REPUBLIC OF THE
PHILIPPINES
CITY OF x x x
METRO MANILA
OFFICE OF THE CITY COUNCIL
BLUE RIBBON COMMITTEE
COMMITTEE ON BARANGAY AFFAIRS
COMMITTEE ON LAWS
In Re: The
Complaint Of x x x
Against Barangay
Chairperson x x x,
Et. Al. (Ombudsman
Reference: IC-OC-xx-xxxx)
x-------------------------------------------------------------x
POSITION
PAPER
(For
Respondent Kgd. XXX)
KGD. X x x, a co-respondent,
respectfully states:
1.
INTRODUCTION. – x x x.
2.
CHRONOLOGY OF RELEVANT EVENTS.
2.1.
On 27 July 2014 the Barangay Council of Barangay
xxx, xxx City passed Resolution No. 56, signed by 5 members thereof, including xxx.
The resolution “resolved to concur (in) the termination of
(the) appointment of xxx as Barangay Secretary and (to) concur (in) the
appointment xxx as (the) temporary Barangay Secretary”.
The grounds cited in the 1st
whereas clause were “inefficiency, negligence,
and loss of confidence.”
See Annex “A” hereof.
2.2.
On 1 August 2014 the Barangay Council of
Barangay xxx, xxx City passed Resolution No. 58, signed by 5 members thereof,
including xxx.
The resolution “resolved that the appointment of xxx as
Barangay Secretary shall be effective on August 1, 2014.”
See Annex “B” hereof.
2.3.
On 5 September 2014 the Chairperson on Barangay Xxx
5, i.e., Hon. Xxx, executed a CERTIFICATION which stated that “the services of xxx (were) terminated due
to negligence, inefficiency and loss of confidence by the (Barangay Chairperson
xxx)”.
The factual details of the
grounds cited for the termination of the services of xxx are stated in the succeeding
paragraphs of the Certification of Chairperson xxx.
See Annex “C” hereof.
2.4.
On 22 August 2014 the Director of the Public
Assistance Bureau (i.e., Atty. Marlyn Torres-Galvez) of the Office of the
Ombudsman issued a NOTICE OF CONFERENCE to xxx (complainant) and Chairperson xxx
(respondent) and 4 members of the Barangay Council, i.e., xxx and 3 other
Kagawads, namely, x x x . (co-respondents).
The date set was 8 September
2014 at 10:00 AM at the office of the Public Assistance Bureau.
See Annex “D” hereof.
2.5.
Attached to the abovecited Notice of Conference
was a copy of the COMPLAINT-AFFIDAVIT of xxx.
The Complaint administratively charges the respondents
with “abuse of authority, oppression and
violation of the Civil Service Law”.
The complainant seeks “moral and exemplary damages and costs(s) of
suit” in the administrative
complaint.
See Annex “E” hereof (Complaint-Affidavit).
2.6.
xxx claims that the Barangay ”failed to support any of the allegations”
for her dismissal.
See Par. 5, Complaint-Affidavit, Annex “E”.
2.7.
On 15 September 2014, in her RAS FINAL REPORT, Graft
Investigation Officer MIRIAM A. CANDELARIA recommended “that the grievance under RAS-C-xx-xxxx be considered closed and
terminated xxx.”
It was recommended for approval
by DIRECTOR MARLYN TORRES-GALVEZ of the Public Assistance Bureau.
It was ultimately approved by ASSISTANT OMBUDSMAN EVELYN
A. BALITON,
See Annex “F” hereof.
The Report stated that xxx
wanted the Bureau to annul Barangay Resolution No. 57, Series of 2014.
The Bureau felt that it had no jurisdiction to act on the prayer of xxx,
thus: “Since the subject matter of the
request would require the unanimous action of the officials of Brgy. xxx, xxx
City, the resolution of the same is a
matter for them to determine and agree upon.” (Par. 4, RAF Final Report, Annex “F”).
2.8.
On 15 September 2014 Assistant Ombudsman
Leilanie Bernadette C. Cabras issued a Letter, dated 15 September 2014, to the
City Council of xxx City, thru Vice Mayor xxx, referring to the latter, for
appropriate action, the administrative
Complaint of xxx (Ombudsman Reference:
IC-OC-xx-xxxx).
In fine, the Assistant
Ombudsman Cabras urged the City Council to
exercise its disciplinary powers under Sec. 61 © of R.A. No. 7160, Local
Government Code of 1991, i.e., to DECIDE
the administrative guilt/liability, if
any, of the respondents.
The Assistant Ombudsman asked
the City Council to inform the former
of the action that the latter shall have taken on the administrative matter.
See Annex “G” hereof, with sub-markings.
2.9.
On October 13, 2014 Atty. xxx, City Council Secretary,
referred the Letter, dated 15 September 2014, to the Blue Ribbon Committee (lead
committee), the Committee on Barangay Affairs, and the Committee on Laws, for
appropriation action.
See Annex “H” hereof.
2.10.
The 3 committees forthwith held a joint hearing
and asked the parties to submit their respective Position Papers.
3.
DISCUSSION.
3.1.
Attached as Annex
“I” hereof, with submarkings, is a relevant reading material downloaded by xxx
from the website of the Department of Interior and Local Government (DILG) on legal basis of employee discipline in the Civil
Service; valid grounds for disciplinary action; parties to an administrative
complaint; venue; contents of an administrative charge; formal investigation;
period to decide; penalties; other modes of termination; dismissal from the
service.
It is being submitted to aid
the City Council in its consideration of the position of xxx.
3.2.
