russel saracho

CIVIL SERVICE COMMISSION,petitioner

versus

PASTOR B. TINAYA, respondent.

[EN BANC]

G.R. NO. 154898

FEBRUARY 16, 2005

FACT:
Pastor B. Tinaya was issued a permanent appointment as municipal assessor of the Municipality of Tabontabon, Leyte by Municipal Mayor Priscilla R. Justimbaste. His appointment was approved, respondent took his oath and assumed the duties of his office. Fifteen (15) days after his appointment was approved, respondent married Caridad R. Justimbaste, daughter of Mayor Priscilla Justimbaste. On November 23, 1994 up to December 29, 1994 - Mayor Priscilla Justimbaste was on leave of absence. Vice-Mayor Rosario C. Luban was then the Acting Mayor. After the expiration of respondent’s temporary appointment, Acting Mayor Luban appointed him anew as municipal assessor effective that day. The appointment was permanent. The CSC Regional Office No. VIII initially disapproved respondent’s new appointment. But upon appeal by Mayor Priscilla Justimbaste, the CSC, in its Resolution, approved respondent’s appointment as permanent. Respondent requested Arturo Juanico, Officer-in-Charge of the municipality’s Human Resources Management Office (HRMO), to furnish him a copy of his service record. The request was not immediately acted upon since respondent’s 201 file was still to be retrieved from the Office of Mayor Bienvenido Balderian. This prompted respondent to report the matter to the CSC Regional Office No. VIII with a request to conduct an “on-the-spot physical audit” of the municipal employees’ 201 files. A day after, respondent’s service record was release. The CSC’s Personnel Inspection and Audit Division conducted an audit and found, among others, that the matter of the delay in the release of respondent’s service records has become moot since his request was already acted upon; and that his appointment as municipal asessor on December 1, 1994 was issued in violation of the law on nepotism and, therefore, should be recalled.

ISSUE:

Whether or not approval of the appointment of Pastor Tinaya as Municipal Assessor, LGU – Tabontabon, Leyte, is in violation of the law on nepotism.

HELD:

The ruling is based on the Appellate Court’s finding that respondent’s original appointment as municipal assessor was permanent in nature, although approved by the CSC as temporary. Being permanent in character, he enjoys security of tenure and cannot be removed from office without valid cause. Thus, his reappointment to the same post on was unnecessary or “a mere superfluity.” Moreover, respondent cannot be held guilty of nepotism as he was not yet married to the daughter of former Mayor Priscilla Justimbaste at the time the latter appointed him municipal assessor. Petitioner filed a motion for reconsideration but was denied by the Court of Appeals in its Resolution dated August 21, 2002. This prompted petitioner, through the Solicitor General, to elevate the matter to us via this petition for review on certiorari.Petitioner contends that the Court of Appeals erred in holding that respondent’s original appointment as municipal assessor on November 16, 1993 is permanent, granting him security of tenure; and in declaring that his subsequent appointment on December 1, 1994 does not violate the rule on nepotism. In his comment, respondent prays that the instant petition be denied for lack of merit. His counter-arguments merely reiterate the findings and ruling of the Court of Appeals. We rule in favor of petitioner. The instant petition is GRANTED. The challenged Decision of the Court of Appeals dated March 21, 2002 and its Resolution dated August 21, 2002 in CA-G.R. SP No. 63051 are REVERSED. The Resolution No. 002470 dated October 26, 2000 and Resolution No. 010126 dated January 12, 2001 of petitioner CSC are AFFIRMED. SO ORDERED.

 

 

 

 

 

 

 

 

 

LUCIANO VELOSO, ABRAHAM CABOCHAN,

JOCELYN DAWIS-ASUNCION AND MARLON M. LACSON, petitioners

versus

COMMISSION ON AUDIT,respondent.

 

[EN BANC]

 G.R. NO. 193677

SEPTEMBER 06, 2011

FACTS:

