Removal is the ouster of an incumbent before the expiration of his term. The office exists after the ouster. It is synonymous to dismissal.
Constructive removal is removal induced by making continued employment impossible, unreasonable, or unlikely.
Certain personnel actions (e.g. transfer, demotion, reassignment), if done in bad faith, without just cause, or in violation of security of tenure, amount to removal.
o Transfer or reassignment with no definite period or duration and resulting in a reduction in rank, status, or salary, is a constructive removal.
The power to remove and the power to appoint are usually lodged in the same authority.
Power to remove is inherent in the power to appoint. According to Mechem, this rule is applicable where the term of the office is not fixed by law and no other provision is made for the removal of the officer.
If the term is fixed, appointee enjoys security of tenure for the duration of term, i.e., may only be removed for cause.
Permanent appointees under the Civil Service may only be removed for cause and with notice and hearing.
Power to remove may be absolute or conditional. o Absolute when the authority has
unlimited discretion exercisable at such time and for such reasons as the authority may deem sufficient.
o Conditional when the time, manner, or reason for removal is beyond the mere discretion of the authority.
In Whom Vested
Statutes creating public offices usually also provide for the power of removal. Where an office is created by statute, it is wholly within the power of Congress and this extends to regulation of removals.
If the Constitution exclusively prescribes the means and causes for removal, Congress has no power to prescribe rules for removal.
The Constitution may vest in Congress general authority over the subject of removal of public officers, except impeachable officers.
Presidential Power of Removal
Not expressly vested, but implied from constitutional provisions:
o President’s power to appoint (supra), thus even career officers appointed by the President are under the direct disciplining authority of the President (Larin v. Executive Secretary)
o Executive power (Art. VII, Sec. 1) o The faithful execution clause (Art. VII,
Secs. 1 & 5)
o Presidential control of the departments, bureaus, and offices (Art. VII, Sec. 17) o Art. IX-B, Sec. 2(3)
Presidential power of removal WRT certain classes of officers
Executive officers with no fixed term, e.g., Cabinet secretaries
With or without cause, not subject to Congressional regulation
D2016 | Public Officers | Prof. G. Dizon-Reyes 84 legislative officers by law
Constitutional officers and judges
Cannot be removed Members of the Civil
Service
Only for cause as provided by law
Temporary, provisional, or acting appointees
At the President’s pleasure, with or without cause
Office-holders at the pleasure of the President
Term expires upon displeasure, not really removed
Offices created by law and law authorizes President to remove at pleasure
Only for cause (see delos Santos v. Mallare)
Non-career members of the Civil Service
Co-terminous with appointing authority or subject to his pleasure Local elective officials President may remove,
subject to LGC and implementing rules
Grounds for Removal/Sanction Members of Congress
Constitution, Art. VI, Section 16(3). Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.
President, Vice-President, SC Justices, Constitutional Commissioners and Ombudsman Constitution, Art. XI, Section 2. The President, the Vice- President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
Members of the Judiciary
Constitution, Art. VIII, Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
o As regards lower court judges, SC determination of deviation from behavioral norms is conclusive since it
alone has the power to order their dismissal.
Under the Local Government Code
LGC, Section 60. Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order of the proper court.
