Republic
of the
Supreme
Court
SECOND DIVISION
|
OFFICE OF THE OMBUDSMAN, Petitioner, - versus - NELLIE R. APOLONIO, Respondent. |
G.R.
No. 165132
Present: CARPIO, J.,
Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: March 7,
2012 |
x------------------------------------------------------------------------------------x
DECISION
BRION, J.:
Through a petition for review on certiorari,[1]
petitioner Office of the Ombudsman (Ombudsman)
seeks the reversal of the decision[2] dated
March 23, 2004 of the Court of Appeals (CA)
in CA-G.R. SP No. 73357 and the resolution dated August 23, 2004, which
dismissed the Ombudsmans Motion for Reconsideration. The assailed decision annulled and set aside
the decision of the Ombudsman dated August 16, 2002[3] (docketed
as OMB ADM-0-01-0405), finding Dr. Nellie R. Apolonio guilty of grave
misconduct and dishonesty.
THE FACTUAL ANTECEDENTS
Dr. Apolonio served as the Executive
Officer of the National Book Development Board (NBDB) from 1996 to August 26, 2002.
As NBDBs executive officer, Dr. Apolonio supervised NBDBs Secretariat
and managed its day-to-day affairs.[4]
In December 2000, NBDBs Governing
Board approved the conduct of a Team Building Seminar Workshop for its officers
and employees. The workshop was
scheduled to be a two-day event, to be held on December 20-21, 2000.[5]
On March 29, 1995, the Department of Budget and Management (DBM) issued National Budget Circular No.
442[6] prescribing
a P900.00 limit for each participant per day in any seminar/workshop/conference
undertaken by any government agency. In
compliance with the circular, the NBDB disbursed the amount of P108,000.00
to cover the P1,800.00 allowance of the 60 employees for the two-day
event.[7]
Prior to the conduct of the workshop, some of the employees/participants
approached Dr. Apolonio to ask whether a part of their allowance, instead of
spending the entire amount on the seminar, could be given to them as cash. Dr. Apolonio consulted Rogelio Montealto,[8]
then Finance and Administrative Chief of NBDB, about the proposal and the
possible legal repercussions of the proposal.
Concluding the proposal to be legally sound and in the spirit of the
yuletide season, Dr. Apolonio approved the request.[9]
Thus, after the end of the workshop, SM gift cheques were distributed to the
participants in lieu of a portion of their approved allowance.[10]
Proceedings before the Ombudsman
On August 24, 2001, Nicasio I. Marte, an NBDB Consultant,
filed a complaint against Dr. Apolonio and Mr. Montealto before the
Ombudsman. The complaint alleged that
Dr. Apolonio and Mr. Montealto committed grave misconduct, dishonesty and
conduct prejudicial to the best interest of the service for the unauthorized
purchase and disbursement of the gift cheques.
Mr. Marte alleged that the NBDBs Governing Board never authorized the
disbursement of the funds for the purchase of the gift cheques and that the
purchases were never stated in Dr. Apolonios liquidation report.[11]
In her response, Dr. Apolonio invoked
good faith[12] in the
purchase of the gift cheques, having in mind the best welfare of the employees
who, in the first place, requested the use of part of the budget for
distribution to the employees.
On April 3, 2002,[13]
Graft Investigation Officer (GIO)
Plaridel Oscar J. Bohol found Dr. Apolonio and Mr. Montealto administratively
liable for conduct prejudicial to the best interest of the service, but
exonerated them from the charges of grave misconduct and dishonesty. GIO Bohol recommended the imposition of
suspension for six (6) months and one (1) day without pay.
GIO Bohols recommendation was not
acted favorably by then Acting Ombudsman Margarito Gervacio, Jr. who adopted
the recommendation of GIO Julita M. Calderon.
GIO Calderons recommendation was embodied in a memorandum dated August
16, 2002.[14] In her memorandum, GIO Calderon found Dr.
