public officers, chapters 1-3 + case digests.doc

Law on Public OfficersZyra Cuevas

CHAPTER 1- THE CONCEPT OF THE PUBLIC OFFICE

The Law of Public Officers deals with public office, its creation, modification and dissolution, as well as the...

1. Eligibility of public officers2. Manner of their election or appointment3. Assumption of office4. Rights, duties, powers, liabilities5. Modes of terminating their official functions

This law is found primarily in the Constitution, the Civil Service Decree of 1975, the Administrative Code of 1987, and special laws like the Local Government Code of 1991, and common law principles like prescription, estoppel, provisions of the Rules of City

DefinitionA public office is the right, authority and duty, created and conferred by law, by which an individual is invested with some sovereign functions of the state to be excercised by him for the benefit of the body politic.Officer, as distinguished from an employee refers to a person whose duties involves the excercise of discretion in the performance of the functions of the government.Under the RPC, a public officer is “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 tthe Govt. of the Philippines, or 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,”

Elements1. It must be created by law or by authority of law

- Created by Constitution, by Statute, or by Authority of law2. It must possess a delegation of a portion of the sovereign powers

of government, to be excercised for the benefit of the public.3. The powers conferred and the duties to be discharged must be

defined, directly or impliedly by the legislature of through legislative authority.

4. The duties must be performed independently and without control of a superior power other than unless they of an inferior or subordinate office created by the legislature and by it placed under the general control of a superior office or body.

5. It must have some permanence and continuity and not be only temporary or occassional

Characteristics:1. It is a public trustIt must be discharged by the incumbent for the benefit of the public for whom it is held by him in trust2. It is not a hereditable possessionIt is personal to the incumbent. It is not a property which can be passed from holder to heir but must be relinquished upon expiration of the term attached to it. 3. It is not property and is outside the commerce of manIt cannot be the subject of a contract4. It is not protected by the due process clauseThere can be no vested right in a public office, which if statutory, may be changed at will or abolished by the legislature that created.It is only available to the officer in the sense that he cannot be deprived of his office without clear expression of the legislative will5. The right to hold it is not a natural rightIt exists only by virtue of a law expressly or impliedly creating it

Classification1. Constitutional/ Statutory2. National/ Local3. Legislative/ Executive/ Judicial4. Lucrative/ Honorary5. Discretionary/ Ministerial6. Appointive/ Elective7. Civil/ Military8. De Jure/ De Facto

Chapter 2- REQUIREMENTS FOR PUBLIC OFFICE

Selection for Public Office (Appointment or Election)Appointment The choice of the public functionaries is made by the particular

officer designated by the Constitution or by the law. The power of appointment is by nature executive and is vested by

the Constitution in the President. The power of appointment being discretionary in nature, may

essentially not be delegated. This power is not exclusively presidential. It may be excercised by

the SC & the Consti Commissions over their respective personnel When excercised by the President, the appointing power requires

concurrence by the legislature in view of the COA. Limitations on President’s power of appointment: - He cannot appoint his spouse and relatives by cosanguinity or

affinity within the 4th civil degree;- He cannot make appointments within 2 months immediately

before the next presidential elections and up to the end of his term, the exception being temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

- His appointees muss possess the required qualificationsin an appropriate judicial proceedings. The question presented in this case will be justiciable as what is being faulted is not the discretion of the executive but the failure of his appointees to comply with the legal requirements.

- Where a prospective vacancy will occur after the appointing authority’s term, he cannot fill it in advance during his term as this would be an illegal pre-emption of the powers of his successor.

- The appointment must be in writing, embodied in what is known as the commission, which is the best evidence of the appointment. However, it is acceptance by the appointee is needed to make the appointment complete.

- Only recognized instance when an individual can be compelled to accept an appointive office is in connection with defense of State.

It is distinguished from designation which is the mere imposition of new duties on the officer to be performed by him in a special manner

Designation does not entitle the person designated to security of tenure as he occupies the position only in an acting capacity.

