THE LAW ON PUBLIC OFFICERS

DEFINITIONS, DISTINCTIONS, AND CLASSIFICATIONS

PUBLIC OFFICE - the right, authority, and duty created and

conferred by law, by which for a given period, either fixed by law

or enduring at the pleasure of the appointing power, an

individual is invested with some portion of the sovereign

functions of the government, to be exercised by him for the

benefit of the public.

PURPOSE AND NATURE

The purpose and nature of public office is grounded on it being a

public trust. (TORREDES vs VILLAMOR, 564 SCRA 492)

PUBLIC OFFICE, PUBLIC TRUST

Public office is a public trust. Public officers and employees must

at all times be accountable to the people, serve them with

utmost responsibility, integrity, loyalty, and efficiency, act with

patriotism and justice, and lead modest lives.

PUBLIC TRUST

1) Trustor - Benefactor 2) Trustee 3) Cest qui trust - Beneficiary PUBLIC OFFICE, NOT PROPERTY

A public office is not the property of the office holder within the

meaning and contemplation of the due process requirements of

the Constitution. Public office is not property in the sense that an

officer is not denied due process of law by the abolition of his

office before the expiration of his term or by his removal or

suspension according to law, or by the passage of a statute

limiting or reducing his compensation, and that an officer has no

property rights in the books and papers pertaining to his office.

No one, therefore, has any private right of property or vested

right in any public office he holds, much less a vested right to an

expectancy of holding a public office, at least as against the public

interest. The fact that the Constitution throws a mantle of

protection around a public officer, such as a limitation on the

power of the legislature to abolish the office or diminish the

salary during the incumbent's term, does not change the

character of the office or make it property.

Excepting constitutional officer, which provide for special

immunity as regards salary and tenure, no one can be said to have

any vested right to an office or its salary, let alone an absolute

right to it. It is only when salary has already been earned or

accrued that said salary becomes private property and entitled to

the protection of due process.

PUBLIC OFFICE, NOT A CONTRACT

The right of an incumbent of an office does not depend on any

contract in the sense of an arrangement or bargain between him

and the public.

1) Creates no contractual relation between holder and the public

- A public office is not a contract, nor the same thing as a contract,

and an appointment or election to a public office does not

establish a contractual relation between the person appointed or

elected and the public. The incumbent is not under contract so as

to withdraw his tenure, salary, and the like, from the control of

the legislature, or to preclude the legislature from abolishing the

office. Generally speaking, the nature of the relation of a public

officer to the public is inconsistent with either a property or a

contract right.

2) Exists by virtue of some law - The right to hold a public office

under our political system, therefore, is not a natural right. It

exists, when it exists at all, only because and by virtue of some

law expressly or impliedly creating and conferring it.

3) Generally entitles holder to compensation - While public office

is not usually regarded as a contract, a public officer is entitled to

the compensation for the performance of his public duties when

the law attaches it to the office. If no salary is provided by law for

an office, the incumbent is presumed to have accepted it without

pay and he cannot recover anything for service rendered by him.

The salary is a mere incident and forms no part of the office. It is

not a necessary criterion for determining the nature of the

position.

PUBLIC OFFICE vs PUBLIC CONTRACT

As to creation:

Public Office - is a creation incident of sovereignty Contract - originates from the will of the contracting parties, subject to limitations imposed by law As to object:

Public Office - object is the carrying out of sovereign as well as governmental functions affecting even persons not bound by contract Contract - imposes obligations only upon persons who entered the same As to subject matter and scope: Public Office - embraces the idea of tenure, duration, and continuity, and the duties connected therewith are generally continuing and permanent Contract - almost always limited in its duration and specific in its objects. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. ESSENTIAL ELEMENTS OF A PUBLIC OFFICE 1) It is created by the Constitution or by law or by some body or agency to which the power to create the office has been delegated

2) It must be invested with an authority to exercise some portion of the sovereign power of the State to be exercised for public interest 3) Its powers and functions are defined by the Constitution, or by law, or through legislative authority 4) The duties pertaining thereto are performed independently without control of a superior power other than law, unless they are those of an inferior or subordinate officer, created or authorized by the legislature and placed by it under the general control of a superior officer or body 5) It is continuing and permanent in nature and not occasional or intermittent TENURE AND DURATION 1) Existence of definite tenure not material - Public office embraces the idea of tenure and duration. The duration of tenure need not be for a fixed period, but may be at the pleasure of the appointing power. One may be nonetheless a public officer because his term is not definitely established, and the absence of a definite tenure does not necessarily preclude a position or employment from constituting a public office. 2) Continuance of office holder not material - At the same time, the element of continuance, i.e., the duties attached to the position continue though the office holder be changed, cannot be considered indispensable. 3) Permanence of office not material - If the other elements are present, it can make no difference whether there can be but one act or a series of acts to be done - whether the office expires as soon as the one act is done, or is to be held for years or during good behavior. However, something more permanent than a single transaction or transitory act is commonly required to make the position a public office. PUBLIC OFFICE vs PUBLIC EMPLOYMENT

Public Office - position created by law, with duties cast upon the

incumbent which involve the exercise if some portion of the

sovereign power, in the performance of which the public is

concerned

Public Employment - a position which lacks one or more the

foregoing elements. It is a position created not by force of law,

but by contract of employment. It does not rise to the dignity of

an office.

PRESUMPTION OF REGULARITY OF OFFICIAL ACTS

Public officers enjoy the presumption of regularity in the exercise

of their functions. Thus, absent clear and convincing proof, the

bare allegation that a public officer acted with malice or prejudice

cannot be sustained.

As a general rule, "official acts" enjoy the presumption of

regularity, and the presumption may be overthrown only by

evidence to the contrary. When an act is official, a presumption of

regularity exists because of the assumption that the law tells the

official what his duties are and that he discharged these duties

accordingly.

But not all acts of public officers are "official acts," i.e. acts

specified by law as an official duty or as a function attached to a

public position, and the presumption does not apply when an

official's acts are not within the duties specified by law,

particularly when his acts properly pertain or belong to another

entity, agency, or public official.

OFFICER / PUBLIC OFFICER / EMPLOYEE

Officer - one inseparably connected with an office, and so it may

be said that one who holds a "public office," as that term is herein

before defined, is a public officer. When there is no office, there

can be no public officer. A public officer is such an officer as

required by law to be elected or appointed, who has a designation

or title given to him by law, and who exercises functions

concerning the public, assigned to him by law.

Employee - when used with reference to a person in the public

service includes any person in the service of the government or

any of its agencies, divisions, subdivisions, or instrumentalities.

An "officer," as distinguished from the "clerk" or "employee,"

refers to a person whose duties, not being of a clerical or manual

nature, involves the exercise of discretion in the performance of

the functions of the government.

When used with reference to a person having authority to do a

particular act or perform a particular function in the exercise of

government power, "officer" includes any government employee,

agent or body having authority to do the act or exercise that

function.

