Law on Public Officers ExplainedPresented by : Atty. Josh Carol T. Ventura

Presentation Outline

Concept of a Public Office Refers to a functional unit of government ( includes a department, bureau and even regional offices)As a position (refers to any position occupied or held by individual persons)

What is a Public Office?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 appointing 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. Fernandez v. Sto. Tomas, G.R. No. 116418, March 7, 1995].

Some Constitutional Provisions re Public Office/rThe Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. ( Sec. 1, Art II)The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by laws. (Sec. 26, Art, II, 1987 Const);

Some Constitutional Provisions re Public Office/rThe State shall maintain honesty and integrity in the public service and take positive steps and effective measures against graft and corruption (Sec. 27, Art II, supra.); 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 (Sec. 1, Art XI)

Constitutional Provisions re Public Office/rA public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. (Sec. 17, Art. XI)

Constitutional Provisions re Public Office/rPublic officers and employees owe the State and the Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. (Sec. 18, Art. XI )

Purpose and Nature of Public Office A public office is created to effect the end for which government has been instituted which is the common good; not profit, honor, or private interest of any person, family or class of persons (63 A Am Jur 2d 667)Nature : Public office is a public trust. (Art. XI, Sec. 1, 1987 Const. It is a responsibility and not a right. (Morfe v. Mutuc)

Elements of a Public OfficeCreated by law or by authority of law;Possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public; Powers conferred and duties imposed must be defined, directly or impliedly, by the legislature or by legislative authority;

Elements of a Public OfficeDuties must be performed independently and without the control of a superior power other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior office or body; and Must have permanence or continuity

Characteristics of a Public Office The characteristics of a public office are: it is a public trust; it is not a vested right; it is not property; and it cannot be inherited.

Public Officers as Defined by Different Laws 1987 Administrative CodeArticle 203 of the Revised Penal Code there is a distinction between a public officer and an employee or clerk the former exercising discretion in the performance of public functionsEmployee does not exercise discretionary functions

any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches, public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Public Officers as Defined by Different Laws RA 3019 Anti Graft and Corrupt Practices Act (Sec. 2) RA 6713- Code of Conduct and Ethical Standards for Public Officers (Sec. 3) the term "public officer" includes "elective and appointive officials and employees, permanent or temporary, whether in the classified, unclassified or exempt service, receiving compensation, even nominal, from the government

This has been changed already by PD 807 (The Law Reorganizing the Civil Service Commission) to career and non-career service.

includes elective or appointive officials whether permanent or temporary, career or non career, including military or police personnel whether or not they receive compensation regardless of amount.

Public Officers as Defined under the Crime of Plunder (RA 7080 Sec. 2) an act defining crime of plunder any person holding any public office in government by virtue of an appointment, election or contract. The reason behind the law on the crime of plunder is described in the case of Estrada vs. Sandiganbayan (GR NO. 148965, Feb. 26, 2002)

Public Officers as Defined under the Crime of Plunder (RA 7080 Sec. 2) Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time that may involve so many persons here and abroad, and which touch so many states and territorial units. Thus the need, to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those similar inclination to succumb to the corrupting influence of powerXxxxxxxxx.

Elements of Plunder The offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons ;That he amassed, accumulated or acquired ill-gotten wealth, through a combination or series of the following overt or criminal acts described in Sec. 1 (d) of RA 7080 as amended

Elements of Plunder That the aggregate amount or total value of the ill gotten wealth amassed or accumulated or acquired is at least P 50,000,000.

Elements of Plunder Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Sec. 2 (2) hereof acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes.

How Ill Gotten Wealth is Acquired ?Through mis-appropriation, conversion, mis-use or malversation of public funds or raids on the public treasuryBy receiving directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form or pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned

How Ill Gotten Wealth is Acquired?By the illegal or fraudulent conveyance or disposition of asset belonging to the National Government of any of its subdivision, agencies, instrumentalities or GOCCs and their subsidiariesBy obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promises of future employment in any business enterprise or undertaking

How Ill Gotten Wealth is Acquired?By establishing agricultural, industrial, commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests.By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the ROP.

Creation of Public Office Methods of Organizing Offices

Modes of Acquiring Title to Public OfficeElectionAppointmentAt times by contractSuccession or other modes allowed by law

Classification of Public Officers

The De Facto DoctrineIt is the principle which holds that a person, who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void.

