Pre-Week Reviewer

ADMINISTRATIVE LAW and PUBLIC OFFICERS LAW

UP COLLEGE OF LAW
Bar Operations 2008
Political Law Team Andi Lacuesta (Head), Steve Mercano (Deputy), Yvette Yaneza, Steve Mercano (Admin Law), Jeneline Nicolas (Local Government), Mae Macasero (Public Officers), Kristine Bongcaron, Romulo Ramirez, Joanna Capones (Constitutional Law 1), Luis Jose F. Geronimo, Judith Ann Alejo, Ma. Florence Therese D.G. Martirez, Gayle Isip-Reyes, Kristina Zamora, Ferdinand Manebo, Emmeline Escobillo, Jennifer Reyes, Jericho del Puerto (Constitutional Law 2), Andi Lacuesta, Jeneline Nicolas, Steve Mercano, Christina Rondario, Bridget Rose Mesina (Election Law), Christina Rondario, Tifanie Gerona (Public Intl Law)

ADMINISTRATIVE LAW
I. GENERAL PRINCIPLES

(1) Government grant or gratuity, special privilege

Bureau of Lands Phil. Veterans Admin.

Factors responsible for the emergence of administrative agencies:

(1) (2) (3)

growing complexities of modern life multiplication of number of subjects needing government regulation

GSIS, SSS, PAO (2) Carrying out the actual business of BIR government Customs, Immigration

increased difficulty of administering laws (Pangasinan Transportation v Public Service Commission) Why there is a need for administrative agencies/bodies: Branches of government lack: (1) time, (2) expertise, and (3) organizational aptitude for effective and continuing regulation of new developments in society. Administrativ e law = (a) fixes the organization, (b) determines the competence of administrative authorities, and (c) indicates to the individual remedies for the violation of his rights. Kinds of Administrative Law a. Statutes setting up administrative authorities. b. Rules, regulations, or orders of such authorities promulgated pursuant to purposes for which they were created. c. Determinations, decisions, and orders of such authorities to settle disputes arising in their fields. d. Body of doctrines and decisions dealing with the creation, operation, and effect of determinations and regulations of such authorities. 2 Senses of Administration: (1) function (2) organization 2 Kinds of Administration:

Land Registration Authority (3) Service for public benefit Philpost

PNR MWSS NFA, NHA (4) Regulation of businesses affected with public interest

Insurance Commission LTFRB, NTC HLURB

(5) Regulation of private businesses and individuals (6) Adjustment of individual controversies

SEC

ECC NLRC SEC DAR COA

(7) Government as private party b.

GSIS

as to the organic law of creation (1) Constitution (2) Legislative enactment

(3)
authority of law

Executive Order;

(1) (2)

internal (legal)

c.

external (problems of govt regulations) Administrativ e Agency = (a) any governmental organ or authority, other than a court or legislative body, which affects the rights of private parties through rule-making and adjudication (b) any department, bureau, office, commission, authority, or officer of the Government authorized by law or EO to (1) make rules (2) issue licenses (3) grant rights or privileges, and (4) adjudicate cases. Powers of an Administrative Agency a. legislative b. judicial c. fixing g / executing rule-making / quasiadjudicatory / quasideterminative licensing price/rateimplementin Types of Administrative Agencies a. as to purpose

as to hierarchy (1) Office of the President; Cabinet (2) independent Constitutional Commissions CSC, COMELEC, COA (3) other constitutional bodies Sandiganbayan, Ombudsman, NEDA, CHR, Natl Language Commission, etc.

(4)

regulatory commissions SEC, NLRC, Insurance Commission, LTC, CID, etc. (5) public corporations UP, NPC, MWSS, NDC, DBP

Kinds of Administrative Rules or Regulations (a) supplementary / detailed legislation (b) interpretative legislation (c) contingent legislation

II. CONTROL OF ADMINISTRATIVE ACTION

A.

Legislative
a. Powers of the Legislature 1. creation and abolition 2. appropriation 3. investigation 4. prescription of legislative standards

prescription of minimum procedural requirements b. Congressional Oversight Committee 1. scrutiny 2. Congressional investigation

5.

3. B.

legislative supervision legislative veto

(g) promotion of simplicity, eonomy, or efficiency (h) maintenance of monetary stability, promotion of production and real income cannot be delegated:

Executive Powers
a. appointment b. control c. supervision sworn duty to preserve and defend the Constitution and execute the laws

(a)

creation of municipalities (not the merging of administrative regions) (b) defining crimes

C.

Judicial
power of judicial review 2 views: (a) radical (b) traditional / accepted deference to agencies greater expertise and experience in their areas of specialization

Permissible delegation: (a) ascertainment of fact (b) filling in of details

(c)

D.

Ombudsman

III. POWERS AND FUNCTIONS OF ADMINISTRATIVE AGENCIES

Distinctions: Basis As to procedural standards Quasilegislative The procedure is that normally observed in the making of rules. Quasi-judicial The procedure must observe the requirements of due process in the 7 cardinal rules. Adjudication is retrospective in character, for it investigates acts already done and then applies the law on the facts.

administrative rule-making limits on rule-making: (1) must be authorized by law (2) must not amend or be inconsistent with the law (3) must be germane to the purpose of the law it was meant to implement (4) must not restrict, expand, diminish, supplant, or modify the law (5) may not unilaterally impose a new legislative policy

(6)

may not delegate to a mere constitutive unit the rulemaking authority legislatively vested in the head of an executive department Indispensability of Publication exceptions: 1. interpretative rules 2. internal regulations letters of instructions issued by administrative superiors to subordinates All rules with respect to the fixing of rates must first give notice and hearing. Legislative Rules promulgated pursuant to its quasi-legislative / rule-making functions. create a new law, a new policy, with the force and effect of law. need publication. So long as the court finds that the legislative rules are within the power of the administrative agency to pass, as seen in the primary law, then the rules bind the court. The court cannot question the wisdom or correctness of the policy contained in the rules. Due process involves whether the parties were afforded the opportunity to be notified and heard before the issuance of the ruling. Interpretative Rules passed pursuant to its quasi-judicial capacity. merely clarify the meaning of a pre-existing law by inferring its implications. need not be published. The court may review their correctness of the interpretation of the law given by the administrative body, and substitute its own view of what is correct to the administrative body. If it is not within the scope of the administrative agency, court can only invalidate the same but not substitute its decision or interpretation or give its own set of rules. Due process means that the body observed the proper procedure in passing rules.

As to time

Rule-making is prospective in character, for it only governs future acts.

3.

As to application

Legislative rules are of general application

Adjudicative rulings apply only to parties

A.

Legislative Function
non-delegation doctrine Requisites for a valid delegation: (1) completeness (2) existence of sufficient standard

may be express, implied, or

embodied in other statutes on the same matter, not necessarily in the same law being challenged judicial determination of sufficiency of standards: (a) interest of law and order (b) public interest (c) justice, equity and the substantial merits of the case (d) what is moral, educational, or amusing (e) adequate and efficient instruction (f) reasonableness

B.

