EN BANC
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BRICCIO Ricky A. POLLO, Petitioner, - versus - CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV CASTILLO, DIRECTOR III |
G.R.
No. 181881 Present: CARPIO, VELASCO, JR., LEONARDO-DE
CASTRO, BRION, PERALTA, BERSAMIN, ABAD, VILLARAMA, JR., PEREZ, SERENO, REYES, and PERLAS-BERNABE, JJ. |
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ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, Respondents. |
Promulgated: October 18, 2011 |
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DECISION
VILLARAMA,
JR., J.:
This case involves a search of office computer assigned to
a government employee who was charged administratively and eventually dismissed
from the service. The employees personal files stored in the computer were
used by the government employer as evidence of misconduct.
Before us is a petition
for review on certiorari under Rule 45 which seeks to reverse and set
aside the Decision[1] dated
The factual antecedents:
Petitioner is a former
Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under
the Mamamayan Muna Hindi Mamaya Na program of the CSC.
On
January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
Confidential and sent through a courier service (LBC) from a certain Alan San Pascual of
Bagong Silang, Caloocan City, was received by the Integrated Records Management
Office (IRMO) at the CSC Central Office. Following office practice in which
documents marked Confidential are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.
The
letter-complaint reads:
The
Chairwoman
Civil
Service Commission
Batasan
Hills,
Dear Madam
Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from
you personally if it is just alright for an employee of your agency to be a
lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law
and unfair to others and your office.
I have known that a person have been
lawyered by one of your attorny in the
region 4 office. He is the chief of the
Mamamayan muna hindi mamaya na division.
He have been helping many who have pending cases in the Csc. The justice in our govt system will not be
served if this will continue. Please
investigate this anomaly because our perception of your clean and good office
is being tainted.
Concerned
Govt employee[3]
Chairperson
David immediately formed a team of four personnel with background in
information technology (IT), and issued a memo directing them to conduct an
investigation and specifically to back up all the files in the computers found
in the Mamamayan Muna (PALD) and Legal divisions.[4] After some
briefing, the team proceeded at once to the CSC-ROIV office at
The
backing-up of all files in the hard
disk of computers at the PALD and Legal Services Division (LSD) was witnessed
by several employees, together with Directors Castillo and Unite who closely
monitored said activity. At around
Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of
PALD and LSD per instruction of the Chairman. If you can make it here now it
would be better.
All PCs Of PALD and LSD are being backed up per memo of the chair.
CO IT people arrived just now for this purpose. We were not also
informed about this.
We cant do anything about it its a directive from chair.
Memo of the chair was referring to an anonymous complaint; ill send a
copy of the memo via mms[5]
Petitioner
replied also thru text message that he was leaving the matter to Director Unite
and that he will just get a lawyer.
Another text message received by petitioner from PALD staff also
reported the presence of the team from CSC main office: Sir may mga taga C.O. daw
sa kuarto natin.[6] At around
Evaluating
the subject documents obtained from petitioners personal files, Chairperson
David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents
that are related to or connected with administrative cases that may broadly be
lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office
or other tribunals. It is also of note
that most of these draft pleadings are for and on behalves of parties, who are
facing charges as respondents in administrative cases. This gives rise to the inference that the one
who prepared them was knowingly, deliberately and willfully aiding and
advancing interests adverse and inimical to the interest of the CSC as the
central personnel agency of the government tasked to discipline misfeasance and
malfeasance in the government service.
The number of pleadings so prepared further demonstrates that such
person is not merely engaged in an isolated practice but pursues it with
seeming regularity. It would also be the
height of naivete or credulity, and certainly against common human experience,
to believe that the person concerned had engaged in this customary practice
without any consideration, and in fact, one of the retrieved files (item 13
above) appears to insinuate the collection of fees. That these draft pleadings were obtained from
the computer assigned to Pollo invariably raises the presumption that he was
the one responsible or had a hand in their drafting or preparation since the
computer of origin was within his direct control and disposition.[9]
Petitioner
filed his Comment, denying that he is the person referred to in the anonymous
letter-complaint which had no attachments to it, because he is not a lawyer and
neither is he lawyering for people with cases in the CSC. He accused CSC officials of conducting a fishing
expedition when they unlawfully copied and printed personal files in his
computer, and subsequently asking him to submit his comment which violated his
right against self-incrimination. He
asserted that he had protested the unlawful taking of his computer done while
he was on leave, citing the letter dated January 8,
On
February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima
facie case against the petitioner and charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer
under oath within five days from notice and indicate whether he elects a formal
investigation. Since the charges fall
under Section 19 of the URACC, petitioner was likewise placed under 90 days
preventive suspension effective immediately upon receipt of the resolution.