Under the Consti, the President is authorized to appoint the ff:1. Heads of executive departments2. Ambassadors, other public ministers and consuks3. Officers of the armed forces4. Officers whose appointments are vested in him by the Consti5. Officers of the govt

whose appointments are not provided for by law6. Those whom he may be authorized by law to appoint

Election Such choice is made by the enfranchised citizenry through the

excercise of their suffrages

Vacancies An office may be filled by these methods only if it is vacant. A vacancy exists when there is no person lawfully authorized to

assume and excercise at present the duties of the office. It may be1. Original- when an office is created & no one has yet been chosen to fill it2. Constructive-when the incument officer has no legal right to the office (such as a de facto officer) & may be legally replaced by another3. Accidental-when the incumbent is separated by any mode other than expiration of the term, like resignation, death, removal or abandonment4. Absolute-when the term of the incumbent having expired, no successor has legally qualified to replace him.

Qualification as an Endowment Usual qualifications: age, citizenship, suffrage, literacy, residence,

academic & moral qualifications


Property qualifications may not be imposed for the excercise of the right to run for public office

1. Disqualification Lack of disqualification is itself a qualification. Even if a person may

have the prescribed qualifications for a public office, he will still be ineligible if he is laboring under a disqualification.

2. Who may prescribe qualifications Qualifications may be prescribed by the Consti or statute, and may

not be changed by private agreement Where the Consti itself creates or provides for their creation but

prescribes no qualifications, the legislature may repair the omission and supply the qualifications itself

3. Scope of Qualificationsa. The leg may not reduce or increase the qualifications prescribed

in an exclusive manner by the Constib. The leg may prescribe only general qualificationsc. The qualifications must be relevant to the office for which they

are prescribed.

4. Duration of Qualifications The prescribed qualifications should be possessed at the earliest on

the date indicated by the Constitution of the law. Qualifications are continuing requirements and so must be

possessed not only on the date of selection or assumption but for the full duration of the officer’s incumbency.

Eligibility to an office should be construed as of a continuing nature and must exist at the commencement of the term and during occupancy of the office.

The moment any of such qualifications is lost during the tenure, the right to the office is also automatically forfeited.

Qualification as an Act It is an act by which the public functionary formally commences the

discharge of his official duties. This is effected by the taking of an oath or the filing of a bond, or

both in the case of certain officers. Accountable officers are required to be properly bonded in

accordance with law. They are those whose duties permit or require the possession or custody of government funds or properties and who shall be accountable therefor and for the safekeeping thereof in accordance with law.

Failure to Qualify Mere delay in qualifying does not result in automatice forfeiture of

the office. Such delay only empowers the superior authorities to prevent entry into the office at a later time on the ground that the same has been abandoned.

The statutes however, are generally construed to be directory merely and not mandatory.

It is different however, where the law requires qualification within a specified time and adds that failure to qualify during that period will result in automatic loss of the right to the office. This consequence will follow whatever the reason for the delay, even if such reason is tenable.

Chapter 3- DE FACTO OFFICERS

De jure officer- is one who has lawful title to the office but has not been able to take possession of it or has been ousted therefrom.-has title

De facto officer- is one who actually possesses the office although he has an imperfect or only colorable title thereto.-has neither title nor color of title-may ripen into an officer de jure, where he repairs his ommission and takes the required oath or posts the needed bond

Requisites of De Facto Officership1. There must be a de jure office There can be no de facto officer where there is no de jure office,

although there may be a de facto officer in a de jure office2. There must be color of right

or general acquiescence by the public Color of title is derived from reputation or acquiescence or from an

invalid appointment or election If a person appointed to an office is subsequently declared

ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer. Or if being qualified for the office, he was appointed thereto by one who did not have the power of appointment, the appointment will nonetheless provide him with color of title and confer upon him de facto standing.

As long as the defect in the appointment or election is unknown to the public, the occupant of the office will have color of title and can be considered a de facto officer.

3. There must be actual physical possession of the office in good faith

The office must be actually held by the de facto officer if his acts are to affect the public and third persons.

Any person who professes to act officially but does not occupy a public office cannot be considered an officer de facto and his acts are absolutely void.

