consti rev group 1 puboff

LAW ON PUBLIC OFFICERS

(A Written Report)

Submitted by:

GROUP 1

Ignacios Frank BollozosGyrle Batoctoy

Madelone LoncionRamon Legaspi

Cherry Mae LugodMuriel Wilma Baliton

CONSTITUTIONAL LAW REVIEW1st Semester, S.Y. 2014-2015

LAW ON PUBLIC OFFICERS

A. GENERAL PRINCIPLES

Philippine Constitution, Art. XISec. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

E.O. 292 (Administrative Code of 1997), Chapter 9, General Principles Governing Public Officers

Sec. 32. Nature of Public Office.Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with the utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.Sec. 33. Policy on Change of Citizenship.Public officers and employees owe the State and the Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.Sec. 34. Declaration of Assets, Liabilities and Net Worth.A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.Sec. 35. Ethics in Government.All public officers and employees shall be bound by a Code of Ethics to be promulgated by the Civil Service Commission.Sec. 36. Inhibition Against Purchase of Property at Tax Sale.No officer or employee of the government shall purchase directly or indirectly any property sold by the government for the non-payment of any tax, fee or other public charge. Any such purchase by an officer or employee shall be void.Sec. 37. Powers Incidental to Taking of Testimony.When authority to take testimony or receive evidence is conferred upon any administrative officer or any non-judicial person, committee, or other body, such authority shall include the power to administer oaths, summon witnesses, and require the production of documents by a subpoena duces tecum.Sec. 38. Liability of Superior Officers.(1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.(2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law.(3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.Sec. 39. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the

performance of his duties. However, he shall be liable for wilful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors.

Public Office

It is the right, authority, duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the people.

Elements:1. Created by law or by authority of law;2. Possess a delegation of a portion of the sovereign powers of

government, to be exercised for the benefit of the public;3. Powers conferred and duties imposed must be defined by the

legislature or by legislative authority;4. Duties must be performed independently and without control of

the superior power UNLESS they be those of an inferior or subordinate officer created or authorized by the legislature and placed under the general control of a superior officer or body;

5. Permanence or continuity.

Creation:1. Constitution;2. Statutory enactment; and3. Authority of law.

Public Officer

He is a person who holds office. Public Officer, as understood under criminal law:

Article 203. Any person who, by direct provision of law, popular election or appointment by competent authority shall take part in the performance of public functions in the Government; or shall perform in said Government public duties as an employee, agent, or subordinate official of any rank or class, shall be deemed to be a public officer.

As understood under R.A. 3019, the term includes elective and appointive officials and employees, permanent or temporary whether in the classified, unclassified or exempt services, receiving compensation, even nominal from the government.

Public Officer Distinguished from Clerk or Employee

Officer, duties not being of clerical or manual nature; involves the exercise of discretion in the performance of the functions of government. Includes any government employee, agent or body having authority to exercise that function.

Main characteristic that distinguishes a Public Officer

Creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public.

B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE

Official relations are commenced:1. Appointment2. Election

Appointment is the selection by the authority, vested with the power, of an individual who is to perform the functions of a given office. Appointment distinguished from:

1. Commission there is a written evidence of the appointment.2. Designation - it is the imposition of additional duties.

Election is the selection or designation by popular vote.

C. MODES AND KINDS OF APPOINTMENT

Appointment and its classifications:1. Permanent - Extended to the person possessing the requisite

qualifications. Has a security of tenure. 2. Temporary - Acting appointment; May not possess the requisite

qualifications for eligibility; Revocable at will, without necessity of just cause or a valid investigation; Acquisition of the appropriate civil service eligibility by a temporary appointee will not ipso facto convert the temporary appointment into a permanent one; new appointment is necessary;

Appointment to a position in the Career Service of the Civil Service does not necessarily mean that the appointment is a permanent one. As it depends on the nature of the appointment which in turn depends on the appointees eligibility or lack of it. Acceptance by petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. Temporary appointment shall not exceed 12 months. Mere designation does not confer security of tenure. As the person designated occupies the position only in an acting capacity. Appointment is subject to conditions, and appointment is not permanent. Appointee cannot claim a complete appointment as long as the re-evaluation incidental to the re-organization is still pending. Unless, terminated sooner. Even if co-terminous with the project, it is nevertheless subject to the appointing authority. Where temporary appointment is for a FIXED period, appointment may be revoked only at the expiration of the period OR if before, it must be for a valid and just cause.

