MUNICIPALITY OF SAN FERNANDO VS.
FIRME Stated in simple parlance, the general rule is that the State may not be sued except
FACTS: Petitioner Municipality of San Fernando is a municipal corporation.
Respondent Honorable Judge Romeo N. Firme is impleaded in his official capacity as
the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La
Union. (Municipality of San Fernando, La Union v. Firme. While private respondents
Banias are heirs of the deceased Laureano Bania Sr. and plaintiffs in a civil before
the aforesaid court. At about 7am of Dec, 1965, a collision occurred involving a
passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario
Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino
Velasquez and a dump truck of the Municipality of San Fernando, La Union and
driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney
including Laureano Bania Sr. died as a result of the injuries they sustained and four
(4) others suffered varying degrees of physical injuries. On December 11, 1966, the
private respondents instituted a complaint for damages against the Estate of Macario
Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger
jeepney. However, the aforesaid defendants filed a Third Party Complaint against the
petitioner and the driver of a dump truck of petitioner.
Thereafter, the case was subsequently transferred to Branch IV, presided over by
respondent judge. The private respondents amended the complaint wherein the
petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as
defendants. Petitioner filed its answer and raised affirmative defenses such as lack of
cause of action, non-suability of the State, prescription of cause of action and the
negligence of the owner and driver of the passenger jeepney as the proximate cause
of the collision. Judgment was rendered in favor of the private respndents and
petitioner, Municipality of San Fernando, La Union and Alfredo Bislig are ordered to
pay the heirs Bania.
ISSUE: WON the respondent court committed grave abuse of discretion when it
deferred and failed to resolve the defense of non-suability of the State amounting to
lack of jurisdiction in a motion to dismiss?
HELD: The respondent judge did not commit grave abuse of discretion when in the
exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of
the State in the guise of the municipality. However, said judge acted in excess of his
jurisdiction when in his decision dated October 10, 1979 he held the municipality
liable for the quasi-delict committed by its regular employee.
RATIO: The doctrine of non-suability of the State is expressly provided for in Article
XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its
consent."
when it gives consent to be sued. Consent takes the form of express or implied
consent. Express consent may be embodied in a general law or a special law. The
standing consent of the State to be sued in case of money claims involving liability
arising from contracts is found in Act No. 3083. A special law may be passed to
enable a person to sue the government for an alleged quasi-delict.
Consent is implied when the government enters into business contracts, thereby
descending to the level of the other contracting party, and also when the State files a
complaint, thus opening itself to a counterclaim. Municipal corporations, for example,
like provinces and cities, are agencies of the State when they are engaged in
governmental functions and therefore should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the performance of such functions
because their charter provided that they can sue and be sued.
A distinction should first be made between suability and liability. "Suability depends
on the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is suable does not necessarily mean
that it is liable; on the other hand, it can never be held liable if it does not first consent
to be sued. Liability is not conceded by the mere fact that the state has allowed itself
to be sued. When the state does waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the defendant is liable."
Anent the issue of whether or not the municipality is liable for the torts committed by
its employee, the test of liability of the municipality depends on whether or not the
driver, acting in behalf of the municipality, is performing governmental or proprietary
functions. As emphasized in the case of Torio v. Fontanilla, the distinction of powers
becomes important for purposes of determining the liability of the municipality for the
acts of its agents which result in an injury to third persons.
Another statement of the test is given in City of Kokomo v. Loy, decided by the
Supreme Court of Indiana in 1916, thus:
"Municipal corporations exist in a dual capacity, and their functions are twofold. In one
they exercise the right springing from sovereignty, and while in the performance of the
duties pertaining thereto, their acts are political and governmental. Their officers and
agents in such capacity, though elected or appointed by them, are nevertheless public
functionaries performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a private,
proprietary or corporate right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of such functions act in
behalf of the municipalities in their corporate or individual capacity, and not for the
state or sovereign power."

It has already been remarked that municipal corporations are suable because their
charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental
functions and can be held answerable only if it can be shown that they were acting in
a proprietary capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant was not acting in its governmental
capacity when the injury was committed or that the case comes under the exceptions
recognized by law. Failing this, the claimant cannot recover. We arrive at the
conclusion that the municipality cannot be held liable for the torts committed by its
regular employee, who was then engaged in the discharge of governmental functions.
GONTANG VS ALAYAN
FACTS: Respondent Engr. Cecilia Alayan was appointed in 2000 as Municipal
Government Department Head (Municipal Assessor) on temporary status. In May
2001, she applied for change of status from temporary to permanent, which the Civil
Service Commission-Camarines Sur Field Office (CSC-CSFO) denied for lack of
relevant experience. On appeal, the CSC-Regional Office in its August 13, 2001
Order approved her application effective May 22, 2001. Thus, she reported for work
and sought recognition of her appointment and the grant of the emoluments of the
position from petitioner, then incumbent Mayor Romeo A. Gontang (petitioner). Her
requests having been denied, she filed before the Regional Trial Court (RTC) of Naga
City on February 5, 2002 a petition for mandamus against petitioner, in his official
capacity as Municipal Mayor of Gainza, Camarines Sur. However, the RTC dismissed
the petition for having been prematurely filed as the Order of the CSC-Regional Office
had not attained finality due to the pendency of the appeal before the CSC.
Respondent appealed to the CA which 3 ruled in her favor holding that the pendency
of an appeal is not a justification to prevent her from assuming office. Said decision
attained finality on August 10, 2007, with the denial of petitioner's petition before the
Supreme Court. However, prior to the CA decision, the CSC set aside the August 13,
2001 Order of the CSC-Regional Office on May 8, 2003 upon a finding that there was
no permanent appointment as the concurrence of the local Sanggunian was not
obtained. Respondent's appeal of the CSC decision was denied by the CA and such
denial became final on October 6, 2006. On March 17, 2008, respondent moved for
the issuance of an alias writ of execution by the RTC for the alleged unsatisfied
judgment award in the amount of P837,022.50 representing her unpaid salaries and
allowances from May 8, 2003 to October 6, 2006 during the pendency of her appeal
of the CSC Resolutions. Petitioner opposed the motion claiming full satisfaction of
the judgment after having already paid respondent the net sum of P391,040.60 10
covering all benefits for the period from the date the CSC-CSFO approved her
request for change of status on August 13, 2001 to May 7, 2003, the day before the
CSC denied her application for permanent appointment. RTC ordered the issuance of
an alias writ of execution in the order dated October 22, 2008. It also subsequently
denied petitioner's motion for reconsideration. Dissatisfied, petitioner, through
Attorneys Joselito I. Fandio (Atty. Fandio) and Voltaire V. Saulon (Atty. Saulon), the
counsels he had retained since the initial stage of the litigation, filed a petition for
certiorari seeking to annul and set aside the two (2) Orders of the RTC. CA dismissed
the petition on the ground of lack of legal authority on the part of Atty. Saulon, a
private attorney, to represent the Municipality of Gainza, Camarines Sur. Petitioner's
motion for reconsideration was denied.
ISSUE: Whether or not there was an unauthorized representation of petitioner by
private lawyers?
HELD: None. The present case stemmed from Special Civil Action for mandamus
and damages. The damages sought therein could have resulted in personal liability,
hence, petitioner cannot be deemed to have been improperly represented by private
counsel. In Alinsug v. RTC Br. 58, San Carlos City, Negros Occidental, the Court
ruled that in instances like the present case where personal liability on the part of
local government officials is sought, they may properly secure the services of private
counsel. In such instance, this Court has sanctioned the representation by private
counsel. In one case, We held that where rigid adherence to the law on
representation of local officials in court actions could deprive a party of his right to
redress for a valid grievance, the hiring of a private counsel would be proper. And in
Albuera v. Torres, this Court also said that a provincial governor sued in his official
capacity may engage the services of private counsel when "the complaint contains
other allegations and a prayer for moral damages, which, if due from the defendants,
must be satisfied by them in their private capacity." Consequently Attys. Fandio and
Saulon had the authority to represent petitioner at the initial stages of the litigation
and this authority continued even up to his appeal and the filing of the petition for
certiorari with the CA respecting the execution of the RTC judgment. It was therefore
an error for the CA to have dismissed the said petition for certiorari on the ground of
unauthorized representation.
SPECIAL STAR VS. PUERTO PRINCESA CITY
FACTS: Records show that Star Special Watchman and Detective Agency, Inc.,
Celso A. Fernandez and Manuel V. Fernandez (petitioners) were the owners of two
(2) parcels of land located in Puerto Princesa. One was covered by TCT No. 7827
5,261sqm and the other by TCT No. 7828 130Ksqm. On June 3, 1989, the two (2)
parcels of land were subdivided into seven (7) lots. Before Puerto Princesa became a
city, the national government established a military camp in Puerto Princesa, known
as the Western Command. In building the command's facilities and road network,
encroachment on several properties of petitioners resulted. Among the properties
taken for the build-up of the Western Command Headquarters was Lot 7, 5942sqm
TCT No. 13680. Petitioners' property was used as a road right-of-way leading to the
military camp. This road was named the "Wescom Road." Soon after, the City of
Puerto Princesa decided to develop the "Wescom Road" because local residents
started to build their houses alongside it. In view of the encroachment, petitioners filed
an action for Payment of Just Compensation against Puerto Princesa City, Mayor
Edward Hagedorn and the City Council of Puerto Princesa City (respondents) before
the RTC praying that the court render judgment ordering respondents to pay
petitioners for the fair market value of their land and a monthly rental fee until fully
paid. On July, 1993, the RTC-Br. 78 rendered a decision in favor of petitioners.
Decision became final and executory, a writ of execution, dated February 17, 1994,
was issued which directed respondents to satisfy the money judgment contained in
the said decision. The total money judgment amounted to P16.9M as of October
1995. Nonetheless, sometime in November 1995, petitioner Celso A. Fernandez and
respondents' legal counsel, Atty. Agustin Rocamora, met and agreed to reduce the
money judgment from P16.9M to P12M, subject to the condition that respondents
would pay the amount of P2M in February 1996 and, thereafter, P1m monthly until
fully paid. The P1 million monthly payment was further reduced to P500K. Pursuant
thereto, respondents initially appropriated the amount of P2M representing the initial
payment of petitioners' claim. However, petitioners again filed a complaint before the
RTC against respondents for collection of unpaid just compensation, including
interests and rentals. Petitioners averred, among others, that respondents indeed
paid a total amount of P12 million, but not on time; that as of October 31, 2001, they
had an unpaid balance of P10.6M inclusive of interests; and that as of October 31,
2001, the rentals due on the subject property reached the amount of P380,000.00
plus the monthly rentals of P2,000.00 from November 2001.