When is a Person a De Facto Officer?Where the duties of the office are exercised under any of the following circumstances:Without a known appointment or election, but under such circumstances ofreputation or acquiescenceas were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; orUnder color of a known and valid appointment or election, but where the officer hasfailed to conform to some precedent requirement or condition(e.g., taking an oath or giving a bond);

When is a Person a De Facto Officer?Under color of a known election or appointment, void because: a)the officer was not eligible; b)there was a want of power in the electing or appointing body; (c)there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public.Under color of an election or an appointment by or pursuant to apublic, unconstitutional law, before the same is adjudged to be such. Note: Here, what is unconstitutional isnotthe act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby)

Elements of a de facto officershipDe jure officeColor of right or general acquiescence by the public; Actual physical possession of the office in good faithNote: This is not absolutely true. An intruder / usurper may ripen into a de facto officer.

Distinction between a de jure from that of a de facto officer

Distinction between a de jure from that of a de facto officer

Distinction between a de facto officer and an intruder

Legal Effects of Acts of De Facto OfficersAs regards the officers themselves GENERAL RULE:A party suing or defending in his own right as a public officer must show that he is an officerde jure. It is not sufficient that he be merely ade factoofficer.As regards the public and third persons GENERAL RULE:The acts of ade factoofficer are valid as to third persons and the public until his title to office is adjudged insufficient.

Official Acts of De Facto Officers not subject to collateral attack

RULE: The title of a de facto officer and the validity of his actscannotbecollaterallyquestioned in proceedings to which he is not a party, or which were not instituted to determine the very question.REMEDY: Quo warranto proceedingsWho may file: (1)The person who claims to be entitled to the office;(2)The Republic of the Philippines, represented by(a) the Solicitor-General; or(b) the public prosecutor

II. Eligibility and QualificationEligibility, which is the term usually used in reference to the Civil Service Law, refersto the endowment / requirement / accomplishment that fits one for a public office.Qualificationgenerally refers to the endowment act which a person must do before he can occupy a public office.

Power of Congress to Prescribe QualificationsGENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office, subject to the following restrictions:

Congress cannot exceed its constitutional powers;Congress cannot impose conditions of eligibility inconsistent with constitutional provisions;The qualification must be germane to the position ("reasonable relation" rule);

Power of Congress to Prescribe QualificationsCongress cannot prescribe qualifications so detailed as to practically amount to making an appointment. (Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power.);Where the Constitution establishes specific eligibility requirements for a particularconstitutional office, the constitutional criteria areexclusive, and Congress cannot add to themexceptif the Constitution expressly or impliedly gives the power to set qualifications.

When Must the Qualifications be Possessed?Where the time is specified by the Constitution or law: At the time specifiedWhere the Constitution or law is silent :

There are 2 views:qualification must be at the time of commencement of term or induction into office;qualification / eligibility must exist at the time of the election or appointment Eligibility is acontinuingnature, and must exist throughout the holding of the public office. Once the qualifications are lost, then the public officer forfeits the office.

Qualifications Usually PrescribedA.President (Sec. 2, Art. VI, Constitution) Vice President (Sec. 3, Art. VII, Constitution)

Natural-born citizen40 years old on day of electionresident of the Philippines for at least 10 yrs immediately preceding election day

Qualifications Usually PrescribedB. Senator (Sec. 3, Art. VI, Constitution)

Natural-born citizen35 years old on day of electionable to read and writeregistered voterresident of the Philippines for not less than two years immediately preceding election day

Qualifications Usually PrescribedC. Congressmen (Sec. 6, Art. VI, Constitution)Natural-born citizen25 years old on day of electionable to read and writeregistered voter in district in which he shall be electedresident thereof for not less than one year immediately preceding election day

Qualifications Usually PrescribedD. Supreme Court JusticeNatural born citizenat least 40 years old5 years or more a judge or engaged in law practiceof proven CIPI (competence, integrity, probity and independence)

Qualifications Usually PrescribedE. Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution)

Natural-born citizen35 years old at time of appointmentproven capacity for public administrationnot a candidate for any elective position in elections immediately preceding appointment

Qualifications Usually PrescribedF. COMELEC Comm. (Sec. 1[1], Art. IXC)Natural-born citizen35 years old at time of appointmentcollege degree holdernot a candidate for elective position in election immediately preceding appointmentchairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years (See Cayetano v. Monsod)

Qualifications Usually PrescribedG. COA Commissioners

Natural-born citizen35 years old at time of appointmentCPA with >10 year of auditing experience orBar member engaged in practice of law for at least 10 yearsNot have been candidates for elective position in elections immediately preceding appointment

What is an Appointment?It is the selection by the authority vested with power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. (Sevilla vs. CA, G.R. No. 88498, June 8,1992).

