Pubcorp Atty Pascasio Case Digest
Short Description
Case digests finals II 2016-2017...
Description
4. Rules on Succession (Sec. 44-46, RA 7160) a. Permanent Vacancy- arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is permanently incapacitated to discharge the functions of his office. Mode of succession may be observed in case of temporary vacancies (Menzon vs Padilla, 197 scra 251) If permanent vacancy occurs in: Position Vacant Governor/ Mayor
Vice Gov/ Vice Mayor
Punong Barangay
Sangguniang Member
To be filled by whom: Vice governor/ Vice Mayor shall become gov/mayor Highest ranking sanggunian or in case of his permanent permanency, second highest; subsequent vacancies shall be filled automatically by sanggunian accdg to its ranking
# RANKING- det by the votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding election Highest ranking sanggunian barangay member or in case his permanent inability, second highest ranking sangguniang barangay member #In case of tie sa ranking- drawing of lots A. In case of SP in HUC and ICC - Filled by appointment of the Pres thru executive secretary B. SP of CC and SBayan - Filled up by the governor C. Sanguniang Baranggay - Municipal mayor upon Sanguniang Barangay
recommendation
of
Note!!!!! VERY IMPORTANT BES a. Only the nominee of the political party under w/c the Sanguniang member concerned had been elected and whose elecation to the position next higher in rank created the last vacancy shall be appointed. Conditions sine qua non: Nomination and certificate of membership of the appointee from the highest official of the pp concerned Rationale: to maintain the party representation as willed by the people in the election (Navarro vs CA,
Youth and the Baranggay in the Sangunian
c.
Temporary Vacancy
2001) b. If sanguniang member concerned does not belong to any political party, local chief executive upon recommendation of sanguniang concerned appoint a qualified person to fill such vacancy Filled automatically by the official next in rank of the organization concerned
a. Gov, City or Municipal Mayor or Punong Barangay is temporary incapacitated by physical or reasons such as but not limited to: 1. Leave of absence 2. Travel abroad 3. Suspension of office
a.
Vice gov, city or municipal vice mayor, or the highest ranking sangguniang shall exercise the powers and perform the duties and functions of the local chief executives concerned XPN: power to appoint, suspend, or dismiss employees XPN TO THE XPN: can be exercised if incapacity exceeds 30 working days
b. Local Chief Executive is travelling w/in the country but outside his territorial jurisdiction for a period not exceeding 30 days
-
may designate in writing a OIC of the said office authorization must specify powers and functions that the local official shall exercise in the absence of LCE XPN: power to appoint, suspend, or dismiss employees
If LCE refuses to issue authorization, the Vice gov, city or municipal vm or the highest ranking sangguniann barangay as the case maybe shall have the right to assume powers of LCE w/ same xpns as abovementioned
5. Recall (Secs 69-74, RA 7160) - The termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate: i. By whom exercised: registered voters of a local govt to w/c local elective official subject to such recall belongs ii. Initiation of the recall process (sec 70, RA 7160): by the registered voters of the LGU NOTE: By virtue of RA 9244 PRA has been eliminated as a mode of initiating recall election iii. Procedure: - Must be initiated upon petition by at least 25% of the number of registered voters in the LG concerned during election in w/c the local official sought to be recalled was elected o A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and representative of the official sought to be recalled, and in a public place in the province, city, municipality or barangay, as the case may be, shall be filed with the COMELEC through its office in the LGU concerned
o o
COMELEC or its duly authorized representative shall cause publication of the petition in a public and conspicuous place for a period of not less than 10 days nor more than 20 days, for the purpose of verifying the authenticity and genuineness of the petition and the reqd percentage of voters. Upon lapse of said period, COMELEC or its duly authorized representative shall announce the acceptance of the candidates w/c shall include the name of the official sought to be recalled.
6. Resignation (Sec 82, RA 7160) Deemed effective only upon: a. President- in case of giv, vice gov and mayors and vice mayors of HUC and ICC b. Governor, in case of Municipal Mayors and Vice Mayors, city mayors and vice mayors of CC c. Sanggunian concerned in case of sanggunian concerned d. City or Municpal mayor, in case of brgy officials NOTE: - Deemed accepted if NOT acted upon by the authority concerned w/in 15 working days from receipt thereof. - Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records XPN: where the sangunian members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations 7. Discipline (Sec 60-68, RA 7160) a. Grounds a) Disloyalty to RP b) Culpable violation of the constitution c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor e) Abuse of authority f) Unauthorized absence for 15 consecutive working days xpn in case of Sanggunian members (bayan, lungsod, panlalawigan, barangay) g) Application for, or acquisition of, foreign citizenship or residence or that status of an immigrant of another country h) Such other grounds as provided for by the code and other laws NOTE they may be removed thru order of the proper court b. Jurisdiction Re: Complaints a. Provincial, HUC or ICC- Office of the Pres b. Elective Municipal Officials- filed before SP whose decision may be appealed to the Office of the President c. Elective Brgy Officials- filed before the SP or SB concerned; decision shall be final and executor NOTE: but the Ombusdsman has concurrent jurisdiction w the sangguniang bayan over administrative cases against elective barangay occupying positions below salary grade 27 c. -
-
Preventive Suspension May be imposed by the President, Governor, or Mayor as the case may be at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in the office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; provided that any single preventive suspension SHALL NOT EXCEED 60 days
Note: 1. failure to file answer despite many opportunities given to him, is deemed to have waived his right to answer and to present evidence. (Joson v Torres)
2. in the event that several admin cases are filed against respondent, he cannot be suspended for more than 90 days w/in a single year on the same ground or grounds and known at the time of the first suspension - power is exercised concurrently by the Ombudsman pursuant to RA 6770; same law that authorizes a preventive suspension for 6 mos (Hagad v Dozo-Dadole) 3. Upon expiration of preventive suspension, respondent shall be deemed reinstated in office w/o prejudice to the continuation of the prooceedings against him, w/c shall be terminated w/in 120 days from the tome he was formally notified of the case against him 4. Abuse of exercise of the power of preventive suspension; penalized as abuse of authority -
d. Removal ( Sec. 60, LGC) Under sec 40 of the LGC, the penalty of removal from office as a result of an administrative case shall be a bar to the candidacy of the respondent for any elective local office. Re: Penalty: Penalty of suspension upon the respondent shall not exceed his unexpired erm, or a period of 6 months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent as long as he meets the qualifications reqd for the office. e.
-
Administrative Appeal Decisions may, w/in 30 days from receipt thereof, be appealed to: a. Sanguniang Panlalawigan- in cases of decisions of component cities’ sangguniang panlungsod and sangguniang bayan b. Office of the President in the case of decision of the Sanguniang Panlalawigan and the Sangguniang Panlungsod of HUC and ICC; decisions of the Office of the President is final and executor a. Certiorari will not lie bc there is still an adequate remedy available in the ordinary course of law; appeal of the decision of the Sanggunian Panlalawigan to the Office of the President b. “Final and Executory” admin appeal will not prevent enforcement of decision c. Execution pending appeal (see above); Berces vs Executive Secretary: AO 18 authorizes Office of the Pres to stay the execution of the decision pending appeal d. Effect of re-election; bars the continuation of the administrative case against him, inasmuch as the reelection of the official is tantamount to condonation by the people of whatever past deeds he may have committed
Disciplinary Actions A. Elective Local Officials (sec 60-68) 1. Ganzon vs CA 200 scra 271 | Supervision of the Pres not incompatible w disciplinary authority Facts: Petitioner has 10 administrative charges pending against him for various violations of the Local Government Code. Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of Appeals. Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.); On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two decisions.
