ADMINISTRATIVE LAW ( ADMINISTRATIVE AGENCIES ) PART I.

INTRODUCTION ADMINISTRATIVE LAW - that branch of public law dealing with the doctrines and pr inciples governing the powers and procedures of administrative agencies includin g especially judicial review of administrative action. An ADMINISTRATIVE AGENCY is any governmental authority other than a court or leg islative body performing rule-making or adjudicatory functions. Powers of an administrative agency a) rule-making b) adjudicatory c) licensing (permits) d) price/rate-fixing e) implementing/executory Factors which gave rise to admin. agencies 1) growing complexity of modern life - as society gets more complex, there are m ore things to regulate 2) the multiplication of the subject of governmental regulation 3) the increased difficulty of administering the law Constitutional status of admin. agencies * the admin. agency does not strictly belong to one branch. * The agency does not constitute a 4th branch of government because the constitu tional scheme (separation of powers) only allows 3 branches of government. Role of Admin. Agencies Residual Powers * the powers given to the three branches spill over because of the 3 shortfalls. There is a need for a body which would act as a catching mechanism, otherwise, the three branches would collapse. The AA supports the trichotomy of powers. How do these agencies come into being? a) by statute b) by the constitution c) by Executive orders - usually fact-finding agencies CREATED 1. can BY CREATEDbe modified by congress BY CONGRESSTHE CONSTITUTION 1. perform more sensitive functions 2. may be altered or abolished 2. underscoring the independence of the agency thus, insulate it from political pressure * The Chief Executive exercises CONTROL over agencies and offices which perform rule-making / adjudicatory functions. * If the agency is created by Congress - consider the law that created it. If t he law is silent as to the control which the President may exercise, the Preside nt can only SUPERVISE, i.e., to see to it that the laws are faithfully executed. The doctrine of separation of powers: * To prevent absolutism. * Under the doctrine of separation of powers, The Supreme Court cannot assume th e administrative function of supervisory control over executive officials. * In Noblejas v. Teehankee (1963), the Supreme Court struck down Noblejas claim t hat the Commissioner of Land Registration, being entitled to the same compensati

on, emoluments & privileges as a CFI judge, can only be investigated and suspend ed in the same manner, and not by the Secretary of Justice.) * Members of the Supreme Court cannot sit as a board of arbitrators. (Manila El ectric Co. v. Pasay Transpo, 1932) * A judge cannot become a member of a provincial committee on justice which perf orms administrative functions. (In Re: Rodolfo U. Manzano (1988) PART II. CONTROL OF ADMINISTRATIVE ACTION CONTROL : the power to change, modify, alter decisions of subordinates SUPERVISION : power to oversee A. Legislative Control Ways of exercising control by Congress a) Abolition * isn t effective because the admin. agencies are needed. b) Appropriation * isn t effective since appropriations are always given. If no appropriation is g iven, the public would suffer. c) Investigatory * effective only as an aid in legislation and cannot serve the need for constant regulation d) Prescription of legislative standards * ineffective because the standards should be flexible and those who make the st andards lack the expertise. The standards must be EFFECTIVE, SUFFICIENT. * Most of the time, Congress is not definite because of (a) varying conditions a nd (b) differences in the need for regulation e) Prescription of minimum procedural requirements * There should be a shift to Administrative standards which allows the agencies to come up with the standards themselves. * This can be effected in these ways : 1) modify the doctrine 2) procedural due process * Congress can prescribe minimum procedural requirements which have a general ap plicability to all agencies. But even with this, there are sill problems, namel y; 1) Agencies are not bound by the technical rules of procedure 2) agencies need flexibility to act * These minimum procedural requirements may be found in Book 7 of the Admin. Cod e of 1987. B. Executive Control * Executive power is vested in the President (Art. VII, Sec. 1, 1987 Constitutio n) * RULE: The President shall have control of all the executive departments, burea us and offices. He shall ensure that the laws be faithfully executed. (Art. VII , Sec. 17, 1987 Constitution) * EXCEPTIONS: In the case of agencies created by the legislature (e.g. NLRC, BIR , LTFRB), one must check the enabling law regarding Congress intention regarding this. * If the law is silent, the President cannot exercise control but merely supervi sion. * However, in cases involving agencies under the executive branch, the President has control. C. Judicial Control * Judicial review of administrative actions D. Ombudsman * Investigates and prosecutes * RA 6770 mandates the ombudsman/deputies not only to act promptly on complaints

but also to enforce administrative,civil and criminal liabilities of government officers and employees in every case where evidence warrants to promote efficie nt service by the government to the people. * The Ombudsman may not veto or revise an exercise of judgment or discretion by an agency or officer upon whom that judgment or discretion is lawfully vested, e sp. where the matter involves basically technical matters coming under the speci al technical knowledge and training of the agency / officer. (Concerned Officia ls of MWSS v. Vasquez (1995), where the Ombudsman was held to have interfered wi th a bid-and-award contract.) * The Ombudsman has no jurisdiction to initiate an investigation into the allege d delay in the disposition of a judicial case. It is the Supreme Court which ha s administrative supervision over all courts and the personnel thereof. (Dolala s v. Office of the Ombudsman, 1996) * And that ,Supreme Court will not interfere with Ombudsman s exercise of his cons titutionality mandated investigatory and prosecutory powers since it is beyond t he ambit of the court (Ledesma v CA, July 2005) In Ledesma v CA: Petitioner contends that the word recommend stated in sec 13(3) of Art XI of Constitution is only advisory in nature rather than one having bind ing effect.Supreme Court however ruled that the Ombudsman has authority to deter mine the administrative liability of public official and employee and direct an d compel the head of the office or agency concerned to implement the penalty imp osed. Ombudsman has power to investigate and prosecute illegal acts of officials and e mployees (whereby such authority is concurrent with other courts in respect of t he offense charged). It also has power to punish for contempt in accordance with Rules of Court and i t can preventively suspend any elective or appointive official pending an invest igation when the case so warrants. Ledesma v CA abrogated the rule in Tapiador. Grounds of Administrative Complaint (AO 7 issued Sept 15, 2003) Modifies sec 19 of RA 6770: 1.contrary to law or regulations 2.unreasonable,unfair, oppressive or discriminatory 3.inconsistent w/ general course of an agency s functions though in accordance w/ law 4.based on mistake of law or an arbitrary ascertainment of facts 5.exercise of discretionary powers but for an improper purpose 6.irregular, immoral or devoid of justification 7.due to any delay or refusal to comply w/ referral or directive of Ombudsman or any of his deputies against the officer or employee to whom it was addressed 8.other ground provided under EO 292 Upon receipt of Administrative complaint, it shall be evaluated to determine wh ether same may be: 1.dismissed outright for any of grounds stated in RA 6770 provided that dismissa l is discretionary on Ombudsman. 2.treated as a grievance/request for assistance w/c may be referred to the Publi c Assistance Bureau for appropriate action. 3.referred to other disciplinary authorities for taking of appropriate proceedin gs 4.referred to appropriate office/agency or official for conduct of further factfinding investigation 5.docketed as an administrative case for the purpose of administrative adjudicat ion by Office of Ombudsman PART III. POWERS OF ADMINISTRATIVE AGENCIES What are the matters that Congress cannot delegate? * Creation of municipalities (Pelaez v. Auditor-General)

* Imposition of criminal penalties (US v. Barrias) Admistrative Rules with Penal sanctions: must be published in full text (Sec. 6 (2), Book 7, Admin Code) If a rule is penal in character, it is required that the rule is published befor e it takes effect. (People v. Que Po Lay) the law itself must so declare the act as punishable penal statutes exclusive domain of the legislature, cannot be delegated In People v. Maceren, it was held that "Administrative rules and regulations can not amend or modify or expand the law by including, prohibiting or punishing cer tain acts which the law does not even define as a criminal act." * Designation of a particular act as a crime (People v. Maceren) * Creation of standards on the part of the agency Requisites for a valid delegation : a) the law must be complete in itself; must set forth a policy to be executed b) must fix a standard, the limits of which are sufficiently determinate or dete rminable, to which the delegate must conform in the performance of his functions . * The standard may be express or implied (Edu v. Ericta) * The standard does not have to be found in the law being challenged. It may be embodied in other statutes on the same subject matter as that of the challenged legislation. [Chongbian v. Orbos (1995). Here, the challenged law was the ARM M Organic Act. The standard was found in the Reorganization Act.] KINDS OF ADMINISTRATIVE RULES/REGULATIONS a. Supplementary/Detailed legislation Rules to fix details in the execution and enforcement of a policy set out in the law (ex: Rules implementing the Labor Code) b. Interpretative legislation Interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are change (ex: BIR Circulars) c. Contingent legislation Rules/Regulations made by the administrative authority on existence of certain f acts or things upon which the enforcement of the law depends. Examples of sufficient standards include: * Assumption by Labor Minister over strikes affecting national interest (Free Te lephone Workers Union v. Minister of Labor and Employment, 1981) * Reorganization of administrative regions in ARMM (Chiongbian v. Orbos, 1995) S tandard may be implied from other laws, e.g. RA 5435 (simplicity, economy, effi ciency) * Fixing of rates by National Telecommunications Commission (Philcomsat v. Alcua z, 1989) The standards used were public safety, public interest, reasonable feas ibility and reasonable rates (case to case basis) WON rate-fixing is legislative or quasi-judicial Absolutely May applies to Notice dispensed with Ratebe & applicability Extent ofhearingall Quasi-judicialonly at unless the Legislativenecessary 1 entity law provides otherwise directed * A rate is any charge to the public for a service open to all and upon the sam e terms, including individual or joint rates, tolls, classification or schedules thereof, as well as communication, mileage, kilometreage and other special rate s which shall be imposed by law or regulation to be observed and followed by any person. (Sec. 2 (3), Book VII, Admin Code) * AA to publish or circulate notices of proposed rules and afford interested par ties the opportunity to submit their views prior to the adoption of any rule. (B k. VII Sec 9(1)) * To be valid, proposed rates must be published in a newspaper of general circul ation at least 2 weeks before the first hearing thereon (Bk. VII, Sec 9(2)). * Function delegated to AAs because the legislature has not the time, the knowle

dge nor the means necessary to handle the matter efficiently. * Need for dispatch, for flexibility and for technical know-how better met by AA s. PSC not authorized to delegate power to fix rates to a common carrier or other p ublic service. Power to fix rates, being a delegated power cannot be delegated f urther (Panay Autobus v. Philippine Railway) Rate-fixing must be exercised by the agency directly. The power to fix rates, wh ich is a delegated power, cannot be delegated further (KMU v. Garcia) Principle on rate fixing and requirement of notice and hearing * if the rate to be fixed applies to all utilities in general --- LEGISLATIVE in character --> Notice and hearing may be dispensed with unless the law requires otherwise. * If the rate to be fixed applies to one entity -- QUASI-JUDICIAL in character -> notice and hearing required.(Vigan Electric v. PSC; Philcomsat v. Alcuaz) * The power to hear a case can be delegated, but not the power to decide. (Amer ican Tobacco Co. v. Director of Patents, 1975) * The power to decide can be delegated provided that the power to delegate such function was not withheld expressly or impliedly. (Realty Exchange v. Sendino, 1994, where the issue was whether the HLURB could split itself into divisions wh en hearing cases instead of meeting en banc.) 1.QUASI-LEGISLATIVE/ RULE MAKING: REQUISITES FOR VALIDITY OF RULES: 1.Issued under Authority of Laws => must not go beyond the standards prescribed by the law. => General in application => Valid as long as germane, consistent, implements the law 2.Within the scope and purview of the law Sec 17 of the rules and regulations implementing RA 8171 which provided that dea th penalty shall not be inflicted upon a woman w/in 3 years nxt following the da te of sentence or while she is pregnant was declared invalid since the same bein g impermissible contravention of Sec 83 of the RPC which provides that the death penalty shall not be inflicted upon a woman while she is pregnant or w/in 1 yr after delivery. 3.Reasonable 4.Publication Publication must be full or it is no publication at all. * Every agency to file with the UP Law Center three (3) certified copies of ever y rule adopted by it. (Bk. VII, Sec. 3) * Date of effectivity of rule: 15 days from the date of filing (Bk. VII, Sec. 4 ) * EXCEPTIONS: 1. different date is fixed by law or specified in the rule 2. in cases of imminent danger to public health, safety and welfare, * Publication is indispensable * Publication essential especially if general in character * Rule on publication of administrative issuances different from the Taada ruling * Tanada ruling: Publication in O.G. or newspaper of general circulation is requ ired for effectivity of administrative rules and regulations. * What need not be published: 1. interpretative regulations 2. internal regulations ( regulating only personnel of agency

3. letters of instructions issued by administrative superior to their subordinat es 2005 notes: In the Admin Code of 1987: Filing of copy of regulations is suffici ent for effectivity Limits on rule-making power: a. authorized by law (Olsen v. Aldanese) b. must not amend the law (Syman v. Jacinto) c. must not define a criminal act (People v. Maceren) d. must be germane to the purpose of the law which it was meant to implement (To ledo v. CSC) e. must not restrict, expand, diminish law (Commissioner of Internal Revenue v. CA; Land Bank v. CA; GMCR v. Bell Telecoms) f. action of the AA to be set aside if there is an error of law, a grave abuse o f power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of the law (Land Bank of the Phil. v. CA) Licensing Function * Licensing includes agency process involving grant, renewal, denial, revocation , suspension, annulment, withdrawal, limitation, amendment, modification or cond itioning of a license. (GR-DR-SAM-C) * License includes the whole or any part of any agency permit, certificate, pass port, clearance, approval, registration, charter, membership, statutory exemptio n or other form of permission, or regulation of the exercise of a right or privi lege. (PCPC-ARCM-SPR) * When the grant, renewal, denial or cancellation of a license is required to be preceded by notice and hearing, it cannot be withdrawn, suspended, revoked or a nnulled without notice and hearing (Sec 17(1), Bk, VII) * no license may be withdrawn, suspended, revoked or annulled without notice and hearing (Sec 17(2), Bk VII) EXCEPTIONS: 1. in cases of willful violation of pertinent laws, rules and regulations 2. when public security, health or safety require otherwise * Where the licensee has made timely and sufficient application for the renewal of a license, the existing license shall not expire until the application shall have been finally determined by the agency. (Sec. 18, Bk, VII) * A license is always revocable. (Gonzalo Sy Trading) 2.DETERMINATIVE POWERS a. Enabling: Permit or allow something which the law undertakes to regulate, (ex : grant or denial of licenses to engage in a particular business) b. Directing : Power of Assessment (ex: BIR) c. Dispensing: Exempt from a general prohibition or relieve an individual or cor poration from an affirmative duty (ex: authority of zoning boards to vary provis ion of zoning ordinances) d. Summary: Power to apply compulsion or force against person or property to eff ectuate a legal purpose without a judicial warrant to authorize such action (ex: health inspection e. Examining: Investigating power, requires the production of books, papers and attendance of witnesses. -power to punish contempt must be expressly granted to the administrative body a nd when so granted may be exercise only when administrative body is actually per forming quasi-judicial functions -officer must be authorized to administer oaths 1. Power to issue subpoena and declare contempt Subpoena Do all agencies with quasi-judicial functions have the power to issue subpoena?Y

es. As long as in exercise of quasi- judicial even if charter is silent. Power is vested in the AA in the Admin Code (see Sec 13 Bk VII) Test for valid enforcement of subpoena: 1. w/in authority of the agency ( expressly authorized by law ) 2. demand is not too indefinite subpoena duces tecum 3. info is reasonably relevant (Evangelista v. Jarencio) rationale: power to adjudicate will be rendered inutile if can t subpoena Contempt Do all agencies with quasi-judicial functions have the power to cite for contemp t? * No. Power must be expressly granted in the agency s charter (ex. PD 902-A creat ing the SEC) * If no law, must invoke the aid of RTC * Rationale: power to punish for contempt inherently judicial * The power to cite for contempt can only be used in connection with judicial an d quasi-judicial functions and with ministerial functions. (Guevara v. COMELEC) 2. Warrants of Arrest, Administrative Searches Can administrative agencies issue warrants of arrest? * No. In Salazar v. Achacoso, it was held that under the 1987 Constitution only a judge may issue search or arrest warrants. EXCEPTION: in cases of deportatio n of illegal and undesirable aliens following a FINAL ORDER OF DEPORTATION, for the purpose of deportation In Qua Chee Gan v. Deportation Board, the two ways of deporting are through the: a.) Commissioner of Immigration under Sec 37 of CA 618 b.) President after due investigation pursuant to Sec 69 of Revised Administrati ve Code. - but no grounds needed has sole discretion under international law Can immigration authorities issue warrants of arrest against undesirable aliens? YES, but only if issuance is pursuant to a final order of deportation. Immigrat ion authorities cannot issue warrants for purposes of investigation, as the Cons titution provides that only judges can issue warrants to determine probable caus e. (Qua Chee Gan v. Deportation Board, 1963) Note that the Constitution does n ot distinguish between warrants in a criminal case and administrative warrants i n administrative proceedings. 3. Imposition of fines and penalties Do agencies have the power to impose fines and penalties? * Yes. In the case of Oceanic Steam Navigation v. Stranahan, the Court laid down the tests for the validity of imposition of fines Test for validity of imposition: 1. subject matter is within the control of Congress 2. penalty is administrative or civil and not criminal which would involve deprr vation of property 3. power must be expressly conferred to an administrative agency; power cannot b e exercised by implication The fixing of penalties for criminal offense is the exercise of legislative powe r which cannot be delegated to a subordinate authority. (U.S. v. Barrios) 3.QUASI-JUDICIAL/ADJUDICATORY POWER Proceedings partake of the character of judicial proceedings. Administrative bo dy is normally granted the authority to promulgate its own rules of procedure pr

ovided they do not increase, diminish or modify substantive rights and subject t o disapproval by the Supreme Court. Cardinal Primary Rights As held in Ang Tibay v. CIR, the seven cardinal primary rights for Administrativ e due process are: 1. Right to a hearing 2. Right to have the evidence considered 3. Decision must be supported by evidence 4. Substantial evidence 5. Transparency of records 6. Independent consideration of the judge 7. Decision must reveal relevant issues * absence of one of these 7 rights is sufficient to question the proceeding * Presence of a party at a trial is not always the essence of due process. All that the law requires is that the parties be given notice of trial, an opportuni ty to be heard. (Asprec v. Itchon) * The right of a party to confront and cross-examine opposing witnesses is a fun damental right which is part of due process. If without his fault, his right to cross- examine is violated, he is entitled to have the direct examination strick en out. (Bachrach Motors v. CIR) * The law, in prescribing a process of appeal to a higher level, contemplates th at the reviewing officer is a person different from the one who issued the appea led decision. Otherwise, the review becomes a farce; it is rendered meaningless. (Zambales Chromitev. CA; Anzaldo v. Clave; Rivera v. CSC) * Evidence on record must be fully disclosed to the parties. (American Inter-Fas hion Corporation v. Office of the President) In Matthews v. Eldridge, the U.S. Supreme Court enumerated the 3 factors determi ning constitutional sufficiency of administrative procedures: 1. private interest that will be affected 2. risk of erroneous deprivation of such interest and probable value of safeguar ds 3. public interest vis--vis government costs 1. Notice and Hearing No Notice and hearing requirement in case of a mere conference (Equitable v. NLR C) Power to hear may be delegated but not the power to decide (American Tobacco Co. v. Director of Patents) When required a. When law specifically requires notice and hearing (Halili v. PSC; Bautista v. WCC; Equitable Banking Corp v. NLRC) b. When it affects a person s status and liberty (Commissioner of Immigration v. F ernandez) If administrative action is based on an undisputed fact and not a quasi-judicial function, notice and hearing may be dispensed with. When not required * grant of provisional authority for increased rates or to engage in a particula r line of business * when discretion is exercised by an officer vested with it upon an undisputed f act (Suntay v. People : whereby officer cancelled passport) * if it involves the exercise of discretion and there is no grave abuse of discr etion (De Bisschop v. Galang) * when rules to govern future conduct of persons or enterprises, unless law prov ides otherwise (Taxicab Operators of Manila v. Board Of Transportation) * in the valid exercise of police power (Pollution Adjudication Board v. CA)