Petitioner received a copy of Resolution No. 070382 on
Petitioner
filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal
search which is beyond the authority of the CSC Chairman, such power pertaining
solely to the court. Petitioner reiterated
that he never aided any people with pending cases at the CSC and alleged that
those files found in his computer were prepared not by him but by certain
persons whom he permitted, at one time or another, to make use of his computer
out of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at
petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas
client who attested that petitioner had nothing to do with the pleadings or
bill for legal fees because in truth he owed legal fees to Atty. Solosa and not
to petitioner. Petitioner contended
that the case should be deferred in view of the prejudicial question raised
in the criminal complaint he filed
before the Ombudsman against Director Buensalida, whom petitioner believes had
instigated this administrative case. He
also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 070519[12] dated
On March 14, 2007, petitioner filed an Urgent
Petition[13] under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007
Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having
been issued with grave abuse of discretion amounting to excess or total absence
of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo
(CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for
disbarment against Director Buensalida.[14]
On
On
In
view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex
parte.
On
WHEREFORE, foregoing premises considered, the Commission hereby finds
Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of Republic Act 6713. He is
meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification to hold
public office, forfeiture of retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service examinations.[21]
On
the paramount issue of the legality of the search conducted on petitioners
computer, the CSC noted the dearth of jurisprudence relevant to the factual
milieu of this case where the government as employer invades the private files
of an employee stored in the computer assigned to him for his official use, in
the course of initial investigation of possible misconduct committed by said
employee and without the latters consent or participation. The CSC thus turned
to relevant rulings of the United States Supreme Court, and cited the leading
case of OConnor v. Ortega[22] as authority for the view that government agencies,
in their capacity as employers, rather than law enforcers, could validly
conduct search and seizure in the governmental workplace without meeting the
probable cause or warrant requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L.
Simons[23] which declared that the federal agencys computer
use policy foreclosed any inference of reasonable expectation of privacy on the
part of its employees. Though the Court therein recognized that such policy did
not, at the same time, erode the respondents legitimate expectation of privacy
in the office in which the computer was installed, still, the warrantless
search of the employees office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant to an
investigation of work-related misconduct provided the search is reasonable in
its inception and scope.
With
the foregoing American jurisprudence as benchmark, the CSC held that petitioner
has no reasonable expectation of privacy with regard to the computer he was
using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming
that there was no such administrative policy, the CSC was of the view that the
search of petitioners computer successfully passed the test of reasonableness
for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search
in its capacity as government employer and that it was undertaken in connection
with an investigation involving work-related misconduct, which exempts it from
the warrant requirement under the Constitution.
With the matter of admissibility of the evidence having been resolved,
the CSC then ruled that the totality of evidence adequately supports the
charges of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A. No. 6713 against the
petitioner. These grave infractions
justified petitioners dismissal from the service with all its accessory
penalties.
In his Memorandum[24] filed in the CA, petitioner moved to incorporate
the above resolution dismissing him from the service in his main petition, in
lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.
By Decision dated
His motion for reconsideration having been denied by
the CA, petitioner brought this appeal arguing that
I
THE
HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY
AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC
RESOLUTION NO. 94-0521;
II
THE
HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING
TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS
RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST
SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S.
III
THE
HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE
EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION
LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND
TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE
CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED
STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH
ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF
THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE
COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL
EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION
ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED
JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT
MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]
Squarely
raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and
consent, alleged as a transgression on his constitutional right to privacy.
The
right to privacy has been accorded recognition in this jurisdiction as a facet
of the right protected by the guarantee against unreasonable search and seizure
under Section 2, Article III of the 1987 Constitution,[27]
which provides:
Sec. 2. The right of the
people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.
The
constitutional guarantee is not a prohibition of all searches and seizures but
only of unreasonable searches and seizures.[28] But to
fully understand this concept and application for the purpose of resolving the
issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction.
As the Court declared in People v.
Marti[29]:
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter which,
worded as follows:
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be violated,
and no warrants shall issue but upon probable
cause, to be determined by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. (Sec. 1[3], Article III)
was in
turn derived almost verbatim from the Fourth Amendment to the United States
Constitution. As such, the Court may turn
to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.[30]
In
the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI
agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated
his right to privacy and constituted a search and seizure. Because the petitioner had a reasonable
expectation of privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such area. In the
concurring opinion of Mr. Justice Harlan, it was further noted that the
existence of privacy right under prior decisions involved a two-fold requirement:
first, that a person has exhibited an actual (subjective) expectation of
privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace, the
US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union
officials, even as the latter or their guests could enter the office. The Court thus recognized that employees may
have a reasonable expectation of privacy against intrusions by police.
