Pub Off

law On PUBLIC OFFICERS
BarOps Head I PY Caunan
Acads Head I Beth Liceralde
Subject Head I Bodee Tandog

TABLE OF CONTENTS
I. PUBLIC OFFICE AND OFFICERS .............................................................................................................1

A. PUBLIC OFFICE.......................................................................................................................................................................................1
B. PUBLIC OFFICER ....................................................................................................................................................................................3
C. CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC OFFICERS...........................................................................................................................3
D. DE FACTO OFFICERS ...............................................................................................................................................................................3
II. ELIGIBILITY AND QUALIFICATIONS ......................................................................................................6

A. DEFINITION............................................................................................................................................................................................6
B. POWER TO PRESCRIBE QUALIFICATIONS .....................................................................................................................................................6
C. TIME OF POSSESSION OF QUALIFICATIONS ..................................................................................................................................................6
D. CONSTRUCTION OF RESTRICTIONS ON ELIGIBILITY ........................................................................................................................................7
E. QUALIFICATIONS USUALLY PRESCRIBED ......................................................................................................................................................7
F. RELIGIOUS TEST OR QUALIFICATION ...........................................................................................................................................................7
G. DISQUALIFICATIONS TO HOLD PUBLIC OFFICE ..............................................................................................................................................8
III. FORMATION OF OFFICIAL RELATION...................................................................................................9

A. MODES OF COMMENCING OFFICIAL RELATION ..............................................................................................................................................9
B. ELECTION..............................................................................................................................................................................................9
C. APPOINTMENT........................................................................................................................................................................................9
D. QUALIFICATION STANDARDS AND REQUIREMENTS UNDER THE CIVIL SERVICE LAW ...........................................................................................11
E. DISCRETION OF APPOINTING OFFICIAL ......................................................................................................................................................11
F. EFFECTIVITY OF APPOINTMENT ...............................................................................................................................................................12
G. EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE APPOINTMENT ...............................................................................................................12
H. JURISDICTION OF THE CIVIL SERVICE COMMISSION (CSC) ............................................................................................................................12
I. APPOINTMENTS TO THE CIVIL SERVICE ......................................................................................................................................................12
IV. ASSUMPTION AND TERM OR TENURE OF OFFICE ...............................................................................14

A. QUALIFICATION TO OFFICE......................................................................................................................................................................14
B. OATH OF OFFICE ..................................................................................................................................................................................14
C. GIVING OF BONDS .................................................................................................................................................................................15
D. TERM AND TENURE OF OFFICE ...............................................................................................................................................................15
E. DOCTRINE OF HOLDOVER .......................................................................................................................................................................16
F. COMMENCEMENT OF TERM OF OFFICE ......................................................................................................................................................16
V. POWERS AND DUTIES OF PUBLIC OFFICERS .......................................................................................17

A. SOURCE OF GOVERNMENT AUTHORITY .....................................................................................................................................................17
B. SCOPE OF POWERS OF A PUBLIC OFFICER ................................................................................................................................................17
C. TERRITORIAL EXTENT OF POWERS OF PUBLIC OFFICER ............................................................................................................................... 17
D. DURATION OF AUTHORITY OF PUBLIC OFFICERS.........................................................................................................................................17
E. CONSTRUCTION OF GRANT OF POWERS.....................................................................................................................................................17
F. CLASSIFICATION OF POWERS ...................................................................................................................................................................17
G. DUTIES OF PUBLIC OFFICERS ..................................................................................................................................................................18
H. TIME OF EXECUTION OF POWERS ............................................................................................................................................................18
I. RATIFICATION OF UNAUTHORIZED ACTS .....................................................................................................................................................18
J. ACCOUNTABILITY AND RESPONSIBILITY OF PUBLIC OFFICERS AND EMPLOYEES ................................................................................................19
K. PROHIBITIONS......................................................................................................................................................................................19
VI. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS .................................................................................20

A. RIGHT TO OFFICE ..................................................................................................................................................................................20
B. RIGHT TO SALARY OR COMPENSATION......................................................................................................................................................20
C. DOCTRINE OF OFFICIAL IMMUNITY ............................................................................................................................................................21
D. RIGHT TO PREFERENCE IN PROMOTION ....................................................................................................................................................21
E. RIGHT TO VACATION AND SICK LEAVE.......................................................................................................................................................21
F. RIGHT TO MATERNITY LEAVE ..................................................................................................................................................................21
G. RIGHT TO RETIREMENT PAY ...................................................................................................................................................................21
H. OTHERS ..............................................................................................................................................................................................22
VII. LIABILITY OF PUBLIC OFFICERS ......................................................................................................22

A. GENERAL RULE ....................................................................................................................................................................................22
B. EXCEPTION ..........................................................................................................................................................................................22
C. THREEFOLD LIABILITY RULE ...................................................................................................................................................................22
D. WHEN A PUBLIC OFFICER IS SUBJECT TO CIVIL LIABILITY .............................................................................................................................23
E. KINDS OF LIABILITY OF MINISTERIAL OFFICERS ..........................................................................................................................................23
F. LIABILITY OF SUPERIOR OFFICER FOR ACTS OF SUBORDINATE ......................................................................................................................23
G. LIABILITY OF SUBORDINATES ..................................................................................................................................................................23
H. LIABILITY ON CONTRACTS.......................................................................................................................................................................23
I. LIABILITY FOR TORTUOUS ACTS ................................................................................................................................................................23
J. CRIMINAL LIABILITY ................................................................................................................................................................................24
VIII. ADMINISTRATIVE DISCIPLINE.........................................................................................................24

A. OVER PRESIDENTIAL APPOINTEES ...........................................................................................................................................................24
B. OVER NON-PRESIDENTIAL APPOINTEES ...................................................................................................................................................24
C. OVER ELECTIVE OFFICIALS .....................................................................................................................................................................26
IX. TERMINATION OF OFFICIAL RELATIONS............................................................................................27

A. MODES OF TERMINATION .......................................................................................................................................................................27
B. EXPIRATION OF TERM OR TENURE OF OFFICE............................................................................................................................................27
C. REACHING THE AGE LIMIT; RETIREMENT ...................................................................................................................................................28
D. BONA FIDE ABOLITION OF OFFICE ...........................................................................................................................................................28
E. REORGANIZATION .................................................................................................................................................................................29
F. ABANDONMENT OF OFFICE .....................................................................................................................................................................29
G. ACCEPTANCE OF AN INCOMPATIBLE OFFICE ...............................................................................................................................................29
H. RESIGNATION .......................................................................................................................................................................................30
I. REMOVAL FOR CAUSE .............................................................................................................................................................................30
J. TERMINATION OF TEMPORARY APPOINTMENT .............................................................................................................................................31
K. RECALL ...............................................................................................................................................................................................31
L. PRESCRIPTION OF RIGHT TO OFFICE.........................................................................................................................................................31
M. FILING OF CERTIFICATE OF CANDIDACY .....................................................................................................................................................31
N. PERFORMANCE OF ACT OR ACCOMPLISHMENT OF PURPOSE FOR WHICH THE OFFICE WAS CREATED ....................................................................31
O. FAILURE TO ASSUME OFFICE ..................................................................................................................................................................31
I. Public Office and Officers Law on Public Officers
I. PUBLIC OFFICE AND OFFICERS Public Office Public Contract
Creation Incident of sovereignty Originates from

A. Public Office will of
contracting
parties
1. DEFINITION
Object Carrying out of Obligations
The right, authority and duty created and sovereign as well as imposed only
conferred by law, by which for a given period, governmental upon the
either fixed by law or enduring at the pleasure of functions affecting persons who
the appointing power, an individual is invested with even persons not entered into the
some portion of the sovereign functions of the bound by the contract contract
government, to be exercised by him for the benefit
of the public. (Fernandez v Sto. Tomas, March 7,
Subject Tenure, duration, Limited duration
2005)
Matter continuity
2. PURPOSE Scope Duties that are Duties are very
generally continuing specific to the
To effect the end for which government has and permanent contract
been instituted which is the common good; not
profit, honor, or private interest of any person, Where The law Contract
family or class of persons (63 Am Jur 2d 667) duties are
defined
3. NATURE
In this case, Laurel, who was the chair of the
A public office is a public trust. (Art. XI, Sec. National Centennial Commission (NCC), was
1, 1987 Consti) declared by the Court to be a public officer. The
Court ruled that the NCC performs executive
It is a responsibility and not a right. (Morfe v. functions as it enforces and carries into operation
Mutuc) the conservation and promotion of the nation’s
historical and cultural heritage, a policy embodied
4. ELEMENTS in the Constitution. That Laurel did not receive any
compensation during his tenure is of little
a. Must be created either by consequence. This is because a salary is a usual
i. The Constitution, but not a necessary criterion for determining the
ii. The Legislature, or nature of the position. At the same time, the
iii. A municipality or other body through element of continuance cannot be considered as
authority conferred by the Legislature; indispensable.
b. Must possess a delegation of a portion of the
sovereign power of government, to be exercised 5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT
for the benefit of the public;
c. The powers conferred and the duties discharged • Public employment is broader than public
must be defined, directly or impliedly by the office. All public office is public employment,
Legislature or through legislative authority; but not all public employment is a public
d. The duties must be performed independently office.
and without control of a superior power other • A public office when it is created by law, with
than the law; duties cast upon the incumbent which involve
Exception: If the duties are those of an inferior the exercise of some portion of the sovereign
or subordinate office, created or authorized by power, and in the performance of which the
the Legislature and by it placed under the public is concerned. Public employment is a
general control of a superior office or body; position which lacks one or more of the
e. Must have some permanency and continuity foregoing elements.
Note: This is not to be applied literally. The 6. PUBLIC OFFICE V. PUBLIC CONTRACT
Board of Canvassers is a public office, yet its
duties are only for a limited period of time. 7. THERE IS NO VESTED RIGHT TO PUBLIC
OFFICE
The element of continuance cannot be
considered as indispensable. Mechem describes
GENERAL RULE
the delegation to the individual of some of the
A public office, being a mere privilege given by
sovereign functions of government as “the most
the state, does not vest any rights in the holder of
important characteristic” in determining
the office. This rule applies when the law is clear.
whether a position is a public office or not
[Laurel v. Desierto (April 12, 2002)].
EXCEPTION
When the law is vague, the person’s holding of
the office is protected and he should not be
deprived of his office.
UP LAW BAROPS 2007 ONE UP LAW

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Segovia v. Noel therein. Therefore, an executive order depriving

A public office cannot be regarded as the the Courts of First Instance of jurisdiction over
property of the incumbent and that a public office cases involving recovery of taxes illegally collected
is not a public contract. Although there is a vested is null and void, as Congress alone has the "power
right to an office, which may not be disturbed by to define, prescribe and apportion the jurisdiction
legislation, yet the incumbent has, in a sense, a of the various courts."
right to his office. If that right is to be taken away
by statute, the terms should be clear. 10. METHODS OF ORGANIZING OFFICES
8. PUBLIC OFFICE IS NOT PROPERTY SINGLE-HEAD

One head assisted by subordinates. Swifter
A public office is not the property of the public decision and action but may sometimes be hastily
officer within the meaning of the due process made.
clause of the non-impairment of the obligation of
contract clause of the Constitution. BOARD SYSTEM
Collegial body in formulating polices and
EXCEPTIONS implementing programs. Mature studies and
a. In quo warranto proceedings relating to the deliberations but may be slow in responding to
question as to which of 2 persons is entitled to issues and problems.
a public office
b. In an action for recovery of compensation 11. MODIFICATION AND ABOLITION OF
accruing by virtue of the public office PUBLIC OFFICE
Cornejo v. Gabriel GENERAL RULE

Due process is violated only if an office is The power to create an office includes the
considered property. However, a public office is power to modify or abolish it. (i.e., this is
not property within the constitutional guaranties of generally a legislative function)
due process. It is a public trust or agency. As
public officers are mere agents and not rulers of EXCEPTIONS
the people, no man has a proprietary or a. Where the Constitution prohibits such
contractual right to an office. modification / abolition;
b. Where the Constitution gives the people the
Abeja v. Tanada power to modify or abolish the office
Public office being personal, the death of a
public officer terminates his right to occupy the RULE ON ABANDONMENT
contested office and extinguishes his counterclaim When a public official voluntarily accepts an
for damages. His widow and/or heirs cannot be appointment to an office newly created by law --
substituted in the counterclaim suit. which new office is incompatible with the former --
he will be considered to have abandoned his former
9. CREATION OF PUBLIC OFFICE office.
MODES OF CREATION OF PUBLIC OFFICE Exception

a. by the Constitution When the non-acceptance of the new
b. by statute / law appointment would affect public interest, and the
c. by a tribunal or body to which the power to public official is thereby constrained to accept.
create the office has been delegated
Ocampo v. Secretary of Justice
SCOPE AND EXTENT OF POWER OF LEGISLATURE The legislative power to create a court carries
with it the power to abolish it. When the court is
General Rule abolished, any unexpired term is abolished also.
The creation of a public office is primarily a
legislative function. Zandueta v. De la Costa
Rule: When a public official voluntarily accepts
Exceptions an appointment to an office newly created by law
a. where the offices are created by the (which new office is incompatible with the former),
Constitution; he will be considered to have abandoned his former
b. where the Legislature delegates such power. office.
Exception: When the non-acceptance of the
DELEGATION OF POWER TO CREATE PUBLIC OFFICE new appointment would affect public interest, and
Where an office is created pursuant to illegally the public official is thereby constrained to accept.
delegated powers, the office would have no
existence. 12. ESTOPPEL TO DENY EXISTENCE OF OFFICE
U.S.T. v. Board of Tax Appeals When a person has acted as a public officer,
The authority given to the President to esp. where he has received public monies by virtue
"reorganize within one year the different executive of his office, he is estopped from denying that he
departments, bureaus and other instrumentalities has occupied a public office.
of the Government" in order to promote efficiency
in the public service is limited in scope and cannot
be extended to other matters not embraced