The City Council of Manila enacted 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 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. PROVIDED, That [it] shall be accorded to qualified elected City Officials on or before the first day of service in an appropriated public ceremony to be conducted for the purpose. The ordinance was deemed approved. Atty. Gabriel J. Espina (Atty. Espina), Supervising Auditor of the City of Manila, issued Audit Observation Memorandum (AOM) No. 2005-100(05)07(05)with the following observations: (1) The initial payment of monetary reward as part of Exemplary Public Service Award (EPSA) amounting to P9,923,257.00 to former councilors of the City Government of Manila who have been elected for three (3) consecutive terms to the same position as authorized by City Ordinance No. 8040 is without legal basis; (2) The amount granted as monetary reward is excessive and tantamount to double compensation in contravention to Article 170 (c) of the IRR of RA 7160 which provides that no elective or appointive local official shall receive additional, double or indirect compensation unless specifically authorized by law and (3)The appropriations for retirement gratuity to implement EPSA ordinance was classified as Maintenance and Other Operating Expenses instead of Personal Services contrary to Section 7, Volume III of the Manual on the New Government Accounting System (NGAS) for local government units and COA Circular No. 2004-008 dated September 20, 2004 which provide the updated description of accounts under the NGAS.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. Premises considered, the motion of former Vice- Mayor Danilo B. Lacuna, et al., is GRANTED and ND No. 06-010-100-05 dated May 24, 2006 is hereby ordered lifted as the reasons for the disallowance have been sufficiently explained. This decision, however, should not be taken as precedence (sic) to other or similar personal benefits that a local government unit may extend which should be appreciated based on their separate and peculiar circumstances. The Court issued a Status Quo Ante Order requiring the parties to maintain the status quo prevailing before the implementation of the assailed COA decisions.

ISSUES:

Whether or not 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.

RULINGS:

This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The intrusion of the thought of private gain should be unwelcome. The temptation to further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. That at least is the idea. There is then to be an awareness on the part of the officer or employee of the government that he is to receive only such compensation as may be fixed by law. With such a realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration attached to his position. Verily, the COA's assailed decisions were made in faithful compliance with its mandate and in judicious exercise of its general audit power as conferred on it by the Constitution. The COA adheres to the policy that government funds and property should be fully protected and conserved and that irregular, unnecessary, excessive or extravagant expenditures or uses of such funds and property should be prevented. We need not require the refund of the disallowed amount because all the parties acted in good faith. In this case, the questioned disbursement was made pursuant to an ordinance enacted as early as December 7, 2000 although deemed approved only on August 22, 2002. The city officials disbursed the retirement and gratuity pay remuneration in the honest belief that the amounts given were due to the recipients and the latter accepted the same with gratitude, confident that they richly deserve such reward.

WHEREFORE, the petition is DISMISSED. Decision No. 2008-088 dated September 26, 2008 and Decision No. 2010-077 dated August 23, 2010 of the Commission on Audit are AFFIRMED WITH MODIFICATION. The recipients need not refund the retirement and gratuity pay remuneration that they already received.Accordingly, the Status Quo Ante Order issued by the Court on November 30, 2010 is hereby RECALLED. In view, however, of this Court's decision not to require the refund of the amounts already received, the Commission on Audit is ORDERED to cease and desist from enforcing the Notice of Finality of Decision dated October 5, 2010. SO ORDERED.

 

ENCARNACION E. SANTIAGO, petitioner,

            versus

COMMISSION ON AUDIT AND

THE DIRECTOR OF THE COMMISSION ON AUDIT,

REGIONAL OFFICE NO. V, respondents.

[ EN BANC]

G. R. NO. 146824

NOVEMBER 21, 2007

 

FACTS:

Petitioner filed a motion for clarification of the dispositive portion of the Decision in this case which was promulgated on. The dispositive portion reads:”WHEREFORE, the petition is PARTLY GRANTED in that respondent COA is authorized merely to withhold petitioner’s salary but not to apply it to the alleged shortage for which her liability is still being litigated. No costs. SO ORDERED.” Petitioner informed the Court that upon the directive of the Bureau of Local Government Finance Executive Director Ma. Presentacion R. Montesa, she is back to her regular station and formally assumed office as the Municipal Treasurer of Goa, Camarines Sur. In a letter, petitioner requested respondents and the Municipal Mayor of Goa, Camarines Sur, to pay her representation allowance, additional compensation allowance, productivity bonus, year-end bonus, clothing allowance and other benefits, excluding her salary, from October 1998 up to the present based on the dispositive portion of the Decision. In a letter, respondent  COA, through the Regional Cluster Director, replied that the items requested cannot be paid to petitioner because this Court has already clarified the issue when it stated in the body of the Decision that “. . . COA can direct the proper officer to withhold petitioner’s salary and other emoluments. . . .” According to COA, “emoluments” necessarily include all allowances and any money due petitioner.

ISSUE:

Whether or not the salary of a government employee be ordered withheld, retained and applied to the payment of public funds allegedly embezzled under the employee’s care on the basis of an audit report and the filing of an administrative case and a criminal case for malversation of public funds?

