Public Interest Center vs. ELMA
June 30, 2006, Chico-Nazario
*concurrent appointments, incompatible office
N: CPM + TRO to declare null and void the concurrent appointments of ELMA as PCGG Chair and as Chief Presidential Legal Counsel
F: Elma was appointed as PCGG Chair Oct 1998. Later on he was appointed as CPLC (Jan 1999 during his term), but waived any remuneration that he may receive as CPLC.
Supervening events: There’s actually no more controversy involved: In 2001, Elma was replaced by Sabio as PCGG. Nachura was then appointed as CPLC but pending resolution of the case, he was appointed SOLGEN.
Arguments: Public Interest Center
CLU vs. Exec Sec: Art IX-B, Sec 7, par2 and Art VII, Sec13 are violated by concurrent appointments
CPLC and PCGG Chair are incompatible offices
Arguments: Elma
As interpreted in CLU vs. Exec Sec, the mentioned consti provisions don’t cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.
His appointment falls under the exceptions in Art IX-B, Sec7
The 2 positions are not incompatible
NOTE: even if issue already moot, SC still took cognizance of the case because the case is capable of repetition, and to serve as a guide to the bench.
whether the position of the PCGG Chairman or that of the CPLC falls under the prohibition against multiple offices imposed by Section 7, par. 2, Article IX-B of the 1987 Constitution
YES.
The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green[13] - whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x 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. The force of the word, in its application to this matter is, that 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. x x x 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. x x x
***In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC.
*note: Memorandum Order No. 152, issued on 9 July 2004 (provides that CPLC review Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with the rank of Secretary conducted by the Presidential Anti-Graft Commission (PAGC))
whether such appointments violate the other constitutional provision regarding multiple offices, Section 13, Article VII of the 1987 Constitution
NO if based on position. YES if based on primary functions test.
the strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter positions.
*Review ulit CLU vs. Exec Sec: The language of Section 13, Article VII is a definite and unequivocal negation of the privilege of holding multiple offices or employment.
The Court cautiously allowed only two exceptions to the rule against multiple offices:
(1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or
(2) posts occupied by the Executive officials specified in Section 13, Article VII without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office.
…The Court further qualified that additional duties must not only be closely related to, but must be required by the official’s primary functions. Moreover, the additional post must be exercised in an ex-officio capacity, which “denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.”[18] Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity.
*Even Section 13, Article VII does not sanction this dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions of the CPLC, and vice versa.
In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant secretary. Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent Elma, he still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was occupied by him in an ex-officio capacity, and the primary functions of one office do not require an appointment to the other post. Moreover, even if the appointments in question are not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still prohibited under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility between the primary functions of the offices of the PCGG Chairman and the CPLC.
Disposition: Grant petition
Sangguniang Bayan of San Andres vs. CA, Augusto Antonio
January 16, 1998 PANGANIBAN
*designation ≠ abandonment
N: Petition for review of judgment of CA
F: Augusto Antonio was elected Brgy Captain of Sapang Palay, San Andres, then later the president of the Association of Barangay Councils (ABC) for the Municipality of San Andres. Pursuant to 1983 LGC, he was appointed as member of Sangguniang Bayan of San Andres.
-the election for president of the Federation of the Association of Barangay Councils (FABC) was declared void for want of quorum and so DILG Sec designated Antonio as a temporary member of the Sangguniang Panlalawigan of Catanduanes.
-In view of his temporary designation, Antonio resigned as Sangguniang Bayan member. He tendered his resignation to Mayor of San Andres, with copies furnished to Prov Governor, DILG and municipal treasurer. The then VP of ABC was subsequently appointed in his place, took oath and went to office.
-court came up with decision that FABC elections were valid, and so Antonio’s appointment was DECLARED VOID, he being not a president of the federation of brgy councils.
-Afterwards, Antonio wrote to Sangguniang Bayan advising them of his re-assumption of his original position. In response, Sanggunian issued Res 6 declaring that Antonio had no basis to resume office.
