1

PUBLIC OFFICE NOT PROPERTY

LAW ON PUBLIC OFFICERS
A public office is not the property of the public officer within the provision of
the Constitution against deprivation of property without due process of law
( 2024 EDITION ) or within an agreement in a treaty not to impair the property or rights of
private individuals.

Exceptions:
(1) In quo warranto proceedings relating to the question as to which of 2 persons
PUBLIC OFFICE A PROTECTED RIGHT
is entitled to a public office
It is not a property right but a protected right. It cannot be taken from its (2) In an action for recovery of compensation accruing by virtue of the public
incumbent without due process. It is property in the broad sense since the right to office
hold office includes everything of pecuniary value to its possessor. The right to
public office is protected by the right to security of tenure, which is guaranteed by Cornejo v. Gabriel: Due process is violated only if an office is considered
the Constitution. A public office is personal to the public officer and is not property. However, a public office is not property within the constitutional
transmissible to his heirs upon his death. No heir may be allowed to continue guaranties of due process. It is a public trust or agency. As public officers
holding his office in his place. (Segovia v. Noel, 47 Phil. 543, 1925) are mere agents and not rulers of the people, no man has a proprietary or
contractual right to an office. Every officer accepts office pursuant to law
ELEMENTS OF PUBLIC OFFICE: and holds office as a trust for the people whom he represents.

Abeja v. Tanada : Public office being personal, the death of a public officer
1. Created by Law or by authority of law;
terminates his right to occupy the contested office and extinguishes his
1. By the Constitution (e.g. Office of the President) counterclaim for damages. His widow and/or heirs cannot be substituted in
2. By valid statutory enactments (e.g. Office of the Insurance the counterclaim suit.
Commissioner)
3. By authority of the law (e.g. the Davide Commission, Philippine Truth
Commission) GENERAL RULE:The creation of a public office is primarily a legislative
function.
GENERAL RULE:A public office, being a mere privilege given by the
Exceptions:
state, does not vest any rights in the holder of the office. This rule
(1) where the offices are created by Constitution;
applies when the law is clear.
(2) where the Legislature delegates such power.

EXCEPTION:When the law is vague, the person’s holding of the

office is protected and he should not be deprived of his office. (BAR) What is the effect where an office is created pursuant to
illegally delegated powers?The office would have no existence.
Segovia v. Noel : It is a fundamental principle that a public office cannot
be regarded as the property of the incumbent and that a public office is not
a public contract. Nonetheless, Act. No. 3107 should be given a U.S.T. v. Board of Tax Appeals: The authority given to the President
prospective effect in the absence of legislative intent to the contrary. to "reorganize within one year the different executive departments,
Although there is a vested right to an office, which may not be disturbed bureaus and other instrumentalities of the Government" in order to
by legislation, yet the incumbent has, in a sense, a right to his office. If promote efficiency in the public service is limited in scope and
that right is to be taken away by statute, the terms should be clear. cannot be extended to other matters not embraced therein.
Therefore, an executive order depriving the Courts of First Instance
of jurisdiction over cases involving recovery of taxes illegally
Agcaoili v. Suguitan : The Supreme Court held that Agcaoili had not collected is null and void, as Congress alone has the "power to
ceased to be a justice of the peace by operation of Act No. 3107. The define, prescribe and apportion the jurisdiction of the various
Segovia ruling was reiterated, i.e. Act No. 3107 should be given courts."
prospective effect only, as there was no express statement making the law
applicable retroactively. Methods of Organizing office

(1) Single-head: one head assisted by subordinates. Swifter

decision and actions but may sometimes be hastily made.
(2).Board System: collegial body in formulating polices and
2. Possesses a delegation of portion of Sovereign powers of government, for
implementing programs. Mature studies and deliberations but may
benefit of the public;
be slow in responding to issues and problems.

3. Powers conferred and duties imposed defined by Constitution, legislature,

or by its authority;

4. Duties performed Independently and only controlled by law unless placed

under general control of superior office or body; MODIFICATION AND ABOLITION
Exception: If the duties are those of an inferior or subordinate
GENERAL RULE:The power to create an office includes the power to modify or
office, created or authorized by the Legislature and by it placed
abolish it. (i.e., this is generally a legislative function)
under the general control of a superior office or body;
EXCEPTIONS:
(1) Where the Constitution prohibits such modification / abolition;
5. Permanent or continuous. (State v. Taylor, 144 N.W. 2d. 289,1966; Javier (2) Where the Constitution gives the people the power to modify or abolish the
v. Sandiganbayan, G.R. No.147026-27, 2009) office;
4blue95 Note: This is not to be applied literally. The Board of
Canvassers is a public office, yet its duties are only for a limited Ocampo v. Secretary of Justice: The legislative power to create a
period of time. court carries with it the power to abolish it. When the court is
abolished, any unexpired term is abolished also.

Zandueta v. De la Costa: RULE: When a public official voluntarily

4BLUE95. a SALARY is a usual BUT NOT a necessary criterion for determining accepts an appointment to an office newly created by law -- which
the nature of the position. new office is incompatible with the former -- he will be considered
to have abandoned his former office.
4blue95 notes. The functions of Veterans Federation of the Philippines enshrined Exception: When the non-acceptance of the new appointment would
in Section 4 of Rep. Act No. 2640 should most certainly fall within the category of affect public interest, and the public official is thereby constrained to
sovereign functions. The protection of the interests of war veterans is not only accept.
meant to promote social justice, but is also intended to reward patriotism. All of
the functions in Section 4 concern the well-being of war veterans, our countrymen (BAR) Q: When is a public officer estopped from denying that he
who risked their lives and lost their limbs in fighting for and defending our nation. has occupied a public office?
It would be injustice of catastrophic proportions to say that it is beyond A: When he has acted as a public officer, esp. where he has received
sovereignty's power to reward the people who defended her. (Veterans Federation public monies by virtue of his office.
of the Philippines v. Reyes, GR No. 155027, 2006)
 2

MODES OF ACQUIRING TITLE TO PUBLIC OFFICE

4. APPOINTMENT

Appointive officials hold their office by virtue of their designation thereto by

1.ELECTION an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve
Elective officials occupy their office by virtue of the mandate of the electorate. at the pleasure of the appointing authority. (Fariñas v. Executive Secretary,
They are elected to an office for a definite term and may be removed G.R. Nos. 147387 & 152161, 2003)
therefrom only upon stringent conditions. (Fariñas v. Executive Secretary,
G.R. Nos. 147387 & 152161, 2003) General Rule: Acceptance of appointment is not necessary for
the completion or validity of appointment.
Exception: Acceptance is necessary to possession of office, and to
enable appointee to the enjoyment and responsibility of an office.

2.DESIGNATION General Rule: An appointment to an office, once made and

complete, is not subject to reconsideration or revocation.
The mere imposition of new or additional duties upon an officer to be Exception: An officer is removable at the will of the appointing
performed by him in a special manner. It presupposes that the officer is power.
already in the service by virtue of an earlier appointment, performing other
functions. The implication is that he/she shall hold office only in a temporary Forms of Acceptance
capacity and may be replaced at will by the appointing authority. It does not
confer security of tenure on the person designated. (Tapispisan v. CA, G.R. 1. Express – done verbally or in writing.
No.120082, June 8, 2005)
2. Implied - without formal acceptance, the appointee enters
upon the exercise of the duties and functions of an office. (De
Leon, The Law on Public Officers and Election Law, 65, 2011)

Requisites for a VALID APPOINTMENT

(1) Authority to appoint and evidence of the exercise of the authority;
(2) Transmittal of the appointment paper and evidence of the transmittal;
(3) Vacant position at the time of appointment; and
(4) Receipt of the appointment paper and acceptance of the appointment by the
appointee who possesses all the qualifications and none of the disqualifications.

