B. Public Office

Public Office

The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Agpalo, Administrative Law, Law on Public Officers and Election Law, 247-48, 2005)

Public Office Refers to Either Two Concepts:

• Functional unit of government – It is within the framework of government organization, and refers to any major functional unit of a department or bureau including regional office.
• Position - Held by an individual whose functions are defined by law or regulation (Agpalo, Administrative Law, Law on Public Officers and Election Law, 247, 2005)

Essential characteristics of “public office:”

Elements of a public office

• The position is created by the Constitution, by the legislature, or under authority granted by the legislature.
• A portion of the government’s sovereign power is delegated to the position for the public’s benefit. The key inquiry is whether the officer carries out a sovereign function.
• The position’s powers and duties are defined, expressly or impliedly, by the Constitution, the legislature, or legislative authority.
• Its duties are performed independently, subject to law, unless the position is placed under the general control of a superior office or body.
• The position has a degree of permanence or continuity; its tenure need not be fixed.

State v. Taylor, 144 N.W. 2d. 289,1966; Javier v. Sandiganbayan, G.R. 147026-27, 2009.

Public Officer

A person whose duties, not being clerical or manual in nature, involve the exercise of discretion in the performance of the functions of the government when used with reference to a person having authority to do a particular act or perform a particular function in the exercise of government power, officer includes any government employee, agent, or body having authority to do the act or exercise that function. (1987 Administrative Code)

Any person, by direct provision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the RP or shall perform in said government or for any of its branches public duties as an employee, agent, or subordinate official, of any rank or class. Temporary performance of public function is sufficient to constitute a person a public official. (RPC, art. 203)

Includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service (noncareer or career), receiving compensation, even nominal, from the government. (Anti-Graft and Corrupt Practices Act)

Includes elective and appointive officials and employees, permanent or temporary, whether in the career or noncareer service, including military and police personnel, whether or not they receive compensation, regardless of amount. (Code of Conduct and Ethical Standards of Public Officers)

Officer means any person holding any public office in the govt. of the RP by virtue of an appointment, election, or contract (executed bet. private person and government. (RA 7080)

AS TO EFFECT:

• Does not absolve civil liabilities for an offense
• Does not restore public offices already forfeited, although eligibility for the same may be restored (Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989).

UP NOTES

Public Officer v. Employee, Distinguished

An officer is distinguishable from a mere employee in the sense that:

• Position has greater importance, dignity and independence;
• Required to take an official oath, and to give an official bond;
• Greater liability to account for misfeasance or nonfeasance in office;
• Tenure of office is usually different from that of an ordinary employee.

Classifications of Public Officer

• Constitutional or statutory
• National or local
• Legislative, executive or judicial
• Lucrative or honorary
• Discretionary or ministerial
• Appointive or elective
• Civil or military
• De jure or de facto

Classes of non-competitive positions

• Policy determining – where the officer lays down principal or fundamental guidelines or rules or formulates a method of action for government or any of its subdivisions. (Nachura, p. 418)
• Primarily confidential – when the nature of the office requires close intimacy between the appointee and appointing authority which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayal of personal trust on confidential matters of state.
• Highly technical – it means something beyond the ordinary requirements of the profession. Hence, its determination is always a question of fact. (CSC v. Javier, G.R. No. 173264, Feb. 22, 2008)

When Position Primarily Confidential

A position is considered primarily confidential if the nature of the office requires close intimacy between the appointee and appointing authority which ensures freedom of intercourse without embarrassment or freedom from misgiving or betrayal of personal trust on confidential matters of state.

Offense committed in relation to public office

• Accused is any one of the Public Officers and Employees in Subsection (a) of Section 4 of P.D. No. 1606, as amended by R.A. No. 8249;
• Accused commits any other offense/felony, than those specified in Subsection (a), whether simple or complexed with other crimes;
• The offender commits such other offense/felony in relation to his office.

Meaning of  “In relation to his office”

• It cannot exist without the office, or
• If the office is a Constituent element of the crime as defined in the statute, or
• Must be intimately connected with the office of the offender

Public Official

Those who hold governmental office. (Gertz v. Welch, 418 U.S. 323, June 25, 1974)