Please enable JavaScript.

Coggle requires JavaScript to display documents.

Puboff I-II - I. The Concept of Public Office - - Coggle Diagram

- - - - B2. Public Office not Property, not a Contract - The characteristics of a public office 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.
        
        B3. Security of Tenure in Public Office as Property for Due Process
        
        GR - There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it.
        
        XCPN - 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 apply to this case.
        
        Security of Tenure -
        
        Implied authority conferred by law must involve exercising some portion of the sovereign power of the State in making, executing, or applying the law to the position of a public office
        
        The duties of the office define whether or not one is a public officer, and the extent of his authority is immaterial
        
        Presumption of Regularity - Official acts of a public officer enjoy the presumption of regularity, and the presumption does not apply when the acts are not within the duties specified by law, especially when his acts pertain or belong to another entity, agency or public official.
        
        Effect of Abolition (National LTD registration v. CSC) - Abolition of a position does not mean removal because removal implies that the post subsists and that one is merely separated therefrom.
        
        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? Ã If valid, the the question of any impairment of security of tenure does not arise.
        
        Subject Matter of Contracts (Saura v. Sindico) - Among those that may not be the subject matter (object) of contracts are certain rights of individuals, which the law and public policy have deemed wise to exclude from the commerce of man.
        
        Among them are the political rights conferred upon citizens, including, but not limited to, one's right to vote, the right to present one's candidacy to the people and to be voted to public office, provided, however, that all qualifications prescribed by law obtain.
        
        Such rights may not, therefore, be bargained away or surrendered for consideration by the citizen nor unduly curtailed with impunity, for they are conferred not for individual or private benefit or advantage but for the public good and interest.
        
        Not a Property Right (Senior Party-List v. COMELEC) - a '[P]ublic office is a public trust.' No one has a vested right to any public office, much less a vested right to an expectancy of holding a public office. The term of office of public officials cannot be made subject to any agreement of private parties. Public office is not a commodity that can be shared, apportioned or be made subject of any private agreement.
        
        Why not Property -
        
        Subject to removal or suspension according to law not the property of the holder; he is not denied due process when the office is abolished before the expiration of his term; or by removal or suspension according to law; or by passing a statute limiting or reducing his compensation
        
        Without vested right in public office no one has a vested right over any public office he holds, much less a vested right to an expectancy of holding office
        
        In the nature of privilege entitled to protection when there is a dispute concerning one's constitutional right to security of tenure, public office is deemed analogous to property in a limited sense (due process requirements)
        
        Right is personal to him not a property which passes on to his heirs upon death; cannot be inherited
        
        Public Office; Not a Property Right (Cornejo v. Gabriel) - Public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency.
        
        The basic idea of government in the Philippines is that of a popular representative government; the officers are mere agents and not rulers of the people, and no man has a proprietary or contractual right to an office.
        
        Every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he or she represents.
        
        Why not a Contract - An office also differs from a contract for the latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligation of both parties, and neither may depart from them without the assent of the other.
        
        Creates no contractual relation between holder and the public “ incumbent is not under contract as to withdraw his tenure, salary, and the like, from the control of the legislature, or to preclude the legislature from abolishing the office
        
        Exists by virtue of some law “ it is not a natural right. It exists only because by virtue of some law expressly or impliedly creating it.
        
        Generally entitles holder to compensation âentitled to compensation for the performance of his public duties when the law attaches it to the office. If no salary is provided, incumbent is presumed to have accepted it without pay and cannot recover anything for service rendered by him.
        
        5. Term-Sharing Agreements (Senior Citizens Party-List v. COMELEC) - No one has a vested right to any public office, much less a vested right to an expectancy of holding a public office.
        
        The term of office of public officials cannot be made subject to any agreement of private parties. Public office is not a commodity that can be shared, apportioned or be made subject of any private agreement.
        
        Term Sharing Agreements - Hypothethical contract over membership of party-list, may be valid.
        
        For sir, may be valid as does not impair political rights, can just go to another partylist to run.
        
        Whereas agreements not to run affects directly.
      - Regarded as public servants
        
        Subject to highest standards of accountability and service
    - - C1. Appointive and Elective Public Office
        
        C2. Nature of the Power to Appoint (Pimentel v. Ermita) - Power to appoint is executive in nature.
        
