hernandez

CIVIL SERVICE COMMISSION, PETITIONER, VS. PEDRO O. DACOYCOY, RESPONDENT.

G.R. NO. 135805, APRIL 29, 1999

FACTS:

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism.

            On January 28, 1997,the Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.

            On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission.

ISSUE:

            Whether or not Pedro O. Dacoycoy was guilty of nepotism.

RULING:

  Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:

            a) appointing authority;
            b) recommending authority;
            c) chief of the bureau or office, and
            d) person exercising immediate supervision over the appointee.

            Clearly, there are four situations covered  in the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

            To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.

[ G.R. NO. 96298, MAY 14, 1991 ]

RENATO M. LAPINID, PETITIONER, VS.CIVIL SERVICE COMMISSION PHILIPPINE PORTS AUTHORITY AND JUANITO JUNSAY, RESPONDENTS.

FACTS:

  Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay.

            He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto.

  On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment.

 In the comparative evaluation sheets, the parties were evaluated according to the following criteria, namely: eligibility; education; work experience; productivity/performance/attendance; integrity; initiative/leadership; and physical characteristics/personality traits.

It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78).

Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor.

ISSUE:

            Whether or not the Civil Service Commission has the authority to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter

RULING:

  Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

            Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor.

G.R. No. 169004               September 15, 2010
PEOPLE OF THE PHILIPPINES, Petitioner, 
vs.
SANDIGANBAYAN (THIRD DIVISION) and ROLANDO PLAZA, Respondents.

FACTS:

  Respondent Rolando Plaza, a member of the Sangguniang Panlungsod of Toledo City, Cebu, at the time relevant to this case, with salary grade 25, had been charged in the Sandiganbayan with violation of Section 89 of Presidential Decree (P.D.) No. 1445, or The Auditing Code of the Philippines for his failure to liquidate the cash advances he received on December 19, 1995 in the amount of Thirty-Three Thousand Pesos (P33,000.00) .

            Eventually, the Sandiganbayan promulgated its Resolution on July 20, 2005 dismissing the case for lack of jurisdiction, without prejudice to its filing before the proper court.

ISSUE:

            Whether or not the Sandiganbayan has jurisdiction over a member of the Sangguniang Panglungsod whose salary grade is below 27 and charged with violation of The Auditing Code of the Philippines.

RULING:

            The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people. P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. Section 4 of P.D. 1606, as amended by section 2 of R.A. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. 8249, is the law that should be applied in the present case, the offense having been allegedly committed on or about December 19, 1995   and  the information having been filed on March 25, 2004. As extensively explained in the earlier mentioned case: The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense.

            The exception contained in R.A. 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter !!, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines.

   The present case having been instituted on March 25, 2004, the provisions of R.A. 8249 shall govern. P.D. 1606, as amended by R.A. 8249 states that:

   Sec. 4. Jurisdiction. - - The Sandiganbayan shall exercise original jurisdiction in all cases involving:

   A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

   (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
X  X  X...

  (b)  City mayors, vice mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.

Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided hat they hold the positions thus enumerated by the same law.

The court had ruled that as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance, though improper or irregular, of his official functions, there being no personal motive to commit the crime and had the accused not have committed it had he not held the aforesaid office, the accused is held to have been indicted for “and offense committed in relation” to his office.

Moreover, it is beyond clarity that the same provisions of Section 4 (b) does not mention any qualification as to the public officials involved. It simply stated, public officials and employees mentioned in subsection (a) of the same section. Therefore, it refers to those public officials with Salary Grade 27 and above, except those specifically enumerated.

G.R. No. 161098 September 13, 2007

OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
CELSO SANTIAGO, Respondent.

FACTS:

  On July 27, 2000, the City of Manila, through the City Budget Office, released a calamity fund for Barangay 183, Zone 16, same city, in the amount of P44,053.00. This was received by Barangay Chairman Celso Santiago, respondent herein.

  On October 3, 2000, Rebecca B. Pangilinan, Mario B. Martin, Rolando H. Lopez and Alfredo M. Escaño, Sr., all barangay kagawad of Barangay 183, filed with the Office of the Ombudsman, petitioner, an administrative complaint for technical malversation, violation of the Anti-Graft and Corrupt Practices Act, dishonesty, grave misconduct and conduct unbecoming of a public officer against respondent, docketed as OMB-ADM-0-00-0828.

  In a Decision dated May 22, 2001, the Office of the Ombudsman declared respondent guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service and dismissed him from the service.

ISSUE:

            Whether the Ombudsman has the power to dismiss erring government officials or employees.

RULING:

  Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

  (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.

  In interpreting a statute, care should be given that every part thereof be given effect. Hence, the use of the word "recommend" must be read in conjunction with the words "ensure compliance therewith" in order not to run counter to the intention of the framers of the Constitution to give the Ombudsman full and complete disciplinary authority, with powers that are not merely persuasive in character.

  Considering that the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, it follows that the Ombudsman’s "recommendation" is not merely advisory but is actually mandatory within the bounds of law.