* summary proceedings of distraint and levy upon the property of delinquent taxp ayer or summary abatement of nuisance per se 2. Form and Promulgation of Judgment Decision should state:facts ,issues andlaw * Normally, this will be followed by the agency to the letter. However, there a re times when there is substantial compliance (therefore not violative of due pr ocess) * It is not necessary that the order make its own discussion of the evidence and the findings of fact if the court is satisfied with the report of the examiner which already contains the discussions of the findings and conclusions. The rul e is otherwise when the court disagrees with the findings of the examiner in whi ch case the court must specify and discuss the reasons for their dissent. (India s v. Phil. Iron Mines) * The requirement that all decisions should contain a statement of facts and the law on which it is based is only applicable to decisions of courts of record, n ot to quasi-judicial agencies. However, the due process clause applies with rega rds to procedural due process. (Valladolid v. Inchiong) * If a power to decide is granted to a specific authority, it can t abdicate from this responsibility by delegating the duty to decide the case. It must personal ly decide such. It can delegate the power to hear but not the power to decide. (American Tobacco v. Director of Patents) * The Board s act of dividing itself into divisions of three is valid because unde r EO 648 the Board can adopt rules of procedure for the conduct of its business and perform such functions necessary for the effective accomplishment of its fun ctions. The power to delegate a particular function can be implied from the powe r of AA to issue rules and regulations necessary to carry out its functions. (Re alty Exchange v. Sendino) Right to self-incrimination may be invoked by the respondent at the time he is c alled by the complainant as witness, however ,if he voluntary takes witness sta nd,he can be cross-examined but he may invoke such right at time question calls for an answer which incriminates him of an offense other than that charged is as ked. JURISDICTION * Refer to the enabling statute creating the agency, especially its powers and j urisdiction * Jurisdiction is created and conferred by law * Pendency of a criminal case will not divest the Deportation Board of its juris diction over undesirable aliens in a deportation proceeding. (Go Tek v. Deporta tion Board) * The Collector of Customs constitutes a competent tribunal when sitting in forf eiture proceedings. (Dela Fuente v. De Veyra) * CHR can only investigate violations of civil-political rights. It cannot try a nd decide cases as ordinary courts of justice, or even quasi-judicial bodies do. (Cario v. CHR) * CHR cannot issue cease and desist order since the CHR can only investigate. Th e power to issue cease and desist order is reserved for quasi-judicial & judicia l powers (Simon, Jr. v. CHR) * The Bureau of Immigration has the primary jurisdiction or exclusive authority to try and hear cases against an alleged alien. Judicial intervention should be granted only in cases where claim of citizenship is so substantial that there a re reasonable grounds to believe that the claim is correct. (Board of Commission ers v. Dela Rosa) * The HLURB has jurisdiction over specific performance, annulment of mortgage an d all other matters which pertain to sound real estate practice. (Union Bank v. HLURB) * The CAB is authorized by RA 776 to issue temporary operating permit or CPCN. (PAL v. CAB)

A. Administrative and Judicial Proceedings Arising from the same facts * The difference in the proceeding (one administrative, the other criminal) is n ot legal incompatibility but merely physical incompatibility. These 2 proceeding s are independent of each other involving different causes of action and therefo re can proceed simultaneously. (Galang v. CA) * Matters that are material in administrative case are not necessarily relevant in criminal case. There are excuses, defenses and attenuating circumstances whic h are relevant in an administrative proceeding which are not admissible in trial in crim cases. (Villanos v. Sabido) * The trial court had no jurisdiction to order reinstatement since the judgment in a criminal case is limited to acquittal or conviction with accessory penaltie s. Only the NLRC could have ordered reinstatement with back wages. (PNR v. Domi ngo) * The criminal case for falsification is entirely distinct from the administrati ve proceedings conducted by the COMELEC against the petitioner although both aro se from the same set of facts. The dismissal of the criminal complaint against T an is not a bar to the administrative proceeding. (Tan v. COMELEC) B. Rules of Evidence * AAs not bound by technical rules of evidence but due process must be observed * RATIO: to allow AA to act with speed and flexibility What is the pervasive principle? * Technical rules of evidence and procedure do not strictly apply to administrat ive proceeding, but this does not mean they can disregard certain due process re quirements. * AAs may act on its own and use methods which may best constitute substantial e vidence. (Estate of Buan v. Pambusco) * The SC not required to examine the proof de novo. The only function of the SC is to determine WON there is evidence before the Commission upon which its deci sion might be reasonably be based. (Rizal Light Co. v. Municipality of Rizal) * AAs not bound by the strict or technical rules of evidence governing court pro ceedings. In the broad interest of justice, the ERB may, in any particular mann er, except itself from these rules and apply such suitable procedure as shall pr omote the objectives of the order. (Maceda v. ERB) PART IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS 2006 Notes:Silence of Congress should not be interpreted as indicating a legisla tive intent to preclude judicial review. (Uy v. Palomar) EXHAUSTION OF ADMINISTRATIVE REMEDIES Where law has delineated a procedure by which administrative appeal or remedy co uld be effected, the same should be followed before recourse to judicial action can be initiated GEN RULE: Courts cannot interfere with proceedings undertaken by AA EXCEPTIONS: (1) AA has gone beyond statutory authority (2) AA exercised unconstitutionall powers (3) AA clearly acted arbitrarily and without regard to his duty (4) Grave abuse of discretion (5) Decision vitiated by fraud, imposition or mistake (Manuel v. Villena) FAILURE TO EXHAUST :

In the case of Republic (PCGG) v. SB, the Court held that failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdict ion of the Court. The only effect of non-compliance with this rule is that it wi ll deprive the complainant of a cause of action, which is a ground for a motion to dismiss. If not invoked at the proper time (BY FILING A MOTION TO DISMISS), t his ground is deemed waived and the court can take cognizance of the case and tr y it. In this case, seven years is hardly within "the proper time". EXCEPTIONS TO EXHAUSTION: 1. Doctrine of Qualified Political Agency (Alter Ego) When the Undersecretary of the Secretary of Natural Resources denied the motion for reconsideration, he was acting on behalf of the Sec. of Natural Resources, a ccordingly,administrative remedies had been exhausted. 2005 notes: Where Appeal to the President had been made and before the President could act on the appeal, the same was withdrawn, there was deemed to have been failure to exhaust remedies, besides, by appealing to the Pres.,the party recogn ized palin, speedy and adequate remedy still open to him in the ordinary course of law & thus his special civil action must fail. 2005 notes: Decision of DAR Secretary cannot be questioned before the DARAB sinc e exhaustion is improper in this case since RA 6657 specifically provides that d ecisions and awards of DAR be brought to the Court of Appeals. 2. Where Administrative Remedy is fruitless 3. Where there is estoppel on the part of administrative agency 4. Where issue is purely a legal question In Castro v Gloria, Aug 20,2001: Petitioner was disputing the admin finding of g uilt since he claimed that penalty for offense is not dismissal from service. As such, the issue pertains is a pure question of law. 5. Where Administrative action is patently illegal amounting to lack or excess o f jurisdiction. 6. Where there is unreasonable delay or official inaction. 7. Where there is irreparable injury or threat, unless, judicial recourse is imm ediately made. 8. In land cases, where subject matter is private land. 9. Where law does not make exhaustion a condition precedent to judicial recourse . 10. Where observance of doctrine will result in nullification of claim 11. Special reasons demanding immediate court action Apex v DAR , April 10,2003: PARO did not take immediate action and it was alrea dy 1 year,as such exhaustion must be disregarded when i)circumstances indicatin g urgency of judicial intervention ii) admin action is patently illegal and amou nts to excess of jurisdiction 12. Due process is clearly violated or when rule does not provide for speedy, pl ain and adequate remedy Civil action for damages is personal to the plaintiff, it can proceed independen tly of administrative action COROLLARY PRINCIPLES TO EXHAUSTION: A. Primary Jurisdiction or PRIOR Resort * Where there is competence or jurisdiction vested upon an adiministrative body to act upon a matter, no resort to the courts may be made before such administra tive body shall have acted upon the matter.

* Courts will not intervene if the question to be resolved is one which requires the expertise of the AA and the legislative intent on the matter is to have uni formity in ruling. As such after decision of such executive body, the ADMINISTR ATIVE REMEDY OF APPEAL TO THE CIVIL SERVICE OR SECRETARY AS STATED BY LAW (and not to the RTC or CA) would still be available. EXCEPTIONS: 1. not within competence of the AA 2. issue does not require technical expertise of AA Criteria for the application of the Doctrine as laid down in the Texas and Pacif ic v. Abilene Case: (1) there is concurrent jurisdiction (2) the agency has the necessary expertise to competently rule on the issues (te chnical expertise is crucial to resolution) (3) In line with the legislative intent /objectives of the law (e.g. uniform rat es) If case requires expertise, specialized skills and knowledge of AA because techn ical matters or intricate questions of fact are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of the cour t. Application of the doctrine does not call for the dismissal of the case but only its SUSPENSION till after the matters within the competence of the AA are t hreshed out and determined. (Industrial Enterprises v. CA) B. Doctrine of Finality of Administrative Action No resort to the courts will be allowed unless the administrative action has bee n completed and there is nothing left to be done in the administrative structure . STANDING TO CHALLENGE LEGAL STANDING means a personal and substantial interest in the case such that t he party has sustained or will sustain direct injury as a result of the gov t. act that is being challenged. (Joya v. PCGG; :Lozada v. Comelec; Kilosbayan v. Guin gona) Types of Standing: 1. provided by law 2. taxpayers' suit 3. class suit 4. suit as members of the Congress If the law specifies in an exclusive manner as to who may appeal those who are n ot included have no personality to sue. (Ursal v VTA; Acting Collector v. CTA) One having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an action. (Joya v. PCGG) The issue of standing is a procedural technicality which may be waived if the is sue of is of transcendental importance to the public. (Kilosbayan v. Guingona) The Court differentiated concepts of standing and real party-in-interest and held th at Kilosbayan is not a real party in interest because it was not a party to the contract. (Kilosbayan v. Morato) Tests of standing as laid down in Assn of Data Processing Service Organization v . Camp 1) Test of injury in fact (economic injury) 2) Whether or not arguably in the zone of interest sought to be protected by the

statute Three elements of the constitutional minimum requirements of standing: (1) the plaintiff must have suffered an injury in fact an invasion of a legally-pr otected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical (2) there must be a causal connection between the injury and the conduct complai ned of the injury has to be fairly traceable to the challenged action of the defe ndant, and not the result of the independent action of some third party not befo re the court. (3) it must be likely as opposed to merely speculative , that the injury will be re dressed by a favorable decision. (Lujan v. Defenders of Wildlife) Ripeness Purpose of the doctrine of ripeness (according to Abbott Laboratories v. Gardner ): 1.to prevent courts, thru avoidance of premature adjudication, from entangling t hemselves in abstract disagreements over administrative policies 2.to protect agencies from judicial interference until decision has been formali zed and effect felt in a concrete way or the imminence of the effect is demonstr able 2-fold test (must concur): 1.fitness of the issue for judicial decision (question of law, not policy-making ) 2.hardship to the parties of withholding such court action General ripeness consideration tests according to National Automatic Laundry and Cleaning Council v. Shultz: 1. WON there is congressional intent negativing judicial review 2. Possibility of courts entangling themselves in abstract disagreement over adm inistrative policies due to premature adjudication 3. Fitness of issue for judicial determination and hardship to parties of withho lding consideration

PART V. MODES OF JUDICIAL REVIEW JUDICIAL REVIEW WON it is available is the threshold issue => If not available - end of litigation => If available - determine the specific mode of review which must be invoked A. Provisions of Law Art. 9A, Sec 7, Constitution:

Decisions of the COA, COMELEC, and CSC may be brought to the SC on CERTIORARI wi thin 30 days from receipt of copy of decision * The constitution uses the word may, meaning review is not mandatory by only di scretionary. BP 129 * Authority of CA to review decisions of quasi-judicial agencies is EXCLUSIVE (i f such is listed in LAW OF SUCH ADMIN BODY or if its CHARTER so indicates) * If it is not listed, its decisions can be reviewed by the RTC through the spec ial civil action for certiorari under Rule 65 Book VII, Section 25, Administrative Code of 1987 Agency decisions shall be subject to judicial review in accordance with this cha pter and applicable laws. (par. 1) WHO MAY SEEK JUDICIAL REVIEW: * Any party aggrieved or adversely affected by an agency decision. (par.2) WHEN TO APPEAL: * Within fifteen (15) days from receipt of a copy (par. 4) HOW: * File petition for review (par.4) WHERE TO FILE: * In the court specified by statute or, in the absence thereof, in any court of competent jurisdiction in accordance with the provisions on venue of the Rules o f Court. (par. 6) * Petition for Review - question of fact and law * Must comply with => The time period => Docket fees => Notice SC Revised Administrative Circular 1-95 (Rule 43, 1997 Rules of Procedure) * Grants CA with exclusive jurisdiction to review decisions of 19 AAs (like CTA and CSC) * Excludes the NLRC * Listing not exclusive - ejusdem generis * SC retains the special civil action for certiorari if there is grave abuse of discretion amounting to lack or excess of jurisdiction * As to AAs exercising quasi-judicial functions, there is an underlying power in the courts to scrutinize the acts of agencies on questions of law and jurisdict ion even though no right of review is given by the statute. (Meralco Securities v. CBAA) B. Certiorari Two Kinds of Certiorari 1. Simple or Ordinary (Rule 45) - errors of judgment; questions of law 2. Special Civil Action (Rule 65) - errors of jurisdiction; - SC has original jurisdiction, concurrent with the RTC * Purpose: to nullify or set aside the proceedings Requisites: 1. a) Lack of jurisdiction or b) grave abuse of discretion amounting to lack or excess of jurisdiction 2. There is no other plain, speedy, adequate remedy 3. Agency or tribunal is performing judicial or quasi-judicial functions C. Prohibition

Requisites: 1. Lack of jurisdiction or grave abuse of discretion 2. No other plain, speedy, or adequate remedy 3. Agency or tribunal is performing quasi-judicial and ministerial functions 4. The act to be enjoined is yet to be performed * Purpose => To stop or prohibit proceedings from going on => If proceedings are already finished - do not use prohibition as by then it wo uld be moot and academic * Unlike certiorari, prohibition is more expansive as it caters to quasi-judici al and purely ministerial duties D. Mandamus Requisites: 1. Prove clear and controlling right - not questionable and not subject to dispu te 2. Duty of the person to whom mandamus is directed is MINISTERIAL, not discretio nary 3. No plain, speedy, adequate remedy under the ordinary course of law ? Is it possible to ask for a writ of mandamus against an agency exercising disc retionary powers? => Yes, when the writ of mandamus is in order to compel the agency to exercise o r use its discretion but it will not prescribe the action to be taken by the boa rd/officer (Policarpio v. Phil Veterans Board) => If there is a capricious exercise of such discretion, the remedy is CERTIORAR I WHEN IS MANDAMUS NOT PROPER: 1. to control or review the exercise of discretion of a public officer (Blanco v . Board of Examiners) 2. to compel issuance of visa (Ng Gioc Liu v. Secretary of Foreign Affairs) 3. to enforce contractual obligations (Province of Pangasinan v. Reparations Com mission) 4. where there is no clear legal right as the source of the "right" is not autho rized (Cruz v. CA) 5. to compel tax assessment not due (Meralco Securities v. Savellano)

E. Declaratory Relief Function: 1. interested under a deed, will, contract or written instrument affected by any statute 2. to determine any question of construction or validity arising from and for a declaration of his rights, duties thereunder * can only be availed of before the breach Requisites of Declaratory Relief 1. existence of a justiciable controversy - capable of determination 2. between persons whose interests are adverse 3. party seeking declaratory relief must have a legal interest in the controvers y 4. issue is ripe for adjudication * Citizenship cannot be declared in an action for declaratory relief. (Azajar v. Ardalles) * DR must precede breach so as to avoid multiplicity of suits. (De Borja v. Vill

adolid) * DR not available to a taxpayer who questions his tax liability. ntal Supply v. Meer)