That
the Fourth Amendment equally applies to a government workplace was addressed in
the 1987 case of OConnor v. Ortega[34] where a physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation of his Fourth Amendment
rights when hospital officials investigating charges of mismanagement of the
psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical
aid program, searched his office and
seized personal items from his desk and filing cabinets. In that case, the
Court categorically declared that [i]ndividuals do not lose Fourth Amendment
rights merely because they work for the government instead of a private
employer.[35] A plurality
of four Justices concurred that the correct analysis has two steps: first,
because some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable, a court must consider
[t]he operational realities of the workplace in order to determine whether an
employees Fourth Amendment rights are implicated; and next, where an employee
has a legitimate privacy expectation, an employers intrusion on that
expectation for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances.[36]
On
the matter of government employees reasonable expectations of privacy in their
workplace, OConnor teaches:
x x x Public employees expectations of privacy in their offices, desks,
and file cabinets, like similar expectations of employees in the private
sector, may be reduced by virtue of actual office practices and procedures, or
by legitimate regulation. x x x The employees expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free
from entry by supervisors, other employees, and business and personal
invitees. Instead, in many cases offices
are continually entered by fellow employees and other visitors during the
workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government
offices that others such as fellow employees, supervisors, consensual
visitors, and the general public may have frequent access to an individuals
office. We agree with JUSTICE SCALIA
that [c]onstitutional protection against unreasonable searches by the
government does not disappear merely because the government has the right to
make reasonable intrusions in its capacity as employer, x x x but some
government offices may be so open to fellow employees or the public that no
expectation of privacy is reasonable. x x x
Given the great variety of work environments in the public sector,
the question of whether an employee has a reasonable expectation of privacy
must be addressed on a case-by-case basis.[37] (Citations omitted; emphasis supplied.)
On
the basis of the established rule in previous cases, the US Supreme Court
declared that Dr. Ortegas Fourth Amendment rights are implicated only if the
conduct of the hospital officials infringed an expectation of privacy that
society is prepared to consider as reasonable.
Given the undisputed evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees, kept personal correspondence
and other private items in his own
office while those work-related files (on physicians in residency training)
were stored outside his office, and there being no evidence that the hospital
had established any reasonable regulation or policy discouraging employees from
storing personal papers and effects in their desks or file cabinets (although
the absence of such a policy does not create any expectation of privacy where
it would not otherwise exist), the Court concluded that Dr. Ortega has a
reasonable expectation of privacy at least in his desk and file cabinets.[38]
Proceeding
to the next inquiry as to whether the search conducted by hospital officials
was reasonable, the OConnor
plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy
in his office, the Court of Appeals simply concluded without discussion that
the searchwas not a reasonable search under the fourth amendment. x x x [t]o hold that the Fourth Amendment applies
to searches conducted by [public employers] is only to begin the inquiry into
the standards governing such searches[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must determine the
appropriate standard of reasonableness applicable to the search. A determination of the standard of
reasonableness applicable to a particular class of searches requires
balanc[ing] the nature and quality of the intrusion on the individuals Fourth
Amendment interests against the importance of the governmental interests
alleged to justify the intrusion. x x
x In the case of searches conducted
by a public employer, we must balance the invasion of the employees legitimate
expectations of privacy against the governments need for supervision, control,
and the efficient operation of the workplace.
x x x x
In our view, requiring an employer to obtain a warrant whenever the
employer wished to enter an employees office, desk, or file cabinets for a
work-related purpose would seriously disrupt the routine conduct of business
and would be unduly burdensome. Imposing
unwieldy warrant procedures in such cases upon supervisors, who would otherwise
have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which
we have required warrants, supervisors in offices such as at the Hospital are
hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely
incident to the primary business of the agency.
Under these circumstances, the imposition of a warrant requirement would
conflict with the common-sense realization that government offices could not
function if every employment decision became a constitutional matter. x x x
x x x x
The governmental interest justifying work-related intrusions by public
employers is the efficient and proper operation of the workplace. Government agencies provide myriad services
to the public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employees desk for the
purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept
of probable cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-related
reasons. Similarly, the concept of
probable cause has little meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To ensure the
efficient and proper operation of the agency, therefore, public employers must
be given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an
investigation of work-related employee misconduct. Even when employers conduct an investigation,
they have an interest substantially different from the normal need for law
enforcement. x x x Public employers have
an interest in ensuring that their agencies operate in an effective and efficient
manner, and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other work-related misfeasance of
its employees. Indeed, in many cases,
public employees are entrusted with tremendous responsibility, and the
consequences of their misconduct or incompetence to both the agency and the
public interest can be severe. In
contrast to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a
proper and efficient manner. In our
view, therefore, a probable cause requirement for searches of the type at
issue here would impose intolerable burdens on public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the
agencys work, and ultimately to the
public interest. x x x
x x x x
In sum, we conclude that the special needs, beyond the normal need
for law enforcement make theprobable-cause requirement impracticable, x x x
for legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct.
A standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon the privacy of public
employees. We hold, therefore, that public
employer intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged
by the standard of reasonableness under all
the circumstances.
Under this reasonableness standard, both the inception and the scope
of the intrusion must be reasonable:
Determining
the reasonableness of any search involves a twofold inquiry: first, one must
consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search
as actually conducted was reasonably related in scope to the circumstances
which justified the interference in the first place, x x x
Ordinarily, a search of an employees office by a supervisor will be
justified at its inception when there are reasonable grounds for suspecting
that the search will turn up evidence that the employee is guilty of
work-related misconduct, or that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. x x x The search
will be permissible in its scope when the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive in light
of the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis
supplied.)
Since
the District Court granted summary judgment without a hearing on the factual
dispute as to the character of the search and neither was there any finding
made as to the scope of the search that was undertaken, the case was remanded
to said court for the determination of the justification for the search and
seizure, and evaluation of the reasonableness of both the inception of the
search and its scope.
In OConnor the
Court recognized that special needs authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing
test under which government interests are weighed against the employees
reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant
requirement, which are related to law enforcement.[40]
OConnor
was applied in subsequent cases
raising issues on employees privacy rights in the workplace. One of these cases involved a government
employers search of an office computer, United
States v. Mark L. Simons[41] where the defendant Simons, an employee of a
division of the Central Intelligence Agency (CIA), was convicted of receiving
and possessing materials containing child pornography. Simons was provided with an office which he
did not share with anyone, and a computer with Internet access. The agency had instituted a policy on
computer use stating that employees were to use the Internet for official
government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that
users shall understand that the agency will periodically audit, inspect, and/or
monitor the users Internet access as deemed appropriate. CIA agents instructed
its contractor for the management of the agencys computer network, upon
initial discovery of prohibited internet activity originating from Simons
computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed
downloaded pictures that were pornographic in nature, all the files on the hard
drive of Simons computer were copied from a remote work station. Days later, the contractors representative
finally entered Simons office, removed the original hard drive on Simons
computer, replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured
warrants and searched Simons office in the evening when Simons was not
around. The search team copied the contents of Simons computer;
computer diskettes found in Simons desk drawer; computer files stored on the
zip drive or on zip drive diskettes; videotapes; and various documents,
including personal correspondence. At
his trial, Simons moved to suppress these evidence, arguing that the searches
of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied
the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches
of Simons computer and office did not violate his Fourth Amendment rights and
the first search warrant was valid. It
held that the search remains valid under the OConnor exception to the warrant requirement because evidence of
the crime was discovered in the course of an otherwise proper administrative
inspection. Simons violation of the
agencys Internet policy happened also to be a violation of criminal law; this
does not mean that said employer lost the capacity and interests of an
employer. The warrantless entry into
Simons office was reasonable under the Fourth Amendment standard announced in OConnor because at the inception of the
search, the employer had reasonable grounds for suspecting that the hard
drive would yield evidence of misconduct, as the employer was already aware
that Simons had misused his Internet access to download over a thousand
pornographic images. The retrieval of
the hard drive was reasonably related to the objective of the search, and the
search was not excessively intrusive.
Thus, while Simons had a reasonable expectation of privacy in his
office, he did not have such legitimate expectation of privacy with regard to
the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment,
Simons must first prove that he had a legitimate expectation of privacy in the
place searched or the item seized. x x x And, in order to prove a legitimate
expectation of privacy, Simons must show that his subjective expectation of
privacy is one that society is prepared to accept as objectively reasonable. x
x x
x x x x
x x x We conclude that the remote searches of Simons computer did not
violate his Fourth Amendment rights because, in light of the Internet policy,
Simons lacked a legitimate expectation of privacy in the files downloaded from
the Internet. Additionally, we conclude
that Simons Fourth Amendment rights were not violated by FBIS retrieval of
Simons hard drive from his office.
Simons did
not have a legitimate expectation of privacy with regard to the record or
fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would
audit, inspect, and/or monitor employees use of the Internet, including all
file transfers, all websites visited, and all e-mail messages, as deemed
appropriate. x x x This policy placed employees on notice that
they could not reasonably expect that their Internet activity would be
private. Therefore, regardless of
whether Simons subjectively believed that the files he transferred from the
Internet were private, such a belief was not objectively reasonable after FBIS
notified him that it would be overseeing his Internet use. x x x
Accordingly, FBIS actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate the Fourth
Amendment.
x x x x
The burden
is on Simons to prove that he had a legitimate expectation of privacy in his
office. x x x Here,
Simons has shown that he had an office that he did not share. As noted above, the operational realities of
Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record
of any workplace practices, procedures, or regulations that had such an
effect. We therefore conclude that, on
this record, Simons possessed a legitimate expectation of privacy in his
office.
x x x x
In the final analysis, this case involves an employees supervisor
entering the employees government office and retrieving a piece of government
equipment in which the employee had absolutely no expectation of privacy
equipment that the employer knew contained evidence of crimes committed by the
employee in the employees office. This situation may be contrasted with one in
which the criminal acts of a government employee were unrelated to his
employment. Here, there was a
conjunction of the conduct that violated the employers policy and the conduct
that violated the criminal law. We
consider that FBIS intrusion into Simons office to retrieve the hard drive is
one in which a reasonable employer might engage. x x x[42] (Citations omitted; emphasis supplied.)
This
Court, in Social Justice Society (SJS) v.
Dangerous Drugs Board[43] which involved the constitutionality of a provision
in R.A. No. 9165 requiring mandatory drug testing of candidates for public
office, students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutors office
with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The first
factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning
of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The employees privacy interest in an
office is to a large extent circumscribed by the companys work policies, the
collective bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such
privacy has been upheld. (Emphasis supplied.)
Applying
the analysis and principles announced in OConnor
and Simons to the case at bar, we
now address the following questions:
(1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?; and (2)
Was the search authorized by the CSC Chair, the copying of the contents of the
hard drive on petitioners computer reasonable in its inception and scope?
In
this inquiry, the relevant surrounding circumstances to consider include (1)
the employees relationship to the item seized; (2) whether the item was in the
immediate control of the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item. These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider
the two questions together.[44] Thus, where
the employee used a password on his computer, did not share his office with
co-workers and kept the same locked, he had a legitimate expectation of privacy
and any search of that space and items located therein must comply with the
Fourth Amendment.[45]
We answer the first in the negative. Petitioner failed to prove that he had an
actual (subjective) expectation of privacy either in his office or
government-issued computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office
was always locked and not open to other employees or visitors. Neither did he allege that he used passwords
or adopted any means to prevent other employees from accessing his computer
files. On the contrary, he submits that
being in the public assistance office of the CSC-ROIV, he normally would have
visitors in his office like friends, associates and even unknown people, whom
he even allowed to use his computer which to him seemed a trivial request. He described his office as full of people,
his friends, unknown people and that in the past 22 years he had been
discharging his functions at the PALD, he is personally assisting incoming
clients, receiving documents, drafting cases on appeals, in charge of
accomplishment report, Mamamayan Muna
Program, Public Sector Unionism, Correction of name, accreditation of service,
and hardly had anytime for himself alone, that in fact he stays in the office
as a paying customer.[46] Under this
scenario, it can hardly be deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.
Moreover,
even assuming arguendo, in the absence
of allegation or proof of the aforementioned factual circumstances, that
petitioner had at least a subjective expectation of privacy in his computer as
he claims, such is negated by the presence of policy regulating the use of
office computers, as in Simons.
Office
Memorandum No. 10, S. 2002 Computer Use
Policy (CUP) explicitly provides:
POLICY
1.
The Computer Resources are the property of the Civil Service Commission
and may be used only for legitimate business purposes.
2.
Users shall be permitted access to Computer Resources to assist them in the
performance of their respective jobs.
3.
Use of the Computer Resources is a privilege that may be revoked at any given
time.
x x x x
No Expectation of Privacy
4. No expectation of privacy. Users
except the Members of the Commission shall not have an expectation of privacy
in anything they create, store, send, or receive on the computer system.
The Head of the Office for
Recruitment, Examination and Placement shall select and assign Users to handle the confidential
examination data and processes.
5. Waiver of privacy rights. Users expressly
waive any right to privacy in anything they create, store, send, or receive
on the computer through the Internet or any other computer network. Users
understand that the CSC may use human or automated means to monitor the
use of its Computer Resources.
6. Non-exclusivity of Computer Resources.
A computer resource is not a personal property or for the
exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users.
However, he is accountable therefor and must insure its care and maintenance.
x x x x
Passwords
12. Responsibility for passwords.
Users shall be responsible for safeguarding their passwords for
access to the computer system.
Individual passwords shall not be printed, stored online, or given to
others. Users shall be responsible for all transactions made using their
passwords. No User may access the
computer system with another Users password or account.