Apolonio and Mr. Montealto guilty of gross misconduct and dishonestly, in
addition to the charge of conduct grossly prejudicial to the best interest of
the service. Consequently, GIO Calderon
recommended that Dr. Apolonio and Mr. Montealto be dismissed from the service.[15]
GIO Calderon found that Dr. Apolonio
illegally converted the use of her cash advance, which was solely intended for
the workshop, for the purchase of the gift cheques. In doing so, she abused her authority as the
Executive Director of NBDB [and] disregarded the authority of the Board.[16] GIO Calderon described Dr. Apolonios act as a
criminal act of technical malversation.[17] Further, even if a clamor among the
participants occurred, the clear provisions of Section 89 of Presidential
Decree No. (PD) 1445, otherwise known
as the Government Auditing Code of the Philippines, prohibit Dr. Apolonio from
releasing the cash advance for a purpose other than that legally authorized.[18] The supposed noble purpose for the
technical malversation does not negate the illegality of the act.
On August 21, 2002, the Acting
Ombudsman approved the findings of GIO Calderon, thereby imposing the penalty
of removal against Dr. Apolonio. The
Acting Ombudsman likewise denied Dr. Apolonios motion for reconsideration on
September 18, 2002. This prompted Dr.
Apolonio to file a petition for review on certiorari
in the CA.
Proceedings before the CA
On March 23, 2004, the CA granted the
petition, adjudicating the following issues in Dr. Apolonios favor.
First,
the Ombudsman does not possess the power to directly impose the penalty of
removal against a public official. In
reaching this conclusion, the CA cited Section 13(3), Article XI of the
Constitution which shows that the Ombudsman only possesses recommendatory
functions in the removal, suspension, demotion, fine, censure or prosecution of
erring government officials and employees.[19] The CA addressed Section 21 of Republic Act
No. (RA) 6770, otherwise known as
The Ombudsman Act of 1989. It held that RA 6770 cannot rise above the
Constitution[20] and
since it conflicts with the provisions of Section 13(3), Article XI, the
Ombudsmans authority to impose penalties against public officials or employees
remains to be merely recommendatory.[21]
Second,
Dr. Apolonio undeniably realigned a portion of the budget allotted for the
workshop for the purchase of the gift cheques.
The CA noted, however, that not only is there no evidence that Dr.
Apolonio pocketed any amount from the realignment, but her decision to purchase
the gift cheques was greatly influenced by the appeal of the
employee/participants. Thus, the CA held
that Dr. Apolonio did not intend to violate the law for a corrupt purpose,
thereby negating the Ombudsmans findings that she committed grave misconduct.[22]
The CA likewise found that Dr.
Apolonios acts do not constitute dishonesty because it was not shown that she
has predisposition to lie, defraud and deceive which are inimical to the
interests of the public service.[23] Since she was motivated by the pleas of the
employees and in the spirit of the yuletide season, her actions lack an evil or
corrupt motive.[24] Dr. Apolonio is, therefore, only liable for
conduct prejudicial to the best interest of the service, the conclusion reached
and recommended by GIO Bohol. The CA
imposed the penalty of suspension for six (6) months, but due to her retirement
from the service, the amount corresponding to her salary for six months was
deducted from her retirement benefits.[25]
On April 16, 2004, the Ombudsman moved to intervene and
reconsider the decision of the CA.
Although the CA granted the motion to intervene, it denied the motion
for reconsideration in a Resolution dated August 23, 2004.
THE OMBUDSMANS ARGUMENTS
In this petition, the Ombudsman maintains that the CA erred
when it reversed the formers decision and held Dr. Apolonio only responsible
for conduct prejudicial to the best interest of the service. The Ombudsman maintains that Dr. Apolonio is
guilty of grave misconduct for intentionally failing to secure proper
authorization from the NBDBs Governing Board.[26] That Dr. Apolonio was motivated by
humanitarian considerations due to the holidays is irrelevant because she
deliberately ignored the limits of her own authority by allowing public funds
to be converted to private use[.][27] Citing Ferriols
v. Hiam,[28] the
Ombudsman argues that the misappropriation of funds by an accountable officer
for her personal benefit constitutes dishonesty and serious misconduct
prejudicial to the best interest of the service. The Ombudsman further cites Section 168,
Title 4, Article 1 of the Government Accounting and Auditing Manual which clearly
limits the [u]se of moneys appropriated solely for the specific purpose for
which appropriated, and for no other, except when authorized by law or by a
corresponding appropriating body.[29]
The Ombudsman further takes issue with the CAs findings that
grave misconduct and dishonesty were not proven because Dr. Apolonio did not
gain from the transaction. In support of
this assertion, the Ombudsman points to an apparent dissimilarity in the
amounts actually received by the seminar participants[30]
from the amount appropriated for the workshop.
