law on public officers : 8-year survey of case law, 2004-2011
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Law on Public Officers:
8-Year Survey of Caselaw2004 to 2011
Alberto C. AgraProfessor of Laws, Ateneo Law School
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Public Office
! Elements of Public Office: Creation by law or byauthority of law; Sovereign function; Defined powersand functions; Performed independently or under the
control of a higher authority; Continuing andpermanence (Compensation not an element)
! 2 kinds of duties of public officers: duty owing to public(e.g. promulgation of rules, not liable if rules declaredvoid) and duty owing to private individuals (liable if
special injury on account of malfeasance or non-feasance)
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Public Office
! Act with highest degree of excellence andprofessionalism (liable if not file case before SSS ifclaim doubtful)
! Immunity of public officers for the misfeasance of theirsubordinates is based on public policy; command
responsibility does not apply
! Regular and probationary employees have security oftenure; Temporary employees and ineligible appointeeshave no security of tenure
! Classified as either career or non-career; Officers withfixed term are non-career
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Public Office
! Qualifications of Officers: rational connection betweenoffice and qualifications; constitutional and statutory
! De Jure Officer: valid appointment; possesses allqualifications; has qualified to office; entitled to salary
! Usurper: takes possession without any color of right orauthority
! De Facto Officer: acquiescence or reputation; notcomplied with precedent requirements; not possess all
qualifications; want of power on part of appointingauthority; enabling law later declared unconstitutional
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Public Office
! Officer who discharges functions even if not qualified isde facto officer; de facto when promotion voided sinceemployee had a pending administrative case; de facto
entitled to salary during period of service; After de jureofficer is appointed, not entitled
! Nepotism applies without regard to qualifications ofappointee
! Corporate secretary is a primarily confidential position;Driver and rank-and-file employees of PAGCOR notconfidential employees
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Public Office
! Incompatible Office: Prohibited to hold any other officeor employment during the term; PCGG chair and CPLC
! Multiple Positions: Legal Officer at Urban SettlementOffice and at the same time member of Peoples LawEnforcement Board; a member of PNP also appointed
chief judicial staff officer
! Forbidden Office: Prohibited to be appointed to anyoffice created or emoluments thereof increased duringterm for which officer elected
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Appointment/ Termination
! Power to appoint is discretionary! Designation is not an appointment; only imposition of
additional functions
! Not all presidential appointments are subject toconfirmation by Commission on Appointments; regular
and ad interim, permanent or temporary/ acting
! No midnight appointment if already discharging dutiesfor a year and in an acting capacity; ban not apply to SC
Justices
! An appointment not submitted to CSC for approval didnot become effective
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Appointment/ Termination
! All public officers are prohibited from engaging inprivate practice; cannot practice their profession duringincumbency and for 1 year before the office with which
officer was connected
! Resignation can be withdrawn before acceptance;Courtesy resignation is valid (must be voluntary); evenif resigned, can still be held administratively liable
! Standard for reclassification is official designation ofincumbents
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Appointment/ Termination
! In a reassignment, there should be no demotion; noreduction in rank, status or salaries
! Government employee absent without leave for at least30 days may be dropped form rolls without prior noticeand hearing
! No abandonment when official continued to dischargethe duties
! A public officer who vacates the position and isreplaced cannot ask for reinstatement
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Appointment/ Termination
! Valid Abolition of Office: not bad faith when ERCretained some functions of ERB and has expandedfunctions; if same functions, abolition not valid
! Removal of a government employee as a result of abona fide reorganization is valid
! Threat of abolition of office if employee does not resignand misled into transferring which was not acted upon
amounts to removal
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Compensation/ Benefits
! Basis: No service = No pay! Authority: Benefits must be authorized by law or
regulations; approval by Board of Directors alone
insufficient; no vested right if erroneous application oflaw; academic freedom not grant of unbridled authority
! Double Compensation: There is double compensationwhen NEA officials designated as officials of electric
cooperatives receive salaries from NEA and allowancesfrom the electric cooperatives; employees getseparation pay and retirement benefits; asupplementary retirement plan is prohibited under
Retirement Law
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Compensation/ Benefits
! GOCC Directors cannot receive compensation in additionto per diems; Public officers entitled to per diem notentitled to other fringe benefits
! System of Incentives not anathema to concept of publicaccountability
