EVA MARIE G. GUTIERREZ Law 156 Part I.

The Law on Public Officers and Civil Service

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I. INTRODUCTION Concepts and Principles A. Public Office and Public Officers 1) Definitions A public office is the right, authority, and duty created and conferred by law, by which for a giver period of time, 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 (MECHEM; Aparri v. CA). A public officer is such an officer as is required by law to be elected or appointed, who has a designation or title given to him by law, and who exercises functions concerning the public, assigned to him by law (DE LEON, citing AmJur).
(14) "Officer" as distinguished from "clerk" or "employee", refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. (15) "Employee", when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities. (ADM. CODE OF 1987, Introductory Provisions). 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 (RPC).

A public official is an officer of the Government itself, as distinguished from the officers and employees of instrumentalities of the government (Gonzales v Hechanova). This is ordinarily used synonymously with public officer.

2) Purpose and Nature

Public Office, as a Public Trust o o

Holders regarded as public servants Holders subject to highest accountability and service -

standards

of

ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS, 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 (1987 CONSTITUTION).

Public Office, not Property o o o o

Holder subject to removal or suspension according to law. Holder without vested right in any public office. Holders right in nature of privilege entitled to protection. Holders right personal to him.

Public Office, not a Contract o

Creates no contractual relation between holder and the public.

EVA MARIE G. GUTIERREZ Law 156 Part I. The Law on Public Officers and Civil Service

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o o

Exists by virtue of some law. Generally entitles holder to a compensation.

not to those who were already in the service of the LRC as deputy register of deeds at the time of the issuance and implementation of the EO. Ruling: NO. The question of whether or not a law abolishes an office is one of legislative intent about which there can be no controversy whatsoever if there is an explicit declaration in the law itself. Sec. 8 of EO 649 mandates that from the moment the implementing order is issued, all LRC positions are deemed inexistent. The abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. Two questions therefore arise: (1) was the abolition carried out by a legitimate body?; and (2) was it done in good faith? In the case at bar, the authority of the President to carry out a valid reorganization in any branch or agency of the Government is constitutionality granted. As for good faith, EO 649 was enacted to improve the services and better systematize the operation of the LRC. A reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. On the "vested right theory"; there is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary. None of the exceptions to this rule are obtaining in this case. The position which private respondent Garcia would like to occupy anew was abolished pursuant to EO 649, a valid

Security of Tenure in Public Office as property for purposes of due process

CASE: National Land Titles and Deeds Registration Administration v. Civil Service Commission (1993); Campos Jr. Facts: Violeta Garcia is an LLB graduate and civil service eligible. She was appointed Deputy Register of Deeds under permanent status. However, she was later assigned as Register of Deeds II pursuant to EO 649 which restructured the Land Registration Commission to NLTDRA on temporary appointment for not being member of the bar a new requirement under EO 649. Upon expiration of her temporary appointment she was terminated from service. Ruling of LC: CSC directed Garcia to be restored to her position as Deputy Register of Deeds II or its equivalent in the NALTDRA. It held that under the vested right theory the new requirement should not apply to Garcia but only to new applicants after EO 649 took effect. Arguments: NALTDRA contends that EO 649 abolished all existing positions in the LRC and transferred their functions to the appropriate new offices created by said EO, which newly created offices required the issuance of new appointments to qualified office holders. EO 649 applies to Garcia, and not being a member of the Bar, she cannot be reinstated to her former position as Deputy Register of Deeds II. Issues: WON the new requirement (membership in the Bar) under the law (EO 649) applies only to new applicants and

EVA MARIE G. GUTIERREZ Law 156 Part I. The Law on Public Officers and Civil Service

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reorganization measure. There is no vested property right to be re employed in a reorganized office. Not being a member of the Bar, the minimum requirement to qualify under the reorganization law for permanent appointment as Deputy Register of Deeds II, she cannot be reinstated to her former position without violating the express mandate of the law. Legal Basis Laws and cases cited: 1973 Consti; Dario v Mison
Distinctions

