< All Topics

K. Termination of official relation

a. MODES OF TERMINATINIG OFFICIAL RELATION

1) Resignation

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. (Republic v. Singun, G.R. No. 149356, 14 March 2008)

a) Requisites

To constitute a complete and operative resignation from public office, there must be:

1) An intention to relinquish a part of the term;

2) An act of relinquishment; and,

3) An acceptance by the proper authority. (Ibid.)

b) Acceptance, required

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. (Ibid.)

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. (Ibid.)

(1) Abandonment of office or position

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, i.e. abandonment of office or position. (Ibid.)

(2) Notice of acceptance

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. (Ibid.)

NB: Even if there exists a notice of acceptance but it was never made known to the public official/employee, the resignation remains incomplete and inoperative.

Case Law

1) In one case, there was nothing in the records to show that respondent was duly informed of the acceptance of his resignation. There was no indication that respondent received a copy of his 12 November 1999 application for leave of absence and resignation as accepted by Director Hipolito. Neither was there any indication that respondent received Director Hipolito’s 12 November 1999 Memorandum informing him of the acceptance of his resignation. Therefore, espondent’s resignation was incomplete and inoperative because respondent was not notified of the acceptance of his resignation. (Ibid.)

c) Withdrawal allowed prior to 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 And the resignation is not effective where it was withdrawn before it was accepted. (Ibid.)

Case Law

1) In this case, since respondent’s resignation was not finally and conclusively accepted as he was not duly notified of its acceptance, respondent could validly withdraw his resignation. There was no need for Director Hipolito to accept the withdrawal of resignation since there was no valid acceptance of the application of resignation in the first place. Undersecretary Ordoñez also validly issued the detail order as respondent had not effectively resigned from DTI-RO2. (Ibid.)

d) Courtesy resignation

A “courtesy resignation” cannot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. (Ortiz v. COMELEC, G.R. No. 189698, 22 February 2010)

(1) Strict interpretation

A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional officials like the petitioner whose removal from office entails an impeachment proceeding. For even if working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal rights as those in reputation and eligibility for other employment. (Ibid.)

e) Appointive officials deemed resigned upon filing of COC

Incumbent Appointive Official: Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Section 4[a], COMELEC Resolution No. 8687 cited in Quinto v. COMELEC, En Banc, G.R. No. 189698, 22 February 2010)

Incumbent Elected Official: An elected official is deemed as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. (Ibid.)

2) Retirement

a) Optional retirement

A public official or employee may retire from service if he has rendered at least fifteen (15) years of service, at least sixty (60) years of age at the time of retirement, and he is not receiving a monthly pension benefit from permanent total disability. (Section 13-A, P.D. 1146, as amended by R.A. 8291, GSIS Act of 1997)

b) Mandatory retirement

Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at sixty-five (65) years of age with at least fifteen (15) years of service: Provided, That if he has less than fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations. (Section 13[b], P.D. 1146, as amended by R.A. 8291, GSIS Act of 1997)

The incumbent Members of the Judiciary shall continue in office until they reach the age of seventy years. (Section 11, Article VIII, 1987 Constitution)

4) Incapacitated

The incumbent Members of the Judiciary may be removed from service if they become incapacitated to discharge the duties of their office or are removed for cause. (Section 11, Article VIII, 1987 Constitution)

3) Expiration of term or tenure

Upon expiration of the officer’s term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. (Aldovino, Jr. v. COMELEC, En Banc, G.R. No. 184836, 23 December 2009)

a) Term v. tenure

In the law of public officers, there is a settled distinction between “term” and “tenure.” The term of an office must be distinguished from the tenure of the incumbent. (Gaminde v. COA, En Banc, G.R. No. 140335, 13 December 2000)

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. (Ibid.)

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. (Ibid.)

4) Completion of hold-over capacity

When a public officer is placed on hold-over status, it means that his term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and has qualified. (Mendoza v. Quisumbing, En Banc, G.R. No. 78053, 04 June 1990)

In the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen and has qualified. (Nueno v. Angeles, En Banc, G.R. No. L-89, 01 February 1946)

5) Accomplishment of purpose

Through an executive order, the National Centennial Commission (NCC) was created as a public office and its Chair a public officer “to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress.” (Laurel v. Desierto, G.R. No. 145368, 12 April 2002)

6) Abandonment

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.  (Sangguinang Bayan of San Andres v. CA, G.R. No. 118883, 16 January 1998)

a) Requisites

There are two essential elements of abandonment:

1) An intention to abandon; and,

2) An overt or “external” act by which the intention is carried into effect. (Ibid.)

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. (Ibid.)

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 relinquishment. (Ibid.)

Case Law

1) In one case involving a member of the Sannguniang Bayan becoming a member of the Sannguniang Panlalawigan, it was held that the following clearly manifest the intention of private respondent to abandon his position: (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. (Ibid.)

On the other hand, the following overt acts demonstrate that 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. (Ibid.)

b) The 2 modes of abandonment

A person holding a public office may abandon such office:

1) By non-user; or,

2) By acquiescence. (Adiong v. CA, G.R. No. 136480, 04 December 2001)

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. (Ibid.)

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 right may constitute an abandonment of the office. (Ibid.)

c) Abandonment v. Resignation

Abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. (Sangguinang Bayan of San Andres v. CA, supra.)

d) Acceptance of incompatible office

When a public official voluntarily accepts an appointment to an office newly created or reorganized by law, which new office is incompatible with the one formerly occupied by him, qualifies for the discharge of the functions thereof by taking the necessary oath, and enters into the performance of his duties by executing acts inherent in said newly created or reorganized office and receiving the corresponding salary, he will be considered to have abandoned the office he was occupying by virtue of his former appointment, and he can not question the constitutionality of the law by virtue of which he was last appointed. He is excepted from said rule only when his non-acceptance of the new appointment may affect public interest or when he is compelled to accept it by reason of legal exigencies. (Zandueta v. Dela Costa, En Banc, G.R. No. L-4627, 28 November 1938)

Besa v. Philippine National Bank (1970)

[Background] Petitioner was appointed on July 12, 1962 as Chief Legal Counsel of respondent Bank with the rank of Vice-President. On October 20, 1966, a letter-directive was issued by the then President of the Bank, respondent Benedicto, that he was transferred to his office as Consultant on Legal Matters. The justification for such a move was Resolution No. 1053 of respondent Board of Directors of the Bank, wherein it was expressly stated “that Vice President Tomas Besa be shifted to the Office of the President as Consultant on Legal Matters, without change in salary and other privileges.”

[Decision] Petitioner previous position was highly confidential in character. Such is the case of the Chief Legal Counsel of respondent Philippine National Bank…

As far as the petitioner is concerned, however, it is our conclusion that he could not plausibly contend that there was a removal in the constitutional sense as what did take place was a termination of official relation. Accepting as he did the position of chief legal adviser, the essence of which is the utmost degree of confidence involving such “close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals” whether of personal trust or official matters, he could not have been unaware that his term could be cut short any time without giving rise to any alleged infringement of the above constitutional safeguard. There was no removal which according to such a mandate is only allowable for cause. Hence the lack of persuasive character of petitioner’s plea.

The matter was set forth with precision and clarity by the present Chief Justice in a recent decision. Thus: “This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office at the pleasure only of the appointing power. It should be noted, however, that when such pleasure turns into displeasure, the incumbent is not “removed” or “dismissed” from office — his “term” merely ‘expires,’ in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and can not be deemed “removed” or “dismissed” therefrom, upon the expiration of said term. The main difference between the former – the primarily confidential officer – and the latter is that the latter’s term is fixed or definite, whereas that of the former is not prefixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not “removed” or “dismissed” from office — his term has merely “expired.”

It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; his decision to terminate the relationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected.

In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence of a fixed or a definite term if the latter aspect predominates. … the incumbent of a primarily confidential position… should realize that at any time the appointing power may decide that his services are no longer needed.

(1) Compatible v. incompatible offices

GENERAL RULE: 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.” The two offices are incompatible. (Funa v. Acting Secretary of Justice Alberto C. Agra, En Banc, G.R. No. 191644, 19 February 2013)

Otherwise stated, 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. (Ibid.)

EXCEPTIONS:

1) Not allowed by law or by the primary functions of his position; or

2) The two offices are incompatible; (Ibid.)

(1) Not allowed by law or by the primary functions of his position

The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. (Section 13, Article VII, 1987 Constitution)

Unless otherwise allowed by law or the primary functions of his position, no appointive official shall 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. (Paragraph 2, Section 7, Article IX-B, 1987 Constitution)

While all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself.  In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. (Civil Liberties Union v. The Executive Secretary, En Banc, G.R. Nos. 83896 and 83815, 22 February 1991)

The persons cited in the constitutional provision are the “Members of the Cabinet, their deputies and assistants.” These terms must be given their common and general acceptation as referring to the heads of the executive departments, their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby. (Funa v. Acting Secretary of Justice, En Banc, supra.)

Case Law

1) DOJ Secretary and Solicitor General – incompatible as a matter of public policy: The primary functions of the Office of the Solicitor General are not related or necessary to the primary functions of the Department of Justice. Considering that the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both, an incompatibility between the offices exists, further warranting the declaration of Agra’s designation as the Acting Secretary of Justice, concurrently with his designation as the Acting Solicitor General, to be void for being in violation of the express provisions of the Constitution. (Ibid.)

(2) The two offices are incompatible

TEST: The crucial test in determining whether incompatibility exists between two offices was – whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other. (Ibid.)

8) Removed for cause

The incumbent Members of the Judiciary may be removed from service if they are removed for cause. (Section 11, Article VIII, 1987 Constitution)

a) Recall

Recall is a mode of removal of a public officer by the people before the end of his term of office. The people’s prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. (Garcia v. COMELEC, En Banc, G.R. No. 111511, 05 October 1993)

b) Impeachment

Impeachment refers to the power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution. (Chief Justice Renato C. Corona v. Senate of the Philippines, En Banc, G.R. No. 200242, 17 July 2012)

9) Abolition of Office

As a rule, all offices created by statutes are more or less temporary, transitory, or precarious that they are subject to the power of the legislature to abolish them. The Civil Service Law can not stand in the way of the exercise by the legislature of its power to alter, abolish, or create a municipal corporation or office. What is not countenanced is the abolition of an office in bad faith, to do away with a particular incumbent and replacing him with a political favorite. (Mendenilla v. Onandia, En Banc, G.R. No. L-17803, 30 June 1962)

To remove an officer is to oust him from office before the expiration of his term. A removal implies that the office exists after that ouster. So that, when an office has been abolished, the officer thereof could not have been removed therefrom. Where the bureau of which the petitioner is the director has been abolished, by implication the office of the director cannot exist without said bureau. By the abolition of the latter and of said office, the right thereto of its incumbent was necessarily extinguished thereby. The abolition of the office of the petitioner is not against the prohibition of the Constitution against removal of a civil service officer or employee except for cause, inasmuch as the petitioner has neither been removed nor suspended from office. (Ibid. citing Manalang v. Quitoriano, G.R. No. L-6898, 30 April 1954)

To abolish means to do away with, to annul, abrogate or destroy completely. It denotes an intention to do away with the office wholly and permanently. A valid abolition of offices is neither removal nor separation of the incumbents. No dismissal or separation arises because the position itself ceases to exist. (Tan v. DPWH, G.R. No. 143289, 11 November 2004)

10) Prescription

A petition for reinstatement to public office may only be filed within one (1) year. (Morales v. Patriarca, En Banc, 21 October 1965)

A petition for reinstatement to public office is essentially a quo warranto proceeding. In actions of quo warranto involving right to an office, the action must be instituted within the period of one (1) year from the time the cause of action arose. (Cristobal v. Melchor, G.R. No. L-43203, 29 July 1977)

11) Failure to assume office

The office of any official elected who fails or refuses to take his oath of office within six (6) months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. (Section 11, B.P. 881, Omnibus Election Code)

12) Conviction of a crime

Under the Revised Penal Code, the penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:

1) The deprivation of the public offices and employments which the offender may have held even if conferred by popular election.

2) The deprivation of the right to vote in any election for any popular office or to be elected to such office.

3) The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in Nos. 2 and 3 shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held. (Article 30, Revised Penal Code)

13) Death

Civil personality is extinguished by death. (Article 42, Civil Code)

Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. (Article 37, Ibid.)

Previous J. Distinguish: de facto and de jure officers
Next L. Civil service
Table of Contents