            The powers of the Ombudsman are not merely recommendatory.

[ G.R. NO. 193677, SEPTEMBER 06, 2011 ]

LUCIANO VELOSO, ABRAHAM CABOCHAN, JOCELYN DAWIS-ASUNCION AND MARLON M. LACSON, PETITIONERS, VS. COMMISSION ON AUDIT, RESPONDENT.

FACTS:

  On December 7, 2000, the City Council of Manila enacted Ordinance No. 8040 entitled An Ordinance Authorizing the Conferment of Exemplary Public Service Award to Elective Local Officials of Manila Who Have Been Elected for Three (3) Consecutive Terms in the Same Position.

  The ordinance was deemed approved on August 23, 2002. Section 2 thereof provides:

  SEC. 2. The EPSA shall consist of a Plaque of Appreciation, retirement and gratuity pay remuneration equivalent to the actual time served in the position for three (3) consecutive terms, subject to the availability of funds as certified by the City Treasurer. …xxx…

            On November 9, 2006, former councilors Jocelyn Dawis-Asuncion (Dawis-Asuncion), Luciano M. Veloso (Veloso), Abraham C. Cabochan (Cabochan), Marlon M. Lacson (Lacson), Julio E. Logarta, Jr., and Monina U. Silva, City Accountant Gloria C. Quilantang, City Budget Officer Alicia Moscaya and then Vice Mayor and Presiding Officer Danilo B. Lacuna filed a Motion to Lift the Notice of Disallowance. In its Decision No. 2007-171 dated November 29, 2007, the LAO-Local decided in favor of the movants.

ISSUES:

   (1) Whether the COA has the authority to disallow the disbursement of local government funds; and

            (2) Whether the COA committed grave abuse of discretion in affirming the disallowance of P9,923,257.00 covering the EPSA of former three-term councilors of the City of Manila authorized by Ordinance No. 8040.

RULING:

  Under the 1987 Constitution, the COA is vested with the authority to determine whether government entities, including LGUs, comply with laws and regulations in disbursing government funds, and to disallow illegal or irregular disbursements of these funds.

  Thus, LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the COA.

  Section 458 of RA 7160 defines the power, duties, functions and compensation of theSangguniang Panlungsod, to wit:

  SEC. 458. Powers, Duties, Functions and Compensation. - (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

  (viii) Determine the positions and salaries, wages, allowances and other emoluments and benefits of officials and employees paid wholly or mainly from city funds and provide for expenditures necessary for the proper conduct of programs, projects, services, and activities of the city government.

The ordinance authorized the conferment of the EPSA to the former three-term councilors and, as part of the award, the qualified city officials were to be given "retirement and gratuity pay remuneration." We believe that the award is a "gratuity" which is a free gift, a present, or benefit of pecuniary value bestowed without claim or demand, or without consideration.

However, in line with existing jurisprudence, we need not require the refund of the disallowed amount because all the parties acted in good faith.

[ G.R. NO. 125129, MARCH 29, 1999 ]

JOSEPH H. REYES, PETITIONER, VS. COMMISSION ON AUDIT, RESPONDENT.

FACTS:

  Petitioner Joseph H. Reyes, a member of the TLRC Provident Fund Board of Trustees, filed this petition with the Supreme Court on June 17, 1996, as an appeal by certiorari under Rule 44 of the Revised Rules of Court, assailing the decision of the Commission on Audit (COA).

  By Resolution No. 89-003, the TLRC Executive Committee created a Provident Fund the primary purpose of which was to augment the retirement benefits of the officers and employees of TLRC. The Provident Fund also provided additional benefits to its members, in accordance with the policies and guidelines approved by the Board of Trustees. The Fund's sources of capital were from contributions of each member consisting of 2% of his gross monthly salary and TLRC's or the government's counterpart share equivalent to 10% of the member's gross monthly salary, earnings of funds and others.

            On June 3, 1993, Corporate Auditor Adelaida S. Flores suspended the transfer of funds from TLRC to the Provident Fund for the years 1990-1991, amounting to P11,065,715.84. Auditor Flores held that under Par. 5.4 of Corporate Compensation Circular No. 10, Rules and Regulations issued under R.A. 6758, fringe benefits were allowed provided that statutory authority covered such grant of benefits.

ISSUE:

            . Whether or not the members of the Provident Fund acquired vested rights over the government contributions.

RULING:

  The petition in this case was filed on June 17, 1996, prior to the effectivity of the 1997 Rules of Civil Procedure. Nevertheless, the mode of elevating cases decided by the Commission on Audit to this Court was only by petition for certiorari under Rule 65, as provided by the 1987 Constitution.

  However, setting aside the procedural error pro hac vice, and treating the petition as one for certiorari under Rule 65, we find that the Commission on Audit did not commit a grave abuse of discretion.

  Since the purpose was not attained due to the question on the validity of the Fund, then the employees are not entitled to claim the government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be tantamount to the use of public funds outside the specific purpose for which the funds were appropriated.