Effects of Acts of De Facto Officers The lawful acts of an officer de facto, so far as the rights of third

persons are concerned, are if done within the scope and by apparent authority of the office, considered as valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof.

The de facto officer cannot benefit from his own status because public officer demands that unlawful assumption of public office be discouraged.

Thus, as a general rule, the de facto officer cannot claim a salary and other compensation for services rendered by him as such. If he has already collected such salary, he may in fact be required to pay it back to the de jure officer upon recognition of the latter’s title.

There is authority to the effect tthat the de facto officer may retain salaries collected by him for services rendered in good faith where there is no de jure officer claiming the office.

The de facto officer is subject to the same liabilities imposed on the dure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office.

The rule is that, having assumed the office, he is estopped from denying that he is legally chargeable with its due performance

Challenge to a De Facto Officer The incumbency of the de facto officer may not be challenged

collaterally or in action to which he is not a party but in a direct proceeding where title to the office will be the principal issue.

The authorized proceeding is quo warranto, which is an action that may be brought against a person who usurps, intrudes into or unlawfully holds or excercises a public office by the Solicitor General in the name of the Republic.


Laurel vs. DesiertoVice President Laurel was named as the chairman of the National Centennial Committee (NCC) and by virtue of his being the chairman, he also became the chairman of EXPOCORP, a corporation organized to undertake the Freedom Ring Project in relation to the centennial celebration.

Later in 1999, investigation was conducted by an independent committed due to allegations of graft and corruption against Laurel as NCC and EXPOCORP chair.

The committee recommended the filing of charges by the Ombudsman upon which the Office of the Ombudsman took cognizance of the case.

Laurel then questioned the jurisdiction of the Ombudsman by filing a petition, alleging that (1) EXPOCORP was a private corporation, (2) that NCC is not a public office, and (3) that he is not a public officer as defined in the Anti-Graft and Corrupt Practices Act.

The Ombudsman has the power to investigate any malfeasance, misfeasance and nonfeasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.

However, is NCC a public office? Yes, it is a public office because it exercises 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 Laurel is a public officer.

That he did not receive compensation is of no 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 which salary, compensation or fees are attached.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a public official whether or not one receives compensation, thus: “Public Officials include 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.”

Figueroa & Flaviano vs. PeopleThe petitioners in this case were found guilty of libel, for writing in a news publication. The said articles referred to Aproniano Rivera, who was allegedly backed by city government officials in the distribution of the public market stalls in Bangkerohan, Davao City, to privileged applicants. The article also stated that Romy Miclat, a president of a meat vendors group, and his board member, Erning Garcia sold new public market stalls for P9,000 with the assurances that the buyer gets a display area ordinarily occupied by two applicants.

Denied by the CA, the petitioners sought for review before the SC, submitting that the CA erred IN HOLDING THAT PRIVATE COMPLAINANT IS NOT A PUBLIC OFFICER, HENCE THE PUBLISHED ARTICLE CANNOT BE CONSIDERED TO BE WITHIN THE PURVIEW OF PRIVILEGED COMMUNICATION;

Petitioners invoke one of the exceptions to the legal presumption of the malicious nature of every defamatory imputation Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Rivera is not a public officer or employee but a private citizen. Hence, the published article cannot be considered as falling within the ambit of privileged communication within the context of the above-quoted provision of the Penal Code. A public office is the right, authority and duty, created and conferred by law, by which 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 most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involve a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer Clearly, Rivera cannot be considered a public officer. Being a member of the market committee did not vest upon him any sovereign function of the government, be it legislative, executive or judicial. As reasoned out by the CA, the operation of a public market is not a governmental function but merely an activity undertaken by the city in its private proprietary capacity. Furthermore, Rivera's membership in the market committee was in representation of the association of market vendors, a non-governmental organization belonging to the private sector.

Azarcon vs. SandiganbayanAlfredo Azarcon owned and operated a hauling business. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former’s premises.

A Warrant of Distraint of Personal Property was issued by the BIR the distraint of personal property of Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer.

The Warrant of Garnishment was issued to Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla.