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3. Regular - One made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments and continues until the end of the term.

4. Ad-interim - Made while Congress is not in session, before

confirmation by the Commission on Appointments, is immediately effective. It ceases to be valid if disapproved or bypassed by COA upon next adjournment of Congress.

Ad-interim is also a permanent appointment. Being subject to confirmation, does not alter its permanent character. Regular and Ad-interim Classification may be used only when referring to the following:

1) Heads of Executive Department;2) Ambassadors and other Public Ministers and Consuls;3) Officers of the AFP, from rank of colonel or naval captain;4) Officers whose appointments are vested in the President under the

Constitution.

D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS

Eligibility is the state or quality of being legally fit or qualified to be chosen. It is an endowment, requiremet or accomplishment that fits one for a public office.

On the other hand, a qualification is an endowment or act which a preson must do before he can occupy a public office. It must be possessed at the time of the appointment or election and continuously as long as the official relationship continues.

An oath of office is a qualifying requirement for a public office. Only when the public officer has satisfied this prerequisite can his right to enter into the position be considered plenary and complete (Lecaroz vs. Sandiganbayan, 1999). Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof (Mendoza vs. Laxina, 2003).

General Rule: Congress is empowered to prescribe the qualifications for holding public office. In the absence of consitutional prohibitions, Congress has the same right to provide disqualifications that it has to provide qualifications for office.

Restrictions on the power of the Congress to prescribe qualifications:

1. Congress cannot exceed its constitutional powers;2. Congress cannot impose conditions of eligibility inconsistent with

constitutional provisions;3. The qualification must be germane to the position;4. Where the Consitution establishes specific eligibility requirements for a

particular consitutional office, the constitutinal criteria are exclusive, and Congress cannot add to them except if the Consitution expressly or impliedly gives the power to set qualifications;

5. Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment.

Eligibility is presumed in favor of one who has been elected or appointed to public office. The right to public office should be strictly construed against inelibility (De Leon, 2008).






Religious test or qualification is not required. Article III, Section 5 of the Consititution provides, ... No religious test shall be required for the exercise of civil or political rights.

E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

Disqualification to hold public office.

In general: Individuals who lack ANY of the qualifications prescribed by the Constitution or by law for a public officer are ineligible (i.e. disqualified from holding such office).

Authority: The legislature has the right to prescribe disqualifications in the same manner that it can prescribe qualifications, provided that the prescribed disqualifications do not violate the Constitution.

General constitutional disqualifications:

1. Losing candidates cannot be appointed to any government office within one year after such election (Art. IX-B, Sec. 6).

2. Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B, Sec. 7[1]).

3. Appointive officials shall not hold any other governmental position, unless otherwise allowed by law or his position's primary functions (Art. IX-B, Sec. 7[2]).

The Constitution imposed prohibitions against the holding of two or more positions by the following public officers: Members of the Congress, the President, Vice-President, Members of the Cabinet and their deputies or assistants, unless otherwise allowed by the Consititution, and the Members of the Consitutional Commission.

