salumbides case: doctrine of condonation

EN BANC

G.R. No. 180917 April 23, 2010

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals¹ in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High School² (TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002.³

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact, payments for the expenses on these 2 projects have been made only starting 19 March 2002. x x x⁴ (underscoring supplied)

The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy."⁵

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint⁶ against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.

Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for a maximum period of six months with a stern warning against a similar repetition. It also approved on November 2, 2006 the March 27, 2006 Order⁷ denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The verification portion of the petition does not carry a certification against forum shopping.⁸

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.⁹

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 2008¹⁰ for non-compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,¹¹ later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion¹² filed a day later, petitioners prayed only for the admission of nine additional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which is different from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors¹³ and already contains a certification against forum shopping¹⁴ embedded in the Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number.¹⁵ The rectified verification with certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation¹⁶ to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners' thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija¹⁷ issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."¹⁸

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people.¹⁹ (underscoring supplied)

Lizares v. Hechanova, et al.²⁰ replicated the doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions."²¹

Ingco v. Sanchez, et al.²² clarified that the condonation doctrine does not apply to a criminal case.²³ Luciano v. The Provincial Governor, et al.,²⁴ Olivarez v. Judge Villaluz,²⁵ and Aguinaldo v. Santos²⁶ echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives.²⁷

Salalima v. Guingona, Jr.²⁸ and Mayor Garcia v. Hon. Mojica²⁹ reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection.

Petitioners' theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor³⁰ where the Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.³¹ (emphasis and underscoring supplied)lawph!l

Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,³² the Court applied the four-fold test in an equal protection challenge³³ against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter's actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.³⁴ As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional.³⁵ There can hardly be conspiracy to commit negligence.³⁶

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from either carelessness or indifference.³⁷ In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding."³⁸ As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on "matters related to upholding the rule of law."³⁹ Indeed, a legal officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection⁴⁰ as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.⁴¹

In Office of the Ombudsman v. Tongson,⁴² the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs.⁴³

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.⁴⁴

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office for three (3) months without pay.

SO ORDERED.

CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO Associate Justice	RENATO C. CORONA Associate Justice
PRESBITERO J. VELASCO, JR. Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	ARTURO D. BRION Associate Justice
DIOSDADO M. PERALTA Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
MARTIN S. VILLARAMA, JR. Associate Justice	LUCAS P. BERSAMIN Associate Justice
ROBERTO A. ABAD Associate Justice	JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA
Associate Justice

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes

¹ Seventh Division then composed of Justice Remedios A. Salazar-Fernando, chairperson and ponente, and Justices Rosalinda Asuncion-Vicente and Enrico A. Lanzanas as members.

² TMHS was being subsidized by the municipal government of Tagkawayan as it had not yet been included in the regular budget of the Department of Education.

³ Rollo, pp. 248-249.

⁴ Counter Affidavit, id. at 238.

⁵ Id. at 243.

⁶ The criminal aspect of the case docketed as Case No. OMB-L-C-02-0426-E deals with violations of paragraphs (a), (e), (g) and (i) of Section 3 of Republic Act No. 3019 (1960) or the Anti-Graft and Corrupt Practices Act; paragraph (c) of Sections 366 and 369, paragraph (d) of Sections 534, 355 and 356 of Republic Act No. 7160 (1991) or the Local Government Code; and Article 220 of the Revised Penal Code.

⁷ Upon the recommendation of Graft Investigator and Prosecution Officer I (GIPO) Ma. Theresa D. Wu, the Office of the Ombudsman modified the earlier recommendation of GIPO Mary Ayn T. Punzalan to absolve Glenda and reprimand Salumbides.

⁸ Vide rollo, p. 53.

⁹ Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52, Bacolod City, G.R. No. 179878, Decmber 24, 2008, 575 SCRA 575, 583-584.

¹⁰ Rollo, p. 24.

¹¹ Id. at 277.

¹² Id. at 154-155.

