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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 93 - 2004
ADMINISTRATIVE ORDER NO. 93 -
IMPOSING THE ACCESSORY PENALTIES OF CANCELLATION OF ELIGIBILITY,
FORFEITURE OF RETIREMENT BENEFITS AND DISQUALIFICATION FOR REEMPLOYMENT
IN THE GOVERNMENT SERVICE ON RICARDO B. MACALA, FORMER DIRECTOR OF THE
BUREAU OF CORRECTIONS
This refers to the administrative complaint
for Grave Misconduct and Nepotism filed by Department Justice against
Ricardo B. Macala, former Director of the Bureau of Corrections.
Records show that on April 2, 2003, the Presidential Anti-Graft
Commission (PAGC) received from Department of Justice (DOJ) Secretary
Simeon Datumanong a letter-request to investigate respondent Macala on
the basis of the fact-finding report submitted by Senior State
Prosecutor Teresita Reyes-Domingo recommending the filing of Grave
Misconduct and Nepotism charges against respondent for alleged
irregularities exposed in a series of newspaper articles and in two (2)
anonymous complaints dated January 6 and 21, 2003, respectively,
initiated by “concerned” employees of the Bureau of Corrections (BUCOR)
Employees Association.
Convinced that sufficient basis exists to conduct an investigation, the
PAGC issued an order on May 9, 2003, directing respondent to file a
counter-affidavit/verified answer and the parties to attend the
preliminary conference scheduled on May 19, 2003. Earlier, respondent
had been placed under preventive suspension pursuant to Presidential
Administrative Order No. 72, Series of 2003.
In his Counter-Affidavit and Position Paper, respondent stressed, anent
the first charge, that the two (2) unsworn and anonymous
letter-complaints are downright frivolous and that no substantial
evidence has been presented to prove beyond cavil that he is guilty of
extortion. He further averred that the amount of P1.5 Million was spent
on the rehabilitation of the National Bilibid Prison (NBP) hospital
because major, not minor, works were done thereon. To belie the
imputation that he received kickbacks out of said rehabilitation,
respondent presented a certification by the NBP General Service Chief
to the effect that said allegations are untrue.
Respondent further vehemently denied that his son, Arnel Macala, has
been using the BUCOR official car in bringing shabu and liquor in the
NBP maximum security compound, claiming that he had issued several
memoranda to ensure that all vehicles and visitors entering the NBP
premises are carefully checked and the inmates have no access
whatsoever to prohibited articles. Likewise denied by respondent were
the allegations that he allowed his son-in-law, Raymond Luz, to operate
a videoke machine inside the NBP premises, financed the campaign
sorties of former DOJ Secretary Hernando Perez, had acquired a 10-door
apartment, and that said Raymond Luz had constructed a mansion.
Refuting the charge that he received gifts from inmate Lyson Ivan
Acedillo, respondent presented the latter’s affidavit disclaiming the
same.
On the Nepotism charge, respondent maintained that the appointment of
Generoso Bautista who is a “fourth degree relative” is not violative of
the law nor were the details of Noel Mendoza and Abner Macala, who are
members of the Philippine National Police, nepotic being in pursuance
of the letter-order of Police Senior Superintendent Chito De Los
Santos. In the same breath, respondent maintained that the detail of
Noel Mendoza, Abner Macala and Raymond Luz did not violate the rule of
nepotism (Sec. 59[2] of E.O. No. 292 and Sec. 49 of PD No. 807), since
they are holding primarily confidential positions.
Upon the other hand, the DOJ, in its Position Paper, postulated that
respondent is guilty of the charges, more particularly of Grave
Misconduct, as evidenced by BPI Bank Account No. 0883-016327 under the
name of respondent in whose favor suppliers of foodstuff to the BUCOR
deposit substantial sums of money in exchange for presidential
treatment given by respondent, as corroborated by Mr. Kabungsuan
Makilala, Executive Secretary of BUCOR Bidding Committee in his
affidavit of April 3, 2003, who further declared that the bidding
process was manipulated and influenced by respondent.
The DOJ further averred that respondent never denied that he authorized
minor repairs at the NPB hospital at the staggering cost of P1.5
million, as alleged in the letter-complaints, nor belie the anomaly
regarding the NBP waterproofing works at the maximum security compound,
which leaves much to be desired, since “the place still gets soaked by
something like a garden sprinkler.”
Concerning the shabu and liquor proliferation issue, the DOJ maintained
that respondent’s son uses the BUCOR official vehicle to clandestinely
smuggle said prohibited items inside the NBP compound.
Anent the complaint for Nepotism, the DOJ alleged that respondent
employed his relatives both by affinity and consanguinity within the
prohibited degree when he was still the BUCOR Director.
After due evaluation the PACG issued a resolution on October 7, 2003
finding respondent guilty of Nepotism but absolving him from the charge
of Grave Misconduct. The findings and recommendation of the PAGC are
quoted hereunder:
“The
sole issue now posed before the Commission is whether or not respondent
Macala may be held liable for all the charges raised against him based
on the evidence on record.
