Law of Public Officers

Question 1

Define Public Office

Answer 1

The right, authority or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public .

Question 2

Creation

Answer 2

Public offices are created: a) By the Constitution, e.g., Office of the President; b) By valid statutory enactments, e.g., Office of the Insurance Commissioner; and c) By authority of law, e.g., the Davide Commission.

Question 3

Legal Definition of Public Officer

Answer 3

A person who holds a public office. a) In Art. 203, Revised Penal Code, any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. b) Under Sec. 2, R.A. 3019, the term “public officer” includes “elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving compensation, even nominal, from the government”. i) i) The terms “classified, unclassified or exempt service” were the old categories of the positions in the Civil Service, which have been reclassified into Career and Non-Career service by P.D. 807.

Question 4

Distinguished from clerk or employee

Answer 4

“Officer” refers to a person whose duties, not being of a clerical or manual nature, involve the exercise of discretion in the performance of the functions of government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function [Sec. 2 (14), Administrative Code of 1987].

Question 5

The following are disqualified to hold any other office under constitution:

Answer 5

The following are disqualified to hold any other office under constitution:

1. losing candidates(within 1 year after election), elective and appointive official (except in ex officio capacity)
2. Executive
   * The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations [Sec. 13, Art. VII],
3. Congress
4. Supreme Court (disqualified to be designated to any agency performing quasi-judicial or administrative functions)
5. ConCom and Ombudsman (must not be candidates in an election immediately preceding their appointment and appointed to a term of seven (7) years, without reappointment

Question 6

DE FACTO OFFICERS

Answer 6

One who assumed office under color of title, but is void because of ineligibility, lack of power of the appointing authority or some irregularity in the appointing process, all of which are unknown to the public.

Question 7

Legal Effect of Acts of DE FACTO OFFICERS

Answer 7

The acts of the de facto public officer, insofar as they affect the public, are valid, binding and with full legal effect.

Question 8

Elements of Defacto Officer

Answer 8

1. A validly existing public office (dejure office).
2. Actual physical possession
3. Color of title
4. General Aquiescence

Question 9

Regular and Ad-interim

Answer 9

A regular appointment is one made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments, and continues until the end of the term.

An adinterim appointment is one made while Congress is not in session, before confirmation by the Commission on Appointments, is immediately effective, and ceases to be valid if disapproved or bypassed by the Commission on Appointments upon the next adjournment of Congress.

Question 10

Elements of De facto Officers

Answer 10

1. A validly existing public office. See Tuamda v. Sandiganbayan, G.R. No. 110544, October 16, 1995. 2. Actual physical possession of said office. 3. Color of title to the office. There is color of title to the office in any of the following cases: a) Bv reputation or acquiescence, the public, without inquiry, relies on the supposition that he is the public officer that he purports to be. This is acquired usually when the individual has acted as an officer for such a length of time that the public believes that he is the public officer that he assumes to be. b) Under a known and valid appointment or election, but the officer failed to conform to a requirement imposed bv law, e.g., taking the oath of office. c) Under a known appointment or election, void because of the ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public. d) Under a known appointment or election pursuant to an unconstitutional law, before the law is declared unconstitutional.

Question 11

Entitlement to Salaries.

Answer 11

The general rule is that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure

.However, where there is no de jure public officer, the officer de facto , is legally entitled to the emoluments of the office

Question 12

Classes of Service.

Answer 12

a) Careeer Service. Characterized by entrance based on merit and fitness to be determined, as far as practicable by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions, and security of tenure.

Non-career service. Characterized by entrance on bases other than those of the usual tests utilized for the career service, tenure limited to a period specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose the employment was made.

Question 13

proximity rule

Answer 13

Under the proximity rule, a person is considered a confidential employee if the predominant reason why he was chosen is the belief that he can share a close intimate relationship with appointing authority which ensures freedom of discussion…

Question 14

Next-in-rank rule

Answer 14

The person next in rank shall be given preference in promotion when the position immediately above his is vacated.

However, it does not necessarily follow that he alone and no one else can be appointed.

Question 15

Transfer

Answer 15

Transfer is a movement from one position to another which is of equivalent rank and salary without break in service and may be imposed as an administrative penalty.

Question 16

Detail

Answer 16

Detail is the movement of an employee from one agency to another without appointment, and for a limited period in the case of employees occupying professional, technical and scientific positions.

Question 17

Define Reassignment.

Answer 17

An employee may be reassigned from one organizational unit to another in the same agency,which is of equivalent rank and salary for a limited period.

Question 18

Reemployment.

Answer 18

Persons with permanent positions who have been separated as a result of reduction in force and/or reorganization, shall be eligible for reemployment.

They shall be entitled to separation pay, and to retirement and other benefits. In lieu of separation pay, at the option of the employees, they may be considered for employment in the government, or in any of its subdivisions.

