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8/11/2019 FinalsReviewer-PublicOfficers

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I. MEANING, PURPOSE, AND CREATION OF PUBLIC OFFICE

Public Office- 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 thesovereign functions of the government, to be exercised by him for the benefit of the public.

Purposes of Public Office: Effecting the end for which government has been instituted which is the common good and not for

the profit, honor, or private interest of any person, family, or class of persons. Created in the interest and benefit of the people, and belongs to them.

Public office is a public trust.Public office is not a property.Public office is not a contract.

Enumerate the elements of a public office.

It is created by the Consti or by law or by some agency to which the power to create office hasbeen delegated.

It must be invested with an authority to exercise some portion of the sovereign power of the State tobe exercised for public interest.

Its powers and functions are defined by the Consti, or by law, or thru legislative authority Duties are performed independently without control of a superior power other than law It is continuing and permanent in nature and not occasional or intermittent

How is public office created?1. Generally, by some consti or statutory provision or by authority conferred by it.2. By Congress. Its creation is primarily a legislative function.

3. By the President.

II. MEANING OF OFFICER, PUBLIC OFFICER, EMPLOYEE/PUBLIC OFFICIAL

Officer - inseparably connected with an office- person whose duties involves the exercise of discretion in the performance of the functions of the

government- any government employee, agent, or body having authority to do the act or exercise that function

Public Officer - one who holds a public office. An officer is required by law to be elected or appointed, who has a

designation or title given to him by law, and who exercises functions concerning the public, assigned to himby law

Employee- any person in the service of the govt or any of its agencies, divisions, subdivisions, or

instrumentalities

Public Official


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- an officer of the Government itself, as distinguished from the officers and employees of instrumentalities of the Government.

III. MEANING OF ELIGIBILITY AND QUALIFICATION

Eligibility- state or quality of being legally fitted or qualified to be chosen. Eligibility to a public office is of a

continuing nature and must exist both at the commencement and during the occupancy of an office.

Qualification- endowment or accomplishment that fits one for office- the act which a person, before entering upon the performance of his duties, is by law, required to

do.

Nature of right to hold public office1. Not a natural right. It exists only because and by virtue of some law expressly or impliedly creating

and conferring it.

To hold a public office, one must be eligible and possess the qualifications prescribed by the Constiand by law.

2. Not a constitutional right. There is no constitutional right to run for office or hold elected office.Rather, it is a political privilege which depends upon the favor of the people.

Power of Congress to PRESCRIBE QUALIFICATIONS and DISQUALIFICATIONS

Congress is generally empowered to prescribe the qualifications for holding public office provided it doesnot exceed thereby its consti powers or impose conditions of eligibility inconsistent with consti provisions.

Office created by Congress and that body can deal with the subject of qualification and disqualification.

Office created by the Consti. The consti criteria are exclusive .

Qualifications prescribed by the Consti. Such is not inconsistent with the exec power of appointment tooffice.

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Absent consti inhibition, Congress has the same right to provide disqualifications, Congress has the sameright to provide disqualifications that it has to provide qualifications for office.

BUT

Congress may not add disqualifications where the Consti has provided them in such a way to indicate anintention that the disqualifications provided shall embrace all that are to be permitted.

IV. MODES OF COMMENCING OFFICIAL RELATIONS


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The manner of selecting persons for public office is generally by election or appointment .

Appointment- act of designation by the exec officer, board, or body to whom that power has been delegated, of

the individual who is to exercise the powers and functions of a given office.- equivalent to filling a vacancy in an office

*Power of appointment may be absolute or conditional .*Appointment to a public office necessarily precedes acceptance by the appointee and is accordinglydistinct from it.*Form of acceptance may be express (verbally or writing) or implied.*An appointment to office is final and complete when the last act of appointing authority has beenaccomplished. At this stage of completion, the appointment cannot be reconsidered and revoked .

Appointments by the President- The President is authorized to appoint the following:

Heads of exec depts, ambassadors and other public ministers and consuls,

officers of the armed forces All other officers whose appointments are not otherwise provided by law Heads of GOCCs, undersecretaries, heads of bureaus and offices, other officials Other officers lower in rank

Kinds of Presidential Appointments regular- those made while Congress is in session ad interim- Congress is not in session permanent- lasts until lawfully terminated temporary or acting- lasts until a permanent appointment is issued

Appointments in the Civil ServiceThe Civil Service under the Consti embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including GOCCs with original charter.

