5. Disabilities and Inhibitions of Public Officers
a. Prohibition on Conflict of Interest
b. Prohibition on Nepotism
c. Prohibition on Partisan Political Activity
d. Prohibition on Additional Position
e. Prohibition on Double Compensation
f. Prohibition on Practice of Profession
g. Prohibition on Purchase of Property
a. Prohibition on Conflict of
Interest
RA No. 6713 - SEC. 9. Divestment.-A public official
or employee shall avoid conflicts of interest it all
times. When a conflict of interest arises, he shall
resign from his position, in any private business
enterprise within thirty (30) days from his
assumption of office and/or divest himself of his
shareholdings or interest within sixty (60) days
from such assumption.
assumption
The same rule shall apply where the public
official or employee is a partner in a
partnership.
 Republic Act No. 6713
(i) Conflict of interest arises when a public
official or employee is a member of a board,
an officer, or a substantial stockholder of a
private corporation or owner or has a
substantial interest in a business, and the
interest of such corporation or business, or
his rights or duties therein, may be opposed
to or affected by the faithful performance of
official duty.
Dean shared about his client, a DECS official, who used to borrow loan from a
rural bank pursuant to an agreement for automatic deduction of amortization in
her salary. NO CONFLICT INTEREST THERE the client has no substantial
interest in such bank nor he has a share there!!!
Another clear case of a CONFLICT OF INTEREST is when a Mayor is the owner
of the gasoline station with which the LGU he is administering is procuring
gasoline. HERE CONFLICT OF INTEREST IS VERY CLEAR!!!
Rabe v. Flores, 272 SCRA 419:
Court Interpreter who owned stalls in the
Panabo Public Market which she rented out.
She is not required to divest, but she must
divulged.

NO CONFLICT OF INTEREST THERE!!! OWNING MARKET STALL HAS NO RELATION

WITH HER BEING A COURT INTERPRETER, NOR CONFLICT WILL ARISE IN THE
PERFORMANCE OF HIS DUTIES BUT SHE WAS CONVICTED FOR FAILURE TO
DIVULGE THE SAME IN THE SALN!!!

IN THAT INSTANCE, SHE IS NOT REQUIRED TO DIVEST, BUT SHE MUST DIVULGE!!
OTHERWISE SALN LAW WILL BE VIOLATED!!
2. Prohibition on Nepotism VIP
PD 807, Section 49. Nepotism. (a) All appointments in the
national, provincial, city and municipal governments or in any
branch or instrumentality thereof, including government-
owned or controlled corporations, made in favor of a relative
of the appointing or recommending
authority, or of the chief of the bureau
or office, or of the persons exercising
immediate supervision over him, are
hereby prohibited.
As used in this Section, the word "relative" and members of
the family referred to are those related within the third
degree either of consanguinity or of affinity.
TAKE NOTE THAT THIS INCLUDE GOCC WITHOUT ANY
DISTINCTION AS TO W/N IT IS WITH ORIGINAL CHARTER
OR NOT
IT APPLIES TO SUBSIDIARIES!!!!
 Elements:
1. In favor of a relative of:
a) the appointing authority
b) the recommending authority
c) the chief of the bureau or office
d) persons exercising supervision over him
2. the appointee is a relative within the 3 rd civil
degree
note: that the degree of relation in Nepotism is very loose as it only covers relatives
within 3rd civil degree as distinguished to that prohibitition on the appointment of
Presidents relatives under the constitution and that of the LCE under LGC which
are limited up to 4th civil degree which is MORE RESTRICTIVE!!! Take note!!!
WHEN THE MAYOR APPOINTS, THE PROVISIONS OF THE LOCAL GOVERNMENT CODE
SHALL APPLY!! IF THE PRESIDENT APPOINTS, THE PROVISION OF THE
CONSTITUTION SHALL APPLY!
Exceptions:
(1) persons employed in a confidential
capacity, BROTHER OF THE MAYOR MAY BE APPOINTED AS HIS ADMINSTRATOR!
(2) teachers,
(3) physicians, and
(4) members of the Armed Forces of the
Philippines

TAKE NOTE PNP IS NOT INCLUDED!!!