        GR - Legislature may not interfere with the exercise of appointment
        
        XCPN - When the Constitution expressly allows interference. Such as by prescribing the qualifications to an appointive office.
        
        Power of Appointment by the President - (4) groups of officials whom the president is authorized to appoint.
        
        HEADS - executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution (i.e. members of the Judicial and Bar Council, Chairman and Commissioners of the Civil Service Commission, Chairman and Commissioners of the Commission on Elections, Chairman and Commissioner of the Commission on Audit, and the Members of the regional consultative commission).
        
        ALL OTHER - officers whose appointments are not otherwise provided by law and they refer to officers to be appointed to lower offices created by Congress where the latter omits to provide for appointment to said office.
        
        PROVIDED BY LAW - Those whom the President may be authorized by law to appoint such as the heads of GOCCs, undersecretaries, heads of bureaus and offices, and other officials; and
        
        OTHER - officers lower in rank whose appointments the Congress by law vests in the President alone.
        
        Confirmation by the CoA -
        
        Requirement Confirmation - Only heads are appointed with the consent or confirmation of the CoA. Congress cannot require the confirmation fo appointemnt of other officers.
        
        Heads of bureaus and officers no longer need CoA Appoiintment.
        
        No Confirmation - All others need no confirmation. This includes, but is not limited to SC members, judges, (taken from list prepared by the JB Council) & Chairman and CHR members.
        
        Appointment by Other Officials - Congress may, by law, vest in courts, heads of departments, agencies, commissions, or boards the power to appoint officers lowers in rank in their respective offices.Lower rank officers subordinate to those enumerated in whom respectively the power of appointment may be vested.
        
        Kinds of Presidential Appointments -
        
        Regular – Those made while Congress is in session; nominations subject to the confirmation of the Commission on Appointments;
        
        Ad interim – Those made while Congress is not in session or during its recess;
        
        Appointments requiring submission to the CoA are always permanent, but may be regular or ad interim.
        
        Appointments made solely by the president can never be ad interim.
        
        Permanent – Those which last until they are lawfully terminated;
        
        Temporary or acting – Those which last until a permanent appointment is issued.
        
        Apppointment vs Designation -
        
        Appointment - Selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office.
        
        Generally results in security of tenure UNLESS replaceable at nature of appointing authority.
        
        Executive in Nature
        
        Designation - Imposition by law of additional duties on an already incumbent official.
        
        no security of tenure.
        
        Legislative in nature, therefore cannot be delegated.
        
        Q. Difference between temporary appointment and designation
        
        Need for Separate Permanent Appointment/Temporary appointment (Province of Camarines Sur v. CA) - When an appointee is temporarily/acting appointed due to lack of eligibility, subsequent qualification does not render the appointment permanent. Instead, there must be a separate, permanent appointment. This is because permanent appointment is not a continuation of the temporary appointment.
        
        Nature of Ad Interim Appointments (Pimentel v. ermita/Matipag v. benipayo) - Effective uppon acceptance. But, later requires later confirmation by the CoA.
        
        The ad interim appointment remains effective until such disapproval by COA or next adjournment of Congress, signifying that it can no longer be withdrawn or revoked by the President. Hence, the fact that the ad
        interim appointment is subject to the confirmation of the CA does not alter its permanent character
        
        Delegation of Appointment - CAnnot
        
        Nature of the Commission on Appointments - A constitutional body, though composed of Congress members, its powers are executive and not legislative.
        
        Distinction between two Categories -
        
        Occupation -
        
        Elective - Occupy office by virtue of mandate of the electorate
        
        Appointive - By designation of appointing authority
        
        Term -
        
        Elective - Serves a definite term, and may be removed only upon stringent conditions
        
        Appointive - Some serve in a permanent capacity, with security of tenure. Others serve at the pleasure of the appointing authority
        
        Political Activities -
        
        Elective - Allowed to take part in political and electorate activities
        
        Appointive - Admin code expressly prohibits them from engaging in partisan political activities save for voting.
        
