FIRST DIVISION
[G.R. No. 253519. November 11, 2021.]
MARIVIC V. JOVER, petitioner, vs. FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedNovember 11, 2021which reads as follows:
"G.R. No. 253519 — Marivic V. Jover v. Field Investigation Office, Office of the Ombudsman
The petition is denied.
Petitioner Marivic V. Jover alleges that the evidence did not sufficiently establish her administrative culpability for grave misconduct, serious dishonesty, and conduct prejudicial to the best interest of the service. She, thus, urges the Court to re-evaluate the factual findings of the Office of the Ombudsman (Ombudsman) which, however, is clearly beyond the ambit of a petition under Rule 45. The Court is not a trier of facts and will not review the factual findings of the Ombudsman which are generally accorded great weight and respect, if not finality, by the courts because of its special knowledge and expertise over matters falling under its jurisdiction. 1 We also apply the principle of subsidiarity in administrative law, which holds that decisions should be made by the level of government which is "closest to the ground," unless that authority is unable to discharge the obligation effectively, which in no way is involved here.
When supported by substantial evidence, findings of fact of the Ombudsman are deemed conclusive. 2 Indeed, a finding of guilt in an administrative case would have to be sustained for as long as it is supported by substantial evidence that the petitioner has committed acts stated in the complaint or formal charge. 3
Substantial evidence is such relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine differently. 4 The requirement is satisfied where there is reasonable ground to believe that the respondent is guilty of the act or omission complained of, even if the evidence might not be overwhelming. 5
Here, the Court finds no cogent reason to overturn the conclusions of the Office of the Ombudsman, as affirmed by the Court of Appeals, finding petitioner guilty of the infractions charged. There is substantial evidence supporting petitioner's administrative liability for grave misconduct, and conduct prejudicial to the best interest of the service. The Court, however, for reasons to be discussed hereafter, deems petitioner liable for gross negligence instead of serious dishonesty. For investigations into the utilization of the respective Priority Development Assistance Fund (PDAF) allocations of Representative Douglas R.A. Cagas 6 (Rep. Cagas) and Representative Gregorio T. Ipong 7 (Rep. Ipong) reveal a scheme to divert PDAF-drawn funds and made the same accessible by designating an implementing agency such as Technology Resource Center (TRC), and non-government organization (NGO)-implementers personally picked by these legislators, such as Aaron Foundation Philippines, Inc. (AFPI), Countrywide Agri and Rural Economic and Development Foundation, Inc. (CARED), and Philippine Social Development Foundation, Inc. (PSDFI), to carry out purported livelihood projects when in truth, the same were just ghost projects. The scheme defrauded the government of millions and petitioner's signature on the disbursement vouchers, despite glaring irregularities, facilitated the release of these public funds.
The Court of Appeals held that the following violations support a finding of petitioner's administrative liability for grave misconduct, serious dishonesty, and conduct prejudicial to the best interest of the service:
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First, the conduit NGO-implementors in these cases namely AFPI, CARED and PSDFI were not selected via competitive bidding as required by R.A. No. 9184 mandating that all procurement shall be done through competitive bidding, unless covered by the alternative methods of procurement under Article XVI thereof.
Second, the release of the PDAF allocation directly to AFPI, CARED and PSDFI contravened National Budget Circular No. 479 providing that PDAF allocations should be directly released to the government agency identified in the project menu of the pertinent General Appropriations Act (GAA). The 2007 GAA in effect at the time material to the charges, however, did not authorize the direct release of funds to the herein conduit-NGO implementors.
Third, the release of the PDAF allocation sans liquidation documents violated the above-mentioned COA Circulars which laid down stringent measures to be observed, particularly by the NGOs, in the release of the PDAF allocations. Indeed, had the COA Circulars been strictly adhered to, PDAF allocations would not have been released especially in light of what was later on unraveled in the field investigation reports, i.e., that the intended beneficiaries did not actually receive the PDAF allocations and that the conduit-NGO implementors are practically inexistent.
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The Court sustains the concurrent finding of administrative liability against petitioner by the Ombudsman and the Court of Appeals, albeit on different grounds.