Prohibitions imposed on public officers:

1. Prohibition against solicitation of gifts (Sec. 7[d], RA 6713)2. Prohibition against partisan political activities (Sec. 2[4], Art. IX-B,

Constitution)3. Prohibition against engaging in strike4. Restriction against engaging the practice of law5. Prohibition against practice of other professions6. Restriction against engaging in private business7. Restriction against accepting certain employment

Kinds of gifts or grants may public officers accept from foreign governments:

1. Gifts of nominal value received as a souvenir or mark of courtesy2. Scholarship or fellowship grant or medical treatment3. Travel grants or expenses for travel outside the Philippines

A partisan political activity is an act designed to promote the election or defeat of a particular candidate/s to a public office. It is known as electioneering (Sec. 79, Omnibus Election Code).

F. POWERS AND DUTIES OF PUBLIC OFFICERS


A public officer may exercised his powers and duties that are expressly conferred upon him by the act appointing him, or those that are expressly annexed to his office by law, or those attached to the office by common law as incidents to it.

The doctrine of necessary implication provides that all powers necessary for the effective exercise of the the express powers are deemed impliedly granted.

In the exercise of his powers and duties, a public officers has some measures of immunity and he would not incure liabilities provided he does an act within the scope of his authority and in good faith.

Classifications of powers and duties.

1. As to nature:

a. Ministerial the official duty is absolute, certain and imperative involving merely execution of a specific duty arising from fixed and designated facts.

It can be compelled by mandamus. It can be delegated.

b. Discretionary they are duties that necessarily require the exercise of reason in the adaption of means to an end, and discretio in determining how or whether the act shall be done or the course pursued.

Public officer may do whichever way he wants provided it is in accordance with law and is not whimsical.

It cannot be compelled by mandamus except when there is grave abuse of discretion.

It cannot be delegated unless otherwise provided by law.

2. As to the obligation of the officer to perform his powers and duties:

a. Mandatory powers conferred on public officers are generally construed as mandatory although the language may be permissive, where they are for the benefit of the public or individuals.

b. Permissive statutory provisions define the time and mode in which the public officers will discharge their dutoes, and those which are obviously designed merely to secure order, uniformity, system and dispatch in public business are generally directory.

3. As to the relationship of the officer to his subordinates:

a. Power of control implies the power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter.

b. Power of supervision the power of mere oversight over an inferior body which does not include any restraining authority over such body.

Duties of public officers:

1. To be accountable to the people.




2. To serve the people with utmoset responsbibility, integrity and efficiency.3. To act with patriotism and justice and lead modest lives.4. To submit a declaration under oath of his assets, liabilites, and net worth

upon assumption of office and as often thereafter as may be required by law.

5. To owe the State and the Constitution allegiance at all times.

G. RIGHTS OF PUBLIC OFFICERS

Right incident to public office.

The rights of one elected or appointed to office are, in general, measured by the Constitution or the law under which he was elected or appointed. Examples of these rights are those to security of tenure, to compensation/salary, and to appointments.

Rights as a citizen.

1. Protection from publication commenting on his fitness and the like.The mere fact that one occupies a public office does not deprive him of the protection accorded to citizens by the Constitution and the laws. However, by reason of the public character of his employentor office, a public officer is, in general, held not entitled to the same protection from publications commenting on his fitness and the like, as is accorded to the ordinary citizen.

2. Engaging in certain political and business activities.The government interest in maintaining a high level service by assuring the efficiency of its employees in the performance of their tasks may require public employees to suspend or refrain from certain political or business activities that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties.

Right to security of tenure.

This right means than no officer or employee in the civil service shall be suspended or dismissed except for a cause provided by law and after due process or after he shall have been given the opportunity to defend himself.

Once an appointment is issued and completed and the appointee assumes the position, he acquires a legal right, not merely an equitable right to the position (Lumigued vs. Exevea, GR No. 117565, Nov. 18, 1997).

regardless of the characterization of the position held by a government employee covered by the civil service rules, be it career or non career position, such employee may not be removed without just cause (Jocom vs. Regalado, GR No. 77373, Aug. 22, 1991).

Right to compensation.