Debulgado v. CSC, 237 SCRA 187
Petitioner, a Mayor, appointed his wife as
General Services Officer of the City of San
Carlos. It was more of a promotional
appointment as she had been in the service
for 32 years.
Held: IT IS COVERED BY THE
PROHIBITION!! It applies to all
appointments, without any distinction.
Applies
1. to original appointments and
designations and all subsequent personnel
actions such as promotion, transfer and
reinstatement (INCLUDES ACTING CAPACITY)!
2. even if marriage occurred long after one
was already in government SERVICE..
(NOTE THE PREVIOUS SLIDE, THE WIFE WAS ALREADY IN THE GOVERNMENT SERVICE
BEFORE HE MARRIED HER)

3. without regard to actual merits of the

appointee (MEANS THAT EVEN IF YOUR WIFE IS THE MOST QUALIFIED FOR
THE POSITION OR PROMOTION, IT IS STILL COVERED BY THE PROHIBITION!!)
CSC v. Dacoycoy, 306 SCRA 425 (1999)
Respondent was the Vocational School
Administrator of Balicuatro College of Arts and
Trade. The appointing authority, who is under
respondent, appointed his 2 sons as driver
and utility worker assigned with respondent.
Considering that respondent himself did not
appoint or recommend his sons, is he liable
for nepotism?
YES! AS HE FALLS UNDER THE CATEGORY d) persons exercising

supervision over him.. NOTE THAT THOUGH THE

RESPONDENT IS NOT THE APPOINTING AUTHORITY, THE PERSONS TO BE
APPOINTED OR HIS 2 SONS WILL BE UNDER THE RESPONDENTS SUPERVISION!!!
PRESIDENTIAL DECREE No. 198 May 25, 1973 [Water Districts]
Section 9. Appointment. - Board members shall be appointed by the appointing
authority. Said appointments shall be made from a list of nominees, if any,
submitted pursuant to Section 10. If no nominations are submitted, the
appointing authority shall appoint any qualified person of the category to the
vacant position.

Sec. 3 (b) Appointing authority. The person empowered to appoint (INCLUDING

THE CHAIRMAN OF THE BOARD) the members of the board of Directors
of a local water district, depending upon the geographic coverage and
population make-up of the particular district. In the event that more than
seventy-five percent of the total active water service connections of a
local water district are within the boundary of any city or municipality,
the appointing authority shall be the mayor of that city or municipality,
as the case may be;

TAKE NOTE THAT THE PRESENT CHAIRMAN OF THE BOARD OF A CITY

WATER DISTRICT IS THE WIFE OF THE LCE APPLYING THE ABOVE
PROVISION, IT IS THE CITY MAYOR WHO IS THE APPOINTING
AUTHORITY HENCE, THERE IS REALLY VIOLATION OF NEPOTISM
THERE!!!
Bar Question, 2011:
44. The School Principal of Ramon Magsaysay High
School designated Maria, her daughter, as public school
teacher in her school.
school The designation was assailed on
ground of nepotism. Is such designation valid?
A. No, because the law prohibits relatives from working within
the same government unit.
B. Yes, because Marias position does
not fall within the prohibition. TEACHERS ARE
ONE OF THE EXCEPTIONS THIS MUST BE DISTINGUISHED IN DACOYCOY CASE AS
ONE OF THE EXCEPTIONS THIS MUST BE DISTINGUISHED IN DACOYCOY CASE AS
THE PERSONS APPOINTED THERE ARE NOT FOR TEACHER POSITION BUT THAT OF
A UTILITY AND DRIVER HAHAHAHAHA
C. No, because her mother is not the designating authority.
D. No, because Maria is related to the supervising authority
within the prohibited degree of consanguinity.
Bar Question, 2010, XV - True or False.

c. The rule on nepotism does not apply to

designations made in favor of a relative of
the authority making a designation. FALSE IT
APPLIES TO DESIGNATIONS!!!! TAKE NOTE!!! IT APPLIES EVEN TO
APPOINTMENTS IN TEMPORARY CAPACITY!!
Bar Question, 2008, XII -
The Mayor of San Jose City appointed his wife,
Amelia, as City Treasurer from among tree (3)
employees of the city considered for the said
position. Prior to said promotion, Amelia had
been an Assistant City Treasurer for ten (10)
years, that is, even before she married the City
Mayor. Should the Civil Service Commission
approve the promotional appointment of
Amelia? Why or why not?
IT SHOULD BE DENIED.. IT SHOULD BE NOTED THAT THE APPOINTING AUTHORITY
FOR THE POSITION OF CITY TREASURER BELONGS TO THE SECRETARY OF
FINANCE THE MAYOR OR THE LCE IS ONLY A RECOMENDATORY OFFICER (THE
ONE WHO NOMINATES) TO SUCH APPOINTMENT..
GRANTING ARGUENDO THAT THE MAYOR IS AUTHORIZED TO APPOINT FOR SUCH
POSITION, IT IS PROHIBITED BY LAW UNDER THE DOCTRINE OF NEPOTISM!!
c. Prohibition on Partisan Political Activity

