The PROVINCIAL GOVERNMENT of CAMARINES NORTE, rep by Gov. Jesus coterminous position.

The conversion of the provincial administrator

Typoco, Jr. v Beatriz GONZALES position from a career to a non-career service should not jeopardize
July 23, 2013 | Brion, J. Gonzales’ security of tenure guaranteed to her by the Constitution.
 As a permanent appointee, Gonzales may only be removed for cause,
April 1, 1991. Gonzales was appointed as the provincial admin of the Province of after due notice and hearing. Loss of trust and confidence is not among
CamNor by then Gov. Roy Padilla the grounds for a permanent appointee’s dismissal or discipline under
 Appointment was on a permanent capacity. existing laws.

Mar 8, 1999. Gov. Jess Pimentel sent Gonzales a memo directing her to explain Feb 17, 2005. Gonzales wrote to the CSC, alleging that Gov. Typoco, CamNor’s
in writing why no admin charges should be filed against her for gross incumbent governor, refused to reinstate her.
insubordination/gross discourtesy in the course of official duties, and conduct  CSC issued another Resolution, ordering Gonzales’ reinstatement to the
grossly prejudicial to the best interest of the service (Admin Case No. 001) provincial administrator position, or to an equivalent one.
 An ad hoc investigation committee found her guilty of the charges
against her CA supported CSC’s ruling, ordering Gonzales’ reinstatement
 Recommended to Gov Pimentel that she be held administratively liable  Aquino v CSC: CA emphasized that an appointee acquires a legal right to
 Sept 30, 1999. Gov Pimentel dismissed Gonzales. its position once he assumes a position in the civil service under a
Gonzales appealed Gov Pimentel’s decision to the CSC. completed appointment.
 CSC modified Gov Pimentel’s decision, finding Gonzales guilty of  This legal right is protected both by statute and the Constitution, and he
insubordination and suspending her for 6 months. cannot be removed from office without cause and previous notice and
hearing. Appointees cannot be removed at the mere will of those vested
Gonzales filed a MotEx and clarification with the power of removal, or without any cause.
 Claimed that she had already served her 6-month suspension and asked  Lack of confidence not in the list of valid causes for a public officer’s
to be reinstated removal under Sec 46, Book V, Title I(A), RAC. Thus, the CA concluded
 CSC issued another resolution directing Gonzales’ reinstatement that Gonzales’ dismissal on the ground of loss of confidence violated her
security of tenure, and that she has the right to be reinstated with
Oct 12, 2000. Governor Pimentel reinstated Gonzales as provincial payment of backwages.
administrator  Gonzales’ dismissal was without due process. The proceedings under
 Terminated her services the next day for lack of confidence Administrative Case No. 001 cannot be the basis for complying with the
 Reported to CSC his compliance with its order and Gonzales’ requirements of due process because they are separate and distinct
subsequent dismissal as a confidential employee. from the proceedings in the present controversy. Thus, Gonzales was
illegally terminated when she was dismissed for lack of confidence,
CSC again ordered Gonzales’ reinstatement without any hearing, the day after she was reinstated.
 It clarified that while the Local Government Code of 1991 (Republic Act
No. RA 7160) made the provincial administrator position coterminous ISSUE
and highly confidential in nature, this conversion cannot operate to WON the provincial administrator position has been converted into a highly
prejudice officials who were already issued permanent appointments confidential, coterminous position by RA 7160 – YES. Congress has reclassified
as administrators prior to the new law’s effectivity. the provincial administrator position as a primarily confidential, non-career
 According to the CSC, Gonzales has acquired a vested right to her position.
permanent appointment as provincial administrator and is entitled to
continue holding this office despite its subsequent classification as a
GONZALES: provincial administrator remained a career service position. Section major level of positions in the career service under Section 7 of
7 of Presidential Decree No. 807, which was one of the bases of the Court in Presidential Decree No. 807.1
Laurel V v. Civil Service Commission to declare the provincial administrator as a
career service position, is a verbatim copy of Section 7, Chapter 2 of the Section 480 of RA 7160 made the provincial administrator’s functions closely
Administrative Code. related to the prevailing provincial administration by identifying the incumbent
 This classification, established by law and jurisprudence, cannot be with the provincial governor to ensure the alignment of the governor’s direction
altered by the mere implementing rules and regulations of RA 7160. for the province with what the provincial administrator would implement. In
And assuming arguendo that the provincial administrator position has contrast with the general direction provided by the provincial governor under
indeed become a primarily confidential position, this reclassification the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160
should not apply retroactively to Gonzales’ appointment on a now mandates constant interaction between the provincial administrator and
permanent capacity prior to RA 7160’s effectivity. the provincial governor.2

