Law on Public Officers Explained

Presented by :
Atty. Josh Carol T. Ventura

Presentation Outline

Concept of a Public Office

Refers to a functional unit of government
( includes a department, bureau and even
regional offices)
As a position
(refers to any position occupied or held by
individual persons)

What is a Public Office?

A public office is the right, authority and duty

created and conferred by law, by which for a
given period, either fixed by law or enduring at
the pleasure of the appointing power, an
individual is invested with some portion of the
sovereign functions of the government, to be
exercised by him for the benefit of the public.
Fernandez v. Sto. Tomas, G.R. No. 116418,
March 7,1995].

Some Constitutional Provisions

re Public Office/r
The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them.
( Sec. 1, Art II)
The State shall guarantee equal access to
opportunities for public service and prohibit
political dynasties as may be defined by laws.
(Sec. 26, Art, II, 1987 Const);

Some Constitutional Provisions

re Public Office/r
The State shall maintain honesty and integrity in
the public service and take positive steps and
effective measures against graft and corruption
(Sec. 27, Art II, supra.);
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 (Sec. 1, Art XI)

Constitutional Provisions
re Public Office/r
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. In the case of the President,
the Vice-President, the Members of the Cabinet, the
Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and
officers of the armed forces with general or flag rank,
the declaration shall be disclosed to the public in the
manner provided by law. (Sec. 17, Art. XI)

Constitutional Provisions re Public

Office/r
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. 18, Art. XI )

Purpose and Nature of Public

Office
A public office is created to effect the end for which
government has been instituted which is the common
good; not profit, honor, or private interest of any
person, family or class of persons (63 A Am Jur 2d
667)
Nature :
Public office is a public trust. (Art. XI, Sec. 1, 1987
Const.
It is a responsibility and not a right. (Morfe v. Mutuc)

Elements of a Public Office

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, directly or impliedly, by the legislature
or by legislative authority;

Elements of a Public Office

4) Duties must be performed independently and
without the control of a superior power other
than the law, unless they be those of an
inferior or subordinate office created or
authorized by the legislature, and by it placed
under the general control of a superior office or
body; and
5) Must have permanence or continuity

Characteristics of a Public Office

The characteristics of a public office are:
1) it is a public trust;
2) it is not a vested right;
3) it is not property; and
4) it cannot be inherited.

Public Officers as Defined

by Different Laws
1987 Administrative Code

there

is a distinction
between a public officer
and an employee or clerk
the former exercising
discretion in the
performance of public
functions
Employee does not
exercise discretionary
functions

Article 203 of the Revised Penal Code

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 of the Philippine
Islands, or shall perform in said
Government or in any of its
branches, public duties as an
employee, agent or subordinate
official, of any rank or class, shall
be deemed to be a public officer.

Public Officers as Defined

by Different Laws
RA 3019 Anti Graft and Corrupt Practices Act (Sec.
2)

the term "public officer" includes

"elective and appointive officials
and employees, permanent or
temporary, whether in the
classified, unclassified or exempt
service, receiving compensation,
even nominal, from the
government
This has been changed already by
PD 807 (The Law Reorganizing the
Civil Service Commission) to
career and non-career service.

RA 6713- Code of Conduct and Ethical

Standards for Public Officers (Sec. 3)

includes elective or appointive

officials whether permanent or
temporary, career or non career,
including military or police
personnel whether or not they
receive compensation regardless
of amount.

Public Officers as Defined under the

Crime of Plunder (RA 7080 Sec. 2)
an act defining crime of plunder any person
holding any public office in government by virtue
of an appointment, election or contract.
The reason behind the law on the crime of
plunder is described in the case of Estrada vs.
Sandiganbayan (GR NO. 148965, Feb. 26,
2002)

Public Officers as Defined under the

Crime of Plunder (RA 7080 Sec. 2)
Plunder, a term chosen from other equally apt
terminologies like kleptocracy and economic treason,
punishes the use of high office for personal
enrichment,
committed thru a series of acts done
not in the public eye but in stealth and secrecy over a
period of time that may involve so many persons here
and abroad, and which touch so many states and
territorial units. Thus the need, to come up with a
legislation as a safeguard against the possible
recurrence of the depravities of the
previous regime
and as a deterrent to those similar inclination to succumb
to the
corrupting influence of power
Xxxxxxxxx.

Elements of Plunder
1. The offender is a public officer who acts by
himself or in connivance with members of his
family, relatives by affinity or consanguinity,
business associates, subordinates or other
persons ;
2. That he amassed, accumulated or acquired illgotten wealth, through a combination or series
of the following overt or criminal acts described
in Sec. 1 (d) of RA 7080 as amended

Elements of Plunder
3. That the aggregate amount or total value of
the ill gotten wealth amassed or accumulated
or acquired is at least P 50,000,000.

Elements of Plunder

Ill-gotten wealth means any asset, property,

business enterprise or material possession of
any person within the purview of Sec. 2 (2)
hereof acquired by him directly or indirectly
through dummies, nominees, agents,
subordinates and/or business associates by
any combination or series of the following
means or similar schemes.

How Ill Gotten Wealth is Acquired ?

1. Through mis-appropriation, conversion, mis-use or
malversation of public funds or raids on the public
treasury
2. By receiving directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form or
pecuniary benefit from any person and/or entity in
connection with any government contract or project or
by reason of the office or position of the public officer
concerned

How Ill Gotten Wealth is Acquired?

