Office of the Ombudsman v. Asis

FIRST DIVISION

[G.R. No. 237503. June 20, 2018.]

OFFICE OF THE OMBUDSMAN, petitioner,vs. ROLANDO M. ASIS, BERNA C. COCA, DANILO M. PEROY AND FERNANDO S. TUARES, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated June 20, 2018which reads as follows: AaCTcI

"G.R. No. 237503 — Office of the Ombudsman v. Rolando M. Asis, Berna C. Coca, Danilo M. Peroy and Fernando S. Tuares

This Court resolves to GRANT the Motion for Extension of Time to File Petition for Review on Certiorari filed by petitioner Office of the Ombudsman (Ombudsman) seeking an additional period of thirty (30) days from the expiration of the reglementary period on February 23, 2018 within which to file said Petition for Review on Certiorari.

This Court has carefully reviewed the allegations, issues, and arguments adduced in the instant Petition for Review on Certiorari and accordingly resolves to DENY the same for: (1) lack of payment of P1,000.00 for Sheriff's Trust Fund per A.M. 17-12-09-SC; and (2) failure to show that the Court of Appeals (CA) committed any reversible error in its July 18, 2017 Decision and January 19, 2018 Resolution in CA G.R. SP No. 147920.

The factual findings and conclusions of the CA on the liability of respondents Department of Public Works and Highways (DPWH) Regional Director Rolando M. Asis, Bids and Awards Committee Chairman (BAC) Berna C. Coca, and BAC Members Danilo M. Peroy and Fernando S. Tuares are not controverted by the Ombudsman. They were liable for awarding to IBC International Builder's Corporation (IBC) the contract for Asphalt Overlay Project without competitive public bidding. Competitive public bidding is required for the validity of every government procurement. 1 Stringent compliance with this legal requisite is consistent with the call for transparency in government transactions and accountability of public officers. Thus, respondents' reliance on the Dinagyang Festival parade to immediately implement the road repair project must be brushed aside. This annual celebration is not an emergency case or extraordinary circumstance that would justify their failure to conduct a competitive public bidding and resort to a negotiated procurement. Moreover, said road project was approved on January 8, 2008, which was on the same month of the celebration of the Dinagyang Festival. It had an estimated 75 calendar days of completion from January 8, 2008. Thus, time was no longer of the essence in completing the repairs in the road. SDAaTC

Respondents were also liable for approving the Asphalt Overlay Project on January 8, 2008 without a Certificate of Availability of Funds. 2 The absence of the certificate only shows that there was no appropriation allotted to cover the expenditure. Respondents were aware that there was no appropriation for said road project since it was only on December 24, 2008 that the Sub-Allotment Release Order (SARO) was approved. The SARO was not even sufficient to cover the entire cost of the Asphalt Overlay Project amounting to P54,308,803.45. Clearly, there was no corresponding appropriation for said project, in violation of the law. 3

However, the Ombudsman contends that the CA's characterization of the offense from grave misconduct to simple misconduct was improper.

This Court finds merit in Ombudsman's contention. There is grave misconduct where the requisites of corruption, clear intent to violate the law or flagrant disregard of established rule are present. "Corruption, as an element of grave misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others." 4 In this case, respondents' act of giving IBC unwarranted benefits, advantage and preference by awarding it the Asphalt Overlay Project of the Iloilo-Jaro Diversion Road in blatant disregard of the requirements provided by Republic Act No. (RA) 9184, the Government Procurement Act, and Presidential Decree No. (PD) 1445, Government Auditing Code of the Philippines, constitute grave misconduct. The CA, therefore, erred in ruling that respondents are liable only for simple misconduct.

In the imposition of the proper penalty for grave misconduct in this case, there are mitigating circumstances that when considered and properly appreciated will remove respondents "from the severe consequences of the penalty of dismissal" 5 resulting from their grave misconduct. The disciplining authority has the discretion to consider mitigating circumstances which include, among others, the fact that the infraction complained of is his/her first offense 6 and length of service. 7 In this case, respondents are first time offenders. Respondents Rolando M. Asis, Berna C. Coca and Danilo M. Peroy have also been in the government service for 38 years, 37 years and 37 years, respectively. Respondent Fernando S. Tuares has been in the government service for 39 years at the time of his retirement. Following prevailing jurisprudence, this Court imposes the penalty of one (1) year suspension without pay for each respondent for the offense of grave misconduct. 8 Due to the retirement from the service of Fernando S. Tuares, the penalty of suspension imposed on him shall be converted to fine equivalent to six (6) months of his salary. 9 acEHCD

ACCORDINGLY, this Court resolves to AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 147920 with MODIFICATION in that respondents Rolando M. Asis, Berna C. Coca, and Danilo M. Peroy are found GUILTY of GRAVEMISCONDUCT and are meted the penalty of one (1) year suspension without pay, while respondent Fernando S. Tuares is ordered to pay a penalty of fine equivalent to his six (6) months salary.

SO ORDERED."(Leonardo-De Castro, J., designated as Acting Chairperson of the First Division per Special Order No. 2559 dated May 11, 2018; Gesmundo, J., designated as Acting Member per Special Order No. 2560 dated May 11, 2018).

Very truly yours,

(SGD.) LIBRADA C. BUENAActing Division Clerk of Court

 

Footnotes

1. See Section 10 of Republic Act No. 9184.

2. As required in Section 86 of Presidential Decree 1445 and Sections 46, 47, and 48, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987.

3. As required in Section 85 of Presidential Decree 1445 and Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book V of Administrative Code of 1987.

4.Miro v. Vda. De Erederos, 721 Phil. 772, 797 (2013).

5.Committee on Security and Safety, CA v. Dianco, 777 Phil. 17, 26 (2016).

6.Judge Arabani, Jr. v. Arabani, A.M. No. SCC-10-14-P (Formerly OCA IPI No. 09-31-SCC-P), February 21, 2017.

7.Committee on Security and Safety, CA v. Dianco, 777 Phil. 17, 26 (2016).

8.Id. at 27.

9. Section 51, Rule 10 of the Revised Rules on Administrative Cases in the Civil Service.