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B. Public Officer • When a person who, having been elected by

popular election to a public office, refuses
without legal motive to be sworn in or to
1. DEFINITION discharge the duties of said office.
A public officer is one who performs public 3. NO PRESUMPTION OF POWER
functions / duties of government by virtue of direct
provision of law, popular election, or appointment A public official exercises power, not rights.
by competent authority. His duties involve the The government itself is merely an agency through
exercise of discretion in the performance of the which the will of the state is expressed and
functions of the government, and are not of a enforced. Its officers therefore are likewise agents
merely clerical or manual nature. entrusted with the responsibility of discharging its
functions. As such, there is no presumption that
The most important characteristic which they are empowered to act. There must be a
distinguishes an office from an employment is that delegation of such authority, either express or
the creation and conferring of an office involves a implied. In the absence of a valid grant, they are
delegation to the individual of some of the devoid of power (Villegas v. Subido).
sovereign functions of government, to be exercised
by him for the benefit of the public, and that the
same portion of the sovereignty of the country, C. Classification of Public Offices and
either legislative, judicial, or executive, attaches, Public Officers
for the time being, to be exercised for the public
benefit (Laurel v Desierto, April 12, 2002) • Creation
» Constitutional
When used with reference to a person having » Statutory
authority to do a particular act or perform a
particular function in the exercise of government • Public Body Served
power, “officer” includes any government » National
employee, agent, or body having authority to do » Local
the act or exercise that function (Sec. 2(14)
Administrative Code) • Department of government to which their
functions pertain
For the purpose of applying the provisions of » Legislative
the Revised Penal Code, employees, agents, or » Executive
subordinate officials, of any rank or class, who » Judicial
perform public duties in the government or in any
of its branches shall be deemed as public officers. • Nature of functions
» Civil
ILLUSTRATIONS » Military
• In the case of Maniego v. People, a laborer
who was in charge of issuing summons and • Exercise of Judgment or discretion
subpoenas for traffic violations in a judge's » Quasi-judicial
sala was convicted for bribery under RPC 203. » Ministerial
The court held that even temporary
performance of public functions is sufficient to • Legality of Title to office
constitute a person as a public official. » De Jure
• In the case of People v. Paloma, a sorter and » De Facto
filer of money orders in the Auditor's Office of
the Bureau of Posts was convicted for • Compensation
infidelity in the custody of documents. The » Lucrative
court pointed out that the sorting and filing of » Honorary
money orders in the Bureau of Posts is
obviously a public function or duty.
D. De Facto Officers
WHO ARE NOT CONSIDERED PUBLIC OFFICERS
• Special policemen salaried by a private entity 1. DE FACTO DOCTRINE
and patrolling only the premises of such
private entity (Manila Terminal Co. v. CIR); It is the principle which holds that a person,
• Concession forest guards (Martha Lumber Mill who, by the proper authority, is admitted and
v. Lagradante); sworn into office is deemed to be rightfully in such
• Company cashier of a private corporation office until:
owned by the government (Tanchoco v. GSIS) a. by judicial declaration in a proper
proceeding he is ousted therefrom; or
2. A PERSON CANNOT BE COMPELLED TO b. his admission thereto is declared void.
ACCEPT A PUBLIC OFFICE
Its purpose is to ensure the orderly
EXCEPTIONS functioning of government. The public cannot
• When citizens are required, under conditions afford to check the validity of the officer's title each
provided by law, to render personal military or time they transact with him.
civil service (Sec. 4, Art. II, 1987 Const.);

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2. DE FACTO OFFICER DEFINED How ousted Cannot be Only by a direct

ousted proceeding (quo
A person is de facto officer where the duties of warranto); not
his office are exercised under any of the following collaterally
circumstances:
a. Without a known appointment or election, but Validity of Valid, subject to Valid as to the
under such circumstances of reputation or official acts exceptions (e.g., public until such
acquiescence as were calculated to induce they were done time as his title to
beyond the the office is
people, without inquiry, to submit to or invoke
scope of his adjudged
his action, supposing him to the be the officer
authority, etc.) insufficient.
he assumed to be; or
b. Under color of a known and valid appointment Rule on Entitled to Entitled to receive
or election, but where the officer has failed to Compensation compensation as compensation
conform to some precedent requirement or a matter of only during the
condition (e.g., taking an oath or giving a right; time when no de
bond); jure officer is
c. Under color of a known election or appointment, The principle of declared;
void because: "no work, no
i. the officer was not eligible; pay" is not He is paid only for
ii. there was a want of power in the electing or applicable to actual services
him. rendered by him.
appointing body;
iii. there was a defect or irregularity in its
exercise; OFFICER DE FACTO V. INTRUDER
iv. such ineligibility, want of power, or defect De Facto Intruder
being unknown to the public
Nature Officer under One who takes
Note: Such ineligibility, want of authority or any of the 4 possession of an
irregularity being unknown to the public circumstances office and
discussed under undertakes to act
d. Under color of an election or an appointment by Part II (above). officially without
or pursuant to a public, unconstitutional law, any authority,
before the same is adjudged to be such. either actual or
apparent
Note: What is unconstitutional is not the act
creating the office, but the act by which the Basis of Color of right or None. He has
officer is appointed to an office legally existing. authority title to office neither lawful title
(Norton v. County of Shelby) nor color of right
or title to office.
OFFICER DE JURE V. OFFICER DE FACTO
Validity of Valid as to the Absolutely void;
De Jure De Facto
"official" acts public until such they can be
Requisites Existence of a de De jure office; time as his title impeached at any
jure office; to the office is time in any
adjudged proceeding (unless
must possess Color of right or insufficient and until he
the legal general continues to act
qualifications for acquiescence by for so long a time
the office in the public; as to afford a
question; presumption of his
Actual physical right to act)
must be lawfully possession of the
Rule on Entitled to Not entitled to
chosen to such office in good
compensation receive compensation at
office; faith
compensation all
only during the
must have
time when no
qualified himself
de jure officer is
to perform the
declared;
duties of such
office according
He is paid only
to the mode
for actual
prescribed by
services
law.
rendered by
Basis of Right: he has Reputation: Has him.
Authority the lawful right / the possession
title to the office and performs the An intruder / usurper ripen into a de facto
duties under color
officer. With the passage of time, a presumption
of right, without
may be created in the minds of the public that the
being technically
intruder has a right to act as a public officer.
qualified in all
points of law to
act

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Good faith on the part of the public is a factor The de facto officer may be liable for all
in the ripening of intruder status into de facto penalties imposed by law for any of the following
status. acts:
• usurping or unlawfully holding office;
3. ELEMENTS OF A DE FACTO OFFICERSHIP • exercising the functions of public office
without lawful right;
a. De jure office • not being qualified for the public office as
b. Color of right or general acquiescence by the required by law.
public; • The de facto officer cannot excuse his
c. Actual physical possession of the office in good responsibility for crimes committed in his
faith official capacity by asserting his de facto
status.
EXAMPLES OF THOSE NOT CONSIDERED AS DE FACTO
OFFICERS 7. RIGHT TO COMPENSATION OF DE FACTO
• A judge who has accepted an appointment as OFFICER
finance secretary and yet renders a decision
after having accepted such appointment (Luna GENERAL RULE
v. Rodriguez); A de facto officer cannot maintain an action to
• A judge whose position has already been recover the salary, fees or other emoluments
abolished by law, and yet promulgates a attached to the office, even though he has
decision in a criminal case after the abolition performed the duties thereof on the theory that the
and over the objection of the fiscal (People v. acts of a de facto officer as far as he himself is
So) concerned are void.
4. OFFICE CREATED UNDER AN The rightful incumbent of a public office may

UNCONSTITUTIONAL STATUTE recover from an officer de facto the salary received
by the latter during the time of his wrongful
The prevalent view is that a person appointed tenure, even though he entered into the office in
or elected in accordance with a law later declared good faith and under color of title (Monroy v CA)
to be unconstitutional may be considered de facto
at least before the declaration of EXCEPTION
unconstitutionality. Where there is no de jure public officer, the
officer de facto who in good faith has had
5. LEGAL EFFECT OF ACTS OF DE FACTO possession of the office and has discharged the
OFFICERS duties pertaining thereto, is legally entitled to the
emoluments of the office.
AS REGARDS THE OFFICERS THEMSELVES
A party suing or defending in his own right as One who becomes a public officer de facto
a public officer must show that he is an officer de without bad faith on his part, and who renders the
jure. It is not sufficient that he be merely a de services required of the office, may recover the
facto officer. compensation
AS REGARDS THE PUBLIC AND THIRD PERSONS Gen. Manager, Philippine Ports Authority v.
The acts of a de facto officer are valid as to Monserate (April 17, 2002)
third persons and the public until his title to office A de facto officer, not having good title, takes
is adjudged insufficient. the salaries at his risk and must account to the de
Rationale: For the protection of the public jure officer for whatever salary he received during
the period of his wrongful tenure. In fine, the rule
OFFICIAL ACTS OF DE FACTO OFFICERS NOT SUBJECT is that where there is a de jure officer, a de facto
TO COLLATERAL ATTACK officer, during his wrongful incumbency, is not
Rule entitled to the emoluments attached to the office,
The title of a de facto officer and the validity of even if he occupied the office in good faith.
his acts cannot be collaterally questioned in However, this rule was not squarely applied in
proceedings to which he is not a party, or which this case since the de jure officer assumed another
were not instituted to determine the very question. position under protest, for which she received
Remedy compensation. Thus, while her assumption to the
Quo warranto proceedings said position and her acceptance of the
» Who may file: corresponding emoluments cannot be considered
▪ The person who claims to be entitled to as an abandonment of her claim to her rightful
the office; office, she cannot recover full back wages for the
▪ The Republic of the Philippines, period when she was unlawfully deprived thereof.
represented by She is only entitled to back pay differentials
• the Solicitor-General; or between the salary rates for the lower position she
• a public prosecutor assumed and the position she is rightfully entitled
to.
6. LIABILITIES OF DE FACTO OFFICERS
The liability of a de facto officer is generally

held to be the same degree of accountability for
official acts as that of a de jure officer.

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II. Eligibility and Qualifications Law on Public Officers
regular Supreme Court Justice. (Vargas v.

II. ELIGIBILITY AND QUALIFICATIONS Rilloraza);
• A proviso which limits the choices of the
A. Definition appointing authority to only one eligible, e.g.
the incumbent Mayor of Olongapo City (Flores
v. Drilon);
ELIGIBILITY
• Legislative enactment abolishing a particular
office and providing for the automatic transfer
Endowment / requirement / accomplishment
of the incumbent officer to a new office
that fits one for a public office.
created (contemplated in Manalang v.
Quitoriano);
QUALIFICATION
• A provision that impliedly prescribes inclusion
in a list submitted by the Executive Council of
Endowment / act which a person must do
the Phil. Medical Association as one of the
before he can occupy a public office.
qualifications for appointment; and which
Note: Failure to perform an act required by law confines the selection of the members of the
could affect the officer’s title to the given office. Board of Medical Examiners to the 12 persons
Under BP 881, the office of any elected official who included in the list (Cuyegkeng v. Cruz) ;
fails or refuses to take his oath of office within six
months from his proclamation shall, shall be Manalang v. Quitoriano
considered vacant unless said failure is for cause or Congress cannot either appoint a public officer
causes beyond his control. or impose upon the President the duty to appoint
any particular person to an office. The appointing
B. Power to Prescribe Qualifications power is the exclusive prerogative of the President,
upon which no limitations may be imposed by
Congress, except those resulting from:
GENERAL RULE 1. The need of securing the concurrence of the
Commission on Appointments; and
Congress is empowered to prescribe the 2. the exercise of the limited legislative power to
qualifications for holding public office. prescribe the qualifications to a given
appointive office.
RESTRICTIONS ON THE POWER OF CONGRESS
TO PRESCRIBE QUALIFICATIONS Cuyegkeng v. Cruz
The power of appointment vested in the
• Congress cannot exceed its constitutional President by the Constitution connotes necessarily
powers; a reasonable measure of freedom, latitude, or
• Congress cannot impose conditions of discretion in the exercise of the power to choose
eligibility inconsistent with constitutional appointees.
provisions;
• The qualification must be germane to the Flores v. Drilon
position ("reasonable relation" rule); Where only one can qualify for the posts in
• Congress cannot prescribe qualifications so question, the President is precluded from
detailed as to practically amount to making an exercising his discretion to choose whom to
appointment. (Legislative appointments are appoint. Such supposed power of appointment,
unconstitutional and therefore void for being a sans the essential element of choice, is no power at
usurpation of executive power.); all and goes against the very nature itself of
• Where the Constitution establishes specific appointment.
eligibility requirements for a particular
constitutional office, the constitutional criteria
are exclusive, and Congress cannot add to C. Time of Possession of Qualifications
them except if the Constitution expressly or
impliedly gives the power to set qualifications. • At the time specified where the time is
• In the absence of constitutional inhibition, specified by the Constitution or law.
Congress has the same right to provide • Where the Constitution or law is silent, there
disqualifications that it has to provide are 2 views:
qualifications for office. » qualification must be at the time of
commencement of term or induction into
EXAMPLES OF LEGISLATIVE ENACTMENTS office;
THAT ARE TANTAMOUNT TO LEGISLATIVE » qualification / eligibility must exist at the
APPOINTMENTS time of the election or appointment
• Eligibility is a continuing nature, and must
• Extensions of the terms of office of the exist throughout the holding of the public
incumbents; office. Once the qualifications are lost, then
• The People's Court Act, which provided that the public officer forfeits the office.
the President could designate Judges of First
Instance, Judges-at-large of First Instance or Castaneda v. Yap
Cadastral Judges to sit as substitute Justices Knowledge of ineligibility of a candidate and
of the Supreme Court in treason cases without failure to question such ineligibility before or during
them necessarily having to possess the the election is not a bar to questioning such
required constitutional qualifications of a eligibility after such ineligible candidate has won

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and been proclaimed. Estoppel will not apply in 5. CIVIL SERVICE COMMISSIONERS
such a case. (Sec. 1 [1], Art. IXB. Constitution)
Frivaldo v. COMELEC • Natural-born citizen

The citizenship requirement must be met only • 35 years old at time of appointment
on election day. While the Local Government Code • proven capacity for public administration
requires residency of one year immediately • not a candidate for any elective position in
preceding election day and the prescribed age on elections immediately preceding appointment
election day, no date is specified for citizenship.
The purpose of the citizenship requirement is to 6. COMELEC COMMISSIONERS
ensure leaders owing allegiance to no other (Sec. 1[1], Art. IXC)
country. Such purpose is not thwarted, but instead
achieved by construing the requirement to apply at • Natural-born citizen
time of proclamation and at the start of the term. • 35 years old at time of appointment
• college degree holder
D. Construction of Restrictions on • not a candidate for elective position in election
immediately preceding appointment
Eligibility
• chairman and majority should be members of
the bar who have been engaged in the
There is a presumption IN FAVOR OF practice of law for at least 10 years
ELIGIBLITY of one who has been elected or
appointed to public office. 7. COA COMMISSIONERS
The right to public office should be strictly • Natural-born citizen

construed against ineligibility. • 35 years old at time of appointment
• CPA with >10 year of auditing experience or
E. Qualifications Usually Prescribed • Bar member engaged in practice of law for at
least 10 years
1. FOR PRESIDENT AND VICE PRESIDENT • Not have been candidates for elective position
(Sec. 2, Art. VI, Constitution and Sec. 3, Art. VII, in elections immediately preceding
Constitution, respectively) appointment
• Natural-born citizen Cayetano v. Monsod

