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.
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.
PUBLICOFFICEISPUBLCTRUST Centennial Expo Scam exposed in the Senate. Laurel
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
groundsthatittransformsofficialsandemployeesofBIR
andBOCintomercenariesandbountyhuntersasthe
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
asanadhocbody,theexistenceoftheNCCshall
terminate upon completion of all activities related to the
celebration. Subsequently, Laurel was charged before the
Ombudsman for graft in connection with the alleged
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
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 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

sovereign functions of the government is the most him any sovereign function of government. The operation
important characteristic in determining whether a position is of a market is not a governmental function but one
a public office or not. The functions of the NCC can be undertaken by the city in its private proprietary capacity.
described as executive functions. The executive functions Also, his membership in the market committee was in
concerns the implementation of the policies set forth by representation of the association of market vendors, a non-
law.UnderAO223,oneofthefunctionsoftheNCCisto governmental organization belonging to the private sector.
undertake the overall study, conceptualization, formulation
and implementation of programs and projects on the
utilizationofculture,arts,literatureasvehiclesforhistory, (Javier vs. Sanddiganbayan, 599 SCRA 325)
economic endeavors and reinvigoration of the spirit of
national unity. Further, the NCC has an admitted role in the The fact that petitioner Carolina Javier (who was charged
countryseconomicdevelopmentwhichisafundamental with graft before the Sandiganbayan for failure to
state policy under the Constitution (Art. XII, Sec. 1, National return/liquidate her cash advances despite the cancellation
Economy and Patrimony). Clearly, the NCC performs of her foreign trip) came from the private sector to sit as a
sovereign functions. It is therefore a public office, and its member of the National Book Development Board (NBDB)
Chair is a public officer. The mere fact that he does not does not take her position outside the meaning of a public
receive any compensation during his tenure is immaterial office. The NBDB is a statutory government agency created
and not conclusive. A salary is a usual but not necessary by RA 8047 to ensure the full development of the book
criterion for determining the nature of the position. It is a publishing industry. Also, under the Anti-Graft Law, the
mere incident and forms no part of the office. Where no natureofonesappointment,andwhetherthe
salary or fees is attached to the office, it is a naked or compensation received from the government is only
honorary office and is supposed to be accepted merely for nominal, is immaterial. As she performs public functions in
the public good. pursuance of the objectives of RA 8047, verily she is a
public officer.

Lagman vs. Ochoa & Biraogo vs. Phil. Truth

Commission, Dec. 07, 2010 CLASSIFYINGPUBLICOFFICERSOFGOCCsUNDER
RA 3019
The creation of the PTC finds justification under Section 17,
Article VII of the Constitution, imposing upon the President In Macalino vs. Sandiganbayan and Office of the
the duty to ensure that the laws are faithfully executed. Ombudsman (376 SCRA 452), the Court ruled that since
Section17reads:ThePresidentshallhavecontrolofall the Philippine National Construction Corporation (PNCC)
the executive departments, bureaus, and offices. He shall has no original charter as it was incorporated under the
ensurethatthelawsbefaithfullyexecuted.The general law on corporations, it follows that petitioner
Presidentspowertoconductinvestigationstoaidhimin Macalino (as PNCC Assistant Manager) is not a public
ensuringthefaithfulexecutionoflawsinthiscase, officer within the coverage of RA 3019 and under the
fundamental laws on public accountability and jurisdiction of the Sandiganbayan.
transparencyisinherentinthePresidentspowersasthe
ChiefExecutive.ThePresidentspowertoconduct
investigations to ensure that laws are faithfully executed is However, in PP v. Sandiganbayan (16 February 2005),
well recognized. It flows from the faithful-execution clause the Court ruled that the Sandiganbayan has jurisdiction
of the Constitution under Article VII, Section 17 thereof.[56] over presidents, directors or trustees, or managers of
As the Chief Executive, the president represents the GOCCs without original charter, for purposes of RA 3019.
government as a whole and sees to it that all laws are The two cases can be reconciled as follows: In Macalino,
enforced by the officials and employees of his department. the indictment was against a mere employee of a GOCC
withoutoriginalcharternotthepresident,director,trustee
Nonetheless, Executive Order No. 1 should be struck down nor manager, for estafa which is not among those specific
as violative of the equal protection clause. The clear crimes cited in the Sandiganbayan Law (RA 8249). In PP
mandate of the envisioned truth commission is to v. Sandiganbayan , the accused was the President and
investigateandfindoutthetruthconcerningthereported COO of the Philippines Postal Savings Bank, a GOCC
cases of graft and corruption during the previous without original charter, indicted under RA 3019.So,
administrationonly.Theintenttosingleouttheprevious GOCCs need not have original charters for Sandiganbayan
administration is plain, patent and manifest. jurisdiction to attachfor violations of RA 3019 by Presidents,
directors, trustees or managers.

*Case (Figueroa vs. People, 498 SCRA 298):

Private complainant Rivera, who filed a libel case against
petitionersFegueroaandFlavianoofthePeoplesDaily
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
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

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

the executive branch with SG 27 and higher, the second When a public officer takes his oath of office, he binds
part thereof specifically includes other executive officials himself to perform the duties of his office faithfully and to
whose positions may not be of grade 27 and higher but use reasonable skill and diligence, and to act primarily for
who are by express provision of law placed under the the benefit of the public. In failing to measure up to this
jurisdiction of the Sandiganbayan (ibid). standard, respondent should be held administratively liable
for neglect of duty (Ombudsman vs. Jurado, 561 SCRA
Presidents, directors or trustees, or managers of GOCCs
137).
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
entitled to the position, then it comes within the concept of
property where the protective shield of the due process
clause of the Constitution will assert itself (Segovia vs.
Noel, 47 Phil. 543).
Public office is personal to the incumbent and is not a AN INDIVIDUAL CANNOT BE FORCED
property which passes to his heirs. The heirs may no TO ACCEPT PUBLIC OFFICE
longerprosecutethedeceasedprotesteescounterclaimfor
damages against the protestant for that was extinguished
when death terminated his right to occupy the contested
2. General rule: An individual cannot be forced to
office (Abeja vs. Tanada, 236 SCRA 62).
accept a public office as it will violate the involuntary
Thus, applying the doctrine of actio personalis moritur cum servitude clause of the Constitution.
persona, upon the death of the incumbent, no heir of his
Exceptions:
may be allowed to continue holding his office in his place
(De Castro vs. COMELEC, 267 SCRA 806). While the a. When the office is essential to the defense of the State
right to a public office is personal and exclusive to the (Sec. 4, Art. 11, 1987 Constitution).
public officer, an election protest is not purely personal and
b. When one is elected by popular election, he cannot
exclusive to the protestant or to the protestee. The court is
refuse to discharge the duties of the office without legal
not ousted of authority to continue the protest proceedings
motive (Art. 234, Revised Penal Code).
for an election protest involves not merely conflicting
private aspirations but is imbued with paramount public c. When one is required to joinposse comitatus (power of
interest (supra). the county). (Note: Posse comitatus is a common law term
that compels citizens to help the community in the
There is no such thing as a vested interest or an estate in
maintenance and preservation of peace and tranquility.
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).

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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,duringrespondentsoccupancyofthepositionof grantorauthorityfromthestateThewritofquowarranto
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
disapprovalofpetitionerspromotionbecamefinaluptothe Bureau of Customs, as against Ray Allas solely, and not
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).
| LAW ON PUBLIC OFFICERS
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 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
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
judgmentinquowarrantodoesnotbindthepublicofficers
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
againstAllassuccessorGodofredoOlores (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
compelledtopaypetitionersbacksalariesandbenefitsas
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
Dats | 4
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

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

publicemploymentisbasedononesvalidappointmentor
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
petitionersclaimforsalary,RATAandotherbenefits.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).
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).

