Admin and Pub Off Law Pre Week Review

8/10/2019 Admin and Pub Off Law Pre Week Review

1/19

Pre-Week

ReviewerADMINISTRATIVE LAW and

PUBLIC OFFICERS LAW

UP COLLEGE OF LAW

Bar Operations 2008

Political Law Team

Andi Lacuesta !ead"# $te%e &ercano 'eput("# )%ette )ane*a#

$te%e &ercano Admin Law"# +eneline ,icolas Local

Go%ernment"# &ae &acasero Pu-lic O..icers"# /ristine

Boncaron# 1omulo 1amire*# +oanna Capones Constitutional

Law "# Luis +ose F3 Geronimo# +udit4 Ann Ale5o# &a3 Florence

T4erese '3G3 &artire*# Ga(le 6sip71e(es# /ristina amora#

Ferdinand &ane-o# Emmeline Esco-illo# +enni.er 1e(es# +eric4o

del Puerto Constitutional Law 2"# Andi Lacuesta# +eneline

,icolas# $te%e &ercano# C4ristina 1ondario# Bridet 1ose &esina

Election Law"# C4ristina 1ondario# Ti.anie Gerona Pu-lic 6ntl

Law"

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A'&6,6$T1AT69E LAW

I. GENERALPRINCIPLES Factors

responsible for the emergence ofadministrative agencies:

(1) growing complexities of modern life(2) multiplication of number of subjects

needing government regulation

(3) increased difficulty of administering laws(Pangasinan Transportation v PublicService Commission)

Why there isa need for administrative agencies/bodies:Branches of government lack:(1) time,() expertise, and(!) organi"ational aptitudefor effective and continuing regulation of newdevelopments in society#

Administrative law =

(a) fixes the organi"ation,(b) determines the competence ofadministrative authorities, and(c) indicates to the individualremedies for the violation of his rights#

Kinds ofAdministrative Lawa# $tatutes setting up administrative

authorities#b# %ules, regulations, or orders of

such authorities promulgated pursuant topurposes for which they were created#

c# &eterminations, decisions, andorders of such authorities to settle disputesarising in their fields#

d# Body of doctrines and decisionsdealing with the creation, operation, andeffect of determinations and regulations ofsuch authorities#

2 Senses ofAdministration:(1) function () organi"ation

2 Kinds ofAdministration:

(1) internal (legal)

(2) external(problems of govt regulations)

Administrative Agency =(a) any governmental organ or authority,

other than a court or legislative body,which affects the rights of private partiesthrough rule'making and adjudication

(b) any department, bureau, office,commission, authority, or officer of theovernmentauthori"ed by law or * to(1) make rules() issue licenses

(!) grant rights or privileges, and(+) adjudicate cases#

owers of anAdministrative Agencya# rule'making -uasi'

legislativeb# adjudicatory -uasi'

judicialc# determinative

' licensing' pricerate'

fixing' implementin

g executing

!ypes of

Administrative Agenciesa" as to p#rpose

(1) overnmentgrant or gratuity,special privilege

Bureau of .ands

/hil# 0eterans dmin#

$2$, $$$, /*

() 3arrying out the

actual business ofgovernment

B2%

3ustoms, 2mmigration

.and %egistrationuthority

(!) $ervice for publicbenefit

/hilpost

/4%

56$$

47, 48

(+) %egulation of

businessesaffected withpublic interest

2nsurance 3ommission.97%B, 493

8.%B

(;) %egulation ofprivatebusinesses andindividuals

$3

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;# prescription ofminimum procedural re-uirements

b# 3ongressional *versight 3ommittee1# scrutiny# 3ongressional

investigation

3. legislative supervision

legislative veto

B. xecutive /owersa# appointmentb# controlc# supervision

sworn duty to preserve and defend the3onstitution and execute the laws

3# @udicialpower of judicial review

views:(a) radical (b) traditional accepted

deference to agencies? greaterexpertise and experience in theirareas of speciali"ation

*mbudsman

III. PO#ERSANF$NCTIONSOFA!INISTRATI"EAGENCIES

%istinctions:

A. Legislative Function non&delegation doctrine

%e-uisites for a valid delegation:(1) completeness() e'istence ofs#fficient standard

may be express, implied, orembodied in other statutes onthe same matter, notnecessarily in the same lawbeing challenged

judicial determination of

sufficiency of standards:(a)interest of law and order(b)public interest(c)justice, e-uity and the substantial

merits of the case(d)what is moral, educational, or

amusing(e)ade-uate and efficient instruction(f)reasonableness

(g)promotion of simplicity, eonomy,

or efficiency(h)maintenance of monetary

stability, promotion ofproduction and real income

cannot be delegated:

(a) creation of municipalities(notthe merging of administrativeregions)(b) defining crimes

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

(c) administrative rule'making limits on r#le&ma(ing:

(1) must be authori"ed bylaw() must not amend or beinconsistent with the law(!) must be germane to thepurpose of the law it wasmeant to implement(+) must not restrict,expand, diminish, supplant,or modify the law(;) may not unilaterallyimpose a new legislativepolicy

(6) may not delegate to amere constitutive unit therulemaking authoritylegislatively vested in thehead of an executivedepartment

)ndispensability of #blication exceptions:

1# interpretative rules# internal regulations

3. letters of instructions issued byadministrative superiors tosubordinates

ll rules with respect to the fixing ofrates must first give notice and hearing#

Legislative Rules Interpretative Rules

promulgated pursuantto its -uasi'legislative rule'makin

g functions#

passed pursuant to its-uasi'judicial capacity#

create a new law, a

new policy, with theforce and effect of law#

merely clarify the

meaning of a pre'existinglaw by inferring itsimplications#

need publication# need not be published#

$o long as the courtfinds that the legislativerules are within thepower of theadministrative agencyto pass, as seen in theprimary law, then therules bind the court#9he court cannot-uestion the wisdom orcorrectness of thepolicy contained in therules#