Classification of positions in the Civil Service- Career Service- Non- Career Service

What are the three major levels in the Career Service?1. First level: clerical, trades, crafts, custodial service positions2. Second level: professional, technical, scientific positions3. Third level: positions in the Career Executive Service

Constitutional Classification:- COMPETITIVE: appointments are made according to merit and fitness to be determined- NONCOMPETITIVE: positions as policy-determining, primarily confidential, or highly technical in

nature

Vacancy


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- office is empty and without a legally qualified incumbent appointed or elected to it with a lawfulright to exercise its powers and perform its duties.

*There can be no appointment to a non-vacant position.

Enumerate classification of vacancy. Original. Office is created and no one has been appointed to fill it. Constructive . Incumbent has no legal right or claim to continue in office Accidental . Incumbent having died, resigned, or removed, no one is in esse discharging the office Absolute . Term of an incumbent having expired.

Qualifying to Office.Qualification consists of the taking, and often of subscribing and filing of an official oath, and in some cases,of the giving of an official bond, if any, required by law.

Failure or neglect to qualify at all = evidence of a refusal of the office

De Facto DoctrinePrinciple which holds that a person who by the proper authority is admitted and sworn into office is deemedto be rightfully in such office until, by judicial declaration in a proper proceeding, he is ousted therefrom or his admission thereto is declared void.

De Facto Officer One who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law.

He is without a known appointment or election. He is under color of a known and valid appointment or election but failed to conform to some requirements. He is under color of a known election or appointment,

void because the officer wa not eligible. He is under color of an election or an appointment by or pursuant toa public, unconstitutional law.

De Jure Officer One who has the lawful right to the office in all respects but who has either been ousted from it, or who hasnever actually taken possession of it.

Requirements to become officer de jurePossess legal qualifications for the office in questionsLawfully chosen to such officeHave qualified himself to perform the duties

DE JURE DE FACTO

Rests on the right Rests on reputation

Has lawful right or title to the office Has the possession and performs the duties under color of right


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Cannot be removed in a direct proceeding May be ousted in a direct proceeding against him

V. POWERS, DUTIES, AND NORMS OF CONDUCT

Authority of public officer is not presumed.

Scope of power of a public officer:1. Expressly conferred upon him by the law under which he has been appointed or elected2. Expressly annexed to the office by the law which created it or some other law referring to it3. Attached to the office as incidents to it

Classification of powers and duties: MINISTERIAL AND DISCRETIONARY

MinisterialIt is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed

and designated facts.One which a person performs on a given statement of facts and in a prescribed manner in

obedience to the mandate of legal authority without regard to or the exercise of his own judgment upon thepropriety or impropriety of the act done.

DiscretionaryOr judicial duties require the exercise of reason in the adaptation of means to an end and discretion

in determining how or whether the act shall be done of the course pursued. Arises when the act may be performed in one or two or more ways, either of which would be lawful

and where it is left to the will of judgment of the performer to determine in which way it will be performed.

*An act is not discretionary if it involves enforcement or administration of a mandatory duty at theoperational level, even if professional expert evaluation is required.

*A ministerial act is one as to which nothing is left to the discretion of the person who must perform.

Judicial review of official acts- Where act involves exercise of discretionary power. Judiciary will not interfere with the executive

officers in the performance of duties which are discretionary in their nature.- Where act involves performance of purely ministerial duty.- Where act reviewed done without jurisdiction.

Norms of conduct of public officials and employees1. Public office is a public trust2. Standards of personal conduct. The Code of Conduct and Ethical Standards for Public Officials and

Employees declares the policy of the State to promote a high standard of ethics in the publicservice.

General Duties of public officers as trustees for the public Obey the law Accept and continue in the office


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Accept burden of office Duty as to diligence and care Duties in choice and supervision of subordinate

Ethical Duties of public officers as trustees for the public Refrain from outside activities May not use his official power to further his own interest

*A public officer also has the duty to make financial disclosure.

