law on public officers : 8-year survey of case law, 2004-2011

8/13/2019 Law on public officers : 8-year survey of case law, 2004-2011

1/25

Law on Public Officers:

8-Year Survey of Caselaw2004 to 2011

Alberto C. AgraProfessor of Laws, Ateneo Law School


2/25

Public Office

! Elements of Public Office: Creation by law or byauthority of law; Sovereign function; Defined powersand functions; Performed independently or under the

control of a higher authority; Continuing andpermanence (Compensation not an element)

! 2 kinds of duties of public officers: duty owing to public(e.g. promulgation of rules, not liable if rules declaredvoid) and duty owing to private individuals (liable if

special injury on account of malfeasance or non-feasance)


3/25

Public Office

! Act with highest degree of excellence andprofessionalism (liable if not file case before SSS ifclaim doubtful)

! Immunity of public officers for the misfeasance of theirsubordinates is based on public policy; command

responsibility does not apply

! Regular and probationary employees have security oftenure; Temporary employees and ineligible appointeeshave no security of tenure

! Classified as either career or non-career; Officers withfixed term are non-career


4/25

Public Office

! Qualifications of Officers: rational connection betweenoffice and qualifications; constitutional and statutory

! De Jure Officer: valid appointment; possesses allqualifications; has qualified to office; entitled to salary

! Usurper: takes possession without any color of right orauthority

! De Facto Officer: acquiescence or reputation; notcomplied with precedent requirements; not possess all

qualifications; want of power on part of appointingauthority; enabling law later declared unconstitutional


5/25

Public Office

! Officer who discharges functions even if not qualified isde facto officer; de facto when promotion voided sinceemployee had a pending administrative case; de facto

entitled to salary during period of service; After de jureofficer is appointed, not entitled

! Nepotism applies without regard to qualifications ofappointee

! Corporate secretary is a primarily confidential position;Driver and rank-and-file employees of PAGCOR notconfidential employees


6/25

Public Office

! Incompatible Office: Prohibited to hold any other officeor employment during the term; PCGG chair and CPLC

! Multiple Positions: Legal Officer at Urban SettlementOffice and at the same time member of Peoples LawEnforcement Board; a member of PNP also appointed

chief judicial staff officer

! Forbidden Office: Prohibited to be appointed to anyoffice created or emoluments thereof increased duringterm for which officer elected


7/25

Appointment/ Termination

! Power to appoint is discretionary! Designation is not an appointment; only imposition of

additional functions

! Not all presidential appointments are subject toconfirmation by Commission on Appointments; regular

and ad interim, permanent or temporary/ acting

! No midnight appointment if already discharging dutiesfor a year and in an acting capacity; ban not apply to SC

Justices

! An appointment not submitted to CSC for approval didnot become effective


8/25


! All public officers are prohibited from engaging inprivate practice; cannot practice their profession duringincumbency and for 1 year before the office with which

officer was connected

! Resignation can be withdrawn before acceptance;Courtesy resignation is valid (must be voluntary); evenif resigned, can still be held administratively liable

! Standard for reclassification is official designation ofincumbents


9/25


! In a reassignment, there should be no demotion; noreduction in rank, status or salaries

! Government employee absent without leave for at least30 days may be dropped form rolls without prior noticeand hearing

! No abandonment when official continued to dischargethe duties

! A public officer who vacates the position and isreplaced cannot ask for reinstatement


10/25


! Valid Abolition of Office: not bad faith when ERCretained some functions of ERB and has expandedfunctions; if same functions, abolition not valid

! Removal of a government employee as a result of abona fide reorganization is valid

! Threat of abolition of office if employee does not resignand misled into transferring which was not acted upon

amounts to removal


11/25

Compensation/ Benefits

! Basis: No service = No pay! Authority: Benefits must be authorized by law or

regulations; approval by Board of Directors alone

insufficient; no vested right if erroneous application oflaw; academic freedom not grant of unbridled authority

! Double Compensation: There is double compensationwhen NEA officials designated as officials of electric

cooperatives receive salaries from NEA and allowancesfrom the electric cooperatives; employees getseparation pay and retirement benefits; asupplementary retirement plan is prohibited under

Retirement Law


12/25


! GOCC Directors cannot receive compensation in additionto per diems; Public officers entitled to per diem notentitled to other fringe benefits

! System of Incentives not anathema to concept of publicaccountability

! Representation and Transportation Allowance is distinctfrom salary

! Employees affected by privatization and were qualifiedto retire by law are entitled to retirement benefits