FIRST. The Court holds that the transactions involved are not required to go through the competitive bidding process. The Ombudsman, as affirmed by the Court of Appeals, subscribes to Commission on Audit (COA) Circular No. 2007-0019and Government Procurement Policy Board (GPPB) Resolution No. 12-200710 in holding that the transactions involved should have gone through public bidding. These issuances, however, were not yet in effect when the questioned transactions took place. COA Circular No. 2007-001 was approved on October 25, 2007 while GPPB Resolution No. 12-2007 was approved only on June 29, 2007. The livelihood projects here, however, covered the period January to May 2007.
For context, it is a constitutionally-declared policy to encourage participation of non-governmental agencies, community-based, or sectoral organizations in the promotion of the welfare of the nation. 11 In line with this constitutional provision, Section 34 of Republic Act No. 7160 (RA 7160), otherwise known as the Local Government Code, institutionalized the partnership of these organizations and the local government units (LGUs). In order to finance the developmental efforts of these non-government organizations (NGOs) or government organization (GOs), national government agencies (NGAs), LGUs and government-owned or controlled corporations (GOCCs) extended financial assistance to implement the projects of the NGOs/POs. To provide control and guidance in the granting, utilization, management, and recording of such funds, COA Circular Nos. 95-00312and 96-00313 dated February 15, 1995 and February 27, 1996, respectively, were issued. 14
In view, however, of the adoption of the New Government Accounting System (NGAS) in 2002 and the marked increase in the number of NGOs and POs seeking funds, the COA found it imperative to revise the existing guidelines on the matter under COA Circular Nos. 95-003 and 96-003. The revision will ensure conformity to the prescribed NGAS financial accounting procedures for related transactions, put in place the necessary controls in the release and utilization of funds, promote transparency and accountability, including monitoring of the implementation of projects funded out of the funds granted. 15 Hence, the COA issued COA Circular No. 2007-001.
Parenthetically, under Section 4.5 of COA Circular No. 2007-001, the government office shall accredit the NGO/PO partners through the Bids and Awards Committee (BAC), or a committee created for the purpose, which shall formulate the selection criteria. The Committee, upon proper evaluation, shall then award the project to the NGO/PO which meets the minimum qualification requirements and the specifications for the project, and which can satisfactorily undertake the project at terms most advantageous to the beneficiaries. The provision is new as it was conspicuously absent in COA Circular Nos. 95-003 and 96-003 where all that was required was for the government office to accredit the NGO/PO under certain requirements.
Accreditation was defined as the acceptance by the government office of the NGO/PO to implement the former's project after proper verification and validation of the required documents.
On the other hand, the Whereas clause of GPPB Resolution No. 12-2007 states that the Board resolved to approve the guidelines on NGO Participation in Public Procurement and to amend Section 53 of the Implementing Rules and Regulations-Part A (IRR-A) of Republic Act No. 9184 (RA 9184) 16 by including, as one of the instances under Negotiated Procurement, procedures in entering into an agreement with an NGO when an appropriation law or ordinance earmarks a specific amount or project for NGOs. Accordingly, Section 53 of the IRR-A of RA 9184 was amended to include a subsection (j) that reads:
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Section 53. Negotiated Procurement. —
Negotiated Procurement is a method of procurement of goods, infrastructure projects, and consulting services, whereby the procuring entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant only in the following cases:
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(j) When an appropriation law or ordinance earmarks an amount to be specifically contracted out to Non-Governmental Organizations (NGOs), the procuring entity may enter into a Memorandum of Agreement with an NGO, subject to guidelines to be issued by the GPPB. (Emphasis supplied)
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The Court of Appeals sustained the Ombudsman's finding that there was nothing in the General Appropriations Act (GAA) of 2007 which earmarked funds for the questioned livelihood projects involved in this case.
The foregoing guidelines under COA Circular No. 2007-001 and GPPB Resolution No. 12-2007, however, as stated, were not yet in effect when the questioned projects were approved. Hence, these issuances find no application in this case. Be that as it may, petitioner's guilt of the administrative charges must still be upheld, as will be discussed later.
