Escolar Documentos
Profissional Documentos
Cultura Documentos
Gonzales)
stands for the community in the administration of local affairs. It acts as a separate entity for its own purposes and not as a subdivision of the State. 5. Criterion to determine whether corporation is public: The relationship of the corporation to the State, i.e., if created by the State as its own agency to help the State in carrying out its governmental functions, then it is public, otherwise, it is private. 6. De Facto Municipal Corporation --a corporation that may exist in fact although not point of law because of certain defects in some essential features of its incorporation. 7. Elements of De Facto Municipal Corporation: a. A valid law authorizing incorporation b. An attempt in good faith to organize under it c. A colorable compliance with the law d. An assumption of corporate powers 8. Three forms of decentralization:
a.
Devolutionis the transfer of power and authority from the national government to LGUs as the territorial and political subdivisions of the State. The nature of power transfer is political and the approach is territorial or areal. b. Deconcentrationis the transfer of power, authority or responsibility, or the discretion to plan, decide and manage from central point or local levels, but within the central or national government itself. The nature of the transfer is administrative and the approach is sectoral. c. Debureaucratizationis the transfer of some public functions and responsibilities, which the government may perform, to private entities or nongovernmental organizations; it is peoples empowerment or participation in local governance. Decentralization of Administrationthe central government delegates administrative powers to political subdivisions in order to broaden the base of government power. Decentralization of Power (Political Decentralization)- involves abdication of political power in favor of LGUs declared autonomous. (Limbonas vs. Mangelin, 170 SCRA 786)
the NGAs concerned, unless these are projects with national security implications, and iii. Financial undertakings for LGUs for mutual advantage thru loans and assistance to calamity-stricken LGUs. B. R.A. 7160Policy and Application; Constitutional Provisions
1. EffectivityJanuary 1, 1992
2. Scope of Application (Sec. 4, RA 7160) Applicable to: a. all provinces b. cities c. municipalities d. barangays e. and other political bodies as may be created by law, and f. to the extent provided in the LGC (i.e. devolution of powers): -officials -offices, or -agencies of the National Government 3. Rules of Interpretation (Sec. 5, RA 7160) a. Any provision on a local government unit shall be liberally interpreted its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; b. In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local govt unit enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local govt unit pursuant to the provisions of this Code shall be construed strictly against the person claiming it; c. The general welfare provisions in this Code shall be liberally interpreted to give more powers to local govt units in accelerating economic development and upgrading the quality of life for the people in the community. d. Rights and obligations existing on the date of effectivity of this Code and arising out of contracts or any other source of prestation involving a local govt unit shall be governed by the original terms and
Congress -creation, conversion of LGUs and alteration of its boundaries; -allocate powers, responsibiliti es and resources among LGUs; -provide for qualification s, election, appointment , removal, term, salaries and functions and duties of local officials; -provide other matters relating to the organization and operation of LGUs; -amendment of charters of LGUs.
-oversee whether LGUs are performing their duties in accordanc e with law; investigate and impose disciplinar y measures upon erring elective local governme nt officials
reliant communications and make them more effective partners in the attainment of national goals. b. To ensure the accountability of local govt units through the institution of effective mechanisms of recall, initiative and referendum. c. To require all national agencies and offices to conduct periodic consultations with appropriate local govt units, non-governmental and peoples organizations and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. II. INTER-GOVERNMENTAL RELATIONS 1. National Government and Government Units
Local
a. The President shall exercise general supervision over LGUs. i. The President shall exercise supervisory authority directly over provinces, highly urbanized cities and independent component cities. ii. The President shall exercise supervision over component cities and municipalities, through province, and over barangays through city and municipality. (Sec. 25) The Presidents power of general supervision over LGUs includes the authority to investigate and impose disciplinary measures (suspension or removal) upon elective local officials.
e. In the resolution of controversies arising under this Code where no legal provision or jurisprudence applies, resort may be had to the customs and traditions in the place where the controversies take place. 4. Declaration of State Policy over LGUs (Sec. 2, RA 7160) a. The territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-
b. General responsibilities of the National Government towards LGUs: i. formulate policies and set standards and guidelines ii. provide funding support iii. augment basic services assigned to LGUs iv. provide technical and other forms of assistance and coordinate on the discharge of NGA functions v. ensure the participation of LGUs in planning and implementing national projects
c. Extent of the LCEs authority over NGAs and their functionaries: The LCE can call upon any employee stationed or assigned in his locality to advise him on matters affecting the LGU as well as coordinate with said officials, plans, programs and projects. ii. The LCE can enlist the attendance of the national official stationed in the LGU on a meeting of elective and appointed officials of the LGU treating matters in the promotion of the general welfare of the residents. iii. The LCE can also initiate proper administrative or judicial action against national government official or employee who may have committed an offense while stationed or assigned in the LGU. Supervision distinguished: i.
