We will continue our discussion on the FACTO officers before we proceed
with the appointment.
We might as well discuss other types of public officers which include not
only the FACTO
but also the URAE officers or those we call the surfers.
So, as I mentioned yesterday, to be a FACTO officer, all of the following
elements must be present.
One, that there must be at the URAE office because there can be no
FACTO officer when there is no URAE office.
Second, there must be color of right or general acquisitions by the public.
And lastly, there must be actual physical procession of the office in good
faith.
A FACTO officer is distinguished from the URAE office in such a way that,
or insofar as the authority of a URAE officer is concerned as doc of a
FACTO officer,
the one rests on right while the other on reputation.
It is often likened to character and reputation.
The truth of a man as against what is thought of him by other people,
what is perceived of him or to ano yung iwi isit sa kanya.
So, as against a mere URAE officer,
it is the color of authority and not the color of title that distinguishes
an officer de facto from a URAE officer.
So, a mere URAE officer is one who takes possession of an office
and then undertakes to act officially without any color of right or authority,
either actual or apparent.
And the short, a URAE officer is no officer at all.
So, going back to your URAE officer,
there are fairly new elements that must be present.
One, there must be a valid appointment.
Second, there is a legal right to office.
Third, the public officer possesses all qualifications
or he has qualified to the office
and lastly entitlement to salary.
Say, this public office may either be by election or appointment.
At de facto officer, he'd not show that she was elected
or he or she was elected or appointed in a sixth sense,
in a sixth sense, for a showing of a color of right to the office would
suffice.
In fact, in the case of designation,
in certain instances, it may be loosely defined as an appointment
because it likewise involves the naming of a particular person
to a special or specific or specified public office.
The reason why I mentioned that there can be no officer
either URAE or de facto when there is no office at fail
because while there can be no de facto officer
when there is no URAE office,
there may be at de facto officer in the URAE office.
I'd like you to read the case of Tuanda versus San Diego Bayan.
It's year number 110544, decided in 1995.
It's very timely because it's election period,
why it's election time.
How about in cases where, for example,
A, running for mayor against B, okay,
and then B filed a case to,
against A, for cancellation of this certificate of candidacy
on the ground that A has not met the residency requirement
of one year immediately preceding the election.
So, according to B, there is material
or there was material misrepresentation
in the certificate of candidacy.
So, campaign period and then on the election day,
A obtained the highest number of votes
and he was proclaimed as the junior elected mayor.
Let us assume.
Before he takes his oath of office,
which is June 30, midday of June 30,
a decision was rendered by the comal
disqualifying A on the ground of ineligibility
or his failure to meet the residency requirement
provided by law.
A did not receive a copy of the resolution of the comal.
So, nakapasak na siya,
has taken his oath, has entered the,
or he has assumed the duties of the office.
So, when he finally received the disqualification,
the resolution disqualifying him,
he immediately moved to reconsider such resolution.
And let us say it took some time
before the comal had finally decided
for affirming the decision of the division,
disqualifying him or declaring him ineligible
for the position of mayor
for having failed to meet the residency requirement
of one year.
So, who will now seat as mayor?
Will it be the vice mayor through succession
as provided in section 44
of the local government code?
Or will it be B,
who obtained the second highest number of votes?
Because in this case,
you would consider the votes cast
in favor of A as stray votes
being an ineligible candidate.
Take note that the rule of succession
in section 44 of the local government code
would not apply in instances
when a de facto officer is ousted from office.
Because here A, who was proclaimed,
is considered a de facto officer.
He is ousted from office
and a de uray officer takes over.
So, the ouster of a de facto officer
cannot create a permanent vacancy
as not contemplated in the local government code.
Because in the first place,
there is no vacancy to speak of
as the de uray officer
or the rightful winner in the election
which is B as the legal right
to assume the position.
I'd like you to read that case
of other sources versus commonly.
This is year number 193-314,
June 25, 2013.
So, what is important there
that the candidates with the next highest votes
becomes the rightful office holder
if the winner is disqualified
due to ineligibility.
Okay? Let's not forget that.
Okay?
If you are taking up your election laws now,
dinoskas naman sa iniyan, diba?
That upon disqualification
of an eligible candidate,
the court in numerous cases affirmed
that all votes for the ineligible candidate
are considered strayed.
So, the court have declared the second
or the candidate receiving the organiling
the next highest number of votes
as the newly elected public officer
whether mayor, governor,
or whatever position
as the case may be.