3. By the illegal or fraudulent conveyance or
disposition of asset belonging to the National
Government of any of its subdivision, agencies,
instrumentalities or GOCCs and their subsidiaries
4. By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
form of interest or participation including promises
of future employment in any business enterprise or
undertaking

How Ill Gotten Wealth is Acquired?

5. By establishing agricultural, industrial, commercial
monopolies or other combinations and/or
implementation of decrees and orders 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 or themselves at the
expense and to the damage and prejudice of the
Filipino people and the ROP.

Creation of Public Office

Methods of
Organizing Offices

Modes of Acquiring Title to

Public Office
Election
Appointment
At times by contract
Succession or other modes allowed
by law

Classification of Public Officers

The De Facto Doctrine

It is the principle which holds that a person,
who, by the proper authority, is admitted and
sworn into office is deemed to be rightfully in
such office until:
(a) by judicial declaration in a proper proceeding
he is ousted therefrom; or
(b) his admission thereto is declared void.

When is a Person a De Facto Officer?

Where the duties of the office are exercised under any of the
following circumstances:
1) Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were
calculated to induce people, without inquiry, to submit to or
invoke his action, supposing him to the be the officer he
assumed to be; or
2) Under color of a known and valid appointment or election, but
where the officer has failed to conform to some precedent
requirement or condition (e.g., taking an oath or giving a
bond);

When is a Person a De Facto Officer?

3)

Under color of a known election or appointment, void because:

a) the officer was not eligible;

b) there was a want of power in the electing or appointing body;
(c) there was a defect or irregularity in its exercise;
such ineligibility, want of power, or defect being unknown to the public.
4)

Under color of an election or an appointment by or pursuant to a public,

unconstitutional law, before the same is adjudged to be such.

Note:

Here, what is unconstitutional is not the act creating the office, but
the act by which the officer is appointed to an office legally existing.
(Norton v. County of Shelby)

Elements of a de facto officership

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

Distinction between a de jure from

that of a de facto officer

Distinction between a de jure from

that of a de facto officer

Distinction between a de facto officer

and an intruder

Legal Effects of Acts of De Facto

Officers
As regards the officers themselves
GENERAL RULE: A party suing or defending in
his own right as a public officer must show that
he is an officer de jure. It is not sufficient that he
be merely a de facto officer.
As regards the public and third persons
GENERAL RULE: The acts of a de facto officer
are valid as to third persons and the public until
his title to office is adjudged insufficient.

Official Acts of De Facto Officers not

subject to collateral attack
RULE: The title of a de facto officer and the validity of
his acts cannot be collaterally questioned in proceedings
to which he is not a party, or which were not instituted to
determine the very question.
REMEDY: Quo warranto proceedings
Who may file:
(1) The person who claims to be entitled to the office;
(2) The Republic of the Philippines, represented by
(a) the Solicitor-General; or
(b) the public prosecutor

II. Eligibility and Qualification

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

Power of Congress to Prescribe

Qualifications
GENERAL RULE:
Congress is empowered to
prescribe the qualifications for holding public office,
subject to the following restrictions:
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
("reasonable relation" rule);

Power of Congress to Prescribe

Qualifications
4) Congress cannot prescribe qualifications so detailed as to
practically amount to making an appointment. (Legislative
appointments are unconstitutional and therefore void for
being a usurpation of executive power.);
5) Where the Constitution establishes specific eligibility
requirements for a particular constitutional office, the
constitutional criteria are exclusive, and Congress cannot
add to them except if the Constitution expressly or
impliedly gives the power to set qualifications.

When Must the Qualifications

be Possessed?
Where the time is specified by the Constitution or law: At the time
specified
Where the Constitution or law is silent :
There are 2 views:
1. qualification must be at the time of commencement of term or
induction into office;
2. qualification / eligibility must exist at the time of the election or
appointment
Eligibility is a continuing nature, and must exist throughout the
holding of the public office. Once the qualifications are lost, then
the public officer forfeits the office.

Qualifications Usually Prescribed

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

Vice

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

Qualifications Usually Prescribed

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

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

Qualifications Usually Prescribed

C. Congressmen (Sec. 6, Art. VI, Constitution)
Natural-born citizen
25 years old on day of election
able to read and write
registered voter in district in which he shall be
elected
resident thereof for not less than one year
immediately preceding election day

Qualifications Usually Prescribed

D. Supreme Court Justice
Natural born citizen
at least 40 years old
5 years or more a judge or engaged in law
practice
of proven CIPI (competence, integrity, probity
and independence)

Qualifications Usually Prescribed

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

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

Qualifications Usually Prescribed

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

Natural-born citizen
35 years old at time of appointment
college degree holder
not a candidate for elective position in election
immediately preceding appointment
chairman and majority should be members of the
bar who have been engaged in the practice of law
for at least 10 years (See Cayetano v. Monsod)

Qualifications Usually Prescribed

G. COA Commissioners

Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing experience or
Bar member engaged in practice of law for at
least 10 years
Not have been candidates for elective position in
elections immediately preceding appointment

What is an Appointment?
It is the selection by the authority vested with
power, of an individual who is to exercise the
functions of a given office. When completed,
usually with its confirmation, the appointment
results in security of tenure for the person
chosen unless he is replaceable at pleasure
because of the nature of his office. (Sevilla vs.
CA, G.R. No. 88498, June 8,1992).