Congress, through RA 7160, made substantial changes to the provincial CSC correctly noted that the administrator position demands a closed intimate
administration position, reclassifying it into a primarily confidential, non-career relationship with the office of the governor (its appointing authority) to
position.
 Prior to RA 7160, BP 337, the old LGC did not include a provincial 1
Section 7. Classes of Positions in the Career Service.
administrator position among the listing of mandatory provincial
(a) Classes of positions in the career service appointment to which requires
officials, but empowered the Sangguniang Panlalawigan to create such
examinations shall be grouped into three major levels as follows:
other offices as might then be necessary to carry out the purposes of xxxx
the provincial government. RA 7160 made the position mandatory for 2. The second level shall include professional, technical, and scientific positions
every province. Thus, the creation of the provincial administrator which involve professional, technical, or scientific work in a non-supervisory or
position under the old LGC used to be a prerogative of the Sangguniang supervisory capacity requiring at least four years of college work up to Division
Panlalawigan. Chief level.
 RA 7160 also amended the qualifications for the provincial
administrator position. While Section 480 of RA 7160 retained the
requirement of civil service eligibility for a provincial administrator, 2
(b) The administrator shall take charge of the office of the administrator and shall:
together with the educational requirements, it shortened the six-year
(1) Develop plans and strategies and upon approval thereof by the governor or
work experience requirement to five years. It also mandated the
mayor, as the case may be, implement the same particularly those which have to do
additional requirements of residence in the local government with the management and administration-related programs and projects which the
concerned, and imposed a good moral character requirement. governor or mayor is empowered to implement and which the sanggunian is
 RA 7160 made the provincial administrator coterminous with its empowered to provide for under this Code;
appointing authority, reclassifying it as a non-career service position (2) In addition to the foregoing duties and functions, the administrator shall:
that is primarily confidential. (i) Assist in the coordination of the work of all the officials of the local government
 Before RA 7160 took effect, Laurel classified the provincial unit, under the supervision, direction, and control of the governor or mayor, and for
administrator position as an open career position which required this purpose, he may convene the chiefs of offices and other officials of the local
government unit;
qualification in an appropriate examination prior to appointment.
xxxx
Laurel placed the provincial administrator position under the second
(4) Recommend to the sanggunian and advise the governor and mayor, as the case
may be, on all other matters relative to the management and administration of the
local government unit.
effectively develop, implement and administer the different programs of the enacted. Rather, this change was part of the reform measures that RA 7160
province. introduced to further empower local governments and decentralize the delivery
 The functions are to recommend to the Sanggunian and to advise the of public service.
governor on all matters regarding the management and administration
of the province, thus requiring that its occupant enjoy the governor’s Gonzales’ permanent appointment as provincial administrator prior to the
full trust and confidence. enactment of RA 7160 is IMMATERIAL TO HER REMOVAL.
 For purposes of determining whether Gonzales’ termination violated
RA 7160 even made the provincial administrator position coterminous with its her right to security of tenure, the nature of the position she occupied
appointing authority at the time of her removal should be considered, and not merely the
 This provision, along with the interrelations between the provincial nature of her appointment at the time she entered government service.
administrator and governor under Section 480, renders clear the intent
of Congress to make the provincial administrator position primarily RE: DISSENTING OPINION
confidential under the non-career service category of the civil service. The dissenting opinion posits the view that security of tenure protects the
permanent appointment of a public officer, despite subsequent changes in the
PETITIONER: Gonzales lost her security of tenure when the provincial nature of his position
administrator position became a primarily confidential position.  Cited Gabriel v Domingo – “a permanent employee remains a
GONZALES: The conversion of the position should not be retroactively applied permanent employee unless he is validly terminated.”
to her, as she is a permanent appointee. o The sole and main issue in Gabriel is whether backwages
and other monetary benefits could be awarded to an
SC: The nature of a position may change by law according to the dictates of illegally dismissed government employee, who was later
Congress. The right to hold a position, on the other hand, is a right that enjoys ordered reinstated. From this sentence alone can be
constitutional and statutory guarantee, but may itself change according to the discerned that the issues involved related to the
nature of the position. consequences of illegal dismissal rather than to the
dismissal itself. Nowhere in Gabriel was there any
Congress has the power and prerogative to introduce substantial changes in the mention of a change in the nature of the position held by
provincial administrator position and to reclassify it as a primarily confidential, the public officer involved.
non-career service position. Flowing from the legislative power to create public  Dissent also quotes CSC v Javier to support its contention that
offices is the power to abolish and modify them to meet the demands of permanent appointees could expect protection for their tenure and
