Cabañez v. Field Investigation Office

FIRST DIVISION

[G.R. No. 249473. July 6, 2022.]

GLENN G. CABAÑEZ, petitioner, vs.FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedJuly 6, 2022, which reads as follows:

"G.R. No. 249473 (Glenn G. Cabañez v. Field Investigation Office, Office of the Ombudsman). — This Petition for Review on Certiorari1 seeks the reversal of the Decision 2 dated 27 September 2018 and Resolution 3 dated 11 September 2019 of the Court of Appeals (CA), Cebu City, in CA-G.R. SP No. 09661. The CA modified the Decision 4 dated 08 August 2011 and Order 5 dated 11 January 2012 of the Office of the Ombudsman (Visayas) in OMB-V-A-10-0111-C, declaring petitioner Glenn G. Cabañez (Cabañez) guilty of Serious Dishonesty only.

Antecedents

Cabañez was a Port Manager at the Port Ports Authority (PPA). Sometime in 2008, and while Cabañez was still serving as Director II at the Maritime Industry Authority (MARINA), some concerned employees of MARINA-Cebu City filed a complaint against him before the Office of the Ombudsman (OMB) in Manila. This led to the conduct of an investigation into his assets from the year 1998 to 2007. 6 The OMB Field Investigation Office (FIO) looked into Cabañez' service record, sources of income (yearly compensation, benefits, and other remuneration), business interests, real properties, vehicles, personal properties, and liabilities, as reflected in his Statements of Assets, Liabilities and Net Worth (SALNs) and other documents and records available from various government offices and agencies such as the Bureau of Internal Revenue (BIR) and the City Assessor's Office, among others. 7

From its investigation, the FIO found: EATCcI

15. Table 5 shows the comparison between the total acquired properties of [Cabañez] spouses from CYs 1998 to 2007 and the income he earned for the said years:

TABLE 5: Summary of Acquired Properties vs. Known Income

Year	Annual Income	Total of Acquired Properties	Unexplained Wealth
1998	264,732.00	440,000.00	175,268.00
1999	264,732.00	525,000.00	260,268.00
2000	460,098.64	1,811,146.95	1,351,048.31
2001	305,952.00	50,000.00	-
2002	313,416.00	70,000.00	-
2003	537,675.50	-	-
2004	575,547.00	200,000.00	-
2005	525,452.00	100,000.00	-
2006	523,452.00	35,000.00	-
2007	573,114.00	1,951,000.00	1,377,886.00
TOTAL			3,164,470.31

16. x x x for [Calendar Years] 1998, 1999, 2000, and 2007, [Cabañez and his wife Marilyn] have a total income of Php1,562,676.64 but were able to acquire Php440,000.00, Php525,000.00, Php1,811,146.95, and Php1,951,000.00 worth of properties respectively, which consist of personal properties and real property improvements. Thus, they acquired wealth which is manifestly disproportionate to their legitimate income in the amount of Php3,164,470.31.

17. It must be emphasized that the [BIR] certified that [Cabañez] has no record of income tax returns filed with the said office (Annex "K"). Thus, it can be deduced that he is solely dependent on his salary as a government employee and he has no other source of income to support the acquisition of the properties in question.

18. The Php3,164,470.31 unexplained wealth of [Cabañez] spouses is a conservative estimate since their cost of living expenses (food, clothing, utilities, medical and health, etc.) were not included in the computation since no evidence was gathered to determine its cost or at least a reasonable estimation thereof.

19. Noticeably, the [Cabañez] spouses had an unexplained wealth totaling to Php3,164,470.31 consisting of personal properties and real property improvements, which were declared under oath in a public document (a declaration against interest), hence, admissible in evidence before the courts. Thus, there is prima facie evidence to warrant the filing of a petition for forfeiture of properties as defined in Section 2 of R.A. No. 1379 in relation to Sec[.] 8 of R.A. 3019. 8

Thus, on 18 December 2009, the FIO filed the following complaints against Cabañez and his wife, Marilyn Rentasida Cabañez (Marilyn):

(a) Criminal complaints x x x for violation of Section 2 of R.A. No. 1379 in relation to Section 8 of R.A. No. 3019 for having an unexplained wealth amounting to Php3,164,470.31; and

(b) Administrative complaint x x x for Serious Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service as defined under Section 3(f) of CSC Resolution No. 060538 entitled "Rules on the Administrative Offense of Dishonesty," and Section 52, Nos. 3 and 20 of CSC Resolution No. 991936 entitled "Uniform Rules on Administrative Cases in the Civil Service" respectively. 9

These complaints were docketed as OMB-V-C-10-0091-C (for the criminal case) and OMB-V-A-10-0111-C (for the administrative case). On 13 April 2010, the OMB-Visayas issued an Order 10 directing Cabañez and Marilyn to file their respective counter-affidavits and controverting evidence. As earlier stated, this case concerns only the administrative findings against Cabañez.