The relation between an officer and the public is not the creation of contract, nor is the office itself a contract. Hence, his right to compensation is not the creation of contract but because the law attaches it to the office.

The right to compensation grows out of the services rendered. After services have been rendered, the compensation thus earned cannot be taken away

by a subsequent law.

The salary of a public officer may not, by garnishment, attachment or order of execution, be seized before being paid to him and appropriated for the payment of his debts. The rationale behind this doctrine is obvious consideration of public policy. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitiate & specific objects, as appropriated by law (De la Victoria vs. Burgos, 1995).

Rights under the Constitution.

1. Right to self-organizationThe right to self-organization shall not be denied to government employees (Sec. 2[5], Art. IX-B, Constitution). Government employees in the civil service are granted the right to form unions enjoyed by workers in the private sector. However, this constitutional grant does not guarantee them the right to bargain collectively with the government or to engage in concerted activities including the right to strike, which are enjoyed by private employees. They are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass actions which will result in temporary stoppage or disruption of public services.

2. Right to protection of temporary employeesEmployees in the government given temporary appointments do not enjoy security of tenure. They shall be given such protection as may be established by law to prevent indiscriminate dismissals and to see to it that their separation or replacement is made only for justifiable reasons.

3. Freedo of members of Congress from arrest and from being questionedA Senator or member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any Committee thereof (Sec. 11, Art. VI, Constitution).

4. Right not to be removed or suspended except for cause provided by lawImplicit in the consitutional prohibition against removal or suspension except for cause, is the existence of a charge, due hearing, and the finding of guilt by the proper authority.

Rights under the Civil Service Decree and the New Administrative Code

1. Right to preference in promotionNext-in-Rank Rule specifically applies only in cases of promotion. One who is next-in-rank to a vacancy is given preferential consideration for promotion to a vacant position, but it does not necessarily follow that he alone and no one else can be appointed. The preference given assumes that emmployees working in an office for longer period have gained not only superior skills but also greater dedication to the public service, provided that the acts of the appointing authority are bona fide for the best interest of the public service and the person chosen has the needed qualifications.

2. Right to present complaints and grievances




3. Right not to be suspended or dismissed except for cause as provided by law and after due process

4. Right to organize

Rights under the Revised Government Service Insurance Act

Covered employees are entitled to retirement benefits, separation benefits, unemployment or involuntary separation benefits, disability benefits, survivorship benefits, funeral benefits and life insurance benefits.

Right to reimbursement and indemnity

When a public officer, in the due performance of his duties, has been expressly or impliedly required by law to incur expenses on the public account, not covered by his salary or commission and not attributable to his own neglect or default, the reasonable and proper amount thereof forms a legitimate charge against the public for which he should be reimbursed.

Within the same limits, the officer is entitled to be indemnified by the public against the consequences of acts which he has been expressly or impliedly required to perform upon the public account, and which are not manifestly illegal and which he does not know to be wrong.

Right to reinstatement and back salary

Reinstatement means the restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal. Back salary or wages is a form of relief that restores the income that was lost by reason of unlawful dismissal.

For a plaintiff to succeed in seeking reinstatement to an office, he must prove his right to the office. Unless this right is shown, the action must fail even if the appointment of the successor is first in issue.

Right to property, devices and inventions

Title to a public office carries with it the right, during the incumbency of the officer, to the insignia and property thereof. Where such properties, devices and inventions are indispensable to the proper conduct of the office, the officer may not take them as his own property. If, not being required by law, they are prepared by the officer apart from his official duties and are not indispensable in the proper conduct of the office, the officer may acquire a property right therein.

H. LIABILITIES OF PUBLIC OFFICERS

The liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public (De Leon, 2008).

A public officer has a three-fold responsibilty:

1. Civil liability a public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within


the scope of his assigned tasks.

2. Criminal liability the mere fact that an officer is acting in an official capacity will not relieve him from criminal liability. If the law has attached a penal sanction, the officer may be punished criminally.