Distinction between a designation

from an appointment

Nature of Appointing Authority

The power to appoint is intrinsically an executive
act involving the exercise of discretion.
(Concepcion v. Paredes)
The power and prerogative to a vacant position
in the civil service is lodged with the appointing
authority.

Presidential Appointments that needs the

confirmation of the Commission on Appointments
Heads of the executive departments (Art. VII, Sec. 16, 1987 Const.);
Ambassadors
Other public ministers and consuls
Officers of the armed forces from the rank or colonel or naval captain
Other officers whose appointments are vested in him by the
Constitution (ibid), including Constitutional Commissioners (Art. IX-B,
Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D,
Sec. 1 (2) for COA).

Presidential Appointments that does not need the

approval of the Commission on Appointments
All other officers of the government whose appointments are not otherwise
provided for by law;
Those whom he may be authorized by law to appoint;
Members of the Supreme Court;
Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council
(Art. VIII, Sec. 9, 1987 Const.)

Judges of lower courts;

Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council
(Art. VIII, Sec. 9, 1987 Const.)

Ombudsman and his deputies

Note: To be appointed from a list of at least 6 nominees prepared by the Judicial and Bar Council, and
from a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

Kinds of Appointment Issued by the

President
A regular appointment is one made by President
while Congress is in session after the nomination is
confirmed by Commission on Appointments, and
continues until the end of the term.

Kinds of Appointment Issued by the

President
An interim appointment is one made while
Congress is not in session, before confirmation by
the Commission on Appointments, is immediately
effective, and ceases to be valid if disapproved or
bypassed by the Commission Appointments upon
the next adjournment of Congress

Kinds of Appointment Issued by the

President
Classification of appointments into regular and
ad interim can used only when referring to the
four (4) categories of appointments made by
President of the Philippines in Sec. 16, Art. VIII
of the Constitution, which require confirmation
by the Commission on Appointments,

Kinds of Appointment Issued by the

President
An ad-interim appointment is a permanent
appointment, and its being subject to
confirmation does not a its permanent character
[Pamantasan ng Lungsod ng Maynila v.
Intermedl Appellate Court; 140 SCRA 22].

Kinds of Appointment Issued by the

President
Ad interim appointment. - It is a permanent one,
subject to the confirmation of the Commission
on Appointments.
Acting appointment. - It is merely temporary. It
is good until a permanent appointment is issued.
(PLM vs. lAC, G.R. No. 65439, November 18,
1988).

Steps in the Appointment Process

a)Forregularappointments:

In the case of ad interim appointments, the nomination,

issuance of the appointment and acceptance the
appointee precede the confirmation by the
Commission
on Appointments.

Steps in the Appointment Process

a)Forappointmentswhichdonotrequire
confirmation:

Where the appointment is to the

Career service
Attestation by the Civil Service Commission is
required. An appointment to career service of the
Civil Service is not deemed complete until
attestation/approval by the Civil Service
Commission.
The Omnibus Rules Implementing Book V, E.O.
292, provides that an appointment not submitted to
the Civil Service Commission within 30 days from
issuance (which shall be the date appearing the
face of the appointment) shall be ineffective.

Where the appointment is to the

Career service
Without the favorable certificate or approval of
the Civil Service Commission, no title to the
office can yet be deemed to be permanently
vested in favor of the appointee, and the
appointment can still be revoked or withdrawn
by the appointing authority. Until the
appointment shall have been a completed act, it
would likewise be precipitate to invoke security
tenure

Limitations on the Presidents Power

to Appoint
Appointments extended by an Acting President
shall remain effective unless revoked by the
elected President within 90 days from his
assumption or reassumption of office. (Sec. 14,
Art. VII, 1987 Const.)
Midnight appointments A President or Acting
President is prohibited from making appointments
2 months immediately before the next presidential
elections and up to the end of his term. (Art. VII,
Sec. 15, 1987 Constitution)

Limitations on the Presidents Power

to Appoint
Exception: Temporary appointments to executive
positions when continued vacancies therein will
prejudice public service or endanger public safety.

The Civil Service Commission and the

Appointments in the Civil Service
The Concept of Qualification Standards
Express the minimum requirements for a class of
positions in terms of education , training and
experience, civil service eligibility, physical fitness,
and other qualities required for successful
performance. (Sec. 22, Book V, EO 292)
A statement of the minimum qualifications of a
position which shall include education, experience,
training, civil service eligibility, and physical
characteristics and personality traits required by the
job. (Sec. 2, Rule IV, Omnibus Rules)

Qualification Standards
With respect to a particular position, such
qualification standards shall serve as the basis for
the determination by the appointing authority of the
degree of qualifications of an officer or employee
(ibid);
Shall be used as basis for civil service
examinations for positions in the career service,
as guides in appointment and other personnel
actions,
in
the adjudication
of
protested
appointments, in determining training needs, and
as aid in the inspection and audit of the agencies'
personnel work programs (ibid);

Qualification Standards
Shall be administered in such manner as to
continually provide incentives to officers and
employees towards professional growth and foster
the career system in the government service (ibid);
It shall be the responsibility of the departments and
agencies to establish, administer and maintain the
qualification standards on a continuing basis as an
incentive to career advancement. (Sec. 7, Rule IV,
Omnibus Rules)

