DR. MUSSOLINI C.
BARILLO, G.R. No. 155088
EDGARDO C. HINOGUIN,
otherwise known as EDGAR Present:
C. HINOGUIN, JOSE REY
S.
ROJAS, RAYMUNDO PLAZA PANGANIBAN, C.J.,
and
TERESITA ALLEGO, PUNO,
Petitioners, QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus
- CARPIO,
AUSTRIA-MARTINEZ,
HON.
MARGARITO GERVACIO, CARPIO MORALES,
in his Capacity as OIC
Ombudsman CALLEJO, SR.,
HON. PRIMO MIRO, in his capa-
AZCUNA,
city as Deputy Ombudsman for
the TINGA,
Visayas,
HON. VIRGINIA P. CHICO-NAZARIO,
Director, Office of the
Ombudsman VELASCO, JR., JJ.
(Visayas) and the COMMISSION
ON
AUDIT, Region VII, Promulgated:
Respondents.
August 31, 2006
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D E C I S I O N
Tinga, J.:
This Petition[1]
dated August 23, 2002 filed by Dr. Mussolini C. Barillo (Barillo), Edgardo
Hinoguin (Hinoguin), Jose Rey S. Rojas (Rojas),
The facts are as follows:
In September 1994, Barillo, as
President of Cebu State College of Science and Technology (
a. Personnel
1. Chairman 4%
2. Project Coordinator 4%
3. Project Treasurer 4%
4. Project Auditor 4%
5. Management 22%
6. Project Teacher 25%
7. Student Workers 30%
b. Maintenance
1. Electricity 5%
2. Depreciation 5%
3. Water 2%[5]
In order to establish the PES, seed
money in the amount of P40,000.00 was obtained from the Cebu State
Entrepreneurship Training Center (ETC) Funds purportedly as a loan to the PES. For
this purpose, Rojas, as PES representative, and Eustiquio C. Alinabo, as Fund
Administrator of the ETC, executed a Memorandum of Understanding dated
The PES was thus formally established. It accepted printing jobs from
Meanwhile, the funds initially
deposited in the account of ETC were subsequently withdrawn by Barillo, Rojas
and Plaza and deposited in their joint account in Banco de Oro. Similarly, all the subsequent income and
funds generated from the PES’s operations were deposited in this joint account. It appears that as of P149,600.00.[8]
In the course of the post-audit and
verification of the accounts and operations of
In a letter dated
Auditor Dela Peña submitted a
supplemental report to the COA Regional Office, requesting that the documents
relative to the operations of the PES be subpoenaed. The COA Regional Director requested the
assistance of the Ombudsman-Visayas for this purpose. Accordingly, on
Barillo again denied the request in a
letter dated
In a letter dated
Based on the foregoing, Auditor Dela
Peña executed an Affidavit accusing Barillo, Hinoguin, Rojas, Plaza and Allego,
in their respective capacities as President, Professor III, Assistant
Professor, Clerk II and Stenographer of Cebu State, of violating Sec. 3(e), (f)
and (h) of the Anti-Graft and Corrupt Practices Act and Sec. 4(a) and (c) of
the Code of Conduct and Ethical Standards for Public Officials and Employees
(Code of Conduct). Auditor Dela Peña alleged that the expenditures for the PES
projects were illegally taken from the General Fund of
After due proceedings, the
Ombudsman-Visayas issued a Resolution dated March 30, 1998, which was approved
by then Ombudsman Aniano A. Desierto (Ombudsman Desierto) on June 26, 1998, finding
petitioners guilty of Dishonesty and imposing upon them the penalty of
dismissal from the service with forfeiture of all benefits and perpetual
disqualification from government service.
Petitioners filed a motion for
reconsideration and a supplemental motion for reconsideration both of which
were denied in an Order of the Ombudsman-Visayas dated
Petitioners assailed the resolution,
memoranda and orders of the Ombudsman in a petition for review with the Court
of Appeals. However, the appellate court
denied their petition.