9he court may reviewtheir correctness of theinterpretation of the lawgiven by theadministrative body, andsubstitute its own view ofwhat is correct to theadministrative body# 2f itis not within the scope ofthe administrativeagency, court can onlyinvalidate the same butnot substitute its decisionor interpretation or giveits own set of rules#

&ue process involveswhether the partieswere afforded theopportunity to benotified and heardbefore the issuance ofthe ruling#

&ue process means thatthe body observed theproper procedure inpassing rules#

B. %u&icial Functions an& Po'ers1# 2nvestigation and adjudication# /ower to issue subpoena anddeclare contempt

6hile allagencies with *#asi&+#dicial f#nctionshave the power to

(asis )uasi*legislative

)uasi*+u&icial

As toproced#ralstandards

9he procedureis that normallyobserved in the

making of rules#

9he proceduremust observe there-uirements of

due process in the= cardinal rules#

As to time %ule'making isprospective incharacter, for itonly governsfuture acts#

djudication isretrospective incharacter, for itinvestigates actsalready done andthen applies thelaw on the facts#

As toapplication

.egislative rulesare of generalapplication

djudicativerulings apply onlyto parties

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issue subpoenas, even if their charteris silent as to it, not all of suchagencies also have thepower to citefor contempt# 9his must be expresslygranted in the charter# lse, the %93must be invoked#!# dministrative searches andsei"ures

power to issue warrant of arrest:none,e'ceptin the case ofdeportation of illegal undesirablealiens, following a final order ofdeportation# ()ua C,ee Gan veportation (oar&)

I". A!INISTRATI"EPROCE$RE 3ardinal /rimary %ights of &ue /rocess:

(Ang Tiba- v CIR)

1. %ight to a hearing> to present one?s owncase and submit evidence in supportthereof

/resence at a trial is not necessarily

the essenec of due process# ll thatthe law re-uires is the element offairness, that the parties be givennotice of trial and:

(a) an opportunity to beheard

(b) in administrativeproceedings, an opportunity toseek reconsideration> or(c) an opportunity toexplain one?s side

2. 9he tribunal must consider the evidencepresented#

3. 9he decision must be supported byevidence#

4. vidence must be substantial# Substantial Evidence

such relevant evidence as areasonable mind might accept asade-uate to support a conclusion,even if other minds e-uallyreasonable would opine otherwise#

;# &ecision must be rendered on theevidence presented at the hearing or atleast contained in the record anddisclosed to the parties affected#

will only causegreat and irreparable damage which

cannot be prevented except by takingthe appropriate court action

(g)the administrative remedy is only

permissive or voluntary and not aprere-uisite to the institution of judicialproceedings

(h)the controversy involves the rule'making

or -uasi'legislative functions of anadministrative agency

(i)administrative agency is in estoppel

(j)

where the appeal to the *ffice of the/resident was not acted upon despitefollow'ups, and in the meantime, theassailed administrative resolutioncontinued to be put in effect

(k)the subject of controversy is private land,

in land case proceedings(l)unreasonable delay or official inaction

(m)administrative action is patently illegal

amounting to lack or excess ofjurisdiction

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summary enforcement without need foradjudication:

' 32%: distraintof personal property or levy on realproperty' &*8:abatement of nuisance

' /3:se-uestration of ill'gotten wealth

2f officials refuse to implement a final andexecutory judgment, the remedy ismandam#s#

xecution must conform to that ordained ordecreed in the dispositive part of thedecision# 6here the order of execution is notin harmony with and exceeds the judgmentwhich gives it life, the orderpro tantohas novalidity# (Clavano v 0L$R()

LAW O, PUBL6COFF6CE1$

Public Oicer

performs discretionary governmental publicfunctions duties

became such by law, election, orappointment#

(6ho !A4 (E /ublic *fficers ) 9he termCofficerD includes any government employee,agent, or body authori"ed to exercisegovernmental power in performing particularacts or functions ($ec# (1+) dministrative

3ode), like:

ersons in a#thority and their agents"rticle 1;, %evised /enal 3ode#

!emporary performer of p#blicf#nctions" .

%: cceptance to *ffice E 3ompelledF3:

military or civil service A)) S0 1onst3

person elected ref#ses witho#t legalmotive

/ower G &elegated (E/resumed)

e Facto Oicers

5. e Facto octrine person admitted and sworn into office by theproper authority is deemed to be rightfully in suchoffice 492.:

(a) he is ousted by judicial declaration in aproper proceeding> or(b) his admission thereto is declared void#

/urpose: *rderly functioning of government#

6. e Facto Oicer exercises official duties under4H of these circumstances:

4o known appointment or election %egarded as officer by reputation or

ac-uiescence>

Inown and valid appointment orelection

7ailure to perform condition precedent(e#g#, oath'taking or bond)>

Inown and valid appointment orelection, but such is 0*2& because:

8e?s ineligible>

nauthori"ed electing or appointingbody>

&efective or irregular exercise offunction>

(2mportant) 9he public is46% of such ineligibility, want ofpower, or defect#

lected or appointed via anunconstitutional law, before adjudged assuch#

n intruder usurper may be presumed ade facto officer with the passage of time,when the public presumes in their minds24 **& 7298 that the intruder isrightfully acting as a public officer#

7. #,o ma- Contest

Juo warranto proceedings may be filed by:

9he person claiming entitlement tothe office>

9he %epublic of the /hilippines(represented by the $olicitor'eneral ora public prosecutor)

8. Liabilities o e Facto Oicers

$ame as de jure officer, even for crimes#

9. e Facto Oicer:s Compensation ; None

&e jure officer may even recover from himthe salary he received (4onroy v 1A)#

F3/92*4$

4* de jure officer#

6hen the de jure officer assumedanother position under protest with pay 5en"4anager6 hilippine orts A#thority v"4onserate April 786 2992

