Filling-up of Vacant Positions under a Re-enacted Budget

February 9, 2016 DILG LEGAL OPINION NO. 007 S. 2016 Atty. Juvy A. Victoriano-Dioso City Legal Officer Office of the City Legal Officer City of Bacolod Dear Atty. Victoriano-Dioso : This refers to your 15 January 2015 letter requesting this Department's clarification/legal opinion concerning the filling-up of vacant positions under a re-enacted budget, in view of the seeming inconsistency between DILG Opinion 30, s. 2011, as reiterated in DILG Opinion No. 3, s. 2013, viz. : "Accordingly, in a re-enacted budget, there will be no creation of positions, no filling of positions , no new programs, projects and activities, the increase in Internal Revenue Allotment (IRA) allocation for the year cannot be utilized since the same is covered by an Appropriation Ordinance, and non-recurring activities cannot be undertaken no matter how vital they may be." [Underscoring supplied] and DILG Opinion No. 30, s. 2015, viz. : "Consequently, a re-enacted budget will have implied disadvantages, as enumerated in the DBM's Budget Operations Manual (BOM) for Local Government Units (An Updated Version of the June 2005 Edition), such as, but not limited to, the following: 1. No creation of position; 2. No new programs, projects and activities; 3. No utilization of the increase in IRA allocation for the year since the same is not covered by an Appropriation Ordinance; 4. Non-implementation of non-recurring activities no matter how vital they may be; 5. No supplemental appropriations." Please be advised that Section 323 of the Local Government Code (hereinafter, the "Code") categorically provides that only the annual appropriations for salaries and wages of existing positions , statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed re-enacted and disbursement of funds shall be in accordance therewith, viz. : HEITAD "Section 323. Failure to Enact the Annual Appropriations. In case the sanggunian concerned fails to pass the ordinance authorizing the annual appropriations at the beginning of the ensuing fiscal year, it shall continue to hold sessions, without additional remuneration for its members, until such ordinance is approved, and no other business may be taken up during such sessions. If the sanggunian still fails to enact such ordinance after ninety (90) days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the preceding year shall be deemed reenacted and shall remain in force and effect until the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned. However, only the annual appropriations for salaries and wages of existing positions , statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith. In the implementation of such reenacted ordinance, the local treasurer concerned shall exclude from the estimates of income for the preceding fiscal year those realized from nonrecurring sources, like national aids, proceeds from loans, sale of assets, prior year adjustments, and other analogous sources of income. No ordinance authorizing supplemental appropriations shall be passed in place of the annual appropriations. In case the revised income estimates be less than the aggregate reenacted appropriations, the local treasurer concerned shall accordingly advise the sanggunian concerned which shall, within ten (10) days from the receipt of such advice, make the necessary adjustments or reductions. The revised appropriations authorized by the sanggunian concerned shall then be the basis or disbursements." [Emphasis and underscoring supplied] Note that no distinction is made by law on phrase "existing positions". Hence, the legal maxim "when the law does not distinguish, we must not distinguish" 1 applies herein. Consequently, appropriations for salaries and wages of existing positions, whether filled-up or vacant, are deemed re-enacted following Section 323 of the Code. Lastly, may we clarify that the previous opinion of this Department regarding the prohibition on "filling of positions" in case of re-enacted budget was based on the earlier version of Budget Operations Manual (BOM) for Local Government Units published by the DBM. The latest being the Budget Operations Manual (BOM) for Local Government Units (An Updated Version of the June 2005 Edition), as cited in this Department's latest opinion on the matter, i.e. , DILG Opinion No. 30, s. 2015. Please be guided by the foregoing. Very truly yours, (SGD.) AUSTERE A. PANADERO Undersecretary Footnotes 1. Amores vs. House of Representatives Electoral Tribunal, et al. (G.R. No. 189600, June 29, 2010).