Friday, November 28, 2014

Barangay secretary; removal from office; sample position paper.

CITY OF x x x  


In Re: The Complaint Of x x x
Against Barangay Chairperson x x x,
Et. Al. (Ombudsman Reference: IC-OC-xx-xxxx)

(For Respondent Kgd. XXX)

           KGD.  X x x, a co-respondent, respectfully states:

1.      INTRODUCTION. – x x x.


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.


3.1.          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.

Pro Bono Counsel for Respondent
Kgd. Xxx
Unit 15, Star Arcade, CV Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539



X x x
Block xxx, Lot xxx, xxx St.
Xxx Homes, xxx, xxx City
     Reg. Rec. No.
     Date                               PO


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.