4BLUE95. The concurrence of all these elements should always apply, regardless
of when the appointment is made, whether outside, just before, or during the
appointment ban. These steps in the appointment process should always concur
and operate as a single process. There is no valid appointment if the process lacks
even one step. (Velicaria-Garafil v. OP, GR No. 203372, 2015)

Steps in a REGULAR APPOINTMENT

1. Nomination by President
2. Confirmation by Commission on Appointments (In case of Presidential
appointments, this confirmation applies only to numbers 1 to 5 in the list of
Officers that the President shall appoint
3. Issuance of the commission or the 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.
4. Acceptance by the appointee
5. Oath and assumption (De Leon, The Law on Public Officers and Election
Law, 78-81, 2011)

Ad interim appointments are made while Congress is NOT in session or

during its recess, whether such recess is voluntary (before adjournment) or
compulsory (when Congress adjourns). The appointment shall cease to be
effective upon rejection by the COA, or if not acted upon, at the adjournment
of the next session of Congress, whether regular or special. (De Leon, The
Law on Public Officers and Election Law, 73- 76, 2011)

3. COMMISSION 4blue95. It is well settled in this jurisdiction that the President can renew
the ad interim appointments of by-passed appointees.
A written authority from a competent source given to the officer as his/her
warrant for the exercise of the powers and duties of the office to which he is 4blue95.Temporary or acting appointments are those which last until a
commissioned. It is the written evidence of the appointment, but not the permanent appointment is issued. The Commission on Appointments cannot
appointment itself. (De Leon, The Law on Public Officers and Election Law, confirm their appointments because confirmation presupposes a valid
81, 2011) nomination or ad-interim appointment. Thus, the appointee has no
personality to bring a quo warranto proceeding because he is not entitled to
office. (De Leon, The Law on Public Officers and Election Law, 76, 2011)
The essence of an appointment in an acting capacity is its temporary nature

Steps in an AD-INTERIM APPOINTMENT

1. Appointment by the appointing authority
2. Issuance of the commission
4blue95. A written memorial that can render title to public office
indubitable is required. This written memorial is known as the
commission. For purposes of appointments to the judiciary,
therefore, the date the commission has been signed by the President
is the date of the appointment

3. Acceptance by the appointee

4. Confirmation by the CA

Steps for APPOINTMENTS THAT DO NOT REQUIRE CONFIRMATION:

1. Appointment by the appointing authority
2. Issuance of the commission
3. Acceptance by the appointee
 3

KINDS OF APPOINTMENT UNDER THE CIVIL SERVICE LAW ELIGIBILITY AND QUALIFICATIONS

1. Permanent appointments ELIGIBILITY which is the term usually used in reference to the Civil Service
issued to a person who meets all the requirements for the position to Law, refers to the endowment / requirement / accomplishment that fits one for a
which he is being appointed, including the appropriate eligibility public office.
prescribed, in accordance with the provisions of the laws, rules, and
standards promulgated in pursuance thereof. QUALIFICATION generally refers to the endowment / act which a person must
do before he can occupy a public office.
2. Temporary appointments

issued in the absence of any eligibles, when necessary to public GENERAL RULE:Congress is empowered to prescribe the
interest, in order to fill a vacancy with a person who meets all the qualifications for holding public office, subject to the following
requirements for the position to which he/she is being appointed, restrictions:
except the appropriate civil service eligibility.
● Appointment in an acting capacity is merely temporary, one which Congress cannot exceed its constitutional powers;
is good only until another appointment is made to take its place Congress cannot impose conditions of eligibility inconsistent with
● Temporary appointments shall not exceed 12 months. constitutional provisions;
○ The appointee may be replaced sooner if a qualified civil service The qualification must be germane to the position ("reasonable relation"
eligible becomes available. rule);
● Instances of Temporary Appointment Congress cannot prescribe qualifications so detailed as to practically
1. appointee does not possess civil service eligibility amount to making an appointment. (Legislative appointments are
2. appointment by the President in an executive office during the unconstitutional and therefore void for being a usurpation of executive
absence or incapacity of the incumbent power.);
3. designation as officer in charge Where the Constitution establishes specific eligibility requirements for a
4. appointment held at the pleasure of the appointing power particular constitutional office, the constitutional criteria are exclusive,
and Congress cannot add to them except if the Constitution expressly or
3. Regular Appointment impliedly gives the power to set qualifications.

made by the President while Congress is in session and becomes effective after the The qualifications for public office are continuing requirements and must
nomination is confirmed by the Commission on Appointments. be possessed not only at the time of appointment or election or assumption
of office but during the officer’s entire tenure. Once any of the required
qualifications is lost, his title may be reasonably challenged.
4. Provisional appointment
Formal Qualifications:
A person who has not qualified in an appropriate examination but who otherwise 1. Citizenship
meets the requirements for appointment to a regular position in the competitive 2. Age
service, whenever a vacancy occurs and the filling thereof is necessary in the 3. Political affiliation
interest of the service and there is no appropriate register of eligibles at the time of 4. Civil service examination
appointment. 5. Ability to read and write
6. Residence
7. Education
5. Ad Interim Appointment 8. Suffrage

it is made while Congress is not in session, before confirmation by the CA; it is 4blue95. Only accountable public officers or those who are entrusted with
immediately effective, and ceases to be valid if disapproved or by-passed by the the collection and custody of public money, and public ministerial officers
Ca or until the next adjournment of the Congress whose actions may affect the rights and interests of individuals are
required to give an official bond.
6. Midnight Appointment Improper notarization is not among the grounds for disqualification as
stated under the OEC and LGC. Apart from the qualifications provided for
made by the President or acting president within 2 months immediately before the in the Constitution, the power to prescribe additional qualifications for
next presidential elections and up to the end ofhis term, whether or not it is elective office and grounds for disqualification therefrom, consistent with
confirmed by the Commission. the constitutional provisions, is vested in Congress. (Amora v.
COMELEC, G.R. No. 19228, 2011)
An officer who misrepresented his or her qualification, e.g. educational
attainment and eligibility for government service, is guilty of plain and
simple dishonesty as it refers to the act of intentionally making a false
statement on any material fact in securing one’s appointment. (Momongan
NEPOTISM (ALSO APPLIES TO DESIGNATION) v. Sumayo, A.M. No. P-10-2767, 2011)
All public officers and employees shall take an oath or affirmation to
The word “relative” and members of the family referred to are those related uphold and defend the Constitution. (PHIL. CONST., art. IX-B, § 4)
within the third degree either of consanguinity or affinity. 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 Limits on Legislature’s Power to Prescribe Qualifications:
uninfluenced by any personal or filial consideration. (De Leon, The Law on
Public Officers and Election Law, 46, 417, 2011) 1. The legislature may not reduce or increase the qualifications
prescribed in an exclusive manner by the Constitution.
1. The Constitution prohibits the president from appointing his close relatives
(within the 4th civil degree by consanguinity or affinity to the president or his 2. The legislature may prescribe only general qualifications.
spouse) to high positions in government during his tenure. No relative of the
President, within the 4th civil degree, shall be appointed (read 4blue 95 notes on 3. The qualifications must be relevant to the office for which
EXECUTIVE) they are prescribed.

2. Under the Civil Service Decree, all appointments in the national, provincial, 2022 notes. Where a person is prohibited from holding two offices at
city, and municipal governments or in any branch or instrumentality, including the same time, his appointment or election to a second office may
GOCCs, made in favor of the appointing or recommending authority, or of the operate to vacate the first or he may be ineligible for the second.
chief of the bureau of the office, or of persons exercising immediate supervision
over him, are prohibited. As used in the Civil Service Law, the term ―relative‖ and 2022notes. A person who accepts and qualifies for a second and
members of the family referred to those within the 3rd degree of consanguinity or incompatible office is deemed to vacate, or by implication, to resign
affinity. (De Leon, The Law on Public Officers and Election Law, 46, 2011) from the first office. The same rule obtains where the holding of
more than one position is prohibited by constitutional or statutory
Exceptions: provision although the second position is compatible with the first.
1. Persons employed in Confidential capacity (De Leon, The Law on Public Officers and Election Law, 44, 2011)
2. Teachers
3. Physicians 2022 notes. In the absence of constitutional inhibition, Congress has
4. Members of AFP the same right to provide disqualifications that it has to provide
qualifications for office. (De Leon, The Law on Public Officers and
Election Law, 23, 2011)
 4

DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS

DISQUALIFICATION is the presence of circumstances and qualities which makes

an individual ineligible from holding a public office. Lack of disqualifications is
itself a qualification.
1. Mental or physical Incapacity
2. Misconduct or crime
3. Removal or suspension from office
4. Impeachment
5. Previous tenure of office
6. Being an Elective official
7. Consecutive terms
8. Having been a Candidate for any elective position
9. Holding more than One office
10. Relationship with the appointing power
11. Office Newly created or the emoluments of which have been increased
12. Grounds under the Local Government Code (De Leon, The Law on Public
Officers and Election Law, 40-49, 2011)

General Rule: Appointive and elective officials cannot hold multiple employment or
office during their tenure.
Exception: Appointive officials may hold other office when allowed by law or by the
primary functions of their positions. (PHIL. CONST., art. XIB, § 7)

1. Those provided for under the Constitution, such as:

a. President as head of NEDA (PHIL. CONST., art. XII, § 9)
b. VP may be appointed as Cabinet Member (PHIL. CONST., art. VII, § 3)
c. VP as Acting President (PHIL. CONST., art. VII, § 7)
d. In and ex-officio capacity (CLU v. Exec. Sec., G.R. No. 83896, 1991);
and

2. Posts occupied by Executive officials specified in Section 13, Article VII

without additional compensation in ex officio capacities as provided by law and
as required by the primary functions of the officials’ offices. (Funa v. Agra, G.R.
No. 191644, 2013)

GENERAL DISQUALIFICATIONS UNDER THE CONSTITUTION:

1. No candidate who lost in an election shall, within one year after such election, be
appointed to any office in Government. (PHIL. CONST., art. IX-B, § 6)
2. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure. (PHIL. CONST., art. IX-B, § 7 (1))
3. Unless otherwise provided by law or by the primary functions of his position, no
appointive official shall hold any other position in Government. (PHIL. CONST., art. IX-
B, § 7 (2))

4blue95. When the Constitution has attached a disqualification to the holding of any
office, Congress cannot remove it under the power to prescribe qualifications as to
such offices as it may create.

POWER OF CONGRESS TO PRESCRIBE DISQUALIFICATIONS

In the absence of constitutional inhibition, Congress has the same right to provide
disqualifications that it has to provide qualifications for office. (De Leon, The Law on
Public Officers and Election Law, 21, 2019)

Restrictions
1. Congress may not add disqualifications where the Constitution has provided
them in such a way as to indicate an intention that the disqualifications provided
shall embrace all that are to be permitted; and
2. When the Constitution has attached a disqualification to the holding of any
office, Congress cannot remove it under the power to prescribe qualifications as to
such offices as it may create (De Leon, The Law on Public Officers and Election
Law, 21, 2019)

Congress cannot validly amend or otherwise modify the qualification standards

(under the Constitution), as it cannot disregard, evade, or weaken the force of a
constitutional mandate, or alter or enlarge the Constitution. The Constitution is the
basic law to which all laws must conform; no act shall be valid if it conflicts with the
Constitution. In the discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed. Congress' inherent legislative powers,
broad as they may be, are subject to certain limitations. [SJS v. DDB, GR No. 157870,
2008]

DURATION OF QUALIFICATION
Eligibility to an office should be construed as of a continuing nature and must exist at the
commencement of the term and during occupancy of the office. The reckoning point in
determining the qualifications of an appointee is the date of issuance of the appointment
and not the date of its approval by the CSC or the date of resolution of the protest against
it (CSC v de la Cruz, G.R. No. 158737, August 31, 2004)

DIVESTMENT
When a public official is in a conflict-of-interest situation. Such official must resign from
his position in any private business enterprise within 30 days from his assumption of
office and/ or divest himself of his shareholdings or interest within 60 days from such
assumption. (RA 6713, Office of the Ombudsman)
 5

POWERS AND DUTIES OF PUBLIC OFFICERS CLASSIFICATON OF POWERS AND DUTIES:

SOURCE: THE PEOPLE, THE SOVEREIGNTY

AS TO THEIR NATURE

1. MINISTERIAL — the law exacting its discharge prescribes and defines the
Extent of Powers or Authority time, mode and occasion of its performance and requires neither judgment nor
discretion. This kind of duty is susceptible of delegation.
1. Expressly conferred upon him by the law under which he has been
appointed or elected 2. DISCRETIONARY — a public officer has the right to decide how and when
2. Expressly annexed to the office by the law which created it or some other the duty shall be performed. A public officer cannot delegate this kind of duty. (De
law referring to it Leon, The Law on Public Officers and Election Law, 135-36, 2011)
3. Attached to the office as an incident to it
General Rule: Mandamus will not lie for the performance of a
discretionary duty
Consequence of Holding Office Exceptions:

To hold an office means to possess or to occupy the office, or to be in possession a. When the discretion granted is only as to the manner of its exercise and
and administration of the office, which implies nothing less than the actual not the discretion to act or not to act, the court may require a general
discharge of the functions and duties of the office. (Funa v. Agra, G.R. No. action
191644, 2013) b. Grave abuse of discretion

DISCRETIONARY MINISTERIAL
DOCTRINE OF NECESSARY IMPLICATION DEFINITION ACTS WHICH REQUIRE ACTS WHICH ARE
THE EXERCISE OF PERFORMED IN A
All powers necessary to the exercise of the power expressly granted are deemed REASON IN GIVEN STATE OF FACTS,
impliedly granted. The fact that a particular power has not been expressly DETERMINING WHEN, IN A PRESCRIBED
conferred does not necessarily mean that it is not possessed by the officer claiming WHERE, AND HOW TO MANNER, IN
it. (Robustum Agricultural Corporation v. Department of Agrarian Reform, G.R. EXERCISE THE POWER OBEDIENCE TO THE
No. 221484, Nov. 19, 2018) MANDATE OF LEGAL
AUTHORITY, WITHOUT
4blue95. No statute can be enacted that can provide all the details involved in its REGARD TO OR THE
application. There is always an omission that may not meet a particular situation. EXERCISE OF HIS OWN
JUDGMENT UPON THE
What is thought, at the time of enactment, to be an all-embracing legislation may
PROPRIETY OR
be inadequate to provide for the unfolding events of the future. So-called gaps in IMPROPRIETY OF THE
the law develop as the law is enforced. One of the rules of statutory construction ACT DONE (LAMB V.
used to fill in the gap is the doctrine of necessary implication. (Chua v. CSC,GR PHIPPS)
No. 88979, 1992)
CAN BE GENERALLY, NO. GENERALLY, YES.
DELEGATED?
EXCEPTION: WHEN EXCEPTION: WHEN
CONSTITUTIONAL DUTIES OF PUBLIC OFFICERS THE POWER TO THE LAW EXPRESSLY
SUBSTITUTE / REQUIRES THE ACT TO
1. To be accountable to the people, to serve them with utmost responsibility, DELEGATE HAS BEEN BE PERFORMED BY THE
integrity, loyalty, and efficiency; to act with patriotism and justice; and to GIVEN OFFICER IN PERSON
lead modest lives. (PHIL. CONST., art. XI, § 1); AND / OR PROHIBITS
SUCH DELEGATION
2. Submit a declaration under oath of assets, liabilities, and net worth upon
WHEN IS ONLY IF THE DUTY TO IN ALL CASES.
assumption of officer and thereafter as may be required; (PHIL. CONST.,
MANDAMUS DO SOMETHING HAS
art. XVIII, § 7) PROPER? BEEN DELAYED FOR AN
UNREASONABLE
3. Owe the State and Constitution allegiance at all times. (PHIL. CONST., PERIOD OF TIME.
art. XI, § 18);
IS PUBLIC GENERALLY NOT LIABLE IF DUTY
OFFICER LIABLE EXERCISED CONTRARY
LIABLE? EXCEPTIONS: IF TO THE MANNER
THERE IS FRAUD OR PRESCRIBED BY LAW.
DUTIES OF PUBLIC OFFICERS, In General MALICE

