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MID-TERM EXAMINATION IN ADMINISTRATIVE LAW, PUBLIC OFFICERS &

ELECTION LAW
ARELLANO UNIVERSITY SCHOOL OF LAW
FIRST SEMESTER, SY 2008-2009
1. Define public office. How is it created? It is 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 creating power,
an individual is invested with some portion of the sovereign functions of the state to be exercised by him
for the benefit of the body politic. It may be created by the constitution, by legislative enactment, or by
authority of law.
2. ho is a de facto officer? !an a usurper ripen into a de facto officer? hy? " de facto officer is
one whose acts, though not those of a lawful officer, the law, upon principles of policy and #ustice, will
hold valid so far as they involve the interests of the public and third persons, where the duties of the
office were exercised$
a% without a &nown appointment or election, but under such circumstances of reputation or
ac'uiescence as were calculated to induce the people, without in'uiry, to submit to or invo&e his action,
supposing him to be the officer he assumed to be(
b% under color of a &nown and valid appointment or election, but where the officer had failed to
conform to some precedent, or condition, as to ta&e an oath, give a bond, or the li&e(
c% under color of a &nown appointment or election, void, because the officer was not eligible, or
because there was a want of power in the electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power, or defect being un&nown to the public( and
d% under color of an election or an appointment by or pursuant to a public, unconstitutional law
before the same is ad#udged to be such.
)es, a usurper can ripen into a de facto officer under circumstances falling under paragraph *a%
above.
+. hen is an appointment regular and when is it ad interim? "rt. ,II, -ec. 1. of the !onstitution
mandates the appointment by the /resident of certain public officers with the consent of the !ommission
on "ppointments. In this regard, the appointment is regular when it is issued after the nomination is
confirmed by the !ommission on "ppointments when !ongress is in session. "n ad interim appointment
is issued prior to such confirmation and when !ongress is in recess.
0. Distinguish preventive suspension pending investigation and preventive suspension pending
appeal? In which of these two *2% is the respondent public officer entitled to bac&wages and under what
condition1s? /reventive suspension pending investigation is imposed on a civil service employee who is
under investigation for an administrative offense. It is a preliminary step in an administrative
investigation and it is not in any way the final determination of his guilt. Its purpose is to prevent the civil
service employee from influencing in any manner the outcome of the investigation. It is limited to a
maximum of ninety *23% days. Investigation pending appeal constitutes a penalty that has to be served
by the civil service employee where he has been found guilty of the administrative charge and he appeals
from the adverse decision.
" civil service employee is entitled to bac&wages corresponding to the period of his preventive
suspension pending appeal if he is exonerated of the administrative charge but not for the period
corresponding to his preventive suspension pending investigation. 4he reason for this is that suspension
pending investigation is not a penalty. However, if there is absolutely no basis for his preventive
suspension pending investigation and the same is un#ustified, he may be entitled to bac&wages for the
period corresponding to his preventive suspension pending investigation.
5. hat is the scope of the !ivil -ervice? 4he !onstitution provides that the !ivil -ervice embraces
all branches, subdivision, instrumentalities, and agencies of the 6overnment, including government7
owned and controlled corporations with original charters.
.. hat characteri8e the career service and what characteri8e the non7career service? 4he career
service is characteri8ed by i% entrance based on merit and fitness to be determined as far as practicable
by competitive examinations or based on highly technical 'ualifications, ii% opportunity for advancement
to higher career positions, and iii% security of tenure.
4he non7career service is characteri8ed by i% entrance on bases of other than those of usual tests
of merit and fitness for the career service, ii% tenure which is limited to a period specified by law, or
which is co7terminous with that of the appointing authority or sub#ect to his pleasure, or which is limited
to the duration of a particular pro#ect for which purposes employment was made.
9. hat constitutes nepotism? :epotism is the practice of appointing to public office relatives up to
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the third degree of consanguinity of affinity of the appointing or recommending authority, or the chief of
the bureau or office, or of the offices exercising immediate supervision over the appointee.
