LAW ON PUBLIC OFFICE Flashcards
PUBLIC OFFICE : DEF
right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at pleasure of creating power, and individual is vested with some sovereign functions of government to be exercised by him for the benefit of the public.
Elements of Public Office:
(LSDIP)
1.created by law or ordinance authorized by law;
2.possess sovereign functions of government to be exercised for public interests;
3.functions defined expressly or impliedly by law;
4.functions exercised by an officer directly under control of law, not under that of a superior officer unless they are functioned conferred by law upon inferior officers, who by law, are under control of a superior; (duties performed independently) and
5.with permanency or continuity, not temporary or occasional.
Characteristics: PO
-Public office is a public trust.
-Public office is not property and is outside the commerce of man. It cannot be subject of a contract.
Classification of Public Officers:
- Executive, legislative and judicial officers;
- Discretionary or ministerial officers;
- Civil or military officers;
- Officers de jure or de facto; and
- National, provincial or municipal officials
Authority to prescribe qualification:
- when prescribed by Constitution, ordinarily exclusive, the legislature may not increase or reduce qualifications except when Constitution itself provides otherwise as when only minimum or no qualifications are prescribed( ex: Art XIII Sec 17 (2), Art VIII Sec 7 (2) Consti) ;
- when office created by statute, Congress has generally plenary power to prescribe qualification but such must be:
a. germane to purpose of office; and
b. not too specific so as to refer to only one individual.
DE FACTO OFFICERS: REQ
- valid existing office;
- actual physical possession of said office;
- color of title to office;
- by reputation or acquiescence;
- known or valid appointment or election but officer failed to conform with legal requirements;
- known appointment or election but void because of ineligibility of officer or want of authority of appointing or electing authority or irregularity in appointment or election not known to public; and
- known appointment or election pursuant to unconstitutional law before declaration of unconstitutionality.
COMMENCEMENT OF OFFICIAL RELATIONS
- by appointment; or
- by election
DE FACTO VS INTRUDER
DF: REQS
DF: has color of right or title to office
DF: acts are valid as to the public until such time as his title to the office is adjudged insufficient
DF: entitled to compensation for services rendered
IN: not entitled to compensation
DF: Legal Effects of Acts
valid insofar as they affect the public
Appointment –
selection, by authority vested with power, of individual who is to perform functions of a given office.
Promotion –
movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.
Next-in-Rank Rule
the person next in rank shall be given preference in promotion when the position immediately above his is vacated. But the appointing authority still exercises his discretion and is not bound by this rule.
Automatic Reversion Rule
all appointments involved in chain of promotions must be submitted simultaneously for approval by the Commission, the disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions.
PENSION
regular allowance paid to an individual or a group of individuals by the government in consideration of services rendered or in recognition of merit, civil or military.
GRATUITY
a donation and an act of pure liberality on the part of the State.
DESIGNATION
imposition of additional duties, usually by law, on a person already in public office.
MODES OF TERMINATION OFFICIAL RELATIONSHIP
- expiration of term or tenure;
- reaching the age limit;
- resignation;
- recall;
- removal;
- abandonment;
- acceptance of incompatible office;
- abolition of office;
- prescription of right to office (within one year after the cause of ouster or the right to hold such office or position arose);
- impeachment;
- death;
- failure to assume elective office within 6 months from proclamation;
- conviction of a crime; and
- filing of certificate of candidacy.
Principle of Hold-Over
– if no express or implied Constitutional or statutory provision to the contrary, public officer is entitled to hold office until successor has been chosen and shall have qualified.
Recall
termination of official relationship for loss of confidence prior to expiration of his term through the will of the people.
Limitations on Recall:
- any elective official may be subject of a recall election only once during his term of office for loss of confidence; and
- no recall shall take place within one year from date of the official’s assumption to office or one year immediately preceding a regular local election.
POWERS AND DUTIES OF A PUBLIC OFFICER:
- Ministerial – discharge is imperative and requires neither judgment nor discretion, mandamus will lie; and
- Discretionary – imposed by law wherein officer has right to decide how and when duty shall be performed, mandamus will not lie.
Nepotism –
all appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including GOCC, made in favor of a relative of the (1) appointing or (2) recommending authority or of the (3) chief of the bureau or office or of the (4) persons exercising immediate supervision over him. A relative is one within the 3rd degree either of consanguinity or affinity
Doctrine of Command Responsibility
A superior officer is liable for acts of a subordinate when:
- he negligently or willfully employs or retains unfit or incompetent subordinates;
- he negligently or willfully fails to require subordinate to conform to prescribed regulations;
- he negligently or carelessly oversees business of office as to furnish subordinate an opportunity for default;
- he directed or authorized or cooperated in the wrong; or
- law expressly makes him liable.
Threefold Liability Rule
– wrongful acts or omissions of public officers may give rise to civil, criminal, and administrative liability. (CAC liability rule)
LIABILITY OF PUBLIC OFFICER: GR
General Rule: not liable for injuries sustained by another as a consequence of official acts done within the scope of his authority, except as otherwise provided by law.
LIABILITY OF PUBLIC OFFICER: XPNS
Exceptions:
- statutory liability under the Civil Code (Arts. 27, 32 and 34);
- When there is a clear showing of bad faith, malice or negligence (Administrative Code of 1987);
- liability on contracts; and
- liability on tort .
