Lopez v Ericta digest

Lopez v. Ericta | Emerson June 29, 1972 SALVADOR P. LOPEZ, PRESIDENT OF THE UNIVERSITY OF THE PHILIPPINES; BOARD OF REGENTS, UNIVERSITY OF THE PHILIPPINES; and OSEAS DEL ROSARIO, OFFICER-IN-CHARGE, COLLEGE OF EDUCATION, UNIVERSITY OF THE PHILIPPINES, petitioners, vs. HON. VICENTE ERICTA, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, BRANCH XVIII (QUEZON CITY), and DR. CONSUELO S. BLANCO, respondents. Makalintal, J.: SUMMARY: UP President appointed Blanco as dean ad interim of the College of Education. The BOR did not want to approve her appointment, so a committee studied the proposal. The committee wanted to reject her appointment in a face-saving manner; so it recommended that the BOR ask the UP President to convince Blanco to withdraw. However, when the matter was submitted for approval via voting, the committee withdrew such recommendation. The final result was that the matter of appointment was left undecided, but the votes showed 5 in favor, 3, against, and 4 abstentions [not enough for a majority of the 12-member BOR]. Blanco filed a petition for certiorari to compel the BOR and the President to appoint her, on the ground that the 4 abstentions should be deemed YES votes. CFI sided with her. On appeal by the UP officials, SC reversed, finding that the circumstances of the voting do not support Blanco’s assertion. In fact the abstaining Regents wanted to reject her appointment but merely wanted to do it with delicadeza. DOCTRINE: [A]n abstention is counted as an affirmative vote insofar as it may be construed as an acquiescence in the action of those who vote affirmatively. This manner of counting is based on what is deemed to be a presumption as to the intent of the one abstaining, to acquiesce in the action of those who vote affirmatively. However, this is only a prima facie presumption, which can be overturned by clear evidence to the contrary. It is pertinent, therefore, to inquire into the facts and circumstances which attended the voting in order to determine whether or not such a construction would govern. [From Karichi notes: Abstentions should now be counted separately. They are votes in themselves. DLC: Court has no business construing the intent or effect of abstentions, i.e., the case is wrong.] NATURE: Petition for certiorari. FACTS  The case arose from a dispute over the appointment of the Dean of the UP College of Education (UP Educ).  CHARACTERS: o UP President Salvador Lopez (PRES. LOPEZ), also a member of the Board of Regents o The Board of Regents (BOR) – 12 members  Education Secretary Onofre D. CORPUZ, Ex Officio Chairman  Sen. Eva Estrada KALAW  Rep. Aguedo AGBAYANI [also Transpo book author]  Director of Public Schools Liceria SORIANO  Regent Eduardo ESCOBAR  Regent Pio PEDROSA  Regent Tomas FONACIER  Regent Ambrosio TANGCO  Regent Leonides VIRATA [not the VSB guy]  Regent Abel SILVA  Regent Fernando BARICAN o Dr. Consuelo BLANCO – faculty member of UP Educ o Oseas DEL ROSARIO – another faculty member of UP Educ o JUDGE Vicente ERICTA of the Rizal CFI (QC) [future SC Justice].  Apr. 27, 1970 – Pres. Lopez appointed Blanco as dean ad interim of UP Educ, effective May 1, 1970 until April 30, 1971, unless sooner terminated and subject to the approval of the Board of Regents (BOR) and to pertinent University regulations.  May 1, 1970 – Blanco assumed office pursuant to the appointment.  May 26, 1970 – The BOR met and Pres. Lopez submitted for its reconsideration the ad interim appointment of Blanco. o The BOR voted to defer action on the matter, in view of a petition addressed to the BOR by UP Educ faculty and alumni, opposing the appointment of Blanco, as noted by Regent Kalaw. o The matter was referred for further study to the Committee on Personnel, composed of Regents Tangco (Chairman), Pedrosa, and Soriano.

