Agra’s Integration Lecture, Oct.

12, 2002 1
Law on Public Corporations

Hagedorn served for three terms then he ran for governor and lost. So the question is, can he
still run as mayor during the fourth term. Can he? Issue dun yung issue ng term right, can he? If
we were to apply Ronsalinda, because in the case of Ronsalinda, there are 2 requirements, right?
He must have served and elected for that position and he must have served the whole term. So
ang ginagamit ng argument ni Hagedorn is, assuming he would be elected, because he won in
2000, he did not actually serve the whole 3 years. At least that’s his argument. Lumalabas kasi
marami nang naging supreme Court cases medyo dinidilute yung basic objective of yung 3 term
limit, basically to prevent monopolization of power. Like now, there’s this pending case before the
SC, a municipality converted into a city, assuming the mayor served for 3 consecutive terms then
it was converted into a city, is he qualified to run as city mayor? Hopefully within the year
madedesisyunan na so lalabas sa bar. (biglang nag-smile dito si Carrie, bakit kaya?)

I will be giving out hand-outs, may matrix as to personal and corporate accountability as well as
doctrines of the cases on public accountability.

Five basic grounds for disciplinary actions against erring elective officials, one yung sec. 60
abuse of authority, you can break that down to administrative liability and criminal liability. If it is
administrative liability, then you go to the higher local government unit, the supervising LGU, or
the office of the President. If it’s for criminal liability, based on sec. 60, then you can go directly to
the ombudsman. In this particular case, the ombudsman has the authority to decide and effect
the penalty. Kasi di ba sa ordinarily , the ombudsman conduct preliminary investigation and files
information in the Sandiganbayan? Now with regard to local gov’t officials, the Ombudsman
decides, not merely conducts the prelim investigation. So sec. 60, dalawa: administrative and
criminal. Violation of the anti-graft and corrupt practices act, investigating authority is the
Ombudsman, the disciplining authority would be the Sandiganbayan. Viol of the code of conduct
of pub officers, also Ombudsman and Sandiganbayan. Commission of a crime under the RPC,
prelim investigation by the public prosecutor then you file it with the regular courts, election
offense, investigation by COMELEC through the law dept, then filing of necessary information
with the RTC. So there are 5 grounds. Let me summarize again. Sec 60, either criminal or
administrative, anti-graft and corrupt practices act, code of conduct and public officers, RPC and
election offense.

With regard to penalty, up to this point, there’s no doctrine which categorically provides that or
authorizes the higher local gov authority or OP to cause the removal of an erring local elective
official. There are two views. One bec of sec. 60, the 2 nd par, max penalty that the higher LGU or
OP that they can impose is administrative suspension. Second view, is that the pres or the higher
LGU can declare the removal of the erring local gov official. The cases of Salalima and Reyes,
do not categorically provide for the authority of the higher unit to remove from office. The case of
salalima, the SC said that we are not ready to say if Salalima was placed under constructive
dismissal. And what happened there was, nagkaroon ng series of penalties, ang nangyari, after
the term of salalima. So that was the effect, the policy was not clear. In the case of Reyes, it was
a technical or procedural matter in terms of Reyes was not able to file the necessary appeal with
the OP, sot he decision of the supervising local gov unit became final.

In terms of corporate liability, there are 5 causes of action. One, monetary claim, two injury or
torts, third contractucal obligations, fourth, provisions and fifth, statutory mandates and local
gov’ts. When do you say that a local gov official is liability and when do you say that the corp is
liability? The rule would be the municipality corp would be liability if it is an official act of the the
municipality corp, 2 in exercise of its statutory candidate (?) and there is sanction, approval or
acquiescence of the sanggunian. In those cases, the municipality corp as a corp would be held
liable. Local gov units are not immune from suit because of sec. 20 or 22, which says that LGU
have the right to sue and be sued. The question now is liability. Is the corp liability and or the
officials liable? For monetary claim, the remedy would be to claim for damages, specific
performance or seek redress from the higher supervising LGU. For injury or torts, we need to
distinguish bet gov’t and proprietary functions. According to Jack Jimenez, we don’t need to
distinguish and his basis is the terms of the drafting or the wording or the very text of the law. If
Agra’s Integration Lecture, Oct. 12, 2002 2
Law on Public Corporations

you were to compare the text of the 1983 code and the 1991 code, in the 83 code, there was a
distinction. Governmental not liable, proprietary liable. That distinction was removed in the 91
code. Hence, there is no need to distinguish, whether it is in exercise of governmental or
proprietary function. Therefore for injury or torts, pay for damages, specific performance and
redress. For contractual obligations, the same. Damages, specific performance and review. For
mandates not performed and not implemented by the local gov and therefore omissions, you can
question the constitutionality or even compel the LGU to fulfill its function via mandamus. For
exercise of statutory mandates, you can question it by legality, constitutionality or declaratory
relief, injunction or redress. I’m leaving a copy with the beadle.