On November 18, 2003, after petitioners presented their evidence and respondents
waived their right to present theirs, the RTC-Br. 223 rendered its decision in favor of
petitioners and it granted petitioners' motion for execution and issued a writ of
execution. Subsequently, petitioners filed two (2) motions, dated May 4, 2005 and
July 20, 2005, both asking the RTC-Br. 223 1] to order the Land Bank of the
Philippines to deliver the garnished account of respondents; and/or 2] to order
respondents to appropriate funds for the payment of the money judgment rendered
against them and in favor of petitioners. On October 27, 2005, the RTC-Br. 223
issued an order 14 denying both motions on the ground that pursuant to Section 305
(a) of the Local Government Code, 15 government funds could not be subjected to
execution and levy, or to garnishment for that matter, unless there was a
corresponding appropriation law or ordinance. The RTC-Br. 223, however, stated that
respondents must still honor their obligation and that petitioners were entitled to a full
and just compensation considering that its decision had long become final and
executory. Accordingly, it directed respondents to comply with its decision and to
immediately pay petitioners the sums of money specified in the said decision.
On February 14, 2006, petitioners filed a motion to declare respondents in indirect
contempt of court for their failure to comply with the November 18, 2003 RTC-Br. 223
decision despite the issuance of a writ of execution against them. Again, petitioners'
motion was denied by the RTC-Br. 223 in its Order, 16 dated September 6, 2006. The
RTC-Br. 223 reiterated the rule that government funds may not be subjected to
execution and levy, or to garnishment, unless there was a corresponding
appropriation law or ordinance. It also cited the Supreme Court Administrative
Circular No. 10-00, dated October 25, 2000, which enjoined the observance of utmost
caution, prudence and judiciousness in the issuance of writs of execution to satisfy
money judgments against government agencies and local government units. The
RTC-Br. 223 likewise issued an order, 17 dated June 5, 2007, denying the petitioners'
motion to compel respondents to comply with the writ of execution, dated February 1,
2007, restating the proscription with respect to the satisfaction of money judgment
against government agencies and local government units.
On May 7, 2007, petitioners wrote a letter to the Commission on Audit (COA)
requesting that it order respondents to pay petitioners the amount adjudged in the
November 18, 2003 decision of the RTC-Br. 223. Subsequently, on July 13, 2007,
petitioners filed a formal claim 18 with the COA praying that it issue an order directing
respondents to appropriate/allocate the necessary funds for the full satisfaction of the
said decision including the corresponding interests and rentals which as of June 26,
2007 amounted to P21.2M On July 7, 2007, the COA, through its Legal and
Adjudication Office-Local, wrote a letter 19 to petitioner Celso Fernandez informing
him that it could not act upon his request to order respondents to pay petitioners the
amount adjudged in the November 18, 2003 decision because it had no jurisdiction
over the matter as the case was already in the execution stage. The COA wrote
another letter, 20 dated March 28, 2008, reiterating its stand on the matter.
Undaunted, petitioners filed similar complaints against respondents before the Office
of the Deputy Ombudsman for Luzon and to the Office of the Undersecretary of the
Department of Interior and Local Government praying that respondents pay the
subject money judgment and that they be suspended from office for their refusal to
comply with the money judgment.
ISSUE: Is mandamus a proper remedy to compel the respondents to pay the just
compensation?
HELD: Yes. SC to direct COA to act on the petition. Where a municipality fails or
refuses, without justifiable reason, to effect payment of a final money judgment
rendered against it, the claimant may avail of the remedy of mandamus in order to
compel the enactment and approval of the necessary appropriation ordinance, and
the corresponding disbursement of municipal funds therefor. his doctrine was
reiterated in Teresita M. Yujuico v. Hon. Jose L. Atienza, 25 as follows:
Respondents also argue that the members of the CSB cannot be directed to decide a
discretionary function in the specific manner the court desires. The question of
whether the enactment of an ordinance to satisfy the appropriation of a final money
judgment rendered against an LGU may be compelled by mandamus has already
been settled in Municipality of Makati v. Court of Appeals.
Nevertheless, this is not to say that private respondent and PSB are left with no legal
recourse. Where a municipality fails or refuses, without justifiable reason, to effect
payment of a final money judgment rendered against it, the claimant may avail of the
remedy of mandamus in order to compel the enactment and approval of the
necessary appropriation ordinance, and the corresponding disbursement of municipal
funds therefore. Clearly, mandamus is a remedy available to a property owner when a
money judgment is rendered in its favor and against a municipality or city, as in this
case Moreover, an important principle followed in the issuance of the writ is that there
should be no plain, speedy and adequate remedy in the ordinary course of law other
than the remedy of mandamus being invoked. In other words, mandamus can be
issued only in cases where the usual modes of procedure and forms of remedy are
powerless to afford relief. Although classified as a legal remedy, mandamus is
equitable in its nature and its issuance is generally controlled by equitable principles.
Indeed, the grant of the writ of mandamus lies in the sound discretion of the court.
Regarding final money judgment against the government or any of its agencies or
instrumentalities, the legal remedy is to seek relief with the COA pursuant to Supreme
Court Administrative Circular 10-2000 dated October 25, 2000. However,
notwithstanding the rule that government properties are not subject to levy and
execution unless otherwise provided for by statute. the Court has, in various
instances, distinguished between government funds and properties for public use and
those not held for public use. Considering that a writ of execution was already issued
by RTC-Br. 223, the remedy of petitioners is to follow up their claim with the COA.
Petitioners rightfully did so, but the COA erred in not acting on the claim.
It is the opinion of this Court that COA should have acted on the formal request of
petitioners. Sections 26, 49 and 50 of P.D. No. 1445 otherwise known as the
Government Auditing Code of the Philippines, provide:
Section 26. General jurisdiction. The authority and powers of the Commission shall
extend to and comprehend all matters relating to auditing procedures, systems and
controls, the keeping of the general accounts of the Government, the preservation of
vouchers pertaining thereto for a period of ten years, the examination and inspection
of the books, records, and papers relating to those accounts; and the audit and
settlement of the accounts of all persons respecting funds or property received or held
by them in an accountable capacity, as well as the examination, audit, and settlement
of all debts and claims of any sort due from or owing to the Government or any of its
subdivisions, agencies and instrumentalities.
Considering that the COA still retained its primary jurisdiction to adjudicate money
claim, petitioners should have filed a petition for certiorari with this Court pursuant to
Section 50 of P.D. No. 1445. Hence, the COA's refusal to act did not leave the
petitioners without any remedy at all.
MUNICIPALITY OF SAN JUAN VS. CA
FACTS: Under a Contract For Water Service Connections entered into by and
between the MWSS and K.C. Waterworks System Construction, the former engaged
the services of the latter to install water service connections. Meanwhile, between 10
oclock and 11 oclock in the evening of 31 May 1988, Priscilla Chan was driving her
Toyota Crown car with Plate No. PDK 991 at a speed of thirty (30) kilometers per hour
on the right side of Santolan Road towards the direction of Pinaglabanan, San Juan,
Metro Manila. With her on board the car and seated on the right front seat was
Assistant City Prosecutor Laura Biglang-awa. The road was flooded as it was then
raining hard. Suddenly, the left front wheel of the car fell on a manhole where the
workers of KC had earlier made excavations. As a result, the humerus on the right
arm of Prosecutor Biglang-awa was fractured. RTC and CA both found for the
petitioner holding MWSS, KC and San Juan solidarily liable for the damages
sustained by prosecutor Biglang Awa
ISSUE: Whether or not Municipality of San Juan has control or supervision or is liable
for the excavations made by MWSS and KC Cons.
HELD: Yes, Jurisprudence teaches that for liability to arise under Article 2189 of the
Civil Code, ownership of the roads, streets, bridges, public buildings and other public
works, is not a controlling factor, it being sufficient that a province, city or municipality
has control or supervision thereof. We must emphasize that under paragraph [1][bb]
of Section 149, supra, of the Local Government Code, the phrases regulate the
drilling and excavation of the ground for the laying of gas, water, sewer, and other
pipes, and adopt measures to ensure public safety against open canals, manholes,
live wires and other similar hazards to life and property, are not modified by the term
municipal road. And neither can it be fairly inferred from the same provision of Section
149 that petitioners power of regulation vis--vis the activities therein mentioned
applies only in cases where such activities are to be performed in municipal roads. To
our mind, the municipalitys liability for injuries caused by its failure to regulate the
drilling and excavation of the ground for the laying of gas, water, sewer, and other
pipes, attaches regardless of whether the drilling or excavation is made on a national
or municipal road, for as long as the same is within its territorial jurisdiction.
2. Liability of Local Officials
JOSON VS. TORRES, MAY 20, 1998
FACTS: The case at bar involves the validity of the suspension from office of
petitioner Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private
respondent Oscar C. Tinio is the Vice-Governor of said province while the rest are
members of the Sangguniang Panlalawigan. Private respondents filed with the Office
of the President a letter-complaint charging petitioner with grave misconduct and
abuse of authority. Private respondents alleged that in the morning of Sept, 1996,
they were at the session hall of the provincial capitol for a scheduled session of the
Sangguniang Panlalawigan when petitioner belligerently barged into the Hall;
petitioner angrily kicked the door and chairs in the Hall and uttered threatening words
at them; close behind petitioner were several men with long and short firearms who
encircled the area. Private respondents claim that this incident was an offshoot of
their resistance to a pending legislative measure supported by petitioner that the
province of Nueva Ecija obtain a loan of P150 million from the Philippine National
Bank; that petitioner's acts were intended to harass them into approving this loan; that
fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of
quorum; they opposed the loan because the province of Nueva Ecija had an
unliquidated obligation of more than P70M incurred without prior authorization from
the SP; that the provincial budget officer and treasurer had earlier disclosed that the
province could not afford to contract another obligation; that petitioner's act of barging
in and intimidating private respondents was a serious insult to the integrity and
independence of the SP;
Private respondents prayed for the suspension or removal of petitioner; for
an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the
proposed loan in light of the financial condition of the province. Petitioner requested
several extensions and still was not able to file answer even if he was granted the
same. Undersecretary Manuel Sanchez, then Acting Secretary of the DILG, issued an
order declaring petitioner in default and to have waived his right to present evidence.
On recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued
an order, by authority of the President, placing petitioner under preventive suspension
for 60 days pending investigation of the charges against him. Petitioner filed a petition
for certiorari and prohibition with the Court of Appeals challenging the order of
preventive suspension (By Exec Sec) and the order of default (By DILG). CA
dismissed his petition. The Secretary of the Interior and Local Governments rendered
a resolution on the case finding him guilty of the offenses charged. On January 8,
1998, the Executive Secretary, by authority of the President, adopted the findings and
recommendation of the DILG Secretary. He imposed on petitioner the penalty of
suspension from office for six (6) months without pay.
ISSUE: WON the resoln of Exec Sec preventively suspending the petitioner is valid.
HELD: No. Resoln is declared null and void and is set aside. Administrative
disciplinary proceedings against elective local officials are governed by the Local
Government Code of 1991, the Rules and Regulations Implementing the Local
Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing the
Rules and Procedures on the Investigation of Administrative Disciplinary Cases
Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Cities and Municipalities in Metropolitan Manila. An
administrative complaint against an erring elective official must be verified and filed
with the proper government office. A complaint against an elective provincial or city
official must be filed with the Office of the President. A complaint against an elective
municipal official must be filed with the Sangguniang Panlalawigan while that of a
barangay official must be filed before the Sangguniang Panlungsod or Sangguniang
Bayan.
On October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation.
