LOPEZ, Viveka C.

Chapter III De Facto Officer; Chapter IV: Compensation, Benefits and Privileges
De Jure De Facto
One who is in all respects One who assumed office under a color of a known appointment or election,
legally appointed or elected void because the officer was not eligible or because there was a want of power
and qualified to exercise the in the electing body, or by reasons of some defect o irregularity in its exercise,
office. such ineligibility, want of power, or defect being unknown to the public.
(43 Am. Jur. 226.) (Aparri vs. CA, 127 SCRA 231 [1984])

Other definitions/characteristics of a de facto officer:

o Assumed officer under an incomplete appointment, even if such assumption is tolerated or
acquiesced by superior officers and even when the appointed had served for years.
o Discharging its duties under color of authority.
o To constitute a de facto officer, there must be an office having a de facto existence. (Codilla
vs. Maritnez, 110 Phil. 24 [1960]) (No de facto officer in a de facto office*.)
o Holds office “by or pursuant to a public unconstitutional law, before the same is adjudged to
be such.” (Ibid.)
o A judge who resigned his position until he is formally notified of the acceptance of his
resignation. (Gamboa vs. CA, 108 SCRA 1 [1981])
o Discharges the office pursuant to an appointment which requires approval by another officer
or office (ex. CSC) until the appointment is finally approved or disapproved.
o An elective officer who has been proclaimed and had assumed office but was later on ousted
in an election protest or quo warranto. (Rodriguez v. Tan, 91 Phil. 724)
o Applies to an appointive officer whose appointment is subsequently declared invalid
for lack of eligibility. (Ibid.)
*Instance where there’s a de facto officer even when there is no de jure office: A law creating an office is declared
invalid. Its subsequent invalidity makes the person appointed thereto a de facto officer during his tenure.

Is a de facto officer a usurper? No. (See: Malalauan vs. COMELEC, 69 SCAD 160, 194 SCRA 317
[1991])
Usurper De Facto
One undertakes to act officially without any color of One who exercises the duties of an officer under a
right. color of appointment or election.
Examples of officers who are NOT a de facto officer, but a usurper.
o A person whose appointment has been immediately questioned before the appropriate agency
(if declared invalid) (Tuanda v. Sandiganbayan, 65 SCAD 94, 249 SCRA 342 [1995])
o A municipal mayor, who filed his COC for congressman and who thereafter withdrew it and
resumed the duties of mayor. He has no title to such office. (Monroy v. CA [1967])
Elements:
(1) There must be a de jure office*;
(2) There must be a color of right or authority;
(3) There must be actual physical possession of the office in good faith;
(4) There must be a general acquiescence by the public or a recognition by the public
*An office created by law which has been subsequently declared unconstitutional is not a de jure office.

De facto Officer Doctrine–Public interest demands that acts of persons holding, under color of
title, an office (created by a valid statute) be deemed valid insofar as the public is concerned.
This is not for the protection of the de facto officer, but of the public. The principle is founded on
public policy and convenience.
LOPEZ, Viveka C.
Chapter III De Facto Officer; Chapter IV: Compensation, Benefits and Privileges

Validity of acts
o De facto officer’s acts are valid insofar as third parties are concerned (e.g., decision or
order of a judge who resigned issued in a case during such period is valid)
o His official acts cannot be attacked collaterally by a writ of prohibition or by a suit to
enjoin the execution of the decision.
o An officer seeking to justify his act or defending his right as a public officer must allege
and prove that he is a de jure officer. This is to discourage the seizure of public office.
Compensation – entitled to emoluments of the office; requirements: Good faith + actual services
o Cannot be made to reimburse funds disbursed during his term of office. (See Civil Liberties
Union v. Exec. Secretary)
o Officer who continued in office even when he no longer had any right nor color of title to
remain therein can be made to account for the salary he received in favor of the rightful
incumbent to the office (Because he’s not a de facto officer, but a usurper)
o GR: Ousted elective official not obliged to reimburse; EXC: unlawful or tortious acts
o Does not enjoy the guarantees of security of tenure. (Ibañez v Comelec, 19 SCRA 102)