-Antonio sought a ruling from DILG, DILG ruling stated that HE DID NOT RESIGN WHEN HE WAS DESIGNATED AS TEMPORARY REPRESENTATIVE OF THE FEDERATION TO THE SANGGUNIANG PANLALAWIGAN. 1991 LGC also provides that as president of ABC, he is mandated to continue to act as president and to serve as ex-officio members of the SB.
-Despite DILG clarification, SB still issued resolution with same stand.
-Acquired Opinion from Director Montesa saying that he could re-assume his position as Sanggunian rep but SB still refused to acknowledge.
-Antonio filed PETITION FOR CERTIORARI AND MANDAMUS W/ PRELIMINARY MANDATORY INJUNCTION AND/OR RESTRAINING ORDER
-RTC: Antonio’s resignation was INEFFECTIVE AND INOPERATIVE, no acceptance by proper authorities.
-CA: affirmed RTC but did not grant damages and nullification of the resolutions. It held that resignation was not accepted by proper authority – the president of the Philippines. Neither is there any evidence that any notice was given to DILG Sec, the president’s alter ego.
-Granting that there was resignation, Antonio was still the president of ABC, and thus, he was qualified to sit in SB. But with the 1994 Elections where new brgy officials were elected, Antonio’s resumption as brgy rep to SB no longer feasible.
-No abandonment: designation as member of Sangguniang Panlalawigan merely temporary, not incompatible with position as President of ABC.
ISSUE
WON there was abandonment of office or a complete resignation???
HELD
YES. For SB members
-on mootness: even though their terms expired, still resolve as uncollected salaries due to Antonio would be collected.
First Issue : Validity of Resignation
NO VALID RESIGNATION. No evidence to show that DILG Secretary received (and then acted upon) his resignation.
-ORTIZ vs. COMELEC: RESIGNATION: "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 competence and lawful authority."
-Requisites of resignation:
(a) an intention to relinquish a part of the term;
(b) an act of relinquishment; and
(c) an acceptance by the proper authority. (required by reason of Article 238 of the Revised Penal Code)
Second Issue : Abandonment of Office
YES THERE WAS A VOLUNTARY ABANDONMENT.
-Abandonment of an office: the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof.
-a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. Nonuser refers to a neglect to use a privilege or a right or to exercise an easement or an office.
-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 a continuance that the law will infer a relinquish.
-2 essential elements of abandonment:
(1) an intention to abandon
(2) an overt or "external" act by which the intention is carried into effect
IN THIS CASE:
OVERT ACTS indicating intention to abandon by Antonio:
(1) his failure to perform his function as member of the Sangguniang Bayan,
(2) his failure to collect the corresponding remuneration for the position,
(3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan,
(4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.
OVERT ACTS which demonstrates he had effected his intention:
(1) his letter of resignation from the Sangguniang Bayan
(2) his assumption of office as member of the Sangguniang Panlalawigan
(3) his faithful discharge of his duties and functions as member of said Sanggunian, and
(4) his receipt of the remuneration for such post.
ON DESIGNATION: May be designated to discharge duties in addition to his regular responsibilities. However, in all cases, the law does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions of both offices.
HERE: Antonio did not simultaneously discharge his duties.
-failure to assert right for long time implies loss of interest in the position: "Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was willful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it." (MECHEM)
-RIGHT AS PRESIDENT OF ABC: right not self-executory, law (BP 337) itself requires another positive act: Appointment of Prexi or DILG Sec
Third Issue : Salary
Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is the "no work, no pay" rule. A public officer is entitled to receive compensation for services actually rendered for as long as he has the right to the office being claimed. When the act or conduct of a public servant constitutes a relinquishment of his office, he has no right to receive any salary incident to the office he had abandoned.
Disposition: Grant petition of SB, Set aside CA decision
Republic (DTI) vs. Singun
March 14, 2008 CARPIO
*withdrawal of resignation before notice of acceptance
NATURE: petition for review on certiorari
FACTS
-Singun was the former Chief Trade and Industry Development Specialist of DTI-RO2 of Cagayan Province. On November 1999, he wrote to Regional Director Hipolito signifying his intention for a 8-month leave and intention to retire on August the next year (after leave). He filed application for leave of absence and early retirement but both were denied.