1. Duty to obey the law

2. Duty to accept and continue in office; AS TO THE OBLIGATION OF THE OFFICER TO PERFORM HIS
POWERS AND DUTIES
3. Duty to accept burden of office;
1. MANDATORY — where the provisions of a statute relating to public officers
4. Duty as to diligence and care in the performance of official duties; are intended for the protection of the citizen and to prevent a sacrifice of his
property, and by a disregard of such provision, his rights might be and generally
5. Duty in choice and supervision of subordinates; would be injuriously affected
6. Duty to perform official acts honestly, faithfully, and to the best of his
ability; 2. PERMISSIVE — statutes define the time and mode in which the public
7. Duty not to use his official power to further his own interest (De Leon, officers will discharge their duties, and those which are obviously designed merely
The Law on Public Officers and Election Law, 152-44, 2011) to secure order, uniformity, system and dispatch in public business

TERRITORIAL LIMITATION: confined to that territory over which the

law, by virtue of which they claim, has sovereign force. The authority is
limited in its exercise to that term during which he is by law invested with the AS TO RELATIONSHIP
rights and duties of the office. (De Leon, The Law on Public Officers and
Election Law, 132-33, 2011) 1. POWER OF CONTROL — 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
EXCEPTIONS: the performance of his duties and to substitute his judgment for that of the latter
(1) Consuls;
(2) Police officers, who may arrest persons for crimes committed outside 2. POWER OF SUPERVISION — it is the power of mere oversight over an
Philippine territory; inferior body and does not include any restraining authority over such body. The
(3) Doctrine of hot pursuit officer merely sees to it that rules are followed but he himself does not lay down
such rules, nor does he have the discretion to modify or replace them.
 6

IMPORTANT PRINCIPLES (BAR MATTER 2022) RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

1.ALTER EGO PRINCIPLE RIGHT TO OFFICE

The acts of the Secretaries of the departments, performed and promulgated in the The right to office is the right to exercise the powers of the office to the exclusion
regular course of business are, unless disapproved or reprobated by the President, of others.
presumptively the acts of the President. (Carpio v Executive Secretary, GR No
96409, February 14, 1992)

Limits of the Alter Ego Doctrine There are certain powers that are RIGHT TO SALARY OR COMPENSATION
reserved to the President which cannot be exercised by the
Secretaries of the departments such as: GENERAL RULE: A public officer is not entitled to compensation for services
rendered under an unconstitutional statute or provision thereof.
1. Declaration of Martial Law Exception: If some other statute provides otherwise.
2. Suspension of the privilege of writ of habeas corpus
3. Pardoning Power; If no compensation is fixed by law, the public officer is assumed to have accepted
4. Purely discretionary powers the office to serve gratuitously.
After services have been rendered by a public officer, the compensation thus
earned cannot be taken away by a subsequent law. However, he cannot recover
salary for a period during which he performed no services.

2.DOCTRINE OF QUALIFIED POLITICAL AGENCY One without legal title to office either by lawful appointment or election and
qualification is not entitled to recover salary or compensation attached to the
All executive and administrative organizations are adjuncts of the Executive office.
department, the heads of the various executive departments are assistants and One who intrudes into or usurps a public office has no right to the salary or
agents of the Chief Executive, and, except in cases where the Chief Executive is emoluments attached to the office.
required by the Constitution or law to act in person or in the exigencies of the
situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the Compensation not an element of public office
executive departments, and the acts of the secretaries, performed and promulgated Compensation is not indispensable to public office. It is not part of the
in the regular course of business, are, unless disapproved or reprobated by the office but merely incident thereto. It is sometimes expressly provided that
Chief Executive, presumptively the acts of the Chief Executive (Villena v. certain officers shall receive no compensation, and a law creating an office
Secretary of Interior, GR No. L-46570, 1939) without any provision for compensation may carry with it the implication
that the services are to be rendered gratuitously.

Salary: time-bound
3. PRINCIPLE OF HOLD-OVER Wages: service-bound
Per Diem: allowance for days actually spent for special duties
In the absence of any express of implied constitutional or statutory provision to the
contrary, the public officer is entitled to hold office until his successor shall have
been duly chosen and shall have qualified. (Lecaroz v. Sandiganbayan, GR No Salary of Public Officer Not Subject to Attachment
130872, March 25, 1999) The salary of a public officer or employee may not, by garnishment,
attachment, or order of execution, be seized before being paid by him, and
Effect when law fixes specific date for the end of a term appropriated for the payment of his debts.

When the law fixes a specific date for the end of the term, there is an Money in the hands of public officers, although it may be due government
implied prohibition against holdover (Nueno v Angeles, GR no 89, employees, is not liable to the creditors of these employees in the process
February 1, 1946) of garnishment because the sovereign State cannot be sued in its own
courts except by express authorization by statute. Until paid over by the
Nature of Officer during Hold-Over agent of the government to the person entitled to receive it, public funds
cannot in any legal sense be part of his effects subject to attachment by
During the period of hold-over, the public officer is a de jure officer legal process. (Director of Commerce and Industry v. Concepcion)

Future or Unearned Salaries Cannot be Assigned

The salary or emoluments in public office are not considered the proper
subject of barter and sale. (22 R.C.L. 541)
4. NEXT-IN-RANK RULE
Agreements Affecting Compensation Held Void
The concept of next-in-rank does not import any mandatory or peremptory An agreement by a public officer respecting his compensation may
requirement that the person next in rank must be appointed to the vacancy. rightfully be considered invalid as against public policy where it tends to
One who is ―next-in-rank‖ to a vacancy is only given preferential consideration to pervert such compensation to a purpose other than that for which it was
a vacant position, but it does not necessarily follow that he alone and no one else intended, and to interfere with the officer's free and unbiased judgment in
can be appointed. The appointing authority has the discretion to fill the vacancy relation to the duties of his office. (This is usually with reference to
under the next-in-rank rule or by any other method authorized by law (e.g. by unperformed services and the salary or fees attached thereto.)
transfer). (De Leon, The Law on Public Officers and Election Law, 182-183,
2019)

5. CONDONATION DOCTRINE The prohibition on double compensation does NOT APPLY where:

The condonation doctrine is the doctrine that provides that a reelected official 1. The payment of additional or double compensation to a
should no longer be made accountable for an administrative offense committed particular officer or employee is specifically authorized by law in
during his previous term. BERNABE: In Carpio-Morales, the Court abandoned the individual instances where the payment of such compensation
"condonation doctrine," explaining that "election is not a mode of condoning an appears not only just but necessary. (Sadueste v. Municipality of
administrative offense, and there is simply no constitutional or statutory basis in Surigao, G.R. 47380, 1941)
our jurisdiction to support the notion that an official elected for a different term is
fully absolved of any administrative liability arising from an offense done during a 2. The additional compensation is received not from the
prior term." government or any of its entities.
The abandonment should be prospectively applied. (Dimapilis v. Commission on
Elections, G.R. No. 227158, [April 18, 2017]) The ruling promulgated in Morales 3. The public officer or employee has two distinct offices, each of
v. Court of Appeals on the abandonment of the doctrine of condonation had, which has its own duties and compensation.
indeed, become final only on April 12, 2016, and thus the abandonment should be
reckoned from April 12, 2016. [Crebello v. Sandiganbayan, GR No. 232325,
2019]
 7

