Mirasol v. Gonzales

THIRD DIVISION

[A.C. No. 11757. September 6, 2017.]

JOSE MARIA M. MIRASOL, complainant,vs. ATTY. WINSTON T. GONZALES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedSeptember 6, 2017, which reads as follows:

"A.C. No. 11757 (Jose Maria M. Mirasol vs. Atty. Winston T. Gonzales). — Complainant Jose Maria M. Mirasol filed an action for disbarment against respondent Atty. Winston T. Gonzales before the Commission on Bar Discipline, Integrated Bar of the Philippines.

After investigation, Investigating Commissioner Ricardo M. Espina submitted the following Report and Recommendation.

BRIEF STATEMENT OF THE FACTS:

Respondent was the former Provincial Legal Officer ("PLO") of the Provincial Government of Palawan ("PGP") from 01 July 2010 up to 30 June 2013. At around the same period, he also served as the Head of the Provincial Disaster Risk Reduction Management Office ("PDRRMO") and Chairman of the Bids and Awards Committee ("BAC") of the PGP.

Complainant is a resident and a registered voter of Narra, Palawan, and filed the present Complaint for disbarment as a citizen, taxpayer and registered voter for the alleged misdoings of Respondent. He claims that he is an interested party/real-party-in-interest and has special and extra-ordinary interest in the subject matter of this case.

Complainant mentioned of (sic) several complaints and (sic) filed with the Office of the Ombudsman and Office of the Prosecutor of Puerto Princesa against Respondent where herein complainant was also the complainant, among other complainants, to wit:

1. Criminal and Administrative Complaint entitled "Jose Ma. Mirasol vs. Abraham Kahlil B. Mitra, et al." filed with the Office of the Ombudsman docketed as OMB Case No. C-A-13-0128, referred to by Complainant as the "Calamity Fund/Dengue Case";

2. Criminal and Administrative Complaint entitled "Jose Ma. Mirasol vs. Abraham Kahlil B. Mitra, et al." also filed with the Office of the Ombudsman docketed as OMB Cases Nos. L-A-13-0473 and L-C-13-0421 referred to by Complainant as the "Solar Home System Case";

3. Criminal case for Estafa through Falsification of Public Documents filed by Atty. Clarito D. Demaala with the Office of the City Prosecutor of Puerto Princesa, docketed as IV-17-INV-13K-0802 (hereinafter referred to as the "Estafa Case"); and

4. Criminal cases for Malversation of Public Funds filed by Atty. Clarito D. Demaala with the Office of the City Prosecutor of Puerto Princesa (hereinafter referred to as the "Malversation Cases"). IAETDc

As alleged by the Complainant, Respondent "failed to perform his duties and obligations to the PGP as a government official, the PLO of Palawan, and as a lawyer[,]" attributing the same to Respondent's participation in irregular transactions involving public funds of the PGP (i.e., pertaining to the Calamity Fund/Dengue Case, the Solar Home System Case, alleged Narra Hospital Ghost Project and procurement of the Solar Panel Flood Early Warning System).

Complainant went on by saying that because of Respondent's "failure to uphold the law and provide sound legal assistance and support to the PGP in carrying out the (above-stated) projects or services[,]" as well as Respondent's "conduct unbecoming of a lawyer, and of gross misconduct as member of the Bar/legal profession for committing the said acts[,]" "professional indiscretion, violation of oath of office and his duty as attorney or counselor-at-law[,]" and "failure to live up to the standards embodied in the Code of Professional Responsibility and Canons of Professional Ethics" (Complaint dated 19 November 2013, No. 14, pars. 1, 2, 3 and 4), Respondent should be sanctioned and disbarred.

In his Answer dated 05 May 2014, Respondent answered all the allegations hurled at him by the Complainant, as follows:

(1) Regarding the Calamity Fund/Dengue Case, Respondent maintained that all the bidding requirements under the law were followed; that being the head of the PDDRMO and Chairman of the BAC at the same time did not violate Section 11 of R.A. 9184; that the procurement of the items for dengue control was made pursuant to a PDDRM Plan duly adopted and approved by the Sangguniang Panlalawigan of Palawan; that non-existence of a disaster does not preclude the use of the Local Disaster Risk Reduction and Management Fund (LDRRMF) as seventy percent (70%) of it is allocated for disaster risk reduction management activities; and that the purchase of the items for said project was not accompanied with any irregularity.

(2) Regarding the Solar Home System Case, Respondent posited that as far as he was concerned, he was not aware of any violations of the procurement procedure (posting and publication requirements); that the procurement was not disadvantageous to the government as there was no finding from the Commission on Audit that the items procured were overpriced; that the use of the funds in relation to said project was duly released and authorized by the Department of Budget and Management ("DBM") and Sangguniang Panlalawigan; and the use of the trust fund to procure additional sets of the Home Solar System is allowed to ensure the sustainability of the project.