In his Counter-Affidavit 11 dated 01 September 2010, Cabañez maintained his "complete innocence" of the charges as filed. There, he claimed:

6. That apparently, in arriving at its erroneous conclusion, the [FIO] of the [OMB] has simply considered [his] separate income WITHOUT considering the income of [his] wife in the acquisition of those properties in question. Nonetheless, even when based solely on [his] separate income, the comparison rendered by the FIO in its Table 5 would show that there is actually no huge disparity between the aggregate income which [he] earned and the properties supposedly acquired. The FIO maliciously did not indicate the total of [his] separate income alone which is P4,344,171.11 compared to the supposed total value of the acquired assets which is P5,182,146.90 or with a difference of around P837,975.80; DHITCc

7. That [his] spouse had been employed for 15 years at the United Coconut Planters Life Assurance Corp. (COCOLIFE) since 02 July 1984 until her retirement on 31 December 1999 from COCOLIFE, and had a basic monthly salary of P18,427.00 or an annual income of P221,124.00. Her annual income combined with [his] own annual income of P264,732.00, both [of] which has a total annual income of P485,856.00 for one year alone. Certainly, for 15 years that we [sic].

8. That after her retirement from COCOLIFE, she subsequently became employed with the Perpetual Help System as a Faculty Member since November 2002, presumably with a similar if not higher level of salary as her previous employment. x x x

9. That taking into account [their] combined income until 1999 alone, which was around P7,287,840.00, the alleged total acquired properties of P5,182,146.90 would have been covered by [their] aforesaid combined income in 1999. This is not to mention that from 1999 when [his] own separate annual income was only P264,732.00, the same had increased by approximately 100% to P573,114.00 in 2007, which when totaled from 1998 to 2007 had actually reached P4,344,171.11. Since [his] spouses also an [sic] comparable income with [his], for the same period, hers may be conservatively estimated at around P3,000,000.00. Again, combining both [their] income together, it would at least (sic)P7,344,171.11. Again, this would fully cover for the alleged total acquired properties of P5,182,146.90;

10. It further seems to be malicious for the FIO to have compared [his] annual income in 1998 with the total of acquired assets for the same year which is a car worth P440,000.00, without taking into account that the said car was obtained through a loan. [His] income in 1999 was also compared with the acquisition of the car worth P525,000.00 without considering that the same was obtained through car loan. [His] income for 2000 was juxtaposed with the supposed "acquisitions" for the year when the improvements of the real property were reflected in the SALN. It was at this time when [his] spouse retired from her job at COCOLIFE that she received substantial retirement pay or benefits and which she used to fully pay and renovate the house. Even the renovation of the house was financed by [his] mother and [his] sister Ma. Lina G. Feibing as fulfillment of their promise to help [them] put up a house. Then the FIO jumped to 2007, when a RAV4 was obtained worth P250,000.00 for [his] mother using her money when she was still in the U.S. and thereto added the amount of P1,701,000.00 which [he does] not know where it is based on. Remarkably, for the period from 2001 to 2008, the FIO did not consider that [his] total separate income was way in excess of the alleged acquisitions;

11. That be that as it may, the real circumstances surrounding the acquisition of the real properties show that the combined incomes with [his] spouse were sufficient to acquire said real properties, as summarized in the following table:

Property	Area	Year of Acquisition	Purchase Price	Mode of Acquisition	Previous Owner	Supporting Evidence
Residential Property in Pacita Complex II, San Pedro, Laguna	180 sqm.	1986	P70,000.00 (representing rights) + P160,000.00 (arrears with the GSIS by the previous owner) + P420,000.00 (loan from UCPB) or a total of P650,000.00	Purchased through installment by Marilyn R. Cabañez and loan with mortgage by Marilyn R. Cabañez from UCPB	Angela Halos/GSIS	TCT No. T-248154 in the name of Marilyn R. Cabañez married to Glenn Cabañez Deed of Absolute Sale by the GSIS and cancellation of mortgage issued by UCPB.
Lot in ________	240 Sqm.	1987	P2,880.00	Purchased on an "as is, where is" by Marilyn R. Cabañez and her co- employees at UCPB	Tamanli Development Corp./UCPB	Letter from CocoLife employees to UCPB; Letter from UCPB approving the employees' proposal; Deed of Sale; Transfer Tax OR No. 980389; TCT No. T-258249 in the name of Marilyn R. Cabañez
Lot in Camella Ridgeview, Muntinlupa	130 sqm.	1994	P430,000.00	Purchased through loan with the Pag-IBIG, payable in 25 years at P5,097.00 per month; however for failure to continue paying the amortization, the property was foreclosed.		TCT No. 180749 in the name of Marilyn Cabañez married to Glenn Cabañez [sic]; Receipts issued by the HDMF/Pag-IBIG
Lot in Southville, Biñan, Laguna	109 sqm.	1994	P146,321.41	Purchased by installment through monthly amortization of P5,000.00; loaned with mortgage to Pag-IBIG so as to reduce amortization	Active Realty Development Corp.	TCT No. T-308945 in the name of Sps. Glenn G. Marilyn Cabañez; Loan and Mortgage Agreement and Promissory Note executed in favor of HDMF/Pag-IBIG

