PUBLIC

OFFICERS
PUBLIC OFFICE AND OFFICERS

(cf.
Barney v. Hawkins)
Public Officer v. Public Employment
Public employment is broader than
public office. All public office is public
employment, but not all public employment is
a public office.

Public Office
Definition
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.
(Mechem)
Purpose and Nature
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)

Generally, a position is a public

office when it is created by law, with duties
cast upon the incumbent which involve the
exercise of some portion of the sovereign
power, and in the performance of which the
public is concerned. Public employment is a
position which lacks one or more of the
foregoing elements.
Public Office v. Public Contract
Public Office
Creation

Incident of sovereignty

Object

Carrying out of sovereign as

well
as
governmental
functions
affecting
even
persons not bound by the
contract

Subject Matter

Tenure, duration, continuity

Scope

Duties that are generally

continuing and permanent

Where duties are

defined

The law

Nature:
(1) A public office is a public trust. (Art.
XI, Sec. 1, 1987 Consti)
(2) It is a responsibility and not a
right. (Morfe v. Mutuc)
Elements
(1) Must be created either by (a) the
Constitution, (b) the Legislature, or (c) a
municipality or other body through authority
conferred by the Legislature;
(2) Must possess a delegation of a portion
of the sovereign power of
government, to be exercised for the benefit
of the public;

No vested right to public office

GENERAL RULE:

(3) The powers conferred and the duties

discharged must be defined, directly or
impliedly by the Legislature or through
legislative authority;
(4) The duties must be performed
independently and without control of a
superior power other than the law;
Exception: If the duties are 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;

A public office, being a

mere
privilege
given
by
the
state, does not
vest any rights in
the holder of the
office. This rule
applies when the
law is clear.

EXCEPTION:

(5) Must have some permanency and

continuity

When the law

is vague,
the
persons holding
of the office is
protected and he
should not be
deprived of his
office.

Segovia v. Noel
Note: This is not to be applied
literally. The Board of Canvassers
is a public office, yet its duties are
only for a limited period of time.

It is a fundamental principle that a

public office cannot be regarded as the
property of the incumbent and that a public
office is not a public contract. Nonetheless,

Act. No. 3107 should be given a prospective

effect in the absence of legislative intent to
the contrary. Although there is a vested right
to an office, which may not be disturbed by
legislation, yet the incumbent has, in a
sense, a right to his office. If that right is to
be taken away by statute, the terms should
be clear.
Agcaoili v. Suguitan
The Supreme Court held that
Agcaoili had not ceased to be a justice of the
peace by operation of Act No. 3107. The
Segovia ruling was reiterated, i.e. Act No.
3107 should be given prospective effect only,
as there was no express statement making
the law applicable retroactively.

(1)
(2)
(3)

by the Constitution
by statute / law
by a tribunal or body to
which the power to create the office has
been delegated

Scope and Extent of Power of legislature

GENERAL RULE:
The creation of a
public office is primarily a
legislative
function.
Exceptions:

(1) where the offices

are created by the

Constitution;
(2)
where

the

Legislature delegates such power.

Public Office not property
A public office is not the property of
the public officer within the provision of the
Constitution against deprivation of property
without due process of law or within an
agreement in a treaty not to impair the
property or rights of private individuals.
Exceptions:
(1)
In quo
warranto
proceedings relating to the question
as to which of 2
persons
is
entitled
to
a
public office
(2) In an action for
recovery of compensation
accruing by virtue of
the public office
Cornejo v. Gabriel
Due process is violated only if an
office is considered property. However, a
public office is not property within the
constitutional guaranties of due process. It
is a public trust or agency. As public officers
are mere agents and not rulers of the
people, no man has a proprietary or
contractual right to an office. Every officer
accepts office pursuant to law and holds
office as a trust for the people whom he
represents.
Abeja v. Tanada
Public office being personal, the
death of a public officer terminates his right
to occupy the contested office and
extinguishes his counterclaim for damages.
His widow and/or heirs cannot be substituted
in the counterclaim suit.
Modes of Creation of Public Office

Delegation of power to create public office

Q: What is the effect where an office is
created pursuant to illegally delegated
powers?
A:
existence.

The office would have no

U.S.T. v. Board of Tax Appeals

The authority given to the President
to "reorganize within one year the different
executive departments, bureaus and other
instrumentalities of the Government" in order
to promote efficiency in the public service is
limited in scope and cannot be extended to
other matters not embraced therein.
Therefore, an executive order depriving the
Courts of First Instance of jurisdiction over
cases involving recovery of taxes illegally
collected is null and void, as Congress alone
has the "power to define, prescribe and
apportion the jurisdiction of the various
courts."
Methods of Organizing offices
(1) Single-head: one head assisted by
subordinates. Swifter decision and
actions but may sometimes be
hastily made.
(2) Board System: collegial body in
formulating polices and implementing
programs. Mature studies and
deliberations but may be slow in
responding to issues and problems.
Modification and Abolition
GENERAL RULE:

The power to create

an office includes
the
power
to
modify or abolish

it. (i.e., this is

generally
a
legislative
function)

any
rank
or
class,
who perform public duties
in the government or in
any of its branches shall
be deemed as public
officers.

EXCEPTIONS:
prohibits
abolition;

(1) Where the Constitution

such modification /

Illustrations:

(2) Where the Constitution

gives the people the power
to modify or abolish the
office;

In the case of Maniego

v. People, a laborer
who was in charge of
issuing summons and
subpoenas for traffic
violations in a judge's
sala was convicted for
bribery under RPC
203. The court held
that even temporary
performance of public
functions is sufficient
to constitute a person
as a public official.

In the case of People

v. Paloma, a sorter
and filer of money
orders in the Auditor's
Office of the Bureau of
Posts was convicted
for infidelity in the
custody
of
documents. The court
pointed out that the
sorting and filing of
money orders in the
Bureau of Posts is
obviously a public
function or duty.

Ocampo v. Secretary of Justice

The legislative power to create a
court carries with it the power to abolish it.
When the court is abolished, any unexpired
term is abolished also.
Zandueta v. De la Costa
RULE: When a public official
voluntarily accepts an appointment
to an office newly created by law -which new office is incompatible
with the former -- he will be
considered to have abandoned his
former office.
Exception:
When
the
nonacceptance of the new appointment
would affect public interest, and the
public official is thereby constrained
to accept.
Estoppel to deny existence of office
Q: When is a public officer estopped from
denying that he has occupied a public
office?
A: When he has acted as a public
officer, esp. where he has received
public monies by virtue of
his office.
Public Officer
Volunteer Service under RA 6713
Definition
A public officer is one who performs public
functions / duties of government by virtue of
direct provision of law, popular election, or
appointment by competent authority. His duties
involve the exercise of discretion in the
performance of the functions of the government,
and are not of a merely clerical or manual
nature. (See Sec. 2 (14), E.O. 292)
Note: For the purpose of applying the
provisions of the Revised Penal
Code, employees, agents,
or subordinate officials, of

Who are not considered public officers?

Special policemen salaried by a private

entity and patrolling only the premises of
such private entity (Manila Terminal Co.
v. CIR);

Concession forest guards

Lumber Mill v. Lagradante);

Company
cashier
of
a
private
corporation owned by the government
(Tanchoco v. GSIS)

(Martha

May a person be compelled to accept a public office?

GENERAL RULE:

NO.

EXCEPTIONS:
(1) When citizens are
required,
under
conditions provided by
law,

to render personal military

or civil service (Sec. 4, Art.
II, 1987 Const.);
(2) When a person who,
having been elected by
popular election to a public
office, refuses without
legal motive to be sworn in
or to discharge the duties
of said office (Art. 234,
RPC; Note: the penalty
shall be either arresto
mayor, or a fine not
exceeding P 1,000.00, or
both)
No presumption of power
Villegas v. Subido
Nothing is better settled in the law
than that a public official exercises power,
not rights. The government itself is merely
an agency through which the will of the state
is expressed and enforced. Its officers
therefore are likewise agents entrusted with
the responsibility of discharging its
functions. As such, there is no presumption
that they are empowered to act. There must
be a delegation of such authority, either
express or implied. In the absence of a valid
grant, they are devoid of power.

Compensation
(1)
(2)

Lucrative
Honorary

DE FACTO OFFICERS
De Facto Doctrine
Q: What is the de facto doctrine?
A: It 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.
Q: What is the purpose for the doctrine?
A: It is to ensure the orderly functioning of
government. The public cannot afford to
check the validity of the officer's title each
time they transact with him.
De Facto Officer defined
Q: When is a person a de facto officer?
A: Where the duties of the office are
exercised under any of the following
circumstances:

Classification of Public Offices and Public Officers

Creation
(1)
(2)

Constitutional
Statutory

Public Body Served

(1)
(2)

National
Local

Department of government to which their functions

pertain
(1)
(2)
(3)

Legislative
Executive
Judicial

Nature of functions
(1)
(2)

Civil
Military

Exercise of Judgment or discretion

(1)
(2)

Quasi-judicial
Ministerial

Legality of Title to office

(1)
(2)

De Jure
De Facto

(1) Without a known appointment or

election, but under such
circumstances of reputation or
acquiescence as
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; or
(2) Under color of a known and
valid appointment or election,
but where the officer has failed
to conform to some precedent
requirement or condition (e.g.,
taking an oath or giving a
bond);
(3) 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.

Officer De Facto v. Intruder

(4) Under color of an election or an

appointment by or pursuant to
a public, unconstitutional law,
before the same is adjudged to
be such.
Note:
Here,
what
is
unconstitutional is not the act
creating the office, but the act
by which the officer is
appointed to an office legally
existing. (Norton v. County of
Shelby)

De Facto

In

Nature

Officer under any of the 4

circumstances discussed
under Part II (above).

O
o
to
a
a

Basis of authority

Color of right or title to

office

N
la
o

Validity of "official" acts

Valid as to the public until

such time as his title to the
office
is
adjudged
insufficient

A
b
in
a
a
a
ri

Rule on compensation

Entitled
to
receive
compensation only during
the time when no de jure
officer is declared;

N
co

Officer De Jure v. Officer De Facto

De Jure
Requisites

(1) Existence of a de
jure office;
(2) must possess the
legal qualifications
for the office in
question;
(3) must be lawfully
chosen to such
office;

He is paid only for actual

services rendered by him.
Q: Can an intruder / usurper ripen into a de
facto officer?