III. ELIGI(ILIT4 AN )$ALIFICATIONS

A. einitions

ligibility: endowment re-uirement accomplishment that fits one for a publicoffice#

Jualification: endowment act which aperson must do before he can occupy apublic office#

B/ 1: the office of any elected officialwho fails or refuses to -ualify within sixmonths from his proclamation shall beconsidered vacant unless said failure is forcause or causes beyond his control#

(. #,o Prescribes )ualiications

%: 3ongress (who can also prescribedis-ualifications)#

%$9%2392*4$ on 3ongress? /ower:

3onstitution>

9he -ualification must be germane tothe position (Kreasonable relationK rule)>

3ongress cannot prescribe-ualifications so detailed as to practicallyamount to making a legislative appointment#

C. Time o Possession o )ualiications

s specified by 3onstitution or law#

2f unspecified, views:

1. -ualification during commencementof term or induction into office>

# -ualification eligibili ty duringelection or appointment

ligibility exists as long as officer is -ualified#

stoppel inapplicable# (1astaneda v"ap

)

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3iti"enship re-uirement should bepossessed on start of term (E on filingcandidacy)# Frivaldo v" 1;4-L-16 ,#ne 2

. Eligibilit- < Presume&

?ractice of Law@any activity, in or out ofcourt, which re-uires the application of law,legal procedure, knowledge, training andexperience# (1ayetano v" 4onsod)

?$esidency@ defined" 2n election law,residence refers to domicile#

res#mption in favor of domicile of origin"&omicile re-uires the twin elements of actualhabitual residence and anim#s manendi(intent

to permanently remain)# &omicile of origin isdeemed to continue absent a clear and positiveproof of a successful change of domicile#(4arcos v" 1;4-L-1)

E. is=ualiications to 0ol& Public Oice

General Constitutional is=ualiicationsa) .osing candidates

should not be appointed to anygovernmental office within one yearafter such election# (rt# 2F'B $ec# rt# 2F'3,$ec# 1> rt# 2F'&, $ec# 1> rt F2, $ec# )

) 5embers of 3onstitutional 3ommissions,the *mbudsman and his &eputies areappointed to ='year term, without

reappointment ($ec# 1() of rts# 2F'B,3, &> rt# F2, $ec# 11)

L) &uring the /resident?s tenure, his spouseand relatives by consanguinity or affinitywithin the fourth civil degree shall not beappointed as 5embers of the3onstitutional 3ommissions, or the*ffice of the *mbudsman, or as$ecretaries, ndersecretaries, chairmenor heads of bureaus or offices, includinggovernment'owned or 'controlledcorporations# (rt# 0222, $ec# 1!)

Ot,er is=ualiications7" 4ental or physical incapacity

2. 4iscond#ct or crime: persons convicted ofcrimes involving moral turpitude are$..H dis-ualified from holding publicoffice#

B" )mpeachment

0" $emoval or s#spension from office:

5. revio#s ten#re of office: for example, anappointed *mbudsman is absolutelydis-ualified for reappointment (rticle F2,3onstitution)#

6. 1onsec#tive terms limit:a# 0ice'/resident G consecutivetermsb# $enator G consecutive termsc# %epresentative G ! consecutivetermsd# lective local officials G !consecutive terms ($ec# , rt# F,3onstitution)

7. Colding more than one office: to preventoffices of public trust from accumulating ina single person, and to prevent individualsfrom deriving, directly or indirectly, any

pecuniary benefit by virtue of their dualposition'holding#

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b# dministratively removed>

c# 3onviction for violating of oath ofallegiance to the %epublic>

d# &ual citi"enship>

e# 7ugitive from justice in criminal

or non'political cases here or abroad>

f# /ermanent residents in a foreigncountry or those who have ac-uired theright to reside abroad and continue toavail of the same right after theeffectivity of the .ocal overnment3ode>

g# 9he insane or feeble'minded#

&esignation ppointment

&efinition2mposition ofadditional dutiesupon existingoffice

ppointing

authority selectsan individual whowill occupy acertain publicoffice

xtent of/owers

.imited 3omprehensive

$ecurity oftenureM

4o# Hes#

2s prior1stofficeabandonedwhenN

Na nddesignatedposition isassumedM4*

Na ndappointiveposition isassumedM suallyH$

Eacancy for Ealidity of appointment" (1ostinv #imbo)

6. Nature o Po'er to Appoint

-'ec#tive and %iscretionary" (1oncepcion v"aredes)

4#st be #nhindered and #nlimited by1ongress"

Free"

7. Classiication o Appointments

Permanent Temporar-ligibility andJualification

4eeded 4ot 4eeded

&urationntil lawfultermination

ntil a permanentappointment is

issued

$ecurity of9enure

xists

4oneF3/9 Fi'ed&

eriod !emporaryAppointments:may be revoked

*4.H at theperiod?s expiration#%evocation beforeexpiration must befor a valid cause#

8. Steps in Appointing Process

7or ppointments re-uiring confirmation:

Regular Appointments 1NCIA21# /resident nominates## 3ommission on ppointments confirms#!# 3ommissionissues appointment#+# ppointee accepts#

A&*Interim Appointments 1NIAC21# /resident nominates## 3ommission issues appointment#!# ppointee accepts#

+# 3ommission on ppointments confirms#

7or ppointments not re-uiring confirmation(2)1# ppointing authority appoints## 3ommission issues appointment#!# ppointee accepts#

4ote: 2f a person is appointed to the careerservice of the 3ivil $ervice, the 3ivil $ervice3ommission must bestow attestation#

Presi&ential Appointees

4eeds concurrence of 3ommission onppointments

8eads of the executive departments (rt# 022,$ec# 1

mbassadors (ibid)>

*ther public ministers and consuls (ibid)>

*fficers of the armed forces from the rank orcolonel or naval captain (ibid)>

*ther officers whose appointments arevested in him by the 3onstitution (ibid),including 3onstitutional 3ommissioners (rt#