The Court of Appeals found no merit
in petitioners’ contention that the seed money used for the establishment of
the PES and its subsequent income are private funds. According to the appellate
court, the seed money was sourced from the ETC Funds of Cebu State which funds
are allocations made in favor of
Moreover, the evidence on record
supports the Ombudsman’s finding that petitioners used the facilities and
resources of
The Court of Appeals further found
that the PES was operated without following the guidelines laid down in the
Handbook on the Establishment of an
As regards Barillo’s reliance on his
acquittal by the Sandiganbayan in Criminal Case No. 23554, the appellate court
held that such dismissal does not affect Barillo’s administrative liability
because administrative proceedings are independent from criminal proceedings.
Petitioners insist that due to the
dismissal by the Sandiganbayan of Criminal Case No. 23554, the administrative
case for Dishonesty should similarly be dismissed because the acts which the
Sandiganbayan declared as not unlawful are the same acts for which they were
held administratively liable.
Petitioners also assail the Order dated
The Office of the Solicitor General
(OSG) filed a Manifestation and Motion[18]
dated December 15, 2002, taking the position that the Ombudsman can only
recommend administrative sanctions to the head of agency and but not impose
them on its own.
The Ombudsman, for its part, filed a
Comment[19]
dated P40,000.00
was released to the PES by way of a loan from the
It further averred that the PES was
an illegal money-making venture because petitioners allocated to themselves
specific percentages of the income generated from the project as shown by the
sharing scheme in the Operation Manual. They treated the income generated by
the project like their own by depositing the same in their private account. However, the expenditures for the PES such as
supplies, equipment and materials used for printing office maintenance and
electricity were borne by the school.[20]
Citing Ocampo v. Ombudsman,[21]
the Ombudsman contends that the dismissal of the criminal case
against petitioners has no effect on the present administrative case because the
evidence against petitioners, though found insufficient to establish guilt
beyond reasonable doubt, satisfies the quantum of evidence required in
administrative proceedings.
Finally, as regards the OSG’s
position, the Ombudsman argues that the ruling of this Court in Tapiador v. Office
of the Ombudsman,[22]
to the effect that the Ombudsman is without authority to directly dismiss
an erring employee from government service, is the subject of a pending
motion for reconsideration in which the Ombudsman argued that it is invested
with administrative disciplinary powers to the fullest extent. The Ombudsman insists that it has the
authority to compel and enforce, even through the use of the coercive power of
contempt, the implementation of the penalties it assesses against erring public
officials and employees.
Petitioners reiterate their arguments
in their Reply[23] dated
There are three questions submitted
for our resolution. The first pertains
to the scope of the powers granted to the Ombudsman by the Constitution; the
second concerns the effect of the Sandiganbayan’s Decision in Criminal Case No.
23554, acquitting Barillo and dismissing the case against the other
petitioners, on the present administrative proceeding; and the third involves
the question of whether there is substantial evidence against petitioners.
On the first issue. The authority of the Ombudsman to determine
the administrative liability of a public official or employee, and to direct
and compel the head of the office or agency concerned to implement the penalty
imposed is already settled.
In Ledesma v. Court of Appeals,[24]
we held that the statement in Tapiador v. Office of the Ombudsman, supra, to
the effect that the disciplinary power of the Ombudsman is only recommendatory
is a mere obiter dictum which cannot be cited as a doctrinal declaration
of the Court. We declared that the
authority of the Ombudsman under Sec. 15 of Republic Act No. 6770 (RA 6770),
otherwise known as The Ombudsman Act of 1989, to recommend the removal,
suspension, demotion, fine, censure, or prosecution of an erring public officer
or employee is not merely advisory but is actually mandatory within the bounds
of the law, such that the refusal, without just cause, of any officer to comply
with an order of the Ombudsman to penalize an erring public officer or employee
is a ground for disciplinary action.