OFFICER vs EMPLOYEE

Law of Public Officers

Officer - distinguished from an "employee" in the greater

importance, dignity, and independence of his position, being

required to take an official oath, and perhaps give an official

bond, and in the liability to be called to account as public officer

or misfeasance or non-feasance in office.

A public officer must be invested by law with a portion of the

sovereignty of the State, and authorized to exercise functions

either of an executive, legislative, or judicial character.

The fact that the position is a subordinate one and that its holder

maybe accountable to a superior does not prevent it from being

an office, or the incumbent an officer as distinguished from a

mere employee. A subordinate or inferior is nonetheless an

officer. A degree if responsibility for results rests upon a public

officer that does not attach to a mere employee.

Revised Penal Code

Public Officer - Any person who, by direct provision of law,

popular election or appointment by competent authority, takes

part in the performance of public functions in the Government of

the Philippines, or performs in said Government or in any of its

branches, public duties as an employee, agent or subordinate

official, or of any rank or class.

This definition eliminates the standard distinction between

"officer" and "employee" in the law of public officers. It is also

quite comprehensive, embracing as it does, every public servant

from the highest to the lowest.

PUBLIC OFFICIAL

Public Official - defined as an officer of the Government itself, as

distinguished from the officers and employees of

instrumentalities of government. Hence, the duly authorized

acts of the former are those of the government, unlike those of

government instrumentality which may have a personality of its

own, separate and distinct from that of the government, as such.

(GONZALES vs HECHANOVA, 9 SCRA 230) The term is used

synonymously with public officer.

Ministerial Officer - includes any office whose officers are

charged with the duty to execute the mandates lawfully issued, of

their superior.

STATE IMMUNITY FROM SUIT vs OFFICIAL IMMUNITY FROM

SUIT

SUITS AGAINST CAN BE SUED CANNOT BE SUED

Republic of the Philippines

-if with consent -liable if in the strict application of the law or if injustice exists

-yes, if it gives consent only

Unincorporated Government Agency

-if it performs proprietary functions (depends)

-if against the State -if performing governmental functions -if performing proprietary functions, incidental to governmental functions

GOCC's - business character - charter of GOCC states that it can be sued

- no, if charter says it cannot be sued

Public Officer - personal capacity - exceeded authority - tort - government has no interest in outcome of the case

- liability on Government -if performing within scope of authority

*Waiver express- if within the law implied - contract, initiates suit

---------------------------------------------------------------------------------------- ELIGIBILITY AND QUALIFICATIONS ELIGIBILITY - the state or quality of being legally fitted or qualified to be chosen. Eligibility to a public office is of a continuing nature and must exist both at the commencement and during the occupancy of an office. ELIGIBLE - legally fitted or qualified to hold an office, i.e., having all the qualifications and none of the ineligibilities to occupy the office. It refers to a person who obtains a passing grade in a civil service examination or is granted civil service eligibility and whose name is entered in the register of eligibles. INELIGIBILITY - refers to the lack of the qualifications prescribed by the Constitution or applicable law for holding public office INELIGIBLE 1) Legally or otherwise disqualified to hold an office 2) Disqualified to be elected to an office 3) Disqualified to hold an office The mere certification of a person by the Civil Service Commission as a civil service eligible does not amount to an appointment to any position, nor does it insure appointment, as the appointing power has the right of choice, to be freely exercised according to his judgment, as to who is best qualified among those eligible. QUALIFICATION - refer to the endowment or accomplishment that fits one for office. It may refer to the act which a person, before entering upon the performance of his duties, is, by law, required to do, such as the taking, and often, subscribing and filing of an official oath, and, in some cases, the giving of an official bond. Subject to constitutional limitations, Congress may determine the eligibility and qualifications of officers and provide for the methods of filling offices. Under our political system, the right to hold a public office is not a natural right. While many rights are consecrated as universal an inviolable, the right of eligibility to offices is not so secured. It exists, where it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it. QUALIFICATIONS USUALLY REQUIRED OF PUBLIC OFFICERS 1) Citizenship - It is a general principle that aliens are not eligible to public office, unless the privilege is extended to them by statute. 2) Age - The fact that a person has reached his majority does not necessarily qualify him, so far as age in concerned, to hold every office. The age limit for certain offices may, by constitutional ot statutory provisions, be placed beyond the period of majority. 3) Right of Suffrage - Since the right of suffrage is generally denied to those who are not citizens, the exclusion of unnaturalized foreigners from public office is likewise accomplished by permitting none but electors or voters to be public officers. 4) Residence - A candidate for election or appointment to an office of a political subdivision or unit may be required by

provision or statute to be a resident or inhabitant thereof. 5) Education - Statutes prescribe educational qualifications when they reasonably relate to the specialized demands of an office, enabling the holder to properly and intelligently perform the duties of such office. Hence, there are certain offices which can be properly filled only by persons possessing professional attainments. 6) Ability to read and write - This qualification may lawfully be made since there is no constitutional prohibition against it, especially where it has reasonable relationship to the duties of the position in question. 7) Political Affiliation - Since running for and holding political office are forms of political expression, there must exist a compelling state interest in order to uphold the validity of restrictions on holding political office. 8) Civil Service Examination / Eligibility - Qualifications inan appropriate examination for appointment to positions on the first and second levels in the career service is required under the Civil Service Law to insure that such appointment is made only according to merit and fitness to perform the duties and assume the responsibilities of the positions. DISQUALIFICATIONS TO HOLD PUBLIC OFFICE 1) Mental or Physical Incapacity - From the very nature of the case, an idiot or other person non compos mentis is incapable of accepting or holding public office. The law may expressly require that a public officer be in possession of his mental faculties. 2) Misconduct or crime - To assure public confidence in the essential integrity of the government, persons convicted of crimes involving moral turpitude are usually disqualified from holding public office. 3) Impeachment - Under the Constitution, the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. 4) Removal or suspension from office - The grounds for removal or suspension from office includes acts which would disqualify once from holding office. The question here is whether the suspension or removal itself operates to disqualify one from holding the same or another office. 5) Previous tenure of office - Under the Constitution, a disability to succeed to office is imposed upon certain officers. 6) Consecutive terms - The Constitution likewise prohibits the holding of certain elective offices by the same persons for more than an stated number of consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. 7) Holding more than one office - The manifest purposes of a restriction on multiple holdings is 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.

