SECOND DIVISION
|
Office of the Ombudsman,
Petitioner, - versus - Nieto A. Racho, Respondent. |
|
G.R. No. 185685 Present: CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA,
JJ Promulgated: January 31, 2011 |
X ----------------------------------------------------------------------------------------------------- X
D E C I S I O N
MENDOZA, J.:
This petition for review on certiorari[1]
under Rule 45 of the Rules of Court filed by the Office of the Ombudsman (Ombudsman)
assails the February 21, 2008 Decision[2]
and November 20, 2008 Resolution[3]
of the Court of Appeals-Cebu (CA) in CA-G.R. CEB-SP No. 00694 which reversed
and set aside the administrative aspect of the April 1, 2005 Joint Order[4]
of the Office of the Ombudsman-Visayas.
The April
1, 2005 Joint Order of the Ombudsman found respondent Nieto A. Racho (Racho)
guilty of dishonesty and ordered him dismissed from the service with
forfeiture of all benefits and perpetual disqualification from public office. The assailed CA Decision, however, found Racho
guilty of negligence only and reduced the penalty to suspension from office for
six months, without pay.
From the
records, it appears that DYHP
Balita Action Team (DYHP), in a letter dated P5,798,801.39.
Acting
on the letter, the Ombudsman launched a fact-finding investigation and directed
the BIR to submit Racho’s Statements of Assets, Liabilities and Net Worth (SALN)
from 1995 to 1999. BIR complied with the
order and gave copies of Racho’s SALN.
Soon, the Ombudsman found that Racho did not declare the bank deposits
in his SALN, as mentioned in the DYHP’s letter.
Accordingly, the Ombudsman filed a Complaint for Falsification of Public
Document under Article 171 of the Revised Penal Code (OMB-V-C-02-0240-E) and
Dishonesty (OMB-V-A-02-0214-E) against Racho.
The
Ombudsman, in its
On
review, Director Virginia Palanca, through a memorandum dated
Racho
moved for reconsideration[13]
but his motion was denied in an Order dated
Racho appealed the said order of
dismissal to the CA. On
In
compliance with the CA’s decision, the Ombudsman reinvestigated the case. In
his Comment,[16] Racho
denied sole ownership of the bank deposits. In support of his position, he
presented the Joint Affidavit[17]
of his brothers and nephew, particularly Vieto, Dean and Henry Racho, allegedly
executed on
On
With all the foregoing, undersigned finds
no basis to change, modify nor reverse her previous findings that there is
probable cause for the crime of FALSIFICATION OF PUBLIC DOCUMENT, defined and
penalized under Article 171 of the Revised Penal Code, against respondent Nieto
A. Racho for making untruthful statements in a narration of facts in his
SALN. As there are additional facts
established during the reinvestigation, re: failure of Mr. Racho to reflect his
business connections, then the Information filed against him should be amended
to include the same. Let this Amended
Information be returned to the court for further proceedings.
SO
RESOLVED.[22]
Racho
filed a motion for reconsideration[23]
but the Ombudsman denied it in its
Racho
elevated the case to the CA by way of a petition for review[25]
under Rule 43 of the Rules of Court assailing the administrative aspect of the April 1, 2005 Joint
Order of the Ombudsman-Visayas.
On
Accordingly, the decretal portion
of the CA decision reads:
WHEREFORE,
the instant Petition for Review on the administrative aspect of Ombudsman
Visayas JOINT ORDER dated
The Ombudsman moved for
reconsideration,[30]
but the CA stood by its decision and denied said motion in its
Hence, this petition.
In its Memorandum,[32]
the Office of the Ombudsman submits the following:
ISSUES
I.
THE ACTIVE
PARTICIPATION OF THE OFFICE OF THE OMBUDSMAN IN THE INSTANT CASE IS SANCTIONED
BY THE MANDATE OF THE OFFICE AS AN “ACTIVIST WATCHMAN.”
II
THE HONORABLE COURT
OF APPEALS’ RELIANCE ON A FICTITIOUS DOCUMENT WHOSE AUTHENTICITY HAS BEEN PUT
TO QUESTION IN A SEPARATE CRIMINAL CASE PRESENTS AN EXCEPTION TO THE GENERAL
RULE THAT AN APPEAL BY CERTIORARI UNDER RULE 45 SHOULD RAISE ONLY QUESTIONS OF
LAW CONSIDERING THAT –
THE OFFICE OF THE
OMBUDSMAN FOUND THE SPECIAL POWER OF ATTORNEY AND THE JOINT AFFIDAVIT OFFERED
AS EVIDENCE BY RESPONDENT TO BE SPURIOUS, HOWEVER, THE HONORABLE COURT OF
APPEALS WITHOUT RULING ON THE AUTHENTICITY OF THE SAME DOCUMENTS, RELIED ON THE
SAME TO FIND RESPONDENT GUILTY ONLY OF NEGLIGENCE;
AND
THE COURT OF
APPEALS’ FINDING OF LACK OF INTENT ON THE PART OF RESPONDENT RACHO TO CONCEAL
INFORMATION IS NOT BASED ON THE EVIDENCE
III
THE OFFICE OF THE
OMBUDSMAN HAS REPEATEDLY RAISED THE SPURIOUS CHARACTER OF THE JOINT AFFIDAVIT
AND SPECIAL POWER OF ATTORNEY BEFORE THE COURT OF APPEALS. THE COUNTER-AFFIDAVITS COUNTERING ITS
AUTHENTICITY WAS SUBMITTED FOR THE FIRST TIME BEFORE THE COURT OF APPEALS, AND
NOT BEFORE THIS HONORABLE COURT.