3. Administrative liability such violation may also lead to imposition of fine, reprimand, suspension or removal from office. This liability is separate and distinct from the penal and civil liabilities (Agpalo, 2005).

General Rule: Public officers are not liable for injuries sustained by another in the performance of his official acts done within the scope of his authority.

Exceptions:

1. Otherwise provided by law;2. Statutory liability under the Civil Code (Arts. 27, 32, and 34);3. Presence of bad faith, malice or negligence;4. Liability on contracts entered into in excess or without authority;5. Liability on tort if the public officer acted beyond the limits authority and

there is bad faith (US vs. Reyes, GR No. 79253, Mar. 1, 1993).

Liabilities of ministerial officers:

1. Non-feasance neglect to perform an act which is the officer's legal obligation to perform.

2. Misfeasance the failure to observe the proper degree of care, skill and diligence required in the performance of official duty; and

3. Malfeasance performance of an act which the officer had no legal right to perform.

The doctrine of command responsibility provides that a superior officer is liable for the acts of his subordinate in the following instance:

1. He negligently or willfully employs or retains unfit or incompetent subordinates;

2. He negligently or willfully fails to require his subordinates to conform to prescribed regulations;

3. He negligently or carelessly oversees the business of the office as to give his subordinates the opportunity for default;

4. He directed, cooperated, or authorized the wrongful act;5. The law expressly makes him liable (Sec. 38-39, Chapter 9, Book I, E.O.

No. 292, Administrative Code of 1987).

Here are some grounds for the discipline of public officers: dishonesty, oppression, neglect of duty, misconduct, disgraceful and immoral conduct, discourtesy in the course of official duties, inefficiency and incompetence in the performance of official duties, conviction of a crime involving moral turpitude, being notoriously undesirable, falsification of official documents, habitual drunkenness, gambling, refusal to perform official duty or render overtie service, physical or mental incapacity due to immoral or vicious habits, and willful refusal to pay just debts or willful refusal to pay taxes.

Preventive suspension is not a penalty by itself; it is merely a measure of precaution so that the employee who is charged may be separated from the scene




of his alleged misfeasance while the same is being investigated, to prevent him from using his position or office to influence prospective witnesses or tamper with the records which may be vital in the prosecution of the case against him (Beja vs. CA, GR No. 91749, Mar. 31, 1992).

There are two kinds of preventive suspension:

1. Preventive suspension pending investigation the proper disciplining authority may preventively suspend any subordinate officer under his authority pending an investigation, if the charge against such officer involves dishonesty, oppression or grave misconduct or neglect in the performance of duty or if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from office (De Leon, 2008).

2. Preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Caniete vs. Sec. of Education, 2000).

To distinguish between the two kinds of preventive suspension:

PENDING INVESTIGATION PENDING APPEALNot a penalty but only a means of enabling the disciplinary authority an unhampered investigation.

Punitive in character.

After the lapse of 90 days, the law provides that he be automatically reinstated.

If exonerated, he should be reinstated with full pay for the period of suspension.

During such preventive suspension, the employee is not entitled to payment of salaries.

If during the appeal he remains suspended and the penalty imposed is only reprimand, the suspension pending appeal becomes illegal and he is entitled to back salary corresponding to the period of suspension.

The following are the periods for preventive suspension and their related laws:

1. For administrative cases:a. Civil Service Law 90 daysb. Local Governent Code (RA 7160)

i. Sec. 85 60 days for appointive officialsii. Sec.63 60 or 90 days for elective officials

c. Ombudsman Act 6 months

2. For criminal cases: Anti-Graft and Corrupt Practices Act (RA 3019) 90 days by analogy

Illegal dismissal, reinstatement and back salaries

Reinstatement and back salary or wages arfe separate and distinct reliefs given to an illegally dismissed official or employee.