Specific Duties of public officials and employees: Act promptly on letters and requests Submit annual performance reports Process documents and papers expeditiously Act immediately on the publics personal transactions Make documents accessible to the public

VI. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS- Maternity, Paternity, Vacation and Sick Leaves- Death and disability benefits for police forces and agencies

Compensation vs. Salary vs. Per Diem

COMPENSATION SALARY PER DIEM

Pay for doing all that may berequired of the official

Personal compensation to bepaid to him for his services;

generally a fixed annual or periodical payment depending onthe time and not on the amountof services he may render

Merely one form of compensationgranted to public officers, which

is fixed not as ordinarily by year or by the month but by the day

Given to officers of higher degreeof employment

Other Rights:- Rights under the Constitution- Rights under the Civil Service Decree and the New Administrative Code

- Rights under the Revised GSI Act

Rights Under the Constitution Right to self-organization. The right to form unions. Right to protection of temporary employees. This is to prevent indiscriminate dismissals of

temporary employees. Freedom of Congress from arrest and from being questioned The right not to be removed or suspended except for cause provided by law


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Rights under the Civil Service Decree and the new Administrative Code Right to preference in promotion. Next-in-rank rule not a mandatory requirement. But the person

next-in-rank is entitled to preference in appointment. Right to present complaints and grievances. Right not to be suspended or dismissed except for cause as provided by law and after due process Right to organize

Rights under the Revised Government Service Insurance Act Retirement Benefits Separation Benefits Unemployment or involuntary separation benefits Disability benefits Survivorship Benefits Funeral Benefits Life Insurance Benefits

*Pension- regular allowances paid to an individual or group of individuals by the government in consideration

of services rendered, or in recognition of merit, civil, or military.

*Gratuity - a donation and an act of pure liberality on the part of the State.

VII. DISABILITIES AND INHIBITIONS

Under the Constitution:

Disabilities of President, VP, Members of the Cabinet, their Deputies and Assistants: Shall not hold, unless otherwise provided, any other office or employment

Shall not practice any other profession Shall not participate, directly or indirectly, in any business Shall not be financially interested in any contract with or in any franchise or special privilege granted

by the govt or any subdivision etc. Shall strictly avoid conflict of interest in the conduct of their office

Disabilities of Members of Congress No one may hold any other office or employment in the Government, etc during his term without

forfeiting his seat No one shall be appointed to any office which may have been created or the emoluments thereof

increased during the term for which he was elected No one may personally appear as counsel before any court of justice or before the Electoral

Tribunals or quasi-judicial and other admin bodies No one shall be interested financially in any contract with or in any franchise or special privilege

granted by the Government, etc No one shall intervene in any cause or matter before any office of the govt for his pecuniary benefit

or where he may be called upon to act on account of his office or to give his vote as a member of Congress

Disqualifications to hold any other office or employment in the government


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1. Incompatible Office- includes any kind of office or employment in the government during his term.- includes any position in the Government outside of Congress

2. Forbidden Office- refers to any office created or the emoluments of which have been increased during the

term for which he was elected, not merely during his tenure or period of actual incumbency.

Disabilities of members of Constitutional Commissions No member shall during his tenure hold any other office or employment No member shall engage in the practice of any profession or in the active management or control of

any business which in any way may be affected by the functions of his office No member shall be financially interested in any contract with or in any franchise or privilege

granted by the Government

Prohibition against engaging in partisan political activities No officer or employee in the civil service shall engage in any electioneering or partisan political

campaign Armed forces shall be insulated from partisan politics No member of the military shall engage in any partisan political activity except to vote

Prohibition against appointment of elective officials No elective official shall be eligible for appointment or designation in any capacity to any public

office or position during his tenure.

Under Civil Service Decree

Political activity. No officer or employee shall engage in any partisan political activity or take part in any

election except to vote nor shall he use his official authority or influence to coerce the political activity of anyother person or body.

Additional or double compensation. No elective or appointive public officer or employees shall receiveadditional or double compensation unless specifically authorized by law nor accept without the consent of the President any present, emolument, office or title of any kind from any foreign state.

Detail or reassignment. No detail or reassignment shall be made within 3 months before any election.

Nepotism. All appointments made in favor of a relative of the appointing or recommending authority areprohibited.