8) Relationship with the appointing power - Since a public office is a public trust, created for the benefit and in the interest of the people, appointments thereto should be based solely on merit and fitness uninfluenced by any personal or filial consideration, 9) Office newly created or the emoluments of which have been increased - The purpose sought to be accomplished by such provision is not merely to prevent an individual legislator from profiting by an action taken by him with bad motives, but to prevent all legislators from being influenced by either conscious or unconscious selfish motive. 10) Being an elective official - The Constitution seeks to minimize the so-called "spoils system." The disqualification subsists only during the tenure in office (not term of office) of the elective official. He may be appointed provided he forfeits his seat. 11) Having been a candidate for any elective position - Under the Constitution, no candidate who has lost in any election shall within one year after such election be appointed to any office in the Government or any government-owned and controlled corporations or in any of their subsidiaries. The provision is directed against the so-called "political lame ducks." 12) Under the Local Government Code a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment, within two years after serving sentence b) Those removed from office as a result of an administrative case c) Those convicted by final judgment for violating the oath of allegiance to the Republic d) Those with dual citizenship 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 this Code g) The insane or feeble-minded ---------------------------------------------------------------------------------------- ACQUISITION OF RIGHT OR TITLE TO OFFICE The manner of selecting persons for public office is generally by election or appointment. APPOINTMENT - is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. In this sense, it is to be distinguished from the selection or designation by a popular vote. Appointment is in law, equivalent to "filling a vacancy" in an office. As to its nature, it is either permanent or temporary (acting) The term "appoint," whether regarded in its legal or ordinary acceptation, is applied to the nomination or designation of an

individual to an office. WHERE APPOINTING POWER RESIDES Inherently belongs to the people The selection of persons to perform the functions of government is primarily a prerogative of the people. Since the people are the source of government, the power of selecting persons for public office inherently belongs to them. But the people cannot always be called upon to act immediately when the selection of an official is necessary. It may be said, therefore, that the power of appointment to public offices belongs to where the people have chosen to place it by their Constitution or laws. Entrusted to designated elected and appointed public officials The appointment of public officials is generally looked upon a properly belonging to the executive department. Appointments may also be made by Congress or the courts, but when so made should be taken as an incident to the discharge of functions within their respective spheres. The exceptions made in favor of Congress as to appointments to office strengthen rather than weaken the grant of power to appoint officers in the executive. Absent any contrary statutory provision, the power to appoint carries with it the power to remove or discipline. POWER TO APPOINT DISCRETIONARY 1) Power of courts to review appointment - Appointment or reappointment (issuance of new appointment) of a public officer involves the exercise of discretion, which, unless gravely abused, the courts will not attempt to control. It cannot be the subject of an application for a writ of mandamus to compel the exercise of such discretion. This task of appointment is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. 2) Power of the Civil Service Commission to revoke appointment - The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It has also no authority to direct the appointment of a substitute of its choice or a successful protestant. WHEN APPOINTMENT DEEMED COMPLETE 1) Not subject to confirmation - Where the power of appointment is absolute, and the appointee has been determined, no further consent or approval ins necessary, and the formal evidence of appointment, i.e., the commission, may issue at once. 2) Subject to confirmation - Where the assent or confirmation of some other officer or body is required, the commission can issue only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required by law of the appointing power has been performed. 3) Approval by the Civil Service Commission - Appointment to positions in the Civil Service must be submitted to the Commissioner of Civil Service for approval. Where the appointee is a qualified service eligible, the Commissioner of Civil Service has no choice but to attest the

appointment. The attestation required is merely a check to assure compliance with the Civil Service Law. As stated above, appointment is not only complete but valid upon performance of the last act required of the appointing power. However, the appointment is subject to the condition that if the Commissioner of Civil Service would later on reject the appointment by reason of lack of eligibility, then the appointment shall lapse despite attestation. The acts of the appointing power (head of department or office) and the approval of the Commission acting together though not concurrently, but consecutively, are necessary to make an appointment complete. The confirmation or attestation of the appointment by the Civil Service Commission does not complete the appointment since such attestation, though an essential part of the appointing process, serves merely to assure the eligibility of the appointee. 4) Effects of completed appointment - Having once made the appointment, the appointing officer's power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it. No new or further appointment could be made to a position already filled by a previously completed appointment which had been accepted by the appointee through a valid qualification and assumption of uts duties. ACCEPTANCE OF APPOINTMENT Appointment to a public office necessarily precedes acceptance by the appointee and is accordingly distinct from it. 1) Not necessary to completion or validity of appointment - The appointment is the sole act of those vested with the power to make it, just as the acceptance is the sole act of the appointee. Therefore, where there is no express provision of the law to the contrary, the appointee's acceptance of the office is not necessary to complete the appointment. 2) Necessary to possession of office - While acceptance of appointment is not necessary to give it validity, the individual chosen to an office cannot be deemed to be either fully possessed of its rights and privileges or subject to the performance of its duties and obligations until he has, in fact, accepted it. Acceptance is, therefore, necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office. An appointee cannot impose his own conditions for the acceptance of a public office. He may only either accept or decline it. FORM OF ACCEPTANCE 1) Express - done verbally or in writing. The best formal evidence of the acceptance is the qualification of the officer appointed by taking the oath of office. In some instances, the law requires that a bond be posted 2) Implied - without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. APPOINTMENTS BY THE PRESIDENT Power of appointment of the President

The power of the President to appoint officers in the government is conferred upon him by the provision of the Constitution which reads: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him in this Constitution. He shall also appoint other officers of the Government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint. The Congress, may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Groups of Officials the President is authorized to Appoint 1) Heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution. The "other officers" referred to therein are the regular members of the Judicial and Bar Council, the Chairman and Commissioners of the Civil Service Commission, the Chairman and Commissioners of the Commission on Elections, the Chairman and Commissioners of the Commission on Audit, and the Members of the regional consultative commission 2) All other officers whose appointments are not otherwise provided by law and they refer to officers to be appointed to lower offices created by Congress where the latter omits to provide for appointment to said office, or provides in an unconstitutional way for such appointments 3) Those whom the President may be authorized by law to appoint such as the heads of government-owned or controlled corporations, undersecretaries, heads of bureaus and offices, and other officials 4) Other officers lower in rank whose appointments the Congress by law vests in the President alone Confirmation of Appointments by Commission of Appointments 1) Only the officers in the first group above are appointed with the consent or confirmation of the Commission on Appointments. Congress cannot, by law, require confirmation of appointments of other officers. Heads of bureaus like the Securities and Exchange Commission, Insurance Commission, etc., are no longer included among those whose appointments are to be confirmed by the Commission on Appointments. They are civil service officers whose appointments are supposed to be made only according to merit and fitness. 2) The President, under the Constitutions, appoints the members of the Supreme Court, judges of lower courts, including the Sandiganbayan, and the Tanodbayan and his Deputies from a list prepared by the Judicial and Bar Council. Such appointments need

no confirmation. The same is true when the Vice-President is appointed as a member of the Cabinet. 3) The Constitution does not state the appointing authority with respect to the Chairman and Members of the Commission on Human Rights. There is no doubt, however, that the power to appoint them is lodged in the President. The Administrative Code of 1987 states that they shall be appointed by the President. Their appointments are also not subject to confirmation by the Commission on Appointments because they are among the officers of government whom the President may be authorized by law to appoint, pursuant to the Constitution. APPOINTMENTS BY OTHER OFFICIALS Under the Constitution, Congress may, by law vest in courts, heads of departments, agencies, commissions, or boards the power to appoint officers lower in rank (e.g., Chiefs of divisions or sections) in their respective offices. The phrase "lower in rank" refers to officers subordinate to those enumerated officers in whom respectively the power of appointment may be vested - the heads of executive departments, agencies, commissions, and boards. Appointments of minor employees may also be vested in them. The Supreme Court appoints all officials and employees of the judiciary. KINDS OF PRESIDENTIAL APPOINTMENTS As to manner in which it is made: 1) Regular - made while Congress is in session. They are actually mere nominations subject to confirmation by the Commission on Appointments 2) Ad interim - made while Congress is not in session of during its recess As to nature: 1) Permanent - last until they are lawfully terminated 2) Temporary or acting - last until a permanent appointment is issued Regular and Ad Interim Appointments - required to be submitted to the Commission on Appointments - Appointments that are for the President solely to make without the participation of the Commission on Appointments cannot be ad interim appointments. The President's voluntary act of submitting such appointments to the Commission and the latter's act of confirming or rejecting the same would be without or excess of jurisdiction Temporary Appointments - two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointment, except temporary appointments to executive positions when continued vacancies therein will prejudice service or endanger public safety AD INTERIM APPOINTMENTS Ad Interim Appointments - appointments made by the President during the recess of Congress, whether such recess is voluntary or compulsory.