2F'B, $ec# 1 () for 3$3> rt# 2F'3, $ec# 1 ()for 3*5.3> rt# 2F'&, $ec# 1 () for3*)#

&oesn?t need concurrence of 3ommission onppointments

ll other officers of the government whoseappointments are not otherwise provided forby law>

9hose whom he may be authori"ed by law toappoint>

5embers of the $upreme 3ourt>

@udges of lower courts>

*mbudsman and his deputies

Iinds of /ermanent /residentialppointments

%egular : while 3ongress is in session Oeffective after confirmation by 3ommissionon ppointments

d interim : while 3ongress is not insession O immediately effective and ceasesto be valid if disapproved or bypassed by the3ommission on ppointments#

. )ualiication Stan&ar&s an& Re=uirementsun&er t,e Civil Service La'

5. )ualiication Stan&ar&s

2t enumerates the minimum re-uirements fora class of positions in terms of: (9/*3)

education

training and experience

civil service eligibility

physical fitness and

other -ualities re-uired for successfulperformance# ($ec# , Book 0,dministrative 3ode)

9he &epartments and gencies areresponsible for continuously establishing,administering and maintaining the-ualification standards as an incentive tocareer advancement# ($ec# =, %ule 20,*mnibus %ules)

$uch establishment, administration, andmaintenance shall be assisted and approvedby the 3$3 and shall be in consultation withthe 6age and /osition 3lassification *ffice(ibid)

2t shall be established for all positions in the1st and nd levels ($ec# 1, %ule 20, *mnibus%ules)

6. Political )ualiications or an Oice 1i.e.members,ip in a political part-2

%: 4ot %e-uired#

F3:

5embership in the electoral tribunals ofeither the 8ouse of %epresentatives or$enate (rt# 02, $ec# 1=, 3onstitution)>

/arty'list representation>

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3ommission on ppointments>

0acancies in the $anggunian ($ec# +;, .ocalovernment 3ode)

7. Eect o par&on upon t,e &is=ualiication to,ol& public oice

%: &oes not restore the right to hold publicoffice# (rt# !

ppointee commits fraud (4itra v"S#bido)>

5idnight appointments

eneral %ule: Presi&ent orActing Presi&ent (only) shall notappoint months immediately beforethe next presidential elections until histerm ends# (rt# 022, $ec# 1;,3onstitution)

xception: 9emporaryappointments to executive positionswhen continued vacancies willprejudice public service or will endangerpublic safety#

0. Civil Service Commission:s 1CSC:s2%uris&iction

Exclusive,#risdiction &isciplinary cases

cases involving Cpersonnel actionDaffecting the 3ivil $ervice employees

appointment through certification

promotion

transfer

reinstatement

reemployment

detail, reassignment

demotion

separation

employment status

-ualification standards

$ecall# 3$3 @urisdiction includes theauthority to recall an appointment which hasbeen initially approved when it is shown that thesame was issued in disregard of pertinent 3$3laws, rules and regulations#

$eview AppointeeHs #alifications" 9heonly function of the 3$3 is to review theappointment in the light of the re-uirements ofthe 3ivil $ervice .aw, and when it finds theappointee to be -ualified and all other legalre-uirements have been otherwise satisfied, ithas no choice but to attest to the appointment#(Lapinid v" 1S1)

What it cannot do"

2t cannot order the replacement of theappointee simply because it considersanother employee to be better -ualified#(Lapinid v" 1S1)

9he 3$3 cannot co'manage or be asurrogate administrator of governmentoffices and agencies#

2t cannot change the nature of theappointment extended by the appointingofficer# (L#ego v" 1S1)

I. Appointments to t,e Civil Service

SCOPE? mbraces all branches,subdivisions, instrumentalities and agenciesof the overnment, including *33s withoriginal charters (rt# 2F'B $ec# (1),3onstitution)

Classes o Service

Career ServiceNon*career

Service

Jualification

merit and fitness(i#e# competitive

examination)

E3ceptions1nature oposition2:

o

ri

Ci

4oexaminations

9enure $ecured

P periodspecified by

lawP coterminous

with theappointingauthority

P duration of aparticular

project

Ot,er Personnel Actions

romotion ' movement from oneposition to another with increase in duties,responsibilities and pay#

4ext'in'rank %ule #

9he person next in rank shallbe given /%7%43 inpromotion when the positionimmediately above his is vacated#

/reference E utomaticppointment ppointing

authority shall specify the Cspecial

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reason or reasonsD for notappointing the officer next'in'rank#

utomatic %eversion %ule# 2n a chain of promotions, thedisapproval of one person?spromotion invalidates the promotion

of those in the lower positions andautomatically restores them to theirformer positions#

But the affected persons areentitled to payment of salaries forservices actually rendered at a ratefixed in their promotionalappointments# ($ec# 1! of the*mnibus %ules 2mplementingdministrative 3ode)

Appointment thro#gh 1ertification isissued to a person who is:

selected from a list of -ualifiedpersons certified by the 3ivil $ervice

3ommission from an appropriateregister of eligibles

!ransfer is a movement from oneposition to another which is of e-uivalentrank, level or salary without break in service#

2f 4consented G violates securityof tenure#

F3/92*4$:

9emporary ppointee

3areer xecutive $ervice*fficer whose status and salariesare based on ranks (E positions)

$einstatement" 2t is technically theissuance of a new appointment and isdiscretionary on the part of the appointingpower#

2t cannot be the subject of anapplication for a writ of mandamus#

6ho may be reinstated to aposition in the same level for which he is-ualified:

ny permanent appointee of acareer service position

4o commission of delin-uencyor misconduct, and is not

separated#

Same effect as xecutive3lemency, which completely obliteratesthe adverse effects of the administrativedecision which found him guilty ofdishonesty# 8e is restored ipso factoupon grant of such# pplication forreinstatement G unnecessary#

