MARCH 22 ADMINISTRATIVE LAW | BESSY NOTES
I. REVIEW
DEFINITION OF PUBLIC OFFICE -> A public office is 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. In its broad sense, a
public office is a charge, station, or employment conferred by appointment or
election by a government
DEFINITION OF PUBLIC OFFICER -> Art.203, Revised Penal Code: Art.
203. Who are public officers. — For the purpose of applying the provisions of
this and the preceding titles of this book, any person who, by direct provision
of the law, popular election or appointment by competent authority, shall take
part in the performance of public functions in the Government of the
Philippine Islands, of shall perform in said Government or in any of its
branches public duties as an employee, agent or subordinate official, of any
rank or class, shall be deemed to be a public officer.
-> Sec. 2, Republic Act no. 3019: "Public officer" includes elective and
appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving compensation, even
nominal, from the government as defined in the preceding subparagraph.
CONSTITUTION, ARTICLE XI, SECTION 1 -> Section 1. 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.
CREATION:
GENERAL RULE: An office is created by some constitutional or statutory
provision or by authority conferred by it.
By Congress -> Except for such offices as are created by the Constitution,
the creation of public offices is primarily a legislative function. In so far as the
legislative power is not restricted by constitutional provisions, it is supreme,
and the legislature may decide for itself what offices are suitable, necessary,
or convenient.
(a) When in the exigencies of government it is necessary to create and
define new duties, the legislative department has the discretion to determine
whether additional offices shall be created, or whether these duties shall be
attached to and become ex officio duties of existing offices.
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(b) An office created by the legislature is wholly within the power of that body,
and it may prescribe the mode of filling the office, and the powers and duties
of the incumbent, and, if it sees fit, abolish the office.
By the President -> As far as bureaus, agencies, or offices in the executive
department are concerned, the President’s power to control may justify him
to inactivate the functions of a particular office, or certain laws may grant him
the broad authority to carry out reorganisation measures. In particular, under
the Administrative Code of 1987, “the President, subject to the policy of the
Executive Office and in order to achieve simplicity, economy and efficiency,
shall have the continuing authority to reorganise the administrative structure
of the Office of the President. For this purpose, he may transfer the functions
of the other Departments or agencies to the Office of the President.
1. Constitution-e.g., Office of The President
2. Law-e.g., Securities and Exchange Commission
3. Authority of law-e.g., Davide Commission
II.
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY,
respondent.
G.R. No. 83896 / February 22, 1991 | Riparip
FACTS:
• In July 1987, then President Corazon Aquino issued Executive Order
No. 284 which allowed members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government
offices or positions in addition to their primary positions subject to
limitations set therein. The Civil Liberties Union (CLU) assailed this
EO averring that such law is unconstitutional. The constitutionality of
EO 284 is being challenged by CLU on the principal submission that
it adds exceptions to Sec 13, Article 7 of the Constitution which
provides:
“Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or
indirectly practice any other profession, participate in any business,
or be financially interested in any contract with, or in any franchise,
or special privilege granted by the Government or any subdivision,
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agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.”
• CLU avers that by virtue of the phrase “unless otherwise provided in
this Constitution“, the only exceptions against holding any other
office or employment in Government are those provided in the
Constitution, namely: (i) The Vice-President may be appointed as a
Member of the Cabinet under Sec 3, par. (2), Article 7; and (ii) the
Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Sec 8 (1), Article 8.
ISSUE: Whether EO 284 is constitutional.
HELD:
• No, it is unconstitutional. It is clear that the 1987 Constitution seeks
to prohibit the President, Vice-President, members of the Cabinet,
their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases
specified in the Constitution itself and as above clarified with respect
to posts held without additional compensation in an ex-officio
capacity as provided by law and as required by the primary functions
of their office, the citation of Cabinet members (then called Ministers)
as examples during the debate and deliberation on the general rule
laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitution’s manifest
intent and the people’s understanding thereof.
• In the light of the construction given to Sec 13, Art 7 in relation to Sec
7, par. (2), Art IX-B of the 1987 Constitution, EO 284 is
unconstitutional. Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than 2 positions
in the government and government corporations, EO 284 actually
allows them to hold multiple offices or employment in direct
contravention of the express mandate of Sec 13, Art 7 of the 1987
Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
• The practice of designating members of the Cabinet, their deputies
and assistants as members of the governing bodies or boards of
various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent
during the time legislative powers in this country were exercised by
former President Ferdinand E. Marcos pursuant to his martial law
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authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations
created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and
other perquisites of office. Most of these instrumentalities have
remained up to the present time.
• This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In
fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa.
• But what is indeed significant is the fact that although Section 7,
Article I-XB already contains a blanket prohibition against the holding
of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional
Commission should see it fit to formulate another provision, Sec. 13,
Article VII, specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.
A. NORMS OF CONDUCT AND RIGHTS AND PRIVILEGES OF PUBLIC
OFFICERS (continuation)
1. RIGHT TO REINSTATEMENT AND BACKWAGES IN CASE DISMISSAL
IS ILLEGAL
CASE NO.1
HON. KARINA CONSTANTINO-DAVID, vs. ZENAIDA D. PANGANDAMAN-
GANIA
G.R. No. 156039, August 14, 2003 | Solis
Facts: This case involves the payment of back wages and other benefits
resulting from the illegal dismissal of an employee due to improper personnel
and non-disciplinary action.
Zenaida Pangandaman-Gania is a Director II and Manila Information and
Liaison Officer of the Mindanao State University (MSU). She has been
holding the position since the confirmation of her appointment in 1995
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However, on July 1998, a Special Order was issued designating a certain
Mangondato as Acting Director in her place in view of the alleged expiration
of her term and was no longer allowed to report for work.
Gania immediately brought the matter to the CSC for a ruling on the validity
of the termination of her employment. The CSC upheld her dismissal for lack
of attestation (her appointment was not submitted to the Civil Service Commission (CSC) for attestation)
and prolonged absence without official Ieave, but on motion for
reconsideration, the CSC found merit in her motion, declared her removal
from office as illegal, exonerated her from the charge of being absent without
official leave and ordered her reinstatement to her position, but disallowed
the payment of back salaries for the period she was not working as a result
of the illegal dismissal.
CSC resolutions became final and executory. Gania pursued her prayer for
reinstatement but MSU refused to employ her back. In 2001 Gania
questioned to the Court of Appeals, the disallowance of payment of her back
wages and other benefits. CA ruled that back wages should be paid to
respondent from the time of her illegal dismissal until she was ordered
reinstated by the CSC on 8 March 2001, but excluded the period after the
CSC had ordered MSU to admit respondent back to work.
The OSG filed a petition for review in behalf of the petitioners. The OSG
asserted as grounds for review the principle recognizing finality to factual
findings of quasi-judicial agencies.
Issue: WON the CA can review and revise a resolution by the CSC which
became final and executory.