Qualification Standards
Their
establishment,
administration,
and
maintenance shall be the responsibility of
the department / agency, with the assistance and
approval of the CSC and in consultation with the
Wage and Position Classification Office (ibid);
Whenever
necessary,
the
CSC
shall
provide technical assistance to departments and
agencies in the development of their qualification
standards. (Sec. 5, Rule IV, Omnibus Rules)
Shall be established for all positions in
the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus
Rules);

Political Qualifications for an Office

GENERAL RULE: Political qualifications are not
required for public office.
Exceptions :
1)Membership in the electoral tribunals of either
the House of Representatives or Senate (Art. VI,
Sec. 17, 1987 Const.);
2)Party-list representation;
3)Commission on Appointments
4)Vacancies in the Sanggunian (Sec. 45, Local
Government Code)

Political Qualifications for an Office

Property Qualifications
In the cases of Maquera v. Borra and Aurea v.
COMELEC, the Supreme Court struck down R.A.
4421 which required candidates for national,
provincial, city and municipal offices to post a surety
bond equivalent to the one-year salary or
emoluments of the position to which he is a
candidate, which shall be forfeited in favor of the
govt. concerned if the candidate fails to obtain at
least 10% of the votes cast.

Political Qualifications for an Office

The Supreme Court held that property
qualifications are inconsistent with the nature
and essence of the Republican system ordained
in our Constitution and the principle of social
justice underlying the same. The Court
reasoned out that:

Political Qualifications for an Office

"Sovereignty resides in the people and all
government authority emanates from them, and
this, in turn, implies necessarily that the right to
vote and to be voted shall not be dependent upon
the wealth of the individual concerned. Social
justice presupposes equal opportunity for all, rich
and poor alike, and that, accordingly, no person
shall, by reason of poverty, be denied the chance to
be elected to public office."

Other Important Principles

Aliens not eligible to public office
If public officer loses his qualifications, he should
be removed.
Effect of pardon:
A pardon shall not work the restoration of the
right to hold public officer. (Art. 36, Revised
Penal Code)

Effects of pardon upon the

disqualification to hold public officer
Exceptions:
(1) Where such right to hold public office is
expressly restored by the terms of the pardon
(Art. 36, RPC);
(2) When a person is granted pardon because he
did not commit the offense imputed to him
(Garcia v. Chairman, COA)

Rules governing effects of pardon

(1) A public official who has been convicted of a
crime but has been pardoned must secure a
reappointment before he / she can reassume his
/ her former position. (Monsanto v. Factoran)
Note: Acquittal is the only ground for
automatic reinstatement of a public officer to
his / her former position.

Rules governing effects of pardon

(2)Pardon does not exempt the culprit from payment
of the civil indemnity imposed upon him / her by the
sentence. (Art. 36, par. 2, RPC)
(3) A convicted public official who has been
pardoned is not entitled to backpay and other
emoluments due to him during the period of his
suspension pendente lite. (Monsanto v. Factoran)

Coverage of the
Civil Service
Civil service shall embrace all branches,
subdivisions, instrumentalities, and agencies of the
government, including GOCC with original charters.
GOCCs which are organized under the Corporation
Code or by corporations with original charters fall
outside the coverage of the civil service law.

Characteristics of Career Service vs.

Non Career Service

Three level positions in

the Career Service

Appointive Positions in
the Civil Service and CES

Appointive Positions in
the Civil Service
the officer lays down
principal fundamental
guidelines or rules; or
formulates a method of
action for government or
any of its subdivisions.
E.g., department head

which requires
possession of technical skill
or training in a supreme or
superior degree.

not only confidence

in the aptitude the
appointee for the
duties of the office but
primarily close
intimacy which ensure
freedom of intercourse
without
embarrassment

Kinds of Appointments under the

Civil Service (Admin Code of 1987)
1) Permanent appointment - issued to a person who
has met the requirements of the position to which
appointment is made including the appropriate
eligibility
2) Temporary appointment - in the absence of
appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary
appointment shall be issued to a person who
meets all the requirements except the appropriate
eligibility.

Kinds of Appointments under the

Civil Service (Admin Code of 1987)

Provided, that such temporary appointment

shall not exceed twelve (12) months, but the
appointee may be replaced sooner if a qualified
civil service eligible becomes available
The Admin Code abolished provisional
appointment
Appointment of a coterminous employee is
characterized by confidentiality or subject to his
pleasure or co-existent with his tenure

Kinds of Coterminous Employment

Requisites of a Valid AppointmentAQVAA

1) Appointing Authority be vested with the
authority to made the appointment at the time
the appointment is made;
2) Appointee is qualified he has all the
qualifications and the appropriate eligibility; he
has none of the disqualifications;
3) The position is vacant

Requisites of a Valid Appointment

4) Appointment has been approved by the Civil
Service Commission
5) Acceptance of the appointment oath and
discharge of the functions of his office.
The different branches of Government may
make the necessary appointments in their
respective offices.
Same is true for the national and local
government.

When does an appointment take

effect?
Immediately upon its issuance by the
appointing authority. (Rule V, Sec.
10, Omnibus Rules).