(National De

F. Habeas Corpus * In what cases will habeas corpus pertinent in administrative cases? => Deportation cases * It is a plain, speedy, adequate remedy to secure release of persons under cust ody * Success of petition depends on the legality of the detention * WHC would still issue even if the person is already released if the release is conditional such as when there is surveillance, there is limitation in the plac e where he can go, etc. * Detention is legal if it is reasonable (Mejoff v. Director of Prisons) * Bail renders a WHC moot and academic as the bail bond gives him liberty. (Co v . Deporation Board; Lucien Tran Van Nghia v. Liwag) Note though that in Crim Pro we were taught that WHC may still issue despite the granting of bail when there is still effective detention. G. Injunction as a Provisional Remedy Purpose: 1. To prevent the commission of certain acts complained of 2. Commission or continuance of act complained of would probably work injustice to him 3. Defendant is doing, threatens or about to do an act in violation of petitione r's rights which may render the judgment ineffectve * If the plaintiff wins the main case, injunction becomes permanent, if he does not, injunction is dissolved * Ancillary remedy to principal action while main action is pending * To preserve rights while main action is pending * Who issues the injunction => Superior court to an inferior court * The SEC and the RTC are co-equal (Pineda v. Lantin; Phil Pacific Fishing Co. v . Luna)

Preliminary Mandatory Injunction * Commands an act to be done for the purpose of restoring a pre-existing right a nd to prevent damage * Would be issued if: 1. right is clear 2. considerations of relative inconvenience strongly in favor of petitioner 3. there appears to be a willful invasion of petitioner's right and the injury i s a continuing one 4. PMI will not create a new relation between the parties H. Suit for Damages as * Even if damage ensues be awarded if such act (Philippine Racing Club an Indirect Method because of acts in excess of authority, damages will not was (1) done in good faith and (2) with color of title. v. Bonifacio)

2005 notes: COLLATERAL : relief from adiministrative action sought in a proceedi ng the primary purpose of which is some relief other than the setting aside of t he judgement, although an attack on the judgement may be incidentally involved ( ex: A damage suit against the administrative officials)

PART VI. EXTENT OF JUDICIAL REVIEW Law - fact distinction * Important because of substantial evidence rule (i.e., AA decision, if supporte d by substantial evidence, will not be reviewed by the court) * Questions of Law - always reviewable * Question of Fact - reviewable only when not supported by substantial evidence (findings of fact, if supported by substantial evidence, is conclusive on the co urt) * A conclusion drawn from series of facts is a question of law which may be revi ewed (Dauan v. Secretary) Question of Law * Examples are issue of constitutionality, validity of agency action, and correc tness of the interpretation of law * Other examples: 1. question of citizenship (Ortua v. Vicente Singson) 2. WON there was a landlord- tenant relationship (Mejia v. Mapa) 3. Questions arising from proper interpretation of the Articles of Incorporation (Japanese War Notes Claimants v. SEC)

4. Existence of an ER-EE relationship (Ysmael v. CIR) Question of Fact * GEN RULE: findings of fact of AA, if supported by substantial evidence, is con clusive on the courts * EXCEPTIONS: 1. not supported by evidence presented 2. not supported by substantial evidence * EXAMPLES: 1. WON thing exists 2. WON event took place 3. Which of 2 conflicting versions is correct * SC may not accept AA s findings of fact when the decision was rendered by an alm ost evenly divided court and that the decision was precisely on the facts as bor ne out by the evidence. (Gonzales v. Victory Labor Union) * When there is grave abuse of discretion amounting to lack of jurisdiction, the re is a justification for the courts to set aside the administrative determinati on reached. (Banco Filipino v. Monetary Board) * There is substantial evidence when there is a semblance of reasonableness in y our conclusion * Substantial evidence does not require you to be sure but merely REASONABLE * Court must review the ENTIRE records. Substantial evidence must be taken as a whole - should not be selective in reviewing the case. (Universal Camera Corpora tion v. NLRB) Questions of Discretion * If there is GAD, subject to certiorari * GAD - Capricious, whimsical, arbitrary, despotic PART VII. ENFORCEMENT OF AGENCY ACTION How are agency actions going to be enforced? * Examine the pertinent provisions of the enabling statute * Examples: issue permits, fix wages, summary actions without notice and hearing , ex parte order to cease and desist RES JUDICATA Does res judicata apply to administrative agencies? * Yes, if it is exercising it's QUASI-JUDICIAL FUNCTIONS (Ipekdjian Merchandisin g v. CTA) * Res judicata is a judicial concept. * It does not apply if the exercise is purely administrative * Res judicata may not be invoked in purely administrative proceedings. (Nasipit Lumber v. NLRC) * Decisions and orders of AAs rendered pursuant to their quasi-judicial authorit y have, upon their finality, the force and effect of a final judgment within the purview of the doctrine of res judicata. (Dulay v. Minister of Natural Resource s) Requisites of res judicata: 1. previous final judgment 2. rendered by court with jurisdiction 3. must be a judgment on the merits 4. identity of parties, subject matter and cause of action

WRITS OF EXECUTION GENERAL RULE: Agencies performing quasi-judicial functions have the implied power to issue wr its of execution. EXCEPTION: If the enabling law expressly provides otherwise * If the law is silent, presume that the agency has the power to enforce its dec isions emanating from its quasi-judicial powers. (Apolega v. Hizon) * If the writ of execution is refused to be implemented, the proper remedy is MA NDAMUS because by virtue of the writ of execution, the duty has become ministeri al. (Vda. de Corpuz v. the Commanding General of the Philippine Army) * CFI and the NLRC are co-equal such that an order even if not directed against the NLRC when it's effect would be to freeze it's executory decision should be n ullified. (Ambrosio v. Salvador) * The authority to decide cases (quasi-judicial powers) should normally and logi cally begin to include the grant of authority to enforce and execute the judgmen t it thus renders, unless the law otherwise provides. (GSIS v. CA) Brandies Assimilation of Facts: Finding of fact upon the question of law, the court will, in order to resolve th e question of law, examine the factual setting including the evidence adduced th ereto. LOCAL GOVERNANCE (PUBLIC CORPORATION 2007) It is formed or organized for the government of a portion of the State (Co rporation Code) Elements of a municipal corporation 1. A legal creation or incorporation 2. A corporate name by which the artificial personality or legal entity is known and in which all corporate acts are done 3. Inhabitants constituting the population who are invested with the political a nd corporate powers which are executed through duly constituted officers and agents 4. A place or territory within which the local civil government and cor porate functions are exercised. Requisites for the Incorporation of a Municipal Corporation 1. Territory 2. Population 3. Charter Requisites of a De Facto Municipal Corporation 1. 2. 3. 4. A valid law authorizing incorporation An attempt in good faith to organize under it A colorable compliance with the law An assumption of corporate powers

An attack on Legal Existence A quo warranto proceeding brought by the State is the proper remedy. It should b e commenced within 5 years from the time the act complained of was committed. Execution of Powers: 1. Where statute prescribes manner of exercise ,the procedure must be followed 2. Where statute is silent, local government units have discretion to select rea sonable means/methods of exercise. DUAL NATURE OF MUNICIPAL CORPORATIONS 1. Private/proprietary a. It acts in a similar category as a business corporation, performing functions not strictly governmental or political b.Those exercised for the special benefit and advantage of the communi ty. *Note: Local Government Code 15. Every LGU created or recognized under this Co de is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a POLITICAL SUBDIVISI ON of the national government and as a CORPORATE ENTITY representing the inhabi tants of its territory.

2. Governmental a. The municipal corporation acts as an agent of the State for the governme nt of the territory and the inhabitants within the municipal limits b. It exercises by delegation a part of the sovereignty of the State 2005 notes: LGC expressly authorizes the Mayor to issue permits and licenses for the holding of activities for any welfare or charitable purpose. (ex: operation of cockpits) Limitations on exercise of governmental powers: a. Exercise only within territorial limits of the local government unit except for protection of water supply b. Interest of public in general require exercise of power c. Means employed are reasonably necessary for accomplishment of purpose and not unduly oppressive on individuals d. Not contrary to constitution and by laws. -It is a legitimate exercise of power if banning of shipment of live fish for pe riod of five years. -It is invalid exercise if prohibiting operation of casino since contrary to PD 1869 (Charter of PAGCOR) -The ordinance appointing Basil manager of fisheries ( not fishing for chicks) f or 25 years renewable for another 25 was held invalid since municipality cannot grant exclusive fishing privileges w/o prior public bidding & for period of mor e than 5 years.

-An ordinance imposing P.30 police inspection was invalid since it is not a lice nse fee but a tax, unjust and unreasonable, since the only service of the munici pality is for the policemen to verify from the drivers of trucks of petitioner t he number of sacks actually loaded. 2005 notes: LGU s have power to generate and apply resources(including human resou rces). This power is always subject to limitation provided by the Legislature. Fundamental Principles Goverining Taxes and Revenues: 1. Taxation shall be uniform in each LGU 2. Taxes,fees ,charges and other impositions shall be equitable and based as far as practicable on taxpayer s ability to pay and such is collected only for public purpose. 3. Collection of local taxes and other impositions shall in no case be let to an y private person 4. Revenue collected shall inure solely to benefit and subject to disposition of LGU 5. Each LGU shall evolve a progressive system of taxation. 2005 notes: NO money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law. And such funds shall be spent solely for public purpose. Local revenues is generated only from sources expressly author ized by law or ordinance.

CREATION OF LOCAL GOVERNMENT UNITS 1. Authority to Create LGUs ( 6, LGC) By law enacted by Congress Province City Municipality Any other political subdivision (A barangay may also be created by law. 86)

See 3

2. By ordinance passed by Sangguniang Panlalawigan/PanlungsodFor barangay locate d within its territorial jurisdiction 3. Indicators for creation/conversion a. Income b. Population c. Land Area 4. Plebiscite Requirement a. It applies to the creation, division, merger, abolition or substantial altera tion of boundaries of LGU. b. Creation etc. should be approve by a majority of the votes cast in a plebisci te called for the purpose in the political unit or units directly affected. Tan v COMELEC: A plebiscite for creating new province should include the partici pation of the residents of the mother province in order to conform to the const itutional requirement of law. 5. Beginning of Corporate Existence Corporate existence commences upon the election and qualification of its chie

f executive and a majority of members of the Sanggunian unless some other time i s fixed by the law or ordinance creating it. Local Autonomy A measure of decentralization of the functions of government. Under the princi ple of local autonomy and decentralization, LGUs have more powers, authority, re sponsibilities and resources. Devolution It refers to the act by which the national government confers power and authorit y upon the various LGUs to perform specific functions and responsibilities. ( 17, LGC). It is considered mandatory under the LGC.

LEVELS OF DECENTRALIZATION Decentralization: the devolution of national administration, not power, to the l ocal levels, in which local officials remain accountable to the central governm ent in the manner the law may provide 1. Administrative Autonomy a. The central government delegates administrative powers to the political subd ivisions. b. Purposes > To broaden the local power base > To make the units more responsive and accountable > To ensure the full development of LGUs into self-reliant communities > To break the monopoly of the national government over managing local affairs > To relieve the national government from the burden of managing local affairs 2. Political Autonomy a. Involves the abdication of political power in favor of LGUs declared t o be autonomous b. It would amount to self-immolation because the autonomous government would be come accountable to its constituency, not to the central government.

DISTINCTION BETWEEN SUPERVISION AND CONTROL 1. Supervision a. It means the overseeing or the power or authority of an officer to see that t he subordinate officers perform their duties.

b. In relation to LGUS, the President only has the power of supervision over LGU S. Thus, he cannot interfere with the local governments as long as they act with in the scope of their authority. c. Under the LGC (25), the President exercises direct supervision over provinces, highly urbanized cities and independent component cities. He exercises indirect supervision over component cities and municipalities through the provinces. He also exercises indirect supervision over barangays through the city or municipal ity concerned. 2. Control a. It means the power of an officer to alter or modify or nullify or set aside w hat a subordinate officer has done in the performance of his/her duties and to s ubstitute the judgment of the former for that of the latter. b. In relation to LGUs, it is Congress which exercises control over them.

POWERS OF THE LOCAL GOVERNMENT I,POLICE POWER 1. Police power is not inherent in municipal corporations. Under the LGC, LGUs e xercise police power under the general welfare clause (See 16) 2. Branches of the general welfare clause a.One branch relates to such ordinances and regulations as may be necessary to c arry into effect and discharge the powers and duties conferred upon the municipa l council by law. b.The second branch is more independent of the specific functions of the council . It authorizes ordinances as are necessary and proper to provide for the health and safety, promote prosperity, improve morals, peace, good order etc. II.TAXATION 1. Power to tax of LGUs is now pursuant to direct authority conferred by the 198 7 Constitution. 2. Since LGUs have no inherent power to tax, their power must yield to a legisla tive act. III.LEGISLATIVE POWER Requisites for Validity: 1.Must not contravene the constitution and statute 2. Not partial or discriminatory 3.Not unfair or oppressive 4.Not prohibit but may regulate trade 5.Reasonable 6.General in application and consistent w/ public policy Local chief executive (except for punong barangay because he is already a member of the Sangguniang barangay) has to approve the ordinance enacted by the counci l.

Veto power of local chief executive. a. Grounds 1. Ultra vires 2. Prejudicial to public welfare b. Item veto 1. Appropriations ordinance 2. Ordinance/resolution adopting local development plan and public investment pr ogram 3. Ordinance directing the payment of money or creating liability. 2005 notes: Ordinances enacted by sangguniang brgy shall, upon approval by a maj ority of all its members shall be signed by punong barangay, the latter has no v eto power Review by Higher/Supervising Council a.The Sanggunian Panglalawigan can declare the ordinance/resolution invalid if i t is beyond the scope of the power conferred upon the lower Sanggunian (panglun gsod or bayan). b.For barangay ordinances, the Sangguniang Panglungsod/Bayan can also rule that it is inconsistent with law or city/municipal ordinances. 2005 notes: Any attempt to enforce an ordinance or resolution approving the loca l development plan and public investment program after disapproval thereof, shal l be sufficient ground for suspension or dismissal of the official or employee c oncerned. IV.CORPORATE POWERS 1. To have continuous succession in its corporate name 2. To sue and be sued Suit is commenced by the local executive upon authority of the Sanggunian, excep t when the City councilors by themselves and as representatives of the city brin g the action to prevent unlawful disbursement of City funds. But Municipality cannot be represented by a private attorney. Only the provincia l fiscal or municipal attorney can represent a province or municipality in laws uits. 3. To have and use a corporate seal 4. To acquire and convey real or personal property Town plazas are properties of public dominion, they may be occupied temporarily but only for the duration of an emergency. Public streets or thoroughfares are p roperty for public use, therefore outside commerce of man and may not be subject of lease. 5. To enter into contracts Requisites of valid municipal contract : a.local government has express ,implied or inherent power to enter into the part icular contract b.contract is entered into by the proper dept,committee or agent, unless otherwi

se provided by Code, no contract may be entered into by the local chief execut ive on behalf of local government unit without prior authorization by the sanggu nian concerned. c. contract must comply with certain substantive requirements (ex: when expendit ure of public fund is to be made, there must be an actual appropriation and a c ertificate of availability of funds.) d.contract must comply with formal requirements of written contracts (ex: Statut e of Frauds) 2005 notes: when contract is entered into without compliance with a and c (above ), the same is ULTRA VIRES and is null and void. It cannot be ratified or valida ted. Quezon City v Lexber ,March 15,2001: PD 1445 does not provide that absence of ap propriation ordinance ipso facto makes a contract entered into by a local govern ment unit null and void. Public funds may be disbursed not only in pursuance to an appropriation law but also in pursuance to other statutory authority. 2005 notes: A contract of lease granting fishing privileges is a valid and bindi ng contract and cannot be impaired by subsequent resolution setting it aside and granting privilege to another. 2005 notes: The local chief executive may upon authority of Sanggunian, negotiat e and seccure financial grants from local or foreign assistance without securi ng approval from any departments. 6. To exercise such other powers as are granted to corporations, subject to limi tations in LGC/other laws. V. EMINENT DOMAIN AND RECLASSIFICATION OF LAND Requisites for Valid Exercise a.ORDINANCE authorizing the local chief executive to subject a certain property to expropriation Paranaque v VM Realty: There waslack of compliance with Sec 19 LGC where Municip al Mayor filed a complaint for expropriation of 2 parcels of land on strength of a resolution passed by Sanggunian Bayan since what is required by law is Ordina nce (not resolution). b.Expropriation should be for a PUBLIC USE/PURPOSE or for the WELFARE of the PO OR/LANDLESS. c.Payment of JUST COMPENSATION d.Valid and definite OFFER TO PAY which was NOT accepted by the owner. 2005 notes: A local government unit may, pursuant to an ordinance, permanently o r temporarily( made during actual emergency, fiesta, celebrations ,public rallie s etc) close or open any local road, alley,park or square falling within its jur isdiction provided that in case of permanent closure, such ordinance must be app rove by at least 2/3 of all members of the sanggunian and when necessary, an ade quate substitute for public facility shall be provided, property may be used or conveyed for any purpose for which other real property may be lawfull used or co

nveyed (but no freedom park shall be closed permanently w/o provision for its tr ansfer or relocation to a new site) Role of Supervising Local Government Unit: It can only declare the ordinance invalid on the sole ground that it is beyo nd the power of the lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is unnecessary. (Moday v. CA, Feb. 20, 1997) Role of National Government The approval of the national government is not required for local government s to exercise the power of eminent domain. Role of Judiciary a. Can inquire into the legality of the exercise of the right. b. Can determine whether there was a genuine necessity Only cities and municipalities can reclassify agricultural lands through the pro per ordinance after conducting public hearings for the purpose. Grounds for Reclassification of Land a. When the land ceases to be economically feasible and sound for agricultural p urposes as determined by the Department of Agriculture. b. When the land shall have substantially greater economic value for residential , commercial or industrial purposes as determined by the Sanggunian concerned.