Further, Dr. Apolonio herself was a recipient of the gift cheques. Clearly, she profited from the illegal
conversion of funds as well.
Addressing the Courts obiter
dictum[31] in Tapiador v. Office of the Ombudsman,[32]
the Ombudsman argues that the case has become moot because it found Dr.
Apolonio guilty of conduct prejudicial to the best interest of the service. To be sure, the Ombudsman likewise cited RA
6770 which gives it the authority to assess and impose commensurate
administrative penalt[ies.][33]
DR. APOLONIOS ARGUMENTS
Dr. Apolonio supports the CA decision on the limits of the
Ombudsmans authority to impose sanctions on public officials, citing Section
13, Article XI of the Constitution and the deliberations of the Constitutional
Commission on this provision.[34] According to her, the Constitution only
grants the Ombudsman recommendatory powers for the removal of a public
official.[35] Thus, RA 6770, which grants the Ombudsman
actual powers to directly impose the penalty of removal, is unconstitutional
since it gives powers to the Ombudsman not granted by the Constitution itself.[36] Consequently, it was erroneous for the CA to
uphold GIO Bohols decision to impose a six-month suspension on her since the
Constitution only grants recommendatory powers to the Ombudsman.
THE ISSUES IN THIS PETITION
Based on the submissions of the parties, two issues are
before us for resolution:
(1)
Does
the Ombudsman have the power to directly impose the penalty of removal from
office against public officials?
(2)
Do
Dr. Apolonios acts constitute Grave Misconduct?
THE COURTS RULING
We rule in the Ombudsmans favor and partially
grant the petition.
The Ombudsman has the power to directly impose
administrative penalties, including removal from office
The Ombudsman has the power to impose
the penalty of removal, suspension, demotion, fine, censure, or prosecution of
a public officer or employee, in the exercise of its administrative
disciplinary authority. The challenge to
the Ombudsmans power to impose these penalties, on the allegation that the
Constitution only grants it recommendatory powers, had already been rejected by
this Court.
The Court first rejected this
interpretation in Ledesma v. Court of
Appeals,[37] where
the Court, speaking through Mme. Justice Ynares-Santiago, held:
The creation of the Office of the
Ombudsman is a unique feature of the 1987 Constitution. The Ombudsman and his
deputies, as protectors of the people, are mandated to act promptly on
complaints filed in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. Foremost among its powers is the
authority to investigate and prosecute cases involving public officers and
employees, thus:
Section 13. The Office of the
Ombudsman shall have the following powers, functions, and duties:
(1)
Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient.
Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed
into law on November 17, 1989 and provided for the structural and functional
organization of the Office of the Ombudsman. RA 6770 mandated the
Ombudsman and his deputies not only to act promptly on complaints but also to
enforce the administrative, civil and criminal liability of government officers
and employees in every case where the evidence warrants to promote efficient
service by the Government to the people.
The authority of the
Ombudsman to conduct administrative investigations as in the present case is
settled. Section 19 of RA 6770 provides:
SEC. 19. Administrative
Complaints. The Ombudsman shall act on all complaints relating, but not
limited to acts or omissions which:
(1) Are contrary to
law or regulation;
(2) Are unreasonable,
unfair, oppressive or discriminatory;
(3) Are inconsistent with
the general course of an agencys functions, though in accordance with law;
(4) Proceed from a
mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise
of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular,
immoral or devoid of justification.