On the same day, Lopez extended another ad interim appointment to Blanco, subject to the same conditions as the first appointment. July 9, 1970 – On the next BOR meeting, the matter of Dr. Blanco’s appointment was discussed again. o The Personnel Committee recommended that the BOR ask Lopez to review Blanco’s appointment to the Deanship of UP Educ in light of the testimonies received and discussions held during the Committee meetings on June 4 and 11, 1970. o The documents received by the Personnel Committee were entered into the official record. o There was uncertainty as to the action that the BOR will take. o The Personnel Committee’s recommendation was itself ambiguously worded, because the consensus of the committee was for the BOR to ask Pres. Lopez to discuss with Blanco a proposal to withdraw her appointment as Dean. o IN OTHER WORDS: The Committee wanted to reject the appointment but did not want the record to reflect that Blanco was rejected [more on this later] so nobody is embarrassed. o Sec. Corpuz took a roll call vote on the appointment of Blanco.  RESULTS: Regents Fonacier, Escobar, Barican, and Agbayani, plus Pres. Lopez (5) in favor; Regents Kalaw and Silva, plus Sec. Corpuz against (3); and Regents Tangco, Leocadio [in substitution of Regent Soriano], Pedrosa, and Virata, abstaining (4). 5 YES; 3 NO; 4 ABSTAIN. o Based on this voting, and on motion of Regent Agbayani duly seconded, Sec. Corpuz suspended action on the matter in order to give the BOR more time to consider the appointment. o No action having been taken on Blanco’s appointment, the same was deemed terminated. July 10, 1970 – Blanco wrote the BOR requesting a reconsideration of the interpretation of the 5-3-4 vote on her appointment [in effect she wanted the abstentions to be counted in her favor] Aug. 18, 1970 – Blanco wrote Pres. Lopez to protest Del Rosario’s appointment as OIC of UP Educ. Receiving no reply, Blanco filed a petition for certiorari and prohibition w/ preliminary injunction with the Rizal CFI (QC Branch). Dec. 3, 1970 – CFI DECISION o declared Blanco the duly elected dean of UP Educ, entitled to occupy the position from May 1, 1970 to Apr. 30, 1973 o declared the appointment of Del Rosario as OIC null and void o permanently enjoined Del Rosario from acting as UP Educ Dean and the BOR from appointing another person to the Deanship of UP Educ Jan. 5, 1971 – Lopez, the BOR, and del Rosario filed a petition for review on certiorari to the SC. Jan. 11, 1971 – SC issued a writ of preliminary injunction to stop the execution of the CFI decision. o

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ISSUE (HELD): W/N the 4 abstentions should be taken as affirmative votes so as to constitute a majority for the approval of Blanco’s appointment as Dean of UP Educ (NO) RATIO  Blanco: The abstentions should be deemed affirmative votes because refusal to vote indicates acquiescence in the action of those who vote [and eventually win]  Lopez et.al.: If Blanco’s view is adopted, an absurdity may arise such that a proposal may be approved with only one vote if the other 11 BOR members abstain.  SC: A good case can be made for either proposition and American courts have been divided on the matter. However, the case can be resolved without choosing from the competing legal theories.  “It should be noted that an abstention, according to the citations of Lopez et.al., is counted as an affirmative vote insofar as it may be construed as an acquiescence in the action of those who vote affirmatively. This manner of counting is obviously based on what is deemed to be a presumption as to the intent of the one abstaining, namely, to acquiesce in the action of those who vote affirmatively, but which presumption, being merely prima facie, would not hold in the face of clear evidence to the contrary. It is pertinent, therefore, to inquire into the facts and circumstances which attended the voting by the members of the BOR on the ad interim appointment of Blanco in order to determine whether or not such a construction would govern.”  Applicable provisions o UP Charter, Sec. 7. A quorum of the Board of Regents shall consist of a majority of all the members holding office at the time the meeting of the Board is called. All processes against the Board of Regents shall be served on the president or secretary thereof. o UP Charter, Sec. 10. The body of instructors of each college shall constitute its faculty, and as presiding officer of each faculty, there shall be a dean elected from the members of such faculty by the Board of Regents on nomination by the President of the University.