Judicial Functions and Powers

1. Investigation and adjudication 2. Power to issue subpoena and declare contempt While all agencies with quasijudicial functions have the power to

issue subpoenas, even if their charter is silent as to it, not all of such agencies also have the power to cite for contempt. This must be expressly granted in the charter. Else, the RTC must be invoked. 3. Administrative searches and seizures power to issue warrant of arrest: none, except in the case of deportation of illegal / undesirable aliens, following a final order of deportation. (Qua Chee Gan v Deportation Board)

(2)

History of the statute involved; legislative intent (3) Nature of problem involved

vs. privilege

right

quest ion of law vs. question of fact quest ion of discretion; question of policy (4) Finality of the decision forum shopping, res judicata, litis pendentia

IV. ADMINISTRATIVE PROCEDURE

Cardinal Primary Rights of Due Process:
(Ang Tibay v CIR)

Doctrine of Exhaustion of Administrative Remedies

1.

Right to a hearing; to present ones own case and submit evidence in support thereof Presence at a trial is not necessarily the essenec of due process. All that the law requires is the element of fairness, that the parties be given notice of trial and: (a) an opportunity to be heard

to give the agency a chance to correct its own errors and prevent unnecessary and premature resort to the courts

(b)

in administrative proceedings, an opportunity to seek reconsideration; or (c) an opportunity to explain ones side

for reasons of comity: Expedience, courtesy, convenience Failure to observe doctrine does not affect jurisdiction of the court. The only effect of non-compliance is it will deprive complainant of a cause of action, which is a ground to dismiss. But if not invoked at the proper time, this ground is deemed waived.

2. 3. 4.

The tribunal must consider the evidence presented. The decision must be supported by evidence. Evidence must be substantial. Substantial Evidence such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable would opine otherwise. Decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected. Independent consideration of judge 7. Decision rendered in such a manner as to let the parties know the various issues involved and the reasons for the decision rendered.

exceptions: (a) purely legal questions

(b)
steps to be taken are merely matters of form

(c)
administrative remedy not exclusive but merely cumulative or concurrent to a judicial remedy

(d)
validity and urgency of judicial action or intervention

5.

(e)
no other plain, speedy, adequate remedy in the ordinary course of the law

6.

(f)
resort to exhaustion oppressive and patently unreasonable; will only cause great and irreparable damage which cannot be prevented except by taking the appropriate court action (g) the administrative remedy is only permissive or voluntary and not a prerequisite to the institution of judicial proceedings

Notice and Hearing a. When required (a) when specifically required by law (b) when it affects a persons status or liberty b. When not required

(h)
the controversy involves the rule-making or quasi-legislative functions of an administrative agency

(a) (b) (c)

urgent reasons

discretion is exercised by an officer vested with it upon an undisputed fact if it involves the exercise of discretion and there is no grave abuse

(i)
administrative agency is in estoppel

(j)
where the appeal to the Office of the President was not acted upon despite follow-ups, and in the meantime, the assailed administrative resolution continued to be put in effect

(d) (e)

when rules are to govern future conduct of persons or enterprises in the valid exercise of police power

(k)
the subject of controversy is private land, in land case proceedings (l) unreasonable delay or official inaction

V. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

There is an underlying power in the courts to scrutinize the acts of administrative agencies exercising quasi-judicial power on questions of law and jurisdiction even though no right of review is given by the statute.

(m)
administrative action is patently illegal amounting to lack or excess of jurisdiction

Availability of Judicial Review: Factors:

(1) WON what is involved is a question of constitutionality

(n)
resort to administrative remedy will amount to a nullification of a claim (o) Issue of non-exhaustion of administrative remedies rendered moot (p) quo warranto proceedings

official or agency refuses to exercise the duty itself. (2) Right of petitioner is clear and controlling. If the question is one of public right and the object of mandamus is to procure the performance of a public duty, it is sufficient to show that the petitioner is a citizen even if he has not special interest in the result. (Taada v Tuvera) (3) No other plain, speedy and adequate remedy.

(q)
law expressly provides for a different review procedure

Doctirne of Primary Jurisdiction / Preliminary Resort

effect:

(a)

not dismisal, but only suspension until after the matters within the competence of the administrative agency are threshed out and determined

(d)

Declaratory Relief (Rule 63)

Requisites: (1) Subject matter must be a deed, will, contract or written instrument in which petitioner is legally interested, or law or governmental regulation which affects his rights. (2) The terms of the written instrument are, or the validity of the law or regulation is, doubtful and requires judicial construction. (3) Petition is filed before breach or violation of the instrument or regulation. (4) There must be an actual justiciable controversy between persons with adverse interests. (5) Petitioner must have legal interest in the controversy.

Where primary jurisdiction to determine preliminary matters is vested in an administrative agency, such determination is subject to challenge in the courts. when applicable:

(b)

a.

The administrative body and the regular court have concurrent and original jurisdiction. b. The question to be resolved requires expertise of administrative agency. c. The legislative intent on the matter is to have uniformity in rulings.

d.

The administrative agency is performing a quasi-judicial or adjudicatory function (not rule-making or quasilegislative.)

(6)

exceptions: (a) agency has exclusive jurisdiction (b) the issue is not within the competence of the administrative body to act on (c) the issue involved is clearly a factual question that does not require specialized skills and knowledge for resolution Ripeness 2-fold test: (1) fitness of the issue for judicial decision (2) hardship on the parties due to withholding of such court action

Controversy must be ripe for adjudication. exhaustion of administrative remedies (7) Adequate relief is not available through other means or other forms of action or proceeding.

(e) (f)

Habeas Corpus (Rule 102)

Injunction (Rule 58) (g) Suit for Damages B. Extent of Judicial Review
question of fact vs. of law question of fact: (a) existence of a certain fact or thing (b) occurrence of an event which of the two versions of the happening of an event is correct question of law: (a) Constitutionality of the statute creating the agency and granting its powers (b) Validity of the agency action if this transcend the limit established by law (c) Correctness of the agencys interpretation and application of the law

A. Modes of Judicial Review

2 classes of methods:

(c)

(a) (b)

statutory vs. non-statutory direct vs. collateral

(a) Certiorari
(i) simple or ordinary (Rule 45) Rule 43, in the case of administrative agencies performing quasi-judicial functions special civil action (Rule 65)

(ii) (b) (c)

VI. ENFORCEMENT OF AGENCY ACTION

Adjudicative function Rule-making function Executive function Enforce decision. Promulgate rules. Issue or withhold license.

Prohibition (Rule 65) Mandamus (Rule 65)

Requisites:

(1)

Public officer or agency has a positive duty, which is ministerial, and unlawfully neglects to perform such duty. Mandamus will lie against a discretionary duty when the

Dispensing government Dole out or withhold. largess Administrative enforcement includes: presumption of power of agency to enforce its decisions emanating from its quasi-judicial powers

 summary enforcement without need for adjudication:

CIR: distraint of personal property or levy on real property DOH: abatement of nuisance PCGG: sequestration of ill-gotten wealth If officials refuse to implement a final and executory judgment, the remedy is mandamus. Execution must conform to that ordained or decreed in the dispositive part of the decision. Where the order of execution is not in harmony with and exceeds the judgment which gives it life, the order pro tanto has no validity. (Clavano v HLURB)

Elected or appointed via an unconstitutional law, before adjudged as such. An intruder / usurper may be presumed a de facto officer with the passage of time, when the public presumes in their minds IN GOOD FAITH that the intruder is rightfully acting as a public officer.