Where an officer was unlawfully removed and prevented for a time by no fault of his own from performing the duties of his office, it was held that he might



recover, and that the amount that he had earned in other employment during his unlawful removal should not be deducted from his unpaid salary. He mar recover the full amount notwithstanding that during the period of his removal, the salary has been paid to another appointed to fill the vacancy unlawfully created.

If the illegal dismissal is found to have been made in bad faith by the superior officers then they will be held personally accountable for back salaries of the illegally dismissed employee.

The award of backwages is limited to a maximum period of five years and not to full back salaries from illegal termination up to reinstatement (David vs. Gania, 2003).

I. IMMUNITY OF PUBLIC OFFICERS

Immunity is an exemption that a person or entity enjoys from the normal operation of the law such as a legal duty or liability, eirther criminal or civil.

It is well settled as a general rule that public officers of the government, in the performance of their public functions, are not liable to third persons, either for the misfeasances or positive wrongs, or for the nonfeasances, negligences, or omissions of duty of their official subordinates (McCarthy vs. Aldanese, GR No. L-19715, Mar. 5, 1923).

This doctrine is applicable only whenever a public officer is in the performance of his public functions. On the other hand, this doctrine does not apply whenever a public officer acts outside the scope of his public functions.

The immunity of public officers from liability for the non-feasances, negligence or omissions of duty of their official subordinates and even for the latter's misfeasances or positive wrongs rests upon obvious considerations of public policy, the necessities of the public service and the perplexities and embarassments of a contrary doctrine (Reyes, et. al. vs. Rural Bank of San Miguel [Bulacan], Inc., GR No. 154499, Feb. 27, 2004).

When official immunity is distinguished from state immunity, the former is a more limited principle than the latter since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his government function. The latter serves to protect the impersonal body politic or government itself from tort liability.

A public officer enjoys only qualified, not absolute, immunity. The protection afforded by the doctrine generally applies only to activities within the scope of office that are in good faith and are not reckless, malicious or corrupt. Acts of a public officer are protected by the presumption of good faith. Even mistakes concededly committed by such a public officer in the discharge of his official duties are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith.

J. DE FACTO OFFICERS

A de facto officer is one who assumed office under the color of a known appointment or election but which appointment or election is void for reasons that the officer was not eligible, or that there was want of power in the electing body, or that there was some other defect or irregularity in its exercise, wherein such ineligibility, want of power, or defect being unknown to the public.





He is entitled to emoluments for actual services rendered, and he cannot be made to reimburse funds disbursed during his term of office because his acts are valid as those of a de jure officer.

A de jure officer is one who is in all respects legally appointed or elected and qualified to exercise the office.

Elements of a de facto officer:

1. Without a known appointmet or election;2. Under the color of a known and valid appointment or election;3. Under color of a known election or appointment, BUT 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;

4. Under the color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such

Distinguish de facto officer from de jure officer.

DE FACTO OFFICER DE JURE OFFICERHas possession and performs the duties under a colorable title without being technically qualified in all points of law to act.

Has lawful title to the office.

Holding of office rests on reputation. Holding of office rests on right.Officer may be ousted in a direct proceeding against him.

Officer cannot be removed through a direct proceeding (quo warranto).

The following are ways to challenge a de facto officer:

1. The incumbency may not be challenged collaterally or in an action to which the de facto officer is not a party;

2. The challenge must be made in a direct proceeding where title to the office will be the principle issue;

3. The authorized proceeding is quo warranto, either by the Solicitor General in the name of the Republic or by any person claiming title to the office.

K. TERMINATION OF OFFICIAL RELATION

The following are the modes of terminating official relationships:

1. Expiration of term or tenure2. Reaching the age limit for retirement3. Resignation4. Recall5. Removal6. Abandonment7. Acceptance of an incompatible office8. Abolition of office9. Prescription of the right to office10. Impeachment11. Death


12. Failure to assume office13. Conviction of a crime14. Filing of a certificate of candidacy

L. THE CIVIL SERVICE

1. SCOPE

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned-and-controlled corporations (GOCCs) with original charters.