Compulsory Recess - takes place when Congress adjourns Voluntary Recess - takes place before the adjournment of Congress (e.g. Christmas recess) The Commission on Appointments which approves major appointments of the President meets only while Congress is in session. The recess appointment power keeps in continuous operation the business of government when Congress is not in session. But the appointments shall cease to be effective upon rejection by the Commission on Appointments, or if not acted upon, at the adjournment of the next session, regular or special, of Congress. In the second situation, the appointment remains effective until the end of the session following such appointment or "until the next adjournment," not until the next voluntary recess. This is to give the Commission on Appointments time to deliberate upon the appointment before confirming or rejecting it. When the President makes appointments with the consent of the Commission on Appointments, he has the benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is bound to be prudent, to insure approval of his selection either by previous consultation with the members of the Commission on Appointments or by thereafter explaining to them the reason for such selection. The reason for this is that an ad interim appointment contradicts the theory of checks and balances in that it permits the executive alone to make an appointment permanent and effective in character without the previous scrutiny and concurrence of the legislative power, acting through the Commission. The grant of the power is justifiable only on the theory of an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office to be filled if not immediate appointment is made. Its sole purpose is to render it certain that at all times there should be, whether Congress is in session or not, an officer for every office, entitled to discharge the duties thereof. A temporary appointment is, in essence, an acting appointment. It is well-settled that one who holds a temporary or acting appointment has no fixed tenure of office, and, therefore, his employment can be terminated at the pleasure of the appointing power even without hearing or cause. (ERASMO vs HOME INSURANCE AND GUARANTY CORPORATION, 388 SCRA 112) An ad interim appointment is nevertheless permanent in nature and not a mere temporary or acting appointment notwithstanding that it is subject to confirmation by the Commission on Appointments. However, it may be recalled or revoked by the President before confirmation. ROSALES vs YENKO, 15 SCRA 766 Ad interim appointment was not released to and accepted by appointee before confirmation by the Commission on Appointments FACTS: In July 26, 1958, the President appointed Rosales ad interim Chairman of the Board of Examiners for Chemists, for a term expiring July 15, 1961. On July 16, 1961, he was reappointed as the acting Chairman of the same Board. On November 6, 1961, the President signed Rosales ad interim appointment but the same was not released to the latter. Respondent Yenko however,

admits that a copy thereof was transmitted to the Commission on Appointments on December 26, 1961, on the basis of which said Commission took cognizance on the appointment and confirmed it on May 16, 1962. On July 31, 1962, the Commissioner on Civil Service informed Rosales that his last ad interim appointment had been recalled and declared without effect by virtue of Administrative Order No. 2, dated December 31, 1961, and on November 5, 1962, the new President appointed Yenko as acting Chairman of the Board of Medical Examiners, who thereafter assumed the functions of the said office. Said appointment was contested by Rosales. ISSUE: Whether or not the appointment of Rosales is valid, legal, and subsisting, and, therefore, render that of Yenko null and void HELD: No. Ad interim appointment not released. - The petition under consideration does not allege that the original of the last ad interim appointment was transmitted to, and was received by Rosales, obviously because the said original was never released by the Office of the President. Neither does it allege that upon receipt thereof, Rosales had accepted the appointment and duly qualified for the position. He merely alleges that he "performed the duties and obligations of Chairman" of the Board, that the Executive Secretary notified him by telephone that his last ad interim appointment had already been signed by him. Ad interim appointment incomplete. - This allegations are not sufficient to take the place of a clear proof that the ad interim appointment was not only duly signed but was released to Rosales, and that by virtue thereof, he had accepted it and duly qualified for the position. His ad interim appointment being incomplete, there was in fact and in law no ad interim appointment that could be validly transmitted to and acted upon by the Commission on Appointments. Rosales failed to allege and prove that he is rightfully entitled to the office in question. DESIGNATIONS Designation - simply the mere imposition of new or additional duties upon an officer to be performed by him in a special manner while he performs the function of his permanent office. 1) It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions. It is revocable and temporary in character for it does not confer upon the designee security of tenure in all the position or office which he occupies in an "acting" capacity only. 2) Designation does not entitle the officer designated to additional benefits or the right to claim the salary attached to the position. STEPS IN THE APPOINTING PROCESS The President's power of appointment of officers subject to the confirmation of the Commission on Appointments involves three steps: 1) Nomination - it is the exclusive prerogative of the President upon which no limitation may be imposed by Congress, except those resulting from the need of securing the concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe the qualifications to a given appointive office.

He may listen to and accept the recommendation or advice of others, or yield to their request or pressure, but legally, he alone is responsible for his nominations. 2) Confirmation - while the power to appoint is essentially an executive function, the power to confirm or reject certain appointments belongs to Congress, the latter having been conferred as a check on the former. This power to check is exercised through the members of both Houses in the Commission on Appointments. a) There is no appointment yet in the strict sense until it is confirmed. Thus, the appointment is a joint act of the President and the Commission on Appointments. b) The constitutional intent is to strike a careful and delicate balance in the matter of appointments for the President and Congress (the latter through the Commission). c) A confirmation of an appointment to a public office is to be distinguished from the appointment itself, for in confirming the appointment, the Commission on Appointments does not in any sense choose the appointee. The act of confirming an appointment to office is not the exercise of an executive function, and since it is not legislative in character, it need not be performed at a regular session of Congress. d) A confirmation cannot be reconsidered after the President has been notified of the confirmation and has completed the appointment by issuing a commission to the appointee, who thereupon assumed the office, even though the rules of the confirming body provide for reconsideration. 3) Issuance of Commission - the term "commission" has been defined as a written authority from a competent source given to the officer as his warrant for the exercise of the powers and duties of the office to which he is commissioned. It is the written evidence of the appointment, but not the appointment itself, although in some instances, they may seem inseparable because of the difficulty of showing the appointment otherwise than by showing the existence of the commission which becomes conclusive evidence of the appointment as soon as it gets signed by the President. APPOINTMENTS IN THE CIVIL SERVICE The Civil Service System Scope - The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charter. The intention of the Constitution is to extend the requirements and benefits of the Civil Service System - national and local - including the military establishment. Purpose - The Civil Service System rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. Civil Service laws are not penal in nature, but are designed to eradicate the system of making appointments primarily from political considerations with its attendant evils, to eliminate as far as practicable the element of partisanship and personal favorites in making appointments, to establish a merit system of fitness and efficiency as the basis of appointments, and to prevent discrimination in appointments to public service based on any consideration other than fitness to perform its duties.