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid, in any event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746). The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer. Issue: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials. Held: Yes. Ganzon is under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is a mistaken impression because legally, “supervision” is not incompatible with disciplinary authority. The SC had occasion to discuss the scope and extent of the power of supervision by the President over local government officials in contrast to the power of control given to him over executive officials of our government wherein it was emphasized that the two terms, control and supervision, are two different things which differ one from the other in meaning and extent. “In administration law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” But from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local government officials does not include the power of investigation when in his opinion the good of the public service so requires. The Secretary of Local Government, as the alter ego of the president, in suspending Ganzon is exercising a valid power. He however overstepped by imposing a 600 day suspension. 2. Joson v Torres 290 scra 279 | Puno, J. President’s power to investigate Facts: On September 17, 1996, private respondents filed with the Office of the President a letter-complaint dated September 13, 1997 charging petitioner with grave misconduct and abuse of authority.; alleged that in the morning of September 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the Sangguniang Panlalawigan. 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 and the proposed legislative measure was not considered; that private respondents opposed the loan because the province of Nueva Ecija had an unliquidated obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan; 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 Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private respondents' lives and safety.Private respondents prayed for the suspension or removal of petitioner; Pres. Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify "the use of force, intimidation or
armed followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak not the peace." The letter-complaint together with the President's marginal notes were sent to Secretary Robert Z. Barbers on September 20, 1996. Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case against him[4] and attached to the notice a copy of the complaint and its annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in support thereof, within fifteen (15) days from receipt. , petitioner claims that the DILG Secretary usurped the power of the President when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was the DILG Secretary who ordered petitioner to answer. Issue/s: WON the DILG Secretary has jurisdiction over the case Held: Yes. Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23, to wit: "Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective local officials mentioned in the preceding Section shall be acted upon by the President. The President, who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining Authority." Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby designated as the Investigating Authority. He may constitute an Investigating Committee in the Department of the Interior and Local Government for the purpose. The Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating Committee in lieu of the Secretary of the Interior and Local Government." [46] Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee. The power of the President over administrative disciplinary cases against elective local officials is derived from his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides: "Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions."[47]
Under AO 23 President has delegated power to investigate complaints to the Secreary of Interior and Local Government; valid delegation because what is delegated only the power to investigate, not the power to discipline. Power of Secretary of DILG based on alter ego principle 3. Salalima v Guingona 250 scra 55 | Abuse of authority; Right to formal investigation Facts: Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60(e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66(b) of R.A. No. 7160. Prefacing the petition with a claim that the challenged administrative order is an oppressive and capricious exercise of executive power, the petitioners submit that: I. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE. II. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,47 1.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992. III. THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE: A. WHAT WERE NOT COMPLAINED OF; B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION. IV. THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC. Issue/s:
1. WON there is grave abuse of discretion amounting to lack or excess of JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,47 1.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992. 2. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY 3. WON it is legal disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office. Held: 1. No. it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. 2. No. when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound to collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. [9] Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon. It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province.[10] He is the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. [11] He is also the one authorized to effect the resale at public auction of the delinquent property.[12] Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter. When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, of the P40,724,471.74 actually paid by the NPC and lodged in the provinces general fund, P35,803,118.30 was disbursed or spent by the Province. If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust[16] pursuant to Section 309(b) of the Local Government Code of 1991. 3. No. Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the officer was elected
or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of Comrs. of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217). The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. P. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregard or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. 4. Berces v Exec Secretary 241 scra 539 | Appeal Facts: Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit: (1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-payment of accrued leave benefits due the petitioner amounting to P36,779.02. (2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing a water pipeline which is being operated, maintained and paid for by the municipality to service respondent's private residence and medical clinic. Consequently, respondent Mayor appealed to the Office of the President questioning the decision and at the same time prayed for the stay of execution thereof in accordance with Section 67(b) of the Local Government Code; Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President issued an Order on July 28, 1993. Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the President but was denied. Hence this petition asserting that the Orders of the Office of the President as having been issued with grave abuses of discretion. claims that the governing law in the instant case is R.A. No. 7160, which contains a mandatory provision that an appeal "shall not prevent a decision from becoming final and executory." He argues that administrative Order No. 18 dated February 12, 1987, (entitle "Prescribing the Rules and Regulations Governing Appeals to Office the President") authorizing the President to stay the execution of the appealed decision at any time during the pendency of the appeal, was repealed by R.A. No. 7160, which took effect on January 1, 1991 Issue: WON the President is allowed to stay execution of decision during pendency of the appeal Held: Yes. the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No. 18 are not irreconcillably inconsistent and repugnant and the two laws must in fact be read together. The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from becoming final or executory." As worded, there is room to construe said provision as giving discretion to the reviewing officials to stay
the execution of the appealed decision. There is nothing to infer therefrom that the reviewing officials are deprived of the authority to order a stay of the appealed order. If the intention of Congress was to repeal Section 6 of Administrative Order No. 18, it could have used more direct language expressive of such intention. The Office of the President made a finding that the execution of the decision of the Sagguniang Panlalawigan suspending respondent Mayor from office might be prejudicial to the public interest. Thus, in order not to disrupt the rendition of service by the mayor to the public, a stay of the execution of the decision is in order. 5. Malinao v Reyes 256 scra 616 | Decision of SP in admin cases; must be in writing stating clearly and distinctly the facts and reason for decision and must be signed by the requisite majority of the sanggunian Facts: Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque. Respondent Mayor filed a case against her in the Office of the Ombudsman for gross neglect of duty, inefficiency and incompetence. While the case was pending, he appointed a replacement for petitioner. On February 24, 1994 petitioner filed an administrative case, docketed as Administrative Case No. 93-03, against respondent Mayor in the Sangguniang Panlalawigan of Marinduque, charging him with abuse of authority and denial of due process. On August 12, 1994, the case was taken up in executive session of the Sanggunian. The transcript of stenographic notes of the session[1] shows that the Sanggunian, by the vote of 5 to 3 of its members, found respondent Mayor guilty of the charge and imposed on him the penalty of one-month suspension, The result of the voting was subsequently embodied in a Decision dated September 5, 1994,[2] signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. Copies of the Decision were served on respondent Mayor Red as well as on respondent Governor Luisito Reyes on September 12, 1994. On September 14, 1994, respondent Mayor filed a manifestation [3] before the Sanggunian, questioning the Decision on the ground that it was signed by Sotto alone, apparently acting in his capacity and designated as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. He contended that because of this the decision could only be considered as a recommendation of the Blue Ribbon Committee and he was not bound thereby. On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the Department of the Interior and Local Government regarding the validity of the Decision. On the other hand petitioner sent a letter [5] on October 14, 1994 to respondent Governor Reyes, demanding that the Decision suspending respondent Mayor from office be implemented without further delay. In his letter dated October 20, 1994,[6] respondent Governor informed the Sanggunian that he agreed with the opinion of the DILG for which reason he could not implement the Decision in question. On October 21, 1994,[7] the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the charges against him. The vote was embodied in a Decision of the same date, which was signed by all members who had thus voted. [8] Hence this petition.