Dats | 5
 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).
| LAW ON PUBLIC OFFICERS
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,
theSCreversedtheCAdismissalofGospetitiongrounded
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
orderedGosreinstatement (Go vs. CA and OP, 626
SCRA 180).
LAW ON ADMINISTRATIVE JURISDICTION vs. PUBLIC
SCHOOL TEACHERS
Sec. 9 of the Magna Carta for Public School Teachers (RA
4670)
Coverageoftermteacher:allpersonsengagedin
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.
Exclusionstothetermteacher:
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
Dats | 6
 Sources: Atty. ELMAN notes;\
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
intakingthePBETexaminplaceofanotherperson
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 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)
PowerofuniversitysBoardofRegentsunderRA8282 subject to its provisions while those incorporated under the
to discipline its officials and employees not exclusive
but concurrent with CSC.
The Const. & EO 292 grant to CSC jurisdiction overall
civil service positions in the government service,
whether career or non career.
| LAW ON PUBLIC OFFICERS
Academic freedom cannot be invoked where there
are allegations of CS law & rules violations (CSC vs.
Sojor, 5/22/08)
ThepoweroftheuniversitysBoardofRegentsunderRA
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
universitysBORordirectlywiththeCSC.TheConstitution
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)
GOCCsNOTCOVEREDBYTHECIVILSERVICELAW
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]
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
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
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 Sources: Atty. ELMAN notes;\
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
SCRA79,99BQ).
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)
OnGordonsMRofitsdecisiondeclaringvoidthePNRC 848).
Charter(RA95)insofarasitcreatesPNRCasaprivate
corp.&itshouldincorporateunderCorp.Codexxx,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 issui generis in
nature; it is neither strictly a GOCC nor a private corp. RA
95 remains valid & constitutional (Liban vs. Gordon,
January 18, 2011).
GOCCSCOVEREDBYTHECIVILSERVICELAW Sanggunian is still necessary for the final creation of a
| LAW ON PUBLIC OFFICERS
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
agenciesofgovt.w/caresubjectnottotestsof
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
financialsupporttotheAFPmilitaryretirementsystemit
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
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
Dats | 8
 Sources: Atty. ELMAN notes;\
district, said resolution 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
| LAW ON PUBLIC OFFICERS
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).
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
followtheCPCOsguidelinesinformulatinga
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
mustbestressedthattheBoardsdiscretiononthematter
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
Dats | 9
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

corporations, and the Sandiganbayan has no jurisdiction Since the CSC had abolished the MSPB, pursuant to
over them (Macalino vs. Sandiganbayan, 376 SCRA Section 17, Book V of the Administrative Code, it is the
452). 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
ROLE OF DBM 548).

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.

GOCC GOVERNANCE ACT OF 2011 (RA 10149)

Promotes financial viability & fiscal discipline in
GOCCs thru the Governance Commission for GOCCs
CLASSIFICATION OF CIVIL SERVICE
Evaluates performance & relevance of GOCCs,
monitors their operations 5. Classification of Civil Service

RepealsGOCCschartersw/cfixthedirectorstermby CAREER AND NON-CAREER SERVICE

reducing it to 1 yr.
I. Under PD 807 and EO 292(CAREER AND NON-
Incumbents up to 6/30/11 CAREER)
Perdiemsforactualattendanceincentivesas
authorized by GCG
CAREER SERVICE
Restitution and Prosecution of corrupt public officers
a. CAREER SERVICE is characterized by:
who collected abusive perks & scandalously high
compensation. 1) entrance based on merit and fitness to be determined as
far as practicable by competitive examinations, or based on
Rationalization of salaries & benefits based on
highly technical qualifications;
performance of officials & employees w/due regard to
financial capability of GOCC. 2) opportunity for advancement; and
1-yr. term limit of CEO of GOCC; elected by BOT/BOD; 3) security of tenure [1999 BQ] (Astraquillo vs.
may be removed by Board for cause. Manglapus; Melchor vs. Saez, 190 SCRA 281).

d. The abolition of the Career Executive Service Board by Whatisincludedinthecareerservice?(99BQ)

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).
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

Dats | 10
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

are appointed by the President of the Philippines(Modesto

Agyao Jr. vs. CSC, 18 January 2011).
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].
To classify other positions not included in the enumeration
Together with the merit and fitness rule, it is a basic feature
as covered by the CES and require appointees thereto to
of the civil service system (Palmera vs. CSC, 235 SCRA
acquire CES or CSE eligibility before acquiring security of
87).
tenure will lead to unconstitutional & unlawful
The guarantee of security of tenure under the Constitution consequences. It will result either in
isnotaguaranteeofperpetualemploymentitonlymeans
1) vesting the appointing power for non- CES
that an employee cannot be dismissed (or transferred) from
positions in the President, in violation of the
the service for causes other than those provided by law
Constitution; or
and only after due process has been accorded the
employee, but where it is the law-making authority itself 2) Including in the CES a position not occupied by
which furnishes the ground for the transfer of a class of presidential appointee, contrary to EO 292.
employees, no such capriciousness can be raised (De
Guzman Jr. vs. Comelec, 336 SCRA 188).
Astraquillo vs. Manglapus & Melchor vs. Saez, 190 NON-CAREER SERVICE
SCRA 281 b. NON-CAREER SERVICEis 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-
Proximityrule:SalaspositionasInternalSecurityStaffwas
terminus with that of the appointing authority or subject to
remote from the appointing authority (Pagcor vs. Salas,
his pleasure, or limited to the duration of a particular
274 SCRA 414)
project. The Non-career service shall include x x x
Chairman and members of commissions and boards with
fixed terms of office and their personal or confidential staff.
Three major levels/classes of positions in the Career
Service
1) 1 st level includes clerical, trades, crafts & custodial What is included in the non-career service?
services positions w/c involve non-professional or sub-
1. Elective officials and their personal or confidential staff
professional work.
2. Department heads and other officials of Cabinet rank
2) 2 nd level includes professional, technical and scientific
whose positions are at the pleasure of the President and
positionsuptoDivisionChieflevel
their personal or confidential staff
3) 3rd level covers positions in the Career Executive Service
3. Chairman and members of commissions and boards
with fixed terms of office and their personal or confidential
staff
Positions in the CES (3rd level) CAREER EXECUTIVE
SERVICE under Sec. 8, Bk. V, EO 292 4. Contractual personnel
Undersecretary, Asst. Sec., Bureau Director, Asst. Bureau 5. Emergency and casual personnel
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 Regardless of the classification of the position held by a
by the President. (Ombudsman vs. CSC, 451 SCRA 570). government employee covered by civil service rules, be it
career or non-career position, such employee may not be
3 rd level eligibility is not required for 3 rd level officials of the
removed without just cause. An employee who belongs to
Office of Ombudsman.
the non-career service is protected from removal or
The letter & intent of the law is to circumscribe the Career suspension without just cause and non-observance of due
Executive Service (CES) to CES positions in the Executive process (Jocom vs. Robredo & Regalado, 201 SCRA 73)
Branch, & that the Judiciary, the Constitutional .
Commissions, Office of Ombudsman & CHR are not
RA 7104 creating the Commission on the Filipino
covered by the CES governed by the CESB. Thus, the CA
Language provides for 11 Commissioners to be headed by
ruled to grant the petition of Mr. Inok for security of tenure
a chairman and all appointed by the President and they
as Director ll of the COA despite absence of a CES
serve full-time for a seven year term. Respondent Nita
eligibility (Inok vs. CSC, 02 July 2002).
Buenaobra who is its Chair is a non-career service
The Third Level covers only the positions in the CES as personnel whose tenure of seven years is fixed by RA
enumerated in the Administrative Code of 1987 and those 7104. Her removal from office is not at the pleasure of the
identified by the CESB as of equivalent rank, all of whom appointing authority (Office of the President vs.

Dats | 11
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

Buenaobra, 501 SCRA 303). Executive has power to declare classification of

non-competitive position (Sec. 12, Bk. V, EO 292)
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
Entrance based on merits
and fitness except
positions which are :
1. Primarily
Confidential
2. Highly technical
and
3. Policy Determining
Determined by
competitive examination
Opportunity for
advancement to higher
career position
There is security of tenure
COMPETITIVE AND NON-COMPETITIVE SERVICE
NON- CAREER SERVICE
Entrance other than based on
the merit and fitness.
Determine not by competitive
examination
No such opportunity
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. Regalado,
G.R. No. 77373, Aug. 22,
1991).
TERM OF OFFICE vs. TENURE OF
OFFICE

II. Under Art. lX-B, Sec. 2 (2) of 1987 Constitution ( Termthetimeduringw/cofficermayclaimtoholdoffice

COMPETITIVE AND NON-COMPETITIVE)
a. COMPETITIVE POSITIONS : appointments made
according to merit and fitness.
b. NON-COMPETITIVE POSITIONS: those which by
nature are -
i. primarily confidential - denotes not only
confidence in the 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 of personal trust on
confidential matters of state.
ii. policy determining - one charged with the duty to
formulate a method of action for the government or any of
its subdivisions.
iii. highly technical - if the occupant is required to
possess a technical skill or training in the supreme or
superior degree.
Natureandnotlabelthatmakesitcompetitive.
as of right and fixes the interval after w/c the incumbents
shall succeed one another.
Tenure thetermduringwhichtheincumbentactually
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,