¹³ Vide Rules of Court, Rule 45, Sec. 4. Petitioners offer the following assignment of errors:

1. It was error for the Honorable Court of Appeals to deny the petitioners the benefit of the case of Arturo B. Pascual v. Prov. Board of Nueva Ecija;

2. It was error on the Honorable Court of Appeals when it ruled that the petitioners including Mayor Vicente E. Salumbides III were all guilty of conspiracy; [and]

3. It was error on the part of the Honorable Court of Appeals when it affirmed the ruling of the Honorable Ombudsman finding petitioners guilty of simple neglect of duty[,] for which they [were] meted the penalty of suspension from office of a maximum period of six (6) months. (italics supplied) Rollo, pp. 173-174.

¹⁴ Vide rollo, 184-185.

¹⁵ Compare supra notes 8 and 14.

¹⁶ Conducto v. Monzon, A.M. No. MTJ-98-1147, July 2, 1998, 291 SCRA 619, 634 even declared that no ruling to the contrary had even rippled this doctrine.

¹⁷ 106 Phil. 406 (1959).

¹⁸ Id. at 471.

¹⁹ Id. at 472.

²⁰ 123 Phil. 916 (1966).

²¹ Id. at 919.

²² 129 Phil. 553 (1967).

²³ Id. at 556. It was held that "a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a pubic officer is concerned. Also, under our Constitution, it is only the President who may grant the pardon of a criminal offense."

²⁴ 138 Phil. 546 (1969). Aside from the lack of distinction as to time of commission under the Anti-Graft and Corrupt Practices Act, the Court pointed out that one of the imposable penalties was perpetual disqualification from public office, which extends beyond a particular term of office. It remarked that an official may amass wealth through graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts. The Court further ruled that the suspension under said statute is not self-operative as it needs to be ordered by the court in which the criminal case is filed.

²⁵ 156 Phil. 137 (1974). It was held that since the criminal prosecution is not abated by the fact of reelection, the pendency of a criminal case under a valid Information under the Anti-Graft and Corrupt Practices Act supplies the legal basis for the suspension from office in the subsequent term in the event of reelection. It added, however, that the suspension order issued during one term does not automatically apply or extend to the new term to which the suspended official had been reelected, in which case the trial court needs to issue anew a supplemental order of suspension.

²⁶ G.R. No. 94115, August 21, 1992, 212 SCRA 768.

²⁷ Vide Office of the Ombudsman v. Evangelista, G.R. No. 177211, March 13, 2009, 581 SCRA 350, 361; Trillanes IV v. Pimentel, Sr., G.R. No. 179817, June 27, 2008, 556 SCRA 471, 488; Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 216-217; People v. Judge Toledano, 387 Phil. 957, 964 (2000); People v. Jalosjos, 381 Phil. 690, 702-703 (2000).

²⁸ 326 Phil. 847 (1996). Citing sound public policy, the Court added that to rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts allegedly committed during his prior term, such that his second term may thus be devoted to defending himself in those cases to the detriment of public service.

²⁹ 372 Phil. 892 (1999). The Court stated that there is the presumption that the people voted for an official with knowledge of his character, precisely to eliminate the need to determine in factual terms the extent of this knowledge, which is an obviously impossible undertaking.

³⁰ G.R. No. 168766, May 22, 2008, 554 SCRA 160.

³¹ Id. at 179-180.

³² G.R. No. 189698, February 22, 2010.

³³ Id., citing People v. Cayat, 68 Phil. 12, 18 (1939). The test has four requisites: (1) the classification rests on substantial distinctions; (2) it is germane to the purposes of the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all members of the same class.

³⁴ Office of the Ombudsman v. Lazaro-Baldazo, G.R. No. 170815, February 2, 2007, 514 SCRA 141.