Distinction between a designation from an appointment

Nature of Appointing Authority The power to appoint is intrinsically an executive act involving the exercise of discretion. (Concepcion v. Paredes)The power and prerogative to a vacant position in the civil service is lodged with the appointing authority.

Presidential Appointments that needs the confirmation of the Commission on AppointmentsHeads of the executive departments (Art. VII, Sec. 16, 1987 Const.);Ambassadors

Other public ministers and consuls

Officers of the armed forces from the rank or colonel or naval captain

Other officers whose appointments are vested in him by the Constitution (ibid), including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).

Presidential Appointments that does not need the approval of the Commission on AppointmentsAll other officers of the government whose appointments are not otherwise provided for by law;Those whom he may be authorized by law to appoint;Members of the Supreme Court; Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.)

Judges of lower courts; Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.)Ombudsman and his deputiesNote: To be appointed from a list of at least 6 nominees prepared by the Judicial and Bar Council, and from a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

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

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

Kinds of Appointment Issued by the PresidentClassification of appointments into regular and ad interim can used only when referring to the four (4) categories of appointments made by President of the Philippines in Sec. 16, Art. VIII of the Constitution, which require confirmation by the Commission on Appointments,

Kinds of Appointment Issued by the President An ad-interim appointment is a permanent appointment, and its being subject to confirmation does not a its permanent character [Pamantasan ng Lungsod ng Maynila v. Intermedl Appellate Court; 140 SCRA 22].

Kinds of Appointment Issued by the PresidentAd interim appointment. - It is a permanent one, subject to the confirmation of the Commission on Appointments. Acting appointment. - It is merely temporary. It is good until a permanent appointment is issued. (PLM vs. lAC, G.R. No. 65439, November 18, 1988).

Steps in the Appointment Process a) For regular appointments:

In the case of ad interim appointments, the nomination, issuance of the appointment and acceptance the appointee precede the confirmation by the Commission on Appointments.

Steps in the Appointment Process a) For appointments which do not require confirmation:

Where the appointment is to the Career serviceAttestation by the Civil Service Commission is required. An appointment to career service of the Civil Service is not deemed complete until attestation/approval by the Civil Service Commission. The Omnibus Rules Implementing Book V, E.O. 292, provides that an appointment not submitted to the Civil Service Commission within 30 days from issuance (which shall be the date appearing the face of the appointment) shall be ineffective.

Where the appointment is to the Career serviceWithout the favorable certificate or approval of the Civil Service Commission, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can still be revoked or withdrawn by the appointing authority. Until the appointment shall have been a completed act, it would likewise be precipitate to invoke security tenure

Limitations on the Presidents Power to AppointAppointments extended by an Acting President shall remain effective unless revoked by the elected President within 90 days from his assumption or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)Midnight appointmentsA President or Acting President is prohibited from making appointments 2 months immediately before the next presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Constitution)

Limitations on the Presidents Power to AppointException: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The Civil Service Commission and the Appointments in the Civil ServiceThe Concept of Qualification StandardsExpress theminimum requirementsfor a class of positions in terms of education , training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, EO 292)

A statement of the minimum qualifications of a position which shall include education, experience, training, civil service eligibility, andphysical characteristics and personality traitsrequired by the job. (Sec. 2, Rule IV, Omnibus Rules)

Qualification StandardsWith respect to a particular position, such qualification standards shall serve as thebasis for the determination by the appointing authority of the degree of qualificationsof an officer or employee (ibid);

Shall be used asbasis for civil service examinationsfor positions in the career service, asguides in appointment and other personnel actions, in theadjudication of protested appointments, indetermining training needs, and asaid in the inspection and auditof the agencies' personnel work programs (ibid);