Held: Yes. According to the Court, it cannot inflexibly dwell on the defect
of a belated appeal and coldly thwart a review of the case. It is true that
Gaia had lost the right to ask for the modification of CSC Resolution dated 8
March 2001 and to demand compensation for her back salaries and other
benefits. The Court noted however that even after acknowledging the finality
of Resolution dated 8 March 2001, the CSC still entertained two motions of
respondent and promulgated a Resolution in 28 February 2002 denying
respondent's motions for the reason that she allegedly did not report for work
but not because they were already time-barred.
There was no doubt that the Civil Service Commission was in the legitimate
exercise of its mandate under Sec. 3, Rule I, of the Revised Uniform Rules
on Administrative Cases in the Civil Service that "administrative
investigations shall be conducted without necessarily adhering strictly
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to the technical rules of procedure and evidence applicable to judicial
proceedings."
There are special circumstances in accordance with the tenets of
justice and fair play that warrant such liberal attitude on the part of the
CSC and a compassionate like-minded discernment by the Supreme Court.
To begin with, respondent was consistently denied reinstatement by the
responsible officers of MSU and vehemently barred from resuming her
previous position. As the private requests and official directives by the CSC
were cruelly rejected by her employer and the period of her unemployment
was unduly prolonged, respondent had no choice and was compelled to ask
for back salaries and other benefits to offset the callous repudiation of what
was due her.
The Court further declared that to prevent respondent from claiming back
wages would leave incomplete the redress of the illegal dismissal that
had been done to her and amount to endorsing the wrongful refusal of
her employer or whoever was accountable to reinstate her, and a too-
rigid application of the pertinent provisions of the Revised Uniform Rules
on Administrative Cases in the Civil Service as well as the Rules of Court will
not be given premium where it would obstruct rather than serve the
broader interests of justice in the light of the prevailing circumstances in
the case under consideration
The Supreme Court denied the petition and ordered the payment of
respondent's backwages.
2. NEXT IN RANK PRINCIPLE -> It specifically applies only in cases of
promotion. The rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such person to the
next higher position. In other words, one who is next-in-rank to a vacancy is
given preferential consideration for promotion to a vacant position, but it does
not necessarily follow that he alone and no one else can be appointed. Merit
which is criterion entirely distinct from either longevity or length of service,
must also be recognised and whenever authorised by law must be
rewarded.
Reason: To apply the next-in-rank rule peremptorily would impose a rigid
formula on the appointing power contrary to the policy of the law that among
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those qualified and eligible, the appointing authority is granted discretion and
prerogative of choice of the one he deems fit for appointment. All that the
Civil Service Commission is actually allowed to do is check whether or not
the appointee possesses the appropriate civil service eligibility or the
required qualifications. No other criterion is required to be employed by the
Commission. Although there is no mandatory nor peremptory requirement
that a person next-in-rank is entitled to preference in appointment, the very
purpose of the Civil Service Law dictates that the persons who are qualified
and next-in-rank should be given preferential consideration when filling up a
vacated position through promotion. The preference given to old or
permanent employees assumes that employees working in an office for
longer period have gained not only superior skills but also greater dedication
to public service provided that the acts of the appointing power are “bona fide
for the best interest of the public service and the person chosen has the
needed qualifications.”
Case # 2: ERLINDA P. MERAM vs . FILIPINA V. EDRALIN, THE MINISTER
OF NATURAL RESOURCES AND THE PRESIDENTIAL ASSISTANT FOR
LEGAL AFFAIRS
Facts: Edralin, a training officer of the Bureau of Forest Development (BFD),
was proposed for appointment to the position of Administrative Officer (A.O)
V, R-73, Administrative Division of the BFD.
Meram and Agravio who hold the positions of A.O III, R-70 and Supply
Officer V, R-70 respectively, filed their protests against the proposal.
Director of the BFD sent a memorandum to the respondent Minister stating
that in the course of the deliberation of the BFD Promotion Board, the latter
found out that there are four BFD Personnel in the Central Office who are
considered "next-in-rank" to the position of A.O. V namely: Meram, Agravio,
Malong and Cansino.
Director pointed in his memorandum that the Board found that Edralin,
Training Officer, Range 60, assigned in the Training Center was not next-in-
rank.
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Civil Service Commission (CSC) forwarded to the respondent Minister the
protests of the petitioner and Agravio for appropriate action.
Minister forwarded the permanent appointment of Edralin as A.O. V to the
Commission for appropriate action and he explained that he assessed the
recommendation of the Promotions Board and considered also other aspects
which are vital to the dynamism of the service; and upon seeing that
respondent Edralin is eminently qualified for the position.
The appointment was approved by the CSC "subject to the final outcome of
the protests against the appointment by Meram and Agravio."
Minister rendered a decision dismissing the protests. Petitioner and Agravio
appealed to the Merit Systems Board (MSB).
The MSB promulgated a decision in favor of Agravio, revoking the previous
approval of the appointment of respondent Edralin and directing the Minister
to appoint, in her stead, Agravio to the contested position.
Meram and Edralin filed their respective MR and afterwards the MSB
promulgated another decision modifying the earlier one and appointed the
petitioner, after finding that Agravio's designation as Assistant Officer-in-
Charge was revoked because he had been ineffective in said position.
Edralin appealed to the CSC which was denied and she then filed a letter-
petition with the Office of the President (OP) alleging that MSB and CSC had
no jurisdiction to act on petitioner's appeal.
Confidential Legal Assistant (CLA) of the OP directed the CSC to forward the
entire records of the case in view of Edralin's appeal. However, the CSC
rejected the order of the OP stating that decisions of the CSC are subject to
review only by the courts.
Edralin wrote another letter to the President of the Philippines. It seems that
this letter was taken cognizance of by then President Marcos.
Director of the BFD issued a memorandum, informing Lazaro that the
matters which the President was directing him to suspend are already fait
accompli and therefore, while he was willing to comply with the Presidential
instructions, the implementation of his compliance had become legally
untenable.
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OP, through CLA, affirmed the dismissal of the protests of Agravio and
Meram.
Issue: Whether OP acted correctly in taking cognizance of Edralin's letter-
petition and setting aside the decisions of the MSB and CSC.
Held: No. MSB has the power to hear and decide cases brought before it
by officers and employees who feel aggrieved by the determination of
appointing authorities involving appointment, promotion, transfer, detail
reassignment and other personnel actions as well as complaints against any
officers in the government arising from abuses arising from personnel actions
of these officers or from violations of the merit system.
In connection with this power of the MSB, Section 8 of this decree also
provides:
“Decisions of the Board involving the removal of officers and
employees from the service shall be subject to automatic review by
the Commission. The Commission shall likewise hear and decide
appeals from other decisions of the Board, provided that the
decisions of the Commission shall be subject to review only by the
Courts”
The MSB and CSC had validly acquired jurisdiction over Meram’’s formal
protest to the exclusion of all other officials, boards or offices and therefore,
the respondent Presidential Assistant for Legal Affairs gravely abused his
discretion when he disregarded and declared as null and void the decisions
of MSB and resolutions of CSC which had already become final and
executory, and in fact, had already been executed, enforced and
implemented.