The
point of contention is the binding power of any decision or order that emanates
from the Office of the Ombudsman after it has conducted its
investigation. Under Section 13(3) of Article XI of the 1987 Constitution,
it is provided:
Section 13. The Office of the
Ombudsman shall have the following powers, functions, and duties:
x x x x
(3)
Direct the officer concerned to take appropriate action against a public
official or employee at fault, and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure
compliance therewith. (Emphasis supplied)[38]
Dr. Apolonios invocation of our obiter dictum in Tapiador was likewise rejected in Ledesma, viz.:
Petitioner
insists that the word recommend be given its literal meaning; that is,
that the Ombudsmans action is only advisory in nature rather than one having
any binding effect, citing Tapiador
v. Office of the Ombudsman, thus:
Besides,
assuming arguendo, that
petitioner [was] administratively liable, the Ombudsman has no authority to
directly dismiss the petitioner from the government service, more particularly
from his position in the BID. Under Section 13, subparagraph (3), of
Article XI of the 1987 Constitution, the Ombudsman can only recommend the
removal of the public official or employee found to be at fault, to the public
official concerned.
For
their part, the Solicitor General and the Office of the Ombudsman argue that
the word recommend must be taken in conjunction with the phrase and
ensure compliance therewith. The proper interpretation of the
Courts statement in Tapiador should be that the Ombudsman has the
authority to determine the administrative liability of a public official or
employee at fault, and direct and compel the head of the office or agency
concerned to implement the penalty imposed. In other words, it merely
concerns the procedural aspect of the Ombudsmans functions
and not its jurisdiction.
We
agree with the ratiocination of public respondents. Several reasons
militate against a literal interpretation of the subject constitutional
provision. Firstly, a cursory reading of Tapiador reveals that the main point of the
case was the failure of the complainant therein to present substantial evidence
to prove the charges of the administrative case. The statement that made
reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying interpretations, as what
precisely is before us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from judicial examination.[39]
In denying Tapiador and the reasoning in that case, Ledesma traced the constitutional mandate of the Ombudsman, as
expressed in the intent of its framers and the constitutionality of RA 6770, viz.:
The
provisions of RA 6770 support public respondents theory. Section 15 is
substantially the same as Section 13, Article XI of the Constitution which provides
for the powers, functions and duties of the Ombudsman. We draw attention
to subparagraph 3, to wit:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
x x
x x
(3) Direct the officer
concerned to take appropriate action against a public officer or employee at
fault or who neglects to perform an act or discharge a duty required by law,
and recommend his removal, suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith; or enforce its disciplinary authority as
provided in Section 21 of this Act: Provided, That the refusal by any officer
without just cause to comply with an order of the Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an officer or employee who is at fault or
who neglects to perform an act or discharge a duty required by law shall be a
ground for disciplinary action against said officer[.] (Emphasis
supplied)
We
note that the proviso above qualifies the order to remove, suspend, demote,
fine, censure, or prosecute an officer or employee akin to the questioned
issuances in the case at bar. That the refusal, without just cause, of
any officer to comply with such an order of the Ombudsman to penalize an erring
officer or employee is a ground for disciplinary action, is a strong indication
that the Ombudsmans recommendation is not merely advisory in nature but is
actually mandatory within the bounds of law. This should not be
interpreted as usurpation by the Ombudsman of the authority of the head of
office or any officer concerned. It has long been settled that the power
of the Ombudsman to investigate and prosecute any illegal act or omission of
any public official is not an exclusive authority but a shared or concurrent
authority in respect of the offense charged. By stating therefore that the
Ombudsman recommends the action to be taken against an erring officer or
employee, the provisions in the Constitution and in RA 6770 intended that the
implementation of the order be coursed through the proper officer, which in
this case would be the head of the BID.
It
is likewise apparent that under RA 6770, the lawmakers intended to provide the
Office of the Ombudsman with sufficient muscle to ensure that it can
effectively carry out its mandate as protector of the people against inept and
corrupt government officers and employees. The Office was granted the
power to punish for contempt in accordance with the Rules of Court. It was
given disciplinary authority over all
elective and appointive officials of the government and its subdivisions,
instrumentalities and agencies (with the exception only of impeachable
officers, members of Congress and the Judiciary). Also, it can preventively
suspend any officer under its authority pending an investigation when the case
so warrants.