Proceeding to try title of de facto officer

- Cannot be assailed collaterally, only directly by quo warranto.
- Prohibition does not lie to determine the title of a de facto officer. (Nacionalista Party v.
Bautista)
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A. Compensation
Usually associated words: Salary, per diem, honorarium
Salary Per diem Honorarium
Pay or compensation given as Daily allowance given for each Something given not as a matter
the base pay of the position or day to an officer or employee of of obligation but in appreciation
rank as fixed by law or the government that is away for service rendered, a voluntary
regulations, excluding: from his home base. Traditional donation in consideration of
o all bonuses, per diems, meaning: reimbursement for services which admit of no
allowances and extra expenses (e.g., lodging compensation in money.
overtime pay. cost)
Note: What is controlling is the nature of the remuneration rather than the label attached to it. (GSIS v.
Civil Service Commission, 245 SCRA 179 [1995])
Basic rules on compensation:
1. Right to compensation – statutory right; only entitled to so much as the law grants
o Basic requirements: (1) existence of a legally created position with fixed
compensation or emolument attached to the position; (2) issuance of a valid
appointment; (3) rendition of service being paid; (4) payment to the right person.
(Sec. 191, COA Gov’t Auditing Rules & Regulations, COA Circ. 91-368, Dec. 19, 1991)
o De fact officers are legally entitled to the emoluments of the office. (Malalauan v.
COMELEC, 69 SCAD 160, 254 SCRA 397 [1996]))
o Public officers who are reservists may be called to active duty. They do not lose
their positions nor suffer loss of pay. (Mascarinas v. Abellana, 15 SCRA 473 [1965])
2. Salary as incident of office
o As in the case of an oath, the salary or fees are mere incidents and form no part of
the office. (Triste v. Leyte State College Board of Trustees, 192 SCRA 326, 338 [1990])
LOPEZ, Viveka C.
Chapter III De Facto Officer; Chapter IV: Compensation, Benefits and Privileges
3. Salary may not be garnished
o GR: Money in the hands of public officers, although it may be due government
employees, is not liable to the creditors of these employees in the process of
garnishment. Rationale: (1) Sovereignty: State cannot be sued in its own courts;
(2) moneys sought to be garnished, as long as they remain in the hands of the
disbursing officer of the government, belong to the latter; (3) public policy.
o EXC: Voluntary “garnishment” (e.g., GSIS)
o Salary check doesn’t belong to gov’t officer/employee before it is physically
delivered to him. (De la Victoria v. Burgos, 62 SCAD 112, 245 SCRA 374 [1995])
Government policy on compensation
1. All government personnel shall be paid just and equitable wages
2. Basic compensation for all personnel in the government, GOCCs, financial institutions
shall be generally comparable w/ those in the private sector doing comparable work
3. Total compensation provided for gov’t personnel must be maintained at a reasonable
level in proportion to the national budget.
4. A review of government compensation rates shall be conducted periodically.

(4) Main Categories of Positions in Government for the purpose of salary grade (“S.G.”) S. G.
Professional Positions of a managerial character; require intense and thorough 9-33
supervisory knowledge of a specialized field (Bachelor’s degree or higher)
Professional non- Requires exercise of a particular profession; thorough knowledge 8-30
supervisory in the field of arts and sciences (at least 4yrs of college studies)
Sub-professional Supervisory functions over a group of employees; technical, 4-18
supervisory manual, clerical lines, short of professional work; skills in arts,
crafts, or trades (secondary/vocational or up to 2yrs of college)
Sub-professional non- Structured work in support of office or fiscal operations; crafts, 1-10
supervisory trades or manual work (elem./secondary or up to 2yrs of college)