xxx xxx xxx

17. That in [his SALN], [he] indicated the value of the properties at prevailing market price per [his] own estimate and not based on scientific or actual market studies. It was done in good faith and at [worst] was an honest mistake and [he] had no intention of committing any wrong. x x x

18. That let it also be made manifest that the Toyota RAV4 mentioned by the FIO is a second-hand car which was initially purchased as an accommodation for [his] mother who had decided to stay permanently in the Philippines after having stayed in United States of America for nearly two decades or 20 years. She was an American citizen when she got her dual citizenship sometime in 2007 or 2008. Subsequently, the car was registered under her name. 12 cEaSHC

Cabañez also professed that, as the youngest son, he had been receiving financial support from his older siblings who were living and gainfully employed in the United States. 13

Ruling of the OMB

On 08 August 2011, the OMB-Visayas issued its Decision 14 in OMBV-A-10-0111-C, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered finding respondent GLENN G. CABAÑEZ guilty of Serious Dishonesty and Grave Misconduct. Respondent GLENN G. CABAÑEZ is hereby meted the penalty of Dismissal from Service, with Cancellation of Eligibility, Forfeiture of Retirement Benefits and Perpetual Disqualification from re-employment in the Government Service pursuant to Section 10, Rule III, Administrative Order No. 07, as amended by Administrative Order No. 17, in relation to Section 25 of Republic Act No. 6770.

Further, the dismissal is without prejudice to criminal or civil liability of which respondent GLENN G. CABAÑEZ may be subjected to.

The Secretary of the Department of Transportation and Communication, Honorable Manuel Roxas III, is hereby directed to implement this DECISION immediately upon receipt thereof pursuant to Section 7, Rule III of Administrative Order No. 17 (Ombudsman Rules of Procedure), in relation to Memorandum Circular No. 1, Series of 2006, dated 11 April 2006, and to promptly inform this Office of his compliance.

Furnish copy of this Decision to the Civil Service Commission, Commission on Audit and Commission on Election Regional Offices No. VII for information.

SO ORDERED. 15

Cabañez filed an Urgent Motion for Reconsideration 16 and a Verified Supplemental Motion for Reconsideration. 17 In the meantime, and pending approval of the Order resolving the foregoing motions, the OMB, on 10 January 2013, directed Cabañez to attend a clarificatory hearing on 12 March 2013 and to bring with him any additional evidence he might have to support his defenses. Cabañez, during said hearing, presented the testimony of one Atty. Jose Gangan, who purportedly expressed his expert opinion that the former did not amass unexplained wealth.

On 19 October 2015, 18 Overall Deputy Ombudsman Melchor Arthur H. Carandang approved the Order denying the motions filed by Cabañez. Aggrieved, Cabañez filed a Petition for Review under Rule 43 of the Rules of Court assailing the OMB Decision with the CA. 19

Decision of the CA

The CA partially granted the petition filed by Cabañez. The dispositive portion of its Decision 20 dated 27 September 2018 reads:

WHEREFORE, the petition is PARTIALLY GRANTED. The Decision and Order dated August 8, 2011 and January 11, 2012, respectively, in OMB-V-A-10-0111-C are MODIFIED. The charge for Grave Misconduct against Glenn G. Cabañez is DISMISSED while the finding of his liability for Serious Dishonesty and the corresponding penalty imposed are AFFIRMED. CTIEac

SO ORDERED. 21

The CA framed the issues for resolution thus: first, whether the alleged irregularities attendant in the assailed issuances of the OMB (where the Order dated 11 January 2012 was only approved by the Overall Deputy Ombudsman three years later and without discussing its findings on the clarificatory hearing conducted in the interim) deprived Cabañez of his right to due process; and second, whether the OMB correctly found him liable for serious dishonesty and grave misconduct. 22