13. Passwords do not imply privacy.
Use of passwords to gain access to the computer system or to encode
particular files or messages does not imply that Users have an expectation of privacy in the material they create or
receive on the computer system. The Civil Service Commission has global
passwords that permit access to all materials stored on its networked computer
system regardless of whether those materials have been encoded with a
particular Users password. Only
members of the Commission shall authorize the application of the said global
passwords.
x x x x[47] (Emphasis supplied.)
The
CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send
or receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-spot inspections may
be done to ensure that the computer resources were used only for such
legitimate business purposes.
One
of the factors stated in OConnor
which are relevant in determining whether an employees expectation of privacy
in the workplace is reasonable is the existence of a workplace privacy policy.[48] In one case,
the US Court of Appeals Eighth Circuit held that a state university employee
has not shown that he had a reasonable expectation of privacy in his computer
files where the universitys computer
policy, the computer user is informed not to expect privacy if the university
has a legitimate reason to conduct a search.
The user is specifically told that computer files, including e-mail, can
be searched when the university is responding to a discovery request in the
course of litigation. Petitioner employee
thus cannot claim a violation of Fourth Amendment rights when university
officials conducted a warrantless search of his computer for work-related
materials.[49]
As to the second point of inquiry on the
reasonableness of the search conducted on petitioners computer, we answer in
the affirmative.
The
search of petitioners computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous
letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division
is supposedly lawyering for individuals with pending cases in the CSC. Chairperson David stated in her sworn
affidavit:
8. That prior to this, as
early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional
Office IV (CSCRO IV) such as, staff working in another government agency,
selling cases and aiding parties with pending cases, all done during office
hours and involved the use of government properties;
9. That said text messages
were not investigated for lack of any verifiable leads and details sufficient
to warrant an investigation;
10. That the anonymous letter provided
the lead and details as it pinpointed the persons and divisions involved in the
alleged irregularities happening in CSCRO IV;
11. That in view of the
seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central
Office staff to back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
x x x x[50]
A
search by a government employer of an employees office is justified at
inception when there are reasonable grounds for suspecting that it will turn up
evidence that the employee is guilty of work-related misconduct.[51] Thus, in the
2004 case decided by the US Court of Appeals Eighth Circuit, it was held that
where a government agencys computer use policy prohibited electronic messages with pornographic content
and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the
agency information systems and technology, the government employee had no
legitimate expectation of privacy as to the use and contents of his office
computer, and therefore evidence found during warrantless search of the
computer was admissible in prosecution for child pornography. In that case, the defendant employees
computer hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was inaccessible
and had copied and distributed non-work-related e-mail messages throughout the
office. When the supervisor confirmed
that defendant had used his computer to access the prohibited websites, in
contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A
formal administrative investigation ensued and later search warrants were
secured by the police department. The
initial remote search of the hard drive of petitioners computer, as well as
the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer
can investigate work-related misconduct so long as any search is justified at
inception and is reasonably related in scope to the circumstances that
justified it in the first place.[52]
Under
the facts obtaining, the search conducted on petitioners computer was
justified at its inception and scope. We
quote with approval the CSCs discussion on the reasonableness of its actions,
consistent as it were with the guidelines established by OConnor:
Even conceding for a moment that there is no such administrative policy,
there is no doubt in the mind of the Commission that the search of Pollos
computer has successfully passed the test of reasonableness for warrantless
searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission
pursued the search in its capacity as a government employer and that it was
undertaken in connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant requirement. At
the inception of the search, a complaint was received recounting that a certain
division chief in the CSCRO No. IV was lawyering for parties having pending
cases with the said regional office or in the Commission. The nature of the imputation was serious,
as it was grievously disturbing. If,
indeed, a CSC employee was found to be furtively engaged in the practice of
lawyering for parties with pending cases before the Commission would be a
highly repugnant scenario, then such a case would have shattering
repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a
quasi-judicial agency, and in the process, render it less effective in
fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled
that a court or an administrative tribunal must not only be actually impartial
but must be seen to be so, otherwise the general public would not have any
trust and confidence in it.
Considering
the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or
fall-out. Thus, on the same date that
the complaint was received, a search was forthwith conducted involving the
computer resources in the concerned regional office. That it was the computers that were
subjected to the search was justified since these furnished the easiest means
for an employee to encode and store documents.
Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of computer files,
that is, they could easily be destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose the need to comply with
the probable cause requirement would invariably defeat the purpose of the
wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the
warrantless search in an open and transparent manner. Officials and some employees of the regional
office, who happened to be in the vicinity, were on hand to observe the process
until its completion. In addition, the
respondent himself was duly notified, through text messaging, of the search and
the concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done
on computer assigned to Pollo was not, in any way, vitiated with
unconstitutionality. It was a reasonable
exercise of the managerial prerogative of the Commission as an employer aimed
at ensuring its operational effectiveness and efficiency by going after the
work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed
admissible.[53]
Petitioners claim of violation of his constitutional
right to privacy must necessarily fail.