;. Distinguish the following personnel actions from each other$ a% transfer, b% detail, c%
reassignment, and d% detail. a% 4ransfer is movement from one position to another which is of e'uivalent
ran&, level or salary without brea& in service involving issuance of an appointment. 4he transfer may be
from one department or agency to another or from one organi8ational unit to another in the same
department or agency. b% <eassignment is movement from one organi8ational unit to another in the same
agency which shall not involve a reduction in ran&, status, or salary. It is temporary in nature. c% Detail is
a movement from one agency to another without the issuance of an appointment. It shall be allowed only
for a limited period. It is temporary in nature.
2. In the appointment of public officers, when does the =next-in-rank> rule apply? It applies to the
filling up of a vacancy by the promotion of a civil service employee. It does not apply when the vacancy
is filled up not by means of promotion but by transfer, reinstatement, re7employment, or by appointment
of persons with the appropriate civil service eligibility.
13. ?xplain and distinguish from each other the principle of finality of administrative action, the
doctrine of exhaustion of administrative remedies, and the doctrine of prior resort. 4he principle of
finality of administrative action states that courts are reluctant to interfere with the administrative action
prior to its completion and finality. " final resolution or order that puts an end to the administrative action
is a condition precedent for resort to the courts. 4he doctrine of exhaustion of administrative remedies
re'uires that when an administrative remedy is provided by law, relief must be sought by exhausting this
remedy before the courts will act. :o recourse can be had before the courts until all such administrative
remedies provided by law have been exhausted. 4he doctrine of prior resort states that the courts cannot
and will not determine a controversy involving a 'uestion which is within the #urisdiction of an
administrative tribunal prior to the decision of that 'uestion by the administrative tribunal where the
'uestion demands the exercise of the special &nowledge, experience, and services of the administrative
tribunal.
11. <osita was charged before the @oard of Dentistry for malpractice. In the course of the proceedings
for the revocation of <ositaAs license, the complainant as&ed that subpoena ad testificandum be served
on both <osita and Bolita, the latter being one of the witnesses, to testify in the case. !an they be
compelled to testify? ?xplain. *13 pts.% 4he administrative proceeding for the revocation of <ositaAs
professional license parta&es of the nature of a criminal proceeding because it involves the ris& of
deprivation of property, the professional license being considered in this instance as a property right.
Hence, following the ruling in @eng8on vs. -enate @lue <ibbon !ommittee, 23+ -!<" 9.9, <osita cannot
be compelled to testify because it will constitute a violation of her constitutional privilege against self7
incrimination. Bolita being an ordinary witness, she cannot refuse to testify and she can only invo&e the
privilege against self7incrimination when each 'uestion is as&ed of her.
12. 4he government organi8ed C)D Eining !orp. pursuant to the provisions of the !orporation !ode.
4he authori8ed capital stoc& of C)D Eining !orp. was fully subscribed and paid by the government. Fpon
complaint filed with the !ivil -ervice !ommission against Guan de la !ru8, the 6eneral Eanager of C)D
Eining !orp., for dishonesty, neglect of duty, and immoral conduct, the !ivil -ervice !ommission
rendered #udgment finding him guilty and imposing on him the penalty of dismissal from the service. If
you were the counsel for Guan de la !ru8, how will you defend him from such #udgment? ?xplain. *13
pts.% I will attac& the #urisdiction of the !ivil -ervice !ommission. 4he C)D Eining !orp. having been
organi8ed pursuant to the provisions of the !orporation !ode, it is not a government owned corporation
that has an original charter. It is not covered by the civil service because the !onstitution provides that
only those government owned and controlled corporations with original charters are embraced in the civil
service. @eing an officer of a government owned corporation that is not embraced in the civil service,
Guan de la !ru8 is not sub#ect to the civil service law and its rules and regulations. His employment is
governed by the provisions of the Babor !ode. 4he !ivil -ervice !ommission does not, therefore, have
any #urisdiction over him and its decision dismissing him from the service is void.