HELD:
Stated otherwise, may State Auditor del Rosario direct that the salary and other emoluments of petitioner be withheld and applied to her cash shortage determined merely in an audit examination? Regarding the propriety of withholding the petitioner’s salary, the Court holds that COA can direct the proper officer to withhold petitioner’s salary and other emoluments under Section 21, Chapter 4, Subtitle B, Book V of the Administrative Code of 1987, which is substantially the same as Section 37 of PD No. 1445, the legal basis of COA. It is noted that the directive of State Auditor Del Rosario to the Municipal Mayor of Goa, Camarines Sur to withhold the salary of petitioner is in accordance with the COA Guidelines to the Examiner/Auditor in case of a cash shortage contained in Chapter 3 of the COA Handbook on Cash Examination. The State Auditors’ finding of cash shortage against petitioner municipal treasurer, which has not been satisfactorily disputed, is prima facie evidence against her. The prima facie evidence suffices for the withholding of petitioner’s salary, in order to safeguard the interest of the Government. However, it must be stated that although State Auditor del Rosario properly directed the Municipal Mayor of Goa, Camarines Sur to withhold petitioner’s salary and other emoluments, she incorrectly directed that the same be applied or set off against petitioner’s cash shortage. As ruled in Villanueva, before set-off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, now Section 21 of the Administrative Code of 1987, a person’s indebtedness to the government must be one that is admitted by him or pronounced by final judgment of a competent court. In this case, the indebtedness was not admitted by petitioner and a competent court has not yet pronounced final judgment thereon. As a result, the amount of petitioner’s salary remitted to the local government treasurer as payment of petitioner’s cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness. Hence, it is clear that respondent COA can withhold the salary and other emoluments due petitioner up to the amount of her alleged shortage.

WHEREFORE, it is hereby clarified that respondent COA is authorized to withhold petitioner’s salary and other emoluments up to the amount of her alleged shortage, but not to apply the withheld amount to the alleged shortage for which her liability is still being litigated. No costs. SO ORDERED.

 

FRANCISCO ABELLA JR., petitioner

  versus

CIVIL SERVICE COMMISSION, respondent.

[EN BANC]

G.R. NO. 152574

NOVEMBER 17, 2004

FACTS:

Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone Authority (EPZA), now the Philippine Economic Zone Authority (PEZA), as Department Manager of the Legal Services Department. He held a civil service eligibility for the position of Department Manager, having completed the training program for Executive Leadership and Management in 1982 under the Civil Service Academy which was then the required eligibility for said position. Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan Authority (SBMA) on a contractual basis. Petitioner was issued by SBMA a permanent employment as Department Manager III, Labor and Employment Center. However, when said appointment was submitted to respondent Civil Service Commission Regional Office No. III, it was disapproved on the ground that petitioner’s eligibility was not appropriate. Petitioner was advised by SBMA of the disapproval of his appointment. In view thereof, petitioner was issued a temporary appointment as Department Manager III, Labor and Employment Center, SBMA . Petitioner appealed the disapproval of his permanent appointment by respondent to the Civil Service Commission affirming the action taken by respondent. Petitioner’s motion for reconsideration thereof was denied by the CSC.

ISSUE:

A. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction in ruling that petitioner lacks the personality to question the disapproval by respondent office of petitioner’s appointment as Department Manager III, Labor and Employment Center, SBMA.

B. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction in ruling that petitioner is not the real party in interest to question the disapproval by respondent office of petitioner’s appointment as Department Manager III, Labor and Employment Center, SBMA.

C. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction, in dismissing petitioner’s appeal on a mere technicality considering that petitioner is questioning the constitutionality of respondent office’ issuance of Section 4 of CSC Memorandum Circular No. 21, s. 1994, which deprived petitioner his property right without due process of law.