No project shall be implemented by government authorities without consultation with the local government units and prior approval of the Sanggunian concerned. (Sec.27) The requirement of prior consultation applies only to national projects and/or programs which are to be implemented in a particular local community. Although sanctioned by the national government, the operation of lotto is neither a program nor project of the national government but of charitable institution, the Philippine Charity Sweepstakes Office. The projects and programs mentioned in Sec. 27 should be interpreted to mean projects and programs whose environmental and ecological effects are among those mentioned in Sec. 26 and 27 of the LGC (Lina vs. Pano, G.R. No. 129093, August 30, 2001). Power of Control and Power of General
2. Inter-Local Government Relations a. The province, through the governor, shall ensure that every component city and municipality acts within its powers.
b. The city or municipality, through the mayor, shall ensure that barangays act within the scope of their powers. encourage private-sector participation in the delivery of basic services. Role of POs, NGOs in the LGUs: LGUs shall promote the establishment and operation of peoples and nongovernmental organizations as active partners.
c. The governor shall review all executive orders promulgated by the mayor. The mayor shall review orders promulgated by the punong barangay. The Sangguniang Panlalawigan of a province reviews all ordinances enacted by the Sangguniang Panlungsod of component cities and Sangguniang Bayan of municipalities under their jurisdiction. In turn, the Sangguniang Panlungsod and Sangguniang Bayan review all ordinances passed by the Sannguniang Barangay under the jurisdiction. Likewise, the Sangguniang Panlalawigan of a province exercises the quasi-judicial function (administrative disciplinary authority) of hearing and deciding administrative cases involving elective municipal and component city officials under their jurisdiction. In turn, the Sangguniang Panlungsod and Sangguniang Bayan exercise disciplinary authority over elective barangay officials within their jurisdiction. 3. Relations with Peoples Organizations and Non-Government Organizations a. Private Sector Participation in Local Governance Purpose: to ensure the viability of local autonomy as an alternative strategy for sustainable development. LGUs shall
b.
LGUs may enter into joint venture and cooperative undertakings with peoples and non-governmental organizations particularly in the following: 1. delivery of certain basic services 2. capability building and livelihood projects; and 3. developing local enterprises designed to improve productivity and income, diversifies agriculture, spur rural industrialization, and enhance the economic and social well-being of the people. c. Special Local Bodies where the private sector may participate in local governance: 1. Local Development Council -a duly constituted body which shall assist the corresponding Sanggunian in setting the direction of economic and social development, and coordinating development efforts in its territorial jurisdiction. 2. Prequalification, Bids Awards Committee (PBAC) and
must have its boundaries fixed, definite and certain, in order that may be identified and that all may know the exact scope or section of territory or geographical division embraced within the corporate limits and over which the municipal corporation has jurisdiction. A description of the boundaries of a municipal corporation is said to be an essential part of its charter and necessary to corporate existence. An incorporation is void where the boundaries of the municipal corporation are not described with certainty. 4. Manner of Creation 1. Creation of Barangays: a. Role: serves as the primary planning and implementing unit of government policies, plans programs, projects and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled. b. Who creates: a barangay may be created, divided, merged, abolished or its boundary substantially altered by law or by an ordinance of the Sangguniang Panlalawigan or Sangguniang Panlungsod. Where a barangay is created by an ordinance of the Sangguniang Panlalawigan, the recommendation of the Sangguniang Bayan concerned shall be necessary. c. Substantive Requisites: 1. Populationat least 2000 inhabitants Except in cities and municipalities within Metro Manila or in highly urbanized citiesmust be at least 5000 inhabitants 2. Income- no requirement minimum income
4. Local School Board The DECS shall consult the Board on the appointment of division superintendents, district supervisors, school principals, and other school officials. 5. Local Health Board 6. Peoples Law Enforcement Board (PLEB) III. CREATION, CONVERSION, DIVISION, MERGER AND CONSOLIDATION, AND ABOLITION OF LGUs A. Creation of LGUs: A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered by law enacted by Congress in the case of a province, city, municipality, or other political subdivisions, or by Sanggunian Panlalawigan or Sanggunian Panlungsod ordinance in the case of a barangay. (Sec.6) NOTE: nature of the power to create: LEGISLATIVE 1. While the power to create barangays has been delegated to Sanggunian Panlalawigan and Sangguniang Panlungsod, Congress, in order to enhance the delivery of basic services in indigenous cultural communities, may create barangays in such communities notwithstanding the requirements set forth by law. (Sec.385a, LGC) 2. The creation or conversion of a local government unit to another level shall be based on the following verifiable indicators of viability and projected capacity to provide services: a. Sufficient income and b. Population and/or c. Land area NOTE: Compliance with the above-cited indicators shall be attested by the Department of Finance, the National Statistics Office and the Land Management Bureau of the DENR, respectively. 3. Necessity of Fixing Corporate Limits: As a matter of general rule, municipal corporations cannot, without legal authorization, exercise its powers beyond its own corporate limits. It is necessary that it
3. Land Areano minimum requirement, but it must be contiguous but it need not be contiguous if the barangay is comprised with two or more islands. NOTE: The creation of the new barangay shall not however reduce the population of the original barangay to less than the minimum requirement prescribed in the Code. (Sec.386, LGC) 2. Creation of Municipalities a. Role: serves primarily as a general purpose government for the coordination and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. b. Who creates: may be created, divided, merged, abolished or its boundary substantially altered only by an act of Congress subject to the criteria established by the Code.