Petitioner reiterated this motion on October 29, 1997. Petitioner's motion was denied
on November 11, 1997. Secretary Barbers found petitioner guilty as charged on the
basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres
adopted Secretary Barbers' findings and recommendations and imposed on petitioner
the penalty of six (6) months suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due
process. Section 5 of A. O. No. 23 provides that at the preliminary conference, the
Investigating Authority shall summon the parties to consider whether they desire a
formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a formal investigation would be conducted. The
records show that petitioner filed a motion for formal investigation. As respondent, he
is accorded several rights under the law. Petitioner's right to a formal investigation
was not satisfied when the complaint against him was decided on the basis of position
papers. There is nothing in the Local Government Code and its Implementing Rules
and Regulations nor in A.O. No. 23 that provide that administrative cases against
elective local officials can be decided on the basis of position papers. A.O. No. 23
states that the Investigating Authority may require the parties to submit their
respective memoranda but this is only after formal investigation and hearing.[72] A.O.
No. 23 does not authorize the Investigating Authority to dispense with a hearing
especially in cases involving allegations of fact which are not only in contrast but
contradictory to each other. These contradictions are best settled by allowing the
examination and cross-examination of witnesses. Position papers are often-times
prepared with the assistance of lawyers and their artful preparation can make the
discovery of truth difficult. The jurisprudence cited by the DILG in its order denying
petitioner's motion for a formal investigation applies to appointive officials and
employees. Administrative disciplinary proceedings against elective government
officials are not exactly similar to those against appointive officials. In fact, the
provisions that apply to elective local officials are separate and distinct from
appointive government officers and employees.
The procedure of requiring position papers in lieu of a hearing in administrative cases
is expressly allowed with respect to appointive officials but not to those elected.
Suspension and removal from office definitely affects and shortens this term of office.
When an elective official is suspended or removed, the people are deprived of the
services of the man they had elected. Implicit in the right of suffrage is that the people
are entitled to the services of the elective official of their choice. Suspension and
removal are thus imposed only after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
VALENCIA VS SANDIGANBAYAN
FACTS: That on or about January 12, 1994 or sometime prior or subsequent thereto,
in Mindoro, accused Rodolfo G. Valencia, then Provincial Governor of Oriental
Mindoro, Pedrito A. Reyes, then Vice-Governor and Presiding officer of the
Sangguniang Panlalawigan of Oriental Mindoro, and members of the Sangguniang
Panlalawigan of Oriental Mindoro, and Alfonso V. Umali, Jr., then Provincial
Administrator, conspiring and with accused Engr. Alfredo M. Atienza gave said
accused Alfredo M. Atienza unwarranted benefit by entering into a grossly
disadvantageous contract of loan, whereby the provincial funds of Oriental Mindoro in
the sum of P2.5M was given to Alfredo M. Atienza to finance the cost of repair,
operation and maintenance of his vessel, thereby causing the provincial government
of Oriental Mindoro damage. The Information was filed with the Sandiganbayan.
On March 23, 1998, the Office of the Special Prosecutor/Ombudsman issued a Joint
Resolution that the motion for reinvestigation be denied and Special Prosecutor
Leonardo P. Tamayo recommended the dismissal of the complaint against all
accused on the ground that their liability is civil in nature. Petitioners filed with the SB
a Motion for Leave to File Motion for Reconsideration of the Joint Resolution of the
Office of the Special Prosecutor/Ombudsman, which was denied in the first assailed
Resolution. In the meantime, petitioners learned that in the administrative case
against them, which involved the same subject matter as the criminal case, the
Ombudsman dismissed the complaint against them after finding that the contract of
loan was entered into in pursuance of the police power of the local chief executive.
Invoking this Resolution, petitioners filed with the SB a Motion for Reconsideration of
the Order and/or Motion to Resolve Motion to Quash Information. The Sandiganbayan
denied the Motion. Hence appeal to SC.
ISSUE: WON the SB erred in denying the motion to quash
HELD: NO, Petition dismissed. A careful scrutiny of the Information shows that all the
elements in The Anti-Graft and Corrupt Practices Act are averred therein. It
sufficiently alleges that petitioners are public officials discharging official or
administrative functions who, in evident bad faith and with manifest partiality, entered
into a grossly disadvantageous contract on behalf of the government with a private
person which gives the latter unwarranted benefit and advantage. Petitioners argue
that the dismissal by the Ombudsman of the administrative case against them based
on the same subject matter should operate to dismiss the criminal case because the
quantum of proof in criminal cases is proof beyond reasonable doubt, while that in
administrative cases is only substantial evidence. While that may be true, it should
likewise be stressed that the basis of administrative liability differs from criminal
liability. The purpose of administrative proceedings is mainly to protect the public
service, based on the time-honored principle that a public office is a public trust. On
the other hand, the purpose of the criminal prosecution is the punishment of crime.
One of the grounds for the dismissal of the administrative case against petitioners is
the fact that they were reelected to office. Indeed, a reelected local official may not be
held administratively accountable for misconduct committed during his prior term of
office. The rationale for this holding is that when the electorate put him back into
office, it is presumed that it did so with full knowledge of his life and character,
including his past misconduct. If, armed with such knowledge, it still reelects him, then
such reelection is considered a condonation of his past misdeeds. However, the re-
election of a public official extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office. Thus, no reason for the
Sandiganbayan to quash the Information against petitioners on the basis solely of the
dismissal of the administrative complaint against them.
MONTILLA VS HILARIO
FACTS: Manuel Montilla is the provincial fiscal of Ilocos (petitioner) while Judge
Hilario is the CFI judge and Floro Crisologo (congressman & defense counsel for the
municipal mayor).
Section 17, Article VI, of the Constitution bars Senators and members of HOR from
appearing as counsel before any court "in any criminal case wherein an officer or
employee of the government is accused of an offense committed in relation to his
office." A writ of certiorari was filed in the CFI of Ilocos Sur involving the scope of the
Sec. 17, Art. VI.
The provincial fiscal and the private counsel for the complainants seek to annul an
order of the court overruling their objection to Congressman Crisologo's intervention
as defense counsel in a criminal case for murder and frustrated murder against the
municipal mayor and 3 members of the police of Ilocos Sur. They were charged for
alleged assault, and attack with their firearms leading to the killing of one Claudio
Ragasa and physical injuries on 3 others. Based on the allegations, it does not
appear that the official positions of the accused were connected with the offenses
charged. In fact, the attorneys for the prosecution of stated that the motives for the
crimes were "personal with political character."
ISSUE: WON the offenses charged were connected with the official positions of the
accused
HELD: NO. The petitioners contention is untenable. Judged by the context of section
17 of Article VI, and the proceedings of the Constitutional Convention, the relation
between the crime and the office contemplated by the Constitution is direct and not
accidental. To fall into the intent of the Constitution, the relation has to be such that, in
the legal sense, the offense cannot exist without the office. In other words, the office
must be a constituent element of the crime as defined in the statue. Public office is
not of the essence of murder. The taking of human life is either murder or homicide
whether done by a private citizen or public servant, and the penalty is the same
except when the perpetrator, being a public functionary, took advantage of his office,
as alleged in this case, in which event the penalty is increased. But the use or abuse
of office does not adhere to the crime as an element; and even as an aggravating
circumstance, its materiality arises, not from the allegations but on the proof, not from
the fact that the criminals are public officials but from the manner of the commission
of the crime.
Incidentally, this might serve as a warning against disqualifying a lawyer legislator on
the basis of what is alleged and not on the nature of the offense itself. Were the
petitioners' proposition sustained, the result would be that in every case in which the
accused is a public officer or employee, the prosecution could at will keep a member
of Congress from entering an appearance as attorney for the defense. The prosecutor
could do this by the simple expedient of making the necessary averments, even
though, as a matter of fact, there was no evidence that the office held by the
defendant had anything to do with the offense. By the same token, the fact that, as
alleged, the defendants made use of firearms which they were authorized to carry or
possess by reason of their positions, could not supply the required connection
between the office and the crime. Firearms however and wherever obtained are not
an ingredient of murder or homicide.
SALALIMA VS GUINGONA
FACTS: This Supreme Court case involves four administrative complaints filed
against Albay Governor Salalima and the members of the Sangguniang Panlalawigan
of Albay. The complaints seek to hold the petitioners liable for a) wanton disregard of
law amounting to abuse of authority in OP case 5470; b) grave abuse of authority
under Section 60 (e) of the Local Government Code in OP cae 5649; c) oppression
and abuse of authority under Section 60 (c) and (e) of the Local Government Code in
OP case 5471 and d) abuse of authority and negligence in OP case 5450. Relevant to
our discussion on whether or not LGUs can hire private lawyers in cases filed against
it is OP case 5469.
The Province of Albay imposed real property tax against the NAPOCOR. The latter,
claiming that it is tax exempt, refused to pay the said tax liability. Due to its refusal to
pay, the Province of Albay took over the properties of NPC and sold them in an
auction sale. The Province was the sole bidder. Upon the failure of NPC to redeem
the property, the Province sought the issuance of a writ of possession from the RTC.
The NPC challenged this in a petition filed with the SC. The Province, through its legal
office Atty. Ricaforte, filed its comment on the said petition on May 17, 1989. On June
2, 1989, the Sangguniang Panlalawigan issued Resolution No. 129-89, authorizing
Salalima to engage the services of a Manila-based law firm to handle the case. As
such, on August 25, 1989, Atty. Jesus Carnago entered his appearance with the SC
as a collaborating counsel. On November 14, 1989, Atty. Antonio Jose Cortes of
Cortes and Reyna Law Firm sent a letter to Salalima, informing him that Atty.
Carnago had filed a memorandum in the SC. He then proposed that his law firm and
that of Atty. Carnago enter into a retainer agreement with the Province in connection
with the case. He charged 50,000 as acceptance fee and a contingency fee of 18%.
In response to this, the Sangguniang Panlalawigan passed Resolution No. 01-90
authorizing Salalima to sign a retainer contract with Cortes and Reyna Law Firm.
On June 4, 1990, the SC ruled in favor of the Province. The latter then paid the
lawyers amounting to around 7M. However, on May 31, 1993, the Provincial Auditor
informed the Province that COA had disallowed the payments for lack of prior written
conformity of the Sol-Gen and a written concurrence of COA. An administrative
complaint was later on filed against the petitioners with the Office of the President.
The OP found that the petitioners incurred administrative liability in hiring private
lawyers to defend it in the NPC case. OPs RATIO:
1. Section 481 of the LGC states that the legal officer of the province has the duty to
represent the LGU in all civil actions and special proceedings wherein the LGU or any
official thereof, in his official capacity, is a party.
2. In the case Municipality of Bocaue v. Manotok, the Supreme Court ruled that the
LGU cannot be represented by private lawyers and it is solely the Provincial legal
officer or provincial fiscal who can represent it. A private lawyer has no standing in
such a case.
3. Sec. 481 and Municipality of Bocaue v. Manotok are applicable in this case. In
hiring the private lawyers, the petitioners violated the LGC and the doctrine laid down
by the Supreme court.