The
foregoing interpretation is consistent with the wisdom and spirit behind the
creation of the Office of the Ombudsman. The records of the deliberations
of the Constitutional Commission reveal the following:
MR. MONSOD:
Madam President, perhaps it might be helpful if we
give the spirit and intendment of the Committee. What we wanted to avoid
is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the
Ombudsman a chance, with prestige and persuasive powers, and also a chance to
really function as a champion of the citizen.
However, we do not want to foreclose the possibility that in the
future, The Assembly, as it may see fit, may have to give additional powers to
the Ombudsman; we want to give the concept of a pure Ombudsman a chance under
the Constitution.
MR. RODRIGO:
Madam
President, what I am worried about is if we create a constitutional body which
has neither punitive nor prosecutory powers but only persuasive powers, we
might be raising the hopes of our people too much and then disappoint them.
MR. MONSOD:
I
agree with the Commissioner.
MR. RODRIGO:
Anyway,
since we state that the powers of the Ombudsman can later on be implemented by
the legislature, why not leave this to the legislature?
MR. MONSOD:
Yes,
because we want to avoid what happened in 1973. I read the committee
report which recommended the approval of the 27 resolutions for the creation of
the office of the Ombudsman, but notwithstanding the explicit purpose
enunciated in that report, the implementing law the last one, P.D. No. 1630 did
not follow the main thrust; instead it created the Tanodbayan, x x x.
x x x x
MR. MONSOD: (reacting to statements of Commissioner Blas Ople):
May
we just state that perhaps the honorable Commissioner has looked at it in too
much of an absolutist position, The Ombudsman is seen as a civil advocate or a
champion of the citizens against the bureaucracy, not against the
President. On one hand, we are told he has no teeth and he lacks other
things. On the other hand, there is the interpretation that he is a
competitor to the President, as if he is being brought up to the same level as
the President.
With
respect to the argument that he is a toothless animal, we would like to say
that we are promoting the concept in its form at the present, but we are also saying that he can
exercise such powers and functions as may be provided by law in accordance with
the direction of the thinking of Commissioner Rodrigo. We did not think
that at this time we should prescribe this, but we leave it up to Congress at
some future time if it feels that it may need to designate what powers the
Ombudsman need in order that he be more effective. This is not
foreclosed.
So,
his is a reversible disability, unlike that of a eunuch; it is not an
irreversible disability. (Emphasis supplied)
It
is thus clear that the framers of our Constitution intended to create a
stronger and more effective Ombudsman, independent and beyond the reach of
political influences and vested with powers that are not merely persuasive in
character. The Constitutional Commission left to Congress to empower the
Ombudsman with prosecutorial functions which it did when RA 6770 was
enacted. In the case of Uy
v. Sandiganbayan, it was held:
Clearly, the Philippine Ombudsman departs from the classical
Ombudsman model whose function is merely to receive and process the peoples
complaints against corrupt and abusive government personnel. The
Philippine Ombudsman, as protector of the people, is armed with the power to
prosecute erring public officers and employees, giving him an active role in
the enforcement of laws on anti-graft and corrupt practices and such other
offenses that may be committed by such officers and employees. The legislature has vested him with
broad powers to enable him to implement his own actions. x x x. [emphasis and underscoring ours, citations excluded][40]
The conclusion reached by the Court in
Ledesma is clear: the Ombudsman has
been statutorily granted the right to impose administrative penalties on erring
public officials. That the Constitution
merely indicated a recommendatory power in the text of Section 13(3), Article
XI of the Constitution did not deprive Congress of its plenary legislative
power to vest the Ombudsman powers beyond those stated.
We affirmed and consistently applied this
ruling in the cases of Gemma P. Cabalit v. Commission on Audit-Region
VII,[41] Office of the Ombudsman v. Masing,[42] Office of the
Ombudsman v. Court of Appeals,[43] Office of the
Ombudsman v. Laja,[44] Office of the
Ombudsman v. Court of Appeals,[45] Office of the
Ombudsman v. Lucero,[46] and Office of the
Ombudsman v. Court of Appeals.[47]
To be sure, in the most recent case of
Gemma P. Cabalit v. Commission on Audit-Region VII,[48]
this Court reiterated the principle behind the grant of such powers to the
Ombudsman, viz.:
The provisions in
R.A. No. 6770 taken together reveal the manifest intent of the lawmakers to
bestow on the Office of the Ombudsman full administrative disciplinary
authority. These provisions cover the entire gamut of administrative
adjudication which entails the authority to, inter
alia, receive complaints, conduct investigations, hold hearings in
accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and
employees pending an investigation, determine the appropriate penalty imposable
on erring public officers or employees as warranted by the evidence, and,
necessarily, impose the said penalty. Thus,
it is settled that the Office of the Ombudsman can directly impose administrative
sanctions. (emphasis ours, citations excluded)
Contrary to the Ombudsmans submissions, however, Dr.
Apolonio is guilty of simple misconduct, not grave misconduct or conduct
prejudicial to the best interest of the service
We disagree with both the CAs and the Ombudsmans
findings. Instead, we find Dr. Apolonio
guilty of simple misconduct.
At the outset, the Court notes that no questions of fact are
raised in these proceedings. Both the
Ombudsman and Dr. Apolonio concede that the latter appropriated funds intended
for the workshop to a purpose other than the one stated and approved by the
NBDB. Therefore, the only issue to be
determined is whether the purchase of the gift cheques constitutes a grave
misconduct or, as found by the CA, conduct prejudicial to the best interest of the
service. As already stated, we find
Dr. Apolonio guilty of neither, and instead hold her liable for simple
misconduct.
In Civil Service
Commission v. Ledesma,[49]
the Court defined misconduct as a transgression
of some established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer. We further stated that misconduct becomes
grave if it involves any of the additional elements of corruption, willful
intent to violate the law or to disregard established rules, which must be established
by substantial evidence.[50] Otherwise, the misconduct is only simple.[51] Therefore, [a] person charged with grave
misconduct may be held liable for simple misconduct if the misconduct does not
involve any of the additional elements to qualify the misconduct as grave.[52]
In Civil Service
Commission v. Ledesma,[53]
respondent was found guilty of simple misconduct by this Court when she
accepted amounts meant for the payment of Environmental Compliance Certificates
and failed to account for P460.00.
The Court noted that [d]ismissal and
forfeiture of benefits, however, are not penalties imposed for all infractions,
particularly when it is a first offense.[54] Despite evidence of misconduct in her case,
the Court emphasized that [t]here must be substantial evidence that grave
misconduct or some other grave offense meriting dismissal under the law was
committed.[55]
Further, in Monico
K. Imperial, Jr. v. Government Service Insurance System,[56]
the Court considered Imperials act of approving the salary loans of eight
employees who lacked the necessary contribution requirements under GSIS
Policy and Procedural Guidelines No. 153-99 as simple misconduct. It refused to categorize the act as grave
misconduct because no substantial evidence was adduced to prove the elements of
corruption, clear intent to violate the law or flagrant disregard of
established rule that must be present to characterize the misconduct as grave.
As in the cases of Civil Service Commission v. Ledesma[57] and Imperial,
Dr. Apolonios use of the funds to purchase the gift cheques cannot be said to
be grave misconduct.
First, Dr. Apolonios actions
were not attended by a willful intent to violate the law or to disregard
established rules. Although the Court
agrees that Dr. Apolonios acts contravene the clear provisions of Section 89 of PD 1445, otherwise
known as the Government Auditing Code of the Philippines, such was not
attended by a clear intent to violate the law or a flagrant disregard of
established rules.[58] Several circumstances militate in favor of
this conclusion.
Dr. Apolonio merely responded to the employees
clamor to utilize a portion of the workshop budget as a form of Christmas
allowance. To ensure that she was not
violating any law, Dr. Apolonio even consulted Mr. Montealto, then Finance and
Administrative Chief of the NBDB, on the possible legal repercussions of the
proposal. Likewise, aside from receiving
the same benefit, there is no evidence in the record that Dr. Apolonio
unlawfully appropriated in her favor any amount from the approved workshop
budget. Therefore, we see no willful
intent in Dr. Apolonios actions.