Its primary purpose is to enable the national and local government and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants. CLASSIFICATIONS OF POSITIONS IN THE CIVIL SERVICE CAREER SERVICE - characterized by: a) Entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications b) Security of tenure c) Opportunity for advancement to higher career positions - includes: a) Open career positions for appointments to which prior qualification in an appropriate examination is required b) closed career positions which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit system c) Positions in the career executive service, namely Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Chief of Department Service, and other officers or equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President d) Career officers other than those in the Career Executive Service who are appointed by the President such as the Foreign Service Officers in the Department of Foreign Affairs e) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system f) Personnel of government-owned and controlled corporations whether performing governmental and proprietary functions who do not fall under the non-career services g) Permanent laborers, whether skilled, semi-skilled or unskilled NON-CAREER SERVICE - characterized by: a) Entrance on bases other than those of the usual test of merit and fitness utilized for the career service b) Tenure which is limited to a period specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made - includes: a) Elective officials and their personal or confidential staffs b) Department heads and other officials of cabinet rank who hold positions at the pleasure of the President and their personal or confidential staffs c) Chairmen and members of commissions and boards with fixed terms of office and their personal or confidential staffs d) contractual personnel, or those whose employment in the government is in accordance with a special contract to undertake a specific work or job requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year and performs or accomplishes with a minimum of direction and

supervision from the hiring agency e) Emergency and seasonal personnel **casual - another type of non-career employee where and when the employment is not permanent but occasional, unpredictable, sporadic and brief in nature. **previous classifications: competitive service, non-competitive service or unclassified service, exempt service) CLASSES OF POSITIONS IN THE CAREER SERVICE 1) Three major levels a) First Level - clerical, trades, crafts, and custodial service positions which involve non-professional or sub professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies b) Second Level - includes professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level c) Third Level - covers positions in the Career Executive Service In order to qualify an appointment as permanent, the appointee must possess the rank appropriate for the position. Failure in this respect will render the appointment temporary. Security of tenure in the Career Executive Service is acquired with respect to rank, and not to the office or position. The guaranty of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed - a concept which is applicable only to the first and second-level employees in the Civil Service - but to the rank to which they are appointed by the President. (DIMAYUGA vs BENEDICTO, G.R. No. 144153) Thus, a CES officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of duty even if assigned to a CES position with lower salary grade, as compensation is according to CES rank and not on the basis of the position or office occupied. (IGNACIO vs CIVIL SERVICE COMMISSION, 464 SCRA 220) 2) Requirement of Competitive Examinations - except as otherwise provided, entrance to the first two levels are through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualifications in the lower level. Entrance to the third level is prescribed by the Career Executive Service Board. Within the same level, no civil service examination is required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for the level. CONSTITUTIONAL CLASSIFICATION OF POSITIONS IN THE CIVIL SERVICE 1) Competitive - those whose appointments are made according to merit and fitness to be determined as far as practicable by competitive examinations 2) Non-competitive - those whose appointments do not have to take into account merit and fitness as determined by

competitive examinations. To the latter belongs those positions described by the Constitution as "policy-determining, primarily confidential, or highly technical in nature." DETERMINATION OF MERIT AND FITNESS BY COMPETITIVE EXAMINATIONS The selection of any appointee to any government position shall be made only according to merit and fitness to be determined as far as practicable by competitive examination to perform the duties and assume the responsibilities of the position, without regard to any other consideration such as sex, color, social status, religion, or political affiliation. It insures that appointments to office is made from among those who, by examination, have shown themselves to be best qualified. 1) An examination, to be competitive within the meaning of the constitutional provision, must be given under an objective standard of grading; it must conform to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience. 2) The examination must be competitive in substance, not merely in form. 3) An oral examination may be competitive where tests of manual or professional skill are necessary, provided the examination questions are such as to best determine the practical and technical qualifications of the applicants to perform the duties of the position to be filled. The mere fact that the measurable standards for determining the general proficiency of a candidate for a particular position are subjective rather than objective does not prevent an oral interview from being a competitive examination where it tests all candidates for the same personality factors, each candidate pitting his personality traits against those of every candidate. (DELOS SANTOS vs MALLARI) EXEMPTION FROM RULE OF NON-COMPETITIVE POSITIONS Under the Constitution, policy-determining, primarily confidential, and highly technical positions are exempt from the rule requiring appointments in the Civil Service to be made on the basis of merit and fitness to be determined as far as practicable by competitive examinations. 1) POLICY-DETERMINING - a position where its occupant is vested with the power of formulating policies for the government or any of its agencies, subdivisions, or instrumentalities, like that of a member of Cabinet 2) PRIMARILY CONFIDENTIAL - a position where its occupant enjoys more than the ordinary confidence in his aptitude of the appointing power but bears primarily such close intimacy which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of State, like that of a private secretary or a confidential agent. For someone holding a primarily confidential position, more than ordinary confidence is required. 3) HIGHLY TECHNICAL - a position where its occupant is required to possess skills or training in the supreme or superior degree,

(DELOS SANTOS vs MALLARI) like that of a scientist. The assumption that an officer holding a position which is primarily confidential in nature is subject to removal at the pleasure of the appointing power is inaccurate. (INGLES vs MUTUC, 26 SCRA 171) The position of a City Engineer may be technical but not highly so because he is not required or supposed to possess a supreme or superior degree if technical skill. The duties of a city engineer are eminently administrative in character which could be discharged even by non-technical men. (GRINO vs CIVIL SERVICE COMMISSION, 194 SCRA 458) QUALIFICATION STANDARDS IN THE CIVIL SERVICE A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. 1) Use of qualification standards a) as basis for civil service examinations for positions in the career service b) as guides in the appointment and other personnel actions in the adjudication of protested appointments c) in determining training needs d) as aid in the inspection and audit of the agencies' personnel work programs 2) Establishment, administration and maintenance of qualification standards - Qualification standards shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service 3) Approval of Qualification Standards - Without a duly approved qualification standard, it would be extremely difficult if not impossible for the appointing authority to determine the qualification and fitness of an applicant for a particular position. It would have no basis or guide in extending promotional or original appointment in filling up positions in its department or agency. 4) Offsetting of Deficiencies - When necessary, education, experience or training may be used interchangeably to offset deficiencies except the required eligibility. The necessity exists if the appointee's training or experience is of such a level that the same would more than supplement the deficiency in education considering the demands of the position in question. KINDS OF APPOINTMENT IN THE CAREER SERVICE 1) Permanent - one which is issued to a person who meets all the requirements for the position to which he is appointed, in accordance with the provisions of law and the rules and standards promulgated pursuant thereto, including the appropriate eligibility prescribed; it lasts until lawfully terminated. It is entitled to security of tenure. 2) Temporary - one which is issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; it shall not exceed twelve months. The appointee may be replaced sooner if a qualified civil service eligible becomes available. It does not become permanent merely because the position is usually occupied by one appointed thereto permanently or because the

