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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
May-1996 Jurisprudence                 

  • G.R. No. 104215 May 8, 1996 - ERECTORS, INC. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 109609 May 8, 1996 - SEGUNDINO ROYO, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 110597 May 8, 1996 - SERVICEWIDE SPECIALISTS v. COURT OF APPEALS, ET AL.

  • G.R. No. 117482 May 8, 1996 - PEOPLE OF THE PHIL. v. ROMEO ESGUERRA

  • G.R. No. 118794 May 8, 1996 - PHILIPPINE REFINING COMPANY, ET AL. v. COURT OF APPEALS

  • G.R. Nos. 84332-33 May 8, 1996 - PEOPLE OF THE PHIL. v. REYNALDO EVANGELISTA

  • G.R. No. 102078 May 15, 1996 - PEOPLE OF THE PHIL. v. ROLANDO A. FELICIANO

  • G.R. No. 107041 May 15, 1996 - FELICIANO MALIWAT v. COURT OF APPEALS

  • G.R. No. 109362 May 15, 1996 - CELIA A. FLORES v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 116110 May 15, 1996 - BALIWAG TRANSIT, INC. v. COURT OF APPEALS, ET AL.

  • G.R. No. 116237 May 15, 1996 - PEOPLE OF THE PHIL. v. FE C. ARCILLA

  • Adm. Matter No. 91-10-160 May 15, 1996 - IN RE: SAMANODIN L. AMPASO

  • G.R. No. 94980 May 15, 1996 - LITTON MILLS, INC. v. COURT OF APPEALS, ET AL.

  • Adm. Matter No. P-95-1138 May 15, 1996 - SECURITY DIVISIONS, ET AL. v. GAMAL L. UMPA, ET AL.

  • Adm. Matter No. 95-7-65-MTCC May 15, 1996 - IN RE: FELIPE KALALO

  • G.R. Nos. 107814-107815 May 16, 1996 - TUPAY T. LOONG, ET AL. v. COMELEC, ET AL.

  • G.R. No. 119641 May 17, 1996 - PHILIPPINE AIRLINES v. COURT OF APPEALS, ET AL.

  • G.R. Nos. 117589-92 May 22, 1996 - ROMEO R. SALALIMA, ET AL. v. TEOFISTO T. GUINGONA, ET AL.

  • Adm. Matter No. MTJ-94-904 May 22, 1996 - JOSEPHINE C. MARTINEZ v. CESAR N. ZOLETA

  • G.R. No. 119655 May 24, 1996 - ANTONIO A. TIBAY. ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 96923 May 24, 1996 - PEOPLE OF THE PHIL. v. RENANTE PARAGUA, ET AL.

  • G.R. No. 108734 May 29, 1996 - CONCEPT BUILDERS, INC. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 112331 May 29, 1996 - ANASTACIA QUIMEN v. COURT OF APPEALS, ET AL.

  • G.R. No. L-24864 May 30, 1996 - FORTUNATO HALILI v. COURT OF INDUSTRIAL RELATIONS, ET AL.

  • G.R. No. 111014 May 31, 1996 - LIANA’S SUPERMARKET v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

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    G.R. Nos. 117589-92   May 22, 1996 - ROMEO R. SALALIMA, ET AL. v. TEOFISTO T. GUINGONA, ET AL.

     
    PHILIPPINE SUPREME COURT DECISIONS

    EN BANC

    [G.R. Nos. 117589-92. May 22, 1996.]

    ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, Petitioners, v. HON. TEOFISTO T. GUINGONA, JR., in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGI. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, Respondents.


    SYLLABUS


    1. POLITICAL LAW; ADMINISTRATIVE LAW; LOCAL ELECTIVE OFFICIALS; ADMINISTRATIVE OFFENSE, DEFINED. — An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action.

    2. ID.; ID.; ID.; ID.; PENALTY OF SUSPENSION SHALL NOT EXCEED SIX MONTHS FOR EACH OFFENSE OR THE UNEXPIRED PORTION OF THE TERM OF OFFICE. — This provision sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense.

