Law Of Public Officers Flashcards
Public Office.
Public Office. The right, authority or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some sovereign power of government to be exercised by him for the benefit of the public [Fernandez v. Sto. Tomas, G.R. No. 116418, March 7, 1995].
What are the elements of a public office?
Elements: a) Created by law or by authority of law; b) Possess a delegation
of a portion of the sovereign powers of government, to be exercised for the benefit of the public; c) Powers conferred and duties imposed must be defined, directly or impliedly, by the legislature or by legislative authority; d) Duties must be performed independently and without the control of a superior power other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior office or body; and e) Must have permanence or continuity.
How are public offices created?
Creation. Public offices are created: a) By the ‘ ‘ Constitution, e.g., Office of
the President; b) By valid statutory enactments, e.g., Office of the Insurance Commissioner; and c) By authority of law, e.g., the Davide Commission.
General disqualifications under the Constitution.
a) No candidate who lost in an election shall, within one year after such
election, be appointed to any office in Government [Sec. 6, Art. IX-B].
b) No elective official shall be eligible for appointment or designation in
any capacity to any public office or position during his tenure [Sec. 7(1), Art. IX-B].
, c) Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other position in Government [Sec. 7(2), Art. IX-B].
Specific disqualifications under the Constitution.
a) The President, Vice President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure [Sec. 13, Art. VII].
, b) No Senator or Member of the House of Representatives may hold
any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected [Sec. 13, Art. VI]. See Adaza v. Pacana, 135 SCRA 431. .
c) The Members of the Supreme Court and of other courts established
by law shall not be designated to any agency performing quasi-judicial or administrative functions [Sec. 12, Art. VIII]. See In Re: Manzano, 166 SCRA
d) No Member of a Constitutional Commission shall, during his tenure,
hold any other office or employment [Sec. 2, Art. IX-A]. The same disqualification applies to the Ombudsman and his Deputies [Sec. 8, Art. XI].
e) The Ombudsman and his Deputies shall not be qualified to run for
any office in the election immediately succeeding their cessation from office [Sec. 11, Art. XI],
f) . Members of Constitutional Commissions, the Ombudsman and his
Deputies must not have been candidates for any elective position in the elections immediately preceding their appointment. [Sec. 1,Art. IX-B’ Sec. 1 Art. IX-C; Sec. 1, Art. IX-D; Sec. 8, Art. XI].
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g) Members of Constitutional Commissions, the Ombudsman and his
Deputies are appointed to a term of seven (7) years, without reappointment [Sec. 1(2), Art. IX-B; Sec. 1 (2), Art. IX-C; Sec. 1 (2), Art. IX-D; Sec. 11, Art.
h) The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations [Sec. 13, Art. VII],
What are de facto officers?
One who has the reputation of being the officer that he assumes to be, and yet is not a good officer in point of law [Torres v. Ribo, 81 Phil 44]. He must have acted as an officer for such length of time, under color of title and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of election or appointment, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action.
What are the elements of a de facto office?
- A validly existing public office. See Tuamda v. Sandiganbayan, G.R. No.
110544, October 16, 1995. - Actual physical possession of said office.
- Color of title to the office.
When is there color of title to the office?
Bv reputation or acquiescence, the public, without inquiry, relies on the
supposition that he is the public officer that he purports to be. This is acquired usually when the individual has acted as an officer for such a length of time that the public believes that he is the public officer that he assumes to be.
b) Under a known and valid appointment or election, but the officer
failed to conform to a requirement imposed bv law, e.g., taking the oath of office.
c) Under a known appointment or election, void because of the
ineligibility of the officer, or want of authority of the appointing or electing authority, or because of an irregularity in his appointment or election, such ineligibility, want of authority or irregularity being unknown to the public.
d) Under a known appointment or election pursuant to an
unconstitutional law, before the law is declared unconstitutional.
What is the rule m entitlement of de facto officers to salaries?
The general rule is that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title [Monroy v. Court of Appeals, supra.].
What is the rule when there is no de June officer?
where there is no de jure public officer, the ‘ officer de facto 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.
How does official relationcommence?
1) By appointment; or (2) By election.
What is appointment?
the selection, by the authority vested with the power, of an individual who is to perform the functions of a given office.
What is a commission?
the written evidence of the appointment.
What is a designation?
the imposition of additional duties, usually by law, on a person already in public service.
What is a permanent appointment?
Apermanenfappointmentisextended to a
person possessing the requisite qualifications, including the eligibility required, for the position, and thus protected by the constitutional guaranty of security of tenure.