Dats | 12
 Sources: Atty. ELMAN notes;\
pursuanttotheConstitution,noofficeroremployeeisthe mga Barangay, coincides with the expiration of the term of
civil service may be removed or suspended except for
causeasprovidedbylawandthisfundamentalprinciple October 13, 1999).
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
theconstitutionalprovisionthatthetermofofficeandother
qualifications and disabilities of the Members of the
Commission(onHumanRights)shallbeprovidedbylaw remain in office in a holdover capacity until those elected in
(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
Constitutional Commissions under the 1987 Constitution
muststartonacommondate,(thatis,February2,1987 Assembly who shall perform the functions pertaining to said
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
| LAW ON PUBLIC OFFICERS
office of regular members (Hernandez vs. Lanzuela,
*Datu Michael Abas Kida vs. Senate of the Phil.,
October 18, 2011
A legislation allowing the elective officials in the ARMM to
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
onlydoesistograntthePresidentthepowertoappoint
OICs for the office of the Regional Governor, Reg. Vice
Governor and members of the Regional Legislative
offices until the officials duly elected in the May 2012
electionsshallhavequalifiedandassumedoffice.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 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:
Villarsappointmentforafullsevenyeartermis
unconstitutional as it violated Sec. 1(2), Art. lX(D) of the
Constitutionwhichreads:TheChairmanand
Commissioners (on Audit) shall be appointed by the
President with the consent of the Commission on
Appointments for a term of seven years without
reappointmentAppointmenttoanyvacancyshallbeonly
Dats | 13
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

for the unexpired portion of the term of the predecessor

.ACOACommissionerlikerespondentVillarwhoserves
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.

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
87Const.

Dats | 14
 Sources: Atty. ELMAN notes;\
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 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,
| LAW ON PUBLIC OFFICERS
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.ThefilingofSulongsmotionpreventedthe
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
clarifiedthatthephrasedualcitizenshipaforementioned
referstodualallegiance.Thus,personswithmeredual
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 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
Dats | 15
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

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
PhilippineConsulateGeneralsOfficeinLosAngeles, with the Bureau of Immigration on March 1, 2004.
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
tobeeffective.Intheinstantcase,Lopezsfailedto (2002 BQ).
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.
holder. To be 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,
becauseSec.2ofsaidlawspecificallyprovidesthat
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
civilregistryandtheBureauofImmigration. 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
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

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
citizenshipbeforetheDeptofImmigration&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

Dats | 16
 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
| LAW ON PUBLIC OFFICERS
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 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
coterminousinnature.Here,petitionersappointmentwas
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
causeandatamomentsnotice.Astothosewith
eligibilities, their right to security of tenure pertains to their
rank but not to the position to which they were appointed.
Petitionerstemporaryappointmentwascoterminousor
one that is co-existent with the tenure of the appointing
authorityoratthelatterspleasure.Assuch,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
Dats | 17
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

an officer who is appointed - not merely assigned - to a the LWUA lies with the Board; his authority is merely to
particular station (Sta. Maria vs. Lopez, 31 SCRA 637; De recommend a reassignment to the Board (Reyes, Jr. vs.
Guzman Jr. vs. Comelec, 336 SCRA 188). Belisario, 596 SCRA 35).The presumption of regularity, as
relied upon by the Ombudsman in dismissing the
The clue to such transfers may be found in the nature of
oppressioncharge,doesnotapplywhenanofficialsacts
the appointment. Where the appointment does not indicate
are not within the duties specified by law, particularly when
a specific station, an employee may be transferred or
his acts pertain to another entity or public official. The
reassigned provided the transfer affects no substantial
authority to reassign officers lies with the LWUA Board and
change in title, rank and salary (supra).
not with the petitioner administrator (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 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
reassignmentviolatesrespondentssecurityoftenure.The
lack of temporariness of the assignment can be inferred
fromtheMemototheeffectthatthereassignmentwillbest
fithisqualificationsandexperiencebeinganexpertin
vocationalandtechnicaleducation.Nothingthereinshows
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

Dats | 18
 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
maybeappointedaconceptwhichisapplicableonlyto Philippines. Said position belongs to the CES appointments
firstandsecondlevelemployeesinthecivilservicebutto to which by law require that the appointees possess the
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
| LAW ON PUBLIC OFFICERS
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 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).
TheCourtaffirmedthevalidityofpetitionerAmores
separation from service without cause as Deputy Director
for Hospital Support Services at the Lung Center of 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
Dats | 19
 Sources: Atty. ELMAN notes;\
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
basedonhighqualificationsandcompetenceandshall Guarantee Corporation vs. CSC, 220 SCRA 148).
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 (Cuevas vs. Bacal).
In order for a position to be covered by the CES, two
elements must concur. First, the position must either be (1)
a position enumerated under Bk V, Title I(A), Chapter 2 of
the Administrative Code of 1987, i.e. Undersecretary, Asst.
Secretary, Bureau Director, Asst. Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department
Service, or (2) a position of equal rank as those
enumerated, and identified by the CES Board to be such
position of equal rank. Second, the holder of the position
must be a presidential appointee. Failing in any of these
requirements, a position cannot be considered as one
covered by the third level or CES. 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 covered by the
third level or the CES, and does not require Career Service
Executive (CSE) eligibility. Therefore, the appointments of
SarsonasandOrtegaasAsst.Dept.Managerlldonot reversed and set aside by the SC
require third level eligibility pursuant to the Civil Service
Law, rules and regulations(CSC vs. CA, 635 SCRA 749).
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 person occupying the position of Graft Investigation
| LAW ON PUBLIC OFFICERS
Officer lll is not appointed by the President but by the
Ombudsman as provided in Article lX of the Constitution.
To classify said position as belonging to the CES and
require an appointee thereto to acquire CES or CSE
eligibility before acquiring security of tenure would be
absurd as it would result either in (1) vesting the appointing
power for said position in the President, in violation of the
Constitution; or (2) including in the CES a position not
occupied by a presidential appointee, contrary to the
Administrative Code (Ombudsman vs. CSC, 451 SCRA
570).
The position of Vice President of HIGC does not belong to
the 3rd level of the career service. Respondent Cruz has not
satisfactorily shown that his former position as Vice
President in the HIGC belongs to the third level in the
career service as prescribed by law, nor has he established
that it is one of those identified by the CESB as of
equivalent rank to those listed by law. Neither is it claimed
tha he was appointed by the President (Home Insurance
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 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 enumerated positions in the Career Executive
Service, much less, a position that requires presidential
appointment. For said reason, Agyao only needs the
approval of the PEZA Director-General to validate his
appointment or re-appointment. As he need not possess a
CESO or CSEE eligibility, the CSC has no valid and legal
basis in invalidating his appointment or re-appointment as
Department Manager ll. The CA decision affirming the
invalidation by the CSC of petitioner Agyao as Department
Manager ll of Philippine Economic Zone Authority was thus
(Agyao vs. CSC, 18
January 2011).
POSITIONS EXCLUDED FROM CAREER EXECUTIVE
SERVICE
Positions excluded from the coverage of the CES per
CESB Resolution No. 799 (May 19, 2009):
a. Managerial and executive positions which have fixed
term of office as provided for in the charter of the agency or
Dats | 20
 Sources: Atty. ELMAN notes;\
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;
ii. Secretaries and other officials of cabinet rank who
hold their positions at the pleasure of the
President and their personal or confidential staff;
iii. Chairman and members of commission and boards
with fixed terms of office and their personal
or confidential staff;
iv. contractual personnel; and
v. emergency and seasonal personnel.
c. Managerial and executive positions in the national
government belonging to the closed career systems which
are administered by special bodies such as the Foreign
Service, PNP, State Colleges and Universities unless
otherwise provided in their respective charters, the
Scientific Career Service and the like;
d. The position of Head Executive Assistant.
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).
Sec. 59, EO 292: prohibition within 3 rd
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
Sec. 79, RA 7160: prohibition within 4 th
degree of
consanguinity or affinity
A promotional appointment violative of nepotism rule is null
| LAW ON PUBLIC OFFICERS
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
designationandnotanappointmenttothepositionof
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
maybetransferredorreassignedprovidedno
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 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
theemployeespriorconsent(supra).Areassignment
whichremovesfromapublicofficerspowerofsupervision
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
Dats | 21
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

vs. dela Paz, 160 SCRA 751). case to the CSC. Pending appeal, the decision to detail the
employee shall be executory unless otherwise ordered by
If the transfer was made without the consent of the official
the CSC. A reassignment means that an employee is
concerned, it is tantamount to removal without valid cause
reassigned from one organizational unit to another in the
contrary to the fundamental guarantee on non-removal
same agency, provided that same shall not involve a
except for cause (Garces vs. CA, 259 SCRA 105).
reduction in rank, status or salary. A detail requires a
EO0692issuedbyMayorPlazaofButuanCity movement from one agency to another while a
reconstituting the City Social Services Development Office reassignment requires a movement within the same
(CSSDO), devolving or adding thereto 19 national DSWD agency. Moreover, pending appeal with CSC, an order to
employees, designating petitioner Virginia Tuazon as OIC detail is immediately executory, whereas a reassignment
of the reconstituted CSSDO and transferring its office from order does not become immediately effective (CSC vs.
theoriginalCSSDObuildingtotheDSWDbuildingdid Minerva Pacheco, 01/31/12).
notviolaterespondentssecurityoftenure.TheMayoris
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
illegaltransfer.Thechangeofrespondentsplaceofwork
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 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