(3) Regarding the Estafa Case, Respondent countered that the improvement of Narra Hospital Sanitary Facilities and Septic Tank in the Municipality of Narra, Palawan was not a "ghost project" as there was actual delivery of the construction supplies albeit not to the Narra Municipality Hospital itself but to the Provincial Engineering Office who acknowledged receipt of the construction supplies. As regards the allegation that the supplies in said project had an expired accreditation, Respondent was quick to point out that the expired accreditation (Exhibit "H") did not belong to the series of documents covering the procurement, thus making it appear that there was a violation of the procurement process when in fact there was none.

(4) Regarding the Malversation Cases, Respondent posits that he cannot be held liable for Malversation of Public Funds considering that there was no allegation that the public funds were converted for their personal use. Respondent pointed out that it is undisputed that the funds were utilized for the purchase and delivery of the Flood Early Warning Systems that was utilized by the PGP pursuant to its Disaster Risk Reduction Management Plan adopted by the PDRRM Council and approved by the Sangguniang Panlalawigan.

ISSUE

I. WHETHER OR NOT SUFFICIENT GROUNDS EXIST (I.E., RESPONDENT'S ALLEGED VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY AS WELL AS VARIOUS LAWS PERTAINING TO CONDUCT OF PUBLIC OFFICERS) WARRANTING THE DISBARMENT OR IMPOSITION OF SANCTIONS AGAINST RESPONDENT.

FINDINGS

After a thorough examination of the evidence presented by both parties, we find for the Respondent.

Considering the serious consequences of the disbarment or suspension of a member of the Bar, the Supreme Court has consistently held that clearly preponderant evidence is necessary to justify the imposition of such administrative penalty on a member of the Bar. In the present case, Complainant was unable to adduce enough evidence to prove that Respondent was guilty of violating the Code of Professional Responsibility as well as other Philippine laws in his dealings as a public officer. DcHSEa

A perusal of the Complaint would reveal that aside from the bare allegations presented by the Complaint, no other evidence was adduced to prove that Respondent was guilty of wrongful dealings as the PLO, Head of the PDRRMO and Chairman of BAC of the PGP. Complainant attached in the present disbarment complaint several Complaint-Affidavits filed before the Office of the Ombudsman and Office of the City Prosecutor of Puerto Princesa against Respondent along with other government officials of the PGP. But this, in itself, is not sufficient to prove that Respondent is guilty of the crimes and felonies imputed therein. Section 3(a), Rule 131 of the Rules of Court provides that a person is presumed innocent of a crime or wrongdoing. The Supreme Court has consistently held that an attorney enjoys the legal presumption of innocence of the charges against him until the contrary is proven, and that as an officer of the court, he is presumed to have performed his duties in accordance with his oath.

As stated above, preponderance of evidence is necessary to impose administrative sanctions on members of the Bar. Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. It means evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. When the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates, the decision should be against the party with the burden of proof, according to the equipoise doctrine.

In the case at bar, not only did Complainant fail in presenting evidence that warrants the disbarment or imposition of sanctions against Respondent, Respondent was likewise able to explain the allegations that were hurled at him, not to mention that the criminal complaints for (1) Falsification of Public Documents and Estafa relating to the improvement of Narra Hospital in Brgy. Malagtao, Narra, Palawan and (2) Malversation of Public Funds were both dismissed by the Office of the Regional Prosecutor (Region IV).

We agree with the findings of the Office of the Regional Prosecutor in its Joint Resolution dated 28 July 2014 that the improvement of the Narra Hospital cannot be considered as a "ghost project" as there was delivery of the construction materials to the Provincial Engineering Office of Palawan although the actual implementation of the project was forestalled by the forthcoming elections at that time. Also, the Office of the Regional Prosecutor noticed that the alleged expired accreditation of the winning bidder for the delivery of the construction materials was merely concocted.

As regards the cases for Malversation, the Office of the Regional Prosecutor issued another Joint Resolution also dated 28 July 2014 holding that there is absence of probable cause to hold public and private respondents, including herein Respondent, liable for malversation of public funds. In said Resolution, the Office of the Regional Prosecutor held that the fourth element (for malversation of public funds), that is "(h)e has appropriated, taken or misappropriated or has consented thereto, or through abandonment or negligence, permitted the taking by another person such funds or property" was wanting. They went on to say that "There is no question that the flood early warning system, anti-dengue drugs and medicines were actually delivered. This is inferred from the complaint as it has not questioned their actual delivery. There is no question that these projects redounded to the benefit of the constituents of the Province of Palawan."

Respondent enjoys the legal presumption that he committed no crime or wrongdoing. Complainant had the burden of proof to prove his allegations of misconducts against Respondent. Unfortunately, Complainant was not able to discharge this burden proving that Respondent is guilty of misdoings warranting his disbarment or suspension. 1

Based on the foregoing, Commissioner Espina recommended that the case be dismissed for lack of merit.

Acting on said recommendation, the IBP Board of Governors issued Resolution No. XXII-2016-449 upholding the dismissal of the complaint.

WHEREFORE, the complaint against Atty. Winston T. Gonzales is hereby DISMISSED for lack of merit.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

 

 

Footnotes

1.Rollo, pp. 288-293.