If resigned: voluntary renunciation, not considered as an interruption from office, limitation will apply
If suspended: interruption from office – involuntary renunciation
Q: Mayor was elected in 1988. He ran and won again on 1992 and 1995 election. But there was an election protest regarding the 1995 election. On March 1998, he was removed because of a COMELEC decision. Is he qualified to run in the 1998 election?
A: YES. He was only elected twice since he eventually lost in the election protest. In 1995, he is merely a presumptive winner. There is a failure of the two conditions (LONZANIDA VS COMELEC).
Q: X was elected Mayor in 1992 election. In 1995 and 1998 elections, he ran and won again. In December 2000, as a result of an administrative case, he was removed. He did not appeal. The administrative case becomes final. Is he qualified to run in the 2001 election?
A: NO! He is disqualified to run because of Sec. 40 of the LGC and not because of Art. X, Sec. 8.
LINGATING VS COMELEC – The administrative case must have attained finality before the disqualification to apply. If still pending appeal or certiorari, disqualification is not applicable.
Q: X was elected in 1992. In 1995 and 1998, he ran and won again. In 2000, as a result of an administrative case, he was removed but he has able to appeal seasonably. In May 2001, he filed his certificate of candidacy.
The administrative case was not yet decided. Is he qualified?
A: Yes he is qualified to run.
Q: What happens to his pending appeal?
A: It becomes moot and academic because of the Doctrine of Condonation.
The rationale for this is that when the electorate puts him back to the position, it is presumed that they did so with knowledge of his life, character and past mistakes.
SOCRATES VS COMELEC (Nov. 10, 2002, En Banc)
Hagedorn was elected as Mayor in 1992, 1995 and 1998 elections.
In the next election, he ran as governor. However, he lost. Meanwhile, the one elected as Mayor of Puerto Princesa was Socrates. Socrates‘ term
started June 30, 2001. After a year, a resolution calling for a special election was passed. On the said special election, Hagedorn filed his certificate of candidacy. His qualification was questioned.
SC: He is qualified. The three term limit is found in Art. X, Sec. 8 and reiterated in Sec. 43, par. B of LGC. WHAT IS PROHIBITED IS IMMEDIATE RE-ELECTION to the SAME OFFICE for a FOURTH CONSECUTIVE TERM. In this case there is an intervening date.
Q: What if in 2004 and 2007 he wins again, then in 2010, he wants to run again, is he qualified to run?
A: SC in the same case said that: The service of a recall term shall constitute one full term. Reason: Elected official in a recall election should know that the service of recall term shall constitute one full term. (OBITER DICTUM)
MENDOZA VS COMELEC
In 1992, Tet Garcia won as governor. In 1993, Recall election was made, Ting Roman won as governor. In 1995 and 1998 elections, Roman won again. In 2001, Roman ran again. Is he qualified to run?
SC: He is qualified. Recall term is not a full term. Looking at the Constitutinal records and the Constitution, it can be seen that they both envision continuance and uninterrupted service of term. The service of recall term should not be counted in applying the disqualification.
Q: With this ruling, has the ruling in Socrates been abandoned?
A: No. What has been abandoned in Socrates was a mere Obiter Dictum.
No actual controversy yet.
Service of recall term will not constitute one full term in applying the disqualification.
CIVIL SERVICE COMMISSION
One of the Constitutional Commissions
It is the central personnel agency of the government tasked to administer all the civil service.
COMPOSITION AND QUALIFICATION
Art. IX-B, Sec. 1(1) – The civil service shall be administered by the Civil Service Commission composed of a Chairman and 2 Commissioners who shall be a natural born citizens of the Philippines, and at the time of their appointment, at least 35 years of age, with proven capacity for public administration, and must not have been a candidates for any elective position in the elections immediately preceding their appointment.
SCOPE
Art. IX-B, sec. 2(1) – The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the government, including the GOCC with original charters.
TEST: WITH OR WITHOUT ORIGIANL CHARTERS
(1) If a GOCC was created by special law, it is with original charter - The special law creating it is the charter
- It is governed by the Civil Service law
- In case of illegal termination, it is under the jurisdiction of the regular courts
Ex: DBP, Land Bank, PCSO, PAGCOR, GSIS
(2) If a GOCC was incorporated pursuant to the General Corporation, it is without original charter
-It is nor governed by Civil Service Law
-In case of illegal termination, jurisdiction is with the Labor Arbiter or NLRC, hence governed by Labor Code.