3. Who may Contest Quo warranto proceedings may be filed by: The person claiming entitlement to the office; The Republic of the Philippines (represented by the Solicitor-General or a public prosecutor) 4. Liabilities of De Facto Officers Same as de jure officer, even for crimes.

LAW ON PUBLIC OFFICERS

Public Officer performs discretionary governmental public functions / duties became such by law, election, or appointment.

5. De Facto Officers Compensation None

De jure officer may even recover from him the salary he received (Monroy v CA). EXCEPTIONS NO de jure officer.

(Who MAY BE Public Officers) The term officer includes any government employee, agent, or body authorized to exercise governmental power in performing particular acts or functions (Sec. 2(14) Administrative Code), like:

When the de jure officer assumed another position under protest with pay Gen. Manager, Philippine Ports Authority v. Monserate (April 17, 2002) III. ELIGIBILITY AND QUALIFICATIONS A. Definitions Eligibility: endowment / requirement / accomplishment that fits one for a public office. Qualification: endowment / act which a person must do before he can occupy a public office.

Persons in authority and their agents. Article 152, Revised Penal Code. Temporary performer of public functions. GR: Acceptance to Office Compelled EXC: military or civil service (AII S4 Const); person elected refuses without legal motive Power = Delegated (Presumed)

BP 881: the office of any elected official

who fails or refuses to qualify within six months from his proclamation shall be considered vacant unless said failure is for cause or causes beyond his control. B. Who Prescribes Qualifications GR: Congress (who can also prescribe disqualifications). RESTRICTIONS on Congress Power: Constitution;

De Facto Officers 1. De Facto Doctrine A person admitted and sworn into office by the proper authority is deemed to be rightfully in such office UNTIL: (a) he is ousted by judicial declaration in a proper proceeding; or (b) his admission thereto is declared void. Purpose: Orderly functioning of government. 2. De Facto Officer exercises official duties under ANY of these circumstances: No known appointment or election Regarded as officer by reputation or acquiescence; Known and valid appointment or election Failure to perform condition precedent (e.g., oath-taking or bond); Known and valid appointment or election, but such is VOID because: Hes ineligible; Unauthorized electing or appointing body; Defective or irregular exercise of function;

The qualification must be germane to the position ("reasonable relation" rule);

Congress cannot prescribe qualifications so detailed as to practically amount to making a legislative appointment.

C. Time of Possession of Qualifications As specified by Constitution or law. If unspecified, 2 views:

1.
2.

qualification during commencement of term or induction into office; qualification / eligibility during election or appointment

Eligibility exists as long as officer is qualified.

(Important) The public is UNAWARE of such ineligibility, want of power, or defect.

Estoppel inapplicable. (Castaneda v.

Yap)

Citizenship requirement should be possessed on start of term ( on filing candidacy). (Frivaldo v. COMELEC, June 28, 1996) D. Eligibility = Presumed

hold any other office or employment. (Art. IX-A, Sec. 2) 5) Previous disqualification applies to the Ombudsman and his Deputies. (Art. XI, Sec. 8) 6) The Ombudsman and his Deputies are disqualified to run for any office in the election immediately succeeding their cessation from office. (Art. XI, Sec. 11) 7) Members of Constitutional Commissions, the Ombudsman and his Deputies must not have been candidates for any elective position in the elections immediately preceding their appointment (Art IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8) 8) Members of Constitutional Commissions, the Ombudsman and his Deputies are appointed to 7-year term, without reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11) 9) During the Presidents tenure, his spouse and relatives by consanguinity or affinity within the fourth civil degree shall not be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or -controlled corporations. (Art. VIII, Sec. 13) 1. Other Disqualifications Mental or physical incapacity Misconduct or crime: persons convicted of crimes involving moral turpitude are USUALLY disqualified from holding public office. Impeachment Removal or suspension from office: Previous tenure of office: for example, an appointed Ombudsman is absolutely disqualified for reappointment (Article XI, Constitution). Consecutive terms limit: a. Vice-President = 2 consecutive terms b. Senator = 2 consecutive terms c. Representative = 3 consecutive terms d. Elective local officials = 3 consecutive terms (Sec. 8, Art. X, Constitution) Holding more than one office: to prevent offices of public trust from accumulating in a single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary benefit by virtue of their dual position-holding. Relationship with the appointing power Exceptions to rule on nepotism: Confidential employees teachers physicians members of the Armed Forces of the Philippines Under the Local Government Code a. Conviction for a crime involving moral turpitude or punishable by 1 year or more of imprisonment, within 2 years after serving sentence;

Practice of Law any activity, in or out of

court, which requires the application of law, legal procedure, knowledge, training and experience. (Cayetano v. Monsod)

Residency

defined. In residence refers to domicile.

election

law,

Presumption

in favor of domicile of origin. Domicile requires the twin elements of actual habitual residence and animus manendi (intent to permanently remain). Domicile of origin is deemed to continue absent a clear and positive proof of a successful change of domicile. (Marcos v. COMELEC) E. Disqualifications to Hold Public Office General Constitutional Disqualifications a) Losing candidates should not be appointed to any governmental office within one year after such election. (Art. IX-B Sec. 6)

b)

c)

Elective officials during their tenure are ineligible for appointment or designation in ANY capacity to ANY public office or position (Art. IX-B Sec. 7(1)) Appointive officials shall not hold any other governmental position. Unless otherwise allowed by law or his positions primary functions (Art. IX-B Sec 7 (2))

2.

3. 4.

Note: No violation if another office is

held in an ex officio capacity (no compensation or other honoraria) when provided by law and required by his offices primary functions (National Amnesty Commission v COA, September 8, 2004) Specific Constitutional Disqualifications 1) The President, Vice President, the Members of the Cabinet and their deputies or assistants shall not hold any other office or employment during their tenure, UNLESS otherwise provided in the Constitution, (Art. VII, Sec. 13) 2) No Senator or Member of the House of Representatives during his term may hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or -controlled corporations or their subsidiaries, or else he forfeits his seat. He shall also not be appointed to any office when such was created or its emoluments were increased during his term. (Art. VI, Sec 13) 3) Members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12) 4) Members of the Constitutional Commission during their tenure shall not

5.

6.

7.

8.

9.

b.

Administratively removed;

c. Conviction for violating of oath of allegiance to the Republic; d. Dual citizenship;

For Appointments not requiring confirmation (AIA) 1. Appointing authority appoints. 2. Commission issues appointment. 3. Appointee accepts.

e. Fugitive from justice in criminal or non-political cases here or abroad; f. 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 the Local Government Code; g. The insane or feeble-minded.