Article 78 of the Revised Code of UP: For each college or school there shall be a Dean or Director who shall be elected by the Board of Regents from the members of the faculty of the University unit concerned, on nomination by the President of the University. MINUTES OF THE MEETING SHOW THAT BOR INTENDED TO REJECT BLANCO’S APPOINTMENT  The Chairman of the Personnel Committee, Regent Tangco, manifested during the July 9 meeting that “the nomination of Professor Blanco cannot be accepted by the [BOR], but it was felt that it should be presented in a more diplomatic way to avoid any embarrassment on the part of both the appointee and the President. And so means were studied as to how it could be done and it was felt that it could be done in such a way that the appointee could request relief from the appointment, that it would be the best to save embarrassment all around. And so the final decision was to ask the President to review this matter”  They intended to do this by asking Pres. Lopez to persuade Blanco to withdraw her appointment or resign.  Regent Pedrosa, another member of the Personnel Committee, suggested that the Committee members inhibit from voting on the matter; and they did.  Sec. Corpuz stated that if the Board accepts the Committee recommendation, it would also mean the nonconfirmation of Blanco’s ad interim appointment.  Sec. Corpuz further said: “Regent Tangco, the chairman of [the Personnel Committee], says that this is merely a polite cover, diplomatic cover, according to Regent Kalaw, for the reaction of the Committee, and Regent Tangco requests that we act not on the Committee recommendation in this form as presented in the Agenda but in terms [of the] gentlemen's agreement.”  But Sec. Corpuz said that they cannot act on the recommendation in the way Regent Tangco wanted because the BOR cannot act on an unwritten “gentleman’s agreement”. [in effect ayaw ni O.D. Corpuz na utusan ng BOR si Pres. Lopez na pakiusapan si Dr. Blanco na mag-resign, as Tangco would have it]  He therefore asked the BOR to vote ONLY on the action to be taken on the Personnel Committee’s recommendation, unless the Committee agrees to withdraw the recommendation [not on the Blanco appointment itself; seems that O.D. Corpuz wants the Personnel Committee to make up its mind and do away with their “face-saving” maneuver. Kung ayaw nyo kay Blanco eh di i-reject natin]  Regent Tangco agreed and withdrew the recommendation. As a clarification, Regent Silva then stated that as it stood, the Committee had withdrawn its earlier recommendation and now puts forward a recommendation of non-confirmation, to which Regent Kalaw agreed. The BOR then voted on the matter with the above-quoted result of 5-3-4.  Before casting his vote of abstention, Regent Virata, stated that he was lost [haha] and that he was being asked to make a decision he was not ready to make.  Sec. Corpuz declared that the vote was not a majority and that there was no ruling on the counting of votes and the treatment of the abstention.  After a 1-minute recess. Sec Corpuz stated that: “There is a motion to suspend action; that is to say, to suspend the voting of the Board on this matter with the effect, first, to return the case to its original status to render the case subject to further thinking and second, that the Board has not confirmed the appointment. The appointment, in other words, will be good from May 26 up to today (July 9).”  The BOR wanted more time to consider Blanco’s appointment but deemed her ad interim designation terminated as of July 9. Sec. Corpuz also manifested that the result of the voting should be expunged from the record. Nobody objected.  As summarized by the Court: “The Personnel Committee, to which the matter of Dr. Blanco's appointment had been referred for study, was for recommending that it be rejected; that, however, the rejection should be done in a diplomatic way "to avoid any embarrassment on the part of both the appointee and the President;" and that the "final decision" of the committee was to ask the President of the University to talk to Dr. Blanco "for the appointment to be withdrawn." That decision, as announced by Regent Tangco, Chairman of the Personnel Committee, was restated and clarified by Regent Kalaw, and then reiterated first by Regent Tangco and then by the Chairman. On that note Regent Pedrosa suggested that the members of the Personnel Committee, as well as the President, should inhibit themselves from voting. When the matter was actually submitted to a vote, however, the definition of the issue became somewhat equivocal. Regent Tangco announced that the committee was withdrawing its recommendation, whereupon the Chairman stated that the issue was "to confirm or not to confirm the ad interim appointment issued to Dr. Blanco." This was then followed by a remark from Regent Silva that the withdrawal by the committee referred to the recommendation "per se, as it is written," but that the committee, he thought, was "actually putting a recommendation for nonconfirmation." Regent Kalaw thereupon expressed her concurrence with Regent Silva's opinion”.  