Anent the first issue, the CA ruled that Cabañez was not denied due process. It held that the fact that the Order did not touch on matters tackled during the clarificatory hearing "only affirms that the same issues were already passed upon in the Decision, and that no new evidence which materially affects the Decision was presented." 23 The CA further declared that in any case, the OMB may issue an order based on the pleadings alone without depriving Cabañez of due process. The clarificatory hearing was simply an extra measure to aid the Deputy Ombudsman in dispensing justice, considering the lapse of time between the preparation of the draft and its eventual approval. 24

While the CA agreed with the OMB's finding that Cabañez failed to properly explain the disparity between his lawful income and his property acquisitions, it nevertheless held that Cabañez is liable only for Serious Dishonesty and not Grave Misconduct. Citing this Court's ruling in Gupilan-Aguilar v. Office of the Ombudsman, 25 the appellate court ruled that absent showing that the misdeclarations in his SALN have a bearing on the performance of his functions as a Director of the MARINA, the charge of grave misconduct against Cabañez must necessarily fail. 26

Cabañez filed a Motion for Partial Reconsideration 27 but this was denied by the CA in its Resolution 28 dated 11 September 2019.

Issue

Cabañez asks this Court to determine whether the CA committed a reversible error when it affirmed the OMB's finding of Serious Dishonesty against him.

Ruling of the Court

The petition is PARTLY meritorious.

I

Dishonesty begins when an individual intentionally makes a false statement in any material fact, or practicing or attempting to practice any deception or fraud in order to secure his or her examination, registration, appointment or promotion. It is understood to imply the disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. 29

Acts or omissions considered as dishonesty include: (1) making untruthful statements in the Personal Data Sheet, (2) causing another person to take and pass the Career Service Professional Examination on his or her behalf, (3) use of fake or spurious civil service eligibility, and (4) use of position to make his or her "clients" believe that he or she could give them undue advantage — over others without the same connection — by processing their claims faster. 30

In specific relation to SALNs, this Court, in Daplas v. Department of Finance, 31 considered as dishonesty the failure to file a truthful SALN as it puts in doubt the integrity of the public officer or employee. The requirement of submission of SALN is aimed at curtailing opportunities for official corruption by essentially providing for a check and balance mechanism to verify undisclosed properties and/or sources of income of public officials and employees. 32 It is thus imperative that the statements contained therein be true and correct, otherwise the purpose behind the SALN requirement would be defeated.

Relatedly, Section 2 of Republic Act No. 1379 33 provides that whenever public officers or employees acquire during their incumbency an amount of property which is manifestly out of proportion to their salary as such public officer or employee and to their other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. This presumption, being prima facie, may still be overcome by evidence to the contrary. 34 SaCIDT

Here, both the CA and the OMB found that Cabañez acquired wealth which is manifestly in disproportion to his and his wife Marilyn's declared lawful income.

The OMB, in particular, observed that: (1) while Cabañez claims to have acquired Other Personal Properties worth only P1,701,000.00 in 2007, a comparison of his 2006 and 2007 SALNs showed that it was actually P1,802,000.00; 35 (2) even if the income of Cabañez for 1998 is only P264,732.00, he was still able to acquire a motor vehicle worth P440,000.00 (thereby resulting in an unexplained wealth of P175,268.00); 36 (3) in 1999, Cabañez purchased another motor vehicle in the amount of P525,000.00 despite an income of only P264,732.00 (resulting in unexplained wealth in the amount of P260,268.00); 37 (4) in 2000, Cabañez acquired Other Personal Properties in the amount of P390,000.00 (as can be gleaned from a comparison of his 1999 and 2000 SALNs) and applied for renovation amounting to P1,421,146.95 of a two-storey residential house in San Pedro, Laguna, with a declared income of only P556,365.64 (resulting in unexplained wealth of P1,254,781.31); 38 (5) in 2007, he was able to buy a Toyota RAV4 for P250,000.00 and his Other Personal Properties increased to P1,802,000.00, with only a declared income of P651,562.00 (thus, an unexplained wealth in the amount of P1,400,438.00). 39

Citing our ruling in Office of the Ombudsman v. Bernardo, 40 Cabañez argues that prior years' net worth should be considered for purposes of determining "whether his disposable income was more than sufficient to justify his property acquisitions." 41 Specifically, he maintains that his net worth of P1,298,000.00 in 1997 would show that he "can afford to acquire property in 1998 amounting to P440,000.00, still with some disposable income to spare." He further asserts that the same reasoning applies with the years 1999 and 2000. 42 As for the increase of his assets in the amount of P1,377,886.00 for the year 2007, he explains that this was a product of wealth he accumulated from 2001 to 2006. 43

