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Puboff VI - Termination of Official Relations, E. Removal - Ouster of…
Puboff VI - Termination of Official Relations
A. Expiration of Term
-
GR
- Upon expiration of the term, the officer's rights, duties and authority as a public officer also ceases.
XCPN
- if the law authorizes a holdover period
Co-Terminous Employees
- It is an established rule that the tenure of those holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures.
Their termination can be justified on the ground of loss of confidence, in which case, their cessation from office involves no removal but the expiration of their term of office.
Loss of Confidence
- No officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. The phrase "cause provided by law," includes "loss of confidence."
Test to Determine Primarily Confidential
-
I. Retirement (Reaching Age Limit)
J. Death or Permanent Disability
M. Prescription of Right to Office
- proceeding by quo warranto is the proper and appropriate remedy against a public officer or employee for his ouster from office.
But, failure to observe period for filing means prescription of right to office.
Non-User
- The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control [Sec. 11, B.P. Blg. 881].
Nature
- In a petition for quo warranto, the petitioner must prove that he is entitled to the position which he alleges the respondent usurps or unlawfully holds.
Prescriptive Period
-
GR
- should be commenced within one year after the cause of such ouster or the right of the plaintiff to hold such office or position arose (e.g., from removal or separation); otherwise, the action will be barred.
XCPN
- Exceptional circumstances attending may justify the non-application of the prescriptive period enunciated above in order to grant relief that will serve the ends of justice.
Failure to file quo warranto proceedings does not operate adversely against a dismissed government employee where it was the repeated assurances of responsible government officials which contributed to the delay on the filing of the complaint for reinstatement.
Death
- Death of incumbent renders the office vacant. Upon his death, the public official ceases to hold office, and all rights, duties, obligations are extinguished.
Death in Multiple Incumbents
- However, if the authority is conferred over two or more officers, death of one terminates his authority and leaves a vacancy but the entire office is not vacant.
Unless the joint action of all is expressly required, the survivors may execute the office.
Permanent Disability
- Covers either mental or physical disability.
Resolving Issue of Incapacity
- When degree of incapacity is at issue (i.e. when the appointee refuses to give up the position) the appointing power will have to make the decision whether the condition of the public official has created a vacancy but a judicial determination of the fact is necessary to render it conclusive. [DE LEON]
Compulsory Retirement Age
-
GR
- 65 Years old (GSIS Law, Sec. 13(b)
XCPN
-70 years old for members of the Judiciary (Sec. 11, Art. 8, Constitution)
Early Retirement (GSIS Law, Sec. 13-A)
- Early retirement entitled to all regular benefits if:
Rendered at least 15 of service;
At least sixty (60) years of age at the time of retirement; and
Not receiving a monthly pension benefit from permanent total disability.
Effect of Petition for retirement (CSC v. Moralde)
- Considered as willful separation from service (resignation?) therefore cannot later file claims for reinstatement/back wages absent proof that their choice/consent was vitiated by factors such as desperate financial need.
Extension of Service (Rabor v. CSC) -
Government employees who reach the compulsory retirement age of 65 years old may not continue in office for more than 1 year to complete the 15-year service requirement for retirement benefits.
Requirements for Retirement
-
Rendered at-least 15 years of service
if served for less than 15, can continue serving
65 years of age minimum
Definition of Term
- fixed and definite time prescribed by law or the Constitution by which an officer may hold an office.
Distinguished from Tenure
- Tenure is the period during which the incumbent actually holds office.
May be shorter than the term for reasons within or beyond the power of the incumbent.
Effect of Expiration of Tenure
- expiration of tenure, it is the right of the occupant himself to hold the office which is terminated.
Non-renewal of Appointment
- non- renewal of an appointment with or without cause at the end of the term of an appointee is a valid mode of termination.
Term
- The time during which the officer may claim to hold the office as a right.
Fixed and definite period of time to hold office, perform functions, etc.,
not affected by holdover of the incumbent after expiration of the term for which he was appointed or elected.