Dats | 22
 Sources: Atty. ELMAN notes;\
PRESIDENTIAL APPOINTMENTS
ad interim and regular (Art. Vll, Sec. 16 Const.); Distinction
Distinction between ad interim appointments from
appointmentsinanactingcapacity;Presidentsissuanceof retroactive to the date of the release of the examination
appointments in an acting capacity is not an impairment of
power of Congress (Pimentel vs. Ermita, 472 SCRA 589).
| LAW ON PUBLIC OFFICERS
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,
subsequently passed the civil service exam does not
transform his appointment from temporary to permanent
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
Dats | 23
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

continuation of a temporary appointment but a new one QuirogsappointmentwasnotviolativeoftheCSC

(Province of Camarines Sur vs. CA, 246 SCRA 283). Resolution prohibiting midnight appointments. The
constitutional prohibition on so-called midnight
Even under the terms of RA 6850 (An Act to Grant Civil
appointments, specifically those made within 2 months
Service Eligibility under Certain Conditions to Government
immediately prior to the next presidential elections, applies
Employees Appointed Under Provisional or Temporary
only to the President or Acting President. It does not mean
Status Who Have Rendered a Total of Seven Years of
however that the prohibition may not be applied to those
Efficient Service; Approved Feb. 8,1990), not every
made by chief executives of LGUs since it is designed to
temporary or provisional employee is automatically deemed
discourage losing candidates from issuing appointments for
a permanent employee after rendering at least 7 years. The
partisan purposes thereby depriving the incoming
CSC still needs to evaluate whether the employee is
administration of making the appointments in line with its
qualified to avail of the privilege granted by the statute.
new policies. Also, there was no violation of the CSC
Moreover, that an appointee obtains a civil service eligibility
Resolution because it took effect only after the questioned
later on does not ipso facto convert his temporary
appointment was extended and after she took office on
appointment into permanent. A new appointment is still
June 1. Further, the fact that she was only permanently
required (Maniebo vs. CSC, 627 SCRA 570). Even an
appointed to the position of Department Head-OPA after a
appointment initially approved by the CSC may be
year of being the Acting Provincial Agriculturist more than
subsequently recalled when found to be invalid (id.).
shows that the filling up of the position resulted from
The success of petitioner in the civil service examinations, deliberate action and a careful consideration of the need for
upon the termination of her temporary appointment, did not the appointment and her qualifications. An appointee
establish a legal obligation on the part of the administrators already discharging the duties concomitant with the
of the Philippine State College of Aeronautics to reappoint position for a year prior to her permanent appointment
her. Acquisition of such eligibility is not the sole factor for cannot be considered a midnight appointee (Quirog vs.
reappointment. Other relevant considerations include Gov. Aumentado , 570 SCRA 582).
performance, degree of education, work experience,
training, seniority and the confidence of the appointing
power. In other words, the choice of an appointee from *De Rama v. CA, 353 SCRA 94
among those who possessed the required qualifications is
Shortly before the end of his term on June 30, 1995, Mayor
a political and administrative decision calling for
Abeja of Pagbilao, Quezon, who lost the preceding election
considerations of wisdom, convenience, utility and the
for the same position, appointed 14 employees. The newly
interests of the service which can be best made by the
elected mayor wrote a letter to the Civil Service
head of the office concerned (Gloria vs. de Guzman, GR
Commission seeking to recall the appointments of the 14
116183, 06 October 1995).
astheseweremidnightappointments.Heclaimsthat
The municipal mayor, being the appointing authority, is the they were violative of Art. VII, Sec. 15 of the 1987
realpartyininteresttochallengetheCSCsdisapprovalof Constitution prohibiting the President or the Acting
the appointment of his appointee (Dagadag vs. President from making appointments 2 months immediately
Tongnawa, 450 SCRA 437). before the next presidential election and up to the end of
his term. Is the prohibition applicable to local chief
Both the appointing authority and the appointee are equally
executives?
real parties in interest who have the requisite legal standing
to bring an action challenging the CSC disapproval of an
appointment.TheCSCsdisapprovalofanappointmentisa
Held: No. The prohibition applies only to presidential
challengetotheexerciseoftheappointingauthoritys
appointments. In truth and in fact, there is no law that
discretion. The appointing authority must have the right to
prohibits local elective officials from making appointments
contest the disapproval. The appointee is also injured by
during the last days of his or her tenure. The appointing
the CSC disapproval because he is prevented from
authority, in the absence of any prohibition, can validly
assuming the office in a permanent capacity and he would
issue appointments until his term expires, as long as the
necessarily benefit if a favorable judgment is obtained as
appointee meets the qualification standards for the
an approved appointment would confer on him all the
position.
rights and privileges of a permanent appointee (Abella Jr.
vs. CSC, 442 SCRA 507).
Petitioner Quirog had the right to ask for reconsideration of, Art. Vll, Sec. 15 Constitution
or to appeal the adverse ruling of CSCROVll invalidating
Twomonthsimmediatelybeforethenextpresidential
her appointment as Provincial Agriculture Department
elections and up to the end of his term, the President or
Head on the basis of the prohibition against the issuance of
Acting President shall not make appointments, except
midnight appointments per CSC Resolution dated June 4,
temporary appointments to executive positions when
2001. In contrast, by reason of the expiration of his term as
governor, Relampagos who had issued the permanent continued vacancies therein will prejudice public service or
appointment to Quirog on May 23, 2001 had lost the legal endangerpublicsafety.
personality to contest the disapproval of the appointment
(Quirog vs. Gov. Aumentado , 570 SCRA 582).
*Nazareno vs. City of Dumaguete, 02 October 2009

Dats | 24
 Sources: Atty. ELMAN notes;\
As a general rule, appointments made by defeated local
candidates after the elections are prohibited to avoid
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
| LAW ON PUBLIC OFFICERS
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, 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
havethePresidentsconfidence.ThePresidentmay
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
theCOMELEC,questionedthelegalityofthelattersad
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.Adinterimappointmentmeansapermanent
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
Dats | 25
 Sources: Atty. ELMAN notes;\
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 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 ON PUBLIC OFFICERS
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)
Theotherofficerswhoseappointmentsare
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)
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.
ThereisnoincompatibilitybetweenthePresidentspower
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
Dats | 26
 Sources: Atty. ELMAN notes;\
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 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
presidentialelectionsanduptotheendofthePresidents through election by the co-workers in that office (ibid).
orActingPresidentstermdoesnotrefertotheMembersof SincethePresidentexercisescontroloverallthe
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.ThePresidentsfailuretodosowillbeaclear theCCPshallenjoyautonomyofpolicyandoperation
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
| LAW ON PUBLIC OFFICERS
fromtheiroccurrence.IsVillanuevasappointmentvalid?
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, 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
boardswhoarevestedbylawwiththepowertoappoint
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
executivedepartments,bureaus,andoffices,thePresident
necessarily exercises control over the CCP which is an
office of the Executive Branch. Sec. 3 of PD 15 stating that
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
Presidentspowerandcontrol.Thus,theChairmanofthe
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 | 27
Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