%etail is the movement of an employeefrom one agency to another without theissuance of an appointment#

.imited period#

/rofessional, technical andscientific positions#

9emporary#

$eassignment I in the $5 agency#

5anagement prerogative#

E removal witho#t ca#se#

$e*#irements:

4* reduction in rank, status orsalary#

$hould have a definite date orduration (c#f# &etail)# *therwise, afloating assignment G a diminutionin status or rank#

$eemployment" 4ames of persons whohave been appointed permanently topositions in the career service and who havebeen separated as a result of reduction inforce andor reorgani"ation, shall be enteredin a list from which selection fromreemployment shall be made#

". ASS$!PTION AN TER! OR TEN$RE OFOFFICE

A. )ualiication to Oice

designates commencement of security oftenure#

5. Appointment an& )ualiication to Oiceistinguis,e&

ppointment is the appointing authority?s act ofdesignating a person to a public office#

man cannot be compelled to accept office# judge may not be made a judge of anotherdistrict without his consent# ppointment and-ualification to office are separate and distinctthings# ppointment is the sole act of theappointee# (Jorromeo v" 4ariano)

Jualification is the appointee?s act of signifyinghis acceptance of the appointive position#9his generally consists of the taking subscribing filing of an official oath, and incertain cases, of the giving of an officialbond, as re-uired by law# (5echem)

ppointment Jualification

6hocts

ppointinguthority

ppointee

ct&one

&esignatesppointee 9o a/ublic *ffice

ccepts ppointive/osition

6. Eect o Failure to )uali-

2t is evidence of ref#salof the office#

2t is a gro#nd for removal"

27 -ualification G condition precedent failure to -ualify G rejection of the office

B9 2f -ualification E condition precedent

failure to -ualify E rejection

7. %ustiiable reasons or &ela- in =uali-ing?

$ickness

ccident

*ther fortuitous events that excuse delay#

8. Time Limit or )ualiication" 9he *mnibuslection 3ode provides that the officer must -ualify(i#e#, take his oath of office and assume office) within< months from proclamation#

*therwise, the position will be deemedvacant#

F3/92*4: 2f the non'assumption of officeis due to a cause beyond his control#

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(. Oat, o Oice

5. einition

n oath is an outward pledge whereby oneformally calls upon od to witness to thetruth of what he says or to the fact that hesincerely intends to do what he says#

*bligatoryM

4%..H 4*# 2t may be dispensable,because it is a mere incident to the office andconstitutes no part of the office itself#

8*60%, the /resident, 0ice'/residentand cting /resident are mandatorilyre-uired by the 3onstitution (rt# 022, $ec# ;)to take an oath or affirmation before enteringinto the execution of their office#

B9, 4achura states: *nly when thepublic officer has satisfied the prere-uisite oftaking his oath of office can his right hisposition be considered plenary andcomplete# ntil then, the holdover officer isthe rightful occupant# (Lecaro vSandiganbayan)

6. Persons Aut,ori@e& to A&minister Oat,s

4otaries public>

@udges>

3lerks of court>

$ecretary of 8ouse $enate>

$ecretary of xec# &epartments>

Bureau &irectors>

%egister of &eeds>

/rovincial governors>

3ity mayors>

5unicipal mayors>

/residential appointees

ny other officer whose duties, as defined by

law or regulation, re-uire presentation to himof any statement under oath

7. Persons Oblige& to A&minister Oat,s in AllInstances

4otaries public

5unicipal judges

3lerks of court

8. #,en to Tae Oat, o Oice

Before discharging duties#

9. Re=uali- i Re*Electe&B*Appointe&

2f a public officer is re'elected or re'appointedhe must take another oath and fulfill the other

condition precedents before assuming office#9he prior oath and other -ualifications madebefore assuming his previous office are validfor his subse-uent terms of office#

C. Giving o (on&s

5. T,e (on&

at#re"n indemnity bond (E penal forfeiturebond)#

When 1harged" 6henever the officer defaults,sureties are held liable#

#rpose and Jeneficiaries#

9o indemnify those suffering loss or injurydue to officer?s misconduct or neglect in office#

9o protect public interest

E *ffice holder?s benefit

6. Persons Re=uire& to Give (on&

7inancially accountable public officers (i#e#entrusted with collection and custody ofpublic money)>

/ublic ministerial officers whose actions mayaffect an individual?s rights and interests#

7. Eect o Failure to Give (on& 'it,in t,ePrescribe& Perio&

2f Bond E condition precedent merelyconstitutes a %*4& for forfeiture (E ipsofacto) of the office#

2f Bond G condition precedentrenders officevacant#

. Term an& Tenure o Oice

5. Term o Oice an& Tenure o Oiceistinguis,e&

Term o Oice Tenure o Oice&e

jure &e facto

7ixed and definite periodof time during which theofficer 5H 3.25 98

%289 9* 8*.& theoffice

/eriod during which theincumbent 39..H

8*.&$ the office# 2t maybe shorter than the term#

6. Legislature ,ol&s Po'er to Fi3 an& C,anget,e Term o Oice

6hen the 3onstitution is silent

6hen 3ongress itself created the office

xception: pplying .engthened 9erm to2ncumbents G .egislative ppointment 4ulland 0oid

4* /*6% 684 3onstitution fixes term#

But such term of office can be shortened orextended when people vote to ratify aconstitutional amendment#

7. #,en TermBTenure o Oice epen&ent uponPresi&ent:s Pleasure

When 3ongress legally and constitutionallymakes it so# (Alba v" -vangelista)

-ffect" 9he public officer may be removedwithout notice or hearing when the appointing

power can exercise the power of removal at hismere discretion# (Alba v" -vangelista)