SECOND. The Court disagrees with the Court of Appeals' finding that National Budget Circular (NBC) No. 479 was violated when funds were released to the conduit-NGOs despite the directive that PDAF allocations should be directly released to the government agency identified in the project menu of the pertinent GAA. For the subject funds were directly released to TRC through Special Allotment Release Orders (SAROs) and Notices of Cash Allocations, and not to AFPI, CARED, and PSDFI. The process was in line with the procedures set forth in NBC No. 476, as amended by NBC No. 479:
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3.0 Procedures
3.1 Requests for the release of funds chargeable against the PDAF shall be supported by the following:
3.1.1 Project profile per Annex "B" of this circular. The list of programs/projects to be submitted shall be in accordance with Sections 2.2, 2.3, 2.4 and 2.5 above; and
3.1.2 Endorsement from the implementing agency except those programs/projects to be undertaken by the LGUs.
3.2 Submission under Sections 3.1.1 and 3.1.2 above shall serve as basis of the Department of Budget and Management (DBM) for the release of the Special Allotment Release Order (SARO) and the corresponding Notice of Cash Allocation (NCA) to the implementing agency. (Emphasis supplied).
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Notably, the 2007 GAA lists TRC as an Implementing Agency for the PDAF specifically for small and medium enterprise/livelihood. Contrary to the Court of Appeals' finding, it is TRC which released the funds to the elected NGO implementers of Reps. Cagas and Ipong.
THIRD. As to the non-submission of liquidation documents, the Court holds that there is nothing in COA Circular No. 96-003 which requires that liquidation documents be submitted before the release of the full amount. COA Circular No. 96-003 states the following requirements for the release of the fund assistance:
3.8 The fund assistance shall be released as follows:
3.8.1 If the project is for implementation within a period of three (3) months, the assistance shall be released as follows:
3.8.1.1 For projects of P300,000 or less, assistance may be released in full.
3.8.1.2 For projects of more than P300,000, release may be made in three tranches:
• 15% upon approval and signing of the MOA;
• 35% after 50% project completion;
• 50% upon completion of the project, subject to the favorable evaluation/inspection by the GO of the results of the previous release(s).
3.8.2 If the project is to be implemented for more than 3 months, the first release shall cover two (2) months operation but not to exceed 30% of the total assistance, subject to the release of the remaining balance upon submission of accomplishment reports evidenced by pictures of the accomplishments and/or report of inspection by the GO and certifications of receipt by beneficiaries/payrolls/invoices, etc.
Petitioner, therefore, cannot be held liable for the lack of liquidation documents as these were not required by COA Circular No. 96-003.
Nonetheless, a reading of the above COA Circular No. 96-003 shows that petitioner failed to comply with the requirement that fund releases for amounts more than P300,000.00 be made in tranches. The issuance allows the release of the fund assistance in full only if the amount is less than P300,000.00. If the amount exceeds P300,000.00, the Circular directs that payment be made in three tranches, with only fifteen percent (15%) being released upon approval and signing of the Memorandum of Agreement (MOA), thirty-five percent (35%) after fifty percent (50%) of the project completion, and the fifty percent (50%) upon favorable evaluation/inspection by the Government Organization, such as TRC.
Notably, COA Circular No. 96-003 was addressed to Chief Accountants such as petitioner. As Chief Accountant, one of petitioner's responsibilities was to ensure that all accounting transactions are in compliance/conformity with COA and TRC policies, rules, and regulations.
Equally important is COA Circular No. 92-389, 17 also directed to Chief Accountants like petitioner, which states that in signing disbursement vouchers (DVs), the submission of complete documents does not preclude reasonable questions on the funding, legality, regularity, necessity, or economy of the expenditure, viz.:
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3. Document Checklist at the Back of the Voucher
The checklist at the back of the voucher enumerates the mandatory minimum supporting documents for the selected transactions.
It should be clear, however, that the submission of the supporting documents enumerated under each type of transaction does not preclude reasonable questions on the funding, legality, regularity, necessity or economy of the expenditure or transaction. Such questions may be raised by any of the signatories to the voucher.