society; Congress can change the qualifications for and shorten the term of appointments in the event that the Court determines that the position is
existing statutory offices. When done in good faith, these acts would not violate actually confidential in nature:
a public officer’s security of tenure, even if they result in his removal from office The Court is aware that this decision has repercussions on the tenure of
or the shortening of his term. Modifications in public office, such as changes in other corporate secretaries in various GOCCs. The officers likely
qualifications or shortening of its tenure, are made in good faith so long as they assumed their positions on permanent career status, expecting
are aimed at the office and not at the incumbent. protection for their tenure and appointments, but are now re-classified
as primarily confidential appointees. Such concern is unfounded,
In the current case, Congress, through RA 7160, did not abolish the provincial however, since the statutes themselves do not classify the position of
administrator position but significantly modified many of its aspects. It is now a corporate secretary as permanent and career in nature. Moreover,
primarily confidential position under the non-career service tranche of the civil there is no absolute guarantee that it will not be classified as
service. This change could not have been aimed at prejudicing Gonzales, as she confidential when a dispute arises. As earlier stated, the Court, by legal
was not the only provincial administrator incumbent at the time RA 7160 was tradition, has the power to make a final determination as to which
 positions in government are primarily confidential or otherwise. In the the term of an incumbent provincial administrator would automatically
light of the instant controversy, the Court's view is that the greater become coterminous with that of the appointing authority upon RA
public interest is served if the position of a corporate secretary is 7160’s effectivity.
classified as primarily confidential in nature. o The phrase "and for other related purposes" can only add to EO
o This quoted portion stands for the proposition that other 503 matters related to the devolution of personnel, basic
corporate secretaries in GOCCs cannot expect protection services and facilities to local government units. The impact of
for their tenure and appointments upon the the change in a local government position’s nature is clearly
reclassification of their position to a primarily confidential different from the implementation of devolution and its
position. There, the Court emphasized that these officers ancillary effects: the former involves a change in a local
cannot rely on the statutes providing for their permanent government position’s functions and concept of tenure, while
appointments, if and when the Court determines these to the latter involves (among other things) the transfer of
be primarily confidential. In the succeeding paragraph national government employees to local government units.
after the portion quoted by the dissent, the Court even This difference is highlighted by the fact that EO 503, as
pointed out that there is no vested right to public office, reflected by its whereas clauses, was issued to implement
nor is public service a property right. Section 17 of RA 7160. In contrast, the change in the nature of
o Basic tenet – public office is a public trust. NO vested right the provincial administrator position may be gleaned from
in public office nor an absolute right to hold office. Section 480 of RA 7160. Hence, by no stretch of reasonable
Excepting constitutional offices which provide for special construction can the phrase "and for other related purposes" in
immunity as regards salary and tenure, no one can be said EO 503’s title be understood to encompass the consequences of
to have any vested right in an office. The rule is that offices the change in the local government position’s nature.
in government, except those created by the constitution, o EO 503 was issued pursuant to the President’s ordinance
may be abolished, altered, or created anytime by statute. powers to provide for rules that are general or permanent in
And any issues on the classification for a position in character for the purpose of implementing the President’s
government may be brought to and determined by the constitutional or statutory powers. Exercising her
courts constitutional duty to ensure that all laws are faithfully
executed, then President Corazon Aquino issued EO 503 to
ensure the executive’s compliance with paragraph (i), Section
EO 503 which provided for the rules and regulations implementing the transfer 17 of RA 7160, which requires local government units to
of personnel and assets, liabilities and records of national government agencies, absorb the personnel of national agencies whose functions
whose functions are to be devolved to the LGU does not apply to employees of shall be devolved to them
the local government affected by RA 7160’s enactment. o The grant of permanent status to incumbent provincial
 Whereas clauses confirms that it applies only to national government administrators, despite the clear language and intent of RA
employees whose functions are to be devolved to local governments. 7160 to make the position coterminous, is an act outside the
President’s legitimate powers. The power to create, abolish
Dissent argues that EO 503 does not apply to national government employees and modify public offices is lodged with Congress. The
only. President cannot, through an Executive Order, grant
 Phrase “and for related purposes” could encompass personnel not permanent status to incumbents, when Congress by law has
necessarily employed by national government agencies but by LGUs declared that the positions they occupy are now confidential.
such as the administrator, the legal officer and the information officer. Such act would amount to the President’s amendment of an act
This fills the crucial gap left by RA 7160 which did not provide whether of Congress – an act that the Constitution prohibits. Allowing
 this kind of interpretation violates the separation of powers, a
constitutionally enshrined principle that the Court has the duty
to uphold.