8. No "este& Interest in Term o Oice

n incumbent cannot validly object to thealteration of his term# /ublic office is a privilegerevocable by the sovereignty (E by him) at will#9hus he has no vested right in his office#(5reenshow v" D"S"

9. Term o Oice Not E3ten&e& b- Reason o#ar

9here is no principle, law or doctrine by whichthe term may be extended by reason of war#(#eno6 et al" v" Angeles)

E. octrine o 0ol&over

5. T,e octrine

public officer whose term has expired orservices have been terminated is allowed tocontinue holding his office 492. hissuccessor:

is appointed or chosen and

has -ualified# (5echem)

6. Purpose

/ublic interest: to prevent hiatus in the publicservice pending the time when a successor

may be chosen and inducted into office#

7. 0ol&over Rules

6hen the law expressly provides for it:

9he office does not become vacant upon theexpiration of the term if there is no successorelected and -ualified to assume it#

2ncumbent will hold'over even if beyond theterm fixed by law#

8olding'over public officer G de +#reofficer#

6hen the law is silent:

4%. %.: 2ncumbent may hold'over#

.aw'making body favors it#

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F3/92*4: 6hen hold'over is prohibited,expressly (i#e# provision stating hold'over isprohibited) or impliedly (i#e# law fixes a specificdate for the end of the term)#

)mpermissible when the 3onstitution limits theterm of a public officer and does not provide for

hold'over#

4ote: rt != of the %evised /enal 3odepenali"es any public officer who shall continueto exercise the duties and powers of his officebeyond the period provided by law#

F. Commencement o Term o Oice

5. I time < i3e&

*n specified date#

6. I time D i3e&

*n lection or ppointment date#

7. I la' i3ing t,e term < ambiguous

7ollow the shorterest term#

8. I oice < vacant AN term:s &uration an&commencement are i3e&

/erson elected to fill thevacancy shall hold the office only for the4F/2%& /*%92*4 of the term#

9. I term:s &uration < i3e& AN beginning oren& D i3e&

/erson selected to fill thevacancy may serve the 7.. term

. #,ere an oicer is appointe& to an oicecreate& to perorm a single act

*ffice terminates with theaccomplishment of its purposes#

"I. PO#ERS AN $TIES OF P$(LICOFFICERS

A. Source

9he peoplesovereign /ublic *fficers? authority consists of those

powers:

xpressly conferred upon him by the actappointing him

xpressly annexed to the office by law

ttached to the office by common law asincidents to it

(. Scope

/owers expressly granted by law#

ll official powers truly covered by the %octrineof ecessary )mplication:

those essential to the accomplishment of theoffice?s main purpose> or

those germane to and serve to promote theaccomplishment of the principal purpose,although incidental or collateral (Lo 1ham v";campo)#

C. Territorial E3tent

4%. %.: 2f a public officer isauthori"ed by law to perform his duties at aparticular place, performing them in a place notauthori"ed by law is ordinarily invalid# (4ote:9his applies to all public officers whose dutiesare essentially local in nature, e#g# judges#)

F3/92*4$:

3onsuls>

/olice officers may arrest criminals outside/hilippine territory>

&octrine of 8*9 pursuit

. uration

.imited to that term he is invested by law with

the rights and duties of the office#

E. Construction o Grant

$9%239# rant of powers will be construed asconferring only those expressly imposed ornecessarily implied#

F. Classiication o Po'ers

iscretionar- !inisterial

&efinition

cts re-uiringexercise ofreason indeterminingwhen, where, andhow to exercisethe power

cts performed:

in a givenstate of facts,

in a prescribedmanner,

in obedienceto the mandate oflegal authoritydisregarding hisown judgmentupon the act?spropriety orimpropriety

(.amb v# /hipps)

&elegableM

enerally, 4*#

xception: 6henofficer is given

the power tosubstitute delegate#

enerally, H$#

xception: 6henthe law expressly:

re-uires officer

to perform the actin person

prohibitsdelegation

6hen ismandamus

properM

6hen doing ofduty has beendelayed for anunreasonabletime#5andamus canonly compel theofficer to 5I adecision (Edictate8*6 to decide)(JF Comes v

ational Water$eso#rces1o#ncil)

lways#

/ublicofficer liable

for hisofficialactsM

enerally 4*#

xceptions:7raudulent or5alicious acts#

H$ if exercise ofduty G contrary tolaw?s prescribedmanner#

5. iscretionar- Po'er

%efinition" lawful conferment of a power orright upon an officer to act officially in certain

circumstances, according to their *64(Eothers?) judgment and conscience# (Lamb v"hipps

)

/ower of Board of 3anvassers G Juasi'@udicialG &iscretionary# (!orres v" $ibo)

5enerally Dnrestricted by 4andam#s when thelaw imposes upon the officer the right or duty toexercise judgment in reference to 4H matterre-uiring his action (Apr#eba v" 5anon)#

#asi&,#dicial ;fficersH Acts" uditors andcomptrollers, as accounting officers, aregenerally -uasi'judicial officers# 9hey performministerial duties only when the sum due isconclusively fixed by law or pursuant to law#*ther than that, their actions are usually judicial

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and discretionary (Eministerial), includingclaims for settlement and certification ofbalances they deem due# 5andamus won?tapply# (Lamb v" hipps)

4andam#s inapplicable to contract#alobligations(i#e# via police power)"9he privilege

of operating a market stall under license is notabsolute but revocable under an implied leasecontract subject to the general welfare clause#5andamus never lies to enforce theperformance of contractual obligations#(Apr#eba v" 5anon)

-'ceptions:

Ab#sive" 6hen officer commits graveabuse of discretion, manifest injustice orpalpable excess of authority e-uivalent toa denial of a settled right to which thepetitioner is entitled First hil" Coldings1orp v Sandiganbayan