Summary of judicial policies, let me just walk you through them, one is Joson v. Torres, there are
2 authorities. The disciplining authority and investigating authority. Two, case of J v T, the rights
of the elective local gov official who is subject to disciplinary case, is appeal to the constitutional
rights of man, third with regard to punong barangay he cannot terminate the services of the
barangay treasurer or the barangay secretary without the concurrence of the sanggunian. It is
very clear under sec. 389 of the local gov code. Local official who has been elected cannot be
charged administratively for misconduct which was committed during the previous term. Again,
the rule only applies to administrative cases. With regard to term of office, a person who served
for 2 consecutive terms for mayor and thereafter he lost in the succeeding election can run again
in the next election, or can run assuming on the third term, there was a recall election he can run,
because he has not served 3 terms. The case of Ronsalinda, there are 2 req’ts, he must be
elected to that position for three consecutive terms, and he must have served the full term.
Siguro there was an example then in the case of Ronsalinda or in the case of Borja, assuming
there was a local gov official who was suspended, will that be considered a term for reckoning the
term limit? The court said no, because he must have served the full term.

Vice governor acting as governor, can he still perform the functions of the vice governor, or the
power to preside over sanggunian sessions? No. Kasi he or she is acting as the chief executive.
The case of Navarro, let’s say the vice mayor is a mayor of the liberal Party. What happens if that
vice mayor dies? The senior councilor will become the vice mayor. Assuming the senior
councilor was a member of Lakas. And therefore when the governor fills the vacancy, assuming
that the replacement comes from LP, the party of the vice mayor, or the party of Lakas, being the
party of the senior councilor? According the case of Navarro, the replacement must come from
Lakas in order to maintain the … so yung definition of last vacancy.

With regard to appointment, there’s no prohibition as to midnight appointments when it comes to

local gov because the prohibition applies only to the President.

Recall. There are a lot of doctrines on recall, one, the case of Garcia v. COMELEC, there are two
rules: to initiate the process, resolution drafted by the Preparatory Recall Assembly (PRA) and the
petition signed by the registered voters. For the past 3 Congresses, there have been a lot of
proposals to remove the PRA. But up to this date, it remains to be the code because hindi
pumapasa. Loss of confidence as a ground for recall is a political question. Another PRA
resolution has been adopted and initiated against a Vice Mayor who before the Recall election
became the Mayor. The case of Afiada. Case of Malonzo, the PRA is distinct and separate from
the Liga ng mga Barangay. Barangay officials who participated in the recall did so not as
members of the Liga but members of the PRA. The case of Garcia, what happened there was
not all members of the PRA were notified. Kasi ang contention, those members are pro-
incumbent, so ang perception, you don’t have to notify them because you know for a fact that
they are pro-incumbent. That particular issue was an issue decided by the SC in the case of
Garcia v COMELEC, and the SC said no, you must notify all the members, using the modes of
service of pleadings, so either by personal service or registered mail.

Yung one year ban, so there’s a (1) one year after election, (2) one year from assumption of office
and (3) one year from election. Where you reckon the one year? You reckon the one year from
the date of the holding of the recall election, not the date of the ascending of the elective officer
Agra’s Integration Lecture, Oct. 12, 2002 3
Law on Public Corporations

and therefore can you hold a PRA let’s say on March 2002 for the recall of a mayor. Yes,
because although it is within the one year, it involves the PRA, not the recall.

Qualifications of local elective officials? Citizenship: naturalized or natural born, residency: one
year from the date of the election, being a registered voter, the local gov official must be of age,
and he or she must be literate. Term of local gov officials, under RA 9164, is three years.
Previously it was 5 years.