(4) must have qualified

himself to perform
the duties of such
office according to
the
mode
prescribed by law.
Basis of Authority

Right: he has the lawful

right / title to the office

A: Yes. With the passage of time, a

presumption may be created in the minds of
the public that the intruder has a right to act
as a public officer.
Q: Is good faith a factor in the ripening of
intruder status into de facto status?
A: Yes. HOWEVER, it must be noted that
the good faith must be on the part of
the public; not on the part of the intruder.

How ousted

Cannot be ousted.
Elements of a De Facto Officership

Validity of official acts

Valid,
subject
to
exceptions (e.g., they
were done beyond the
scope of his authority,
etc.)

Rule on Compensation

Entitled to compensation
as a matter of right;
The principle of "no
work, no pay" is not
applicable to him.

(1) De jure office

(2) Color of right or general acquiescence
by the public;
(3) Actual physical possession of the office
in good faith
Note: This is not absolutely true.
An intruder / usurper may ripen
into a de facto officer.
Examples of De Facto Officers

A judge who continued to exercise his duties after

his appointment was disapproved by the CA
according to a newspaper report, but before
receiving the official notification regarding the

rejection of his appointment (Regala v. Judge of

CFI);

oned in proceedings to which he

is not a party, or which were not
instituted to determine the very
question.

A lawyer instructed by the Acting Provincial

Governor to file an information for homicide,
where the latter had no authority to designate him
as assistant fiscal, and where the DOJ had not
authorized him to act as such (People v.
Penesa);

REMEDY: Quo warranto proceedings

Who may file:
(1) The person who claims
to be entitled to the
office;
(2) The Republic of the
Philippines,
represented by

A third-ranking councilor who is designated to act

as mayor by an officer other than the proper
appointing authority prescribed by law, and
lacking the consent of the Provincial Board
(Codilla v. Martinez)

(a) the SolicitorGeneral; or

(b)
a
public
prosecutor

Examples of those not considered as De Facto

Officers

A judge who has accepted an

appointment as finance secretary and
yet renders a decision after having
accepted such appointment (Luna v.
Rodriguez);
A judge whose position has already been
abolished by law, and yet promulgates a
decision in a criminal case after the
abolition and over the objection of the
fiscal (People v. So)

Nueno v. Angeles
In this case, there were four (4)
petitioners seeking to oust six (6) Board
Members. The Court held that this could not
be done unless all 4 of them were entitled to
the offices of the 6.
Liabilities of De Facto Officers

The liability of a de facto officer is

generally held to be the same degree of
accountability for official acts as that of a
de jure officer.

The de facto officer may be liable for all

penalties imposed by law for any of the
following acts:

Legal Effect of Acts of De Facto Officers

As 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 officer de
jure. It is not
sufficient that he
be merely a de
facto officer.

(a) usurping or unlawfully holding

office;
(b) exercising the functions of
public office without lawful
right;
(c) not being qualified for the public
office as required by law.

As regards the public and third persons

GENERAL

RULE:

The acts of a de
facto officer 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
acts cannot be collaterally questi

The de facto officer cannot excuse his

responsibility for crimes committed in his
official capacity by asserting his de facto
status.

ELIGIBILITY AND QUALIFICATIONS

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

officer to a
(contemplated
Quitoriano);

Power to Prescribe Qualifications

GENERAL

RULE:

Congress
is
empowered
to
prescribe
the
qualifications for
holding
public
office, subject to
the
following
restrictions:

Congress
cannot
exceed
constitutional powers;

Congress cannot impose conditions

of eligibility inconsistent with
constitutional provisions;

The qualification must be germane

to
the
position
("reasonable
relation" rule);

its

Where the Constitution establishes

specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive,
and Congress cannot add to
them except if
the
Constitution
expressly or impliedly gives the
power to set qualifications.

A:

Extensions of the terms of office of the

incumbents;

The People's Court Act, which provided

that the President could designate
Judges of First Instance, Judges-atlarge of First Instance or Cadastral
Judges to sit as substitute Justices of
the Supreme Court in treason cases
without them necessarily having to
possess the required constitutional
qualifications of a regular Supreme
Court Justice. (Vargas v. Rilloraza);

A proviso which limits the choices of the

appointing authority to only one eligible,
e.g. the incumbent Mayor of Olongapo
City (Flores v. Drilon);
A legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent

office created
Manalang
v.

A provision that impliedly prescribes

inclusion in a list submitted by the
Executive Council of the Phil. Medical
Association as one of the qualifications
for appointment; and which confines the
selection of the members of the Board
of Medical Examiners to the 12 persons
included in the list (Cuyegkeng v. Cruz) ;

Manalang v. Quitoriano
Congress cannot either appoint a public officer or
impose upon the President the duty to appoint any
particular person to an office. The appointing power is
the exclusive prerogative of the President, upon which
no limitations may be imposed by Congress, except
those resulting from:
(1) the need of securing the
concurrence
of
the
Commission on Appointments;
and

Congress
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.);

Q: What legislative enactments are tantamount to

legislative appointments?

new
in

(2) the exercise of the limited

legislative power to prescribe
the
qualifications to a given
appointive office.
Cuyegkeng v. Cruz
The power of appointment vested in the
President by the Constitution connotes necessarily a
reasonable measure of freedom, latitude, or discretion
in the exercise of the power to choose appointees.
Flores v. Drilon
Where only one can qualify for the posts in
question, the President is precluded from exercising
his discretion to choose whom to appoint. Such
supposed power of appointment, sans the essential
element of choice, is no power at all and goes against
the very nature itself of appointment.
Time of Possession of Qualifications
Q:
possessed?

When

A:
law:

must

the

qualifications

Where the time is specified by

the
Constitution
At the time specified

be

or

Where the Constitution or law is

silent:
There are 2 views:
(1) qualification must be at
the
time
of
commencement of term or
induction into office;

(2) qualification / eligibility

must exist at the time of
the
election
or
appointment
* Eligibility is a continuing nature, and must
exist throughout the holding of the public
office. Once the qualifications are lost, then
the public officer forfeits the office.

e)
Civil Service Commissioners (Sec. 1 [1], Art. IXB.
Constitution)

Castaneda v. Yap
Knowledge of ineligibility of a candidate and
failure to question such ineligibility before or during
the election is not a bar to questioning such
eligibility after such ineligible candidate has won and
been proclaimed. Estoppel will not apply in such a
case.

f)

g)

Natural-born citizen
40 years old on day of election
resident of the Philippines for at least 10 yrs
immediately preceding election day

b) Senator (Sec. 3, Art. VI, Constitution)

c)

Congressmen (Sec. 6, Art. VI, Constitution)

d)

Natural-born citizen
35 years old on day of election
able to read and write
registered voter
resident of the Philippines for not less than two
years immediately preceding election day

Natural-born citizen
25 years old on day of election
able to read and write
registered voter in district in which he shall be
elected
resident thereof for not less than one year
immediately preceding election day

Supreme Court Justice

Natural born citizen

at least 40 years old

Natural-born citizen
35 years old at time of appointment
college degree holder
not a candidate for elective position in election
immediately preceding appointment
chairman 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)

COA Commissioners

Qualifications usually prescribed

a) President (Sec. 2, Art. VI, Constitution)
Vice President (Sec. 3, Art. VII, Constitution)

Natural-born citizen
35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position in
elections immediately preceding appointment

COMELEC Comm. (Sec. 1[1], Art. IXC)

Frivaldo v. COMELEC
The citizenship requirement must be met
only on election day. While the Local Government
Code requires one year residency immediately
preceding election day and the prescribed age on
election day, no date is specified for citizenship. The
purpose of the citizenship requirement is to ensure
leaders owing allegiance to no other country. Such
purpose is not thwarted, but instead achieved by
construing the requirement to apply at time of
proclamation and at the start of the term.

15 years or more a judge or engaged in law

practice
of proven CIPI (competence, integrity, probity and
independence)

Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing experience or
Bar member engaged in practice of law for at
least 10 years
Not have been candidates for elective position in
elections immediately preceding appointment
Cayetano v. Monsod
Practice of law
means any activity, in or out of court, which
requires the application of law, legal
procedure,
knowledge,
training
and
experience. Generally, to practice law is to
give notice or render any kind of service
which requires the use in any degree of legal
knowledge or skill.

Aquino v. COMELEC:
Residency of not
less than 1 year prior to the elections for the
position of Congressman. In election law,
residence refers to domicile, i.e. the place
where a party actually or constructively has
his permanent home, where he intends to
return. To successfully effect a change of
domicile, the candidate must prove an actual
removal or an actual change of domicile.
Here, it was held that leasing a condominium
unit in the district was not to acquire a new
residence or domicile but only to qualify as a
candidate.
Marcos v. COMELEC:
Domicile, which
includes the twin elements of actual habitual
residence,
and animus
manendi,
the
intention of remaining there permanently. It
was held that domicile of origin is not easily
lost, and that in the absence of clear and
positive proof of a successful change of
domicile, the domicile of origin should be
deemed to continue.
Religious Test or Qualification
No religious test shall be required for the
exercise of civil or political rights. (Art. III, Sec. 5,
1987 Constitution)
FORMATION OF OFFICIAL RELATION
Modes of Commencing Official Relation
(a) Election

When
deemed
abandonment of prior
office

Nature of Appointing Power

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.
Constitutional Provisions
Q: Who can the President nominate and
appoint with the consent of the
Commission on Appointments?
A:

Heads
of
the
executive
departments (Art. VII, Sec. 16,
1987 Const.);

Ambassadors (ibid);

Other public ministers

consuls (ibid);

Officers of the armed forces

from the rank or colonel or
naval captain (ibid);

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).

(b) Appointment
(c) Others:
(i)
Succession by operation of
law;
(ii) Direct provision of law, e.g. exoficio officers
Election:

Selection or designation by a popular

vote

Q:
Who
can
appoint without the
approval?

Appointment
Definition
Q: Distinguish between designation
and appointment.

Imposition of additional
duties upon an existing
office

Extent of Powers

Limited

Security of tenure?

No.

the
need

and

President
for
CA

A: All 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
Court;

Designation
Definition

Assumption
of
a
designated position is
not
deemed
abandonment of the
1st position

of

the

Supreme

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;

training,
civil
service
eligibility,
and physical
characteristics
and
personality
traits required
by the job.
(Sec. 2, Rule
IV,
Omnibus
Rules)

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 deputies

Note: 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.)

With respect to a particular

position, such qualification
standards shall serve as
the basis for the determination
by the appointing authority of
the degree of qualifications of
an officer or employee (ibid);

Shall be used as basis for civil

service
examinations for
positions in the career service,
as guides in appointment and
other personnel actions, in
the adjudication of protested
appointments, in determining
training needs, and as aid in
the inspection and audit of the
agencies'
personnel
work
programs (ibid);

Shall 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);

Q: Does the President have the

power to make appointments when
Congress is in recess?
A: Yes. However, such appointments
shall be effective only until:
(1) disapproval by the
Commission
on
Appointments; or
(2)

the next adjournment

of the
Congress
(Sec. 16, Art. VII,
1987 Const.)