IV
THE DECISIONS,
RESOLUTIONS AND ORDERS OF THE OFFICE OF THE OMBUDSMAN ARE IMMEDIATELY EXECUTORY
EVEN PENDING APPEAL UNDER SECTION 7, RULE III OF THE RULES OF PROCEDURE OF THE
OFFICE OF THE OMBUDSMAN, AS AMENDED; CONSEQUENTLY THE WRIT OF INJUNCTION
EARLIER ISSUED SHOULD BE LIFTED.[33]
The Ombudsman argues that the CA
failed to see the discrepancies on Racho’s Special Power of Attorney itself
“such as a statement that the date of registration of the Nal Pay Phone
Services was ‘last April 30, 1999,’ when the Special Power of Attorney had been
allegedly executed on
THE COURT’S
RULING
The Court finds merit in the petition.
As a general rule, only questions of law may be raised in a petition for review on certiorari because the Court is not a trier of facts.[36] When supported by substantial evidence, the findings of fact of the CA are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions:
(1) When the
conclusion is a finding grounded entirely on speculation, surmises and
conjectures;
(2) When the inference
made is manifestly mistaken, absurd or impossible;
(3) Where there is a
grave abuse of discretion;
(4) When the judgment
is based on a misapprehension of facts;
(5) When the findings
of fact are conflicting;
(6) When the Court of
Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee;
(7)
When the findings are contrary to those of the trial court;
(8)
When the findings of fact are conclusions without citation of specific
evidence on which they are based;
(9) When the facts set forth in the
petition as well as in the petitioners' main and reply briefs are not disputed
by the respondents; and
(10) When the findings of fact of
the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.[37] [Emphasis supplied]
Undeniably,
the findings of fact of the Ombudsman are different from those of the CA. Thus, the Court finds it necessary to take a
second look at the factual matters surrounding the present case.
From the records, it is undisputed that
Racho admitted the bank accounts, but explained that the deposits reflected
therein were not entirely his. Racho
proffered that some of the money came from his brothers and nephew as part of
their contribution to the business that they had planned to put up. He presented a Special Power of Attorney
(SPA), dated
In the appreciation of the said
documents, the Ombudsman and the CA took opposing views. The Ombudsman did not give weight to the SPA
due to some questionable entries therein.
The CA, on the other hand, recognized the fact that Racho never denied
the existence of the bank accounts and accepted his explanation. Accordingly, the
CA decreed that although Racho was remiss in fully declaring the said bank
deposits in his SALN, the intent to make a false statement, as would constitute
dishonesty, was clearly absent.
The pivotal issue in this case,
however, is whether or not Racho’s non-disclosure of the bank deposits in his
SALN constitutes dishonesty.
The Court views it in the
affirmative.
Section 7 and Section 8 of Republic
Act (R.A.) 3019[38] explain
the nature and importance of accomplishing a true, detailed and sworn SALN,
thus:
Sec. 7. Statement of Assets and Liabilities.
— Every public officer, within thirty days after assuming office, and
thereafter, on or before the fifteenth day of April following the close of
every calendar year, as well as upon the expiration of his term of office, or
upon his resignation or separation from office, shall prepare and file with the
office of corresponding Department Head, or in the case of a
Head Department or chief of an independent office, with the Office of the
President, a true, detailed and sworn statement of the amounts and sources of
his income, the amounts of his personal and family expenses and the amount of
income taxes paid for the next preceding calendar year: Provided, That public
officers assuming office less than two months before the end of the calendar
year, may file their first statement on or before the fifteenth day of April
following the close of said calendar year.