What Cabañez fails to mention, however, is that in Bernardo, the respondent was able to submit sufficient proof of legitimate business income (through financial documents such as audited reports, income statements, rental income statements, and Employer's Certificate of Compensation Payment, among others) to justify the property acquisitions. In contrast, the evidence submitted by Cabañez to prove his lawful acquisition of his properties was seriously lacking. To quote the OMB:

Relative to [Cabañez]' purchase of motor vehicles in 1998 and in 1999, he asserted that both were financed through loans. However, he did not offer any proof supporting this allegation. Documents pertaining to the loans were conspicuously lacking. There were no papers relating to the alleged loan application such as, but not limited to the following: Loan Approval, Schedule of Loan Releases, Promissory Notes, Chattel Mortgage, Receipts of Payment on Loan Amortization, Statement of Account and other pertinent documents which show the existence and availment of the loans granted. He did not even state the identities of the company from which, or persons from whom, he obtained said loans.

Anent the improvement done on his realty in Laguna sometime in 2000, [Cabañez] insists that the funds therefore were sourced from the retirement benefits from COCOLIFE of his wife, Marilyn. His mother and sister likewise helped him in financing the improvement.

What is remarkable, though, is the absence of papers establishing that indeed, Marilyn was granted a certain amount by COCOLIFE as her retirement benefits. There were no vouchers, accounting records, computation of benefits, among others, signifying the fact of receipt of claimed retirement benefits.

[Cabañez] presented a computation of his wife's retirement benefits from COCOLIFE. But we cannot give it credence considering that it was undated and considering further that this kind of document can be easily made by anybody. This Office has no way of ascertaining whether the signatory of said certification is really who she claims to be, the VP-HRASD. Besides, there was no proof regarding his wife's monthly salary from said company. cHECAS

In the same vein, we disregard [Cabañez]' contention that his mother and sister gave him financial help relative to said improvement. Once more, there was no evidence whatsoever establishing this claim aside from [Cabañez]' bare allegations.

The same can be said as regards the purchase of Toyota RAV4 in 2007. [Cabañez] maintains that it was purchased as an accommodation to his mother. The details, though, about said accommodation was not specified. There was even no proof that the said vehicle was, in reality, financed by [Cabañez]' mother.

[Cabañez] similarly emphasized that upon retirement from COCOLIFE, his wife was afterwards employed by University of Perpetual Help System. He said that his wife has a salary which is equal or even higher than what she received from her previous employment. But this assertion is doubtful since the Certification of Employment from University of Perpetual Help System Laguna did not state the wife's salary, compensation and other benefits. 44 (Emphasis supplied)

The insufficiency of Cabañez's evidence was similarly noted by the CA in its assailed Decision:

Verily, it has not escaped this Court's attention that [Cabañez] resorted to mere certifications in substantiating income received or loan obtained, whereas he could have presented the very documents evidencing the same, such as actual payslips and payrolls, loan documents, and the like. Why he chose to do so escapes Us especially since as respondent in the administrative case, he would have exerted all efforts to exonerate himself by presenting the best evidence possible to explain the disparity in his income with his acquisitions. 45

We have examined the record and see no reason to depart from the foregoing findings regarding the overall insufficiency of the evidence presented by Cabañez. To borrow from the words of Justice Mendoza, "[a]n honest public servant will have no difficulty in gathering, collating and presenting evidence that will prove his credibility, but a dishonest one will only provide shallow excuses in his [or her] explanations. 46

II

We disagree, however, that he should be held liable for Serious Dishonesty, warranting the extreme penalty of dismissal from the service.

A

In ordering Cabañez' dismissal from the service, the OMB applied the provisions of the Uniform Rules of Administrative Cases (Uniform Rules). We quote:

Under Section 52 of the Uniform Rules on Administrative Cases in the Civil Service, Serious Dishonesty and Grave Misconduct both impose (sic) the penalty of Dismissal. After having committed these unpardonable acts, [Cabañez] no longer deserves to remain in public service, so much so, that his dismissal from the service is warranted. 47

Indeed, under the Uniform Rules, which did not contain any standard for classifying dishonesty, a finding of dishonesty simply carried with it the indivisible penalty of dismissal. However, and as noted by this Court in Committee on Security and Safety, Court of Appeals v. Dianco, 48 the Civil Service Commission (CSC) has since issued Resolution No. 06-0538 which recognized that dishonesty covers a broad range of conduct and, accordingly, imposed different penalties depending on the severity of the act committed:

[CSC Resolution No. 06-05381 classifies dishonesty into three acts: (1) serious, (2) less serious, and (3) simple.

