Ocampo IV v. Atienza

April 27, 2015 BLGF MEMORANDUM CIRCULAR NO. 009-15 TO : All BLGF Central and Regional Directors of this Bureau SUBJECT : OMB-C-A-02-0574-K, Pablo G. Ocampo IV v. Jose V. Atienza, Et Al. For the information and guidance of all concerned, attached is the letter dated March 4, 2015 of the Office of the Ombudsman to the undersigned, pertinent portion of which, reads as follows: xxx xxx xxx "The Office reiterated that the DOF or his authorized representative (through the BLGF) is mandated by law and jurisprudence to implement an administrative penalty of dismissal from the service imposed against provincial, municipal or city treasurers, even in the complete absence of an express directive on the dispositive portion of a decision. " (underscoring supplied) xxx xxx xxx All BLGF Central and Regional Directors are hereby instructed to take note of the contents of the said letter. For information and guidance. (SGD.) ATTY. SALVADOR M. DEL CASTILLO OIC-Executive Director ATTACHMENT Republic of the Philippines OFFICE OF THE OMBUDSMAN Agham Road, Diliman, Quezon City March 4, 2015 Atty. Salvador M. Del Castillo OIC-Executive Director Bureau of Local Government Finance (BLGF) Department of Finance 8/F EDCP Building, BSP Complex Roxas Boulevard, Manila 1004 Re: OMB-C-A-02-0574-K, Pablo G. Ocampo IV v. Jose V. Atienza, Jr. et al. Dear OIC Del Castillo : This is in response to your letters dated December 22, 2014 and February 4, 2015, requesting guidance on the implementation of the penalty of dismissal against City Treasurer Liberty Toledo, in light of the series of resolutions of the Regional Trial Court (RTC) and the Court of Appeals (CA) in petitions arising from the captioned case. This administrative case involves the procurement by the City Government of Manila of 104 units of Chariot Econocabs through alternative mode of procurement (direct contracting) without competitive and public bidding and without proof of exclusive distributorship of RDAK Transport Equipment, Inc. The Office resolved the case by Decision of 19 May 2006. 1 All respondents (except Atty. Jaime Valencia and Mayor Jose Atienza, Jr.) filed their respective motions for reconsideration. The Ombudsman, by Order 2 dated 28 August 2014, denied the motions. A review made by the Office of Legal Affairs (OLA) shows the following appellate proceedings and post-adjudication issues: During the pendency of the motions for reconsideration, the Office received the letters dated 07 October 2009 and 14 December 2009 from Ma. Presentacion Montesa, then Executive Director of the BLGF, who sought clarification on the immediate implementation of the Ombudsman's Decision during the pendency of the motion for reconsideration filed by Toledo. The Office, through the OLA, replied and reiterated its prevailing policy that the filing of an appeal or a motion for reconsideration does not operate to stay the immediate implementation of Ombudsman's decisions, orders or resolutions. 3 In June 2010, Toledo filed with the RTC of Manila (Branch 11) a petition for prohibition with prayer for injunctive reliefs, which was docketed as SCA No. 10-123739 entitled Liberty M. Toledo v. Hon. Ma. Presentacion R. Montesa, et al. A temporary restraining order (TRO) and a writ of preliminary injunction were thereafter issued. By Decision dated 22 November 2010, RTC Judge Cicero Jurado, Jr. granted the petition and ordered the respondents "to desist from taking any action towards the implementation of the Administrative Decision in OMB-C-A-02-0574-K[.]" The Office of the Solicitor General 4 (OSG) filed a petition with the Court of Appeals (CA), which petition was docketed as CA-G.R. SP No. 125668. By Decision dated 08 November 2013, the CA dismissed the appeal and affirmed the RTC Decision. The CA ruled that Montesa's actuation of implementing the dismissal from the service of Toledo is without authority and tainted with grave abuse of discretion amounting to lack of jurisdiction citing the dispositive part of the Ombudsman's decision which clearly directed the DILG Secretary to implement the same and not the Executive Director of BLGF. It also ruled that the implementation of the Ombudsman Decision is premature because the same has not yet attained finality due to the pendency then of a motion for reconsideration. 