-Singun reiterated application. This time, Director Hipolito endorsed the application to Assec Maglaya for comment. HOWEVER, W/O WAITING FOR THE COMMENT, Singun filed an application for leave of absence for a shorter period (2 months) and signified his INTENTION TO RESIGN effective the close of office hours of January 2000. Director Hipolito APPROVED APPLICATION for LOA and resignation. Director Hipolito issued memorandum containing approval and notified Regional Director of CSC of his acceptance to the resignation
-On January 14,, 2000 (date when resignation became effective), DTI-RO2 received through fax Memo Order No. 20 detailing Singun to the Office of the Undersecretary for Regional Operations effective 17 January 2000. Respondent then wrote to Director Hipolito stating that he was reconsidering his earlier letter of resignation and decided to wait until he could qualify for early retirement.
-Dir. Hipolito wrote to Atty. Soria for an opinion on WON Singun was considered resigned. Atty. Soria issued an opinion wherein SINGUN WAS DEEMED TO HAVE EFFECTIVELY RESIGNED ON 14 JANUARY 2000:
(1) Singun’s voluntary written notice informing Director Hipolito that he was relinquishing his position and the effectivity date of said resignation and
(2) Director Hipolito’s acceptance in writing which indicated the date of effectivity of the resignation.
…Singun’s letter of withdrawal of resignation DID NOT AUTOMATICALLY RESTORE HIM TO HIS POSITION, still subject to approval of Dir. Hipolito.
-In accordance with this, Dir. Hipolito informed Undersec Ordonez that Singun had resigned 14 January 2000 so the detail was w/o effect. Singun has already accepted employment with Philippine Rural Banking Corporation
-ETO NA! Singun wrote to Undersec Ordonez, in effect saying that HE DID NOT RESIGN:
a. HIS APPLICATION FOR RESIGNATION WAS MADE UNDER DURESS, imposed by Director Hipolito as a condition for the approval of his application for LOA.
b. He intended to resign August 2000 after completing 15 years of service
-Undersec Ordonez required Dir. Hipolito to comment on the letter and to show evidence that Singun reveived a copy of Dir. Hipolito’s acceptance in writing of Singun’s letter of resignation
-Dir Hipolito: No force, intimidation, threat and undue pressure for Singun to resign. As to acceptance in writing, Singun was given a copy of the Memo regarding the acceptance of the resignation.
CSC Regional Office: considered Singun as resigned because the detail order made no mention that issuance meant acceptance of his resignation was revoked. Since Undersec Ordonez was not the appointing authority, he had no power to accept Singun’s withdrawal of resignation. Singun appealed to CSC
CSC: RESIGNATION INOPERATIVE AND INEFFICACIOUS. PAY SALARIES AND OTHER BENEFITS: Act of Undersec Ordonez is a tacit, if not express, repudiation and revocation of the acceptance by the latter of the supposed resignation of Singun.
…If ever tender of resignation accepted: acceptance inoperative and inefficacious because THERE WAS NO SHOWING THAT SINGUN WAS DULY INFORMED OF ACCEPTANCE – MR, DENIED
CA: Deny appeal, affirm CSC: CSC’s finding must be respected, as long as findings are supported by substantial evidence. Act of resignation CANNOT BE PRESUMED BY RELYING ON MEMORANDA OR LETTERS MERELY SHOWING APPROVAL OF RESIGNATION, NO SHOWING OF CLEAR INTENTION TO SURRENDER.
…NO ABANDONMENT: inconsistent with:
(1) motion for reconsideration of CSC-RO2’s Opinion No. LO-000202,
(2) appeal questioning CSC-RO2’s Decision No. A-000601, and
(3) bringing the matter to the National Office of the CSC for resolution.
…No denial of due process on part of DTI, it had opportunity to explain side or to seek reconsideration.