Note: If a person is appointed to the career service of the Civil Service, the Civil Service Commission must bestow attestation. Presidential Appointees Needs concurrence of Commission on Appointments Heads of the executive departments (Art. VII, Sec. 16, Constitution); 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. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA). Doesnt need concurrence of Commission on Appointments All other officers of the government whose appointments are not otherwise provided for by law; Those whom he may be authorized by law to appoint; Members of the Supreme Court; Judges of lower courts; Ombudsman and his deputies Kinds of Appointments Permanent Presidential

Designation Imposition of additional duties upon existing office

Appointment Appointing authority selects an individual who will occupy a certain public office Comprehensive Yes. a 2nd appointive position is assumed? Usually YES

Definition

Extent of Powers Security of tenure? Is prior/1st office abandoned when

Limited No. a 2nd designated position is assumed? NO

Vacancy for Validity of appointment. (Costin v Quimbo)

Regular: while Congress is in session effective after confirmation by Commission on Appointments Ad interim: while Congress is not in session immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments. D. Qualification Standards and Requirements under the Civil Service Law 1. Qualification Standards It enumerates the minimum requirements for a class of positions in terms of: (TEPOC) education training and experience civil service eligibility physical fitness and other qualities required for successful performance. (Sec. 22, Book V, Administrative Code) The Departments and Agencies are responsible for continuously establishing, administering and maintaining the qualification standards as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules) Such establishment, administration, and maintenance shall be assisted and approved by the CSC and shall be in consultation with the Wage and Position Classification Office (ibid) It shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules) 2. Political Qualifications for an Office (i.e. membership in a political party) GR: Not Required. EXC: Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, Constitution); Party-list representation;

2. Nature of Power to Appoint

Executive and Discretionary. (Concepcion v. Paredes) Must be unhindered and unlimited by Congress. Free.

3. Classification of Appointments Permanent Temporary Eligibility and Needed Not Needed Qualification Until a permanent Until lawful Duration appointment is termination issued None EXCEPT FixedPeriod Temporary Appointments: Security of may be revoked Exists Tenure ONLY at the periods expiration. Revocation before expiration must be for a valid cause. 4. Steps in Appointing Process For Appointments requiring confirmation: Regular Appointments (NCIA) 1. President nominates. 2. Commission on Appointments confirms. 3. Commission issues appointment. 4. Appointee accepts. Ad-Interim Appointments (NIAC) 1. President nominates. 2. Commission issues appointment. 3. Appointee accepts. 4. Commission on Appointments confirms.

Commission on Appointments; Vacancies in the Sanggunian (Sec. 45, Local Government Code)

3. Effect of pardon upon the disqualification to hold public office GR: Does not restore the right to hold public office. (Art. 36, Revised Penal Code) EXC: Pardons terms expressly restores such (Art. 36, RPC);

Recall. CSC Jurisdiction includes the authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent CSC laws, rules and regulations.

Reason for pardon = non-commission of the imputed crime. (Garcia v. Chairman, COA)

E. Discretion of Appointing Official Presumed. Scope choice of person nature and character of the appointment (i.e. permanent or temporary) Promotion of next-in-rank career officer Mandatory. When Abused, use Mandamus. Upon recommendation = Merely Advisory.

Review Appointees Qualifications. The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. (Lapinid v. CSC) What it cannot do. It cannot order the replacement of the appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC) The CSC cannot co-manage or be a surrogate administrator of government offices and agencies. It cannot change the nature of the appointment extended by the appointing officer. (Luego v. CSC)

I. Appointments to the Civil Service

F. Effectivity of Appointment Immediately upon appointing authoritys issuance of appointment papers. (Rule V, Sec. 10, Omnibus Rules). G. Effects of a complete, final and irrevocable appointment GR: It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process). EXC:

SCOPE: Embraces all branches, subdivisions, instrumentalities and agencies of the Government, including GOCCs with original charters (Art. IX-B Sec. 2(1), Constitution) Classes of Service Career Service merit and fitness (i.e. competitive examination) Exceptions (nature of position): Non-career Service

Appointment = Absolute Nullity (Mitra v. Subido); Appointee commits fraud Subido); Midnight appointments (Mitra v. Qualification

Po

No examinations

General Rule: A President or Acting President (only) shall not appoint 2 months immediately before the next presidential elections until his term ends. (Art. VII, Sec. 15, Constitution) Exception: Temporary appointments to executive positions when continued vacancies will prejudice public service or will endanger public safety. H. Civil Service Jurisdiction Commissions (CSCs)

Pri

Hi period specified by law coterminous with the appointing authority duration of a particular project

Tenure

Secured

Exclusive Jurisdiction Disciplinary cases cases involving personnel action affecting the Civil Service employees appointment through certification promotion transfer reinstatement reemployment detail, reassignment demotion separation employment status qualification standards

Other Personnel Actions

Promotion - movement from one position to another with increase in duties, responsibilities and pay.

Next-in-rank Rule.

The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated. Preference Automatic Appointment Appointing authority shall specify the special

reason or reasons for not appointing the officer next-in-rank.

NO reduction in rank, status or salary.

Automatic Reversion Rule. In a chain of promotions, the disapproval of one persons promotion invalidates the promotion of those in the lower positions and automatically restores them to their former positions. But the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in their promotional appointments. (Sec. 13 of the Omnibus Rules Implementing Administrative Code)

Should have a definite date or duration (c.f. Detail). Otherwise, a floating assignment = a diminution in status or rank.

Reemployment. Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection from reemployment shall be made.

Appointment through Certification is issued to a person who is: selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles

V. ASSUMPTION AND TERM OR TENURE OF OFFICE A. Qualification to Office designates commencement tenure.

of

security

of

Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service. If UNconsented = violates security of tenure. EXCEPTIONS: Temporary Appointee

1. Appointment and Qualification to Office Distinguished Appointment is the appointing authoritys act of designating a person to a public office.

A man cannot be compelled to accept office.

A judge may not be made a judge of another district without his consent. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of the appointee. (Borromeo v. Mariano)

Career Executive Service Officer whose status and salaries are based on ranks ( positions)

Reinstatement. It is technically the issuance of a new appointment and is discretionary on the part of the appointing power. It cannot be the subject of an application for a writ of mandamus.

Qualification is the appointees act of signifying his acceptance of the appointive position. This generally consists of the taking / subscribing / filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem) Appointment Who Acts Appointing Authority Qualification Appointee

Who may be reinstated to a position in the same level for which he is qualified: Any permanent appointee of a career service position No commission of delinquency or misconduct, and is not separated.

Act Done

Designates Appointee To a Public Office

Accepts Appointive Position

Same effect as Executive Clemency, which completely obliterates the adverse effects of the administrative decision which found him guilty of dishonesty. He is restored ipso facto upon grant of such. Application for reinstatement = unnecessary.

2. Effect of Failure to Qualify

It is evidence of refusal of the office. It is a ground for removal. IF qualification = condition

precedent failure to qualify = rejection of the office

Detail is the movement of an employee from one agency to another without the issuance of an appointment.

BUT If qualification condition precedent

failure to qualify rejection 3. Justifiable reasons for delay in qualifying: Sickness Accident Other fortuitous events that excuse delay. 4. Time Limit for Qualification. 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.

Limited period. technical and

Professional, scientific positions. Temporary.

Reassignment in the SAME agency.

Management prerogative. removal without cause. Requirements:

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B. Oath of Office 1. Definition An oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says. Obligatory? GENERALLY NO. It may be dispensable, because it is a mere incident to the office and constitutes no part of the office itself. HOWEVER, the President, Vice-President and Acting President are mandatorily required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution of their office.