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

Dats | 28
 Sources: Atty. ELMAN notes;\
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).
TheremovalofpetitionerspursuanttoRA6715which Commissioners in their stead is void. Petitioners are
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
appointmentandqualificationoftheirsuccessorswas
unconstitutional; RA 6715 did not expressly or impliedly
abolish the offices of petitioners, there being no
irreconcilable inconsistency in the nature, duties and
functionsofthepetitionersofficesundertheoldlawand provision shall be null and void, including the removal of
the new law (Mayor vs. Macaraeg, 194 SCRA 672).
ThechangeintheNLRCsnaturethatis,theNLRCprior their stead. There can be no valid appointment to a non-
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
forprogramcoordinationonlywasnotsufficienttojustify the remainder of his term under RA 6975. Thus, all the
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
abolitionofpetitionersoffices.Publicrespondentsinsist as to result in the implied abolition of such office. Its
| LAW ON PUBLIC OFFICERS
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
violationofthepetitionersrighttosecurityoftenure.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
entitled to reinstatement and to the payment of full
backwages reckoned from the date they were removed
from office.
RulingonpetitionersMR:Theinevitableconsequenceof
theCourtsdeclarationthatSection8ofRA8551is
unconstitutional is that all acts done pursuant to such
petitioners and Adiong from their positions in the
NAPOLCOM and the appointment of new commissioners in
vacantposition.Accordingly,Adiongsappointmenton11
March 1998 for a term of two years, pursuant to Section 8
thereof, is void. However, he should be permitted to enjoy
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,beinginviolationofpetitionerssecurityof
tenure guarantee. The revisions in the new law do not
constitute essential changes in the nature of NAPOLCOM
Dats | 29
 Sources: Atty. ELMAN notes;\
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)
TheNEABoardhasthepowertoterminateallofNEAs Canonizado because at no point did Canonizado discharge
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
resultinthelossofonespositionthruremovalorabolition orbytheprimaryfunctionsofhispositionandaslongas
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
theNEAemployeeswaswithintheNEABoardspowerand that one office has the right to interfere with the other
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
impossibilityofonepersonperformingbutcontrariety
arisesfromnature&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
fromsittinginacommittee
b) Acceptance of another office incompatible with the first
officeipsofactovacatesthefirstofficeandtheofficerstitle
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
personsperformingthedutiesofthetwoofficesduetoa humanitarian organization. The PNRC does not have
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
| LAW ON PUBLIC OFFICERS
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
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
officialtoholdmorethanoneofficeonlyifallowedbylaw
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
(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)
DuringRichardGordonsincumbencyasmemberofthe
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
thecountrysobligationsundertheGenevaConventionof
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 corporation performing governmental functions. It is
privately-owned, non-profit, donor-funded, voluntary,
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
Dats | 30
 Sources: Atty. ELMAN notes;\
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).
TheintentiontoabandonhispositionisshownbyAntonios resignation in the legal sense for it is not necessarily a
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
pendencyofhisappealbroughtpreciselytoassailthe personnel facing administrative sanction. The mere
constitutionalityofhisremovalfromtheNAPOLCOM expedient of resigning from the service will not extricate
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
providingforoneselfandonesfamily.Acontraryrulewould The jurisdiction of the Court was acquired at the time of the
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).
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).
| LAW ON PUBLIC OFFICERS
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
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,requestedforCollantesresignationdoesnotgive
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
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.
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).
RespondentClerkofCourtsresignationbeforethe
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
administrativesanctionsthatofseparationfromthe
servicemaynolongerbeimposedonpetitioner,thereare
other penalties which may be imposed, namely, the
disqualification to hold any government office and the
Dats | 31
 Sources: Atty. ELMAN notes;\
forfeiture of benefits. The hasty filing by petitioner, Cashier
oftheProvincialTreasurersOffice,ofhercertificateof and published in the Official Gazette on 30 May 1988. This
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 P( agano 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
toCongressbyconstitutionalfiat(supra).Petitionersclaim
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
cannolongerinstituteanadmincasevs.Andutanwho is not a reasonable classification in criminal enforcement.
had resigned as Dep. Dir. of DOF on basis of Memo of the
Exec. Sec. directing all non-career officials to vacate their
positionsbecausehewasnotapublicservantattimethe interrupted in their freedom. His continued incarceration is
case was filed (Omb. vs. Andutan, Jr., July 27, 2011).
d)Failuretomakeacourtesycalltoonessuperiorisnot obliterateacriminalcharge.PetitionerTrillaneselectoral
anoffense,muchlessagroundtoterminateapersons victory only signifies pertinently that when the voters
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
| LAW ON PUBLIC OFFICERS
has been repealed by RA 6654, approved on 20 May 1988
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 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
The functions and duties of the office are not substantial
distinctions which lift him from the class of prisoners
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
electedhimtotheSenate,theydidsowithfullawareness
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.Indebunkingthedisenfranchisementargument,
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
Dats | 32
 Sources: Atty. ELMAN notes;\
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 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).
| LAW ON PUBLIC OFFICERS
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.
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.
Dats | 33
 Sources: Atty. ELMAN notes;\
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
betweenthetwomodesofseparationthedisciplinaryand created by the Supreme Court revealed that Justice Reyes
thenondisciplinaryisthatthefirstcarriesadministrative was responsible for the leakage. Justice Reyes, however,
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
| LAW ON PUBLIC OFFICERS
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
reached the compulsory retirement age of 70 while the
investigation was in progress. Considering that Justice
Reyes was an impeachable officer, can 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,
pursuanttotheCourtspowerofadministrativesupervision
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
Dats | 34
 Sources: Atty. ELMAN notes;\
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,areproperforanappeal,complainantsremedyis LGU concerned and supported by the registered voters
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 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
trustinelectiveofficialsabilitytodischargehis
office.
| LAW ON PUBLIC OFFICERS
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).
Norecallwithin1yr.fromdateofofficials
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
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 thereafter cause its publication once a week
for3consecutiveweeksatpetitionersexpenseandatthe
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
yearfromthedateoftheofficialsassumptiontoofficeor1
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
Dats | 35
 Sources: Atty. ELMAN notes;\
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
referstolocalelectiveofficialstheARMMGovernor.The
ARMM Vice Governor and the members of the Regional
LegislativeAssemblywhosetermsfallwithinthe3year
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
(2) preventive suspension pending appeal if the penalty
imposed by the disciplining authority is suspension or
dismissal and after review, the respondent is exonerated
(Sec. 47[4]).
Preventive suspension pending investigation is not a
penalty, but a measure to enable the disciplining authority
to investigate charges against respondent by preventing
the latter from intimidating or in any way influencing
witnesses against him. Pending investigation, such
respondent is not entitled to compensation for the period of
suspension even though it be subsequently determined
that the cause for which he was suspended was insufficient
(Gloria vs. CA, 306 SCRA 287; Caniete vs. DECS
Secretary, 333 SCRA 850) [2001 BQ].
In Gloria , the public school teachers therein were either
suspended or dismissed for allegedly participating in the
strikes sometime in September and October 1990. They
were eventually exonerated of said charge and found guilty
only of violation of reasonable office rules and regulations
by failing to file applications for leave of absence. Thus, the
penalty of dismissal earlier imposed on them was reduced
to reprimand and their reinstatement was ordered.
Moreover, the Court affirmed the payment of back salaries
ofsaidteachersexplainingthatalthoughemployeeswho dismissal is ordered restrained by the CA. The Court
are preventively suspended pending investigation are not
entitled to the payment of their salaries even if they are not
| LAW ON PUBLIC OFFICERS
exonerated, we do not agree with the government that they
are not entitled to compensation for the period of their
suspension pending appeal if eventually they are found
innocent.
Preventive suspension pending appeal is actually punitive
although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision
finding him guilty is reversed. Hence, he should be
reinstated with full pay for the period of the suspension. To
deny back wages during his suspension would be
tantamount to punishing him after his exoneration from the
charges which caused his dismissal from the service (id). In
Caniete, the Court squarely applied the Gloria ruling as the
facts are substantially the same.
Teachers exonerated of original charges & found guilty only
of violation of reasonable office rules are entitled to
compensation (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 to back salary. To recover, it must
be shown that suspension was unjustified or officer was
innocent of the charge (Sales vs. Mathay, 129 SCRA 180).
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 his suspension or dismissal
is found and declared to be illegal. Thus, the order of
payment of full backwages in this case is without lawful
basis. To allow private respondent to receive full back
salaries would amount to rewarding him for his misdeeds
and compensating him for services that were never
rendered (id.).
Although the Court did not find respondent guilty of gross
neglect of duty, respondent Rabang was however liable for
simple neglect of duty. Hence, he was not exonerated from
liability. Moreover, his separation from the service, which is
considered as preventive suspension during the pendency
of his appeal, was not unjustified as it was to protect public
interest considering that he was charged with gross
negligence/gross neglect of duty and found guilty thereof by
the DOTC and the CSC. Further, the decision of dismissal
by the CSC is executory based on Book V of the
Administrative Code of 1987, unless on appeal, the
sustained the penalty of suspension for three months
without pay imposed on respondent by the CA for simple
Dats | 36
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

neglect of duty since this is his first offense in his fifteen

years of service in the Government and the petitioner CSC
and the DOTC were ordered to reinstate the respondent to
his former position before he was dismissed from the
service. However, respondent is not entitled to payment of
backwages during the period of time he was considered to
be on preventive suspension (CSC v. Rabang, 14 March
2008).

b. The proper disciplining authority may preventively

suspend any subordinate employee pending an
investigation, if the charge against such employee involves
dishonesty, oppression or grave misconduct, or neglect in
the performance of duty, or if there are reasons which
would warrant his removal from the service (Sec. 51, EO
292).
Such preventive suspension, authorized by the Civil
Service Law, cannot therefore be considered "unjustified",
as it is one of 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 Teotico vs. Agda, Sr.,
29 May 1991; Orbos vs. Bungubung, 21 November
1990).

c. Under Sec. 24 of the Ombudsman Act (RA 6770), the

Ombudsman or his Deputy may preventively suspend for a
period not more than six months any employee pending an
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.