MUNICIPAL LIABILITY 2005 notes: LGUs are not exempt from liability for death or injury 1. Specific Provisions of Law making LGUs liable Art 2189 CivCode: LGUs is liable for damage for death or injuries suffered by re ason of defective condition of roads,streets, bridges, public buildings and othe r public works. Art 34 CivCode: LGUs subsidiarily liable for damages suffered by a person by re ason of failure/refusal of member of police force to render aid and protection i n case of danger to life and property. 2. Liability for TORT a.if engaged in governmental functions it is not liable b.if engaged in proprietary functions, it is liable

3. Liability for violation of law Where Municipality closed a part of a municipal street without indemnifying the person prejudiced thereby, the Municipality can be held liable for damages.

Lack of Funds does not exclude the Municipality from paying the statutory minimu m wage of P120 a month to its employees. The payment of minimum wage is mandator y statutory obligation of the Municipality

4. Liability for Contracts 2005 notes:If contract is intra vires, LGU is liable, but if Ultra Vires, it is not liable. Doctrine of Implied Municipal Liability states that municipality may become ob ligated upon an implied contract to pay reasonable value of benefits accepted or appropriated by it as to which it has the general power to contract. 2005 notes: Doctrine applies to all cases where money or other property of a pa rty is received under such circumstances that general law, independent or an exp ress contract., implies an obligation to do justice with respect the same.

QUALIFICATIONS OF OFFICIALS 1. Filipino citizen 2. Registered voter in the barangay, municipality, city or province where he int ends ti be elected/Registered voter in the district where he intends to be elect ed in case of a member of the Sangguniang panlalawigan, Sangguniang panlungsod o r Sangguniang bayan. 3. Resident therein for at least 1 year immediately preceding the day of the ele ction. 4. Able to read and write Filipino/ any other local language or dialect 5. Age requirement AGE REQUIREMENT /POSITION at least 23 years old on election day A. Governor B. Vice-Governor C. Mayor, Vice-Mayor, member Of Sangguniang Panglungsod of highly urbanized cit ies at least 21 years old A. Mayor, B. Vice-Mayor of independent component cities, component cities or municipaliti

es at A. B. C. D. least 18 years old on Member of Sangguniang Member of Sangguniang Punong Barangay Member of Sangguniang election day Panglungsod Bayan Barangay

DISQUALIFICATIONS OF OFFICIALS 1. Those sentenced by final judgment for an offense involving moral turpitude, o r for an offense punishable by 1 year or more of imprisonment within 2 years aft er serving sentence 2. Those removed from office as a result of an administrative case. 3. Those convicted by final judgment for violating the oath of allegiance to the Republic 4. Those with dual citizenship 5. Fugitives from justice in criminal or non-political cases here or abroad 6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code 7. The insane or feeble minded Term of Office 1. Term of office: 3 years 2. No local elective official shall serve for more than 3 consecutive terms in t he same position 3. Voluntary renunciation of the office for any length of time shall be consider ed an interruption in the continuity of service for the full term for which the elective official concerned was elected. Vacancies 1. Permanent vacancy a. Grounds 1.Elective local official fills a higher vacant office 2.Refuses to assume office 3.Fails to qualify 4.Dies 5.Removed from office 6.Voluntarily resigns 7.Permanently incapacitated to discharge the functions of his of fice b. Filling of vacancy

AUTOMATIC SUCCESSION Highest 2. In ranking of the Vice-Governor, Vice-Mayorgovernor, 1. In the SUCCESSOR officeof the governor, mayor VACANCYtheofficeSanggunian member vice-governor, mayor or vice-mayor 3. In the office of the highest ranking Sanggunian member (who was supposed to f Highest ranking of the punong barangay 4. the vacant ranking of barangay member/2nd highest ranking sanggunian membe Second highest positionSanggunian member illIn the officesanggunianggovernor etc. r BY APPOINTMENT ( VERY IMPORTANT!) 1. Sanggunian WHOM APPOINTMENT BYPanlalawigan or Panlungsod of highly urbanized cities and independ VACANCY President, through Executive Secretary ent component cities Governor 2. Sangguniang Panlungsod of Component Cities, Sangguniang Bayan City/Municipal Mayor upon 3. Sangguniang Barangay Recommendation of the Sanggunian barangay concerned,such recommendation operates as condition sine qua non for validity of appointment (serves as nomination by political party since sang barangay are prohibited to have party affiliations) c. Ranking- It is determined on the basis of proportion of votes obtained by eac h winning candidate to the total number of registered voters in each district in the immediately preceding local election d. The general rule is that the successor (by appointment) should come from the same political party as the Sanggunian member whose position has become vacant. The exception would be in the case of vacancy in the Sangguniang barangay. 2. Temporary Vacancy a. Grounds (not exclusive list) 1.Leave of absence 2.Travel abroad 3.Suspension from office b. If the positions of governor, mayor or punong barangay become temporarily vac ant, the vice-governor, vice-mayor or highest ranking Sanggunian member will aut omatically exercise the powers and perform the duties and functions of the loca l chief executive concerned. c. Exception: He/she cannot exercise the power to appoint, suspend or dismiss e mployees. Exception to exception: If the period of temporary incapacity exceed s 30 working days. d. Termination of temporary incapacity 1. Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office 2. IF the temporary incapacity was due to legal reasons, the local chief executi ve should also submit necessary documents showing that the legal causes no long er exist. 3. Appointment of OIC a. The within eeding b. The local chief executive can designate in writing an OIC if he is traveling the country but outside his territorial jurisdiction for a period not exc 3 consecutive days. OIC cannot exercise the power to appoint, suspend or dismiss employees.

BAR: Melchor ,a city legal officer and Danilo, a city vice-mayor, filed certific ate of candidacy for the position of City Mayor in the May 16,2001 elections (b day ng pinsan ni 4blue 95).

Was Melchor ipso facto resigned,if so ,effective on what date? Melchor was considered ipso facto resigned upon the filing of his certificate of candidacy since being a city legal officer, he is an appointive official. The O mnibus Election Code so provides that any person holding a public appointive off ice shall be considered ipso facto resigned upon the filing of his certificate o f candidacy. With regard Danilo? Not considered ipso facto resigned since any elective official considered ipso facto resigned from office upon his filing of a certificate of candidacy for any office other than the one he is holding except for President and Vice President was repealed by the Fair election act. IPSO FACTO RESIGNED : Candidates holding appointive office or positions. Any person holding a public appointive office or position, including active memb ers of the Armed Forces of the Philippines, and officers and employees in govern ment-owned or controlled corporations, shall be considered ipso facto resigned f rom his office upon the filing of his certificate of candidacy. Candidates holding elective office(NOT DEEMED IPSO FACTO RESIGNED)only on last d ay of filing of certificate of candidacy.

BAR: Suppose A, a municipal mayor,went on a sick leave to undergo medical treatm ent for a period of 4 months, Will the municipal vice mayor be performing execut ive functions? HELD:Yes, the vice mayor shall be performing executive functions since the funct ion of the munical mayor are executive in nature. Will the vice mayor be also performing legislative function as presiding officer of the Sangguniang Bayan? HELD:NO, In Gamboa v Aguirre, the Vice mayor cannot continue as presiding office r of the Sangguniang bayan while he is acting municipal mayor.The temporary vaca ncy in office of mayor creates a temporary vacancy in office of vice mayor when latter acts as mayor ADMINISTRATIVE DISCIPLINE I. ELECTIVE OFFICIALS Grounds for Disciplinary Actions Disloyalty to the Republic of the Philippines Culpable violation of the Constitution Dishonesty, oppression, misconduct in office, gross negligence, or dereliction o f duty Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor Abuse of authority Unauthorized absence for fifteen (15) consecutive days, except in the case of me mbers of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan , and sangguniang barangay

Application for, or acquisition of, foreign citizenship or residence or the stat us of an immigrant of another country Such other grounds as may be provided in this Code and other laws. PROCEDURE 2005 notes: Pablico v. Villapando (July 31,2002) ruled that an ELECTIVE OFFICIAL may be REMOVED/DISMISSED from office on grounds enumerated above ONLY by the COURT of LAW. (1) Verified Complaint a. Provincial, highly urbanized city or independent component city elective offi cial shall be filed before the office of the President. 2005 notes: Constitution allows Congress to include in the LGC provisions for re moval of local officials,which suggest that Congress may exercise removal powers . 2005 notes: AO 23 states that the President has delegated the power to investiga te complaints to the Secretary of Interior and Local Government. This is valid s ince what is delegated is only power to investigate not power to discipline.In J oson v Torres, respondent has right to formal investigation under AO 23 followin g due process,as such, where Secretary denied petitioner s motion for formal inves tigation and decided case on basis of position papers,right of petitioner has be en violated. b.Elective municipal officials filed Sangguniang panlalawigan (decision must be si gned by majority of sanggunian), such is appealable to the Office of President c.Elective barangay officials- Snagguniang Panlungsod/Bayan whose decision shall be final and executory (2) Answer Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall require th e respondent to submit his verified answer within fifteen (15) days from receipt thereof (3) Investigation The investigation of the case shall be commenced within ten (10) days after rece ipt of such answer of the respondent. However, no investigation shall be held within ninety (90) days immediately prio r to any local election, and no preventive suspension shall be imposed within th e said period. RECALL It is exercised by the registered voters of a LGU to which the local elective of ficial subject to recall belongs. 1. GROUNDS = Loss of confidence 2. Initiation of Recall Process > Preparatory Recall Assembly ( PRA) 1. Composition 2. Procedure > Session in a public place to initiate recall proceeding > Resolution adopted by a majority of all the members of the PRA during the sess

ion called for the purpose of initiating recall proceedings Petition by Registered Voters 1. Petition OF at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. 2. The written petition for recall should be duly signed before the election reg istrar or his representativ and in the presence of the representative of the pe titioner and the official sought to be recalled. 3. It should be signed in a public place 4. Petition should be filed wit COMELEC through its office in the LGU concerned 5. Publication of petition for 10-20 days in order to verify the authenticity an d genuineness of the petition and the required % of voters. Recall Election a. The official/s sought to be recalled are automatically considered as duly re gistered candidates. b. The date set for the recall election should not be less than 30 days after f iling of resolution/petition in the case of barangay, city or municipal official s and 45 days in the case of provincial officials Effectivity of Recall a. Recall will only be effective upon the election and proclamation of a success or. b. IF the official sought to be recalled receives the highest number of votes, c onfidence in him is affirmed and he shall continue in office. Limitations on Recall a. Elective local official can be the subject of a recall election only onece du ring his term of office b. No recall shall take place within 1 year from the date of the officials assum ption to office or 1 year immediately preceding a regular local election.

PREVENTIVE SUSPENSION When can it be imposed a.After the issues are joined b.When the evidence of guilt is strong c.Given the gravity of the offense, there is great probability that the continua nce in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Preventive suspension may be imposed: a)By the President: if the respondent is an elective official of a province, a h ighly urbanized or an independent component city; b)By the governor:if the respondent is an elective official of a component city

or municipality; or c)By the mayor:if the respondent is an elective official of the barangay. 2005 notes: Authority is concurrently exercised by the Ombudsman pursuant to RA 6770 ? Preventive suspension may be imposed at any time after the issues are jo ined, when the evidence of guilt is strong, and given the gravity of the offense , there is great probability that the continuance in office of the respondent co uld influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. ? However, any single preventive suspension of local elective officials sh all not extend beyond sixty (60) days. ? Furthermore, in the event that several administrative cases are filed ag ainst an elective official, he cannot be preventively suspended for more than ni nety (90) days within a single year on the same ground or grounds existing and k nown at the time of the first suspension. ? Upon expiration of the preventive suspension, the suspended elective off icial shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred tw enty (120) days from the time he was formally notified of the case against him. 2005 Note: The respondent official preventively suspended from office shall rece ive no salary or compensation during such suspension; but upon subsequent exoner ation and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. 2005 Note: No preventive suspension shall be imposed within ninety (90) days imm ediately prior to any local election. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be dee med automatically lifted upon the start of the aforesaid period. 2005 Pointers: if case is already in crim court and person is arrested, you cann ot apply anymore for preventive suspension,since it is only valid for admin.cas es Rights of Respondent The respondent shall be accorded full opportunity to appear and defend himself i n person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary pr ocess of subpoena or subpoena duces tecum. Form and Notice of Decision ? The investigation of the case shall be terminated within ninety (90) day s from the start thereof. ? Within thirty (30) days after the end of the investigation, the Office o f the President or the sanggunian concerned shall render a decision in writing s tating clearly and distinctly the facts and the reasons for such decision. ? SUSPENSION: The penalty of suspension shall not exceed the unexpired ter m of the respondent or a period of six (6) months for every administrative offen se, nor shall said penalty be a bar to the candidacy of the respondent so suspen ded as long as he meets the qualifications required for the office.

? REMOVAL: The penalty of removal from office as a result of an administra tive investigation shall be considered a bar to the candidacy of the respondent for any elective position. Can Public Officer Recover Salary for Period of Suspension? RULES: he he cannot penalty period of from office, but was completely exonerated up BUT:hewas given suspended: NO,canIf he isrecovertheof removal his preventive suspension. If preventivelyfor subsequently exonerated, recoversalary salary. If he was YES, he can recover because he was from office, but his penalty was commuted fro on appeal:given penalty of removal completely exonerated. YES. If because mere removal from office is NO,the suspension /still found guilty although the penalty was reduced. m removal tohe wassuspension, or demotion: unjustified:

In summary, when can payment of salaries corresponding to the period when an emp loyee was suspended be allowed? (1) When he is found innocent of the charges which caused his suspension; (2) When the suspension is unjustified (Abellera v. City of Baguio)

ADMINISTRATIVE APPEALS Decisions in administrative cases may, within thirty (3) days from receipt there of, be appealed to the following: a)The sanggunian panlalawigan: in the case of decisions of: sangguniang panlung sod of component cities; and sangguniang bayan; b)The Office of the President: in the case of decisions of: the sangguniang panlalawigan; the sangguniang panlungsod of highly urbanized cit ies;The sangguniang panglungsod of independent component cities. Decisions of the Office of the President shall final and executory. In Mendoza v Laxina (July 14,2003) There is an appeal to the Office of the Pres ident and that after latter decides,such decision is not deemed final since the issue raised was purely legal as such resort to court was upheld. EXECUTION PENDING APPEAL An appeal shall not prevent a decision from becoming final or executory. The res pondent shall be considered as having been placed under preventive suspension du ring the pendency of an appeal in the event he wins such appeal. In the event th e appeal results in an exoneration, he shall be paid his salary and such other e moluments during the pendency of the appeal. 2005 notes:The re-election of local officicial bars continuation of admin case a gainst him since re-election tantamounts to condonation by the people of whatev er misdeeds he did.

II. APPOINTIVE OFFICIALS The local chief executive shall be responsible for human resources and developme nt in his unit and shall take all personnel actions in accordance w/ the Constit ution. In De Rama v CA (2003 case) it was held that the constitutional prohibition on s o-called midnight appointments , specifically those made within 2 mos prior to next presidential elections applies only to the President or Acting President. There is no law that prohibits local elective officials from making appointments duri ng the last days of their tenure absent fraud on their part, when such appointme nts are not tainted by irregularities or anomalies which breach laws governing a ppointments 2005 notes: Provincial Governor is without authority to designate the petitioner as Assistant Provincial Treasurer for Administration, because Sec 471 of LGC,it is the Secretary of Finance who has power to appoint Assistant Provincial Treas urers from a list of recommendees of the Provincial Governor

ADMINISTRATIVE DISCIPLINE: Investigation and adjudication of administrative complaints against appointive l ocal officials & employees as well as their suspension and removal shall be in accordance w/ Civil Service Law.

PREVENTIVE SUSPENSION: Local Chief Executive has jurisdiction TO PREVENTIVELY SUSPEND for period not ex ceeding 60 days any subordinate officials/employees under his authority pending investigation which charge involves DISHONESTY, OPPRESION, GRAVE MISCONDUCT or N EGLECT OF DUTY or if there is REASON TO BELIEVE THAT RESPONDENT IS GUILTY OF CHA RGES WHICH WOULD WARRANT REMOVAL FROM SERVICE. PENALTY IMPOSITION: The local Chief Executive (except otherwise provided by law) may impose penalty of removal from service, demotion in rank,suspension for not more that 1 year wi thout pay, fine in an amount not exceeding 6 mos salary or reprinmand. If penalty imposed is suspension w/o pay for not more than 30 days, his decision shall be final. If penalty is heavier, the decision shall be appeallable to the Civil Service Co mmission which shall decide the appeal within 30 days from receipt thereof. Garcia v Pajaro (July 5,2002) It is not the City Mayor but the City Treasurer wh o exercise disciplinary authority over a City Revenue Officer. As head of the of fice of the Treasurer and the Revenue Officer being officer under him, the forme r may validly investigate the said revenue officer and place him under preventiv e suspension. LOCAL INITIATIVE

It is the legal process whereby the registered voters of a LGU may directly prop ose, enact or amend any ordinance Note: In Garcia v. Comelec, the SC ruled that a resolution can also be the prope r subject of an initiative Who May Exercise Power It may be exercised by all registered voters of the provinces, cities, municipal ities, barangays. Procedure a. Number of voters who should file petition with Sanggunian concerned 1. Provinces and cities - at least 1000 registered voters 2. Municipality -at least 100 3. Barangay-at least 50 b. Sanggunian concerned has 30 days to act on the petition. If the Sanggunian do es not take any favorable action, the proponents may invoke the power of initia tive, giving notice to Sanggunian. c. Proponents will have the following number of days to collect required number of signatures 1. Provinces and cities-90 days 2. Municipalities-60 days 3. Barangays - 30 days d. Signing of petition e. Date for initiative set by Comelec if required number of signatures has been obtained. Effectivity of Proposition a. If proposition is approved by a majority of the votes cast, it will take effe ct 15 days after certification by the Comelec as if the Sanggunian and the loca l chief executive had taken affirmative action. b. IF it fails to obtain required number of votes, it is considered defeated Limitations a. It should not be exercised more than once a year. b. It can only extend to subjects or matters which are within the legal powers o f the Sanggunians to enact. c. If the Sanggunian adopts in toto the proposition presented and the local chie f executive approves the same, the initative shall be cancelled. Limitations upon Sanggunians a. The Sanggunian cannot repeal, modify or amend any proposition or ordinance ap proved through system of initiative/referendum within 6 months from the date of approval thereof. b. The Sanggunian can amend, modify or repeal the proposition/ordinance w/in 3 y ears thereafter by a vote of of all its members. c. For barangays, the applicable period is 18 months.