    3. ID.; ID.; ID.; ID.; PENALTIES IMPOSED IN CASE AT BAR DID NOT EXCEED PERIOD, PROVIDED BY LAW. — Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners’ term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. And this Court is not prepared to rule that the suspension amounted to the petitioners’ removal from office.

    4. ID.; ID.; ID.; PENDENCY OF APPEAL OF COA FINDING, NOT AN OBSTACLE TO THE INVESTIGATION AND RESOLUTION OF ADMINISTRATIVE COMPLAINTS; CASE AT BAR. — Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report a No. 93-11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB. The alleged appeal from the CSB is unclear from the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised. We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of the administrative cases.

    5. TAXATION; REAL PROPERTY TAX CODE; SALE OF DELINQUENT PROPERTIES BY THE PROVINCE; MUNICIPALITIES ARE CO-OWNERS OF THE PRICE OF PROPERTIES SOLD IN PROPORTION TO THE EXTENT OF THEIR RESPECTIVE SHARES IN THE REAL PROPERTY TAXES AND THE PENALTIES THEREON; CASE AT BAR. — The original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned. Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound to collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon. It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. He is the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. He is also the one authorized to effect the resale at public auction of the delinquent property. Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter.

    6. REMEDIAL LAW; ACTIONS; ESTOPPEL; PETITIONERS WHO ENTERED INTO A MEMORANDUM OF AGREEMENT (MOA) ALLOWING REDEMPTION OF THE AUCTIONED PROPERTIES OF THE DELINQUENT TAXPAYER ARE ESTOPPED FROM CLAIMING THAT THE SAME CONSTITUTES PAYMENTS OF DEBT UNDER THE MOA OR OF CONTRACT PRICE IN A PRIVATE SALE. — The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. The tenor of the agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties "in consideration of settlement of Napocor’s tax liability." Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price. The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC’s tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer.

    7. TAXATION; REAL PROPERTY TAX CODE; SALE OF DELINQUENT PROPERTIES; ONE-YEAR REDEMPTION PERIOD; PAYMENT OF TAX LIABILITIES BEYOND PERIOD, A WAIVER OF PERIOD; MUNICIPALITIES’ SHARE THEREON MUST BE PAID.— It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property. The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the NPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in regular course conformably with Section 87(c) of the Real Property Tax Code.

    8. POLITICAL LAW; LOCAL GOVERNMENT CODE; ABUSE OF AUTHORITY; MANIFEST BY REFUSAL TO GIVE THE MUNICIPALITIES THEIR SHARE IN THE REAL PROPERTY TAX; CASE AT BAR. — As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial cheek of P17,763,000.00 was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA. The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in the province’s general fund, P35,803,118.30 was disbursed or spent by the Province." If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust pursuant to Section 309(b) of the Local Government Code of 1991. We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC.

    9. ID.; ADMINISTRATIVE CODE; COMPLAINT FOR ADMINISTRATIVE MISCONDUCT COMMITTED DURING A PRIOR TERM RENDERED MOOT AND ACADEMIC BY HIS REELECTION; RULE NOT APPLICABLE TO CIVIL AND CRIMINAL LIABILITIES. — We agree with the petitioners that Governor Salalima could no longer be held administratively liable in O.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term. As held in Pascual v. Provincial Board of Nueva Ecija and Aguinaldo v. Santos. The reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed Coup.

    10. ID.; ID.; ID. — We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not be held administratively liable in O.P. Case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet.

    11. ID.; ID.; ID.; RULE DOES NOT MAKE A DISTINCTION WHETHER THE CASE WAS ALREADY PENDING OR NOT WHEN HE FILED HIS CERTIFICATE OF CANDIDACY FOR REELECTION. — The Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official’s reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was. filed only a year after he was reelected.


    D E C I S I O N


    DAVIDE, JR., J.:


    Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60(e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66(b) of R.A. No. 7160.chanrobles.com:cralaw:red

    Prefacing the petition with a claim that the challenged administrative order is "an oppressive and capricious exercise of executive power," the petitioners submit that:chanrob1es virtual 1aw library

    I.


    THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RAISING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.

    II.


    THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,471.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992.

    III.


    THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:chanrob1es virtual 1aw library

    A. WHAT WERE NOT COMPLAINED OF;

    B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND

    C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION.

    IV.


    THE PUBLIC, RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC.

    We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that this case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, Office of the Solicitor General invites the attention of Court to the following:chanrob1es virtual 1aw library

    (a) While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause.

    (b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension periods.

    (c) If upheld, Administrative Order No. 15 would be used as a strong ground in filing cases against petitioners for violations of the Anti-Graft and Corrupt Practices Act.

    (d) Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case.

    (e) The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners.

    The factual antecedents are not complicated.

    Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations.

    The Ad Hoc Committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar.

    On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President.

    On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus:chanrob1es virtual 1aw library

    The finding of the Ad-Hoc Committee in OP Case Nos. 5470, 5469, 5471 and 5450 are as follows:chanrob1es virtual 1aw library

    I. OP Case No. 5470

    This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana, Ramon Fernandez, Jr. Masikap Fontanilla, and Wilbor Rontas.

    Docketed as OP Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the "Local Government Code."cralaw virtua1aw library

    The antecedent facts are as follows:chanrob1es virtual 1aw library

    On 4 June 1990, the Supreme Court in the case entitled "National Power Corporation (NPC) v. The Province of Albay, Et. Al.", G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987.

    Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC’s real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the "Real Property Tax Decree."cralaw virtua1aw library

    Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the "Province") to satisfy NPC’s tax liabilities. Being the sole bidder at the auction, the Province acquired ownership over said properties.

    On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of Agreement ("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76.

    Under the MOA, the parties agreed that:chanrob1es virtual 1aw library

    — the actual amount collectible from NPC will have to be recomputed/revalidated — NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement;

    — the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall b paid in twenty-four (24) equal monthly installments to commence in September 1992; and

    — ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities.

    On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC’s properties are located ("concerned barangay") relative to the payments made by NPC (Exh. B).

    On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-9’ (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments.

    On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an "earnest money" and that the total amount to be collected from NPC was still being validated (Exh. 1).

    Not satisfied with respondent Salalima’s response, Mayor Corral complained to NPC about the Province’s failure to remit Tiwi’s and the concerned barangays shares in the payments made by NPC, (Exh. 50-C).

    On 14 August 1992, President Malixi informed respondent Salalima that the representatives, of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20).

    Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A).

    Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or a total of P27,442,364.15 from the general fund to satisfy "prior years" obligations and to implement certain projects of the Province. These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively.

    On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC’s tax liability. He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel Carpio’s letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:chanrob1es virtual 1aw library

    x       x       x


    The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC’s liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.

    The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only established the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province.

    Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same.

    Please be guided accordingly.

    Very truly yours,

    (Sgd.) ANTONIO T. CARPIO

    Chief Presidential Legal Counsel

    Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exh. I to I- 1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail.

    Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed. President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares.

    As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows:chanrob1es virtual 1aw library

    Payment Dates Amount

    July 29, 1992 P17,763,000.00

    Sept. 3, 1992 4,660,255.80

    Oct. 5, 1992 6,820,480.12

    Nov. 5, 1992 5,740,367.96

    Dec. 9, 1992 5,740,367.66

    ——————

    Total P40,724,471.74

    On 19 December 1992, in an apparent reaction to NPC’s decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others:chanrob1es virtual 1aw library

    — authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and

    — declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA.

    Realizing from the actuations of the respondents that Tiwi’s share in the P40,724,471.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993.

    In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved.

    Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provision; read:chanrob1es virtual 1aw library

    SEC. 38. Incidence of Real Property Tax. — There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax or real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted.

    SEC. 39. Rates of Levy. — The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows:chanrob1es virtual 1aw library

    (1) In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property;

    (2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and

    (3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property.