temporary appointee is allowed to continue in it for a number of years. INSTANCES OF TEMPORARY APPOINTMENT 1) Where the appointee does not possess civil service eligibility, the appointment is considered temporary. The subsequent acquisition of the required eligibility will not make a temporary appointment regular or permanent. A new appointment, not merely reinstatement, is needed. 2) It shall not exceed twelve months. It is one with civil service eligibility but different from that which is appropriate to the position for which he was appointed. A provisional (temporary) appointee does not have the appropriate eligibility to the position but the law gives him the privilege of occupying the position in the absence of an eligible and until the availability of an appropriate eligible is certified. 3) An appointment by the President of someone to fill an executive office during the absence or incapacity of the incumbent is temporary. 4) As long as the appointee has not passed any civil service examination in accordance with the rules and regulations of the Civil Service, the nature of his appointment is always temporary. 5) There is no complete appointment to speak of, at most, pending compliance with a condition, the appointee is holding only a temporary appointment. It remains temporary until the condition is met. 6) A regular government employee who has been illegally suspended or dismissed is entitled to be reinstated; there is no vacancy to which a new incumbent can be permanently appointed, his appointment being considered temporary and he has to give way to the employee whose right to the office has been recognized by the competent authorities. 7) One who is designated as officer in charge does not have any vested right over the position nor even tenure of office. His continued stay in office depends upon the appointing power. He can be suspended and replaced anytime. 8) An appointment held at the pleasure of the appointing power is, in essence, temporary in nature. When the appointing power opts to replace the incumbent, technically there is no removal but only an expiration of the term; hence, there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be separated from office. APPOINTMENT THROUGH CERTIFICATION An appointment through the certification to a position in the civil service, except as otherwise provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles (i.e., list of names of those who passed competitive examinations) and who meets all the other requirements of the position. VACANCY Vacancy - there is vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers and perform its duties.

EXISTENCE OF PHYSICAL VACANCY NOT ESSENTIAL When applied to public officers, the word "vacancy" is not employed in a technical sense. It does not mean that the office is necessarily physically vacant. An office may be vacant when it is occupied by one who is not a de jure officer, as by a mere usurper, or by one who is holding over. But although no physical vacancy in the office exists in such case, there is nevertheless a vacancy in the sense that the appointing power may proceed to fill the office by choosing a successor. APPOINTMENT TO A NON-VACANT POSITION No person, no matter how qualified or eligible for a certain position, may be appointed to an office which is not yet vacant. There can be no appointment to a non-vacant position. The incumbent must have been lawfully removed or his appointment validly terminated before one could be validly installed to succeed him, since an appointment to an office not vacant is null and void ab initio. (COSTIN vs QUIMBO, 120 SCRA 159) Where a regular employee is illegally dismissed, transferred, or demoted, his position does not become vacant. CAUSES OF VACANCY 1) Vacancy in office results in cases of death, permanent disability, removal from office or resignation of the incumbent. 2) Abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching the age limit, and recall. A vacancy may also arise by failure of persons chosen for office to accept or qualify for the office. In a case, the nomination by the outgoing President (whose term expired on December 31, 1961) was submitted to the Commission on Appointments before it began its session on January 2, 1962. It was held that the new President could recall the nomination before the Commission began its session. Otherwise, the outgoing President would be making an appointment to take effect after he has ceased to be President. (SIGUESTE vs SECRETARY OF JUSTICE, 9 SCRA 598) QUALIFYING TO OFFICE The person appointed or elected to a public office is usually required by law, before entering upon the performance of his duties, to do some act by which he shall signify his acceptance of the office and his undertaking to execute the trust confided in him. The act is ordinarily termed qualification. It generally consists of the taking, and often of subscribing and filing of an official oath and in some cases, of the giving of an official bond, if any, required by law. OATH OF OFFICE FOR PUBLIC OFFICERS AND EMPLOYEES Oath - 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. All public officers and employees shall take an oath or affirmation to uphold and defend the Constitution.

NECESSITY OF OATH OF OFFICE An oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. 1) It is only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. 2) Although the law usually requires the taking of an oath, it is not indispensable. It is mere incident to the office and constitutes no part of the office itself. 3) The President, the Vice-President, or the Acting President, cannot enter on the execution of his office without taking prescribed oath or affirmation. The oath-taking is mandatory. It marks the official induction of the official in office. 4) Unless the law expressly requires more, it is sufficient that the oath be taken. It need not be in writing or be subscribed by the affiant. OFFICERS AUTHORIZED TO ADMINISTER OATH 1) Notaries Public, Members of the Judiciary, Clerks of Court, the Secretary of either House of the Congress of the Philippines, Secretaries of Departments, Bureau Directors, Registrars of Deeds, Provincial Governors and Lieutenant-Governors, City Mayors, and other officer in the service if the government of the Philippines whose appointment is vested in the President. 2) Another officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath. PUBLIC OFFICERS AND EMPLOYEES REQUIRED TO GIVE BONDS Accountable public officers or those whom are entrusted the collection an custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals, are usually required to secure the faithful and proper discharge of their duties by giving bods conditioned to that effect. They may also be required to renew their bonds or give additional bonds. A public official bond ordinarily includes all officers who have custody of public funds. The officials, to be sure, woud be individually liable for any loss. The requirement of an official bond, therefore, is to protect public funds. DE FACTO OFFICERS THE DE FACTO DOCTRINE De Facto Doctrine - is the principle which holds that a person who, by the proper authority, is admitted and sworn into office is deemed to be rightfully in such office until, by judicial declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared void. DE FACTO OFFICER, DEFINED De Facto Officer - one who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law. A de facto officer is one who derives his appointment from one having colorable authority to appoint if the office is an

appointive office, and whose appointment is valid on its face. He may also be one who is in possession of an office in the open exercise of its functions under color of an election or an appointment even though such election or appointment may be irregular or informal, so that the incumbent is not a mere volunteer. (DIMAANDAL vs COMMISSION ON AUDIT, 291 SCRA 322) DE JURE OFFICER, DEFINED De Jure Officer - one who has the lawful right to the office in all respects but who has either been ousted from it, or who has never actually taken possession of it. DE JURE OFFICER vs DE FACTO OFFICER De Jure - rests on right De Facto - rests on reputation De Jure - has the lawful right or title to the office De Facto - has the possession and performs the duties under color of right or authority without being technically qualified in all points of law to act De Jure - cannot be removed in a direct proceeding De Facto - may be ousted in a direct proceeding against him It is evident that there can be no officer, either de jure or de facto, where there is no office to fill. While there can be no de facto officer where there is no de jure office, there may be a de facto officer in a de jure office. (TURANDA vs SANDIGANBAYAN, 249 SCRA 342) USURPER OR INTRUDER DEFINED Usurper or Intruder - one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. He is not an officer at all for any purpose. DE FACTO OFFICER vs USURPER De Facto - has a color of right or title to the office Usurper - has neither lawful title nor color of right ot title to the office De Facto - assumes to exercise his functions where the public does not know nor ought to know his lack of title or authority Usurper - simply assumes to act as an officer where the public knows aor ought to know that he is such a usurper De Facto - may be removed only is a direct proceeding against him Usurper - can be ousted at any time in any proceeding De Facto - all acts otherwise legitimate done by him in the exercise of his authority as such are valid like those of a de jure officer insofar as the rights of the public and third persons are concerned Usurper - acts are absolutely null and void PROCEEDINGS TO TRY RIGHT OR TITLE OF A DE FACTO OFFICER Where it is desired to try the title to the office, quo warranto is the remedy to be applied, unless a special statutory remedy has been substituted in its place.