2. APPOINTMENTS TO THE CIVIL SERVICE

Competitive positions are those according to merit and fitness to be determined by competitive examinations, as far as practicable.

Non-competitive positions are those that no longer need competitive examinations.

Non-competitive positions have three kinds:

1. Policy-determining tasked to formulate a method of action for the government or any of its subdivisions;

2. Primarily confidential duties are not merely clerical but devolve upon the head of an office, which, by reason of his numerous duties, delegates his duties to others, the performance of which requires skill, judgment, trust and confidence;

3. Highly technical requires technical skill or training in the highest degree.

The test to determine whether the position is non-competitive is the nature of the responsibilities, not the description given to it.

3. PERSONNEL ACTIONS

Promotion is a ovement from one position to another with increase in duties and responsibilities as authorized by law and is usually accompanied by an increase in pay.

Appointment through a Certification is issued to a person who is selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles.

Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service.

Reinstatement is technically the issuance of a new appointment and is discretionary on the part of the appointing power.

Detail is the movement of an employee from one agency to another without the issuance of an appointment.

Reassignment is the movement of an employee from one organizational unit to another in the same agency.

Reemployment is that which names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for reemployment shall be made.

M. ACCOUNTABILITY OF PUBLIC OFFICERS

1. IMPEACHMENT

Impeachment is defined by Alexander Hamilton as a method of national inquest into the conduct of public men. The Oxford dictionary defines it as a formal accusation of wrongdoing. It is a criminal proceeding against a public officer, before a quasi-judicial political court, instituted by a written accusation called 'the articles of impeachment'(Agpalo, 2005).

Its purpose is to protect the people from official delinquencies or malfeasances and for the protection of the State, not for the punishment of the offender.

The following are impeachable public officers:

1. The PRESIDENT and the VICE-PRESIDENT2. The MEMBERS OF THE SUPREME COURT3. The MEMBERS OF THE CONSTITUTIONAL COMMISIONS 4. The OMBUDSMAN

Grounds (Sec 2, Article XI, Constitution):

Culpable violation of the Constitution is the deliberate and wrongful breach of the Constitution. Violation of the Constitution made unintentionally, in good faith, and mere mistakes in the proper construction of the Constitution do not constitute and impeachable offense. Treason is committed by any person who, owing allegiance to the Government of the Philippines, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippines or elsewhere. (Art. 114, Revised Penal Code) Bribery, as an impeachable offense may either be Direct Bribery or Indirect Bribery.

Graft and Corruption must be understood in the light of the provisions of the Republic Act No. 3019, Anti-Graft and Corrupt Practices Act.. Any violation of the prohibited acts provided therein constitutes a ground for impeachment. Other high crimes or Betrayal of Public Trust. The exact meaning of "other high crimes or betrayal of public trust" as an impeachable offense is still undefined.

The framers of the Constitution put impeachment into the hands of the legislative branch and transformed it from a matter of legal definition to a matter of political judgment. Hence, the definition of an impeachable offense depends on the majority of the House of Representatives considers it to be a given moment in history.


In impeachment investigation against President Quirino, the special committee of the House of Representatives referred "other high crimes" as to those crimes which, like treason and bribery, are of so serious and enormous a nature as to affect the very life or orderly workings of the government. Betrayal of Public Trust, on the other hand, is a new ground for impeachment, which covers "any violation of the oath of office involving loss of popular support even if the violation may not amount to a punishable offense." (De Leon, Philippine Constitutional Law, 1999, Rex Printing Company, Inc., p.757)

Procedure

The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

1. A verified complaint for impeachment shall be filed by any member of the House of Representatives or by any citizen upon a resolution or endorsement by any member thereof.

2. 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.

3. In case the verified complaint or resolution of impeachment is

filed byat 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.