In the case at bar, the BFD personnel who are considered next-in-rank to the
vacated position were identified. Respondent Edralin was not one of them. In
fact, she was nine or ten salary ranges below the next-in-rank personnel.
Subsequently, the MSB made the same finding in its decision.
As earlier stated, appointments under the civil service law should be based
on merit and fitness and should never depend on how intimate a friend or
how closely related an appointee is to the powers that be. And granting that
the respondent possesses the qualifications required for the contested
position, it cannot be denied that the petitioner equally possesses the same
qualifications, if not in greater degree, and more important, she is next-in-
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rank to the vacated position. Therefore, she deserves to be appointed to the
disputed item.
The decision of the OP is annulled and set aside. The decision of the OP is
annulled and set aside. The decision of the MSB and the resolutions of the
CSC which dismissed respondent's appeal and motion for reconsideration
are hereby REINSTATED and made immediately EXECUTORY.
CASE #3: FELIMON LUEGO, petitioner-appellant, vs. vs. CIVIL
SERVICE COMMISSION and FELICULA TUOZO CIVIL SERVICE
COMMISSION and FELICULA TUOZO, respondents-appellees.
Facts: * On February 18, 1983 - Felimon Luego (petitioner) was appointed
ADMINISTRATIVE OFFICER II for the Office of the Mayor of Cebu City
*The appointment was described as PERMANENT
* But the CSC approved t as TEMPORARY because ofa protest fiiled by
Felicula Tuozo (respondent) and another employee against Luego's
appointment.
* On March 22, 1984 - CSC found that Tuozo was better qualified for the
Administrative Officer II position. Luego's appointment was revoked.
* June 28, 1984- Mayor Duterte appointed Tuozo (respondents) to the
position
*Luego filed the present petition to assail the CSC order revoking his
appointment.
Issue: Whether the CSCis authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the
appointee and on the basis of this finding, order his replacement by the
latter?
Ruling: No
Luego's appointment was permanent in nature.
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 MARCH 22
Luego's appoitnment was temporary and could thus be withdrawn at will. By
accepting temporary appointment, Luego should be deemed to have waived
his security of tenure. While the OSG correctly stated the rule on temporary
appointments, the rule has no application here since Luego's appointment is
PERMANENT.
The stamping of the words "APPROVED as TEMPORARY" did not change
the character of the appointment which was clearly described as
"PERMANENT" in the space provided for in the Luego's appointment paper
What was temporary was the approval of the appointment, not the
appointment itself. And what madde the appoval temporary was the fact that
it was made to depend on the condition specified and on the verifiaction of
the qualifications of the appointee to the position.
CSC NOT EMPOWERED TO DETERMINE THE NATURE OF THE
APPOINTMENT
The CSC is not empowered to determine the kind of nature of the
appointment extended by the appointing officer, its authority being limited to
approving or reviewing the appointment in the light of the requirement of the
Civil Service Law.
When the appointee is qualified and all the other legal requirements are
satisfied, the Commission has no choice but to attest to the appointment in
accordance with the Civil Service Laws.
The apporval is more appropriately called an attestation of the fact that the
appointee is qualified for the position to which he has been named. Such
attesstation is required merely as a check to assure compliance with Civil
Service Laws.
The power of the SCS to "approve and "disapporove" appointment of the Old
CivilService Decree only pertains to the functioin of the CSC to check
whether or not the appointee possesses the appropriate civil service eligibility
or the required qualifications.
If the appointee has the qualifications, his appointment is approved; if not, it
is disapproved. No other criterion is permitted by law to be employed by the
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Commission when it acts on or as the Decree says " approves" or
"disapproves" an appointment made by the proper authorities. In this respect
the provision is rather misleading.
"Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications required
by law. If he does, then the appointment cannot be faulted on the ground that
there are others wisdom which only the appointing authority can decide. "
EXCEPTION : When the Constitution or the law subjects the appointment to
the approval of another office or body. In such cases, the appointment is
completed only after condirmation or approval from the approving enity.
Significantly, the Commission on Civil Service acknowledged that both
the petitioner and the private respondent were qualified for the position
in controversy. 12 12 That recognition alone rendered it functus officio
in the case and prevented it from acting further thereon except to
affirm the validity of the petitioner's appointment. To be sure, it had no
authority to revoke the said appointment simply because it believed that
the private respondent was better qualified for that would have
constituted an encroachment on the discretion vested solely in the city
mayor.
In preferring the private respondent to the petitioner, the Commission
was probably applying its own Rule V, Section 9, of Civil Service
Rules on Personnel Actions and Policies, which provides that
"whenever there are two or more employees who are next-in-rank,
preference shall be given to the employee who is most competent
and qualified and who has the appropriate civil service eligibility."
This rule is inapplicable, however, because neither of the claimants
is next in rank. Moreover, the next-in rank rule is not absolute as
the Civil Service Decree allows vacancies to be filled by transfer
of present employees, reinstatement, reemployment, or appointment
of outsiders who have the appropriate eligibility.
B. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
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 MARCH 22
-> Under the Constitution:
*Disabilities of the President, Vice President, Members of Cabinet and their
Deputies and Assistants: Sec 13, Art 7 of the Constitution -> Section 13. The
President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise,
or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest
in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not, during his tenure, be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled corporations
and their subsidiaries.
*Disabilities of Members of Congress: Sec 13, Art 6 of the Constitution ->
Section 13. No Senator or Member of the House of Representatives may
hold any other office or employment in the Government, or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he was elected.
*Disabilities of members of Constitutional Commissions: Section 2, Art 9-A of
the Constitution -> Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither shall he
engage in the practice of any profession or in the active management or
control of any business which, in any way, may be affected by the functions
of his office, nor shall he be financially interested, directly or indirectly, in any
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contract with, or in any franchise or privilege granted by the Government, any
of its subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.


1. PROHIBITION AGAINST ENGAGING IN POLITICAL PARTISAN
ACTIVITY -> Under the 1935 and the 1973 Constitutions, the term used is
“any partisan political activity” which is practically synonymous with “any
electioneering or partisan political campaign” as used in Section 2(4) of Art 9-
B. Both refer to acts designed to have a candidate elected or not, or to
promote the candidacy of a person or persons to a public office. They include
such activities as participation in political campaigns, conventions, caucuses,
parades or rallies, making speeches or commentaries for or against the
election of any party or candidate, publishing or distributing campaign
literature or materials, and soliciting votes or contributions, either directly or
indirectly.