HELD:
[First Issue:] Petitioner imputes to the CA “grave abuse of discretion amounting to lack of jurisdiction” for ruling that he had no legal standing to contest the disapproval of his appointment. Grave abuse of discretion is a ground for a petition for certiorari under Rule 65 of the Rules of Court. Nevertheless, this Court resolved to grant due course to the Petition and to treat it appropriately as a petition for review on certiorari under Rule 45 of the Rules of Court. The grounds shall be deemed “reversible errors,” not “grave abuse of discretion.” A permanent appointment in the career service is issued to a person who has met the requirements of the position to which the appointment is made in accordance with the provisions of law, the rules and the standards promulgated pursuant thereto. It implies the civil service eligibility of the appointee. Thus, while the appointing authority has the discretion to choose whom to appoint, the choice is subject to the caveat that the appointee possesses the required qualifications. While petitioner does not challenge the legality of this provision, he now claims that it is merely a technicality, which does not prevent him from requesting reconsideration. While there is justification to allow the appointing authority to challenge the CSC disapproval, there is none to preclude the appointee from taking the same course of action. Aggrieved parties, including the Civil Service Commission, should be given the right to file motions for reconsideration or to appeal. On this point, the concepts of “legal standing” and “real party in interest” become relevant. [Second Issue]: Alleging that his civil service eligibility was rendered ineffective and that he was consequently deprived of a property right without due process, petitioner challenges the constitutionality of CSC Memorandum Circular 21, s. 1994. Petitioner argues that his eligibility, through the Executive Leadership and Management (ELM) training program, could no longer be affected by a new eligibility requirement. He claims that he was eligible for his previous position as department manager of the Legal Services Department, PEZA; hence, he should retain his eligibility for the position of department manager III, Labor and Employment Center, SBMA, notwithstanding the classification of the latter as a CES position. Significantly, the challenged Circular was an internal matter addressed to heads of departments, bureaus and agencies. It needed no prior publication, since it had been issued as an incident of the administrative body’s power to issue guidelines for government officials to follow in performing their duties.
[Final Issue:]Since petitioner had no CES eligibility, the CSC correctly denied his permanent appointment. The appointee need not have been previously heard, because the nature of the action did not involve the imposition of an administrative disciplinary measure. The CSC, in approving or disapproving an appointment, merely examines the conformity of the appointment with the law and the appointee’s possession of all the minimum qualifications and none of the disqualification. In sum, while petitioner was able to demonstrate his standing to appeal the CSC Resolutions to the courts, he failed to prove his eligibility to the position he was appointed to.

WHEREFORE, the Petition is GRANTED insofar as it seeks legal standing for petitioner, but DENIED insofar as it prays for the reversal of the CSC Resolutions disapproving his appointment as department manager III of the Labor and Employment Center, Subic Bay Metropolitan Authority. Costs against petitioner.

SO ORDERED.

JUDGE TOMAS C. LEYNES, petitioner,

          versus

THE COMMISSION ON AUDIT,

HON. GREGORIA S. ONG, DIRECTOR, COMMISSION ON AUDIT AND

HON. SALVACION DALISAY, PROVINCIAL AUDITOR, respondents.

EN BANC

[ G.R. NO. 143596, DECEMBER 11, 2003 ]

FACTS:

Petitioner Judge Tomas C. Leynes who, at present, is the presiding judge of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40 was formerly assigned to the Municipality of Naujan, Oriental Mindoro as the sole presiding judge of the Municipal Trial Court thereof. As such, his salary and representation and transportation allowance (RATA) were drawn from the budget of the Supreme Court. In addition, petitioner received a monthly allowance of P944 from the local funds of the Municipality of Naujan starting 1984. The Sangguniang Bayan of Naujan, through Resolution No. 057, sought the opinion of the Provincial Auditor and the Provincial Budget Officer regarding any budgetary limitation on the grant of a monthly allowance by the municipality to petitioner judge. TheSangguniang Bayan unanimously approved Resolution No. 101 increasing petitioner judge's monthly allowance from P944 to P1,600 (an increase of P656) starting May 1993. By virtue of said resolution, the municipal government (the Municipal Mayor and the Sangguniang Bayan) approved a supplemental budget which was likewise approved by the Sangguniang Panlalawigan and the Office of Provincial Budget and Management of Oriental Mindoro. In 1994, the Municipal Government of Naujan again provided for petitioner judge's P1,600 monthly allowance in its annual budget which was again approved by the Sangguniang Panlalawigan and the Office of Provincial Budget and Management of Oriental Mindoro. The Provincial Auditor Salvacion M. Dalisay sent a letter to the Municipal Mayor and the Sangguniang Bayan of Naujan directing them to stop the payment of the P1,600 monthly allowance or RATA to petitioner judge and to require the immediate refund of the amounts previously paid to the latter. She opined that the Municipality of Naujan could not grant RATA to petitioner judge in addition to the RATA the latter was already receiving from the Supreme Court. Petitioner judge appealed the unfavorable resolution of the Regional Director to the Commission on Audit. In the meantime, a disallowance of the payment of the P1,600 monthly allowance to petitioner was issued. Thus he received his P1,600 monthly allowance from the Municipality of Naujan only for the period May 1993 to January 1994.