Azarcon, in signing the “Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue,” assumed the undertakings specified in

Article 223 of the RPC defines a public officer as “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, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes”.

Azarcon obviously may not be deemed authorized by popular election. Neither can his designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. While it is true that Sec. 206 of the NIRC, as pointed out by the


the receipt.

Subsequently, however, Ancla took out the distrained truck from Azarcon’s custody. For this reason, Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code.

Can Azarcon be considered a public officer by reason of his being designated by the BIR as a depositary of distrained property?

prosecution, authorizes the BIR to effect a constructive distraint by requiring “any person” to preserve a distrained property there is no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR’s power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. The charge against Azarcon should forthwith be dismissed.

RTC Makati vs. DumlaoRespondent Atty. Dumlao, then Branch Clerk of Court of the Makati RTC, was charged by the RTC Makati Movement against Graft & Corruption for allegedly engaging in usurious activities, immorality and violation of the Anti-Graft & Corrupt Practices Act. The complaint alleged that Respondent withheld the salary checks of all RTC Makati employees to compel them to borrow money from him at usurious rates, as evidenced by Trust Agreements. The amounts loaned are collected through his alleged paramour, a clerk employed at the Cash Section of the Office. Respondent was also charged with allegedly demanding money from party litigants and lawyers in exchange for favorable action on their cases.

Executive Judge Abad Santos made the finding that respondent had demanded commissions for the ex-parte reception of evidence, which is not allowed by the Rules of Court. He also failed to prepare the commissioner's reports notwithstanding his having been paid at the ex-parte reception. Judge Abad also found preponderant evidence as to respondent's engaging in usurious activities.

As to the charge of dereliction of duty as Branch Clerk of Court, Dumlao reported that their court had only 2 cases pending decision for the months of April, May, and June 1993; yet the inventory submitted by Judge P. Arcangel as of 13 December 1993 shows about 120 cases were submitted for decision or with unresolved incidents some of which as early as 1983.

Based on the foregoing, Executive Judge Abad Santos recommended the dismissal of Respondent from service on grounds of grave misconduct and dishonesty prejudicial to the best interest of the service and acts unbecoming a court officer.

Public service requires utmost integrity and strictest discipline. A public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task. By the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle solemnly enshrined in the 1987 Constitution that a public office is a public trust; and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. The conduct and behavior of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of responsibility. Their conduct, at all times, must not only be characterized by propriety and decorum but, above all else, must be above suspicion.

Respondent's duties and responsibilities as branch clerk of court require that his entire time be at the disposal of the court served by him . . . to assure that full-time officers of the courts render the full-time service required by their office so that there may be no undue delay in the administration of justice and in the disposition of cases as required by the Rules of Court.

We find Respondent's failure to prepare proper or correct monthly reports of cases a serious breach of duty.

One of the basic responsibilities of a Branch Clerk of Court is the preparation of the monthly report of cases to be submitted to this Court and this time Respondent cannot feign ignorance. Reliance on the so-called Clerks-in-charge who prepare the actual reports, or particulary on their initials which allegedly indicate accuracy and veracity is insufficient and is a lazy and sloppy manner of executing one's duties and responsibilities.

This practice cannot be considered as proper supervision since Respondent in the above-mentioned procedure practically does next to nothing, his only contribution or input is his signature. Branch clerks of court must realize that their administrative functions are just as vital to the prompt and proper administration of justice. They are charged with the efficient recording, filing and management of court records, besides having administrative supervision over court personnel. They play a key role in the complement of the court and cannot be permitted to slacken on their jobs under one pretext or another. 36 They must be assiduous in performing their official duties and in supervising and managing court dockets and records.

Sevilla vs. CAMay an officer who was appointed to an office in an "acting" capacity, bring a quo warranto action against the permanent appointee to the position?

The petitioner has been in the government service since 1949. His last appointment was Assistant City Engineer of Palayan City which he discharged until he was designated Acting City Engineer of Cabanatuan City by President Marcos on May 2, 1981. He discharged such functions until "People Power" and the EDSA Revolution intervened.