mechanism for development processes and effective governance of local government units within its territorial jurisdiction. b. Who creates- may be created, divided, merged, or abolished, or its boundary substantially altered, only by an act of Congress, subject to the satisfaction of the criteria set forth by the LGC. c. Substantive Requirements: 1. Populationnot less than 250,000 inhabitants 2. Income- average annual income of at least P20 million 3. Land Area- a contiguous territory of at least 2000 square kilometers BP 885, which created the Province of Negros del Norte was declared unconstitutional because it did not comply with the land area criterion prescribed under the LGC. The use of the word territory in Sec. 17 of the LGC refers only to the physical mass of land area, not to the waters comprising a political entity. It excludes the waters over which the political unit exercises control (Tan vs. Comelec, 142 SCRA 727). 6. Status of Sub-provinces Existing sub-provinces are converted into regular provinces upon the approval by a majority votes cast in a plebiscite to be held in the said sub-province and the original province directly affected. (Sec.462, LGC) 7. Autonomous Regions The Philippine Constitution mandates the creation of autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, and economic and social cultures. (Sec.15, Art.10, PC) NOTE: RA 6734, the organic act establishing the Autonomous Regional Government of Muslim Mindanao was held valid by the Supreme Court. (Datu Firdausi Abbas vs. COMELEC, 179 SCRA 287). However, the sole Province of Ifugao which, in the plebiscite, alone voted in favor of RA 6766, cannot validly constitute the Autonomous Region of the Cordilleras. (Ordillo vs. COMELEC, 192 SCRA 100) 8. Special Metropolitan Political Subdivisions The Congress may, by law, create special metropolitan political subdivisions, but the component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will be
to be converted into a component city, shall participate in the plebiscite. Summary of Substantive Requirements in the Creation of LGUs LGU Created Income Populati on 2,000 but 5,000 for Metro Manila and highly urbanize d cities 25,000, and 150,000 or 200,000 250,000 or Land area
Barangay
11. Beginning of Corporate Existence When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chief executive and a majority members of the Sanggunian, unless some other date is fixed therefore by law or ordinance creating it. (Sec.14, LGC) 12. Division and Merger of LGUs The division and merger of local government units shall comply with the same requirements for their creation. The income, population or land area shall not be reduced to less than the minimum requirements. Likewise, the income classification of the original local government unit shall not fall below its current income classification prior to such division. (Sec.8, LGC) 13. Abolition of LGUs A local government unit may be abolished when its income, population or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under the LGC, as certified by the national agencies to Congress or to the Sanggunian concerned. Likewise, the law or, ordinance abolishing an LGU shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. (Sec.9, LGC) 14. Effects of Annexation/Consolidation of Municipal Corporations 1. On the legal existence of the territory annexedUnless otherwise provided for by law,
8
and the are
2.
3.
15. Effects of Division of LGUs On the legal existence of the original corporation: The division of municipal corporation extinguishes the corporate existence of the original municipality. On the property, powers and rights of the original corporation: Unless the law provides otherwise, when a municipal corporation is divided into two or more municipalities, each municipality acquires title to all the property, powers, rights and obligations falling within its territorial jurisdiction. IV. GENERAL POWERS AND ATTRIBUTES OF LGUs A. Powers in general 1. Sources: a. Sec. 25, Art II: Secs. 5,6 and 7, Art. X, Philippine Constitution b. Statutes, e.g., R.A. 7160 c. Charter (particularly of cities) d. Doctrine of the right of selfgovernment, but applies only in States which adhere to the doctrine. 2. Classifications: a. Express, implied and inherent b. Public or governmental, private or proprietary c. Intramural or extramural d. Mandatory and directory, ministerial and discretionary 3. Execution of powers: a. Where the statute prescribes the manner of exercise, the procedure must be followed. b. Where the statute is silent, local government units have discretion to select reasonable means and methods of exercise. B. GOVERNMENTAL POWERS: 1. General Welfare Clause- the statutory grant of police power to local government units. Limitations: a. Express grant by law b. Exercisable only within the territorial limits of the LGU, except for protection of water supply c. Equal protection clause d. Due process clause e. Must not be contrary to the Constitution and the laws. NOTE: A local government unit may exercise delegated governmental powers: Police power (under the General Welfare Clause) Power of Taxation Power of Eminent Domain
4.