When is an appointment
considered complete?
GENERAL RULE: An appointment, once made,
is irrevocable and not subject to reconsideration.
Qualification: Where the assent, confirmation,
or approval of some other officer or body is
needed before the appointment may be issue
and be deemed complete.

When is an appointment
considered complete?
Exceptions:
(1) When the appointment is an absolute nullity
(Mitra v. Subido);
(2) When there is fraud on the part of the appointee
(Mitra v. Subido);
(3) Midnight appointments
A completed appointment vests a legal right.
It cannot be taken away EXCEPT for cause,
and with previous notice and hearing(due process).

Other Considerations made by the

Appointing Authority

Performance
Degree of education
Work experience
Training
Seniority and
Whether or not the applicant enjoys the
confidence and trust of the appointing power.
Basically, appointment requires the exercise of
discretion and is therefore a political question

What is the Next In Rank Rule?

The person next in rank shall be given preference
in promotion when the position immediately above
his vacated. However, the concept of next-in-rank
does not import any mandatory or peremptory
requirement that the person next in rank must be
appointed to the vacancy. The appointing authority
has the discretion to fill the vacancy under the nextin-rank rule or by any other method authorized by
law, e.g., by transfer.

Assumption and Term

or Tenure of Office

Appointment and qualification to office are

separate and distinct things. Appointment is the
act of being designated to a public office by the
appointing authority.
Qualification is the act of signifying one's
acceptance of the appointive position. This
generally consists of the taking / subscribing /
filing of an official oath, and in certain cases, of the
giving of an official bond, as required by law.
(Mechem)

Acceptance of an Appointment
Lacson v. Romero
The appointment to a government post involves
several steps: (1) the President nominates; (b) the
Commission on Appointments confirms the
appointment; and (c) the appointee accepts the
appointment by his assumption of office. The first 2
steps are mere offers to the post but the last step
rests solely with the appointee who may or may not
accept the appointment.
No one can be compelled to accept an appointment

Acceptance of an Appointment
Borromeov.Mariano
A judge may not be made a judge of another
district without his consent. Appointment and
qualification to office are separate and distinct
things. Appointment is the sole act of the
appointee. There is no power which can compel
a man to accept the office.

Effect of Failure to Qualify

Failure to qualify is deemed evidence of refusal
of the office.
It is a ground for removal:
If qualification is a condition precedent: Failure
to qualify ipso facto deemed rejection of the
office
If not condition precedent: Failure is not ipso
facto rejection

Effect of Failure to Qualify

Justifiable reasons for delay in qualifying include
sickness, accident, and other fortuitous events that
excuse delay.
The Omnibus Election Code provides that the
officer must qualify (i.e., take his oath of office and
assume office) within 6 months from proclamation.
Otherwise, the position will be deemed vacant.

Effect of Failure to Qualify

Exception: If the non-assumption of
office is due to a cause beyond his
control.
Qualification is significant because it
designates when security of tenure
begins.

Oath of Office
An oath is an outward pledge whereby one
formally calls upon God to witness to the truth
of what he says or to the fact that he sincerely
intends to do what he says.
Although the law usually requires the taking of
an oath, it is not indispensable. It is a mere
incident to the office and constitutes no part of
the office itself.

Oath of Office
However, the President, Vice-President and
Acting President are required by the Constitution
(Art. VII, Sec. 5) to take an oath or affirmation
before entering into the execution of their office.
Such oath-taking is mandatory.

Who are authorized to administer

oaths?
1) Notaries public;
2) Judges;
3) Clerks of court;
4) Secretary of House / Senate;
5) Secretary of Exec. Departments;
6) Bureau Directors;
7) Register of Deeds;

Who are authorized to administer

oaths?
8) Provincial governors;
9) City mayors;
10) Municipal mayors;
11) Any other officer in the service of the
government of the Philippines whose
appointment is vested in the President;
12) Any other officer whose duties, as defined by
law or regulation, require presentation to him
of any statement under oath

Persons obliged to administer oaths in all instances

and not just in matters of official business

Notaries public
municipal judges
Clerks of court
Time of Taking the Oath of Office
A public officer must take his oath of office
before entering upon the discharge of his
duties.

Requalification
If a public officer is re-elected or re-appointed, he
must take another oath and fulfill the other
condition precedents before assuming office. The
oath and other qualifications made prior to
assumption of his previous office will not be valid
for subsequent terms of office.

Protest to Appointment
A protest is a mode of action that may be
availed of by the aggrieved party to contest the
appointment of another to a particular position
The protest must be for cause
For cause means for reasons which the law
and sound public policy publicly recognized as
sufficient warrant for removal, that is, legal
cause and not merely for causes determined by
the appointing authority

Protest to Appointment

Cause must be based on the following

grounds:
1) appointee is not qualified
2)
that the appointee is not the next in rank
3) in the case of appointment by transfer,
reinstatement or by original appointment, that
the protestant is not satisfied with the written
special reason or reasons given by the
appointing authority

Flow of Protest Cases

Revocation or Recall of
Appointment
Gen Rule : An appointment once made is
irrevocable and not subject to consideration
For appointments in the civil service, revocation to
be successful must be made before the
appointment is completed or before approval or
attestation of the Civil Service Commission
After completion of appointment, and appointee
has assumed the position, he acquires a legal title

Grounds of the CSC in recalling an

appointment
1) Non-compliance with the procedures/criteria
provided in the agencys merit promotion plan;
2) Failure to pass through the agencys
selection/promotion board;
3) Violation of the existing collective agreement
between management and employees relative to
promotion
4) Violation of other existing civil service law, rules
and regulations

Giving of Bonds
Persons required to give bond
1) Accountable public officers or those to whom are
entrusted the collection and custody of public money
2) Public ministerial officers whose actions may affect
the rights and interests of individuals.
The bond is in the nature of an indemnity bond rather
than a penal or forfeiture bond.