BOY SCOUTS OF THE PHILIPPINES VS NLRC
The BSP is an instrumentality attached to DECS and no less than the President himself is the Chief Scout. No less than 7 members of the Cabinet are members of the BSP. In short, there is so much government exposure. They are governed Civil Service Laws and not the Labor Code.
CAMPOREDONDO VS NLRC
Baltazar Camparedondo was a chapter administrator of PNRC.
During a field audit, he was found short. His request for a re-audit by an independent auditor of his account was denied. Thereafter, he filed with NLRC a complaint for illegal dismissal. PNRC moved to dismiss the complaint on the ground of lack of jurisdiction over the subject matter, alleging that it is embraced within the Civil Service rules and regulations, being a GOCC with an original charter. Camporedendo questioned this contending that its charter was already amended corverting it to a public corporation.
SC: Philippine National Red Cross is a GOCC with an original charter under R.A> 95, as amended. The test to determine whether a corporation is government owned or controlled or private in nature is simple. Is it created by its own charter for the exercise of a public function or by incorporation under the general incorporation law? Those with special charters are government corporations subject to its own provisions and its employees are under the jurisdiction of CSC and are compulsory members of the GSIS.
The PNRC was not impliedly converted to a private corporation simply because its charter was amended.
KINDS OF APPOINTMENTS
1. Permanent – extended to one who possesses all the qualifications including civil service eligibility.
2. Temporary - extended to one who possesses all the qualifications but without the civil service eligibility.
The law requires publication of all vacant positions in the government. This is mandatory so that all eligible can apply.
Positions that need not be published include PRIMARILY CONFIDENTIAL POSITIONS, which are co-terminus with the appointing authority.
Duration of Temporary Appointment - one year
- but it may even be shorter
Q: X was given an extended temporary appointment to a given office. In the meantime, A took the Civil Service examination and passed. Is the appointment status of X automatically converted to permanent?
A: NO! There is a need for a new appointment.
Regular employee – used in Labor Code only, not in Civil Service
CLASSIFICATION OF __(DI Ko TALAGA MABASA, MALABO COPY KO)___IN CIVIL SERVICE
1. Career Service 2. Non-career Service
BAR Question:
What are the characteristics pf career positions as well as non-career positions?
1. Career –
a. Entrance is based on merit and fitness to be determined based on competitive examination or it is based on highly technical qualifications;
b. There is security of tenure;
c. Opportunity for advancement to a higher position.
2. Non-Career –
a. Entrance is based other than those tests of merit and fitness utilized for the career service;
b. Tenure is:
1. Limited to a period specified by law;
2. Coterminous with that of the appointing authority or subject to his pleasure; or
3. Limited to the duration of a particular project for which the purpose for employment was made.
Q: How do you classify position of members of the Sangguniang Panlalawigan?
A: Non-career. It is an elective office.
All elective officials occupy non-career positions since no examination is required to be taken and the tenure is limited to a period specified by law.
HIGHLY TECHNICAL POSITIONS
- One which requires the possession of skill or training in the supreme or superior degree
Ex: Scientist in the government service Professors in the state universities
Q: How do you classify highly technical positions?
A: Career
Q: Are engineers in the government occupy highly technical positions?
A: NO! They may possess technical skills or training but not in the supreme or superior degree, hence non-career.
PRIMARILY CONFIDENTIAL POSITIONS Q: What are their classifications?
A: Non-Career. There tenure is co-terminous with that of the appointing authority or subject to his pleasure.
DEFINITION OF PRIMARILY CONFIDENTIAL POSITIONS
It is one which denotes not only confidence in the aptitude of the appointee for the duties of the office bur primarily close intimacy which insures freedom from the intercourse without embarrassment from misgivings or betrayals of personal trust or confidential matters of state.