His other argument invoking the privacy of communication and
correspondence under Section 3(1), Article III of the 1987 Constitution
is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the
aforecited authorities. We likewise find
no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a
criminal offense like child pornography. As already mentioned, the search of
petitioners computer was justified there being reasonable ground for
suspecting that the files stored therein would yield incriminating evidence
relevant to the investigation being conducted by CSC as government employer of
such misconduct subject of the anonymous complaint. This situation clearly falls under the
exception to the warrantless requirement in administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming
his working hours filing and attending to personal cases, using office
supplies, equipment and utilities. The
OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales
personal computer and print two documents stored in its hard drive, which
turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales computer was seized
and taken in custody of the OCA but was later ordered released on his motion,
but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence
to support the charge against Atty. Morales as no one from the OCC personnel
who were interviewed would give a categorical and positive statement affirming
the charges against Atty. Morales, along with other court personnel also
charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The Court En
Banc held that while Atty. Morales may have fallen short of the exacting
standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer
against him for it violated his constitutional right against unreasonable
searches and seizures. The Court found
no evidence to support the claim of OCA that they were able to obtain the
subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who conducted the
spot investigation, questioning the validity of the investigation and
specifically invoking his constitutional right against unreasonable search and
seizure. And as there is no other
evidence, apart from the pleadings, retrieved from the unduly confiscated
personal computer of Atty. Morales, to hold him administratively liable, the
Court had no choice but to dismiss the charges against him for insufficiency of
evidence.
The above case is to be distinguished from the case
at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the
personal files of herein petitioner were
retrieved is a government-issued computer, hence government property the use of
which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the
item seized (office computer) and other relevant factors and circumstances
under American Fourth Amendment jurisprudence, notably the existence of CSC MO
10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a
reasonable expectation of privacy in the office computer assigned to him.
Having determined that the personal files copied
from the office computer of petitioner are admissible in the administrative
case against him, we now proceed to the issue of whether the CSC was correct in
finding the petitioner guilty of the charges and dismissing him from the
service.
Well-settled is the rule that the
findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial
evidence. Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion, even if other
equally reasonable minds might conceivably opine otherwise.[55]
The
It is also striking to note that some of these
documents were in the nature of pleadings responding to the orders, decisions
or resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC Resolution. This
indicates that the author thereof knowingly and willingly participated in the
promotion or advancement of the interests of parties contrary or antagonistic
to the Commission. Worse, the appearance
in one of the retrieved documents the phrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo, lends plausibility
to an inference that the preparation or drafting of the legal pleadings was
pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the same
for the money a legal mercenary selling or purveying
his expertise to the highest bidder, so to speak.
Inevitably, the
fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof.
This is because he had a control of the said computer. More significantly, one of the witnesses,
Margarita Reyes, categorically testified
seeing a written copy of one of the pleadings found in the case records
lying on the table of the respondent.
This was the Petition for Review in the case of Estrellado addressed to
the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the
interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want
the Commission to believe that the documents were the personal files of some of
his friends, including one Attorney Ponciano Solosa, who incidentally served as
his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a
sworn affidavit to this effect.
Unfortunately, this contention of the respondent was directly rebutted
by the prosecution witness, Reyes, who testified that during her entire stay in
the PALD, she never saw Atty. Solosa using the computer assigned to the
respondent. Reyes more particularly
stated that she worked in close proximity with Pollo and would have known if
Atty. Solosa, whom she personally knows, was using the computer in
question. Further, Atty. Solosa himself
was never presented during the formal investigation to confirm his sworn
statement such that the same constitutes self-serving evidence unworthy of
weight and credence. The same is true
with the other supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention
of the respondent, it evinces the fact that he was unlawfully authorizing
private persons to use the computer assigned to him for official purpose, not
only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperationOr at the very least, he should be responsible for
serious misconduct for repeatedly allowing CSC resources, that is, the computer
and the electricity, to be utilized for purposes other than what they were
officially intended.
Further, the Commission cannot lend credence to the
posturing of the appellant that the line appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad
mo, was a private joke between the person alluded to therein, Eric N.
Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more
sinister. The same is too preposterous
to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the
respondent, unless he had something to do with it?[56]
Petitioner assails the CA in not ruling that the CSC
should not have entertained an anonymous complaint since Section 8 of CSC
Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or
employee shall not be given due course unless it is in writing and subscribed
and sworn to by the complainant.