13/25


! Retirement benefits cannot be withheld to answer forliability to government; before set-off can take place,employee must admit indebtedness to government; no

retirement benefits if not actually retired; exemptedfrom execution

! Reallocation of position resulting in downgrading ofsalary violative of policy of non-diminution of pay

! Government employees cannot go on strike


14/25


! Pending the appeal of a decision, employees entitled totheir salaries

! Public Officers who receive compensation in good faithcannot be ordered to return them


15/25

Civil Service Commission

! Enjoys fiscal autonomy (cannot impose condition to fundrelease due to shortfall in government revenues)

! Must confirm appointment if appointee meets all thequalifications

! Appointing authority and appointees can appeal beforethe CSC; Government employees questioning theirremoval should file case with CSC, not courts

! Determination of terminal leaves is a function of CSC;duty to examine accounts relative to said benefit isshared with COA


16/25

Civil Service Commission

! Covers all civil service positions, career or non-career;! Covers officers in Career Executive Service appointed by

the President; Those appointed by the PCSO General

Manager and by Ombudsman do not require careerservice eligibility; only presidential appointees are

covered by career executive service and are required topossess career executive service eligibility

! Public School Teachers: Board of Professional Teachersor CSC over Administrative Cases for immoral,unprofessional or dishonorable conduct; Ombudsmanover Administrative Cases


17/25


18/25

Ombudsman! Has jurisdiction over GOCCs created under Corporation

Code or Special Law (law not distinguish)

! Water Districts are GOCCs; Their employees may becharged with violation of Anti-Graft Act

! Has jurisdiction over administrative cases against localelective officials

! Has no jurisdiction over officers of RPN Channel 9 sinceit is not a GOCC (government only minority share)

! Ombudsman has concurrent jurisdiction with thePresidential Anti-Graft Commission to investigateoffenses


19/25

Ombudsman

! Ombudsman has broad powers to enforce its ownaction; course implementation of order through properofficer

! Ombudsman no authority to decide questions ofconstitutionality; has authority to grant immunity in any

proceeding conducted by it

! Ombudsman can impose, not just recommend, penaltiesin administrative cases; removal as penalty inadministrative cases

! Congress has power to grant additional powers toOmbudsman


20/25

Ombudsman

! Although Special Prosecutor has rank of DeputyOmbudsman, SP not necessarily have same powers;Special Prosecutor cannot place an officer under

preventive suspension

! Administrative offenses do not prescribe; civil action forrecovery of ill-gotten wealth imprescriptible; criminalactions prescribe; 1-year ban on administrativeinvestigation is directory; resignation not warrant

dismissal of administrative case unless forced to resign

! Dismissal of criminal case does not necessarily result indismissal of administrative case; no double jeopardy;

different quantum of evidence


21/25

Disciplinary Action

! Heads of government offices have original disciplinaryjurisdiction while CSC has appellate jurisdiction

! Protection against removal except for cause applies toprobationary and permanent employees (Constitutiondoes not distinguish)

! Guarantee of security of tenure means employee cannotbe dismissed for causes other than those provided by

law and after due process; due process extends tocasual employees


22/25

Disciplinary Action

! The power to discipline is not delegable; no unduedelegation if confirmatory action of discipliningauthority is required

!Illegally dismissed employee entitled to back wages;employee who was not completely exonerated not

entitled to back wages; maximum period of back wagesis 5 years

! No malice in dismissal when employee took leavewithout seeing to it that application has been approved;no bad faith when mayor dismissed after CSC foundemployee was not qualified; there is bad faith when CSC

approval sought when appointment withdrawn


23/25

Disciplinary Action

! Preventive Suspension is not a penalty; time underpreventive suspension not part of penalty of suspension

! Public officer placed under preventive suspension notentitled to back wages in case of acquittal or conviction

! An officer who had no participation in an offense cannotbe held liable; Final approving authority not necessarilyliable unless knew anomaly

! A public officer who signed a contract without anappropriation and a certificate of availability of funds ispersonally liable for payment due the contract


24/25


25/25

Impeachment

! Only the President, Vice-President, the members of theSupreme Court, the members of the ConstitutionalCommissions and the Ombudsman are impeachable

officers (Deputy Ombudsman excluded)

! 1-year ban: Initiation of an impeachment complaintmeans the filing of the complaint and referral to theCommittee on Justice

law on public officers : 8-year survey of case law, 2004-2011

Documents