I. Petitioners basic contention is that inasmuch as the Decision of September 5, 1994 had become final and executory, for failure of respondent Mayor to appeal, it was beyond the power of the Sanggunian to render another decision on October 21, 1994 which in effect reversed the first decision. Issue: WON the decision rendered is valid Held: No. Accd to sec. 66. Form and Notice of Decision. - (a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties. In order to render a decision in administrative cases involving elective local officials, the decision of the Sanggunian must thus be in writing stating clearly and distinctly the facts and the reasons for such decision. What the Sanggunian, therefore, did on August 12, 1994 was not to render a decision. Neither may the so-called Decision prepared by Sanggunian Member Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures of the requisite majority.
6. Sanguniang Barangay of Don Mariano Marcos v Martinez gr 170626 March 3 2008 Facts: Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong Barangay of the said local government unit. 3 On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 61 4 of Rep. Act No. 7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act. 5 Petitioner alleged that Martinez committed the following acts: 1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting. aDHCcE 2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection. 3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected . . . . 4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. . . . . 5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. . . . . 6. That several attempts to discuss said problem during sessions were all in vain because respondent declined to discuss it and would adjourn the session. . . . . 6 Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005. 7 On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office. 8
The Decision dated 28 July 2005 was conveyed to the Municipal Mayor of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3 August 2005, Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sangguniang Bayan is not empowered to order Martinez's removal from service. However, the Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal had not yet lapsed. 9 The dispositive portion of the said Memorandum states that: 10 The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160. AEITDH On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to Branch 27 of the trial court. 11 On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity. petitioner filed a Motion for Reconsideration 13 of the trial court's Order dated 10 October 2005. The trial court denied the said motion in another Order dated 30 November 2005. 14 Hence, the present petition was filed.|| Issue: whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office. ||| Held: No. Section 60. Grounds for Disciplinary Actions. — An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: xxx xxx xxx An elective local official may be removed from office on the grounds enumerated above by order of the proper court. The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority. Thus, the petitioner's interpretation would defeat the clear intent of the law.||| As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it
would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. ISD The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint. 22 The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5) where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) * in quo warranto proceedings. 23 aIETCA As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan. 24 Thus, his direct recourse to regular courts of justice was justified. 7. Lingating v Comelec Facts: On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position those removed from office as a result of an administrative case. [3] It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals,[4] was administratively charged (AC No. 12-91) with various offenses, [5] and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.[6] Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. fter the parties had filed their memoranda, the case was submitted for resolution. Because the COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong was voted for in the elections,
receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality. In a resolution dated August 1, 2001, the COMELECs First Division declared respondent Cesar B. Sulong disqualified. It held: Section 40(b) of the Local Government Code is clear that any person removed from office by reason of an administrative case is disqualified from running for any elective local office. From such point, it is clear that Respondent Sulong was declared guilty of having violated the Anti-Graft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga del Sur. . .which. . .has become final and executory, thereby depriving him of his right to run for public office. Issue: whether or not the foregoing decision [in AC No. 12-91], assuming it has become final and executory, constitutes a ground for the disqualification of herein respondent-movant as a candidate in the elections [of May 14, 2001]. Held: Yes. While it is true that one of the disqualifications from running in an elective position is removal from office as a result of an administrative case, said provision no longer applies if the candidate whose qualification is questioned got re-elected to another term. In Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-election renders an administrative case moot and academic. Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04 February 1992 which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision has become final and executory. Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in the recent elections as evidenced by the results which found respondent Sulong to have won convincingly. B. Sec 13, 21, 24, RA 6770 Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. Section 24. Preventives Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman
is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. 1. Hagad vs Gozo-Dadole GR 108072 Dec 12 1995 | concurrently by the Ombudsman pursuant to RA 6770; same law that authorizes a preventive suspension for 6 mos (Hagad v Gozo-Dadole) Facts: The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992, against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were charged with having violated R.A. No. 3019, as amended, 5 Articles 170 6 and 171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015. A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede moved for the preventive suspension of respondent officials in the separately docketed administrative case. Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President. Issue: WON the Ombudsman was divested of jurisdiction to investigate and impose admin sanctions against local official by virtue of enactment of LGC of 1991 Held: No. there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored. Sections 61 and 63 of the present Local Government Code run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor Local Government Code of 1983, under the heading of "Suspension and Removal." The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President. C. Sec 13 RA 3019 Section 13. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. 1. Talaga, Jr vs Sandiganbayan Facts: Criminal and administrative complaints were filed by Elan Recreation, Inc. (ELAN) against petitioner with the Office of the Ombudsman. The complaints alleged that petitioner, in his capacity as mayor of the City of Lucena, had unlawfully granted favors to a
third party with respect to the operation of bingo games in the city, to the damage and prejudice of the complainants.[2] the Office of the Deputy Ombudsman for Luzon recommended the dismissal of both the criminal and administrative complaints.[3] However, the Ombudsman approved the dismissal of the administrative case but denied the dismissal of the criminal case. As a result, the Office of the Special Prosecutor recommended the filing of three criminal charges for violation of R.A. No. 3019: 2. Criminal Case No. 27738. For giving unwarranted benefits to Jose Sy Bang by approving an ordinance granting to Sy Bang a local franchise to operate bingo games in the city; among others. On June 29, 2005, petitioner and the City Councilors were arraigned in Criminal Case No. 27738 and all pleaded not guilty. On July 5, 2005, the prosecution filed a Motion to Suspend the Accused Pendente Lite.[15] Petitioner and his co-accused filed an Opposition[16] to the motion. Thereafter, respondent ordered the suspension of the petitioner and his co-accused, to wit: holding effective immediately upon receipt hereof and continuing for a total period of ninety (90) days.[17] Petitioner then filed the present petition for certiorari with an urgent application for the issuance of a temporary restraining order and/or preliminary injunction under Rule 65 of the Rules of Court. The Court issued a Temporary Restraining Order on November 9, 2005 enjoining public respondents from implementing the suspension of petitioner.[18] Assailing his suspension, petitioner alleges: ASSUMING THAT THE ISSUANCE OF THE PREVENTIVE SUSPENSION IS MANDATORY, THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION WHEN IT ORDERED THE SUSPENSION OF THE PETITIONER AS SECTION 13 OF REPUBLIC ACT NO. 3019, WHICH FORMS THE BASIS OF THE ORDER OF SUSPENSION, IS UNCONSTITUTIONAL ON THE GROUND THAT IT IMPINGES UPON THE EXCLUSIVE PREROGATIVE OF THE JUDICIARY. Issue: WON Sandiganbayan abused its discretion ordering the suspension of the petitioner since sec 13 RA 3019 is unconstitutional Held: No. Contrary to the argument of petitioner, the law does not require that the information must allege that the acts in question caused injury to any party, whether the government or private party. The presence of the word or clearly shows that there are two acts which can be prosecuted under Section 3: First, causing any undue injury to any party, including the government, and, Second, giving any private party any unwarranted benefits, advantages or preference. The validity of Section13, R.A.No.3019 may no longer beput at issue, the same having been repeatedly upheld by this Court. The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension lies in the court in which the criminal charge is filed; once a case is filed in court, all other acts connected with the discharge of court functions - including preventive suspension should be acknowledged as within the competence of the court that has taken cognizance thereof, no violation of the doctrine of separation of powers being perceivable in that acknowledgement.[35] As earlier mentioned, the court must first determine the validity of the information through a presuspension hearing. But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. D. Sec 51 and 52 Subtitle A Book IV EO 292 SECTION 51. Preventive Suspension.—The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. SECTION 52. Lifting of Preventive Suspension Pending Administrative Investigation.—When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. E. Doctrine of Condonation
-
Applies to elective officials, but cannot be expanded to cover appointive officials administratively charted along with elective and appointive officials.
