THIRD DIVISION
[G.R. No. 227473. March 12, 2018.]
FIELD INVESTIGATION OFFICE [OFFICE OF THE OMBUDSMAN], petitioner, vs. LUZVIMINDA A. CRUZ AND CONRADO B. PAMINTUAN, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedMarch 12, 2018, which reads as follows: HTcADC
"G.R. No. 227473 (Field Investigation Office [Office of the Ombudsman] v. Luzviminda A. Cruz and Conrado B. Pamintuan) — This is a petition for review on certiorari filed by petitioner Field Investigation Office (FIO) of the Office of the Ombudsman (Ombudsman) seeking to reverse and set aside the Decision 1 dated January 29, 2016, and Resolution 2 dated September 23, 2016, of the Court of Appeals (CA) in CA-G.R. SP No. 118712. The CA set aside the Decision 3 dated July 23, 2008 and Order 4 dated October 29, 2010, issued by the Ombudsman in Case No. OMB-C-A-07-0236-E, which found Luzviminda A. Cruz (Cruz) and Conrado B. Pamintuan 5(Pamintuan), collectively referred to as respondents, guilty of simple neglect of duty.
The Antecedents
Cruz was formerly a Supply Officer II, Requisitioning Office, City of Makati, until her retirement in 2009; 6 while Pamintuan was a General Services Department Representative 7 and eventually a Supply Officer II, City of Makati. 8
Sometime in 2000, the City of Makati sought to purchase 12,555 copies of workbooks, specifically, Araling Panlipunan WB1 and Araling Panlipunan WB II, from SD Publication, Inc., the exclusive distributor of the said workbooks. The total purchase price was P2,673,587.20. A purchase request was prepared and duly approved. The Committee on Canvass, which included herein respondents, signed the abstract of canvass recommending the purchase order or contract. As such, the award of purchase/contract and the purchase order were signed. 9
In September 2001, the Commission on Audit (COA) conducted an audit investigation of the contracts involving infrastructure projects and purchases of supplies, materials, and equipment amounting to more than P1 million made by the City of Makati. In the COA Report STFLGU Report No. 2001-01 10 dated April 19, 2002, it was found that the City of Makati purchased books without securing the best terms for the government, contrary to the provisions of the Department of Education, Culture and Sports (DECS) Order No. 35, series of 2000, which included the purchase order of the assailed workbook. 11
Thus, the COA filed a Complaint-Affidavit 12 and the FIO filed a separate Supplemental Complaint 13 before the Ombudsman against herein respondents and Elena R. Ruiz as School Division Superintendent, Dulce P. Cruz as City Accountant, Engr. Ernesto A. Aspillaga as General Services Officer, Jaime Delos Reyes as City Accountant Representative, Luz R. Yamane as City Treasurer, Virgilio M. Clarete as City Budget Officer, and Salvador D. Pangilinan as Department Head/Member of Sanggunian for gross neglect of duty and conduct prejudicial to the best interest of the service. The COA and FIO alleged that the failure of respondents to avail of or negotiate for a discount on the purchase price of the books resulted in an escalated purchase price. They argued that since the transaction was consummated without a discount, it resulted to a grossly disadvantageous contract, where the City of Makati could have saved P802,076.15. 14
The Ombudsman Ruling
In its decision dated July 23, 2008, the Ombudsman found respondents guilty of simple neglect of duty and imposed the penalty of suspension from service for three (3) months without pay. The case against Ruiz, Dulce Cruz, Aspillaga, Delos Reyes, Yamane, Clarete, and Pangilinan was dismissed. Dulce Cruz, Yamane, and Clarete retired by the time the case was filed; Delos Reyes resigned prior to the filing of the case; Aspillaga was elected as a member of the Sangguniang Panglungsod of Makati; Pangilinan was re-elected in May 2001; and Ruiz had no actual participation in the assailed transaction. For these various reasons, the complaint against them was dismissed.
The Ombudsman ruled that respondents' excuse that there was no law or rule requiring them to negotiate for a discount is "flimsy." It opined that it was disturbing that there was no attempt on the part of the respondents to ask or request for discounts considering the large volume of workbooks involved. Respondents were considered experts in the procurement process, with several years of experience in the acquisition of supplies. It was incomprehensible that they would not ask for a discount when ordinary prudence and common sense would have indicated otherwise. The Ombudsman found that there was no ordinary diligence exercised in this transaction as there was no legal obstacle preventing respondents from asking for discounts.
Respondents filed their motion for reconsideration but it was denied by the Ombudsman in its Order dated October 29, 2010. The Ombudsman reasoned that there was no cogent basis to reconsider the decision because it would be setting a "dangerous precedent" if it were to rule that there was no duty under the law that required asking for a discount. The Ombudsman highlighted that respondent should have tried to procure the best terms obtainable for the government under the circumstances. The Ombudsman, meanwhile imposed penalty of suspension for three (3) months without appropriate pay, in lieu of suspension and, due to Cruz's retirement, the latter was directed to pay a fine equivalent to her salary for three (3) months deducted from her retirement benefits.
The CA Ruling
In its decision dated January 29, 2016, the CA reversed and set aside the ruling of the Ombudsman. It held that the documents provided by the parties show that respondent followed the guidelines and documentation required for the procurement of the workbooks. Further, the CA opined that, DECS Order No. 35, series of 2000, provided only an option and not a mandatory order to negotiate for a discount. The CA noted that a comparison between the transactions made by the City of Pasig and the City of Makati is insufficient to show that there was simple neglect of duty on the part of respondents especially when the purchase made by the City of Pasig involved a totally different set of books. It also emphasized that the books purchased by the City of Makati were based on the recommended price of the National Printing Office. Finally, the CA declared that petitioner failed to cite any law, rule or jurisprudence obligating respondents to seek a discount in the purchase of books.
Petitioner filed a motion for reconsideration but it was denied by the CA. It found that finding of simple neglect of duty depends on the actions made by a public official in a particular situation. Thus, purchases should be considered individually, not as against other similar purchases. It underscored that while a public officer is to use prudence, caution, and attention in the discharge of their duties, there is no law or jurisprudence obligating respondents to seek a discount for the books.
Hence, this petition.
Issue
WHETHER THE COURT OF APPEALS' DECISION WAS IN ACCORDANCE WITH LAW15
The Ombudsman submits the following arguments: that DECS Order No. 35, series of 2000, applies in this transaction; that being government officers, respondents hold positions of public trust and must adhere to the norms of conduct for public officials in Republic Act (R.A.) No. 6713, or Code of Conduct and Ethical Standards for Public Officials and Employees, and they must then observe economical standards; that respondents are presumed to know COA Circular No. 85-55-A, which requires procuring officials to negotiate for the lowest possible price; that negotiating for a bulk sales discount is a prevailing industry practice; that, as members of the Committee on Canvass, respondents should have observed prudence, caution, and attention by requesting for discounts or a reduction of the price; that there was no plausible reason given for their failure to negotiate for a discount; and that it showed respondents' indifference considering that discounts are common concessions offered by book suppliers.
Arguments of Respondents
In their Comment 16 dated March 3, 2017, respondents contend that: the Ombudsman failed to cite any particular provision of law, rule, or regulation that it is mandatory to obtain or negotiate for a discount; that DECS Order No. 35, series of 2000, applies to textbooks and teachers' manuals and not workbooks, which were procured here; that even if DECS Order No. 35, series of 2000, was applicable, it only states that offices may negotiate for discounts from suppliers in large volumes of purchases; that the word "may" connotes permissiveness and is not mandatory; that COA Circular No. 85-55-A also does not require respondents to avail of a discount; that the comparison with the transactions of the City of Pasig and Province of Romblon pertain to different kinds of books; and that, under the circumstances, respondents were able to procure the workbooks under the best terms for the City of Makati because the workbooks purchased were at the same prices given by the National Printing Office.
The Court's Ruling
The Court finds the petition unmeritorious.
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." 17 A "duty" or "task assigned" has to be obligatory in nature. A "duty" is an obligatory task, conduct, service, or function enjoined by order or usage according to rank, occupation, or profession. 18 When the alleged violated rule only involves usage of the word "may," which connotes permissiveness, the same should not give rise to any administrative liability. The rule on statutory construction is that the word "may" operates to confer discretion. It indicates liberty, opportunity, permission or possibility. 19
A short survey of cases decided by the Court where the respondent therein was held guilty of simple neglect of duty shows a common thread. In Philippine Retirement Authority v. Rupa, 20 it considers the following as simple neglect of duty at that time: delay in the transmittal of court records, delay in responding to written queries, and delay of more than one (1) year and seven (7) months in furnishing a party with a copy of the court's decision. Thus, mere delay in the performance of one's function was deemed as simple neglect of duty.
In Daplas v. Department of Finance, et al., 21 failure to declare some properties in the Statement of Assets, Liabilities, and Net Worth without the intent to make a false statement, as required by R.A. No. 6713, was considered as within the ambit of simple neglect of duty.
In Ombudsman v. Tongson, et al., 22 the public officers failed to use reasonable diligence in the performance of their officially-designated duties as they failed to comply with the Implementing Rules and Regulations of Presidential Decree No. 1594. 23 The public officers involved were held guilty of simple neglect of duty and were mandated to comply with the said law.
In Deputy Ombudsman for the Military and Other Law Enforcement Offices v. Saligumba, 24 the public officer neglected to efficiently and effectively discharge his duties to inspect deliveries of procurement, contrary to the Philippine National Police Procurement Manual, series of 1997.
In Facura and Tuason v. Court of Appeals, et al., 25 the Human Resources Management Officer was found guilty of simple neglect of duty because in her listed duties under the Civil Service Commission Accreditation Program, she should have been aware of the reportorial requirements for appointments.
In Salumbides and Arana v. Ombudsman, et al., 26 the Court stated that the public officers fell short of the reasonable diligence because they failed to ascertain the legal requirements and fiscal soundness of the projects before approving the same, especially without competitive bidding. Thus, respondents in that case failed to disburse funds in compliance with the requirements of the law.
Finally, in Galero v. Court of Appeals, et al., 27 the immediate supervisor was penalized for simple neglect of duty when he failed to monitor his employees' attendance and their daily time record, which led to one employee dividing his time between two (2) employers and being paid twice.
From the foregoing cases, a rule or law must be violated by the public officers to be held accountable for simple neglect of duty. The provisions of law or rule were even specified, and the extent of the employees' carelessness or indifference clearly detailed. Further, damage, whether to the government or to the public, must be evident. Thus, the duty of the public officer involved should be definitively stated in a rule, regulation, or law.
In this case, the CA decision is in accordance with the trend of jurisprudence that declares a violation of simple neglect of duty only when there is a specific and undeniable duty to speak of. The "duty" to negotiate for a discount is neither required in R.A. No. 6713 nor in COA Circular No. 85-55-A. The CA correctly found that DECS Order No. 35, series of 2000, is inapplicable in the transaction, and that a comparison between the purchases made by the City of Pasig vis-à-vis the transaction of the City of Makati is insufficient to show losses to the government. Indeed, it is presumptive to say that there could have been the same amount of discounts given to the various municipalities, especially since the transactions involved different sets of books. Even assuming that DECS Order No. 35, series of 2000, was applicable, there is still no positive duty neglected, carelessly or indifferently carried out because the phrase used was "may negotiate for discounts," to wit:
3. Calling prices and discounts — The Ceiling prices indicated in Annex 1 are for government-funded direct purchases of the materials which must adhere to DECS technical specifications (Annex 2). The ceiling prices are inclusive of delivery costs to district offices, in the case of elementary schools, and delivery costs to high schools for purchases made by the DECS Central, regional and/or division offices. DECS offices may negotiate for discounts from suppliers particularly when large volumes of purchases are involved in order to secure the best terms of the government. 28 (emphasis supplied)
The mere allegation that a request for a discount is an industry practice or a common concession, which was not proven, cannot be a basis to exhibit simple neglect of duty. Finally, it should be highlighted that the workbooks herein were purchased within the parameters of procurement, especially as to the price. There was no showing that the purchases were above the set standards.
Verily, the administrative case against respondents should be dismissed as there was no clear, written, positive duty that they carelessly or indifferently performed. Their acts do not constitute simple neglect of duty. There was likewise no clear damage to the government or to the public shown here. At best, a speculative damage was alleged, which is far from any real injury displayed in other cases for simple neglect of duty.
WHEREFORE, the petition is DENIED. The January 29, 2016 Decision and the September 23, 2016 Resolution of the Court of Appeals in CA-G.R. SP No. 118712 are hereby AFFIRMEDin toto.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 33-43; penned by Associate Justice Myra V. Garcia-Fernandez with Associate Justice Rosmari D. Carandang and Associate Justice Mario V. Lopez, concurring.
2.Id. at 44-48.
3.Id. at 49-66.
4.Id. at 213-222.
5. In the caption of the case in the CA as well as in the instant petition, the middle initial of respondent Paminutan is "R." In the Decision and Order of the Office of the Ombudsman as well as in all pleadings filed under his name, the middle initial is "B."
6.Rollo, p. 224.
7.Id. at 49.
8.Id. at 224.
9.Id. at 51.
10.Id. at 67-79.
11.Id. at 73-74.
12.Id. at 54.
13.Id. at 202-212.
14.Id. at 55.
15.Rollo, p. 19.
16.Id. at 261-270.
17.Salumbides, Jr., et al. v. Office of the Ombudsman, et al., 633 Phil. 325, 339 (2010).
18. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993).
19. See Capati v. Ocampo, 199 Phil. 230, 234 (1982).
20. 415 Phil. 713 (2001).
21. G.R. No. 221153, April 17, 2017.
22. 531 Phil. 164 (2006).
23. Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts (1978).
24. G.R. No. 223768, February 22, 2017.
25. 658 Phil. 554 (2011).
26.Supra note 17.
27. 581 Phil. 9 (2008).
28.Rollo, p. 20.