Q: What is the effectivity of

appointments extended by an
Acting
President?
A: Such
appointments
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.)

Qualification Standards and Requirements under the

Civil Service Law
Qualification Standards:

Express
the minimum
requirements for 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,

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)

Their
establishment,
administration,
and
maintenance shall be the
responsibility of the department
/ 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
provide technic
al
assistance to
departments
and agencies
in
the
development
of
their
qualification
standards.
(Sec. 5, Rule
IV,
Omnibus
Rules)

Shall be established for all

positions
in
the 1st and
nd
2 levels (Sec. 1, Rule IV,
Omnibus Rules);

Political Qualifications for an Office

GENERAL RULE:
Political qualifications
are not required for public office.
Exceptions:

Aliens not eligible to public office

This is self-explanatory.
Effect of removal of qualifications during the term
Q: What happens if the qualification is lost
which the officer is holding office?
A: The officer must be terminated.
Effect of pardon upon the disqualification to hold
public office
GENERAL
RULE:
A
pardon
shall not work the restoration of the right to
hold public office. (Art.
36, Revised Penal Code)
Exceptions:

(1)
Membership in the
electoral tribunals of either the
House of Representatives or
Senate (Art. VI, Sec. 17, 1987
Const.);

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

(2) Party-list representation;

(3) Commission on Appointments;
(4) Vacancies in the Sanggunian (Sec. 45, Local
Government Code)
Property Qualifications
In the cases of Maquera v. Borra and Aurea
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.
The 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:
"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."

(1) Where such right

to hold public
office is expressly
restored by the
terms
of
the
pardon (Art. 36,
RPC);

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.
(2) Pardon does not exempt 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 is not entitled to
backpay and other emoluments due
to him during the period of his
suspension
pendente
lite.
(Monsanto v. Factoran)
Discretion of appointing official

 Discretion, if not plenary, at least sufficient,

should thus be granted to those entrusted
with the responsibility of administering the
officers concerned, primarily the department
heads. They are in the most favorable
position to determine who can best fulfill the
functions of the office thus vacated. Unless,
therefore, the law speaks in the most
mandatory and peremptory tone, considering
all the circumstances, there should be, as
there has been, full recognition of the wide
scope of such discretionary authority.
(Reyes v. Abeleda)

Effectivity of Appointment
Q: When does an appointment take effect?
A: Immediately upon its issuance by the
appointing authority. (Rule V, Sec. 10,
Omnibus Rules).
When appointment becomes complete, final and
irrevocable
GENERAL RULE:

Appointment is an essentially discretionary

power and must be performed by the officer
in which it is vested according to this best
lights, the only condition being that the
appointee should possess the qualifications
required by law. (Lapinid v. CSC)
The only function of the CSC is to review the
appointment in the light of the requirements
of the Civil Service Law, and when it finds
the appointee to be qualified and all other
legal requirements have been otherwise
satisfied, it has no choice but to attest to the
appointment.
It
cannot
order
the
replacement of the

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.
Exceptions:

(2) When there

is fraud on the
part
of
the
appointee (Mitra
v. Subido);

appointee simply because it considers

another employee to be better qualified.
(Lapinid v. CSC)
To hold that the Civil Service Law requires
that any vacancy be filled by promotion,
transfer, reinstatement, reemployment, or
certification in that order would be
tantamount to legislative appointment which
is repugnant to the Constitution. The
requirement under the Civil Service Law that
the appointing power set forth the reason for
failing to appoint the officer next in rank
applies only in cases of promotion and not in
cases where the appointing power chooses
to fill the vacancy by transfer, reinstatement,
reemployment
or
certification,
not
necessarily in that order. (Pineda v. Claudio)
The CSC is not empowered to change the
nature of the appointment extended by the
appointing officer, its authority being limited
to approving or reviewing the appointment in
the light of the requirements of the Civil
Service Law. When the appointee is
qualified and all the legal requirements are
satisfied, the CSC has no choice but to attest
to the appointment. (Luego v. CSC)
Appointment is a political question.
Where the palpable excess of authority or
abuse of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to issue said
appointments. (Gesolgon v. Lacson)

(1)
When the
appointment is an
absolute
nullity
(Mitra v. Subido);

(3)
Midnight
appointments
A completed appointment vests a legal
right. It cannot be taken away EXCEPT for
cause, and with previous notice and
hearing (due process).
Midnight appointments
A 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 Const.)
Exception: Temporary appointments to
executive positions when
continued
vacancies
therein will prejudice
public
service
or
endanger public safety.
ASSUMPTION AND TERM OR TENURE OF OFFICE

Qualification to Office
Appointment and Qualification to Office Distinguished
Appointment 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)
No one can be compelled to accept an
appointment.

Oath of Office

An 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.
However, 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.

Lacson v. Romero
The 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.

Qualification is significant because it

designates when security of tenure
begins.

Q: Who are authorized to administer oaths?

Borromeo v. Mariano

A:

(1) Notaries public;

(2) Judges;
(3) Clerks of court;
(4) Secretary of House / Senate;
(5) Secretary of Exec. Departments;
(6) Bureau Directors;
(7) Register of Deeds;
(8) Provincial governors;
(9) City mayors;
(10) Municipal mayors;
(11) Any other officer in the service
of the government of the Philippines
whose appointment is vested
in the President;
(12) Any other officer whose duties,
as defined by law or regulation,
require presentation to him of
any statement under oath

A 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 qualify ipso facto deemed
r
ejection
of
the
office

If not condition precedent:

is not ipso facto rejection

Failure

Justifiable 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.
Exception: If the nonassumption of office is due
to a cause
beyond
his control.

Q: Who are obliged to administer oaths in

all instances, and not just in matters of
official business?
A:

(1) Notaries public;

(2) Municipal judges;
(3) Clerks of court

Time 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 reappointed, 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 will not be valid for
subsequent terms of office.

Giving of Bonds
Persons required to give bond

Q: Who are the public officers generally

required to give a bond?
A: (1) Accountable public officers or those
to whom are entrusted the
collection and custody of public
money;
(2) 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.
The 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.

where the power of removal is exercisable at its mere

discretion that the officer may be removed without
notice or hearing.
Power of the Legislature to Fix and Change the Term
of Office
RULES:
Where the term is fixed
by the
Constitution:
Congress has no power to alter the term.
However, such term of office can be
shortened or extended
by the vote of the people ratifying a
constitutional amendment.
Where
the
term
is not fixed:
Congress may fix the terms of officers
other
than those provided for in the Const.

Effect of Failure to Give Bond within the Prescribed

Period
If not condition precedent:
Failure to give
bond merely constitutes a ground for
forfeiture
of
the
office; it
is not for
feiture of
the
office ip
so facto.
IF condition precedent:
bond within the prescribed period

Failure to give
renders
the office vacant.

Term and Tenure of Office

of
Tenure

De
jure
facto
Fixed and definite period of time
during which the incumbent
during which the officer may
holds the office. It may be
claim to hold the office as of right
than the term.

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

Term of Office and Tenure of Office Distinguished

Term
Office
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.

De
Period

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.)
Term of Office Not Extended by Reason of War
There is no principle, law or doctrine by
which the term may be extended by reason of war.
(Nueno, et al. v. Angeles)

actually
shorter

Alba v. Evangelista
It is only in those cases in which the office is
held at the pleasure of the appointing power and

Doctrine of Holdover
Q: What is the doctrine of hold-over?
A: 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. (Mechem)

Purpose of the Hold-Over Rule

action at a place not

authorized by law is
ordinarily invalid. (Note:
This rule is applicable to
all public officers whose
duties are essentially local
in nature, e.g. judges.)

Public 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
(1) Where the law provides for it:
(2)
The office does not become 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.

EXCEPTIONS:

(1) Consuls;
(2) Police officers,
who may arrest
persons
for
crimes committed
outside Philippine
territory;

(3) Where the law is silent:

(4)

Unless hold-over is expressly or impliedly

prohibited, incumbent may hold-over.
(3) Where the Constitution limits
the term of a public officer and
does not provide for hold-over:
over is not permitted.

(3)
hot pursuit
Duration of Authority of Public Officers

HoldThe 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.

Commencement of Term of Office

Construction of Grant of Powers

RULES:
(1) Where the time is fixed:
term will begin on the specified date.

The

(2) Where no time is fixed:

The
term will generally begin on the
date of the election or the
appointment.

Strict construction. Will be construed as conferring

only those powers which are expressly imposed or necessarily
implied.
Classification of Powers
Discretionary
Definition

Acts which require the exercise of

reason in determining when, where,
and how to exercise the power

Can be delegated?

Generally, NO.

POWERS AND DUTIES OF PUBLIC OFFICERS

Source of Government Authority:
sovereignty.

Doctrine of

The people, the

Scope of Powers of a Public Officer

Exception: When the power to

substitute / delegate has been given

Lo Cham v. Ocampo
The duties of a public office includes all
those which truly are within its scope:
(1) those which are essential to the
accomplishment of the main
purpose for which the office was
created; or
(2) those which, although incidental
or collateral, are germane to and
serve
to
promote
the
accomplishment of the principal
purpose.
Territorial Extent of Powers of Public Officer
GENERAL RULE:

Where a public officer is

authorized by law to
perform the duties of his
office at a particular place,

When is
proper?

mandamus

Only if the duty to do something has

been delayed for an unreasonable
period of time.

Is public officer liable?

Generally not liable

Exceptions: if there is fraud or malice

Discretion; Discretionary Power

Ministerial Duty
Q: What is discretion?
A: Discretion, when applied to public functionaries,
means a power or right conferred upon them by
law of acting officially in certain circumstances,
according to the dictates of their own judgment
and conscience, uncontrolled by the judgment or
conscience of others. (Lamb v. Phipps)

Q:

What is a ministerial act?

A:

A purely ministerial act is one which

an officer or tribunal performs in
a given
state
of
facts,
in
a prescribed manner, in obedience
to
the
mandate
of
legal
authority, without regard to or the
exercise of his own judgment upon
the propriety or impropriety of the
act done. A ministerial act is one to
which nothing is left to the
discretion of the person who must
perform. It is a simple, definite duty
arising under conditions admitted or
proved to exist and imposed by
law. It is a precise act, accurately
marked
out,
enjoined
upon
particular officers for a particular
purpose. (Lamb v. Phipps)

Q: When will the writ of mandamus issue?