5.
instrumentalities of the National Government. PAGCOR being an instrumentality of the National Government is therefore exempt from local taxes. (Basco vs. PAGCOR, 197 SCRA 52) Main Sources of Revenues of LGUs A. Under the Constitution 1. taxes, fees and charges (5, Art. X) 2. share in the national taxesInternal Revenue Allotment 3. share in the proceeds of the utilization and development of the national wealth within their areas (7, Art. X) B. Under the Local Government Code 1. floating of bonds 2. grants/aids All LGUs are empowered to create their own sources of revenue and to levy taxes, fees and charges subject to the provisions on local taxation consistent with the basic policy of local autonomy. The Sanggunian concerned through an ordinance has the power to impose a tax, fee or charge. The procedural requirements of public hearing and publication must be observed for purposes of compliance with the requirements of due process. C. Fundamental Principles on Local taxation 1. Taxation shall be uniform in each local government unit; 2. Taxes, fees, charges and other impositions shall: a. be equitable and based as far as practicable on the taxpayers ability to pay; b. be levied and collected only for public purposes; c. not be unjust, excessive, oppressive or confiscatory; d. not be contrary to law, public policy, national economic policy, or in restraint of trade. 3. The collection of taxes, fees, charges and other impositions shall in no case be let to any private persons; 4. The revenue collected pursuant to the provisions of the LGC shall inure solely to the benefit of, and be subject to disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and 5. Each local government unit shall, as far as practicable, evolve a progressive system of taxation. NOTES: Shares of LGUs in the proceeds of national taxes The share of the LGU in Internal Revenue Taxes is 40%. The 40% IRA is allocated to LGUs as follows: for provinces and cities- 23%; for municipalities- 34%; for barangays- 20%.
10
with national development plans, goals and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources. 9. Local budgets shall operationalize approved development plans. 10. Local government units shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units. 11. National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices. 12. Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units. 13. The local government unit shall endeavor to have a balanced budget in each fiscal year of operation. 4. Eminent Domain (19, LGC) The power to expropriate private property has been delegated by Congress to LGUs under 19, LGC. The exercise by LGUs of the power of eminent domain are subject to the usual constitutional limitations such as necessity, private property, taking, public use, just compensation and due process of law. The determination of whether there is genuine necessity for the exercise of the power of eminent domain is a justiciable question when exercised by the LGUs and generally a political question when exercised by Congress. NOTE: Private property already devoted to public use can still be a subject of expropriation by Congress but not by LGUs. The additional limitations on the exercise of the power of eminent domain by LGUs are, as follows: 1. Exercised only by the local chief executive, acting pursuant to a valid ordinance; 2. For public use or purpose or welfare, for the benefit of the poor and the landless; 3. Only after a valid and definite offer had been made to, and not accepted by, the owner; 4. An LGU shall file a complaint for expropriation on the strength of an ordinance and not a mere resolution passed by the Sanggunian. (Municipality of Paranaque vs. VM Realty Corp., 292 SCRA 676) The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated
11
ii. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. Temporary closure may be made during an actual emergency, fiesta celebrations, public rallies, etc. c. Naming of LGUs, public places, streets and structures 1. Provinces- The sangguniang panlalawigan may change the name of the following within its territorial jurisdiction: i. Component cities and municipalities, upon the recommendation of the sangguniang concerned; ii. Provincial roads, avenues, boulevards, thoroughfares and bridges; iii. Public vocational or technical schools and other post secondary and tertiary schools; iv. Provincial hospitals, health centers, and other health facilities; and v. Any other public place or building owned by the provincial government. 2. Highly Urbanized and Independent Component Cities- The sanggunians of HUCs and ICCs may change the name of the following within its territorial jurisdiction: i. City barangays, upon the recommendation of the sangguniang barangay concerned; ii. City roads, avenues, boulevards, thoroughfares, and bridges; iii. Public elementary, secondary and vocational or technical schools, community colleges and non-chartered colleges; iv. City hospitals, health centers and other health facilities; and v. Any other public place or building owned by the city government. 3. Component Cities and MunicipalitiesThe sanggunians of component cities and municipalities may change the name of the following within its territorial jurisdiction: i. City and municipal barangays, upon recommendation of the sangguniang barangay concerned; ii. City, municipal and barangay roads, avenues, boulevards, thoroughfares, and bridges; iii. City and municipal public elementary, secondary and
12
different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned. d. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two or more highly urbanized cities, shall be jointly referred for settlement to the respective sanggunians of the parties.