4. Moreover, the transaction was also full of irregularities.
a. The disbursement of 7M as payment was disallowed by COA for failure to
comply with the prerequisite conformity from the SolGen and the COA.
b. Resolution 01-90 authorized Salalima to contract with Cortes and Reyna
Law Firm and NOT with Atty. Carnago. Salalima exceeded the authority
given to him in doing so.
c. Only Atty. Carnago appeared as counsel in the NPC case. It appears that
Cortes and Reyna did not render any form of legal service in relation thereto.
d. The provincial legal officer had already filed a comment in the SC. What
Carnago filed was merely a memorandum. The total attorneys fees of 38
Million is clearly unconscionable.
Because of these findings, the OP imposed the penalty of suspension for 6 months
against Gov. Salalima and Vice governor Azana, while the members of the SP were
suspended for 4 months. The petitioners appealed the case to the SC. In the
meantime, the 1992 elections took place wherein the petitioners were reelected.
ISSUES:
1) WON the petitioners incurred administrative liabilities in hiring private lawyers to
represent the Province
2) WON the Office of the President has any power to remove elected officials
HELD:
1) NO. Whether or not they incurred liabilities, they can no longer be held to answer
for these in view of the fact that they have already been reelected. Their reelection
operates as condonation of any misconduct committed in their prior term.
In Pascual v. Pascual, the SC ruled that offenses committed or acts done in a
previous term are generally held not to furnish a cause for removal in the current term
of office. This is because each term is separate from other terms and that the
reelection operates as a condonation of the officers previous misconduct to the
extent of cutting off the right to remove him therefore. Such a rule is founded on the
theory that an officials reelection expresses the sovereign will of the electorate to
forgive or condone any act or omission constituting a ground for administrative
discipline which was committed during the previous term. Also, sound policy dictates
such a rule. A contrary rule would open the floodgates to exacerbating endless
partisan contests between reelected officials and their political enemies who may not
stop to hound the former during his new term with administrative cases for acts
alleged to have been committed during his previous term.
2) NO. The Office of the President is without any power to remove elected officials,
since such power is exclusively vested in the proper courts as expressly provided for
in the last paragraph of the aforequoted Section 60.
Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government
Code, however, adds that (b) An elective local official may be removed from office on the
grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60,
Local Government Code of 1991] by order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the other. The disciplining authority
referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the
President.
However, this grant to the disciplining authority of the power to remove elective local
officials is clearly beyond the authority of the Oversight Committee that prepared the
Rules and Regulations. No rule or regulation may alter, amend, or contravene a
provision of law, such as the Local Government Code. Implementing rules should
conform, not clash, with the law that they implement, for a regulation, which operates
to create a rule out of harmony with the statute, is a nullity. Hence, the OP Decision
imposing penalties is reversed and set aside.
VELASCO VS. SANDIGANBAYAN
Facts: On September 21, 1999, the Civil Service Commission (CSC) issued a
Resolution ordering the dismissal of Engr. Agonoy, Municipal Engineer of Bacarra,
Ilocos Norte, for gross neglect of duty. Agonoy did not file a MR; instead, he filed a
petition for review in CA. Despite his knowledge of the said CSC resolution, petitioner
Mayor Pacifico C. Velasco of Bacarra, Ilocos Norte, allowed Agonoy to report for work
as Municipal Engineer. He issued a Memorandum to the Municipal Treasurer of
Bacarra, Lorna S. Dumayag to pay the salaries and other benefits of Agonoy in his
capacity as Municipal Engineer. She was likewise directed to pay Agonoys salary
and other benefits until SC had finally decided the case. As such, Agonoy continued
reporting as municipal engineer from November 11, 1999. CA denied Agonoys
petition for review. He filed a MR of the decision, which the CA also denied.
Undaunted, Agonoy filed a petition for review of the CA decision with SC.
On December 4, 2000, SC denied the petition for review filed by Agonoy. On
February 28, 2001, Agonoy resigned as Municipal Engineer. The Resolution of the
SC dismissing the petition for review of Agonoy became final and executory on May
10, 2001.
On March 18, 2002, Philip Velasco, VM of Bacarra, filed a complaint before the
Ombudsman against Mayor Velasco, Agonoy and Municipal Treasurer Dumayag for
violation of RA 3019 (Anti-Graft & Corrupt Practices Act). Ombudsman found
probable cause against petitioner Mayor Velasco for violation of Section 3(e) of RA
3019, and filed an Information with the Sandiganbayan charging him of that crime.
The case against Agonoy was dismissed because he had earlier resigned; on the
other hand, the Ombudsman absolved the Municipal Treasurer, on the finding that
she had merely obeyed the orders of the Mayor.
Petitioners Argument
The petitioner filed a Supplemental Motion to Quash the Information on the ground
that it did not charge the offense of violation of Section 3(e) of RA 3019. He alleged
that the CSC Resolution did not bind him because he was not a party to the case. He
also alleged that he did not receive any directive from the CSC ordering him to
implement its resolution. Furthermore, even if the CSC did issue the said directive, he
could not prevent Agonoy from reporting for work. He further averred that he
permitted Agonoy to report for work, and receive salaries and other benefits from the
municipality because the resolution of the CSC dated September 21, 1999 was not
immediately executory. It cannot, therefore, be claimed that he gave unwarranted
benefits to Agonoy through manifest partiality, evident bad faith, or gross inexcusable
negligence. Agonoy averred that until the resolution of the SC denying Agonoys
petition for review had become final and executory, he could not be compelled to
implement the September 21, 1999 Resolution of the CSC.
On October 8, 2003, SB issued a Resolution denying the motion of the petitioner. The
Court ruled that the Information alleged all the elements of violation of Section 3(e) of
RA 3019. The petitioner filed a MR, which the SB likewise denied.
ISSUE: WON Mayor Velasco is liable under RA 3019
HELD: YES. Section 3(e) of Rep. Act No. 3019 states that -
(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.
The essential elements of violation of Section 3(e) of Rep. Act No. 3019 are as follows:
1. The accused must be a public officer discharging administrative, judicial or
official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and
3. That his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits, advantage or
preference in the discharge of his functions.
The Court explained in the same case that there are two (2) ways by which a public
official violates Section 3(e) of Rep. Act No. 3019 in the performance of his functions,
namely: (a) by causing undue injury to any party, including the Government; or (b) by
giving any private party any unwarranted benefits, advantage or preference. The
accused may be charged under either mode or under both. In this case, the petitioner
was charged of violating Section 3(e) of Rep. Act No. 3019 under two alternative
modes of committing the crime.
In its assailed Resolution dated October 8, 2003 the SB declared that the Information
filed against the petitioner contained all the essential elements of the crime charged.
SC agrees with the SB. The petitioner, at the time of the alleged commission of the
crime, was the Municipal Mayor of Bacarra, Ilocos Norte. As such, he was mandated
to ensure that all officers, including himself, abide by Article I of Section 444(b)(x)[13]
of RA 7160, otherwise known as the LGC, which directs executive officials and
employees of the municipality to faithfully discharge their duties and functions as
provided by law. Considering such duty, the petitioner had to enforce decisions or
final resolutions, orders or rulings of the CSC. Furthermore, under Section 83 of the
Uniform Rules on Administrative Cases in the Civil Service, as implemented by CSC
Resolution, he may be cited in contempt of the Commission in case of his refusal or
failure to do so, and may even be administratively charged.
Section 83. Non-execution of Decision. Any officer or employee who willfully refuses or fails to
implement the final resolution, decision, order or ruling of the Commission to the prejudice of the
public service and the affected party, may be cited in contempt of the Commission and
administratively charged with conduct prejudicial to the best interest of the service or neglect of
duty.
It is, thus, not necessary that the officer or employee who willfully refuses or fails to
implement such final resolution be a party to the case which was resolved by the CSC
or by its Regional Office. However, in order for such resolution to be implemented, it
is required that a copy of the CSC Resolution be furnished to the implementing
agency, or that such agency had knowledge. It is also required that the subject CSC
Resolution is final and executory. Corollarily, Section 80 of the Uniform Rules on
Administrative Cases in the Civil Service provides that the decision of the CSC or its
Regional Office shall be immediately executory after fifteen (15) days from receipt
unless a motion for reconsideration is seasonably filed.
In this case, the petitioner knew of the questioned CSC Resolution even before he
was officially furnished with a copy thereof. In fact, the petitioner unequivocably
admitted that he knew of the September 21, 1999 Resolution of the CSC dismissing
Agonoy as Municipal Engineer of Bacarra, Ilocos Norte, in his Memoranda to the
Municipal Treasurer.
The petitioner should have known that in case of Agonoys failure to file any motion
for the reconsideration of the CSC Resolution, such resolution would become
executory, and he would thus be mandated to enforce the same. However, if Agonoy
had filed a petition for review in the CA and the appellate court had issued a stay of
execution as provided for in Section 82 of the Uniform Rules on Administrative Cases
in the Civil Service, in tandem with Section 12, Rule 43 of the Rules of Court, as
amended, the petitioner could not be faulted for allowing Agonoy to continue working
and receiving compensation.
In this case, Agonoy did not file any MR of the CSC Resolution; while he filed a
petition for review of the CSC Resolution in the CA and in this Court, no stay order
was issued by either courts in his favor. Thus, the petitioner defied the CSC
Resolution dated September 21, 1999; he allowed Agonoy to report for work and
ordered the Municipal Treasurer to pay to Agonoy his salary, RATA and other
benefits. The petitioner even warned the Municipal Treasurer that she had no right to
withhold the said salary and other benefits from Agonoy. While there is no showing in
the records that the petitioner Mayor was informed that Agonoy did not file any motion
for the reconsideration of the CSC Resolution, prudence dictated that he should have
ascertained whether Agonoy had done so. The petitioner should have at least
attempted to verify whether Agonoy was able to secure a stay order from the CA
before issuing such memoranda. Indeed, the petitioners failure to do so constitutes
gross negligence on his part. As a consequence of the Memoranda issued by the
petitioner, the municipal treasurer remitted Agonoys salary, RATA and other benefits
in the total amount of P375,168.00, thus giving unwarranted benefits to the latter and
causing undue injury to the government.
LEYCANO VS COA, FEBRUARY 10, 2006
FACTS: Petitioner Manuel Leycano, Jr. was the Provincial Treasurer of Oriental
Mindoro and at the same time a member of the Provincial School Board (PSB) of that
province. During his tenure, he was a member of its Inspectorate Team which
monitors the progress of PSB projects. Several checks were issued to various private
contractors in connection with the repair, rehabilitation, and construction projects
covered by the Special Education Fund (SEF)[2] of Oriental Mindoro in 25 public
schools.
The Special Audit Team of COA found deficiencies in the projects, hence, it issued
the questioned Notices of Disallowance holding petitioner, along with Sangguniang
Panlalawigan Member and Schools Division Superintendent Benjamin Cruz, liable for
signing the Certificates of Inspection (the dates of which have not been alleged by
either party) relative to the projects and thereby falsely attesting to their 100%
completion. Petitioner appealed the Notices of Disallowance to the COA that his
name be deleted from among the persons liable. His petition was granted by the
Regional Director stating that the projects undertaken and charged against the SEF
which were found either incomplete or inexistent by the Auditor in 1996 had already
been corrected by the contractors concerned. However, upon reinspection by the
COA, they still found deficiencies in the completion of the projects in the total amount
of P1,039,339.57, finding no sufficient justification to exclude petitioner from liability,
denied his appeal.