A:

Torres v. Ribo
The powers of the Board of Canvassers
are quasi-judicial and therefore discretionary.
Aprueba v. Ganzon
Mandamus will not issue to control or
review the exercise of discretion of a public
officer where the law imposes on him the
right or duty to exercise judgment in
reference to any matter in which he is
required to act.
The privilege of operating a market stall
under license is not absolute but revocable
under an implied lease contract subject to
the general welfare clause.
Mandamus never lies to enforce the
performance of contractual obligations.
Miguel v. Zulueta
Public officers may properly be compelled
by mandamus to remove or rectify an
unlawful act if to do so is within their official
competence.

To correct a gross abuse of

discretion, a palpable excess of
authority resulting in manifest
injustice (Gesolgon v. Lacson);

Where
the
question
of
constitutionality is raised by the
petitioner (Cu Unjieng v. Patstone);

Q: When will the writ of mandamus never

issue?
A: (1) To control discretion;
(2)
remedy exists;

When another adequate

(3) To enforce the performance

of contractual obligations, as in the
issuance of a
license / permit (Aprueba
v. Ganzon);

Lamb v. Phipps
Auditors and comptrollers, as accounting
officers, are generally regarded as quasijudicial officers.
They perform mere
ministerial duties only in cases where the
sum due is conclusively fixed by law or
pursuant to law. Except in such cases, the
action of the accounting officers upon claims
coming before them for settlement and
certification of balances found by them to be
due, is not merely ministerial but judicial and
discretionary. Mandamus will therefore not
issue.

Q: In filing a mandamus suit, when does a

taxpayer not have to show that he
has any legal or special interest in
the results of such suit?
A: When the question is one of public right
and the object of the mandamus is to
procure the enforcement of a public
duty, such as the observance of the
law. (Miguel v. Zulueta)
Time of Execution of Powers

Where not indicated:

reasonable time

Where
indicated:
directory

Within

Merely

Exceptions:
(1) When
there
is
something
in
the
statute which shows a
different
intent
(Araphoe City v. Union
Pac);
(2) Where a disregard of
the provisions of the
statute
would
injuriously affect a
public
interest
or
public right;
(3) When the provision is
accompanied
by
negative
words
importing that the

acts shall not be

done in any other
manner or time than
that designated.

RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

Right to Office
The right to office is the right to exercise the powers of
the office to the exclusion of others.

Ratification of Unauthorized Acts

If act was absolutely void

at the time it was done:
be ratified
If merely voidable:
be ratified and rendered valid

Right to Salary or Compensation

Cannot

GENERAL RULES:
A public officer is not entitled to
compensation for services rendered
under an unconstitutional statute or
provision thereof.

Can

Where superior officers have authority to ratify the

acts of their inferiors, they are restricted to the
ratification of acts and contracts which they
themselves are empowered to make.

Exception:
If some other statute
provides otherwise.
If no compensation is fixed by law, the
public officer is assumed to have
accepted the office to serve gratuitously.

It is not enough that the public officer acted

beyond his powers in order that he may be held
liable for damages. If the act committed
is reasonably related to his duties and the officer
was in good faith, he will not be held liable.

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.

Government not estopped by the unauthorized or Illegal

acts of officers
As between an individual and his government, the
individual cannot plead the void act of an official
to shield him from the demand of the government
that he (the individual) fulfill an obligation which
he has contracted with the government, after the
benefits accruing to him as a result of that
obligation have been received. The government
can neither be estopped nor prejudiced by the
illegal acts of its servants. (Government v.
Galarosa)
Hilado v. Collector
A tax circular issued on a wrong construction
of the law cannot give rise to a vested right that
can be invoked by a taxpayer.

Accountability and Responsibility of Public Officers

and Employees
Norm of Performance of Duties
Q: What are the standards of personal conduct
provided for in Sec. 4, RA 6713?
A: (1) Commitment to public interest;
(2) Professionalism;
(3) Justness and sincerity;
(4) Political neutrality;
(5) Responsiveness to the public;
(6) Nationalism and patriotism;
(7) Commitment to democracy;
(8) Simple living

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.
Compensation not an element of public office
Compensation is not indispensable to 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.
Salary,
Distinguished

Wages,

and

Per

Diems

Defined

and

Salary:
time-bound
Wages:
service-bound
Per Diem:
allowance for days actually
spent for special duties
Salary of Public Officer Not Subject to Attachment

The 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.

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)

When the government continues to

pay the de facto officer even after the notice
of adjudication of the protest in favor of the
de jure officer.
(b) A de facto officer?
When notice of adjudication of the
title to the de jure officer has been given, and
the de facto officer still continues to exercise
duties and receive salaries and emoluments.
(c) An intruder / usurper?
At all instances.

Future or Unearned Salaries Cannot be Assigned

The salary or emoluments in public office are
not considered the proper subject of barter and sale.
(22 R.C.L. 541)

Additional or Double Compensation Prohibited

Q: Differentiate additional compensation
from double compensation.

Agreements Affecting Compensation Held Void

Additional
Double

An agreement by a public officer respecting

his compensation may rightfully be considered invalid
as against public policy where it tends to pervert such
compensation to a purpose other than that for which it
was intended, and to interfere with the officer's free
and unbiased judgment in relation to the duties of his
office. (This is usually with reference to unperformed
services and the salary or fees attached thereto.)

There
is
only
1
position,
but
There are 2 positions,
and with additional functions
and
the public officer
is
getting
additional
compensation.
emoluments for both
positions.

Right to Recover Salary: De Jure Officer and De

Facto Officer

Q: Differentiate the 2 kinds of allowances.

Monroy v. CA and del Rosario

Commutable
Reimbursable

Where a mayor filed a certificate of

candidacy for congressman then withdrew
such certificate and reassumed the position
of mayor, thus preventing the vice-mayor
from discharging the duties of the position of
mayor, the mayor should reimburse to the
vice-mayor, as the right rightful occupant of
the position of mayor, the salaried which he
had received.

Given by virtue of the position

public officer must present
whether or not he incurred
a receipt or certification under
expenses for which the allowance
oath that such amount was spent
is given. Received as a matter
in order that the public officer
of right.
may recover the money spent.

Rodriguez v. Tan
Where a duly proclaimed elective
official who assumes office is subsequently
ousted in an election protest, the prevailing
party can no longer recover the salary paid
to the ousted officer. The ousted officer, who
acted as de facto officer during his
incumbency, is entitled to the compensation,
emoluments and allowances which are
provided for the position.
Exception:
If there was fraud on
the part of the de facto officer which
would vitiate his election.
Q: When can the de jure officer recover from:
(a) the government?

The

There is a conclusive presumption

that it was spent.

RULES:
Pensions / gratuities are not considered
as additional, double, or indirect
compensation. (Sec. 8, Art. IX-B, 1987
Constitution)
By its very nature, a bonus partakes of
an
additional
remuneration
or
compensation. (Peralta v. Auditor
General)

 An allowance for expenses incident to

the discharge of the duties of office is
not an increase of salary, a perquisite,
nor an emolument of office. (Peralta v.
Auditor-General)

ADMINISTRATIVE DISCIPLINE
Over Presidential Appointees
Olonan v. CSC

Can Public Officer Recover Salary for Period of

Suspension?
RULES:
If preventively suspended:
NO, he cannot recover salary.
BUT:
If
he
is
subsequently exonerated,
he can recover
salary for the
period of his preventive
suspension.
If he was given penalty of
removal from
office,
but
was
YES, he can recover
because
completely
exonerated upon
he was
completely exonerated.
appeal:
If he was given penalty of
removal from office, but
his
NO, because he was
still found
penalty
was commuted from
guilty
although the penalty was
removal to mere suspension,
reduced.
or
demotion:
If the suspension / removal
from
office
unjustified:
YES.

is

Q: In summary, when can payment of salaries

corresponding to the period
when an employee was suspended be
allowed?
A:
(1) When he is found
innocent of the charges which
caused
his
suspension;
(2)
When the
suspension
is
unjustified
(Abellera v. City
of
Baguio)

Administrative charges were filed against the PUP

President and other officers for violations of RA 3019 with the
CSC. Olonan et.al. filed a motion to dismiss the complaint
contending principally that the CSC has no jurisdiction to try
and decide the case against her, she being a presidential
appointee. The CA upheld Olonans contention. There is
nothing in the provisions of the Constitution or the
Administrative Code of 1987 which gives the CSC the power to
discipline presidential appointees like petitioner herein. Sec.
47(1), Book V of EO 292 which provides that a complaint may
be filed directly with the CSC by a private citizen against a
government official or employee in which case it may hear and
decide the case must be read together with Sec. 48 which is
entitled Procedure in Administrative Cases Against NonPresidential Appointees. The very subject of Sec. 48 implicitly
limits the scope of the CSCs jurisdiction in administrative
cases to non-presidential appointees and makes patent the
conclusion that the disciplinary authority over presidential
appointees lies elsewhere the President as appointing power
himself.
Power to Appoint Implies the Power to Remove;
Exceptions
a) Justices of the Supreme Court (by
impeachment)
b) Members of Constitutional Commissions
(by impeachment)
c) Ombudsman (by impeachment)
d) Judges of inferior courts (disciplinary or
removal power vested
in the Supreme Court)
Bonifacio Sans Maceda v. Vasquez
A judge who falsifies his Certificate of Service is
administratively liable to the SC for serious misconduct and
inefficiency under Sec. 1, Rule 140 of the Rules of Court and
criminally liable to the State under the Revised Penal Code for
his felonious act. Where a criminal complaint against a judge
or other employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and refer the
same to the SC for determination whether said judge or court
employee had acted within the scope of their administrative
duties. Thus, the Ombudsman should first refer the matter to
the SC for determination of whether the certificates reflected
the true status of his pending case load, as the SC had the
necessary records to make such a determination. Art. VIII, Sec.
6 of the Constitution exclusively vests in the SC administrative
supervision over all courts and court personnel.
Dolalas v. Ombudsman-Mindanao
Citing the Maceda case, the SC power of
administrative supervision over judges and court personnel is
exclusive. Investigation by the Ombudsman violates the
specific constitutional mandate of the SC and undermines the
independence of the judiciary.
Over Non-Presidential Appointees

Grounds

merits of the case cannot be decided judiciously without

conducting such an investigation.

Sec. 46(a), Book V of EO 292 provides

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. The grounds
constituting just cause are enumerated in Sec. 46(b).