Procedure: In the event the sanggunian fails to effect an amicable settlement within 60 days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within 60 days from the date of the certification referred to above. Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the case, the disputed area prior to the dispute shall be maintained and continued for all legal purposes. (119, LGC) e. Authority over police units (6, Art. XVI, Philippine Constitution) The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a National Police Commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. 6. LOCAL LEGISLATIVE POWER A. Products of legislative action 1. Ordinance- prescribes a rule of conduct. 2. Resolution- of temporary character, or expresses sentiment. B. Requisites for validity: 1. Must not contravene the Constitution and any statute 2. Must not be unfair or oppressive 3. Must not be partial or discriminatory 4. Must not prohibit, but may regulate trade 5. Must not be unreasonable 6. Must be general in application and consistent with public policy.
13
consideration that may affect his judgment to the prejudice of the public. (51) 5. A special session may be called by the local chief executive or a majority of the sanggunian members. Unless concurred in by 2/3 vote of the members present, no matter may be reconsidered at the special session except those stated in the notice. (52) 6. A majority of all the members of the sanggunian shall constitute a quorum. (53) 7. An ordinance shall be approved by the local chief executive by affixing his signature in each and every page thereof. 8. The governor or mayor may veto any item in the following cases: a. Particular item or items in an appropriations ordinance b. Ordinance adopting a local development plan and public investment program c. Ordinance directing the payment of money or creating liability. (55) 9. The grounds for veto are: a. The ordinance is ultra vires b. Or that it is prejudicial to public welfare 10. The veto shall be communicated to the sanggunian within 15 days in the case of a province and 10 days in the case of a city or municipality; otherwise, the ordinance shall be deemed approved, as if he signed it. The sanggunian may override the veto by 2/3 of all its members. (54) 11. Ordinances enacted by the sangguniang barangay shall, upon approval by a majority of all its members, be signed by the Punong Barangay. The latter has no veto power. 12. Review a. The sangguniang panlalawigan shall review ordinances and resolution of cities and municipalities to determine if they are within their power. (56) Procedure: Within 3 days after approval, the secretary of the sangguniang panlungsod (in component cities) or sangguniang bayan shall forward to the sangguniang panlalawigan for review copies of approved ordinances and resolutions approving the local development plans and public investment programs formulated by the local development councils. The sangguniang panlalawigan shall review the same within 30 days; if it finds that the ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or
14
2. To sue and be sued 3. To have and use a corporate seal 4. To acquire and convey real or personal property a. The local government unit may acquire real or personal, tangible or intangible property, in any manner allowed by law, e.g., sale, donation, etc. b. The local government unit may alienate only patrimonial property, upon proper authority. c. In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property. (Salas vs. Jarencio, 48 SCRA 734; Rebuco vs. Villegas, 55 SCRA 656) d. Town plazas are properties of public dominion; they may be occupied temporarily, but only for the duration of an emergency (Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, 102 Phil. 866). e. A public plaza is beyond the commerce of man, and cannot be the subject of lease or other contractual undertaking. And, even assuming the existence of a valid lease of the public plaza or part thereof, the municipal resolution effectively terminated the agreement, for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract (Villanueva vs. Castaneda, 154 SCRA 142). 5. Power to enter into contracts a. Requisites of a valid municipal contracts i. The local government unit has the express, implied or inherent power to enter into the particular contract. ii. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the local government unit without prior authorization by the sangguniang concerned. iii. The contract must comply with certain substantive requirements, i.e., when expenditure of public fund is to be made, there must be an actual appropriation
15
2. Liability for Tort a. If the local government unit is engaged in governmental functions, it is NOT liable. b. If engaged in proprietary functions, local government unit is liable. Holding of town fiesta is a proprietary function. The Municipality of Malasique, Pangasinan, was held liable for the death of a member of the zarzuela group when the stage collapsed, under the principle of respondeat superior. NOTE: The municipal council managed the town fiesta. While the municipality was held liable, the councilors themselves are not liable for the negligence of their employees or agents. (Torio vs. Fontanilla, 85 SCRA 599) c. Personal Liability of local officials 3. Liability for violation of law Case: The Municipality of Bunawan, Agusan del Sur, through the Mayor, was held in contempt and fined P1,000.00 with a warning, because of the refusal of the Mayor to abide by a Temporary Restraining Order issued by the Court (Moday vs. CA, 243 SCRA 152). 4. Liability for contracts a. General RuleA municipal corporation, like an ordinary person, is liable on a contract it enters into, provided that the contract is intra vires. If the contract is ultra vires, the munipal corporation is not liable. NOTES: A private individual who deals with a municipal corporation is imputed constructive knowledge of the extent of the power or authority of the municipal corporation to enter into contracts. Ordinarily, therefore, the doctrine of estoppel does not lie against municipal corporation.