Civil Service, as used in Section 2(4) refers only to career service. Elective
officials and members of the Cabinet who are holding political offices are not
embraced in the prohibition.
Art. IX-B, Section 2(4) -> No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or partisan political
campaign.
Art. XVI, Section 5(3) -> (3) Professionalism in the armed forces and
adequate remuneration and benefits of its members shall be a prime concern
of the State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage, directly or indirectly, in any partisan
political activity, except to vote.
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 MARCH 22 ADMINISTRATIVE LAW | BESSY NOTES

CASE #4: EN BANC

ISSUE:
Whether Sec. 29 of Republic Act. 2260 repealed the Sec. 54 of the
[G.R. No. L-20808. July 31, 1965.]
Revised Election Code.
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellant, vs. BRAULIO DE VENECIA, accused-appellee.
HELD: NO.
FACTS:
It is at once apparent that sec. 29 is administrative in nature,
whereas sec. 54 is a penal statute. The first contains prohibitions of
Braulio de Venecia was prosecuted for he did willfully, induce,
administrative character, even as it grants or reserves some
Influence, sway and make the electors vote in favor of
privileges to civil public servants.
candidates for public office in the November 10, 1959 election,
namely, Felipe Oda, NP candidate for Municipal mayor of Binalonan .
Of course, logically, restrictions contained in sec. 29 that are not contained in
. . by, then and there, distributing and or causing to be
sec. 54 could not be criminally punished — e. g. unclassified service
distributed election handbills and made integral part hereof,
employees are not punishable under sec. 54. But a realistic view would hold
which leaflets were distributed and/or caused to be distributed
that activities permitted in sec. 29 — though it is a mere administrative
by the accused to win votes for NP candidates Felipe Oda.
measure — should not be criminally death with under sec. 54.
But a realistic view would hold that activities permitted in sec. 29 — though it
Upon a motion to quash, the court dismissed the case.
is a mere administrative measure — should not be criminally death with
under sec. 54.
PETITIONER’S CONTENTION: Petitioner contends that sec. 54 of
The results is that although sec. 54 prohibits a classified civil service
the Revised Election Code (upon which the prosecution rested) had
employee from aiding any candidate, sec. 29 allows such classified
been repealed by sec. 29 of Republic Act 2260.
employee to express his views on current political problems or issues,
or to mention the name of his candidate for public office, even if such
The two legal provisions are herewith reproduced:
expression of views or mention of names may result in aiding one
"SEC. 54. Active intervention of public officers and
particular candidate. IN OTHER WORDS, THE LAST SENTENCE OF
employees. — No justice, judge, fiscal, treasurer, or
SEC. 29 IS AN EXCEPTION TO SEC. 54; AT MOST, AN AMENDMENT TO
assessor of any province, no officer or employee of the
SEC. 54.
Army, no member of the national, provincial, city, municipal
On the other hand, an employee (classified civil service) who
or rural police force, and no classified civil service officer
contributes money for election purposes to a candidate, violates sec.
or employee shall aid any candidates, or exert
54 (and is punishable with imprisonment) because he "aided a
influence in any manner in any election or take part
candidate" and may not invoke the privilege reserved to him by sec.
herein, except to vote, if entitled thereto, or to preserve
29.
public peace, if he is a peace officer." (CA 357-48)
"SEC. 29. Political Activity. — Officers and employees in
Distributing handbills like the above is undoubtedly "aiding" candidate Felipe
the Civil service, whether in the competitive or classified,
Oda. It is not merely mentioning the candidate whom De Venecia supported,
or non-competitive or unclassified service, shall not
nor mere expression of his opinion on current political problems. It
engage directly or indirectly in partisan political
is solicitation of the elector's vote in favor of Oda. It is indorsement of the
activities or take part in any election except to vote.
request for his support by gubernatorial candidate Conrado F. Estrella.
Nothing herein provided shall be understood to prevent
To repeat, by the act charged in the information, i e. distributing and causing
any officer or employee from expressing his views on
the distribution of the leaflets, defendant "aided" candidate Oda and/or
current political problems or issues, or from mentioning the
exerted influence in the election and/or took part therein, contrary to the
names of candidates for public office whom he supports."
prohibitions contained in sec. 54.

8
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 MARCH 22 ADMINISTRATIVE LAW | BESSY NOTES

It is our opinion that in dismissing the information the trial court erred.
Consequently, the appealed order is hereby reversed and the record
remanded to the Pangasinan court for further proceedings.
C. LIABILITIES OF PUBLIC OFFICERS

1. LIABILITY FOR UNEXPLAINED WEALTH
a. Republic Act No,. 1379, Section 2 (Forfeiture of Unexplained Wealth) ->
Section 2. Filing of petition. Whenever any public officer or employee has
acquired during his incumbency an amount of property which is manifestly
out of proportion to his salary as such public officer or employee and to his
other lawful income and the income from legitimately acquired property, said
property shall be presumed prima facie to have been unlawfully acquired.
The Solicitor General, upon complaint by any taxpayer to the city or
provincial fiscal who shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor General that
there is reasonable ground to believe that there has been committed a
violation of this Act and the respondent is probably guilty thereof, shall file, in
the name and on behalf of the Republic of the Philippines, in the Court of
First Instance of the city or province where said public officer or employee
resides or holds office, a petition for a writ commanding said officer or
employee to show cause why the property aforesaid, or any part thereof,
should not be declared property of the State: Provided, That no such petition
shall be filed within one year before any general election or within three
months before any special election.
controlled corporation shall not be a bar to the filing of the petition: Provided,
however, That the right to file such petition shall prescribe after four years
from the date of the resignation, dismissal or separation or expiration of the
term of the office or employee concerned, except as to those who have
ceased to hold office within ten years prior to the approval of this Act, in
which case the proceedings shall prescribe after four years from the approval
hereof.
-> RA no. 1379 creates a presumption juris tantrum against the public officer
or employee who acquires property grossly disproportionate to his income,
that is, that the property was unlawfully acquired. This presumption, once
established, may be rebutted by the public officer or employee by showing to
the satisfaction of the court that the acquisition of the property was lawful (eg
donations and loans). Failing in this, the court shall declare the questioned
property forfeited in favour of the state. In determining whether or not there is
unexplained wealth under RA no. 1379, the courts are not bound by the
statements of assets and liabilities, filed by the public officer or employee (eg
the statement does not accurately reflect the donations and loans allegedly
granted). On the contrary, the statute affords the respondent every
opportunity to explain, to the satisfaction of the court, how he had acquired
the property in question. The accuracy of entries in statements of assets and
liabilities becomes material in criminal or administrative proceedings of
violation of Section 7 of RA no. 3019 which requires every public officer to file
a “true, detailed and sworn statement of assets and liabilities, including a
statement of the amounts and sources of his income the amounts of his
personal and family expenses and the amount of income tax paid for the next
preceding calendar year. Forfeiture proceedings are actions in rem and
therefore, civil in nature. A full-blown trial is not required under the Act. Even
if the proceedings do not reach trial, the court is not precluded from
determining the nature of the acquisition of the property in question even in a
summary proceeding.