However, in cases initiated by the proper disciplining authority,
the complaint need not be under oath.
No anonymous complaint shall be
entertained unless there is obvious truth or merit to the allegation therein
or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.
x x x x
We
need not belabor this point raised by petitioner. The administrative complaint is deemed to
have been initiated by the CSC itself when Chairperson David, after a spot
inspection and search of the files stored in the hard drive of computers in the
two divisions adverted to in the anonymous letter -- as part of the
disciplining authoritys own fact-finding investigation and
information-gathering -- found a prima
facie case against the petitioner who was then directed to file his
comment. As this Court held in Civil Service Commission v. Court of Appeals[57] --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No.
292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the
Civil Service, a complaint may be
initiated against a civil service officer or employee by the appropriate
disciplining authority, even without being subscribed and sworn to. Considering
that the CSC, as the disciplining authority for Dumlao, filed the complaint,
jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioners challenge on the
validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due
to the said memorandum order having been issued solely by the CSC Chair and not
the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her
Reply to the Addendum to Commissioner Buenaflors previous memo expressing his
dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said
memorandum order was in fact exhaustively discussed, provision by provision in
the
In fine, no error or grave abuse of
discretion was committed by the CA in affirming the CSCs ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the
imposition on petitioner of the ultimate penalty of dismissal with all its
accessory penalties, pursuant to existing rules and regulations.
WHEREFORE,
the petition for review
on certiorari is DENIED. The Decision dated
With costs against the petitioner.
SO ORDERED.
|
|
MARTIN S. VILLARAMA, JR. Associate Justice |
||
|
WE CONCUR: RENATO C. CORONA Chief Justice |
|||
|
See Separate Concurring
Opinion Associate Justice |
I join opinion of J. Bersamin Associate Justice |
||
|
I join the concurring and dissenting opinion of
Justice Bersamin Associate Justice |
ARTURO D. BRION Associate Justice |
||
|
DIOSDADO M. PERALTA Associate Justice |
Please see Concurring
& Dissenting Opinion Associate Justice |
||
|
(No Part) MARIANO C. Associate Justice |
I join Justice L. Bersamins
concurring and dissenting opinion Associate Justice |
||
|
JOSE Associate Justice |
JOSE CATRAL Associate Justice |
||
|
I concur but share J.
Carpios concerns Associate Justice |
BIENVENIDO L. REYES Associate Justice |
||
ESTELA M.
PERLAS-BERNABE
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the 1987 Constitution, 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.
|
|
RENATO C. CORONA Chief Justice |
*
No part.
[1] Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with Associate Justices Mariano C. Del Castillo (now a Member of this Court) and Arcangelita M. Romilla-Lontok concurring.
[2]
[3]
[4]
[5] CA rollo, p. 56.
[6]
[7]
[8]
[9]
[10]
[11]
[12] CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the omnibus motion while Commissioner Cesar D. Buenaflor reiterated his dissent.
[13] CA rollo, pp. 2-19.
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22] 480
[23]
[24]
[25]
[26] Rollo, p. 19.
[27] Social Justice Society (SJS) v. Dangerous
Drugs Board, G.R. Nos. 157870, 158633 and 161658, November 3, 2008, 570
SCRA 410, 427, citing Ople
v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169.
[28] Joaquin
Bernas, S.J., The
Constitution of the Republic of the
[29] G.R.
No. 81561,
[30]
[31] 389
[32]
[33] 392
[34] Supra
note 22.
[35]
[36]
[37] Supra
note 22 at 717-718.
[38]
[39]
[40] Francis v. Giacomelli,
[41] Supra
note 23.
[42]
[43] Supra
note 27 at 432-433.
[44] U.S. v. Barrows,
[45]
[46] CA
rollo, pp. 42, 61.
[47]
[48] Biby v. Board of Regents, of the
[49]
[50] CA
rollo, p. 639.
[51]
[52]
[53] CA
rollo, pp. 611-612.
[54] A.M.
Nos. P-08-2519 and P-08-2520,
[55] Vertudes v. Buenaflor, G.R. No.
153166, December 16, 2005, 478 SCRA 210,
230, citing Rosario v. Victory Ricemill, G.R.
No. 147572, February 19, 2003, 397 SCRA 760, 766 and Bagong Bayan Corp., Realty Investors and
Developers v. NLRC, G.R. No. 61272, September 29, 1989, 178
SCRA 107.
[56] CA
rollo, pp. 616-617.
[57] G.R. No. 147009,
[58] Rollo, p. 299.
[59] See
Taada v. Hon. Tuvera, 230 Phil. 528,
535 (1986).