Career execs cannot be fired in gov’t revamp

Newbies in top government posts must restrain themselves. They are mere political nominees, coterminous with the six-year President. They cannot remove career executive service officers at will. Unlike them, CESOs enjoy security of tenure under any admin.

In the past two weeks, a good number of CESOs were eased out. Supposedly they no longer will receive salaries starting payday July 15. The new admin is rushing to complete 8,000 political appointments within its first 100 days. Clarifications can avert discord.

CESOs attained eligibilities through rigorous exams, panel interviews, competency reviews and experience. Most head divisions and bureaus; some are higher – undersecretaries and acting secretaries. They are spread in dozens of agencies and commissions under the Office of the President. As well, in the various departments and government-owned and -controlled corporations. All are licensed professionals: engineers, architects, doctors, accountants, lawyers, statisticians, etc. They provide institutional knowledge for government newcomers. CESOs being crucial to government continuity, Ferdinand E. Marcos Sr. in Presidential Decree No. 1, Sept. 24, 1972, created the Career Executive Service Board.

Two sections of Memo Circular No. 1 are being misinterpreted. Executive Secretary-designate Vic Rodriguez “Declar[ed] Vacant Certain Positions in the Departments, Offices, Agencies and Bureaus in the Executive and Fix[ed] Rules Therefor to Ensure Continuous and Effective Delivery of Service” on June 30, 2022. As with any new admin on its first day in office, MC-1 covered “All presidential appointees classified as coterminous.” It further included:

• “All presidential appointees occupying positions created in excess of the authorized staffing pattern,” and

• “All non-Career Executive Service Officials occupying Career Executive Service positions.”

Some CESOs occupy positions in excess of plantilla. This is because previous department and agency heads filled up available positions with yes-men. They even placed gofers in positions reserved for CESOs. Only on hindsight did they see fit to elevate certain CESOs and thus created special non-plantilla positions for them. This was against CES Board rules. The CESOs quietly bore the mistreatment.

Enter the newbies, adding insult to injury. Combining those two sections of MC-1, they mis-concluded that CESOs are expendable.

They are so wrong. The 1987 Constitution is clear: “Article IX-B, Civil Service Commission, Section 2(3) – No officer or employee of the civil service shall be removed or suspended except for cause provided by law.”

Tenure and eligibility should be respected. If their positions are abolished in revamps, CESOs may be reassigned and transferred. CES Board Resolution No. 640 (2006) states that such reassignments and transfers shall be:

• “Made in the exigency of public service;

• “Made to existing, vacant and equivalent or higher CES plantilla positions which require the same expertise possessed by the CESOs concerned;

• “Not result in reduction of rank or salary including benefits, allowances and privileges received prior to reassignment or transfer;

• “Not be oftener than once in every two years.”

Putting a CESO on floating status is a no-no for the CES Board.

* * * Malacañang announced Monday President Ferdinand R. Marcos Jr.’s “appointment” of Raphael Perpetuo Lotilla as Secretary of Energy. Two hours later came a clarification that it was merely a “nomination.” Lotilla’s employment status as independent director in two private power firms supposedly needed reviewing.

Malacañang does not need to announce the dozens of nominations or applications to any position. Only appointments are publicized. There likely was incomplete staff work on Lotilla, a former energy secretary, 2005-2007, under president Gloria Macapagal-Arroyo.

To begin with, independent directorship is not a bar under RA 7638, Section 8, which states: “No officer, external auditor, accountant or legal counsel of any private company or enterprise primarily engaged in the energy industry shall be eligible for appointment as Secretary within two years from his retirement, resignation or separation therefrom.”

Being a director is different from being an officer. The difference is more stark with independent directors.

SEC Memo Circular No. 16 (2002) enumerates “Guidelines on the Nomination and Election of Independent Directors.” A person elected as independent director shall be disqualified during his tenure if he “becomes an officer or employee of the corporation where he is such member of the board of directors/trustees.”

The Corporation Law requires big firms to have independent directors representing small stockholders and other stakeholders. There are special eligibility courses to become an independent director.

Ordinary directors can be appointed as officers and thus become executive directors. An independent director is independent of Management, one who is paid to bite the hand that feeds him.