5 Implementing Agency In denying the motions for reconsideration, the Ombudsman's Order dated August 28, 2014 again directed the DILG Secretary to implement the dismissal from the service of respondents including Toledo, a city treasurer whose appointment was issued by the DOF Secretary. By 1st Indorsement dated 14 November 2014, Atty. Cherry Canda-Melodias, City Director, City Government Operations Office, DILG (City of Manila), submitted her compliance report on the implementation of the Ombudsman Decision and Order. Attached thereto was a letter dated 12 November 2014 from Jose Alberto C. Flaminiano, Manila City Legal Officer, noted by Mayor Joseph Ejercito Estrada, informing the DILG about the implementation 6 of the order of dismissal. It reported that the City cannot properly implement Toledo's dismissal from the service because she was appointed by the DOF Secretary, hence the dismissal should be implemented by the appointing authority. The Office gathers that by Memorandum dated 10 November 2014, the DILG-NCR 7 indorsed again the matter of implementation to the DOF Secretary, insofar as Toledo is concerned since the DOF Secretary is the appointing authority. The Office reiterates that the DOF or his authorized representative (through the BLGF) 8 is mandated by law and jurisprudence to implement an administrative penalty of dismissal from the service imposed against provincial, municipal or city treasurers, even in the complete absence of an express directive in the dispositive portion of a decision. Section 470 of the Local Government Code provides: Sec. 470. Appointment, Qualifications, Powers and Duties. (a) The treasurer shall be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, as the case may be, subject to civil service law, rules and regulations. (b) The treasurer shall be under the administrative supervision of the governor or mayor , as the case may be, to whom he shall report regularly on the tax collection efforts in the local government unit. (emphasis and underscoring supplied) The power of supervision of a city mayor over a city treasurer is only "administrative supervision" which, as the Administrative Code of 1987 emphasizes, is limited in scope and covers only the overseeing of operations. 9 It is respectfully submitted that the reference of Section 47, Book V, Title I, Subtitle A of the Administrative Code to the power of heads of departments, agencies and instrumentalities, provinces and cities to discipline presupposes that such power necessarily emanates from their power of appointment. Since a city treasurer is not appointed by the local chief executive but by the DOF Secretary, it necessarily follows that it is the latter who should implement the penalty pursuant to the principle that the power to appoint carries with it the power to discipline. This is consistent with the ruling in Bagatsing v. Herrera 10 that the power to remove is inherent in the power to appoint. In Macalincag v. Chang, 11 the Supreme Court unequivocally held that "(t)he Office of the Municipal Treasurer is unquestionably under the Department of Finance as provided for in Sec. 3, P.D. No. 477. Hence, the Secretary of Finance is the proper disciplining authority[.]" Current Status of the Appeal Based on OLA records, the following respondents appealed the Ombudsman Decision and Order to the CA: 1. CA-G.R. SP No. 137642 (9th Division) by petitioner Toledo; 2. CA-G.R. SP No. 137657 (9th Division) by petitioners Escuela, Sison, Moscaya and Quilantang; and 3. CA-G.R. SP No. 137666 (6th Division) by petitioners Guirnalda and David. In all these petitions filed with the RTC and the CA, the Office of the Ombudsman was not impleaded 12 as a party. In CA-G.R SP No. 137642, the CA, by Resolution dated 12 December 2014, issued a TRO "to be effective from service and for a period of sixty (60) days, ORDERING the Office of the Ombudsman and the Department of the Interior and Local Government to CEASE and DESIST from enforcing, maintaining or otherwise giving effect to the Office of the Ombudsman's Decision dated May 29, 2006 and Order dated August 28, 2014 and other allied processes issued in OMB Case No. C-A-02-0574-K[.]" The Office received a copy of the Resolution on 12 December 2014. The 60-day period of the TRO thus expired on 10 February 2015. With the expiration of the TRO, the Ombudsman Decision and Order may be implemented as a matter of course, provided, no other writ of injunction, preliminary or permanent, exists. Recently, the Office received on February 24, 2015 a copy of the CA's Decision dated February 11, 2015 in CA-G.R. SP No. 137642, granting the petition of Toledo and consequently exonerating her from the charges of Gross Neglect of Duty and