see Ortiz v. COMELEC
AmJur: Formal renunciation or relinquishment of public office
Mechem: The act of giving up an office Right to resign of public officers
At common law, the right to resign was heavily regulated in view of the public interest in government service, i.e. the public has a right to the service of all its citizens.
Mechem, citing Hoke v. Henderson: It is not true that an office is held at the will of either party. It is held at the will of both. Every man is obliged, upon a general principle, after entering upon his office, to discharge the duties of it while he continues in office, and he cannot lay it down until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged. Public officers are not legally required to finish
their term and may resign anytime, as long as they are qualified to do so and there are adequate safeguards for the protection of the public and of creditors.
D2016 | Public Officers | Prof. G. Dizon-Reyes 80 Resignation should not and cannot be used to
evade administrative sanction. It does not cause the dismissal of administrative or criminal proceedings against a public officer.
Immediate resignation after discovery of an anomalous transaction is indicative of guilt, as is flight in criminal cases (Pagano v. Nazario, Jr.). RA 3019, Sec. 12
Section 12. Termination of office. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery.
Form of resignation
If a law requires a certain form of resignation, that form must substantially complied with, e.g., resignation must be written if there is a law requiring written resignation.
If the form of resignation is not prescribed, any method indicative of the intent to resign may be used
Written resignation must be signed by the party tendering it.
Elements of resignation 1. Intent to resign 2. Act of resignation
o Application for retirement benefits or submission of unsigned resignation letter are prima facie acts of resignation o Filing of illegal dismissal case is difficult
to reconcile with voluntary resignation 3. Acceptance by proper authority (see RP v.
Singun)
o Proper authority is the one designated by statute. In the absence of designation, it must be tendered to the appointing authority or the body authorized to call an election to fill the office (for elective local officials, see LGC 82).
o SC cannot accept the resignation of a judge because this is a prerogative of President.
o Resignation tendered to the improper authority is a nullity.
o Acceptance may be manifested by formal declaration or by appointment of a successor
o Tenure of the resigned officer ends upon acceptance, NOT upon appointment of the successor.
Withdrawal of resignation
Must be made prior to acceptance, or prior to its effectivity date
A withdrawal of an application for optional retirement which is in effect an application for reappointment to the former position must be approved by the appointing official since such reappointment may no longer be possible when the vacancy has been filled up (Merino v. CSC). A prospective resignation may be a mere notice
or proposition to resign, i.e., prima facie evidence of intent to resign since possession of the office is still retained and the officer may still withdraw his resignation.
Mechem: Resignation can be withdrawn after acceptance by the authority, provided that the accepting authority consents to the withdrawal and no new rights have intervened.
Repudiation of resignation
1. Resignation is not effective – even if a successor has already been appointed - if transmitted without the officer’s consent
2. Resignation procured by fraud or duress is voidable and may be repudiated
3. Resignation made as an alternative to the filing of charges may be repudiated, since such cannot be accepted as having been given voluntarily.
Resignation under duress or fraud
If an officer resigns after it has been determined by the proper disciplining authority that he should be terminated, the resignation is not under duress, since it is not duress to threaten to do what one has the legal right or justification to do.
Resignations are presumed to be voluntary. Ortiz v. COMELEC (1988)
SUMMARY: Ortiz became COMELEC Commissioner for
a term of 1985-1992. EDSA I came and Pres. Cory called on all appointive officials to submit courtesy resignations. Ortiz and 2 other COMELEC Commissioners wrote the President manifesting that they were placing their positions in her hands. Cory accepted Ortiz’ resignation. When Ortiz applied for retirement benefits with the COMELEC, he was denied, on the ground that he was not able to complete the 20- year government service requirement under RA 1586 because he tendered courtesy resignation. SC reversed, holding that courtesy resignations must be strictly construed, and here, Ortiz’ purported resignation did not show a clear intent to relinquish his position. In the legal sense, a resignation is an act manifesting a clear intent to relinquish the position. Here Ortiz did not have such intent but merely placed his continued stay in office at the President’s discretion, so SC held that he was similar to a primarily confidential officer, whose term expires at
D2016 | Public Officers | Prof. G. Dizon-Reyes 81 the loss appointing power’s confidence. SC concluded
that, based on equity and justice, Ortiz should be deemed to have completed his term for purposes of the 20-year requirement; thus he is entitled to benefits under RA 1586.
DOCTRINE: Resignation is the act of giving up or the
act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment.
A courtesy resignation cannot properly be interpreted as a resignation in the legal sense because it is not necessarily a reflection of the public officer’s intent to surrender her position. A courtesy resignation is a manifestation of the submission to the will of the political authority and the appointing power. Therefore, courtesy resignations must be given a stringent interpretation, particularly in cases involving constitutional officials who are removable by impeachment.
Estrada v. Arroyo (2001)
SUMMARY: Estrada and his family left Malacañang. He
issued a press statement, declaring his departure for the sake of peace. He also signed a letter, saying that, invoking Section 11, Article VII of the Constitution, he finds himself unable to exercise the powers and duties of his office, and leaves the Vice-President as Acting President.