Question 19

Constitutional Prohibitions of Public Officers

Answer 19

1. Partisan political activity (except elective officers).
2. Additional or double compensation (except pensions)
3. Loans (the President, the Vice President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions, and the Ombudsman)
4. Limitation on Laborers. Shall not be assigned to perform clerical duties.
5. Detail or reassignment. No detail or reassignment shall be made within three months before any election without the approval of the Comelec.
6. Nepotism. All appointments made in favor of a relative of the appointing or recommending authoirty (4rd degree), are prohibited.

The exceptions are the following: confidential employees; teachers; physicians; and AFP

Question 20

Enumerate Statutory provision which make a Public Officer liable

Answer 20

1. Art. 27, Civil Code: neglect of duty
2. Art. 32, Civil Code: violation of constitutional rights
3. Art. 34, Civil Code: failure to respond
4. Administrative Code: neglect of duty
5. LGC: LGU liable to death or injury to persons or damage to property

Question 21

Liability of Ministerial Officers.

Answer 21

1. Nonfeasance: Neglect or refusal to perform an act which is the officer’s legal obligation to perform. 2. Misfeasance: Failure to use that degree of care, skill and diligence required in the performance of official duty. 3. Malfeasance: The doing, through ignorance, inattention or malice, of an act which he had no legal right to perform.

Question 22

Command Responsibility.

Answer 22

Under the Administrative Code, A superior officer shall not be civilly liable for the wrongful acts of his subordinates, unless he has actually authorized such acts by written order.

Question 23

Term v. Tenure

Answer 23

Term is the period during which the officer may hold the office as a matter of right; while tenure is the period during which the officer actually holds office.

Question 24

Modes of terminating official relationship:

Answer 24

1. Expiration of term or tenure.
2. Reaching the age limit.
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 elective office within six months from proclamation
13. Conviction of a crime.
14. Filing of a certificate of candidacy

Question 25

The Principle of Hold-Over

Answer 25

the public officer is entitled to hold his office until his successor shall have been duly chosen and shall have qualified.

The purpose of the hold-over principle is to prevent a hiatus in public service.

However, When the law fixes a specific date for the end of the term, there is an implied prohibition against hold-over.

Art. 237,Revised Penal Code, which penalizes any public officer who shall continue to exercise the duties and powers of his office beyond the period provided by law.

Question 26

Rabor v. Civil Service Commission,

Answer 26

Henceforth, CSC MC No. 27, series of 1990, is deemed valid and effective, and Sec. 11, P.D. 1146, is to be read together with CSC MC 27. However, the head of the agency is vested with discretionary authority to allow or disallow extension of service of an official or employee who has reached 65 without completing 15 years of government service, although this discretion is to be exercised conformably with CSC MC 27

Question 27

Rabor v. Civil Service Commission,

Answer 27

Henceforth, CSC MC No. 27, series of 1990, is deemed valid and effective, and Sec. 11, P.D. 1146, is to be read together with CSC MC 27. However, the head of the agency is vested with discretionary authority to allow or disallow extension of service of an official or employee who has reached 65 without completing 15 years of government service, although this discretion is to be exercised conformably with CSC MC 27

Question 28

Resignation

Answer 28

The act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it.

Question 29

Recall.

Answer 29

The termination of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

Question 30

Procedure for initiating recall.

Answer 30

Recall shall be initiated upon petition by at least 25% of the total number of registered voters

Question 31

Procedure for Election for Recall

Answer 31

Upon the filing of a valid petition for recall with the Comelec, the Commission shall set the date for the election on recall, w/in 30 days for barangay, city or municipal officials, and 45 days for provincial officials.

Question 32

Limitations on Recall

Answer 32

a) only once during his term
b) No recall within one year from assumption or one year preceding a regular local election.
c. ) not be allowed to resign while the recall process is in progress

Question 33

PD 807

Answer 33

Civil Service Law

Question 34

Basis of grounds for the suspension or dismissal of officers and employees in the Civil Service

Answer 34

Under the Administrative Code of 1987, a government officer or employee may be removed from the service on two grounds: unsatisfactory conduct, and want of capacity.

While the Code does not define or delineate the concepts of these two grounds, the Civil Service Law provides specific grounds for dismissing a government officer or employee from the service.

Read Sec. 36(b) of the Civil Service Law

Question 35

Is the transfer of school teachers or employees from one school to another legal?

Answer 35

Unconsented transfer resulting in demotion in rank or salary is tantamount to removal without just cause

The exceptions are the following:

• Elementary Grades Teacher in Manila” may be assigned to any elementary school in Manila
• Secondary School Principal II without reference to any particular school may be reassigned to any station
• school District Supervisor at large, she could be assigned to any station without violating security of tenure Such decision is pure policy, best left to the administrators

Question 36

reassignment of Bias from Pampanga to Cagayan, after BIR Commissioner Chato had issued Revenue Administrative Order No. 5-93 redefining the jurisdiction and re-numbering the regional district offices of the BIR Is the reassignment valid?

Answer 36

in Chato v. Natividad, the Supreme Court upheld the legality of the reassignment of Bias from Pampanga to Cagayan.