b. Doctrine
of Implied Municipal LiabilityA municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract (Province of Cebu vs. IAC, 147 SCRA 447). The doctrine applies to all cases where money or property of a party is received under such circumstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same.
16
only on emergencies and without monetary compensation. 3. Prohibition against appointment (94, RA 7160) a. No elective or appointive local official shall be eligible for appointment or designation to any public office during his tenure. b. Unless otherwise allowed by law or by the primary function of his office, no elective or appointive local official shall hold any other office. c. Except for losing candidates in barangay elections, no candidate who lost in any election should be appointed to any office within one year after election. B. ELECTIVE LOCAL OFFICIALS 1. Qualifications: a. Common qualifications: i. Filipino Citizen ii. Registered voter of the local government unit, or of the district where he intends to be elected in the case of the members of the sanggunian. iii. Resident therein for at least one year immediately before the election iv. Ability to read and write Filipino or any other local dialect. b. Age i. Candidates in provinces and highly urbanized cities- at least 23 years old ii. Candidates for mayor and vice mayor of component cities and municipalities- at least 21 years old iii. Candidates for sanggunian members in component cities and municipalities- at least 18 years old iv. Barangay officials- at least 18 years old v. Sangguniang Kabataan- at least 15-21 years NOTES: Age- must be possessed on the day of the election. The LGC does not specify any particular date when the candidate must possess Filipino citizenzship. Philippine citizenship is required to ensure that no alien shall govern our people. An official begins to govern only upon his proclamation and on the day that his term begins. Since Frivaldo took his oath of allegiance on June 30, 1995, when his application for repatriation was granted by the Special committee on Naturalization created under PD 825, he was therefore qualified to be proclaimed. Besides, 39 of the LGC speaks of qualifications of elective officials, not of candidates (Frivaldo vs. COMELEC, 271 SCRA 767). Petitioner was over 21 years of age on the day of the election was ordered disqualified by the Supreme Court when the latter rejected the contention of the petitioner that she was qualified because she was less
17
elections as may be provided by law. The Comelec shall promulgate the rules and regulations to effectively provide for the election of such sectoral representatives. 4. Date of Election Every three years on the second Monday of May, unless otherwise provided by law. 5. Term of Office Three years, starting from noon of June 30, 1992, or such date as may be provided by law, except that of elective barangay officials. No local elective official shall serve for more than three consecutive terms in the same position. The term of office of barangay officials and members of the sangguniang kabataan shall be for five years, which shall begin after the regular election of barangay officials on the second Monday of May, 1997. (R.A. 8524) The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. Thus, a person who was elected Vice Mayor in 1988 and who, because of the death of the Mayor, became Mayor in 1989, may still be eligible to run for the position of Mayor in 1998, even if elected as such in 1992 and 1995 (Borja v. Comelec, G.R. No. 133495, Sept. 3, 1998). 6. Rules on Succession (44-46, RA 7160) A. Permanent vacancies: A permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is permanently incapacitated to discharge the functions of his office. a. Governor and Mayor i. Vice Governor and Vice Mayor ii. Sanggunian members according to ranking b. Punong barangay i. Highest ranking sanggunian member ii. Second highest ranking sangguniang barangay member c. Ranking in the sanggunian shall be determined on the basis of the proportion of the votes obtained to the number of registered votes in each district. d. Ties will be resolved by drawing of lots. (44) e. Sanggunian: i. Provinces, highly urbanized cities and independent component citiesappointment by the President ii. Component city and municipalityappointment by governor iii. Sangguniang barangayappointment by mayor
18
by appointive local officials, including the cumulation and commutation thereof. 7. Recall- termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate. a. By whom exercised- by the registered voters of a local government unit to which the local elective official subject to such recall belongs. (69, R.A. 7160) b. Two modes of initiating recall: i. By a preparatory recall assembly ii. By the registered voters of the local government unit c. Preparatory recall assemblycomposed of the following: i. Provincial level: All mayors, vice mayors and sanggunian members of the municipalities and component cities. ii. City level: All punong barangay and sangguniang barangay members in the city. iii. Legislative district level: Where sangguniang panlalalwigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panglungsod members are elected by district, all elective barangay officials in the district. iv. Municipal level: All punong barangay and sangguniang barangay members in the municipality. d. Procedure for initiating recall by preparatory recall assembly A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for that purpose. Case: It was held that notice to all the members of the Preparatory Recall Assembly is imperative; thus, where the resolution was adopted without giving notice to all the members of the PRA, the same is fatally flawed (Garcia vs. Comelec, G.R. No. 111511, October 5, 1993). However, in Malonzo vs. Comelec, G.R. No. 127066, March 11, 1997, it was held that where the Comelec has already conducted an investigation and found the initiatory recall proceedings to be in accord with law, there is no necessity for the Supreme Court to refer the matter of the veracity of the questioned notices back to the Comelec.
