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CIVIL SERVICEECIMMISSION

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BONIFACIO, Jose A. Number: 1400629Re: EligibilityA/alidity for Re-employment in a

Government Agency under a Job-Order Contract Promulgated: 24 APR 2014Of a Former Public Servant who Availed of theRetirement/Separation Package under ExecutiveOrder (EO) No. 366 dated October 4,2004, andLikewise Previously Ran and Lost in theImmediately Preceding Barangay Elections

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RESOLUTION

Jose A. Bonifacio, a former employee of the Department of Agrarian Reform(DAR), in a Letter-lnquiry dated January 21,2014 seeks a resolution from theCommission on the eligibility/validity for re-employment in a government agencyunder a Job-Order Contract of a former public servant who availed of theretiremenVseparation package under Executive Order (EO) No. 366 dated October 4,2004, and who likewise previously ran for a position and lost in the 2013 BarangayElections. Salient portions of Bonifacio's tetter read,-as f,ollows:

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' "Our department, Department of Agrarian Reform, is at

present implementing EO366 and some of us availed of the earlyretirement with incentives. However, we who availed of the incentivesuntil now we have not yet received said packages, hence we are stillworking in our Agency as holdover capacity while waiting saidpackages as mandated by the 80366. Our Departraent implementedsaid EO366 ffictive August 201 3. On October I , 2013 we who availedthe EO366 with incentives are now considered as HOLDOVERretirees ofour agency.

"Last October, 2013, olrr nation conducted a BarangayElection and two of our fficemates who ovailed of the 8O366 withincentives filed their candidacy, the other won and the other lost.

"The winning individual did not reporl already and signify hisintention not to continue receiving hi.s salary from our department,however the losing individual insisted he can return for work as perCSC Resolution No. 02-0012 Re: GATO, Vicente 5."

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InaR.A.C.E'toserue:Responsiue,Accessible,Cortrteousuyf,EffectivePublicseruice

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"1. Can an individual who availed of the EO366 withincentives who ran in a barangay election is in the same footing aswith the case in CSC Resolution No. 02-0012 without defeating theprovision of Section 7 of RA 67 I 3;

"2. Can an individual who availed of the 8O366 withincentives can be hired as equaled to CSC Resolution No. 02-0012without defeating the provision of Section 7 of RA 6713.

"Hopingfor your immediate resolution on this matter becauseof the transcendental issue since our government is at presentimplementing the EO366 and we who are affected, who much stillwanted to stay, have no choice than to availed the packages of EO366will be bawed from entering again in the government service withinfive years wherein we still beyond the age of compulsory retirementage and capable to served the public if again given the opportunity."

As a matter of policy, the Commission does not render any definitive legalopinion over facts, circumstances or issues relative to a case or controversy that maybe eventually referred to, or elevated for resolution by the Commission through acomplaint or on appeal or petition for review. However, considering the importance ofthe issues posited in Bonifacio's inquiry, the Commission deems it proper to render adefinitive resolution thereto for the mutual benefit and guidance of the public servantsaffected.hy.the-p-ro-v-isio$s of E. O. No. 36,6and the g_o_,ygrnmeLt Agqrrcies qgncgrye*d.

The issues to be resolved are, as follows:

l. Whether a public servant affected by the provisions of EO No. 366, whoavailed of the retirement/separation benefits may be rehired in governmentwithout violating the provision of Section 7 of RA 6713; and

2. Whether a public servant affected by the provisions of EO No. 366, whoavailed of the retiremenVseparation benefits, and who likewise ran and lost inthe 2013 Barangay Elections may be rehired in government without violatingthe provision of Section 7 of RA 6713.

In point is Section 17, Rule VII of the Implementing Rules and Regulations(IRR) of E. O. No.366, which reads, as follows:

"Section 17. Policy on Rehiring of Retired/ SepuratedPersonnel. Government personnel who voluntarilyretired/separated as a result ofthe rationalization efforts oftheDepartment/Agency concerned shall not be appointed or hiredin anv agencv of the Executive Branch. including in

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GOCCs/GFIs. except in educational institutions and hospitals,within a period of Jive (5) years. Reemployment in any Branchof Government shall be considered as new entry to the civilservice.

"Provision of consultancy services by governmentpersonnel who voluntarily retired/separated as a result of therqtionalization shall be governed by Section 7 of RA 6713 orthe Code of Conduct and Ethical Standards for Public Officialsand Employees dated 20 February 1989." (Underscoringsupplied)

Relative thereto, Section 7 of RA 6713 or the Code of Conduct and EthicalStandards for Public Officials and Employees provides:

"Section 7. Prohibited Acts and Transactions. - In addition toacts and omissions of public fficials and employees now prescribed inthe Constitution and existing laws, the following shall constituteprohibited acts and transactions of any public fficial and employeeand are hereby declared to be unlawful:

"(a) Financial and material interest. - Public fficialsand employees shall not, directly or indirectly, have anyfinancial or material interest in any transaction requiringthe approval of their ffice.

*" *'-6) oitiiae employmeiit-"ia-oth"Vfriiini{'ielateid

' thereto. - Public fficials and employees during theirincumbency shall not:

"(l) Own, control, manage or accept employment asofficer, employee, consultant, counsel, broker, agent,trustee or nominee in any private enterprise. regulated,supervised or licensed by their ffice unless expresslyallowed by law;

" (2) Enqage in the private oractice o-f their professionunless authorized bJt the Constitution or law. provided.that such practice will not conflict or tend to conflict withthe ir qfficial functions ; or

" (3) Recommend any person to any position in a privateenterprise which has a regular or pending fficialtransaction with their office.

./* +

SpecialistCommission Secretariat & Liaison OffiC

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"These prohibitions shall continue to apply for a periodof one (l) year after resignation, retirement, orseparation from public ffice, except in the case ofsubparagraph (b) (2) above, but the pro-fessionalconcerned cannot practice his profession in connectionwith any matter be-fore the o.ffice he used to be with. inwhich case the one-year prohibition shall likewiseapply. " (Underscoring supplied)

The provision of Section 17, Rule VII of the IRR of E. O. No. 366, expresslyprohibits the reernployment of public servants who voluntarily retired/separated as aresult of the rationalization efforts of the Department/Agency concerned in anyagency of the Executive Branch, including in GOCCs/GFIs, except in educationalinstitutions and hospitals, within a period of five (5) years. The reemployment orrehiring contemplated in the said provision of the rules clearly refers to reappointmentin the government service and not services covered by Contracts of Services, JobOrders, or Consultancy Services.

The intent of the rule is evident in the statement in the last sentence of the saidprovision which reads: "Reemployment in any Branch of Government sholl beconsidered as new entry to the civil service ". Further, it is clearly established underRule XI of the Omnibus Rules on Appointment and Other Personnel Actionsl thatContracts of Services, Job Orders, or Consultancy Services are not consideredgovernment services and are not covered by civil service law.

In connection with the foregoing discussion, particularly, on consultancyservices by-fioVdr"ffi'dnt personnel who voiuntarily retiTeil/sepafded as a-fesult of therationalization, Section 17, Rule VII of the IRR of E. O. No. 366 provides that it shallbe subject to the provision of Section 7 of R.A. No. 6713. A perusal of the provisionsunder Section 7 of R.A. No.67l3 reveals that the provision relevant to consultancyservices is that covered under subparagraph (b) (2) which refers to the prohibition onthe private practice of profession in connection with any matter before the office heused to be with for a period of one (l) year after resignation, retirement, or separationfrom public office.

The prohibition on the private practice of profession, as contemplated inSection 7 of R. A. No. 6713, refers to instances wherein the former public servant, inhis/her practice of profession, which may be in the form of consultancy services,appears, intervenes, or transacts before his former office in connection with anymatter before said office, for and in behalf of his personal or of a third party's interest.The evil sought to be avoided in this situation is the undue influence or pressure thatthe fomrer public servant may pose upon his/her fnrmer co-ernployees and/or

t CSC M.rorandum Circular No. 40, s. 1998, as amended.

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subordinates, which may result in a deliberate or unintentional undue advantageafforded for the benefit of his cause or for the third party which he/she represents.

Said prohibition does not apply in cases of consultancy services where theservices of a former public servant who voluntarily retired/separated as a result of therationalization, was contracted for and in favor of his/her former office. In this case,the interest being served is that of the public office/agency that hired him and not hispersonal or of a third party.

Accordingly, anent the first issue, the Commission rules that reemployment inthe government service of a public servant who voluntarily retired or is separated as aresult of the rationalization efforts of the Department/Agency concerned in anyagency of the Executive Branch, including in GOCCs/GFIs, except in educationalinstitutions and hospitals, within a period of five (5) years, is prohibited pursuant toSection 17, Rule VII of the IRR of E. O. No. 366. The same prohibition applies withina period of one (1) year to an affected public servant who subsequently engages inconsultancy services, whereby he/she appears, intervenes, or transacts before his/herformer office in connection with any matter before said office, for and in behalf ofhis/her personal or of a third party's interest.

On the other hand, former public servants who voluntarily retired/separated asa result of the rationalization efforts of the Department/Agency concerned, are notbarred from rendering services to any government agency under Contracts ofServices, Job Orders or Consultancy Services where the services of a former publicservant were contracted for and in favor of his/her former office.

Anenttfid*5E-doncl'issue, the same is similar to the first issue except that in thiscase, the inquiry focuses on whether a former public servant who voluntarilyretired/separated as a result of the rationalization efforts of the Department/Agencyconcerned and who likewise was previously a candidate for a position and lost in the2013 Barungay Elections may be rehired in government without violating theprovision of Section 7 of R. A. No.6713.

Section 17, Rule VII of the tRR of E. O. No. 366 which states the prohibitionon reappointment or rehiring of public servants affected by rationalization does notprovide a special classification or provision for those who likewise became acandidate in an election. At any rate, limitation on the appointment of a candidate wholost in any election is set forth in other laws and rules.

section 6o Article IX-B of the 1987 constitution likewise states that:

"SEe. 6. No candidate u,ho hcs lost in any election shall,within one year after such election, be appointed to any ffice in theGovernment or any government-owned or controlled corporation or inany of its subsidiaries."

T

ES'/,^"

Commission Secretariat & Liaison Offic

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On the other hand, Section 4, Rule XIII of the Omnibus RulesAppointment and Other personnel Actions2 provides, as follows:

"Section 4. A person who lost in an election (excentBarsnqay electiod shall not be eligible for appointment orreemployment to any ffice in the government or any government-owned or controlled corporation within one year following suchelection."

Similarly, Section 94 (b) of the Local Government Code of 1991, states:"Section 94. Appointment of Elective and Appointive Local

Officials; Candidates Who Lost in an Election.

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"(b) Except for losing candidates in barangqv elections nocandidate who lost in any election shall, within one (1) yearafter such election, be appointed to any ffice in theGovernment or any government-owned or controlledcorporations or in a any of their subsidiaries. " (Underscoringsupplied)

From the foregoing, it is clear that, except for losing candidates in barangayelections, other candidates in any election are disqualified from being appointed toany office in the government or any government-owned or controlled corporationwithin dne yar ftITowiflgSuch election.

In the case of GATO, Vicente S.3 the Commission ruled that those employedon job order basis do not hold a public appointive office within the contemplation ofCivil Service law and rules and the same does not violate the rule prohibitingappointments of losing candidates in an election within one-year from the date of suchelection. on the other hand, the one year prohibition d.oes not apply to losingcandidates in barangay elections.

Accordingly, anent the second issue, the Commission rules that aside from theprohibition/disqualification provided under Section 17, Rule VIt of the IRR of E. O.No. 366, there are no other provisions set forth in the laws and/or rules that prohibit apublic servant who voluntarily retired/separated as a result of rationalization and whois likewise a losing candidate in a barangay election from being appointed/rehired toany office in the government.

' sup.u.3 Re: query; Hiring of Non-winning Election Candidates on Job Order Basis; CSC Resolution No. 02-0012 dated January 3,2002,

:L"ffi*"Commission.secretariat & Liaison Office

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WHEREFORE, the commission hereby rules that reemployment in thegovernment service of a public servant who voluntarily retired/separated as a result ofthe rationalization efforts of the DepartmenVAgency concemed in any agency of theExecutive Branch, including in GOCCs/GFIs, except in educational institutions andhospitals, within a period of five (5) years, is prohibited pursuant to Section 17, RuleVII of the IRR of E. O. No. 366. The same prohibition applies within a period of one(1) year to an affected public servant who subsequently engages in consultancyservices, whereby he/she appears, intervenes, or transacts before hisflrer former officein connection with any matter before said office, for and in behalf of his/her personalor of a third party's interest pursuant to Section 7 of R. A. No. 6713.

On the other hand, a public servant who voluntarily retired/separated as aresult of the rationalization efforts of the Department/Agency concerned, is notdisqualified from rendering services to any government agency under Contracts ofServices, Job Orders or Consultancy Services where the services of a former publicservant was contracted for and in favor of his/her former office.

Further, a public servant who voluntarily retired/separated pursuant to E.O No.366 and who is likewise a losing candidate in a barangay election is not disqualifiedfrom being appointed/rehired to any office in the government by reason of his/herprevious candidacy in a barangay election. However, he/she shall not be appointed orhired in any agency of the Executive Branch including in GOCCs/GFIs, except ineducational institutions and hospitals, within a period of five (5) years pursuant toSection 17, Rule vII of the Implementing Rules and Regulation (IRR) of E.o. No.366.

.Queasn-Cjty.._-z-Uklt-1/r/14'/NIEVES L. OSORIO

Commissioner

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Commission Secretariat and Liaison Office"

BON IFACIO ReappointmenlJob Order (RATpLAN)O-0 t 4-02002 (C MS)/cslojoy

. DUQUE III

TS.

B. BONIFACIO

UR-T(I PAYdirEs