Pub Corp Case

EN BANC

G.R. No. 94115 August 21, 1992

RODOLFO E. AGUINALDO, petitioner, vs.HON. LUIS SANTOS, as Secretary of the Department of Local Government, and MELVIN VARGAS, as Acting Governor of Cagayan, respondents.

Victor I. Padilla for petitioner.

Doroteo B. Laguna and Manuel T. Molina for private respondent.

NOCON, J.:

In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the 1987 Constitution.

The pertinent facts are as follows: 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. 1

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.

During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion was denied.

Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the Vice-Governor of Cagayan.

Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could not appoint respondent Melvin Vargas as Governor of Cagayan; and (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.

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While this case was pending before this Court, 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. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as a candidate for governor pending the final outcome of the disqualification cases with his Court.

Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitledRodolfo 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.

Under the environmental circumstances of the case, We find the petition meritorious.

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. As held by this Court in Aguinaldo v. Comelec et al., supra,:

. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he received 170,382 votes while the other candidates for the same position received the following total number of votes: (1) Patricio T. Antonio — 54,412, (2) Paquito F. Castillo — 2,198; and (3) Florencio L. Vargas — 48,129.

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Considering the fact narrated, 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. 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

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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.

The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has been repealed by the 1987 Constitution and which is now vested in the courts.

We do not agree. 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. 4 The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows —

Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite called for the purpose. 5

A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment, and removal, term and salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. 6

Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said that BP Blg. 337 was repealed by the effective of the present Constitution.

Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved.

The power of respondent Secretary of the Department of Local Government to remove local elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8

As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ —

In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or isremoved from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vice-governor . . . shall assume the office for the unexpired term of the former. 9

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. 10

WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government dated March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ., concur.

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Melo, J., took no part.

Footnotes

1 See the text of the letter as quoted in the Decision of respondent Secretary, pp. 4-6.

2 The validity of respondent Secretary's action was upheld by this Court in Santos vs. Villacete, G.R. No. 91522, January 25,1990.

3 G.R. Nos. 105128-30, Rodolfo E. Aguinaldo vs. Comelec, Florencio Vargas, Luzviminda Villaflor and Alfonso Purugganan, prom. June 9, 1992, pp. 3, 4-5.

4 Citizen J. Antonio Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992; Federation of Free Workers vs. Inciong, 161 SCRA 295 (1988); Villena vs. Secretary of Interior, 67 Phil. 451 (1951).

5 Emphasis supplied.


7 G.R. No. 87233, September 21, 1989.

8 Sec. 60. Suspension and Removal; Grounds. — An elective local official may be suspended or removedfrom office on any of the following grounds committed while in office:

(1) Disloyalty to the Republic of the Philippines;

(2) Culpable violation of the Constitution;

(3) Dishonesty, oppression, misconduct in office and neglect of duty;

(4) Commission of any offense involving moral turpitude;

(5) Abuse of authority;

(6) Unauthorized absence for three consecutive months.


10 Ang Tibay vs. CIT, 69 Phil. 635; Air Manila, Inc. vs. Balatbat, 38 SCRA 489.

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EN BANC

[G.R. Nos. 117589-92. May 22, 1996]

ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, respondents.

D E C I S I O N

DAVIDE, JR., J.:

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.

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We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, Office of the Solicitor General invites the attention of the Court to the following:

(a) While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause.

(b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension periods.

(c) If upheld, Administrative Order No. 15 would be used as a strong ground in filing cases against petitioners for violations of the Anti-Graft and Corrupt Practices Act.

(d) Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case.

(e) The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners.

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations.

The Ad Hoc Committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar.

On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President.

On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus:

The finding of the Ad-Hoc Committee in O.P. Case Nos. 5470, 5469, 5471 and 5450 are as follows:

I. O.P. Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice- Governor Danilo Azaña, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana, Ramon Fernandez, Jr., Masikap-Fontanilla, and Wilbor Rontas.

Docketed as O.P. Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the “Local Government Code.”

The antecedent facts are as follows:

On 4 June 1990, the Supreme Court in the case entitled “National Power Corporation (NPC) v. The Province of Albay, et al.,” G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987.

Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC’s real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the “Real Property Tax Decree.”

Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the “Province”) to satisfy NPC’s tax liabilities. Being the sole bidder at the auction, the Province acquired ownership over said properties.

On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of Agreement (“MOA”) [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76.

Under the MOA, the parties agreed that:

- the actual amount collectible from NPC will have to be recomputed/revalidated;

- NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement;

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- the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and

- ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC’s properties are located (“concerned barangays”) relative to the payments made by NPC (Exh. B).

On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-92 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments.

On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an “earnest money” and that the total amount to be collected from NPC was still being validated (Exh. I).

Not satisfied with respondent Salalima’s response, Mayor Corral complained to NPC about the Province’s failure to remit Tiwi’s and the concerned barangays shares in the payments made by NPC (Exh. 50-C).

On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20).

Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A).

Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,43 1.58 or a total of P27,442,364.15 from the general fund to satisfy “prior years” obligations and to implement certain projects of the Province. These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively.

On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC’s tax liability. He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel Carpio’s letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:

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The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC’s liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.

The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only established the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province.

Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same.

Please be guided accordingly.

Very truly yours,

(Sgd.) ANTONIO T. CARPIOChief Presidential Legal Counsel

Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exhs. Ito I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail.

Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed. President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares.

As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows:

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Payment Dates Amount

July 29, 1992 P17,763,000.00Sept. 3, 1992 4,660,255.80Oct. 5, 1992 6,820,480.12Nov. 5, 1992 5,740,367.96Dec. 9, 1992 5,740,367.66

Total P40,724,471.74

On 19 December 1992, in an apparent reaction to NPC’s decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others:

- authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and

- declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA.

Realizing from the actuations of the respondents that Tiwi’s share in the P40,724,47 1.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993.

In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved.

Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions; read:

SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax or real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted.