³⁵ Compare with gross neglect of duty (vide Hao v. Andres, A.M. No. P-07-2384, June 18, 2008, 555 SCRA 8). In Civil Service Commission v. Rabang, (G.R. No. 167763, March 14, 2008, 548 SCRA 540, 547), gross neglect of duty or gross negligence refers to "negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to give to their own property. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable." In Report on the Alleged Spurious Bailbonds and Release Orders Issued by the RTC, Br. 27, Sta. Cruz, Laguna, A.M. No. 04-6-332-RTC, April 5, 2006, 486 SCRA 500, 518, the Court ruled that "[n]eglect of duty is the failure of an employee to give one's attention to a task expected of him. Gross neglect, on the other hand, is such neglect from the gravity of the case, or the frequency of instances, becomes so serious in its character as to endanger or threaten the public welfare. The term does not necessarily include willful neglect or intentional official wrongdoing."

³⁶ Vide U.S. v. Mitlof [165 F. Supp. 2d 558 (Dist. Court, S.D.N.Y. 2001)] observes that US federal courts have dismissed as a logical impossibility the idea that one can conspire to act unintentionally; Sackman v. Liggett Group Inc., 965 F. Supp. 391, 394 (Dist. Court E.D.N.Y. 1997) states that there can be no conspiracy to be negligent- that is, to intend to act negligently; Sonnenreich v. Philip Morris Inc. [929 F. Supp. 416, 419 (S.D. Fla. 1996)] recognizes that a conspiracy to commit negligence is a non sequitur; Rogers v. Furlow [699 F. Supp. 672, 675 (N.D. Ill. 1988)] declares that a conspiracy to commit negligence is a paradox at best.

³⁷ Galero v. Court of Appeals, G.R. No. 151121, July 21, 2008, 559 SCRA 11.

³⁸ Rollo, p. 66.

³⁹ Republic Act No. 7610, Sec. 481(b)(4).

⁴⁰ Republic Act No. 7160, Sec. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of Other Department Heads or Officers of Equivalent Rank. - Unless he registers his objection in writing, the local treasurer, accountant, budget officer, or other accountable officer shall not be relieved of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer, elective or appointive, or upon participation of other department heads or officers of equivalent rank. The superior officer directing, or the department head participating in such illegal or improper use or application or deposit of government funds or property, shall be jointly and severally liable with the local treasurer, accountant, budget officer, or other accountable officer for the sum or property so illegally or improperly used, applied or deposited. (underscoring supplied); cf. Frias, Sr. v. People, G.R. No. 171437, October 4, 2007, 534 SCRA 654, as applied in criminal cases.

⁴¹ Rollo, p. 67, citing Republic Act No. 7160, Sec. 306 (d) & (f).

⁴² G.R. No. 169029, August 22, 2006, 499 SCRA 567.

⁴³ Vide Farolan v. Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991, 195 SCRA 168, 177-178.

⁴⁴ Galero v. Court of Appeals, supra at 24.

The Lawphil Project - Arellano Law Foundation

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SAMPLE PROBLEMS 6

(Blanco v.Parilla, GR 180164, June 17, 2008)

1.Lucio Barro run for the mayoralty position during the May 1995 election in Bulacan. He was disqualified through an administrative case filed by his rival on a charge of vote-buying. His proclamation was declared null and void. In the 2008 election, he ran again as mayor, this time another disqualification case is filed against him by reason of his vote buying docket in the 1995 election.

Question: a. Is he qualified to run in the 2008 election?

b.Will your answer be the same if he was convicted in a criminal case for B.P. 22 before the Municipal Trial Court?

CAYAT V. COMELEC, G.R. No. 165736, April 24, 2007

2.Cayat run as a mayoralty candidate in the May 2008 election in Benguet. He won by a landslide vote of 9,500 as against Dalut who garnered only 2,500 votes. Before the date of the election however, a disqualification was filed against Cayat considering his previous conviction of Acts of Lasciciousnes. The conviction became final and Cayat filed a petition for probation. The disqualification case was decided on March 2008 against him before the COMELEC. He received the decision which was promulgated on March 15, 2008. He filed a motion for reconsideration on March 25, but the same was denied for failure to pay the docket fee of 300 pesos, as his lawyer only paid 200 pesos.