ISSUE:

A. Whether or not Resolution No. 101, series of 1993 of Naujan, Oriental Mindoro, which granted additional allowance to the municipal trial judge of Naujan, Oriental Mindoro and increasing his current representation and travelling allowance (rata) to an amount equivalent to that received monthly by Sangguniang members in pesos: one thousand six hundred (P1,600.00) effective 1993, is valid.

B. Whether or not the power of municipal governments to grant additional allowances and other benefits to national government employees stationed in their municipality is very explicit and unequivocal under the Local Government Code of 1991 particularly section 447 in relation to sections 17 and 22 thereof.

C. Whether or not the Department of Budget and Management (DB,) can, by the issuance of budget circulars, restrict a municipal government from exercising its given legislative powers of providing additional allowances and other benefits to national employees stationed or assigned to their municipality for as long as their finances so allow.

D. Whether or not the Local Government Code of 1991 particularly section 447 (a) (1) (xi) was expressly or impliedly repealed or modified by republic act 7645 and the general appropriations act of 1993.

E. Whether or not petitioner was entitled to receive the additional allowances granted to him by the Municipality of Naujan, Oriental Mindoro by virtue of its resolution no. 101, series of 1993.

HELD:
Respondent Commission on Audit opposes the grant by the Municipality of Naujan of the P1,600 monthly allowance to petitioner Judge Leynes for the reason that the municipality could not grant RATA to judges in addition to the RATA already received from the Supreme Court. Petitioner judge, on the other hand, asserts that the municipality is expressly and unequivocally empowered by RA 7160 (the Local Government Code of 1991) to enact appropriation ordinances granting allowances and other benefits to judges stationed in its territory. Section 447(a)(1)(xi) of the Local Government Code of 1991 imposes only one condition, that is, "when the finances of the municipal government allow." The Code does not impose any other restrictions in the exercise of such power by the municipality. Petitioner also asserts that the DBM cannot amend or modify a substantive law like the Local Government Code of 1991 through mere budget circulars. Petitioner emphasizes that budget circulars must conform to, not modify or amend, the provisions of the law it seeks to implement. We rule in favor of petitioner judge. Respondent COA erred in opposing the grant of the P1,600 monthly allowance by the Municipality of Naujan to petitioner Judge Leynes. Section 447(a)(1)(xi) of RA 7160, the Local Government Code of 1991, provides:(a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants(…). Respondent COA, however, contends that the above section has been repealed, modified or amended by NCC No. 67 dated January 1, 1992, RA 7645 (the General Appropriations Act of 1993) and LBC No. 53 dated September 1, 1993.

It is elementary in statutory construction that an administrative circular cannot supersede, abrogate, modify or nullify a statute. A statute is superior to an administrative circular, thus the latter cannot repeal or amend it. In present case, NCC No. 67, being a mere administrative circular, cannot repeal a substantive law like RA 7160. Moreover, it is well-settled that an ordinance must be presumed valid in the absence of evidence showing that it is not in accordance with the law. Respondent COA had the burden of proving that Resolution No. 101 of the Sangguniang Bayan of Naujan did not comply with the condition provided in Section 447 of the Code, the budgetary requirements and general limitations on the use of municipal funds provided in Sections 324 and 325 of the Code and the implementing guidelines issued by the DBM, i.e., paragraphs (a) to (d), Section 3 of LBC No. 53. Respondent COA also had the burden of showing that the Sangguniang Panlalawigan of Oriental Mindoro erroneously approved said resolution despite its non-compliance with the requirements of the law. It failed to discharge such burden. On the contrary, we find that the resolution of the Municipality of Naujan granting the P1,600 monthly allowance to petitioner judge fully complied with the law. Thus, we uphold its validity. In sum, the power of the Municipality of Naujan to grant the questioned allowance to petitioner Judge Leynes in accordance with the constitutionally mandated policy of local autonomy and the provisions of the Local Government Code of 1991 is affirmed. We also sustain the validity of Resolution No. 101, Series of 1993, of the Sangguniang Bayan of Naujan for being in accordance with the law. WHEREFORE, the petition is hereby GRANTED. The assailed decision dated September 14, 1999 of the Comission on Audit is hereby SET ASIDE and Section 3, paragraph (e) of LBC No. 53 is hereby declared NULL and VOID. No costs. SO ORDERED.