Hence, the present petition. Petitioner contends the ff:
I. COA relied solely on the findings of the State Auditor;
II. COA made erroneous findings of fact and law;
III. Audit report is not in accordance with prescribed Auditing Standard
IV. Audit Report was meant to harass
ISSUE: WON Leycano is liable
HELD: Yes, Petitioner admits having signed the Certificate of Inspection in which he
attested that the projects were 100% completed. Significantly, he does not dispute the
finding of the COA that the subject projects were not completed. He alleges, however,
that the COA overlooked the fact that the PSB merely intended the Inspectorate
Team, of which he was a member, to perform monitoring functions, leaving the strict
implementation and supervision of the projects in the hands of the Provincial
Engineering Office. He thus concludes that he is not the accountable officer and
instead points to the Project Engineer and Provincial Engineer, who are in charge of
the supervision and control of PSB Projects.
In support of his claim that the duty of strict supervision over PSB projects belongs to
the Provincial Engineering Office and not to the Inspectorate Team, petitioner invokes
PSB Resolution No. 05-96 APPROVING AND ADOPTING THE NEW GUIDE-
LINES/PROCEDURES IN THE IMPLEMENTATION OF PSB PROJECTS approved
on March 25, 1996. These new guidelines/procedures are in the form of a flow chart
indicating the different stages in the implementation of PSB projects from INCOMING
REQUEST to PAYMENT. At the outset, it bears stressing that petitioners reliance on
this Resolution is misplaced, as the same was approved by the PSB only on March
25, 1996, whereas all the checks paid to the concerned contractors herein were
issued in the year 1995.
But assuming arguendo that the above-said PSB Resolution accurately reflects the
functions of the Inspectorate Team at the time the events relevant to this case
occurred, it only refutes, rather than strengthens, petitioners contention that the Team
was created merely for monitoring functions.
The flow chart clearly shows that, after the PROJECT IMPLEMENTATION stage, the
project must be inspected by the PROJECT INSPECTORATE TEAM before there can
be ACCEPTANCE/TURNOVER and thereafter, PAYMENT. Notably, there is no
indication that the Inspectorate Team is an unessential part of the process such that
payment may be released to contractors even before it has performed its functions,
as petitioner seems to imply when he claims that it merely performs monitoring
functions. Rather, it can be deduced from the flow chart that prior examination of the
project by the Inspectorate Team is necessary before there can be acceptance or
turnover of PSB projects and payment to the contractors concerned.
In light of this function of the Inspectorate Team, its members may be held liable by
the COA for any irregular expenditure of the SEF if their participation in such
irregularity can be established. While petitioner, in his capacity as member of the
Inspectorate Team, is not an accountable officer as contemplated in Section 101 of
P.D. No. 1445, he may, nonetheless, be held liable by the COA under the broad
jurisdiction vested on it by the Constitution to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government.[6] In addition,
the authority of the COA to hold petitioner liable is also implied in its duty to
promulgate accounting and auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures, or uses of government funds and properties.
Furthermore, Section 340 of the Local Government Code (LGC) clearly provides:
SECTION 340. Persons Accountable for Local Government Funds. Any officer of the local
government unit whose duty permits or requires the possession or custody of local government
funds shall be accountable and responsible for the safekeeping thereof in conformity with the
provisions of this Title. Other local officers who, though not accountable by the nature of their
duties, may likewise be similarly held accountable and responsible for local government funds
through their participation in the use or application thereof.
Since, as earlier noted, payment should not be made to a contractor without the prior
inspection of the project by the Inspectorate Team, the members thereof who sign the
certificate of inspection participate in the use and application of local government
funds (in this case, the Special Education Fund of the Province of Oriental Mindoro).
Thus, if there is an irregularity in the performance of this duty, they may be held liable
for any loss that is incurred by the government as a consequence thereof. In this
case, there was such irregularity when petitioner and other members of the Team
attested to the 100% completion of the projects notwithstanding their undisputed
deficiencies.
C. Administrative Proceedings
CASIMIRO VS. TANDOG
FACTS: Petitioner Haydee Casimiro was appointed as Municipal Assessor in the
Office of the Treasurer of San Jose, Romblon. Subsequently, the Administrative
Officer found two alleged irregularities which led to the 30 day preventive suspension
of the petitioner:
1. The cancellation of complainant Teodulo Matillanos tax declaration and the
issuance of a new one in favor of petitioners brother Ulysses Cawaling; and
2. The cancellation of the tax declaration in the name of complainant Noraida San
Sebastian Cesars parent in favor of petitioners brother-in-law, Marcelo Molina.
PETITIONER: the cancellation of the tax declaration in favor of her brother Ulysses
Cawaling was done prior to her assumption to office as municipal assessor, and that
she issued new tax declarations in favor of her brother-in-law Marcelo Molina by
virtue of a deed of sale executed by Antipas San Sebastian in Molinas favor.
RESPONDENT: Noraida San Sebastian Cesar[7] alleged that Tax Declarations No.
0380 and No. 0376 covering parcels of land owned by her parents were transferred in
the name of a certain Marcelo Molina, petitioners brother-in-law, without the
necessary documents. Noraida Cesar further claimed that Marcelo Molina had not yet
paid the full purchase price of the land covered by the said Tax Declarations. For his
part, Teodulo Matillano claimed[8] that he never executed a deed of absolute sale
over the parcel of land covered by Tax Declaration No. 0236 in favor of Ulysses
Cawaling, petitioners brother. Upon investigation of the fact-finding committee,
Casmiro was found guilty of Dishonesty and Malperformance of duty as Municipal
Assessor of San Jose, Romblon, and is ordered separation from service.
ISSUE: whether or not petitioner was afforded procedural and substantive due
process when she was terminated from her employment as Municipal Assessor of
San Jose, Romblon YES.
RATIO: The essence of procedural due process is embodied in the basic requirement
of notice and a real opportunity to be heard.[18] In administrative proceedings,
procedural due process simply means the opportunity to explain ones side or the
opportunity to seek a reconsideration of the action or ruling complained of.[19] To be
heard does not mean only verbal arguments in court; one may be heard also thru
pleadings. Where opportunity to be heard, either through oral arguments or pleadings,
is accorded, there is no denial of procedural due process.
In administrative proceedings, procedural due process has been recognized to
include the following:
(1) the right to actual or constructive notice of the institution of proceedings which may
affect a respondents legal rights;
(2) a real opportunity to be heard personally or with the assistance of counsel, to
present witnesses and evidence in ones favor, and to defend ones rights;
(3) a tribunal vested with competent jurisdiction and so constituted as to afford a
person charged administratively a reasonable guarantee of honesty as well as
impartiality; and
(4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the
parties affected.
In the case at bar, petitioner attended the hearing where she answered questions
propounded by the members of the fact-finding committee. Records further show that
the petitioner was accorded every opportunity to present her side. She filed her
answer to the formal charge against her. After a careful evaluation of evidence
adduced, the committee rendered a decision, which was affirmed by the CSC and the
Court of Appeals, upon a move to review the same by the petitioner. Indeed, she has
even brought the matter to this Court for final adjudication.
Kinship alone does not establish bias and partiality. Bias and partiality cannot be
presumed. In administrative proceedings, no less than substantial proof is
required.[23] Mere allegation is not equivalent to proof.[24] Mere suspicion of partiality
is not enough. There should be hard evidence to prove it, as well as manifest showing
of bias and partiality stemming from an extrajudicial source or some other basis.[25]
Thus, in the case at bar, there must be convincing proof to show that the members of
the fact-finding committee unjustifiably leaned in favor of one party over the other. In
addition to palpable error that may be inferred from the decision itself, extrinsic
evidence is required to establish bias. The petitioner miserably failed to substantiate
her allegations. In effect, the presumption of regularity in the performance of duty
prevails. Neither are we persuaded by petitioners argument that the affidavit is
hearsay because the complainants were never presented for cross examination. In
administrative proceedings, technical rules of procedure and evidence are not strictly
applied; administrative due process cannot be fully equated to due process in its strict
judicial sense.
Nothing on record shows that she asked for cross examination. In our view, petitioner
cannot argue that she has been deprived of due process merely because no cross
examination took place. Again, it is well to note that due process is satisfied when the
parties are afforded fair and reasonable opportunity to explain their side of the
controversy or given opportunity to move for a reconsideration of the action or ruling
complained of. In the present case, the record clearly shows that petitioner not only
filed her letter-answer, she also filed a motion for reconsideration of the
recommendation of the committee dated 22 November 1996. The essence of due
process in the administrative proceedings is an opportunity to explain one side or an
opportunity to seek reconsideration of the action or ruling complained of.
The Court finds far little basis to petitioners protestations that she was deprived of due
process of law and that the investigation conducted was far from impartial and fair. As
to the substantive due process, it is obvious to us that what petitioner means is that
the assailed decision was not supported by competent and credible evidence.
D. Penalties
PABLICO VS. VILLAPANDO
FACTS: Solomon B. Maagad, and Renato M. Fernandez, both members of the
Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang
Panlalawigan of Palawan an administrative complaint against respondent Alejandro
A. Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and
culpable violation of the Constitution. Complainants alleged that respondent, on
behalf of the municipality, entered into a consultancy agreement with Orlando M.
Tiape, a defeated mayoralty candidate in the May 1998 elections. They argue that the
consultancy agreement amounted to an appointment to a government position within
the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution.
Respondent countered that he did not appoint Tiape, rather, he merely hired him.
The Sangguniang Panlalawigan (SP) of Palawan found respondent guilty of the
administrative charge and imposed on him the penalty of dismissal from service.[4]
Upon appeal to the Office of the President(OP), OP affirmed the decision of the SP of
Palawan.
Petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath
of office as Municipal Mayor. Consequently, respondent filed with the RTC of Palawan
a petition for certiorari and prohibition with preliminary injunction and prayer for a
temporary restraining order, seeking to annul, the oath administered to petitioner.
RTC: granted a Temporary Restraining Order effective for 72 hours, as a result of
which petitioner ceased from discharging the functions of mayor. Meanwhile, the case
was raffled to Branch 95 which denied respondents motion for extension of the 72-
hour temporary restraining order.[7] Hence, petitioner resumed his assumption of the
functions of Mayor of San Vicente, Palawan.
CA: declared void the assailed decisions of the Office of the President and the
Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of
Mayor of San Vicente, Palawan.
The Local Government Code of 1991 provides:
Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
An elective local official may be removed from office on the grounds enumerated above
by order of the proper court.
It is clear from the last paragraph of the aforecited provision that the penalty of
dismissal from service upon an erring elective local official may be decreed only by a
court of law. Thus, in Salalima, et al. v. Guingona, et al.,[11] we held that [t]he Office
of the President is without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in the last paragraph
of the aforequoted Section 60.
Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government
Code, however, adds that (b) An elective local official may be removed from office on the
grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60,
Local Government Code of 1991] by order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the other. The disciplining authority
referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the
President.
As held in Salalima, this grant to the disciplining authority of the power to remove
elective local officials is clearly beyond the authority of the Oversight Committee that
prepared the Rules and Regulations. No rule or regulation may alter, amend, or
contravene a provision of law, such as the Local Government Code. Implementing
rules should conform, not clash, with the law that they implement, for a regulation
which operates to create a rule out of harmony with the statute is a nullity.
