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MID-TERM EXAMINATION IN ADMINISTRATIVE LAW, PUBLIC OFFICERS &

ELECTION LAW

ARELLANO UNIVERSITY SCHOOL OF LAW

FIRST SEMESTER, SY 2008-2009

1. Define public office. How is it created? It is the right, authority, and duty, created and conferredby law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power,an individual is invested with some portion of the sovereign functions of the state to be exercised by himfor the benefit of the body politic. It may be created by the constitution, by legislative enactment, or byauthority of law.

2. ho is a de facto officer? !an a usurper ripen into a de facto officer? hy? " de facto officer isone whose acts, though not those of a lawful officer, the law, upon principles of policy and #ustice, willhold valid so far as they involve the interests of the public and third persons, where the duties of theoffice were exercised$

a% without a &nown appointment or election, but under such circumstances of reputation orac'uiescence as were calculated to induce the people, without in'uiry, to submit to or invo&e his action,supposing him to be the officer he assumed to be(

b% under color of a &nown and valid appointment or election, but where the officer had failed toconform to some precedent, or condition, as to ta&e an oath, give a bond, or the li&e(

c% under color of a &nown appointment or election, void, because the officer was not eligible, orbecause there was a want of power in the electing or appointing body, or by reason of some defect orirregularity in its exercise, such ineligibility, want of power, or defect being un&nown to the public( and

d% under color of an election or an appointment by or pursuant to a public, unconstitutional lawbefore the same is ad#udged to be such.

)es, a usurper can ripen into a de facto officer under circumstances falling under paragraph *a%above.

+. hen is an appointment regular and when is it ad interim? "rt. II, -ec. 1 of the !onstitutionmandates the appointment by the /resident of certain public officers with the consent of the !ommissionon "ppointments. In this regard, the appointment is regular when it is issued after the nomination isconfirmed by the !ommission on "ppointments when !ongress is in session. "n ad interim appointmentis issued prior to such confirmation and when !ongress is in recess.

0. Distinguish preventive suspension pending investigation and preventive suspension pendingappeal? In which of these two *2% is the respondent public officer entitled to bac&wages and under whatconditions? /reventive suspension pending investigation is imposed on a civil service employee who isunder investigation for an administrative offense. It is a preliminary step in an administrativeinvestigation and it is not in any way the final determination of his guilt. Its purpose is to prevent the civilservice employee from influencing in any manner the outcome of the investigation. It is limited to amaximum of ninety *3% days. Investigation pending appeal constitutes a penalty that has to be servedby the civil service employee where he has been found guilty of the administrative charge and he appealsfrom the adverse decision.

" civil service employee is entitled to bac&wages corresponding to the period of his preventivesuspension pending appeal if he is exonerated of the administrative charge but not for the periodcorresponding to his preventive suspension pending investigation. 4he reason for this is that suspensionpending investigation is not a penalty. However, if there is absolutely no basis for his preventivesuspension pending investigation and the same is un#ustified, he may be entitled to bac&wages for theperiod corresponding to his preventive suspension pending investigation.

5. hat is the scope of the !ivil -ervice? 4he !onstitution provides that the !ivil -ervice embracesall branches, subdivision, instrumentalities, and agencies of the 6overnment, including government7owned and controlled corporations with original charters.

. hat characteri8e the career service and what characteri8e the non7career service? 4he careerservice is characteri8ed by i% entrance based on merit and fitness to be determined as far as practicableby competitive examinations or based on highly technical 'ualifications, ii% opportunity for advancementto higher career positions, and iii% security of tenure.

4he non7career service is characteri8ed by i% entrance on bases of other than those of usual testsof merit and fitness for the career service, ii% tenure which is limited to a period specified by law, orwhich is co7terminous with that of the appointing authority or sub#ect to his pleasure, or which is limitedto the duration of a particular pro#ect for which purposes employment was made.

9. hat constitutes nepotism? :epotism is the practice of appointing to public office relatives up to

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the third degree of consanguinity of affinity of the appointing or recommending authority, or the chief ofthe bureau or office, or of the offices exercising immediate supervision over the appointee.

;. Distinguish the following personnel actions from each other$ a% transfer, b% detail, c%reassignment, and d% detail. a% 4ransfer is movement from one position to another which is of e'uivalent

ran&, level or salary without brea& in service involving issuance of an appointment. 4he transfer may befrom one department or agency to another or from one organi8ational unit to another in the samedepartment or agency. b% rule apply? It applies to thefilling up of a vacancy by the promotion of a civil service employee. It does not apply when the vacancyis filled up not by means of promotion but by transfer, reinstatement, re7employment, or by appointmentof persons with the appropriate civil service eligibility.

13. xplain and distinguish from each other the principle of finality of administrative action, the

doctrine of exhaustion of administrative remedies, and the doctrine of prior resort. 4he principle offinality of administrative action states that courts are reluctant to interfere with the administrative actionprior to its completion and finality. " final resolution or order that puts an end to the administrative actionis a condition precedent for resort to the courts. 4he doctrine of exhaustion of administrative remediesre'uires that when an administrative remedy is provided by law, relief must be sought by exhausting thisremedy before the courts will act. :o recourse can be had before the courts until all such administrativeremedies provided by law have been exhausted. 4he doctrine of prior resort states that the courts cannotand will not determine a controversy involving a 'uestion which is within the #urisdiction of anadministrative tribunal prior to the decision of that 'uestion by the administrative tribunal where the'uestion demands the exercise of the special &nowledge, experience, and services of the administrativetribunal.

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unlawful. -he should be entitled, therefore, to bac&wages corresponding to the sixty *3% days.

10. Fpon his appointment as Division !hief, Guan de la !ru8 immediately assumed office and dischargedthe functions of his office on "ugust 1, 233;. Fn&nown to Guan de la !ru8, a similar appointment to thesame position in the same office was issued to Earia de la !ru8 on Guly 1, 233; and who immediately too&

her oath but did not report to office. xplain the character of each of the appointment. hat remedy, ifany, does Earia de la !ru8 have? *13 pts.% 4he appointments of Guan de la !ru8 and Earia de la !ru8 areboth valid. It does not appear, however, that Guan de la !ru8 too& his oath of office before discharging thefunctions of his office. He is at best a de facto officer. Earia de la !ru8 having accepted the appointmentand having ta&en her oath, she is considered the de #ure officer. Her remedy is to file an action for 'uowarranto not later than one year from "ugust 1, 1;.

15. Fnder the Babor !ode, an appeal from the decision of the Babor "rbiter shall be made to the:ational Babor