The resignation, dismissal or separation of the officer or employee from his

b. Republic Act No. 3019, Section 8 (Anti-Graft and Corrupt practices Act) -
office or employment in the Government or in the Government-owned or
> Section 8. Dismissal due to unexplained wealth. If in accordance with the

9
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 MARCH 22
provisions of Republic Act Numbered One thousand three hundred seventy-
nine, a public official has been found to have acquired during his
incumbency, whether in his name or in the name of other persons, an
amount of property and/or money manifestly out of proportion to his salary
and to his other lawful income, that fact shall be a ground for dismissal or
removal. Properties in the name of the spouse and unmarried children of
such public official may be taken into consideration, when their acquisition
through legitimate means cannot be satisfactorily shown. Bank deposits shall
be taken into consideration in the enforcement of this section,
notwithstanding any provision of law to the contrary.
D. TERMINATION OF OFFICIAL RELATIONS
1. EXPIRATION OF TERM -> An appointment for a definite and renewable
period. Upon the expiration of term, unless he is authorised by law to hold
over, his rights, duties, and authority as a public officer must ipso facto
cease.
(a) TERM vs TENURE -> The term of office must be distinguished from
tenure of the incumbent. The “term” means the time during which the officer
may claim to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another. It is a fixed and definite
period of time to hold office, perform its functions, and enjoy its privileges and
emoluments until the expiration of said period. It is not affected by holding-
over of the incumbent after expiration of the term for which he was appointed
or elected.
The tenure represents the period during which the incumbent actually holds
the office. It may be shorter than the term for reasons within or beyond the
power of the incumbent.
 technical in nature are exceptions to the general rule governing Civil Service
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CASE#5: RAUL R. INGLES, ROALDO G. ADVIENTO, ISABEL C.
CORPUS, CONSUELO M. VILLANUEVA and ESPERANZA M.
GUTIERREZ, plaintiffs-appellants, vs. AMELITO R. MUTUC and
BALDOMERO DAVOCOL, defendants-appellees. [G.R. No. L-20390 ].
LOUIE ANTHONY H. BRUAN
FACTS: Ingles is a Senior Executive Assistat II working in the government for
8 years. Plaintiffs received a communication of the then Executive Secretary
Mutuc, advicing the termination of services of plaintiffs. Plaintiffs appealed
from this action to the President but was subsequently denied.
Thereafter, plaintiffs commenced the action in the CFI of Manila, alleging that
they had been removed from office without cause and without due process.
RTC DECISION: The trial court ruled in favor of the defendants, stating that
plaintiffs are occupying positions which are primarily confidential and subject
to removal at the pleasure of the appointing power.
ISSUE: Whether plaintiffs' positions are primarily confidential and subjected
to removal at the pleasure of appointing power?
HELD: NO, plaintiffs' positions are primarily confidential and subjected
to removal at the pleasure of appointing power. The plaintiffs works are
mainly clerical in nature. The fact that they, at times, handle "confidential
matters," does not suffice to characterize their " positions" as primarily
confidential. Indeed, it is admitted that plaintiffs, likewise, handle "other
routine matters," and it has not even been shown that their work is, at least,
principally confidential. Considering that plaintiffs herein are admittedly civil
service eligibles, with several years of service in the Government, and that
positions which are policy determining, primarily confidential and highly
officers and employees, it was up to defendants-appellees to establish that
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 MARCH 22
plaintiffs belong to one of these excepted classes. This, defendants-
appellees have failed, to accomplish.
DISPOSITION: WHEREFORE, the decision appealed from should be, as it is
hereby reversed, and another one shall be entered declaring that plaintiffs'
removal from office was illegal and contrary to law, and that they are,
accordingly, entitled to reinstatement to their respective offices and to the
payment of their corresponding emoluments.
IMPORTANT TO THE CASE: It should be noted, however, that when such
pleasure turns into displeasure, the incumbent is not "removed" or
"dismissed" from office — his "term" merely "expires," in much the same way
as an officer, whose right thereto ceases upon expiration of the fixed term for
which he had been appointed or elected, is not and can not be deemed
"removed" or "dismissed" therefrom, upon the expiration of said term. The
main difference between the former — the primarily confidential officer —
and the latter is that the latter's term is fixed or definite, whereas that of the
former is not pre-fixed, but indefinite, at the time of his appointment or
election, and becomes fixed and determined when the appointing power
expresses its decision to put an end to the services of the incumbent. When
this event takes place, the latter is not "removed" or "dismissed" from office
— his term has merely "expired".
(b) HOLD-OVER PRINCIPLE -> The public officer’s term has expired or his
service terminated but he should continue holding his office until his
successor is appointed or chosen and had qualified.
b1. Where holding over provided by law -> if there is a provision to be found,
the office does not become vacant upon the expiration of the term of the
public officer since there is no successor elected and qualified to assume it
yet. The public officer shall hold it for the meantime.
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b2. Where holding over not provided by law -> when there is no provision
expressly or impliedly prohibiting the holdover, then the public officer may still
hold onto his position until his successor is elected.
b3. Where Constitution limits term -> If the Constitution itself limits the term
of a public officer, then this principle cannot be followed.
b4. Application of holdover principle -> This principle only applies for a fixed
term annexed to an office, applicable to elective as well as appointive officers
(but it can also be restricted to certain officers). But a provision appearing in
the Constitution, in terms applicable to all public officers, is not restricted to
constitutional officers. In determining whether a holdover provision applies to
a particular public officer, a reviewing court is guided by the principle that the
construction of a statute by those charged with its execution should be
followed unless there are compelling indications that it is clearly wrong. It is
not applicable where the term is of indefinite duration (eg good behaviour or
at the pleasure of the appointing power).
b5. Purpose of holdover provision -> Prevent a hiatus in the government
pending the time when a successor may be chosen and inducted into office,
for, in the absence of any provision to the contrary, public interest requires
that public offices should be filled at all times, without interruptions.
b6. Status of holdover officer -> If holding is authorised by law, then he is a
de jure officer; if not, he is a de facto officer.
2. RESIGNATION -> The formal renunciation or relinquishment of a public
office. It implies an expression by the incumbent in some form, expressed or
implied, of the intention to surrender, renounce, and relinquish his right to the
office and its acceptance by competent and lawful authority. Like removal for
cause, voluntary resignation results in the abdication of all present and future
rights accorded to an officer or employee and in the severance of all work-
related ties between the employer and employee.
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 MARCH 22
CASE #6: [G.R. Nos. 146710-15. March 2, 2001.]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his
capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION,
INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and
ERNESTO B. FRANCISCO, JR., respondents.