Sec. 8. Prima Facie Evidence of and
Dismissal Due to Unexplained Wealth. — If in accordance with the provisions
of Republic Act Numbered One Thousand Three Hundred Seventy-Nine, a public
official has been found to have acquired during his incumbency, whether in his
name or in the name of other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his other lawful income, that
fact shall be ground for dismissal or removal. Properties in the name of
the spouse and dependents of such public official may be taken into
consideration, when their acquisition through legitimate means cannot be
satisfactorily shown. Bank deposits in the name of or manifestly
excessive expenditures incurred by the public official, his spouse or any of
their dependents including but not limited to activities in any club or
association or any ostentatious display of wealth including frequent travel
abroad of a non-official character by any public official when such activities
entail expenses evidently out of proportion to legitimate income, shall
likewise be taken into consideration in the enforcement of this Section,
notwithstanding any provision of law to the contrary. The circumstances
hereinabove mentioned shall constitute valid ground for the administrative
suspension of the public official concerned for an indefinite period until the
investigation of the unexplained wealth is completed.
In the case
of Carabeo v. Court of Appeals,[39]
citing Ombudsman v. Valeroso,[40]
the Court restated the rationale for the SALN and the evils that it seeks to
thwart, to wit:
Section 8 above, speaks of unlawful
acquisition of wealth, the evil sought to be suppressed and avoided, and
Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing,
the opportunities for official corruption and maintaining a standard of honesty
in the public service. “Unexplained” matter normally results from
“non-disclosure” or concealment of vital facts. SALN, which all public
officials and employees are mandated to file, are the means to achieve the
policy of accountability of all public officers and employees in the
government. By the SALN, the public are able to monitor movement in the
fortune of a public official; it is a valid check and balance mechanism to
verify undisclosed properties and wealth.
Complimentary to the above-mentioned
provisions, Section 2 of R.A. 1379[41] states
that “whenever any public officer or employee has acquired during his
incumbency an amount of property which is manifestly out of proportion to his
salary as such public officer or employee and to his other lawful income and
the income from legitimately acquired property, said property shall be presumed
prima facie to have been unlawfully acquired.”
By mandate
of law, every public official or government employee is required to make a
complete disclosure of his assets, liabilities and net worth in order to
suppress any questionable accumulation of wealth because the latter usually
results from non-disclosure of such matters.
Hence, a public official or employee who has acquired money or property
manifestly disproportionate to his salary or his other lawful income shall be
prima facie presumed to have illegally acquired it.
It should
be understood that what
the law seeks to curtail is “acquisition of unexplained wealth.” Where the source of the undisclosed wealth
can be properly accounted, then it is “explained wealth” which the law does not
penalize.
In this case, Racho not only failed to
disclose his bank accounts containing substantial deposits but he also failed
to satisfactorily explain the accumulation of his wealth or even identify the
sources of such accumulated wealth. The
documents that Racho presented, like those purportedly showing that his
brothers and nephew were financially capable of sending or contributing large
amounts of money for their business,[42] do
not prove that they did contribute or remit money for their supposed joint
business venture.
Equally, the Special Power of Attorney[43]
that was supposedly issued by Vieto, Dido and Henry Racho in favor of Racho on
1. To be the Trustee Attorney-in-fact of
our investment in ANGELSONS LENDING AND INVESTORS, INC. of whom we are the
Stockholders/Investors as well as the NAL PAY PHONE SERVICES, which
was registered by the DTI last April 30, 1999 in the name of NIETO RACHO’s wife of whom we are likewise
investors. [emphasis supplied]
Definitely,
a document that was allegedly executed in 1993 could not contain a statement
referring to a future date “registered by the DTI last April 30, 1999.” This certainly renders the intrinsic and
extrinsic value of the SPA questionable.
More important, the Joint Affidavits
allegedly executed by Racho’s siblings and nephew to corroborate his story were
later disowned and denied by his nephew, Henry, and brother, Vieto,
as shown by their Counter-Affidavits.[44] Henry averred that he was out of the country
at the time of the alleged execution of the Joint Affidavit on
Thus, the SPA and Joint Affidavits
which should explain the sources of Racho’s wealth are dubious and merit no
consideration.
Although Racho presented the SEC Certificate
of Registration of Angelsons,[47]
the business that he supposedly put up with his relatives, he showed no other
document to confirm that the business is actually existing and operating. He likewise
tried to show that his wife built a business of her own but he did not bother
to explain how the business grew and merely presented a Certificate of
Registration of Business Name from the DTI.[48] These documents, however, do not prove that
Racho had enough other sources of income to justify the said bank deposits. Ultimately,
only P1,167,186.33[49]
representing his wife’s retirement benefits, was properly accounted for. Even this money, however, was reduced by his
loan payable of P1,000,000.00 as reflected in his 2000 SALN.[50]
Dishonesty
begins when an individual intentionally makes a false statement in any material
fact, or practicing or attempting to practice any deception or fraud in order
to secure his examination, registration, appointment or promotion.[51] It is understood to imply the disposition to
lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray.[52] It is a malevolent act that puts serious
doubt upon one’s ability to perform his duties with the integrity and
uprightness demanded of a public officer or employee.[53] Section 52 (A)(1), Rule IV of the Revised
Uniform Rules on Administrative Cases in Civil Service treats dishonesty as a grave offense the penalty of which is
dismissal from the service at the first infraction.[54]
Indeed, an honest public
servant will have no difficulty in gathering, collating and presenting evidence
that will prove his credibility, but a dishonest one will only provide shallow excuses
in his explanations.