The advent of that period spelled changes and upheavals particularly within the Career Civil Service. The OIC Mayor of Cabanatuan City, Cesar Vergara, appointed Santos as city engineer, the position of which the latter assumed on August 28, 1986. A memoranda was sent to him but since he was on leave, this was received on his behalf by the administrative officer of the DPWH Office of Cabanatuan City, where Sevilla also holds

An "acting" appointment is merely temporary, one which is good only until another appointment is made to take its place. Hence, petitioner's right to hold office as "Acting City Engineer of Cabanatuan City" was merely temporary. It lapsed upon the appointment of Nerito Santos as the permanent city engineer.

Petitioner was the incumbent city engineer of Palayan City when he was designated as Acting City Engineering of Cabanatuan City. There is a difference between an appointment and a designation. Appointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Designation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election. A mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an "acting" capacity only. It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. . . Appointment involves the exercise of discretion, which because of its nature cannot be delegated."


office.

A few months later, Sevilla was designated by the Minister of the MPWH as acting district engineer of Pasay City. Sevilla served in that capacity until he was removed from that office of the new Secretary of the DPWH in February 1987.

Sevilla then returned to Cabanatuan City. He he filed a petition for quo warranto against Santos. He argued that, being the presidential appointee, he could not be removed from office by an OIC mayor.

Sevilla was reinstated, with right of payment of vacation and sick leaves from his absence.

The CA dismissed the petition, ruling that by accepting another office. Sevilla in effect voluntarily surrendered his former office, and was thereby precluded from maintaining a quo warranto action against Santos. When he accepted the position in Pasay City, he lost his right to the position in Cabanatuan City. The Court ruled that Santos' appointment was valid because it as confirmed by the Ministry of Public Works and Highways.

Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City merely imposed upon him the additional function of the City Engineer of Cabanatuan City on top of his regular duties as City Engineer of Palayan City. He may claim security of tenure as City Engineer of Palayan City but he may not lay such a claim to the position of City Engineering of Cabanatuan City for he holds no appointment to the latter office.

The power of appointment is essentially discretionary. Its exercise may not be controlled by the courts. The choice of an appointee from among qualified candidates or applicants is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of office concerned for he is familiar with the organizational structure and environmental circumstances within which the appointee must function.

The appointing authority in this particular case is the Mayor of Cabanatuan City according to the LGC. The appointment of Santos by OIC City Mayor Vergara was valid and binding for it was confirmed by the Minister of Public Works and Highways, and approved by the Civil Service Commission.

An action for quo warranto may be commenced by "a person claiming to be entitled to a public office or position usurpred or unlawfully held or exercised by another" Inasmuch as the petitioner does not aver that he is entitled to the office of City Engineer of Cabanatuan City and that Nerito L. Santos is a mere usurper of said office, the CA committed no reversible error in dismissing petitioner's action for quo warranto.

Petitioner's ouster upon, and by virtue of, Santos' appointment as City Engineer of Cabanatuan City, was not illegal for the petitioner's right to discharge the functions of Acting City Engineer of Cabanatuan City was extinguished when a permanent appointment to the same office was made in favor of the private respondent, Engineer Nerito L. Santos.

Arimao vs. TaherPetitioner was appointed as Director II, Bureau of Non-formal Education, DECS-ARMM.. Thereafter, respondent was appointed Education Supervisor II. Petitioner’s appointment was eventually disapproved by the Civil Service Commission, for failure to meet the experience required for the position. It then ordered petitioner to be reverted to her former position of Education Supervisor II.

The TESDA-ARMM allowed that she and respondent are reporting to the same position. In the interim, petitioner applied for and was granted by the DECS-ARMM an academic scholarship to a period of one year with pay.

However, after the expiration of her study leave, she failed to report to his office so Secretary of ARMM declared he to have been Absent Without Leave (AWOL) and directed that she be dropped from the payroll.

However, ARMM Governor ordered her reinstatement. Respondent then filed petition for prohibition against the governor.

WON the AWOL order against petitioner validated

While respondent’s appointment to the position of Education Supervisor II was approved as permanent and completed, it was nonetheless made subject to the outcome of the protest filed against petitioner’s appointment.