        Rationale for Distinction as to Ipso Facto Resignation (Farinas v. Exec Sec) - Mas madali palitan appointive officials vs elective officials.
        
        GOCC as Public Offices - If corporation without original charter, for it to be considered a public office, Government must be majority stockholder.
        
        Exception 2 Exception - However, officials or employees holding political offices such as the President, Vice President, cabinet members, elective local officials
        
        except barangay officials, the staff of the abovementioned officials, and members of the reserve corps of the AFP are excluded.
      - Elements of a Public Office -
        
        Compensation/Salary (Laurel case) - Not an essential element, incidental to the nature of a public office. This applies even if no compensationw as received at all.
        
        Delegated Power - Exercise of LGCs to create offices covered by the term created by law.
        
        Created by the Constitution, law, or agency to which the power to create was delegated
        
        Invested with authority to exercise some portion of the sovereign power for public interest
        
        Powers and functions are defined by the Constitution, law, or legislative authority
        
        Duties are performed independently, without control of a superior power other than the law unless they are that of the subordinate
        
        Continuing or permanent in nature
  - - - Importance of Characteristics (Laurel v. Desierto) - For The delegation to the individual of some of the sovereign functions of government is the most important characteristic" in determining whether a position is a public office or not.
        
        Scope of Public Officers (Preclaro v. Sandiganbayan - Sec 2(b) RA 3019 provides that “‘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”.
        
        Non-Career Service -
        
        entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and
        
        tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.
        
        Scope of Non-Career Service - Includes the following:
        
        Elective officials and their personal or confidential staff;
        
        SECRETARIES - Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s);
        
        CHAIRMAN - Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;
        
        CONTRACTUAL PERSONNEL - or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and
        
        Emergency and seasonal personnel
        
        Q. Can a corporation be deemed a public officer? - Check Preclaro discussion
        
        Career Service Officials Levels (EO 292)
        
        First Level - Clerical/Non-Professional Work
        
        Second Level - Professional/Technical up to Division Chief
        
        Third Level - Career Executive Service
      - (a) DELEGATION - of sovereign functions;
      - (b) CREATION - Its creation by law and not by contract;
      - (c) Oath;
      - (d) Salary; -
      - (e) CONTINUANCE - of the position;
      - (f) SCOPE - of duties;
      - (g) DESIGNATION - of the position as an office;
  - - - Exec. Order No. 292 (1987) or the Administrative Code of 1987, Book I, Chapter 9, Sec. 32 - Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with the utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.
      - RPC - By election or appointment, a person who takes part in the performance of government functions in the government, or performs in the government public duties as an employee
- - - - C. De Facto and De Jure Officers
        
        Definition of De Facto - one in possession of an office in the open exercise of its functions under color of an election or appointment even though the election or appointment may be irregular or informal.
        
        One who is reputed to be the officer he assumed to be and yet is not a good officer in the law’s point.
        
        C2. Effects of Acts of De Facto Officership - The validity of their acts can pertain to either the officers themselves and/or the effect of the act in relation to the public and third persons.
        
        Distinguished from Usurpers - Usurpers have no lawful title/color with the public knowing or ought to know that they have no such right.
        
        May be ousted at any time at any proceeding
        
        Their acts are absolutely null and void.
        
        Q. Can a Usurper become De Facto? - Vibes yes, based on the elements since pwede naman mag acquiesce at a later date.
        
        As Regards the Officers -
        
        GR - A party suing or defending in his own right must show that he is an officer de jure because the acts of the de facto as far as he is concerned are void.
        
        Hence, he cannot justify his acts as binding or valid in any suit to which he is a party.
        
        Rationale - To discourage the seizure of public offices. Moreover, he is bound to know whether he is a legal officer and if he attempts to exercise the duties of an officer without authority he acts at his own peril.
        
        As Regards Public/Third Persons -
        
        GR - The acts of a de facto officer are valid as to third persons and the public until his title is adjudged to be insufficient. The said authority may not be collaterally attack or inquired into by third persons affected.
        
        XCPN -
        
        Constitutional Prohibition on Concurrent offices (Funa v. Agra) -
        
        GR - Appointive officials in the civil service may hold concurrent office during tenure when allowed by law, by primary functions of their office.
        