DE FACTO OFFICER
De Facto Intruder
One who is in possession of the office and discharging its duties under color of
authority. By color of authority is meant that derived from an election or Nature Officer under any of the One who takes possession of an
appointment, however irregular or informal, so that the incumbent is not a mere circumstances aforementioned office and undertakes to act
(previous column) officially without any authority,
volunteer. [CSC v. Joson, GR No. 154674, 27 May 2004 citing State v. Oates, 57
either actual or apparent
N.W. 296 (1983)]
Basis of Color of right or title to office None. He has neither lawful
Requisites of a De Factor Officer authority title nor color of right or title to
The conditions and elements of de facto officership are the following: office.
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and Validity of Valid as to the public until such Absolutely void; they can be
3) There must be actual physical possession of the office in good faith. "official" acts time as his title to the office is impeached at any time in any
adjudged insufficient proceeding (unless and until he
One can qualify as a de facto officer only if all the aforestated elements are continues to act for so long a
present. There can be no de facto officer where there is no de jure office, although time as to afford a presumption
there may be a de facto officer in a de jure office. [Tuanda v. Sandiganbayan, G.R. of his right to act)
No. 110544, 1995]
Rule on Entitled to receive Not entitled to compensation at
compensation compensation only during the all.
De Facto Doctrine: Acts are Deemed Valid time when no de jure officer is
declared;
The primordial concern that the doctrine seeks to address remains to be the He is paid only for actual
protection of the public, who rely on the acts of a person performing the duties of services rendered by him.
an office pursuant to an irregular or defective authority. Precluding its application
to cases where there was no good faith possession of the office, despite having a
De Jure De Facto
color of authority or right to the office, would render the doctrine's purpose
nugatory. [Arroyo v. CA, GR No. 202860, 10 April 2019]
Requisites (1) Existence of a de jure (1) De jure office;
office;
Entitlement to Salary
(2) must possess the legal (2) Color of right or general
qualifications for the acquiescence by the
General Rule: Rightful incumbent may recover from a de facto officer the salary office in question; public;
received by the latter during the time of wrongful tenure even though the latter is
in good faith and under color of title. (3) must be lawfully (3) Actual physical
Exception: When there is no de jure officer, the de facto officer is entitled to chosen to such office; possession of the office
salaries for the period when he actually discharged functions. (Civil Liberties in good faith
Union v. Executive Secretary, GR No 83896, February 22, 1991) (4) must have qualified
himself to perform the
duties of such office
How is a De Facto Officer Ousted according to the mode
prescribed by law.
A de facto officer may be ousted in a direct proceeding where the title will be the Right: he has the lawful right / Reputation: Has the possession
principal issue, not in a collateral action or in an action to which he is not a party. Basis of title to the office and performs the duties under
Authority color of right, without being
technically qualified in all
The proper remedy is to institute quo warranto proceeding under Rule 66 of the
points of law to act
ROC. The title to a public office may not be contested except directly, by quo
warranto. (De Leon, The Law on Public Officers and Election Law, 113-114,
2019) How ousted Cannot be ousted. Only by a direct proceeding
(quo warranto); not collaterally

Prescription of Right to Office Validity of Valid, subject to exceptions Valid as to the public until such
official acts (e.g., they were done beyond time as his title to the office is
Under the Rules of Court, quo warranto is the proper remedy against a public the scope of his authority, etc.) adjudged insufficient.
officer for his ouster from office. The petition should be filed within one (1) year
after the cause of such ouster or the right of the plaintiff to hold such office or Rule on Entitled to compensation as a Entitled to receive
position arose; otherwise, the action will be barred. The filing of an administrative Compensation matter of right; compensation only during the
action does not suspend the period for filing the appropriate judicial proceeding. time when no de jure officer is
The principle of "no work, no declared;
pay" is not applicable to him. He is paid only for actual
Rationale for the one year period: Title to public office should not be subjected to
services rendered by him.
uncertainties but should be determined as speedily as possible. In Republic vs.
Sereno, the Court held that if the petitioner is a private individual, the one-year
DOCTRINES: (2022 BAR MATTER)
period applies. If it is the government itself seeking relief, the period does not
apply. It is based on the basic principle that prescription does not lie against the 1) Quo Warranto as Legal Remedy. The title to a public office may not be contested
State as found in the Civil code. (Republic v. Sereno, G.R. No. 237428, 2018) except directly, by quo warranto proceedings; and it cannot be assailed collaterally, even
through certiorari, prohibition, mandamus or a motion to annul or set aside order. Xxx A
quo warranto proceeding is the proper legal remedy to determine the right or title to the
DE JURE OFFICER contested public office and to oust the holder from its enjoyment. It is brought against the
person who is alleged to have usurped, intruded into, or unlawfully held or exercised the
One who has the lawful right to the office in all respects, but who has either been public office, and may be commenced by the Solicitor General or a public prosecutor, as
ousted from it, or who has never actually taken possession of it. When the officer the case may be, or by any person claiming to be entitled to the public office or position
de jure is also the officer de facto, the lawful title and possession are united. (De usurped or unlawfully held or exercised by another.
Leon, The Law on Public Officers and Election Law, 103-104, 2019)
2) Clear Right to the Office. For a quo warranto petition to be successful, the private
person suing must show a clear right to the contested office. The rightful authority of a
De Jure v. De Facto Officer A de jure officer has a legal right to the office
public officer, in the full exercise of his public functions, cannot be questioned by any
but he may not be in possession of the office; while a de facto officer merely private suitor, or by any other, except in the form especially provided by law.
possesses the office because of color of authority. (De Leon, The Law on
Public Officers and Election Law, 105, 2019) 3) Appointive Quo Warranto vs. Elective Quo Warranto. Thus, quo warranto proceeding
is the proper legal remedy to determine the right or title to the contested public office or
USURPER to oust the holder from its enjoyment. In quo warranto proceedings referring to offices
One who take possession of the office and undertakes to act officially without any filled by election, what is to be determined is the eligibility of the candidates elected,
color of right or authority, either actual or apparent. Note that it is the color of while in quo warranto proceedings referring to offices filled by appointment, what is
authority not the color of title, that distinguishes an officer de facto from a usurper. determined is the legality of the appointment. [Republic v. Serreno,2018]
It means that the authority to hold office is by some election or appointment,
however irregular or informal. 4) Consequence of a Bad Faith De Facto Officer. If the de facto officer acquired title to
He is not an officer at all for any purpose. (De Leon, The Law on Public Officers the office through bad faith (e.g. falsification of requirements such as scholastic records):
(a) Cannot institute quo warranto as it can only be done by a de jure officer; (b) De facto
and Election Law, 105-106, 2019)
doctrine; hence, acts are deemed valid insofar as the public is concerned; (c) Not entitled
to compensation since not in good faith. [Arroyo v. CA, GR No. 202860, 10 April 2019]
 8

PREVENTIVE SUSPENSION

Two kinds of preventive suspension of government employees charged with

offenses punishable by removal or suspension:

1. Preventive suspension pending investigation;

GROUNDS FOR PREVENTIVE SUSPENSION OF POLICE

OFFICERS (Preventive Suspension Pending Criminal Case)

The court shall immediately suspend the accused from office for a period not
exceeding 90 days from arraignment:
1. Upon the filing of a complaint or information sufficient in form
and substance against a member of the PNP;
2. For grave felonies where the penalty imposed by law is 6 years
and 1 day or more.

EXCEPTION: If it can be shown by evidence that the accused is harassing

the complainant and/or witnesses, the court may order the preventive
suspension of the accused PNP member even if the charge is punishable by a
penalty lower than 6 years and 1 day.

2. Preventive suspension pending appeal if the penalty imposed by the

disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated.

Preventive suspension is merely a preventive measure, a preliminary step in an

administrative investigation; the purpose thereof is to prevent the accused from
using his position and the powers and prerogatives of his office to influence
potential witnesses or tamper with records which may be vital in the prosecution
of the case against him. (Ombudsman v. Francisco, G.R. 172553, 2011)
It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the
Sandiganbayan to suspend any public official against whom a valid information
charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any
offense involving fraud upon government or public funds or property is filed. The
court trying a case has neither discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his office to intimidate
witnesses or frustrate his prosecution or continuing committing malfeasance in
office. (Villasenor v. Sandiganbayan, G.R. 180700, 2008)
There is no dispute as to the power of the Ombudsman to place a public officer
charged with an administrative offense under preventive suspension. That power is
clearly confined under Section 24 of R.A. No. 6770.

The law sets forth two conditions that must be satisfied to justify the issuance
of an order of preventive suspension pending an investigation, to wit:

1. The evidence of guilt is strong; and 4BLUE95. The mere reduction of the penalty on appeal does not entitle a
2. Either the following circumstance co-existing with the first government employee to back salaries if he was not exonerated of the charge
requirement: against him. If the exoneration of the employee is relative (as distinguished from
a. The charge involves dishonesty, oppression or grave misconduct complete exoneration), an inquiry into the factual premise of the offense charged
or neglect in the performance of duty; and of the offense committed must be made. If the administrative offense found to
b. The charge would warrant removal from the service; or have been actually committed is of lesser gravity than the offense charged, the
c. The respondent’s continued stay in office may prejudice the case employee cannot be considered exonerated if the factual premise for the
filed against him. (Ombudsman v. Valeroso, G.R. 167828, 2007) imposition of the lesser penalty remains the same. (CSC v. Cruz, G.R. No.
187858, 2011)
4BLUE95. Prior notice and hearing are not required in the issuance
of a preventive suspension order.