Qualification StandardsShall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service (ibid);It shall be the responsibility of the departments and agencies to establish, administer and maintain the qualification standards on a continuing basis as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules)

Qualification StandardsTheir establishment, administration, and maintenance shall be the responsibility of thedepartment / agency, with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office (ibid);Whenever necessary, the CSC shall providetechnical assistanceto departments and agencies in the development of their qualification standards. (Sec. 5, Rule IV, Omnibus Rules)Shall be established for all positions in the1stand 2ndlevels(Sec. 1, Rule IV, Omnibus Rules);

Political Qualifications for an OfficeGENERAL RULE:Political qualifications are not required for public office.Exceptions :Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.);Party-list representation;Commission on AppointmentsVacancies in the Sanggunian (Sec. 45, Local Government Code)

Political Qualifications for an OfficeProperty QualificationsIn the cases ofMaquera v. BorraandAurea v. COMELEC, the Supreme Court struck down R.A. 4421 which required candidates for national, provincial, city and municipal offices to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a candidate, which shall be forfeited in favor of the govt. concerned if the candidate fails to obtain at least 10% of the votes cast.

Political Qualifications for an OfficeThe Supreme Court held that property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same. The Court reasoned out that:

Political Qualifications for an Office "Sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted shall not be dependent upon the wealth of the individual concerned. Social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office."

Other Important Principles Aliens not eligible to public officeIf public officer loses his qualifications, he should be removed.Effect of pardon: A pardon shallnotwork the restoration of the right to hold public officer. (Art. 36, Revised Penal Code)

Effects of pardon upon the disqualification to hold public officerExceptions:(1) Where such right to hold public office is expressly restored by the terms of the pardon (Art. 36, RPC);

(2) When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. Chairman, COA)

Rules governing effects of pardon(1) A public official who has been convicted of a crime but has been pardoned must secure a reappointment before he / she can reassume his / her former position. (Monsanto v. Factoran)Note: Acquittal is the only ground for automatic reinstatement of a public officer to his / her former position.

Rules governing effects of pardon(2) Pardon doesnotexempt the culprit from payment of the civil indemnity imposed upon him / her by the sentence. (Art. 36, par. 2, RPC)(3) A convicted public official who has been pardoned isnotentitled to backpay and other emoluments due to him during the period of his suspension pendente lite. (Monsanto v. Factoran)

Coverage of the Civil Service Civil service shall embrace all branches, subdivisions, instrumentalities, and agencies of the government, including GOCC with original charters. GOCCs which are organized under the Corporation Code or by corporations with original charters fall outside the coverage of the civil service law.

Characteristics of Career Service vs. Non Career Service

Three level positions in the Career Service

Appointive Positions in the Civil Service and CES

Appointive Positions in the Civil Servicethe officer lays down principal fundamental guidelines or rules; or formulates a method of action for government or any of its subdivisions. E.g., department headnot only confidence in the aptitude the appointee for the duties of the office but primarily close intimacy which ensure freedom of intercourse without embarrassmentwhich requires possession of technical skill or training in a supreme or superior degree.

Kinds of Appointments under the Civil Service (Admin Code of 1987)Permanent appointment - issued to a person who has met the requirements of the position to which appointment is made including the appropriate eligibilityTemporary appointment - in the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements except the appropriate eligibility.

Kinds of Appointments under the Civil Service (Admin Code of 1987) Provided, that such temporary appointment shall not exceed twelve (12) months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available The Admin Code abolished provisional appointmentAppointment of a coterminous employee is characterized by confidentiality or subject to his pleasure or co-existent with his tenure

Kinds of Coterminous Employment

Requisites of a Valid Appointment- AQVAA Appointing Authority be vested with the authority to made the appointment at the time the appointment is made; Appointee is qualified he has all the qualifications and the appropriate eligibility; he has none of the disqualifications;The position is vacant

Requisites of a Valid Appointment Appointment has been approved by the Civil Service Commission Acceptance of the appointment oath and discharge of the functions of his office. The different branches of Government may make the necessary appointments in their respective offices. Same is true for the national and local government.

When does an appointment take effect?Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).

When is an appointment considered complete?GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration.