Second, we disagree with the Ombudsmans
insinuations that Dr. Apolonios acts may be considered technical malversation
and, therefore, constitute a crime. In Parungao v. Sandiganbayan, et al.,[59]
the Court held that in the absence of a law or ordinance appropriating the
public fund allegedly technically malversed for another public purpose, an
accused did not commit technical malversation as set out in Article 220 of the
Revised Penal Code.[60] In that case, the Court acquitted Oscar P. Parungao
(then a municipal treasurer) of the charges of technical malversation even
though he used funds allotted (by a Department of Environment and Natural
Resources circular) for the construction of a road project and re-allocated it
to the labor payroll of different barangays
in the municipality. The Court held that
since the budget for the construction of the road was not appropriated by a law
or by an ordinance for that specified public purpose, the re-allocation of the
budget for use as payroll was not technical malversation.
Similarly, in this
case, the budget allocation for the workshop was neither appropriated by law
nor by ordinance since DBM National Budget Circular No. 442 is not a law or an ordinance. Even if it
had been, however, it must be noted that DBM National Budget Circular No. 442
only prescribed the amounts to be used for any workshop, conference or
seminar. It did not appropriate the
specific amounts to be used in the event in question.
Therefore, when Dr. Apolonio approved the purchase of the
gift cheques using a portion of the workshops budget, her act did not amount
to technical malversation. Moreover, if
her acts did, in fact, constitute technical malversation, the Ombudsman ought
to have filed a criminal case against her for violation of Article 220 of the
Revised Penal Code.
We cannot likewise agree with the CAs findings
that Dr. Apolonios acts constitute merely as conduct prejudicial to the best interest
of the service. In Manuel v. Judge Calimag,
Jr.,[61]
we held, viz.:
Misconduct in office has
been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in
office has a definite and well-understood legal meaning. By uniform legal
definition, it is a misconduct such as affects his performance of his duties as
an officer and not such only as affects his character as a private individual.
In such cases, it has been said at all times, it is necessary to separate the
character of the man from the character of the officer x x x[.] It is settled
that misconduct, misfeasance, or malfeasance warranting removal from office of
an officer must have direct relation to and be connected with the performance
of official duties amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the office x x x[.]
More specifically, in Buenaventura
v. Benedicto, an
administrative proceeding against a judge of the court of first instance, the
present Chief Justice defines misconduct as referring to a transgression of
some established and definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer. [emphasis supplied,
citations excluded]
Therefore, if a nexus
between the public officials acts and functions is established, such act is
properly referred to as misconduct. In
Dr. Apolonios case, this nexus is clear since the approval of the cash advance
was well within her functions as NBDBs executive officer.[62]
Contrast her situation,
for example with the case of Cabalitan v. Department of Agrarian Reform,[63] where we held that the offense committed by
the employee in selling fake Unified Vehicular Volume Program exemption cards
to his officemates during office hours was not grave misconduct, but conduct
prejudicial to the best interest of the service. Further contrast Dr. Apolonios case with Mariano
v. Roxas,[64]
where the Court held that the offense committed by a [CA] employee in forging
some receipts to avoid her private contractual obligations, was not misconduct
but conduct prejudicial to the best interest of the service because her acts
had no direct relation to or connection with the performance of her official
duties.
CONCLUSION
Thus, we hold that Dr. Apolonio is
guilty of simple misconduct. Although
her actions do not amount to technical malversation, she did violate Section 89
of PD 1445 when she approved the cash advance that was not authorized by the
NBDBs Governing Board. Further, since
the approval of the cash advance was an act done pursuant to her functions as
executive officer, she is not merely guilty of conduct prejudicial to the best interest
of the service.
WHEREFORE, we PARTIALLY GRANT the Office of the Ombudsmans petition for review
on certiorari, and MODIFY the decision of the Court of
Appeals in CA-G.R. SP No. 73357. We find
Dr. Nellie R. Apolonio GUILTY of SIMPLE MISCONDUCT. In the absence of any showing that this is her second offense for simple misconduct, we
impose the penalty of SUSPENSION for SIX MONTHS against Dr. Apolonio,[65] but
due to her retirement from the service, we order the amount corresponding to her six-month salary to be deducted from
her retirement benefits.
No pronouncement as to costs.
SO ORDERED.