The decision shall be rendered by the disciplining

authority within thirty days from the termination of the
investigation or submission of the report of the
investigator, which report shall be submitted within fifteen
days from the conclusion of the investigation.

Jurisdiction
Original complaints may be filed: (a) directly with the
CSC or (b) with the Secretaries and heads of agencies
and instrumentalities, provinces, cities and municipalities
for officers and employees under their jurisdiction.
Decisions of Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities shall
be final in case the penalty imposed is suspension for not
more than thirty days or fine in an amount not exceeding
thirty days salary.
In case the decision rendered by a bureau or office
head is appealable to the Commission, the same may be
initially appealed to the department and finally to the
Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which
case the same shall be executory only after confirmation
by the Secretary concerned.

Decisions imposing the penalty of suspension for more

than thirty days or fine in an amount exceeding thirty days
salary, demotion in rank or salary or transfer, removal or
dismissal from office shall be appealable to the CSC.

Procedure in Administrative Cases Against Non-Presidential

Appointees
Administrative proceedings may be
against a subordinate officer or employee by the
head of office of equivalent rank, or head of local
or chiefs of agencies, or regional directors, or
written complaint of any other person.

commenced
Secretary or
government,
upon sworn

For complaints filed by any other person

Complainant shall submit sworn statements covering
his testimony and those of his witnesses together with his
documentary evidence.
If based on such papers a prima facie case is found
not to exist, the disciplining authority shall dismiss the
case. Otherwise, he shall notify the respondent in writing
of the charges against the latter.
Respondent shall be allowed not less than seventytwo hours after receipt of the complaint to answer the
charges in writing under oath, together with supporting
sworn statements and documents. He shall also indicate
whether or not he elects a formal investigation if his
answer is not considered satisfactory.
If the answer is found satisfactory, the disciplining
authority shall dismiss the case.
Although a respondent does not request a formal
investigation, one shall nevertheless be conducted when
from the allegations of the complaint and the answer of the
respondent, including the supporting documents, the

Either party may avail himself of the services of

counsel and may require the attendance of witnesses and
the production of documentary evidence in his favor
through the compulsory process of subpoena or subpoena
duces tecum.
Appeals and Petition for Reconsideration
Appeals, where allowable, shall be made by the party
adversely affected by the decision within fifteen days from
receipt of the decision unless a petition for reconsideration
is seasonably filed, which petition shall be decided within
fifteen days.
A petition for reconsideration shall be based only on
any of the following grounds:
(a) new evidence has been discovered which
materially affects the decision rendered;
(b) the decision is not supported by the evidence on
record; or
(c) error of law or irregularities have been committee
which are prejudicial to the interests of the
respondent.
Only one petition for reconsideration shall be
allowed.

Mendez v. Civil Service Commission

The remedy of appeal in civil service cases may
be availed of only in a case where respondent is
found guilty of the charges against him. But when the
respondent is exonerated of said charges, as in this
case, there is no occasion for appeal. PD 807 shows
that it does not contemplate a review of decisions
exonerating officers or employees from administrative
charges. Party adversely affected by the decision in
Section 39 of the Civil Service Law refers to the
government employee against whom case was filed.
Summary Proceedings
No formal investigation is necessary and
the respondent may be immediately removed or
dismissed if any of the following circumstances is
present:
(1) When the charge is serious and the
evidence if guilt is strong;
(2) When the respondent is a recidivist or
has been repeatedly charged and there
is reasonable ground to believe that he
is guilty or the present charge; and
(3) When the respondent is notoriously
undesirable.

Preventive Suspension
The proper disciplining authority may preventively
suspend any subordinate officer or employee under his
authority pending an investigation, if the charge against
such officer or employee involves:
(a)
(b)
(c)
(d)

dishonesty; or
oppression or grave misconduct; or
neglect in the performance of duty; or
if there are reasons to believe that the
respondent is guilty of charges which would
warrant his removal from the service.

Maximum period for preventive suspension is ninety

(90) days for national officials. Under the Local
Government Code, local appointive and elective officials
may be preventively suspended for only sixty (60) days. If
the case is filed in the Ombudsman, the latter may impose
a preventive suspension for a period of six (6) months.

administrative penalty, although it may be slight form

of punishment.
NOTE: A warning is an act
or fact of putting one on his guard; an admonition is a
gentle or friendly reproof or a mild
rebuke;
while
a
reprimand
is
a
formal
and public censure or a severe
reproof.
Removal of Administrative Penalties or Disabilities
In meritorious cases and upon recommendation of
the CSC, the President may commute or remove
administrative penalties or disabilities imposed upon
officers or employees in disciplinary cases, subject to such
terms and conditions as he may impose in the interest of
the service.
Over Elective Officials

When the administrative case against the officer or

employee under preventive suspension is not finally
decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service.
Penalty
In meting out punishment, the same penalties shall
be imposed for similar offenses and only one penalty shall
be imposed in each case.
The disciplining authority may impose the penalty of
removal from the service, demotion in rank, suspension for
not more than one year without pay, fine in an amount not
exceeding six months salary, or reprimand. (Sec. 46(d),
Book V, EO 292)
If the respondent is found guilty of two or more
charges or counts, the penalty imposed should be that
corresponding to the most serious charge or count and the
test may be considered as aggravating circumstances.
(Sec. 17 of the Implementing Civil Service Rules and
Regulations)
A reprimand whether given by the Civil Service
Commission or the head of department or agency shall be
considered a penalty. However, a warning or an
admonition shall not be considered a penalty. (Sec. 15 of
the Implementing Civil Service Rules and Regulations)

Tobias v. Veloso
Reprimand is a penalty. In this case, police
chief is not entitled to back wages as Sec. 16 of the
Police Act of 1966 expressly provides that a
suspended member of the police force shall be
entitled to his salary for the period of his suspension
upon exoneration. A reprimand is not equivalent to an
exoneration. It is more severe than an admonition,
which is considered a mild rebuke. A reprimand is
administered to a person in fault by his superior
officer or a body to which he belongs. It is an

Impeachment
A verified complaint may be filed by any member of
the House of Representatives or by any citizen upon a
resolution of endorsement by any member thereof.
Complaint shall be included in the Order of Business
within ten sessions days and referred to the proper
Committee within three sessions days thereafter.
The Committee, after hearing, and by a majority vote
of all its members, shall submit its report to the House
within sixty session days from such referral, together with
the corresponding resolutions. The resolution shall be
calendared for consideration of the House within ten
session days from receipt thereof.
A vote of at least one-third of all the members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution.
In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
The Senate shall have the sole power to try and
decide all cases of impeachment. When sitting for that
purpose, the Senators shall be on oath or affirmation.
When the President of the Philippines is on trial, the Chief
Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the members of the
Senate.
Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to hold
office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to
prosecution, trial and punishment according to law.
No impeachment proceedings shall be initiated
against the same official more than once within a period of
one year.

(3) Investigation
Local Elective Officials (Sec. 60-68, Local Government
Code)

The investigation of the case shall be commenced

within ten (10) days after receipt of such answer of the
respondent.

Grounds for Disciplinary Actions

(1)

Disloyalty to the Republic of the Philippines

(2)

Culpable violation of the Constitution

(3)

Dishonesty, oppression, misconduct in office,

gross negligence, or
dereliction of duty

(4)
Commission of any offense involving moral
turpitude or an offense punishable by
at least prision mayor
(5)

However, no investigation shall be held

within ninety (90) days immediately prior to any local election,
and no preventive suspension shall be imposed within the said
period.
Preventive Suspension
Preventive suspension may be imposed:
a)

By the President:
if the
respondent is an elective official of a
province,
a highly
urbanize
d or an
indepen
dent
compon
ent city;

b)

By the governor:
if the
respondent is an elective official of a
component city
or municipality; or

c)

By the mayor:
if
respondent is an elective official of the
barangay.

Abuse of authority

(6)

Unauthorized absence for fifteen (15)

consecutive days, except in the case of
members of the sangguniang panlalawigan,
sangguniang
panlungsod,
sangguniang
bayan, and sangguniang barangay

(7)

Application for, or acquisition of, foreign

citizenship or residence or the status of
an immigrant of another country

(8)

Such other grounds as may be provided in this

Code and other laws.

Procedure
(1) Verified Complaint
A verified complaint may be filed against any erring local
elective official and submitted to the following disciplinary
authorities:
Office of the President

elective official
of a province, a
highly urbanized
city, an
indepen
dent
compon
ent city
or
compon
ent city;

Sangguniang panlalawigan
elective official of a municipality
Sangguniang panlungsod or
sangguniang bayan
elective barangay official

(2) Answer
Within seven (7) days after the administrative complaint is
filed, the Office of the President or the sanggunian concerned,
as the case may be, shall require the respondent to submit his
verified answer within fifteen (15) days from receipt thereof

the

Preventive suspension may be imposed at any time

after the issues are joined, when the evidence of guilt is
strong, and given the gravity of the offense, there is great
probability that the continuance in office of the respondent
could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence.
However, any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days.
Furthermore, in the event that several administrative
cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds
existing and known at the time of the first suspension.
Upon expiration of the preventive suspension, the
suspended elective official shall be deemed reinstated in
office without prejudice to the continuation of the
proceedings against him, which shall be terminated within
one hundred twenty (120) days from the time he was
formally notified of the case against him.

Note: The respondent official

preventively suspended from office shall receive no
salary or compensation during such suspension; but
upon subsequent exoneration and reinstatement, he
shall be paid full salary or compensation including
such emoluments accruing during such suspension.
Note:
No
preventive
suspension shall be imposed within ninety (90) days
immediately prior to any local election. If preventive

suspension has been imposed prior to the 90-day

period immediately preceding local election, it shall be
deemed automatically lifted upon the start of the
aforesaid period.
Rights of Respondent

An appeal shall not prevent a decision from becoming

final or executory. The respondent shall be considered as
having been placed under preventive suspension during the
pendency of an appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall be paid his
salary and such other emoluments during the pendency of the
appeal.

The respondent shall be accorded full opportunity to

appear and defend himself in person or by counsel, to confront
and cross-examine the witnesses against him, and to require
the attendance of witnesses and the production of
documentary process of subpoena or subpoena duces tecum.