LOCAL

REFERENDUM

It is the legal process whereby the registered voters of the local government un its may approve, amend or reject any ordinance enacted by the Sanggunian. Authority of Courts The proper courts can still declare void any proposition adopted pursuant to an initiative/referendum on the following grounds a. Violation of the Constitution b. Want of capacity of the Sanggunian concerned to enact the measure. NATIONAL GOVERNANCE ( Public Officers 2007 ) A public office is the right, authority and duty created and conferred by law, b y which for a given period, either fixed by law or enduring at the pleasure of t he appointing power, an individual is invested with some portion of the sovereig n functions of the government, to be exercised by him for the benefit of the pub lic. Purpose and Nature A public office is created to effect the end for which government has been insti tuted which is the common good; not profit, honor, or private interest of any p erson, family or class of persons (63 A Am Jur 2d 667) Nature: (1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti) (2) It is a responsibility and not a right. (Morfe v. Mutuc) Elements 1.Must be created either by (a) the Constitution, (b) the Legislature, or (c) a municipality or other body through authority conferred by the Legislature (BY D ELEGATION) 2.Must possess a delegation of a portion of the sovereign power of government, t o be exercised for the benefit of the public; 3.The powers conferred and the duties discharged must be defined, directly or im pliedly by the Legislature or through legislative authority; 4.The duties must be performed independently and without control of a superior p ower other than the law; Exception: If the duties are those of an inferior or subordinate office, create d or authorized by the Legislature and by it placed under the general control of a superior office or body; 5.Must have some permanency and continuity Note: This is not to be applied literally. The Board of Canvassers is a public office, yet its duties are only for a limited period of time. Public Officer v. Public Employment Public employment is broader than public office. All public office is public em ployment, but not all public employment is a public office. Generally, a position is a public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovere ign power, and in the performance of which the public is concerned. Public empl oyment is a position which lacks one or more of the foregoing elements. No vested right to public office

GENERAL RULE: A public office, being a mere privilege given by the state, does not vest any rights in the holder of the office. This rule applies when the la w is clear. EXCEPTION:When the law is vague, the person s holding of the office is protected a nd he should not be deprived of his office. Segovia v. Noel It is a fundamental principle that a public office cannot be regarded as the pro perty of the incumbent and that a public office is not a public contract. Nonet heless, Act. No. 3107 should be given a prospective effect in the absence of leg islative intent to the contrary. Although there is a vested right to an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms s hould be clear. Agcaoili v. Suguitan The Supreme Court held that Agcaoili had not ceased to be a justice of the peace by operation of Act No. 3107. The Segovia ruling was reiterated, i.e. Act No. 3107 should be given prospective effect only, as there was no express statement making the law applicable retroactively.

Public Office v. Public Contract Public Office Contract Creation Incident of sovereignty Originates from will of contracting parties Object Carrying out of sovereign as well as governmental functions affecting even perso ns not bound by the contract Obligations imposed only upon the persons who entered into the contract Subject Matter Tenure, duration, continuity Limited duration Scope Duties that are generally continuing and permanent Duties are very specific to the contract Where duties are defined The law Contract

PUBLIC OFFICE NOT PROPERTY A public office is not the property of the public officer within the provision o f the Constitution against deprivation of property without due process of law or within an agreement in a treaty not to impair the property or rights of private

individuals. Exceptions: (1) In quo warranto proceedings relating to the question as to which of 2 perso ns is entitled to a public office (2) In an action for recovery of compensation accruing by virtue of the public office Cornejo v. Gabriel Due process is violated only if an office is considered property. However, a pu blic office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not ru lers of the people, no man has a proprietary or contractual right to an office. Every officer accepts office pursuant to law and holds office as a trust for th e people whom he represents. Abeja v. Tanada Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit. Scope and Extent of Power of legislature GENERAL RULE: ion. The creation of a public office is primarily a legislative funct

Exceptions: (1) where the offices are created by Constitution; (2) where the Legislature delegates such power. Delegation of power to create public office Q: What is the effect where an office is created pursuant to illegally delegate d powers? A: The office would have no existence. U.S.T. v. Board of Tax Appeals The authority given to the President to "reorganize within one year the differen t executive departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and can not be extended to other matters not embraced therein. Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involvin g recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various co urts." Methods of Organizing office (1) Single-head: one head assisted by subordinates. Swifter decision and actio ns but may sometimes be hastily made. (2).Board System: collegial body in formulating polices and implementing progra ms. Mature studies and deliberations but may be slow in responding to issues a nd problems. MODIFICATION AND ABOLITION

GENERAL RULE: The power to create an office includes the power to modify or ab olish it. (i.e., this is generally a legislative function) EXCEPTIONS: (1) Where the Constitution prohibits such modification / abolition; (2) Where the Constitution gives the people the power to modify or abolish the o ffice; Ocampo v. Secretary of Justice The legislative power to create a court carries with it the power to abolish it. When the court is abolished, any unexpired term is abolished also. Zandueta v. De la Costa RULE: When a public official voluntarily accepts an appointment to an office ne wly created by law -- which new office is incompatible with the former -- he wil l be considered to have abandoned his former office. Exception: When the non-acceptance of the new appointment would affect public i nterest, and the public official is thereby constrained to accept. Estoppel to deny existence of office Q: When is a public officer estopped from denying that he has occupied a public office? A: When he has acted as a public officer, esp. where he has received public mon ies by virtue of his office. PUBLIC OFFICER A public officer is one who performs public functions / duties of government by virtue of direct provision of law, popular election, or appointment by competent authority. His duties involve the exercise of discretion in the performance of the functions of the government, and are not of a merely clerical or manual nat ure. (See Sec. 2 (14), E.O. 292) Note: For the purpose of applying the provisions of the Revised Penal Code, emp loyees, agents, or subordinate officials, of any rank or class, who perform publ ic duties in the government or in any of its branches shall be deemed as public officers. Illustrations: In the case of Maniego v. People, a laborer who was in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for briber y under RPC 203. The court held that even temporary performance of public funct ions is sufficient to constitute a person as a public official. In the case of People v. Paloma, a sorter and filer of money orders in the Audit or's Office of the Bureau of Posts was convicted for infidelity in the custody o f documents. The court pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously a public function or duty. Who are not considered public officers? Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co. v. CIR); Concession forest guards (Martha Lumber Mill v. Lagradante); Company cashier of a private corporation owned by the government (Tanchoco v. GS IS) May a person be compelled to accept a public office?

GENERAL RULE:NO. EXCEPTIONS: (1).When citizens are required, under conditions provided by law, to render pers onal military or civil service (Sec. 4, Art. II, 1987 Const.); (2)When a person who, having been elected by popular election to a public office , refuses without legal motive to be sworn in or to discharge the duties of said office (Art. 234, RPC; Note: the penalty shall be either arresto mayor, or a fine not exceeding P 1,000.00, or both) No presumption of power Villegas v. Subido No presumption that they are empowered to act. There must be a delegation of su ch authority, either express or implied. In the absence of a valid grant, they are devoid of power.

DE FACTO OFFICERS De Facto Doctrine It is the principle which holds that a person, who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void. Purpose for the doctrine: It is to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him. De Facto Officer defined Q: When is a person a de facto officer? A: Where the duties of the office are exercised under any of the following cir cumstances: Without a known appointment or election, but under such circumstances of reputat ion or acquiescence as were calculated to induce people, without inquiry, to sub mit to or invoke his action, supposing him to the be the officer he assumed to b e; or Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking a n oath or giving a bond); Under color of a known election or appointment, void because: -the officer was not eligible; -there was a want of power in the electing or appointing body;

-there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. Under color of an election or an appointment by or pursuant to a public, unconst itutional law, before the same is adjudged to be such. 2005 Notes: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (N orton v. County of Shelby) Elements of a De Facto Officership (1) De jure office (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith 2005 Notes: This is not absolutely true. An intruder / usurper may ripen into a de facto officer.

Officer De Jure v. Officer De Facto De Jure Facto Requisites (1) Existence of a de jure office; (2) must possess the legal qualifications for the office in question; (3) must be lawfully chosen to such office; (4) must have qualified himself to perform the duties of such office according t o the mode prescribed by law. (1) De jure office; (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith

Basis of Authority Right: he has the lawful right / title to the office Reputation: Has the possession and performs the duties under color of right, wi thout being technically qualified in all points of law to act How ousted Cannot be ousted. Only by a direct proceeding (quo warranto); not collaterally Validity of official acts Valid, subject to exceptions (e.g., they were done beyond the scope of his autho

rity, etc.) Valid as to the public until such time as his title to the office is adjudged in sufficient. Rule on Compensation Entitled to compensation as a matter of right; The principle of "no work, no pay" is not applicable to him. Entitled to receive compensation only during the time when no de jure officer is declared; He is paid only for actual services rendered by him. Officer De Facto v. Intruder Intruder De Facto Nature Officer under any of the 4 circumstances discussed under Part II (above). One who takes possession of an office and undertakes to act officially without a ny authority, either actual or apparent Basis of authority Color of right or title to office None. He has neither lawful title nor color of right or title to office. Validity of "official" acts Valid as to the public until such time as his title to the office is adjudged in sufficient Absolutely void; they can be impeached at any time in any proceeding (unless an d until he continues to act for so long a time as to afford a presumption of his right to act) Rule on compensation Entitled to receive compensation only during the time when no de jure officer is declared; He is paid only for actual services rendered by him. Not entitled to compensation at all.

Q: Can an intruder / usurper ripen into a de facto officer? A: Yes. With the passage of time, a presumption may be created in the minds of the public that the intruder has a right to act as a public officer. Q: Is good faith a factor in the ripening of intruder status into de facto stat us? A: Yes. HOWEVER, it must be noted that the good faith must be on the part of the public; not on the part of the intruder. Examples of De Facto Officers A judge who continued to exercise his duties after his appointment was disapprov ed by the CA according to a newspaper report, but before receiving the official notification regarding the rejection of his appointment (Regala v. Judge of CFI) ; A lawyer instructed by the Acting Provincial Governor to file an information for

homicide, where the latter had no authority to designate him as assistant fisca l, and where the DOJ had not authorized him to act as such (People v. Penesa); A third-ranking councilor who is designated to act as mayor by an officer other than the proper appointing authority prescribed by law, and lacking the consent of the Provincial Board (Codilla v. Martinez) Examples of those not considered as De Facto Officers A judge who has accepted an appointment as finance secretary and yet renders a d ecision after having accepted such appointment (Luna v. Rodriguez); A judge whose position has already been abolished by law, and yet promulgates a decision in a criminal case after the abolition and over the objection of the fi scal (People v. So) Legal Effect of Acts of De Facto Officers As regards the officers themselves GENERAL RULE: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer. As regards the public and third persons GENERAL RULE: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient. Official Acts of De Facto Officers not subject to collateral attack RULE: The title of a de facto officer and the validity of his acts cannot be co llaterally questioned in proceedings to which he is not a party, or which were n ot instituted to determine the very question. REMEDY: Quo warranto proceedings Who The The lic may file: person who claims to be entitled to the office; Republic of the Philippines, represented by the Solicitor-General; or a pub prosecutor

Nueno v. Angeles In this case, there were four (4) petitioners seeking to oust six (6) Board Memb ers. The Court held that this could not be done unless all 4 of them were entit led to the offices of the 6. Liabilities of De Facto Officers The liability of a de facto officer is generally held to be the same degree of a ccountability for official acts as that of a de jure officer. The de facto officer may be liable for all penalties imposed by law for any of t he following acts: -usurping or unlawfully holding office; -exercising the functions of public office without lawful right; -not being qualified for the public office as required by law. The de facto officer cannot excuse his responsibility for crimes committed in hi s official capacity by asserting his de facto status.

ELIGIBILITY AND QUALIFICATIONS Eligibility which is the term usually used in reference to the Civil Service La w, refers to the endowment / requirement / accomplishment that fits one for a p ublic office. Qualification generally refers to the endowment / act which a person must do bef ore he can occupy a public office. Power to Prescribe Qualifications

GENERAL RULE:Congress is empowered to prescribe the qualifications for holding public office, subject to the following restrictions: Congress cannot exceed its constitutional powers; Congress cannot impose conditions of eligibility inconsistent with constitutiona l provisions; The qualification must be germane to the position ("reasonable relation" rule); Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment. (Legislative appointments are unconstitutional and ther efore void for being a usurpation of executive power.); Where the Constitution establishes specific eligibility requirements for a parti cular constitutional office, the constitutional criteria are exclusive, and Cong ress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications. Q: What legislative enactments are tantamount to legislative appointments? Extensions of the terms of office of the incumbents; The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them neces sarily having to possess the required constitutional qualifications of a regular Supreme Court Justice. (Vargas v. Rilloraza); A proviso which limits the choices of the appointing authority to only one eligi ble, e.g. the incumbent Mayor of Olongapo City (Flores v. Drilon); A legislative enactment abolishing a particular office and providing for the aut omatic transfer of the incumbent officer to a new office created (contemplated in Manalang v. Quitoriano); A provision that impliedly prescribes inclusion in a list submitted by the Execu tive Council of the Phil. Medical Association as one of the qualifications for a ppointment; and which confines the selection of the members of the Board of Med ical Examiners to the 12 persons included in the list (Cuyegkeng v. Cruz) ; Manalang v. Quitoriano Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from: the need of securing the concurrence of the Commission on Appointments; and The exercise of the limited legislative power to prescribe the qualifications t o a given appointive office. Cuyegkeng v. Cruz The power of appointment vested in the President by the Constitution connotes ne cessarily a reasonable measure of freedom, latitude, or discretion in the exerci se of the power to choose appointees. Flores v. Drilon Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goe

s against the very nature itself of appointment. Time of Possession of Qualifications Q: When must the qualifications be possessed? Where the time is specified by the Constitution or law at the time specified Where the Constitution or law is silent: There are 2 views: (1) qualification must be at the time of commencement of term or induction into office; (2) qualification / eligibility must exist at the time of the election or appoin tment * Eligibility is a continuing nature, and must exist throughout the holding of t he public office. Once the qualifications are lost, then the public officer for feits the office. Castaneda v. Yap Knowledge of ineligibility of a candidate and failure to question such ineligibi lity before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. Frivaldo v. COMELEC The citizenship requirement must be met only on election day. While the Local G overnment Code requires one year residency immediately preceding election day an d the prescribed age on election day, no date is specified for citizenship. The purpose of the citizenship requirement is to ensure leaders owing allegiance to no other country. Such purpose is not thwarted, but instead achieved by constr uing the requirement to apply at time of proclamation and at the start of the te rm.

QUALIFICATIONS: a)President (Sec. 2, Art. VI, Constitution) Vice President (Sec. 3, Art. VII, C onstitution) * Natural-born citizen * 40 years old on day of election

* resident of the Philippines for at least 10 yrs immediately preceding election day b) Senator (Sec. 3, Art. VI, Constitution)

* Natural-born citizen * 35 years old on day of election * able to read and write * registered voter * resident of the Philippines for not less than two years immediately preceding election day c) * * * * * d) * * * * Congressmen (Sec. 6, Art. VI, Constitution) Natural-born citizen 25 years old on day of election able to read and write registered voter in district in which he shall be elected resident thereof for not less than one year immediately preceding election day Supreme Court Justice Natural born citizen at least 40 years old 15 years or more a judge or engaged in law practice of proven CIPI (competence, integrity, probity and independence)

e)Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution) * Natural-born citizen * 35 years old at time of appointment * proven capacity for public administration * not a candidate for any elective position in elections immediately preceding a ppointment

f)

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

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

* Natural-born citizen * 35 years old at time of appointment * CPA with >10 year of auditing experience or * Bar member engaged in practice of law for at least 10 years * Not have been candidates for elective position in elections immediately preced ing appointment Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of

service which requires the use in any degree of legal knowledge or skill. Aquino v. COMELEC:Residency of not less than 1 year prior to the elections for t he position of Congressman. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his permanent home, wher e he intends to return. To successfully effect a change of domicile, the candi date must prove an actual removal or an actual change of domicile. Here, it was held that leasing a condominium unit in the district was not to acquire a new r esidence or domicile but only to qualify as a candidate. Marcos v. COMELEC:Domicile, which includes the twin elements of actual habitual residence, and animus manendi, the intention of remaining there permanently. It was held that domicile of origin is not easily lost, and that in the absence of clear and positive proof of a successful change of domicile, the domicile of or igin should be deemed to continue. Religious Test or Qualification No religious test shall be required for the exercise of civil or political right s. (Art. III, Sec. 5, 1987 Constitution) Distinguish between designation and appointment. Selection Imposition Definitionof Appointment additional duties upon a existing office Designationofan individual to occupy ancertain public office by one authorized b Assumption abandonment of position is When Yes. No. Security Powers Comprehensive Limitedofof tenure? Extentto make a designated prior officenot deemed abandonment of the 1st positio y lawdeemedof such selection nssumption of a 2nd appointive position is usually deemed abandonment of the fir A st office. FORMATION OF OFFICIAL RELATION Modes of Commencing Official Relation Election Appointment Others: (i) Succession by operation of law; (ii) Direct provision of law, e.g. ex-oficio officers 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 wi th the appointing authority. Constitutional Provisions Q: Who can the President nominate and appoint with the consent of the Commissio n on Appointments? A: Heads of the executive departments (Art. VII, Sec. 16, 1987 Const.); Ambassadors (ibid); Other public ministers and consuls (ibid); Officers of the armed forces from the rank or colonel or naval captain (ibid); Other officers whose appointments are vested in him by the Constitution (ibid), including Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IXC, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA). Q: Who can the President appoint without the need for CA approval? A: All other officers of the government whose appointments are not otherwise pr ovided for by law;

Those whom he may be authorized by law to appoint; Members of the Supreme Court;Note: To be appointed from a list of at least 3 no minees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.) Judges of lower courts;Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.) Ombudsman and his deputiesNote: To be appointed from a list of at least 6 nomin ees prepared by the Judicial and Bar Council, and from a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.) Q: Does the President have the power to make appointments when Congress is in r ecess? A: Yes. However, such appointments shall be effective only until: (1) disapproval by the Commission on Appointments; or (2) the next adjournment of the Congress (Sec. 16, Art. VII, 1987 Const.)

Q: What is the effectivity of appointments extended by an Acting President? A: Such appointments shall remain effective unless revoked by the elected Presi dent within 90 days from his assumption or reassumption of office. (Sec. 14, Ar t. VII, 1987 Const.) QUALIFICATION STANDARDS AND REQUIREMENTS UNDER THE CIVIL SERVICE LAW Qualification Standards: Express the minimum requirements for a class of positions in terms of education , training and experience, civil service eligibility, physical fitness, and othe r qualities required for successful performance. (Sec. 22, Book V, EO 292) A statement of the minimum qualifications of a position which shall include educ ation, experience, training, civil service eligibility, and physical characteris tics and personality traits required by the job. (Sec. 2, Rule IV, Omnibus Rule s) With respect to a particular position, such qualification standards shall serve as the basis for the determination by the appointing authority of the degree of qualifications of an officer or employee (ibid); Shall be used as basis for civil service examinations for positions in the caree r service, as guides in appointment and other personnel actions, in the adjudica tion of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies' personnel work programs (ibid); Shall be administered in such manner as to continually provide incentives to off icers and employees towards professional growth and foster the career system in the government service (ibid);It shall be the responsibility of the departments and agencies to establish, administer and maintain the qualification standards o n a continuing basis as an incentive to career advancement. (Sec. 7, Rule IV, O mnibus Rules) Their establishment, administration, and maintenance shall be the responsibility of the department / agency, with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office (ibid);Whenever ne cessary, the CSC shall provide technical assistance to departments and agencies in the development of their qualification standards. (Sec. 5, Rule IV, Omnibus Rules) Shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules);

Political Qualifications for an Office GENERAL RULE: Political qualifications are not required for public office.

EXCEPTIONS: Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); Party-list representation; Commission on Appointments; Vacancies in the Sanggunian (Sec. 45, Local Government Code) Property Qualifications In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Court struck down R.A. 4421 which required candidates for national, provincial, city and muni cipal offices to post a surety bond equivalent to the one-year salary or emolume nts of the position to which he is a candidate, which shall be forfeited in favo r of the govt. concerned if the candidate fails to obtain at least 10% of the vo tes cast. The Supreme Court held that property qualifications are inconsistent with the na ture and essence of the Republican system ordained in our Constitution and the p rinciple of social justice underlying the same. Aliens not eligible to public office This is self-explanatory. Effect of removal of qualifications during the term Q: What happens if the qualification is lost which the officer is holding offic e? A: The officer must be terminated. Effect of pardon upon the disqualification to hold public office GENERAL RULE: A pardon shall not work the restoration of the right to hold public office. (Art. 36, Revised Penal Code) Exceptions: (1) Where such right to hold public office is expressly restored by the terms o f the pardon (Art. 36, RPC); (2) When a person is granted pardon because he did not commit the offense imput ed to him (Garcia v. Chairman, COA) Rules governing effects of pardon: (1) A public official who has been convicted of a crime but has been pardoned m ust secure a reappointment before he / she can reassume his / her former positio n. (Monsanto v. Factoran) Note: Acquittal is the only ground for automatic reinstatement of a public offi cer to his / her former position. (2) Pardon does not exempt the culprit from payment of the civil indemnity impo sed upon him / her by the sentence. (Art. 36, par. 2, RPC) (3) A convicted public official who has been pardoned is not entitled to backpa y and other emoluments due to him during the period of his suspension pendente l ite. (Monsanto v. Factoran)

Discretion of appointing official Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the officers concerned, prim arily the department heads. They are in the most favorable position to determin e who can best fulfill the functions of the office thus vacated. Unless, theref ore, the law speaks in the most mandatory and peremptory tone, considering all t he circumstances, there should be, as there has been, full recognition of the wi de scope of such discretionary authority. (Reyes v. Abeleda) Appointment is an essentially discretionary power and must be performed by the o fficer in which it is vested according to this best lights, the only condition b eing that the appointee should possess the qualifications required by law. (Lap inid v. CSC) The only function of the CSC is to review the appointment in the light of the re quirements of the Civil Service Law, and when it finds the appointee to be quali fied and all other legal requirements have been otherwise satisfied, it has no c hoice but to attest to the appointment. It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC) To hold that the Civil Service Law requires that any vacancy be filled by promot ion, transfer, reinstatement, reemployment, or certification in that order would be tantamount to legislative appointment which is repugnant to the Constitution . The requirement under the Civil Service Law that the appointing power set for th the reason for failing to appoint the officer next in rank applies only in ca ses of promotion and not in cases where the appointing power chooses to fill the vacancy by transfer, reinstatement, reemployment or certification, not necessar ily in that order. (Pineda v. Claudio) The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the a ppointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and all the legal requirements are satisfied, the CSC has no choice but to attest to the appointment. (Luego v. CSC) Appointment is a political question. Where the palpable excess of authority or abuse of discretion in refusing to iss ue promotional appointment would lead to manifest injustice, mandamus will lie t o compel the appointing authority to issue said appointments. (Gesolgon v. Lacs on) Effectivity of Appointment Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Om nibus Rules). WHEN APPOINTMENT BECOMES COMPLETE, FINAL AND IRREVOCABLE GENERAL RULE:An appointment, once made, is irrevocable and not subject to reconsideration. Qualification:Where the assent, confirmation, or approval of some other officer or body is needed before the appointment may be issue and be deemed complete. Exceptions: (1) When the appointment is an absolute nullity (Mitra v. Subido);

(2) When there is fraud on the part of the appointee (Mitra v. Subido); (3) Midnight appointments A completed appointment vests a legal right. It cannot be taken away EXCEPT fo r cause, and with previous notice and hearing (due process). Midnight appointments A President or Acting President is prohibited from making appointments 2 months immediately before the next presidential elections and up to the end of his term . (Art. VII, Sec. 15, 1987 Const.) Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

ASSUMPTION AND TERM OR TENURE OF OFFICE Qualification to Office Appointment and Qualification to Office Distinguished Appointment and qualification to office are separate and distinct things. Appoi ntment is the act of being designated to a public office by the appointing autho rity. Qualification is the act of signifying one's acceptance of the appointive position. This generally consists of the taking / subscribing / filing of an o fficial oath, and in certain cases, of the giving of an official bond, as requir ed by law. No one can be compelled to accept an appointment. Lacson v. Romero The appointment to a government post involves several steps: (1) the President nominates; (b) the Commission on Appointments confirms the appointment; and (c) the appointee accepts the appointment by his assumption of office. The first 2 steps are mere offers to the post but the last step rests solely with the appoin tee who may or may not accept the appointment. Borromeo v. Mariano A judge may not be made a judge of another district without his consent. Appoin tment and qualification to office are separate and distinct things. Appointment is the sole act of the appointee. There is no power which can compel a man to accept the office. Effect of Failure to Qualify

Failure to qualify is deemed evidence of refusal of the office. It is a ground for removal: If qualification is a condition precedent:Failure to qualify ipso facto deemed r ejection of the office If not condition precedent:Failure is not ipso facto rejection Justifiable reasons for delay in qualifying include sickness, accident, and othe r 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 begin s. OATH OF OFFICE An oath is an outward pledge whereby one formally calls upon God to witness to t he truth of what he says or to the fact that he sincerely intends to do what he says. Although the law usually requires the taking of an oath, it is not indispensable . It is a mere incident to the office and constitutes no part of the office its elf. However, the President, Vice-President and Acting President are required b y the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before ente ring into the execution of their office. Such oath-taking is mandatory.

Q: Who are authorized to administer oaths? (1) Notaries public; (2) Judges; (3) Clerks of court; (4) Secretary of House / Senate; (5) Secretary of Exec. Departments; (6) Bureau Directors; (7) Register of Deeds; (8) Provincial governors; (9) City mayors; (10) Municipal mayors; (11) Any other officer in the service of the government of the Philippines whose appointment is vested in the President; (12) Any other officer whose duties, as defined by law or regulation, require pr esentation to him of any statement under oath Q: Who are obliged to administer oaths in all instances, and not just in matter s of official business? (1) Notaries public; (2) Municipal judges; (3) Clerks of court Time of Taking the Oath of Office

A public officer must take his oath of office before entering upon the discharge of his duties. Requalification If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition precedents before assuming office. The oath and ot her qualifications made prior to assumption of his previous office will not be v alid for subsequent terms of office. GIVING OF BONDS Persons required to give bond Q: Who are the public officers generally required to give a bond? (1) Accountable public officers or those to whom are entrusted the collection and custody of public money; (2) Public ministerial officers whose actions may affect the rights and interes ts of individuals. The bond is in the nature of an indemnity bond rather than a penal or forfeiture bond. The bond is also an obligation binding the sureties to make good the officer s def ault. It is required not for the benefit of the office holder, but for the prot ection of the public interest and is designed to indemnify those suffering loss or injury by reason of misconduct or neglect in office. Effect of Failure to Give Bond within the Prescribed Period If not condition precedent:Failure to give bond merely constitutes a ground for forfeiture of the office; it is not forfeiture of the office ipso facto. IF condition precedent:Failure to give bond within the prescribed period renders the office vacant.

TERM AND TENURE OF OFFICE Fixed De jure Office Tenureand definite Term ofof Office period of time during which the officer may claim to hold the facto Period during right the incumbent actually holds the office. It may be shorter office as of which than the term Alba v. Evangelista It is only in those cases in which the office is held at the pleasure of the appointing power and where the power of removal is exercisable at its mere d iscretion that the officer may be removed without notice or hearing. Power of the Legislature to Fix and Change the Term of Office RULES: Where the term is fixed by the Constitution: Congress has no power to alter t he term. However, such term of office can be shortened or extendedby the vote of the peop le ratifying a constitutional amendment.

Where the term is not fixed:Congress may fix the terms of officers other than th ose provided for in the Const. Congress has the power to change the tenure of officers holding offices created by it. However, if the term is lengthened and made to apply to the incumbents, this could be tantamount to a legislative appointment which is null and void. When Term of Office Dependent upon "Pleasure of the President" Congress can legally and constitutionally make the tenure of certain officials d ependent upon the pleasure of the President. (Alba v. Evangelista) Where the office is held at the pleasure of the appointing power and such appoin ting power can exercise the power of removal at his mere discretion, the public officer may be removed without notice or hearing. (Alba v. Evangelista) No Vested Interest in Term of Office Public office is a privilege revocable by the sovereignty at will. An in cumbent cannot validly object to the alteration of his term since he has no vest ed right in his office. (Greenshow v. U.S.) Term of Office Not Extended by Reason of War There is no principle, law or doctrine by which the term may be extended by reason of war. (Nueno, et al. v. Angeles)

DOCTRINE OF HOLDOVER A public officer whose term has expired or services have been terminated is allo wed to continue holding his office until his successor is appointed or chosen an d had qualified. (Mechem) Purpose of the Hold-Over Rule Public interest. It is to prevent a hiatus in the government pending the time w hen a successor may be chosen and inducted into office. Holding-Over Rules 1.Where the law provides for it:The office does not become 2.vacant upon the expiration of the term if there is no successor elected and qu alified to assume it. Incumbent will hold-over even if beyond the term fixed by law. 3.Where the law is silent:Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over.

4.Where the Constitution limitsthe term of a public officer anddoes not provide for hold-over:Hold-over is not permitted. COMMENCEMENT OF TERM OF OFFICE RULES: (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 elec tion or the appointment.

CLASSIFICATION OF POWERS Ministerial Discretionary Definition Acts which require the exercise of reason in determining when, where, and how to exercise the power Acts which are performed in a given state of facts, in a prescribed manner, in o bedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done (Lamb v. Phi pps)

Can be delegated? Generally, NO. Exception: When the power to substitute / delegate has been given Generally, YES. Exception: When the law expressly requires the act to be performed by the officer in person and / or prohibits such delegation When is mandamus proper? Only if the duty to do something has been delayed for an unreasonable period of time. In all cases. Is public officer liable? Generally not liable Exceptions: if there is fraud or malice Liable if duty exercised contrary to the manner prescribed by law. POWERS AND DUTIES OF PUBLIC OFFICERS Source of Government Authority:The people, the sovereignty. Lo Cham v. Ocampo The duties of a public office includes all those which truly are within its scop e: (1) those which are essential to the accomplishment of the main purpose for whic h the office was created; or (2) those which, although incidental or collateral, are germane to and serve to promote the accomplishment of the principal purpose. Territorial Extent of Powers of Public Officer GENERAL RULE:Where a public officer is authorized by law to perform the duties o f his office at a particular place, action at a place not authorized by law is o rdinarily invalid. (Note: This rule is applicable to all public officers whose duties are essentially local in nature, e.g. judges.) EXCEPTIONS: (1) Consuls; (2) Police officers, who may arrest persons for crimes committed outside Philipp ine territory; (3) Doctrine of hot pursuit Duration of Authority of Public Officers The duration of the authority of public officers is limited to that term during which he is, by law, invested with the rights and duties of the office. Construction of Grant of Powers Strict construction. Will be construed as conferring only those powers which ar e expressly imposed or necessarily implied. Lamb v. Phipps Auditors and comptrollers, as accounting officers, are generally regarded as qua si-judicial officers. They perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to law. Except in such cas es, the action of the accounting officers upon claims coming before them for set tlement and certification of balances found by them to be due, is not merely min isterial but judicial and discretionary. Mandamus will therefore not issue. Torres v. Ribo The powers of the Board of Canvassers are quasi-judicial and therefore discretio nary.

Aprueba v. Ganzon Mandamus will not issue to control or review the exercise of discretion of a pub lic officer where the law imposes on him the right or duty to exercise judgment in reference to any matter in which he is required to act. The privilege of operating a market stall under license is not absolute but rev ocable under an implied lease contract subject to the general welfare clause. Mandamus never lies to enforce the performance of contractual obligations. Miguel v. Zulueta Public officers may properly be compelled by mandamus to remove or rectify an u nlawful act if to do so is within their official competence. When will the writ of mandamus issue? To correct a gross abuse of discretion, a palpable excess of authority resulting in manifest injustice (Gesolgon v. Lacson); Where the question of constitutionality is raised by the petitioner (Cu Unjieng v. Patstone); Q: (1) (2) (3) f a When will the writ of mandamus never issue? To control discretion; When another adequate remedy exists; To enforce the performance of contractual obligations, as in the issuance o license / permit (Aprueba v. Ganzon);

Q: In filing a mandamus suit, when does a taxpayer not have to show that he has any legal or special interest in the results of such suit? A: When the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, such as the observance of the law. ( Miguel v. Zulueta) TIME OF EXECUTION OF POWERS Where not indicated: Where indicated: Within a reasonable time Merely directory

Exceptions: -When there is something in the statute which shows a different intent (Araphoe City v. Union Pac); -Where a disregard of the provisions of the statute would injuriously affect a p ublic interest or public right; -When the provision is accompanied by negative words importing that the acts sha ll not be done in any other manner or time than that designated. Ratification of Unauthorized Acts If act was absolutely void at the time it was done:Cannot be ratified If merely voidable:Can be ratified and rendered valid Where superior officers have authority to ratify the acts of their inferiors, th ey are restricted to the ratification of acts and contracts which they themselve s are empowered to make. It is not enough that the public officer acted beyond his powers in order that h e may be held liable for damages. If the act committed is reasonably related to his duties and the officer was in good faith, he will not be held liable. Government not estopped by the unauthorized or Illegal acts of officers As between an individual and his government, the individual cannot plead the voi

d act of an official to shield him from the demand of the government that he (th e individual) fulfill an obligation which he has contracted with the government, after the benefits accruing to him as a result of that obligation have been rec eived. The government can neither be estopped nor prejudiced by the illegal act s of its servants. (Government v. Galarosa) Hilado v. Collector A tax circular issued on a wrong construction of the law cannot give rise to a v ested right that can be invoked by a taxpayer. Accountability and Responsibility of Public Officers and Employees Norm of Performance of Duties Q: What are the standards of personal conduct provided for in Sec. 4, RA 6713? (1) Commitment to public interest; (2) Professionalism; (3) Justness and sincerity; (4) Political neutrality; (5) Responsiveness to the public; (6) Nationalism and patriotism; (7) Commitment to democracy; (8) Simple living RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS Right to Office The right to office is the right to exercise the powers of the office to the exc lusion of others. Right to Salary or Compensation GENERAL RULES: A public officer is not entitled to compensation for services rendered under an unconstitutional statute or provision thereof. Exception: If some other statute provides otherwise. If no compensation is fixed by law, the public officer is assumed to have accept ed the office to serve gratuitously. After services have been rendered by a public officer, the compensation thus ear ned cannot be taken away by a subsequent law. However, he cannot recover salary for a period during which he performed no services. One without legal title to office either by lawful appointment or election and q ualification is not entitled to recover salary or compensation attached to the o ffice. One who intrudes into or usurps a public office has no right to the salary or em oluments attached to the office. Compensation not an element of public office Compensation is not indispensable to public office. It is not part of the offic e but merely incident thereto. It is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office without any provision for compensation may carry with it the implication that the services are to be rendered gratuitously. Salary, Wages, and Per Diems Defined and Distinguished

Salary:time-bound Wages:service-bound Per Diem: allowance for days actually spent for special duties Salary of Public Officer Not Subject to Attachment The salary of a public officer or employee may not, by garnishment, attachment, or order of execution, be seized before being paid by him, and appropriated for the payment of his debts. Money in the hands of public officers, although it may be due government employe es, is not liable to the creditors of these employees in the process of garnishm ent because the sovereign State cannot be sued in its own courts except by expre ss authorization by statute. Until paid over by the agent of the government to the person entitled to receive it, public funds cannot in any legal sense be par t of his effects subject to attachment by legal process. (Director of Commerce a nd Industry v. Concepcion) Future or Unearned Salaries Cannot be Assigned The salary or emoluments in public office are not considered the proper subject of barter and sale. (22 R.C.L. 541) Agreements Affecting Compensation Held Void An agreement by a public officer respecting his compensation may rightfully be c onsidered invalid as against public policy where it tends to pervert such compen sation to a purpose other than that for which it was intended, and to interfere with the officer's free and unbiased judgment in relation to the duties of his o ffice. (This is usually with reference to unperformed services and the salary o r fees attached thereto.) Right to Recover Salary: De Jure Officer and De Facto Officer Monroy v. CA and del Rosario Where a mayor filed a certificate of candidacy for congressman then withdrew suc h certificate and reassumed the position of mayor, thus preventing the vice-mayo r from discharging the duties of the position of mayor, the mayor should reimbur se to the vice-mayor, as the right rightful occupant of the position of mayor, t he salaried which he had received. Rodriguez v. Tan Where a duly proclaimed elective official who assumes office is subsequently ous ted in an election protest, the prevailing party can no longer recover the salar y paid to the ousted officer. The ousted officer, who acted as de facto officer during his incumbency, is entitled to the compensation, emoluments and allowanc es which are provided for the position.Exception: If there was fraud on th e part of the de facto officer which would vitiate his election. Q: When can the de jure officer recover from: (a) the government? When the government continues to pay the de facto officereven after the notice o f adjudication of the protest in favor of the de jure officer. (b) A de facto officer? When notice of adjudication of the title to the de jure officer has been given, and the de facto officer still continues to exercise duties and receive salaries and emoluments. (c) An intruder / usurper?At all instances.