Dats | 37
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

suspension from office under Section 13 of RA 3019

(Santiago vs. Sandiganbayan, 356 SCRA 637).
d. Under Sec. 13 of the Anti-Graft and Corrupt Practices
Act (RA 3019), any public officer against whom any criminal The preventive suspension should be limited to 90 days
prosecution under a valid information under RA 3019 or under Sec. 42 of PD 807 (now Sec. 52 of EO 292) [1990
under the provisions of the Revised Penal Code on bribery BQ: Deloso vs. Sandiganbayan, 173 SCRA 409].
is pending in court, shall be suspended from office.
A 90-day preventive suspension imposed by the
The word "office" applies to any office which the officer Sandiganbayan on a local elective official instead of the
charged may be holding, and not only to the particular maximum 60 days prescribed by Section 63 of the LGC is
office under which he was charged (Bayot vs. not flawed where the same was based on Section 13 of RA
Sandiganbayan, 128 SCRA 383). 3019 ( Nicart, Jr. vs. Sandiganbayan, 495 SCRA
73;Ysidiro vs. Hon. Teresita J. Leonardo de Castro,
Thus, the suspension of then Cavite Mayor Bayot was
02/06/12).
sustained even as he was charged for acts committed as
COA auditor. RA 3019 makes it mandatory for the Sandiganbayan to
suspend any public officer against whom as valid
In Deloso vs. Sandiganbayan (173 SCRA 409), Governor
information charging violation of that law, Book ll, Title 7 of
Delosossuspensionwasheldproperevenifatthetimeof
the Revised Penal Code, or any offense involving fraud
its issuance he was already occupying the office of
upon government or public funds or property is filed, and
governor and not the position of municipal mayor that he
the lower court has neither discretion nor duty to determine
held previously when charged with graft.
whether preventive suspension is required (Bolastig vs.
In Libanan vs. Sandiganbayan (233 SCRA 163), the Sandiganbayan, 235 SCRA 103).
suspension order of Libanan was upheld based on his
Forthepurposeofresolvingtheproprietyofpetitioners
indictment as Sanggunian Bayan member even if he was
suspension pendente lite, it is sufficient that the information
already the duly elected and incumbent Vice Governor of
unequivocally recites that the offense charged involves
Eastern Samar.
fraud upon government or public funds or property. The
In Berona vs. Sandiganbayan (435 SCRA 306), the Court falsification of a DTR constitutes fraud involving public
upheld the suspension of Dr. Berona although he resigned funds because it enables the employee concerned to be
as Provincial Heath Officer during the pendency of the paid salary and to earn leave credits for services which
Sandiganbayan proceedings and won as the Municipal were never rendered (Flores vs. Layosa, 436 SCRA
Mayor of Pilar, Abra. 339).
The suspension contemplated in Article Vl, Section 16(3) of
theConstitutionwhichprovidesthateachhousemay
The purpose of the law in requiring a pre-suspension
punish its members for disorderly behaviour, and, with the
hearing is to determine the validity of the information so
concurrence of two-thirds of all its members, suspend or
that the court can have a basis to either suspend the
expelamemberisapunishmentthatisimposedbythe
accused and proceed with the trial on the merits of the
Senate or House of Representatives upon an erring
case, or withhold the suspension and dismiss the case, or
member. It is distinct from the suspension under Section 13
correct any part of the proceedings that impairs its validity.
of RA 3019 which is not a penalty but a preventive
Once a proper determination of the validity of the
measure (Santiago vs. Sandiganbayan, 356 SCRA 636;
information has been made, it becomes the ministerial duty
2002 BQ).
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
thefilingandtheconsiderationbythecourtoftheparties
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