1) The quo warranto proceedings may be instituted only by the person who claims to be entitled to the office or by the Republic of the Philippines represented by the Solicitor General or a public prosecutor 2) An individual who files quo warranto proceedings must set forth the name of the person who claims to be entitled to the office and that of the defendant who is unlawfully in possession thereof and those who claim to be entitled to the same office may be made parties in order to determine their respective rights to the office in the same action. An individual cannot oust two or more persons although the latter are holding illegally their office unless he is entitled to both of them. (NUENO vs ANGELES, 76 Phil. 12) 3) A public officer or employee is entitled to the basic constitutional rights of due process and security of tenure. The law presumes, in protecting such rights, that, a person acting in a public office was regularly appointed or elected to it and that official duty has been regularly performed. Moreover, the law specifically requires a special civil action of quo warranto in the name of the Republic of the Philippines or in the name of the person claiming right or title to a public office or position be brought against a person illegally holding a public office. RIGHT TO COMPENSATION OF A DE FACTO OFFICER 1) General Rule - A de facto officer cannot maintain an action to recover the salary, fees, or other emoluments attached to the office, even though he has performed the duties thereof on the theory that the acts of a de facto officer as far as he himself is concerned are void. Only an officer de jure can maintain an action for compensation. 2) Exception - One who becomes a public officer de facto without bad faith in his part, and who renders the services required if the office, may recover the compensation provided by law for such services during the period of their rendition, or retain the emoluments received that time or is legally entitled to the emoluments of the office. 3) De facto officer merely designated - The rule that a de facto officer is entitled to receive the salary for services actually rendered does not apply where the officer was not appointed but merely designated. Designation does not entail payment of additional benefits of grant upon the person so designated the right to claim the salary attached to the position. *Can the de jure officer claim compensation given by the Government to the de facto officer? No. Once de facto officer has received compensation from the government, the de jure officer cannot recover because the de factor officer worked for it. If payment of the salary or other compensation be made by the government in good faith, to the officer de facto, while he is still in possession of the office, the government cannot be compelled to pay it a second time to the officer de jure where he has recovered the office, at least where the officer de facto held by color of title. *Can the de jure officer claim or recover from the de facto officer?

Yes, when the de facto officer is notified of such that he is no longer entitled to the position, hence the compensation as well, de jure officer can recover compensation and any appeal does not count. LIABILITIES OF A DE FACTO OFFICER 1) Generally, a de facto officer is held to the same degree of accountability for official acts as a de jure officer and cannot escape liability because he has not qualified for failure to file a bond. 2) A de facto officer may be liable for all penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law. 3) A public officer cannot excuse his responsibility for crimes committed in his official capacity by asserting that he was an officer de facto. 4) A rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though the de facto officer occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith. The rule was not applied equally in view of the peculiar circumstances of the case. The respondent de jure officer was held entitled only to the back pay differentials pertaining to the difference between the salary rates for the positions of Division Manager, her rightful office and Administrative Office, the lower position to which she was appointed. The petitioner de facto officer was held liable to pay said differentials corresponding from the time he wrongfully assumed the contested position up to the time of his retirement. (GENERAL MANAGER, PPA vs MONSERATE, G.R. No. 129616) ---------------------------------------------------------------------------------------- POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS SCOPE OF POWER OF A PUBLIC OFFICER 1) Expressly conferred upon him by the law under which he has been appointed or elected 2) Expressly annexed to the office by the law which created it or some other law referring to it 3) attached to the office as incidents to it LO CHAM vs OCAMPO, 77 Phil. 635 A lawyer in the Department of Justice was temporarily detailed to assist the City Fiscal of Manila with the same powers and functions of an Assistant Fiscal FACTS: Section 1686 of the Revised Administrative Code, as amended, provides that the Secretary of Justice may appoint any

lawyer, either a subordinate from his office or a competent person not in public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of his duties, and with the same authority or therein as might be exercised by the Attorney General or the Solicitor General. Pursuant to such, Lo Cham, a doctor of medicine and lawyer, acting Chief, Medico-Legal Section in the Department of Justice, was temporarily detailed to assist the City Fiscal of Manila, with the same powers and functions of an Assistant Fiscal, by the Acting Secretary of Justice. He signed and filed the information in three cases at bar after conducting preliminary investigation. The defendants' attorney filed a motion to quash due to his lack of authority to sign informations. ISSUE: Whether or not Lo Cham has the power and authority to sign informations HELD: Yes. Powers and functions of Assistant Fiscal may be entrusted. - Signing of complaints, making investigations, and conducting prosecutions are not sacrosanct that only Presidential appointees or one expressly empowered by law may be permitted to assume such functions. A lawyer invested with the same authority as an Attorney General or Solicitor General is presumed to be competent to be entrusted with any of the duties devolving on a prosecuting attorney, due to the higher standard of training and experience required. Even if he does not measure up to the educational specification imposed by law, this is beside the point. Scope of duties of a public office. - The duties of a public office includes all those which truly are within its scope - those which are essential to the accomplishment of the main purpose for which the office was created, or which, although incidental r collateral, are germane to and serve to promote the accomplishment of the principal purpose. Subject functions are within inferences to be gathered from the circumstances which prompted the passage of the law and its predecessors. Its historical background and construction of its precursors confirm this. Subject functions inherent in power to assist a prosecuting attorney. - The fact that it was the chief law officer and legal adviser of the government who put it into effect in the discharge of his duties have an important bearing upon its statutory meaning. Subject functions are inherent in the power to assist a prosecuting attorney. It is engrained in the office or designation itself. The powers of the Solicitor General bestowed on the appointee should be deemed to be in addition to the powers inherent to the appointment. If the two phrases meant the same thing, one would be superfluous. RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. vs SANTIAGO, 58 SCRA 493 The Public Service Commission (PSC) imposed a fine on a radio company for failure to render service expected of a radio operator FACTS: The PSC, acting on complaints by dissatisfied customers of RCPI, penalized it with a fine. The allegation of RCPI that the Commission was devoid of such competence is based on the express limitation found in the Public Service Act expressly exempting radio companies from the jurisdiction, supervision, and control of such body over "their franchises, equipment, and other properties except with respect to the fixing of rates." The first paragraph of Section 21 of the Act reads: "Every public