SEC. 39. Rates of Levy. - The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows:

(1) In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property;

(2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and

(3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property.

SEC. 41. An additional one percent tax on real property for the Special Education Fund. - There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by P.D. No. 1913)

SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit.

(b) Barrio shares on real property tax collections. -The annual shares of the barrios in real property tax collections shall be as follows:

(1) Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue in the barrio where the property subject to the tax is situated.

(2) In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated.

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SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund.

(b) The entire proceeds of the additional one percent real property tax levied for the Special Education Fund created under RA. No. 5447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows:

(1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD. No. 1969)

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(c) The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course.

x x x x x x x x x (Italics supplied)

The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same. It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of P.D. No. 464.

And apart from said basic tax, the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF).

In accordance with the authority conferred upon them by P.D. No. 464, the following tax resolutions or ordinances were passed:

By the Province –

Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No.4 whose Section 1, provides:

There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property.

By the Municipality of Tiwi –

Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value of real property.

By the Municipality of Daraga –

Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:

Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Italics supplied)

Applying said rates of levy, the real property taxes collectible from the NPC are:

1. A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and

2. The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPC’s real properties.

On the other hand, sharing on said taxes, shall be as follows:

1. On the basic tax:

Province 47.5%

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Municipality 47.5% Barangay 5.0%

Total 100.0%

2. On the additional tax pertaining to the SEF:

Province 25.0% Municipality 55.0% National Government 20.0

Total 100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays; and the national government, as follows:

Province Municipalities Barangay Natl. Gov’t.

Basic Tax

P9,672,062.04 9,672,062.04 1,018,111.79 none

SEF

4,072,447.18 10,181,117.93 none 6,108,670.76

Total

P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76

This shows that the Province is entitled only to P 13,744,509.21 of the P40,724,47 1.74 aggregate payments by NPC. On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government.

The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province.

This is untenable. The law clearly provides that ‘the proceeds of all the delinquent taxes and penalties as well as the income realized from the x x x disposition of real property acquired by the province or city at a public auction x x x, and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course’ (Sec. 87(c) supra).

It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale. What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law.

This was the import and essence of Chief Presidential Legal Counsel Carpio’s opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance the Province of Albay.

Likewise, it is axiomatic that while ‘contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient,’ they may not do so if these are ‘contrary to law, morals, good customs, public order or public policy’ (Art. 1306, New Civil Code).

Also relevant to the discussion are the following provisions of the Local Government Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury. - Officers of Local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong.

SEC. 308. Local Funds. - Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund.

SEC. 309. Special Funds. - There shall be maintained in every provincial, city, or municipal treasury the following special funds:

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(a) Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and

(b) Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government unit . (Italics supplied)

These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the ‘Administrative Code of 1987.’

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province’s general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,47 1.74 NPC payments as ‘surplus adjustment’ (Account 7-92-4 19) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAO) of the Commission on Audit (COA) further support our findings, thus -

xxx xxx xxx

Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are summarized below:

1. The remittances of the NPC of the P40,724,471 .74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of P.D. 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of P.D. No. 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government.

xxx xxx xxx

2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-4 19) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government, As of December 31, 1992, the balance of the account was only P25,668,653. 12 thus, stressing that P15,255,818.62 was spent. x x xUnder the General Fund, cash available was only P4,92 1,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their baran gays where the properties are located. (pp. 4 and 16; (Italics supplied)

xxx xxx xxx

As pointed out earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21. Any disbursements exceeding this amount would therefore be illegal.

This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province’s general fund was only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province’s general fund, P35,803,118.30 was disbursed or spent by the Province. This exceeds the P13,744,509.21 share of the Province by P22,058,609.09.

The foregoing may be illustrated as follows:

NPC Payments received by the Province P40,724,471.74

Less Actual Cash Balance(general fund)

as of 12-31-92 - 4,921,353.44 P35,803,118.30

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Less Share of the Province 13,744,509.21

Amount Illegally Disbursed by the Province P22,058,609.09

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share.

Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 ‘surplus adjustment’ that includes the ‘trust funds’ not belonging to the Province. Even assuming that Resolution No. 178-92 authorizing the expenditure of P9,778,932.57 were to be taken from the Province’s share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that ‘(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law’ (par. [a], Sec. 305, Republic Act No. 7160).

Respondents raise the common defense that the findings contained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom.

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

Respondents’ contention that COA’s factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report 93-11 to enable this Committee to evaluate the merits of the instant complaint.

We also reject respondent Azaña’s defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability.

The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaña is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that resolutions or ordinances passed are within the bounds of the law. He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues.

This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus –

SEC. 304. Scope. - This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays.

SEC. 305. Fundamental Principles. - The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles:

xxx xxx xxx

(1) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

x x x x x x x x x (Italics supplied.)

It cannot be denied that the Sangguniang Panlalawigan has control over the Province’s ‘purse’ as it may approve or not resolutions or ordinances generating revenue or imposing taxes as well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects.

Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called ‘fundamental’ principles enunciated under the Local Government

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Code, i.e., ‘No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received’ (Sec. 305, R.A. 7160).

All the respondents could not claim ignorance of the law especially with respect to the provisions of P.D. No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund. Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries.

As a public officer, respondent Azaña (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government. When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations. If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence of any sort was shown in this regard by respondent Azaña.

Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92.

The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority. Moreover, the illegal disbursements made can qualify as technical malversation.

This Committee, thus, finds all the respondents guilty of abuse of authority, and accordingly, recommends the imposition of the following penalties of suspension without pay:

a. Respondent Salalima – five (5) months; and

b. All the other – four (4) months each. respondents

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469.

The antecedent facts are as follows.

Because of the refusal by the National Power Corporation (“NPC”) to pay real property taxes assessed by the Province of Albay (“the Province”) covering the period from 11June 1984 up to 10 March 1987 amounting to P2 14,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale.

As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same.

Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax.

On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed its comment on the NPC petition with the Supreme Court.