Holding Over after Expiration of Term
-
GR
- An officer is entitled to stay in office until his successor is appointed or chosen and has qualified
XCPN
- There is an express or implied constitutional or statutory provision to the contrary.
Rationale for Holdover Terms (Hilario v. CSC)
- intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions.
Term for Confidential
- does not apply to appointive offices held at the pleasure of the appointing power
Co-Terminous Office
- Where an office is created, or an officer is appointed, for the purpose of performing a single act or the accomplishment of a given result, the office terminates and the officer’s authority ceases with the accomplishment of the purposes which called it into being.
General list
- There are 12 legal modes of termination of official relations.
Involuntary
-
Expiration of the term or tenure of office
Reaching the age limit (retirement)
Death or permanent disability
Prescription of right to office
Disciplinary
-
Removal
Impeachment
Abolition of office
Conviction of a crime
Recall.
Voluntary
-
Resignation
Acceptance of an incompatible office
Abandonment of office
E. Removal
-
Ouster of an incumbent public officer before the expiration of his term. It implies that the office exists after the ouster. Another term used is dismissal.
The forcible and permanent separation of
the incumbent from office before the expiration of his term [Ingles v. Mutuc, G.R. No. L- 20390(1968
Modes fo Removal From Office
- May be express or implied.
Appointment
- of another officer in place of the incumbent
Transfer
- To another office is the forcible and permanent separation of the incumbent from office before the expiration of his term [Ingles v. Mutuc, G.R. No. L- 20390(1968
Demotion
- to a lower position with a lower rate of compensation is also equivalent to removal if no cause is shown for it [De Guzman v. CSC, G.R. No. 101105 (1994)].
Removal of Elective Local (Salalima v. Guingona)
- LGC Sec. 60 that the penalty of dismissal from service upon an erring elective local official may be decreed ONLY BY A COURT OF LAW.
Thus, Local Legislative Bodies/Ofifce of President on appeal cannot dismiss erring local elective officials.
Implied Removal
- A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to lure the employee away from his permanent position, cannot be done without the employee's consent for that would constitute removal from office. An unconsented transfer runs against security of tenure. A transfer that aims by indirect method to terminate services or to force resignation constitutes removal.
Due Process/Security of Tenure
- Removal must comply with due process requirements on account of right to security of tenure.
Administrative Due Process requires removal for cause.
Elements of For Cause Removal
-
The cause is a legal cause, i.e. determined by law and not the appointing power
Cause must be connected to the functions and duties of the office
The cause must be of a substantial nature as to directly affect the interest of the public
The removal must be after due process
Procedural Due Process Rights of Local elective Official (Joson v. Torres)
. The local elective official has the:
(1) 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
Right to Formal Investigation cannot be complied with by mere filing of position papers.
President's Removal Power
-
Non-Career - If exercising purely executive functions + tenure not fixed by law (such as cabinet members) president may remove them with or without cause.
Quasi-Legislative/Judicial Functions - Removed only on grounds provided by law to protec ttheir independence.
Constitutional ofifcers - no removal, impeachment only.
L. Recall
- It is a method of removal prior to the expiration of the term of a public officer on account of loss of confidence exercised directly by the registered voters of a local government unit. [Secs. 69-75, LGC]
F. Impeachment
K. Conviction of Crime
- When the penalties of perpetual or temporary absolute disqualification or penalties of perpetual or temporary special disqualification are imposed upon conviction of a crime, termination of official relation results, for one of the effects of the imposition of said penalties is the deprivation of the public office which the offender may have held. [Arts. 30-31, Revised Penal Code]
H. Abolition of Office
Reorganization
- an alteration of the existing structure of government offices or units, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to effect economy and make it more responsive to the needs of their public clientele.
Effect of Reorganization
- result in the loss of one's position through removal or abolition of an office.
Redundancy exists when the service of a public officer or employee is in excess of what is reasonably demanded by the actual needs or requirements of an office or agency.
Good Faith
- Reorganization of the government may be required by law independently of specific constitutional authorization. But like abolition of an office, it must be based on a valid purpose and done in good faith.