[G.R. No. 146738. March 2, 2001.]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPACAL-ARROYO,
respondent.
FACTS: During the May 1998 elections, petitioner Joseph Ejercito Estrada
was elected as President and respondent Gloria Macapagal-Arroyo was
elected as Vice-President. On October 4 2000, Estrada’s presidency was
questioned, when Ilocos Sur Governor Luis “Chavit” Singson went on air and
accused Estrada and his family of receiving millions of pesos from jutting
lords. Now, Singson’s accusation was followed by Senator Teofisto Guingina
Jr., the Senate Minority Leader then through his privileged speech, who
accused Estrada from receiving P330 million in jutting money from Governor
Singson. Guingona’s privilege speech was referred to the Blue Ribbon
Committee and the Committee on Justice and the House Committee on
Public Order and Security investigated Singson’s expose.
While these investigations were being conducted, calls for Estrada’s
immediate resignation and the resignation of some people in various
governmental positions were already happening. The impeachment trial
started on November 20, 2001, with 21 senators who took their oath as
judges and with Chief Justice Hilario Davide Jr., presiding.
This went on until on January 19, Estrada agreed to hold a snap election for
the position of President. The next day, before Estrada and his family left, he
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issued a statement that he acknowledged VP Arroyo’s oath taking as
President and he is leaving Malacañang for the sake of peace and in order to
being the healing process of the nation. Chief Justice Davide administered
oath to Arroyo as President of the Philippines on that day.
After Estrada’s fall from the pedestal of power, his legal problems appeared
in clusters. Several cases previously led against him in the Office of the
Ombudsman were set in motion.
PETITIONER’S ARGUMENT: Estrada denies he resigned as President or
that he suffers from a permanent disability. Hence, he submits that the office
of the President was not vacant when respondent Arroyo took her oath as
President.
ISSUE: Whether Estrada resigned as President or should be considered
resigned as of January 20, 2001 when Arroyo took her oath as the 14th
President of the Republic?
HELD: YES, Estrada resigned as President or should be considered
resigned as of January 20, 2001 when Arroyo took her oath as the 14th
President of the Republic. It was confirmed by his leaving Malacañang. In
the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was leaving the Palace,
the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due
to any kind of inability and that he was going to re-assume the presidency as
soon as the disability disappears; (3) he expressed his gratitude to the
people for the opportunity to serve them. Without doubt, he was referring to
the past opportunity given him to serve the people as President; (4) he
assured that he will not shirk from any future challenge that may come ahead
in the same service of our country. Petitioner's reference is to a future
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 MARCH 22
challenge after occupying the of ce of the president which he has given up,
and (5) he called on this supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be attained if he did
not give up the presidency. The press release was petitioner's valedictory, his
final act of farewell. His presidency is now in the past tense.
We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose
factual ingredient is determinable from the records of the case and by resort
to judicial notice.
The issue brings under the microscope the meaning of section 8, Article VII
of the Constitution which provides: "SECTION 8. In case of death, permanent
disability, removal from office or resignation of the President, the Vice
President shall become the President to serve the unexpired term. In case of
death, permanent disability, removal from of ce, or resignation of both the
President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected and
qualified.
xxx xxx xxx."
Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the
intent must be coupled by acts of relinquishment. The validity of a resignation
is not governed by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
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In the cases at bar, the facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacañang Palace in the afternoon
of January 20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to be determined from
his acts and omissions before, during and after January 20, 2001 or by the
totality of prior, contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue.
It is, however, urged that the petitioner did not resign but only took a
temporary leave of absence due to his inability to govern. In support of this
thesis, the letter dated January 20, 2001 of the petitioner sent to Senate
President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz: “Sir. By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am unable to
exercise the powers and duties of my of ce. By operation of law and the
Constitution, the Vice President shall be the Acting President.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery. 91 The pleadings led
by the petitioner in the cases at bar did not discuss, nay even intimate, the
circumstances that led to its preparation. Neither did the counsel of the
petitioner reveal to the Court these circumstances during the oral argument.
It strikes the Court as strange that the letter, despite its legal value, was
never referred to by the petitioner during the week-long crisis. To be sure,
there was not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his press
release that he was temporarily unable to govern and that he was leaving the
reins of government to respondent Arroyo for the time being. Under any
circumstance, however, the mysterious letter cannot negate the resignation
of the petitioner. If it was prepared before the press release of the petitioner
clearly showing his resignation from the presidency, then the resignation
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must prevail as a later act. If, however, it was prepared after the press
release, still, it commands scant legal signi cance. Petitioner's resignation
from the presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his repudiation by
the people. There is another reason why this Court cannot give any legal
signi cance to petitioner's letter and this shall be discussed in issue number
III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also
argues that he could not resign as a matter of law. He relies on section 12 of
RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz:
"SECTION 12. No public of cer shall be allowed to resign retire pending an
investigation, criminal or administrative, pending a prosecution against him,
for any offense under this Act under the provisions of the Revised Penal
Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any
comfort to the petitioner. RA No. 3019 originated from Senate Bill No. 293.
The original draft of the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill,
"reserved to propose during the period of amendments the inclusion of a
provision to the effect that no public of cial who is under prosecution for any
act of graft or corruption, or is under administrative investigation, shall be
allowed to voluntarily resign or retire." 92 During the period of amendments,
the following provision was inserted as section 15:
"SECTION 15. Termination of office — No public official shall be allowed to
resign or retire pending an investigation, criminal or administrative, or
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pending a prosecution against him, for any offense under the Act or under
the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public of cial from of ce shall not be a bar to
his prosecution under this Act for an offense committed during his
incumbency."
The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the
President's immunity should extend even after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293,
was thereafter passed. Section 15 above became section 13 under the new
bill, but the deliberations on this particular provision mainly focused on the
immunity of the President which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the
resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law
ought to be obvious. It is to prevent the act of resignation or retirement from
being used by a public official as a protective shield to stop the investigation
of a pending criminal or administrative case against him and to prevent his
prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render
service for that would be a violation of his constitutional right. 94 A public
official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing
administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative
proceedings against him. He cannot use his resignation or retirement to
avoid prosecution.
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 MARCH 22
There is another reason why petitioner's contention should be rejected. In the
cases at bar, the records show that when petitioner resigned on January 20,
2001, the cases led against him before the Ombudsman were OMB Case
Nos. 0-00-1629, 0-00-1755, 0-00- 1756, 0-00-1757 and 0-00-1758. While
these cases have been led, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that
as the sitting President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal obstacle like the
immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative
investigation that, under section 12 of RA 3019, bars him from resigning. We
hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-
judges voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors led their Manifestation
of Withdrawal of Appearance, and the proceedings were postponed inde
nitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
3. MISCONDUCT IN OFFICE/RECALL -> One that affects the officer’s
performance of his duties as an officer and not only as affects his character
as a private individual. It is necessary to separate the character of the man
from the character of the officer.