Complaint with OP or with the higher supervising LGU must it be verified? According the case of
Joson, verification is only a formal and not a jurisdictional requirement.

Can a local elective official be suspended or disciplined without a hearing only based on
submission of position papers? No. According also to the case of Joson.

Are respondents entitled to be notified of the deliberations of the sanggunian? No. They are not
entitled to be notified.

Going back to sec. 60 of the local gov code. If the act complained of relates to the official
function or the public office involved, where can you file the complaint? If not related, you can file
with the higher unit or the OP. So yun yung distinction sa sec. 60 kung criminal aspect and the
administrative aspect. Kailangan related to the function if it’s with the Ombudsman, but with the
higher unit or the OP, related or not related to the public office.

2 kinds of vacancies: temporary and permanent. Permanent vacancy: death, voluntary

resignation (what is the effect of voluntary resignation on the term? Considered served, right?)
conviction by final judgment, expiration of the term, permanent disability, fills a higher vacant
office, refuses to assume office, fails to qualify, removed from office.

How about filing of a cert of candidacy for a different position? That particular provision has been
repealed by RA 9006, the Fair Election Act. The old rule was, if you run for a different office, you
were considered resigned. Now, if you run for a different office, you’re not considered resigned.
Kaya at that time, now senator Arroyo, filed a certificate of candidacy after the law was passed
because he wanted to remain as Congressman up to June 31. Kasi di ba, assuming wala pa
yung law, you’re a mayor, you file for Congress, you’re no longer considered mayor. Rule on
succession will apply.

Effect if there is a permanent vacancy in the office of the mayor? The Vice Mayor becomes the
mayor. Permanent vacancy in the office of the vice mayor? The senior councilor becomes the
vice mayor. What happens to the vacancy? How do you fill the vacancy in the sanggunian?
Sorry? Same party, apply the rule on the last vacancy? Who will fill the vacancy? The chief
executive of the higher supervising (tape broken).

Expiration from office and… Rule, mayor of Calbaryog City of Samar goes to Manila for two days
who assumes the office? Meron bang mag-aasume or walang mag-aasume? It is the position of
Senator Pimentel, that the mayor is still the mayor. The vice mayor does not assume or become
the acting mayor. Kasi less than three days. However, he has the option to appoint an OIC who
can be anyone for as long as that person, assuming that he ran for that position, would be
qualified. Meaning the 5 requirements. But on the 3r d day, assuming di pa siya bumalik from
Manila, on the 4th day, the vice mayor assumes the position of acting mayor. Is there such a thing
as an acting vice mayor? Actually wala, because the members of the council can choose from
among themselves who will preside over the session for that particular day. Can an acting mayor
sign vouchers and approve ordinances? Can the vice mayor, let’s say? Yes. Pero an acting
mayor can no longer preside over the council.

How do we distinguish recall from disciplinary action? Disciplinary action, quasi-judicial process.
Recall, special election. Effect of recall is removal. Effect of disciplinary action, either suspension
Agra’s Integration Lecture, Oct. 12, 2002 4
Law on Public Corporations

or removal. Venue for recall, actually the constituents, the registered voters. Venue of
disciplinary actions, either the higher LGU or the OP. How do you initiate the process of recall
either a PRA or petition, how do you initiate disciplinary action, by the filing of a complaint. What
is the limitation on the process of recall, only once during the 2 nd year or term, what is the
limitation on disciplinary action? No investigation on the 90 day period prior to the local election.
So can a local elective official be disciplined during the 90 day period? Yes, kasi ang bawal lang,
investigation. A complaint can be filed, but there’s no investigation.

Barangay. Congress exercises absolute control over the structure of the barangay, qualifications
over the barangay officials, over the term of barangay officials, unlike other local government
officials like the cities and provinces. Relationship of barangay with cities and municipality?
Municipality exercise direct supervision over the barangay. Relationship bet the barangay and
the province? General supervision. Relationship bet the Sangguniang Kabataan and the
barangay? The SK is part of the barangay. However, the SK chairperson is not considered a
barangay elective official. What is the authority of the barangay over the SK? Thru the punong
barangay, the barangay exercises control and supervision. That’s the very wording of the rule. Is
that unconstitutional, the use of the word “control”? My opinion is no, because the SK is not a
local gov. There only 5 local gov units – autonomous regions, provinces, cities, municipality, and
barangay. Although termed as SK, the SK is not a full legislative body because it can only issue
resolutions, it has no authority to enact ordinances. And the resolutions are limited to subject
matters pertaining to the youth. So limited in power.