PD 807:
Section 45. Political Activity. No officer or employee
in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in
any partisan political activity or take part in any
election except to vote nor shall he use his
official authority or influence to coerce the
political activity of any other person or body.
 Partisan Political Activities include
those intended:
1. To obtain support for a candidate
2. To undermine support for a
candidate
(IT IS REALLY CAMPAIGNING POSITIVELY OR NEGATIVELY LIKE,
TELLING PEOPLE TO VOTE THIS GUY FOR HIS HONESTY OR DO
NOT VOTE FOR THAT GUY BECAUSE HE IS IDIOT!! )

It does not include:

1. Voting for a particular candidate
2. Expressing his views on current political
problems or issues,
3. Mentioning the names of candidates for
public office whom he supports (NO PROBLEM WHEN WHEN
WE SAY THAT WE WILL VOTE ERAP THIS COMING ELECTION!!)
Exempted from the Prohibition:
1. All elective officials [Sec. 92, LGC] BECAUSE THEY
ARE REALLY PARTISAN POLITICAL ANIMALS!

2. Public officers and employees holding

political offices may take part in political
and electoral activities [holding non-career
positions: Cabinet members, co-terminus
positions] THESE CABINET MEMBERS ARE EXPECTED TO PARTICIPATE IN
POLITICAL AND ELECTORAL ACTIVITIES TO HELP THE APPOINTING AUTHORITY WIN
THE ELECTIONS!!!
d. Prohibition on Additional Position
Art. IX, B- 1987 Constitution:
Section 7. No elective official shall be eligible for
appointment or designation in any capacity to
any public office or position during his tenure.
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 Government-
owned or controlled corporations or their
subsidiaries.
subsidiaries
FOR ELECTIVE OFFICIAL, THEY ARE ABSOLUTELY PROHIBITED FROM HOLDING
ADDITIONAL POSITION IN THE GOVERNMENT!!!
Summary:
1. Elective official absolutely prohibited
TO HOLD OTHER POSITIONS!!

2. Appointive only if allowed by law and

the primary functions of his office.
Bar Question, 1995
No. 10. A City Mayor in Metro Manila was designated as
Member of the Local Amnesty Board as allowed under the
Implementing Rules of Amnesty Proclamation 34. 34 The
LAB is entrusted with the function of receiving and processing
applications for amnesty and recommending to the National
Amnesty Commission approval or denial of the applications.
The term of the Commission and the Local Amnesty Boards
under it expires upon the completion of its assigned tasks as
may be determined by the President.
May the City Mayor accept his designation without forfeiting
his elective position in the light of the provision of Sec. 7, Art.
IX-B of the 1987 Constitution?

THE CITY MAYOR IS ABSOLUTELY PROHIBITED FROM

HOLDING SUCH ADDITIONAL FUNCTIONS.. IN FACT, IT IS
ONLY AN IRR THAT AUTHORIZES THE DESIGNATION OF
THE CITY MAYOR TO THE LAB!! IT IS NOT EVEN
ALLOWED BY THE LAW ITSELF!! EVEN GRANTING
ARGUENDO THAT ITS IS ALLOWED BY LAW, IT DOES
NOT APPLY ELECTIVE OFFICIAL!!! IT APPLIES ONLY TO
APPOINTIVE OFFICIALS!!
e. Prohibition on Double Compensation
Art. IX, B
Section 8. No elective or appointive public
officer or employee shall receive additional, double,
or indirect compensation, unless specifically
authorized by law,law [nor accept without the consent
of the Congress, any present, emolument, office, or
title of any kind from any foreign government.]
Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.

unless specifically authorized by law,-

law IS OBSERVED
TO BE CONFUSING IN SO FAR AS ELECTIVE PUBLIC OFFICER IS
CONCERNED BECAUSE IN THE FIRST PLACE, THEY ARE TOTALLY
PROHIBITED FROM HOLDING ANY OTHER OFFICE!!! NOTE THAT DOUBLE
COMPENSATION CAN BE HAD ONLY IF YOU ARE HOLDING TWO
DIFFERENT POSITION ALLOWED BY LAW!!!!!
 The prohibition on double
compensation applies to public
office, not private.

What about compensation from private

sources?
 RA No. 6713- Section 7. Prohibited Acts
and Transactions. - In addition to acts and omissions
of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
( (b) Outside employment and other activities related
thereto. - Public officials and employees during their
incumbency shall not:
(1) Own, control, manage or accept employment as
officer, employee, consultant, counsel, broker, agent,
trustee or nominee in any private enterprise regulated,
supervised or licensed by their office unless expressly
allowed by law;
OTHERWISE STATED, THERE IS NO PROHIBITION FROM GETTING
COMPENSATION FROM PRIVATE SOURCES OR EMPLOYMENT UNLESS THE
SUCH OFFICE OR PRIVATE ENTERPRISE IS REGULATED OR SUPERVISED
OR LICENSED BY YOUR OFFICE!!!
FOR EXAMPLE, I CANNOT HAVE AN INTEREST IN A COCKPIT ISSUED WITH
LICENSE BY LGU CARMEN!!!
Some considerations:
1. Teaching- you just secure the consent of the head of office..
There is no problem in private employment!