Both career and non-career service employees have a right to security of

tenure. All permanent officers and employees in the civil service, regardless of
whether they belong to the career or non-career service category, are entitled to
this guaranty; they cannot be removed from office except for cause
provided by law and after procedural due process. The concept of security
of tenure, however, labors under a variation for primarily confidential
employees due to the basic concept of a "primarily confidential" position.
Serving at the confidence of the appointing authority, the primarily confidential
employee’s term of office expires when the appointing authority loses trust in
the employee. When this happens, the confidential employee is not "removed"
or "dismissed" from office; his term merely "expires" and the loss of trust and
confidence is the "just cause" provided by law that results in the termination of
employment. In the present case where the trust and confidence has been
irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion
when he decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or

employee shall not be suspended or dismissed except for cause, as provided by
law and after due process. It cannot be expanded to grant a right to public office
despite a change in the nature of the office held. In other words, the CSC might
have been legally correct when it ruled that the petitioner violated Gonzales’
right to security of tenure when she was removed without sufficient just cause
from her position, but the situation had since then been changed. In fact,
Gonzales was reinstated as ordered, but her services were subsequently
terminated under the law prevailing at the time of the termination of her
service; i.e., she was then already occupying a position that was primarily
confidential and had to be dismissed because she no longer enjoyed the trust
and confidence of the appointing authority. Thus, Gonzales’ termination for lack
of confidence was lawful. She could no longer be reinstated as provincial
administrator of Camarines Norte or to any other comparable position. This
conclusion, however, is without prejudice to Gonzales’ entitlement to
retirement benefits, leave credits, and future employment in government
service.

PETITION GRANTED.
CSC Resolution, Carmencita Reyes re: Appointment of Provincial WON the position of Administrator is confidential in nature – YES
Administrator
May 12, 2000 Previously, the CSC ruled that while the term of office of an Administrator is co-
terminous with that of the appointing authority. It does not follow that the same
Marinduque Prov Governor Carmencita Reyes appeals the CSC Regional Office is primarily confidential. Position still belongs to the career service because of
Opinion, declaring the position of Provincial Administrator as career and the eligibility requirement under the LGC.
coterminous with the appointing authority.
 Opinion was in response to a query posted by Pedrito Nepomuceno, In CSC v Rafael Salas, the Court held that the duties and functions of the position
Member, Sangguniang Panlalawigan: of Administrator is in the nature of the position which finally determine
“There is a need to recall that the position of Provincial Administrator is whether a position is primarily confidential, policy-determining or highly
one of the mandatory and existing positions under Sec 480, RA 7160. technical.
The qualification requirements, term, power and duties of the said
item/position is specifically and clearly defined including its status and In De Los Santos v Mallari, SC defined when a position is considered primarily
nature, which is career and co-terminous with the appointing authority. confidential:
This is so because there are qualification standards prescribed for the Every appointment implies confidence, but much more than ordinary
position which implies that it is a career position.” confidence is reposed in the occupant of a position that is primarily confidential.
The latter phrase denotes not only confidence in the aptitude of the appointee
CSC: The appointment of former Gov Luisito Reyes as the Provincial for the duties of the office but primarily close intimacy which ensures freedom
Administrator, being the brother-in-law of the new appointing authority – Gov of intercourse without embarrassment or freedom from misgivings of betrayals
Carmencita Reyes, is not in order, since it is not in accordance with the of personal trust or confidential matters of state.
provisions of law.
 Considered a nepotic appointment A close scrutiny of the nature of the functions attached to the position of
 Relationship of the appointing authority and the appointee is within the Administrator3 vis-à-vis the pronouncement of the SC in De los Santos, show the
prohibitive degree of relationship by affinity highly confidential nature of the position.