service violating or failing to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the Commission shall be subject to a fine of not exceeding P200 per day for every day during which such default or violation continues; and the Commission is hereby authorized and empowered to impose such fine, after due notice and hearing. ISSUE: Whether or not Section 21 of the Act empowers the PSC to impose a fine HELD: No. Power neither expressly nor impliedly granted. - In the face of the provision itself, it is rather apparent that the Public Service Commission lacked the required power to proceed against petitioner. Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it. It need not be express. It may be implied from the wording of the law. Absent such requisite, however, no warrant exists for the assumption of authority. The act performed, if properly challenged, cannot meet the test of validity. It must be set aside. CLASSIFICATION OF POWERS AND DUTIES 1) From their nature a) Ministerial - Official duty is ministerial when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and designated facts. Where the officer or official body has no judicial power or discretion as to the interpretation of the law, and the course to be pursued is fixed by law, their acts are ministerial only. A ministerial act has been defined as one which a person performs on a given statement of facts, and in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety or impropriety of the act done. (LAMB vs PHIPPS, 23 Phil. 156) b) Discretionary - or judicial duties are such as necessarily require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued. Discretion in the manner of the performance of an act arises when an act may be performed or a question may be decided in one of two or more ways, either of which would still be lawful or right and where it is left to the will or judgment of the performer to determine in which way it will be performed. 2) From the standpoint of the obligation of the officer to perform his powers and duties a) Mandatory - Where the provisions of a statute relating to public officers are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of such provisions his rights might be and generally would be injuriously affected, they are not directory but mandatory. b) Permissive - Statutory provisions define the time and mode in which public officers will discharge their duties, and those which are obviously designed merely to secure order, uniformity, system, and dispatch in public business, are generally deemed directory. Mere authorization to perform an act does not impose a mandatory duty upon a public official. If the act does not affect

third persons and is not clearly beneficial to the public, permissive words will not be construed as mandatory. 3) From the standpoint of the relationship of the officer to his subordinates a) Power of Control - implies the power of an officer to manage, direct or govern, including the power to alter or modify or set aside what a subordinate had done in the performance of his duties and to substitute his judgment for that of the latter. An officer in control lays down the rules in the doing of an act. If he is not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself. b) Power of Supervision - the power of mere oversight over an inferior body. It does not include any restraining authority over such body. A supervising officer merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act. NORMS OF PUBLIC CONDUCT OF PUBLIC OFFICIALS AND EMPLOYEES 1) Public office is a public trust. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. (CONSTITUTION Art. XI, Sec. 1) 2) Standards of personal conduct. (THE CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, R.A. No. 6713) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: a) Commitment to public interest - Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. b) Professionalism - They shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. c) Justness and sincerity - They shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as

members of their personal staff whose terms are coterminous with theirs. d) Political neutrality - They shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. e) Responsiveness to the public - They shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas. f) Nationalism and patriotism - They shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. g) Commitment to democracy - They shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. h) Simple living - They and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. Basically, modest and simple living means maintaining a standard of living within the public official's or employee's visible means of income as correctly disclosed in his income tax returns, annual statement of assets, liabilities, and net worth and other documents relating to financial and business interests and connections. 3) Duties of the Civil Service Commission - Under the Code, the Commission shall adopt positive measures to promote a) Observance of these standards including the dissemination of information programs and workshops authorizing merit increases beyond regular progression steps, to a limited number of employees recognized by their office colleagues to be outstanding in their observance of ethical standards b) Continuing research and experimentation on measures which provide positive motivation to public officials and employees in raising the general level of observance of these standards SYSTEM OF INCENTIVES AND REWARDS A system of annual incentives and rewards is hereby established in order to motivate and inspire public servants to uphold the highest standards of ethics. 1) Criteria - The following criteria shall be considered in the conferment of awards: a) years of service

b) Quality and consistency of performance c) Obscurity of the position d) Level of salary e) Unique and exemplary quality of achievement f) Risk or temptation inherent in the work h) Any similar circumstances or consideration in favor of the particular awardee 2) Form of incentives and rewards - Incentives and rewards to government officials and employees of the year may take the form of: a) Bonuses b) Citations c) Directorships in government-owned or controlled corporations d) Local and foreign scholarship grants e) Paid vacations f) Automatic promotion to the next higher position suitable to his qualifications and commensurate salary 3) Committee on Awards - composed of the following: the Ombudsman and the Chairman of the Civil Service Commission as Co-Chairmen, and the Chairman of the Civil Service Commission on Audit, and two government employees to be appointed by the President, as members. Functions and Responsibilities: a) Conduct a periodic, continuing review of the performance of officials and employees in all departments, offices, and agencies b) Establish a system of annual incentives and rewards to the end that due recognition is given to public officials and employees of outstanding merit on the basis of the criteria or standards set forth above c) Determine the form of rewards to be granted d) Formulate and adopt its own rules to govern the conduct of its activism, which shall include guidelines for evaluating nominees, and mechanism for recognizing the awardees in public ceremonies, and the creation of sub-committees 4) Secretariat - The Civil Service Commission shall provide secretariat services to the Committee DUTY TO MAKE FINANCIAL DISCLOSURE To maintain public confidence in government and in public officials and employees, to avoid conflicts of interest from arising, to deter corruption, and to provide the citizens with information concerning a public officer's financial affairs and thus enable them to better judge his integrity and fitness for office, the Constitution requires financial disclosures on the part of all government personnel. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the

Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS AND LIABILITIES Public officials and employees, have an obligation to accomplish and submit declarations under oath of, and the public has the right to know their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. 1) Statement of Assets and Liabilities and Financial Disclosure a) Contents 1) Real property, its improvements, acquisition costs, assessed value, and current fair market value 2) Personal property and acquisition cost 3) All other assets such as investments, cash on hand or in banks, stocks, bonds, and the like 4) Financial liabilities, both current and long-term 5) All business interests and financial connections whether as proprietor, investor, promoter, shareholder, officer, managing director, creditor, lawyer, legal consultant or adviser, financial or business consultant, accountant, auditor, and the like, the names and old addresses of the business enterprises or entities, the dates when such interests or connections were established, and such other details as will show the nature of the interests or connections. b) When to File The documents must be filed: 1) Within thirty (30) days after assumption of office, statements of which must be reckoned as of his first day of service; 2) On or before April 30 of every year thereafter, statements of which must be reckoned as of the end of the preceding year 3) Within thirty (30) days after separation from the service, statements of which must be reckoned as of his last day of office c) Where to File The two documents shall be filed by: 1) President, Vice-President and Constitutional Officials, with the National Office of the Ombudsman 2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials such as Members of the Cabinet, Undersecretaries and Assistant Secretaries, including the foreign service and heads of government-owned or controlled corporations with original charters and their subsidiaries and state colleges and universities, with the Office of the President 3) R