! Representation and Transportation Allowance is distinctfrom salary
! Employees affected by privatization and were qualifiedto retire by law are entitled to retirement benefits
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Compensation/ Benefits
! Retirement benefits cannot be withheld to answer forliability to government; before set-off can take place,employee must admit indebtedness to government; no
retirement benefits if not actually retired; exemptedfrom execution
! Reallocation of position resulting in downgrading ofsalary violative of policy of non-diminution of pay
! Government employees cannot go on strike
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Compensation/ Benefits
! Pending the appeal of a decision, employees entitled totheir salaries
! Public Officers who receive compensation in good faithcannot be ordered to return them
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Civil Service Commission
! Enjoys fiscal autonomy (cannot impose condition to fundrelease due to shortfall in government revenues)
! Must confirm appointment if appointee meets all thequalifications
! Appointing authority and appointees can appeal beforethe CSC; Government employees questioning theirremoval should file case with CSC, not courts
! Determination of terminal leaves is a function of CSC;duty to examine accounts relative to said benefit isshared with COA
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Civil Service Commission
! Covers all civil service positions, career or non-career;! Covers officers in Career Executive Service appointed by
the President; Those appointed by the PCSO General
Manager and by Ombudsman do not require careerservice eligibility; only presidential appointees are
covered by career executive service and are required topossess career executive service eligibility
! Public School Teachers: Board of Professional Teachersor CSC over Administrative Cases for immoral,unprofessional or dishonorable conduct; Ombudsmanover Administrative Cases
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Ombudsman! Has jurisdiction over GOCCs created under Corporation
Code or Special Law (law not distinguish)
! Water Districts are GOCCs; Their employees may becharged with violation of Anti-Graft Act
! Has jurisdiction over administrative cases against localelective officials
! Has no jurisdiction over officers of RPN Channel 9 sinceit is not a GOCC (government only minority share)
! Ombudsman has concurrent jurisdiction with thePresidential Anti-Graft Commission to investigateoffenses
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Ombudsman
! Ombudsman has broad powers to enforce its ownaction; course implementation of order through properofficer
! Ombudsman no authority to decide questions ofconstitutionality; has authority to grant immunity in any
proceeding conducted by it
! Ombudsman can impose, not just recommend, penaltiesin administrative cases; removal as penalty inadministrative cases
! Congress has power to grant additional powers toOmbudsman
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Ombudsman
! Although Special Prosecutor has rank of DeputyOmbudsman, SP not necessarily have same powers;Special Prosecutor cannot place an officer under
preventive suspension
! Administrative offenses do not prescribe; civil action forrecovery of ill-gotten wealth imprescriptible; criminalactions prescribe; 1-year ban on administrativeinvestigation is directory; resignation not warrant
dismissal of administrative case unless forced to resign
! Dismissal of criminal case does not necessarily result indismissal of administrative case; no double jeopardy;
different quantum of evidence
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Disciplinary Action
! Heads of government offices have original disciplinaryjurisdiction while CSC has appellate jurisdiction
! Protection against removal except for cause applies toprobationary and permanent employees (Constitutiondoes not distinguish)
! Guarantee of security of tenure means employee cannotbe dismissed for causes other than those provided by
law and after due process; due process extends tocasual employees
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Disciplinary Action
! The power to discipline is not delegable; no unduedelegation if confirmatory action of discipliningauthority is required
!Illegally dismissed employee entitled to back wages;employee who was not completely exonerated not
entitled to back wages; maximum period of back wagesis 5 years
! No malice in dismissal when employee took leavewithout seeing to it that application has been approved;no bad faith when mayor dismissed after CSC foundemployee was not qualified; there is bad faith when CSC
approval sought when appointment withdrawn
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Disciplinary Action
! Preventive Suspension is not a penalty; time underpreventive suspension not part of penalty of suspension
! Public officer placed under preventive suspension notentitled to back wages in case of acquittal or conviction
! An officer who had no participation in an offense cannotbe held liable; Final approving authority not necessarilyliable unless knew anomaly
! A public officer who signed a contract without anappropriation and a certificate of availability of funds ispersonally liable for payment due the contract
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Impeachment
! Only the President, Vice-President, the members of theSupreme Court, the members of the ConstitutionalCommissions and the Ombudsman are impeachable
officers (Deputy Ombudsman excluded)
! 1-year ban: Initiation of an impeachment complaintmeans the filing of the complaint and referral to theCommittee on Justice