Qualification:Where the assent, confirmation, or approval of some other officer or body is needed before the appointment may be issue and be deemed complete.

When is an appointment considered complete?Exceptions: (1) When the appointment is an absolute nullity (Mitra v. Subido); (2) When there is fraud on the part of the appointee (Mitra v. Subido); (3) Midnight appointmentsA completed appointment vests a legal right. Itcannotbe taken away EXCEPTfor cause, andwith previous notice and hearing(due process).

Other Considerations made by the Appointing AuthorityPerformanceDegree of educationWork experienceTraining Seniority andWhether or not the applicant enjoys the confidence and trust of the appointing power.Basically, appointment requires the exercise of discretion and is therefore a political question

What is the Next In Rank Rule? The person next in rank shall be given preference in promotion when the position immediately above his vacated. However, the concept of next-in-rank does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. The appointing authority has the discretion to fill the vacancy under the next-in-rank rule or by any other method authorized by law, e.g., by transfer.

Assumption and Term or Tenure of OfficeAppointment and qualification to office are separate and distinct things. Appointment is the act of being designated to a public office by the appointing authority. Qualification is the act of signifying one's acceptance of the appointive position. This generally consists of the taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem)

Acceptance of an Appointment Lacson v. RomeroThe appointment to a government post involves several steps: (1) the President nominates; (b) the Commission on Appointments confirms the appointment; and (c) the appointee accepts the appointment by his assumption of office. The first 2 steps are mere offers to the post but the last step rests solely with the appointee who may or may not accept the appointment.

No one can be compelled to accept an appointment

Acceptance of an AppointmentBorromeo v. MarianoA judge may not be made a judge of another district without his consent. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of the appointee. There is no power which can compel a man to accept the office.

Effect of Failure to Qualify Failure to qualify is deemed evidence of refusal of the office.It is a ground for removal:If qualification is a condition precedent: Failure to qualifyipso factodeemed rejection of the officeIfnotcondition precedent:Failure isnotipso factorejection

Effect of Failure to QualifyJustifiable reasons for delay in qualifying include sickness, accident, and other fortuitous events that excuse delay.

The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume office)within 6 months from proclamation. Otherwise, the position will be deemed vacant.

Effect of Failure to Qualify Exception: If the non-assumption of office is due to a cause beyond his control.

Qualification is significant because it designates when security of tenure begins.

Oath of OfficeAn oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says.Although the law usually requires the taking of an oath, it is not indispensable. It is a mere incident to the office and constitutes no part of the office itself.

Oath of OfficeHowever, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution of their office. Such oath-taking is mandatory.

Who are authorized to administer oaths? Notaries public; Judges; Clerks of court; Secretary of House / Senate; Secretary of Exec. Departments; Bureau Directors; Register of Deeds;

Who are authorized to administer oaths?Provincial governors; City mayors; Municipal mayors; Any other officer in the service of the government of the Philippines whose appointment is vested in the President; Any other officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath

Persons obliged to administer oaths in all instances and not just in matters of official business

Notaries public municipal judges Clerks of courtTime of Taking the Oath of Office A public officer must take his oath of office before entering upon the discharge of his duties.

Requalification

If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition precedents before assuming office. The oath and other qualifications made prior to assumption of his previous office willnotbe valid for subsequent terms of office.

Protest to Appointment A protest is a mode of action that may be availed of by the aggrieved party to contest the appointment of another to a particular position The protest must be for cause For cause means for reasons which the law and sound public policy publicly recognized as sufficient warrant for removal, that is, legal cause and not merely for causes determined by the appointing authority

Protest to Appointment Cause must be based on the following grounds: appointee is not qualified that the appointee is not the next in rank in the case of appointment by transfer, reinstatement or by original appointment, that the protestant is not satisfied with the written special reason or reasons given by the appointing authority

Flow of Protest Cases

Revocation or Recall of AppointmentGen Rule : An appointment once made is irrevocable and not subject to considerationFor appointments in the civil service, revocation to be successful must be made before the appointment is completed or before approval or attestation of the Civil Service Commission After completion of appointment, and appointee has assumed the position, he acquires a legal title

Grounds of the CSC in recalling an appointmentNon-compliance with the procedures/criteria provided in the agencys merit promotion plan;Failure to pass through the agencys selection/promotion board; Violation of the existing collective agreement between management and employees relative to promotion Violation of other existing civil service law, rules and regulations

Giving of Bonds Persons required to give bond Accountable public officers or those to whom are entrusted the collection and custody of public money Public ministerial officers whose actions may affect the rights and interests of individuals. The bond is in the nature of an indemnity bond rather than a penal or forfeiture bond.