When Deemed Invalid (Pan v. Pena)
- Where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith.
an abolition which merely changes the nomenclature of a position is invalid and does not result in the removal of the incumbent.
See: Sec. 2 of RA 6566 which cites circumstances showing bad faith
(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned;
(b) Where an office is abolished and another performing substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance, and merit;
(d) Where there is a reclassification of offices in the department or agency concerned, and the reclassified offices perform substantially the same function as the original offices;
(e) Where the removal violates the order of separation provided in Section 3 hereof.
Order of Separation -
(a) Casual employees with less than five (5) years of government service;
(b) Casual employees with five (5) years or more of government service;
(c) Employees holding temporary appointments; and
(d) Employees holding permanent appointments:
Provided, That those in the same category as enumerated above, who are least qualified in terms of performance and merit shall be laid off first, length of service notwithstanding.
Requisites for Valid Abolition (Mendoza v. Quisumbing)
-
Abolition must be done in good faith
Clear intent to do away with the office
Not for personal or political reasons
Cannot be implemented in a manner contrary to law
Right of Congress to Abolish
-
GR - Congress has right even during the term for which an existing incumbent may have been elected
XCPN - When restrained by the Constitution
Art. VIII, Sec. 2 prohibits reorginazing judiciary to underminie security of tenure of its members.,
Rationale
- Abolition of office does not remove the incumbent, but the office itself.
By Whom Exercised (EIIB v. Exec Sec)
-
GR
- power to abolish a public office is lodged with the legislature, as A public office is either created by the Constitution, by statute, or by authority of law.
XCPN
- for bureaus, agencies, or offices in the executive department, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures
PD 1772 expressly grants the President the continuing authority to reorganize, the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, and to standardize salaries and materials.
Authority of CSC to Reorganize (Eugenio v. CSC)
- The CSC’s power to reorganize is limited to offices under its control as enumerated in Section 16.
Reassignment (Fernandez v. Sto Tomas) -
Section 31 of the Administrative Code of 1987
authorizes the President
(a) to
restructure the internal organization
of the Office of the President Proper, including the immediate Offices, the President Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another, and
(b) to
transfer functions or offices from
the Office of the President to any other Department or Agency in the Executive Branch, and vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the Office of the President Proper and to transfer functions/offices not only among the offices in the Office of President Proper but also the rest of the Office of the President and the Executive Branch, the President implicitly has the power to effect less radical or less substantive changes to the functional and internal structure of the Office of the President, including the modification of functions of such executive agencies as the exigencies of the service may require.
Form of Abolition (Canonizado))
- May be express or implied but, if there is no irreconcilable inconsistency in the natures, duties and functions of the new and old offices,t here is no abolition
What Constitutes Conviction
- conviction by a trial court. There must not
be adjudication of guilt,
by plea or verdict, but in addition,
a judgment whether it imposes a sentence or suspends sentence.
Effect of Pardon
- ONLY restores eligibility for appointment to offfice.
a pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction.
Purpose
- To protect the people from official delinquencies or malfeasances. It is primarily intended for the protection of the State, not for the punishment of the offender. The penalties attached to impeachment are merely incidental to the primary intention of protecting the people as a body politic.
List of Impeachable Officials
-
The President,
The Vice-President,
Members of the Supreme Court
Members of the Constitutional Commissions, and
The Ombudsman
Grounds for Impeachment
-
For, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption,
other high crimes, or
betrayal of public trust.
Procedure
-
Initiation
- HREP has sole power to initiate.
Trial - Senate Sits as impeachment court for trial.
Effect of Judgment
- In impeachment cases, the judgment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines,
but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.
Locgov notes
-
https://coggle.it/diagram/YmZhfbnCnZoB2DGi/t/locgov-vii-disciplinary-action-lgc-a-no-6770-1989
Grounds for Removal/Suspension under the Constitution -
Congress
- Each House may punish its members for disorderly behavior and, with the concurrence of 2/3 of all its members, suspend or expel a member.