Questions: a) Is Cayat qualified to run as mayor ?

b) Is his proclamation by virtue of his landslide vote valid?

c) Is the Comelec correct in dismissing his motion for reconsideration for not filing the correct amount of the docket fee?

d) Can Dalut be declared the mayor of Benguet based on the above facts of the case?

Magno v. Comelec, G.R. 147904, October 4, 2002

3. Nestor Magno was mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections.A petition to disqualify him was filed on the ground that he was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, he was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, he applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija.On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision declaring that he was disqualified from running for the position of mayor in the May 14, 2001 elections. In ruling against him, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election Code which provides as follows:

Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.

On May 10, 2001, he filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001.

He argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

QUESTIONS: A) Is he correct in saying that bribery is not a crime involving moral turpitude? What is a crime involving moral turpitude then?

(B) There seems to be an inconsistency of the COMELEC provision and the LOCAL GOVERNMENT CODE provision. How would you reconcile the two?

(C) Legis posteriores priores contrarias abrogant, what do you understand by this principle?

(D) Do you agree that Nestor Magno is disqualified to run as mayor?

Moreno v. COMELEC, GR. NO. 168550, August 10, 2006

4. Norma L. Mejes filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. In fact he was discharged from probation on Dec. 18, 2000.

QUESTIONS:

(A) Is Moreno qualified to run for public office?

(B) Explain the previous ruling of the Supreme Court in the cases of Baclayon v. Mutia and De la Torre v. COMELEC.

(C) Explain the principle: Interpretare et concordare legis legibus est optimus interpretandi.

5. In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a margin of only twenty-two votes over the former.

Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del Norte, which was assigned to Branch 2 thereof in Butuan City.

On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six votes over the private respondent and rendered judgement in favor of the petitioner as follows:

WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del Norte in the local election held on May 11, 1992, the protestant having obtained six (6) votes more than that of the protestee's votes.

Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.

On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and paying the appellate docket fees.

On 8 July 1994, the trial court gave due course to the appeal.

On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private respondent opposed on 22 July 1994.

QUESTION: Under the circumstances, is the motion of execution pending appeal proper?

6. After the results of the May 8, 1995 elections were canvassed in 73 precincts in the Municipality of Matnog, Province of Sorsogon, petitioner Gerry B. Garay, a candidate for vice-mayor, was credited with 5,411 votes and private respondent Jaime Gata, Jr., his rival, 5,391 or a margin of twenty (20) votes in favor of petitioner. The said results, however, excluded the votes from precinct 30-A of Barangay Culasi, Matnog, where armed men forcibly took the ballot box together with the election returns, other election papers, documents and/or paraphernalia.

Because the votes in precinct 30-A would obviously affect the standing of the said candidates, the Municipal Board of Canvassers (MBC) did not proclaim the winner. Failing to convince said Board to proclaim him by virtue of a certificate of votes issued by the Board of Election Inspectors (BEI) showing he garnered 116 votes against 68 votes for Garay in said precinct, respondent Gata brought the matter to the respondent Commission. In his appeal, 3 respondent Gata included a copy of the Tally Board, duly authenticated by the BEI, showing the same count as the Certificate of Votes: that is, Gata 116 votes and Garay 68 votes. If these were added to the already canvassed votes, Gata would win by a 28-vote margin.

In the meantime, while the said appeal was pending, respondent COMELEC upon recommendation of Comm. Julio Desamito conducted a special election in precinct 30-A, 4 on the ground of failure of election due to the loss of the ballot box and the election documents. Both petitioner Garay and respondent Gata actively participated in the election which was held on June 7, 1995. Petitioner won handily in the said election and was thereafter proclaimed Vice-Mayor of Matnog.

The Comelec First Division denied due course to the appeal because of appellant's (Gata) failure "to furnish the Commission all pertinent documents necessary for the latter to rule on the matter." Respondent Gata's motion for reconsideration of this Comelec action is still pending before the Comelec First Division. Subsequently, the COMELEC En Banc issued a Resolution promulgated on August 7, 1995 annulling the special election and directing the MBC to reconvene and to include "in the canvass, the votes reflected on the Tally Board submitted by the Board of Election Inspectors . . . ." As a result, respondent Gata was declared winner. The Commissioner En Banc said that it was "convinced without taint of any doubt that the votes shown in the tally board and certificate of votes reflect the true and genuine will of the electorate. . . ."