Giving of BondsThe bond is also an obligation binding the sureties to make good the officers default. It is required not for the benefit of the office holder, but for the protection of the public interest and is designed to indemnify those suffering loss or injury by reason of misconduct or neglect in office.

Effect of Failure to Give Bond within the prescribed period Ifnotcondition precedent: Failure to give bond merely constitutes a ground for forfeiture of the office; it isnotforfeiture of the officeipso facto.

IFcondition precedent: Failure to give bond within the prescribed period renders the office vacant.

Term and Tenure of Office Term of Office Tenure of Office Fixed and definite period of time during which the officer may claim to hold office as of right 3 kinds of term : fixed by the constitution or law during good behavior until retirement age at the pleasure of appointing authority Enjoys security of tenure and can be removed only for cause Term of office not affected by the hold-over

Period during which the incumbent actually holds the office. It may be shorter than the term Does not enjoy security of employment

Power of the Legislature to Fix and Change the Term of OfficeRules :Where the term is fixed by the Constitution : Congress has no power to alter the termHowever, such term of office can be shortened or extendedby the vote of the peopleratifying a constitutional amendment.Where the term isnotfixed:Congress may fix the terms of officers other than those provided for in the Const.

Power of the Legislature to Fix and Change the Term of Office Congress has the power to change the tenure of officers holding offices created by it. However, if the term is lengthened and made to apply to the incumbents, this could be tantamount to a legislative appointment which is null and void.

When Term of Office Dependent upon "Pleasure of the President"Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the President. (Alba v. Evangelista)Where the office is held at the pleasure of the appointing power and such appointing power can exercise the power of removal at his mere discretion, the public officer may be removed without notice or hearing. (Alba v. Evangelista)

No Vested Interest in Term of Office

Public office is a privilege revocable by the sovereignty at will. An incumbent cannot validly object to the alteration of his term since he has no vested right in his office. (Greenshow v. U.S.) During the hold-over, a public officer is not a de facto officer but a de jure officerArticle 237, RPC penalizes any public officer who shall continue to exercise the duties and powers of his office beyond the period provided by law.

Hold Over Concept A public officer whose term has expired or services have been terminated is allowed to continue holding his office until his successor is appointed or chosen and had qualified.Purpose of the Hold-Over RulePublic interest. It is to prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office.

Holding Over Rules Where the law provides for it:The office does notbecome vacant upon the expiration of the term if there is no successor elected and qualified to assume it. Incumbent will hold-over even if beyond the term fixed by law.Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over.Where the Constitution limits the term of a public officer and doesnotprovide for hold-over: Hold-over is not permitted.

Quo Warranto Proceedings A proceeding to determine the right of a person to the use or enjoyment of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege. Quo warranto in appointive positions what is determined is the legality of the appointment; which can be filed by one claiming the office The court determines who has been legally appointed and can and ought to declare who is entitled to the office

Quo Warranto Proceedings Quo warranto in elective positions what is determined is the eligibility or disloyalty of the candidate-elect which can be filed by any voterWhen the person elected is ineligible, courts cannot declare that the candidate occupying the second place has been elected, even if he were eligible. The law only authorizes the courts to declare one who has the plurality of votes and with certificate of candidacy

Quo Warranto Proceedings A petition for quo warranto and mandamus affecting titles to office must be filed within one (1 ) year from the date petitioner is ousted from his position and not from the time respondent began the discharge of the duties of his office may be filed by the Office of the Solicitor General

Compensation, Benefits and Privileges One of the rights of a public officer is the right to salary Basic Requirements for Payment of Salaries and Wages existence of a legally created position with fixed compensation attached to the position issuance of a valid appointment rendition of service being paid payment to the right person

General Rules on Compensation A public officer is not entitled to compensation for services rendered under anunconstitutional statuteor provision thereof. Exception: If some other statute provides otherwise Ifno compensation is fixed by law, the public officer is assumed to have accepted the office to serve gratuitously.