• 40 years old on day of election Practice of law means any activity, in or out of
• resident of the Philippines for at least 10 yrs court, which requires the application of law, legal
immediately preceding election day procedure, knowledge, training and experience.
Generally, to practice law is to give notice or
2. FOR SENATOR render any kind of service which requires the use
(Sec. 3, Art. VI, Constitution) in any degree of legal knowledge or skill.
• Natural-born citizen Aquino v. COMELEC

• 35 years old on day of election Residency of not less than 1 year prior to the
• able to read and write elections for the position of Congressman. In
• registered voter election law, residence refers to domicile, i.e. the
• resident of the Philippines for not less than place where a party actually or constructively has
two years immediately preceding election day his permanent home, where he intends to return.
To successfully effect a change of domicile, the
3. FOR CONGRESSMEN candidate must prove an actual removal or an
(Sec. 6, Art. VI, Constitution) actual change of domicile. Here, it was held that
leasing a condominium unit in the district was not
• Natural-born citizen to acquire a new residence or domicile but only to
• 25 years old on day of election qualify as a candidate.
• able to read and write
• registered voter in district in which he shall be Marcos v. COMELEC
elected Domicile, which includes the twin elements of
• resident thereof for not less than one year actual habitual residence, and animus manendi, the
immediately preceding election day intention of remaining there permanently. It was
held that domicile of origin is not easily lost, and
4. SUPREME COURT JUSTICE that in the absence of clear and positive proof of a
successful change of domicile, the domicile of
• Natural born citizen origin should be deemed to continue.
• at least 40 years old
• 15 years or more a judge or engaged in law F. Religious Test or Qualification
practice
• of proven CIPI (competence, integrity, probity No religious test shall be required for the
and independence) exercise of civil or political rights. (Art. III, Sec. 5,
1987 Constitution)

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G. Disqualifications to Hold Public Office appointment (Art IX-B, Sec. 1; Art. IX-C, Sec.
1; Art. IX-D, Sec. 1; Art XI, Sec. 8)
8. Members of Constitutional Commissions, the
IN GENERAL Ombudsman and his Deputies are appointed to
a term of seven (7) years, without
Individuals who lack any of the qualifications reappointment (Sec. 1(2) of Arts. IX-B, C, D;
prescribed by the Constitution or by law for a Art. XI, Sec. 11)
public office are ineligible or disqualified from 9. The spouse and relatives by consanguinity or
holding such office. affinity within the fourth civil degree of the
President shall not during his tenure be
GENERAL DISQUALIFICATIONS UNDER THE appointed as Members of the Constitutional
CONSTITUTION Commissions, or the Office of the Ombudsman,
or as Secretaries, Undersecretaries, chairmen
• No candidate who lost in an election, shall, or heads of bureaus or offices, including
within one year after such election, be government owned- or controlled corporations
appointed to any office in Government (Art. (Art. VIII, Sec. 13)
IX-B Sec. 6)
• No elective official shall be eligible for OTHER DISQUALIFICATIONS
appointment or designation in any capacity to
any public office or position during his tenure 1. Mental or physical incapacity
(Art. IX-B Sec. 7(1)) 2. Misconduct or crime: persons convicted of
• Unless otherwise allowed by law or by the crimes involving moral turpitude are usually
primary functions of his position, no disqualified from holding public office.
appointive official shall hold any other position 3. Impeachment
in Government (Art. IX-B Sec 7 (2)) 4. Removal or suspension from office: where
Note: In National Amnesty Commission v there is no constitutional or statutory
COA, when another office is held by a public declaration of ineligibility for suspension or
officer in an ex officio capacity, as provided by removal from office, the courts may not impose
law and as required by the primary functions the disability
of his office, there is no violation. 5. Previous tenure of office: for example, a person
who has been elected and has held the office of
SPECIFIC DISQUALIFICATIONS UNDER THE President is absolutely disqualified for reelection
CONSTITUTION 6. Consecutive terms:
a. Vice-President = 2 consecutive terms
1. The President, Vice President, the Members of b. Senator = 2 consecutive terms
the Cabinet and their deputies or assistants c. Representative = 3 consecutive terms
shall not, unless otherwise provided in the d. Elective local officials = 3 consecutive terms
Constitution, hold any other office or • Voluntary renunciation of the office for any
employment during their tenure (Art. VII, Sec. length of time shall not be considered as an
13) interruption in the continuity of his service
2. No Senator or Member of the House of for the full term for which he was elected.
Representatives may hold any other office or 7. Holding more than one office: to prevent offices
employment in the Government, or any of public trust from accumulating in a single
subdivision, agency or instrumentality thereof, person, and to prevent individuals from
including government-owned or controlled deriving, directly or indirectly, any pecuniary
corporations or their subsidiaries, during his benefit by virtue of their dual position-holding
term without forfeiting his seat. Neither shall he
be appointed to any office which may have Civil Liberties Union v. Executive Secretary
been created or the emoluments thereof Section 7, Article IX-B of the Constitution is
increased during the term for which he was meant to lay down the general prohibition against
elected (Art. VI, Sec 13) the holding of multiple offices or employment in
3. The Members of the Supreme Court and of the government subsuming both elective and
other courts established by law shall not be appointive public officials, unless otherwise allowed
designated to any agency performing quasi- by law or by the primary functions of his position.
judicial or administrative functions (Art. VIII, This provision should not be applied to the
Sec. 12) President, Vice-President and cabinet members
4. No Member of a Constitutional Commission since the Constitution, in Section 13, Article VII,
shall, during his tenure, hold any other office or prescribes a stricter prohibition on the mentioned
employment. (Art. IX-A, Sec. 2) officials.
5. Previous disqualification applies to the To apply the exceptions found in Section 7,
Ombudsman and his Deputies (Art. XI, Sec. 8) Article IX-B to Section 13, Article VII would
6. The Ombudsman and his Deputies shall not be obliterate the distinction set by the framers of the
qualified to run for any office in the election Constitution as to the high-ranking officials of the
immediately succeeding their cessation from Executive branch.
office (Art. XI, Sec. 11) However, the prohibition under Section 13,
7. Members of Constitutional Commissions, the Article VII is not to be interpreted as covering
Ombudsman and his Deputies must not have positions held without additional compensation in
been candidates for any elective position in the ex-officio capacities as provided by law and as
elections immediately preceding their required by the primary functions of the concerned
official’s office.

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8. Relationship with the appointing power

III. FORMATION OF OFFICIAL RELATION
» Exceptions to rule on nepotism:
▪ persons employed in a confidential A. Modes of Commencing Official
capacity Relation
▪ teachers
▪ physicians
• Election
▪ members of the Armed Forces of the
• Appointment
Philippines
• Others:
» Succession by operation of law;
9. Office newly created or the emoluments of
» Direct provision of law, e.g. ex-officio
which have been increased
officers
10. Being an elective official: elective officials are
not eligible for appointment or designation in B. Election
any capacity to any public office or position
during his tenure; he may be appointed • Selection or designation by a popular vote
provided he forfeits his seat
C. Appointment
11. Having been a candidate for any elective
position
1. DEFINITION
12. Under the Local Government Code
a. Those sentenced by final judgment for an Designation Appointment
offense involving moral turpitude or for an
offense punishable by 1 year or more of Definition Imposition of Selection of an
imprisonment, within 2 years after serving additional individual to
sentence; duties upon an occupy a certain
b. Those removed from office as a result of an existing office public office by
one authorized by
administrative case;
law to make such
c. Those convicted by final judgment for
selection
violating the oath of allegiance to the
Republic;
d. Those with dual citizenship; Extent of Limited Comprehensive
e. Fugitive from justice in criminal or non- Powers
political cases here or abroad;
f. Permanent residents in a foreign country or Security of No. Yes.
those who have acquired the right to reside tenure?
abroad and continue to avail of the same
When deemed Assumption of a Assumption of a
right after the effectivity of the Local abandonment designated 2nd appointive
Government Code; of prior office position is not position is usually
g. The insane or feeble-minded. deemed deemed
abandonment abandonment of
of the 1st the first office.
position
2. NATURE OF APPOINTING POWER
• 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.
3. CLASSIFICATION OF APPOINTMENTS
PERMANENT
Extended to a person possessing the requisite
qualifications, including the eligibility required, for
the position, and thus protected by the
constitutional guaranty of security of tenure
Lasts until they are lawfully terminated
TEMPORARY
An acting appointment; it is extended to one
who may not possess the requisite qualifications or
eligibility required by law for the position, and is

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III. Formation of Official Relation Law on Public Officers
revocable at will, w/o the necessity of just cause or 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for
a valid investigation COMELEC; Art. IX-D, Sec. 1 (2) for COA).
Lasts until a permanent appointment is issued
The following can be appointed by the President
Mere fact that a position belongs to the Career without the need for CA approval
Service of the Civil Service Commission does not • All other officers of the government whose
automatically confer security of tenure. Where the appointments are not otherwise provided for
appointee doe not possess the qualifications for the by law;
position, the appointment is temporary and may be • Those whom he may be authorized by law to
terminated at will appoint;
• Members of the Supreme Court;
Acceptance of a temporary appointment • Judges of lower courts;
results in the termination of official relationship • Ombudsman and his deputies
with former position. (Romualdez III v CSC)
KINDS OF PRESIDENTIAL APPOINTMENTS
A mere designation does not confer security of
tenure, as the person designated occupies the Regular
position only in an acting capacity (Sevilla v CA) Made by the President while Congress is in
session after the nomination is confirmed by the
Where the appointment is subject to Commission of Appointments, and continues until
conditions, it is not permanent. However, where the end of the term.
the temporary appointment is for a fixed period,
the appointment may be revoked only at the Ad interim
expiration of the period or if revocation made Made while Congress is not in session, before
before such expiration, it must be for a valid cause. confirmation by the Commission on Appointments;
immediately effective and ceases to be valid if
4. STEPS IN APPOINTING PROCESS disapproved or bypassed by the Commission on
Appointments. This is a permanent appointment
FOR APPOINTMENTS WHICH REQUIRE and it being subject to confirmation does not alter
CONFIRMATION its permanent character.
• Recess appointment power keeps in
Regular Appointments continuous operation the business of
a. Nomination by the President government when Congress is not in session.
b. Confirmation by the Commission on • The appointment shall cease to be effective
Appointments upon rejection by the Commission on
c. Issuance of the commission Appointments, or if not acted upon, at the
d. Acceptance by the appointee adjournment of the next session, regular or
special, of Congress.
Ad-Interim Appointments
a. Nomination by the President Matibag v. Benipayo (April 2, 2002)
b. Issuance of the commission An ad interim appointment is a permanent
c. Acceptance by the appointee appointment because it takes effect immediately
d. Confirmation by the Commission on and can no longer be withdrawn by the President
Appointments once the appointee has qualified into office. The
fact that it is subject to confirmation by the
FOR APPOINTMENTS WHICH DO NOT REQUIRE Commission on Appointments does not alter its
CONFIRMATION permanent character. The Constitution itself
a. Appointment by the appointing authority makes an ad interim appointment permanent in
b. Issuance of the commission character by making it effective until disapproved
c. Acceptance by the appointee by the Commission on Appointments or until the
next adjournment of Congress.
Note: Where the appointment is to the career An ad interim appointment is distinguishable
service of the Civil Service, attestation of the Civil from an “acting” appointment which is merely
Service Commission is required temporary, good until another permanent
appointment is issued.
Said appointment is also distinguished from
5. PRESIDENTIAL APPOINTEES
the exercise of presidential prerogative requiring
confirmation by the Commission on Appointments
The following shall be nominated and
when Congress is in session. In the latter, the
appointed by with the consent of the Commission
President nominates, and only upon the consent of
on Appointments
the Commission on Appointments may the person
• Heads of the executive departments (Art. VII,
thus named assume office. It is not so with
Sec. 16, 1987 Const.);
reference to ad interim appointments, as they take
• Ambassadors (ibid);
effect at once. The individual chosen may thus
• Other public ministers and consuls (ibid);
qualify and perform his function without loss of
• Officers of the armed forces from the rank or
time.
colonel or naval captain (ibid);
In this case, the ad interim appointments of
• Other officers whose appointments are vested
the COMELEC Commissioners, being permanent
in him by the Constitution (ibid), including
appointments, do not violate the Constitutional
Constitutional Commissioners (Art. IX-B, Sec.