Under Local Government Code

Prohibited business and pecuniary interest. It shall be unlawful for any local govt official or employee to engage in any business with the lgu in which he is an official or employee or over which he has the

power of supervision hold such interests in any cockpit or other games licensed by a lgu purchase any real estate or other property forfeited in favor of such lgu for unpaid taxes or

assessment


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be a surety for any person contracting or doing business with the lgu for which a surety is required all other prohibitions governing the conduct of national public officers relating to prohibited business

and pecuniary interest

Practice of Profession All governors, city and municipal mayors are prohibited from practicing their professions or engaging

in any occupation other than the exercise of their functions as local chief executives Sanggunian members may practice their profession or teach in schools except during session

hours. But SM who are also members of the bar shall not appear as counsel before any court in anycivil case wherein a lgu is the adverse party; appear as counsel in any criminal case wherein anofficer or employee of the national or lg is accused of an offense committed in relation to his office;collect any fee for their appearance in administrative proceedings involving the lgu which he is anofficial, and use property and personnel of the Govt except when the sm concerned is defending theinterest of the government.

Doctors of medicine may practice their profession even during official hours of work only onoccasions of emergency, provided there is no monetary compensation

Partisan Political Activity No local official or employee shall engage in any PPA or take art in any election, initiative,

referendum, plebiscite, or recall except to vote.

Anti-Graft and Corrupt Practices ActThe ff. constitute corrupt practices of any public officer and all are declared to be unlawful:

Influence another PO to perform an act constituting a violation of the lawful rules or regulations or anoffense in connection with the official duties or allowing himself to be influenced to commit suchviolation or offense

Request or receive any gift or benefit in connection with any contract or transaction bet. the govtand any other party where the PO in his official capacity has to intervene under the law

Cause any undue injury to any party in the discharge of his official functions Enter on behalf of the govt into any contract or transaction manifestly and grossly disadvantageous

to the same Having financial or pecuniary interest in any business, contract or transaction in which he is

prohibited by the Consti or law from having any interest Becoming interested for personal gain or having material interest in any transaction requiring the

approval of a board or committee of which he is a member Approving or granting any license, permit, privilege, or benefit in favor of any person known to him to

be not qualified for or legally entitled to such license

VIII. LIABILITIES OF PUBLIC OFFICERS

DOCTRINE OF OFFICIAL IMMUNITY FROMLIABILITIES

STATE OF IMMUNITY

Protects the public official in the performance of hisgovernment function

Protects the sovereign

Serves as a protective aegis for public official from Serves to protect the impersonal body politic or


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tort liability for damages arising from discretionaryacts or functions in the performance of their officialduties

government itself from tort liability

*In the performance of governmental function, the State is not bound by the mistake, neglect, or wrongdoing of its agents and officers.

*Official immunity is not absolute.

Three-fold responsibility of public officers A PO is under a 3-fold responsibility for violation of duty for wrongful act or omission.

1. If the individual is damaged by such violation, the official shall be held liable civilly to reimbursethe injured party.

2. If the law has attached a penal action, the officer may be punished criminally.3. If the administrations disciplinary power is strong, such violation may lead to imposition of fine,

reprimand, suspension, or removal from office as the case may be.

Thus, the liability of a PO may be civil, criminal, and/or administrative.

ADMINISTRATIVE LIABILITY CRIMINAL LIABILITY

Purpose is to protect the public services based onthe time-honored principle that a public office is apublic trust.

Purpose is the punishment of crime

The acts or omissions of a PO may constitute one and at the same time a violation of the criminal lawand an administrative offense.

A prosecution in one is not a bar to the other.

The fact the a PO has already been penalized for his wrongful act or omission will not bar hisconviction under the general penal laws.

Dismissal of a criminal case on the ground of insufficiency of evidence does not foreclose admin actionagainst an erring PO.

Dismissal of an admin complaint does not bar the filing of a criminal info for the same acts. Nodouble jeopoardy.

Finding of guilt in the criminal case not necessarily result in finding liability in the admin case.

Finding of civil liability will not necessarily lead to a similar finding in the admin action.

Concept of prejudicial question only involves a civil and criminal case, not administrative and the other is civil or criminal.