The power to remove erring elective local officials from service is lodged exclusively
with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations
Implementing the Local Government Code, insofar as it vests power on the
disciplining authority to remove from office erring elective local officials, is void for
being repugnant to the last paragraph of Section 60 of the Local Government Code of
1991. The law on suspension or removal of elective public officials must be strictly
construed and applied, and the authority in whom such power of suspension or
removal is vested must exercise it with utmost good faith, for what is involved is not
just an ordinary public official but one chosen by the people through the exercise of
their constitutional right of suffrage. Their will must not be put to naught by the caprice
or partisanship of the disciplining authority. Where the disciplining authority is given
only the power to suspend and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to remove. As explained by the Court in
Lacson v. Roque:
The abridgment of the power to remove or suspend an elective mayor is not without its own
justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from
a restricted authority to suspend or remove must have been weighed against the injustices and
harms to the public interests which would be likely to emerge from an unrestrained discretionary
power to suspend and remove.
REYES VS. COMELEC
FACTS: Dr. Manalo filed with the Sangguniang Panlalawigan an administrative
complaint against incumbent Mayor Reyes of Bongabong, Oriental Mindoro. It was
alleged that Reyes exacted and collected P50,000,00 from each market stall holder in
the Bongabong Public Market. Also, that certain checks issued to him by the National
Reconciliation and Development Program of the DILG were never received by the
Municipal Treasurer nor reflected in the books of accounts of the same officer; and
that he took 27 heads of cattle from beneficiaries of a cattle dispersal program. The
Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his
removal from office.
Reyes filed a petition for certiorari, prohibition and injunction with the RTC of Oriental
Mindoro. Later, the Presiding Officer of the Sangguniang Panlalawigan issued an
order for Reyes to vacate the position of mayor and to turn over the office to the
incumbent vice mayor but he refused to accept the service of the order. Thereafter,
Reyes filed a certificate of candidacy with the Comelec but a petition for
disqualification was filed against him. Thus, the Comelec canceled Reyess certificate
of candidacy. However, the Municipal Board of Canvassers of Bongabong unaware of
the disqualification of Reyes by the Comelec, proclaimed him the duly-elected mayor.
The COMELEC en banc declared him to have been validly disqualified
as candidateand, consequently, set aside his proclamation as municipal
mayor. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995,
alleging grave abuse of discretion by the COMELEC on the ground that the decision
in the administrative case against petitioner Reyes was not yet final and executory
and therefore could not be used as basis for his disqualification. Invoking the ruling in
the case of Aguinaldo v. Santos, petitioner argues that his election on May 8, 1995 is
a bar to his disqualification. Garcia, who obtained the highest number of votes next to
Reyes, intervened, contending that because Reyes was disqualified, he was entitled
to be proclaimed mayor. The Comelec en banc denied Garcias prayer.
ISSUES:
1. WON the decision of the Sangguniang Panlalawigan is not yet final because he
has not been served a copy thereof.
2. WON petitioners reelection rendered the administrative charges against him moot
and academic
3. WON the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified.
HELD: 1. No. The failure of the Sangguniang Panlalawigan to deliver a copy of its
decision was due to the refusal of petitioner and his counsel to receive the decision.
Repeated attempts had been made to serve the decision on Reyes personally and
by registered mail, but Reyes refused to receive the decision. If a judgment or
decision is not delivered to a party for reasons attributable to him, service is deemed
completed and the judgment or decision will be considered validly served as long as it
can be shown that the attempt to deliver it to him would be valid were it not for his or
his counsel's refusal to receive it. Reyess refusal to receive the decision may,
therefore, be construed as a waiver on his part to have a copy of the decision.
Petitioner was given sufficient notice of the decision. Rather than resist the service,
he should have received the decision and taken an appeal to the Office of the
President in accordance with R.A. No. 7160 Section 67. But petitioner did not do so.
Accordingly, the decision became final 30 days after the first service upon petitioner.
Thus, when the elections were held the decision of the Sangguniang Panlalawigan
had already become final and executory. The filing of a petition for certiorari with the
RTC did not prevent the administrative decision from attaining finality. An original
action of certiorari is an independent action and does not interrupt the course of the
principal action nor the running of the reglementary period involved in the
proceeding.
Consequently, to arrest the course of the principal action during the pendency of the
certiorari proceedings, there must be a restraining order or a writ of preliminary
injunction from the appellate court directed to the lower court. In the case at bar,
although a temporary restraining order was issued by the Regional Trial Court, no
preliminary injunction was subsequently issued. The temporary restraining
order issued expired after 20 days. From that moment on, there was no more legal
barrier to the service of the decision upon petitioner.
2. No. Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held
that a public official could not be removed for misconduct committed during a prior
term and that his reelection operated as a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him therefor. But that was
because in that case, before the petition questioning the validity of the administrative
decision removing petitioner could be decided, the term of office during which the
alleged misconduct was committed expired. Removal cannot extend beyond the term
during which the alleged misconduct was committed. If a public official is not
removed before his term of office expires, he can no longer be removed if he is
thereafter reelected for another term. This is the rationale for the ruling in the two
Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, although petitioner Reyes
brought an action to question the decision in the administrative case, the temporary
restraining order issued in the action he brought lapsed, with the result that the
decision was served on petitioner and it thereafter became final on April 3, 1995,
because petitioner failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40 (b) of the Local Government Code, he
was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there
was no provision similar to 40 (b) which disqualifies any person from running for any
elective position on the ground that he has been removed as a result of an
administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not
be given retroactive effect.
CA: dismissed petition. AFFIRM OMBUDSMAN
ISSUE: WON the preventive suspension should be credited for his penalty
HELD: NO. Preventive suspension is not a penalty. Not being a penalty, the period
within which one is under preventive suspension is not considered part of the actual
penalty of suspension.
-this is EXPRESSLY PROVIDED UNDER SEC25, RULE XIV:
SEC. 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of
suspension imposed upon the employee found guilty.
NATURE OF PREVENTIVE SUSPENSION: merely a preventive measure, a
preliminary step in an administrative investigation

Indeed, it appears that petitioner was given sufficient opportunity to file his -purpose: prevent accused from using his position and the powers and prerogatives of
answer. He failed to do so. Nonetheless, he was told that the complainant would be his office to influence potential witnesses or tamper w/ records w/c may be vital in the
presenting his evidence and that he (petitioner) would then have the opportunity to prosecution of the case against him
cross-examine the witnesses. But on the date set, he failed to appear. He would say -not a penalty: RULE XIV, Section 21, OMNIBUS RULES IMPLEMENTING BOOK V
later that this was because he had filed a motion for postponement and was awaiting OF THE ADMIN CODE
a ruling thereon. This only betrays the pattern of delay he employed to render the
case against him moot by his election. ON NON-APPLICATION OF GLORIA: It involves 2 kinds of preventive suspension
which is relevant in determining
QUIMBO VS GERVACIO > The entitlement of the employee to compensation during the period of suspension
FACTS: Quimbo, the Provincial Engineer of Samar, was administratively charged for > The crediting of preventive suspension to the final penalty of suspension
HARASSMENT AND OPPRESSION by Padoan, a general foreman who was detailed
to the Motor Pool Division, Provincial Engineering by then Prov. Gov. Quimbo was
placed under preventive suspension w/o pay to commence upon receipt of the order PENDING INVESTIGATION PENDING APPEAL
and until such time that it is lifted but in no case beyond 6 months. He began serving
it on March 18, 1998 but it was lifted April 27, 1998 after presenting 2 witnesses on (Section 51 of the Civil Service Law [Book if the penalty imposed by the
direct examination. V, Title I, Subtitle A of the Administrative disciplining authority is suspension or
Code of 1987]) dismissal and, after review, the
OFFICE OF DEPUTY OMBUDSMAN: GUILTY of OPPRESSION, suspended from respondent is exonerated (Section
office for 8 months without pay. Approved by Ombudsman. MR DENIED. Elevated to 47(4) of The Civil Service Law)
CA
Not a penalty but only a means of enabling A penalty, BUT:
CA: GUILTY OF SIMPLE MISCONDUCT, suspension of 2 months w/o pay. the disciplining authority to conduct an *if subsequently exonerated:
unhampered investigation considered under preventive
CA decision became final so Ombudsman ordered Provincial Governor its suspension, should be reinstated w/
implementation. Quimbo filed MR/Motion for modification of said order, calling to full pay for period of suspension
attention the fact that he was on preventive suspension from March 18 to June 1, *if conviction affirmed: period of
1998 (so in effect, he wanted his 2 months 17 days suspension previously served to suspension becomes part of final
be credited for his penalty, thus he wont serve it anymore) Provincial Governor penalty of suspension (so credited)
sought clarification w/Ombudsman. Ombudsman clarified that since preventive
suspension is not a penalty, but a preliminary step in the investigation. If investigated -as QUIMBOs suspension is pending investigation, IT CANNOT BE CREDITED TO
then found guilty, imposition of penalty warranted. Quimbo appealed to CA. FORM PART OF THE FINAL PENALTY OF SUSPENSION
NON-APPLICATION OF CREDITING IN CRIMINAL LAW: Not only are they distinct in
the objective or purpose, or in their nature as preventive imprisonment involves
restriction of personal liberties which is not the case with preventive suspension; the
respective laws covering them are explicit.
NONAPPLICATION OF EQUITY: law expressly provides that rules on crediting of
preventive suspension to final penalty of suspension is not allowed. PETITION
DENIED.
JOSON VS. CA
FACTS: On 8 January 2003, eight members of the Sangguniang Bayan of Aliaga,
Nueva Ecija (SB Members), filed with the Sangguniang Panlalawigan an
administrative complaint against the incumbent Municipal Mayor of Aliaga, Elizabeth
R. Vargas (Mayor Vargas), for dishonesty, misconduct in office, and abuse of
authority. The SB Members alleged that Mayor Vargas submitted to the Provincial
Budget Officer two falsified documents. Mayor Vargas filed a complaint for annulment
of falsified minutes of session and appropriation ordinance with damages against the
SB members before the Regional Trial Court of Cabanatuan City.
Mayor Vargas filed before the Sangguniang Panlalawigan a motion to suspend
proceedings and/or motion to dismiss due to the pendency of a prejudicial question in
Civil Case No. 4442, specifically questioning the genuineness of the documents she
allegedly falsified. Without resolving the motion, the Sangguniang Panlalawigan
passed Resolution No. 80-S-2003, recommending to Governor Joson the preventive
suspension of Mayor Vargas for 60 days. On 17 March 2003, the Sangguniang
Panlalawigan issued Resolution No. 105-S-2003, denying Mayor Vargas motion to
suspend proceedings and/or motion to dismiss. Mayor Vargas appealed to the Office
of the President praying for the reversal of Resolution of the Sangguniang
Panlalawigan. Governor Joson issued an order of preventive suspension against
Mayor Vargas. Mayor Vargas filed before the Office of the President a very urgent
petition to set aside the suspension order.
Office of the President: Motion granted. Suspension order LIFTED.