    SEC. 41. An additional one percent tax on real property for the Special Education Fund. — There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by PD No. 1913)

    SEC. 86. Distribution of proceeds. — (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit.

    (b) Barrio shares on real property tax collections. — The annual shares of the barrios in real property tax collections shall be as follows:chanrob1es virtual 1aw library

    (1) Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue in the barrio where the property subject to the tax is situated.

    (2) In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated.

    x       x       x


    SEC. 87. Application of proceeds. — (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one- fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund.

    (b) The entire proceeds of the additional one percent real property tax levied for the Special Education Fund created under R.A. No. 5447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows:chanrob1es virtual 1aw library

    (1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD No. 1969)

    x       x       x


    (c) The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course.

    x       x       x (Emphasis supplied)

    The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same. It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of PD No. 464.

    And apart from said basic tax, the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF).

    In accordance with the authority conferred upon them by PD No. 464, the following tax resolutions or ordinances were passed:chanrob1es virtual 1aw library

    By the Province —

    Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4 whose Section 1, provides:chanrob1es virtual 1aw library

    There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property.

    By the Municipality of Tiwi —

    Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:chanrob1es virtual 1aw library

    That the tax rate of real property shall be one-half of one percent of the assessed value of real property.

    By the Municipality of Daraga —

    Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:chanrob1es virtual 1aw library

    Rates of Levy — The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Emphasis supplied)

    Applying said rates of levy, the real property taxes collectible from the NPC are:chanrob1es virtual 1aw library

    1. A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and

    2. The additional 1% tax pertaining to the SEF.

    or a total of 2.0% on the assessed value of NPC’s real properties.

    On the other hand, sharing on said taxes, shall be as follows:chanrob1es virtual 1aw library

    1. On the basic tax:chanrob1es virtual 1aw library

    Province 47.5%

    Municipality 47.5%

    Barangay 5.0%

    ______

    Total 100.0%

    2. On the additional tax pertaining to the SEF:chanrob1es virtual 1aw library

    Province 25.0%

    Municipality 55.0%

    National Government 20.0%

    ______

    Total 100.0%

    In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangay; and the national government, as follows:chanrob1es virtual 1aw library

    Province Municipalities Barangay Natl. Govt.

    Basic Tax

    P9,672,062.04 9,672,062.04 1,018,111.79 none

    SEF

    4,072,447.18 10,181,117.93 none 6,108,670.76

    —————— —————— ————— —————

    Total

    P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76

    This shows that the Province is entitled only to P13,744,509.21 of the P40,724,471.74 aggregate payments by NPC. On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government.

    The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province.

    This is untenable. The law clearly provides that ‘the proceeds of all the delinquent taxes and penalties as well as the income realized from the . . . disposition of real property acquired by the province or city at a public auction . . ., and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course’ (Sec. 87(c) supra.).

    It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale. What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed on the same manner and proportion among the rightful beneficiaries thereof as provided by law.chanrobles.com : virtual law library

    This was the import and essence of Chief Presidential Legal Counsel Carpio’s opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance the Province of Albay.

    Likewise, it is axiomatic that while ‘contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient’, they may not do so if these are ‘contrary to law, morals, good customs, public order or public policy’ (Art. 1306, New Civil Code.).

    Also relevant to the discussion are the following provisions of the Local Government Code of 1991:chanrob1es virtual 1aw library

    Sec. 307. Remittance of Government Monies to the Local Treasury. — Officers of Local government authorized to receive and collect monies arising from axes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong.

    SEC. 308. Local Funds. — Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund.

    SEC. 309. Special Funds. — There shall be maintained in every provincial, city, or municipal treasury the following special funds:chanrob1es virtual 1aw library

    (a) Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and

    (b) Trust Funds shall consist of private and public monies which have officially come int. the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government unit. (Emphasis supplied)

    These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the ‘Administrative Code of 1987.’

    It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province’s general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No . 464, as amended).