Attached as Annex
“J” hereof, as downloaded by xxx form the DILG website, is a copy of the Legal Opinion, dated 25 March 2009, of DILG Undersecretary Austere
A. Panadero addressed to Hon. Jesus Radmar T. Resente, Barangay Chairman of
Brgy. Congress 173, Congress Village North, Caloocan City.
It is being submitted to aid
the City Council in its consideration of the position of Xxx.
The Opinion states that Sec. 394 of RA 7160 governs the manner
of the appointment of the Barangay Secretary by the Barangay Chairman, subject
to the concurrence of the Barangay
Council (citing Alquizola v. Ocol,
313 SCRA 293; Sec. 4, DILG MC No.
2002-150); that
3.3.
Attached as Annex
“K” hereof is a Legal Opinion, dated
16 January 2003, issued by former DILG Secretary Jose D. Lina Jr.,
addressed to Brgy. Chairman Jose J. Valdez, of Sto. Domingo, Quezon City.
Noteworthy therein are the
following legal conclusions: that the posts of Barangay Secretary and Barangay
Treasurer “belong to the non-career
service”; and that that their appointment is subject to the discretion of the majority of the Kagawads
(citing DILG MC No. 2002-150, 18 Sept.
2002, “Guidelines for the Appointment of Barangay Secretaries, Treasurers, and
other Appointive Barangay Officials”).
3.4.
Attached as Annex
“L” hereof is a Legal Opinion, dated
3 April 2008, issued by DILG Undersecretary Austere A. Panadero.
Noteworthy therein is the
conclusion that the power of the Barangay
Council is merely to concur or not to concur to the appointment of the
Barangay Secretary by the Barangay Chairman; and that the executive power of
appointment of the Secretary belongs to the Chairman, not to the Council.
3.5.
Attached as Annex
“M” hereof is a copy of DILG Memo-Circular No. 2002-150, dated 18 Sept. 2002, “Guidelines for the Appointment of Barangay Secretaries, Treasurers,
and other Appointive Barangay Officials”.
Noteworthy are the following
provisions/conclusions: that the appointment of a Secretary is “coterminous with the appointing
authority”, i.e., Brgy. Chairman, citing CSC
Opinion, dated 28 July 1998); that withholding of concurrence by the
Council, if the Secretary is qualified,
would be arbitrary, whimsical, unjustifiable, and abuse of authority; that the
removal of the Secretary requires the approval/concurrence of the Council (cf. Alquizola v. Ocol, GR 132413, 27 Aug. 1999);
the Secretary may be removed without
cause or with cause; the Secretary may
“also be removed for cause under the Civil Service Law” (in which case the concurrence of the Council
to the removal/dismissal is no longer required).
3.6.
Attached as Annex
“N” hereof is a copy of the Legal
Opinion, dated 10 April 2008, of DILG Undersecretary Austere Panadero.
Noteworthy are the following
conclusions: that a Secretary may be removed
“with or without cause”; that
if she is removed “without cause” by
the Chairperson, the concurrence of the Council is required; that if the Secretary is removed “for cause”
pursuant to Civil Service Laws, the Council is not required to concur thereto.
Although the Opinion refers to security of tenure of the appointee, what is
clear is that the Secretary may be
removed “with0ut cause” (see Page 2, last
paragraph, of the said Opinion).
3.7.
Good faith
is presumed on the part of xxx, as one of the
Kagawads who concurred in the removal of xxx by the Chairperson.
HELD: It is
axiomatic that good faith is always presumed unless convincing evidence to the
contrary is adduced. It is incumbent upon
the party alleging bad faith to sufficiently prove such allegation. Absent
enough proof thereof, the presumption of good faith prevails. In the case at
bar, the burden of proving bad faith therefore lies with petitioners but they
failed to discharge such onus probandi. Without
a clear and persuasive substantiation of bad faith, the presumption of good
faith in favor of respondents stands.
[Heirs of Severa Gregorio vs. Court of Appeals, et al, G. R. No.
117609, December 19, 1998; Purisima, J.]
In the case of FRANCISCO M. LECAROZ, et. al. vs. SANDIGANBAYAN, et. al., G.R. No.
130872, March 25, 1999, it was held
“The
rule is that any mistake on a doubtful or difficult question of law may be the basis
of good faith. In Cabungcal v. Cordova we affirmed the doctrine
that an erroneous interpretation of the meaning of the provisions of an
ordinance by a city mayor does not amount to bad faith that would entitle an
aggrieved party to damages against that official. We reiterated this principle in Mabutol v.
Pascual
which
held that public officials may not be liable for damages in the discharge of
their official functions absent any bad faith. Sanders v.
Veridiano II expanded the concept by declaring that under the law on public
officers, acts done in the performance of official duty are protected by the
presumption of good faith.”
3.8.
PRAYER. - The
Complaint as against xxx must be dismissed for utter lack of merit.
Respectfully submitted.
Las Pinas City, November 28,
2014.
LASERNA CUEVA-MERCADER
LAW OFFICES
Pro Bono Counsel for Respondent
Kgd. Xxx
Unit 15, Star Arcade, CV Starr
Ave.
Philamlife Village, Las Pinas
City 1740
Tel. Nos. 8725443 & 8462539
MANUEL LASERNA JR.
Cc:
X x x
Complainant
Block xxx, Lot xxx, xxx St.
Xxx Homes, xxx, xxx City
Reg. Rec. No.
Date PO
EXPLANATION
A
copy hereof is served on opposing party via registered mail due to the lack of
field staff of undersigned counsel at this time and due to the urgency of
filing the same.
MANUEL
LASERNA JR.