;fficially 1ompetent" 6hen publicofficer is officially competent to remove or

rectify an unlawful act# (4ig#el v" #l#eta)

o $emedy" 6hen /lain, $peedy orde-uate remedy E vailable# First hil"Coldings 1orp v Sandiganbayan

%iscretion G ,#dgment,#dgment is a judicial function, thedetermination of a -uestion of law# 9here isonly one way to be right#%iscretion is the faculty conferred upon a courtor other officer which he may decide the-uestion either way and still be right#

6. !inisterial Po'er (Lamb v" hipps)

purely ministerial act is performed by anofficer or tribunal in a given state of facts, in aprescribed manner, in obedience to themandate of legal authority, disregarding theexercise of his own judgment upon the act?spropriety or impropriety#

2t is a simple, definite duty arising underconditions admitted or proved to exist andimposed by law#

2t is a precise act, accurately marked out,enjoined upon particular officers for a particularpurpose#

G. uties o Public Oicers

5. General 1Constitutional2a) 9o be accountable

to the people> to serve them with utmostresponsibility, integrity, loyalty andefficiency? to act with patriotism andjustice, and to lead modest lives (rt# F2,$ec#


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2f done for the purpose of enhancing thechances of aspirants for nomination forcandidacy to a public office by a politicalparty, it shall not be considered aselection campaign or partisan politicalactivity#

(b) Additional do#ble or indirectcompensation unless: law specifically authori"es such

3ongress consents to any foreigngovernment?s any present emolument, office ortitle of any kind from ($ec# , rt# 2F'B)

(c) Loans guaranty, or other form offinancial accommodation for any businesspurpose may be granted, directly or indirectly,by any government'owned or controlled bank orfinancial institution to the ff:

(1) /resident() 0ice /resident(!) 5embers of the 3abinet

(+) 9he 3ongress(;) 9he $upreme 3ourt(


15/19

$eason" 9he latter acted as de facto officerduring his incumbency> he thus entitled tocompensation, emoluments and allowancesthat were provided for the position ($odrig#ev" !an)

-'ception: 2f de facto officer committedelectoral fraud#

de jure officer can recover salary from:

the overnment when:

it has received notice of adjudicationof the protest in favor of de jure officer and

afterwards still continues to pay thede facto officer#

a &e 7acto *fficer when:

he receives notice of adjudication ofthe title to the de jure officer and

he still continues to exercise officialduties and receive salaries andemoluments#

an 2ntruder surper: lways#

Liability for )mp#lsiveness" 9he mayor filed acertificate of candidacy for congressman# .aterhe withdrew and decided to reassumemayoralty position, thus preventing the vice'mayor from discharging mayoralty duties# 9hemayor should reimburse the vice'mayor for thesalary he received upon reassuming mayoralty,during which time the rightful occupant of themayoralty position is the vice'mayor# (4onroyv" 1A and del $osario)

J. A&&itional or ouble CompensationPro,ibite&

A&&itional ouble

9here is only 1 position,but the public officer isgett ing additionalcompensation#

9here are positions,and with additionalfunctions andemoluments for both

positions

/ensions gratuities E additional, double, orindirect compensation# ($ec# , rt# 2F'B, 1L=3onstitution)

Bonus G additional remuneration orcompensation# (eralta v" A#ditor 5eneral)

n allowance for expenses incident to thedischarge of the duties of office E increase ofsalary, a prere-uisite nor an emolument of

office# (eralta v" A#ditor&5eneral)

5K. Recover- o Salar- &uring Perio& oSuspension

2f preventively suspended, salary Erecoverable#

F3/9 if subse-uently exonerated Grecoverable#

2f removed B9 completely exonerated uponappeal G recoverable#

2f reinstatement by an act of l iberality(Eexoneration) of the 3ourt of ppeals Erecoverable#

2f removed B9 later penalty commuted (i#e# tosuspension demotion) E recoverable: he wasstill found guilty, although the penalty wasreduced#

2f the suspension removal unjustified, Grecoverable#

C. octrine o Oicial Immunit-

5. T,e octrine

public officer enjoys -ualified (Eabsolute)immunity# 9he protection generally applies onlyto activities:

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

E reckless, malicious or corrupt#

6. Purpose o t,e octrine

)ndirectly rotect the Sovereign by protectingthe public official in the performance of hisgovernmental function

$es#lt of extended immunity: promotion offearless and effective administration of thegovernment?s policies#

7. Presi&ential Immunit- rom Suit

pplicable only during tenure#

fter tenure, cannot be invoked for civildamages arising out of acts done during histenure (-strada v %esierto6 4arch 26 2997)

. Rig,t to Preerence in Promotion

&oes not prevail over the appointing authority?sdiscretion#

E. Rig,t to "acation an& Sic Leave

8owever 4alenia v 1;A held that electiveofficials E entitled to accrued vacation and sickleave credits

$eason"9hey have no official hours of work#

4*9: 8owever, this ruling may be consideredabandoned by $ection 1 of the .ocalovernment 3ode stating that elective localofficials shall be entitled to the same leaveprivileges as those enjoyed by appointive localofficials#

F. Rig,t to !aternit- Leave

G. Rig,t to Retirement Pa-

Liberally constr#edin retiree?s favor# (roferatav %rilon)

Jasic Eal#eof the retiring government official?sterminal leave G 828$9 monthly salary(Jelicena v Sec" of Finance

)

0. Ot,ers

$ight to $eimb#rsement for expenses incurredin the due performance of his duty# B9 a

public officer who uses a government vehicle isnot entitled to, nor can he charge, atransportation allowance (%omingo v 1;A6 ;ct"86 7


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H. Liabilit- or Tortuous Acts

/ublic officers are not immune from suit arisingfrom their own tortuous conduct, even if suchconduct is committed in the course of theiremployment#

9he public officer shall be personally liable 27he acts beyond the scope of his authority, or

exceeds his lawfully'conferred powers# $eason" 9he unauthori"ed acts of government

officials are not acts of $tate, and so the publicofficer may be held personally liable# (Sha#f v1A3 Wylie v $arang)

. Criminal Liabilit- still e3ists ',et,er?