“We must qualify.
“On grave misconduct. In a
plethora of cases, the Supreme Court declared that:
‘Misconduct
in Office has a definite and well-understood legal meaning. By uniform
legal definition it must affect the performance of his duties as an
officer and not such only as a private individual. In such case, it has
been said at all times, it is necessary to separate the character of
the man from the character of the officer. It is settled that
misconduct, misfeasance warranting removal from office of an office of
an officer must have direct relation to and be connected with the
performance of official duties amounting either to maladministration or
willful, intentional neglect and failure to discharge the duties of the
office.’
“In the present case, the DOJ failed to adduce substantial evidence, which is the quantum of proof required in administrative cases, to show that the respondent committed maladministration or willful, intentional neglect and a failure to discharge the duties of his office. Substantial evidence is such relevant evidence which a reasonable mind might accept as adequate to support a conclusion. It is axiomatic that he who alleges must prove the same; Otherwise, the presumption of regularity in the performance of official duties must remain.
“An assiduous perusal of the bank deposit slips that were adduced in evidence will readily real that there is no showing that the subject bank deposit being linked to the respondent had been utilized by him in the collection of extortion money from BUCOR suppliers, nor is it clear that the same is for the respondent’s account since the respondent’s name does not appear thereon. In fact one of the supplier, a certain Lyson Ivan Acedillo, had executed an affidavit to deny the truthfulness of this allegation.
“Relative to the waterproofing works at the NBP, no proof was proferred to establish that the costs thereof are excessive. In the absence of sufficient evidence, again the presumption of regularity must be respected.
“Similarly, the imputations that the respondent allowed shabu and liquor to be smuggled into the NBP compound are not substantiated by substantial evidence on record. The DOJ failed to present, at the least, an affidavit of a witness, who has personal knowledge of these particular anomalies to support its charge.
“On nepotism. Sec. 59 (10, Subtitle A. Title 1, Book V of the Administrative Code describes nepotism, to with:
‘Nepotism-(1)
All appointments in the national, provincial, city and municipal
governments or in any branch or instrumentality thereof, including
government owned and controlled corporations, made in favor of a
relative (within the third degree) of the appointing or recommending
authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.
‘As used in this Section , the
word ‘relative’ and members of the family referred to are those related
within the third degree either consanguinity or of affinity.’
‘The
position of Mr. Raymond Luz is also considered primarily confidential,
in spite of the fact that his designation XXX is that of a Utility
Worker.
‘‘This is for the reason that in the determination of which position is primarily confidential of (sic) not, it is the nature of the work and not the designation which is controlling.’
“While it is true that the respondent had no hand in the appointment nor in the recommendation of his son-in-law, he was, however, the chief of the bureau (BUCOR) where his son-in-law was assigned to work; hence, within the prohibition of the law.
“The defense that the position of Mr. Luz, as Utility Worker, is confidential position must likewise fail. In Civil Service Commission vs. Salas, the Supreme Court clarified the term ‘primarily confidential position’, by stating:
‘Every
appointment implies confidence, but much more than ordinary confidence
is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the
aptitude of the appointee for the duties of the office but primarily
close intimacy which ensures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust
or confidential of state. x x x’
“It must be noted that the respondent contradicts himself by saying that the person, who is merely detailed in his office, is now occupying a confidential position, or a position that requires trust and confidence. Peremptorily, since the relationship between the public respondent and Mr. Luz is one that is prohibited by the law, the former is liable for violating the rule against nepotism.
“As earlier said, the quantum of proof necessary for a finding of guilty in administrative case is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The pieces of evidence against the herein respondent are more than adequate to support a conclusion that, with regard to nepotism, he is liable as charged.
“The Uniform Rules on Administrative Case in the Civil Service, Sec. 52, Rule IV on Penalties provides that the imposable penalty on Nepotism shall be Dismissal from public office. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, and the disqualification for reemployment in the government service. However, considering the fact that the respondent Macala was replaced as BUCOR Director by General Santiago, only the accessory penalties can be imposed on him and not the principal penalty.
“WHEREFORE, the Commission finds the respondent Ricardo B. Macala liable for violation of the law on nepotism. Considering the removal of the respondent as Bureau of Corrections Director, the Commission recommends to her Excellency, President Gloria Macapagal-Arroyo, that the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and disqualification for reemployment in the government service be imposed.
“SO RESOLVED.”
After careful review, this Office concurs in toto with the findings and recommendation of the PAGC, the same being in full accord with the evidence presented and fairly reflective of the facts proven.
WHEREFORE, and as recommended by the Presidential Anti-Graft Commission, the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and disqualification for reemployment in the government service are hereby IMPOSED on Mr. Ricardo B. Macala, former Director of the Bureau of Corrections.
SO ORDERED.
Manila, Philippines, 15 Jan 2004
By authority of the President:
(Sgd.) MANUEL B. GAITE
Deputy
Executive Secretary for Legal Affairs
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Since 19.07.98.