        XCPN - Members of the cabinet, president, vp, their deputies and assistants may do so when expressly authorized by the Constitution.
        
        Recovery of Compensation (Rodriguez v. Tan) -
        
        The emolument must go to the person who rendered the service unless the contrary is provided
        
        This right to compensation during their incumbency has always been recognized
        
        C1. Requisites of De Facto officership -
        
        Definition of De Jure Office - An office created by law, by the Constitution.
        
        Judge De Jure v. De Facto -
        
        Judge de jure – One who exercises the office of judge as a matter of right; an officer of law fully vested with all the powers and functions conceded under the law.
        
        Judge de facto – One whose acts are valid under principles of policy and justice insofar as they involved the interest of the public and third persons, where the duties of the office were exercised:
        
        Without a known appointment or election but under such circumstances of reputation as were calculated to induce the people to submit to his action.
        
        Under color of a known or valid appointment or election, where the officer has failed to conform to some precedent, requirement or condition.
        
        (c) under color of a known election or appointment, void because the oﬃcer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; and
        
        (d) under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such.
        
        Requisites for Promulgation of Valid Judgment by Court -
        
        There must be a court legally organized or constituted;
        
        There must be a judge or judges legally appointed or elected and actually acting, either de jure or de facto
        
        Judge de Facto (Luna v. Rodriguez) - Metric: Entering into office. If not, and continues to act as a judge,t hen still considered a judge de facto.
        
        If actually enters into the other office and commences performance, then no judge de facto.
        
        Requisites for De Jure Officer -
        
        LEGAL QUALIFICATION - Must possess the legal qualification for the office in question
        
        LAWFULLY CHOSEN - Must be lawfully chosen to such office
        
        QUALIFIED ACCORDING TO LAW - Must have qualified himself to perform the duties of the office according to the mode prescribed by law.
        
        Examples of De Facto Officership - He is one where the duties of the office are exercised:
        
        without a known appointment or election but under circumstances of reputation or acquiescence as to induce people, without inquiry, to submit or to invoke his action, supposing him to be the officer
        
        under color of a known and valid appointment or election but has failed to conform to some precedent requirement or condition such as to take an oath or give a bond
        
        under color of a known election or appointment, but was not eligible or want of power in the appointing body or defect or irregularity in the exercise, and such facts are unknown to the public
        
        under color of an election or appointment by or pursuant to a law that is later declared unconstitutional
        
        OFFICE - There must be a de jure office;
        
        COLOR - There must be color of right or general acquiescence by the public;
        
        Acquired by election, appointment, acquiesence by the public or holdover term.
        
        Appearance - There must be an appearance of a right to office. Thus, non-existence of recognition as a public officer may prevent courts from recognizing de facto office.
        
        POSSESSION/GOOD FAITH - There must be actual physical possession of the office in good faith.
        
        Nature of Possession - Must be in good faith, under oclor of right or title and with faithful exercise of the functions to office.
        
        Mere Possession is insufficient.
      - Scope of Power -
        
        (1) EXPRESS - expressly conferred upon him by the law under which he has been appointed or elected;
        
        (2) ANNEXED - expressly annexed to the office by the law which created it or some other law referring to it; or
        
        (3) INCIDENTAL - attached to the office as incidents to it.
        
        Source of Power -
        
        GR - the powers and duties of public officers are prescribed by the Constitution or by statute or both.
        
        Exception: broader powers which are desirable must be conferred by the proper authority
        
        Express v. Implied Powers (Soriano v. Laguardia) - As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act.
        
        Rationale - When a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary implication
        
        Q. Distinguish Implied v. Incidental Powers -
        
        In the case, the power to issue preventive suspensions was subsumed under the power to discipline;.
    - - 2. Rep. Act No. 1379 (1955), Section 1(a) - any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise.
      - Rep. Act No. 3019 (1960), Section 2(b)(Anti Graft)
        
        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.
        
        4. Rep. Act No. 6713 (1989), Section 3(b) (code of Conduct) - includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount.
        
        5. Exec. Order No. 292 (1987), Section 2(15) (ADMIN CODE) -
        
        (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.
      - Q. Can priests fall under the definition of Public Officers if acting as solemnizing officers?