2. Notarization- omb prosecutors, clerk of court are not

allowed but there are some lawyers working in the government are
authorized to notarize like lawyers of Philhealth and Comelec by securing
permit from appropriate agency!!
 f. Prohibition on Practice of Profession
(with respect to double compensation in reference to private employment ): [RA No.
6713]
Section 7. Prohibited Acts and Transactions. - In addition to
acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be unlawful:
( (b) Outside employment and other activities related
thereto. - Public officials and employees during their
incumbency shall not:
(2) Engage in the private practice of their profession
unless authorized by the Constitution or
law, provided, that such practice will not conflict or tend
to conflict with their official functions;
Congressmen and Senators are authorized by the constitution to practice law provided they do not
appear before a court
provided, that such practice will not conflict or tend to conflict with their official functions does
not refer to conflict of interest it is more broader.. For instance, you practice law at day time!! It
will conflict you time which should have been devoted to public office..
A clerk of court cannot make pleadings or legal advises without without a law authorizing the
same.. Best way to practice law for a COC is to seek permission from COURT ADMINSTRATOR
 LGC, Section 90. Practice of Profession (IN THE LOCAL
GOVERNMENT UNIT). -

(a) All governors, city and municipal mayors are

prohibited from practicing their profession or
engaging in any occupation other than the
exercise of their functions as local chief
executives.
executives
(b) Sanggunian members (including Vice Mayor since he is a member
of the SB SP) may practice their professions, engage in

any occupation, or teach in schools except

during session hours: Provided, That
sanggunian members who are also members of
the Bar shall not:
 (1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is
accused of an offense committed in relation to his office.
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he
is an official; and xxx

(c) Doctors of medicine may practice their profession even

during official hours of work only on occasions of
emergency: Provided, That the officials concerned do not
derive monetary compensation therefrom.
 g. Prohibition on Purchase of Property
1. Art. 1492, Civil Code - Art. 1491. The following persons
cannot acquire by purchase, even at a public or judicial
auction, either in person or through the mediation of another:
another
(4) Public officers and employees, the property of the State or
of any subdivision thereof, or of any government-owned
or controlled corporation, or institution, the
administration of which has been intrusted to them; this
provision shall apply to judges and government experts who,
in any manner whatsoever, take part in the sale;
 (5) Justices, judges, prosecuting attorneys, clerks
of superior and inferior courts,and other officers
and employees connected with the administration
justice the property and rights in litigation
of justice,
or levied upon an execution before the court within
whose jurisdiction or territory they exercise their
respective functions;
functions this prohibition includes the act
of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be
the object of any litigation in which they may take part
by virtue of their profession.
6. Powers and Duties of Public Officers
In a democratic and republican government,
soverignty or power resides in the people. But we
delegated its exercise to our elected representatives
and some appointed officials.
Sources of power:
1. Constitution
2. Statutes
Classification of Power:
1. Ministerial .
One which a person performs on a given
statement of facts, and in a prescribed
manner, in obedience to the mandate of
law, without regard to, or the exercise of,
his own judgment, upon the propriety or
impropriety of the act done.
2. Discretionary
One that requires the exercise of reason in the
adoption of the means to an end, and discretion
in determining how and when the act may be
done or the course pursued. Discretion in the
manner of the performance of an act arises when
the act may be performed in one or two or more
ways, either of which would be lawful, and where
it is left to the will or judgment of the performer
to determine in which way it will be performed.
performed
[policy making or judgment]
Important in:
1. distinction between officer and an
employee ::: OFFICER exercises discretion while EMPLOYEE
only exercises ministerial duties

2. applying presumption of regularity in the

performance of official functions::: the
PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICAL
FUNCTIONS APPLIES ONLY TO MINISTERIAL DUTIES AND
NOT TO DISCRETIONARY ONE
3. susceptibility to delegation- MINISTERIAL DUTIES CAN
BE DELEGATED BUT NOT DISCRETIONARY DUTIES!!
Examples:
1. Clerk of Court/Judge (CLERK OF COURT HAS NO DISCRETION
W/N TO ACCEPT PLEADINGS!!! HIS POWER IS ONLY MINISTERIAL!! IF THERE IS
DEFECT TO THE PLEADINGS, IT IS ADDRESSED TO THE SOUND DISCRETION OF THE
JUDGE!!.. COC CANNOT REFUSE TO RECEIVE PLEADING ON THE GROUND OF
DEFECT)

2. Power of the President to appoint a Chief

Justice.. IT MUST BE DISTINGUISHED .. IT IS MINISTERIAL IN THE
SENSE THAT HE HAS TO APPOINT UPON SUBMISSION OF THE JBC
RECOMMENDATION.. IT IS DISCRETIONARY IN THE SENSE THAT HE
EXERCISE DISCRETION AS TO WHO SHOULD BE APPOINTED!!
3. 1989 Bar Question, [summarized] No. 17.
Can the City Mayor of Manila delegate his
power to issue subpoena (HERE THE CITY OF MANILA IS
AUTHORIZED BY ITS CHARTER TO ISSUE SUBPEONA!!)in the course of

investigation to a Committee? See Carmelo v.