GENERAL RULE: The period of preventive suspension shall not be more

than 90 days. Accountability and Responsibility of Public Officers and Employees

EXCEPTION: If the delay in the disposition of the case is due to the fault,
negligence or petitions of the respondent Norm of Performance of Duties
Q: What are the standards of personal conduct provided for in Sec. 4, RA 6713?

(1) Commitment to public interest;

(2) Professionalism;
(3) Justness and sincerity;
(4) Political neutrality;
(5) Responsiveness to the public;
(6) Nationalism and patriotism;
(7) Commitment to democracy;
(8) Simple living

Back salaries during preventive suspension General Rule: A public official is

not entitled to any compensation if he has not rendered any service. (Reyes v.
Hernandez, G.R. No. Apr. 8, 1941)

Two conditions before an employee may be entitled to back salaries in

preventive suspension cases:
1. The employee must be found innocent of the charges; and
2. His suspension must be unjustified or the official was innocent. (CSC v.
Cruz, G.R. 187858, 2011)
 9

LIABILITIES OF PUBLIC OFFICERS Every public official who signs or initials documents in the course of standard
operating procedures does not automatically become a conspirator in a crime
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS that transpired at some stage in which the official had no participation. (Peralta
v. Desierto, G.R. 153152, 2005)
A public officer is under a three-fold responsibility for violation of duty or for wrongful
act or omission: Even if the dishonest act was committed by the employee prior to entering
government service, such act is still a ground for disciplinary action. (Orbase v.
1. CIVIL LIABILITY:IF THE INDIVIDUAL IS DAMAGED BY SUCH Ombudsman, G.R. 175115, 2009)
VIOLATION, THE OFFICIAL SHALL, IN SOME CASES, BE HELD LIABLE
CIVILLY TO REIMBURSE THE INJURED PARTY

2. CRIMINAL LIABILITY:IF THE LAW HAS ATTACHED A PENAL

SANCTION, THE OFFICER MAY BE PUNISHED CRIMINALLY. THE MERE
FACT THAT AN OFFICER IS ACTING IN AN OFFICIAL CAPACITY WILL
NOT RELIEVE HIM FROM CRIMINAL LIABILITY.

Crimes committed by public officers are classified under:

1. Revised Penal Code

a. Malfeasance and misfeasance in office
b. Frauds and illegal exactions and transactions
c. Malversation of public
d. Infidelity of public officers
e. Other offenses and irregularities committed by public officers which
include disobedience, refusal of assistance, maltreatment of prisoners,
anticipation, prolongation and abandonment of the duties and powers of
public office, usurpation of powers and unlawful appointments

2. Anti-Graft and Corrupt Practices Act

3. Code of Conduct and Ethical Standards
Any violation hereof proven in a proper administrative proceeding shall be
sufficient cause for removal or dismissal of a public official or employee,
even if no criminal prosecution is instituted against him.

4. Forfeiture of Unexplained Wealth Act

5. Civil Service Decree

For any violation of the provisions on:

i. Warrant and checks receivables for taxes or other indebtedness of the
government
ii. Issuance of official receipts
iii. Limitation on cash advances
iv. Liability for acts done by direction of a superior officer
v. Prohibition against pecuniary interest

6. Government Auditing Code

7. Local Government Code
8. National Internal Revenue Code
9. Omnibus Election Code

Public officers may not be held criminally liable for failure to perform a duty
commanded by law when, for causes beyond their control, performance is JURISDICTION IN DISCIPLINARY CASES
impossible.
However, the absence of corrupt intent is not a defense to an action against an The Secretaries and heads of agencies and instrumentalities, provinces, cities and
officer for a statutory penalty for misconduct such as taking illegal fees, or for municipalities shall have jurisdiction to investigate and decide matters involving
willful failure or refusal to perform a mandatory ministerial duty disciplinary action against officers and employees under their jurisdiction. Their decision
The mere expiration of his term of office will not prevent the prosecution and shall be final in case the penalty imposed is suspension for not more than 30 days or fine
punishment of a public officer for a misdemeanor committed in office; nor the in an amount not exceeding 30 days’ salary.
re-election of a public official extinguishes the criminal liability incurred by him
during his previous term of office. In case the decision rendered by a bureau or office head is appealable to the Commission,
the same may be initially appealed to the department and finally to the Commission and
pending appeal, the same shall be executor except when the penalty is removal, in which
3. ADMINISTRATIVE LIABILITY: SUCH VIOLATION MAY ALSO LEAD TO case the same shall be executory only after confirmation by the Secretary concerned.
IMPOSITION OF FINE, REPRIMAND, SUSPENSION OR REMOVAL FROM
OFFICE, AS THE CASE MAY BE. The Commission shall decide upon appeal all administrative disciplinary cases involving
the imposition of a penalty of suspension for more than 30 days, or fine in an amount
Grounds for Discipline: exceeding 30 days’ salary, demotion in rank or salary transfer, removal or dismissal from
1. Discourtesy in the course of official duties; office.
2. Refusal to perform Official duty or render overtime service;
3. Falsification of Official documents; A complaint may be filed directly with the Commission by a private citizen against a
4. Habitual Drunkenness; government official or employee in which case it may hear and decide the case or it may
5. Inefficiency and incompetence in the performance of official duties; deputize any department, agency, official, or group of officials to conduct the
6. Willful refusal to Pay just debts or willful failure to pay taxes due to the investigation.
government; Disciplinary cases and cases involving ―personnel actions‖ affecting employees in the
7. Oppression; civil service are within the exclusive jurisdiction of the Civil Service Commission, which
8. Dishonesty; is the sole arbiter of controversies relating to the civil service. Executive Order No. 151,
9. Misconduct; or the Presidential Commission Against Graft and Corruption, exercises jurisdiction to
10. Disgraceful and Immoral conduct; investigate all administrative complaints involving graft and corruption filed in any form
11. Neglect of duty; or manner against presidential appointees in the executive department of the government,
12. .Physical or mental Incapacity due to immoral or vicious habits; including those in GOCCs. Such jurisdiction extends to nonpresidential appointees who
13. Conviction of a crime involving Moral turpitude; may have acted in conspiracy or who may have been involved with a presidential
14. Being notoriously Undesirable; appointee.
15. Gambling.
The Sandiganbayan has exclusive original jurisdiction over presidents, directors or
Good Faith trustees, or managers of GOCCs, without any distinction with respect to the manner of
Good faith is ordinarily used to describe that state of mind denoting honesty of their creation, whenever charges of graft and corruption are involved.
intention and freedom from knowledge of circumstances which ought to put the
holder upon inquiry. In other words, good faith is actually a question of RA No. 4670, otherwise known as the Magna Carta for Public School Teachers, covers
intention. Although this is something internal, one can ascertain a person’s and governs administrative proceedings involving public school teachers.
intention not from his own protestation of good faith, which is self-serving, but
from evidence of his conduct and outward acts. (Dumduma v. CSC, G.R.
182606, 2011)
 10

GENERAL RULE: A PUBLIC OFFICER IS NOT LIABLE FOR INJURIES ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES
SUSTAINED BY ANOTHER DUE TO OFFICIAL ACTS DONE WITHIN THE
SCOPE OF HIS AUTHORITY. (REVISED PENAL CODE, ART. 11 (5)). REINSTATEMENT
Exceptions: the issuance of an appointment to a person who has been previously appointed to a
1. Bad faith;
position in the career service and who has, through no delinquency or misconduct,
2. Malice;
3. Negligence; been separated therefrom, or to the restoration of one who has been exonerated of
4. Death or Injury to persons or damage to property the administrative charges filed against him. (Galang v. Land Bank, G.R. 175276,
2011)