TERMINATION OF OFFICIAL RELATIONS

Form and Notice of Decision

1)

The investigation of the case shall be terminated

within ninety (90) days from the start thereof.
Within thirty (30) days after the end of the
investigation, the Office of the President or the sanggunian
concerned shall render a decision in writing stating clearly
and distinctly the facts and the reasons for such decision.
The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of six (6)
months for every administrative offense, nor shall said
penalty be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications required
for the office.
The penalty of removal from office as a result of an
administrative investigation shall be considered a bar to
the candidacy of the respondent for any elective position.
Administrative Appeals
Decisions in administrative cases may, within thirty
(3) days from receipt thereof, be appealed to the following:
a)
The sanggunian panlalawigan:
in the case of decisions of:

(2) sangguniang bayan;

in the

(1) the
sangguniang
panlalawigan;
(2) the
sangguniang
panlungsod of highly
urbanized cities;
(3) the
sangguniang
panglungsod
of
independent
component cities.
Decisions of the Office of the
President shall final and executory.
Execution Pending Appeal

Expiration of Term or Tenure of Office

a)
End of a fixed term
b)
End of Pleasure where one holds
office at pleasure of appointing authority
c)
Loss of confidence in primarily
confidential employment

2)
Reaching the age limit; Retirement
3)
Bona fide abolition of office
4)
Abandonment of office
5)
Acceptance of an incompatible office
6)
Resignation
7)
Resignation
8)
Removal for cause
9)
Temporary appointments termination
10)
Recall
11)
Impeachment
12)
Prescription of right to office
13)
Death
14)
Conviction of crime where disqualification is an
accessory penalty
15)
Filing of certificate of candidacy
16)
Performance of act or accomplishment of purpose for
which the office was created

Expiration of Term or Tenure of Office

(1) sangguniang
panlungsod
of
component cities; and

b)
The Office of the President:
case of decisions of:

Modes of Termination

End of Fixed Term

Upon the expiration of the officers term,
unless he is authorized by law to hold over, his rights,
duties and authority as a public officer must be ipso
facto terminated.
End of pleasure where one holds office at the pleasure of the
appointing authority

Alba v. Evangelista
President can validly terminate tenure of Vice Mayor
of Roxas City as the office was created at the
pleasure of the President. What is involved here is not
the question of removal, or whether legal cause
should precede or not that of removal. What is
involved here is the creation of an office and the
tenure of such office, which has been made expressly
dependent upon the pleasure of the President.

Fernandez v Ledesma
The Charter of Basilan City provides that the
President shall appoint and may remove at his
discretion any of the citys officers, including its Chief

of Police, with the exception of the municipal judge,

who may be removed only according to law. The
legislative intent is to make continuance in office
dependent upon the pleasure of the President.
Congress has the power to vest such power of
appointment. Further, A public office is the right for a
given period, either fixed by law or enduring at the
pleasure of the creating power. Alba v. Evangelista
states that the replacement is not removal, but an
expiration of tenure, which is an ordinary mode of
terminating official relations. What is involved is not
removal, or whether legal cause should precede such
removal, but the creation of an office and the tenure
of such office, which has been made expressly
dependent upon the pleasure of the President.
Loss of Confidence in Primarily Confidential Employment
Hernandez v. Villegas

not removed or dismissed from officer - his term

has merely expired.
Gray v. De Vera

President appointed Gray as

Board secretary of the Peoples Homesite and
Housing Corporation but was later terminated through
a board resolution due to loss of confidence. SC
reversed ruling that Grays appointment was a
permanent one. Although the President, EO 99,
declared the position of secretary to the board of a
government corporation primarily confidential in
nature, it does not follow that a board secretary
whose appointment was permanent may be removed
from office without a formal charge specifying the
ground for removal and without giving him an
opportunity to be head. Such removal was illegal
since there was no lawful cause for removal.

Even officers and employees of the civil service

occupying primarily confidential positions are subject
to the constitutional safeguard against removal or
suspension except for cause.
Official and employees holding primarily
confidential positions continue only for so long as
confidence in them endures. The termination of their
official relation can be justified on the ground of loss
of confidence because in that case, their cessation
from office involves no removal but merely the
expiration of the term of office.

By declaring that the position is primarily

confidential in nature, the President intended that the
position be filled by an appointee of unquestioned
honesty and integrity. The act of Gray in reporting the
boards act of mismanagement and misconduct was
in consonance with the honesty and integrity required
for the position.

Cario v. ACCFA
SC reversed termination of lawyers who were
appointed as permanent employees of ACCFA. That
petitioners positions are primarily confidential is
immaterial. The Constitution merely excepts primarily
confidential positions from the coverage of the rule
requiring appointments in the civil service to be made
on the basis of merit and fitness as determined from
the competitive exams, but does not exempt such
positions from the operation of the principle that no
officer or employee in the civil service shall be
removed or suspended except for cause as provided
by law, which recognizes no exception.

Ingles v. Mutuc
The statement that an officer holding a position
which is primarily confidential in nature is subject to
removal at the pleasure of the appointing power is
inaccurate. Such statement (a mere obiter in the
case of De los Santos v. Mallare), if detached from
the context of the decision in said case, would be
inconsistent with the constitutional command to the
effect that no officer or employee in the Civil Service
shall be removed or suspended except for cause as
provided by law, and it is conceded that one holding
in the government a primarily confidential positions is
in the Civil Service.
This should not be misunderstood as denying that
the incumbent of a primarily confidential position
holds office at the pleasure only of the appointing
power. It should be noted however, that when such
pleasure turns into displeasure, the incumbent is not
removed or dismissed from office - his term
merely expires in much the same way as an officer,
whose right thereto ceases upon expiration of the
fixed term for which he had been appointed or elected
is not and cannot be deemed removed or
dismissed therefrom, upon the expiration of said
term. The main difference between the former - the
primarily confidential officer - and the latter is that the
latters term is fixed or definite, whereas that of the
former is not pre-fixed but indefinite, at the time of his
appointment or election, and becomes fixed and
determined when the appointing power expresses its
decision to put an end to the services of the
incumbent. When this event takes place, the latter is

Reaching the Age Limit; Retirement

Conditions for entitlement to retirement benefits (R.A. No.
8291)
a)
he has rendered at least fifteen (15) years of service;
b)
he is at least sixty (60) years of age at the time of
retirement; and
c)
he is not receiving a monthly pension benefit from
permanent total disability.
Compulsory Retirement
Unless the service is extended by appropriate authorities,
retirement shall be compulsory for an employee at least sixtyfive (65) years of age with at least fifteen (15) years of service;
Provided that if he has less than fifteen (15) years of service,
he may be allowed to continue in the service in accordance
with existing civil service rules and regulations.
Retirement benefits
(1)

the lump sum payment defined in RA No. 8291 payable

at the time of retirement plus an

old-age pension benefit equal to the basis monthly

pension payable monthly for life, starting upon
expiration of the give-year (5) guaranteed period
covered by the lump sum; or
(2)

cash payment equivalent to eighteen (18) months of

his basic monthly pension plus monthly pension for
life payable immediately with no five-year (5)
guarantee.
Beronilla v GSIS
The compulsory retirement of government officials
and employees upon reaching the age of 65 years is
founded on public policy which aims by it to maintain
efficiency in the government service and, at the same
time, give to the retiring public servants the
opportunity to enjoy during the remainder of their lives
the recompenses for their long service and devotion
to the government, in the form of a comparatively
easier life, freed from the rigors, discipline and the
exacting demands that the nature of their work and
their relations with their superiors as well as the public
would impose on them.

UP Board of Regents v. Auditor General

A BOR resolution extended the services of a UP
professor for another year. In the same year, he
reached the age of 65. The Auditor General
questioned the legality of the resolution arguing that
the services rendered after the compulsory retirement
age were illegal and that he was not entitled to
compensation. SC upheld Auditor General ruling that
as government employees, UP professors are
compulsorily covered by the Retirement Law which
creates a uniform retirement system for all members
of the GSIS.

Rabor v. CSC
At the age of 55, Rabor was hired as a government
employee at the Davao City Mayors Office in 1978. In
1991, he was advised to apply for retirement. He was
already 68 years old with 13 years of service. He
requested that his services be extended in order that
he may complete the 15-year service requirement.
This was denied and Rabor claimed that the doctrine
enunciated in Cena v. CSC should be applied in his
case.
SC ruled that the Cena doctrine is not applicable.
CSC Memo Circular No. 27, s. of 1990 cited in the
decision in Cena v. CSC, provides that any request
for the extension of service of compulsory retirees to
complete the 15-year service requirement for
retirement shall be allowed only to permanent
appointees in the career service who are regular
GSIS members, and shall be granted for a period not
exceeding one (1) year. Cena further stated that the
authority to grant the extension was a discretionary
one vested in the head of the agency concerned. To
reiterate, the head of the government agency
concerned is vested with discretionary authority to
allow or disallow extension of service of an employee
who has reached 65 years old without completing 15
years of government service; this discretion to be
exercised conformably with CSC Memo Circular No.
27, s. of 1990.

Bona Fide Abolition of Office

As a general rule, absent some Constitutional
prohibition, Congress may abolish any office it creates
without infringing upon the rights of the officer or employee
affected.
To consider an office abolished, there must have
been an intention to do away with it wholly and
permanently.
Termination by virtue of the abolition of the office is to
be distinguished from removal. There can be no tenure to
a non-existent office. After the abolition, there is in law no
occupant. In case of removal, there is an office with an
occupant who would thereby lose his position. It is in that
sense that from the standpoint of strict law, the question of
any impairment of security of tenure when there is an
abolition of office does not arise. The right itself
disappeared with the abolished office as an accessory
following the principal.
Busacay v. Buenaventura
Busacay was laid off as toll collector when the
bridge was destroyed. However, the bridge was later
reconstructed and opened to the public with a new
collector being appointed. Busacay was ordered
reinstated by the SC. To consider an office abolished,
there must have been an intention to do away with it
wholly and permanently. In the case at bar, there was
never any thought of not rebuilding the bridge. The
collapse of the bridge did not work to destroy but only
to suspend the position of toll collector thereon, and
upon its reconstruction and re-opening, the collectors
right to the position was similarly and automatically
restored.

Manalang v. Quitoriano
The National Employment Service was established
by R.A. No. 761 in lieu of the Placement Bureau.
Quitoriano was appointed as NES Commissioner in
spite of the recommendation of the Labor secretary to
appoint Manalang who was the incumbent Director of
the Placement Bureau. SC held that appoint of
Quitoriano was valid. A removal implies that the office
still exists. R.A. No. 761, creating NES, expressly
abolished the Placement Bureau and, by implication,
the office of the Director of the Placement Bureau.
Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have
directed the retention, not the transfer, of qualified
personnel to the NES. Manalang has never been NES
Commissioner and thus could not have been removed
therefrom.
Abolition Must Be in Good Faith
As well settled to the rule that the abolition of an office does
not amount to an illegal removal or separation of its incumbent
is the principle that, in order to be valid, the abolition must be
made in good faith, not for personal or political reasons, and
not implemented in violation of law.