Serious dishonesty is punishable by dismissal. Less serious dishonesty is punishable by suspension for six (6) months and one (1) day to one (1) year for the first offense and dismissal for the second offense. Simple dishonesty is punishable by suspension of one (1) month and one (1) day to six (6) months for the first offense, six (6) months and one (1) day to one (1) year for the second offense, and dismissal for the third offense. AHDacC

Under Section 3 of CSC Resolution No. 06-0538, the presence of any of the following attendant circumstances in the commission of the dishonest act constitutes the offense of serious dishonesty:

1. The dishonest act caused serious damage and grave prejudice to the government;

2. The respondent gravely abused his authority in order to commit the dishonest act;

3. Where the respondent is an accountable officer, the dishonest act directly involves property; accountable forms or money for which he is directly accountable; and respondent shows intent to commit material gain, graft and corruption;

4. The dishonest act exhibits moral depravity on the part of the respondent;

5. The respondent employed fraud and/or falsification of official documents in the commission of the dishonest act related to his/her employment;

6. The dishonest act was committed several times or in various occasions;

7. The dishonest act involves a Civil Service examination irregularity or fake Civil Service eligibility such as, but not limited to, impersonation, cheating and use of crib sheets;

8. Other analogous circumstances.

Section 4 of CSC Resolution No. 06-0538 provides that the presence of any the following attendant circumstances in the commission of the dishonest act constitutes less serious dishonesty:

1. The dishonest act caused damage and prejudice to the government which is not so serious as to qualify under the immediately preceding classification;

2. The respondent did not take advantage of his/her position in committing the dishonest act;

3. Other analogous circumstances.

On the other hand, the presence of any of the following attendant circumstances in the commission of the dishonest act constitutes the offense of simple dishonesty:

1. The dishonest act did not cause damage or prejudice to the government.

2. The dishonest act had no direct relation to or does not involve the duties and responsibilities of the respondent.

3. In falsification of any official document, where the information falsified is not related to his/her employment.

4. That the dishonest act did not result in any gain or benefit to the offender.

5. Other analogous circumstances.49

When the OMB issued its Decision dismissing Cabañez, Civil Service Commission Resolution (CSC) No. 06-0538 was already in effect. Despite this, there was nothing in the OMB Decision which discussed the presence of any of the above-enumerated circumstances which would qualify Cabañez's acts as Serious Dishonesty.

It was only on appeal when the CA clarified that Cabañez's offense was Serious Dishonesty under Section 3 (f) of CSC Resolution No. 06-0538. It held that "the dishonest act was committed several times or in various occasions," 50 presumably because whatever inaccuracies it found in Cabañez's SALN were repeated year after year. This alone, however, is insufficient to qualify Cabañez's act as Serious Dishonesty especially if we are to consider the "common practice" of merely copying the entries in the SALN of the immediately preceding year and just adding any subsequent acquisitions. 51 IDSEAH

On this score, we must again emphasize that dishonesty is a question of intention. 52 For one to be held liable for serious dishonesty, there must a clear proof of intent to deceive or conceal. 53 We find such evidence wanting in this case.

A charge for dishonesty normally involves a non-declaration on the part of the concerned public official; "[u]nexplained matter normally results from the 'non-disclosure' of vital facts." 54 It is noted that neither the OMB nor the CA found Cabañez guilty of non-declaration. In fact, the records show that Cabañez consistently declared his assets, including those owned by his wife, Marilyn, in his SALN. To our mind, this at the very least, militates against a finding of an intent to conceal on his part as to make him liable for Serious Dishonesty. 55

Nonetheless, the fact remains that Cabañez failed to properly account or explain his other sources of income in relation to his property acquisitions. For this reason, We find him liable for simple dishonesty. 56

B

Under Section 2 of CSC Memorandum Circular (MC) No. 13, series of 2021, or the Revised Rules on the Administrative Offense of Dishonesty, Simple Dishonesty is punishable by suspension from the government service for a period of one month and one day to six months for the first offense. Section 6 of the same Rules 57 further provides for the appreciation of mitigating and aggravating circumstances enumerated under Section 53, Rule 10 of the 2017 Rules on Administrative Cases in the Civil Service (RACCS), in the determination of the penalties to be imposed. These include:

a. Physical illness;

b. Malice;

c. Time and place of offense;

d. Taking undue advantage of official position;

e. Undue disclosure of confidential information;

f. Use of government property in the commission of the offense;

g. Habituality;

h. Offense is committed during office hours and within the premises of the office or building;

i. Employment of fraudulent means to commit or conceal the offense;

j. First offense;

k. Education;

l. Length of service; or

m. Other analogous circumstances.