ISSUE
WON there was complete and operative resignation
NO. No indication that Singun was duly informed of the acceptance of his resignation
The Final Act of a Resignation’s Acceptance is the Notice of Acceptance
Resignation implies 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.
*complete and operative resignation from public office:
(a) an intention to relinquish a part of the term;
(b) an act of relinquishment; and
(c) an acceptance by the proper authority.
ACCEPTANCE: In our jurisdiction, 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. Resignation to be effective must be accepted by competent authority, either in terms or by something tantamount to an acceptance, such as the appointment of the successor. A public officer cannot abandon his office before his resignation is accepted, otherwise the officer is subject to the penal provisions of Article 238 of the Revised Penal Code. The final or conclusive act of a resignation’s acceptance is the notice of acceptance. The incumbent official would not be in a position to determine the acceptance of his resignation unless he had been duly notified therefor.
IN THIS CASE
Notice of approval of leave of absence does not necessarily mean the acceptance of resignation
Employment with PRBC was undertaken during an approved LOA so NO ABANDONMENT
Resignation may be Withdrawn before its Acceptance: Until the resignation is accepted, the tender or offer to resign is revocable. And the resignation is not effective where it was withdrawn before it was accepted.
IN THIS CASE: Since no valid notification of acceptance, Singun could validly withdraw his resignation. No need for Dir. Hipolito to accept withdrawal since there was no valid acceptance of the application of resignation in the first place.
-Detail Order by Undersec Ordonez also valid as there was no effective resignation yet
Disposition. Deny Petition, affirm CA
ROSALES vs. MIJARES
November 17, 2004 CALLEJO
*on transfer as removal
Nature: petition for review on certiorari
FACTS:
-Rosales was elected as mayor of Catarman. Shortly after assuming office, he called department heads (among which was Mijares as the MUNICIPAL ENGINEER) and told Mijares to resign under pain of abolition of his position. Mijares offered to be transferred at the Provincial Engineering Office instead.
-Rosales then indorsed Mijares as Asst. Provincial Engineer (and informed him so, with the validity of endorsement for 30 days). Mijares continued reporting at the Municipal Engineer’s Office as Provincial Governor did not act on Rosales’ endorsement.
-Rosales wrote to respondent again, this time informing Mijares of his separation as the 30d period given to Mijares to transfer to the Provincial Engineering Office has elapsed.
-Mijares requested Rosales to withdraw separation letter as his transfer to the Provincial Engineer’s Office was not acted upon, and thus, Mijares did not cease to be an employee of the municipal government.
-Rosales used MC No. 39, S. 1993 as the reason for Mijares’ termination. Rosales offered to reinstate respondent.
-Mijares filed COMPLAINT FOR ILLEGAL TERMINATION vs. Rosales before CSC. Fact-finding investigation conducted. Fact Finding requested Rosales to produce the request for transfer which Rosales said to be merely verbal. Plus used CMC MC no. 38 as reason (expiration to permit to transfer w/o transfer being effected)
-CSC: Reinstate Mijares as Municipal engineer, pay backwages.
…permission to transfer not free and voluntary made. It was a “shrewd machination or clever ploy” resorted by Rosales to oust Mijares, THUS ILLEGAL
…Request for transfer MUST BE IN WRITING. No evidence of verbal request, as well as date of effectivity of transfer
….letter of Rosales was merely a detail to Office of the Provincial Engineer.
-MR DENIED, filed petition for review with CA
CA: Dismiss petition, affirm CSC
-expiration of permit to transfer to remove Mijares was purely technical, too flimsy to override consti mandate upholding right to security of tenure.
-MR DENIED.
HELD
CSC MC 93-38:
Transfer – is a movement from one position without break in service involving the issuance of an appointment.
The transfer may be from one agency to another or from one organizational unit to another in the same agency.
An employee who seeks transfer to another office shall first secure permission from the head of the department or agency where he is employed stating the effective date of the transfer. If the request to transfer of an employee is not granted by the head of the agency where he is employed, it shall be deemed approved after the lapse of 30 days from the date of notice to the agency head.
If, for whatever reason, the employee fails to transfer on the specified date, he shall be considered resigned and his reemployment in his former office shall be at the discretion of his head.
-for CSC MC to be effective:
1. written request for transfer
2. Request express and unequivocal, not merely implied or ambiguous
3. request must be such that he intended to surrender his permanent office
-a transfer connotes an absolute relinquishment of an office in exchange for another office. Such request must be voluntary on the part of the officer concerned and not vitiated by force, coercion, or intimidation or even deceit.
-Sta. Maria v. Lopez: A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to “lure the employee away from his permanent position,” cannot be done without the employee’s consent. For that would constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position.
-unconsented transfer is anathema to security of tenure. A transfer that aims by indirect method to terminate services or to force resignation constitutes removal. An employee cannot be transferred unless for causes provided for by law and after due process. Any attempt to breach the protective wall built around the employee’s right to security of tenure should be slain on sight. The right of employees to security of tenure should never be sacrificed merely at the whims and pleasure of some unscrupulous and heartless politicians.
-IN THIS CASE: Mijares was a well-known supporter of the opposing political party. Mijares was coerced to resign, even threatened to abolish position if Mijares did not resign.
…ON MIJARES being open to transfer: In light of the demands and threats of the petitioner, the respondent had only three options: to resign, to agree to transfer to another office, or to remain as Municipal Engineer with the threat of the petitioner to have his position abolished hanging over his head.
…on Form 212: Not a written request under MC 93-38:
(a) the respondent continued reporting and performing his duties as Municipal Engineer of Catarman and receiving his salary as such; and
(b) the respondent did not send any written request to the petitioner for transfer to the Office of the Provincial Engineer.
-Letter to Mijares is merely a detail for 30d to the Office of Provincial Engineer: Mijares temporarily moved for a period of 30 days – not a transfer (which is longer?)
By his September 24, 1998 letter to the respondent, the petitioner made it appear that he had granted the respondent permission to transfer within thirty days, and that the respondent failed to effect his transfer. This was done by the petitioner despite the absence of any letter from the respondent requesting for such transfer. By his August 12, 1998 letter, the petitioner merely detailed the respondent to the Office of the Provincial Engineer. It must be stressed that the only legal effect of a detail of an employee, upon the lapse of the period of such detail, is for that employee to return to his permanent station. Thus, the respondent retained his position as Municipal Engineer despite his detail to the Office of the Provincial Engineer.
-On alleged deprivation of Due Process: CSC reveived all of Rosales’ comments and annexes and evaluated the same. However, no shred of evidence was shown that Mijares requested for his transfer – WAS GIVEN AN OPPORTUNITY TO BE HEARD
-Can’t rely on Opinion of CSC Regional Director on the application of MC 93-38:
(a) the petitioner falsely represented to the Regional Director and Provincial Prosecutor that the respondent had requested for a transfer to the Office of the Provincial Engineer when, in truth and in fact, the respondent had not done so;
(b) the Regional Director and the Provincial Prosecutor were not even furnished with copies of the October 2, 1998 Letter of the respondent to the petitioner; and
(c) the opinion of the CSC Regional Director and Provincial Prosecutor were not conclusive on the CSC, as the latter could still reverse the said opinion on appeal.
-ON ESTOPPEL: Mijares even appealed to CSC!
-ON PRESCRIPTION: procedural rules need not strictly be observed. MAUNA VS. CSC: “…it is within the power of this Court to temper rigid rules in favor of substantial justice. While it is desirable that the Rules of Court be faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. If the rules are intended to ensure the orderly conduct of litigation, it is because of the higher objective they seek which is the protection of substantive rights of the parties…”
…plus: Mijares did contest separation w/n 1y from separation + belated raising issue on appeal
DISPOSITION: DENY PETITION: Affirm CA, award for costs deleted.
Canonizado vs. CA
(see page 360 of your De Leon copy)
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