If Bond = condition precedent renders office

vacant. D. Term and Tenure of Office 1. Term of Office and Tenure of Office Distinguished Term of Office Tenure of Office De jure De facto Fixed and definite period Period during which the of time during which the incumbent ACTUALLY officer MAY CLAIM THE HOLDS the office. It may RIGHT TO HOLD the be shorter than the term. office 2. Legislature holds Power to Fix and Change the Term of Office When the Constitution is silent When Congress itself created the office Exception: Applying Lengthened Term to Incumbents = Legislative Appointment Null and Void NO POWER WHEN Constitution fixes term. But such term of office can be shortened or extended when people vote to ratify a constitutional amendment.

BUT, Nachura states: Only when the

public officer has satisfied the prerequisite of taking his oath of office can his right his position be considered plenary and complete. Until then, the holdover officer is the rightful occupant. (Lecaroz v Sandiganbayan) 2. Persons Authorized to Administer Oaths Notaries public; Judges; Clerks of court; Secretary of House / Senate; Secretary of Exec. Departments; Bureau Directors; Register of Deeds; Provincial governors; City mayors; Municipal mayors; Presidential appointees Any other officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath 3. Persons Obliged to Administer Oaths in All Instances Notaries public Municipal judges Clerks of court 4. When to Take Oath of Office Before discharging duties. 5. Requalify if Re-Elected/-Appointed 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 prior oath and other qualifications made before assuming his previous office are valid for his subsequent terms of office. C. Giving of Bonds 1. The Bond

3. When Term/Tenure of Office Dependent upon Presidents Pleasure

When Congress legally and constitutionally makes it so. (Alba v. Evangelista) Effect. The public officer may be removed without notice or hearing when the appointing power can exercise the power of removal at his mere discretion. (Alba v. Evangelista)

4. No Vested Interest in Term of Office

An incumbent cannot validly object to the alteration of his term. Public office is a privilege revocable by the sovereignty ( by him) at will. Thus he has no vested right in his office. (Greenshow v. U.S.)

5. 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)

E. Doctrine of Holdover 1. The Doctrine A public officer whose term has expired or services have been terminated is allowed to continue holding his office UNTIL his successor: is appointed or chosen and has qualified. (Mechem) 2. Purpose Public interest: to prevent hiatus in the public service pending the time when a successor may be chosen and inducted into office. 3. Holdover Rules When the law expressly provides for it: The office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it. Incumbent will hold-over even if beyond the term fixed by law. Holding-over public officer = de jure officer. When the law is silent: GENERAL RULE: Incumbent may hold-over. Law-making body favors it.

Nature. An indemnity bond ( penal / forfeiture

bond).

When Charged. Whenever the officer defaults,

sureties are held liable.

Purpose and Beneficiaries. Office holders benefit

To indemnify those suffering loss or injury due to officers misconduct or neglect in office. To protect public interest

2. Persons Required to Give Bond Financially accountable public officers (i.e. entrusted with collection and custody of public money); Public ministerial officers whose actions may affect an individuals rights and interests. 3. Effect of Failure to Give Bond within the Prescribed Period

If

Bond condition precedent merely constitutes a GROUND for forfeiture ( ipso facto) of the office.

11

EXCEPTION: When hold-over is prohibited, expressly (i.e. provision stating hold-over is prohibited) or impliedly (i.e. law fixes a specific date for the end of the term). Impermissible when the Constitution limits the term of a public officer and does not provide for hold-over.

Police officers may arrest criminals outside Philippine territory; Doctrine of HOT pursuit

D. Duration Limited to that term he is invested by law with the rights and duties of the office. E. Construction of Grant STRICT. Grant of powers will be construed as conferring only those expressly imposed or necessarily implied. F. Classification of Powers Ministerial Acts performed: in a given state of facts, in a prescribed Acts requiring manner, exercise of in obedience reason in to the mandate of determining when, where, and legal authority disregarding his how to exercise own judgment the power upon the acts propriety or impropriety (Lamb v. Phipps) Generally, YES. Generally, NO. Exception: When Exception: When the law expressly: officer is given requires officer the power to to perform the act substitute / in person delegate. prohibits delegation When doing of duty has been delayed for an unreasonable time. Mandamus can only compel the Always. officer to MAKE a decision (dictate HOW to decide) (BF Homes v National Water Resources Council) YES if exercise of duty = contrary to laws prescribed manner. Discretionary

Note: Art 237 of the Revised Penal Code penalizes any public officer who shall continue to exercise the duties and powers of his office beyond the period provided by law. F. Commencement of Term of Office 1. If time = fixed On specified date. 2. If time fixed On Election or Appointment date. 3. If law fixing the term = ambiguous Follow the shorter/est term. 4. If office = vacant AND terms duration and commencement are fixed

Definition

Person elected to fill the vacancy shall hold the office only for the UNEXPIRED PORTION of the term. 5. If terms [duration = fixed] AND [beginning or end fixed] Person selected to fill the vacancy may serve the FULL term 6. Where an officer is appointed to an office created to perform a single act Delegable?

Office terminates with the accomplishment of its purposes.

VI. POWERS OFFICERS A. Source

AND

DUTIES

OF

PUBLIC When is mandamus proper?

The people sovereign Public Officers authority consists of those powers: Expressly conferred upon him by the act appointing him Expressly annexed to the office by law Attached to the office by common law as incidents to it

B. Scope Powers expressly granted by law. All official powers truly covered by the Doctrine of Necessary Implication: those essential to the accomplishment of the offices main purpose; or those germane to and serve to promote the accomplishment of the principal purpose, although incidental or collateral (Lo Cham v. Ocampo).

Public Generally NO. officer liable for his Exceptions: official Fraudulent or acts? Malicious acts.

1. Discretionary Power

Definition. A lawful conferment of a power or right upon an officer to act officially in certain circumstances, according to their OWN (others) judgment and conscience. (Lamb v. Phipps) Power of Board of Canvassers = Quasi-Judicial = Discretionary. (Torres v. Ribo) Generally Unrestricted by Mandamus when the law imposes upon the officer the right or duty to exercise judgment in reference to ANY matter requiring his action (Aprueba v. Ganzon). Quasi-Judicial Officers Acts. Auditors and comptrollers, as accounting officers, are generally quasi-judicial officers. They perform ministerial duties only when the sum due is conclusively fixed by law or pursuant to law. Other than that, their actions are usually judicial

C. Territorial Extent GENERAL RULE: If a public officer is authorized by law to perform his duties at a particular place, performing them in a place not authorized by law is ordinarily invalid. (Note: This applies to all public officers whose duties are essentially local in nature, e.g. judges.) EXCEPTIONS: Consuls;

12

and discretionary (ministerial), including claims for settlement and certification of balances they deem due. Mandamus wont apply. (Lamb v. Phipps)

2. Specified Merely directory Exceptions:

Mandamus inapplicable to contractual obligations (i.e. via police power). The privilege of operating a market stall under license is not absolute but revocable under an implied lease contract subject to the general welfare clause. Mandamus never lies to enforce the performance of contractual obligations. (Aprueba v. Ganzon) Exceptions:

Statute shows a different intent (Araphoe City v. Union Pac); Disregard of statute would injuriously affect a public interest or public right; Provision has negative words importing the doing of acts only in such specified manner or time.

I. Ratification of Unauthorized Acts 1. If act was absolutely void when committed Cannot be ratified 2. If merely voidable Can be ratified and rendered valid 3. Government not estopped by its officers unauthorized or illegal acts

Abusive. When officer commits grave abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right to which the petitioner is entitled (First Phil. Holdings Corp v Sandiganbayan)

Officially Competent. When public officer is officially competent to remove or rectify an unlawful act. (Miguel v. Zulueta) No Remedy. When Plain, Speedy or Adequate remedy Available. (First Phil. Holdings Corp v Sandiganbayan) Discretion Judgment Judgment is a judicial function, the determination of a question of law. There is only one way to be right. Discretion is the faculty conferred upon a court or other officer which he may decide the question either way and still be right. 2. Ministerial Power (Lamb v. Phipps) A purely ministerial act is performed by an officer or tribunal in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, disregarding the exercise of his own judgment upon the acts propriety or impropriety. It is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. It is a precise act, accurately marked out, enjoined upon particular officers for a particular purpose.

Especially when the individual benefited. As between an individual and his government, an individual cannot plead the void act of an official to shield him from the governments demand that he (the individual) fulfill an obligation which he has contracted with the government. Not after the benefits accruing to him as a result of that obligation have been received. The government can neither be estopped nor prejudiced by the illegal acts of its servants. (Government v. Galarosa) Officers Wrong Construction Disregarded. A tax circular issued on a wrong construction of the law cannot give rise to a vested right that can be invoked by a taxpayer. (Hilado v. Collector)

I. Accountability and Responsibility of Public Officers and Employees Norm of Performance of Duties: standards of personal conduct provided for in Sec. 4, RA 6713 Commitment to public interest; Professionalism; Justness and sincerity; Political neutrality; Responsiveness to the public; Nationalism and patriotism; Commitment to democracy; Simple living J. Prohibitions

G. Duties of Public Officers 1. General (Constitutional) a) To be accountable to the people; to serve them with utmost responsibility, integrity, loyalty and efficiency to act with patriotism and justice, and to lead modest lives (Art. XI, Sec. 6) b) To submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often thereafter as may be required by law (Art. XI, Sec 17) c) To owe allegiance to the State and the Constitution at all times (Art. XI, Sec. 18) 2. Specific

(a)

Partisan political activity. No civil service officer or employee shall engage, directly or indirectly, in any electioneering or partisan political campaign. (Sec. 5(3), Sec. IXB) Armed Forces included. Civil Service Law prohibits them to: engage directly or indirectly in any partisan political activity take part in any election, except vote use official authority to coerce any person or body in political activity.

OKAY to express views on current political problems (Caltex v Bonifacio) Prohibition on Campaigning except on campaign period. This provision is diff from Sec. 79 BP 881 which makes it unlawful for any person or any political party to engage in election campaign or partisan political activity except during campaign period. Election campaign or partisan political activity refers to an act designed to promote the election or defeat of a candidate/s to public office.

The Solicitor General is represent the government.

duty-bound

to

Except in criminal cases or civil cases for damages arising from felony (Gonzales v Chavez)

H. Time of Execution of Powers 1. Specified Within a reasonable time

13

If done for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, it shall not be considered as election campaign or partisan political activity.

Public Office Intruder / Usurper Right to Salary / Compensation attached to office.

3. Some Constitutional Provisions Affecting Salaries

(b)

Additional double or indirect compensation unless: law specifically authorizes such Congress consents to any foreign governments any present emolument, office or title of any kind from (Sec. 8, Art. IX-B)

Increase of salaries of members of Congress shall take effect after expiration of the full term of the Members of the Senate and the House of Representatives who approved increase. (Sec 10, Art. VI)

(c)

Loans guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the ff: (1) President (2) Vice President (3) Members of the Cabinet (4) The Congress (5) The Supreme Court (6) The Constitutional Commissions (7) The Ombudsman (8) To any firm to which they have controlling interest during their tenure

Presidents and Vice Presidents salary: shall be fixed by law shall not be decreased during their tenure increase shall take effect after expiration of the term of the incumbent who approved increase (Sec. 6, Art. VII)

Judiciary members salary shall not be decreased during their stay in office (Sec. 10, Art. VIII). BUT imposition of income taxes on their salaries unconstitutional diminution (Nitafan v Tan)

Additional, double or indirect compensation are PROHIBITED (Sec. 8, Art. IX-B) Standardization of compensation (Sec. 5, Art. IX-B) enunciated in RA 6758 or Salary Standardization Law. 4. Compensation element of public office

(d) (e) (f)

Limitation on Laborers. They shall not be assigned to perform clerical activities. Detail or assignment within three months before any election UNLESS Comelec approves Nepotism: All appointments made in favor of a relative (within the third civil degree of consanguinity or affinity) of the appointing authority or the chief of the bureau or office of the persons exercising immediate supervision over him. This covers all appointments and designations, including subsequent personnel actions. (ex. promotion, reinstatement etc).

indispensable part merely incident some public offices are served gratuitously.

5. Salary vs Wages vs Per Diems Salary Time-Bound Wages Service-Bound Per Diem Allowance for Days Actually Spent for special duties

6. Public Officers Salary Attachable VII. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS A. Right to Office It is the right to exercise the powers of the office to the exclusion of others. B. Right to Salary or Compensation 1. BASES The legal title to the office The fact that the law compensation to his office 2. GENERAL RULES The salary of a public officer or employee may NOT be: seized by garnishment, attachment, or order of execution before it is paid to him appropriated for paying his debts. Money in the hands of public officers, though due to government employees, cannot be garnished by these employees creditors. The State cannot be sued without its consent. (Director of Commerce and Industry v. Concepcion)

attaches

7. Agreements Affecting Compensation Void Invalid as against public policy It tends to pervert such compensation to a purpose other than that for which it was intended Interferes with the officer's free and unbiased judgment in relation to the duties of his office. (This is usually with reference to unperformed services and the salary or fees attached thereto.) Future or Unearned Salaries Assignable Salary or emoluments in public office proper subjects of barter and sale. (22 R.C.L. 541)

Compensation requires validly-created office. A public officer is not entitled to compensation for services rendered under an unconstitutional statute or provision thereof.

EXCEPT if some other statute provides otherwise. Compensation stipulated official service = gratuitous. If law does not fix compensation, the public officer is presumed to have accepted rendering the service office gratuitously. Subsequent law cant eradicate compensation for past services. After a public officer has rendered services, his earned compensation cannot be taken away by a subsequent law. HOWEVER, he cannot recover salary for the period he did not perform services. Officer without legal title cant recover salary or compensation attached to office.

8. Right to Recover Salary: De Jure Officer and De Facto Officer

The prevailing party in an election protest can no longer recover the salary paid to the ousted officer (a duly proclaimed elective official who assumed office but is subsequently ousted).

14

Reason. The latter acted as de facto officer during his incumbency; he thus entitled to compensation, emoluments and allowances that were provided for the position (Rodriguez v. Tan) Exception: If de facto officer committed electoral fraud. A de jure officer can recover salary from: the Government when: it has received notice of adjudication of the protest in favor of de jure officer and afterwards still continues to pay the de facto officer. a De Facto Officer when: he receives notice of adjudication of the title to the de jure officer and he still continues to exercise official duties and receive salaries and emoluments. an Intruder / Usurper: Always. Liability for Impulsiveness. The mayor filed a certificate of candidacy for congressman. Later he withdrew and decided to reassume mayoralty position, thus preventing the vicemayor from discharging mayoralty duties. The mayor should reimburse the vice-mayor for the salary he received upon reassuming mayoralty, during which time the rightful occupant of the mayoralty position is the vice-mayor. (Monroy v. CA and del Rosario) or Double Compensation

reckless, malicious or corrupt.