Here, Cabañez pleads for consideration and cites the 35 years he spent as a government employee who, until this case, has never been charged with any offense. 58

We are inclined to accede to his plea.

Lest it be mistaken, We do not condone Cabañez's acts. Public service, after all, requires utmost integrity and discipline. No less than the Constitution mandates the principle that a public office is a public trust; and all public officers and employees must at all times be accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency. 59 Nevertheless, hand in hand with our duty to sternly wield a corrective hand to discipline errant employees is our sound discretion to temper the harshness of judgment with mercy. 60 We thus consider in Cabañez's favor his long years spent in government and the fact that this is his first offense. 61 Accordingly, We find the imposition of a penalty of suspension for two months without pay to be appropriate. 62 aCIHcD

C

Decisions of the Ombudsman in disciplinary cases are immediately executory and cannot be stayed by the filing of an appeal or the issuance of an injunctive writ. 63 Thus, Cabañez is considered to have been out from government from the time the OMB ordered his dismissal until the pendency of his appeal. 64 That We have now modified the administrative charge and imposable penalty will not affect the validity of his dismissal or separation from work pending appeal; the same remained valid and effective until it was, as it is now, modified with the correction of the designation of the administrative offense he committed and reduction of the corresponding penalty. 65 This means that while Cabañez may be entitled to reinstatement, he is not entitled to the payment of back salaries during the period of his "dismissal." 66 The Court's explanation in Villamor v. Lacson67 still applies:

It will be noted also that the modified decision did not exonerate the petitioners. And if we take into account the fact that they did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of their salaries. The general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As you work, so shall you earn. And even if we consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges proffered against him, which is not the case in the instant proceedings. 68 (Emphasis supplied, citations omitted)

Incidentally, the Court takes note of Cabañez's manifestation that he is already a private citizen. 69 Since it is not clear whether this was a consequence of his dismissal by the OMB or for some other reason (i.e., resignation), We cannot yet order his reinstatement. In any case, he is deemed to have served the foregoing period of suspension during the time that his petition for review was pending before the appellate court and this Court. With the modification of his penalty from dismissal to suspension, he is likewise restored of all of his rights and benefits under the law, albeit without payment of back salaries. 70

WHEREFORE, the Petition for Review on Certiorari is PARTLY GRANTED. The assailed Decision dated 27 September 2018 and Resolution dated 11 September 2019 of the Eighteenth Division of the Court of Appeals in CA-G.R. SP No. 09661 are MODIFIED in that petitioner Glenn G. Cabañez is found guilty only of the Simple Dishonesty and sentenced to suffer the penalty of SUSPENSION of TWO (2) MONTHS WITHOUT PAY, with a warning that a repetition of the same or similar offenses would be dealt with more severely.

Petitioner Cabañez is DEEMED TO HAVE SERVED the foregoing period of suspension during the time that his petition for review was pending before the Court of Appeals and this Court. Furthermore, with the modification of his penalty from dismissal to suspension, he is RESTORED of all of his rights and benefits under the law, albeit without payment of back salaries.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

Footnotes

1.Rollo, pp. 8-21.

2.Id. at 22-42; penned by Associate Justice Emily R. Aliño-Geluz and concurred in by Executive Justice Gabriel T. Ingles and Associate Justice Marilyn B. Lagura-Yap.

3.Id. at 43-44; penned by Associate Justice Emily R. Aliño-Geluz and concurred in by Associate Justices Gabriel T. Ingels and Marilyn B. Lagura-Yap.

4.Id. at 158-180; penned by Deputy Ombudsman Pelagio S. Apostol.

5.Id. at 402-414; penned by Graft Investigation and Prosecution Officer I Yvette Christine R. Labrador-Soleng and reviewed by Assistant Ombudsman Virginia Palanca-Santiago.

6.Id. at 159.

7.Id. at 159, 165.

8.Id. at 55-56.

9.Id. at 51-58.

10.Id. at 113-114.

11.Id. at 115-119.

12.Id. at 115-119.

13.Id. at 119.

14.Id. at 158-180; approved on 26 August 2011 by Deputy Ombudsman for Visayas Pelagio S. Apostol.

15.Id. at 178-179.

16.Id. at 181-189.

17.Id. at 191-214.

18.Id. at 402-413; approved on 19 October 2015 by Overall Deputy Ombudsman Melchor Arthur H. Carandang.