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prohibition on temporary or acting appointments of vote and to be voted shall not be dependent upon
COMELEC Commissioners. the wealth of the individual concerned. Social
Moreover, the failure of the Commission on justice presupposes equal opportunity for all, rich
Appointments to confirm the ad interim and poor alike, and that, accordingly, no person
appointment does not amount to a disapproval by shall, by reason of poverty, be denied the chance
the said Commission. There is no dispute that an to be elected to public office."
ad interim appointee disapproved by the COA can
no longer be extended a new appointment. On the 4. CITIZENSHIP
other hand, a by-passed appointee, or one whose
appointment has not been finally acted upon the Aliens not eligible to public office
merits by the COA, may be appointed again by the
President. 5. EFFECT OF REMOVAL OF QUALIFICATIONS
DURING THE TERM
D. Qualification Standards and
The officer must be terminated.
Requirements under the Civil Service
Law 6. EFFECT OF PARDON UPON THE
DISQUALIFICATION TO HOLD PUBLIC OFFICE
1. QUALIFICATION STANDARDS
GENERAL RULE
• Express the minimum requirements for a class A pardon shall not work the restoration of the
of positions in terms of education, training right to hold public office. (Art. 36, Revised Penal
and experience, civil service eligibility, Code)
physical fitness, and other qualities required
for successful performance. (Sec. 22, Book V, EXCEPTIONS
EO 292) • Where such right to hold public office is
• It shall be the responsibility of the expressly restored by the terms of the pardon
departments and agencies to establish, (Art. 36, RPC);
administer and maintain the qualification • When a person is granted pardon because he
standards on a continuing basis as an did not commit the offense imputed to him
incentive to career advancement. (Sec. 7, (Garcia v. Chairman, COA)
Rule IV, Omnibus Rules)
• Their establishment, administration, and
E. Discretion of Appointing Official
maintenance shall be the responsibility of the
department / agency, with the assistance and
approval of the CSC and in consultation with Discretion, if not plenary, at least sufficient,
the Wage and Position Classification Office should thus be granted to those entrusted with the
(ibid) responsibility of administering the officers
• Shall be established for all positions in the 1st concerned, primarily the department heads. They
and 2nd levels (Sec. 1, Rule IV, Omnibus are in the most favorable position to determine
Rules) who can best fulfill the functions of the office thus
vacated. Unless, therefore, the law speaks in the
2. POLITICAL QUALIFICATIONS FOR AN most mandatory and peremptory tone, considering
OFFICE (I.E., MEMBERSHIP IN A POLITICAL all the circumstances, there should be, as there has
PARTY) been, full recognition of the wide scope of such
discretionary authority. (Reyes v. Abeleda)
GENERAL RULE
Political qualifications are not required for Appointment is an essentially discretionary
public office. power and must be performed by the officer in
which it is vested, the only condition being that the
EXCEPTIONS appointee should possess the qualifications
• Membership in the electoral tribunals of either required by law. (Lapinid v. CSC)
the House of Representatives or Senate (Art.
VI, Sec. 17, 1987 Const.); The discretion of the appointing authority is
• Party-list representation; not only in the choice of the person who is to be
• Commission on Appointments; appointed but also in the nature and character of
• Vacancies in the Sanggunian (Sec. 45, Local the appointment intended (i.e., whether the
Government Code) appointment is permanent or temporary).
3. PROPERTY QUALIFICATIONS Appointment is generally a political question

so long as the appointee fulfills the minimum
In the cases of Maquera v. Borra and Aurea v. qualification requirements prescribed by law.
COMELEC, the Supreme Court held that property
qualifications are inconsistent with the nature and The only function of the CSC is to review the
essence of the Republican system ordained in our appointment in the light of the requirements of the
Constitution and the principle of social justice Civil Service Law, and when it finds the appointee
underlying the same. The Court reasoned out that to be qualified and all other legal requirements
"sovereignty resides in the people and all have been otherwise satisfied, it has no choice but
government authority emanates from them, and to attest to the appointment. It cannot order the
this, in turn, implies necessarily that the right to replacement of the appointee simply because it

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considers another employee to be better qualified. A completed appointment vests a legal right.
(Lapinid v. CSC) It cannot be taken away EXCEPT for cause, and
with previous notice and hearing (due process).
To hold that the Civil Service Law requires
that any vacancy be filled by promotion, transfer, QUALIFICATION
reinstatement, reemployment, or certification in Where the assent, confirmation, or approval of
that order would be tantamount to legislative some other officer or body is needed before the
appointment which is repugnant to the appointment may be issue and be deemed
Constitution. The requirement under the Civil complete.
Service Law that the appointing power set forth the
reason for failing to appoint the officer next in rank EXCEPTIONS
applies only in cases of promotion and not in cases
where the appointing power chooses to fill the • When the appointment is an absolute nullity
vacancy by transfer, reinstatement, reemployment (Mitra v. Subido);
or certification, not necessarily in that order. • When there is fraud on the part of the
(Pineda v. Claudio) (c.f. highlighted part in appointee (Mitra v. Subido);
paragraph in next column) • Midnight appointments
» A President or Acting President is
The CSC is not empowered to change the prohibited from making appointments 2
nature of the appointment extended by the months immediately before the next
appointing officer, its authority being limited to presidential elections and up to the end of
approving or reviewing the appointment in the light his term. (Art. VII, Sec. 15, 1987 Const.)
of the requirements of the Civil Service Law. When ▪ Exception: Temporary appointments to
the appointee is qualified and all the legal executive positions when continued
requirements are satisfied, the CSC has no choice vacancies therein will prejudice public
but to attest to the appointment. (Luego v. CSC) service or endanger public safety.
Where the palpable excess of authority or H. Jurisdiction of the Civil Service

abuse of discretion in refusing to issue promotional
Commission (CSC)
appointment would lead to manifest injustice,
mandamus will lie to compel the appointing
authority to issue said appointments. (Gesolgon v. The following are within the exclusive
Lacson) jurisdiction of the CSC: Disciplinary cases and
cases involving “personnel action” affecting the
For the appointment to be valid, the position employees of the Civil Service, including
must be vacant (Costin v Quimbo) “appointment through certification, promotion,
transfer, reinstatement, reemployment, detail,
While the Civil Service Law grants career reassignment, demotion and separation,” as well
service officers preference in promotion under the as employment status and qualification standards.
“next-in-rank” rule, it is not mandatory that the
appointing authority fill a vacancy by promotion, as Includes the authority to recall an
the appointing authority should be allowed the appointment which has been initially approved
choice of men of his confidence. Provided they are when it is shown that the same was issued in
qualified and eligible. disregard of pertinent CSC laws, rules and
regulations.
Sec. 9, Chapter II, Title III Book IV of the
Admin Code provides that all provincial and city The CSC is not a co-manager or surrogate
prosecutors and their assistants shall be appointed administrator of government offices and agencies.
by the President upon recommendation of the Its authority is limited to approving or reviewing
Secretary of Justice. The phrase “upon appointments.
recommendation of the Sec. of Justice” should be
interpreted to be a mere advise, which is I. Appointments to the Civil Service
persuasive in character but is not binding or
obligatory upon the person to whom it is made. SCOPE
F. Effectivity of Appointment Embraces all branches, subdivisions,

instrumentalities and agencies of the Government,
An appointment takes effect immediately including GOCCs with original charters (Art. IX-B
upon its issuance by the appointing authority. Sec. 2(1), Constitution)
(Rule V, Sec. 10, Omnibus Rules).
CLASSES OF SERVICE
G. Effects of a complete, final and CAREER SERVICE
irrevocable appointment Entrance based on merit and fitness
determined by competitive examinations, or based
GENERAL RULE on highly technical qualifications, opportunity for
advancement to higher career positions and
An appointment, once made, is irrevocable and security of tenure.
not subject to reconsideration.

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NON-CAREER SERVICE Rules Implementing EO 292) For this rule to apply,

Entrance on bases other than those of the the following must concur:
usual testes. Tenure limited to a period specified by • there must be a series of promotions
law or which is coterminous with the appointing • all promotional appointments are
authority or the duration of a particular project. Ex. simultaneously submitted to the Commission
elective officials, Department Heads and Members for approval
of Cabinet • the Commission disapproves the appointment
of a person to a higher position.
REQUISITES
APPOINTMENT THROUGH CERTIFICATION
a. Shall be made only according to merit and Is issued to a person who has been selected
fitness to be determined, as far as practicable from a list of qualified persons certified by the Civil
b. By competitive examination Service Commission from an appropriate register of
eligibles, and who meets all the qualifications
EXEMPT FROM THE COMPETITIVE prescribed for the position
EXAMINATION REQUIREMENTS ARE
APPOINTMENTS TO POSITIONS WHICH ARE TRANSFER
Is a movement from one position to another
POLICY DETERMINING which is of equivalent rank, level or salary without
In which the officer lays down principal or break in service. This may be imposed as an
fundamental guidelines or rules; or formulates a administrative remedy.
method of action for government or any of its
subsidiaries An unconsented transfer violates security of
tenure. However this does not apply to a holder of
PRIMARILY CONFIDENTIAL a temporary appointment or to Career Executive
Denoting not only confidence in the aptitude Service Personnel whose status and salaries are
of the appointee for the duties of the office but based on their ranks and not on the positions to
primarily close intimacy which ensures freedom of which they are assigned
intercourse without embarrassment or freedom
from misgivings or betrayals on confidential REINSTATEMENT
matters of the state (“Proximity Rule” as Any person who has been permanently
enunciated in De los Santos v Mallare) appointed to a position in the career service and
- who has, through no delinquency or misconduct,
HIGHLY TECHNICAL been separated therefrom, may be reinstated to a
Requires possession of technical skill or position in the same level for which he is qualified.
training in a superior degree. ex. City Legal Officer
It is technically the issuance of a new
NOTE: It is the nature of the position which appointment and is discretionary on the part of the
determines whether a position is policy appointing power; it cannot be the subject of an
determining, primarily confidential or highly application for a writ of mandamus
technical
However, the bestowal of executive clemency
OTHER PERSONNEL ACTIONS
completely obliterates the adverse effects of the
administrative decision which found him guilty of
PROMOTION
dishonesty. This signifies that petitioner need no
Is a movement from one position to another
longer apply for reinstatement as he is restored
with increase in duties and responsibilities as
ipso facto upon the issuance of clemency
authorized by law and usually accompanied by an
increase in pay.
DETAIL
Is the movement of an employee from one
Next-in-rank Rule
agency to another without the issuance of an
The person next in rank shall be given
appointment, and shall be allowed only for a
preference in promotion when the position
limited period in the case of employees occupying
immediately above his is vacated. But the
professional, technical and scientific positions. It is
appointing authority still exercises discretion and is
temporary in nature.
not bound by this rule, although he is required to
specify the “special reason or reasons” for not
REASSIGNMENT
appointing the officer next-in-rank
An employee may be reassigned from one
organizational unit to another in the same agency,
Automatic Reversion Rule
provided that such reassignment shall not involve a
All appointments involved in a chain of
reduction in rank, status or salary. It is a
promotions must be submitted simultaneously for
management prerogative of the CSC and any dept
approval by the Commission. The disapproval of
or agency embraced in the Civil Service and does
the appointment of a person proposed to a higher
not constitute removal without cause.
position invalidates the promotion of those in the
lower positions and automatically restores them to
But like detail, the reassignment should have
their former positions. However, the affected
a definite date or duration. Otherwise, it is
persons are entitled to payment of salaries for
tantamount to a floating assignment, thus a
services actually rendered at a rate fixed in their
diminution in status or rank
promotional appointments (Sec. 13 of the Omnibus

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REEMPLOYMENT
Names of persons who have been appointed
IV. ASSUMPTION AND TERM OR
permanently to positions in the career service and TENURE OF OFFICE
who have been separated as a result of reduction
in force and/or reorganization, shall be entered in a
list from which selection from reemployment shall A. Qualification to Office
be made.
1. APPOINTMENT AND QUALIFICATION TO
OFFICE DISTINGUISHED
• 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)
Borromeo v. 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.
2. 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
• Justifiable reasons for delay in qualifying:
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.
» 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.
B. Oath of Office
1. DEFINITION
• 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.
• It is not indispensable. It is a mere incident
to the office and constitutes no part of the
office itself. 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.
• However, as per Nachura Only when the
public officer has satisfied the prerequisite of

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IV. Assumption and Term or Tenure of Office Law on Public Officers
taking his oath of office can his right his 3. EFFECT OF FAILURE TO GIVE BOND
position be considered plenary and complete. WITHIN THE PRESCRIBED PERIOD
Until then, the holdover officer is the rightful
occupant (Lecaroz v Sandiganbayan) • If not condition precedent, failure to give bond
merely constitutes a ground for forfeiture of
2. PERSONS AUTHORIZED TO ADMINISTER the office. It is not forfeiture of the office ipso
OATHS facto.
• If condition precedent, failure to give bond
• Notaries public; within the prescribed period renders the office
• Judges; vacant.
• Clerks of court;
• Secretary of House / Senate; D. Term and Tenure of Office
• Secretary of Exec. Departments;
• Bureau Directors;
• Register of Deeds; 1. TERM OF OFFICE AND TENURE OF OFFICE
• Provincial governors; DISTINGUISHED
• City mayors;
• Municipal mayors; Term of Office Tenure of Office
• Any other officer in the service of the
government of the Philippines whose De jure De facto
appointment is vested in the President
• Any other officer whose duties, as defined by Fixed and definite period Period during which the
law or regulation, require presentation to him of time during which the incumbent actually holds
of any statement under oath officer may claim to hold the office. It may be
the office as of right shorter than the term.
3. PERSONS OBLIGED TO ADMINISTER OATHS
IN ALL INSTANCES
2. POWER OF THE LEGISLATURE TO FIX AND
CHANGE THE TERM OF OFFICE
• Notaries public
• Municipal judges
• Where the term is fixed by the Constitution,
• Clerks of court
Congress has no power to alter the term.
» But such term of office can be shortened
4. TIME OF TAKING THE OATH OF OFFICE
or extended by the vote of the people
ratifying a constitutional amendment.
A public officer must take his oath of office
• Where the term is not fixed, Congress may fix
before entering upon the discharge of his duties.
the terms of officers other than those
provided for in the Constitution.
5. REQUALIFICATION
• Congress has the power to change the tenure
of officers holding offices created by it.
If a public officer is re-elected or re-
However, if the term is lengthened and made
appointed, he must take another oath and fulfill the
to apply to the incumbents, this could be
other condition precedents before assuming office.
tantamount to a legislative appointment which
The oath and other qualifications made prior to
is null and void.
assumption of his previous office will not be valid
for subsequent terms of office.
3. WHEN TERM OF OFFICE DEPENDENT UPON
"PLEASURE OF THE PRESIDENT"
C. Giving of Bonds
• Congress can legally and constitutionally
1. THE BOND make the tenure of certain officials dependent
upon the pleasure of the President. (Alba v.
• It is in the nature of an indemnity bond rather Evangelista)
than a penal or forfeiture bond. • Where the office is held at the pleasure of the
• It is an obligation binding the sureties to appointing power and such appointing power
make good the officer’s default. can exercise the power of removal at his mere
• It is required not for the benefit of the office discretion, the public officer may be removed
holder, but for the protection of the public without notice or hearing. (Alba v.
interest and is designed to indemnify those Evangelista)
suffering loss or injury by reason of
misconduct or neglect in office. 4. NO VESTED INTEREST IN TERM OF OFFICE
2. PERSONS REQUIRED TO GIVE BOND Public office is a privilege revocable by the

sovereignty at will. An incumbent cannot validly
• Accountable public officers or those to whom object to the alteration of his term since he has no
are entrusted the collection and custody of vested right in his office. (Greenshow v. US)
public money;
• Public ministerial officers whose actions may
affect the rights and interests of individuals.