2. Purpose of the Doctrine

Indirectly Protect the Sovereign by protecting the public official in the performance of his governmental function Result of extended immunity: promotion of fearless and effective administration of the governments policies.

3. Presidential Immunity from Suit Applicable only during tenure.

After tenure, cannot be invoked for civil damages arising out of acts done during his tenure (Estrada v Desierto, March 2, 2001)

D. Right to Preference in Promotion Does not prevail over the appointing authoritys discretion. E. Right to Vacation and Sick Leave

However Maleniza v COA held that elective officials entitled to accrued vacation and sick leave credits Reason. They have no official hours of work. NOTE: However, this ruling may be considered abandoned by Section 81 of the Local Government Code stating that elective local officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials.

9. Additional Prohibited

Additional There is only 1 position, but the public officer is getting additional compensation.

Double There are 2 positions, and with additional functions and emoluments for both positions

F. Right to Maternity Leave G. Right to Retirement Pay

Liberally construed in retirees favor. (Proferata v Drilon) Basic Value of the retiring government officials terminal leave = HIGHEST monthly salary (Belicena v Sec. of Finance)

Pensions / gratuities additional, double, or indirect compensation. (Sec. 8, Art. IX-B, 1987 Constitution) Bonus = additional remuneration compensation. (Peralta v. Auditor General) or

H. Others

An allowance for expenses incident to the discharge of the duties of office increase of salary, a prerequisite nor an emolument of office. (Peralta v. Auditor-General) of Salary during Period of =

10. Recovery Suspension

Right to Reimbursement for expenses incurred in the due performance of his duty. BUT a public officer who uses a government vehicle is not entitled to, nor can he charge, a transportation allowance (Domingo v COA, Oct. 7, 1998) Right to Indemnity against any liability incurred in the bona fide discharge of their duties. Right to Longevity Pay Right to Separation Pay Given to Civil Service employees who are separated from the service only for reason of reorganization (Sec. 16, Art XVIII). Right to additional allowances and benefits under the Local Government Code. LGUs may provide additional allowances and benefits to national government officials stationed to their municipality or city.

If preventively suspended, salary recoverable. EXCEPT if subsequently exonerated recoverable.

If removed BUT completely exonerated upon appeal = recoverable. If reinstatement by an act of liberality (exoneration) of the Court of Appeals recoverable. If removed BUT later penalty commuted (i.e. to suspension / demotion) recoverable: he was still found guilty, although the penalty was reduced. If the suspension / removal unjustified, = recoverable.

C. Doctrine of Official Immunity 1. The Doctrine A public officer enjoys qualified (absolute) immunity. The protection generally applies only to activities:

VIII. Liability of Public Officers GENERAL RULE: Not for injuries sustained by another as a consequence of official acts done: within the scope of his official authority in good faith.

within the scope of office; done in good faith; and

15

 HOWEVER, Section 24 of the Local Government Code holds officials liable for death or injury to persons or damage to property. EXCEPT: When law provides otherwise.

Held. The Commissioners acted outside the scope of their authority. They are only empowered to supervise (control) the conduct of races.

1. 2.

Bad Faith, Malice or Negligence is clearly shown. (Sec. 38(1) Admin Code) Subordinate officers or employees acts that are willful or negligent acts which are contrary to law, morals, public policy and good customs even if subordinate acted upon his superiors orders or instructions. (Sec. 39, Admin Code)

Determining acts inclusion in scope of duties. It is sufficient that the acts relate to matters under his control or supervision as defined by law, OR that the acts are more or less connected to the officers department.

For the acts validy, it is not necessary that they be prescribed by statute, or that they be specifically directed or requested by a superior officer. However, the Commissioners were ABSOLVED from liability because they acted officially in the honest belief that they had such power. 3. Acts of Liability of a Ministerial Officer

3.

Refusal or Neglect of Duty. Any person suffering moral or material loss because a public officer refuses or neglects, without just cause, to perform his official duty, may file an action for damages and other relief against the public officer. This is without prejudice to administrative disciplinary action against the officer. (Art. 27, Civil Code)

NONfeasance: neglect or refusal, without sufficient excuse, to perform his legal duty. MISfeasance: failure to perform an official duty carefully, skillfully and diligently. MALfeasance: acting, either through ignorance, inattention or malice, without legal right. GENERALLY, a ministerial officers Good Faith and Absence of Malice are immaterial defenses for nonfeasances or misfeasances. HOWEVER, good faith or honest mistake may mitigate damages.

4. 5.

Liability of public officer for violation of constitutional rights of individuals. (Art. 32, Civil Code) Liability of peace officers who fail to respond or give assistance to persons in danger of injury to life or property. Note: The municipal corporation is subsidiarily liable. (Art. 34, Civil Code)

6.

Non-performance of Duty. Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to other applicable penaties. (Sec. 38(2) Chapter 9, Book I, Administrative Code) 1. Threefold Liability Rule. The wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action can proceed independently of the others. Dismissal or relief from the criminal action/liability does not carry with it relief from administrative liability 2. When a Public Officer if Subject to Civil Liability The following must concur: The individuals injury is established. The public officer violated (a right of) OR (a duty he owes to) the individual. The officer acted: maliciously and in bad faith; and outside the scope of his / her authority (ultra vires). A public officers mistakes committed in good faith actionable. Illustration. (Phil. Racing Club v. Bonifacio)

4. Superior Officers Liability for Subordinates Acts GENERAL RULE: A superior public officer is not civilly liable to 3rd persons whenever his subordinates wrongfully act, omit or neglect to perform his duty, or commit misfeasance. Those in the chain of command are not subject to suit on any theory of vicarious responsibility. (Sec 38(3), Chap 9, Book I, Admin Code) EXCEPTIONS when the superior: has actually authorized, by written order, the specific act or misconduct complained of. (Sec 38(3), Chap 9, Book I, Admin Code) negligently or willfully hires or retains unfit or improper persons;

is

charged with reviewing an appointees qualifications and negligently or willfully fails to require the appointee to conform with the prescribed regulations is careless or negligent in overseeing his subordinates conduct or the latters carrying out of his business, furnish the latter opportunity for default; directed, authorized or cooperated in the wrong; is expressly liable as statute provides. 5. Liability of Subordinates NO personal liability for acts done: in good faith and under superiors lawful orders LIABLE for willful or negligent acts that are contrary to law, morals, public policy or good customs, EVEN IF he acted under his superiors orders. 6. Liability on Contracts The public officer shall be personally liable for contracts he entered into without or in excess of his authority.

Facts. The members of the Commission on Races cancelled a horse race held by the Philippine Racing Club due to a faulty start, but only after holders of the winning tickets were able to claim their prizes. Because of the Commissions tardy cancellation, the Club also had to refund the losing ticket holders. The Club sued the Commission for civil liability.