President/VP/Ombudsman/SC/Consti Comm members
- Impeachment
Members of the Judiciary
- Judges of lower courts, the determination by the Supreme Court as to whether there has been a deviation or not from the requirement of good behavior is conclusive since it alone has the power to order their dismissal.
CSC Officers/Employees
- Removal must be for cause.
B. Resignation
- Formal relinquishment of office
D. Acceptance of Incompatible Office
-
GR
- First office is deemed vacated.
XCPNs
-
Ex Officio
- Where the public officer is authorized by law to accept the other office
Forbidden Office
- If the public officer accepts a forbidden office, the holding of the second office is absolutely void. [Sec. 13, Art. IV, 1987 Constitution]
The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall
C. Abandonment
- Voluntary relinquishment of office with intent to not reclaim it or terminating possession/control thereof.f
Requisites for Abandonment
-
Intent to Abandon
Overt/External Act
Distinguished from Resignation
- Abandonment is voluntary relinquishment through non-user i.e., neglect to use a privilege, right, or exercise an easement or an office.
What Constitutes Abandonment
-
Failure to Return
- to Service after the expiration of a 1-year leave of absence without pay.
Absence
- Absence without approved leave (AWOL) for 30 days dropped from service after due notice.
Delay in Returning (Canonizado v. Aguirre)
- If officer vacates by agreeing to his wrongful removal and there is urneasonable delay in taking steps to vindicate his rights
Exceptions to Abandonment
-
Second Office is Temporary
Expressly Authorized by Law
When Deemed Incompatible Office
-
Conflict of Duties
- conflict in such duties and functions, so that the performance of the duties of one interferes with the performance of the duties of the other as to render it improper from consideration of public policy for one person to retain both
Subordinate/Supervisory Relationship
- One office is subject to supervisory power of the other. (No checks)
Express Provision of Law
Subordinate offices
- The offices must
subordinate, one [over] the other, and they
must, per se, have the right to interfere, one
with the other, before they are incompatible at
common law. [Public Interest Center Inc. v.
Elma, G.R.
GR
- Appointive First post becomes abandoned;
XCPN
- If Pres. and official family, 2nd post is abandoned?
Requisites for Resignation
-
INTENT to relinquish a part of the term
ACT of relinquishment
ACCEPTANCE by the proper authority, either
expressly or implied
Abandonment (SB of San Andres v. CA)
- Although resignation is not complete without acceptance by the proper authority, an office may still be deemed relinquished through voluntary abandonment which needs no acceptance
Art. 238 of the RPC makes it an offense for any public officer who, before acceptance of his resignation, abandons his office to the detriment of the public service
Forms of Resignation
-
GR
- No required form, may be express, implied, written, oral, etc., (Estrada v. Desierto)
XCPN
- When law prescribes a particular form, such form must be substantially complied with.
Courtesy Resignations (Ortiz v. COMELEC)
- Not a resignation in the legal sense as no intent to resign. Instead, submission to the will of the political authority and the appointing power
Q. Doesn't; this conflict with Estrada
When Resignation Effective
-
Date specified in the tender
If no date, effective when the public officer receives notice of ACCEPTANCE
Revocation of Resignation (Republic v. Singun)
- Resignation may be validly withdrawn:
If employee does so before effectivity date;
Before it has been accepted;
Before the appointing power acts in reliance on the resignation. before it is effective.
Until the resignation is accepted, the tender or offer to resign is revocable.36 And the resignation is not effective where it was withdrawn before it was accepted.37
Acceptance of resignation
-
GR
- Manner provided by law, by person designated as the accepting authority
XCPN
- if no manner then:
Appointive officer
- Tender to appointing authority
Elective
- Tender to those authorized by law
List of Elective Officials Appointing Authority -
President/VP
- Congress
Congress
- Houses
Governors/Mayors of HUCCs
- president
City Mayors/Component Cities/Municipal mayors
- Governor
Sangguninag Members
- Sanggunian Concerned
Elective barangay Officials
- Municipal/City Mayors
Deemed Resignation; Filing of COC
- Sec. 66 of BP 881 provides that for appointive officials, they are ipso facto resigned from office upon filing of certificate of candidacy.