Joson filed an MR. Office of the President granted the motion. Mayor Vargas placed
under preventive suspension for 60 days. On 17 July 2003, Mayor Vargas moved for
reconsideration of the Resolution dated 8 July 2003. On 18 July 2003, Mayor Vargas
filed before the Office of the President an urgent motion to resolve O.P. Case No. 03-
D-164. On 23 July 2003, Mayor Vargas filed before the Court of Appeals a petition for
Certiorari, Prohibition and Mandamus, with Urgent Prayer for Preliminary Injunction or
Temporary Restraining Order, docketed as CA-G.R. SP No. 78247.
CA: Issued TRO. respondents Provincial Governor and the SANGGUNIANG
PANLALAWIGAN of the Province of Nueva Ecijaare hereby commanded to cease
and desist from conducting proceedings in ADMINISTRATIVE CASE No. 02-S-2003,
and from enforcing the assailed July 8, 2003 Resolution of the Office of the President,
through the Executive Secretary, which directed the reinstatement of the order for
petitioners preventive suspension. Furthermore, in view of the serious issues
involved, let the hearing and consideration of the propriety of the issuance of a
preliminary injunction be scheduled.
ISSUE: Whether or not the Court of Appeals acted with manifest partiality, arbitrarily,
and in grave abuse of discretion in issuing the questioned order because the
preventive suspension order was legally and validly issued.
HELD: The petition is without merit. Under Section 63 of the Local Government Code,
preventive suspension may be imposed (a) after the issues are joined; (b) when the
evidence of guilt is strong; and (c) given the gravity of the offense, there is great
probability that the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and other
evidence. Issues are considered joined when the complaint has been answered and
there are no longer any substantial preliminary issues that remain to be threshed out.
The Office of the President stated that the facts of the case do not warrant a
conclusion that issues are deemed joined. Furthermore, the Office of the President
found no basis for the issuance of the preventive suspension. The Office of the
President explained:
In the administrative case, it appears that petitioner did not file, so far, an answer to
the complaint thus the issues could not have been considered joined. What she did
was to file a Motion To Suspend Proceedings And/Or Motion To Dismiss which was
treated by the sanggunian as her answer. However, nothing in the records can be
inferred that the petitioner intended the said motion to be her answer. In fact, when
the motion was denied on March 17, 2003 through SP Resolution No. 105-s-2003,
she immediately appealed the said Resolution to this Office.
In fine, no inference can be had that the motion filed was considered her answer
otherwise, petitioner could have stated so therein.
Finally, even assuming that petitioners motion was already her answer and therefore,
the issues have been joined, it is observed that the grounds cited by the sanggunian
in recommending the assailed preventive suspension are general statements mere
verbatim reproduction of the provision of law, unsupported by any factual and
substantial evidence. There is no showing that the evidence of guilt is strong, with
both parties charging each other with falsification of documents. In fact, that is the
subject of Civil Case No. 4442. Moreover, it cannot be said that the continuance in
office of respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence. The recitals in SP Resolution No. 105 s.
2003 are unconvincing.
It would thus appear that the grounds cited by the SP for recommending the
preventive suspension of Mayor Vargas were just general statements unsupported by
any evidence. This is contrary to the requisites for a preventive suspension which
require that evidence of guilt must be strong and that given the gravity of the offense,
there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. The haste in issuing the resolution recommending the preventive
suspension of Mayor Vargas is unreasonable considering the gravity of the effects of
such suspension. Suspension from office of an elective official would deprive the
electorate of the services of the person they have voted into office.
In this case, Mayor Vargas moved for a 15-day extension to file an answer. Before the
lapse of the period of extension, Mayor Vargas filed before the Cabanatuan RTC a
civil case for annulment of Appropriation Ordinance No. 1 and the Minutes of the
Session of 7 February 2002 which were the bases of the administrative charge
against her. Four days after the lapse of the period of extension, Mayor Vargas filed a
Motion to Suspend Proceedings and/or Motion to Dismiss due to prejudicial question.
Without resolving Mayor Vargas motion, the Sangguniang Panlalawigan issued a
resolution recommending the preventive suspension of Mayor Vargas for a period of
60 days. There was no unreasonable delay employed by Mayor Vargas in filing an
answer. Instead of an answer, Mayor Vargas filed a Motion to Suspend Proceedings
and/or Motion to Dismiss because of a civil case which she had earlier filed seeking
the annulment of the appropriation ordinance and the minutes of session.
CARABEO V. CA
FACTS: On 8 July 2005, the Department of Finance-Revenue Integrity Protection
Service (DOF-RIPS), composed of private respondents Troy Francis Pizarro, Joel
Apolonio, Reynalito L. Lazaro, Ismael Leonor, and Melchor Piol, filed a complaint with
the Office of the Ombudsman against Carabeo, Officer-in-Charge (OIC) of the Office
of the Treasurer of Paraaque City. The complaint pertinently alleged:
- Carabeo was a Revenue Collection Clerk with an annual gross salary of PhP8,4k;
currently holds the position of City Treasurer II with an annual gross salary of
PhP291k
- Carabeos net worth based on his Statements of Assets and Liabilities and Net
Worth (SALN) from the time he commenced employment at the Paraaque
Treasurers Office in 1981 has ballooned from PhP114k to approx. PhP7.5M in
2004
- Drastic increase of his net worth and steady accumulation of various expensive
properties by Carabeo and his spouse ranging from real properties to vehicles to
club share ownership
- Carabeos failure to disclose his and his spouses ownership of the foregoing
Tagaytay property and vehicles in the pertinent SALNs amounts to a violation of
Section 7 of RA 3019 and Section 8(A) of RA 6713 requiring him to file under oath
the true and detailed statement of his assets as well as those of his spouse
- Carabeos investments as declared in his SALNs could not possibly justify the
foregoing substantial purchases
- That Carabeos wifes business undertakings should explain their acquired wealth
cannot be given credence as wife Cynthia had no tax payments reflected on BIRs
records
- In addition to Carabeos purchases, Carabeo went abroad at least 15 times once a
year
The DOF-RIPS prayed that the Office of the Ombudsman issue an order: (a) filing the
appropriate criminal informations against Carabeo for violation of Republic Act (RA)
Nos. 3019, 6713, and 1379 and the Revised Penal Code; (b) instituting the
appropriate administrative cases against Carabeo for the same violations, for
dishonesty and grave misconduct; (c) commencing forfeiture proceedings against
Carabeos unlawfully acquired properties including those illegally obtained in the
names of his spouse, children, relatives and agents; and (d) placing Carabeo under
preventive suspension pursuant to Section 24 of RA 6770.
OMB: Carabeo was placed under preventive suspension for a maximum of 6 months
without pay and was directed to file his counter-affidavit; aggrieved, Carabeo filed a
petition for certiorari with the CA against the OMB alleging that grave abuse of
discretion amounting to lack or excess of jurisdiction attended the approval of his
preventive suspension
CA: issued a 60-day TRO enjoining the enforcement of Carabeos preventive
suspension; Carabeos MR was denied
ISSUE/S: WON the CA committed grave abuse of discretion amounting to lack or
excess of jurisdiction in sustaining the preventive suspension imposed by the
Ombudsman on Carabeo? NO
RULING: Petition DISMISSED. The Preventive Suspension order was legal.
Carabeo contends that there must be prior notice and hearing before the
Ombudsman may issue a preventive suspension order.
The contention is bereft of merit. Settled is the rule that prior notice and hearing are
not required in the issuance of a preventive suspension order, such suspension not
being a penalty but only a preliminary step in an administrative investigation.
Suspension is a preliminary step in an administrative investigation. If after such
investigation, the charges are established and the person investigated is found guilty
of acts warranting his removal, then he is removed or dismissed. This is the penalty.
There is therefore, nothing improper in suspending an officer pending his investigation
and before the charges against him are heard and be given an opportunity to prove
his innocence.
Moreover, there is nothing in the law, specifically Section 24 of RA 6770, or The
Ombudsman Act of 1989, which requires that notice and hearing precede the
preventive suspension of an erring public official. While a preventive suspension order
may originate from a complaint, the Ombudsman is not required to furnish the
respondent with a copy of the complaint prior to ordering a preventive suspension.
Under Section 24 of RA 6770, two requisites must concur to render the preventive
suspension order valid. First, there must be a prior determination by the Ombudsman
that the evidence of respondents guilt is strong. Second, (a) the offense charged
must involve dishonesty, oppression, grave misconduct or neglect in the performance
of duty; (b) the charges would warrant removal from the service; or (c) the
respondents continued stay in office may prejudice the case filed against him. These
requisites are present in the case at bar.
MIRANDA V. SANDIGANBAYAN
FACTS: The OMB placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor
of Santiago City, Isabela, under preventive suspension for six months from 25 July
1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials and
Employees. Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro)
filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December
1997. In the said complaint, Vice Mayor Navarro alleged that Mayor Miranda
committed the following acts on 24 November 1997 despite the continuing effectivity
of the Ombudsmans preventive suspension order: (a) issued a memorandum
addressed to Navarro advising her that he was assuming his position as City Mayor;
(b) gave directives to the heads of offices and other employees; (c) issued Office
Order No. 11-021 which authorized certain persons to start work; and (d) insisted on
performing the functions and duties of Mayor despite Navarrros requests to desist
from doing so without a valid court order and in spite of the order of Department of
Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him
to cease from reassuming the position. Vice Mayor Navarro contended that Mayor
Miranda committed the felony of usurpation of authority or official functions under
Article 177 of the Revised Penal Code (RPC).
Mayor Miranda contended that under Section 63(b) of the Local Government Code,
local elective officials could not be preventively suspended for a period beyond 60
days. He also averred that, on the day he reassumed office, he received a
memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate
his office and he immediately complied with the same. Notably, Mayor Mirandas
counter-affidavit also stated that he left the mayoralty post after coercion by the
Philippine National Police.
The OMB filed with the SB an information against Mayor Miranda for violation of Art.
177 of the RPC, penalizing usurpation of authority. SBs Special Prosecution Officer
Coquia conducted a reinvestigation of the case and held that Miranda reassumed his
office in good faith and on mistake of fact due to the difficult questions of law local elective officials shall not extend beyond sixty (60) days x x x
involved.
Then OMB Desierto referred Coquias resolution to the Chief Legal Counsel for
review to which it disagreed with Coquias findings and recommended the filing of the
case against Mayor Miranda. He pointed out that Mayor Mirandas invocation of good
faith was belied by the fact that he received a memorandum from the DILG informing
him that his view of the preventive suspension period was untenable and that he
should serve out its remaining period.
On 28 November 2001, the prosecution filed before the SB a motion to suspend
Mayor Miranda pendente lite based on Sec. 13 of RA 3019 (The Anti-Graft and
Corrupt Practices Act). Miranda opposed the motion on the ground that the offense of
usurpation of authority or official functions under Article 177 of the RPC is not
embraced by Section 13 of R.A. No. 3019 which only contemplates offenses
enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve fraud
upon government or public funds or property.
SB: issued a resolution for Mayor Mirandas preventive suspension from office for 90
days; Mirandas MR was denied
ISSUE/S: WON SB gravely abused its discretion when it preventively suspended
Mayor Miranda for 90 days? NO
RULING: The Court ruled in the negative. Petition DISMISSED, there being no
showing that the Sandiganbayan gravely abused its discretion in issuing its
Resolution of preventively suspending the petitioner for 90 days.