1. Aguinaldo vs Santos GR 94115 Facts: Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around March 1988. Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof. On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to the complaint. On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in reply to respondent Secretary's December 4, 1989 letter requiring him to explain why should not be suspended or removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers; Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and others. 2 On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal investigation into the charges against him. Petitioner relies on three grounds for the allowance of the petition among others that (3) the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code. While this case was pending, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court has decided the case. On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992 resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan. Issue: WON the expiration of petitioner's term of office during which the acts charged were allegedly committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue has become academic Held: Yes. Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. In Pascual v. Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled: The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of misconduct during a prior term to which we fully subscribe. Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this is especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the removal from office, and disqualification from holding
office for a term for which the officer was elected or appointed. (6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217) The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553. The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3 Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. 2. ID.; ID.; ACTS OF DISLOYALTY TO THE REPUBLIC AS A GROUND FOR REMOVAL THEREOF; NEED NOT BE PROVED BEYOND REASONABLE DOUBT. — The power of respondent Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him. The statutory grant found in B.P. Blg. 337itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2. A similar provision is found in Section 3, Article X of the 1987 Constitution. Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence.\ 2. Salumbides, Jr vs Office of the Ombudsman GR 180917 | (whether Doctrine of Condonation applicable to both elective and appointive officials; distinctions bet elective and appointive officials) Facts: Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon. Towards the end of 2001, On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented by administration, as had been done in a previous classroom building project of the former mayor. Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured. The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002. [3]The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects. Upon advice of Municipal Planning and Development
Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed. The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was implemented in the same manner, using the same source of fund and for the same reason of urgency which was allowed because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy.[5] Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of model guidelines in the implementation of infrastructure projects to be executed by administration, while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan. On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint[6] against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino; the administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code. By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case , the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005. Petitioners urge this Court to expand the settled doctrine of condonation [16] to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term. Issue: WON the Doctrine of Condonation could be expanded to appointive local officials Held: No. The electorates condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees. It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latters actual reelection. Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy. 3. Ombudsman Carpio-Morales vs CA and Binay GR 217126-27 November 10, 2015 Facts: a complaint/affidavit 10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City Government of Makati (Binay,
Jr., et al.), accusing them of Plunder 11 and violation of Republic Act No. (RA) 3019, 12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the five (5) phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking Building). 13 CAIHTE On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff||| Binay, Jr. filed a petition for certiorari 59 before the CA, docketed as CA-G.R. SP No. 139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its implementation. 60 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 re-election 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. 61 In any event, Binay, Jr. claimed that the Ombudsman's 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. 62 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. 63 DETACa At noon of the same day, the CA issued a Resolution 65 (dated March 16, 2015), granting Binay, Jr.'s prayer for a TRO. The Ombudsman filed the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453. the CA issued a Resolution 90 dated April 6, 2015, after the oral arguments before it were held, 91 granting Binay, Jr.'s 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. In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman filed a supplemental petition 99 before this Court, arguing that the condonation doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes of issuing preventive suspension orders. The Ombudsman also maintained that a reliance on the condonation doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013|| ||| Issue/s: 1. Won Condonation doctrine should be abandoned 2. whether or not the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs Held: 1. Yes. 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. To begin with, the concept of public office is a public trust and the corollary requirement of accountability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an
elective local official's administrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. 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. 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 re-elected 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 re-elected 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 official's prior term, and likewise allows said official to still run for re-election. However, as previously stated, nothing in Section 66 (b) states that the elective local official's administrative liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually supports the theory that the liability is condoned. Relatedly, it should be clarified that there is no truth in Pascual's 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. If condonation of an elective official's administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it cannot be said that the electorate's will has been abdicated. The Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct committed by an elective official is easily covered up, and is almost always unknown to the electorate when they cast their votes. 303 At a conceptual level, condonation presupposes that the condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is unknown. That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings way back in 1959 and thus, out of touch from — and now rendered obsolete by — the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in the cases following the same, such asAguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA. 2. No. records disclose that the CA's resolutions directing the issuance of the assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at that time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave abuse of discretion based on its legal attribution above. Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued. C. APPOINTIVE LOCAL OFFICIALS 1. Responsibility for Human Resource and Development - Local Chief executive; responsible for HR and Development in his unit - Shall take all personnel actions in accordance with the constitution, pertinent laws, including policies guidelines and standards as the CSC may establish - Local chief executive may employ emergency or casual employees or laborers paid on a daily wage or piecework basis and hired thru job orders for local projects authorized by the sanggunian concerned, w/o the need of approval
or attestation by the CSC, as long as employment does not exceed 6 months (Nachura, Outline in Political Law 2015 Ed.) 2. Discipline (Secs. 84-88, LGC) A Section 84. Administrative Discipline. - Investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal shall be in accordance with the civil service law and rules and other pertinent laws. The results of such administrative investigations shall be reported to the Civil Service Commission. Section 85. Preventive Suspension of Appointive Local Officials and Employees. (a) The local chief executives may preventively suspend for a period not exceeding sixty (60) days and subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. (b) Upon expiration of the preventive suspension, the suspended official or employee shall be automatically reinstated in office without prejudice to the continuation of the administrative proceedings against him until its termination. If the delay in the proceedings of the case is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension herein provided. Section 86. Administrative Investigation. - In any local government unit, administrative investigation may be conducted by a person or a committee duly authorized by the local chief executive. Said person or committee shall conduct hearings on the cases brought against appointive local officials and employees and submit their findings and recommendations to the local chief executive concerned within fifteen (15) days from the conclusion of the hearings. The administrative cases herein mentioned shall be decided within ninety (90) days from the time the respondent is formally notified of the charges. Section 87. Disciplinary Jurisdiction. - Except as otherwise provided by law, the local chief executive may impose the penalty of removal from service, demotion in rank, suspension for not more than one (1) year without pay, fine in an amount not exceeding six (6) months salary, or reprimand and otherwise discipline subordinate officials and employees under his jurisdiction. If the penalty imposed is suspension without pay for not more than thirty (30) days, his decision shall be final. If the penalty imposed is heavier than suspension of thirty (30) days, the decision shall be appealable to the Civil Service Commission, which shall decide the appeal within thirty (30) days from receipt thereof. Section 88. Execution Pending Appeal. - An appeal shall not prevent the execution of a decision of removal or suspension of a respondent-appellant. In case the respondent-appellant is exonerated, he shall be reinstated to his position with all the rights and privileges appurtenant thereto from the time he had been deprived thereof. -
-
Investigation and adjudication of admin complaints against appointive local officials and employees as well as their suspension and removal shall be in accordance w/ the CS law and rules and other pertinent laws b. Preventive suspension LCE may preventively suspend for a period not exceeding 60 days any subordinate official or employee under his authority pending investigation if o charge against such official of employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or o if there is reason to believe that the respondent is guilty of the charge wc would warrant his removal from service c. Disciplinary Jurisdiction
-
Except as otherwise provided for by law, LCE may impose the penalty of removal from service, demotion in rank, suspension for not more than 1yr w/o pay, fine in amount of not exceeding 6mos salary or reprimand If penalty imposed is heavier, decision shall be appealable to CSC wc shall decide the appeal w/in 30 days from receipt thereof
Cases: 1. De Rama vs CA gr 131136 The constitutional prohibition on so-called midnight appointments. Specifically those made w/in 2 mos prior to the next presidential elections, applies only to president or to acting pres; no law that prohibits local elective officials from making appointments during the last days of their tenure absent fraud on their part, when such appointments are not tainted by irregularities or anomalies w/c breach laws and regulations governing appointments Facts: Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Rama wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the appointments of fourteen (14) municipal employees. Petitioner de Rama justified his recall request on the allegation that the appointments of the said employees were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution, which provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. CSC denied petitioners request for the recall of the appointments of the fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared that the appointments of the said employees were issued in accordance with pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by the appointing authority until disapproved by the CSC. The CSC also dismissed petitioners allegation that these were midnight appointments, pointing out that the Constitutional provision relied upon by petitioner prohibits only those appointments made by an outgoing President and cannot be made to apply to local elective officials. Thus, the CSC opined, the appointing authority can validly issue appointments until his term has expired, as long as the appointee meets the qualification standards for the position. [4] The CSC upheld the validity of the appointments on the ground that they had already been approved by the Head of the CSC Field Office in Lucena City, and for petitioners failure to present evidence that would warrant the revocation or recall of the said appointments. Petitioner moved for the reconsideration of the CSCs Resolution, as well as the Order of the CSC Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming that there was failure to present evidence that would prove that these appointments contravened existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite the existence of circumstances showing that the same were fraudulently issued and processed. Hence, this petition. Issue/s: WON the mayor of Lucban, Quezon may revoke the appointments on the ground of constitutional prohibition of midnight appointments Held: No. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission.Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations. [19] Moreover, Section 10 of the same rule provides: Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the
duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than he date of its issuance. Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: (a) Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan; (b) Failure to pass through the agencys Selection/Promotion Board; (c) Violation of the existing collective agreement between management and employees relative to promotion; or (d) Violation of other existing civil service law, rules and regulations. Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called midnight appointments, specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. 2. Plaza vs CA GR 138464 Facts: Plaza issued Memorandum Order Nos. 131-92 to 133-92 14 ordering the preventive suspension of private respondents for a period of 60 days effective upon receipt of the orders. On December 3, 1992, private respondents filed before the Regional Trial Court (RTC) of Prosperidad, Agusan del Sur, Branch VI, a Petition for Certiorari, Prohibition, Injunction, with Preliminary Injunction and/or Restraining Order, docketed as Civil Case No. 897, seeking to annul the preventive suspension imposed by Plaza, as well as the October 26, 1992 Omnibus Order denying their motions to inhibit/dismiss. The trial court issued a temporary restraining order and ordered Plaza to refrain from further continuing with the investigation and/or conducting further proceedings on the subject administrative charge and from enforcing the assailed orders and/or the effects thereof until further orders from the court; the trial court later denied private respondents' motion for reconsideration in an Order 23 dated November 19, 1993. Feeling aggrieved, private respondents immediately filed a notice of appeal to the CA. The appeal was docketed as CAG.R. SP No. 34359 by the appellate court. In their Memorandum filed before the CA, private respondents raised the lone assignment of error that the controversy falls within the well-settled exceptions to the principle of nonexhaustion of administrative remedies. The CA then set aside the preventive suspension of Tan, Gilsano and Quismundo. Hence, this petition.||| Issue: Whether or not the Court of Appeals erred in ruling that the preventive suspension was unjustified.||| Held: No. the preventive suspension of the private respondents is authorized by R.A. No. 7160. Section 85 (a) of the LGC of 1991 states: SEC. 85. Preventive Suspension of Appointive Local Officials and Employees. — (a) The local chief executives may preventively suspend for a period not exceeding sixty (60) days any subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. Clearly, the law provides for the preventive suspension of appointive local officials and employees pending investigation ofthe charges against them. The suspension given to private respondents cannot, therefore, be considered unjustified for it is one of those sacrifices which holding a public office requires for the public good. 40 To be entitled to back salaries, private respondents must not only be found innocent of the charges, but their suspension must likewise be unjustified. - Sc upheld the validity of the act of Gov Democratico Plaza preventively suspending respondents who were being investigated for admin complaints lodged against them. Suspension not unjustified;it is one of the sacrifices wc
holding a public office requires for the public good. To be entitled to back salaries, respondents must not only be found innocent of the charges, but their suspension must likewise be unjustified 3. Atienza vs Villaroza Facts: Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the Memorandum dated June 25, 2002 issued by the respondent Governor concerning the AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THE SANGGUNIANG PANLALAWIGAN. Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES. The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as having been issued with grave abuse of discretion the respondent Governors Memoranda dated June 25, 2002 and July 1, 2002. The petitioner Vice-Governor claimed that these memoranda excluded him from the use and enjoyment of his office in violation of the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991, and its implementing rules and regulations. It was prayed that the respondent Governor be enjoined from implementing the assailed memoranda. The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition. Hence, this petition. Issue: WON respondent Villarosa, as local chief executive, have the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan Members and the Office of the Vice-Governor Held: No. The Governor, with respect to the appointment of the officials and employees of the Sangguniang Panlalawigan, has no such authority. Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are: Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation. (a) The provincial governor, as the chief executive of the provincial government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall: (v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of provincial funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint. On the other hand, Section 466 vests on the Vice-Governor the power to, among others: (2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlalawigan, except those whose manner of appointment is specifically provided in this Code. Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the Vice-Governor. The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said local legislative body. Indeed, the budget source of their salaries is what sets the employees and officials of the Sangguniang Panlalawigan apart from the other employees and officials of the province. Accordingly, the appointing power of the Vice-Governor is limited to those employees of the Sangguniang Panlalawigan, as well as those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan. As a corollary, if the salary of an employee or official is charged against the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.