Okay?
Anyway, I hope you still remember
yung ating consistent residency requirement
in so far as holding public office is concerned.
Diba, you all know that residents
as defined in under election laws
differs from that as defined in your civil law.
So, what is important is you meet
the consistent residency requirement,
meaning to say,
or it will refer to that consistent
and uninterrupted residency
in the locality
where you seek to be elected
or yes, that is
for mayor, one-year resident,
for local office,
one-year residency condition.
Okay?
That would be
your intention to permanently reside
as well as your act of abandoning
your former domicile.
Okay?
So,
I think I have discussed yung
all about salary
in almost right up to
to receive
the salary due to the office.
Okay?
So, to evaluates as well as compensation
due to the office.
Okay?
So, that is now a significant appointment.
So, although we have discussed
this in your administrative law,
we will just review the lang nog.
Let us, let me discuss it in passive lang nog.
Okay?
So, the court has held
that an appointment
of public office is the one,
the unequivocal act of designating
or selecting by one having
the authority of an individual
to discharge and perform
the duties and functions
of an office
or trust.
An appointment is being completed
once the last act
required of the appointing authority
is being complied with
and its acceptance
that after may the appointee
in order to render
the appointment effective.
So, again,
appointment
necessarily calls
for an exercise
of discretion
on the part of the appointing authority.
The right is the very hard
discretion or the right to choose
is the very hard of the power
to appoint.
And in the exercise of the power of
appointment, discretion
is an integral part
that I'll explore.
There are several or numerous cases,
no, where the court has
reiterated time and again
that the power to appoint
is in essence,
rather discretionary.
The appointing power
is the right of choice
which can be exercised fairly
according to his judgment
and deciding for himself
who is best qualified for the job
from among those who
have the necessary qualifications
and eligibility.
In short, it is a prerogative
of the appointing power.
So, being or discretion
of the appointing power
or the power of appointment,
the civil service commission
may not nullify an appointment
on the ground
that somebody else is
better qualified.
They cannot do that.
The court has
declared civil service commission
in several cases
through how committed grave abuse
of discretion in the research.
So, one case would be
the case of Remonte
where it ruled
that the head of agency
who is the appointing authority
who has the appointing power
is the one most knowledgeable
to decide who can best perform
the functions of the office.
An appointment
which is essentially discretionary power
and must be performed
by the officer vested with such power
according to his best likes,
the only condition
being that the appointee
should possess the qualifications
which required by law.
And if he does, then the appointment
cannot be folded on the ground
that there are others better qualified
for their job.
In short,
it is a prerogative
of the appointing authority
at which he alone
can decide.
Why?
Because the choice of appointee
from among those who possess
as you may,
you have an applicants possess
their qualification.
The choice of the appointee
is a political
and administrative decision
of the appointee authority
calling for considerations
of wisdom, convenience, utility
and interest of the service
which can best be made
by the head of the agency
or the head of office concerned
or the person most familiar
with the organizational structure
and circumstances
within which the appointee
must function.
What is important
is the appointee
is qualified
to possess the qualifications.
The civil service
has no choice
but the civil service commission
has no choice
back to attest to
and respect the appointment
even if we prove
that there are others
with superior credentials
or qualifications.
So the law
limits the commission's
authority only
to whether or not
the appointee possesses
service eligibility
and nothing else.
Ang gandong lang ang role nila
they determine whether this appointee
possesses the legal qualifications
and the necessary
or the appropriate civil service eligibility.
If the appointee
does then
of the appointment
is pursued
or is automatically
should be automatically approved
by the commission.
It's power by substituting
it's will for that of the appointee authority.
Okay?
We'll not forget that.
So there is now a classified appointment.
Appointment may either be permanent
or temporary
or it may be regular
or adventuring.
Then back to ang nakainin dito
in your
political law as well in the administrative law.
Okay?
A permanent appointment is extended
to a person possessing the requisite qualifications
including the eligibility
required by the position
and last protected by the constitutional
guarantee of
security of the new.
On the other hand, a temporary appointment
is one that is
an acting appointment.
It is extended to one who may not
possess the requisite
qualifications or eligibility
required by law for the position.
It is revocable at will
without the necessity of just
force or a valid investigation.
Assuming
you are issued a temporary appointment
and then eventually
you're required to appropriate
civil service and then you can
not convert, automatically convert
your things to a temporary appointment
into a permanent one, of course not.
It's not if still had to
convert the temporary appointment
into a permanent one.
A new appointment
must
a new appointment
necessary.
Okay?
How about
an appointee or the person
who lacks the necessary qualifications
for public position
be appointed in a permanent
capacity?
Of course not.
It must be
in the case of the lay-on
which can't be ignored.
So it must
be stressed at the position.
The position involved is the position
of legal counsel.
Which is embracing
the career executive
responsibilities.
There's no question
that a private respondent
does not have the required
career executive service
and eligibility.
By him,
he is not a SETRO
or a member of the career
So when the court decided
the case of Acha Poso
versus Makara E
we also discussed this in your
admin office.
When it was settled that a permanent appointment
can be issued only
to person who needs
all the requirements for the position
he is being appointed
including, of course, the appropriate
eligibility to scribe.
In that case of Acha Poso
Acha Poso did not meet that
requirement at best.
His appointment could be
regarded only as temporary
and being so it could be withdrawn
at will by the appointee authority
and at a moment's notice
conformed to its established
jurisprudence.
So the mere fact that a position
belongs to the career service
does not automatically confer
security of tenure
in its occupant
even if he does not
possess the required qualification.
That's right, it will have to depend
on the nature of his appointment
which in turn, of course, would depend
on his eligibility
or the lack of it.
So in short
a person
who does not
rather possess
or who does not have
the requisite qualification for the position
cannot be appointed to it
in the first place
or only as an exception
to the rule may be appointed to it
merely in an acting capacity
in the absence of an
appropriate eligible.
Walay, walang eligible na
applicantin. So the appointment
extended to him cannot be regarded
as permanent even if it may be
designated such
in the case, it could be transferred
or reassigned
without violating the constitutionally
guaranteed right
to security
of tenure.
So you also
in the case of general versus ropo na
it's more on civil services.
I don't think you need to plan.
Ah
another
list of the case
would be here's the temporary
ah here's
a public
a government employee, you know
holding a permanent employment
was issued a permanent employee
assuming here is a
position, no
he's very interested
and then the appointing authority said
that depending
because this is a newly created
let us just say it's a newly
created office. Depending
approval
I can issue a temporary
appointment.
So what the permanent
appointment was to apply for that
position
so with the acceptance by a
permanent employee of a temporary
appointment
result in the termination of his official
relationship with his former
permanent position
I'm sure Mr. Sabilia
I don't temporary appointment I will just renew
if it has not been
approved yet. I will just renew
your temporary appointment and it so
happened that he was not
renewed okay. The temporary
appointment is not renewed
can be
ah
employee who previously held
a permanent appointment and
resigned there in order to apply
for this temporary appointment
can he claim
reinstatement or
violation of his security of
tenure or he is considered
stopped from insisting upon
a right or a claim which he
has abandoned like the mere
plaque of he accepted
the temporary appointment
he automatically terminated
his official relationship
with his former permanent position
the court said that
he is considered
that employee is considered
stopped from insisting upon a right
or a claim which he had plainly
abandoned went from all indications
he
that employee now enthusiastically
accepted the promotion
from his permanent status
as a senior
he was a former senior resident
position temporary
senior resident position
or even after his
designation as a temporary
medical
specialist
naging interesado as he said
position on medical
specialist that is the case
of philix versus
buenseda can you read that case
GR number 1097
704
in the same way
that an employee with a permanent appointment
as a utility worker
accepted a temporary
appointment as a book bindel
okay
in the office of somewhere
in negros occidental
provincial government of negros occidental
this time he cannot claim
security of tenure upon
the expiration of the one year period
and demand
appointment or reinstatement
kasi di ba under the law
temporary appointees or appointment
shall not exceed 12 months
to pursue unto your omnibus
rule implementing
omnibus rules implementing
your administrative code
of 1987
kaya hindi sya na renew
so what happen is he seeking
for reinstatement to his former
position as utility worker
that is the case of pabu
aya versus
GR number 128022
okay
note also that when it comes to
designation a mere designation
kasa does not confer security
of tenure as the person
designated occupies the position
only in an acting capacity
so being a mere designation
the same cannot be the subject
of reinstatement
or
if the appointment is subject to conditions
assuming an appointment
is subject to conditions
the appointment is not permanent
in such a case appointment cannot
claim complete appointment
as long as the re-evaluation
is incidental to reorganization
is still pending