Positions judicially determined as primarily confidential

In Civil Service Commission (CSC) v. Pililla Water District (G.R. No. 190147, March 05, 2013), the Supreme Court stressed that a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as well as the high degree of trust and confidence inherent in their relationship.[1] The tenure of a confidential employee is coterminous with that of the appointing authority, or is at the latter’s pleasure. However, the confidential employee may be appointed or remain in the position even beyond the compulsory retirement age of 65 years.[2]Among those positions judicially determined as primarily confidential positions are the following:

  1. Chief Legal Counsel of the Philippine National Bank;
  2. Confidential Agent of the Office of the Auditor, GSIS;
  3. Secretary of the Sangguniang Bayan;
  4. Secretary to the City Mayor;
  5. Senior Security and Security Guard in the Office of the Vice Mayor;
  6. Secretary to the Board of a government corporation;
  7. City Legal Counsel, City Legal Officer or City Attorney;
  8. Provincial Attorney;
  9. Private Secretary; and
  10. Board Secretary II of the Philippine State College of Aeronautics.[3]
The Supreme Court in the above instances focused on the nature of the functions of the office characterized by such “close intimacy” between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.[4]

In the case of a General Manager of a water district, Section 24 in relation to Section 23 of P.D. No. 198, as amended, reveals the close proximity of the positions of the General Manager and BOD.

Sec. 24. Duties.–The duties of the General Manager and other officers shall be determined and specified from time to time by the Board. The General Manager, who shall not be a director, shall have full supervision and control of the maintenance and operation of water district facilities, with power and authority to appoint all personnel of the district: Provided, That the appointment of personnel in the supervisory level shall be subject to approval by the Board. (As amended by Sec.10, PD 768) (Emphasis supplied)

While the Board of Directors (BOD) of a water district appoints by a majority vote the General Manager and specifies from time to time the duties he shall perform, it is the General Manager who exercises full supervision and control of the maintenance and operation of water district facilities. The BOD is confined to policy-making and prescribing a system of business administration and accounting for the water district patterned upon and in conformity to the standards established by the Local Water Utilities Administration (LWUA), and it is the General Manager who implements the plans and policies approved by the BOD. And while the BOD may not engage in the detailed management of the water district, it is empowered to delegate to such officers or agents designated by it any executive, administrative or ministerial power,[5] including entering into contracts under conditions and restrictions it may impose. Moreover, though the General Manager is vested with the power to appoint all personnel of the water district, the appointment of personnel in the supervisory level shall be subject to the approval of the BOD. It is likewise evident that the General Manager is directly accountable to the BOD which has disciplinary jurisdiction over him. The foregoing working relationship of the General Manager and BOD under the governing law of water districts clearly demands a high degree of trust and confidence between them. Therefore, it is correct to conclude that the position of General Manager is primarily confidential in nature.

While the amendment introduced by R.A. No. 9286 removed the sentence “Said officer shall serve at the pleasure of the Board,” and replaced it with the sentence “Said officer shall not be removed from office, except for cause and after due process,” it cannot be argued that this change has placed the position of General Manager of a water district in the category of career service. This argument cannot succeed even after taking into consideration CSC MC No. 13, Series of 2006 which prescribes guidelines for the implementation of the new law and qualification standards for the position of General Manager of a water district, whereby all incumbent general managers who hold appointments under coterminous status upon the effectivity of R.A. No. 9286 were given two years to meet all the requirements for permanent status.

To the Supreme Court's mind, the amendment introduced by R.A. No. 9286 merely tempered the broad discretion of the BOD. In Paloma v. Mora,[6] the Court noted the change brought about by the said law insofar as the grounds for terminating the General Manager of a water district. Whereas previously the General Manager may be removed at the pleasure or discretion of the BOD even without prior notice and due hearing, the amendatory law expressly demands that these be complied with. Such condition for the exercise of the power of removal implements the fundamental right of due process guaranteed by the Constitution. In De los Santos v. Mallare,[7] the Court simply recognized as a necessity that confidential appointments be “terminable at the will” of the appointing authority.

[1] Civil Service Commission v. Javier, G.R. No. 173264, February 22, 2008, 546 SCRA 485, 507, at 509.

[2] Id. at 498.

[3] Id. at 508-509, citing Besa v. Philippine National Bank, 144 Phil. 282 (1970); Salazar v. Mathay, Sr., 165 Phil. 256 (1976); Cortez v. Bartolome, No. L-46629, September 11, 1980, 100 SCRA 1; Samson v. Court of Appeals, 230 Phil. 59, 65 (1986); Borres v. Court of Appeals, No. L-36845, August 21, 1987, 153 SCRA 120; Gray v. De Vera, 138 Phil. 279 (1969); Pacete v. Acting Chairman of the Commission on Audit, G.R. No. 39456, May 7, 1990, 185 SCRA 1; Cadiente v. Santos, 226 Phil. 211 (1986); Hilario v. Civil Service Commission, 312 Phil. 1157 (1995); Griño v. Civil Service Commission, G.R. No. 91602, February 26, 1991, 194 SCRA 458; and Sec. Gloria v. Hon. De Guzman, Jr., 319 Phil. 217 (1995).

[4] See Civil Service Commission v. Javier, id. at 506.

[5] Sections 17, 18, 19 & 20, P.D. No. 198, as amended.

[6] 507 Phil. 697, 708 (2005), at 711.

[7] 87 Phil. 289 (1950), at 297.