However, in this case, it does not appear whether the contractual/job order employees, whose appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang Panlalawigan. Nonetheless, the validity of the said memorandum cannot be upheld because it absolutely prohibited the respondent Vice-Governor from exercising his authority to appoint the employees, whether regular or contractual/job order, of the Sangguniang Panlalawigan and restricted such authority to one of recommendatory nature only.[26] This clearly constituted an encroachment on the appointment power of the respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160. 4. Sales vs Carreon Facts: Dapitan City Mayor Ruiz issued 83 appointments, including those of herein petitioners. On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent, assumed office. On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83 appointments signed by his predecessor on the ground that the latter violated Civil Service Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service during the election period. Thereupon, respondent prohibited the release of the salaries and benefits of the 83 appointees. Patricio Sales, one of herein petitioners, in his capacity as president of the Dapitan City Government Employees Association, wrote the CSC Regional Office No. IX requesting its ruling on the matter. On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying his action, contending that the questioned appointments were not only "issued in bulk" but that there was no urgent need to fill those positions. The CSC En Banc held that the positions in question were published and declared vacant prior to the existence of any vacancy. Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049 dated January 16, 2003 by the CSC En Banc. On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On September 16, 2003, the appellate court rendered its Decision dismissing the petition, sustaining the CSC’s finding that the positions to which the petitioners were appointed were already reported and published even before they had been declared vacant, in violation of Sections 2 and 3 of Republic Act (R.A.) No. 7041; 2 and that there was no first level representative to the Personnel Section Board who should have participated in the screening of candidates for vacancy in the first level. Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in its Resolution dated November 17, 2003. Hence, the instant petition. Issue: WON the appointments made by Mayor Ruiz are valid Held: NO. SEC. 2. Duty of Personnel Officers. Xxx Vacant positions shall not be filled until after publication: Provided, however, that vacant and unfilled positions that are: the appointments he issued are not valid. SEC. 3. Publication of Vacancies. –xxx That the Civil Service Commission shall not act on any appointment to fill up a vacant position unless the same has been reported to and published by the Commission. Here, the publication of vacancies was made even before the positions involved actually became vacant. Clearly, respondent’s action violated Section 2 of R.A. No. 7041 cited earlier. Moreover, CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel Selection Board shall be composed of the following: xxx d. Representative of rank-and-file employees, one (1) for the first-level and one (1) for the second-level, who shall both be chosen by duly registered/accredited employees’ association in the department or agency. The former shall sit during the screening of candidates for vacancy in the first-level, while the latter shall participate in the screening of candidates for vacancy in the second level. In case where there is no employees’ association in the department or agency, the representative shall be chosen at large by the employees through a general election to be called for the purpose. Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein petitioners to the vacant positions sans the required representation, the Board violated the above CSC Rules. Hence, the appointments he issued are not valid. They may be recalled. In Mathay, Jr. v. Civil Service Commission,7 this Court upheld the authority of the CSC to take appropriate action on all appointments, including its authority to recall appointments made in disregard of the applicable provisions of Civil Service Law and regulations.
5. Quirog vs Aumentado Facts: On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently appointed [3] Liza M. Quirog as Provincial Government Department Head [4] of the Office of the Bohol Provincial Agriculture (PGDH-OPA). The appointment was confirmed by the Sangguniang Panlalawigan in Resolution No. 2001-199 [5] on June 1, 2001. On even date, Quirog took her oath of office. Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of the Human Resource Management and Development Office of Bohol issued a certification [6] that Quirog was one of two candidates qualified for the position of PGDH-OPA. A copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May and June 2001 of the provincial government was submitted to the Civil Service Commission Regional Office No. VII (CSCROVII), Cebu City. In the Order dated June 28, 2001[7], the Director of CSCROVII invalidated Quirogs appointment as PGDHOPA upon finding that the same was part of the bulk appointments issued by then Governor Relampagos after the May 14, 2001 elections allegedly in violation of Item No. 3(d) [8] of CSC Resolution No. 010988 dated June 4, 2001. The Order pointed out that the prohibition against the issuance of midnight appointments was already laid down as early as February 29, 2000 in CSC Resolution No. 000550.[9] Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging that when the latter took her oath of office on June 1, 2001, CSC Resolution No. 010988 was not yet effective as it took effect only on June 4, 2001. They argued that the subject appointment cannot be considered a midnight appointment because it was made days before the expiration of Relampagos term, and that Quirog was already the acting Provincial Agriculturist a year prior to said appointment or since June 19, 2000.[10] Besides, so they asserted, since Quirog had already taken her oath of office, assumed her duties and collected her salary for the month of June, 2001, she had already acquired a legal, not merely equitable, right to the position in question, which cannot be taken away from her either by revocation of the appointment or by removal except for cause and with previous notice and hearing. Issue: WON Quirog’s appointment constitute midnight appointment Held: No. The appointment of Quirog cannot be categorized as a midnight appointment. For it is beyond dispute that Quirog had been discharging and performing the duties concomitant with the subject position for a year prior to her permanent appointment thereto. Surely, the fact that she was only permanently appointed to the position of PGDH-OPA after a year of being the Acting Provincial Agriculturist more than adequately shows that the filling up of the position resulted from deliberate action and a careful consideration of the need for the appointment and the appointee's qualifications. The fact that Quirog had been the Acting Provincial Agriculturist since June 2000 all the more highlights the public need for said position to be permanently filled up. Besides, as correctly held by the CSC: A careful evaluation of the circumstances obtaining in the issuance of the appointment of Quirog shows the absence of the element of hurriedness on the part of former Governor Relampagos which characterizes a midnight appointment. There is also wanting in the records of the case the subversion by the former governor of the policies of the incumbent Governor Erico Aumentado as a logical consequence of the issuance of Quirogs appointment by the latter. Both elements are the primordial considerations by the Supreme Court when it laid down its ruling in prohibiting midnight appointments in the landmark case of Aytona vs Castillo, et. al.[35] 6. Montuerto vs Ty Facts: petitioner was issued an appointment as Municipal Budget Officer by the then Mayor Supremo T. Sabitsana of the Municipality of Almeria, Biliran. On March 24, 1992, her appointment was approved as permanent by Gerardo Corder, Acting Civil Service Commission Field Officer.