In Garcia v. Mojica, the respondents argue that administrative complaints commenced
under the Ombudsman Law are distinct from those initiated under the Local
Government Code. Respondents point out that the shorter period of suspension
under the Local Government Code is intended to limit the period of suspension that
may be imposed by a mayor, a governor, or the President, who may be motivated by
partisan political considerations. In contrast the Ombudsman, who can impose a
longer period of preventive suspension, is not likely to be similarly motivated because
it is a constitutional body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive
suspension.
Nowhere in Garcia is it stated that the limits provided in the Local Government Code
apply to the Ombudsman. In fact, the Court expressly stated that its decision was
rendered without subscribing to the petitioners claim that the Local Government Code
had been violated.
In Rios v. Sandiganbayan, Rios cited Sec. 63 of the LGC as its legal basis which
provides:
Section 63. Preventive Suspension x x x Provided, That, any single preventive suspension of
It is plain that the provision was only meant as a cap on the discretionary power of the
President, governor and mayor to impose excessively long preventive suspensions.
The Ombudsman is not mentioned in the said provision and was not meant to be
governed thereby. Indeed, the reason is not hard to distill. The President, governor
and mayor are political personages. As such, the possibility of extraneous factors
influencing their decision to impose preventive suspensions is not remote. The
Ombudsman, on the other hand, is not subject to political pressure given the
independence of the office which is protected by no less than the Constitution.
In order to justify the the preventive suspension of a public official under Section 24 of
R.A. No. 6770 (Ombudsman Act), the evidence of guilt should be strong, and (a) the
charge against the officer or employee should involve dishonestly, oppression or
grave misconduct or neglect in the performance of duty; (b) that the charges should
warrant removal from the service; or (c) the respondents continued stay in office
would prejudice the case filed against him. The Ombudsman can impose the 6-month
preventive suspension to all public officials, whether elective or appointive, who are
under investigation. Upon the other hand, in imposing the shorter period of sixty (60)
days of preventive suspension prescribed in the Local Government Code of 1991 on
an elective local official (at any time after the issues are joined), it would be enough
that (a) there is reasonable ground to believe that the respondent has committed the
act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the
offense so warrants, or (d) the continuance in office of the respondent could influence
the witnesses or pose a threat to the safety and integrity of the records and other
evidence.
Verily, Section 63 of the Local Government Code does not govern preventive
suspensions imposed by the Ombudsman, which is a constitutionally created office
and independent from the Executive branch of government. The Ombudsmans power
of preventive suspension is governed by Republic Act No. 6770, otherwise known as
The Ombudsman Act of 1989.
The 6-month period of preventive suspension imposed by the Ombudsman was
indubitably within the limit provided by its enabling law. This enabling law has not
been modified by the legislature.
2. EFFECT OF RE-ELECTION
MORALES V. CA
FACTS: On July 22, 2014, a complaint/affidavit was filed by Atty. Bondal and Nicolas
Enciso VI before the OMB against Binay Jr. and other public officers and employees
of the City Government of Makati, accusing them of Plunder and violation of The Anti-
Graft and Corrupt Practices Act in connection with the (5) phases of the procurement
and construction of the Makati City Hall Parking Building. On September 2014, the
OMB constituted a Special Panel of Investigators to conduct a fact-finding
investigation, submit an investigation report, and file the necessary complaint, if
warranted (1st Special Panel). Pursuant to the OMBs directive, the 1st Panel filed a
complaint against Binay Jr. et al charging them with (6) admin. cases for Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the
Service, and six (6) criminal case for violation of Section 3(e) of RA 3019,
Malversation of Public Funds, and Falsification of Public Documents (OMB Cases).
As to Binay Jr. the OMB Complaint alleged that he was involved in anomalous
activities attending the following procurement and construction phases of the Makati
Parking Building project, committed during his previous and present terms as City
Mayor of Makati:
1st Term (2010-2013):
- Binay Jr. issued the Notice of Award for Phase III of the Makati Parking Building
project to Hilmarcs Construction Corp. (Hilmarcs) and executed a corresponding
contract without the required publication and the lack of architectural design, and
approved the release of funds
- Phase IV was similarly awarded to Hilmarcs with contract without the required
publication and the lack of architectural design, and approved the release of funds
And same for Phase V
2nd Term (2013-2016):
- Binay Jr. approved the release of funds for the remaining balance for the Phase V
project to Hilmarcs and Binay Jr. approved the release of funds for the remaining
balance of the contract with MANA Architecture & Interior Design Co. (MANA)
On March 2015, the OMB created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd
Special Panel). Thereafter, issued separate orders for each of the OMB Cases. The
OMB, upon the recommendation of the 2nd Special Panel, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more
than six (6) months without pay, during the pendency of the OMB Cases. The OMB
ruled that the requisites for the preventive suspension of a public officer are present,
finding that: (a) the evidence of Binay, Jr., et als guilt was strong given that (1) the
losing bidders and members of the Bids and Awards Committee of Makati City had
attested to the irregularities attending the Makati Parking Building project; (2) the
documents on record negated the publication of bids; and (3) the disbursement
vouchers, checks, and official receipts showed the release of funds; and (b) (1) Binay,
Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty,
and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven
to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS); and (3) Binay, Jr., et als
respective positions give them access to public records and allow them to influence
possible witnesses; hence, their continued stay in office may prejudice the
investigation relative to the OMB Cases filed against them. Consequently, the
Ombudsman directed the Department of the Interior and Local Government (DILG),
through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement
the preventive suspension order against Binay, Jr., et al., upon receipt of the same.
Binay Jr. filed a petition for certiorari before the CA seeking the nullification of the
preventive suspension order, and praying for the issuance of a TRO and/or WPI to
enjoin its implementation. Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5) phases
of the Makati Parking Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired
during his first term and that his reelection as City Mayor of Makati for a second term
effectively condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic. In any event, Binay, Jr. claimed
that the Ombudsmans preventive suspension order failed to show that the evidence
of guilt presented against him is strong, maintaining that he did not participate in any
of the purported irregularities. In support of his prayer for injunctive relief, Binay, Jr.
argued that he has a clear and unmistakable right to hold public office, having won by
landslide vote in the 2010 and 2013 elections, and that, in view of the condonation
doctrine, as well as the lack of evidence to sustain the charges against him, his
suspension from office would undeservedly deprive the electorate of the services of
the person they have conscientiously chosen and voted into office.
Binay Jr. filed a petition for certiorari seeking the nullification of the preventive
suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its
implementation.
CA
- granted Binay Jr.s TRO but OMB manifested that the TRO did not state what act
was being restrained and that since the preventive suspension order had already
been served and implemented, there was no longer any act to restrain; Binary Jr
filed with CA a petition for contempts against Sec. Roxas et al of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the
administration of justice
- consolidated Binay Jrs petitions
Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
Ombudsman filed the present petition before this Court, assailing the CAs March 16,
2015 Resolution, which granted Binay, Jr.s prayer for TRO.
Binay Jr. posits that it was incumbent upon the Ombudsman to have been apprised of
the condonation doctrine as this would have weighed heavily in determining whether
there was strong evidence to warrant the issuance of the preventive suspension
order. In this relation, Binay, Jr. maintains that the CA correctly enjoined the
implementation of the preventive suspension order given his clear and unmistakable
right to public office, and that it is clear that he could not be held administratively liable
for any of the charges against him since his subsequent reelection in 2013 operated
as a condonation of any administrative offenses he may have committed during his
previous term. CA granted Binay Jrs prayer for a WPI, which further enjoined the
implementation of the preventive suspension order. In so ruling, the CA found that
Binay, Jr. has an ostensible right to the final relief prayed for, namely, the nullification
of the preventive suspension order, in view of the condonation doctrine. Particularly, it
found that the Ombudsman can hardly impose preventive suspension against Binay,
Jr. given that his reelection in 2013 as City Mayor of Makati condoned any
administrative liability arising from anomalous activities relative to the Makati Parking
Building project from 2007 to 2013.
ISSUE/S: WON the condonation doctrine is irrelevant to the determination of whether
the evidence of guilt is strong for purposes of issuing preventive suspension orders?
YES
RULING: Partly meritorious. For local elective officials like Binay, Jr., the grounds to
discipline, suspend or remove an elective local official from office are stated in
Section 60 of Republic Act No. 7160, otherwise known as the Local Government
Code of 199 (LGC).
An elective local official may be removed from office on the grounds enumerated
above by order of the proper court.
Related to this provision is Section 40(b) of the LGC which states that those removed
from office as a result of an administrative case shall be disqualified from running for
any elective local position.In the same sense, Section 52(a) of the RRACCS provides
that the penalty of dismissal from service carries the accessory penalty of perpetual
disqualification from holding public office.
In contrast, Section 66(b) of the LGC states that the penalty of suspension shall not
exceed the unexpired term of the elective local official nor constitute a bar to his
candidacy for as long as he meets the qualifications required for the office. Note,
however, that the provision only pertains to the duration of the penalty and its effect
on the officials candidacy. Nothing therein states that the administrative liability
therefor is extinguished by the fact of reelection.
Reading the 1987 Constitution together with the above cited legal provisions now
leads this Court to the conclusion that the doctrine of condonation is actually bereft of
legal bases. Election is not a mode of condoning an administrative offense, and there
is simply no constitutional or statutory basis in our jurisdiction to support the notion
that an official elected for a different term is fully absolved of any administrative
liability arising from an offense done during a prior term. In this jurisdiction, liability
arising from administrative offenses may be condoned by the President in light of
Section 19, Article VII of the 1987 Constitution.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to
hold him administratively liable once he is reelected to office. In fact, Section 40(b) of
the LGC precludes condonation since in the first place, an elective local official who is
meted with the penalty of removal could not be reelected to an elective local position
due to a direct disqualification from running for such post.
In similar regard, Section 52(a) of the RRACCS imposes a penalty of perpetual
disqualification from holding public office as an accessory to the penalty of dismissal
from service.
At best, Section 66(b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local officials prior term, and
likewise allows said official to still run for reelection. This treatment is similar to People
ex rel. Bagshaw v. Thompson300 and Montgomery v. Nowell, both cited in Pascual,
wherein it was ruled that an officer cannot be suspended for a misconduct committed
during a prior term.
Relatedly, it should be clarified that there is no truth in Pascuals postulation that the
courts would be depriving the electorate of their right to elect their officers if
condonation were not to be sanctioned. In political law, election pertains to the
process by which a particular constituency chooses an individual to hold a public
office. In this jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that every
democratic and republican state has an inherent regime of condonation. In this case,
the Court agrees with the Ombudsman that since the time Pascual was decided
(wherein it was ruled that an officer cannot be suspended for a misconduct committed
during a prior term), the legal landscape has radically shifted. Again, Pascual was a
1959 case decided under the 1935 Constitution, which dated provisions do not reflect
the experience of the Filipino People under the 1973 and 1987 Constitutions.
Therefore, the plain difference in setting, including, of course, the sheer impact of the
condonation doctrine on public accountability, calls for Pascuals judicious
reexamination.