19.Id. at 413.

20.Id. at 22-42.

21.Id. at 41-42.

22.Id. at 30.

23.Id. at 31.

24.Id. at 32.

25. 728 Phil. 210 (2014).

26.Rollo, pp. 38-41.

27.Id. at 45-50.

28.Id. at 43-44.

29.Office of the Ombudsman v. Racho, 656 Phil. 148, 163 (2011).

30.Domingo v. Civil Service Commission, G.R. No. 236050, 17 June 2020.

31. 808 Phil. 763, 773 (2017).

32.Marquez v. Ovejera, 726 Phil. 137 (2014).

33. Entitled "An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor." Approved on 18 June 1995.

34.Pleyto v. Philippine National Police Criminal Investigation and Detection Group, 563 Phil. 842, 881 (2007).

35.Rollo, p. 172.

36Id. at 173.

37.Id.

38.Id. at 174.

39.Id.

40. 705 Phil. 524-544 (2013).

41.Rollo, p. 15.

42.Id.

43.Id.

44.Id. at 174-176.

45.Id. at 38.

46.Office of the Ombudsman v. Racho, 656 Phil. 148, 163 (2011).

47.Rollo, p. 178.

48. 760 Phil. 169 (2015).

49.Committee on Security and Safety, Court of Appeals v. Reynaldo V. Dianco, id. at 188-190.

50.Rollo, p. 40.

51.Pleyto v. Philippine National Police Criminal Investigation and Detection Group, supra note 34, at 906.

52.Wooden v. Civil Service Commission, 508 Phil. 500, 512 (2005); Office of the Deputy Ombudsman for Luzon v. Salig, G.R. No. 215877, 16 June 2021.

53.Domingo v. Civil Service Commission, G.R. No. 236050, 17 June 2020.

54.The Ombudsman v. Valeroso, 548 Phil. 688, 693-694 (2007).

55.Office of the Ombudsman v. Braña, G.R. No. 238903, 24 March 2021.

56. See Office of the Ombudsman v. Valencia, 664 Phil. 190, 206 (2011). See also Gupilan-Aguilar v. Office of the Ombudsman, 728 Phil. 210 (2014).

57. Section 6 reads:

Section 6. Appreciation of Mitigating and Aggravating Circumstances. —

Except for Serious Dishonesty which is punishable by dismissal from the service, the circumstances mentioned under Section 53, Rule 10, 2017 Rules on Administrative Cases in the Civil Service (2017 RACCS) may be appreciated as either mitigating or aggravating circumstances in the determination of the penalties to be imposed. In the appreciation thereof, the same must be invoked or pleaded by the respondent, otherwise, said circumstances will not be considered in the imposition of the proper penalty. The disciplining authority, however, in the interest of substantial justice, may take and consider such circumstances motu proprio.

58.Rollo, p. 16.

59.Bascos, Jr. v. Taganahan, 599 Phil. 123, 148 (2009), Office of the Ombudsman v. Racho, supra note 29, at 164-165.

60.Camsol v. Civil Service Commission, G.R. No. 238059, 08 June 2020.

61.Office of the Court Administrator v. Flores, 603 Phil. 84, 93 (2009); Camsol v. Civil Service Commission, G.R. No. 238059, 08 June 2020.

62. See Section 7 of Civil Service Commission Memorandum Circular No. 13, s. 2021, which provides:

Section 7. Manner of Imposition of the Penalty. —

When applicable, the imposition of the penalty shall be made in accordance with the manner provided under Section 54, Rule 10, 2017 RACCS, thus:

a. The minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present.

xxx xxx xxx

The following divisible penalties shall have their medium range of penalty, to wit:

a) Penalty of suspension ranging from one (1) month and one (1) day to six (6) months shall have three (3) months as its medium penalty; and x x x

63.Department of the Interior and Local Government v. Gatuz, 771 Phil. 153, 160 (2015).

64. See San Diego v. Fact-Finding Investigation Committee, OMB-MOLEO, G.R. No. 214081, 10 April 2019.

65.San Diego v. Fact-Finding Investigation Committee, OMB-MOLEO, supra; See Yarcia v. City of Baguio, 144 Phil. 351 (1970); See also Office of the Ombudsman v. Delos Reyes, Jr., 781 Phil. 297 (2016); and Villamor v. Lacson, 120 Phil. 1213 (1964).

66.Office of the Ombudsman v. Delos Reyes, Jr., supra.

67.Supra note 65.

68.Id.

69.Rollo, p. 8.

70. See San Diego v. Fact-Finding Investigation Committee, OMB-MOLEO, supra.