ARTURO
D. BRION
Associate
Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate
Justice
Chairperson
|
JOSE Associate
Justice |
MARIA Associate
Justice |
BIENVENIDO L. REYES
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 Courts 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 Courts Division.
RENATO
C. CORONA
Chief
Justice
[1] Filed under Rule 45 of the Rules of Court; rollo pp. 11-37.
[2] Penned by Justice Rodrigo V. Cosico, and concurred in by Justices Sergio L. Pestao and Rosalinda Asuncion-Vicente; id. at 43-51.
[3] Signed by Acting Ombudsman Margarito Gervacio, Jr. on August 21, 2002; id. at 176-182.
[4]
Sec. 9. The Secretariat. The Board shall have a permanent Secretariat under an Executive Officer, who shall be appointed by the Board.
The authority and responsibility for the day-to-day management and direction of the operations of the affairs of the Board shall be vested in the Executive Officer.
[5] Supra.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10]
[11] Ibid.
[12] Ibid.
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Id. at 189.
[21] Id. at 48.
[22]
[23]
[24] Ibid.
[25]
[26]
[27]
[28] A.M. Nos. P-90-414 & P-90-531, August 9, 1993, 225 SCRA 205.
[29] Rollo, p. 26.
[30]
[31] Id. at 30-31.
[32] G.R. No. 129124, March 15, 2002, 379 SCRA 322.
[33] Rollo, p. 31.
[34]
[35]
[36]
[37] G.R. No. 161629, july 29, 2005, 465 SCRA 437.
[38] Id. at 446-448.
[39] Id. at 448-449.
[40] Id. at 449-453.
[41] G.R. Nos. 180236, 180341, & 180342, January 17, 2012.
[42] G.R. Nos. 165416, 165584, & 165731, January 22, 2008, 542 SCRA 253.
[43] G.R. No. 168079, July 17, 2007, 527 SCRA 798, 806-807.
[44] G.R. No. 169241, May 2, 2006, 488 SCRA 574.
[45] G.R. No. 160675, June 16, 2006, 491 SCRA 92, 108.
[46] G.R. No. 168718, November 24, 2006, 508 SCRA 106, 112-113.
[47] G.R. No. 167844, November 22, 2006, 507 SCRA 593, 610.
[48] Supra note 41.
[49] G.R. No. 154521, September 30, 2005, 471 SCRA 589, 603, citing Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26, 2004, 424 SCRA 9, and Castelo v. Florendo, A.M. No. P-96-1179, October 10, 2003, 413 SCRA 219.
[50] Civil Service Commission v. Ledesma, supra, at 603, citing Civil Service Commission v. Lucas, 361 Phil. 486 (1999); and Landrito v. Civil Service Commission, G.R. Nos. 104304-05, June 22, 1993, 223 SCRA 564.
[51]
[52] Civil Service Commission v. Ledesma, supra note 49, at 603.
[53] Ibid.
[54] Id. at 611.
[55] Ibid.
[56] G.R. No. 191224, October 4, 2011.
[57] Supra note 49.
[58] Monico K. Imperial, Jr. v. Government Service Insurance System, supra note 56.
[59] 274 Phil. 451 (1991).
[60] Art. 220. Illegal use of public funds or property. Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damage or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.
[61] 367 Phil. 162, 166 (1999), cited in Largo v. Court of Appeals, G.R. No. 177244, November 20, 2007, 537 SCRA 721, 730-731.
[62] RA 8047, otherwise known as An Act Providing for the Development of the Book Publishing Industry Through the Formulation and Implementation of a National Book Policy and a National Book Development Plan.
Sec. 9. The Secretariat. The Board shall have a permanent Secretariat under an Executive Officer, who shall be appointed by the Board.
The authority and responsibility for the day-to-day management and direction of the operations of the affairs of the Board shall be vested in the Executive Officer.
[63] G.R. No. 162805, January 23, 2006, 479 SCRA 452, 456 and 461, cited in Largo v. Court of Appeals, supra note 61, at 733.
[64] 434 Phil.
742, 751 (2002), cited in Largo
v. Court of Appeals, supra, at 733.
[65] Pursuant to 52(B)(2), Rule IV, Revised Uniform Rules on Administrative Cases in the Civil Service.