Additional or Double Compensation Prohibited Differentiate additional compensation from double compensation. Additional There is only 1 position, butadditional compensation. . Double There are 2 positions, and with additional functions and the public officer is getting emoluments for both positions Differentiate the 2 kinds of allowances. Given by virtue of the position whether or not he incurred expenses for which th Reimbursable Commutable The public is given e allowanceofficer must present a receipt or certification under oath that such amount spent in order that the officer may recover money spent. Received as a matter of right. There is a conclusive presumptionthat it was spent. RULES: Pensions / gratuities are not considered as additional, double, or indirect comp ensation. (Sec. 8, Art. IX-B, 1987 Constitution) By its very nature, a bonus partakes of an additional remuneration or compensati on. (Peralta v. Auditor General) An allowance for expenses incident to the discharge of the duties of office is n ot an increase of salary, a perquisite, nor an emolument of office. (Peralta v. Auditor-General) ADMINISTRATIVE DISCIPLINE I.OWER PRESIDENTIAL APPOINTEES Olonan v. CSC Administrative charges were filed against the PUP President and other officers f or violations of RA 3019 with the CSC. There is nothing in the provisions of the Constitution or the Administrative Code of 1987 which gives the CSC the power t o discipline presidential appointees like petitioner herein. the disciplinary au thority over presidential appointees lies elsewhere the President as appointing power himself. 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 t he SC for serious misconduct and inefficiency. Where a criminal complaint agains t a judge or other employee arises from their administrative duties, the Ombudsm an must defer action on said complaint and refer the same to the SC for determin ation whether said judge or court employee had acted within the scope of their a dministrative duties. Thus, the Ombudsman should first refer the matter to the S C 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 determina

tion. Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC administ rative supervision over all courts and court personnel. Dolalas v. Ombudsman-Mindanao Citing the Maceda case, the SC power of administrative supervision over judges a nd court personnel is exclusive. Investigation by the Ombudsman violates the spe cific constitutional mandate of the SC and undermines the independence of the ju diciary.

II.Over Elective Officials Impeachment ? A verified complaint may be filed by any member of the House of Represen tatives or by any citizen upon a resolution of endorsement by any member thereof . ? . ? The Committee, after hearing, and by a majority vote of shall submit its report to the House within sixty session days al, together with the corresponding resolutions. The resolution red for consideration of the House within ten session days from all its members, from such referr shall be calenda receipt thereof. Complaint shall be included in the Order of Business within ten sessions days and referred to the proper Committee within three sessions days thereafter

? A vote of at least one-third of all the members of the House shall be ne cessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. ? In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the House, the same shall constitute th e Articles of Impeachment, and trial by the Senate shall forthwith proceed.

? The Senate shall have the sole power to try and decide all cases of impe achment. When sitting for that purpose, the Senators shall be on oath or affirma tion. When the President of the Philippines is on trial, the Chief Justice of th e Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the members of the Senate. ? Judgment in cases of impeachment shall not extend further than removal f rom office and disqualification to hold office under the Republic of the Philipp ines, but the party convicted shall nevertheless be liable and subject to prosec ution, trial and punishment according to law. ? No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

III.OVER NON-PRESIDENTIAL APPOINTEES Grounds Sec. 46(a), Book V of EO 292 provides that No officer or employee in the Civil Se rvice shall be suspended or dismissed except for cause as provided by law and af ter due process. The grounds constituting just cause are enumerated in Sec. 46(b) . 1.Dishonesty 2.Oppression 3.Neglect of Duty 4.Misconduct 5.Disgraceful & Immoral Conduct 6.Notoriously Undesirable 7.Discourtesy in the course of duty 8.Inefficiency & incompetence in performance of duty 9.Receiving for personal use of a gift in course of official duty if given in ho pe of receiving favor or better treatment 10.Conviction of crime involving moral turpitude 11.Unauthorized solicitation and contribution from subordinate employees 12.Violation of Civil Service Law 13.Falsification of official documents 14.Frequent unauthorized absences or tardiness 15.Habitual drunkenness 16.Gambling prohibited by law

17.Refusal to perform official duty/overtime service 18.Disgraceful, Immoral & Dishonest conduct before entering the service 19.Physical or mental incapacity 20.Borrowed money by superior from subordinate 21.Lending money at usurious rate/interest 22.Willful failure to pay just debt/tax 23.Contracting loan of money/property w/ whom office of EE has business relation . 24.Pursuit of private business/vocation or profession w/o permission from Civil Service. 25.Insubordination 26.Engaging in Partisan Political Activity by one holding non-political office 27.Conduct is prejudicial to service 28.Lobbying for personal interest or gain in legislative halls w/o authority 29.Promote sale of tickets in behalf of private entrepreneurs not intended for p ublic purpose 30.Nepotism Jurisdiction ? Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and instrumentalities, provinces, cities a nd municipalities for officers and employees under their jurisdiction. ? Decisions of Secretaries and heads of agencies and instrumentalities, pr ovinces, cities and municipalities shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thi rty days salary. ? In case the decision rendered by a bureau or office head is appealable t o the Commission, the same may be initially appealed to the department and final ly to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after co nfirmation by the Secretary concerned. * Decisions imposing the penalty of suspension for more than thirty days or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfe r, removal or dismissal from office shall be appealable to the CSC. Procedure in Administrative Cases Against Non-Presidential Appointees Administrative proceedings may be commenced against a subordinate officer or emp loyee by the Secretary or head of office of equivalent rank, or head of local go vernment, or chiefs of agencies, or regional directors, or upon sworn written co mplaint of any other person. For complaints filed by any other person ? Complainant shall submit sworn statements covering his testimony and tho se of his witnesses together with his documentary evidence. ? If based on such papers a prima facie case is found not to exist, the di sciplining authority shall dismiss the case. Otherwise, he shall notify the resp ondent in writing of the charges against the latter. ? Respondent shall be allowed not less than seventy-two hours after receip t of the complaint to answer the charges in writing under oath, together with su pporting sworn statements and documents. He shall also indicate whether or not h e elects a formal investigation if his answer is not considered satisfactory.

? If the answer is found satisfactory, the disciplining authority shall di smiss the case. ? Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the allegations of the complaint and the an swer of the respondent, including the supporting documents, the merits of the ca se cannot be decided judiciously without conducting such an investigation. ? The decision shall be rendered by the disciplining authority within thir ty days from the termination of the investigation or submission of the report of the investigator, which report shall be submitted within fifteen days from the conclusion of the investigation. ? Either party may avail himself of the services of counsel and may requir e the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum.

Appeals and Petition for Reconsideration ? Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petiti on for reconsideration is seasonably filed, which petition shall be decided with in fifteen days. ? A petition for reconsideration shall be based only on any of the followi ng grounds: (a) new evidence red; (b) the decision (c) error of law the interests of ? has been discovered which materially affects the decision rende is not supported by the evidence on record; or or irregularities have been committee which are prejudicial to the respondent.

Only one petition for reconsideration shall be allowed.

Mendez v. Civil Service Commission The remedy of appeal in civil service cases may be availed of only in a case whe re respondent is found guilty of the charges against him. But when the responden t is exonerated of said charges, as in this case, there is no occasion for appea l. Summary Proceedings ? No formal investigation is necessary and the respondent may be immediate ly removed or dismissed if any of the following circumstances is present: (1) When the charge is serious and the evidence if guilt is strong; (2) When the respondent is a recidivist or has been repeatedly charged and ther

e is reasonable ground to believe that he is guilty or the present charge; and (3) When the respondent is notoriously undesirable. Preventive Suspension ? The proper disciplining authority may preventively suspend any subordina te officer or employee under his authority pending an investigation, if the char ge against such officer or employee involves: (a) dishonesty; or (b) oppression or grave misconduct; or (c) neglect in the performance of duty; or (d) if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. ? Maximum period for preventive suspension is ninety (90) days for nationa l officials. Under the Local Government Code, local appointive and elective offi cials may be preventively suspended for only sixty (60) days. If the case is fil ed in the Ombudsman, the latter may impose a preventive suspension for a period of six (6) months. ? When the administrative case against the officer or employee under preve ntive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who i s not a presidential appointee, the respondent shall be automatically reinstated in the service. Penalty ? In meting out punishment, the same penalties shall be imposed for simila r offenses and only one penalty shall be imposed in each case. ? The disciplining authority may impose the penalty of removal from the se rvice, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months salary, or reprimand. (Sec. 46(d), Book V, EO 292) ? If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that corresponding to the most serious charge or count and the test may be considered as aggravating circumstances. (Sec. 17 of the Im plementing Civil Service Rules and Regulations) ? A reprimand whether given by the Civil Service Commission or the head of department or agency shall be considered a penalty. However, a warning or an ad monition shall not be considered a penalty. (Sec. 15 of the Implementing Civil S ervice Rules and Regulations) Tobias v. Veloso Reprimand is a penalty. In this case, police chief is not entitled to back wages as Sec. 16 of the Police Act of 1966 expressly provides that a suspended member of the police force shall be entitled to his salary for the period of his suspe nsion upon exoneration. A reprimand is not equivalent to an exoneration. It is m ore severe than an admonition, which is considered a mild rebuke. A reprimand is administered to a person in fault by his superior officer or a body to which he belongs. It is an administrative penalty, although it may be slight form of pun ishment. NOTE: A warning is an act or fact of putting one on his guard; an admonition is a gentle or friendly reproof or a mild rebuke; while a reprimand is a formal and public censure or a severe reproof.

Removal of Administrative Penalties or Disabilities ? In meritorious cases and upon recommendation of the CSC, the President m ay commute or remove administrative penalties or disabilities imposed upon offic ers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service.

TERMINATION OF OFFICIAL RELATIONS Modes of Termination 1)Expiration of Term or Tenure of Office a)End of a fixed term b)End of Pleasure where one holds office at pleasure of appointing authority c)Loss of confidence in primarily confidential employment 2)Reaching the age limit; Retirement 3)Bona fide abolition of office 4)Abandonment of office 5)Acceptance of an incompatible office 6)Resignation 7)Resignation 8)Removal for cause 9)Temporary appointments termination 10)Recall 11)Impeachment 12)Prescription of right to office 13)Death 14)Conviction of crime where disqualification is an accessory penalty 15)Filing of certificate of candidacy 16)Performance of act or accomplishment of purpose for which the office was crea ted Expiration of Term or Tenure of Office End of Fixed Term ? Upon the expiration of the officer s term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must be ipso facto terminated. End of pleasure where one holds office at the pleasure of the appointing authori ty Alba v. Evangelista What is involved here is not the question of removal, or whether legal c ause should precede or not that of removal. What is involved here is the creatio n of an office and the tenure of such office, which has been made expressly depe ndent upon the pleasure of the President. Fernandez v Ledesma The Charter of Basilan City provides that the President shall appoint an d may remove at his discretion any of the city s officers, including its Chief of Police, with the exception of the municipal judge, who may be removed only accor

ding to law. Congress has the power to vest such power of appointment. Further, A public office is the right for a given period, either fixed by law or enduring at the pleasure of the creating power. Alba v. Evangelista states that the replac ement is not removal, but an expiration of tenure, which is an ordinary mode of terminating official relations.

Loss of Confidence in Primarily Confidential Employment Hernandez v. Villegas Even officers and employees of the civil service occupying primarily confidentia l positions are subject to the constitutional safeguard against removal or suspe nsion except for cause. Ingles v. Mutuc The statement that an officer holding a position which is primarily confidential in nature is subject to removal at the pleasure of the appointing power is inaccu rate. Such statement (a mere obiter in the case of De los Santos v. Mallare), i f detached from the context of the decision in said case, would be inconsistent with the constitutional command to the effect that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law, and it is conceded that one holding in the government a primarily confidential p ositions is in the Civil Service.

This should not be misunderstood as denying that the incumbent of a primarily c onfidential position holds office at the pleasure only of the appointing power. It should be noted however, that when such pleasure turns into displeasure, the incumbent is not removed or dismissed from office - his term merely expires in muc same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected is not and cannot be deemed remo ved or dismissed therefrom, upon the expiration of said term. The main difference between the former - the primarily confidential officer - and the latter is that the latter s term is fixed or definite, whereas that of the former is not pre-fix ed but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end t o the services of the incumbent. When this event takes place, the latter is not removed or dismissed from officer - his term has merely expired. Gray v. De Vera ?? ?????President appointed Gray as Board secretary of the People s Homesite and Housing Corporation but was later terminated through a board resolution due to loss of confidence. SC reversed ruling that Gray s appointment was a permanent one. Although the President, EO 99, declared the position of secretary to the bo ard of a government corporation primarily confidential in nature, it does not foll ow that a board secretary whose appointment was permanent may be removed from of fice without a formal charge specifying the ground for removal and without givin g him an opportunity to be head. Such removal was illegal since there was no law ful cause for removal. By declaring that the position is primarily confidential in nature, the Pre sident intended that the position be filled by an appointee of unquestioned hone sty and integrity. The act of Gray in reporting the board s act of mismanagement a nd misconduct was in consonance with the honesty and integrity required for the position.

Cario v. ACCFA The Constitution merely excepts primarily confidential positions from th e coverage of the rule requiring appointments in the civil service to be made on the basis of merit and fitness as determined from the competitive exams, but does not exempt such positions from the operation of the principle that no officer o r employee in the civil service shall be removed or suspended except for cause a s provided by law, which recognizes no exception. Reaching the Age Limit; Retirement Conditions for entitlement to retirement benefits (R.A. No. 8291) a)he has rendered at least fifteen (15) years of service; b)he is at least sixty (60) years of age at the time of retirement; and c)he is not receiving a monthly pension benefit from permanent total disability. Compulsory Retirement Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least sixty-five (65) years of age with at lea st fifteen (15) years of service; Provided that if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance wi th existing civil service rules and regulations. Retirement benefits (1) the lump sum payment defined in RA No. 8291 payable at the time of ret irement plus an old-age pension benefit equal to the basis monthly pension payable monthly for l ife, starting upon expiration of the give-year (5) guaranteed period covered by the lump sum; or (2) cash payment equivalent to eighteen (18) months of his basic monthly pen sion plus monthly pension for life payable immediately with no five-year (5) gua rantee. Beronilla v GSIS The compulsory retirement of government officials and employees upo n reaching the age of 65 years is founded on public policy which aims by it to m aintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and t he exacting demands that the nature of their work and their relations with their superiors as well as the public would impose on them. UP Board of Regents v. Auditor General A BOR resolution extended the services of a UP professor for anothe r year. In the same year, he reached the age of 65. The Auditor General question ed the legality of the resolution arguing that the services rendered after the c ompulsory retirement age were illegal and that he was not entitled to compensati on. SC upheld Auditor General ruling that as government employees, UP professors are compulsorily covered by the Retirement Law which creates a uniform retireme nt system for all members of the GSIS.

Rabor v. CSC In 1991, he was advised to apply for retirement. He was already 68 years old with 13 years of service. He requested that his services be extended in ord er that he may complete the 15-year service requirement. This was denied and Rab or claimed that the doctrine enunciated in Cena v. CSC should be applied in his case. SC ruled that the Cena doctrine is not applicable. To reiterate, the head of the government agency concerned is vested with discretionary authority to allow or disallow extension of service of an employee who has reached 65 years old withou t completing 15 years of government service; this discretion to be exercised con formably with CSC Memo Circular No. 27, s. of 1990. Bona Fide Abolition of Office ? As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. ? To consider an office abolished, there must have been an intention to do away with it wholly and permanently.