 Briones v. Osmea
Briones and Rosagaran were employees in the
Office of the City Mayor since 1937 and 1940,
respectively, In 1956, the City created 35 new
positions and abolished 32, of which the positions of
Briones and Rosagaran were included. Consequently,
the two were terminated. SC held that the termination
was not valid. While abolition does not imply removal
of the incumbent, this rule is true only where the
abolition is made in good faith. In other words, the
right to abolish cannot be used to discharge
employees in violation of the Civil Service law nor can
it be exercised for personal or political reasons.
Facundo v. Pabalan
There is no law which expressly authorizes a
municipal council to abolish the positions it has
created. However, the rule is well-settled that the
power to create an office includes the power to
abolish it, unless there are constitutional or statutory
rules providing otherwise. But the office must be
abolished in good faith.

Cruz v. Primicias
As well settled as the rule that the abolition of an
office does not amount to an illegal removal of its
incumbent is the principle that, in order to be valid, the
abolition must be made in good faith. Where the
abolition is made in bad faith, for political or personal
reasons, or in order to circumvent the constitutional
security of tenure of civil service employees, it is null
and void. In the case at bar, while 22 positions were
abolished, 28 new positions with higher salaries were
simultaneously created. No charge of inefficiency is
lodged against petitioners. In truth and in fact, what
respondents sought to achieve was to supplant civil
service eligibles with men of their choice, whose
tenure would be totally dependent upon their pleasure
and discretion.
Reorganization
Reorganization occurs where there is an alteration of
the existing structure of government offices or units therein,
including the lines of control, authority and responsibility
between them to promote greater efficiency, to remove
redundancy of functions, or to effect economy and make it
more responsive to the needs of their public clientele. It may
result in the loss of ones position through removal or abolition
of office. Reorganization of the government may be required by
law independently of specific constitutional authorization. But in
order to be valid, it must also be done in good faith.
Board of Directors of PCSO v. Alandy
Alandy was the incumbent Assistant General
Manager of the PCSO. In 1954, Resolution No. 314
was passed to reorganize the PCSO. The position of
Assistant General Manager was converted to General
Field Supervisor to which Alandy was appointed.
However, in 1955, the position of Assistant General
Manager was again created through Resolution No.
422 and a different person was appointed to the
position. SC invalidated the new appointment and
reinstated Alandy to his position as PCSO Assistant
General Manager. What occurred here is that the

position of Assistant General Manager was not

abolished but was merely converted to another
position. As such, the conversion merely caused the
giving of additional functions to Alandy, who still held
the position of Assistant General Manager.

Dario v. Mison
In pursuance of its reorganization policy, Pres.
Aquino issued EO 127 in 1987 which provided for the
reorganization of the Bureau of Customs. Pursuant to
EO 127, Commissioner Mison terminated a total of
310 employees. Upon appeal, the CSC ordered the
reinstatement of 283 employees which was upheld by
the SC. The dismissal are not valid. There is no
dispute that pursuant to the Freedom Constitution and
the various executive orders issued by Pres. Aquino,
the different departments of government were
authorized to carry on reorganization programs. But
the nature and extent of the power to reorganize were
circumscribed by the source of the power itself. The
Reorganization process is made up of two stages.
The first stage, which was effected pursuant to
Proclamation 3, allowed removals not for cause, and
it ended on 02 February 1987. On the other hand, the
second stage is a continuing one from 02 February
1987 pursuant to the 1987 Constitution. The 1987
Constitution requires that removal not for cause
must be a result of reorganization. Such removals
must also pass the test of good faith, a test obviously
not required under the first stage which was
envisioned as a purgation.
A reorganization is carried out in good faith if it is
for the purpose of economy or to make the
bureaucracy more efficient. Good faith, as a
component of reorganization under a constitutional
regime, is judged from the facts of each case. In the
case at bar, there was lack of good faith. Misons
argument that the reorganization is progressive would
be valid only if it was pursuant to Proclamation 3.
However, in spite of her immense revolutionary
power, Pres. Aquino still promulgated EO 17 which
established
safeguards against the propensity that accompany
reorganizations and established the rule that
dismissals should be based on findings of inefficiency,
graft and unfitness to render public service. Assuming
then that the reorganization in the first stage was
progressive and still valid, such dismissals as ordered
by Mison would still have to comply with the terms set
down in EO 17.
Rubenecia v. CSC
SC upheld power of the CSC to transfer jurisdiction
over administrative appeals from the Merit Systems
Protection Board to the CSC en banc itself. The 1987
Administrative Code made clear that the MPSB was
intended to be an office of the CSC like any other of
the other 13 offices in the CSC. In other words, the
MPSB was a part of the internal structure and
organization of the CSC. It was not an autonomous
entity created by law and merely attached for
administrative purposes to the CSC. Thus, it was a
proper subject of organizational change which the
CSC is authorized to undertake under the present
Civil Service law. The resolution merely re-allocated

to the CSC itself the functions of the MPSB relating to

the determination of administrative disciplinary cases
to streamline the operation of the CSC. It did not
purport to abolish the MPSB nor to effect the
termination of the relationship of public employment
between CSC and any of its officers or employees.
Abandonment of Office
A public office may become vacant ipso facto by
abandonment and non-user. When an office is once
abandoned, the former incumbent cannot legally
repossess it even by forcible re-occupancy.
Abandonment must be total and absolute, and must
be under such circumstances as clearly to indicate an
absolute relinquishment thereof. Moreover, the officer
should manifest a clear intention to abandon the office and
its duties. Abandonment by reason of acceptance of
another office, in order to be effective and binding, must
spring from and be accompanied by deliberation and
freedom of choice, either to keep the old office or
renounce it for another. Temporary absence is not
sufficient.
Summers v. Ozaeta
Summers, a cadastral judge, assumed office as CFI
judge due to an ad interim appointment. However, the
ad interim appointment was disapproved and
Summers now seeks to be reappointed as cadastral
judge. SC held that Summers voluntary acceptance
of the position of CFI judge amounted to a waiver of
his right to hold the position of cadastral judge during
the term fixed and guaranteed by the Constitution. He
accepted and qualified for the position of judge-atlarge by taking the oath of office of judge-at-large, and
not merely of an acting judge-at-large. The situation
is one wherein he cannot legally hold two offices of
similar category at the same time.

Zandueta v. Dela Costa

When a public official accepts an appointment to an

office newly created or reorganized by law which new
office is incompatible with his former office, qualifies
for the position, takes the necessary oath, and
executes acts inherent in the newly created office, he
will be considered to have abandoned the office he
was occupying by virtue of his former appointment
and he cannot question the constitutionality of the law
by virtue of which he was appointed.
Floresca v. Quetulio
Florescas refusal to assume his pre-war post as
Justice of the Peace and his subsequent acceptance
of other employments without any pretense on his
part that he simultaneously continued to perform the
functions of the Justice of the Peace, clearly show
deliberate abandonment of the latter office.

Ortiz v. De Guzman

Ortiz allowed three years to elapse since he was

ousted from office without having taken any steps to
reclaim his former office. SC held that he cannot ask
for reinstatement. A public employee who voluntarily
abandons his office for a long time is estopped from
asking for reinstatement. In order to constitute an
abandonment of office, it must be total, and under
such circumstances as to clearly indicate an absolute
relinquishment. Temporary absence is not sufficient
where no statute fixes the period beyond which the
absence must continue. In all cases, the officer
should manifest a clear intention to abandon the office
and its duties. Yet, this intention may be inferred from
his conduct. If his acts and statements are such as to
clearly indicate absolute relinquishment, a vacancy
will be thereby created and no judicial determination
is necessary. When once abandoned, the former
incumbent cannot legally repossess the office.

Madrid v. Auditor General

One claiming the right to a position in the civil
service must institute the proper proceeding within
one year from the date of separation, otherwise he is
deemed to have abandoned his office or even
acquiesced or consented to his removal, and thus is
not entitled to seek reinstatement. The rationale is to
inform the Government of the rightful holder of the
office and to prevent payment of salary to both
claimants.

Magana v. Auditor General

Having accepted the benefits accruing from the
abolition of his office, he is estopped from questioning
its validity or deemed to have waived the right to
contest the same.

Villegas v. Subido
Villegas did not abandon his office as mayor of the
City of Manila when he assumed the position of
Director of NAWASA because he had been merely
designated in an acting capacity and was not
appointed to the said position.

Tan v. Gimenez

The fact that, during the time his appeal was

pending and was thus deprived of his office and
salary, an employee sought employment in another
branch of the government does not constitute
abandonment of his former position.
Acceptance of an Incompatible Office
He who, while occupying one office, accepts another
office incompatible with the first, ipso facto absolutely
vacates the first office. That the second office is inferior to
the first does not affect the rule. And even though the title
to the second office fails as where election is void, the rule
is still the same, nor can the officer then regain the

possession of his former office to which another has been

appointed or elected.
If the law or Constitution as an expression of public
policy forbids the acceptance by a public officer of any
other office other than that which he holds, it is not a case
of incompatibility but of legal prohibition.

The views in the various jurisdictions are conflicting

in regard to what constitutes acceptance of a resignation
and whether an acceptance is required. According to
some authorities, no acceptance is necessary to render a
resignation effective, especially when the resignation is
unconditional and purports to take effect immediately.
Indeed, it may be provided by statute that the resignation
of a public officer is to take effect at the time of filing it.

Incompatibility of offices exists where:

(a) There is conflict in such duties and
functions so that the performance of the
duties of one interferes with the performance
of the duties of another, as to render it
improper for considerations of public policy
for one person to retain both.
(b) One is subordinate to the other and is
subject in some degree to its supervisory
powers for in such situation where both are
held by the same person, the design that
one acts as a check on the other would be
frustrated.
(c) The Constitution or the law itself, for
reasons of public policy, declares the
incompatibility even though there is no
inconsistency in the nature and functions of
the offices.
Exceptions to the Rule on Holding of Incompatible Offices
(a)

Where the officer cannot vacate the first office

by his own act, upon the principle that he will
not be permitted to thus do indirectly what he
could not do directly, as where the law
requires the approval of the provincial board
before a municipal official can resign.
(b)

First office is held under a different

government from that which
conferred the second.

(c)
Officer is expressly authorized by law
to accept another office.
(d)

Second office is temporary.