4) Creation of Public Office

o

3) Elements (DE LEON, citing State v Taylor) 1. It is created by the Constitution or by a law or by some body or agency to which power to create the office has been delegated; 2. It must be invested with an authority to exercise some portion of the sovereign power of the State to be exercised for the public interest; 3. Its powers and functions are defined by the Constitution, or by law, or through legislative authority; 4. The duties pertaining thereto are performed independently, without the control of a superior power other than law, unless they are those of an inferior or subordinate officer, created or authorized by the legislative and placed by it under the general control of a superior officer or body; and 5. It is continuing and permanent in nature and not occasional or intermittent.
o o

Generally. An office is created by some constitutional or statutory provision or by the 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. By the President. Power to inactivate or reorganize bureaus, agencies and offices under the executive department e.g. Presidents continuing power to reorganize the structure of the OP under the Admin Code of 1987. The power to create an office generally includes the power to modify and abolish it, and the power to create and abolish offices carries with it the power to fix the number of positions and the salaries of emoluments of the holders thereof and to provide the funds for the office created. The power is inherently legislative.

5) Kinds/Classification of public officers/public officers

o o o o o o

Existence of definite tenure, continuance of office holder, permanence of office NOT material

As to nature of functions civil, military As to creation constitutional, statutory As to the department of government to which it belongs legislative, executive, judicial As to branch of government served national, local As to whether exercise of discretion is required quasi-judicial, ministerial As to compensation lucrative office/office of profit/office coupled with interest, honorary office

EVA MARIE G. GUTIERREZ Law 156 Part I. The Law on Public Officers and Civil Service

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According to legality of title to the office de jure, de facto (DE LEON)

CASES Secretary of DOTC v Mabalot (1998); Buena Facts: DOTC Secretary Garcia issued Memo Order No. 96735 directing LTFRB to transfer the functions of LTFRB-CAR to DOTC-CAR pending the creation of a Regular Franchising Regulatory Office. Mabalot filed a petition for certiorari and prohibition with prayer for TRO against DOTC. Lower court issued a TRO enjoining the implementation of the Memo. Thereafter, Secretary Lagdameo issued Dept. Order No. 971025 establishing DOTC-CAR as regional office of LTFRB in CAR subject to the direct supervision and control of LTFRB Central Office, for purposes of economy and effective coordination. Ruling of LC: RTC declared both administrative issuances null and void. Arguments: Mabalot argues that a transfer of the powers and functions of the LTFRB Regional Office to a DOTC Regional Office or the establishment of the latter as an LTFRB Regional Office is unconstitutional for being an undue exercise of legislative power. Issues: WON Memo Order No. 96-735 and Dept. Order No. 97-1025 are valid administrative issuances. Ruling: YES. The President through his duly constituted political agent and alter ego, the DOTC Secretary in the present case - may legally and validly decree the reorganization of the

Department. A public office may be created through any of the following modes: (1) by the Constitution (fundamental law), (2) by law (statute duly enacted by Congress), or (3) by authority of law. Congress can delegate power to create positions and it has vested the President power to reorganize executive agencies and redistribute functions. In the instant case, the creation and the establishment of LTFRB-CAR Regional Office was made pursuant to the third mode by authority of law, which could be decreed by EO issued by the President or an order of an administrative agency pursuant to Sec. 17, Book V of the Adm. Code of 1987. The assailed orders were made pursuant to AO 26 directing various departments to establish regional offices in the CAR. Thus the act is valid because it is as if the establishment of LTFRB-CAR was done by the President. Moreover, the President has continuing authority to reorganize the National Government for a valid purpose which includes the DOTC to which it has direct control and supervision; in turn, the DOTC Secretary exercises administrative supervision and control over the LTFRB. Legal Basis Laws and cases cited: Adm. Code of 1987 Sec. 17 Book V and Sec. 20 Book II; Sec. 17, Art. VII, Consti; Larin v Executive Secrectary

Preclaro v Sandiganbayan (1995); Kapunan Facts: DOST employed Engr. Claro Preclaro under a written contract of services as Project Manager so supervise the construction of one of its buildings. Preclaro was accused and convicted of graft and corruption by the

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Sandiganbayan for soliciting a chunk of the contractors profit. Arguments: Preclaro appeals by insisting Sandiganbayan has no jurisdiction over him since he is not a public officer as defined under RA 3019 because he was neither elected nor appointed to a public office. Rather, he is just a private individual hired on a contractual basis for a particular project and for a specified period. Issue: WON Preclaro is a public officer putting him under the coverage of RA 3019 and the jurisdiction of Sandiganbayan Ruling: YES. The definition in Sec. 2 (b) of RA 3019 is not restrictive as indicated by the word includes. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the CSC and by the Adm. Code of 1987. Non-Career service includes contractual personnel. Petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner is not required to record his working hours or did not take an oath of office became unessential considerations in view of the provisions of the law.

