a) Laurel vs.
Desierto, 381 SCRA 48
DESIERTO – 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.
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 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.
a) Serena vs. Sandiganbayan, 542 SCRA 224
SERENA – PUBLIC OFFICER
Preliminarily, the denial of a motion to quash is not correctible by certiorari.
dismiss this petition for certiorari outright on procedural grounds. Well-established is the rule that when a
motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go
to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. As a general rule,
an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final
judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to
file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment.
Petitioner UP student regent is a public officer.
Section 4(A)(1)(g) of P.D. No. 1606 explicitly vested the Sandiganbayan with jurisdiction over Presidents,
directors or trustees, or managers of government-owned or controlled corporations, state universities or
educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out,
the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express
mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.
Moreover, it is well established that compensation is not an essential element of public office. At most, it is
merely incidental to the public office.
a) Macalino vs. Sandiganbayan, 376 SCRA 452
MACALINO – NOT A PUBLIC OFFICER
Petitioner contends that an employee of the PNCC is not a public officer as defined under Republic Act No.
3019, as follows:
"Sec. 2. (a) xxx xxx xxx.
"(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether
in the unclassified or classified or exempted service receiving compensation, even nominal, from the
government as defined in the preceding paragraph."
Further, Article IX-B, Section 2 (1) of the 1987 Constitution provides:
"The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned and controlled corporations with original charters."
Inasmuch as the PNCC has no original charter as it was incorporated under the general law on corporations, it
follows inevitably that petitioner is not a public officer within the coverage of R. A. No. 3019, as amended. Thus,
the Sandiganbayan has no jurisdiction over him. The only instance when the Sandiganbayan has jurisdiction
over a private individual is when the complaint charges him either as a co-principal, accomplice or accessory of
a public officer who has been charged with a crime within the jurisdiction of Sandiganbayan.
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a) Frias, Sr. vs. People, GR No. 171437, October 4, 2007
PETITIONER IS AN ACCOUNTABLE PUBLIC OFFICER
Under the Government Auditing Code of the Philippines, an accountable public officer is a public officer who, by
reason of his office, is accountable for public funds or property.32 The Local Government Code expanded this
definition with regard to local government officials. Section 340 thereof provides:
Section 340. Persons Accountable for Local Government Funds. — Any officer of the local government unit
whose duty permits or requires the possession or custody of local government funds shall be accountable and
responsible for the safekeeping thereof in conformity with the provisions of this title. Other local officials,
though not accountable by the nature of their duties, may likewise be similarly held accountable and
responsible for local government funds through their participation in the use or application thereof. (emphasis
supplied)
Local government officials become accountable public officers either (1) because of the nature of their
functions or (2) on account of their participation in the use or application of public funds.
According to the Local Government Code, municipal mayors are chief executives of their respective
municipalities.33 Section 102 of the Government Auditing Code of the Philippines provides:
Section 102. Primary and secondary responsibility. – (1) The head of any agency of the government is
immediately and primarily responsible for all government funds and property pertaining to his agency.
(2) Persons entrusted with the possession or custody of the funds or property under the agency head shall be
immediately responsible to him, without prejudice to the liability of either party to the government. (emphasis
supplied)
a) PAGCOR v. Rilloraza, G.R. No. 141141, June 25, 2001
RILLORAZA – NOT A CONFIDENTIAL APPOINTEE
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the
position which finally determines whether a position is primarily confidential, policy-determining or highly
technical. In case of conflict then it is the Court that determines whether the position is primarily confidential or
not.
first, the classification of a particular position as primarily confidential, policy-determining or highly technical
amounts to no more than an executive or legislative declaration that is not conclusive upon the courts, the true
test being the nature of the position. Second, whether primarily confidential, policy-determining or highly
technical, the exemption provided in the Charter pertains to exemption from competitive examination to
determine merit and fitness to enter the civil service. Such employees are still protected by the mantle of
security of tenure. Last, and more to the point, Section 16 of P.D. 1869, insofar as it declares all positions within
PAGCOR as primarily confidential, is not absolutely binding on the courts.
a) De Rama vs. CA, 353 SCRA 650
NOT A MIDNIGHT APPOINTMENT
Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds.
And yet, the only reason advanced by the petitioner to justify the recall was that these were "midnight
appointments." The CSC correctly ruled, however, that the constitutional prohibition on so-called "midnight
appointments," specifically those made within two (2) months immediately prior to the next presidential
elections, applies only to the President or Acting President. Article VII, Section 15 of the 1987 Constitution,
which provides:
Section 15. Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger public safety.
Page 2 of 7
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees relative to promotion;
or
(d) Violation of other existing civil service law, rules and regulations.
It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the
civil service under a completed appointment, he acquires a legal not merely equitable right (to the
position), which is protected not only by statute, but also by the Constitution, and cannot be taken away from
him either by revocation of the appointment, or by removal, except for cause, and with previous notice and
hearing.