S.G. Position
33 President
32 Vice-President, Senate President, Speaker of the House, Chief Justice
31 Senators, Assoc Justices, Chairmen (ConComms), other positions of equivalent rank
30 Members of Constitutional Comms (ConComms), other positions of equivalent rank
29-1 DBM is tasked to prepare the Index of Occupational Service based on the ff.: (1) Education and
experience required to perform duties & responsibilities; (2) Nature and complexity of the work to
be performed; (3) Kind of supervision received; (4) Mental and/or physical strain required in the
completion of the work; (5) Nature and extent of internal and external relationships; (6) Kind of
supervision exercised; (7) Decision-making responsibility; (8) Responsibility for accuracy of
records and reports; (9) Accountability for funds, properties, equipment; (10) Hardship, hazard and
personal risk involved in the job.
Salary rates in LGUs and of military and police personnel
RA 7610 (LGC) prescribes the rates of pay of elective officials by making reference to the salary grades as
prescribed in RA 6758 (Compensation and Position Classification Act of 1989).
30 City mayor, Provincial governor
27 Municipal mayor
Sec. 10, RA 6758 (incorporated as part of RA 7160) provides that rates of pay in LGUs shall be determined
on the basis of class and financial capability of each unit, but shouldn’t exceed percentages of rates under
Sec. 7, RA 6759. Note: A local gov’t official’s actual salary may be less than the Salary Schedule under
Sec. 7. But this has no bearing on such official’s Salary Grade.
LOPEZ, Viveka C.
Chapter III De Facto Officer; Chapter IV: Compensation, Benefits and Privileges
Salary schedule provided in RA Nos. 6638, 6648, 6638, 1134, 3725, and 6658 prescribe the base pay and
longevity pay of military and police personnel.
“Grade” – grouping of positons sufficiently equivalent so that they may be lumped together in one range of
basic compensation.

Constitutional restrictions on compensation

Senators and Salary No salary increase until after expiration of full term of
Members of HoR determined those approving (representatives) or during whose term
President and VP by law. the increase was approved (Pres/VP)
CJ, AJs, judges No salary
of lower court Salary fixed decrease
Chairman, by law during
Commissioners tenure or
during
Ombudsman and Same rank Shall receive same salary as Chairman and Members of
continuance
his Deputies of Chairman ConComms
in office.
and
Members,
respectively
Double Compensation
o Sec. 17, Act No. 4187 “…no full time [gov’t officer/employee] shall receive any kind of
additional or extra compensation or salary” EXCEPT:
Chairman or members of gov’t-owned/controlled entities/enterprises; auditors/accountants;
Provincial and municipal treasurers and their employees; observers of the weather bureau; those
authorized to receive extra or additional by virtue of [this] Act.
o Sec. 8, Art. IX-B – no elective or appointive public officer/employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law.
o Sec. 59, Book VI, ’87 Admin Code – officials and employees duly appointed by competent
authority (exc: VP, Cabinet members and their deputies and assistants) may receive
allowances or honoraria at the President’s discretion
o Gov’t official who has retired and received/receiving retirement benefits/monthly pension
and re-enters the governmenthis salary/compensation ≠ double compensation

Per Diems
1. Generally allowed to members and secretaries of gov’t boards for every attendance in a
board meeting where there is a quorum
2. Payment of additional per diem for any subsequent meeting during the day – not allowed
3. Special meeting or session must be called by the Chairman or any member duly
authorized in order to be valid
Honoraria
1. Gesture of appreciation for the service of one w/ expertise of professional standing in
recognition of his broad/superior knowledge in specific fields under the ff. circumstances:
a. Resource persons by virtue of their expertise in a specific subject area or experts
in handing sessions which involve group processes (lectures, discussants, etc.)
b. Researchers, technical and support personnel
c. Gov’t officials/employees on detail or special assignment in another office
d. Gov’t officials/employees by virtue of membership in inter-agency committees
and /or projects
e. Officials/employees detailed to foreign-assisted projects