4. No impeachment proceedings shall be initiated against the

same official more than once within a period of one year. 5. 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.

6. Judgment in cases of impeachment shall not extend further than

removal from office and disqualification to hold any 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.

7. The Congress shall promulgate its rules on impeachment to

effectively carry out the purpose of this section.

2. OMBUDSMAN (SECTIONS 5 TO 14, ARTICLE XI OF THE 1987 CONSTITUTION, IN RELATION TO R.A. NO. 6770, OR OTHERWISE KNOWN AS "THE OMBUDSMAN ACT OF 1989.")

a) FUNCTIONS






Discplinary powers over public officers.

The Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries. (Sec. 21, RA 6770). Such authority, however, is not exclusive but is shared with other disciplinary authorities of the government.

Exceptions to Ombudsmans Disciplinary Power

The Ombudsman has no disciplinary power over the following (Sec. 21, RA 6770):

1. Officials who may be removed only by impeachment2. Members of Congress3. Members of the Judiciary

The Office of the Ombudsman has the power to investigate any serious misconduct in office committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Sec. 22, RA 6770)

Power to Preventively Suspend

1. If in his judgment the evidence of guilt is strong;2. The charge against such officer or employee involves

dishonesty, oppression or grave misconduct or neglect in the performance of duty;

3. The charges would warrant removal from the service;4. The respondent's continued stay in office may prejudice the

case filed against him. (Sec. 24, RA 6770)

Suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Sec. 24, RA 6770)

b) JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS

Decisions or resolutions of the Ombudsman in administrative cases absolving the respondent of the charge or imposing upon him the penalty of public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, is final and unappealable. (Agpalo, 2005) Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. [Fabian v. Ombudsman, (1998)]

c) JUDICIAL REVIEW IN PENAL PROCEEDINGS









In all other cases, the decision shall become final after the expiration of 10 days from receipt thereof by the respondent, unless a motion for reconsideration or a petition for review is file with the CA pursuant to Rule 43 of the Rules of Court. (Agpalo, 2005)

"The decision of the Ombudsman is immediately executory pending appeal and may not be stayed by the filing of the appeal or the issuance of an injunctive writ." - Supreme Court.

3. SANDIGANBAYAN

The Sandiganbayan exercises exclusive original jurisdiction over the following cases:

1. Violations of RA No. 3019 (Anti-graft and corrupt practices act) and No. 1379 (An Act Declaring Forfeiture In Favor Of The State Any Property Found To Have Been Unlawfully Acquired By Any Public Officer Or Employee);

2. Crimes committed by public officers and employees under Title VIII of the Revised Penal Code (Crimes against Persons);

3. Other offenses or felonies in relation to their office;4. Civil and criminal cases filed pursuant to and in connection with EO

No. 1,2,14 and 14-a issued in 1986

In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employess, including those employed in GOCCs, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction.

4. ILL-GOTTEN WEALTH

Ill-gotten wealth means any asset, property, business enterprise or material possession of any person acquired by himself directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following similar schemes:

1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2. By receiving directly or indirectly, any commission, gift, share, percentage, kickbacks from any person or entity in connection with any government contract or project by reason of his public office;

3. By the illegal or fraudulent disposition or conveyance of assets belonging to the National Government;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment;

5. By establishing agricultural, industrial or commercial monopolies intended to benefit particular persons or special interests;


6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself

N. TERM LIMITS

All elective local officials, except barangay officials shall have a term of office of 3 years from noon of June 30, 1992 or the date provided by law (Sec. Art. X, Constitution; Sec. 43, LGC).No official shall serve for more than 3 consecutive terms for the same position. Voluntary renunciation of the office for any length of time is not an interruption in the continuity of his service for the full term for which he was elected.Under RA No. 9164 (Synchronized Barangay and Sangguniang Kabataan Elections), the term of office shall be the same as above mentioned.

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