Liabilities, we have already explained liabilities. For purposes of the exam, I will give you a
problem, I will enumerate the participation let’s say of the mayor, the council, the police officer
and the question will be to determine the liability of the municipality, and/or the officials concerned
whether elective or appointive.

Popular participation. Mandatory consultation under 2(c), 26 and 27, prior to the implementation
of a or a nat’l gov project, there are two requirements. The affected sectors must be consulted,
meaning they need not approve, and second, the sanggunian must approve the project. There’s
a debate, sa mga projects that will not harm the environment, will be considered part of the rule
on mandatory consultation? The opinion by some is, it does not cover non-environmental
projects, because 26 only refers to projects that will harm the environment. The other opinion is,
you must also take into account sec 2c, and 27, because they refer to all projects.

What if there’s a conflict as to the position of the barangay and the city and municipality? How do
you resolve the conflict? It is my position that the conflict must be resolved in favor of the city or
municipality because of the rule that ordinances and resolutions of the barangay must be
consistent with ordinances and resolutions enacted by the city or the municipality.

Initiative and referendum. Initiative is the power to propose and enact and amend, referendum is
the power to approve, amend or object. What would be the scope? Ordinances and resolutions,
because if you were to take away the resolutions from the scope of the powers then that would
trivialize the effectiveness of these two remedies as held in Garcia v Comelec. How many
proposals may be submitted to the electorate? As many proposals. The limitation is with regard
to the frequency of the plebiscite. According the code, only one plebiscite in a year. Calendar
year or fiscal year? Ang ginagamit ng local gov code, is calendar year not the fiscal year. So it is
the position of many that it refers to one calendar year. So you can have a plebiscite on Dec 1,
2002, and another one on Jan 1, 2003. The process is outlined in your code.

Can an ordinance adopted in exercise of the act of initiative be amended? It depends. Can it be
amended from 6 months of it’s effectivity? No. The only recourse would be to go to court if you
would want to question the legality of the authority. 6 months to 3 years, can it be amended?
Yes, provided that ¾ of the members of the sanggunian will vote for amendment. After the 3 year
period, simple majority.
Agra’s Integration Lecture, Oct. 12, 2002 5
Law on Public Corporations

An ordinance amended through initiative is considered approved by the local chief executive.
Therefore the local chief executive does not have the authority to veto. Is it also subjected to
review by the province? The law is silent. It is the position of some that it is no longer subject to
review, otherwise it would trivialize the process.

Local special bodies. Why are they considered special? Because these bodies do not form part
of the regular organizational structure of the local gov. They do not perform, as a general rule,
executive functions, nor do they perform administrative functions. To date there are 6 local
special bodies mandated in the code. However, there are other special bodies mandated in other
statutes. Example, solid Waste management act, under that law, a barangay must have a solid
waste mgt committee. It also composes of local gov officials and non-government. Local
development council, council will develop a local development plan, subject to the approval of the
council. PBAC, pre-qualifications bids and awards committee, aside from conducting the pre-
qualification, it has the authority to recommended the award to the sanggunian. Without the
recommendation, the sanggunian cannot act on the award. Local health board, purely
recommendatory. Local school board, recommendatory, and at the same time, it has the
authority to authorize the disbursement of the special education fund, which is 1% of real property
tax on idle lands, so malaking pera din yun. Local peace and order council, purely
recommendatory, people’s law enforcement board, ito may official functions, quasi-official. To
hear and decide complaints against erring political dancers (?)

Recall, already discussed that.

Partnership bet NGO and local government units, what is the responsibility of the LGU? Under
sec 34, LGU must promote the establishment of NGO’s. In what form? There are two forms.
One the LGU may provide assistance, financial or otherwise, and two, the LGU may enter into
cooperative undertakings with NGO’s and PO’s. Twin requirements: must be for development
projects (any project that will redound to the general welfare of the constituents) and second, any
financial assistance or entering into cooperative undertakings is absolutely discretionary on the
part of local governments. Sec. 35 and 36 of the code says LGU may enter into cooperative
undertakings and may provide for financial assistance.