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IV. Assumption and Term or Tenure of Office Law on Public Officers
5. TERM OF OFFICE NOT EXTENDED BY 4. IN CASE OF VACANCY AND BOTH THE

REASON OF WAR DURATION OF THE TERM OF OFFICE AND THE
TIME OF ITS COMMENCEMENT AND
There is no principle, law or doctrine by which TERMINATION IS FIXED
the term may be extended by reason of war.
(Nueno, et al. v. Angeles) Person elected to fill the vacancy shall hold the
same only for the unexpired portion of the term
E. Doctrine of Holdover
5. WHERE ONLY THE DURATION OF THE TERM
IS FIXED BUT NOT THE BEGINNING OR END
1. THE DOCTRINE OF THE TERM
A public officer whose term has expired or Person selected to fill the vacancy may serve
services have been terminated is allowed to the full term
continue holding his office until his successor is
appointed or chosen and had qualified. (Mechem) 6. WHERE AN OFFICER IS APPOINTED OR
OFFICE CREATED TO PERFORM A SINGLE ACT
2. PURPOSE OF THE HOLD-OVER RULE
Office terminates with the accomplishment of
Public interest. It is to prevent a hiatus in the the purposes for which it was called into being.
public service pending the time when a successor
may be chosen and inducted into office.
3. HOLDING-OVER RULES
• 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.
• Where the law is silent: Unless hold-over is
expressly or impliedly prohibited, incumbent
may hold-over. Law-making body favors hold-
over except when the law fixes a specific date
for the end of the term, therefore there is an
implied prohibition against hold over
• Where the Constitution limits the term of a
public officer and does not provide for hold-
over: Hold-over is not permitted.
Note: Art 237 of the Revised Penal Code

penalizes any public officer who shall continue
to exercise the duties and powers of his office
beyond the period provided by law.
• During this period of hold-over, the public

officer is a de jure officer
F. Commencement of Term of Office
1. WHERE THE TIME IS FIXED
The term will begin on the specified date.
2. WHERE NO TIME IS FIXED
The term will generally begin on the date of

the election or the appointment.
3. WHERE THE LAW FIXING THE TERM OF

OFFICE IS AMBIGUOUS
The one that fixes the term at the shortest

period should be followed

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V. Powers and Duties of Public Officers Law on Public Officers
V. POWERS AND DUTIES OF PUBLIC F. Classification of Powers

OFFICERS
Discretionary Ministerial
A. Source of Government Authority Definition Acts which require Acts which are
the exercise of performed in a
reason in given state of
• The people, the sovereignty
determining when, facts, in a
• The authority of public officers consists of where, and how to prescribed
those powers which are: exercise the power manner, in
» Expressly conferred upon him by the act obedience to the
appointing him mandate of legal
» Expressly annexed to the office by law authority, without
» Attached to the office by common law as regard to or the
incidents to it exercise of his
own judgment
upon the
B. Scope of Powers of a Public Officer
propriety or
impropriety of the
The duties of a public office includes all those which act done (Lamb
truly are within its scope under the Doctrine of v. Phipps)
Necessary Implication:
1. those which are essential to the Can be Generally, NO. Generally, YES.
accomplishment of the main purpose for which delegated?
the office was created; or Exception: When Exception:
the power to When the law
2. those which, although incidental or collateral,
substitute / expressly
are germane to and serve to promote the
delegate has been requires the act
accomplishment of the principal purpose (Lo given to be performed
Cham v. Ocampo). by the officer in
person and / or
Needless to say, powers expressly granted by prohibits such
law are within the scope of the public office. delegation
When is Only if the duty to In all cases.

C. Territorial Extent of Powers of Public
mandamus do something has
Officer proper? been delayed for an
unreasonable period
GENERAL RULE of time. In these
cases, mandamus
Where a public officer is authorized by law to will usually compel
perform the duties of his office at a particular the officer to make
place, action at a place not authorized by law is a decision, but will
ordinarily invalid. (Note: This rule is applicable to not dictate as to
what the decision
all public officers whose duties are essentially local
will or should be.
in nature, e.g. judges.)
Is public Generally not liable Liable if duty
EXCEPTIONS officer Exceptions: if exercised
liable? there is fraud or contrary to the
• Consuls; malice manner
• Police officers, who may arrest persons for prescribed by
crimes committed outside Philippine territory; law.
• Doctrine of hot pursuit
1. DISCRETIONARY POWER
D. Duration of Authority of Public
Officers Discretion, when applied to public
functionaries, means a power or right conferred
The duration of the authority of public officers upon them by law of acting officially in certain
is limited to that term during which he is, by law, circumstances, according to the dictates of their
invested with the rights and duties of the office. own judgment and conscience, uncontrolled by the
judgment or conscience of others. (Lamb v.
Phipps)
E. Construction of Grant of Powers
GENERAL RULE
Strict construction. Grant of powers will be Mandamus will not issue to control or review
construed as conferring only those powers which the exercise of discretion of a public officer where
are expressly imposed or necessarily implied. the law imposes on him the right or duty to
exercise judgment in reference to any matter in
which he is required to act (Aprueba v. Ganzon).

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EXCEPTION G. Duties of Public Officers

a. Where there is grave abuse of discretion,
manifest injustice or palpable excess of
authority equivalent to a denial of a settled 1. GENERAL (CONSTITUTIONAL) DUTIES OF
right to which the petitioner is entitled, and PUBLIC OFFICERS
where there is no other plain, speedy or
adequate remedy. (First Phil. Holdings Corp v a. To be accountable to the people; to serve them
Sandiganbayan) with utmost responsibility, integrity, loyalty and
b. Writ may issue to compel the exercise of efficiency’ to act with patriotism and justice,
discretion but not the discretion itself (BF and to lead modest lives (Art. XI, Sec. 6)
Homes v National Water Resources Council) b. To submit a declaration under oath of his
assets, liabilities and new worth upon
JUDGMENT VS. DISCRETION assumption of office and as often thereafter as
Judgment is a judicial function, the may be required by law (Art. XI, Sec 17)
determination of a question of law. There is only c. To owe the State and the Constitution
one way to be right. allegiance at all times (Art. XI, Sec. 18)
Discretion is the faculty conferred upon a court 2. SPECIFIC CASES

or other officer which he may decide the question
either way and still be right. The Solicitor General’s duty to represent the
government except in criminal cases or civil cases
2. MINISTERIAL POWER for damages arising from felony, is mandatory
(Gonzales v Chavez)
A purely ministerial act is one which an officer
or tribunal performs in a given state of facts, in a The government is not estopped from
prescribed manner, in obedience to the mandate of questioning the acts of its officials, more so if they
legal authority, without regard to or the exercise of are erroneous or irregular
his own judgment upon the propriety or
impropriety of the act done. A ministerial act is H. Time of Execution of Powers
one to which nothing is left to the discretion of the
person who must perform. It is a simple, definite 1. WHERE NOT INDICATED
duty arising under conditions admitted or proved to
exist and imposed by law. It is a precise act, Within a reasonable time
accurately marked out, enjoined upon particular
officers for a particular purpose. (Lamb v. Phipps) 2. WHERE INDICATED
Lamb v. Phipps • Merely directory

Auditors and comptrollers, as accounting • Exceptions:
officers, are generally regarded as quasi-judicial » When there is something in the statute
officers. They perform mere ministerial duties only which shows a different intent (Araphoe
in cases where the sum due is conclusively fixed by City v. Union Pac);
law or pursuant to law. Except in such cases, the » Where a disregard of the provisions of the
action of the accounting officers upon claims statute would injuriously affect a public
coming before them for settlement and certification interest or public right;
of balances found by them to be due, is not merely » When the provision is accompanied by
ministerial but judicial and discretionary. negative words importing that the acts
Mandamus will therefore not issue. shall not be done in any other manner or
time than that designated.
Torres v. Ribo
The powers of the Board of Canvassers are
quasi-judicial and therefore discretionary.
I. Ratification of Unauthorized Acts
Aprueba v. Ganzon 1. IF ACT WAS ABSOLUTELY VOID AT THE

Mandamus will not issue to control or review TIME IT WAS DONE
the exercise of discretion of a public officer where
the law imposes on him the right or duty to Cannot be ratified
exercise judgment in reference to any matter in
which he is required to act. 2. IF MERELY VOIDABLE
The privilege of operating a market stall under
license is not absolute but revocable under an Can be ratified and rendered valid
implied lease contract subject to the general
welfare clause. 3. GOVERNMENT NOT ESTOPPED BY THE
Mandamus never lies to enforce the UNAUTHORIZED OR ILLEGAL ACTS OF
performance of contractual obligations. OFFICERS
Miguel v. Zulueta As between an individual and his government,

Public officers may properly be compelled by the individual cannot plead the void act of an
mandamus to remove or rectify an unlawful act if official to shield him from the demand of the
to do so is within their official competence. government that he (the individual) fulfill an
obligation which he has contracted with the

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government, after the benefits accruing to him as a any kind from any foreign government (Art. IX-B,
result of that obligation have been received. The Sec. 8)
government can neither be estopped nor
prejudiced by the illegal acts of its servants. PROHIBITION AGAINST LOANS
(Government v. Galarosa)
No loan, guaranty, or other form of financial
Hilado v. Collector accommodation for any business purpose may be
A tax circular issued on a wrong construction granted, directly or indirectly, by any government-
of the law cannot give rise to a vested right that owned or controlled bank or financial institution to
can be invoked by a taxpayer. the ff:
a. President
J. Accountability and Responsibility of b. Vice President
c. Members of the Cabinet
Public Officers and Employees
d. The Congress
e. The Supreme Court
NORM OF PERFORMANCE OF DUTIES f. The Constitutional Commissions
g. The Ombudsman
Standards of personal conduct provided for in to any firm to which they have controlling interest
Sec. 4, RA 6713 during their tenure
• Commitment to public interest;
• Professionalism; LIMITATION ON LABORERS
• Justness and sincerity;
• Political neutrality; Shall not be assigned to perform clerical
• Responsiveness to the public; activities
• Nationalism and patriotism;
• Commitment to democracy; DETAIL OR ASSIGNMENT
• Simple living
No detail or reassignment shall be made within
K. Prohibitions three months before any election without the
approval of the Comelec
1. PARTISAN POLITICAL ACTIVITY
NEPOTISM
No officer or employee of the civil service shall
engage, directly or indirectly, in any electioneering All appointments made in favor of a relative
or partisan political campaign. (Sec. IX-B, Sec. (within the third civil degree of consanguinity or
5(3)) affinity) of the appointing authority or the chief of
• The Civil Service Law prohibits engaging the bureau or office, of the persons exercising
directly or indirectly in any partisan political immediate supervision over him are prohibited.
activity or taking part in any election except This covers all appointments and designations,
to vote; or use the official authority to coerce including subsequent personnel actions (ex.
in the political activity of any person or body promotion, reinstatement etc).
• Armed Force shall be insulated from partisan
politics. No member of the military shall
engage directly or indirectly in any partisan
political activity, except to vote
• However, this prohibition does NOT prevent
expression of views on current political
problems (Caltex v Bonifacio)
• This provision is diff from Sec. 79 BP 881
which makes it unlawful for any person or any
political party to engage in election campaign
or partisan political activity except during
campaign period. Election campaign or
partisan political activity refers to an act
designed to promote the election or defeat of
a candidate/s to public office. If done for the
purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office
by a political party, it shall not be considered
as election campaign or partisan political
activity.
2. ADDITIONAL OR DOUBLE COMPENSATION
No elective or appointive public officer or

employee shall receive additional, double, or
indirect compensation unless specifically authorized
by law, nor accept without the consent of
Congress, any present emolument, office or title of

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VI. Rights and Privileges of Public Officers Law on Public Officers
4. COMPENSATION NOT AN ELEMENT OF

VI. RIGHTS AND PRIVILEGES OF PUBLIC PUBLIC OFFICE
OFFICERS
Compensation is not indispensable to public
office. It is not part of the office but merely
A. Right to Office incident thereto. It is sometimes expressly
provided that certain officers shall receive no
It is the right to exercise the powers of the compensation, and a law creating an office without
office to the exclusion of others. any provision for compensation may carry with it
the implication that the services are to be rendered
gratuitously.
B. Right to Salary or Compensation
5. SALARY, WAGES, AND PER DIEMS DEFINED
1. BASIS AND DISTINGUISHED
The legal title to the office and the fact that • Salary: time-bound
the law attaches compensation to his office • Wages: service-bound
• Per Diem:allowance for days actually spent for
2. GENERAL RULES special duties
• A public officer is not entitled to compensation 6. SALARY OF PUBLIC OFFICER NOT SUBJECT
for services rendered under an TO ATTACHMENT
unconstitutional statute or provision thereof.
» Exception: If some other statute provides • The salary of a public officer or employee may
otherwise. not, by garnishment, attachment, or order of
• If no compensation is fixed by law, the public execution, be seized before being paid by him,
officer is assumed to have accepted the office and appropriated for the payment of his
to serve gratuitously. debts.
• After services have been rendered by a public • Money in the hands of public officers,
officer, the compensation thus earned cannot although it may be due government
be taken away by a subsequent law. employees, is not liable to the creditors of
However, he cannot recover salary for a these employees in the process of
period during which he performed no services. garnishment because the sovereign State
• One without legal title to office either by cannot be sued in its own courts except by
lawful appointment or election and express authorization by statute. (Director of
qualification is not entitled to recover salary or Commerce and Industry v. Concepcion)
compensation attached to the office.
• One who intrudes into or usurps a public office 7. FUTURE OR UNEARNED SALARIES CANNOT
has no right to the salary or emoluments BE ASSIGNED
attached to the office.
The salary or emoluments in public office are
3. SOME CONSTITUTIONAL PROVISIONS not considered the proper subject of barter and
AFFECTING SALARIES sale. (22 R.C.L. 541)
• No increase in the salaries of members of 8. AGREEMENTS AFFECTING COMPENSATION

Congress shall take effect until after the HELD VOID
expiration of the full term of the Members of
the Senate and the House of Representatives An agreement by a public officer respecting
who approved the increase (Art. VI, Sec 10) his compensation may rightfully be considered
• Salaries of the President and Vice President invalid as against public policy where it tends to
shall be fixed by law and shall not be pervert such compensation to a purpose other than
decreased during their tenure. No increase that for which it was intended, and to interfere with
shall take effect until after the expiration of the officer's free and unbiased judgment in relation
the term of the incumbent during which such to the duties of his office. (This is usually with
increase was approved (Art. VII, Sec. 6) reference to unperformed services and the salary
• The salary of members of the Judiciary shall or fees attached thereto.)
not be decreased during their continuance in
office (Art. VIII, Sec. 10) however, imposition 9. RIGHT TO RECOVER SALARY: DE JURE
of income taxes on salaries of judges does not OFFICER AND DE FACTO OFFICER
constitute unconstitutional diminution of
salaries (Nitafan v Tan) Where a duly proclaimed elective official who
• Additional, double or indirect compensation assumes office is subsequently ousted in an
are prohibited (Art. IX-B, Sec. 8) election protest, the prevailing party can no longer
• Standardization of compensation (Art. IX-B, recover the salary paid to the ousted officer. The
Sec. 5) RA 6758, the Salary Standardization ousted officer, who acted as de facto officer during
Law was passed in compliance with the his incumbency, is entitled to the compensation,
constitutional provision. emoluments and allowances which are provided for
the position (Rodriguez v. Tan).