To sustain private respondent’s contention that his transfer was a demotion simply because the new assignment is not to his liking would be to subordinate government projects to individual preferences; and this would negate the principle that public office is a public trust.

Question 37

the use of fake or spurious Civil Service eligibility what ground can the officer be dismissed?

Answer 37

Under the Civil Service Law, the use of fake or spurious Civil Service eligibility is regarded as dishonesty and grave misconduct, punishable by dismissal from the service

Question 38

Concealment of any information in the PDS what ground can the officer be dismissed?

Answer 38

the Supreme Court held that the concealment (from the Personal Data Sheet of an official or employee) of a previous charge, albeit dismissed, constitutes a mental dishonesty amounting to misconduct.

Question 39

Poor performance what ground can the officer be dismissed?

Answer 39

Under the Civil Service Law, inefficiency and incompetence in the performance of official duties are grounds for removal.

Poor performance falls within the concept of inefficiency and incompetence.

However, inefficiency or incompetence can only be determined after the probationary period of six months for the respondents.

Question 40

public officers that can removed without just cause what ground can the officer be dismissed?

Answer 40

Non career appointments.

Temporary or Acting Appointments

Question 41

Confidential employees what ground can the officer be dismissed?

Answer 41

Confidential employee may be terminated on the ground of loss of confidence, but in that case, their cessation from office involves no removal but expiration of term.

Question 42

Who has jurisdiction to discipline public appointive officers?

Answer 42

a) Heads of agencies have authority to discipline their employees. Their decision shall be final in case the penalty imposed is suspension of not more than 30 days or fine not exceeding 30 days salary.

In other cases,

1. the decision shall be initially appealed to the department head
2. then to the Civil Service Commission and executory pending appeal

• except when the penalty is removal, executory after confirmation (department head)

Additional Rules on School Teachers:

Under Magna Carta of Public School Teachers, the committee to hear administrative charges against public school teachers must include a representative of the teachers’ organization.

b) The Civil Service Commission has appellate jurisdiction, but a complaint may be filed directly with the Commission, and the latter may hear and decide the case, or deputize a department or agency to conduct the investigation.

Question 43

2 kinds of preventive suspension of civil service employees

Answer 43

In Gloria v. Court of Appeals, it was held that there are two kinds of preventive suspension

[a] preventive suspension pending investigation

This is not a penalty but this is to prevent the employee from intimidating or in any way influencing witnesses against him. If the investigation is not finished within a period of 90 days, the suspension will be lifted. The employee has no right to compensation during preventive suspension pending investigation even if he is exonerated.

[b] preventive suspension pending appeal

the employee is entitled to payment of back salaries for the period of preventive suspension pending appeal if exonerated. This is so because preventive suspension pending appeal is actually punitive.

Under existing jurisprudence, such award should not exceed five (5) years pay at the rate last received before the suspension was imposed.

NOTE: Ombudsman has authority to preventively suspend a public officer for 6 months.

Question 44

Can the Civil Service Commission appeal the case exonerating the respondent to the Supreme Court?

Answer 44

Pursuant to Supreme Court Revised Circular No. 1-91, final resolutions of the Civil Service Commission shall be appealable by certiorari under Rule 43 to the Court of Appeals within 15 days from receipt of a copy thereof.

From the decision of the Court of Appeals, the party adversely affected thereby shall file a petition for review on certiorari with the Supreme Court under Rule 45 of the Rules of Court.

In Civil Service Commission v. Dacoycoy, the Supreme Court expressly abandoned the rule that “the phrase ‘party adversely affected” means only a government employee. Thus, the Court allowed the CSC to file an appeal to the SC as it is now considered a party adversely affected by the decision of the CA.

Question 45

Period of Appeal of Resolutions Administrative Agency

Answer 45

When allowed, shall be made within 15 days from receipt of the decision, unless a petition for reconsideration is seasonably filed, which petition shall be decided within 15 days.

Question 46

Abandonment

Answer 46

The voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof

Under Civil Service Rules, absent for at least 30 days without approved leave are considered on AWOL and shall be terminated from services after due notice.

Also, an officer or employee shall be automatically separated from the service if he fails to return to the service after the expiration of one-year leave of absence without pay.

Question 47

will the disapproval of application for a leave of absence almost two months from the time it was filed consider the employee AWOL?

Answer 47

No. While the approval of leaves of absence is discretionary, this discretion must be exercised properly.

This unexplained inaction gave the respondent the impression that there was no impediment to his leave application.

Respondent cannot, therefore, be considered on AWOL for more than 30 days.

Question 48

Define Appointment and Nature of Qualfication

Answer 48

selection by authoirty vested with power, of an individual wh is to excercise the functions of a given office

Mandatory and Continuing in nature

Question 49

Grounds for Disciplinary Action of Elective Officials

Answer 49

(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at Least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;
g) Acquisition for, or acquisition of, foreign citizenship or residence or the status ,e an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.