Under the Civil Service Law
Civil Service Law, Section 46. Discipline: General Provisions. –
(b) The following shall be grounds for disciplinary action: (1) Dishonesty;
(2) Oppression; (3) Neglect of duty; (4) Misconduct;
(5) Disgraceful and immoral conduct; (6) Being notoriously undesirable;
(7) Discourtesy in the course of official duties;
(8) Inefficiency and incompetence in the performance of official duties;
(9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in
connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving favor or better treatment than that accorded other persons, or committing
acts punishable under the anti-graft laws;
(10) Conviction of a crime involving moral turpitude; (11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children;
(12) Violation of existing Civil Service Law and rules or reasonable office regulations;
(13) Falsification of official document;
D2016 | Public Officers | Prof. G. Dizon-Reyes 85 reporting for duty, loafing or frequently
unauthorized absence from duty during regular office hours;
(15) Habitual drunkenness; (16) Gambling prohibited by law;
(17) Refusal to perform official duty or render overtime service;
(18) Disgraceful, immoral or dishonest conduct prior to entering the service;
(19) Physical or mental incapacity or disability due to immoral or vicious habits;
(20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers;
(21) Lending money at usurious rates or interest;
(22) Willful failure to pay just debts or willful failure to pay taxes due to the government;
(23) Contracting loans of money or other property from persons with whom the office of the employee
concerned has business relations;
(24) Pursuit of private business, vocation or profession without the permission required by Civil
Service rules and regulations; (25) Insubordination;
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office;
(27) Conduct prejudicial to the best interest of the service;
(28) Lobbying for personal interest or gain in legislative halls and offices without authority;
(29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable
or public welfare purposes and even in the latter cases if there is no prior authority;
(30) Nepotism as defined in Section 60 of this Title. Violations of RA 3019 are also grounds for
removal or disciplinary action. Aquino v. CSC, supra
SUMMARY: Aquino who was then holding the position of
Clerk II, Division of City Schools of San Pablo City, was designated as OIC of the Division Supply Office in view of the retirement of the Supply Officer I by the DECS Reg. Director. Later on, Dela Paz was extended a promotional appointment to the same position by the Division Superintendent of City Schools of San Pablo City. Prior to her appointment, she was holding the position of Clerk II, Division of City Schools and was designated as Assistant to the Supply Officer. CSC Regional Office approved her appointment provided that there is no pending administrative case against her, no pending protest against the appointment; nor any decision by competent authority that will adversely affect the approval of her appointment. Aquino filed a protest
with the DECS Secretary and was thus appointed to the position on the ground that Aquino has advantage over Dela Paz in terms of education, experience and training and that the latter has no relevant in-service training course attended and completed. Dela Paz appealed to the MSPB who upheld the appointment of Dela Paz. However, the CSC, reversed and found such appeal meritorious. The Court held that the CSC did not err in revoking Aquino’s appointment since Dela Paz already acquired the right to security of tenure. The Luego doctrine does not apply in this case.
Fabella v. CA (1997)
SUMMARY: Mandaluyong High teachers were
administratively charged for going on strike. A committee was formed to investigate. The teachers sued to enjoin the committee from investigating them because: its guidelines were unclear; the burden of proof was shifted to the teachers; and teachers’ groups were not represented in the committee. Later, they changed their suit to certiorari to assail the findings of the committee after it recommended their dismissal. RTC dismissed the case but SC reversed. After trial, RTC ruled for the teachers and ordered their reinstatement. CA affirmed the RTC. DECS appealed to the SC, which held that the RTC and the CA were correct in holding that the investigating committee was improperly constituted. Without the teachers’ organization representative, the teachers were denied administrative due process and the proceedings were void. The power of the DECS Secretary and Regional Directors to investigate and discipline teachers must be exercised through the committees created under the Magna Carta for Public School Teachers.
DOCTRINE: RA 4670 governs administrative
proceedings against public school teachers. Under that law, representation of teachers’ organizations in disciplinary committees is indispensable to ensure an impartial tribunal. It is this requirement that gives substance and meaning to the right to be heard, which is the essence of procedural due process; as embodied in the basic requirement of notice and a real opportunity to be heard. The choice of representative must come from the teachers’ organizations themselves, who, under the law, have the right to choose their representatives for the disciplinary committee.
Aguinaldo v. Santos (1992)
SUMMARY: Governor Aguinaldo’s removal from office
was ordered after the Secretary of Local Government found him guilty of acts of disloyalty to the Republic in relation to the failed December 1989 coup ‘d’état. This did not stop him from filing his COC for the position of Governor in the upcoming 1992 elections, however. He eventually won the election. This petition was filed
D2016 | Public Officers | Prof. G. Dizon-Reyes 86 before Aguinaldo was proclaimed Governor, and against
the decision of the Secretary dismissing him as Governor of Cagayan. SC declared the petition moot and academic because of Aguinaldo’s win in the 1992 elections. Should the SC remove the duly elected public officer from office due to acts prior to his/her present term, this would be tantamount to depriving the people of their right to elect their officers. The people are assumed to have known of the official’s life and character, and that they have disregarded or forgiven his fault or misconduct.