Ramos, 6 SCRA 836- THE SAME CANNOT BE DELEGATED AS SUCH
POWER IS DISCRETIONARY IN NATURE!! HOWEVER IN COURT, THE POWER TO ISSUE
SUBPEONA BY THE CLERK OF COURT IS MINISTERIAL ONCE IT IS ASKED, HE MUST ISSUE
THE SAME!!!
Bar Question, 2011
54. When the Civil Service Commission (CSC)
approves the appointment of the Executive
Director of the Land Transportation Franchising
and Regulatory Board who possesses all the
prescribed qualifications,
qualifications the CSC performs
A. a discretionary duty.
B. a mix discretionary and ministerial duty.
C. a ministerial duty. NOTE THAT ONCE AN APPOINTED
EMPLOYEE MEETS THE MINIMUM QUALIFICATION FOR THE POSITION APPLIED , THE CSC HAS
TO APPROVE THE SAME. IT IS MINISTERIAL AS WE WILL LEARN LATER ON CSC PROVISIONS

D. a rule-making duty.
 Bar Question, 2010, No. 15
True or False.
C. A discretionary duty of a public officer
is never delegable. (0.5%) TRUE! FOR INSTANCE
THE JUDGE CANNOT DELEGATE HIS POWER TO ISSUE WARRANTS OR TO
RENDER DECISIONS
Duties of Public Officers: RA No.
6713
1. Disclosure of assets/liabilities and
net worth
2. Act promptly on letters and requests
[15 days] OTHERWISE HE WILL BE LIABLE ADMINISTRATIVELY
AND CRIMINALLY!!

3. Make documents accessible to the

public THIS HAS REFERENCE TO THE RIGHT TO INFORMATION
ON MATTERS OF PUBLIC CONCERN
7. Rights of Public Officers
a. To form organization
b. To compensation
c. To vacation, sick and maternity leave
d. To retirement benefits
a. Right to organize
-guaranteed by Sec. 8 of the Bill of Rights,
including those in the public and private
sectors.
-but no labor-management committees for
AFP, PNP, Jail Guards and Firemen-
Bar Question, 2000

No. 12: Are employees in the public

sector allowed to form unions? To strike?
Why? THE RIGHT TO FORM UNION IS GUARANTEED BY THE
CONSTITIUTION!!! BUT NOT YET TO STRIKE AS PROVIDED FOR BY
LAW
b. To compensation
-the right to compensation springs
from law,
law not from contract, unlike in
private employment.
employment [no strike to
improve terms and conditions of
employment] THERE IS NO RIGHT TO STRIKE BECAUSE THE
TERMS AND CONDTIONS OF EMPLOYMENT OF PUBLIC OFFICERS
ARE FIXED BY LAW!!!

-Requisites for right:

1. legal title
2. law fixing compensation
Protections ON SALARY!!:
1. cannot be garnished or attached or
executed to satisfy a judgment BECAUSE
- in the hands of the disbursing officer, it is still
government funds
-forbidden by public policy because it is fatal to
public service.. OFFICIALS AND EMPLOYEES MAY NO LONGER BE WILLING
TO WORK!!

-garnishment or attachment is tantamount to a suit

against the state
2. Assignment of anticipatory salary is
void.
c. To vacation, sick and maternity
leave,disability and funeral benefits
1. LGC, Sec. 81- Elective officials are entitled
to the same leave privileges as appointive
local officials
2. Administrative Code, Bk. IV, Ch. 5, Sec. 27-
leave without pay not beyond one year
LEAVE WITH OR WITHOUT PAY CANNOT GO BEYOND 1 YEAR.. OTHERWISE,
YOU CAN BE DROPPED WITHOUT NOTICE AND HEARING!!! THAT IS
CONSIDERED ABANDONMENT!!
d. To retirement benefits
To be entitled to pension:
1. at least 60 years, and
2. at least 15 years in government
service
Rabor v. CSC, 244 SCRA 625 (1995)
-Rabor was a utility worker in the Office of the City Mayor of
.
Davao. He entered government service when he was 55
years old. Upon reaching 68 years old and 7 months, he
was advised to retire. He showed a GSIS Certificate of
Membership with a notation service extended to comply
with 15 years service requirements.
requirements. After reaching 65,
how long can one extend?
CSC-MC- No. 27, Series of 1990 /MC No. 37, S, 1992]
See also Toledo v. COMELEC, 319 SCRA 100 (1999) [Cena
Docrtine]