Giving of Bonds
The bond is also an obligation binding the
sureties to make good the officers default. It is
required not for the benefit of the office holder,
but for the protection of the public interest and is
designed to indemnify those suffering loss or
injury by reason of misconduct or neglect in
office.

Effect of Failure to Give Bond

within the prescribed period
If not condition precedent: Failure to give bond
merely constitutes a ground for forfeiture of the
office; it is not forfeiture of the office ipso facto.
IF condition precedent: Failure to give bond
within the prescribed period renders the office
vacant.

Term and Tenure of Office

Term of Office

Tenure of Office

Fixed and definite period of time during

which the officer may claim to hold office
as of right
3 kinds of term :
1) fixed by the constitution or law
2) during good behavior until retirement age
3) at the pleasure of appointing authority
Enjoys security of tenure and can be
removed only for cause
Term of office not affected by the holdover

Period during which the

incumbent actually holds
the office. It may be
shorter than the term
Does not enjoy security
of employment

Power of the Legislature to Fix and

Change the Term of Office
Rules :
Where the term is fixed by the Constitution :
Congress has no power to alter the term
However, such term of office can be shortened or
extended by the vote of the people ratifying a
constitutional amendment.
amendment
Where the term is not fixed: Congress may fix the
terms of officers other than those provided for in
the Const.

Power of the Legislature to Fix and

Change the Term of Office
Congress has the power to change the tenure of
officers holding offices created by it.
However, if the term is lengthened and made to
apply to the incumbents, this could be tantamount
to a legislative appointment which is null and void.

When Term of Office Dependent

upon "Pleasure of the President"
Congress can legally and constitutionally make
the tenure of certain officials dependent upon the
pleasure of the President. (Alba v. Evangelista)
Where the office is held at the pleasure of the
appointing power and such appointing power can
exercise the power of removal at his mere
discretion, the public officer may be removed
without notice or hearing. (Alba v. Evangelista)

No Vested Interest in Term of Office

Public office is a privilege revocable by the
sovereignty at will. An incumbent cannot validly
object to the alteration of his term since he has no
vested right in his office. (Greenshow v. U.S.)
During the hold-over, a public officer is not a de facto
officer but a de jure officer
Article 237, RPC penalizes any public officer who
shall continue to exercise the duties and powers of
his office beyond the period provided by law.

Hold Over Concept

A public officer whose term has expired or
services have been terminated is allowed to
continue holding his office until his successor is
appointed or chosen and had qualified.
Purpose of the Hold-Over Rule
Public interest. It is to prevent a hiatus in the
government pending the time when a successor
may be chosen and inducted into office.

Holding Over Rules

1) Where the law provides for it: The office does

not become vacant upon the expiration of the
term if there is no successor elected and
qualified to assume it. Incumbent will hold-over
even if beyond the term fixed by law.
2) Where the law is silent: Unless hold-over is
expressly or impliedly prohibited, incumbent may
hold-over.
3) Where the Constitution limits the term of a public
officer and does not provide for hold-over: Holdover is not permitted.

Quo Warranto Proceedings

A proceeding to determine the right of a person to
the use or enjoyment of a franchise or office and to
oust the holder from its enjoyment, if his claim is not
well-founded, or if he has forfeited his right to enjoy
the privilege.
Quo warranto in appointive positions what is
determined is the legality of the appointment; which
can be filed by one claiming the office
The court determines who has been legally
appointed and can and ought to declare who is
entitled to the office

Quo Warranto Proceedings

Quo warranto in elective positions what is
determined is the eligibility or disloyalty of the
candidate-elect which can be filed by any voter
When the person elected is ineligible, courts
cannot declare that the candidate occupying the
second place has been elected, even if he were
eligible.
The law only authorizes the courts to declare
one who has the plurality of votes and with
certificate of candidacy

Quo Warranto Proceedings

A petition for quo warranto and mandamus
affecting titles to office must be filed within one
(1 ) year from the date petitioner is ousted from
his position and not from the time respondent
began the discharge of the duties of his office
may be filed by the Office of the Solicitor
General

Compensation, Benefits and

Privileges
One of the rights of a public officer is the right to
salary
Basic Requirements for Payment of Salaries
and Wages
1. existence of a legally created position with
fixed compensation attached to the position
2. issuance of a valid appointment
3. rendition of service being paid
4. payment to the right person

General Rules on Compensation

A public officer is not entitled to compensation

for services rendered under an unconstitutional
statute or provision thereof. Exception: If some
other statute provides otherwise
If no compensation is fixed by law, the public
officer is assumed to have accepted the office
to serve gratuitously.

General Rules on Compensation

After services have been rendered by a public
officer, the compensation thus earned cannot be
taken away by a subsequent law. However, he
cannot recover salary for a period during which
he performed no services.