  There is no merit to petitioner's claim that the members of the Provident Fund acquired a vested right over the government contributions. "A vested right is one which is absolute, complete and unconditional, to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency,"

            What is more, the Provident Fund was dissolved due to lack of statutory basis. Thus, contributions made were unauthorized, if not unlawful.

[ G.R. NO. 81467, OCTOBER 27, 1989 ]

NARCISO Y. SANTIAGO, JR., PETITIONER, VS. CIVIL SERVICE COMMISSION AND LEONARDO A. JOSE, RESPONDENTS.

FACTS:

  On 18 November 1986, then Customs Commissioner Wigberto E. Tanada extended a permanent promotional appointment, as Customs Collector III, to petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service Commission (CSC), National Capital Region Office.

  On 26 November 1986, respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board (the Board, for short) against SANTIAGO's promotional appointment mainly on the ground that he was next-in-rank to the position of Collector of Customs III.

ISSUE:

            Whether the appointment of Narciso Y Santiago as Customs Collector III may be revoked by the Civil Service Commission on the ground that he is not the person next-in-rank.

RULING:

  One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants avested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83-343.

  The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice as to who is best qualified for the position.

            To apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment.

G.R. No. 167304               August 25, 2009
PEOPLE OF THE PHILIPPINES, Petitioner, 
vs.
SANDIGANBAYAN (third division) and VICTORIA AMANTE, Respondents.

FACTS:

  Victoria Amante was a member of the Sangguniang Panlungsod of Toledo City, Province of Cebu at the time pertinent to this case. On January 14, 1994, she was able to get hold of a cash advance in the amount of P71,095.00 under a disbursement voucher in order to defray seminar expenses of the Committee on Health and Environmental Protection, which she headed. As of December 19, 1995, or after almost two years since she obtained the said cash advance, no liquidation was made.

  The Office of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, on April 6, 2001, prepared a memorandum finding probable cause to indict respondent Amante.

            The Sandiganbayan, in its Resolution dated February 28, 2005, dismissed the case against Amante for lack of jurisdiction.

ISSUE:

            Whether or not the sandiganbayan has jurisdiction over a case involving a sangguniang panlungsod member where the crime charged is one committed in relation to office, but not for violation of ra 3019, ra 1379 or any of the felonies mentioned in chapter ii, section 2, title vii of the revised penal code.

RULING:

  The present case falls under Section 4(b) where other offenses and felonies committed by public officials or employees in relation to their office are involved. Under the said provision, no exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense applies in this present case.

  Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

  x  x  x…..

  (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.

            By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in relation to her office, falls within the original jurisdiction of the Sandiganbayan.

[ G.R. NO. 111471, SEPTEMBER 26, 1994 ]

CITY MAYOR ROGELIO R. DEBULGADO AND VICTORIA T. DEBULGADO, PETITIONERS, VS. CIVIL SERVICE COMMISSION, RESPONDENT.

FACTS:

  Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992, petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the Office of General Service of the City Government of San Carlos.

  On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General Services Officer of San Carlos City and receiving the regular salary attached to that position.

  The CSC, in its Resolution No. 93-1427 dated 13 April 1993, recalled the approval issued by Director Escobia and disapproved the promotion of petitioner upon the ground that that promotion violated the statutory prohibition against nepotic appointments.

  The motion for reconsideration was denied by the Commission on 21 July 1993.

            In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely abused its discretion in withdrawing and disapproving petitioner Victoria’s promotional appointment. 

ISSUES:

   1. Whether a promotional appointment is covered by the legal prohibition against nepotism, or whether that prohibition applies only to original appointments to the Civil Service; and

   2. Whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner Victoria after the Commission, through Director Escobia, had earlier approved that same appointment, without giving an opportunity to petitioner Victoria to explain her side on the matter.

RULING:

  One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable here because petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is not disputed that the original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in the 4th paragraph thereof, that the prohibition against nepotism is not

  “applicable to the case of a member of any family who, after his or her appointment to any position in any office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.” (Underscoring supplied)

  The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to petitioner Victoria in 1 October 1982 that is at stake.

  A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.

  The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g., promotions.

            Such power includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations.

[ G.R. NO. 71562, OCTOBER 28, 1991 ]

JOSE C. LAUREL V, IN HIS OFFICIAL CAPACITY AS PROVINCIAL GOVERNOR OF BATANGAS, PETITIONER, VS. CIVIL SERVICE COMMISSION AND LORENZO SANGALANG, RESPONDENTS.

FACTS:

  Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official.

  On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III.

  Petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked.

            On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868.

ISSUES:

   1. Whether the questioned position is confidential in nature.

   2.  Whether or not the rule on nepotism may be applied to designation.

RULING

  As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions.

  Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism.

  The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty."

  In Binamira vs. Garrucho, this Court, per Mr. Justice Isagani M. Cruz, stated:

  "Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named."

            WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service Commission are AFFIRMED.