On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-I) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC.

On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a

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memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm.

Respondent Salalima signed the retainer agreement.

On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the Province to answer for NPC’s tax liabilities.

Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-l) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago:

Particulars Claimant/Payee Amount

Disbursement Cortes & Reyna P50,508.75Voucher (DV)No. 4, Jan.8, 1990Check No.

931019

DV No. 1889 Atty. Antonio Jose Cortes P1,421,040.00Aug. 13, 1992.Check No.

236063-S

DV No. 1890 Atty. Jesus R. Cornago P1,786,300.00Aug. 13, 1992Check No.

236064-S

DV No. 2151 Atty. Antonio Jose Cortes P838,85 1.44Sept. 28,1992, Check

No. 238174-S

DV No. 2226 Atty. Antonio Jose Cortes P886,662.40Oct. 8,. 1992Check No.

239528-S

DV No. 2227 Atty. Jesus R. Cornago P341,024.00Oct. 8, 1992Check No.

239529-S

DV No. 2474 Atty. Jesus R. Cornago P287,018.40Nov. 6, 1992Check No.250933

DV No. 2475 Atty. Antonio Jose Cortes P746,247.83Dec. 9, 1992Check No.253163

DV No. 2751 Atty. Antonio Jose Cortes P747,247.84

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Dec. 9, 1992Check No.253163

DV No. 2752 Atty. Jesus R. Cornago P287,018.40Dec. 9, 1992Check No.253164 ____________

TOTAL P7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña. The rest were approved by respondent Governor.

In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney’s fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA, with the following notation:

The disbursement vouchers detailed hereunder represent payments for attorney’s fees of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 87479 NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent,’ Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite ‘prior written conformity and acquiescence of the Solicitor General x x x as well as the written concurrence of the commission on Audit’ as provided for and required under COA Circular No. 86-255 dated April 2, 1986, re: ‘Inhibition against employment by government: agencies and instrumentalities x x x of private lawyers to handle their legal cases,’ viz.

The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7, 380, 410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney’s fees.

The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the Province.

We find merit in the complaint and hold that under the circumstances surrounding the transaction in question the respondents abused their authority.

Sec. 481 of the Local Government Code (R.A. No. 7160) requires the appointment of a legal officer for the province whose functions include the following:

Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions xxx

It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok.

In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court.

Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2 April 1986.

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The respondents attempted to dispute this finding by presenting the Solicitor General’s conformity dated 15 July 1993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 86-255 is a prior written conformity and acquiescence of the Solicitor General.

Another irregularity in the transaction concerns the lawyers. Resolution No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retained contract itself:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

xxx xxx xxx

Very truly yours,

CORTES & REYNALAW FIRM

- and -

Atty. JESUS R. CORNAGOJarnecca Building

280 Tomas Morato Avenue

by:

(Sgd.) ANTONIO JOSE F. CORTES

With my conformity:

(Sgd.) GOV. ROMEO R. SALALIMAProvince of Albay

(Italics supplied.)

In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G.R. No. 87479). We quote the entry of appearance of Any. Cornago in full in said case:

APPEARANCE

COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below.

Quezon City, for Manila, August 24, 1989.

(Sgd.) JESUS R. CORNAGOCounsel for Respondents280 Tomas Morato AvenueQuezon CityPTR No. 561005-’89 MandaluyongIBP No. 279351-’89 Pasig, MM

With my conformity:

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(Sgd.) ROMEO R. SALALIMARespondent

Office of the Governor of AlbayLegaspi City

Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province’s Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Italics supplied)

Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479.

Finally, the attorney’s fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the ”P2l4 million” claim of the Province against NPC amounts to P38.5 million. The word “unconscionable,” as applied to attorney’s fee, “means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him.” (Moran, Comments on the Rules of Court, Vol. 6, p. 236.)

The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC’s petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million.

Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA:

May I ask a question Governor, what was your basis for choosing this particular Law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it?

GOVERNOR SALALIMA:

Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.

SECRETARY CORONA:

Were you classmates?

GOVERNOR SALALIMA:

No.

SECRETARY CORONA:

How many years apart were you?

GOVERNOR SALALIMA:

Two (2) years.

SECRETARY CORONA:

So, you knew each other from the law school?

GOVERNOR SALALIMA:

Yes.

SECRETARY CORONA:

Were you members of the same fraternity in San Beda?

GOVERNOR SALALIMA:

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Yes.

(TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney’s fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney’s fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority.

Parenthetically, the retainer contract containing such exorbitant attorney’s fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1) of the Local Government Code.

In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following:

1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479;

2. Disbursing public money in violation of COA rules and regulations;

3. Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case;

4. Authorizing an unconscionable and grossly disadvantageous attorney’s fees of P38.5 million; and

5. Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 0 1-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out:

a. Respondents Salalima – six (6) months and Azaña each; and

b. All the other respondents – four (4) months

each.

III. OP Case No. 5471

This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for “abuse of authority and oppression” under Sec. 60 (c) and (e) of R.A. No. 7160.

The antecedent facts are as follows:

On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azana for abuse of authority, misconduct in office and oppression. This administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8- 93), arose from the refusal of said respondents to remit Tiwi’s share in the P40,724,47 1.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 54790 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas.

Subsequently, Mayor Corral became the subject of several administrative and criminal complaints filed by certain individuals with the following offices:

a. Achilles Berces v. Mayor Naomi Corral

(1) Albay Sangguniang Pan lalawigan, Adm. Case No. 02-92(2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92(3) Office of the Ombudsman, OMB Adm. Case No. 1930163

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(4) Office of the Ombudsman, OMB Case No. 0930682(5) Office of the Ombudsman, OMB-092-3008

b. Muriel Cortezano v. Mayor Naomi Corral

(6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93(7) Office of the Ombudsman, OMB-0-92-3000

c. Amelia Catorce v. Mayor Naomi Corral

(8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93

d. Aida Marfil v. Mayor Naomi Corral

(9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93(10) Office of the Ombudsman, 0MB Case No. 5-93-0110

e. Rodolfo Belbis v. Mayor Naomi Corral

(11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93(12) Office of the Ombudsman, 0MB Case No. 0-93-0098

f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral

(13) Office of the Prosecutor, I.S. No. 93-046 (for Libel). Legaspi City

g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral

(14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City(15) Office of the Prbsecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City

or a total of fifteen (15) cases.