CSC CIRCULAR PROVIDES THAT IN NO CASE

SERVICE EXTENSION EXTEND IN ONE YEAR!!!
HENCE, ONLY 1 YEAR IS ALLOWED TO BE EXTENDED
TO COMPLETE 15 YEAR SERVICE
8. Liabilities of Public Officers
a. Preventive Suspension and Back
Salaries
b. Illegal Dismissal, Reinstatement and
Back Salaries
Liabilities:
3-Fold Liability Rule It is possible for a
public official to be liable criminally, civilly and
administratively for his acts or inaction. DOUBLE JEOPARDY
DOES NOT APPLY HENCE, IN A SINGLE ACT, YOU CAN BE HELD LIABLE FOR THE ANTI GRAFT
LAW, CIVIL SERVICE LAW AND CIVIL DAMAGES

General principle : Public Officials are not liable for

official acts done in good faith.
faith [Ynot v. IAC
enforcement of an unconstitutional law]]
YNOT- A DECREE OF MARCOS PROHIBITING THE TRANSFER OF CARABAOS WHICH WAS LATER
DECLARED UNCONSTITUTIONAL!!.. YNOT WAS ENFORCING THE LAW CONFISCATING MEATS..
CAN HE BE HELD LIABLE FOR ENFORCING A LAW DECLARED UNCONSTITUTIONAL? NO!!
BECAUSE PRIOR TO ITS DECLARATION OF UNCONSTITUTIONALITY, THE PRESUMPTION IS THAT
IT IS VALID!! HENCE, HE CANNOT BE HELD LIABLE!!

Conversely, they are liable for acts done in bad faith,

or in excess of their function, if it results to injury
to third persons
 a. Preventive Suspension and Back
Salaries
Who can impose?
1. Civil Service Commission 90 DAYS
2. Ombudsman NOT EXCEEDING 6 MONTHS
3. Any Disciplining Authority 90 DAYS!!
NOTE THAT THE DISCIPLINING AUTHORITY WITH RESPECT TO
ERRING LOCAL ELECTIVE OFFICIALS IS ONLY 60 DAYS!!
1. Civil Service Law [PD NO. 807]
Section 41. Preventive Suspension. The proper
disciplining authority may preventively suspend any
subordinate officer or employee under his authority
pending an investigation, in the charge against
such officer or employee involves dishonesty,
oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to
believe that the respondent is guilty of charges
which would warrant his removal from the service.
EVEN BEFORE FILING OF ANSER
NOTE THAT THERE IS NO REQUIREMENT THAT THE ISSUES BE JOINED BEFORE
THE LOCAL APPOINTIVE OFFICIAL CAN BE PREVENTIVELY SUSPENDED AS
DISTINGUISHED FROM LOCAL ELECTIVE OFFICIAL!!
PREVENTIVE SUSPENSION MAY BE IMPOSED EVEN BEFORE THE FILING OF THE
ANSWER BY THE RESPONDENT!!
 Section 42. Lifting of Preventive Suspension Pending
Administrative Investigation. When the administrative case
against the officer of employee under preventive
suspension is not finally decided by the disciplining
authority within the period of ninety (90) days after the
date of suspension of the respondent who is not a
presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That
when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period
of delay shall not be counted in computing the period of
suspension herein provided.
90 DAYS UNLESS DELAY IS DUE TO
FAULT OF RESPONDENT
2. Ombudsman Act [RA No. 6770]
Section 24. Preventives Suspension. The Ombudsman or his Deputy
may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is strong,
and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against
him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more
than six (6) months, without pay, except when the delay in
the disposition of the case by the Office of the Ombudsman is due to the
fault, negligence or petition of the respondent, in which case the period of
such delay shall not be counted in computing the period of suspension
herein provided.
[MAXUMUM OF 6 MONTHS]
TAKE NOTE THAT EVEN LOCAL ELECTIVE OFFICIALS CAN BE PREVENTIVELY SUPENDED BY THE OMB FOR A
PERIOD NOT EXCEEDING 6 MONTHS
NOTE ALSO HERE THAT THE OMB CAN IMPOSE PREVENTIVE SUSPENSION WITHOUT HAVING THE ISSUES
JOINED.. OTHERWISE STATED, IT CAN BE IMPOSED WITHOUT WAITING THE ANSWER OF THE RESPONDENT!!
NOTE THAT THE REQUIREMENT THAT THE ISSUES MUST BE JOINED BEFORE PREVENTIVE SUSPENSION MAY
BE IMPOSED APPLIES ONLY TO LOCAL ELECTIVE OFFICIALS WHICH MUST NOT BE MORE THAN 60 DAYS
WHERE THE DISCIPLINING AUTORITY IS THE SANGGUNIAN OR THE LCE
Garcia v. Mojica, 314 SCRA 207 (1999)- OMB can
preventively suspend even before the filing
of an answer. It is merely a preliminary step
in an administrative investigation and not
the final determination of the guilt of the
official
Note: The requirement that respondent has
filed his answer seems to apply only to
elective officials, where the disciplining
authority is either the Sanggunian or the
Office of the President.
As to them, preventive suspension is
only 60 days
Back Salaries: Entitled
1. RA No. 3019 [which applies to
preventive suspension in criminal cases] has
a provision that the employees or officer
is entitled to his salaries in the event
of acquittal.
REMEMBER THAT COURT IS ARE MANDATED TO IMPOSE
PREVENTIVE SUSPENSION FOR OFFICIALS FACING CRIMINAL
CASES FOR VIOLATION OF ANTI-GRAFT LAW.
2. Local Government Code (PREVENTIVE SUSPENSION
UNDER LGC)-