On January 14, 2002, the Sangguniang Bayan of Almeria, Biliran passed Sangguniang Bayan (SB) Resolution No. 01S-2002 entitled "A Resolution Requesting the Civil Service Commission Regional Office, to Revoke the Appointment of Mrs. Melanie P. Montuerto, Municipal Budget Officer of the Municipality of Almeria, Biliran for Failure to Secure the Required Concurrence from the Sangguniang Bayan." Consequently, the Municipality of Almeria, Biliran submitted the 201 file of petitioner to Civil Service Commission Regional Office No. VIII (CSCRO No. VIII) which showed that petitioner's appointment lacked the required concurrence of the local sanggunian. Issue: whether the appointment of petitioner as Municipal Budget Officer, without the written concurrence of the Sanggunian, but duly approved by the CSC and after the appointee had served as such for almost ten years without interruption, can still be revoked by the Commission. Held: Under Section 443(a) and (d) of Republic Act (R.A.) No. 71605 or the Local Government Code, the head of a department or office in the municipal government, such as the Municipal Budget Officer, shall be appointed by the mayor with the concurrence of the majority of all Sangguniang Bayan members6 subject to civil service law, rules and regulations. Per records, the appointment of petitioner was never submitted to the Sangguniang Bayan for its concurrence or, even if so submitted, no such concurrence was obtained. Such factual finding of quasi-judicial agencies, especially if adopted and affirmed by the CA, is deemed final and conclusive and may not be reviewed on appeal by this Court. This Court is not a trier of facts and generally, does not weigh anew evidence already passed upon by the CA. Absent a showing that this case falls under any of the exceptions to this general rule, this Court will refrain from disturbing the findings of fact of the tribunals below. Moreover, we agree with the ruling of the CA that the verbal concurrence allegedly given by the Sanggunian, as postulated by the petitioner, is not the concurrence required and envisioned under R.A. No. 7160. The Sanggunian, as a body, acts through a resolution or an ordinance. Absent such resolution of concurrence, the appointment of petitioner failed to comply with the mandatory requirement of Section 443(a) and (d) of R.A. No. 7160. Without a valid appointment, petitioner acquired no legal title to the Office of Municipal Budget Officer, even if she had served as such for ten years. Accordingly, the CSC has the authority to recall the appointment of the petitioner.7 V. Intergovernmental Relations A. With the National Government and its agencies A. NATL GOVT 1. Power of general supervision. - The president shall exercise general supervision over LGU to ensure that their acts are w/in the scope of their prescribed powers and functions. - Pres shall exercise supervisory authority directly over provinces, highly urbanized cities and independent component cities; thru the province w/ respect to component cities and municipalities; and through the city and municipality w/ respect to the barangays 2. Coordination w/ natl agencies - Natl agencies and offices w/ project implementation functions shall coordinate w/ one another and w/ the local government units concerned in the discharge of these functions. - They shall ensure the participation of LGU both in the planning and implementation of said projects 3. Consultation - No project or program shall be implemented by govt authorities unless consultations mentioned in secs 2(C) amd 26 are complied w/ and prior approval of the sanggunian concerned is obtained; provided, that occupants shall not be evicted unless appropriate relocation sites have been provided
a.
LGC prescribes the duties of natl government agencies in the maintenance of ecological balance, and requires them to engage in prior public consultation and the approval of LGU for the projects described therein
B. PNP - extent of operational supervision and control of local chief executives over the police force, fire protection unit and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of RA 6975 (DILG Act of 1990) Cases: 1. MMDA vs Viron Transportation Co Facts: President Gloria Macapagal Arroyo issued the E.O. on February 10, 2003, "Providing for the Establishment of Greater Manila Mass Transport System," wherein the MMDA had "recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more and convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities" 6 which plan is referred to under the E.O. as the Greater Manila Mass Transport System Project (the Project). The E.O. thus designated the MMDA as the implementing agency for the Project. Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and policymaking body of the MMDA, issued Resolution No. 03-07 series of 2003 7 expressing full support of the Project. Recognizing the imperative to integrate the different transport modes via the establishment of common bus parking terminal areas, the MMC cited the need to remove the bus terminals located along major thoroughfares of Metro Manila. 8 On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic corporation engaged in the business of public transportation with a provincial bus operation,9 filed a petition for declaratory relief10 before the RTC11 of Manila. Viron alleged that the MMDA, through Chairman Fernando, was "poised to issue a Circular, Memorandum or Order closing, or tantamount to closing, all provincial bus terminals along EDSA and in the whole of the Metropolis under the pretext of traffic regulation."12 This impending move, it stressed, would mean the closure of its bus terminal in Sampaloc, Manila and two others in Quezon City. Alleging that the MMDA’s authority does not include the power to direct provincial bus operators to abandon their existing bus terminals to thus deprive them of the use of their property, Viron asked the court to construe the scope, extent and limitation of the power of the MMDA to regulate traffic under R.A. No. 7924, "An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefor and For Other Purposes." Viron also asked for a ruling on whether the planned closure of provincial bus terminals would contravene the Public Service Act and related laws which mandate public utilities to provide and maintain their own terminals as a requisite for the privilege of operating as common carriers. 13 Mencorp Transportation System, Inc. (Mencorp), another provincial bus operator, later filed a similar petition for declaratory relief 14 against Executive Secretary Alberto G. Romulo and MMDA Chairman Fernando Issue: WON the President has the authority to assign MMDA to implement EO Held: No. The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor.
It bears stressing that under the provisions of E.O. No. 125, as amended, it is the DOTC, and not the MMDA, which is authorized to establish and implement a project such as the one subject of the cases at bar. Thus, the President, although authorized to establish or cause the implementation of the Project, must exercise the authority through the instrumentality of the DOTC which, by law, is the primary implementing and administrative entity in the promotion, development and regulation of networks of transportation, and the one so authorized to establish and implement a project such as the Project in question. By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires. In another vein, the validity of the designation of MMDA flies in the absence of a specific grant of authority to it under R.A. No. 7924. To recall, R.A. No. 7924 declared the Metropolitan Manila area 39 as a "special development and administrative region" and placed the administration of "metro-wide" basic services affecting the region under the MMDA. Section 2 of R.A. No. 7924 specifically authorizes the MMDA to perform "planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services," including transport and traffic management.40 Section 5 of the same law enumerates the powers and functions of the MMDA as follows: (e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations , whether moving or non-moving in nature, and confiscate and suspend or revoke drivers’ licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and In light of the administrative nature of its powers and functions, the MMDA is devoid of authority to implement the Project as envisioned by the E.O; hence, it could not have been validly designated by the President to undertake the Project. It follows that the MMDA cannot validly order the elimination of respondents’ terminals.