? Termination by virtue of the abolition of the office is to be distinguis hed from removal. There can be no tenure to a non-existent office. After the abo lition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenu re when there is an abolition of office does not arise. The right itself disappe ared with the abolished office as an accessory following the principal. Busacay v. Buenaventura Busacay was laid off as toll collector when the bridge was destroyed. Ho wever, the bridge was later reconstructed and opened to the public with a new co llector being appointed. Busacay was ordered reinstated by the SC. To consider a n office 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 rebuildi ng the bridge. The collapse of the bridge did not work to destroy but only to su spend the position of toll collector thereon, and upon its reconstruction and re -opening, the collector s right to the position was similarly and automatically re stored. Manalang v. Quitoriano Quitoriano was appointed as NES Commissioner in spite of the recommendat ion of the Labor secretary to appoint Manalang who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. Had Congres s intended the NES to be a mere enlargement of the Placement Bureau, it would ha ve directed the retention, not the transfer, of qualified personnel to the NES. Manalang has never been NES Commissioner and thus could not have been removed th erefrom. Abolition Must Be in Good Faith In order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law. Briones v. Osmea

The City created 35 new positions and abolished 32, of which the positio ns of Briones and Rosagaran were included. Consequently, the two were terminated . SC held that the termination was not valid. While abolition does not imply rem oval of the incumbent, this rule is true only where the abolition is made in goo d faith. In other words, the right to abolish cannot be used to discharge employ ees in violation of the Civil Service law nor can it be exercised for personal o r political reasons. Facundo v. Pabalan There is no law which expressly authorizes a municipal council to abolis h the positions it has created. However, the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitu tional or statutory rules providing otherwise. But the office must be abolished in good faith.

Cruz v. Primicias Where the abolition is made in bad faith, for political or personal reas ons, or in order to circumvent the constitutional security of tenure of civil se rvice employees, it is null and void. In the case at bar, while 22 positions wer e abolished, 28 new positions with higher salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact, w hat respondents sought to achieve was to supplant civil service eligibles with m en of their choice, whose tenure would be totally dependent upon their pleasure and discretion. Reorganization Occurs where there is an alteration of the existing structure of government offi ces or units therein, including the lines of control, authority and responsibili ty between them to promote greater efficiency, to remove redundancy of functions , or to effect economy and make it more responsive to the needs of their public clientele. It may result in the loss of one s position through removal or abolitio n of office. Reorganization of the government may be required by law independent ly of specific constitutional authorization. But in order to be valid, it must a lso be done in good faith. Board of Directors of PCSO v. Alandy Alandy was the incumbent Assistant General Manager of the PCSO. In 1954, Resolution No. 314 was passed to reorganize the PCSO. The position of Assistant General Manager was converted to General Field Supervisor to which Alandy was a ppointed. However, in 1955, the position of Assistant General Manager was again created through Resolution No. 422 and a different person was appointed to the p osition. SC invalidated the new appointment and reinstated Alandy to his positio n as PCSO Assistant General Manager. What occurred here is that the position of Assistant General Manager was not abolished but was merely converted to another position. Dario v. Mison A reorganization is carried out in good faith if it is for the purpose of econom y or to make the bureaucracy more efficient. Good faith, as a component of reorg anization under a constitutional regime, is judged from the facts of each case. In the case at bar, there was lack of good faith. Mison s argument that the reorga nization is progressive would be valid only if it was pursuant to Proclamation 3

. However, in spite of her immense revolutionary power, Pres. Aquino still promu lgated EO 17 which established safeguards against the propensity that accompany reorganizations and established the rule that dismissals should be based on find ings of inefficiency, graft and unfitness to render public service. Assuming the n that the reorganization in the first stage was progressive and still valid, su ch dismissals as ordered by Mison would still have to comply with the terms set down in EO 17. Abandonment of Office ? A public office may become vacant ipso facto by abandonment and non-user . When an office is once abandoned, the former incumbent cannot legally reposses s it even by forcible re-occupancy. ? Abandonment must be total and absolute, and must be under such circumsta nces as clearly to indicate an absolute relinquishment thereof. Moreover, the of ficer should manifest a clear intention to abandon the office and its duties. Ab andonment by reason of acceptance of another office, in order to be effective an d binding, must spring from and be accompanied by deliberation and freedom of ch oice, either to keep the old office or renounce it for another. Temporary absenc e is not sufficient. Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim ap pointment. However, the ad interim appointment was disapproved and Summers now s eeks to be reappointed as cadastral judge. SC held that Summers voluntary accepta nce of the position of CFI judge amounted to a waiver of his right to hold the p osition of cadastral judge during the term fixed and guaranteed by the Constitut ion. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an acting judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time. Floresca v. Quetulio Floresca s refusal to assume his pre-war post as Justice of the Peace and his subs equent acceptance of other employments without any pretense on his part that he simultaneously continued to perform the functions of the Justice of the Peace, c learly show deliberate abandonment of the latter office.

Ortiz v. De Guzman Ortiz allowed three years to elapse since he was ousted from office without havi ng taken any steps to reclaim his former office. SC held that he cannot ask for reinstatement. A public employee who voluntarily abandons his office for a long time is estopped from asking for reinstatement. In order to constitute an abando nment of office, it must be total, and under such circumstances as to clearly in dicate an absolute relinquishment. Temporary absence is not sufficient where no statute fixes the period beyond which the absence must continue. In all cases, t he officer should manifest a clear intention to abandon the office and its dutie s. Yet, this intention may be inferred from his conduct. If his acts and stateme nts are such as to clearly indicate absolute relinquishment, a vacancy will be t hereby created and no judicial determination is necessary. When once abandoned, the former incumbent cannot legally repossess the office.

Madrid v. Auditor General One claiming the right to a position in the civil service must institute the pro per proceeding within one year from the date of separation, otherwise he is deem ed to have abandoned his office or even acquiesced or consented to his removal, and thus is not entitled to seek reinstatement. The rationale is to inform the G overnment of the rightful holder of the office and to prevent payment of salary to both claimants. Magana v. Auditor General Having accepted the benefits accruing from the abolition of his office, he is es topped from questioning its validity or deemed to have waived the right to conte st the same. Villegas v. Subido Villegas did not abandon his office as mayor of the City of Manila when he assum ed the position of Director of NAWASA because he had been merely designated in a n acting capacity and was not appointed to the said position. Tan v. Gimenez The fact that, during the time his appeal was pending and was thus deprived of h is office and salary, an employee sought employment in another branch of the gov ernment does not constitute abandonment of his former position. Acceptance of an Incompatible Office He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office i s inferior to the first does not affect the rule. And even though the title to t he second office fails as where election is void, the rule is still the same, no r can the officer then regain the possession of his former office to which anoth er has been appointed or elected. If the law or Constitution as an expression of public policy forbids the accepta nce by a public officer of any other office other than that which he holds, it i s not a case of incompatibility but of legal prohibition. Incompatibility of offices exists where: (a) There is conflict in such duties and functions so that the performance o f the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to ret ain both. (b) One is subordinate to the other and is subject in some degree to its sup ervisory powers for in such situation where both are held by the same person, th e design that one acts as a check on the other would be frustrated. (c) The Constitution or the law itself, for reasons of public policy, declar es the incompatibility even though there is no inconsistency in the nature and f unctions of the offices.

Exceptions to the Rule on Holding of Incompatible Offices (a)Where the officer cannot vacate the first office by his own act, upon the pri nciple that he will not be permitted to thus do indirectly what he could not do directly, as where the law requires the approval of the provincial board before a municipal official can resign. (b)First office is held under a different governmentfrom that which conferred the second. (c)Officer is expressly authorized by law to accept another office. (d)Second office is temporary. Resignation ? A resignation of a public officer need not be in any particular form, un less some form is prescribed by statute. Ordinarily, it may either be in writing or by parol. The conduct of an employee may properly be regarded as constitutin g a resignation from the position held by him. However, to constitute a complete and operative resignation of public office, there must be an intention to relin quish a part of the term, accompanied by the act of relinquishment. ? The right of a public officer to resign is well recognized, even where i t is provided than an officer may hold over until election and qualification of a successor. The right is sometimes recognized or secured by constitution or sta tute. ? The views in the various jurisdictions are conflicting in regard to what constitutes acceptance of a resignation and whether an acceptance is required. According to some authorities, no acceptance is necessary to render a resignatio n effective, especially when the resignation is unconditional and purports to ta ke effect immediately. Indeed, it may be provided by statute that the resignatio n of a public officer is to take effect at the time of filing it. ? However, many other cases take the view that to be effective, the resign ation must be accepted by competent authority. Without acceptance, the resignati on is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163)

Two (2) elements are necessary to constitute an effective acceptance:

(1) intention to relinquish office coupled with actual relinquishment; and (2) acceptance of resignation. Gonzales v. Hernandez Gonzales filed a letter of resignation the pertinent portion of whi ch reads: x x x subject to the result of my appeal with the Civil Service Board of Appeals, and to the provisions of the Resolution of the Cabinet on July 17, 1 939. SC held that Gonzales, although his conditional resignation was unconditiona lly accepted, cannot be considered as having resigned from office. There was no resignation to speak of. To constitute a complete and operative act of resignati on, the officer or employee must show a clear intention to relinquish or surrend er his position. In the case at bar, there was no such intention as Gonzales resi gnation was subject to the result of his appeal.

Ortiz v. COMELEC Petitioner s separation from the government as a result of the reorga nization ordained by former Pres. Aquino may not be considered a resignation wit hin the law s contemplation. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further rig ht to use it. To constitute a complete and operative act of resignation, the off icer or employee must show a clear intention to relinquish his position accompan ied by the act of relinquishment and its acceptance by competent and lawful auth ority. Based on the facts, petitioner s resignation lacks the element of clear in tention to surrender his position. We cannot presume such intention from the let ter he sent placing himself at the disposal of the President. He did not categor ically state that he was unconditionally giving up his position. It should be go od to note that said letter was actually a response to Proclamation No. 1 of Pre s. Aquino calling all appointive public officials to offer their courtesy resigna tion. ? A courtesy resignation cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of a person to the will of the pol itical authority. ??????Courtesy resignation is not allowed in (1) career positions and (2) non-ca reer positions with security of tenure (i.e. local elective officials). Removal for Cause No officer or employee of the civil service shall be removed or suspende d except for cause provided by law (Sec. 2(3), Art. IX, 1987 Constitution). Grounds for Removal from Office ? For Presidential appointees, there is no specific law providing for the grounds for their removal. Determination of grounds is just a matter of practic e and by analogy, the grounds used for non-presidential appointees are made appl icable. ? For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds for disciplinary action.

? For local elective officials, Sec. 60 of the Local Government Code provi des for the grounds where an elective local official may be disciplined, suspend ed or removed from office. Misconduct need not be in office in case of appointive officers. Misconduct must be in office in case of elective officers. Nera v. Garcia Under the Revised Administrative Code, the rule in preventive suspension provide s that a Bureau Chief may suspend, with the approval of the head of the departme nt, any subordinate officer or employee if he is charged with dishonesty, oppres sion or grave misconduct or neglect in the performance of duty. The same words a re expressed in the civil service law. From these provisions, suspension was pro per even if the dishonest act was not in the performance of his duty since under the Revised Administrative Code and the Civil Service Law, dishonesty was not q ualified by the phrase in the performance of duty.

Ochate v. Ty Deling The SC held that the facts alleged in the administrative charge, as substantiate d by the affidavits of the complainants, do not justify the administrative proce edings instituted against the petitioner and his suspension by the governor. The alleged libel imputed to the mayor was not such misconduct even if the term misc onduct in office be taken in its broadest sense. The radio broadcast in which the objectionable utterances were made had nothing to do with his official function s and duties as a mayor. Misconduct committed during a prior term, not a ground for dismissal Pascual v. Provincial Board The SC held that the weight of authority follows the rule which denies the right to remove one from office because of misconduct during a prior term. Offenses c ommitted or acts done during a previous term are generally held not to furnish c ause for removal and this is especially true where the Constitution provides tha t the penalty in proceedings for removal shall not extend beyond the removal fro m office and disqualification from holding office for the term for which the off icer was elected and appointed. The underlying theory is that each term is separ ate from other terms and that re-election to office operates as a condonation of the officer s previous misconduct to the extent of cutting off the right to remov e him therefore. Aguinaldo v. Santos SC held that Aquinaldo should not be removed from office. His re-election to the position of Governor of Cagayan has rendered the administrative case pending be fore it moot and academic. Offenses committed or acts done, during a previous term are generally not held t o furnish cause for removal. The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to depri ve the people of their right to elect their officers. When the people have elect ed a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct , if guilty of any. It is not for the court, by reason of such fault or miscondu ct, to practically overruled the will of the people. The rule then is that a public officer cannot be removed for administrative misc onduct committed during a prior term, since his reelection to office operates as a condonation of the officer s previous misconduct to the extent of cutting off t he right to remove him therefore. This rule, however, is not applicable to crimi nal cases pending against the petitioner for acts he may have committed during t he failed coup. Transfer from One Position to Another May or May Not Constitute Violation of Sec urity of Tenure ? A transfer is a movement from one position to another which is of equiva lent rank, level, or salary without break in service involving the issuance of a n appointment. ? It shall not be considered disciplinary when made in the interest of pub lic service, in which case, the employee concerned shall be informed of the reas ons therefore. If the employee believes that there is no justification for the t ransfer, he may appeal to the SC.

The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, howe ver that any movement from the non-career service to the career service shall no t be considered a transfer. Lacson v. Romero Lacson was appointed provincial fiscal of Negros Oriental by the President. Howe ver, three years after, another person was appointed to the same position while Lacson was nominated to the position of provincial fiscal of Tarlac. Lacson neve r accepted the appointment and did not assume the duties of said office. The SC held that Lacson has the right to occupy the office of provincial fiscal of Negr os Oriental as he neither accepted nor assumed the office of provincial fiscal o f Tarlac and no one can compel his to do so. The intended transfer of Lacson to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental si multaneously. Therefore, to be a fiscal of Tarlac must mean his removal from off ice in Negros. Since the transfer in the case at bar is considered a removal, such should be fo r cause in order for the other person to legally occupy the office in Negros. Th ere was no cause for Lacson s removal. He therefore remains as fiscal of Negros. Termination of Temporary Appointment Quitiquit v. Villacorta The appointment being temporary in character, the same can be terminated at plea sure by the appointing power. Ferrer v. de Leon One holding an office in a temporary capacity may be ousted at anytime with or without cause. What determines character of appointment Hojilla v. Marino The controlling factor in determining the character of the appointment is the ap pointment itself. Even if a position is permanent, if the appointment is made te mporary, the appointment is determinative. What is determinative is not the natu re of the office (permanent or temporary), but the nature of the appointment. One appointed to a position of another who was illegally suspended or dismissed, holds it in temporary capacity and must yield to the latter. The reason for thi s is that there was no valid termination. Recall The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a syste m of decentralization with effective mechanisms of recall, initiative and refere ndum (Sec. 3, Art. X, 1987 Constitution) Procedure for recall is provided in Sections 69-75 of the Local Government Code. Garcia v. COMELEC

SC upheld initiation of recall through the Preparatory Recall Assembly. Recall is a mode of removal of a public officer by the people before the end of his ter m of office. The people s prerogative to remove a public officer is an incident to their sovereign power, and in the absence of constitutional restraint, the powe r is implied in all government operations. There are two reasons why a Preparato ry Recall Assembly is allowed: (1) to diminish the difficulty of initiating reca ll through direct action of the people; (2) to cut down on expenses. Moreover, t he Constitution does not provide for any particularly mode of initiating recall elections. Initiation by the Preparatory Recall Assembly may be considered as in itiation of recall by the people, although done indirectly through representativ es. In any event, the composition of the Preparatory Recall Assembly is politica lly neutral, so loss of confidence cannot be said to be inspired by difference i n political party affiliation. Prescription of Right to Office Unabia v. City Mayor No reinstatement is possible in the case at bar. Even if the removal was void f or lack of cause, Unabia filed his petition for reinstatement with the CFI after a delay of one year and fifteen days. 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. The one-year period is the prescriptive period to claim public office (whether t hrough quo warranto or otherwise). The one-year period presupposes judicial acti on, not administrative action. Filing of Certificate of Candidacy ( Sec. 66 of the Omnibus Election Code states that any person holding appo intive public offices or positions, including active AFP members, is considered ipso facto resigned from office by the mere filing of certificate of candidacy. Candidates holding elective office (NOT DEEMED IPSO FACTO RESIGNED) only on last day of filing of certificate of candidacy (except if he is running for President or Vice President,then he did not forfeit his office). ( Only the moment an act of filing are considered. Once the certificate i s filed, the seat is forever forfeited and nothing, save a new election or appoi ntment, can restore the ousted official. BAR: Melchor ,a city legal officer and Danilo, a city vice-mayor, filed certific ate of candidacy for the position of City Mayor in the May 16,2001 elections (b day ng pinsan ni 4blue 95). Was Melchor ipso facto resigned,if so ,effective on what date? Melchor was considered ipso facto resigned upon the filing of his certificate of candidacy since being a city legal officer, he is an appointive official. The O mnibus Election Code so provides that any person holding a public appointive off ice shall be considered ipso facto resigned upon the filing of his certificate o f candidacy. With regard Danilo? Not considered ipso facto resigned since any elective official considered ipso facto resigned from office upon his filing of a certificate of candidacy for any office other than the one he is holding except for President and Vice President was repealed by the Fair election act. BAR: Suppose A, a municipal mayor,went on a sick leave to undergo medical treatm ent for a period of 4 months, Will the municipal vice mayor be performing execut

ive functions? HELD:Yes, the vice mayor shall be performing executive functions since the funct ion of the munical mayor are executive in nature. Will the vice mayor be also performing legislative function as presiding officer of the Sangguniang Bayan? HELD:NO, In Gamboa v Aguirre, the Vice mayor cannot continue as presiding office r of the Sangguniang bayan while he is acting municipal mayor.The temporary vaca ncy in office of mayor creates a temporary vacancy in office of vice mayor when latter acts as mayor Performance of Act or Accomplishment of Purpose for which the Office was Created Performance of act or accomplishment of purpose renders office functus officio. ?? ?? ?? ??