General Rules on Compensation

One without legal title to office either by lawful
appointment or election and qualification is not
entitled to recover salary or compensation
attached to the office.
One who intrudes into or usurps a public office
has no right to the salary or emoluments attached
to the office.

General Rules on Compensation

Compensation is NOT an element of public office.
It is not part of the office but merely incident
thereto. It is sometimes expressly provided that
certain officers shall receive no compensation,
and a law creating an office without any provision
for compensation may carry with it the implication
that the services are to be rendered gratuitously.

General Rules on Compensation

Salary, Wages, and Per Diems Defined and Distinguished

Salary:
time-bound
Wages:
service-bound
Per Diem: allowance for days actually spent for special
duties

Salary of Public Officer Not Subject

to Attachment
salary of a public officer or employee may not, by
garnishment, attachment, or order of execution,
be seized before being paid by him, and
appropriated for the payment of his debts.
The salary or emoluments in public office are not
considered the proper subject of barter and sale;
future or unearned salaries cannot also be
assigned

Salary of Public Officer Not Subject

to Attachment
Money in the hands of public officers, although it may be
due government employees, is not liable to the creditors of
these employees in the process of garnishment because the
sovereign State cannot be sued in its own courts except by
express authorization by statute. Until paid over by the
agent of the government to the person entitled to receive it,
public funds cannot in any legal sense be part of his effects
subject to attachment by legal process. (Director of
Commerce and Industry v. Concepcion)

Additional or Double
Compensation Prohibited
Additional Compensation

Double Compensation

There is only 1 position but with

additional functions and compensation
for the additional function

There are 2 positions and with

the public officer getting
emoluments for both position

Commutable Allowances
. Given by virtue of a position
whether or not he incurred the
expenses for which the allowance is
given
There is a conclusive presumption
that it was spent.

Reimbursable Allowances
The public officer must present
a receipt or certification under
oath that such amount was spent
in order that the public officer
may recover the money spent

Rules on other Benefits

Pensions / gratuities are not considered as additional,
double, or indirect compensation. (Sec. 8, Art. IX-B,
1987 Constitution)
By its very nature, a bonus partakes of an additional
remuneration or compensation. (Peralta v. Auditor
General)
An allowance for expenses incident to the discharge
of the duties of office is not an increase of salary, a
perquisite, nor an emolument of office. (Peralta v.
Auditor-General)

Can one recover his salary during

the period of suspension?
If preventively suspended: NO, he cannot
recover salary. BUT: If he is
subsequently exonerated, he can recover salary
for the period of his preventive suspension.
If he was given penalty of removal from office,
but was completely exonerated upon appeal .
YES, he can recover because he was completely
exonerated.

Can one recover his salary during

the period of suspension?
If he was given penalty of removal from office, but
penalty was commuted from removal to mere
suspension. No because he was found guilty,
although the penalty was reduced.
If suspension/removal from office was unjustified.
Yes

III. Code of Conduct and

Disabilities of Public Officers

Norms of Conduct Standards of Conduct

(Section IV, RA 6713)
1)Commitment to public interest
2) Professionalism
3) Justness and Sincerity
4) Political neutrality
5) Responsiveness to the public
6) Nationalism and patriotism
7) Commitment to Democracy
8) Simple Living

Scope of Powers and Authority of

Public Officers
The authority of public officers consists of those
powers which are:
a)Expressly conferred upon him by the act
appointing him;
b)Expressly annexed to the office by law; and
c) Attached to the office by common law as
incidents to it.

Doctrine of Necessary
Implication
Under this doctrine, all powers necessary for the
effective exercise of the express powers are deemed
impliedly granted.

Source of government authority : the people

sovereignty

The duration of the authority of public officers is limited

to that term during which he is, by law, invested with
the rights and duties of the office.

Ministerial vs. Discretionary

Powers
Ministerial is one the discharge of which by the
officer concerned is imperative and requires
neither judgment nor discretion
Discretionary is one imposed by law upon a
public officer wherein the officer has the right to
decide how and when the duty shall be
performed

General constitutional duties of

public officers
1) To be accountable to the people; to serve them
with utmost responsibility, integrity, loyalty and
efficiency; to act with patriotism and justice;
and to lead modest lives [Sec. 1, Art. XI).
2) To submit a declaration under oath of his
assets, liabilities and net worth upon
assumption of office and as often thereafter as
may be required by law [Sec. 17, Art. XI].
3) To owe the State and the Constitution
allegiance at all times [Sec. 18, Art. XI)

Duties of Public Officers

Under RA 6713
1. To act promptly - public officers to respond within
15 working days; submit annual report within 45
working days from end of the year
2. To make public records accessible to the public
Art. III- Sec 7 of the Constitution
3. To make SALN within 30 days after assumption
of office; on or before April 30 of every year; within
30 days after separation
4. To make divestment to avoid conflict of interest

Duties of Public Officers

Under RA 6713

When a conflict of interest arises, he shall

resign from his position within 30 days from
assumption of office or divest himself within 60
days from such assumption
If business interest will not result in a conflict of
interest, divestment is not necessary
Government lawyers to abide by the Canons of
Professional Responsibility