Gov Reyes appealed. 3(b) The administrator shall take charge of the office of the
 Position of Provincial Administrator is not a career. It is non-career administrator and shall:
because its tenure is co-terminous with that of the appointing authority (1) Develop plans and strategies and upon approval thereof by
 LGC lists some 22 officials whose appointments, with 3 exceptions, are the governor or mayor, as the case may be, implement the
lodged with municipal mayors, city mayors and the provincial same particularly those which have to do with the
management and administration-related programs and
governors respectively: They are all career officials, except the Legal
projects which the governor or mayor is empowered to
Officer, Information Officer and the Administrator whose terms of office implement and which the sanggunian is empowered to provide
are co-terminous with the mayor or the governor who appointed them for under this Code;
 Appointment to brother-in-law is not nepotic because it falls under the (2) In addition to the foregoing duties and functions, the
exception in LGC. Position is non-career or confidential if the tenure of administrator shall:
office is coterminous with the appointing authority (i) Assist in the coordination of the work of all the
 Career position is the antonym of one which is coterminous with that of officials of the local government unit, under the
supervision, direction, and control of the governor or
the appointing authority, non-career.
mayor, and for this purpose, he may convene the
chiefs of offices and other officials of the local
ISSUE government unit;
  The position of Administrator requires a "close intimacy" with the Position of Administrator declared to be primarily confidential in nature, to be
office of the governor, its appointing authority, in order to be able to coterminous with the officials they serve. Appointment of former Gov. Luisito
effectively develop, implement and administer the different programs Reyes is exempted from the operation of law on nepotism.
of the local government unit concerned.
 As the Administrator shall recommend to the Sanggunian and advise APPEAL OF GOV. CARMENCITA REYES GRANTED.
the governor and mayor, as the case may be, on all other matters
relative to the management and administration of the local government
unit, the occupant thereof must enjoy the full trust and confidence of
the appointing authority. And the appointing authority should be given
enough flexibility and discretion to choose the person for appointment.

The position of the Legal Officer is of equal footing with the Administrator. In
Hilario v CSC, the Court ruled:
The position of City Legal Officer is a confidential one. In the recent case of
Grino v. Civil Service Commission, respondent was appointed provincial
attorney at a time when Batas Pambansa Blg. 337 was in effect. We held that the
position of City Legal Officer has its counterpart in the position of provincial
attorney appointed by the provincial governor, both being positions involving
the rendering of trusted services.
By analogy, the ruling is applicable to the position of Administrator, considering
that under the Local Government Code (LGC) both positions have terms of office
which are coterminous with the appointing authority.

(ii) Establish and maintain a sound personnel program

for the local government unit designed to promote
career development and uphold the merit principle in
the local government service;
(iii) Conduct a continuing organizational development
of the local government unit with the end in view of
the instituting effective administrative reforms;
(3) Be in the frontline of the delivery of administrative support
services, particularly those related to the situations during and
in the aftermath of man-made and natural disasters and
calamities;
(4) Recommend to the sanggunian and advise the governor
and mayor, as the case may be, on all other matters relative to
the management and administration of the local government
unit; and
(5) Exercise such other powers and perform such other duties
and functions as may be prescribed by law or by ordinance.