The rule is settled that back salaries may be awarded to civil servants only if they
LIABILITY FOR ACTS DONE BY DIRECTION OF SUPERIOR OFFICER have been illegally dismissed and thenceforth ordered reinstated, or to those
acquitted of the charge against them. (Tanjay Water District v. Quinit, Jr., G.R.
No accountable officer shall be relieved from liability by reason of his having acted under 160502, 2007)
the direction of a superior officer in paying out, applying, or disposing of the funds of
property with which he is chargeable, unless prior to that act, he notified the superior A public officer is not entitled to reinstatement and back salaries, when removal or
officer in writing of the illegality of the payment, application, or disposition. (De Leon, suspension is lawful. The denial of salary to an employee during the period of his
The Law on Public Officers and Election Law, 306-307, 2019)
suspension, if he should later be found guilty, is proper because he had given
Non-Applicability of the Doctrine of Command Responsibility and the
ground for his suspension. It does not impair his constitutional rights because the
Principle of Respondeat Superiorto Public Officers Constitution itself allows suspension for cause as provided by law and the law
provides that an employee may be suspended pending an investigation or by way
Neither the principle of command responsibility (in military or political structural of penalty. (Bangalisan v. CA, G.R. 124678, 1997)
dynamics) nor the doctrine of respondeat superior(in quasi delicts) applies in the
law of public officers. The negligence of the subordinate cannot be ascribed to his A public officer is entitled after his acquittal not only to reinstatement but also to
superior in the absence of evidence of the latter’s own negligence (Reyes v. Rural payment of the salaries, allowances, and other benefits withheld from him by
Bank of San Miguel, G.R. No. 154499, 2004) reason of his discharge from the service even if there has been valid suspension
from the service pending the adjudication of the criminal case. (P/Chief
Exception: The President, being the commanderin-chief of all armed forces, Superintendent Calinisan v. SPO2 Roaquin, G.R. 159588, 2010)
necessarily possesses control over the military that qualifies him as a superior
within the purview of the command responsibility doctrine. (In the Matter of the
Petition for Writ of Amparo and Habeas Data in favor of Noriel H. Rodriguez;
Rodriguez v. Macapagal-Arroyo,G.R. No. 191805, 2011)

LIABILITY OF MINISTERIAL OFFICERS

1. Nonfeasance -Neglect or refusal to perform an act which is the officer’s

legal obligation to perform

2. Misfeasance –Failure to use that degree of care, skill, and diligence

required in the performance of official duty

3. Malfeasance–The doing, through ignorance, inattention or malice, of an

Where to file claims for backwages: The claim for recovery of back salaries
act which he had nolegal right to perform
involves settlement of accounts or claims against the government and should
therefore be filed with the Commission on Audit. (2009 Revised Rules of
Procedures – Commission on Audit)

STATUTORY LIABILITY
AMOUNT OF BACK SALARIES
An illegally terminated civil service employee is entitled to back salaries limited
1. Art. 32, Civil Code – liability for failure or neglect to perform official duty
only to a maximum period of five years, and not full back salaries from his illegal
2. Art. 33, Civil Code – liability for violating rights and liberties of private
termination up to his reinstatement. (Galang v. Land Bank, G.R. 175276, 2011)
individuals

3. Art. 34, Civil Code–liability of peace officers for render aid or protection
to a person; subsidiary liability of municipal corporations in such case4.Sec.
IMMUNITY:
38(2), Chapter 9, Book I, Admin. Code–liability for neglecting to perform a
duty without just cause within (i) a period fixed by law or regulation; or (ii)a
reasonable period, if no period is fixed
Official immunity
Only protects public officials from tort liability for damages arising from acts or
functions in the performance of their official duties.
Public officers may be sued to restrain them from enforcing an act claimed to be
unconstitutional.

Exceptions: when liability does not devolve ultimately to the State such as:
1. A petition to require official to do his duty;
2. A petition to restrain him from doing an act;
3. To recover taxes from him;
4. Those where the officer impleaded may by himself alone comply with the
decision of the court;
5. Where the government itself has violated its own laws. (De Leon, The
Law on Public Officers and Election Law, 246-247, 2019)

Where a public officer has committed an ultra vires act, or where there is a
showing of bad faith, malice or gross negligence, the officer can be held
personally accountable even if such acts are claimed to have been performed in
connection with official duties. (Wylie v. Rarang, G.R. 74135, 1992)

Immunity from suit cannot institutionalize irresponsibility and non-accountability

nor grant a privileged status not claimed by any other official of the Republic.
(Republic v. Sandoval, G.R. 84607, 1993)

4BLUE95. Where the public officer is sued in his personal capacity, state
immunity will not apply. (Lansang v. CA, G.R. 102667, 2000)
 11

TERM LIMITS (ELECTED OFFICIAL)

TERM LIMIT FOR LOCAL ELECTIVE OFFICIALS; WHEN
CONSIDERED FULLY SERVED
Term is the period during which an official is entitled to hold office.
The term of office of elective local officials (except barangay officials) shall be 3
years and no such official shall serve for more than three consecutive terms. (Phil.
Tenure is the period during which the official actually holds office. Tenure can be Const., art. X, sec. 8, para. 1)
shortened, e.g., by death or removal, but term is changed only by amendment. Furthermore, the voluntary renunciation of office for any length of time shall not
(Dimaporo v. Mitra, Jr., G.R. No. 96859, 1991) be considered as an interruption in the continuity of his service for the full term for
which he was elected. (Id., para. 2)

The 2nd paragraph of Article X, Section 8 of the Constitution "simply explains

when an elective local official may be deemed to have served his full term of
office. The term served must therefore be one for which the official concerned was
elected. The purpose of this provision is to prevent a circumvention of the
limitation on the number of terms an elective local official may serve. Conversely,
if he is not serving a term for which he was elected because he is simply
continuing the service of the official he succeeds, such official cannot be
considered to have fully served the term notwithstanding his voluntary
renunciation of office prior to its expiration." (Borja, Jr. v. Commission on
Elections, G.R. No. 133495, 1998)

"The term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it
is not enough that an individual has served three consecutive terms in an elective
local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply."

SITUATIONAL EXAMPLES:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the

death of the incumbent. Six months before the next election, he resigns and is
twice elected thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not
actually served three full terms in all for the purpose of applying the term
limit. Under Art. X, §8, voluntary renunciation of the office is not considered
as an interruption in the continuity of his service for the full term only if the
term is one "for which he was elected." Since A is only completing the
service of the term for which the deceased and not he was elected, A cannot
be considered to have completed one term. His resignation constitutes an
interruption of the full term.

Case No. 2. Suppose B is elected mayor and, during his first term, he is
twice suspended for misconduct for a total of 1 year. If he is twice reelected
after that, can he run for one more term in the next election? Yes, because he
has served only two full terms successively. In both cases, the mayor is
entitled to run for reelection because the two conditions for the application of
the disqualification provisions have not concurred, namely, that the local
official concerned has been elected three consecutive times and that he has
fully served three consecutive terms. In the first case, even if the local
official is considered to have served three full terms notwithstanding his
resignation before the end of the first term, the fact remains that he has not
been elected three times. In the second case, the local official has been
elected three consecutive times, but he has not fully served three consecutive
terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession

involves a total failure of the two conditions to concur for the purpose of
applying Art. X, §8. Suppose he is twice elected after that term, is he
qualified to run again in the next election? Yes, because he was not elected to
the office of mayor in the first term but simply found himself thrust into it by
operation of law. Neither had he served the full term because he only
continued the service, interrupted by the death, of the deceased mayor.
To consider C in the third case to have served the first term in full and
therefore ineligible to run a third time for reelection would be not only to
falsify reality but also to unduly restrict the right of the people to choose
whom they wish to govern them. If the vicemayor turns out to be a bad
mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there
will be no way the people can return him to office (even if it is just the third
time he is standing for reelection) if his service of the first term is counted as
one for the purpose of applying the term limit.
 12

NOT AN INTERRUPTION TO THE FULL TERM (3-TERM LIMIT AN INTERRUPTION TO THE FULL TERM (3- TERM LIMIT DOES NOT
APPLIES – HENCE, BARRED) APPLY – HENCE, NOT BARRED)

CONSTITUTIONAL RULE: The term of office of elective local officials, 1) SUCCESSION.