It is clear from the foregoing that the abstentions cannot be construed as votes for confirmation of Blanco’s appointment. The Personnel Committee undoubtedly recommended rejection of Blanco’s appointment. It cannot be said that the members of the Committee abstained because they intended to acquiesce with the Yes votes. Neither did Regent Virata, who said that he was not ready to make a decision. o

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In the same meeting, the BOR finally decided to cancel the actions taken, including the 5-3-4 vote, and to return the matter to the status quo, with the understanding that the ad interim appointment had been terminated. “[I]t cannot be seriously argued that the Board had no authority to do what it did: the meeting had not yet been adjourned; the subject of the deliberations had not yet been closed, and as in the case of any deliberative body the Board had the right to reconsider its action.” No title to the office of Dean of UP Educ had yet vested in Blanco at the time of reconsideration. Since Blanco did not pray for her ad interim appointment to be upheld up Apr. 30, 1971; and considering that she was not entitled to the 3-year term provided for by law, she could no longer be reinstated to the Deanship. “Aside from the fact that the point has become moot, since the tenure has expired, it is seriously to be doubted whether such an appointment is authorized under the law and regulations. It should be noted that both under the Charter (Sec. 10) and under the Revised Code of the University (Art. 78) the Dean of a college is elected by the [BOR] on nomination by the [UP President]. In other words the President's function is only to nominate, not to extend an appointment, even if only ad interim; and the power of the Board of Regents is not merely to confirm, but to elect or appoint. At any rate the ad interim appointment extended to Blanco on May 26, 1970, although made effective until April 30, 1971, was subject to the following condition: "unless sooner terminated and subject to the approval of the Board of Regents." The Board, as has been shown, not only did not elect Blanco in its meeting of July 9, 1970, but declared the appointment terminated as of that day.”

Barredo, J., concurring: Pres. Lopez should not have voted, unless there was a tie. Concurs with the deciding principle of the ponencia but not with its conclusion as to the remarks of Regents Pedrosa and Virata. “It is indeed regrettable that the action of the board was not as clear and categorical as should be expected of the Board of Regents of the state university. If such a simple matter as the election of a dean cannot be decided by the corresponding university authorities in a noncontroversial manner, is there hope that more important and complicated matters requiring deeper study and consideration and affecting the fundamental policies of the institution and the various curricula to be adopted can be settled and decided forthrightly and without equivocation? I am frankly disappointed, being an alumnus of the University, that a thing that should have been dealt with with no under consideration in mind than the fitness of the candidate had to be treated with "diplomacy" and halfway propositions, as if there was fear that the outcome would not be considered by all concerned as fully just and fair. I realize I am not supposed to render judgment here on how the University should be run or how its officials should conduct themselves, but I feel that it is within the scope of my authority to express myself on a matter of public interest that had to reach this Court only because simple things have not been done the simple way.” Concurs in the result in view of the action taken by the Board to deem Blanco’s appointment terminated as of July 9, 1970. DISPOSITION: Decision reversed, case dismissed.