Republic of the
Supreme Court
EN BANC
|
ATTY.
VICENTE E. SALUMBIDES, JR.,
and GLENDA ARAÑA, Petitioners, - versus - OFFICE
OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER
DIZON, Respondents, |
G.R. No. 180917 Present: PUNO, C.J., CARPIO, CARPIO
MORALES, VELASCO,
JR., NACHURA,
LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN,
ABAD,
VILLARAMA,
JR., PEREZ,
and MENDOZA,
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.
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
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
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
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 a maximum period of six
months with a stern warning against a similar repetition. It also approved on
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
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]
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.
Salalima did 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
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.
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.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
|
ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
|
PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate
Justice |
|
DIOSDADO
M. PERALTA Associate Justice MARIANO C. Associate
Justice MARTIN S. VILLARAMA, JR. Associate
Justice |
LUCAS P. BERSAMIN Associate
Justice ROBERTO A. ABAD Associate
Justice JOSE Associate
Justice |
JOSE CATRAL
Associate
Justice
CERTIFICATION
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.
REYNATO S. PUNO
Chief Justice
[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]
[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 and reprimand Salumbides.
[8] Vide rollo, p. 53.
[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]
[12]
[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,
[17] 106 Phil. 406 (1959).
[18]
[19]
[20] 123 Phil. 916 (1966).
[21]
[22] 129 Phil. 553 (1967).
[23]
[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,
[27] Vide Office of the
Ombudsman v. Evangelista, G.R. No. 177211,
[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,
[31]
[32] G.R. No.
189698,
[33]
[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,
[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 (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,
[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,
[41] Rollo, p. 67, citing Republic Act No. 7160, Sec. 306 (d) & (f).
[42] G.R. No. 169029,
[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.