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In all the transactions involved in this case, petitioner repeatedly failed to raise any questions as to why funds which were all above P300,000.00 were released in full to the NGOs contrary to express directive of COA Circular No. 96-003. Had petitioner raised such requirement, only fifteen percent (15%) of the funds would have been released to the NGOs at the time of the signing and approval of the MOA. As a signatory to the DV, petitioner should have raised this issue and questioned why the whole amount was being disbursed. Her failure to do so, and her signing the DVs despite the clear language of COA Circular No. 96-003, shows repeated lack of compliance with an established rule for which she should be liable for serious misconduct.
Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. To warrant dismissal from the service, the misconduct must be grave, serious, important, weighty, momentous, and not trifling. The misconduct must imply wrongful intention and not a mere error of judgment and must also have a direct relation to and be connected with the performance of the public officer's official duties amounting either to maladministration or willful, intentional neglect, or failure to discharge the duties of the office. In order to differentiate gross misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule, must be manifest in the former. 18
Petitioner's misconduct is considered grave due to her flagrant disregard of established rules under the COA issuances. It bears stress that COA Circular Nos. 96-003 and 92-389 were addressed to Chief Accountants and the requirement for the release of funds in tranches was clear. As it was, petitioner did not only allow that the funds be released in full, she allowed such release without raising any question on the funding, legality, regularity, necessity, or economy of the expenditure or transaction.
The Court likewise finds that petitioner's action, or inaction, constitutes gross negligence instead of dishonesty. As defined in Office of the Ombudsman v. De Leon, 19 gross negligence "refers to negligence characterized by the want of even slight care, or by acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to the consequences, insofar as other persons may be affected. It is the omission of that care that even inattentive and thoughtless men never fail to give to their own property." The Court further ruled that "[i]t denotes a flagrant and culpable refusal or unwillingness of a person to perform a duty. In cases involving public officials, gross negligence occurs when a breach of duty is flagrant and palpable."
Petitioner's failure to question the release of the funds in full in contravention of COA Circular No. 96-003, and considered together with her duties as TRC Chief Accountant as supplemented by COA Circular 92-389, shows a conscious indifference to the consequences of her actions and its effect to public funds. This is tantamount to gross negligence.
Petitioner's action also constitutes conduct prejudicial to the best interest of the service. Under the Civil Service law and rules, there is no concrete description of what specific acts constitute the grave offense of conduct prejudicial to the best interest of the service. Jurisprudence, however, instructs that for an act to constitute such an administrative offense, the act need not be related to or connected with the public officer's official functions. As long as the questioned conduct tarnishes the image and integrity of his or her public office, the corresponding penalty may be meted on the erring public officer or employee. 20
There is no question that the anomalous disbursement and allocation of the PDAF funds had tarnished the reputation of the TRC and its members. The actions of petitioner and the other accountable officers of the agency gave the wrong impression that the TRC was a haven for fraud and that officers blatantly disregarded their duty to safeguard the property of the government.
As a public officer, it is petitioner's duty to question doubtful dealings and raise a red flag for manifest transgression of established policies. This descends from the oft-repeated principle that public office is public trust. 21 A public officer is entrusted with power by the people and he or she must always be accountable to the people, ensuring them that in all dealings or transactions, a public officer has the people's best interest in mind. By turning a blind eye to the irregularities in the allocation and disbursement of public funds, petitioner condoned a practice that deprived many of her countrymen of funds which could have been used for projects to help improve their livelihood. The problem of impoverished people is not simply the lack of opportunity. It is exacerbated no end by the indifference and lack of care for their welfare by those who are supposed to serve them.
By asserting that she merely signed the DVs because the officers before her had also signed off on the documents, petitioner seems to take lightly the sensitive position that she holds and the important task of approving proposed disbursements involving public funds. By this, petitioner all the more demonstrated her propensity to disregard the rules, thus, fortifying her liability for grave misconduct and gross negligence. 22
For the same reasons given above, petitioner cannot invoke the presumption of regularity in the performance of official duties. Where the infirmities in the performance of official or public duties are glaring, as here, the presumption does not apply and there is simply nothing to rebut or refute by clear and convincing evidence.