Grave Misconduct. As the Office was not impleaded in the case, the Office intends to intervene therein and file a Motion for Reconsideration. The Office hopes this sufficiently addresses your concern. By authority of the Ombudsman: (SGD.) MARIBETH T. PADIOS Assistant Ombudsman Office of Legal Affairs Footnotes 1. The dispositive portion thereof reads: PREMISES CONSIDERED, we find respondents MA. CAROLINA M. ESQUELA, Executive Assistant V, Office of the Mayor, ATTY. EMMANUEL R. SISON, Secretary of the Mayor, RICARDO DAVID, Inspector, City General Services Office (CGSO), ATTY. JAIME P. VALENCIA OIC-CGSO, LIBERTY M. TOLEDO, City Treasurer , ALICIA T. MOSCAYA, Assistant Department Head, GLORIA C. QUILANTANG, City Accountant and CHERYL L. GUIRNALDA all of Manila City Hall, Manila, are hereby found guilty of GROSS NEGLECT OF DUTY and GRAVE MISCONDUCT and are meted the corresponding penalty DISMISSAL FROM THE SERVICE including all its accessory penalties without prejudice to criminal prosecution pursuant to Section 52 (A-3) and (A-2), Rule IV of the Uniform Rules on Administrative Cases (CSC Resolution No. 991936), dated August 31, 1999. For lack of evidence, Mayor LITO L. ATIENZA, JR. is ABSOLVED of the charges. Further, the HONORABLE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, EDSA, Quezon City is hereby ordered to implement this DECISION upon finality hereof and inform this Office of compliance thereof . SO ORDERED. (underscoring supplied) 2. The dispositive portion thereof reads: WHEREFORE, the a) Motion for Reconsideration dated 23 July 2009 filed by respondents Carolina M. Esquela, Atty. Emmanuel R. Sison, Ricardo David, Alicia T. Moscaya, Gloria C. Quilantang and Cheryl L. Guirnalda; b) Motion for Reconsideration (Supplement) dated 23 July 2009 filed by Esquela; and c) the Motion for Reconsideration filed by respondent Liberty M. Toledo , are DENIED for lack of merit. In the event that the penalty of Dismissal can no longer be enforced due to respondents' separation from the service, the same shall be converted into a Fine in the amount equivalent to their salaries for one (1) year, payable to the Office of the Ombudsman, and may be deductible from respondents' retirement benefits, accrued leave credits or any receivable from his/her office. No further motion or pleading shall be entertained. The Honorable Secretary of the Department of the Interior and Local Government is hereby directed to immediately implement this Order and inform this Office of compliance thereof. SO ORDERED. (underscoring supplied) 3. Through letters dated 9 November 2009 and 22 January 2010, citing Ombudsman Memorandum Circular No. 01, series of 2006. See also the latest case of Villaseor v. Ombudsman , G.R. No. 202303, June 4, 2014. 4. Representing Executive Director Montesa, the Department of Finance (DOF), and the Regional BLGF-DOF. 5. Per telephone conversation with OSG, the CA Decision became final and executory on December 3, 2013. The Entry of Judgment was received by OSG on April 14, 2014. 6. The letter reported that the penalty of dismissal was implemented against: 1. Ricardo David, Inspector, City General Services Office 2. Cheryl L. Guirnalda, Sangguniang Panlungsod. It also reported that the penalty of dismissal of the following was not implemented as they are no longer connected with the City Government of Manila: 1. Maria Carolina M. Escuela, Executive Assistant V, Office of the Mayor 2. Atty. Emmanuel Sison, Secretary to the Mayor 3. Atty. Jaime P. Valencia, OIC, CGSO (deceased) 4. Alicia Toscaya, Assistant Department Head 5. Gloria C. Quilantang, City Accountant [Her retirement benefits were held in abeyance, however, pending the payment of fine equivalent to her one-year salary]. 7. Through Regional Director Renato Brion. 8. The BLGF is a component of the Department of Finance created by Executive Order No. 127. 9. Section 38, Chapter 7, Book IV of the 1987 Administrative Code (a) Administrative Supervision. (a) Administrative supervision which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to ensure that they are managed effectively, efficiently and economically but without interference with day-to-day activities ; . . . (b) Such authority shall not, however, extend to (1) appointments and other personnel actions in accordance with the decentralization of personnel functions under the Code , . . . 10. G.R. No. L-34952, July 25, 1975. 11. G.R. No. 96058, May 6, 1992. 12. For petitions filed under Rule 43, see Rules of Court, Rule 43, Sec. 6 (a).