except barangay officials, which shall be determined by law, shall be three years
and no such official shall serve for more than three consecutive terms. Voluntary Assumption by succession is by operation of law. To count as a term, one must
renunciation of the office for any length of time shall not be considered as an have been elected and fully served. Law allows the severance to effectuate
interruption in the continuity of his service for the full term for which he was succession. [Borja v. COMELEC, GR No. 133495, 1998; Montebon v.
elected. [Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b), RA 7160] COMELEC, GR No. 180444, 2008]]

1) RUNNING, WINNING, AND SERVING A DIFFERENT a) Vice Mayor to Mayor on 3rd term as Vice Mayor then served 2
ELECTIVE POSITION IS VOLUNTARY RENUNCIATION. more terms as mayor; not barred to run for another term as mayor.
[Borja v. COMELEC, GR No. 133495, 1998]
Punong barangay, while serving 3rd term, ran and won as municipal
councilor and served the full term. Considered as voluntary b) Councilor served 3 consecutive terms, but during 2nd term
renunciation. [Bolos v. COMELEC, GR No. 184082, 2009] succeeded as Vice Mayor; not barred to run again as councilor.
[Montebon v. COMELEC, GR No. 180444, 2008]

2) CIRCUMVENTION.
2) RECALL ELECTION.
After serving 3 terms as Punong Barangay, got elected as barangay
kagawad with sister elected as Punong Barangay, who resigned the Previously served for 3 full terms as mayor, then participated in a recall election;
following day after oath of office to allow succession. Considered as not barred. The prohibited election refers to the next regular election for the same
a conspiracy and hence, a circumvention of the 3-term limit. office following the end of the third consecutive term. Any subsequent election,
[Aguilar v. Benlot, GR No. 232806, 2019] like a recall election, is no longer covered by the prohibition for two reasons. First,
a subsequent election like a recall election is no longer an immediate reelection
after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service. [Socrates v. COMELEC, GR
3) CONVERSION. No. 154512, 2002] Previously served for 2 full terms as mayor (1992-1998), ran
for a 3rd term (1998-2001) but lost, then subsequently participated in a recall
Conversion of a municipality to a city with no break in the service as election (2000), which he won served the unexpired term; not barred to run again
a local chief executive. [Latasa v. COMELEC, GR No. 154829, for another term – not elected for 3 consecutive terms, continuity as mayor was
2003; Halili v. COMELEC, GR No. 231643, 2019] disrupted with the defeat, and was a private citizen for 2 years prior to the recall
election. [Adormeo v. COMELEC, 147927, 2002]

4) REAPPORTIONMENT OF DISTRICT.

Served for 2 terms (2004, 2007) as Provincial Board Member (BM) 3) DISMISSAL AS PENALTY.
in the Cam. Sur 2nd dist. Cam. Sur was reapportioned by RA9716.
In 2010 and 2013 he ran and won as BM in the 3rd dist (which is Dismissals [as penalties] were involuntary interruptions; not considered to have
essentially the same as the old 2nd dist). [Naval v. COMELEC, GR fully served a 3rd successive term of office. [Tallado v. COMELEC, GR No.
No. 207851, 2014] 246679, 2019]

5) MERGER.
4) ELECTION PROTEST.
Municipalities were merged and converted into a city, but the
Punong Barangay from the former municipality is the same as that in a) Unseated during 3rd term as mayor because of an election protest; not
the city as the new political unit with the same territory and barred as not deemed to have been elected for that term – merely assumed
inhabitants (hence, same group of voters). [Laceda v. Limena, GR office as a presumptive winner. [Lonzanida v. COMELEC, GR No.
No. 182867, 2008] 135150, 1999]

b) Served as mayor in 2001, 2004, and 2007, but the 2004 (2nd term) was
by virtue of an election protest and served only the remainder of the 2nd
6) PREVENTIVE SUSPENSION. term; not barred to run in 2010. [Abundo v. COMELEC, GR No. 201716,
2013]
Preventive suspension is not an interruption. Just a temporary
inability; not unseated and continued to hold office; just temporarily c) Unseated for running and winning a 4th term (NOTE: 4th term was
barred to exercise functions. [Aldovino v. COMELEC, GR No. invalidated by the SC in Rivera v. COMELEC), then relinquished office;
184836, 2009] not barred to run in the subsequent election. [Dizon v. COMELEC, GR
No. 182088, 2009]

7) ELECTION PROTEST.

Election protest, but able to serve 3 full terms, including the 2nd
term (fully served) where the proclamation was voided. [Ong v.
COMELEC, GR N0. 163295, 2006; Rivera v. COMELEC, GR No.
167591, 2007]
 13

TERMINATION OF OFFICIAL RELATIONS (NATIONAL) GROUNDS FOR TERMINATION OF OFFICERS UNDER THE CIVIL
SERVICE LAW (NON-PRESIDENTIAL APPOINTEES)

1. NATURAL CAUSES Sec. 46(a), Book V of EO 292 provides that ―No officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law and
a. Expiration of Term or Tenure of Office after due process.‖ The grounds constituting just cause are enumerated in Sec.
b. Reaching Age Limit (Retirement) – 65 46(b).

Compulsory Retirement Age 1.Dishonesty

a. Members of the Judiciary –70 yrs old 2.Oppression
b. Other government officers and employees –65 yrs old [new GSIS Charter] 3.Neglect of Duty
c. Optional retirement age –after rendition of the minimum number of years 4.Misconduct
of service [RA 1616] 5.Disgraceful & Immoral Conduct
6.Notoriously Undesirable
7.Discourtesy in the course of duty
2.ACTS OR NEGLECT OF THE OFFICER 8.Inefficiency & incompetence in performance of duty
9.Receiving for personal use of a gift in course of official duty if given in
a. Prescription of Right to Office hope of receiving favor or better treatment
10.Conviction of crime involving moral turpitude
Quo warranto is the proper remedy against a public officer or employee for 11.Unauthorized solicitation and contribution from subordinate employees
his/her ouster from office which should be commenced within 1 year after 12.Violation of Civil Service Law
the cause of such ouster; otherwise the action shall be barred. 13.Falsification of official documents
14.Frequent unauthorized absences or tardiness
b. Abandonment of Office 15.Habitual drunkenness
16.Gambling prohibited by law
the voluntary relinquishment of an office by the holder, with the intention of 17.Refusal to perform official duty/overtime service
terminating his possession and control thereof. 18.Disgraceful, Immoral & Dishonest conduct before entering the service
While resignation in general is a formal relinquishment, abandonment is a 19.Physical or mental incapacity
voluntary relinquishment through non-user. Non-user refers to a neglect to 20.Borrowed money by superior from subordinate
use a privilege or a right orto exercise an easement or an office. 21.Lending money at usurious rate/interest
(Municipality of San Andres, Catanduanes v. CA, G.R. No. 118883, 1998) 22.Willful failure to pay just debt/tax
23.Contracting loan of money/property w/ whom office of EE has
c. Acceptance of an Incompatible Office business relation.
24.Pursuit of private business/vocation or profession w/o permission from
d. Resignation Civil Service.
25.Insubordination
Courtesy resignation cannot properly be interpreted as a resignation in the legal 26.Engaging in Partisan Political Activity by one holding non-political
sense for it is not necessarily a reflection of a public official’s intention to office
surrender his position. Rather, it manifests his submission to the will of the 27.Conduct is prejudicial to service
political authority and the appointing power (Ortiz v. COMELEC, supra) 28.Lobbying for personal interest or gain in legislative halls w/o authority
29.Promote sale of tickets in behalf of private entrepreneurs not intended
When resignation is effective for public purpose
a. Date specified in the tender 30.Nepotism
b. If no such date is specified, resignation shall be effective when the public
officer receives notice of the acceptance of his resignation, NOT the date of
the letter or notice of acceptance (Gamboa v. CA, G.R. No. L38068, 1981)

Revocation of Resignation : A resignation can be validly withdrawn before the

public official is notified of its acceptance (Republic v. Singun, G.R. No. 149356,
2008).
Art. 238 of the RPC makes it an offense for any public officer who, before
acceptance of his resignation, abandons his office to the detriment of the public
service.

3. ACTS OF THE GOVERNMENT OR THE PEOPLE

a.Conviction of a Crime
b. Abolition of Office
c. Impeachment
d. Removal