In any event, granting that petitioner was not privy to the nefarious scheme to siphon public funds, her indifference, nonetheless, contributed to the end result of defrauding the government for which she must be held administratively liable. In Jaca v. People, 23 the accountable government officers were all found guilty of malversation although the officers' involvement in the controversy were in varying degrees. The Court, thus, held:
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For emphasis, the petitioners are all heads of their respective offices that perform interdependent functions in the processing of cash advances. The petitioners' attitude of buck-passing in the face of the irregularities in the voucher (and the absence of supporting documents), as established by the prosecution, and their indifference to their individual and collective duties to ensure that laws and regulations are observed in the disbursement of the funds of the local government of Cebu can only lead to a finding of conspiracy of silence and inaction, contemplated in Sistoza. The Sandiganbayan correctly observed that —
Finally, it bears stressing that the separate acts or omissions of all the accused in the present case contributed in the end result of defrauding the government. Without anyone of these acts or omissions, the end result would not have been achieved. Suffice it to say that since each of the accused contributed to attain the end goal, it can be concluded that their acts, taken collectively, satisfactorily prove the existence of conspiracy among them.
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In sum, we stress the need to hold accountable public officers because serious offenses, such as grave misconduct and serious dishonesty, have always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee, but the improvement of public service and the preservation of the public's faith and confidence in the government. 24
WHEREFORE, the petition is DENIED. The Decision dated November 25, 2019 and Resolution dated August 27, 2020 rendered by the Court of Appeals in CA-G.R. SP No. 149344 and CA-G.R. SP No. 151482 are AFFIRMED WITH MODIFICATION, finding MARIVIC V. JOVER GUILTY of grave misconduct, gross negligence, and conduct prejudicial to the best interest of the service.
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. See Diaz v. Office of the Ombudsman, (citation omitted), 834 Phil. 735, 743 (2018).
2.Id.
3. See Fajardo v. Corral, 813 Phil. 149, 156 (2017).
4. See Miro v. Mendoza, 721 Phil. 772, 788 (2013).
5.Supra note 1.
6. of the First District of Davao Del Sur.
7. of the Second District of North Cotabato.
8.Rollo, p. 45.
9. Subject: Revised guidelines in the granting, utilization, accounting and auditing of the funds released to Non-Governmental Organizations/People's Organizations (NGOs/POs).
10. Amendment of Section 53 of the Implementing Rules and Regulations Part A of Republic Act No. 9184 and Prescribing Guidelines on Participation of Non-Governmental Organizations in Public Procurement.
11. See Article II, Section 23 of the 1987 Philippine Constitution.
12. Subject: Accounting and auditing guidelines on the release of fund assistance to Non-Governmental Organizations/People's Organizations.
13. Subject: Restatement with amendments of COA Circular No. 95-003 dated February 15, 1995 Prescribing Accounting and Auditing Guidelines on the release of Funds Assistance to Non-Governmental Organizations/People's Organizations (NGOs/POs).
14. Please see Rationale and Objectives, COA Circular No. 2007-001.
15.Supra.
16. Government Procurement Reform Act, January 10, 2003.
17. Subject: Restating with Modifications COA Circular No. 81-155, dated February 23, 1981, and prescribing the use of the Disbursement Voucher, General Form No. 5 (A).
18. See GSIS v. Manalo, (citation omitted), 795 Phil. 832, 857 (2016).
19. See 705 Phil. 26, 37 (2013).
20. See Villanueva v. F/SInsp. Reodique, G.R. No. 221647; Office of the Ombudsman v. F/SInsp. Reodique, G.R. No. 222003, November 27, 2018 (citation omitted).
21. Section 1, Article XI, The 1987 Philippine Constitution.
22. See Sabio v. FIO, Office of the Ombudsman, 825 Phil. 848, 867 (2018).
23. See 702 Phil. 210, 262 (2013).
24. See Andaya v. FIO, Office of the Ombudsman, G.R. No. 237837, June 10, 2019 citing Office of the Ombudsman-Mindanao v. Martel, 806 Phil. 649, 666 (2017).