Dats | 38
 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,
incompliancew/statesdutyxxx. aside from having been rendered part-time in said
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
retirementpurposes.ValdezservicesrenderedinMariano
Memorial State University, Phil. Veterans Investment Dev.
Co.andasOICVGofIlocosNortewererenderedpart
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 (Valdezvs.GSIS,30June08). appears to be way beyond that authorized by RA No. 6758,
| LAW ON PUBLIC OFFICERS
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
PhilippineCivilService,petitionersservicesrendered
thereat for that period, however, still cannot 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
petitionersservicesrenderedforMMSU,PHIVIDECand
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,
agencies, the said positions were without compensation as
defined in Section 2(i) of RA No. 8291. Petitioners
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 P 40,000.00 in addition to a P
65,000.00 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
Dats | 39
 Sources: Atty. ELMAN notes;\
otherwise known as the Salary Standardization Law. For
thisreason,itisdoubtfulthatpetitionersemploymentwith disallowances that were properly disallowed by COA would
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
partastheyhadnoparticipationintheapprovaland same to the government (Sec. 13, RA 3019).
issuance of the resolution of the BOD and assumed the
valid exercise of power by the BOD under the MIAA
Charterwillnotsufficetorenderthemliableforrefund.
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 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).
ThemonetaryliabilityinfavorofGSISrefersto creation of any insurance or retirement plan - other than the
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
| LAW ON PUBLIC OFFICERS
in the performance of his duties. (ibid). The COA
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
againstrespondentsretirementbenefits,itcanseek
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
EMOLUMENT
(c)Thetermemolumentincludessalary,fees,
compensation, perquisites, pensions and retirement
benefits (Phil. Constitutional Association vs. Gimenez, 15
SCRA479).TheCOA,onthebasisoftheStateAuditors
finding of cash shortage against petitioner municipal
treasurer which has not been satisfactorily disputed, can
direct the proper officer (municipal mayor) to withhold the
petitionerssalaryandotheremoluments,underSec.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
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
Dats | 40
 Sources: Atty. ELMAN notes;\
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).
OnbasisofAuditorsfindingofcashshortageofP3.58M promulgation of the
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).
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
providingnodirectorshallreceiveothercompensation
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
benefitspaidinadditiontothesalariesincumbentsare performance.
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
| LAW ON PUBLIC OFFICERS
(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
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)
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
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 (DBMvs.ManilasFinest
Retirees Association, 05/09/07).
Dats | 41
 Sources: Atty. ELMAN notes;\
*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
petitionerspresenceinthePEZABoardmeetingsissolely parties may jointly refer the dispute to the Public Sector
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 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
retirementbenefitsschedule shall have retroactive effect without proper authority, from their schools during regular
in favor of PNP members and officers retired or separated
from the time specified in the law.Saidprovisionshouldbe absence ineluctably results in the non-holding of classes
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
CSCvs.ManilasFinestRetireesAssociation,09May the government for a redress of grievances but for conduct
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
| LAW ON PUBLIC OFFICERS
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
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
school days, in order to participate in mass protest, their
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
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
fromworkwhichitwassaidteacherssworndutyto
perform (Alipat vs. CA, 308 SCRA 781).
Dats | 42
 Sources: Atty. ELMAN notes;\
Thefactthattheconventionaltermstrikewasnotusedby government employees:
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.
Therewasworkstoppageandpetitionerspurposewasto
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
thelaw,noonenottheDECS,theCSCoreventhe reasonable conditions upon the access to information such
SupremeCourtcouldhaveheldthemliablefortheir asthosefoundinRA6713CodeofConductandEthical
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
theCSCtosixmonthssuspension,theanswerisinthe recognizes the duty of officialdom to give information even
negative on the ground that the teachers were neither
exonerated or unjustifiably suspended. When the teachers
havegivencausefortheirsuspensioni.e.,theunjustified The right to information is a public right and when a
abandonmentofclassestotheprejudiceoftheirstudents mandamus proceeding involves the assertion of a public
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 Vlll) and those that involve the exercise of
management prerogative, e.g., appointment, promotion,
assignment/detail, penalties as a result of disciplinary
actions, etc. (Sec. 4, id). Considered negotiable are such
matters as schedule of vacation and other leaves, work
assignment of pregnant women; recreational, social,
athletic, and cultural activities and facilities (Sec. 2, id).
[Constitutional provisions on the right to self-organization of
| LAW ON PUBLIC OFFICERS
a. Art. lll Sec. 8: The right of the people, including those
employed in the public and private sectors, to form unions
or associations not contrary to law shall not be abridged.
b. Art. lX B Sec. 2 (5): The right to self-organization shall
not be denied to government employees.
c. Art. Xlll Sec. 3: The state shall guarantee the rights of
all workers to self-organization, collective bargaining and
negotiation, including the right to strike in accordance with
law.]
RIGHT TO INFORMATION
(h) The right to information under the Constitution is a self-
executory provision which can be invoked by any citizen
before the courts, though Congress may provide for
StandardsforPublicOfficialsandEmployees (Gonzales
vs. Narvasa, 337 SCRA 736).
The right to information under the Bill of Rights guarantees
the right of the people to demand information on matters of
public concern while Sec. 28, Art. ll of the Constitution
if nobody demands (Province of North Cotabato vs. GRP,
568 SCRA 410).
right, the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen, and therefore part
of the general public which possesses the right (Legaspi
vs. CSC, 150 SCRA 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 Congress and internal deliberations of the
Supreme Court) [Chavez vs. PCGG, 09
December 1998].
The right to information does not extend to matters
recognizedasprivilegedinformationundertheseparation
of powers, by which the Court meant Presidential
Dats | 43
 Sources: Atty. ELMAN notes;\
conversations, correspondences, and discussions in
closed-door Cabinet 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 policy of full public
disclosure is absolute, there being matters which, albeit of
public concern or public interest, are recognized as
privileged in nature. The types of information which may
be considered privileged have been elucidated in Almonte
v. Vasquez (314 Phil 150), Chavez v. PCGG (360 Phil
133),Chavezv.PublicEstatesAuthority(433 Phil 506)
and most recently in Senate v. Ermita (488 SCRA 1)
where the Court reaffirmed the validity of the doctrine of
executive privilege which includes matters of diplomatic
character and under negotiation and review. Diplomatic
negotiations, therefore, are recognized as 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 privileged does not mean that it will be
considered privileged in all instances. Only after a
consideration of the context in which the claim is made may
it be determined if there is a public interest that calls for the
disclosure of the desired information, strong enough to
overcome its traditionally privileged status.
The documents on the proposed JPEPA as well as the text
which is subject to negotiations and legal review by the
parties fall under the exceptions to the right of access to
information on matters of public concern and policy of
public disclosure. They come within the coverage of
executive privilege. At the time when the Committee was
requesting for copies of such documents, the negotiations
were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change.
Considering the status and nature of such documents then
and now, these are evidently covered by executive privilege
consistent with existing legal provisions and settled
jurisprudence. (Akbayan v. Aquino, 16 July 2008)
| LAW ON PUBLIC OFFICERS
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
Exceptw/writtenpermissionofdepositor,inno
instance shall FCDs be examined, inquired or
lookedintobyanyperson,govtofficial,bureauor
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:Prohibitiononprivateindividuals
Dats | 44
 Sources: Atty. ELMAN notes;\
unlawful for any person to capitalize or exploit his
family or close personal relation xxx by requesting
any present or gift xxx
Sec.5:Prohibitiononcertainrelativesunlawful
for any relative w/in 3 rd degree of the Pres., VP,
Pres. of Senate, Speaker xxx to intervene in any
business, transaction or contract with the
Government.
Sec.6unlawfulforanymemberofCongress
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:Publicofficernotallowedtoresign
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
| LAW ON PUBLIC OFFICERS
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 the purpose of obtaining, directly or
indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage,
or for the purpose of favoring his own interest or
giving undue advantage in favor of or
discriminating against any other interested party.
(g) Entering, on behalf of the Government, into
any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
(h) Director or indirectly having financing or
pecuniary interest in any business, contract or
transaction in connection with which he intervenes
or takes part in his official capacity, or in which he
is prohibited by the 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
transaction or act requiring the approval of a
board, panel or group of which he is a member,
and which exercises discretion in such approval,
even if he votes against the same or does not
participate in the action of the board, committee,
panel or group.
Interest for personal gain shall be presumed
against those public officers responsible for the
approval of manifestly unlawful, inequitable, or
irregular transaction or acts by the board, panel or
group to which they belong.
(j) Knowingly approving or granting any license,
permit, privilege or benefit in favor of any person
not qualified for or not legally entitled to such
license, permit, privilege or advantage, or of a
mere representative or dummy of one who is not
so qualified or entitled.
(k) Divulging valuable information of a confidential
character, acquired by his office or by him on
account 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
Dats | 45
 Sources: Atty. ELMAN notes;\
business in any form with the Government.
Code of Conduct & Ethical Standards for Public
Officials (RA 6713)
Sec. 5: Duties
Sec. 6: Prohibited Acts and Transactions of Public
officials & employees: They shall not
~have financial/material interest in transaction requiring
the approval of their office.
~own, control, manage or accept employment as officer,
employee xxx in any private enterprise regulated or
licensed by their office
unless expressly allowed by law.
Prohibitions: not allowed to -
~engage in the private practice of their profession unless
authorized by Constitution or law, provided such practice
will not conflict or tend to conflict w/their official functions.
~recommend any person to any position in a private
enterprise w/c has a pending official transaction with their
office.
~divulge confidential or classified information not made
available to the public xxx
~solicit or accept any gift, gratuity, favor or entertainment
from any person xxx
RA 6713
Sec. 8: Statements and Disclosure; who shall file;
when to file
Sec.9:DivestmentApublicofficialshallavoid
conflicts of interest at all times. When a conflict of
interest arises, he shall resign from his position in
any private business xxx
| LAW ON PUBLIC OFFICERS
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
Dats | 46
 Sources: Atty. ELMAN notes;\
(2001 Ford Expedition) was acquired through chattel
mortgage,itistheemployeesethicalandlegalobligation
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).
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
| LAW ON PUBLIC OFFICERS
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 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
shouldbeothergroundsthanAriasmere
signatureonavoucherasapreauditto
payment of the purchase of land allegely
overpricedtosustainaconspiracycharge&
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
evidenceofthelattersownnegligence.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 electrical
inspection only on its 1 st 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,
Dats | 47
 Sources: Atty. ELMAN notes;\
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
actualmaliceiswith knowledge that it was false Jesus vs. Guerrero, 598 SCRA 342).
or w/reckless disregard of whether it was false or
not (Banas vs. CA, 325 SCRA 263).
stateimmunityfromsuitdoctrineappliesto Although as a general rule, superior officers cannot be held
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,23Feb.00) willfully employs or retains unfit or improper persons; or (2)
(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 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
alltoocommonproblemsdishonestornegligent The test for actual malice which the Court has adopted in
subordinates, overwork, multiple assignments or positions,
orplainincompetenceissuddenlysweptintoa was false or with reckless disregard of whether it was false
conspiracy conviction simply because he did not personally
examineeverysingledetailbeforeaffixinghissignature petitioner Banas against respondent BIR Regional Director
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
| LAW ON PUBLIC OFFICERS
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
theabsenceofevidenceofthelattersownnegligence(De
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
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).
(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.
defamationandlibelcasesis with knowledge that it
ornot. In the case at bar, the extortion charges filed by
Larininresponsetothetaxevasioncasesfiledbythe
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
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 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

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).
*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.
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).

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
withouttheStatesconsent.

*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 DISABILITIES AND INHIBITIONS OF
Communication. The first cause of action, for injunction,
PUBLIC OFFICERS
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 24. Disabilities and Inhibitions of Public Officers
awardtotheunknownbidderasitwasbeyondLichaucos A. Under the 1987 Constitutiona. Art. Vl Section 13: No
authority. Can Lichauco invoke immunity from suit? 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,
Held: No. State immunity from suit does not apply. When including GOCCs or their subsidiaries, during his term
the performance of official functions by an officer of the without forfeiting his seat. [Incompatible Office]. Neither
government will result in a charge against or financial shall he be appointed to any office which may have been
liability to the government, the complaint must be regarded created or the emoluments thereof increased during the
as a suit against the State itself. The causes of action do term for which he was elected. [Forbidden Office].
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 b. Art. Vl Section 14: No senator or member of the House
of the Notice of Bid and the nullification of the purported of Representatives may personally appear as counsel