Disabilities or Restrictions

Where by law, an elective officer is disqualified to

hold another position or is subject to certain
liabilities, the same holds true to an appointive
officer.
Prohibited acts and transactions
1) Financial and material interest in a transaction
which requires approval of the office
2) Outside employment and other activities related
thereto own, manage or accept employment in
a private enterprise licensed by office; engaged in
private practice of profession; recommend a
person to a private enterprise

Other Prohibitions
Constitutional prohibitions
Prohibition against solicitation of gifts
Prohibition against partisan political activities
Prohibition against engaging in strike although
employees may organize into an association
and come up with a collective negotiation
agreement

Other Prohibitions
Prohibition against holding two or more
positions
Restrictions against engaging in the practice of
law- absolutely prohibited are judges and
employees of the superior courts, or office of the
Solicitor General and other government offices,
the Pres, Vice President, members of the
cabinet and their deputies and assistants;

Other Prohibitions

Using public office to promote private interest

Engaging in private business
Accepting certain employment
Limitation on Laborers - Shall not be assigned to
perform clerical duties
Detail or reassignment - No detail or reassignment
shall be made within 3 months before any election
without the approval of the Comelec.

Other Prohibitions
Nepotism - All appointments made in favor of a
relative of the appointing or recommending authority,
or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him,
are prohibited. The prohibition covers all
appointments, including designations, in the
national, city and municipal governments, or in any
branch or instrumentality thereof, including
government owned or controlled corporations with
original charters.(Laurel v. Civil Service Commission, 203
SCRA 195)

Nepotism
Under the Omnibus Rules Implementing E.O. 292,
the original appointment - and all subsequent
personnel actions, such as promotion, transfer,
reinstatement, etc., must conform with the rule
against nepotism; otherwise, the prohibition would
be rendered "meaningless and toothless"
[Debulgado v. Civil Service Commission, G.R. No. 111471,
September 26, 1994].

Nepotism
"Relative" is to be understood to mean those
related within the third civil degree by consanguinity
or affinity. Exempt are persons employed in a
confidential capacity; teachers; physicians; and
members of the Armed Forces of the Philippines,
provided that in each particular instance full report
of such appointment shall be made to the
Commission.

Security of Tenure
The Constitution states that no officer or employee
of the Civil Service shall be removed or suspended
except for cause provided by law
security of tenure is a basic feature of the civil
service system just like the merit and fitness rule
it attaches, once the appointment is issued and
completed
this rule applies to both career and non career
positions except primarily confidential, coterminus
and cabinet secretaries

Other Personnel Actions

1) Promotion is a movement from one position to
another with increase in duties and
responsibilities as authorized by law and
usually accompanied by an increase in pay.
next in rank rule
automatic reversion rule

Other Personnel Actions

Automatic reversion rule - Sec. 13 of the
Omnibus Rules Implementing Book V, EO. 292,
states: "All appointments involved in a chain of
promotions must be submitted simultaneously for
approval by the Commission. The disapproval of
the appointment of a person proposed to a higher
position invalidates the promotion of those in the
lower positions and automatically restores them to
their former positions. However, the affected
persons are entitled to payment of salaries for
services actually rendered at a rate fixed in their
promotional appointments."

Automatic Reversion Rule

For this rule to apply, the following must concur:
i. there must be a series of promotions;
ii. all promotional appointments are
simultaneously submitted to the Commission for
approval; and
iii. the Commission disapproves the appointment
of a person to a higher position [Divinagracia v.
SID. Tomas, G.R. No. 110954, May 31, 1995].

Other Personnel Actions

2) Appointment through Certification is issued to a
person who has been selected from a list of
qualified persons certified by the Civil Service
Commission from an appropriate register of
eligibles, and who meets all the qualification
prescribed for the position.
3) Transfer is a movement from one position to
another which is of equivalent rank, level or salary
without break in service. Under current Civil Service
and regulations, transfer may be imposed as an
administrative penalty

Other Personnel Actions

4) Reinstatement - (new appointment ) Any person who
has been permanently appointed to a position in the
career service and who has, through no delinquency or
misconduct, been separated therefrom, may be
reinstated to a position in the same level for which he is
qualified.
5) Detail is the movement of an employee from one
agency to another without the issuance of an
appointment, and shall be allowed only for a limited
period in the case of employees occupying professional,
technical and scientific positions. It is temporary in
nature (Republic; v. Court of Appeals. 182 SCRA 721].

Other Personnel Actions

6) Reassignment - An employee may be
reassigned from one organizational unit to
another in the same agency, provided that such
reassignment shall not involve a reduction in
rank, status or salary. Reassignment is
recognized management prerogative vested in
the Civil Service Commission ; does not
constitute removal without cause.

Disciplinary Actions (By the CSC)

Has both original and appellate jurisdiction to hear
and decide administrative cases
Original jurisdiction for complaints coming from
private citizens
Appellate jurisdiction for decisions made by other
disciplining authorities for those involving
penalties of suspension for more than 30 days or
fine in an amount not exceeding 30 days salary,
demotion in rank or salary or transfer or removal
or dismissal from office

Disciplinary Actions (By the CSC)

Grounds for discipline malfeasance, misfeasance,
or nonfeasance
Malfeasance means the doing, through ignorance,
inattention or malice, of an act which he had no
legal right to perform
Misfeasance is the failure to use that degree of
care, skill and diligence required in the performance
of official duty
Nonfeasance is the neglect or refusal to perform an
act which is the officer's legal obligation to perform