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Exception: If there was fraud on the part of the appeal, he can recover back wages and other
de facto officer which would vitiate his election. monetary benefits.
• If the reinstatement was not the result of
A de jure officer recover from exoneration but an act of liberality by the
• the government: when the government Court of Appeals, not entitled to compensation
continues to pay the de facto officer even as he has not rendered any service
after the notice of adjudication of the protest • If he was given penalty of removal from
in favor of the de jure officer. office, but his penalty was commuted from
• a de facto officer: when notice of adjudication removal to mere suspension, or demotion, he
of the title to the de jure officer has been cannot recover because he was still found
given, and the de facto officer still continues guilty although the penalty was reduced.
to exercise duties and receive salaries and • If the suspension / removal from office is
emoluments. unjustified, he can recover.
• an intruder / usurper: at all instances.
C. Doctrine of Official Immunity
Monroy v. CA and del Rosario
Where a mayor filed a certificate of candidacy
for congressman then withdrew such certificate and 1. THE DOCTRINE
reassumed the position of mayor, thus preventing
the vice-mayor from discharging the duties of the A public officer enjoys qualified, not absolute
position of mayor, the mayor should reimburse to immunity. The protection generally applies only to
the vice-mayor, as the right rightful occupant of activities within the scope of office that are in good
the position of mayor, the salaried which he had faith and are not reckless, malicious or corrupt.
received.
2. PURPOSE OF THE DOCTRINE
Rodriguez v. Tan
Where a duly proclaimed elective official who • To indirectly protect the sovereign by
assumes office is subsequently ousted in an protecting the public official in the
election protest, the prevailing party can no longer performance of his governmental function
recover the salary paid to the ousted officer. The • As a result of the immunity extended, the
ousted officer, who acted as de facto officer during fearless and effective administration of the
his incumbency, is entitled to the compensation, policies of the government is promoted.
emoluments and allowances which are provided for
the position. 3. PRESIDENTIAL IMMUNITY FROM SUIT
Exception: If there was fraud on the part of the
de facto officer which would vitiate his election. • Enjoyed only during the tenure of the
President.
10. ADDITIONAL OR DOUBLE COMPENSATION • After his tenure, the Chief Executive cannot
PROHIBITED invoke immunity from suit for civil damages
arising out of acts done by him while he was
President (Estrada v Desierto, March 2, 2001)
Additional Double
There is only 1 position, There are 2 positions, and D. Right to Preference in Promotion
but the public officer is with additional functions
getting additional and emoluments for both But the right does not prevail over the
compensation. positions discretion of the appointing authority
• Pensions / gratuities are not considered as E. Right to Vacation and Sick Leave
additional, double, or indirect compensation.
(Sec. 8, Art. IX-B, 1987 Constitution)
However, in Maleniza v COA, it was held that
• By its very nature, a bonus partakes of an
elective officials are not entitled to accrued
additional remuneration or compensation.
vacation and sick leave credits because they have
(Peralta v. Auditor General)
no official hours of work
• An allowance for expenses incident to the
discharge of the duties of office is not an NOTE: However, this ruling may be considered
increase of salary, a prerequisite, nor an abandoned by the Local Gov’t Code which states in
emolument of office. (Peralta v. Auditor- Sec. 81 that elective local officials shall be entitled
General) to the same leave privileges as those enjoyed by
appointive local officials
11. Recovery of Salary During Period of
Suspension
F. Right to Maternity Leave
• If preventively suspended, he cannot recover
salary. G. Right to Retirement Pay
» But If he is subsequently exonerated, he
can. Retirement pay is liberally construed in favor of
• If he was given penalty of removal from the retiree (Proferata v Drilon)
office, but was completely exonerated upon

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The money value of the terminal leave of a

retiring government official shall computed at the
VII. Liability of Public Officers
retiree’s HIGHEST monthly salary (Belicena v Sec.
of Finance) A. General Rule
H. Others A public officer is not liable for injuries

sustained by another as a consequence of official
• Right to reimbursement for expenses incurred acts done within the scope of his official authority.
in the due performance of his duty. But a
public officer who uses a government vehicle B. Exception
is not entitled to, nor can he charge, a
transportation allowance (Domingo v COA,
1. AS OTHERWISE PROVIDED BY LAW
Oct. 7, 1998)
• Right to be indemnified against any liability
a. A public officer shall not be civilly liable for acts
which they may incur in the bona fide
done in the performance of his official duties,
discharge of their duties
unless there is a clear showing of bad faith,
• Right to longevity pay
malice or negligence (Sec. 38(1) Admin Code)
• Separation Pay to be given to Civil Service
b. No subordinate officer or employee shall be
employees who are separated from the
civilly liable for acts done by him in good faith
service not for cause but by reason of
in the performance of his duties. However he
reorganization (Sec. 16, Art XVIII)
shall be liable for willful or negligent acts done
• Right to additional allowances and benefits
by him which are contrary to law, morals, public
under the Local Government Code. LGUs may
policy and good customs even if he acted
provide additional allowances and benefits to
under orders or instructions of his superiors
national government officials stationed to
(Sec. 39, Admin Code)
their municipality or city.
c. However, under the Local Gov’t Code, Sec. 24,
Local governments and their officials are not
exempt from liability for death or injury to
persons or damage to property
2. STATUTORY LIABILITY
a. Art. 27, Civil Code: Any person suffering moral

or material loss because a public officer refuses
or neglects, without just cause, to perform his
official duty, may file an action for damages and
other relief against the public officer. This is
without prejudice to administrative disciplinary
action against the officer
b. Art. 32, Civil Code: Liability of public officer for
violation of constitutional rights of individuals
c. Art. 34, Civil Code: Liability of peace officers
who fail to respond or give assistance to
persons in danger of injury to life or property
[Note: The municipal corporation is subsidiarily
liable]
d. Sec. 38(2) Chapter 9, Book I Admin Code: Any
public officer who, without just cause, neglects
to perform a duty within a period fixed by law
or regulation, or within a reasonable period if
none is fixed, shall be liable for damages to the
private party concerned without prejudice to
such other
C. Threefold Liability Rule
The wrongful acts or omissions of a public

officer may give rise to civil, criminal and
administrative liability. An action can proceed
independently of the others. Dismissal or relief
from the criminal action/liability does not carry
with it relief from administrative liability

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VII. Liability of Public Officers Law on Public Officers
D. When a Public Officer is Subject to F. Liability of Superior Officer for Acts of

Civil Liability Subordinate
• The following must concur: GENERAL RULE

» injury to the individual must be established
» the public officer must have violated a Public officers are not civilly liable to 3rd persons
right or duty owed to the individual for the wrongful acts, omissions of duty, negligence
claiming damages or misfeasance of their subordinates, unless he has
» the officer must have maliciously and in actually authorized, by written order, the specific
bad faith acted outside the scope of his / act or misconduct complained of. (Sec 38(3), Chap
her authority (ultra vires) 9, Book I, Admin Code) Thus, those in the chain of
• Even mistakes committed by such public command should not be subject to suit on any
officer are not actionable as long as it is not theory of vicarious responsibility.
shown that they were motivated by malice or
gross negligence amounting to bad faith. EXCEPTIONS
Phil. Racing Club v. Bonifacio • Where, being charged with the duty of
In this case, the members of the Commission employing or retaining his subordinates, he
on Races declared a horse race cancelled due to a negligently or willfully employs or retains unfit
faulty start, but only after holders of the winning or improper persons;
tickets were able to claim their prizes. Because of • Where, being charged with the duty to see
such declaration, the Philippine Racing Club also that they are appointed or qualified in a
made a refund to the holders of the losing tickets. proper name, he negligently or willfully fails to
A suit was filed against the Commission, charging require them the due conformity to the
them with civil liability. prescribed regulations;
The Court found the Commissioners acted • Where he so carelessly or negligently
outside the scope of their authority as they only oversees, conducts or carries on the business
had the power to supervise, and not control, the of his officer as to furnish the opportunity for
conduct of races. However, they were absolved the default;
from liability because they acted in their official • Where he has directed, authorized or
capacity in the honest belief that they had such cooperated in the wrong;
power. • Where liability is expressly provided in the
The Court opined that in order that acts may statute.
be done within the scope of official authority, it is
not necessary that they be prescribed by statute, G. Liability of Subordinates
or that they be specifically directed or requested by
a superior officer. It is sufficient if they are done
by an officer in relation to matters committed by • A subordinate who acts in good faith under
law to his control or supervision, or that they have lawful orders of a superior officer is not
more or less connection to the department under personally liable in an action for damages.
whose authority the officer is acting. • He shall be civilly liable for willful or negligent
acts done by him which are contrary to law,
morals, public policy or good customs, even if
E. Kinds of Liability of Ministerial Officers he acted under orders of his superior.
1. NONFEASANCE H. Liability on Contracts

Neglect or refusal, without sufficient excuse, to
perform an act which it was the officer’s legal duty The public officer shall be personally liable on
to the individual to perform contracts he enters into if he acted without or
exceeded his authority.
2. MISFEASANCE
I. Liability for Tortuous Acts
Failure to use, in the performance of a duty
owing to an individual, that degree of care, skill • Public officers are not immune from suit for
and diligence their own tortuous conduct, even where such
conduct is committed in the course of their
3. MALFEASANCE employment.
• The public officer shall be personally liable if
The doing, either through ignorance, he goes beyond the scope of his authority, or
inattention or malice, of that which the officer has exceeds the powers conferred upon him by
no legal right to do at all law. This is because unauthorized acts of
government officials are not acts of State, and
It is the general rule that good faith and so the public officer may be held personally
absence of malice constitute no defense in an liable. (Shauf v CA; Wylie v Rarang)
action to hold a ministerial officer liable for
damages caused by nonfeasances or misfeasances.
However, good faith or honest mistake may be
shown in mitigation of damages.

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VII. Liability of Public Officers Law on Public Officers
J. Criminal Liability VIII. ADMINISTRATIVE DISCIPLINE

• The mere fact that an officer is acting in an
official capacity will not relieve him from
A. Over Presidential Appointees
criminal liability.
• The mere expiration of the term of office of 1. DISCIPLINARY AUTHORITY LIES WITH THE
the public official will not prevent the APPOINTING AUTHORITY
prosecution and punishment for a Sec. 47(1), Book V of EO 292 which provides
misdemeanor committed in office; nor does that “a complaint may be filed directly with the
the re-election of a public official extinguish CSC by a private citizen against a government
the criminal liability incurred by him during his official or employee in which case it may hear and
previous term of office. decide the case” must be read together with Sec.
48 which is entitled “Procedure in Administrative
Cases Against Non-Presidential Appointees.” The
very subject of Sec. 48 implicitly limits the scope of
the CSC’s jurisdiction in administrative cases to
non-presidential appointees and makes patent the
conclusion that the disciplinary authority over
presidential appointees lies elsewhere – the
President as appointing power himself (Olonan v.
CSC).
2. POWER TO APPOINT IMPLIES THE POWER

TO REMOVE; EXCEPTIONS
• Justices of the Supreme Court (by

impeachment)
• Members of Constitutional Commissions (by
impeachment)
• Ombudsman (by impeachment)
• Judges of inferior courts (disciplinary or
removal power vested in the Supreme Court)
Bonifacio Sans Maceda v. Vasquez

A judge who falsifies his Certificate of Service
is administratively liable to the SC for serious
misconduct and inefficiency under Sec. 1, Rule 140
of the Rules of Court and criminally liable to the
State under the Revised Penal Code for his
felonious act. Where a criminal complaint against a
judge or other employee arises from their
administrative duties, the Ombudsman must defer
action on said complaint and refer the same to the
SC for determination whether said judge or court
employee had acted within the scope of their
administrative duties. Thus, the Ombudsman
should first refer the matter to the SC for
determination of whether the certificates reflected
the true status of his pending case load, as the SC
had the necessary records to make such a
determination. Art. VIII, Sec. 6 of the Constitution
exclusively vests in the SC administrative
supervision over all courts and court personnel.
Dolalas v. Ombudsman-Mindanao
Citing the Maceda case, the SC power of
administrative supervision over judges and court
personnel is exclusive. Investigation by the
Ombudsman violates the specific constitutional
mandate of the SC and undermines the
independence of the judiciary.
B. Over Non-Presidential Appointees
1. GROUNDS
• Sec. 46(a), Book V of EO 292: “No officer or