Section 64. Salary of Respondent Pending

Suspension. - The respondent official
preventively suspended from office shall
receive no salary or compensation during
such suspension; but upon subsequent
exoneration and reinstatement, he shall be
paid full salary or compensation including
such emoluments accruing during such
suspension.
suspension
HENCE, ENTITLED TO BACK WAGES UNDER
LGC!!
Not Entitled: OMB PREVENTIVE
SUSPENSION
1. For preventive suspension by
OMB [6 months], the law is clear
that it is without pay.

Obiter: Gloria v. CA, 306 SCRA 287 (1999)

NO BACKWAGES EVEN IF YOU ARE ACQUITTED!! PLEASE TAKE
NOTE OF THIS!!!
THE PRINCIPLE SEEMS TO BE NO WORK NO PAY!!!
 2. For
preventive suspension
under the Civil Service Law, the
rule is that a public officer or employee is
not entitled to compensation, regardless of
the outcome of the case. This is based on
the principle that one is entitled to
compensation only for services actually
rendered. [Civil Service Law is silent]
AS A SUMMARY.. YOU ARE NOT ENTITLED TO BACKWAGES DURING PREVENTIVE
SUSPENSION IN THE FOLLOWING:
1. OMB
2. CSC
THIS IS BECAUSE THE CSC LAW IS SILENT AS TO W/N YOU ARE
ENTITLED TO BACK WAGES IN THE EVENT OF ACQUITTAL!!!
Exception TO CSC RULE ON
BACKWAGES:
Bangalisan v. CA, 276 SCRA 631-
if he is found innocent of the charges
which caused his suspension and if his
suspension is unjustified.
EXAMPLE FOR THIS SITUATION IS WHEN YOU ARE PREVENTIVELY
SUSPENDED FOR A MINOR OFFENSE OR FOR A GROUND NOT AMONG
THOSE STATED BY CSC LAW!!
TAKE NOTE OF THIS!!!
IN SUMMARY WITH RESPECT TO PREVENTIVE SUSPENSION UNDER CSC..,
YOU ARE NOT GENERALLY NOT ENTITLED TO BACKWAGES.. EXCEPTION!!
WHEN YOU ARE ACQUITTED AND THERE IS A PRONOUNCEMENT THAT
YOUR SUSPENSION IS UNJUSTIFIED OR THE SAME WAS WITHOUT BASIS!!
 b. Illegal Dismissal,
Reinstatement and Back Salaries