On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18).

On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18).

On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus:

Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter’s refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined.

In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted.

On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that “the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence,” placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2).

Respondent Salalima subsequently sought the reversal of the OP Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled “Salalima v. the Hon. Executive Secretary,” G.R. No. 108585 (Exh. E).

On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92,06-93,07-93,09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondent-members of the Sangguniang Panlalawigan assuming jurisdiction over the cases.

After conducting marathon hearings, respondent-members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension:

1. In Adm. Case No. 02-92 - suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]);

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2. In Adm. Case No. 05-92 - suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. 0 to G-2]);

3. In Adm. Case No. 06-93 and 07-93 - suspension for one (1) month (see Resolution dated 8 July 1993, (Exhs. H to H-3]); and

4. In Adm. Case No. 10-93 - suspension for the period of unexpired term (see Resolution dated 9 July 1993, (Exhs. I to 1-2]).

On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending

Mayor Corral “by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adheres thereto.”

Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed.

On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to J-2).

Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-i).

Also, with respect to Adm. Case Nos. 6-93 and 7- 93, the Civil Service Commission (CSC) issued Resolution Nos. 93- 005 (dated 5 January 1993) and 92- 817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases. The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2).

In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2).

In determining whether respondents are guilty of the charges levelled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent- members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority?

“Oppression” has been defined as an “act of cruelty, severity, unlawful exaction, domination or excessive use of authority.” (Ochate v. Ty Deling, L- 13298, March 30, 1959, 105 Phil. 384, 390.)

“Abuse” means “to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one’s authority” (Black’s Law Dictionary <5th Ed.>, II). It includes “misuse” (City of Baltimore t’. Cornellsville & S.P. Ry, Co., 6 Phils. 190, 191, 3 Pitt 20, 23).

Moreover, Section 63(d) of R.A. No. 7 160 expressly states that, “[a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority.”

Now, does the above narration of facts show commission by respondents of the administrative offenses complained of?

A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.

Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed.

Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases.

The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 6 1(b) of R.A. No. 7160, “[a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President.”

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WHEREFORE, thecharges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay.

IV. OP Case No. 5450

This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of - Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended.

This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450.

The facts as found by this Committee are as follows:

On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1).

On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh. 37).

On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1).

On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days.

The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41).

On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. 1) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days.

Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42).

In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of P.D. No. 1594 as RYU incurred delay with respect to the first contract.

We find merit in the complaint:

Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item lB of the implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read:

CI 8 - LIQUIDATED DAMAGES

1. Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for liquidated damages, and not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government:

xxx xxx xxx

2. To be entitled to such liquidated damages, the Government does not have to prove that it has incurred actual damages. Such amount shall be deducted from an) money due or which may become due the contractor under the contract and/or collect such liquidated damages from the retention money or other securities posted by the contractor whichever is convenient to the Government.

CI 1 - Extension of Contract time

1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extent of the delay and shall extend the

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contract time for completing the contract work when, in the Government’s opinion, the finding of facts justify an extension.

xxx xxx xxx

IB 10.4.2 - By Negotiated Contract

1. Negotiated contract may be entered into only where any of the following conditions exists and the implementing office/agency/corporation is not capable of undertaking the project by administration:

xxx xxx xxx

c. Where the subject project is adjacent or contiguous to an ongoing project and it could be economically prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Italics supplied)

A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government.

Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992.

This is confirmed by the COA through SAO Report No. 93-11 (Exh. N), thus -

xxx xxx xxx

xx x The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation

Billing As of Days Lapsed %Accomplishment

First Dec. 2, 1991 130 26.48

Second Jan. 8, 1992 187 53.19

Third Feb. 10, 1992 100 75.23

Final June 2, 1992 202 100.00

In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not attached to the claims of the contractor or paid vouchers. Unfortunately, the Provincial Engineer could not provide said document as the Engineering Office had not issued any. In effect, there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [Italics supplied]

Respondent Salalima failed to submit any evidence concerning any order issued by the Provincial Government extending RYU Construction’s contract.

The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any “delay” after the contract expires.

Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public market being the signatory to the first contract.

Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction.

Going to the second charge, we find that respondent Salalima unmistakably violated the provisions of P.D. No. 1594, as amended.

Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of P.D. No. 1594, construction projects shall generally be undertaken by contract after “competitive bidding.” By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the

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award of the contract which otherwise might prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil. Inc. v. Delgado Bros., 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66 Phil. 68).

This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance.

And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation works for the Tabaco Public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal.

Finally, said contract may also be violative of the following: (a) COA Circular No. 85-55-A. (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3(e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondent Salalima for five (5) months. (pp. 2-35)

The President then concluded and disposed as follows:

After a careful review of the cases, 1 agree with and adopt the findings and recommendations of the Ad Hoc Committee, supported as they are by the evidence on record.

WHEREFORE, the following penalties are meted out on each of the respondents, to wit:

In OP Case No. 5470 -

a. Governor Romeo Salalima - suspension without pay for five (5) months:

b. Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas - suspension without pay for four (4) months.


a. Governor Romeo Salalima and Vice-Governor Danilo Azaña - suspension without pay for six (6) months; and

b. Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao - suspension without pay for four (4) months;


a. Governor Romeo Salalima and Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao – suspension without pay for four (4) months;


a. Governor Romeo Salalima - suspension without pay for five (5) months.

The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66(b) of the Local Government Code.

It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. O.P. Case No. 5471 is the administrative complaint filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition.