Misconduct -> It is a transgression of some established and definite rule of
action more particularly, unlawful behaviour or gross negligence by the public
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officer. It is improper and wrong conduct and implies wrongful intent and not
mere error of judgment; corrupt, or inspired by an intention to violate the law
or a persistent disregard of well-known legal rules.
CASE #7: Case No. 7: MAYOR TEODULO M. PALMA, SR., petitioner, vs.
HON. CARLOS O. FORTICH, as Governor of Bukidnon, and THE
SANGGUNIANG PANLALAWIGAN OF BUKIDNON, respondents. [G.R.
No. L-59679 | 1987 | LIWAG]
FACTS:
The Assistant Provincial Fiscal Estrada of Bukidnon, at the instance of the
offended parties Nelia Arandel (Clerk-typist) and Susan Palamine
(Clerical Aide), both of the Office of the Mayor of the Municipality of Don
Carlos, Province of Bukidnon, filed with the CFI Bukidnon CRIMINAL
Cases [3] against petitioner Mayor Palma.
By virtue of the three (3) separate cases, the offended parties in a sworn joint
letter complaint requested respondent Provincial Governor Fortich for an
immediate ADMINISTRATIVE investigation for the purpose of
suspending Mayor Palma from office pending final determination of the
criminal cases - re Information for Acts of Lasciviousness.
Treating the same as a formal letter complaint, respondent Governor Fortich
formally informed Mayor Palma of the administrative charge against him for
Misconduct in Office.
The record of the administrative case against the Mayor was forwarded to
the Sangguniang Panlalawigan of the province of Bukidnon. Said body,
after receipt thereof, set the case for hearing. After the hearing where
complainants were required to testify and then cross-examined by Mayor
Palma’s counsel, the complainants petitioned for the preventive
suspension of the Mayor which was granted by respondent
Sangguniang Panlalawigan in its Resolution.
The Mayor accepted his preventive suspension from office. Nonetheless,
Mayor Palma filed a petition for certiorari and prohibition to prohibit the
respondents from continuing with the hearing and investigation of the
ADMINISTRATIVE case filed by respondent Governor against Mayor
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 MARCH 22
Palma and to nullify the resolution passed by respondent Sangguniang
Panlalawigan.
Note:
no controversy as to the filing of the criminal cases against the Mayor Palma.
principal issue centers on the filing of the administrative case and
consequent preventive suspension of Mayor Palma based solely on the filing
of the criminal cases.
__
Mayor Palma’s contention: "Acts of Lasciviousness" do not fall within the
category of "malfeasance and misfeasance" or "misconduct in the
office" contemplated in Section 5 of R.A. No. 5185, and therefore cannot be
the basis of the filing of a separate ADMINISTRATIVE CASE against an
elective official and the preventive suspension.
Governor Fortich + Sangguniang Panlalawigan’s contention: the lascivious
acts of the Mayor Palma constitute misconduct under Article XIII, Section
1 of the 1973 Constitution, re: "Accountability of Public Officers."
__
Mayor Palma filed a Manifestation and Prayer informing the SC that the three
criminal cases filed against him were all dismissed by the RTC for
insufficiency of evidence, on the basis of the findings that the circumstances
logically point to the existence of consent on the part of the offended parties.
Thus, on the premise that the administrative case in question as well as the
resulting preventive suspension is now bereft of any legal basis, petitioner
now prays that judgment be rendered in accordance with his prayer in the
petition.
But, before the instant petition could be decided by the SC, the Provisional
Constitution/Freedom Constitution was promulgated in Proclamation No. 3,
dated March 25, 1986, by President C Aquino. —
"All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation
or executive order or upon the designation or appointment and qualification
of their successors, if such is made within a period of one year from February
25, 1986."
=this means an incumbent Mayor, elected under the 1973 Constitution
may be replaced by an "Officer-in-Charge, a specie of successor
considered as within the ambit of the provision."
——> Mayor Palma who was obviously elected under the 1973 Constitution,
has been replaced by OIC Gardones as Mayor.
ALMALBIS. BRUAN.CABANAG. ESCOBAL. LIWAG. PLATON.QUINTANA. RAMIL. RIPARIP. ROLLAN. SOLANA.SOLIS.
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ADMINISTRATIVE LAW | BESSY NOTES
ISSUE: [Focus — Misconduct in office]
WHETHER THE FILING AND PENDENCY OF THE THREE (3) SEPARATE
INFORMATION FOR "ACTS OF LASCIVIOUSNESS" AGAINST AN
ELECTIVE LOCAL OFFICIAL WOULD CONSTITUTE "MISCONDUCT IN
OFFICE" WITHIN THE MEANING OF SECTION 5 OF REPUBLIC ACT NO.
5185 WHICH MAY WARRANT THE FILING OF AN ADMINISTRATIVE
COMPLAINT AGAINST HIM AND/OR HIS SUSPENSION FROM OFFICE?
RULING: No.
Grounds for suspension of municipal officers - As a general rule, dismissal of
an administrative case does not necessarily follow the dismissal of a criminal
case, the former (dismissal of an administrative case) requiring as it does,
only preponderance of evidence while the latter (dismissal of a criminal case)
requires proof beyond reasonable doubt.
In administrative actions against municipal officers, the Supreme Court in
Festijo v. Crisologo, classified the grounds for suspension under two
categories, namely: (1) those related to the discharge of the functions of the
officer concerned (neglect of duty, oppression, corruption or other forms of
maladministration of office) and (2) those not so connected with said
functions. Under the second category, when the crime involving moral
turpitude is not linked with the performance of official duties, conviction by
final judgment is required as a condition precedent to administrative action.
Misconduct defined - The ground for filing of the administrative action in the
case at bar and the suspension of petitioner Mayor is misconduct allegedly
committed in the form of lascivious acts of the latter. Misconduct has been
defined as "such as affects his performance of his duties as an officer and
not only as affects his character as a private individual. In such cases, it has
been said at all times, it is necessary to separate the character of the man
from the character of the officer."
CONVICTION BY FINAL JUDGMENT, A REQUISITE BEFORE CHARGES
INVOLVING MORAL TURPITUDE MAY BE FILED. — As to whether or not,
such misconduct of petitioner affects his performance of his duties as an
officer and not only his character as a private individual, has been laid to rest
by the ruling of the Supreme Court in an analogous case where it was held
that while "it is true that the charges of rape and concubinage may
involve moral turpitude of which a municipal official may be proceeded
against . . . but before the provincial governor and board may act and
proceed against the municipal official, a conviction by final judgment
16
 MARCH 22
must precede the filing by the provincial governor of the charges and
trial by the provincial board."