The power of the Ombudsman to
investigate and prosecute any illegal act or omission of any public official is
not an exclusive authority but a shared or concurrent authority in respect of
the offense charged.[25] The provisions of the Constitution[26]
and RA 6770 should be taken to mean that the recommendation of the Ombudsman
regarding the action to be taken against an erring public officer or employee
should be coursed through the proper officer, often the head of the agency to
which such officer or employee belongs.
The ruling in Ledesma was recently reiterated in Estarija v.
Ranada, et al.[27]
where we held that far from restricting the powers of the Ombudsman, the
Constitution gave Congress the discretion to spell out these powers. This Congress did through RA 6770 vesting in the
Ombudsman the power to directly sanction erring government officials and
employees, except only members of Congress and the Judiciary.
Given these unassailable precedents,
the position taken by the OSG, as well as petitioners’ contention on this point,
is clearly wrong.
The second and third issues are
interrelated and shall be discussed jointly.
Administrative cases are, as a rule, independent
from criminal proceedings. The dismissal
of a criminal case on the ground of insufficiency of evidence or the acquittal
of an accused who is also a respondent in an administrative case does not
necessarily foreclose the administrative proceeding nor carry with it relief
from administrative liability. This is
because unlike in criminal cases which require proof beyond reasonable doubt,
the quantum of proof required in administrative proceedings is substantial
evidence, defined as such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.[28]
The criminal case against petitioners
Hinoguin, Rojas, Plaza and Allego was dismissed for lack of jurisdiction
because the Information against them did not allege that they conspired with
Barillo and because their salary grades are below that required for
jurisdiction to vest in the Sandiganbayan.[29]
On the other hand, Barillo was
acquitted because the Sandiganbayan found the evidence adduced by the
prosecution inadequate to prove his guilt beyond reasonable doubt. According to the Sandiganbayan, the
prosecution failed to establish that the P40,000.00 borrowed by the PES
from the ETC Funds partakes of the nature of public funds so as to be subject
to COA audit. Moreover, when the money was lent to the PES, it assumed the
characteristic of a private fund. The
fact that it was subsequently deposited to the Banco de Oro account of Barillo,
Rojas and Plaza was deemed insufficient to convict Barillo. Further, the Sandiganbayan held that the
prosecution failed to prove beyond reasonable doubt that the operational
expenses of the PES were borne by
In Larin v. Executive Secretary,[30] we held that where the very basis of
the administrative case against petitioner is his conviction in the criminal
action which was later on set aside by this Court upon a clear and categorical
finding that the acts for which he was administratively held liable are not
unlawful and irregular, the acquittal of the petitioner in the criminal case
necessarily entails the dismissal of the administrative action against him,
because in such a case, there is no more basis nor justifiable reason to
maintain the administrative suit.
In contrast, the Sandiganbayan
Decision was not the basis of the filing of the administrative case against
petitioners. In fact, the administrative
case lodged with the Ombudsman-Visayas proceeded independently of the criminal
proceedings before the Sandiganbayan.
Further, nowhere in its Decision did the Sandiganbayan unreservedly
declare that the acts for which petitioners were being held liable are not
unlawful and irregular.
To reiterate, the dismissal of the
criminal case against petitioners Hinoguin, Rojas, Plaza and Allego was due to
the Sandiganbayan’s lack of jurisdiction over them. The acquittal of Barillo was merely because
the Sandiganbayan deemed the evidence against him insufficient to prove his guilt
beyond reasonable doubt. Whether this
evidence satisfies the standard of proof required in administrative cases is a
different matter which we shall now resolve.
Dishonesty connotes a disposition to
lie, cheat, deceive, or defraud; unworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray.[31]
In this case, the Ombudsman and the
Court of Appeals made significant factual findings, which are binding on this
Court,[32] and
which militate against petitioners’ argument that there is no longer any basis
to hold them administratively liable.