As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise:

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I. Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the petitioners for periods ranging from twelve to twenty months?

II. Did the Office of the President commit grave abuse of discretion in deciding O.P. Cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners’ appeal to the COA en bane from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)?

III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful share in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement?

IV. Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989?

V. Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60(e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government Code of 1991, thereby depriving them of due process of law?

We shall take up these issues in the order they are presented.

I

Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process. Their suspensions ranging from twelve months to twenty months or for the entire duration of their unexpired term, which was then only seven months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court.

The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners’ term of office, did not change its nature as to amount to removal.

Section 66(b) of R.A. No. 7160 expressly provides:

SEC. 66. Form and Notice of Decision. - x x x

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office.

This provision sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense.[1] An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads:

SEC. 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(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 fifteen (15) consecutive working days, except in the case of members of the sangguniang panialawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

(g) Acquisition for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

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Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases arc correct, 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] And this Court is not prepared to rule that the suspension amounted to the petitioners’ removal from office.[3]

II

Petitioners contend that the decisions in OP. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit EnBanc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93- 11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB.

This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows:

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA nierely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

Respondents’ contention that COA’s factual findings, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint.

The alleged appeal from the CSB is unclear from the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised.

We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of the administrative cases.

It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution “to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters” and its “exclusive authority .. . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.”[4]

III

As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and not of a tax, which debt “arose from and was a consequence of, the Memorandum of Agreement dated July 29, 1992.” They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) [5] is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SEF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province.

It must be recalled that in August 1992, Governor Sal alima and NPC President, Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774 72. [6]But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section

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39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P 129,609,859.20.[7] Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province. His reply reads as follows:

September 9, 1992

Hon. Pablo V. MalixiPresident, National PowerCorporationDiliman, Quezon CityDear President Malixi:

As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:

(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No.4, whose Section I, provides:

“There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent of the assessed value of real property.”

(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

“That the tax rate of real property shall be one-half of one percent of the assessed value of real property.”

(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga. Albay, whose Section 3 provides:

“Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of the real property.”

These tax ordinances were in pursuance to Sec. 39 (1)(3) of P.D. 464, the applicable law during the period 1984 to 1987. By adding the one half percent imposed in the tax Ordinance of Tiwi to the one ha If percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi.

On the real properties in Daraga, we also added the one half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance.

The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of P.D. 464, which provides as follows:

“There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; x x x”

We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEP in arriving at P207,375,774.72.[8] (Italics supplied).

The petitioners even emphasized in the instant petition that “Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations.” In other words, the original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned.

Hence, 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

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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.

The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement:

WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987;

WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY;

WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P2 14,845, 184.76;

NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter provided, the parties hereto have agreed as follows:

1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby acknowledged.

2. The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992.

3. Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable.

4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991.

5. In consideration of settlement of NAPOCOR ‘s tax liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR’ properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY.[13] (Italics supplied).

The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties “in consideration of settlement of Napocor’s tax liability.”

Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price.

The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC’s tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads:

Date: July 29, 1992Received from National Power Corp.Manila

In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,000.00.

In payment of the following:

For Partial Payment = P17,763,000.00of Realty Tax Delinquency of Case No. 87479, NPC

vs. Province of Albay

Total P17,763,000.00

(Sgd.) Abundio M. NuñezProvincial Treasurer[14]

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Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: “That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay.”

Moreover, in Resolution No. 197-92, the petitioners referred as “tax benefits” the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows:

WHEREAS, by virtue of the Memorandum Agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay;

WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,4 16.82 respectively and the barangays Bay in Lingao (sic) to P319.00 and Tagoytoy in Malinao to P98 1.00;

WHEREAS, these tax benefits due them are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation.[15] (Italics supplied)

As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears Additionally, there would have been no need for the parties “to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184 76”

Clearly, the P40,724,471 74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears.

It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the NPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in regular course conformably with Section 87(c) of the Real Property Tax Code, which provides:

(c) the proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province, city or municipality in the same proportion as if the tax or taxes had been paid in regular course.

As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P 17,763,000.00 was merely an “earnest money.” Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA.

The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sanggunian Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that “Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations.”

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 province’s 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, which provides:

Trust funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator ...A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President:

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon

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receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province’s general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, P.D. No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as ‘surplus adjustment’ (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daiaga the amount of P40,724,471.74 paid by the NPC.

IV

We agree with the petitioners that Governor Salalima could no longer be held administratively liable in O.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija[17] and Aguinaldo vs. Santos.[18] In Pascual,this Court ruled:

We now come to one main issue of the controversy - the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office.

In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe.

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 Com’rs. 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 officer’s 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.

This Court reiterated this rule in Aguinaldo and explicitly stated therein:

Clearly 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 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.

However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official’s reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected.

The rule adopted in Pascual, qualified inAguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his

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previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts, alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not be held administratively liable in O.P. Case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet.

Having thus held that the petitioners could no longer be administratively liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue.

WHEREFORE, the instant special action for certiorari is hereby partly GRANTED. That part of the challenged Administrative Order No. 153 imposing the penalty of suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo Azaña and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE, without prejudice to the filing of appropriate civil or criminal actions against them if warranted by the attendant circumstances.

No pronouncement as to costs.

SO ORDERED.Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,

Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.Regalado, J., took no part. Related to one counsel in G.R. No. 87479 which is involved in this

case.

[1] See also Article 131, Rules and Regulations Implementing the Local Government Code of 1991.[2] Section 2, Article XVIII, 1987 Constitution; Section 43, Local Government Code of 1991.[3] The Office of the President is without any power to remove elected officials, since such power is exclusively vested in

the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60. Parenthetically, it may be observed that Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991 grants to the disciplining authority the power to remove an elective local official. Paragraph (b) of the said Article provides as follows:

(b) An elective local official may he removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, The Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. (Italics supplied)

This grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. It is settled that no rule or regulation may alter, amend, or contravene a provision of law, like the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. (Regidor vs. Chiongbian, 173 SCRA 507 [1989]. See also Teoxol vs. Members of the Board of Administrators, PVA, 33 SCRA 585 [1970]; Manuelvs. General Auditing Office, 42 SCRA 660 [1971]). No less than then principal author of the Local Government Code of 1991, Senator Aquilino Q. Pimentel, Jr., expresses doubts on the validity of this power of removal on the part of the disciplining authority which the Oversight Committee inserted in the Rules and Regulations. (AQUILINO Q. PIMENTEL, JR., The Local Government Code of 1991, The Key to National Development 171 [1993 ed.]).

The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, fOr involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not he permitted to manipulate the law by usurping the power to remove by arbitrarily exercising the power to suspend in a manner

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that results in the removal of an elected official from office. As we aptly stated in Lacson vs. Roque (92 Phil. 456, 464 [1953]):

[T]he abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove.

The rationale against indefinite preventive suspension decreed in Layno vs. Sandiganbayan (136 SCRA 536 [1985]) and in Ganzon vs. Court of Appeals (200 SCRA 271 [1991]) may equally apply to the imposition of suspension us a penalty and must guide the action of disciplining authorities in imposing the penalty of suspension on elective local officials.

[4] See Caltex vs. Commission on Audit, 208 SCRA 726 [1992][5] 70 O.G. No.26 [1 July 1974], 5272-5313.[6] Annexes “N” and “O” of Petition; Rollo, 147-148.[7] Annex “P,” id.; id., 149.[8] Annex “Q” of Petition; Rollo, 151-152.[9] Section 75, Real Property Tax Code.[10] Section 81, Id.[11] Section 78, Id.[12] Section 81, Real Property Tax Code.[13] Annex “K” of Petition; Rollo, 143-144.[14] Annex “5” of Respondents’ Comment; Rollo, 325.[15] Annex “10” of Respondents’ Comment, Rollo, 328.[16] Fortunately, the Municipalities of Tiwi and Daraga and the National Government eventually received their respective

shares, which were paid directly to them by the NPC pursuant to the directive of the Office of the President issued after the NPC requested clarification regarding the right of the municipalities concerned to share in the realty tax delinquencies. But this fact does not detract from the administrative liability of the petitioners. Notably, when the NPC advised the Province of Albay on 9 December 1992 that starting with the January 1993 installment it would pay directly to the Municipality of Tiwi by applying the sharing scheme provided by law, the petitioners passed on 19 December 1992 an ordinance declaring as forfeited in favor of the Province all the payments made by the NPC under the MOA and authorizing the sale of the NPC properties at public auction. This actuation of the petitioners reveals all the more their intention to deprive the municipalities concerned of their shares in the NPC payments.

[17] 106 Phil. 466 [1959].[18] 212 SCRA 768 [1992].

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EN BANC

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,

- versus -

OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON,SALVADOR ADUL, and AGNES FABIAN, Respondents,

G.R. No. 180917 Present: PUNO, C.J.,CARPIO,CORONA,CARPIO MORALES,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ, andMENDOZA, JJ. Promulgated: April 23, 2010

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the

December 13, 2007 Resolution of the Court of Appeals[1] in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman’s

decision finding them guilty of Simple Neglect of Duty.

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, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom

building with fence (the projects) for the Tagkawayan Municipal High School [2] (TMHS) since the public school in the poblacion area

would no longer admit high school freshmen starting school year 2002-2003. 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 based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

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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 mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-

going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said “I” because up to the time of the failed 2 biddings I have shouldered the “vale” of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact, payments for the expenses on these 2 projects have been made only starting 19 March 2002 . x x x[4] (underscoring supplied)

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.

Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring

the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by

Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the

Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor’s Office.

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and

Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for

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a maximum period of six months with a stern warning against a similar repetition. It also approved on November 2, 2006 the March

27, 2006 Order[7] denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The

verification portion of the petition does not carry a certification against forum shopping.[8]

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against

forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the

discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for

dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.[9]

Petitioners’ disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied

by Resolution of January 15, 2008[10] for non-compliance with the required showing of competent proof of identity in the Affidavit of

Service. The Court, by Resolution of March 4, 2008,[11]later granted their motion for reconsideration with motion to admit appeal

(Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion[12] filed a day later, petitioners prayed only for the admission of nine additional copies

of the Motion with Appeal “due to honest inadvertence” in earlier filing an insufficient number of copies. Petitioners were less than

candid when they surreptitiously submitted a Motion with Appeal which is different from the first set they had submitted. The second

set of Appeal includes specific Assignment of Errors[13] and already contains a certification against forum shopping[14] embedded in the

Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number.[15] The rectified verification with certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

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.

The Court rejects petitioners’ thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija[17] issued the landmark ruling that

prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The

Court explained that “[t]he 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 previous misconduct to the extent of cutting off the right to remove him therefor.”[18]

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 elect[e]d 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 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.[19] (underscoring supplied)

Lizares v. Hechanova, et al.[20] replicated the doctrine. The Court dismissed the petition in that case for being moot, the

therein petitioner “having been duly reelected, is no longer amenable to administrative sanctions.”[21]

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Ingco v. Sanchez, et al.[22] clarified that the condonation doctrine does not apply to a criminal case .[23] Luciano v. The

Provincial Governor, et al.,[24]Olivarez v. Judge Villaluz,[25] and Aguinaldo v. Santos[26] echoed the qualified rule that reelection of a

public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator

and a Member of the House of Representatives.[27]

Salalima v. Guingona, Jr.[28] and Mayor Garcia v. Hon. Mojica[29] reinforced the doctrine. The condonation rule was applied

even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct

occurred four days before the elections, respectively. Salalimadid not distinguish as to the date of filing of the administrative

complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did

not further distinguish, as long as the wrongdoing that gave rise to the public official’s culpability was committed prior to the date of

reelection.