GRINO VS CSC
The position of a provincial attorney is both highly technical and primarily confidential position. But its predominant feature is primarily confidential. Hence, he can be removed based on loss of trust or confidence. However his staff is highly technical. He holds the position
co-terminous with the pleasure of the appointing authority. There is no removal but only expiration of term.
When pleasure becomes displeasure, the term becomes fixed and automatically expires. One who is holding a primarily confidential position, who was removed from in the ground of loss of trust and confidence cannot complain on the ground that there was a violation of his security of tenure.
PROXIMITY RULE
- This is the test to determine whether or not the position is primarily confidential or not. The distance between the positions of the appointing authority and the employee is considered.
CSC VS SALAS
Salas was an employee of PAGCOR, a GOCC with an original charter. He was a supervisor of the dealers in the casino. He was suspected in engaging in proxy betting. There was a discreet investigation conducted of his act. He was later removed on the ground of loss of trust and confidence. His defense was that he cannot be removed from office on the ground that under the Constitution, no employee of the Civil Service shall be removed except for causes provided by law. On the other hand, PAGCOR contends that under its charter, all positions are primarily confidential and hence may be removed in the ground of loss of confidence.
CSC affirmed his dismissal. On appeal, CA reversed and applied the proximity rule.
SC: Applying the proximity rule, Salas cannot be removed on the said ground. The position of Salas as a supervisor is too remote from the appointing authority, the Chairman. There are so many intermediaries between them.
The occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing
authority was the latter‘s belief that he can share a close intimacy with the occupant which ensures freedom of discussion without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of the State.
Art. IX-B sec. 2 par. 2 – Appointment in the Civil Service shall be made only according to merit and fitness to be determined as far as practicable and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination. (It has nothing to do with the classification of his position as career on non-career).
ADMINISTRATIVE DISCIPILINARY CASES
Q: Who has jurisdiction over administrative disciplinary cases?
A: Under the Civil Service Law:
ORIGINAL: CSC or head of office, agency or bureau APPEAL: CA under its expanded jurisdiction
Secretary/head of bureau-CSC-CA CSCCA
Q: Can you bring an administrative case directly with the CSC?
A: Yes. CSC has original and appellate jurisdiction. Under the Civil Service law, a complaint against a government official or employee may be filed directly to the CSC (not only to the heads of office).
Q: Under LGC, where do you file?
A: Local Chief Executive
OMBUDSMAN ACT OF 1989 (RA 6770) - the charter of the Ombudsman
- under this law, the Ombudsman has disciplinary authority overall public officers whether appointive or elective, national or local, except:
(1) Impeachable officers – Pres, VP, Members of SC, ConCon, Ombudsman (Justices of the Sandiganbayan – not included).
(2) Members of Congress (3) Members of the Judiciary
Appeal from the decision of Ombudsman in an administrative case
Under the Ombudsman Act - Directly to the Supreme Court (Remember, the Constitution provides that no law shall be passed increasing the appellate jurisdiction of the SC without its advice and concurrence.)
FABIAN VS DESIERTO
Direct appeal to the SC has been declared unconstitutional. Its enactment was in violation of Art. VI Sec. 30 of the Constitution which provides that no law shall be passed increasing the appellate jurisdiction of the SC without its advice and concurrence. The provision in the Ombudsman Act has the effect of increasing the appellate jurisdiction of the SC without its advice and concurrence.
Now, the rule is: OmbudsmanCA
GOVERNOR LITO LAPID VS CA
An administrative case was filed against Lapid by the Ombudsman.
After investigation, it was found that he was guilty. The penalty was suspension from office for one year without pay. He was able to appeal seasonably. Ombudsman Desierto wanted to execute the decision pending appeal.
SC: Under the Ombudsman Act, only the following cases are final and executory:
1. Provisional orders of the Ombudsman;
2. Decision where the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
EXCLUSIO UNIUS EST INCLUSIO ALTERIUS – The suspension against Lapid is clearly not among those enumerated as immediately executory.
The clear import of these provisions, taken together, is that all other decisions of the Office of the Ombudsman which impose penalty outside than those which are enumerated are not final and unappealable, hence not immediately executory. An appeal timely filed will suspend or stay immediate execution of the decision.