DOCTRINE: The elements of resignation are as such:
(a) there must be intent to resign; and (b) the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. Estrada did not write any formal letter of resignation, so in this case, the issue has to be determined by the totality of prior, contemporaneous, and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this test, Estrada had, as a matter of fact, resigned.
Class Notes: The use of external evidence to assess an
officer’s intent to resign, as was done in this case, goes against the concept of resignation as an act coupled with an internal intent. Case should not be extended to members of the civil service as it would have dire implications for security of tenure, i.e., resignatory intent can be attributed to an officer with no such intent, in order to oust her from office.
Republic v. Singun (2008)
SUMMARY: Singun was a Chief Trade and Industry
Development Specialist at DTI Region II office. He wanted to take a leave, but it was disapproved. He again filed an application for leave with resignation. It was allegedly accepted by Director Hipolito. Singun contends
that his resignation was invalid because it was made under duress and he was not notified of its acceptance. CSC and CA ruled in favor of Singun. SC also ruled in favor of Singun, and held that 3 requisites must be fulfilled for the resignation to be valid: 1) intention 2) act and 3) acceptance. As held by CSC and CA, the third was clearly not present in the case.
DOCTRINE: Acceptance is necessary for resignation of
a public officer to be operative and effective. Without acceptance, resignation is nothing and the officer remains in office.
Without acceptance, a resignation is not complete and is revocable unless otherwise provided.
Thus, a resignation may still be withdrawn prior to acceptance, but NOT after acceptance.
E. Acceptance of Incompatible Office
Performance of inconsistent and incompatible duties is inconsistent with the policy of the law; thus, one who accepts an incompatible office while occupying another office absolutely vacates the first office.
Rule applies even if the second office is inferior to the first office, or when the election to the second office was void, and even more so when another person has been appointed to the first office.
Statutory or constitutional ban on multiple officeholding is not a case of incompatibility but of a prohibition (Zandueta v. dela Costa). If the appointment to the latter office is void because of disqualification or ineligibility, the appointee does not forfeit his original office.
When are offices incompatible? Look into the character of the offices
o There is conflict in such duties and functions, as amounts to interference o One office is subordinate to the other o Law or Constitution declares the offices
incompatible even if there is no conflict or inconsistency
Exceptions to the rule
o When the officer cannot vacate the office by his own act, e.g., when law requires the approval of another authority before the officer can resign o Where the two offices are held under
and conferred by different governments o Officer is expressly authorized by law to
accept another office o Second office is temporary Public Interest Center v. Elma, supra
D2016 | Public Officers | Prof. G. Dizon-Reyes 82
DOCTRINE: The general rule contained in Article IX-B of
the 1987 Constitution permits an appointive official to hold more than one office only if "allowed by law or by the primary functions of his position."
There is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility.
TEST IN DETERMINING WHETHER
INCOMPATIBILITY EXISTS BET. 2 OFFICES: Whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other.
Incompatibility between two offices, is an inconsistency in the functions of the two;
NO INCOMPATIBILITY: Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other.
From the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. The offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. CAB: An incompatibility exists between the positions of the PCGG Chairman and the CPLC.
F. Abandonment of Office
Statute may declare that a mere filing of certificate of candidacy for a second office operates as abandonment (see Election Law) Once abandoned, former incumbent cannot
legally repossess the office.
Intention to abandon is the first and paramount object of inquiry. No abandonment without intent to abandon.
When is there abandonment of office 1. Clear intention to abandon office 2. Acceptance of another office
3. Concurrence of overt acts and intention 4. Failure to discharge duties or failure to
claim or resume the office
5. Acquiescence by the officer in wrongful or illegal removal
Resignation is not abandonment; but abandonment can be considered a species of resignation. Both are voluntary acts of relinquishment of office. Resignation is formal relinquishment, while abandonment is a relinquishment through non-use. Both have the
same effect, i.e., the former holder can no longer legally repossess the office.
Abandonment = intent + act (non-use). Canonizado v. Aguirre (2001)
FACTS: During the pendency of the 2000 Canonizado
case, Canonizado was appointed by Pres. Estrada as Inspector General of the Internal Affairs Service (IAS) of the PNP on 30 June 1998. He accepted such appointment and took his oath before the DILG Secretary and the President. Respondents insist that this fact should be taken judicial notice of. By accepting such position, respondents contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position.
RULING: WoN Canonizado abandoned his claim for
reinstatement. NO. Abandonment of an office is the
voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. A person holding a public office may
abandon such office by nonuser or acquiescence.
Non-user refers to a neglect to use a right or privilege or
to exercise an office. However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform.
Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office.
It is a well settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. The incompatibility contemplated is not the mere physical impossibility of one person's performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other.
However, the rule on incompatibility of duties will not apply to the case at bar because at no point did
D2016 | Public Officers | Prof. G. Dizon-Reyes 83 Canonizado discharge the functions of the two offices
simultaneously, but before Canonizado can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP.