Part I: Administrative Discipline A. Administrative Discipline: Basic Principle Mechanism by which public servants are made answerab...
Part I: Administrative
Discipline
A. Administrative
Discipline: Basic Principle
Mechanism by which public servants are made answerable
for acts or omissions committed in the service, provided—
Due process is observed
Security of tenure protected
B. Constitutional
and Legal Basis for Administrative Discipline
1987 Constitution
Article IX, B, Sec 2
w No
disciplinary action except for cause provided by law
Article XI, Sec 1
·
Public office-public trust
·
Public servants accountable to people
w Public
servants - must serve with utmost Responsibility, Integrity, Loyalty, &
Efficiency
w must
act with patriotism and justice and lead modest lives
C. Due Process; Principle; Basis Of
·
Principle of Due Process means that before a
party may be held bound by administrative proceedings, he must--
(a) been imp leaded (notified)
(b) given an opportunity to defend his rights
(answer)
·
Two (2) aspects of due process
Ø Substantive
Ø Procedural
·
Basis of--
1987 Constitution (Article III,
Sec. 1)
“No
person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the
laws.”
Part II: Disciplinary
Jurisdiction
A. Disciplining
Authority; Department of Education
B. Delegation
of Authority to Investigation
C. Constitution
of Investigating Committee
A. Disciplining Authority; Department of Education
·
Secretary of Education
·
Regional Directors in their regions
·
School Division Superintendents are
Disciplining Authority for Non-Academic Personnel (RA 9155)
B. Delegation of Authority to Investigate
·
Secretary is duly authorized to discipline
Presidential appointee, subject to President confirmation
·
Investigation Committee (per R.A. 4670) shall be constituted to conduct the formal
investigation and thereafter report and recommend to disciplining authority
·
It shall deliberate COLLECTIVELY; NOT
INDIVIDUALLY
C. Constitution of Investigating Committee
·
Respondent is elementary/secondary, head principal, district supervisor/ chair/coordinator or Education Supervisor I
Ø
Schools Division Superintendent - Chair
Ø
Representative of Teacher Organization - Member
Ø
Division Supervisor for elementary or secondary education - Member
·
Respondent is Assistant Schools Division Superintendent,
Schools Division Superintendent or Education Supervisor II
Ø Regional
Director - Chair
Ø Representative
of Division Teachers Organization - Member
Ø Regional
Supervisor for elementary or secondary education - Member
·
Respondent is Assistant Regional Director or
Regional Directors
Ø Secretary
of Department of Education - Chair
Ø Representative
of PPSTA - Member
Ø Any
Regional Director or high ranking Department of Education Central Officer - Member
Part III: Grounds for
Disciplinary Action
Generally Classified (depending on gravity) into--
·
GRAVE
Ø
Dismissal / 6 months - 1 year suspension
·
LESS GRAVE
Ø
1st offense - 1 to 6 months suspension
Ø
2nd offense - Dismissal
·
LIGHT
Ø 1st
offense - Reprimand
Ø 2nd
offense - Suspension
Ø 3rd
offense - Dismissal
GRAVE OFFENSES:
·
Dishonesty - 1st/Dismissal
Ø
intentional violation of truth
Ø
there must be intention to misrepresent/
defraud
·
Gross neglect of duty - 1st/Dismissal
Ø
want of any or slight care
As a rule, must
be GROSS, HABITUAL
EXCEPT:
Results to Loss - No need habituality
v
Gross neglect of teacher duties
Ø
Special Parental Authority and Responsibility
Article 218, Family Code—
“The school, its administrators and
teachers, x x x engaged in child care shall have special parental authority and
responsibility over the minor child while under their supervision, instruction
or custody.”
Ø
Abandonment - absence from work and
deliberate intent to discontinue to return
Two (2)
Requisites
(a) Absences without authority
(b) Intention not to return
v
How to declare ABANDONMENT
Two (2) Letter Principle
·
as soon as a teacher starts to incur absences
continuously without official leave or authority--
Ø send
1st letter requiring him to report immediately and explain; and
Ø send
2nd letter informing him of termination due to abandonment
v
Keeping of school records
Ø
BP 232, Sec. 16 (3), Obligation of Teachers--
“Render regular reports on
performance of students x x x.”
Ø
Section 9 (4) and (5) Rights of
Students/Parents
“The right of access to
school records x x x.”
“The right to issuance of
school records x x x 30 days from request.”
Grave misconduct -
1st/Dismissal
Ø willful,
improper behavior, and implies wrongful intent and NOT mere error of judgment
Ø violation
of an established and definite
rule of action
w
Misconduct must be a DIRECT RELATION to and CONNECTED with performance of official duties
w
Teacher Misconduct
Ø broad
scope of official function of teachers subject to PROHIBITION OF MISCONDUCT
TEACHERS AS PROFESSIONALS
Duly licensed professionals who possess dignity and
reputation with high moral values as well as technical and professional
competence. In the practice of their noble profession, they strictly adhere to
observe, and practice this set of ethical and moral principles, standard and
values.
(Preamble, Code of Ethics for Professional
Teachers)
“Every teacher shall merit reasonable social
recognition for which purpose he shall behave with honor and dignity at all
times and refrain from such activities as gambling, smoking, drunkenness and
other excesses, much less illicit relations.”
(Code of Ethics, Article III, Section 3)
“A teacher shall place premium upon self-respect and
self-discipline as the principle of personal behavior in all relationships with
others and in all situations.”
(Code of Ethics, Article XI, Section 2)
“A teacher shall maintain at all times a dignified
personality which could serve as model worthy of emulation by learners, peers,
and others.”
(Code of Ethics, Article XI, Section 3)
w
Joseph Santos vs. NLRC, Hagonoy Institute,
Inc. et al., Supreme Court--
“As a
teacher, (one) serves as an example to this pupils x x x.”
“Consequently x x x teachers must adhere to the
exacting standards of morality and decency. x x x A teacher, both in his official
and personal conduct, must display exemplary behavior. He must freely and willingly accept
restrictions on his conduct that might be viewed irksome x x x the personal
behavior of teachers, in and outside the classroom, must be beyond
reproach, x x x they must observe a high standard of integrity and honesty.”
v
More Teacher Misconduct
·
BP 232, Section 9 (4), Rights of Students—
“x x x the CONFIDENTIALITY of which the
school shall maintain and preserve.”
Covers Classified/Strictly
Confidential Records
(a) personal records
(b) academic records/reports
(c) birth certificates
(d) adoption papers
(e) medical/guidance reports
(f) disciplinary records
–
also… disclosing or misusing confidential
information (Section 22)
1st Offense - 6 months to 1
year
2nd Offense - Dismissal
w
BP 232, Section 16 (5), Teacher’s
Obligation--
Refrain from making
deductions/additions in grades NOT manifestations of scholastic performance
Padilla vs. NLRC, SBC,
Supreme Court--
“This Court is convinced that
the pressure and influence exerted by (a teacher) on his colleague to change
a failing grade to passing one x x x constitute serious misconduct which is
a valid ground for dismissing an employee.”
In Celia Flores vs. NLRC,
PPSTA - where employee was involved in brawl/fighting, Supreme Court said--
“Fighting within company
premises is a valid ground for dismissing an employee. At all events it was not
necessary to determine who started the fight; what is important is that (the employee)
engaged in a fight in the work premises x x x.”
w
Corporal Punishment - Article 233 (2nd par.)
“In no case x x x inflict
corporal punishment upon the child.”
Definition: An act that inflict pain or harm upon a
child’s body as punishment for wrong doing usually through beating and spanking
Elements:
(a) physical contact
(b) to inflict pain
v
Sexual Harassment is Grave Misconduct
Ø RA
7877: Sexual Harassment--
“x x x teacher x x x having
authority, influence, or moral ascendancy over another x x x in education environment, demands,
requests or otherwise requires sexual favor from other, regardless of whether
the demand, request or requirement for submission is accepted x x x.”
w Two
(2) Types
-
Quid Pro Quo
–
Hostile Environment
Manner - it
may be visual, verbal, or physical, which may be subtle, obvious or gross
v
Sexual Harassment
Ø Not
all forms warrant termination. Dismissal
depends on the gravity of case.
v
Sale of tickets; collection of contribution/
donations from pupils/parents
v
BP 232, Sec. 9 (9) - students have right to
be free from (voluntary) involuntary contributions
Ø Improper
or unauthorized solicitation of contributions from subordinate employees and by
teachers or school officials from school children
“x x x
(Department of Education) considers the act of teachers in x x x contracting
loans from parents of their students x x x not only serious misconduct but x x x
violation of students’ right to be free from involuntary contribution x x x.”
- USEC Nachura, 13 Feb. ‘98
Ø
Rule XIV, Sec. 22 (j) - Contracting loans is
Grave Offense
… because reprehensible
behavior such as the use of trust relationship as leverage for borrowing money
is involved.
… to avoid exertion of undue
influence by teachers over the students or their parents
v
Other kinds of misconduct
Ø Employee
repeatedly uttered obscene and insulting statements against his superior and
violated company rules and regulations (Asian Design and Manufacturing Corp.
vs. DOLE)
Ø Employee
repeatedly shouted invectives at the company’s lady physician for her refusal
to certify his sick leave (Dela Cruz vs. NLRC)
Ø Employee
challenged his superior officer to a
fight (Luzon Stevedoring Corp. vs. CIR)
Ø Gross
Disrespect connotes serious misconduct directed against superiors by
subordinates is SERIOUS MISCONDUCT but Gross Discourtesy connotes the
absence of proper courtesy in dealing with the public he/she is transacting
official business (not GROSS MISCONDUCT - hence only Less Grave Offense - 1st/1
to 6 months suspension, 2nd/ Dismissal)
l
Notoriously undesirable - 1st/Dismissal
Ø when
a public servant is known to be constantly and flagrantly violating existing
laws, rules and regulations and which acts are known to and looked upon with
disfavor by the community
l negative
attitude toward work, duties and responsibilities, superiors and proper
conduct, when public servant does not seem to consider the aforesaid conduct
wrong and improper
l
Oppression - 1st/6 months to 1 year
suspension, 2nd/Dismissal
Ø act
of cruelty, severity, unlawful exaction, domination, or excessive use of
authority (Ochate vs. Ty Deling)
Ø Committed
usually by a superior officer over a subordinate or a public servant over a
private citizen
l Corporal
punishment may also be oppression
·
Inefficiency and incompetence in the
performance of duties - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø Public
servant has consistently shown his inability to efficiently perform his duties and responsibilities, within a common performance standards.
In Evelyn Peña vs. NLRC,
Supreme Court said-
“xxx school can set high standards of
efficiency for its teachers since quality education is a mandate of the
Constitution x x x”
“xxx Security of tenure, while
constitutionally guaranteed, cannot be used to shield incompetence xxx.”
w
Need to continually evaluate teachers
·
Unauthorized absences/ tardiness - 1st/6
months to 1 year suspension, 2nd/Dismissal
v Habitually
absent
Ø 2.5
days/month x 3 months in a semester or 3 consecutive months in a year
v
Habitually tardy
Ø 10x/month
at least 2 months in a semester or 2 consecutive months in a year
·
Refusal to perform official duty - 1st/6
months to 1 year suspension, 2nd/Dismissal
Ø when
a public servant refuses to render
service inherent to his position or when required to do so by his lawful
superiors, without reasonable excuse
·
Gross insubordination - 1st/6 months
to 1 year suspension, 2nd/Dismissal
Ø a
deliberate refusal of a subordinate to obey lawful orders from a superior
Ø one
must follow lawful order of superiors even if he does not agree with it
Ø a
protest or an appeal is not a legal excuse to disobey lawful orders
·
Conduct prejudicial to the best interest
of service - 1st/6 months to 1 year suspension, 2nd/Dismissal
Ø conduct
of one which will give a bad image to the public service
Official participates in
proceedings of promotion and selection board despite the fact he is NOT
authorized; such influences the appointment of relative is conduct
prejudicial
LESS GRAVE OFFENSES:
·
Simple neglect of duty
·
Simple misconduct
·
Gross discourtesy
·
Gross violation of Civil Service Rules
·
Insubordination
·
Habitual drunkenness
·
Recommending any person to a private
enterprise with official business with his office
·
Unfair discrimination in rendering public
service
·
Failure to file sworn statement of assets,
liabilities
·
Failure to resign within 30-day in private
business with conrflict of interest
LIGHT OFFENSES:
·
Discourtesy
·
Violation of office rules
·
Gambling prohibited
·
Borrowing money from subordinates
·
Disgraceful/immoral/dishonest conduct PRIOR
to service
·
Willful failure to pay just debts
·
Refusal to overtime
·
Willful failure to pay taxes
·
Pursuit of business/profession/vocation
without permission
·
Lobbying for personal interest or gain in
congress
·
Promoting sale of tickets in behalf of
private enterprise
·
Failure to act promptly on letters and
requests 15 days from receipt
·
Failure to process papers for unreasonable
length of time
·
Failure to attend to anyone who wants to
avail himself of services
Part IV: DECS Rules of
Procedure
DECS Order No. 33, Series 1999 (March 30, 1999) Administrative
Disciplinary Case
l
Step 1 - Commenced by:
Ø Disciplining
Authority - MOTU PROPIO
Ø Any
person with an ordinary complaint
filed with Disciplinary Authority
Form of Complaint
w
in writing
w
under oath
w
written in a clear, simple and concise
language
Step 1: Commenced by:
Contents of Complaint
w
full name/address of complainant
w
Ibid.; as well as position/ office of employment of respondent
w
narration of relevant and material facts
w
no “forum-shopping”
Step 2 - Determination of PRIMA FACIE CASE
·
to determine if there is a sufficient ground
to engender a well-founded belief that an administrative offense has been
committed and respondent is probably guilty
·
How determined
Ø fact-finding
Ø preliminary
investigation
FACT FINDING - involve
merely the ex parte examination of
records/ documents submitted by
complainant; also other documents available
PRELIMINARY INVESTIGATION - proceeding
whereby complainant and respondents are given opportunity to submit
affidavits/witnesses/evidence
Step 3 - FORMAL CHARGE
(if prima facie case is established)
Ø
Content of:
·
name of complainant
·
name of respondent
·
designation of the administrative offenses by
the statute
·
acts/omissions complained of
·
time of commission
·
place of commission
·
time for respondent to answer which shall not
be later than 5 days
·
query whether respondent prefers Formal
Investigation or decide case on the records
·
inform of respondent’s right to counsel of
choice
Step 4 - ANSWER
Ø
to be filed with the Disciplining Authority
Form of ANSWER
w
in writing
w
Respondent’s answer to charges
w
indication whether or not respondent elects FORMAL INVESTIGATION
Step 5 - FORMAL INVESTIGATION
Ø
when held - when respondent has filed his/her
answer or after the period for filing an answer has expired
Ø
by the Investigating Committee
Note: when investigating
committee is constituted not in accordance with Republic Act 4670, proceedings
shall be VOID.
Step 6 - PROCEDURE
Ø
Pre-Hearing Conference - to consider and
agree on any of the following:
·
dates of hearing
·
simplification of issues
·
stipulation of facts
·
limiting number of witnesses/names
·
ID/marking of evidence
by: Ulpiano “Ulan”
P. Sarmiento III