1+. Hor leaving her class and #oining a protest rally, Earia de la !ru8, a public school teacher, was
placed under preventive suspension during the period of her investigation which lasted for five *5%
months. Fpon the conclusion of the investigation and her exoneration of the charges, Earia de la !ru8
filed a claim for bac&wages corresponding to the period of her preventive suspension. Is she entitled to
payment of bac&wages? ?xplain. *13 pts.% )es, she is entitled to bac&wages but only corresponding to
sixty *.3% days. " civil service employee facing an administrative charge and who has been placed under
preventive suspension cannot claim for bac&wages corresponding to the period of her preventive
suspension. 4he reason for this is that preventive suspension is not a penalty but merely a preliminary
step in an administrative investigation and it is not a determination of the guilt of the civil service
employee. 4he maximum period for preventive suspension, however, is 23 days from the date of the
suspension. Earia de la !ru8A preventive suspension was sixty *.3% days more than the maximum
prescribed by law. 4he additional sixty *.3% daysA suspension was, therefore not only un#ustified but
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unlawful. -he should be entitled, therefore, to bac&wages corresponding to the sixty *.3% days.
10. Fpon his appointment as Division !hief, Guan de la !ru8 immediately assumed office and discharged
the functions of his office on "ugust 1, 233;. Fn&nown to Guan de la !ru8, a similar appointment to the
same position in the same office was issued to Earia de la !ru8 on Guly 1, 233; and who immediately too&
her oath but did not report to office. ?xplain the character of each of the appointment. hat remedy, if
any, does Earia de la !ru8 have? *13 pts.% 4he appointments of Guan de la !ru8 and Earia de la !ru8 are
both valid. It does not appear, however, that Guan de la !ru8 too& his oath of office before discharging the
functions of his office. He is at best a de facto officer. Earia de la !ru8 having accepted the appointment
and having ta&en her oath, she is considered the de #ure officer. Her remedy is to file an action for 'uo
warranto not later than one year from "ugust 1, 122;.
15. Fnder the Babor !ode, an appeal from the decision of the Babor "rbiter shall be made to the
:ational Babor <elations !ommission *:B<!% within ten *13% days from receipt of the decision. "ggrieved
by the decision of the Babor "rbiter in the complaint for illegal dismissal filed by its ,ice /resident, C)D
Eining !orp. filed a petition for review directly with the !ourt of "ppeals on the sole ground that the :B<!
is without #urisdiction over the complaint for illegal dismissal because the employee concerned is an
elected officer of the company. If you were the Gustice designated to write the decision, how will you
resolve the issue? *13 pts.% 4he petition for review will have to be granted. 4he doctrine of exhaustion
of administrative remedies will not apply to this case because no administrative action is possible since
the 'uestion involved is purely a legal 'uestion. 4his is one of the exceptions to the application of the
doctrine of exhaustion of administrative remedies.
"lternative answer$ 4he petition will have to be denied because of non7exhaustion of administrative
remedies. C)D Eining !orporation should have filed an appeal before the :ational Babor <elations
!ommission pursuant to the provisions of the Babor !ode. 4he 'uestion involved is not a pure 'uestion of
law because it re'uires the prior determination of whether or not the ,ice /resident is an officer elected
by the @oard of Directors.
Each of the following questions requires two (2) answers. You have to give both correct answers for each
of the questions to be able to earn the full credit. If you give only one () correct answer! you will not earn
any credit.
1.. In illiam -ha&espeareAs play, "he #erchant of $enice, /ortia is the rich, beautiful and intelligent
heiress. Hor which character and in which other play did illiam -ha&espeare use the name /ortia?
/ortia, the wife of @rutus, in the tragedy Gulius !aesar.
19. 4he presumptive candidates for the F.-. /residency are two *2% members of the F.-. -enate, -en.
@arac& Ibama and -en. Gohn Ec!ain. hich F.-. states do they respectively represent? Illinois and
"ri8ona
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