APPEALS IN ADMINISTRATIVE DISCIPLINARY CASES Q: Is appeal available in administrative disciplinary cases?
A: Depends on the penalty imposed – 1. If the penalty is:
a. demotion;
b. dismissal;
c. suspension for more than 30 days or a fine equivalent to more than 30 day salary;
Appeal is available.
2. If the penalty is:
a. suspension for not more than 30 days;
b. fine not more than 30 days salary;
c. censure;
d. reprimand;
e. admonition
Appeal will not lie; the decision is final and executory by express provision of the law.
Appeal is not a constitutional right but merely a statutory right.
Why? Not part of the Constitution
Q: X was charged administratively, she was later on exonerated. May the complainant appeal?
A: No. However, with respect to the meaning of party adversely affected, the ruling under Paredes has already been abandoned. Hence the answer now is YES.
PAREDES VS CSC
Appeal is not a constitutional right but merely a statutory right. A reading of the Civil Service Law will tend to show that appeal is available only to the party adversely affected by the decision. A further reading of the law, the party adversely affected by the decision is the respondent who was found guilty. In fact, even if he was found guilty but the penalty was suspension or fine for not more than 30 days, appeal cannot be made because the decision in such a case becomes final and executory. With more reason that if he is exonerated, no more appeal. In an administrative case, the real offended party is the government; the complainant is a mere complaining witness so that he has no personality to pursue the appeal.
Hence, party adversely affected was limited to the defendant.
CSC VS DACOYCOY
Dacoycoy was the head of a government vocational school in Samar. Two of his sons were extended permanent appointment under his administrative supervision although he was not the one who neither appointed nor recommended them. A case was filed against him for violation of the law on nepotism. CSC found him guilty. The penalty was dismissal. As the party adversely affected, he appealed to CA. CA exonerated him. If we will follow the Paredes ruling, there is no more appeal and the complainant cannot appeal because is merely a complaining witness.
SC: CSC can appeal because it was their decision that was reversed by the CA. To this extent only, CSC became the party adversely affected. By this ruling, the Paredes Doctrine, up to this extent, is abandoned. The phrase
‗party adversely affected‘ refers to the government employee against whom the administrative case is filed for the purpose of a disciplinary action which may take the form of suspension, demotion in rank or salary, etc. and not included are the cases where the penalty imposed is suspension for not more than 30 days or fine in an amount not exceeding 30 days salary.
(PAREDES VS CSC)
PREVENTIVE SUSPENSION (pending investigation)
Nature: Not a penalty. It is imposed while the case is being investigated or pending appeal. It should be distinguished from dismissal or suspension which may only be imposed upon investigation and subsequent finding of guilt.
BEJA, SR VS CA
Preventive suspension is not a penalty by itself; it is imposed only during the pendency of an administrative investigation. It is merely a measure of precaution so that the employee who is charged may be separated for obvious reasons, from the scene of his alleged misfeasance, ehilr the same is being investigated. Thus, preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec 8 (d) of PD 807. While preventive suspension may be imposed on a respondent during the investigation of the charges against him, the removal from office is a penalty which may only be meted out upon him at the termination of the investigation or the final disposition of the case.
GLORIA VS CA
Preventive suspension pending investigation is not a penalty. It is simply a means of preventing the latter from interfering or intimidating the witnesses against him.
YABOT VS OMBUDSMAN VASQUEZ
An administrative case was filed against Vice-Mayor Yabot by an American doctor. He was placed under preventive suspension for 60 days.
Yabot contends that he was already suspended and hence, can no longer be suspended again.
SC: The first suspension that was imposed was not the penalty. It is merely a preventive suspension. The second suspension was the penalty. The two suspensions are of different nature. The service of preventive suspension cannot be credited with the service of suspension as penalty.
LAYNO VS SANDIGANBAYAN
If the preventive suspension, however, becomes indefinite, so much that the term of the elective official is about to expire and his suspension is not yet lifted, in effect he was being penalized and considering that after the investigation is not yet terminated, to that extent, there was a
If the preventive suspension, however, becomes indefinite, so much that the term of the elective official is about to expire and his suspension is not yet lifted, in effect he was being penalized and considering that after the investigation is not yet terminated, to that extent, there was a