I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the
respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the appointing authority as
required by the Civil Service rules;
a) Provincial Government of Aurora v. Marco GR No. 202331, April 22, 2015
Not a midnight appointment
Civil Service Commission Resolution No. 030918,[63] paragraph 2.1 of which provides:
[Link] appointments issued by elective appointing officials after elections up to June 30 shall be disapproved,
except if the appointee is fully qualified for the position and had undergone regular screening processes before
the Election Ban as shown in the Promotion and Selection Board (PSB) report or minutes of meeting.
1. The validity of an appointment issued immediately before or after the elections by outgoing local chief
executives is to be determined on the basis of the nature, character and merit of the individual
appointment and the particular circumstances surrounding the same.
... ... ...
3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion,
except in cases of renewal and reinstatement, regardless of status, which are issued AFTER the
elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its
Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA), as the case
may be, shall be disapproved unless the following requisites concur relative to their issuance:
a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before
the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its
meeting;
b) That the appointee is qualified;
c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger
public safety;
d) That the appointment is not one of those mass appointments issued after the elections.
4. The term "mass appointments" refers to those issued in bulk or in large number after the elections by
an outgoing local chief executive and there is no apparent need for their immediate issuance.
a) Civil Service Commission v. Cortes, GR No. 200103, April 23, 2014
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Nepotism is defined as an appointment issued in favor of a relative within the third civil degree of consanguinity
or affinity of any of the following: (1) appointing authority; (2) recommending authority; (3) chief of the bureau
or office; and (4) person exercising immediate supervision over the appointee. Here, it is undisputed that
respondent Cortes is a relative of Commissioner Mallari in the first degree of consanguinity, as in fact Cortes is
the daughter of Commissioner Mallari.
By way of exception, the following shall not be covered by the prohibition: (1) persons employed in a
confidential capacity; (2) teachers; (3) physicians; and (4) members of the Armed Forces of the Philippines. In
the present case, however, the appointment of respondent Cortes as IO V in the CHR does not fall to any of the
exemptions provided by law.
The purpose of Section 59 on the rule against nepotism is to take out the discretion of the appointing and
recommending authority on the matter of appointing or recommending for appointment a relative. The rule
insures the objectivity of the appointing or recommending official by preventing that objectivity from being in
fact tested.3 Clearly, the prohibition against nepotism is intended to apply to natural persons. It is one
pernicious evil impeding the civil service and the efficiency of its personnel.4
UNDUE INFLUENCE
Moreover, basic rule in statutory construction is the legal maxim that "we must interpret not by the letter that
killeth, but by the spirit that giveth life." To rule that the prohibition applies only to the Commission, and not to
the individual members who compose it, will render the prohibition meaningless. Apparently, the Commission
En Banc, which is a body created by fiction of law, can never have relatives to speak of.
a) Municipality of Butig, Lanao del Sur vs. Court of Appeals, 477 SCRA 115
RESPONDENTS WERE NOT ILEGALLY DISMISSED
DUE PROCESS DOES NOT ALWAYS REQUIRE HEARING
With notice
a - Abandonment of office (failed to report to duty);
b - Unauthorized absences from December 23, 1993 up to this date;
c - Defiance to several notices/memoranda issued by this Office;
Officers and employees who are absent for at least thirty (30) days without approved leave are considered on
Absence Without Leave (AWOL) and may be dropped from the service without prior notice.
We find without merit the contention of private respondent municipal employees that they were denied due
process for lack of notice and opportunity to be heard before they were dropped from the rolls. To reiterate, in
the above-quoted provision, an officer or employee may be dropped from the rolls if he was continuously
absent without official leave for a period of at least thirty days. Prior notice is not necessary. To emphasize, the
action of dropping private respondent municipal employees from the rolls is non-disciplinary in nature and does
not result in the forfeiture of their benefits nor their disqualification from re-employment in the government.24
Likewise, dropping from the rolls of private respondents is without prejudice to their re-appointment at the
discretion of the appointing authority and subject to Civil Service laws, rules and regulations.25
The essence of due process is simply an opportunity to be heard or as applied to administrative proceedings, an
opportunity to explain one’s side or opportunity to seek a reconsideration of the action or ruling complained of.
a) De Castro v. Judicial and Bar Council, GR No. 191002, April 20, 2010, 615 SCRA 666
CJ - OK
ARTICLE VII SECTION 15
ARTICLE 8 SECTION 4 AND 9
a must in constitutional interpretation – dictates as a general rule that the tasks assigned to each department
and their limitations should be given full effect to fulfill the constitutional purposes under the check and
Page 4 of 7
balance principle, unless the Constitution itself expressly indicates its preference for one task, concern or
standard over the others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on the
appropriate interpretation that should be made--- the maintenance of a full Court in fact contributes to the
enforcement of the constitutional scheme to foster a free and orderly election.