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Liability of Superior Officer for Acts of Subordinates

General Rule:Public officers of the government in their performance of their public functions are not civilly liable to thirdpersons.Exceptions:

Where being charged with duty of employing or retaining his subordinates, he negligently or willfullyemploys or retains unfit or improper persons

He negligently or willfully fails to require subordinates to require them the due conformity to theprescribed regulations

He so carelessly or negligently oversees, conducts, or carries on the business of his office tofurnish the opportunity for the default

He has directed, authorized, or cooperated in the wrong Liability is expressly provided in the statute

Other Exceptions: Misconduct is within the scope of the employment of those employed

Under the Admin Code of 1987, a PO shall be civilly liable for acts done in the performance of hisofficial duties where there is bad faith, malice, gross negligence, or neglect

Liability for Tortious Acts Acts within scope of official authority. A PO is not personally liable to one injured. Acts done without or in excess of official authority. POs and employees of a state are not immune

from suit for their own tortious conduct even committed in the course of their employment.

Liabilities Under the Civil Code Failure or neglect to perform official duty Violating rights and liberties of private individuals

Failure to render aid or protection to a person

Liability on Contracts executed in behalf of the governmentGeneral Rule:PO acting within the scope of his authority and in his official capacity is not personally liableException:When one who executes an unambiguous personal undertaking which makes no mention of the publicagency he serves or does not indicate that it is executed in an official capacity

Liability of accountable officers to the government1. Bond requirement2. Primary and secondary responsibility3. General liability for unlawful expenditures4. Measure of liability of accountable officers

Criminal Liability of a Public Officer - No PO is above the law; all may be punished for criminal acts- But POs may not be held criminally liable for failure to perform a duty commanded by law

when, for causes beyond their control, performance is impossible.- The mere expiration of his term or office will not prevent the prosecution and punishment of


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a PO for misdemeanor committed in office nor the re-election of a PO extinguishes the criminal liabilityincurred by him during his previous term of office.

IX. TERMINATION OF OFFICIAL RELATIONS

Modes of Termination: NATURAL CAUSES1. Expiration of Term or tenure of office2. Age limit (Retirement)3. Death or permanent disability

Modes of Termination: ACTS OR NEGLECT1. Resignation- formal renunciation or relinquishment of a public office2. Acceptance of an incompatible office3. Abandonment of office4. Prescription of right to office

Modes of Termination: ACTS OF THE GOVERNMENT OR THE PEOPLE

1. Removal2. Impeachment3. Abolition of Office4. Conviction of a Crime5. Recall

Resignation: FORM When required to be in any particular form, that form must be substantially complied with. When no such form is prescribed, resignation may be made by any method. It need not be in

writing unless required by law. It may be oral or implied by conduct.

Resignation: Necessity of Acceptance Any PO who before the acceptance of his resignation shall abandon his office to the detriment of

the public service shall suffer the penalty of arresto mayor. A PO CANNOT ABANDON HIS OFFICE BEFORE HIS RESIGNATION IS ACCEPTED. Without acceptance by the proper authority, the tender or offer to resign is revocable unless

otherwise provided.

Resignation: FORM of ACCEPTANCE Either by a formal declaration or by the appointment of a successor

Resignation: Withdrawal An immediately effective resignation may be withdrawn before it is acted upon, but not after

acceptance. Effective at a future date, may not be withdrawn after the resignation has been accepted But a PO may withdraw such if he does so before its effective date and before accepted and before

the appointing power acts in reliance on the resignation.

Resignation: Repudiation Not effective although a successor has already been appointed if said resignation has been

transmitted w/o the officers consent


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Resignation of a PO procured by fraud or by duress is voidable and may be repudiated Resignation given as an alternative to have charges filed against the PO may be repudiated

Acceptance of an incompatible or prohibited office; Exceptions: The officer cannot vacate the first office by his own act The first office is held under a different government from that which conferred the second Officer is expressly authorized by law to accept another office Second office is temporary

ABANDONMENT RESIGNATION

Relinquishment through non-use Formal relinquishment

There is abandonment of office when: Clear intention to abandon it Acceptance of another office

Concurrence of overt acts and intention Failure to discharge duties of office or to claim or resume it Acquiescence by the officer

Removal- ouster of an incumbent before the expiration of his term- dismissal

What constitutes removal Appointment of another officer Transfer to another office Demotion Reassignment

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