Resignation
A resignation of a public officer need not be in any
particular form, unless some form is prescribed by statute.
Ordinarily, it may either be in writing or by parol. The
conduct of an employee may properly be regarded as
constituting a resignation from the position held by him.
However, to constitute a complete and operative
resignation of public office, there must be an intention to
relinquish a part of the term, accompanied by the act of
relinquishment.
The right of a public officer to resign is well
recognized, even where it is provided than an officer may
hold over until election and qualification of a successor.
The right is sometimes recognized or secured by
constitution or statute.

However, many other cases take the view that to be

effective, the resignation must be accepted by competent
authority. Without acceptance, the resignation is nothing
and the officer remains in office. (63 Am Jur 2d., sec. 163)
Prof. Barlongay: Two (2) elements are necessary to
constitute an effective acceptance:
(1) intention to relinquish office coupled with
actual relinquishment; and
(2) acceptance of resignation.

Gonzales v. Hernandez
Gonzales filed a letter of resignation the pertinent
portion of which reads: x x x subject to the result of
my appeal with the Civil Service Board of Appeals,
and to the provisions of the Resolution of the Cabinet
on July 17, 1939. SC held that Gonzales, although
his conditional resignation was unconditionally
accepted, cannot be considered as having resigned
from office. There was no resignation to speak of. To
constitute a complete and operative act of resignation,
the officer or employee must show a clear intention to
relinquish or surrender his position. In the case at bar,
there was no such intention as Gonzales resignation
was subject to the result of his appeal.

Ortiz v. COMELEC
Petitioners separation from the government as a
result of the reorganization ordained by former Pres.
Aquino may not be considered a resignation within
the laws contemplation. Resignation is defined as the
act of giving up or the act of an officer by which he
declines his office and renounces the further right to
use it. To constitute a complete and operative act of
resignation, the officer or employee must show a clear
intention to relinquish his position accompanied by the
act of relinquishment and its acceptance by
competent and lawful authority. Based on the facts,
petitioners resignation lacks the element of clear
intention to surrender his position. We cannot
presume such intention from the letter he sent placing
himself at the disposal of the President. He did not
categorically state that he was unconditionally giving
up his position. It should be good to note that said
letter was actually a response to Proclamation No. 1
of Pres. Aquino calling all appointive public officials to
offer their courtesy resignation.
A courtesy resignation cannot properly be
interpreted as resignation in a legal sense. It just
manifests the submission of a person to the will of the
political authority.

Prof. Barlongay: Courtesy resignation is not allowed in

(1) career positions and (2) non-career positions with
security of tenure (i.e. local elective officials).
Removal for Cause
No officer or employee of the civil service shall be
removed or suspended except for cause provided by law (Sec.
2(3), Art. IX, 1987 Constitution).
Grounds for Removal from Office
For Presidential appointees, Prof. Barlongay states
that there is no specific law providing for the grounds for
their removal. Determination of grounds is just a matter of
practice and by analogy, the grounds used for nonpresidential appointees are made applicable.
For civil service officials and employees, see Sec. 46,
Book V, E.O. No. 292 which provides for at least 30
grounds for disciplinary action.
For local elective officials, Sec. 60 of the Local
Government Code provides for the grounds where an
elective local official may be disciplined, suspended or
removed from office.
Misconduct need not be in office in case
of appointive officers.
Misconduct must be in office in case of elective officers.

Misconduct committed during a prior term, not a ground

for dismissal

Pascual v. Provincial Board

The SC held that the weight of authority follows the
rule which denies the right to remove one from office
because of misconduct during a prior term. Offenses
committed or acts done during a previous term are
generally held not to furnish cause for removal and
this is especially true where the Constitution provides
that the penalty in proceedings for removal shall not
extend beyond the removal from office and
disqualification from holding office for the term for
which the officer was elected and appointed. The
underlying theory is that each term is separate from
other terms and that re-election to office operates as
a condonation of the officers previous misconduct to
the extent of cutting off the right to remove him
therefore.
Aguinaldo v. Santos
SC held that Aquinaldo should not be removed from
office. His re-election to the position of Governor of
Cagayan has rendered the administrative case
pending before it moot and academic.
Offenses committed or acts done, during a
previous term are generally not held to furnish cause
for removal. The Court should never remove a public
officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of
their right to elect their officers. When the people have
elected a man to office, it must be assumed that they
did this with knowledge of his life and character, and
that they

Nera v. Garcia
Under the Revised Administrative Code, the rule in
preventive suspension provides that a Bureau Chief
may suspend, with the approval of the head of the
department, any subordinate officer or employee if he
is charged with dishonesty, oppression or grave
misconduct or neglect in the performance of duty. The
same words are expressed in the civil service law.
From these provisions, suspension was proper even if
the dishonest act was not in the performance of his
duty since under the Revised Administrative Code
and the Civil Service Law, dishonesty was not
qualified by the phrase in the performance of duty.

Ochate v. Ty Deling
The SC held that the facts alleged in the
administrative charge, as substantiated by the
affidavits of the complainants, do not justify the
administrative proceedings instituted against the
petitioner and his suspension by the governor. The
alleged libel imputed to the mayor was not such
misconduct even if the term misconduct in office be
taken in its broadest sense. The radio broadcast in
which the objectionable utterances were made had
nothing to do with his official functions and duties as a
mayor.

disregarded or forgave his fault or misconduct, if guilty

of any. It is not for the court, by reason of such fault or
misconduct, to practically overruled the will of the
people.
The rule then is that a public officer cannot be
removed for administrative misconduct committed
during a prior term, since his reelection to office
operates as a condonation of the officers previous
misconduct to the extent of cutting off the right to
remove him therefore. This rule, however, is not
applicable to criminal cases pending against the
petitioner for acts he may have committed during the
failed coup.
Transfer from One Position to Another May or May Not
Constitute
Violation of Security of Tenure
A transfer is a movement from one position to
another which is of equivalent rank, level, or salary without
break in service involving the issuance of an appointment.
It shall not be considered disciplinary when made in
the interest of public service, in which case, the employee
concerned shall be informed of the reasons therefore. If
the employee believes that there is no justification for the
transfer, he may appeal to the SC.

The transfer may be from one department or agency

to another or from one organizational unit to another in the
same department or agency; Provided, however that any
movement from the non-career service to the career
service shall not be considered a transfer.
Lacson v. Romero
Lacson was appointed provincial fiscal of Negros
Oriental by the President. However, three years after,
another person was appointed to the same position
while Lacson was nominated to the position of
provincial fiscal of Tarlac. Lacson never accepted the
appointment and did not assume the duties of said
office. The SC held that Lacson has the right to
occupy the office of provincial fiscal of Negros
Oriental as he neither accepted nor assumed the
office of provincial fiscal of Tarlac and no one can
compel his to do so.
The intended transfer of Lacson to Tarlac, if carried
out without the approval of Lacson, would be
equivalent to a removal from his office in Negros
Oriental. The reason is that a fiscal is appointed for
each province and Lacson could not legally hold and
occupy the two posts of fiscal of Tarlac and Negros
Oriental simultaneously. Therefore, to be a fiscal of
Tarlac must mean his removal from office in Negros.
Since the transfer in the case at bar is considered
a removal, such should be for cause in order for the
other person to legally occupy the office in Negros.
There was no cause for Lacsons removal. He
therefore remains as fiscal of Negro.

capacity and must yield to the latter. The reason for this is
that there was no valid termination.
Recall
The Congress shall enact a local government code
which shall provide for a more responsive and
accountable local government structure instituted through
a system of decentralization with effective mechanisms of
recall, initiative and referendum (Sec. 3, Art. X, 1987
Constitution)
Procedure for recall is provided in Sections 69-75 of
the Local Government Code.

Garcia v. COMELEC
SC upheld initiation of recall through the Preparatory
Recall Assembly. Recall is a mode of removal of a
public officer by the people before the end of his term
of office. The peoples prerogative to remove a public
officer is an incident to their sovereign power, and in
the absence of constitutional restraint, the power is
implied in all government operations. There are two
reasons why a Preparatory Recall Assembly is
allowed: (1) to diminish the difficulty of initiating recall
through direct action of the people; (2) to cut down on
expenses. Moreover, the Constitution does not
provide for any particularly mode of initiating recall
elections. Initiation by the Preparatory Recall
Assembly may be considered as initiation of recall by
the people, although done indirectly through
representatives. In any event, the composition of the
Preparatory Recall Assembly is politically neutral, so
loss of confidence cannot be said to be inspired by
difference in political party affiliation.
Prescription of Right to Office

Termination of Temporary Appointment

Quitiquit v. Villacorta
The appointment being temporary in character, the
same can be terminated at pleasure by the appointing
power.

Ferrer v. de Leon

One holding an office in a temporary capacity may

be ousted at anytime with or without cause.
What determines character of appointment

Hojilla v. Marino
The controlling factor in determining the character of
the appointment is the appointment itself. Even if a
position is permanent, if the appointment is made
temporary, the appointment is determinative. What is
determinative is not the nature of the office
(permanent or temporary), but the nature of the
appointment.
One appointed to a position of another who was
illegally suspended or dismissed, holds it in temporary

Unabia v. City Mayor

No reinstatement is possible in the case at bar.
Even if the removal was void for lack of cause,
Unabia filed his petition for reinstatement with the CFI
after a delay of one year and fifteen days. Any person
claiming a right to a position in the civil service is
required to file his petition for reinstatement within one
year, otherwise he is deemed to have abandoned his
office. Reason is public policy and convenience,
stability in the public service.
Prof. Barlongay: The one-year period is the
prescriptive period to claim public office (whether through
quo warranto or otherwise). The one-year period
presupposes judicial action, not administrative action.
Filing of Certificate of Candidacy
Sec. 66 of the Omnibus Election Code states that
any person holding appointive public offices or positions,
including active AFP members, is considered ipso
facto resigned from office by the mere filing of certificate of
candidacy.
Only the moment and act of filing are considered.
Once the certificate is filed, the seat is forever forfeited

and nothing, save a new election or appointment, can

restore the ousted official.

Note: The following provisions have been repealed by

Sec. 14 of R.A. 9006 (Fair Election Act of 2001):
Sec. 67 of B.P. 881 which states that
any elective official, whether national or
local, running for any office OTHER than
one which he is holding in a permanent
capacity, except for President and Vice
President, shall be considered ipso facto
resigned from office by the mere filing of
a certificate of candidacy.

The first proviso of Sec. 11 of R.A.

8436 which states that "Any elective
official, running for any officer other than
one which he is holding in a permanent
capacity, except for President and VicePresident, shall be considered ipso facto
resigned upon the start of the campaign
period."

Performance of Act or Accomplishment of Purpose for

which the Office was Created
Performance of act or accomplishment of
purpose renders office functus officio.