9he /ublic *fficial officially acted#

9he /ublic *fficial?s term expired aftercommitting misdemeanor in office#

9he /ublic *fficial is re'elected after incurringcriminal liability in his previous term of office#

I. A!INISTRATI"E ISCIPLINE

A. Over Presi&ential Appointees

5. isciplinar- Aut,orit- Lies 'it, t,eAppointing Aut,orit-

1S1 can only discipline non&presidentialappointees" (;lonan v" 1S1

)

%ead together $ections +=(1) and + of Book0 of the dministrative 3ode#

$ec# +=(1) provides that Ca complaint may befiled directly with the 3$3 by a private citi"enagainst a government official or employee inwhich case it may hear and decide the case#D

$ec# + is entitled C/rocedure indministrative 3ases gainst 4on'/residentialppointees#D

9he very subject of $ec# + implicitly limitsthe scope of the 3$3?s jurisdiction inadministrative cases to non'presidentialappointees and makes the patent conclusionthat it is the /resident as appointing power whohas disciplinary authority over presidentialappointees#

6. Po'er to Appoint Implies t,e Po'er toRemoveM E3ceptions?

@ustices of the $upreme 3ourt (byimpeachment)

5embers of 3onstitutional 3ommissions (byimpeachment)

*mbudsman (by impeachment)

@udges of inferior courts (disciplinary orremoval power vested in the $upreme 3ourt)

$ec# benumerates the grounds constituting

just cause#

6. %uris&iction

7ile original complaints:

directly with the 3$3 or

with the $ecretaries and 8eads of agenciesand instrumentalities, provinces, cities andmunicipalities for officers and employees undertheir jurisdiction#

9heir decision to impose a penalty ofsuspension of at most !A days *% a fineof at most !A days? salary is 724.#

&ecisions imposing other penaltiesare //.B. to the 3$3:

$uch other penalties are: suspension for more than !Adays

fine in an amount exceeding!A days? salary

demotion in rank or salary

transfer

removal

dismissal from office#

*fficial has */92*4 to initiallyappeal to the department and finallyto the 3$3#

-'ec#tion pending appealavailable#

-'ceptwhen the penalty isremoval executory only afterthe $ecretary confirms#

7. Proce&ure in A&ministrative Cases AgainstNon*Presi&ential Appointees

(gainst whom) a subordinate officer oremployee by the $ecretary or head of office ofe-uivalent rank, or head of local government, orchiefs of agencies, or regional directors

(8ow) upon sworn written complaint of anyother person#1# 3omplainant shall submit his:

sworn statements covering histestimony and those of his witnesses and

documentary evidence#

# 2f prima facie case:

E exist disciplining authority shalldismiss the case#

G exists he shall notify therespondent of the charges against thelatter in writing#

!# %espondent shall be allowed at leastseventy'two hours after receipt of the complaintto answer the charges:

in writing

under oath

together with supporting swornstatements and documents

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indicating whether or not he elects aformal investigation should his answer befound unsatisfactory#

4. 2f the answer G satisfactory discipliningauthority shall dismiss#

;# 2f the disciplining authority cannotjudiciously decide the merits of the case on thebases of the:

3omplainant?s allegations>

%espondent?s answers> and

9heir supporting documents

he shall conduct a formal investigation,regardless of respondent?s preference not toelect one#

s#bpoena to compel witnesses toattend>

s#bpoena d#ces tec#m to compelproduction of documentary evidence in hisfavor#

=# 9he disciplining authority shall decidewithin !A days from:

termination of the investigation *%

submission of investigator?s report should be submitted within 1; from theconclusion of the investigation#

8. Appeal OR Petition or Reconsi&eration

ppeal within 1; days from receipt of thedecision#

vailable only when respondent is foundguilty (Eexonerated) because:

/& A= does not contemplate a reviewof decisions exonerating officers oremployees from administrative charges#

C/arty adversely affected by thedecisionD in $ection !L of the 3ivil $ervice.aw refers to the government employeeagainst whom case was filed# (4ende v"1ivil Service 1ommission)

$easonably file a petition for reconsideration#

-'cl#sive gro#nds: 4ewly discovered evidence whichmaterially affects the rendered decision>

9he decision is unsupported by theevidence on record> or

xistence of error of law orirregularities which prejudice respondent?sinterests#

2t is decided within 1; days from petition#

vailable only once#

9. Summar- Procee&ings

7ormal investigation G necessaryrespondentmay be immediately removed or dismissed

5ro#ndsfor application:

6hen the charge is serious 4& theevidence if guilt is strong>

6hen the respondent is a recidivist or hasbeen repeatedly charged 4& there isreasonable ground to believe that he is guilty ofthe present charge> and

6hen the respondent is notoriouslyundesirable#

. Preventive Suspension

(By 6ho on 6hom) 9he proper discipliningauthority may preventively suspend anysubordinate officer or employee under hisauthority

(6hen) /ending an investigation

(rounds):

dishonesty> or

oppression or grave misconduct> or

neglect in the performance of duty> or

if there are reasons to believe that therespondent is guilty of charges which wouldwarrant his removal from the service#

(5aximum period)

LA days for national officials


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1ondition" $ubject to the /resident?s termsand conditions imposed in the interest of theservice#

C. Over Elective Oicials

lective *fficial

dministratively $ued

6here to 7ile 3omplaint

/rovincial or city official *ffice of the /resident

5unicipal official$angguniang

/anlalawigan

Barangay official

$angguniang

/anlungsod or

$angguniang Bayan

Admin and Pub Off Law Pre Week Review

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Transcript of Admin and Pub Off Law Pre Week Review