    Therefore, the balance of P26, 979, 962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

    However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as ‘surplus adjustment’ (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

    Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAO) of the Commission on Audit (COA) further support our findings, thus —

    x       x       x


    Part II. Findings and Observations

    The audit findings, which are discussed in detail in the attached report, are summarized below:chanrob1es virtual 1aw library

    1. The remittances of the NPC of the P40,724,471.74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of PD 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of PD 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government.

    x       x       x


    2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-419) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government. As of December 31, 1992, the balance of the account was only P25,668,653.12 thus, stressing that P15,255,818.62 was spent. . . . Under the General Fund, cash available was only P4,921,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their barangays where the properties are located. (pp. 4 and 16; (Emphasis supplied)

    x       x       x


    As pointed out earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21. Any disbursements exceeding this amount would therefore be illegal.

    This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province’s general fund was only P4,921,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province’s general fund, P35,803,118.30 was disbursed or spent by the Province. This exceeds the P13,744,509.21 share of the Province by P22,058,609.09.

    The foregoing may be illustrated as follows:

    NPC Payments received by

    the Province P40,724,471.74

    Less Actual Cash Balance

    general fund) of 12-31-92 4,921,353.44

    ——————

    P35,803,118.30

    ===========

    Less Share of the Province 13,744,509.21

    ——————

    Amount Illegally Disbursed

    by the Province P22,058,609.09

    ===========

    We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74, paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share.

    Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 ‘surplus adjustment’ that includes the ‘trust funds’ not belonging to the Province. Even assuming that Resolution No. 178-92 authorizing the expenditure of P9,778,932.57 were to be taken from the Province’s share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that ‘(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law’ (par [a], Sec. 305, Republic Act No. 7160).

    Respondents raise the common defense that the findings contained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom.

    It is important to stress that the exceptions (Exhs. 5-)-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

    Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

    Respondents’ contention that COA’ factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

    Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

    Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report 93-11 to enable this Committee to evaluate the merits of the instant complaint.

    We also reject respondent Azaña’s defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability.

    The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaña s jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that resolutions or ordinances passed are within the bounds of the law. He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues.

    This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus —

    SEC. 304. Scope. — This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays.

    SEC. 305. Fundamental Principles. — The financial affairs, transactions, and operations of local government unit; shall be governed by the following fundamental principles:chanrob1es virtual 1aw library

    x       x       x


    (1) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

    x       x       x (Emphasis supplied.)

    It cannot be denied that the Sangguniang Panlalawigan has control over the Province’s ‘purse’ as it may approve or not resolutions or ordinances generating revenue or imposing taxes as well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects.

    Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called ‘fundamental’ principles enunciated under the Local Government Code, i.e., ‘No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received’ (Sec. 305, R.A. 7160).

    All the respondents could not claim ignorance of the law especially with respect to the provisions of PD No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund. Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries.

    As a public officer, respondent Azaña (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government. When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations. If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence or any sort was shown in this regard by respondent Azaña.

    Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92.

    The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority. Moreover, the illegal disbursements made can qualify as technical malversation.

    This Committee, thus, finds all the respondents guilty of abuse of authority, and accordingly, recommends the imposition of the following penalties of suspension without pay:chanrob1es virtual 1aw library

    a. Respondent Salalima — five (5)

    months; and

    b. All the other — four (4)

    respondents months each.

    II. OP Case No. 5469

    This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469.

    The antecedent facts are as follows.

    Because of the refusal by the National Power Corporation ("NPC") to pay real property taxes assessed by the Province of Albay ("the Province") covering the period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale.

    As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same.

    Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the province. NPC claims, inter alia, that its properties are not subject to real property tax.

    On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed its comment on the NPC petition with the Supreme Court.

    On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-l) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC.

    On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

    On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-l) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus:chanrob1es virtual 1aw library

    As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

    On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm.

    Respondent Salalima signed the retainer agreement.

    On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the Province to answer for NPC’s tax liabilities.

    Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-l) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago:

    Particulars Claimant/Payee Amount

    Disbursement Cortes & Reyna P50,508.75

    Voucher (DV

    No. 4, Jan.