Dats | 49
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

before any court of justice or before the Electoral Tribunals, bureaus or offices, including GOCCs or their subsidiaries.
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 [Note that chiefs of bureaus and offices and their assistants
granted by the government, etc., including GOCCs, or its are not included among those officials under par. 1 above.
subsidiary, during his term of office. He shall not intervene The exemption is to give them a chance to engage in some
in any matter before any office of the government for his lawful activity to augment their income. Existing civil service
pecuniary benefit or where he may be called upon to act on service rules provide that government employees are
account of his office. 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
c. Art. lX-B Section 7: No elective official shall be eligible for and employees or bring about any conflict of interest.]
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 While under Sec. 7, Art. lX-B all other appointive officials in
and Mayor of Olongapo City). the civil service are allowed to hold other office or
employment in the government during their tenure when
Unless otherwise allowed by law or by the primary
such is allowed by law or by the primary functions of their
functions of his position, no appointive official shall hold any
positions, members of the Cabinet, their deputies and
other office or employment in the government or any
assistants may do so only when expressly authorized by
subdivision, agency or instrumentality thereof, including
the Constitution itself. In other words, Sec.7, Art. lX-B is
GOCCs or their subsidiaries.
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
Case: For accepting employment as a member of the
the President, Vice President, Cabinet members, their
PLEB of Quezon City while concurrently employed as
deputies and assistants (National Amnesty Commission
Legal Officer V of the Manila Urban Settlement Office, in
vs. COA, 437 SCRA 655). Specifically identified by the
violation of Art. lX-B, Sec. 7, the Administrative Code of
Court as excluded from the scope of the prohibition are
1987 and the Local Government Code, which in turn
public officers who merely have the rank of secretary,
contravenehisAttorneysOathandCodeofProfessional
undersecretary or assistant secretary ( Civil Liberties
Responsibility; and by engaging in the illegal practice of
Union vs. Executive Secretary). Section 13, Article VII of
law, respondent Cesar Fajardo was suspended for six
the Constitution is not applicable to the PCGG Chairman
months from the practice of law by the Supreme Court
nortotheCPLCpositionsheldbyElmaasneitherof
(Lorenzana vs. Fajardo, 462 SCRA 1).The practice of law
them is a secretary, undersecretary nor an assistant
by government lawyers, to fall within the prohibition of
secretary, even if the former may have the rank as the latter
statutes has been interpreted as customarily habitually
positions. Despite the non-applicability of Sec. 13, Art. VII
holdingonesselfouttothepublic,asalawyerand
to respondent Elma, he remains covered by the general
demanding payment for such services (ibid). However,
prohibition under Sec. 7, Art. IX-B and his appointment
Fajardosappointmentasamemberofthe Lupong
must still comply with with the compatibility standard (
Tagapamayapa of Barangay Novaliches Proper in Quezon
Public Interest Center Inc. vs. Elma, 494 SCRA 62).
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
The prohibition against holding dual or multiple offices or
honoraria as a Lupon member since the LGC authorizes
employment under Art. Vll Sec. 13 must not however be
Lupon members to receive honoraria and other
construed as applying to posts occupied by the Executive
emoluments (ibid).
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
d. Art. Vll Section 13: The President, Vice President, the
is that these posts do not comprise "any other office" within
members of the Cabinet and their deputies or assistants
the contemplation of the constitutional prohibition but are
shall not, unless otherwise provided in the Constitution,
properly an imposition of additional duties and functions on
hold any other office or employment during their tenure,
said officials (Civil Liberties Union vs. Executive Secretary,
directly or indirectly practice any other profession,
22 February 1991). If the functions required to be
participate in any business, or be financially interested in
performed are merely incidental, remotely related,
any contract with, or in any franchise, or special privilege
inconsistent, incompatible, or otherwise alien to the primary
granted by the government etc. They shall strictly avoid
functions of a cabinet official, such additional functions
conflict of interest in the conduct of their office.
would fall under the purview of "any other office" prohibited
The spouse or relatives by consanguinity or affinity within by the Constitution (ibid).
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 In the NAC vs. COA case,theNACexofficiomembers
Secretaries, Undersecretaries, chairmen or heads of representatives who were all appointive officials with ranks

Dats | 50
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

below Assistant Secretary are covered by two constitutional principle of res ipsa loquitur finds application and no
prohibitions . First ,theNACexofficiomembers evidentiary hearing is required before she may be
representatives are not exempt from the general prohibition disciplined for professional misconduct. She has been
under Sec. 7, Art lX-B because there is law or afforded the opportunity to be heard through her letter-
administrative order creating a new office or position and query and Manifestation filed before the Court (supra).
authorizing additional compensation therefore. The
representatives assumed their responsibilities not by virtue
of a new appointment but by mere designation from the ex As a rule, government lawyers are not allowed to engage in
officio members who were themselves also designated as the private practice of their profession during their
such. Second , they are also covered by the strict incumbency (Buffe case). By way of exception, a
constitutional prohibition imposed on the President and his government lawyer can engage in the practice of his or her
official family. The laws, rules or prohibitions that cover the profession under the following conditions: first, the private
ex officio member apply with equal force to his practice is authorized by the Constitution or by the law; and
representative. The representative cannot have a better second, the practice will not conflict or tend to conflict with
right than his principal. 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
While petitioners are not among those officers mandated by prohibition is imposed to practice law in connection with
law to sit as members of the National Housing Authority any matter before the office he used to be with (Olazo vs.
(NHA)Board,theyarealternatesofthesaidofficers, Tinga, 637 SCRA 15). Generally, a lawyer who holds a
whoseactsshallbeconsideredtheactsoftheir government office may not be disciplined as a member of
principals.SincetheExecutiveDepartmentSecretaries,as the Bar (thru disbarment or suspension) for misconduct in
ex-officio members of the NHA Board, are prohibited from the discharge of his duties as a government official, except
receivingextra(additional)compensation,whetheritbein when his misconduct also constitutes a violation of his oath
the form of a per diem or an honorarium or an allowance, it as a lawyer. The burden rests on the complainant to
follows that petitioners cannot likewise be entitled to present clear, convincing and satisfactory proof for the
receive such compensation. A contrary rule would give Court to exercise its disciplinary powers. Here, the legal
petitioners a better right than their principals(Dela Cruz vs. service rendered by the respondent was limited only in the
COA, 371 SCRA 157). Since the ex-officio member is preparation of a single document. No evidence of
prohibited from receiving additional compensation for a conflicting interests shown.
position held in an ex-officio capacity, so is his
representative likewise restricted (Bitonio, Jr. vs. COA,
425 SCRA 437). *NEA vs. CSC, 25 January 2010
The designation of NEA personnel as Acting General
Manager and/or Project Supervisor in the cooperatives did
B. Under Sec. 7(b)(2) of the Code of Ethical Standards for
not violate Sec. 7(a) of RA 6713. The prohibition under the
Public Officials and Employees (RA 6713), the private
NEA law against NEA personnel from participating in any
practice of profession is prohibited. Thus, lawyers in
question pertaining to a public service entity where he is
government service cannot handle private cases for they
directly or indirectly interested has the purpose of
are expected to devote themselves full-time to the work of
preventing such personnel from exercising the power of his
their respective offices (Ramos vs. Imbang, 530 SCRA
office for personal pecuniary gain, which may cause grave
759). In this instance, In this instance, respondent, a PAO
damage and prejudice to public interest. In the same
lawyer, disregarded the prohibitions against handling
manner, government officials and employees are prohibited
privatecasesandacceptingattorneysfees,forwhichacts
under Section 7 (a) of RA No. 6713 from having direct or
he was disbarred from the practice of law (ibid). Section
indirect financial or material interest in any transaction
7(b)(2) prohibits public officials and employees from
requiring the approval of their office, since personal interest
engaging in the private practice of their profession during
would be involved. On the other hand, when the NEA
their incumbency. As an exception, she can engage in the
Administrator, subject to the confirmation of the Board,
practice of her profession under the following conditions:
designates pursuant to the NEA Charter (PD 1645) a NEA
first, the private practice is authorized by the Constitution or
personnel to an electric cooperative where a vacancy in a
by the law; and second, the practice will not conflict or tend
certain position occurs and/or when the interest of the
to conflict with her official functions (Query of Atty. Karen
cooperative or the program so requires, such designation is
Buffe, former Clerk of Court, 596 SCRA 379). The
primarily geared to protect the interest of the government
Section 7 prohibitions continue to apply for a one year
and the loans it extended to the cooperative. Thus, any
period after her resignation, retirement or separation from
NEA personnel so designated in the electric cooperative
public office, except for the private practice of profession
cannot be considered as having direct or indirect
(b)(2), which can already be undertaken even within the
interest in the cooperative for its own personal interest, but
one year prohibited period. As an exception to this
only for the purpose of protecting the interest of NEA as the
exception, the one year prohibited period applies with
primary source of funds for the electric cooperative. Thus,
respect to any matter before the office the public officer
the NEA designation of its own employees as Acting
usedtoworkwith.ConsideringAtty.Buffesready
General Manager and/or Project Supervisor to the electric
admission through her query of violating Sec. 7(b)(2), the
cooperatives is to ensure that the affairs of the

Dats | 51
 Sources: Atty. ELMAN notes;\ | LAW ON PUBLIC OFFICERS

cooperatives are being managed properly, so as not to

prejudice petitioner's interest therein. Also, this is to ensure
that 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)

Dats | 52