2. MMDA vs Garin Facts: Dante O. Garin, a lawyer, was issued a traffic violation receipt (TVR) and his drivers license confiscated for parking illegally along Gandara Street, Binondo, Manila, on 05 August 1995. The following statements were printed on the TVR: YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS CENTER PORT AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION FOR DISPOSITION/APPROPRIATE ACTION THEREON. CRIMINAL CASE SHALL BE FILED FOR FAILURE TO REDEEM LICENSE AFTER 30 DAYS. VALID AS TEMPORARY DRIVERS LICENSE FOR SEVEN DAYS FROM DATE OF APPREHENSION. [1]
Shortly before the expiration of the TVRs validity, the respondent addressed a letter [2] to then MMDA Chairman Prospero Oreta requesting the return of his drivers license, and expressing his preference for his case to be filed in court. Receiving no immediate reply, Garin filed the original complaint [3] with application for preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of Paraaque, on 12 September 1995, contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses, pre-empting a judicial determination of the validity of the deprivation, thereby violating the due process clause of the Constitution. The respondent further contended that the provision violates the constitutional prohibition against undue delegation of legislative authority, allowing as it does the MMDA to fix and impose unspecified and therefore unlimited - fines and other penalties on erring motorists. Issue: WON the Act of MMDA is valid Held: No. Section 5 of Rep. Act No. 7924 enumerates the Functions and Powers of the Metro Manila Development Authority. The contested clause in Sec. 5(f) states that the petitioner shall install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or nonmoving in nature, and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations, the provisions of Rep. Act No. 4136 [18] and P.D. No. 1605[19] to the contrary notwithstanding, and that (f)or this purpose, the Authority shall enforce all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose. Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded and in fact is duty-bound to confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs.[20] This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the purpose of laying down policies and coordinating with the various national government agencies, peoples organizations, nongovernmental organizations and the private sector, which may enforce, but not enact, ordinances. A last word. The MMDA was intended to coordinate services with metro-wide impact that transcend local political boundaries or would entail huge expenditures if provided by the individual LGUs, especially with regard to transport and traffic management,[23] and we are aware of the valiant efforts of the petitioner to untangle the increasingly trafficsnarled roads of Metro Manila. But these laudable intentions are limited by the MMDAs enabling law, which we can but interpret, and petitioner must be reminded that its efforts in this respect must be authorized by a valid law, or ordinance, or regulation arising from a legitimate source. 3. Province of Rizal vs Executive Secretary Facts: This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various concerned citizens for review on certiorari of the Decision of the Court of Appeals, denying, for lack of cause of action, the petition for certiorari, prohibition and mandamus with application for a temporary restraining order/writ of preliminary injunction assailing the legality and constitutionality of Proclamation No. 635. At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the Marikina Watershed Reservation were set aside by the Office of the President [President Ramos], through Proclamation No. 635, for use as a sanitary landfill and similar waste disposal applications. The petioners opposed the implementation of said order since the creation of dump site under the territorial
jurisdiction would compromise the health of their constutents. Moreso, the the dump site is to be constructed in Watershed reservation. Through their concerted efforts of the officials and residents of Province of Rizal and Municipality of San Mateo, the dump site was closed. However, during the term of President Estrada in 2003, the dumpsite was re-opened. A temporary restraining order was then filed. Although petitioners did not raised the question that the project was not consulted and approved by their appropriate Sanggunian, the court take it into consideration since a mere MOA does not guarantee the dump site’s permanent closure. Issue: Whether or not the consultation and approval of the Province of Rizal and municipality of San Mateo is needed before the implementation of the project.. Ruling: The
court
reiterated
again
that
"the
earth
belongs
in
usufruct
to
the
living."
Yes, as lucidly explained by the court: contrary to the averment of the respondents, Proclamation No. 635, which was passed on 28 August 1995, is subject to the provisions of the Local Government Code, which was approved four years earlier, on 10 October 1991. Section 2(c) of the said law declares that it is the policy of the state- "to require all national agencies and offices to conduct periodic consultation with appropriate local government units, non-governmental and people's organization, and other concerned sectors of the community before any project or program is implemented in their respective jurisdiction." Likewise Section 27 requires prior consultations before a program shall be implemented by government authorities ans the prior approval of the Sanggunian is obtained." Corollarily as held in Lina , Jr. v. Paño, Section 2 (c), requiring consultations with the appropriate local government units, should apply to national government projects affecting the environmental or ecological balance of the particular community implementing the project. Relative to the case, during the oral arguments at the hearing for the temporary restraining order, Director Uranza of the MMDA Solid Waste Management Task Force declared before the Court of Appeals that they had conducted the required consultations. However, the ambivalence of his reply was brought to the fore when at the height of the protest rally and barricade made by the residents of petitioners to stop dump trucks from reaching the site, all the municipal mayors of the province of Rizal openly declared their full support for the rally and notified the MMDA that they would oppose any further attempt to dump garbage in their province. Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants the sangguniang bayan the power to, among other things, “enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16 of th(e) Code.” These include: (1) Approving ordinances and passing resolutions to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of endangered species of flora and fauna, slash and burn farming, and such other activities which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section 447 (1)(vi)] (2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of this Code;[Section 447 (2)(vi-ix)] (3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in addition to said services and facilities, …providing for the establishment, maintenance, protection, and conservation of communal forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects ….and, subject to existing laws, establishing and providing for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and purifying the source of the water supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and regulating the consumption, use or wastage of water.”[Section 447 (5)(i) & (vii)] Briefly stated, under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: (1)prior consultation with the affected local communities, and (2)prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal. B. With other LGUs 1. The province, thru the governor, shall ensure that every competent city and municipality w/in its territorial jurisdiction acts w/in the scope of its prescribed powers and functions. o HUCs shall be independent of the province - Except as otherwise provided under the constitution and special statutes, the governor shall review all E.O.s promulgated by the component city or municipal mayor w/in his jurisdiction; City or Mun. Mayor shall review all EO promulgated by the punong brgy w.in his jurisdiction. - If the gov or city or mun mayor fails to act on said eo w/in 30 days from submission, the same shall be deemed consistent w/ law and therefore valid 2. In the absence of Mun Legal Officer, the Municipal Govt may secure the opinion of the provincial legal officer, and in the absence of the latter, that of the provincial prosecutor on any legal question affecting the municipality 3. The city or municipality thru the city or municipal mayor shall exercise general supervision over competent barangays to ensure that said brgys act w/in the scope of their prescribed powers and functions 4. LGUs may thru their appropriate ordinances, group themselves, consolidate or coordinate their efforts, services and resources for purposes commonly beneficial to them. In support of such undertakings, the LGU may, upon approval by the sanggunian after a public hearing conducted for the purpose, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating LGU. VI. Local Initiative and Referendum d. Local Initiative i. Definition It is the legal process whereby the registered voters of a lgu may directly propose, enact or amend any ordinance. It may be exercised by all registered voters of the provinces, cities, municipalities and the brgys. ii. Procedure a. Not less than 2000 registered voters in the region, 1000 in case of voters in case of provinces and cities, 100 voters in case of municipalities, and 50 in case of brgys, may file a petition w/ the sanggunian concerned proposing the adoption, enactment, repeal or amendment of an ordinance (sec 13. RA 6735) b. If no favorable action is taken by the sanggunian concerned w/in 30 days from presentation, the proponents, thru their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sanggunian concerned. iii. Limitations
e. Local Referendum i. Definition - The legal process whereby the registered voters of the LGU may approve, amend or reject any ordinance enacted by the sanggunian. - The local referendum shall be held under control and direction of the COMELEC o w/in 60 days in case of provinces o 45 days in case of municipalities o 30 days in case of brgys - Comelec shall certify and proclaim results of said referendum -
View more...
Comments