Petitioners’ theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor[30] where the Court found no basis to broaden the scope of

the doctrine of condonation:

Lastly, We do not agree with respondent’s contention that his appointment to the position of president of

NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position . There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.[31] (emphasis and underscoring supplied)

Contrary to petitioners’ asseveration, the non-application of the condonation doctrine to appointive officials does not violate the

right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,[32] the Court applied the four-fold test in an equal protection

challenge[33] against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and

appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials . The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

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An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate’s 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 latter’s 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.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This

the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts. [34] As a rule, the

Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the

factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were

found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional. [35] There can

hardly be conspiracy to commit negligence.[36]

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from

either carelessness or indifference.[37] In the present case, petitioners fell short of the reasonable diligence required of them, for failing

to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their

imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides “failed to uphold the law and provide a

sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities

when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding.” [38] As

pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of

erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on “matters related to upholding the rule of

law.”[39] Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a

lay person who may approve the same because it appears justified.

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As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the

mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering

her written objection[40] as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that

the funding for the projects should have been taken from the “capital outlays” that refer to the appropriations for the purchase of goods

and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added

that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of

normal local government operations within the fiscal year.[41]

In Office of the Ombudsman v. Tongson,[42] the Court reminded the therein respondents, who were guilty of simple neglect of

duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to

six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the

Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and

use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is

to use that prudence, caution, and attention which careful persons use in the management of their affairs.[43]

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of

honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully

adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be

accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.[44]

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889

are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office

for three (3) months without pay.

SO ORDERED.

[1] Seventh Division then composed of Justice Remedios A. Salazar-Fernando, chairperson and ponente, and Justices Rosalinda Asuncion-Vicente and Enrico A. Lanzanas as members.

[2] TMHS was being subsidized by the municipal government of Tagkawayan as it had not yet been included in the regular budget of the Department of Education.

[3] Rollo, pp. 248-249.[4] Counter Affidavit, id. at 238.[5] Id. at 243.[6] The criminal aspect of the case docketed as Case No. OMB-L-C-02-0426-E deals with violations of paragraphs (a), (e), (g) and

(i) of Section 3 of Republic Act No. 3019 (1960) or the Anti-Graft and Corrupt Practices Act; paragraph (c) of Sections 366 and 369, paragraph (d) of Sections 534, 355 and 356 of Republic Act No. 7160 (1991) or the Local Government Code; and Article 220 of the Revised Penal Code.

[7] Upon the recommendation of Graft Investigator and Prosecution Officer I (GIPO) Ma. Theresa D. Wu, the Office of the

Ombudsman modified the earlier recommendation of GIPO Mary Ayn T. Punzalan to absolve Glenda andreprimand Salumbides.

[8] Vide rollo, p. 53.

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[9] Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52, Bacolod City , G.R. No. 179878, Decmber 24, 2008, 575 SCRA 575, 583-584.

[10] Rollo, p. 24.[11] Id. at 277.[12] Id. at 154-155.[13] Vide RULES OF COURT, Rule 45, Sec. 4. Petitioners offer the following assignment of errors:

1. It was error for the Honorable Court of Appeals to deny the petitioners the benefit of the case of Arturo B. Pascual v. Prov. Board of Nueva Ecija;

2. It was error on the Honorable Court of Appeals when it ruled that the petitioners including Mayor Vicente E. Salumbides III were all guilty of conspiracy; [and]

3. It was error on the part of the Honorable Court of Appeals when it affirmed the ruling of the Honorable Ombudsman finding petitioners guilty of simple neglect of duty[,] for which they [were] meted the penalty of suspension from office of a maximum period of six (6) months. (italics supplied) Rollo, pp. 173-174.

[14] Vide rollo, 184-185.[15] Compare supra notes 8 and 14.[16] Conducto v. Monzon, A.M. No. MTJ-98-1147, July 2, 1998, 291 SCRA 619, 634 even declared that no ruling to the contrary had

even rippled this doctrine.[17] 106 Phil. 406 (1959).[18] Id. at 471.[19] Id. at 472.[20] 123 Phil. 916 (1966).[21] Id. at 919.[22] 129 Phil. 553 (1967). [23] Id. at 556. It was held that “a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance

committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a pubic officer is concerned. Also, under our Constitution, it is only the President who may grant the pardon of a criminal offense.”

[24] 138 Phil. 546 (1969). Aside from the lack of distinction as to time of commission under the Anti-Graft and Corrupt Practices Act, the Court pointed out that one of the imposable penalties was perpetual disqualification from public office, which extends beyond a particular term of office. It remarked that an official may amass wealth through graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts. The Court further ruled that the suspension under said statute is not self-operative as it needs to be ordered by the court in which the criminal case is filed.

[25] 156 Phil. 137 (1974). It was held that since the criminal prosecution is not abated by the fact of reelection, the pendency of a criminal case under a valid Information under the Anti-Graft and Corrupt Practices Act supplies the legal basis for the suspension from office in the subsequent term in the event of reelection. It added, however, that the suspension order issued during one term does not automatically apply or extend to the new term to which the suspended official had been reelected, in which case the trial court needs to issue anew a supplemental order of suspension.

[26] G.R. No. 94115, August 21, 1992, 212 SCRA 768.[27] Vide Office of the Ombudsman v. Evangelista, G.R. No. 177211, March 13, 2009, 581 SCRA 350, 361; Trillanes IV v. Pimentel,

Sr., G.R. No. 179817, June 27, 2008, 556 SCRA 471, 488; Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 216-217; People v. Judge Toledano, 387 Phil. 957, 964 (2000); People v. Jalosjos, 381 Phil. 690, 702-703 (2000).

[28] 326 Phil. 847 (1996). Citing sound public policy, the Court added that to rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts allegedly committed during his prior term, such that his second term may thus be devoted to defending himself in those cases to the detriment of public service.