CASE MUST BE DISMISSED UPON FAILURE TO SHOW THAT ACTS ARE
LINKED WITH PERFORMANCE OF OFFICIAL DUTIES — In the instant
case, not only is a final judgment lacking, but the criminal cases filed
against the petitioner were all dismissed by the trial court, for
insufficiency of evidence, on the basis of its findings that the attendant
circumstances logically point to the existence of consent on the part of
the offended parties (Order, Crim. Cases Nos. 2795, 2796 and 2797, RTC).
Under the circumstances, there being no showing that the acts of
petitioner Mayor are linked with the performance of official duties such
as "neglect of duty, oppression, corruption, or other form of maladministration
of office", there appears to be no question that the pending administrative
case against him should be dismissed for lack of basis and the
restraining order issued by the court should be made permanent.
=> Nonetheless, the replacement of petitioner Mayor by the Officer-in-
Charge Gardones has rendered the issues of removal and suspension from
office, moot and academic.
PREMISES CONSIDERED, judgment is hereby rendered DISMISSING: (a)
the administrative case filed against the petitioner for lack of basis and (b)
subject petition for having become moot and academic.
CASE#8: JOVITO O. CLAUDIO vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF BUDGET AND MANAGEMENT,
COMMISSION ON AUDIT and RICHARD ADVINCULA
FACTS:
• Jovito O. Claudio was the duly elected mayor of Pasay City in the
May 11, 1998 elections.
• He assumed office on July 1, 1998.
• During the 2nd week of May 1999, the chairs of several barangays in
Pasay gathered to discuss the possibility of filing a petition for recall
against Mayor Claudio for loss of confidence.
ALMALBIS. BRUAN.CABANAG. ESCOBAL. LIWAG. PLATON.QUINTANA. RAMIL. RIPARIP. ROLLAN. SOLANA.SOLIS.
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ADMINISTRATIVE LAW | BESSY NOTES
• On May 19, 1999, several barangay chairs formed an ad hoc
committee for the purpose of convening the Preparatory Recall
Assembly (PRA) wherein Richard Advincula was designated chair.
• On May 29, 1999, 1,073 members of the PRA adopted Resolution
No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL
OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS
OF CONFIDENCE.
• The petition for recall was formally submitted to the Office of the
Election Officer on July 2, 1999, accompanied by an affidavit of
service of the petition on the Office of the City Mayor.
• Pursuant to the rules of the COMELEC, copies of the petition were
posted on the bulletin boards of different offices and places in Pasay.
Subsequently, a verification of the authenticity of the signatures of
the resolution was conducted.
• The petition was opposed by Jovito Claudio, Rev. Ronald Langub,
and Roberto Angeles, alleging procedural and substantive defects in
the petition.
• In its resolution on October 1999, COMELEC granted the petition for
recall and dismissed the oppositions against it.
• The bone of the contention in this case is section 74 of the Local
Government Code which provides: prLL
Limitations on Recall. — (a) Any elective local official may be the
subject of a recall election only once during his term of office for loss
of confidence. (b) No recall shall take place within one (1) year from
the date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
• Mayor Claudio contends that the term "recall" refers to a process, in
contrast to the term "recall election" which refers to an election. He
claims that when the PRA convened, the process of recall began and
since May 29, 1999 was less than a year after he had assumed
office, the PRA was illegally convened and the filing of the recall
petition was null and void.
• COMELEC maintains that the process of recall starts with the filing of
the petition for recall and ends with the conduct of the recall election,
and that since the petition for recall was filed on July 2, 1999, exactly
one year and a day after Claudio's assumption of office, the recall
was validly initiated outside the one-year prohibited period.
ISSUES:
17
 MARCH 22
1. Whether the Word "Recall" in Paragraph (b) of sec. 74 of the Local
Government Code Includes the Convening of the Preparatory Recall
Assembly and the Filing by it of a Recall Resolution
2. Whether the Phrase "Regular Local Election" in the Same Paragraph
(b) of sec. 74 of the Local Government Code includes the Election
Period for that Regular Election or Simply the Date of Such Election
3. Whether the Recall RESOLUTION was Signed by a Majority of the
PRA and Duly Verified
HELD:
1. NO.
As used in the sec. 74, "recall" refers to the election itself by means of which
voters decide whether they should retain their local official or elect his
replacement, excluding the convening of the PRA and the filing of a petition
for recall with the COMELEC. These are merely preliminary steps for the
purpose of initiating a recall.
The limitations in sec. 74 apply only to the exercise of the power of recall
which is vested in the registered voters. It is this — and not merely, the
preliminary steps required to be taken to initiate a recall — which paragraph
(b) of sec. 74 seeks to limit by providing that no recall shall take place within
one year from the date of assumption of office of an elective local official.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the official
concerned, and (2) that no recall shall take place within one year immediately
preceding a regular local election. The purpose of the first limitation is to
provide a reasonable basis for judging the performance of an elective local
official. Hence, in this case, as long as the election is held outside the one-
year period, the preliminary proceedings to initiate a recall can be held even
before the end of the first year in office of a local official.
As the recall election in Pasay City is set on April 15, 2000, more than one
year after petitioner assumed office as mayor of that city, there is no bar to its
holding on that date.
2. NO.
The law does not include the campaign period in counting the one year. Had
Congress intended this limitation to refer to the campaign period, which
period is defined in the Omnibus Election Code, it could have expressly said
so.
Moreover, petitioner's interpretation would severely limit the period during
which a recall election may be held. Actually, because no recall election may
be held until one year after the assumption of office of an elective local
ALMALBIS. BRUAN.CABANAG. ESCOBAL. LIWAG. PLATON.QUINTANA. RAMIL. RIPARIP. ROLLAN. SOLANA.SOLIS.
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ADMINISTRATIVE LAW | BESSY NOTES
official, presumably on June 30 following his election, the free period is only
the period from July 1 of the following year to about the middle of May of the
succeeding year. This is a period of only nine months and 15 days, more or
less. To construe the second limitation in paragraph (b) as including the
campaign period would reduce this period to eight months. Such an
interpretation must be rejected, because it would devitalize the right of recall
which is designed to make local government units" more responsive and
accountable."
3. YES.
This claim is being raised for the first time in this case. It was not raised
before the COMELEC, in which the claim made by petitioner was that some
of the names in the petition were double entries, that some members had
withdrawn their support for the petition, and that Wenceslao Trinidad's
pending election protest was a prejudicial question which must first be
resolved before the petition for recall could be given due course. The order of
the COMELEC embodying the stipulations of the parties and defining the
issues to be resolved does not include the issue now being raised by
petitioner. Although the word "Attendance" appears at the top of the page, it
is apparent
that it was written by mistake because it was crossed out by two parallel lines
drawn across it. Apparently, it was mistaken for the attendance sheet which
is a separate document. It is absurd to believe that the 74 members of the
PRA who signed the recall resolution signified their attendance at the
meeting twice. It is more probable to believe that they signed pages 94-104
to signify their concurrence in the recall resolution of which the pages in
question are part.
18