Under the PROXIMITY RULE, 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 intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote
from that of the appointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19,
1997)
207. Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative charges?
Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that “the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office” and not included are “cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary” (Paredes v.
Civil Service Commission, 192 SCRA 84, 85) or “when respondent is
exonerated of the charges, there is no occasion for appeal.” (Mendez v.
Civil Service Commission, 204 SCRA 965, 968) In other words, we
overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges” enunciated in Paredes v. Civil Service
965); Magpale v. Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999,
En Banc [Pardo])
208. What is preventive suspension? Discuss its nature.
Held: Imposed during the pendency of an administrative
investigation, preventive suspension is not a penalty in itself. 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 while 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 P.D. No. 807. While
the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case.
(Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])
209. Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employee placed under preventive suspension be entitled to compensation?
Held: There are TWO KINDS OF PREVENTIVE SUSPENSION of civil
service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension
pending appeal if the penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the respondent is exonerated
(Section 47, par. 4, Civil Service Law, EO No. 292).
Preventive suspension pending investigation is not a penalty. It
is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of
1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted.
But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a 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. Hence, he should be reinstated with full pay for the period of the suspension.
(Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])
210. What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?
Held: 1. 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. The foregoing rule, however, finds NO APPLICATION TO
CRIMINAL CASES pending against petitioner .
(Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])
2. A reelected local official may not be held administratively
accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.
(Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])
211. What are the situations covered by the law on nepotism?
Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority ;
b) recommending authority ;
c) chief of the bureau or office ; and
d) person exercising immediate supervision over the appointee .
Clearly, there are four situations covered. In the last two
mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.
(CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])
212. Distinguish “term” of office from “tenure” of the incumbent.
Held: In the law of public officers, there is a settled
distinction between “term” and “tenure.” “[T]he term of an office must be distinguished from the tenure of the incumbent. The TERM means the
time during which the officer MAY CLAIM TO HOLD OFFICE AS OF RIGHT , and
fixes the interval after which the several incumbents shall succeed one another. The TENURE represents the term during which the incumbent
ACTUALLY holds the office . The term of office is not affected by the
hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.” (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])
213. Discuss the operation of the rotational plan insofar as the term of office of the Chairman and Members of the Constitutional Commissions is concerned.
Held: In Republic v. Imperial (96 Phil. 770 [1955]), we said
that “the operation of the rotational plan requires two conditions,
both indispensable to its workability: (1) that the terms of the first
three (3) Commissioners should start on a common date , and (2) that any
vacancy due to death, resignation or disability before the expiration
of the term should only be filled only for the unexpired balance of the
term.”
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must
start on a common date, irrespective of the variations in the dates of appointments and qualifications of the appointees, in order that the
expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms.
Applying the foregoing conditions x x x, we rule that the appropriate starting point of the terms of office of the first
appointees to the Constitutional Commissions under the 1987 Constitution must be on February 2, 1987, the date of the adoption of
the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the
latter. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En
Banc [Pardo])
214. What is the hold-over doctrine? What is its purpose?
Held: 1. The concept of holdover when applied to a public
officer implies that the office has a fixed term and the incumbent is
holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law.
Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same.
Indeed, the law abhors a vacuum in public offices, and courts
generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions.
(Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2nd Div. [Bellosillo])
2. The rule is settled that unless “holding over be expressly or
impliedly prohibited, the incumbent may continue to hold over until someone else is elected and qualified to assume the office.” This rule is demanded by the “most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.” Otherwise stated, the
purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. (Galarosa v.
Valencia, 227 SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])
215. What is RESIGNATION? What are the requisites of a valid resignation?
Held: 1. It 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. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper
authority. The last one is required by reason of Article 238 of the
Revised Penal Code.
(Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)
2. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must
be coupled by acts of relinquishment (Gonzales v. Hernandez, 2 SCRA 228
[1961]). The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be
express. It can be implied. As long as the resignation is clear, it must be given legal effect.
(Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])
216. What is abandonment of an office? What are its requisites? How is it distinguished from resignation?
Held: Abandonment of an office has been defined as the
voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment
of office is a species of resignation; while resignation in general is
a formal relinquishment, abandonment is a voluntary relinquishment through nonuser.
Abandonment springs from and is accompanied by DELIBERATION and
FREEDOM of CHOICE . Its concomitant effect is that the former holder of
an office can no longer legally repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the
office must be with the officer’s actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment.
Therefore, there are two essential elements of abandonment; first, an
intention to abandon and, second, an overt or “external” act by which
the intention is carried into effect. (Sangguniang Bayan of San
Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)
217. When may unconsented transfers be considered anathema to security of tenure?
Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing