EN BANC
[G.R. No. 203688. August 6, 2013.]
HERMENEGILDO C. CRUZ, petitioner, vs. OMBUDSMAN CONCHITA C. MORALES AND DELIA D. ALBERT, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution dated AUGUST 6, 2013, which reads as follows:
"G.R. No. 203688 — (Hermenegildo C. Cruz v. Ombudsman Conchita C. Morales and Delia D. Albert). — On June 25, 2010, petitioner Hermenegildo C. Cruz (Cruz) filed an administrative complaint against respondent Delia D. Albert (Albert) for conduct prejudicial to the best interest of the service before the Office of the Ombudsman (OMB). According to Cruz,
a) Albert was not reappointed to the position of Career Chief of Mission;
b) Albert simultaneously held the position of Chief of Mission and Secretary of the DFA from December 2003 to August 2004; and
c) Having automatically lost her position as Chief of Mission-Class I when she assumed the position as Secretary of the DFA, Albert had no valid appointment to an item in the budget from 2005 when she became an Ambassador to Germany. 1
Albert was a career Foreign Service Officer (FSO) and held the rank of Chief of Mission I (CM-I) at the Department of Foreign Affairs (DFA) since April 1, 1999. She was appointed as Undersecretary for International Economic Relations by former President Gloria Macapagal-Arroyo (PGMA) on July 23, 2002. Later on December 22, 2003, Albert was appointed as Ad Interim DFA Secretary and was confirmed by the Commission on Appointments (CA) on January 28, 2004. ECDaAc
On August 23, 2004, Arroyo appointed Alberto Romulo as the new Foreign Affairs Secretary and decreed that Albert retain her rank as CM-I with Item No. OSEC-DFABCMIC-8-1998. Albert was also designated as Presidential Adviser for Multilateral Cooperation and Development by PGMA and was confirmed by the CA on January 21, 2005.
With dissent brewing, Albert sought the opinion of the Chief Presidential Legal Counsel (CPLC). The CPLC was of the view that Albert's appointment as Undersecretary and later as Ad Interim Secretary of the DFA did not cause her to lose her FSO status. According to the CPLC, Albert's appointments were not one of those reasons for Separation of Service under Republic Act (R.A.) No. 7157 or the Foreign Service Act of 1991. The CPLC, relying on Cuevas v. Bacal, 2also stated that the status and salary of an FSO were based on his rank and not on his position.
On January 21, 2005, Albert was nominated as Ambassador Extraordinary and Plenipotentiary to the Republic of Germany. The CA confirmed her appointment on March 16, 2005.
On September 30, 2010, Albert retired after 43 years of service.
Earlier, a few months before Albert's retirement, Cruz filed the administrative complaint against her.
On January 5, 2012, the OMB dismissed the administrative complaint. It found no acts attributable to Albert that could be considered as conduct prejudicial to the best interest of the service. The OMB also agreed with Albert that her subsequent designation as Presidential Adviser for Multilateral Cooperation and Development on August 23, 2004 was merely an imposition of additional duties relative to her responsibilities as a career FSO or CM-I. Lastly, given Albert's appointment as ambassador to Germany in 2005 by PGMA, which was confirmed by the CA, while she was being recognized as CM-I, the OMB found no basis in the charge of simultaneous holding of positions. cTSDAH
Cruz requested for a reconsideration but was denied by the OMB for being filed beyond the 10-day reglementary period. 3 Even with this aside, Cruz failed to submit newly discovered evidence to warrant a reversal. The OMB reiterated that Albert did not simultaneously occupy or hold the positions of Chief of Mission I and Ad Interim Secretary of Foreign Affairs.
From this, Cruz went up to this Court via this petition for certiorari.
The Court resolves to AFFIRM the findings of the OMB that Albert never simultaneously held two (2) positions in government at one given time. Albert's term as Ad Interim Secretary of the DFA was from December 22, 2003 to August 22, 2004. During that time, while she retained the rank of CM-I, she did not receive any compensation or emoluments as CM-I, and only received that which corresponded to her appointment as Ad Interim Secretary, the only position she held at that precise moment.
The Court has distinguished rank from position:
. . . a CESO may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. . . . 4
Thus, in the Foreign Service Law, 5 rank has been used differently from position and CM-I has been referred to as a rank and not a position.
SECTION 9. Designations of Foreign Service Officers in the Home Office. — . . . .
A foreign service officer below the rank of the chief of mission may be designated as principal assistant in any office.
Any assignment in the home office requiring a rank higher than the actual rank of the officer assigned shall be in an acting capacity. SDTcAH
xxx xxx xxx
SECTION 31. Foreign Service Officers. — There shall be a career service composed of foreign service officers. . . . .
(4) In the home office, assignment to a position requiring a rank higher than the actual rank of the Foreign Service Officer shall be in an acting capacity.
By merely accepting the appointment of Undersecretary and later, as Ad Interim Secretary of the DFA, Albert did not commit any acts constituting 'Conduct Prejudicial to the Best Interest of the Service,' as defined in our jurisprudence.
'The Court has considered the following acts or omissions, inter alia, as Conduct Prejudicial to the Best Interest of the Service: misappropriation of public funds, abandonment of office, failure to report back to work without prior notice, failure to safe keep public records and property, making false entries in public documents and falsification of court orders.' 6
In any event, the OMB decision, being an administrative case, is reviewable though a petition for review under Rule 43 before the Court of Appeals, and not through a petition for certiorari under Rule 65. 7 This petition cannot be a substitute for a lost appeal and must be dismissed pursuant to A.M. No. 99-2-02-SC. 8
WHEREFORE, the petition is DISMISSED." (adv57) TIEHSA
Very truly yours,
(SGD.) ENRIQUETA E. VIDALClerk of Court
Footnotes
1.Rollo, p. 312.
2.Cuevas v. Bacal, 400 Phil. 1115, 1139. (2000).
3.Section 8, Rule III, Rules of Procedure of the Office of the Ombudsman; cited in rollo, p. 314.
4.Ignacio v. CSC, 502 Phil. 475, 481 (2005).
5.RA No. 7157.
6.Philippine Retirement Authority v. Rupa, 415 Phil. 713, 720-721 (2001).
7.Gonzales v. Rosas, 467 Phil. 985, 994 (2004).
8.This was an offshoot of the early case of Fabian v. Ombudsman, 356 Phil. 787 (1998).