employee in the Civil Service shall be

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VIII. Administrative Discipline Law on Public Officers
suspended or dismissed except for cause as case cannot be decided judiciously without
provided by law and after due process.” conducting such an investigation.
• The grounds constituting just cause are » The decision shall be rendered by the
enumerated in Sec. 46(b). disciplining authority within thirty days
from the termination of the investigation
2. JURISDICTION or submission of the report of the
• Original complaints may be filed: investigator, which report shall be
» directly with the CSC or submitted within fifteen days from the
» with the Secretaries and heads of agencies conclusion of the investigation.
and instrumentalities, provinces, cities and » Either party may avail himself of the
municipalities for officers and employees services of counsel and may require the
under their jurisdiction. attendance of witnesses and the
• Decisions of Secretaries and heads of agencies production of documentary evidence in his
and instrumentalities, provinces, cities and favor through the compulsory process of
municipalities shall be final in case the penalty subpoena or subpoena duces tecum.
imposed is suspension for not more than 30
days or fine in an amount not exceeding 30 4. APPEALS AND PETITION FOR
days’ salary. RECONSIDERATION
• In case the decision rendered by a bureau or • Within 15 days from receipt of the decision
office head is appealable to the Commission, unless a petition for reconsideration is
the same may be initially appealed to the seasonably filed, which petition shall be
department and finally to the Commission and decided within 15 days.
pending appeal, the same shall be executory • A petition for reconsideration shall be based
except when the penalty is removal, in which only on any of the following grounds:
case the same shall be executory only after » new evidence has been discovered which
confirmation by the Secretary concerned. materially affects the decision rendered;
» Decisions imposing the penalty of » the decision is not supported by the
suspension for more than 30 days or fine evidence on record; or
in an amount exceeding 30 days’ salary, » error of law or irregularities have been
demotion in rank or salary or transfer, committed which are prejudicial to the
removal or dismissal from office shall be interests of the respondent.
appealable to the CSC. • Only one petition for reconsideration shall be
allowed.
3. PROCEDURE IN ADMINISTRATIVE CASES
AGAINST NON-PRESIDENTIAL APPOINTEES Mendez v. Civil Service Commission
• Administrative proceedings may be The remedy of appeal in civil service cases
commenced against a subordinate officer or may be availed of only in a case where respondent
employee by the Secretary or head of office of is found guilty of the charges against him. But
equivalent rank, or head of local government, when the respondent is exonerated of said
or chiefs of agencies, or regional directors, or charges, as in this case, there is no occasion for
upon sworn written complaint of any other appeal. PD 807 shows that it does not contemplate
person. a review of decisions exonerating officers or
• For complaints filed by any other person employees from administrative charges. “Party
» Complainant shall submit sworn adversely affected by the decision” in Section 39 of
statements covering his testimony and the Civil Service Law refers to the government
those of his witnesses together with his employee against whom case was filed.
documentary evidence.
» If based on such papers a prima facie case 5. SUMMARY PROCEEDINGS
is found not to exist, the disciplining • No formal investigation is necessary and the
authority shall dismiss the case. respondent may be immediately removed or
Otherwise, he shall notify the respondent dismissed if any of the following
in writing of the charges against the latter. circumstances is present:
» Respondent shall be allowed not less than » When the charge is serious and the
seventy-two hours after receipt of the evidence if guilt is strong;
complaint to answer the charges in writing » When the respondent is a recidivist or has
under oath, together with supporting been repeatedly charged and there is
sworn statements and documents. He shall reasonable ground to believe that he is
also indicate whether or not he elects a guilty of the present charge; and
formal investigation if his answer is not » When the respondent is notoriously
considered satisfactory. undesirable.
» If the answer is found satisfactory, the
disciplining authority shall dismiss the 6. PREVENTIVE SUSPENSION
case. • The proper disciplining authority may
» Although a respondent does not request a preventively suspend any subordinate officer
formal investigation, one shall or employee under his authority pending an
nevertheless be conducted when from the investigation, if the charge against such
allegations of the complaint and the officer or employee involves:
answer of the respondent, including the » dishonesty; or
supporting documents, the merits of the » oppression or grave misconduct; or
» neglect in the performance of duty; or

25 of 35
» if there are reasons to believe that the by any citizen upon a resolution of
respondent is guilty of charges which endorsement by any member thereof.
would warrant his removal from the » Complaint shall be included in the Order of
service. Business within 10 sessions days and
• Maximum period for preventive suspension referred to the proper Committee within 3
» 90 days for national officials session days thereafter.
» 60 days for local appointive and elective » The Committee, after hearing, and by a
officials, except if the case is filed in the majority vote of all its members, shall
Ombudsman, the latter may impose a submit its report to the House within 60
preventive suspension for a period of 6 session days from such referral, together
months. with the corresponding resolutions. The
• When the administrative case against the resolution shall be calendared for
officer or employee under preventive consideration of the House within 10
suspension is not finally decided by the session days from receipt thereof.
disciplining authority within the period of » A vote of at least 1/3 of all the members of
ninety (90) days after the date of suspension the House shall be necessary either to
of the respondent who is not a presidential affirm a favorable resolution with the
appointee, the respondent shall be Articles of Impeachment of the Committee,
automatically reinstated in the service. or override its contrary resolution.
» In case the verified complaint or resolution
7. PENALTY of impeachment is filed by at least 1/3 of
all the members of the House, the same
• In meting out punishment, the same penalties shall constitute the Articles of
shall be imposed for similar offenses and only Impeachment, and trial by the Senate
one penalty shall be imposed in each case. shall forthwith proceed.
• The disciplining authority may impose the » The Senate shall have the sole power to
penalty of removal from the service, demotion try and decide all cases of impeachment.
in rank, suspension for not more than one When sitting for that purpose, the
year without pay, fine in an amount not Senators shall be on oath or affirmation.
exceeding six months’ salary, or reprimand. When the President of the Philippines is on
(Sec. 46(d), Book V, EO 292) trial, the Chief Justice of the Supreme
• If the respondent is found guilty of two or Court shall preside, but shall not vote. No
more charges or counts, the penalty imposed person shall be convicted without the
should be that corresponding to the most concurrence of 2/3 of all the members of
serious charge or count and the test may be the Senate.
considered as aggravating circumstances. • Judgment in cases of impeachment shall not
(Sec. 17 of the Implementing Civil Service extend further than removal from office and
Rules and Regulations) disqualification to hold office under the
• A reprimand whether given by the Civil Republic of the Philippines, but the party
Service Commission or the head of convicted shall nevertheless be liable and
department or agency shall be considered a subject to prosecution, trial and punishment
penalty. However, a warning or an admonition according to law.
shall not be considered a penalty. (Sec. 15 of • No impeachment proceedings shall be initiated
the Implementing Civil Service Rules and against the same official more than once
Regulations) within a period of one year.
» Reprimand is a penalty (Tobias v. Veloso).
• A warning is an act or fact of putting one on 2. LOCAL ELECTIVE OFFICIALS (SEC. 60-68,
his guard; an admonition is a gentle or LOCAL GOVERNMENT CODE)
friendly reproof or a mild rebuke; while a • Grounds for Disciplinary Actions
reprimand is a formal and public censure or a » Disloyalty to the Republic of the Philippines
severe reproof. » Culpable violation of the Constitution
» Dishonesty, oppression, misconduct in
7. REMOVAL OF ADMINISTRATIVE PENALTIES office, gross negligence, or dereliction of
OR DISABILITIES duty
• In meritorious cases and upon » Commission of any offense involving moral
recommendation of the CSC, the President turpitude or an offense punishable by at
may commute or remove administrative least prision mayor
penalties or disabilities imposed upon officers » Abuse of authority
or employees in disciplinary cases, subject to » Unauthorized absence for 15 consecutive
such terms and conditions as he may impose days, except in the case of members of the
in the interest of the service. sangguniang panlalawigan, sangguniang
panlungsod, sangguniang bayan, and
C. Over Elective Officials sangguniang barangay
» Application for, or acquisition of, foreign
citizenship or residence or the status of an
1. IMPEACHMENT immigrant of another country
» Such other grounds as may be provided in
PROCEDURE this Code and other laws.
• A verified complaint may be filed by any
member of the House of Representatives or

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Elective Official against Where to File IX. TERMINATION OF OFFICIAL

whom Administrative Complaint
Complaint is Filed RELATIONS
Provincial or city official Office of the President
A. Modes of Termination
Municipal official Sangguniang
Panlalawigan
1. Expiration of Term or Tenure of Office
Barangay official Sangguniang a. End of a fixed term
Panlungsod or b. End of Pleasure where one holds office at
Sangguniang Bayan pleasure of appointing authority
c. Loss of confidence in primarily confidential
PROCEDURE employment
1. Verified Complaint 2. Reaching the age limit; Retirement
2. Answer: Within 7 days after the administrative 3. Bona fide abolition of office
complaint is filed, the Office of the President or 4. Abandonment of office
the sanggunian concerned, as the case may be, 5. Acceptance of an incompatible office
shall require the respondent to submit his 6. Resignation
verified answer within 15 days from receipt 7. Removal for cause
thereof 8. Temporary appointments’ termination
3. Investigation: Commenced within 10 days after 9. Recall
receipt of such answer of the respondent. It 10. Impeachment
shall be terminated within 90 days from the 11. Prescription of right to office
start thereof. No investigation shall be held 12. Death
within 90 days immediately prior to any local 13. Conviction of crime where disqualification is an
election, and no preventive suspension shall be accessory penalty
imposed within the said period. 14. Filing of certificate of candidacy
4. Decision: Within 30 days after the end of the 15. Performance of act or accomplishment of
investigation, the Office of the President or the purpose for which the office was created
sanggunian concerned shall render a decision in 16. Failure to assume elective office within six
writing stating clearly and distinctly the facts months from proclamation
and the reasons for such decision.
B. Expiration of Term or Tenure of Office
PREVENTIVE SUSPENSION
• May be imposed at any time after the issues 1. END OF FIXED TERM
are joined, when the evidence of guilt is
strong, and given the gravity of the offense, Upon the expiration of the officer’s term,
there is great probability that the continuance unless he is authorized by law to hold over, his
in office of the respondent could influence the rights, duties and authority as a public officer must
witnesses or pose a threat to the safety and be ipso facto terminated.
integrity of the records and other evidence.
• Upon expiration of the preventive suspension, 2. END OF PLEASURE WHERE ONE HOLDS
the suspended elective official shall be OFFICE AT THE PLEASURE OF THE
deemed reinstated in office without prejudice APPOINTING AUTHORITY
to the continuation of the proceedings against
him, which shall be terminated within 120 President can validly terminate tenure of Vice
days from the time he was formally notified of Mayor of Roxas City as the office was created at
the case against him. the pleasure of the President. What is involved
• No preventive suspension shall be imposed here is not the question of removal, or whether
within 90 days immediately prior to any local legal cause should precede or not that of removal.
election. If preventive suspension has been What is involved here is the creation of an office
imposed prior to the 90-day period and the tenure of such office, which has been made
immediately preceding local election, it shall expressly dependent upon the pleasure of the
be deemed automatically lifted upon the start President (Alba v. Evangelista).
of the aforesaid period.
• Administrative Appeal: Within 30 days from Fernandez v Ledesma
receipt of the decision, appeal to: The Charter of Basilan City provides that the
» sanggunian panlalawigan, in case of President shall appoint and may remove at his
decisions of the sangguniang panlungsod discretion any of the city’s officers, including its
of component cities; and sangguniang Chief of Police, with the exception of the municipal
bayan judge, who may be removed only according to law.
» Office of the President, in the case of The legislative intent is to make continuance in
decisions of the sangguniang panlalawigan, office dependent upon the pleasure of the
the sangguniang panlungsod of highly President. Congress has the power to vest such
urbanized cities, the sangguniang power of appointment. Further, “A public office is
panglungsod of independent component the right for a given period, either fixed by law or
cities. enduring at the pleasure of the creating power.”
Alba v. Evangelista states that the replacement is
not removal, but an expiration of tenure, which is

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IX. Termination of Official Relations Law on Public Officers
an ordinary mode of terminating official relations. • Termination by virtue of the abolition of the
What is involved is not removal, or whether legal office is to be distinguished from removal.
cause should precede such removal, but the There can be no tenure to a non-existent
creation of an office and the tenure of such office, office. After the abolition, there is in law no
which has been made expressly dependent upon occupant. In case of removal, there is an
the pleasure of the President. office with an occupant who would thereby
lose his position. It is in that sense that from
3. LOSS OF CONFIDENCE IN PRIMARILY the standpoint of strict law, the question of
CONFIDENTIAL EMPLOYMENT any impairment of security of tenure when
there is an abolition of office does not arise.
Official and employees holding primarily The right itself disappeared with the abolished
confidential positions continue only for so long as office as an accessory following the principal.
confidence in them endures. The termination of
their official relation can be justified on the ground Busacay v. Buenaventura
of loss of confidence because in that case, their Busacay was laid off as toll collector when the
cessation from office involves no removal but bridge was destroyed. However, the bridge was
merely the expiration of the term of office later reconstructed and opened to the public with a
(Hernandez v. Villegas). new collector being appointed. Busacay was
ordered reinstated by the SC. To consider an office
C. Reaching the Age Limit; Retirement abolished, there must have been an intention to do
away with it wholly and permanently. In the case
at bar, there was never any thought of not
• Conditions for entitlement to retirement rebuilding the bridge. The collapse of the bridge did
benefits (R.A. No. 8291) not work to destroy but only to suspend the
» he has rendered at least fifteen (15) years position of toll collector thereon, and upon its
of service; reconstruction and re-opening, the collector’s right
» he is at least sixty (60) years of age at the to the position was similarly and automatically
time of retirement; and restored.
» he is not receiving a monthly pension
benefit from permanent total disability. Manalang v. Quitoriano
• Compulsory Retirement The National Employment Service was
» Unless the service is extended by established by R.A. No. 761 in lieu of the
appropriate authorities, retirement shall be Placement Bureau. Quitoriano was appointed as
compulsory for an employee at least 65 NES Commissioner in spite of the recommendation
years of age with at least 15 years of of the Labor secretary to appoint Manalang who
service; Provided that if he has less than was the incumbent Director of the Placement
15 years of service, he may be allowed to Bureau. SC held that appoint of Quitoriano was
continue in the service in accordance with valid. A removal implies that the office still exists.
existing civil service rules and regulations. R.A. No. 761, creating NES, expressly abolished
NOTE: different in Nachura Reviewer: the Placement Bureau and, by implication, the
Compulsory Retirement Age is 70 yrs for the office of the Director of the Placement Bureau. Had
members of the Judiciary and 65 yrs for other Congress intended the NES to be a mere
government officers and employees (Under enlargement of the Placement Bureau, it would
New GSIS Charter) have directed the retention, not the transfer, of
qualified personnel to the NES. Manalang has never
Beronilla v GSIS been NES Commissioner and thus could not have
The compulsory retirement of government been removed therefrom.
officials and employees upon reaching the age of
65 years is founded on public policy which aims by • Abolition Must Be in Good Faith
it to maintain efficiency in the government service » The abolition of an office does not amount
and, at the same time, give to the retiring public to an illegal removal or separation of its
servants the opportunity to enjoy during the incumbent is the principle that, in order to
remainder of their lives the recompenses for their be valid, the abolition must be made in
long service and devotion to the government, in good faith, not for personal or political
the form of a comparatively easier life, freed from reasons, and not implemented in violation
the rigors, discipline and the exacting demands of law.
that the nature of their work and their relations
with their superiors as well as the public would Briones v. Osmeña
impose on them. Briones and Rosagaran were employees in the
Office of the City Mayor since 1937 and 1940,
respectively, In 1956, the City created 35 new
D. Bona Fide Abolition of Office
positions and abolished 32, of which the positions
of Briones and Rosagaran were included.
• As a general rule, absent some Constitutional Consequently, the two were terminated. SC held
prohibition, Congress may abolish any office it that the termination was not valid. While abolition
creates without infringing upon the rights of does not imply removal of the incumbent, this rule
the officer or employee affected. is true only where the abolition is made in good
• To consider an office abolished, there must faith. In other words, the right to abolish cannot be
have been an intention to do away with it used to discharge employees in violation of the
wholly and permanently.