What happens if you were found guilty, the

decision is executory, but you appealed and
the decision was reversed?
SUSPENSION PENDING APPEAL
NOTE THAT THERE ARE TWO KINDS OF PREVENTIVE SUSPENSION
1. ONE BEFORE CONVICTION OR PENDING INVESTIGATION! 90 DAYS OR 6
MONTHS
2. ONE THAT WHICH IS AFTER THE CONVICTION OR SUSPENSION PENDING APPEAL
(THIS CAN LAST FOR YEARS)
THIS HAS NOT RELATION TO PREVENTIVE SUSPENSION.. THIS IS MORE ON THE SITUATION
WHERE I AM FOUND GUILTY AND NECESSARILY SUCH DECISION IS IMMEDIATELY
EXECUTORY.. PENDING OF MY APPEAL TO SUCH DECISION AND AFTER SO MANY YEARS
LATTER IS REVERSED.. AM I ENTITLED BACKWAGES DURING THE SUSPENSION PENDING
APPEAL?
Gloria v. CA, 306 SCRA 287 (1999)
There are two kinds of preventive
suspension of civil service employees:
1. Preventive suspension pending
investigation (Sec. 51)
2. Preventive suspension pending
appeal
 An employee is entitled to payment of salaries for
the period of suspension pending appeal if he is
found innocent. The reason for the difference is
that preventive suspension (pending
INVESTIGATION) is not a penalty but only a means
to enable the disciplining authority to conduct an
investigation. However, preventive
suspension pending appeal is actually
punitive although it is in effect considered illegal if
respondent is exonerated and the decision finding
him guilty is reversed. On the other hand, of his
conviction is affirmed, the period of his suspension
becomes part of the penalty.
OTHERWISE STATED, IF YOU ARE SUSPENDED PENDING APPEAL AND IN THE END
YOU ARE ACQUITTED , YOU ARE ENTITLED TO SALARIES DURING SUCH
SUSPENSION PENDING APPEAL BECAUSE YOU ARE REALLY INNOCENT!!
Marombhombsar v. CA, 326 SCRA 62
(2000)
Such back wages, however,
had been limited by earlier
decisions to a maximum period
of five (5) years.- REFERS TO SUSPENSION
PENDING APPEAL!!
Bar Question, 2011
5. Mario, a Bureau of Customs examiner, was
administratively charged with grave misconduct and
preventively suspended pending investigation (FIRST
TYPE OF PREVENTIVE SUSPENSION!!). The head
of office found him guilty as charged and ordered his
dismissal. The decision against him was executed
pending appeal. The Civil Service Commission (CSC)
subsequently found him guilty and after considering a
number of mitigating circumstances, reduced his
penalty to only one month suspension. Is Mario entitled
to back salaries?
 A. Yes, the reduction of the penalty means
restoration of his right to back salaries.
B. No, the penalty of one month suspension carries
with it the forfeiture of back salaries.
C. No, he is still guilty of grave
misconduct, only the penalty was
reduced. NOTE THAT HE WAS NOT ACQUITTED.. HE WAS STILL FOUND GUILTY
ONLY THAT THE PENALTY WAS REDUCED.. SAME PRINCIPLE ALSO APPLIES WHEN CONVICTED
BUT UPON APPEAL, HE IS ONLY REPRIMANDED..

D. Yes, corresponding to the period of his

suspension pending appeal less one
month.
Bar Question, 2011/Also asked in 2001, No. 15
33. X, an administrative officer in the Department of
Justice, was charged with grave misconduct and
preventively suspended for 90 days pending
investigation. Based on the evidence, the Secretary
of Justice found X guilty as charged and
dismissed him from the service. Pending appeal,
X's dismissal was executed. Subsequently, the Civil
Service Commission (CSC) reversed the
Secretarys decision and the reversal became
final and executory. What is the effect of X's
exoneration?
 A. X is entitled to reinstatement and back
salaries both during his 90 day preventive
suspension and his suspension pending appeal.
B. X is entitled to reinstatement and back
salaries corresponding only to the period of
delay caused by those prosecuting the case
against him.
C. X is entitled to reinstatement but not to back
salaries on ground of damnum absque injuria.
D. X is entitled to reinstatement
and back salaries during his
suspension pending appeal.
Bar Question, 2009
X. Maximino, an employee of the Department of
Education, is administratively charged with
dishonesty and gross misconduct. During the formal
investigation of the charges, the Secretary of
Education preventively suspended him for a period
of sixty (60) days. On the 60th day of the preventive
suspension, the Secretary rendered a verdict, finding
Maximino guilty, and ordered his immediate
dismissal from the service.
 Maximino appealed to the Civil Service Commission (CSC),
which affirmed the Secretary's decision. Maximino then
elevated the matter to the Court of Appeals (CA). The CA
reversed the CSC decision, exonerating Maximino. Maximino The
Secretary of Education then petitions the Supreme Court (SC)
for the review of the CA decision.
[a] Is the Secretary of Education a proper party to seek the
review of the CA decision exonerating Maximino? Reasons.
(2%) PREVAILING JURISPRUDENCE HAS IT THAT ANY PARTY TO THE PROCEEDINGS CAN
APPEAL INCLUDING THE GOVERNMENT!! HENCE SECRETARY OF EDUCATION IS A PROPER
PARTY!!
[b] If the SC affirms the CA decision, is Maximino entitled to
recover back salaries corresponding to the entire period he
was out of the service? Explain your answer. (3%)
HE IS ENTITLED ONLY THAT PORTION CORRESPONDING THE DURATION OF
THE SUSPENSION PENDING APPEAL BUT IT MUST NOT EXCEED TO THE
PERIOD OF 5 YEARS!!