For these
reasons, the Court is of the view that Pleyto v. Philippine National Police
(PNP)-Criminal Investigation and Detection Group (CIDG)[55]
which the CA cited as basis to exculpate Racho of dishonesty, is not
applicable in this case. In the Pleyto
case, the Court recognized Pleyto’s candid admission of his failure to properly
and completely fill out his SALN, his vigorous effort to clarify the entries
and provide the necessary information and supporting documents to show how he
and his wife acquired their properties.[56] The Court found substantial evidence that
Pleyto and his wife had lawful sources of income other than Pleyto’s salary as
a government official which allowed them to purchase several real properties in
their names and travel abroad.[57]
Unfortunately for Racho, his
situation is different. The Court, thus,
holds that the CA erred in finding him guilty of simple neglect of duty only. As defined, simple neglect of duty is the
failure to give proper attention to a task expected from an employee resulting
from either carelessness or indifference.[58] In this case, the discrepancies in the
statement of Racho’s assets are not the results of mere carelessness. On the contrary, there is substantial
evidence pointing to a conclusion that Racho is guilty of dishonesty because of
his unmistakable intent to cover up the true source of his questioned bank
deposits.
It should be emphasized, however,
that mere misdeclaration of the SALN does not automatically amount to
dishonesty. Only when the accumulated wealth
becomes manifestly disproportionate to the employee’s income or other sources
of income and the public officer/employee fails to properly account or explain his
other sources of income, does he become susceptible to dishonesty because when
a public officer takes an oath or 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.[59]
The Court has consistently reminded
our public servants that public service demands utmost integrity and
discipline. A public servant must display at all times the highest sense of
honesty and integrity, for no less than the Constitution mandates the principle
that a public office is a public trust; and all public officers and employees
must at all times be accountable to the people and serve them with utmost
responsibility, integrity, loyalty and efficiency.[60]
WHEREFORE, the petition is GRANTED. The February 21, 2008 Decision and
November 20, 2008 Resolution of the Court of Appeals-Cebu are hereby REVERSED
and SET ASIDE. The administrative
aspect of the
SO ORDERED.
JOSE CATRAL
Associate Justice
WE
CONCUR:
ANTONIO T.
CARPIO
Associate Justice
Chairperson
ANTONIO
EDUARDO B. NACHURA DIOSDADO M. PERALTA
Associate Justice Associate Justice
ROBERTO A.
ABAD
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second
Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice
[1] Rollo, pp. 12-47.
[2]
[3]
[4] CA rollo, pp. 46-51.
[5] Rollo, p. 74.
[6] CA rollo, p. 98.
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17] Rollo, pp. 97-99.
[18] CA rollo, pp. 156-171.
[19] Rollo, pp. 100-101.
[20] CA rollo, pp. 172-185.
[21] Rollo, pp. 80-96.
[22]
[23] CA rollo, pp. 52-66.
[24]
[25]
[26] G.R.
No. 169982,
[27] Rollo, p. 58.
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36] Office of the Ombudsman v.
Lazaro-Baldazo,
G.R. No. 170815,
[37] Heirs of Jose Lim v. Juliet Villa Lim,
G.R. No. 172690,
[38] Anti-Graft and Corrupt Practices Act.
[39] G.R.
Nos. 178000 and 178003,
[40] G.R.
No. 167828,
[41] An Act Declaring Forfeiture in Favor of the State any Property Found to have been Unlawfully Acquired by any Public Officer or Employee and Providing for the Proceedings therefor.
[42] CA rollo, pp. 187-194; 200-209; 212.
[43] Rollo, pp. 100-101.
[44]
[45]
[46]
[47]
CA rollo, pp. 156-171.
[48]
[49]
[50]
[51] Pleyto v. PNP-CIDG, G.R. No. 169982,
[52] Ampong v. Civil Service Commission, CSC-Regional Office No. 11, G.R. No. 167916, August 26, 2008, 563 SCRA 293, 307.
[53] Civil Service Commission v. Sta. Ana, 435 Phil. 1, 12 (2002).
[54] De Guzman v. Delos Santos, 442 Phil. 428, 440 (2002).
[55] G.R.
No. 169982,
[56]
[57]
[58] Galero
v. Court of Appeals, G.R. No. 151121,
[59] Atty.
Salumbides, et. al. v. Office of the Ombudsman, et. al., G.R. No. 180917,
[60] Bascos,
Jr. v. Taganahan, G.R. No. 180666,