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Civil Service law nor can it be exercised for • The officer should manifest a clear intention to
personal or political reasons. abandon the office and its duties.
• Abandonment by reason of acceptance of
Facundo v. Pabalan another office, in order to be effective and
There is no law which expressly authorizes a binding, must spring from and be
municipal council to abolish the positions it has accompanied by deliberation and freedom of
created. However, the rule is well-settled that the choice, either to keep the old office or
power to create an office includes the power to renounce it for another.
abolish it, unless there are constitutional or • Temporary absence is not sufficient.
statutory rules providing otherwise. But the office
must be abolished in good faith. Summers v. Ozaeta
Summers, a cadastral judge, assumed office
Cruz v. Primicias as CFI judge due to an ad interim appointment.
As well settled as the rule that the abolition of However, the ad interim appointment was
an office does not amount to an illegal removal of disapproved and Summers now seeks to be
its incumbent is the principle that, in order to be reappointed as cadastral judge. SC held that
valid, the abolition must be made in good faith. Summers’ voluntary acceptance of the position of
Where the abolition is made in bad faith, for CFI judge amounted to a waiver of his right to hold
political or personal reasons, or in order to the position of cadastral judge during the term
circumvent the constitutional security of tenure of fixed and guaranteed by the Constitution. He
civil service employees, it is null and void. In the accepted and qualified for the position of judge-at-
case at bar, while 22 positions were abolished, 28 large by taking the oath of office of judge-at-large,
new positions with higher salaries were and not merely of an “acting” judge-at-large. The
simultaneously created. No charge of inefficiency is situation is one wherein he cannot legally hold two
lodged against petitioners. In truth and in fact, offices of similar category at the same time.
what respondents sought to achieve was to
supplant civil service eligibles with men of their G. Acceptance of an Incompatible Office
choice, whose tenure would be totally dependent
upon their pleasure and discretion.
• He who, while occupying one office, accepts
another office incompatible with the first, ipso
E. Reorganization facto absolutely vacates the first office. That
the second office is inferior to the first does
• This occurs where there is an alteration of the not affect the rule. And even though the title
existing structure of government offices or to the second office fails as where election is
units therein, including the lines of control, void, the rule is still the same, nor can the
authority and responsibility between them to officer then regain the possession of his
promote greater efficiency, to remove former office to which another has been
redundancy of functions, or to affect economy appointed or elected.
and make it more responsive to the needs of • If the law or Constitution as an expression of
their public clientele. It may result in the loss public policy forbids the acceptance by a
of one’s position through removal or abolition public officer of any other office other than
of office. that which he holds, it is not a case of
• Reorganization of the government may be incompatibility but of legal prohibition.
required by law independently of specific • Incompatibility of offices exists where:
constitutional authorization. » There is conflict in such duties and
• But in order to be valid, it must also be done functions so that the performance of the
in good faith. duties of one interferes with the
» A reorganization is carried out in good faith performance of the duties of another, as to
if it is for the purpose of economy or to render it improper for considerations of
make the bureaucracy more efficient. Good public policy for one person to retain both.
faith, as a component of reorganization » One is subordinate to the other and is
under a constitutional regime, is judged subject in some degree to its supervisory
from the facts of each case. In the case at powers for in such situation where both
bar, there was lack of good faith (Dario v. are held by the same person, the design
Mison). that one acts as a check on the other
would be frustrated.
F. Abandonment of Office » The Constitution or the law itself, for
reasons of public policy, declares the
incompatibility even though there is no
• A public office may become vacant ipso facto inconsistency in the nature and functions
by abandonment and non-user. When an of the offices.
office is once abandoned, the former • Exceptions to the Rule on Holding of
incumbent cannot legally repossess it even by Incompatible Offices
forcible re-occupancy. » Where the officer cannot vacate the first
• Abandonment must be total and absolute, and office by his own act, upon the principle
must be under such circumstances as clearly that he will not be permitted to thus do
to indicate an absolute relinquishment indirectly what he could not do directly, as
thereof. where the law requires the approval of the

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provincial board before a municipal official non-presidential appointees are made

can resign. applicable.
» First office is held under a different • For civil service officials and employees, see
government from that which conferred the Sec. 46, Book V, E.O. No. 292 which provides
second. for at least 30 grounds for disciplinary action.
» Officer is expressly authorized by law to • For local elective officials, Sec. 60 of the Local
accept another office. Government Code provides for the grounds
» Second office is temporary. where an elective local official may be
disciplined, suspended or removed from
H. Resignation office.
» Misconduct need not be “in office” in case
of appointive officers.
• A resignation of a public officer need not be in » Misconduct must be “in office” in case of
any particular form, unless some form is elective officers.
prescribed by statute. Ordinarily, it may either » Misconduct committed during a prior term,
be in writing or by parol. not a ground for dismissal
• There must be an intention to relinquish a
part of the term, accompanied by the act of Ochate v. Ty Deling
relinquishment. The SC held that the facts alleged in the
• The right of a public officer to resign is well administrative charge, as substantiated by the
recognized, even where it is provided than an affidavits of the complainants, do not justify the
officer may hold over until election and administrative proceedings instituted against the
qualification of a successor. petitioner and his suspension by the governor. The
• Conflicting Views: alleged libel imputed to the mayor was not such
» According to some authorities, no misconduct even if the term “misconduct in office”
acceptance is necessary to render a be taken in its broadest sense. The radio broadcast
resignation effective, especially when the in which the objectionable utterances were made
resignation is unconditional and purports had nothing to do with his official functions and
to take effect immediately. duties as a mayor.
» Many other cases take the view that to be
effective, the resignation must be accepted 3. TRANSFER FROM ONE POSITION TO
by competent authority. Without ANOTHER MAY OR MAY NOT CONSTITUTE
acceptance, the resignation is nothing and VIOLATION OF SECURITY OF TENURE
the officer remains in office. (63 Am Jur
2d., sec. 163) • A transfer is a movement from one position to
Prof. Barlongay: Two elements are another which is of equivalent rank, level, or
necessary to constitute an effective salary without break in service involving the
acceptance: (1) intention to relinquish issuance of an appointment.
office coupled with actual relinquishment; • It shall not be considered disciplinary when
and (2) acceptance of resignation. made in the interest of public service, in which
case, the employee concerned shall be
• A “courtesy resignation” cannot properly be informed of the reasons therefore. If the
interpreted as resignation in a legal sense. It employee believes that there is no justification
just manifests the submission of a person to for the transfer, he may appeal to the SC.
the will of the political authority. • The transfer may be from one department or
agency to another or from one organizational
Prof. Barlongay: Courtesy resignation is not unit to another in the same department or
allowed in (1) career positions and (2) non- agency; Provided, however that any
career positions with security of tenure (i.e. movement from the non-career service to the
local elective officials). career service shall not be considered a
transfer.
I. Removal for Cause • The intended transfer to Tarlac, if carried out
without the approval of Lacson, would be
1. PROTECTION FROM REMOVAL WITHOUT equivalent to a removal from his office in
CAUSE Negros Oriental. The reason is that a fiscal is
appointed for each province and Lacson could
No officer or employee of the civil service shall not legally hold and occupy the two posts of
be removed or suspended except for cause fiscal of Tarlac and Negros Oriental
provided by law (Sec. 2(3), Art. IX, 1987 simultaneously. Therefore, to be a fiscal of
Constitution). Tarlac must mean his removal from office in
Negros. Since the transfer is considered a
2. GROUNDS FOR REMOVAL FROM OFFICE removal, such should be for cause in order for
the other person to legally occupy the office in
• For Presidential appointees, Prof. Barlongay Negros. There was no cause for Lacson’s
states that there is no specific law providing removal. He therefore remains as fiscal of
for the grounds for their removal. Negros (Lacson v. Romero).
Determination of grounds is just a matter of
practice and by analogy, the grounds used for

30 of 35
J. Termination of Temporary President, shall be considered ipso facto

resigned from office by the mere filing of a
Appointment
certificate of candidacy.
» The first proviso of Sec. 11 of R.A. 8436
• The appointment being temporary in which states that "Any elective official,
character, the same can be terminated at running for any officer other than one
pleasure by the appointing power (Quitiquit v. which he is holding in a permanent
Villacorta). capacity, except for President and Vice-
• One holding an office in a temporary capacity President, shall be considered ipso facto
may be ousted at anytime with or without resigned upon the start of the campaign
cause (Ferrer v. de Leon). period."
• The controlling factor in determining the
character of the appointment is the
appointment itself. Even if a position is N. Performance of Act or
permanent, if the appointment is made Accomplishment of Purpose for which
temporary, the appointment is determinative. the Office was Created
What is determinative is not the nature of the
office (permanent or temporary), but the Performance of act or accomplishment of
nature of the appointment (Hojilla v. Marino). purpose renders office functus officio.
• One appointed to a position of another who
was illegally suspended or dismissed, holds it
O. Failure to Assume Office
in temporary capacity and must yield to the
latter. The reason for this is that there was no
valid termination. Sec. 11, BP 881 provides: “The office of any
official elected who fails or refuses to take his oath
of office within six months from his proclamation
K. Recall shall be considered vacant , unless said failure is
for cause or causes beyond his control.”
• The Congress shall enact a local government
code which shall provide for a more
responsive and accountable local government
structure instituted through a system of
decentralization with effective mechanisms of
recall, initiative and referendum (Sec. 3, Art.
X, 1987 Constitution)
• The procedure for recall is provided in
Sections 69-75 of the Local Government
Code.
L. Prescription of Right to Office
• Any person claiming a right to a position in

the civil service is required to file his petition
for reinstatement within one year, otherwise
he is deemed to have abandoned his office.
Reason is public policy and convenience,
stability in the public service (Unabia v. City
Mayor).
• Prof. Barlongay: The one-year period is the
prescriptive period to claim public office
(whether through quo warranto or otherwise).
The one-year period presupposes judicial
action, not administrative action.
M. Filing of Certificate of Candidacy
• Sec. 66 of the Omnibus Election Code: Any

person holding appointive public offices or
positions, including active AFP members, is
considered ipso facto resigned from office by
the mere filing of certificate of candidacy.
• The following provisions have been REPEALED
by Sec. 14 of R.A. 9006 (Fair Election Act of
2001):
» Sec. 67 of B.P. 881 which states that any
elective official, whether national or local,
running for any office OTHER than one
which he is holding in a permanent
capacity, except for President and Vice

31 of 35
special thanks to:
Office of the College Secretary
UP College of Law
UP Law Center
UP College of Law Library
UP Law BarOps 2006
Review Committee
I Peter Dizon . Jam Jacob . Randy Remonte
Subject Committee [Election Law]

I Bodee Tandog [head] . Anya Palileo
Armi Bayot [head] . Chino Baybay [deputy]

Information Management Committee
I Theresa Roldan . Lem Arenas . Mitch Lim
Jen Lee . Keisie Marfil

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law On PUBLIC OFFICERS

BarOps Head I PY Caunan

Acads Head I Beth Liceralde

Subject Head I Bodee Tandog

I. PUBLIC OFFICE AND OFFICERS .............................................................................................................1

II. ELIGIBILITY AND QUALIFICATIONS ......................................................................................................6

III. FORMATION OF OFFICIAL RELATION...................................................................................................9

IV. ASSUMPTION AND TERM OR TENURE OF OFFICE ...............................................................................14

V. POWERS AND DUTIES OF PUBLIC OFFICERS .......................................................................................17

VI. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS .................................................................................20

VII. LIABILITY OF PUBLIC OFFICERS ......................................................................................................22

VIII. ADMINISTRATIVE DISCIPLINE.........................................................................................................24

IX. TERMINATION OF OFFICIAL RELATIONS............................................................................................27

I. PUBLIC OFFICE AND OFFICERS Public Office Public Contract

Creation Incident of sovereignty Originates from

UP LAW BAROPS 2007 ONE UP LAW

Segovia v. Noel therein. Therefore, an executive order depriving

8. PUBLIC OFFICE IS NOT PROPERTY SINGLE-HEAD

Cornejo v. Gabriel GENERAL RULE

MODES OF CREATION OF PUBLIC OFFICE Exception

UP LAW BAROPS 2007 ONE UP LAW

B. Public Officer • When a person who, having been elected by

UP LAW BAROPS 2007 ONE UP LAW

2. DE FACTO OFFICER DEFINED How ousted Cannot be Only by a direct

UP LAW BAROPS 2007 ONE UP LAW

4. OFFICE CREATED UNDER AN The rightful incumbent of a public office may

The liability of a de facto officer is generally

UP LAW BAROPS 2007 ONE UP LAW

regular Supreme Court Justice. (Vargas v.

UP LAW BAROPS 2007 ONE UP LAW

Frivaldo v. COMELEC • Natural-born citizen

The right to public office should be strictly • Natural-born citizen

• Natural-born citizen Cayetano v. Monsod

• Natural-born citizen Aquino v. COMELEC

UP LAW BAROPS 2007 ONE UP LAW

UP LAW BAROPS 2007 ONE UP LAW

8. Relationship with the appointing power

2. NATURE OF APPOINTING POWER

• The power to appoint is intrinsically an

UP LAW BAROPS 2007 ONE UP LAW

UP LAW BAROPS 2007 ONE UP LAW

3. PROPERTY QUALIFICATIONS Appointment is generally a political question

UP LAW BAROPS 2007 ONE UP LAW

Where the palpable excess of authority or H. Jurisdiction of the Civil Service

F. Effectivity of Appointment Embraces all branches, subdivisions,

UP LAW BAROPS 2007 ONE UP LAW

NON-CAREER SERVICE Rules Implementing EO 292) For this rule to apply,

UP LAW BAROPS 2007 ONE UP LAW

• Appointment is the act of being designated to

2. EFFECT OF FAILURE TO QUALIFY

• Failure to qualify is deemed evidence of

• An oath is an outward pledge whereby one

UP LAW BAROPS 2007 ONE UP LAW

2. PERSONS REQUIRED TO GIVE BOND Public office is a privilege revocable by the

UP LAW BAROPS 2007 ONE UP LAW

5. TERM OF OFFICE NOT EXTENDED BY 4. IN CASE OF VACANCY AND BOTH THE

• Where the law provides for it: The office does

Note: Art 237 of the Revised Penal Code

• During this period of hold-over, the public