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7. Liability for Tortuous Acts

Public officers are not immune from suit arising from their own tortuous conduct, even if such conduct is committed in the course of their employment. The public officer shall be personally liable IF he acts beyond the scope of his authority, or exceeds his lawfully-conferred powers. Reason. The unauthorized acts of government officials are not acts of State, and so the public officer may be held personally liable. (Shauf v CA; Wylie v Rarang)

Exclusive.

The Supreme Courts power of administrative supervision over judges and court personnel is exclusive. (Dolalas v. Ombudsman-Mindanao)

Separation

of Powers. Investigation by the Ombudsman undermines the independence of the judiciary. (Dolalas v. OmbudsmanMindanao) B. Over Non-Presidential Appointees 1. Grounds

8. Criminal Liability still exists whether: The Public Official officially acted. The Public Officials term expired after committing misdemeanor in office. The Public Official is re-elected after incurring criminal liability in his previous term of office.

Sec. 46(a), Book V of the Administrative Code: No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. Sec. 46(b) enumerates the grounds constituting just cause.

IX. ADMINISTRATIVE DISCIPLINE A. Over Presidential Appointees 1. Disciplinary Authority Appointing Authority Lies with the

2. Jurisdiction File original complaints: directly with the CSC or with the Secretaries and Heads of agencies and instrumentalities, provinces, cities and municipalities for officers and employees under their jurisdiction. Their decision to impose a penalty of suspension of at most 30 days OR a fine of at most 30 days salary is FINAL. Decisions imposing other penalties are APPEALABLE to the CSC: Such other penalties are: suspension for more than 30 days fine in an amount exceeding 30 days salary demotion in rank or salary transfer removal dismissal from office. Official has OPTION to initially appeal to the department and finally to the CSC.

CSC

can only discipline non-presidential appointees. (Olonan v. CSC) Read together Sections 47(1) and 48 of Book V of the Administrative Code. Sec. 47(1) provides that a complaint may be filed directly with the CSC by a private citizen against a government official or employee in which case it may hear and decide the case. Sec. 48 is entitled Procedure in Administrative Cases Against Non-Presidential Appointees. The very subject of Sec. 48 implicitly limits the scope of the CSCs jurisdiction in administrative cases to non-presidential appointees and makes the patent conclusion that it is the President as appointing power who has disciplinary authority over presidential appointees.

2. Power to Appoint Implies the Power to Remove; Exceptions: Justices of the Supreme Court (by impeachment) Members of Constitutional Commissions (by impeachment) Ombudsman (by impeachment) Judges of inferior courts (disciplinary or removal power vested in the Supreme Court)

Execution available.

pending

appeal

Except when the penalty is removal executory only after the Secretary confirms. 3. Procedure in Administrative Cases Against Non-Presidential Appointees

Sec. 6, Art. VIII of the Constitution exclusively vests the Supreme Court with administrative supervision over all courts and court personnel. (Bonifacio Sans Maceda v. Vasquez)

Where a criminal complaint against a judge or other employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the SC who will determine whether said judge or court employee had acted within the scope of their administrative duties. (Bonifacio Sans Maceda v. Vasquez)

(Against whom) a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors (How) upon sworn written complaint of any other person. 1. Complainant shall submit his: sworn statements covering his testimony and those of his witnesses and documentary evidence. 2. If prima facie case:

A judge who falsifies his Certificate of Service is administratively liable to the SC for serious misconduct and inefficiency under Sec. 1, Rule 140 of the Rules of Court and criminally liable to the State under the Revised Penal Code for his felonious act. The Ombudsmans referral to the SC is for determining whether the Certificates falsified the true status of his pending case load, as the SC had the necessary records to make such a determination. (Bonifacio Sans Maceda v. Vasquez)

exist disciplining authority shall dismiss the case.

exists he shall notify the respondent of the charges against the latter in writing. 3. Respondent shall be allowed at least seventy-two hours after receipt of the complaint to answer the charges: in writing under oath together with supporting sworn statements and documents

17

 indicating whether or not he elects a formal investigation should his answer be found unsatisfactory.

(By Who on Whom) The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority (When) Pending an investigation (Grounds): dishonesty; or oppression or grave misconduct; or neglect in the performance of duty; or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. (Maximum period) 90 days for national officials 60 days for local appointive and elective officials

4.

If the answer = satisfactory disciplining authority shall dismiss. 5. If the disciplining authority cannot judiciously decide the merits of the case on the bases of the: Complainants allegations; Respondents answers; and Their supporting documents he shall conduct a formal investigation, regardless of respondents preference not to elect one. 6. Either party may avail of: a counsels services;

subpoena
attend;

to

compel

witnesses

to

subpoena

duces tecum to compel production of documentary evidence in his favor. 7. The disciplining authority shall decide within 30 days from: termination of the investigation OR

EXCEPT if the case is filed in the Ombudsman may impose a 6-months preventive suspension. If the administrative case against a NONPRESIDENTIAL APPOINTEE under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after suspension date, the respondent shall be automatically reinstated in the service.

submission

of investigators report should be submitted within 15 from the conclusion of the investigation. 4. Appeal OR Petition for Reconsideration Appeal within 15 days from receipt of the decision.

7. Penalty Similar offenses can only be penalized once regardless of its number. Only one penalty imposable for each case. If respondent is guilty of TWO OR MORE charges or counts, the disciplining authority shall impose the MOST SERIOUS charge or count. The rest are aggravating circumstances. (Sec. 17 of the Implementing Civil Service Rules and Regulations) Imposable penalties: Removal from the service 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, The Administrative Code)

Available only when respondent is found guilty (exonerated) because: PD 807 does not contemplate a review of decisions exonerating officers or employees from administrative charges.

Party adversely affected by the decision in Section 39 of the Civil Service Law refers to the government employee against whom case was filed. (Mendez v. Civil Service Commission) Seasonably file a petition for reconsideration.

Exclusive grounds:

Newly discovered evidence which materially affects the rendered decision; The decision is unsupported by the evidence on record; or

Existence of error of law or irregularities which prejudice respondents interests. It is decided within 15 days from petition. Available only once. 5. Summary Proceedings

A penalty. A reprimand, whether given by the Civil Service Commission or the head of department or agency, shall be considered a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations) and (Tobias v. Veloso)

Warning. A warning or an admonition shall not be considered a penalty. (Sec. 15 of the Implementing Civil Service Rules and Regulations) Warning Admonition Reprimand act or fact of putting one on his guard gentle or friendly reproof or a mild rebuke formal and public censure or a severe reproof or

Formal investigation necessary respondent may be immediately removed or dismissed Grounds for application: When the charge is serious AND the evidence if guilt is strong; When the respondent is a recidivist or has been repeatedly charged AND there is reasonable ground to believe that he is guilty of the present charge; and When the respondent is notoriously undesirable.

Removal of Administrative Penalties Disabilities Requisites: In meritorious cases AND upon recommendation of the CSC.

Who Removes. The President may commute When. In disciplinary cases

or remove administrative penalties or disabilities imposed upon officers or employees

6. Preventive Suspension

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 Condition.

Subject to the Presidents terms and conditions imposed in the interest of the service. C. Over Elective Officials Elective Official Administratively Sued Provincial or city official Municipal official Office of the President Sangguniang Panlalawigan Sangguniang Barangay official Panlungsod or Sangguniang Bayan Where to File Complaint

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