Notably, the Ombudsman and the Court
of Appeals found that the ETC Funds were not meant to be lent as capital for
entrepreneurial projects. They were purposely
given by the BTVE to P40,000.00
from the ETC Funds. Worse, the proceeds
of the loan, as well as the income generated by the PES from its operations, were
deposited in the Banco de Oro account of Barillo, Rojas and Plaza.
Moreover, we agree with the appellate
court’s finding that there is a clear irregularity in the dealings between the
PES and
The Ombudsman and the Court of
Appeals are one in saying that substantial evidence on record proves that the
resources of Cebu State were used to defray the operational expenses of the PES. We defer to these findings because the Sandiganbayan
did not categorically rule that such was not the case, only that the
prosecution failed to establish this fact to the point of moral certainty.
In view of these circumstances, we find
that there is substantial evidence to find petitioners guilty of Dishonesty
under the Code of Conduct. Their act of
obtaining direct pecuniary benefits from the PES; use of Cebu State’s
resources, manpower and facilities; disregard of their public accountability;
and refusal to submit the books and accounts of the PES to audit are highly
irregular and questionable.
The Code enunciates the State policy
of promoting a high standard of ethics and utmost responsibility in the public
service.[34] As
public officers and employees, petitioners are expected to live up to the
strictest norms of probity and integrity in the public service. They must, at
all times, uphold the public interest over their personal interest.[35]
WHEREFORE, the petition is hereby
DENIED. The Decision of the Court of Appeals dated
SO ORDERED.
DANTE O. TINGA
Associate
Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
|
REYNATO S. PUNO Associate
Justice |
LEONARDO A. QUISUMBING Associate Justice |
|
CONSUELO YNARES-SANTIAGO Associate
Justice |
ANGELINA SANDOVAL-GUTIERREZ Associate Justice |
|
ANTONIO T. CARPIO Associate
Justice |
MA. ALICIA AUSTRIA-MARTINEZ Associate
Justice |
|
RENATO C. CORONA Associate
Justice |
CONCHITA CARPIO MORALES Associate Justice |
|
ROMEO J. CALLEJO, SR. Associate
Justice |
ADOLFO S. AZCUNA Associate Justice |
|
MINITA V. CHICO-NAZARIO Associate
Justice |
CANCIO C. GARCIA Associate
Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
C
E R T I F I C A T I O N
Pursuant to Article VIII, Section 13
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ARTEMIO V.
PANGANIBAN.
Chief
Justice
[2]
[3]
[8]
“On
September 05, 1994, the accused Barillo, Rojas and Plaza, pursuant to Item III
(D) of the said operational manual, opened a joint account No. 2075-0002103-10
with the [sic] Banco de Oro located at M.J. Cuenco St.[,] Cebu City, with an
initial deposit of P100.00, and the following day, September 06, 1994,
the amount of P40,000.00 which was borrowed by the PES from the ETC Fund
was deposited. Subsequent cash deposits were made, which during the period from
September 15, 1994 up to June 19, 1997, totaled P770,209.02, earning
interests for the period in the total amount of P8,566.84, minus the
withdrawals in the total amount of P604,142.75 for the same period,
leaving a balance at the end of the period, April 30, 1998, in the amount of P174,633.11.”
[9]The Sandiganbayan Decision in Criminal Case No. 23554 states that Auditor Dela Peña and State Auditor II Azucena Canoy, the Resident Auditors of Cebu State, conducted the post-audit. Rollo, p. 76.
[21]379 Phil. 21 (2000).
[28]Office of the Court Administrator v. Cañete,
A.M. No. P-91-621,
[29]Rollo, pp. 68-93; Decision of the Sandiganbayan dated January 22, 2002, penned by Associate Justice Nicodemo T. Ferrer and concurred in by Associate Justices Narciso S. Nario and Rodolfo G. Palattao.