DOCTRINE: A public official cannot be removed for
administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor.
UPDATE: In Carpio Morales v. CA (11/10/2015), SC abandoned the condonation doctrine. It also struck down Sec. 14 of the Ombudsman Law providing for the non- injunctibility of the Ombudsman’s investigations.
Salalima v. Guingona, Jr. (1996)
SUMMARY: Tiwi Mayor Coral filed an admin complaint
against Albay Governor Salalima and other provincial officials for various violations of the LGC (pars c and d of S 60). The Office of the President (OP) issued an AO creating an Ad Hoc Investigating Committee, which found Salalima et al. guilty of violating the LGC. SC affirmed the OP, stating that the suspension of Mayor Coral was tainted with arbitrariness and constitutes abuse of authority, but Salalima cannot be held liable administratively for certain acts done during the previous term (Court applied the Aguinaldo doctrine).
DOCTRINE: LGC 66(b) sets the limits to the penalty of
suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code.
Gloria v. CA (1999)
SUMMARY: Strikes and walk-outs were staged by
public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in Manila Public School Teachers Association v. Laguio. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave.
DOCTRINE: Employees are entitled to compensation for
the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation is not a penalty but only means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed.
SECS v. CA (2000)
SUMMARY: Petitioners are public school teachers from
various schools in the NCR who incurred unauthorized absences in connection with their then on-going mass action. DECS Sec. Carino issued a Memorandum ordering them to return to work under the pain of dismissal. Said Memorandum was ignored, prompting the Secretary to lodge administrative complaints against them for grave misconduct, gross neglect of duty, violation of the Civil Service law and rules and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the public interest, and absence without leave.
DOCTRINE: When the teachers have given cause for
their suspension - i.e., the unjustified abandonment of classes to the prejudice of their students-they were not fully innocent of the charges against them although they were eventually found guilty only of conduct prejudicial to the best interest of the service and not grave misconduct or other offenses warranting their dismissal from service; 'being found liable for a lesser offense in not equivalent to exoneration.
Hagad v. Gozo-Dadole (1995)
SUMMARY: A criminal and an administrative complaint
were filed with the office of Deputy Ombudsman Hagad, against Mandaue Mayor Ouano and other officials for violation of RA 3019, RPC, and RA 6713. Ouano et al moved to dismiss the administrative complaint, on the ground that the Ombudsman was bereft of jurisdiction since, under Section 63 of the LGC, the power to investigate and impose administrative sanctions, as well as to effect their preventive suspension, had now been vested with OP. Hagad denied this MTD and preventively suspended Ouano et al. SC HELD that: 1) There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act; 2) The 60-month
and 60-day preventive suspension under
Ombudsman Act and LGC respectively, govern differently; 3) There is no need for hearing before
preventive suspension; and 4) Ouano et al should have filed a petition for certiorari with SC, not prohibition with RTC.
D2016 | Public Officers | Prof. G. Dizon-Reyes 87
DOCTRINE: In order to justify the preventive suspension
of a public official under Section 24 of RA 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.
Sangguniang Barangay v. Martinez (2008)
SUMMARY: The kagawads of Bgy. Don Mariano
Marcos charged P/B Martinez before the Sangguniang Bayan of Bayombong with misconduct, dishonesty, and graft for pocketing money from junkets and garbage recycling projects. SBayan found him guilty and ordered his removal. The mayor admitted that SBayan cannot order Martinez’ removal but did nothing about it, so Martinez went to court. RTC invalidated the SBayan order. The kagawads appealed to the SC, to no avail.
HELD: LGC 60 and jurisprudence evince the intent to
place in the courts the exclusive jurisdiction to decree the removal of elective local officials, to ensure that they would not be removed by a body as highly politicized and capricious as the Sanggunians. This does not violate the separation of powers, since the courts have a constitutional duty to ascertain if the other branches committed grave abuse of discretion. The direct resort to the court was proper, because exceptions to the rule of exhaustion of administrative remedies obtain in the case at bar.
DOCTRINE: LGC 61 provides for the procedure for the
filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under LGC 60. If the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the