General Rules on Compensation After services have been rendered by a public officer, the compensation thus earned cannot be taken away by a subsequent law. However, he cannot recover salary for a period during which he performed no services.

General Rules on Compensation One without legal title to office either by lawful appointment or election and qualification is not entitled to recover salary or compensation attached to the office. One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the office.

General Rules on Compensation

Compensation is NOT an element of public office. It is not part of the office but merely incident thereto. It is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the services are to be rendered gratuitously.

General Rules on Compensation Salary, Wages, and Per Diems Defined and DistinguishedSalary:time-boundWages: service-boundPer Diem:allowance for days actually spent for special duties

Salary of Public Officer Not Subject to Attachment

salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid by him, and appropriated for the payment of his debts. The salary or emoluments in public office are not considered the proper subject of barter and sale; future or unearned salaries cannot also be assigned

Salary of Public Officer Not Subject to Attachment

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 because the sovereign State cannot be sued in its own courts except by express authorization by statute. Until paid over by the agent of the government to the person entitled to receive it, public funds cannot in any legal sense be part of his effects subject to attachment by legal process. (Director of Commerce and Industry v. Concepcion)

Additional or Double Compensation Prohibited Additional Compensation Double Compensation There is only 1 position but with additional functions and compensation for the additional function

There are 2 positions and with the public officer getting emoluments for both position Commutable Allowances Reimbursable Allowances . Given by virtue of a position whether or not he incurred the expenses for which the allowance is given There is a conclusive presumption that it was spent. The public officer must present a receipt or certification under oath that such amount was spent in order that the public officer may recover the money spent

Rules on other Benefits Pensions / gratuitiesare not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-B, 1987 Constitution)

By its very nature, abonuspartakes of an additional remuneration or compensation. (Peralta v. Auditor General)Anallowance for expenses incident to the discharge of the duties of officeis not an increase of salary, a perquisite, nor an emolument of office. (Peralta v. Auditor-General)

Can one recover his salary during the period of suspension?If preventivelysuspended: NO, he cannot recover salary. BUT: If he is subsequentlyexonerated, hecanrecover salary for the period of his preventive suspension.

If he was given penalty of removalfrom office, but wascompletely exonerated upon appeal . YES, he can recover because he was completely exonerated.

Can one recover his salary during the period of suspension?If he was given penalty of removal from office, but penalty was commuted from removal to mere suspension. No because he was found guilty, although the penalty was reduced. If suspension/removal from office was unjustified. Yes

III. Code of Conduct and Disabilities of Public Officers Norms of Conduct Standards of Conduct (Section IV, RA 6713) Commitment to public interest Professionalism Justness and Sincerity Political neutrality Responsiveness to the public Nationalism and patriotism Commitment to Democracy Simple Living

Scope of Powers and Authority of Public Officers The authority of public officers consists of those powers which are: Expressly conferred upon him by the act appointing him; Expressly annexed to the office by law; and Attached to the office by common law as incidents to it.

Doctrine of Necessary Implication Under this doctrine, all powers necessary for the effective exercise of the express powers are deemed impliedly granted.

Source of government authority : the people sovereignty

The duration of the authority of public officers is limited to that term during which he is, by law, invested with the rights and duties of the office.

Ministerial vs. Discretionary PowersMinisterial is one the discharge of which by the officer concerned is imperative and requires neither judgment nor discretionDiscretionary is one imposed by law upon a public officer wherein the officer has the right to decide how and when the duty shall be performed

General constitutional duties of public officers To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty and efficiency; to act with patriotism and justice; and to lead modest lives [Sec. 1, Art. XI). To submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often thereafter as may be required by law [Sec. 17, Art. XI]. To owe the State and the Constitution allegiance at all times [Sec. 18, Art. XI)

Duties of Public Officers Under RA 6713To act promptly - public officers to respond within 15 working days; submit annual report within 45 working days from end of the year To make public records accessible to the public Art. III- Sec 7 of the Constitution To make SALN within 30 days after assumption of office; on or before April 30 of every year; within 30 days after separation To make divestment to avoid conflict of interest

Duties of Public Officers Under RA 6713When a conflict of interest arises, he shall resign from his position within 30 days from assumption of office or divest himself within 60 days from such assumptionIf business interest will not result in a conflict of interest, divestment is not necessary Government lawyers to abide by the Canons of Professional Responsibility