QUESTION: 1.Discuss whether the COMELEC EN BANC is correct in its action.

7. : "It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo were both candidates in the May 11, 1992 elections for the positions of congressmen and governor, respectively, of Camiguin. They belonged to opposing political factions and were in a bitter electoral battle.

"On April 10, 1992 or about a month before the elections, Cong. Romualdo filed a petition docketed as Special Civil Action No. 465 before the Regional Trial Court of Camiguin (Br. 28) presided over by respondent Judge Tabamo against Gov. Gallardo, the Provincial Treasurer, the Provincial Auditor, the Provincial Engineer, and the Provincial Budget Officer as respondents. In this petition Cong. Romualdo sought to prohibit and restrain the respondents from undertaking and/or pursuing certain public works projects and from disbursing, releasing, and/or spending public funds for said projects, allegedly because, among other reasons, said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code (B.P. Blg. 881); that the public works projects were commenced without the approved detailed engineering plans and specification and corresponding program of works; that the expenditures of the 20% development fund for projects other than for maintenance violated the Local Government Code; that locally funded projects had been pursued without the provincial budget having been first approved, and reviewed by the Department of Budget and Management; and that the illegal prosecution of the said public works projects requiring massive outlay or public funds during the election period was done maliciously and intentionally to corrupt voters and induce them to support the candidacy of Gov. Gallardo and his ticket in the May 11, 1992 elections.

"In the afternoon of the same day that the petition was filed, Judge Tabamo issued a temporary restraining order as prayed for by the petitioner Cong. Romualdo, as follows:

'It appearing from the verified petition in this case that great and irreparable damage and/or injury shall be caused to the petitioner as candidate and taxpayer, such damage or injury taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the project itemized in Annexes 'A' and 'A-1' of the petition; from releasing, disbursing and/or spending any public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking future delivery of money, goods, or other things of value chargeable against public funds in connection with the said projects.'

"In the same Order of April 10, 1993 the judge gave the respondents ten (10) days from receipt of a copy of the petition to answer the same, and set the prayer for the issuance of a preliminary injunction for hearing on April 24, 1992 at 8:30 A.M.

"Gov. Gallardo testified that when he received a copy of the restraining order and reviewed the petition filed, being a lawyer, he at once saw that the same was not within the jurisdiction of the Regional Trial Court. He said that the elections were nearing and all their projects were suspended, the laborers could not get their salaries, and the judge had set the hearing of the injunction on April 24, 1992 or very close to the elections of May 11, 1992. Believing that he could not get justice from the respondent court, he decided to go to the Supreme Court where he filed a petition for certiorari (docketed as G.R. No. L-104848) questioning the issuance of the temporary restraining order and the jurisdiction of the court over Special Civil Action No. 465.

QUESTION: 1. From your point of view, was the Judge correct in taking cognizance of the case and was his act of issuing the Temporary Restraining Order correct under the circumstances? Or would you agree with Gov. Gallardo that the RTC has no jurisdiction over the case? Reason out your answer.

8. This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeks to annul and set aside, for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the 17 May 1996 Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213 1 dismissing the petition for disqualification against private respondent Ferdinand B. Trinidad pursuant to COMELEC Resolution No. 2050 promulgated 3 November 1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990, and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd Division.

Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.

On 22 April 1995 Sunga filed with the COMELEC a letter-complaint 2 for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint 3 with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition 4 for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213.

In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second.

On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division.

On 28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En Banc recommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor; and, direct Sunga to take his oath and assume the duties and functions of the office.

The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations 7 for various elections offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, holding in its Resolution No. 2050 that

1. Any complaint for disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the Commission before an election in which respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed . . . .

In case such complaint was not resolved before the election, the Commission may motu propio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the electionlaws . . . .

2. Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6 of Republic Act No. 6646 filed after the election against a candidate who has already been proclaimed as a winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of this Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and said court may order the suspension of the proclamation if the evidence of guilt is strong.

As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides for the outright dismissal of the disqualification case in three cases: (1) The disqualification case was filed before the election but remains unresolved until after the election; (2) The disqualification case was filed after the election and before the proclamation of winners; and (3) The disqualification case was filed after election and after proclamation.

If the instant case is deemed to have been filed upon receipt by the COMELEC of the letter-complaint on April 26 1995, it nevertheless remained pending until after the election. If it is deemed to have been filed upon filing of the amended petition on 11 May 1995, it was clearly filed after the election. In either case, Resolution No. 2050 mandates the dismissal of the disqualification case.

His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification in that: first, Sec. 6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even after the election and proclamation, and the proclamation and assumption of office by Trinidad did not deprive the COMELEC of its jurisdiction; second COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations against private respondent for violation of the penal provisions of the Omnibus Election Code shows more than sufficient and substantial evidence to disqualify Trinidad, and he should have been so disqualified; and fourth, since Trinidad was a disqualified candidate, it is as if petitioner was the only candidate entitled to be proclaimed as the duly elected mayor.

Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were not petitions for disqualification because no filing fee was paid by Sunga; the letters-complaint were never docketed by the COMELEC; and, no summons was ever issued by the COMELEC and private respondent was not required to answer the letters-complaint. It was only on 13 May 1995 when petitioner filed the so-called Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC correctly dismissed the disqualification case for having been filed only after the 8 May 1995 elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC Resolution No. 2050.

COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the Silvestre v. Duavit ruling in support of the dismissal of the disqualification case. The COMELEC insisted that the outright dismissal of a disqualification case was warranted under any of the following circumstances: (a) the disqualification case was filed before the election but was still pending (unresolved) after the election; (b) the disqualification case was filed after the election but before the proclamation of the winner; and, (c) the disqualification case was filed after the election and after the proclamation of the winner.

QUESTIONS: 1.The issue in this case is whether the COMELEC committed grave abuse of discretion when it dismissed the disqualification case against private respondent Trinidad.On the basis of the facts, didthe COMELEC commit grave abuse of discretion?

2.Trinidad further avers that the COMELEC was correct in summarily dismissing the disqualification case because the docket fees were not duly paid. Is the contention correct?

3.Sunga claims that, in the event of Trinidad’s disqualification, he should be proclaimed as mayor? Is he correct?

4.In this case who should be the rightful mayor? Explain.

9. Manuel Milla and Regina Balmores-Laxa were candidates for councillor of Gerona, Tarlac in the May 14, 2001 elections. On May 18, 2001, Manuel Milla was proclaimed as the 8^th wining candidate by the Municipal Board of Canvassers (BOC) based on the Statement of Votes and the Certificate of Canvass. One month after his proclamation or on June 18, 2001, Regina filed a petition with the COMELEC against Manuel and the BOC for correction of entries in the Statement of Votes based on fraud or irregularities in the canvassing of votes, specifically the entries for the 4 precincts in the Statement of Votes did not correspond to the election returns for the respective precincts.

On June 29, 2001, Manuel took his oath of office and assumed office.

The BOC admits the erroneous tally, and prays that it it be allowed to reconvene to effect the correction of entries in the Statement of Votes, inorder to give way for Regina’s winning as the eight councillor of Gerona.

In its Resolution of December 18, 2001, the COMELEC EN BANC, denied the BOC’s motion to reconvene, declared Manuel’s proclamation as null and void and proclaimed Regina as the eight winning candidate.

Manuel argued that: 1) the petition of Regina was filed beyond the reglementary period of five days from proclamation 2) pre-proclamation cases should be terminated after proclamation and assumption of office 3) padding of statement of votes isnot a proper subject of a pre-proclamation case 4) that the COMELECen banc did not have jurisdiction over the petition of Regina.

QUESTION: Resolve the issues raised by Manuel.

10.Discuss the scope and limits of a pre-proclamation controversy.