[29] 372 Phil. 892 (1999). The Court stated that there is the presumption that the people voted for an official with knowledge of his character, precisely to eliminate the need to determine in factual terms the extent of this knowledge, which is an obviously impossible undertaking.

[30] G.R. No. 168766, May 22, 2008, 554 SCRA 160.[31] Id. at 179-180.[32] G.R. No. 189698, February 22, 2010.[33] Id., citing People v. Cayat, 68 Phil. 12, 18 (1939). The test has four requisites: (1) the classification rests on substantial

distinctions; (2) it is germane to the purposes of the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all members of the same class.

[34] Office of the Ombudsman v. Lazaro-Baldazo, G.R. No. 170815, February 2, 2007, 514 SCRA 141.[35] Compare with gross neglect of duty (vide Hao v. Andres, A.M. No. P-07-2384, June 18, 2008, 555 SCRA 8). In Civil Service

Commission v. Rabang, (G.R. No. 167763, March 14, 2008, 548 SCRA 540, 547), gross neglect of duty or gross negligence refers to “negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to give to their own property. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.” In Report on the Alleged Spurious Bailbonds and Release Orders Issued by the RTC, Br. 27, Sta. Cruz, Laguna, A.M. No. 04-6-332-RTC, April 5, 2006, 486 SCRA 500, 518, the Court ruled that “[n]eglect of duty is the failure of an employee to give one’s attention to a task expected of him. Gross neglect, on the other hand, is such neglect from the gravity of the case, or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare. The term does not necessarily include willful neglect or intentional official wrongdoing.”

[36] Vide U.S. v. Mitlof [165 F. Supp. 2d 558 (Dist. Court, S.D.N.Y. 2001)] observes that US federal courts have dismissed as a logical impossibility the idea that one can conspire to act unintentionally; Sackman v. Liggett Group Inc.,965 F. Supp. 391, 394

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(Dist. Court E.D.N.Y. 1997) states that there can be no conspiracy to be negligent– that is, to intend to act negligently; Sonnenreich v. Philip Morris Inc. [929 F. Supp. 416, 419 (S.D. Fla. 1996)] recognizes that a conspiracy to commit negligence is a non sequitur; Rogers v. Furlow [699 F. Supp. 672, 675 (N.D. Ill. 1988)] declares that a conspiracy to commit negligence is a paradox at best.

[37] Galero v. Court of Appeals, G.R. No. 151121, July 21, 2008, 559 SCRA 11.[38] Rollo, p. 66.[39] REPUBLIC ACT No. 7610, Sec. 481(b)(4).[40] REPUBLIC ACT No. 7160, Sec. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of

Other Department Heads or Officers of Equivalent Rank. - Unless he registers his objection in writing, the local treasurer, accountant, budget officer, or other accountable officer shall not be relieved of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer, elective or appointive, or upon participation of other department heads or officers of equivalent rank. The superior officer directing, or the department head participating in such illegal or improper use or application or deposit of government funds or property, shall be jointly and severally liable with the local treasurer, accountant, budget officer, or other accountable officer for the sum or property so illegally or improperly used, applied or deposited. (underscoring supplied); cf. Frias, Sr. v. People, G.R. No. 171437, October 4, 2007, 534 SCRA 654, as applied in criminal cases.

[41] Rollo, p. 67, citing REPUBLIC ACT No. 7160, Sec. 306 (d) & (f).[42] G.R. No. 169029, August 22, 2006, 499 SCRA 567. [43] Vide Farolan v. Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991, 195 SCRA 168, 177-178.[44] Galero v. Court of Appeals, supra at 24.

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EN BANC

G.R. No. 112497 August 4, 1994

HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner, vs.MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND THE CITY OF MANILA, respondents.

The City Legal Officer for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).

Joseph Lopez for Sangguniang Panglunsod of Manila.

L.A. Maglaya for Petron Corporation.

CRUZ, J.:

The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. — The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. 1

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary's resolution and sustained the ordinance, holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violation of the policy of local autonomy mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local governments. 2

The present petition would have us reverse that decision. The Secretary argues that the annulled Section 187 is constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed.

Parenthetically, this petition was originally dismissed by the Court for non-compliance with Circular 1-88, the Solicitor General having failed to submit a certified true copy of the challenged decision. 3 However, on motion for reconsideration with the required certified true copy of the decision attached, the petition was reinstated in view of the importance of the issues raised therein.

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, 4 even as the accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases

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in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the legislative or the executive departments, or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion. 5

It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the fundamental law before it was finally approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.

In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code unconstitutional insofar as it empowered the Secretary of Justice to review tax ordinances and, inferentially, to annul them. He cited the familiar distinction between control and supervision, the first being "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter," while the second is "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." 6 His conclusion was that the challenged section gave to the Secretary the power of control and not of supervision only as vested by the Constitution in the President of the Philippines. This was, in his view, a violation not only of Article X, specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of local governments, 8 and the policy of local autonomy in general.

We do not share that view. The lower court was rather hasty in invalidating the provision.

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less than this, and so performed an act not of control but of mere supervision.

The case of Taule v. Santos 9 cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows:

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist.

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That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise ofjudgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter.

In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the Local Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information and guidance, conformably to Sec. 59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue ofBalita, as shown by Exhibits Q, Q-1, Q-2, and Q-3.

The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not been raised in issue in the present petition.

WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court insofar as it declared Section 187 of the Local Government Code unconstitutional but AFFIRMING its finding that the procedural requirements in the enactment of the Manila Revenue Code have been observed. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

#Footnotes

1 Annex "E," rollo, pp. 37-55.

2 Annex "A," rollo, pp. 27-36.

3 Rollo, p. 256.

4 Sec. 19(1).

5 Art. VIII, Sec. 4(2), Constitution. of 44

6 Mondano v. Silvosa, 97 Phil. 143; Hebron v. Reyes, 104 Phil. 175; Tecson v. Salas, 34 SCRA 282.

7 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.

8 Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

9 200 SCRA 512.

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