Disabilities or RestrictionsWhere by law, an elective officer is disqualified to hold another position or is subject to certain liabilities, the same holds true to an appointive officer.Prohibited acts and transactions Financial and material interest in a transaction which requires approval of the office Outside employment and other activities related thereto own, manage or accept employment in a private enterprise licensed by office; engaged in private practice of profession; recommend a person to a private enterprise

Other Prohibitions Constitutional prohibitions Prohibition against solicitation of giftsProhibition against partisan political activitiesProhibition against engaging in strike although employees may organize into an association and come up with a collective negotiation agreement

Other Prohibitions Prohibition against holding two or more positions Restrictions against engaging in the practice of law- absolutely prohibited are judges and employees of the superior courts, or office of the Solicitor General and other government offices, the Pres, Vice President, members of the cabinet and their deputies and assistants;

Other Prohibitions Using public office to promote private interest Engaging in private business Accepting certain employment Limitation on Laborers - Shall not be assigned to perform clerical duties Detail or reassignment - No detail or reassignment shall be made within 3 months before any election without the approval of the Comelec.

Other Prohibitions Nepotism - All appointments made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are prohibited. The prohibition covers all appointments, including designations, in the national, city and municipal governments, or in any branch or instrumentality thereof, including government owned or controlled corporations with original charters.(Laurel v. Civil Service Commission, 203 SCRA 195)

Nepotism Under the Omnibus Rules Implementing E.O. 292, the original appointment - and all subsequent personnel actions, such as promotion, transfer, reinstatement, etc., must conform with the rule against nepotism; otherwise, the prohibition would be rendered "meaningless and toothless" [Debulgado v. Civil Service Commission, G.R. No. 111471, September 26, 1994].

Nepotism "Relative" is to be understood to mean those related within the third civil degree by consanguinity or affinity. Exempt are persons employed in a confidential capacity; teachers; physicians; and members of the Armed Forces of the Philippines, provided that in each particular instance full report of such appointment shall be made to the Commission.

Security of Tenure The Constitution states that no officer or employee of the Civil Service shall be removed or suspended except for cause provided by lawsecurity of tenure is a basic feature of the civil service system just like the merit and fitness rule it attaches, once the appointment is issued and completed this rule applies to both career and non career positions except primarily confidential, coterminus and cabinet secretaries

Other Personnel Actions Promotion is a movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. next in rank rule automatic reversion rule

Other Personnel Actions Automatic reversion rule - Sec. 13 of the Omnibus Rules Implementing Book V, EO. 292, states: "All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments."

Automatic Reversion RuleFor this rule to apply, the following must concur: there must be a series of promotions;all promotional appointments are simultaneously submitted to the Commission for approval; and the Commission disapproves the appointment of a person to a higher position [Divinagracia v. SID. Tomas, G.R. No. 110954, May 31, 1995].

Other Personnel Actions Appointment through Certification is issued to a person who has been selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles, and who meets all the qualification prescribed for the position.Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service. Under current Civil Service and regulations, transfer may be imposed as an administrative penalty

Other Personnel Actions Reinstatement - (new appointment ) Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. Detail 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 and scientific positions. It is temporary in nature (Republic; v. Court of Appeals. 182 SCRA 721].

Other Personnel Actions Reassignment - An employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary. Reassignment is recognized management prerogative vested in the Civil Service Commission ; does not constitute removal without cause.

Disciplinary Actions (By the CSC)Has both original and appellate jurisdiction to hear and decide administrative cases Original jurisdiction for complaints coming from private citizensAppellate jurisdiction for decisions made by other disciplining authorities for those involving penalties of suspension for more than 30 days or fine in an amount not exceeding 30 days salary, demotion in rank or salary or transfer or removal or dismissal from office

Disciplinary Actions (By the CSC)Grounds for discipline malfeasance, misfeasance, or nonfeasanceMalfeasance means the doing, through ignorance, inattention or malice, of an act which he had no legal right to perform Misfeasance is the failure to use that degree of care, skill and diligence required in the performance of official duty Nonfeasance is the neglect or refusal to perform an act which is the officer's legal obligation to perform

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