19
Sanggunian concerned, in case of sangguniang members; and The city or municipal mayor, in case of barangay officials. upon acted by effect open
Effectivity: c. Resignation takes effect acceptance. d. It is deemed accepted if not upon within 15 working days. e. Irrevocable resignation sanggunian members takes upon presentation before an session. (82, R.A. 7160)
10. Grievance Procedure (83, R.A. 7160)The local chief executive shall establish a procedure to inquire into, act upon, resolve or settle complaints and grievances presented by local government employees. 11. Discipline (60-68, R.A. 7160) a. Grounds for disciplinary action: An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: i. Disloyalty to the Republic of the Philippines. ii. Culpable violation of the Constitution iii. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty. iv. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor. v. Abuse of authority. vi. Unauthorized absence for 15 consecutive working days, except in the case of members of the sangguniang panlalawigan, panlungsod, bayan and barangay. vii. Application for, or acquisition of, foreign citizenship or residence or the status Elective barangay officials, shall be filed before the sangguiniang panlungsod or sangguniang bayan concerned, whose decision shall be final and executory. c. Notice of Hearing (62, R.A. 7160)- (a) Within 7 days after the administrative complaint is filed, the Office of the President or the sanggunian concerned as the case may be, shall require the respondent to submit his verified answer within 15 days from receipt thereof, and commence the investigation of the case within 10 days after the receipt of such answer of the respondent. (b) When the respondent is an elective official of a province or highly urbanized city, such hearing and investigation shall be conducted in the place where he renders or holds office. For all other local elective officials, the venue shall be the place where the sanggunian concerned is located. (c) However, no investigation shall be held within 90 days immediately prior
20
e. Suspended elective official when deemed reinstated Upon expiration of the preventive suspension, the respondent shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from the time he was formally notified of the case against him. Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. f. Salary of respondent pending suspension (64, R.A. 7160) The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. g. Rights of respondent (65, R.A. 7160) The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum. h. Form and notice of decision (66a, R.A. 7160) The investigation of the case shall be terminated within 90 days from the start thereof. Within 30 days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly an distinctly the facts and the reasons for such decision. Copy of said decision shall immediately be furnished the respondent and all interested parties. Penalty The penalty of suspension imposed upon the respondent shall not exceed his unexpired term, or a period of 6 months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent as long as he meets the qualifications required for the office. But the penalty of removal from office as a result of an administrative investigation shall be a bar to the candidacy of the respondent for any elective position. Case: The Supreme Court upheld the imposition of the administrative penalty of suspension of not more than 6 months for each offense, provided that the successive service of the sentence should not exceed the unexpired portion of the term of the petitioners. The suspension did not amount i.
21
j. Administrative appeal- Decisions may, within 30 days from receipt thereof, be appealed to: i. The sangguniang panlalawigan, in the case of decisions of component cities sangguniang panlungsod and the sangguiniang bayan; ii. The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory. Case: The Supreme Court ruled that certiorari will not lie because there is still an adequate remedy available in the ordinary course of law, i.e., appeal of the decision of the Sangguniang Panlalawigan to the Office of the President (Malinao vs. Reyes, 255 SCRA 616). k. Execution pending appeal An appeal shall not prevent a decision from being executed; the respondent shall be considered as having been placed under preventive suspension during the pendency of the appeal. But in Berces vs. Executive Secretary, 241 SCRA 539, the Supreme Court pointed out that Administrative Order No. 18 authorizes the Office of the President to stay the execution of a decision pending appeal. A.O. No. 18 was not repealed by the Local Government Code. Presidential power to grant executive clemency m. Effect of re-election The re-election of a local official bars the continuation of the administrative case against him. C. Appointive Local Officials 1. Responsibility for human resources and development- The local chief executive shall be responsible for human resources and development in his unit and shall take all personnel actions in accordance with the Constitution, pertinent laws, including such policies, guidelines and standards as the Civil Service Commission may establish; Provided that the local chief executive may employ emergency or casual employees or laborers paid on a daily wage or piecework basis and hired through job orders for local projects authorized by the sanggunian concerned, without need of approval or attestation by the CSC as long as the said employment shall not exceed 6 months. Case: But the Provincial Governor is without authority to designate the petitioner as Assistant Provincial Treasurer for Administration, because under 471 of the l.
