CITY MAYOR EULOGIO E. BORRES, CITY OF CEBU, CITY COUNCIL OF CEBU, CEBU CITY TREASURER AND CEBU CITY AUDITOR, PETITIONERS, VS. COURT OF APPEALS, GERMAN O. LUMAPAC AND BARTOLOME E…

Borres versus Court of Appeals

The Case

This is a petition for review on certiorari brought by the City Mayor of Cebu, the City of Cebu, the City Council of Cebu, the City Treasurer, and the City Auditor against the Court of Appeals, joined by two dismissed city employees, German Lumapac and Bartolome Elizondo. The private respondents were removed from their positions in the Office of the Vice-Mayor of Cebu City on the sole ground of lack of confidence, without any charge and without any hearing. The case matters because it fixes the rule on how a permanent appointee to a primarily confidential position in the civil service may be removed, and it clarifies when the doctrine of exhaustion of administrative remedies will not bar an immediate resort to the courts.

Procedural History

Lumapac and Elizondo, together with a third employee named Vicente Lao, filed a petition for mandamus with damages before the Court of First Instance of Cebu. After a pre-trial at which the parties submitted a stipulation of facts, the trial court, presided over by Judge Mateo Canonoy, rendered judgment declaring the dismissals of Lumapac and Elizondo illegal, ordering their immediate reinstatement, declaring them entitled to back salaries from the date of removal until reinstatement, and condemning the City of Cebu to pay those back salaries at the rates of 3,060 pesos and 2,160 pesos per annum respectively, plus 1,000 pesos as attorney's fees and the costs. The petition as to Vicente Lao was dismissed. Both sides moved for reconsideration, and both motions were denied.

Vicente Lao and the city officials appealed to the Court of Appeals, which affirmed the trial court in a decision promulgated on 11 April 1973. The city officials then interposed the present petition for review on certiorari before the Supreme Court, assigning four errors: that the appellate court wrongly found the appointments of Lumapac and Elizondo to be permanent; that it wrongly declared them illegally dismissed; that it failed to find that they had not exhausted administrative remedies; and that it affirmed the trial court in toto.

Facts

German Lumapac entered the service of the City of Cebu in December 1959 and, after holding various positions, was appointed Senior Security in the Office of the Vice-Mayor. His appointment was later changed from provisional to permanent, effective 16 November 1966, and that was his last appointment before his services were terminated. Bartolome Elizondo entered the service in January 1964 as Security Guard in the Office of the Vice-Mayor, and his last appointment was a salary adjustment to 2,160 pesos per annum. Both appointments were made on the recommendation of the then Vice-Mayor, Luis Diores, by the then Mayor, Carlos Cuison.

In the 1967 local elections, Sergio Osmena, Junior and Eulogio Borres won as Mayor and Vice-Mayor of Cebu City. Osmena did not assume office, so Borres became Acting Mayor. On 3 January 1968, upon assuming office, Borres terminated the services of Lumapac and Elizondo, effective upon their receipt of the termination letters that same day, on the ground of lack of confidence. At the time, both were members of the Government Service Insurance System and both carried efficiency ratings above eighty percent. Their positions were thereafter filled by three persons who were all non-eligibles, by appointments issued by Mayor Borres.

After their termination, the dismissed employees sent petitions to the Commissioner of Civil Service through the Regional Director in Cebu City, asking for annulment of their termination and for reinstatement. The Regional Director forwarded the matter, but the respondent Mayor never answered, and the Commissioner of Civil Service took no definite action even up to the filing of the case. It was then that they went to court.

Issues

• Whether or not private respondents Lumapac and Elizondo may be dismissed, without cause and without hearing, on the mere ground of lack of confidence.
• Whether or not their appointments were permanent, such that they enjoyed security of tenure.
• Whether or not they failed to exhaust administrative remedies before filing the action for mandamus.

Applicable Provisions

Section 4 of Article Twelve of the old Constitution, as quoted by the Court of Appeals, provides:

No officer or employee in the Civil Service shall be removed except for cause as provided by law.

This is the constitutional guarantee of security of tenure on which the whole case turns, because it protects even the permanent incumbent of a primarily confidential position.

Section 5 of the 1959 Civil Service Act, Republic Act Number 2260, provides:

Section 5. The Non-competitive Service. The non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service.

The Court uses this provision to hold that it is the nature of the position, and not a mere executive declaration, that finally determines whether a position is primarily confidential.

Ruling

On the first issue, the Court held that the dismissal was illegal. A position may be considered primarily confidential in two instances: first, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; or second, in the absence of such declaration, when by the nature of the functions of the office there exists close intimacy between the appointee and the appointing power, which insures freedom of intercourse without embarrassment or freedom from misgiving of betrayals of personal trust or confidential matters of state. But upon the enactment of the 1959 Civil Service Act, it is the nature of the position which finally determines whether a position is primarily confidential, and executive pronouncements are no more than initial determinations that are not conclusive in case of conflict. Even granting that the positions were primarily confidential, the Court applied its ruling in Gray versus De Vera: a permanent appointee to a primarily confidential position comes within the protection of the constitutional guarantee and may not be removed without a formal charge specifying the ground and without an opportunity to be heard. A curt note terminating his services without giving him a chance to know why, and to be heard, is offensive to that constitutional precept.

On the second issue, the Court held that the appointments were permanent. What characterizes an appointment is the nature of the appointment extended, and the very nature of their appointments is reflected in the appointment papers themselves. The Court also rejected the argument that their tenure was co-terminus with the term of the officials they served: they were assigned to the Office of the Vice-Mayor and not to a particular officer, so their right to stay was co-terminus with the office and not with the term of any specified incumbent.

On the third issue, the Court held that exhaustion of administrative remedies did not bar the action. The stipulation of facts showed that the employees had in fact gone to the Commissioner of Civil Service, who took no definite action. One of the recognized exceptions to the principle is when it is absolutely futile to resort to such remedies, as when the administrative body does not want to act or delays action on the problem at hand. Besides, the principle does not apply when the action of the administrative officer is manifestly illegal or was taken without lawful authority, as in this case.

Doctrine

A permanent appointee to a primarily confidential position in the civil service is protected by the constitutional guarantee that no officer or employee in the civil service shall be removed except for cause as provided by law. He may not be summarily dismissed on the ground of lack of confidence without a formal charge stating the ground for removal and without an opportunity to be heard. Whether a position is primarily confidential is determined finally by the nature of the position, not by executive pronouncement alone. And the doctrine of exhaustion of administrative remedies will not bar judicial relief where resort to the administrative body would be futile because of its inaction, or where the challenged action is manifestly illegal.

Disposition

The Supreme Court denied the petition and affirmed the decision of the Court of Appeals, so the dismissed employees won and their reinstatement with back salaries stood.

Remember This

The single line worth memorizing is that a permanent appointee to a primarily confidential position may be removed only for cause, after a formal charge and a hearing, because lack of confidence alone is not a lawful substitute for due process. Examiners like to use this case on the interplay between primarily confidential positions and security of tenure, and on the futility exception to the doctrine of exhaustion of administrative remedies.