Writ of mandamus does not lie against the JBC
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to
the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law;
(c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed
is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law.
a) In Re: Appointment dated March 30, 1998 Hon. Valenzuela and Vallarta, A.M. No. 98-5-
01-SC, November 09, 1998
PROHIBITED
Section 15 of Article VII imposes a direct prohibition on the President: he "shall not make appointments" within
the period mentioned, and since there is no specification of which appointments are proscribed, the same may
be considered as applying to all appointments of any kind and nature. This is the general rule then, the only
exception being only as regards "executive positions" as to which "temporary appointments may be made
within the interdicted period "when continued vacancies therein will prejudice public service or endanger
public safety." As the exception makes reference only to "executive" positions, it would seem that "judicial"
positions are covered by the general rule.
STATCON:
Since prohibition is not established, it applies to all. Article VII should be construed before Article VIII/
a) CSC v Dacoycoy, G.R. No. 135805, April 29, 1999
DACOYCOY - NEPOTISM
The law defines nepotism9 as follows:
Sec. 59. Nepotism. — (1) All appointments to the national, provincial, city and municipal governments or in any
branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are those related within the
third degree either of consanguinity or of affinity.
(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such appointment shall be made to the
Commission.
Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
a) Civil Liberties Union v. Executive Secretary, 194 SCRA 317
Eo no 284 is invalid and unconstitutional for violating
Section 13, Article VII
Page 5 of 7
The Court is alerted by respondents to the impractical consequences that will result from a strict application of
the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that
Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary
positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive
official concerned without additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of "any other office" within the contemplation of the
constitutional prohibition.
a) Bonilla v. Barcena, G.R. No. L-41715, June 18, 1976
b) Joson vs. Torres, 290 SCRA 279
JOSON WAS DENIED OF HIS RIGHT TO FORMAL INVESTIGATION
The rejection of petitioner's right to a formal investigation denied him procedural due process. Section 5 of A.O.
No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to
consider whether they desire a formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a formal investigation would be conducted. The records show that petitioner
filed a motion for formal investigation. As respondent, he is accorded several rights under the law, to wit:
Sec. 65. Rights of Respondent. — The respondent shall be accorded full opportunity to appear and defend
himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the
attendance of witnesses and the production of documentary evidence in his favor through compulsory process
of subpoena or subpoena duces tecum.
An erring elective local official has rights akin to the constitutional rights of an accused.68 These rights are
essentially part of procedural due process.69 The local elective official has the (1) the right to appear and
defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him;
and (3) the right to compulsory attendance of witness and the production of documentary evidence. These
rights are reiterated in the Rules Implementing the Local Government Code70 and in A.O. No. 23.71 Well to
note, petitioner, formally claimed his right to a formal investigation after his Answer Ad Cautelam has been
admitted by Undersecretary Sanchez.
a) Medina vs. COA, 543 SCRA 684
MEDINA WAS NOT DENIED OF HER RIGHT TO DUE PROCESS
between the Administrative Code of 1987 and Administrative Order No. 07, as amended, issued by the Office of
the Ombudsman, the latter governs in this case which involves an administrative complaint filed with the Office
of the Ombudsman and which raises the question of whether petitioner is entitled to a formal investigation as a
matter of right.
The reinvestigation should have been requested at the first opportunity but definitely before the rendition of a
decision.
As correctly pointed out by the OSG, the denial of petitioner's request for a formal investigation is not
tantamount to a denial of her right to due process. Petitioner was required to file a counter-affidavit and
position paper and later on, was given a chance to file two motions for reconsideration of the decision of the
deputy ombudsman. The essence of due process in administrative proceedings is the opportunity to explain
one's side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.
The rule is that the findings of fact in administrative decisions must be respected as long as they are supported
by substantial evidence, even if not overwhelming or preponderant. It is not for the reviewing court to weight
the conflicting evidence, determine the credibility of the witnesses or otherwise substitute its own judgment
for that of the administrative agency on the sufficiency of evidence. It has been consistently held that
substantial evidence is all that is needed to support an administrative finding of fact which means such relevant
evidence as a reasonable mind might accept to support a conclusion.
a) Gov. Romeo Salalima et al v. Teofisto Guingona, Exec. Sec. et al, G.R. No. 117589-92, May
22, 1996, En Banc
Page 6 of 7
Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and
this is especially true where the constitution provides that the penalty in proceedings for removal shall not
extend beyond the removal from office, and disqualification from holding office for the term for which the
office was elected or appointed.
The underlying theory is that each term is separate from other terms, and that the reelection to office operates
as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him
therefor
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their officers. When the people have elected a man to
office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded
or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults
or misconduct to practically overrule the will of the people.
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