As of the finality of the denial of the petition, both were reverted to their former positions. Petitioner should have been allowed to re-assume her position of Education Supervisor II, and thereafter remain in the said office until she was dropped from the rolls in 1999. Respondent, in turn, should have been made to return to her former position.

So, respondent's tenure ended when petitioner was reverted to the same position. Thus, during respondent’s occupancy of the position of Education Supervisor II after petitioner’s promotional appointment had been disapproved, respondent should be deemed a de facto officer only.

A de facto officer is "one who has the reputation of being the officer he assumes and yet is not a good officer in point of law." He is one who is in possession of the office and discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.

The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the other on reputation.

A rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure.

In the instant case, respondent should account to petitioner for the salaries she received from the time the disapproval of petitioner’s promotion became final, up to the time when petitioner was declared on AWOL and dropped from the rolls. However, respondent may be allowed to keep the emoluments she received during said period, there being no de jure officer at the time,.

In cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office.

There is no question that respondent discharged the duties of Education Supervisor II from the time she was appointed to the position and even after her appointment was invalidated as a result of the invalidation of petitioner’s promotional appointment. In view of the services respondent rendered to the TESDA and the people of the ARMM, it would be iniquitous to deny her the salary appertaining to the position corresponding to the period of her service.

However, respondent cannot continue her unauthorized occupancy, notwithstanding the fact that the position of Education Supervisor II has been vacant since 1999. Absent any showing that she has been reappointed to the position after petitioner was declared AWOL and dropped from the rolls, respondent cannot lay a valid claim thereto.


respondent’s occupancy of the position of Education Supervisor II.

Respondent is ordered to VACATE the position of Education Supervisor II, TESDA-ARMM, and turn over to petitioner the emoluments she received for the position from 17 October 1998 to 17 March 1999.

Civil Service Commission vs. Felicisimo JosonRespondent Felicisimo O. Joson, Jr., then Administrator of the (POEA) appointed Priscilla Ong as Executive Assistant IV in his office under a contractual status. The appointment was made after the Department of Budget and Management approved his request for the creation of the position for the period of July to October 1995.

Subsequently, respondent Joson wrote the CSC requesting exemption from the rule requiring appointees to confidential staff positions to meet the prescribed educational qualification. The educational requirement for the position of Executive Assistant is a "Bachelor’s degree relevant to the job"4 and Priscilla Ong was not a college degree holder.

On Nov 1995, CSC approved Ong's appointmentunder a Coterminous Temporary status:

However, the Director of the CSC NCR instructed that, the effectivity of Ong’s appointment was changed to November 1995. Considering the said adjustment in the effectivity date of Ong’s appointment, the respondent then requested approval for the payment of her salary for services rendered for the period of July to October 1995.

The petitioner denied the request for the payment of Ong’s salary in view of the Attrition Law which, in part, states that no appointment shall be made to fill up a vacancy unless an authority has been granted by it. It posited that the authority to fill the position was granted only on November 2, 1995 . The request for the payment of salary referred to the period prior to the date of authority to fill the position; such claim cannot, therefore, be allowed. The petitioner concluded that, as the appointing authority, it is the respondent who shall be personally liable for the payment of salaries.

The respondent moved to reconsider, averring that Ong was appointed to a newly-created position which does not require any such authority from the petitioner. He noted that the DBM approved the creation of the position for Ong. He asserted that, if at all, it is the POEA who should be liable under the principle of quantum meruit since the latter was the one benefited. Thus:

The principle of quantum meruit dictates that not only is the one who rendered services who should paid (sic) but equally important, is that the one benefited from such services must be the one who should pay the services.

This motion was denied. It also declared that Ong’s appointment was not included in the POEA’s Report on Personnel Action (ROPA) submitted to the petitioner for the month of July 1995. Petitioner also held that the POEA only submitted Ong’s appointment in its ROPA for the month of November 1995. Such belated report rendered the appointment in July ineffective. So there was clearly no legal basis for the payment of Ong’s salary prior to November 2, 1995, and that the principle of quantum meruit invoked by the respondent was not applicable.

The respondent asserted that the POEA’s alleged failure to include the proposed appointment of Ong in its July 1995 ROPA was justified because Ong’s appointment was still the subject of a request for exemption from the requirement. The respondent received the approval of Ong’s appointment under a coterminous temporary status only on November 5, 1995; hence, the appointment was included only in the November ROPA. The respondent pointed out that the task and duty of preparing and submitting the monthly ROPA lies with the officials of the Personnel Department of the POEA.

The petitioner denied the motion holding thatrespondent as the appointing authority, was accountable for all the appointments he issued; he cannot, thus, hide behind the mistakes of his subordinates.

The respondent appealed the CSC resolutions to the Court of Appeals which ruled in his favor. Ong was considered a de facto officer, entitled to the payment of her salary. Thus this petition.

The task of the petitioner is to insure that the appointee has all the qualifications for the position; otherwise it disapproves the appointment. In this case, the petitioner approved the appointment of Ong under a coterminous temporary status; coterminous, because the appointment shall only be during the tenure of the appointing power; and temporary, because the appointee did not meet all the requirements for the position. As such, the appointment could be recalled anytime. The petitioner took into account the fact that Ong had 65 units credited to her leading to a four-year course in Bachelor of Science in Business Administration, and that she just needed 61 units more to complete the same.

Under Section 4, Rule V of the Omnibus Rules, Ong’s appointment is in order, viz:

Except as otherwise provided herein, a person who meets all the requirements of the position including the appropriate civil service eligibility shall be appointed to a position in the first and second levels. However, when the immediate filling of a vacancy becomes necessary, taking into account the public interest, and a person with an appropriate civil service eligibility is not actually and immediately available, a person without the appropriate civil service eligibility but who meets the other requirements of the position may be appointed. His appointment shall be temporary for a period of not more than twelve (12) months and he may be replaced at any time with one who has an appropriate civil service eligibility.

In approving the appointment of Ong, the petitioner took into account the exigency and urgency of filling up the position of Executive Assistant, as embodied in the letter of the respondent for exemption from MC No. 38.

With the foregoing, it can not be said that for want of a college degree as required, Ong’s appointment was in contravention of the CSC Law and its rules. While it is conceded that the respondent intended the appointment of Ong to be contractual only, the petitioner approved the same, under a Coterminous-Temporary status. The appointment of Ong on July 1, 1995, is, therefore, valid.

We reject the petitioner’s contention that Ong’s appointment was invalid since the respondent appointed her to the position without first securing an "authority to fill" as mandated by RA 7430.

But even a cursory reading of Section 3 of Rep. Act No. 7430 will readily show that it applies only to appointments to fill vacant position in a government office as a result of resignation, retirement, dismissal, death, or transfer to another office of an officer or employee within five years from the approval of the law.

The appointment of Ong to the position is not covered by Rep. Act No. 7430 because Ong was appointed to a newly-created position as part of the confidential/personal staff of the respondent.

Having been validly appointed to the position, Ong is a de jure officer and not a de facto officer as held by the Court of Appeals. "One who has the reputation of being the officer he assumes and yet is not a good officer in point of law." A de facto officer is one who is in possession of the office and discharging its duties under color of authority By color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer. The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the other is what is thought of him." It is the color of authority, not the color of title that distinguishes an officer de facto from a usurper. Being a de jure officer, Ong is entitled to receive all the salaries and emoluments pertaining to the position.


WON ONG IS ENTITLED TO PAYMENT OF HER SALARIES FROM THE GOVERNMENT FOR BEING A DE FACTO OFFICER.

The petitioner maintains that Ong cannot be entitled to the payment of salary prior to November 2, 1995 because of the following: (a) Ong did not possess the necessary qualification for the position; (b) her appointment was made in violation of the Civil Service Law and its rules; (c) there was no prior authority to appoint; and, (d) the appointment was not reported in the July ROPA, making such appointment ineffective.

An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once, without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance.

public officers, chapters 1-3 + case digests.doc

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