Local Government Code, it is the Secretary of Finance who has the power to appoint Assistant Provincial Treasurers from a list of recommendees of the Provincial Governor (Dimaandal vs. Commission on Audit, 291 SCRA 322). 2. Officials common to all Municipalities, Cities and Provinces (469-490, R.A. 7160) a. Secretary to the Sanggunian b. Treasurer c. Assessor d. Accountant e. Budget Officer f. Planning and Development Coordinator g. Engineer h. Health Officer i. Civil Registrar j. Administrator k. Legal Officer l. Agriculturist m. Social Welfare and Development Officer n. Environment and Natural Resources Officer o. Architect p. Information Officer q. Cooperatives Officer r. Population Officer s. Veterinarian t. General Services Officer NOTE: In the barangay, the mandated appointive officials are the Barangay Secretary and the Barangay Treasurer, although other officials of the barangay may be appointed by the punong barangay. 3. Administrative discipline Investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal shall be in accordance with the civil service law and rules and other pertinent laws. a. Preventive suspension- The local chief executive may preventively suspend for a period not exceeding 60 days any subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. b. Disciplinary Action- Except as otherwise provided by law, the local chief executive may impose the penalty of
22
initiative. The Comelec or its designated representative shall extend assistance in the formulation of the proposition. Proponents shall have 90 days (in case of provinces and cities), 60 days (in case of municipalities) and 30 days (in case of barangays) from notice mentioned in (b) to collect the required number of signatures. The petition shall be signed before the election registrar or his designated representatives, and in the presence of a representative of the proponent and a representative of the sanggunian concerned in a public place in the local government unit. Upon the lapse of the period, the Comelec shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number of signatures defeats the proposition. If the required number is obtained, the Comelec shall set a date for the initiative during which the proposition is submitted to the registered voters in the local government unit for their approval within 60 days (in case of provinces), 45 days (in case of municipalities), and 30 days (in case of barangays) from the date of certification by the Comelec. The initiative shall be held on the date set after which the results thereof shall be certified and proclaimed by the Comelec. If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after
d.
e.
f.
g.
b.
c.
h.
23
hereto for violation of the Constitution or want of capacity of the sanggunian concerned to enact said measure. VIII. LOCAL GOVERNMENT UNITS A. The Barangay 1. Chief Officials and Offices a. There shall be in each barangay a punong baranagy, seven (7) sangguniang barangay members, the sangguniang kabataan chairman, a barangay secretary and a barangay treasurer. There shall also be in every barangay a lupong tagapamayapa. The sangguniang barangay may form community brigades and create such other positions or offices as may be deemed necessary to carry out the purposes of the barangay government. b. For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and the members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdiction, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall be deemed as agents of persons in authority. c. 389 (b)5), R.A. 7160, provides that the punong barangay shall, upon approval by a majority of all the members of the Sangguniang Barangay, appoint or replace the barangay treasurer, the barangay secretary, and other appointive local officials. 2. The Barangay Assembly There shall be a barangay assembly composed of all persons who are actual residents of the barangay for at least 6 months, 15 years of age or over, citizens of the Philippines, and duly registered in the list of barangay assembly members. It shall meet at least twice a year to hear and discuss the
24
lots drawn by the lupon chairman. d. Subject matter of amicable settlement: The Lupon of each barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except; i. Where one party is the government or any subdivision or instrumentality thereof; ii. Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; iii. Offenses punishable by imprisonment exceeding one (1) year or a fine of P5,000.00. iv. Offenses where there is no private offended party; v. Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; vi. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; vii. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice. 4. Sangguniang Kabataan: a. Creation; composition: There shall be in every barangay a sangguniang kabataan to be composed of a chairman, seven members, a secretary and a treasurer. An official who, during his term of office, shall have passed the age of 21 shall be allowed to serve the remaining portion of the term for which he was elected. b. Katipunan ng Kabataan: Shall be compsed of all citizens of the Philippines actually residing in the barangay for at least 6 months, who are 15 but not more than 21 years of age, who are duly registered in the list of the sangguniang kabataan or in the official list in the custody of the barangay secretary. It shall
25