Maniego v People (1951); Bengzon Facts: Feliciano Maniego y Catu was a laborer charged with issuing summons and subpoenas for traffic violations. He had also been permitted to write motions for dismissal of prescribed traffic cases against offenders without counsel, and to submit them to the Court for action, without passing through the regular clerk. He was accused and convicted of bribery for accepting P10 in exchange for fixing a case of a traffic violator. Arguments: Accused appeals claiming that he is not a public officer within the meaning of RPC and he was merely exercising public functions (in connection to which he was charged and convicted) temporarily. Issue: WON under the circumstances of the case, the accused is considered a public officer thus completing the elements of the offense charged (RPC, Art. 210 Direct bribery). Ruling: YES. Petitioner is a public officer within the meaning of Art. 203 RPC, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." That definition is quite comprehensive, embracing as it does, every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee".

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Also, for purposes of punishing bribery, the temporary performance of functions is sufficient to constitute a person a public official. The accused, although originally assigned to the preparation of summons and subpoenas, had been allowed in some instance to prepare motions for dismissal of traffic cases.

Laurel v Desierto (2002); Kapunan Facts: Former VP Salvador Laurel was named chairman of the National Centennial Commission and by virtue of which he became the Executive Officer of Expocorp, a corporation organized to undertake the Freedom Ring Project in connection to the centennial celebration. In 1999, Senate investigations ensued on the allegations of graft and corruption against Salvador (and others) as NCC and Expocorp head. The Blue Ribbon Committee recommended further investigation and filing of appropriate cases by the Ombudsman. Ombudsman took cognizance. Arguments: Laurel sought the dismissal of the case against him by contending that NCC is not a public office and he, as chairman of NCC and Expocorp is not a public officer as defined under the Anti-Graft and Corrupt Practices Act (RA 3019). Issues: (1) WON NCC is a public office; (2) WON chairmanship in the NCC and Expocorp makes petitioner Laurel a public officer within the meaning of RA 3019. Ruling: (1) YES; (2) YES. The Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision,

agency or instrumentality thereof, including governmentowned or controlled corporations. However, since the law did not provide who public officers are, the Court adopted the definition of public officers in jurisprudencemas provided by Mechem: 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 creating 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. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. NCC is a public office because it performs executive functions by implementing the policies set forth in the Constitution regarding history and cultural heritage thus satisfying an important element of public office: the delegation of sovereign functions. It also follows that he is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to

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which salary, compensation or fees are attached. But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make said commission less of a public office. Other notes: Torio v Fontanilla not applicable; Court adopted ruling in In Re Corliss.

Fernandez v Sto. Tomas (1995); Feliciano Facts: Repondents Patricia Santo Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively of Civil Service Commission issued Resolution No. 94-3710 which made several changes in the organization of CSC Central Office. Among them is the merger of the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]. Petitioner Fernandez who was then serving as Director of OPIA, was assigned as Regional Director of Regional V while Petitioner de Lima who was then serving as Director of OPR was assigned to Region III. Petitioners instituted present Petition (Certiorari, Prohibition and Mandamus with TRO). Issues raised: (1) WON respondents validly issued the assailed Resolution; (2) WON it violated petitioners constitutional right to security of tenure. Ruling:

(1) YES. The Adm. Code of 1987 provides for the organization of the CSC while the Resolution re-arranged the administrative units with the goal of streamlining operations and improving delivery of service. These changes in internal organization were rendered necessary by, on the one hand, the decentralization and devolution of the Commission's functions effected by the creation of 14 Regional Offices and 95 Field Offices of the Commission throughout the country, to the end that the Commission and its staff may be brought closer physically to the government employees that they are mandated to serve. It appears that the two petitioners were the most qualified to act as Regional Directors to where they were assigned. Hence it appears that CSC was moved by legitimate considerations. Moreover, the Adm. Code allows CSC to make internal changes in its organization, which is precisely what happened in this case. The Congress, by enumerating the offices in the Adm. Code did not mean to freeze the organization but in fact delegated to CSC the power to reorganize itself. (2) NO. Firstly, appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. Petitioners are appointed to specific positions but not to specific stations. Taking this along with the prerogative of the Commission under the Adm. Code to make reassignments, petitioners re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila as required by the law. Petitioners had not, in other words,

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acquired a vested right to serve at the Commission's Head Office. Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by a long line of cases decided by this Court in respect of different agencies or offices of government.
o o o o

demurrer on the ground that it did not allege facts sufficient to constitute a cause of action, because Act No. 3107 was constitutional and because Mr. Segovia being sixty-five years old had automatically ceased to be justice of the peace. CFI Cebu denied the demurrer. Issue: Whether Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixtyfive years, should be given retroactive or prospective effect. Ruling: Following sound canon of statutory construction that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication; Act 3107 should be given prospective effect only, and so is not applicable to justices of the peace and auxiliary justices of the peace appointed before Act No. 3107 went into force. The rule applies with reference to public offices. Though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated.

DECS v CA (1990) Secondary Principal II Fernando et al v Sto. Tomas et al (1994) MediatorsArbiters in the NCR Quisumbing v Gumban (1967) District Supervisor Miclat v Ganadem (1960) - Welfare Officer Incharge, Division of Urban, Rural and Community Administration, Social Welfare Administration Sta. Maria v Lopez (1970) transfer of the Dean, College of Education, University of the Philippines to the Office of the President, UP not allowed.

Segovia v Noel (1925); Malcolm Facts: Vicente Segovia was appointed justice of peace of Dumanjug, Cebu which he continuously occupied until reaching the age of 65 when he was ordered by the Secretary of Justice to vacate the office according to the new law Act No. 3107. Since then, Pedro Noel, the auxiliary justice of the peace has acted as justice of the peace for the municipality of Dumanjug. Segovia instituted a quo warranto proceedings in the CFI of Cebu to to inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the latter therefrom, and to procure reinstatement as justice of the peace of Dumanjug. To this complaint, Pedro Noel interposed a

Dario v Mison (1989); Sarmiento Facts: When President Aquino came into power, she proceeded to reorganize the government, upon which Mison, the Commissioner of Customs sent notices of termination to 394 Custom officials. Some sought reinstatement from CSC which the latter granted to 279 of them while the others went directly to SC. Mison also filed a petition questioning

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the decision of the CSC. RA 6656 was also passed, providing that all officers and employees who are found by CSC to have been separated in violation of this Act, shall be reappointed or reinstated. The validity of this law was also put into question. Issue: All parties agree on the validity of the reorganization per se, leaving the question only on its the nature and extent. Ruling: Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith. In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it. The present Constitution does not provide for automatic vacancies; removals not for cause must be resulting from reorganization which passed the test of good faith. RA 6656 does not run counter to the transitory provisions of the new Constitution on removal not for cause (Sec. 16, Art. 18 Consti); it is constitutional.

Melecio-Herrera, dissenting: Sec. 16, Art. 18 Consti recognizes that reorganization pursuant to Proc. 3 may be continued during the transition period.

Mathay v CA (1999); Ynares-Santiago Facts: During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents to positions in the Civil Service Unit (CSU) of the local government of Quezon City. Civil Service Units were created pursuant to PD 51. However PD 51 was never published in the Official Gazette. CSC issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to PD 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety (DPOS). Mayor Simon remedied the situation by offering private respondents contractual appointments which he renewed, and then renewed once more by Mayor Mathay. Upon the expiry of the appointments however Mayor Mathay refused to renew them further. On appeal, CSC ordered the automatic reinstatement of the respondents to DPOS pursuant the QC Ordinance. Ruling: Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337 (old LGC) for it directs the

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absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the absorption of specific persons to certain positions. By ordering petitioner to reinstate private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases,[11] we have consistently ruled that the Civil Service Commissions power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority.