Nachura Law on Public Officers Notes: TERMINATION OF OFFICIAL RELATIONSHIP Part 3

Nachura Law on Public Officers Notes: TERMINATION OF OFFICIAL RELATIONSHIP Part 3

Removal

• Constitutional Guarantee of Security of Tenure – not removed or suspended except for causes provided by law
• Career service officers and employees.. causes enumerated in law and in accordance with procedure prescribed
• Removal not for just cause or non-compliance with prescribed procedures .. reversible, reinstatement with back salaries and without loss of seniority rights
• Demotion is tantamount to unlawful removal is NO CAUSE is shown or it is NOT PART OF DISCIPLINARY ACTION
• Unconsented transfer resulting in demotion in rank or salary is tantamount to removal without just cause.
• 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.
• No permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position.
• Some cases on Grounds for Disciplinary Action:

1. Dishonesty – concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty; e.g. use of fake or spurious civil service eligibility

2. Conduct prejudicial to the best interest of the service

3. Misconduct – transgression of some established and definite rule of action; wrongful intention

• Administrative Code of 1987: 1) Unsatisfactory conduct and 2) Want of capacity
• Civil Service Law: inefficiency and incompetence in the performance of official duties

• Poor performance falls within the concept of inefficiency and incompetence

• Inefficiency and incompetence can only be determined after the passage of sufficient time, hence, the probationary period of 6 months.

• Poltical or non-career members of the Foreign Service is coterminous with that of the appointing authority or subject to his pleasure
• Holding primarily confidential positions continue in office as long as the confidence in them endures; termination is justified on the ground of lack of confidence – removal: expiration of term
• Holding temporary or acting appointments – may be removed at any time, without necessity of just cause or a valid investigation.

Procedure in Administrative Case

1. Administrative case against a public official shall continue despite withdrawal of the complaint since they do not involve purely private matters but are impressed with public interest by virtue of the public character of the public office.

2. Substantial proof and not clear and convincing evidence or proof beyond reasonable doubt is sufficient.

• Satisfied when the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation renders him unworthy of trust and confidence demanded by his position.

Jurisdiction in Disciplinary Cases

1. Heads of ministries, agencies and instrumentalities, provinces, cities and municipalities have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction.

• Decision final in case the penalty imposed is suspension of not more than 30 days or fine in an amount not exceeding 30 days salary.
• Other cases, decision shall be initially appealed to the department head and finally to the Civil Service Commission and pending appeal, shall be executory EXCEPT when the penalty is removal, in which case it shall be executory only after confirmation by the department head.
• Committee to hear administrative charge against public school teacher .. representative of the teacher’s organization

2.Civil Service Commission has appellate jurisdiction. Case may be filed directly to it; it may decide on the case or deputize a department or agency