    8, 1990

    Check No.

    931019

    DV No. 1889 Atty. Antonio Jose Cortes P1,421,040.00

    Aug. 13, 1992.

    Check No.

    236063-S

    DV No. 1890 Atty. Jesus R. Cornago P1,786,300.00

    Aug. 13, 1992

    Check No.

    236064-S

    DV No. 215’ Atty. Antonio Jose Cortes P838,851.44

    Sept. 28,

    1992, Check

    No. 238174-S

    DV No. 2226 Atty. Antonio Jose Cortes P886,662.40

    Oct. 8, 1992

    Check No.

    239528-S

    DV No. 2227 Atty. Jesus R. Cornago P341,024.00

    Oct. 8, 1992

    Check No.

    239529-S

    DV No. 2474 Atty. Jesus R. Cornago P287,018.40

    Nov. 6, 1992

    Check No.

    250933

    DV No. 2475 Atty. Antonio Jose Cortes P746,247.83

    Dec. 9, 1992

    Check No.

    253163

    DV No. 2751 Atty. Antonio Jose Cortes P727,247.84

    Dec. 9, 1992

    Check No.

    253163

    DV No. 2752 Atty. Jesus R. Cornago P200,018.40

    Dec. 9, 1992

    Check No.

    253164

    —————

    TOTAL P7,380,410.31

    Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña. The rest were approved by respondent Governor.

    In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney’s fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA, with the following notation:chanrob1es virtual 1aw library

    The disbursement vouchers detailed hereunder represent payments for attorney’s fees of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 37479 NAPOCOR, Petitioner v. The Province of Albay, Et Al., Respondent,’ Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite ‘prior written conformity and acquiescence of the Solicitor General . . . as well as the written concurrence of the commission on Audit’ as provided for and required under COA Circular No. 86-255 dated April 2, 1986, re: ‘Inhibition against employment by government: agencies and instrumentalities . . . of private lawyers to handle their legal cases,’ viz.

    The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7, 380, 410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney’s fees.

    The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the Province.chanrobles.com : virtual law library

    We find merit in the complaint and hold that under the circumstances surrounding the transaction in question the respondents abused their authority.

    Sec. 481 of the Local Government Code (RA. No. 7160) requires the appointment of a legal officer for the province whose functions include the following:chanrob1es virtual 1aw library

    Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

    The Supreme Court has ruled in Municipality of Bocaue, Et. Al. v. Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:chanrob1es virtual 1aw library

    Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions. . .

    It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained.

    This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, Et. Al. v. Manotok.

    In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court.

    Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-255 dated 2 April 1986.

    The respondents attempted to dispute this finding by presenting the Solicitor General’s conformity dated 15 July 1993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 86-255 is a prior written conformity and acquiescence of the Solicitor General.

    Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retained contract itself:chanrob1es virtual 1aw library

    As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for our account also.

    x       x       x

    Very truly yours,

    CORTES & REYNA

    LAW FIRM

    — and —

    Atty. JESUS R. CORNAGO

    Jamecca Building

    280 Tomas Morato Avenue

    by:chanrob1es virtual 1aw library

    (Sgd.) ANTONIO JOSE F. CORTES

    With my conformity

    (Sgd) GOV. ROMEO R. SALALIMA

    Province of Albay

    (Emphasis supplied.)

    In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

    Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G.R. No. 87479). We quote the entry of appearance of Atty. Cornago in full in said case:chanrob1es virtual 1aw library

    APPEARANCE

    COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that; henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below.

    Quezon City, for Manila, August 24, 1989.

    (Sgd.) JESUS R. CORNAGO

    Counsel for Respondents

    280 Tomas Morato Avenue

    Quezon City

    PTR No. 561005-’89 Mandaluyong

    IBP No. 279351-’89 Pasig, MM

    With my conformity:chanrob1es virtual 1aw library

    (Sgd.) ROMEO R. SALALIMA

    Respondent

    Office of the Governor of Albay

    Legaspi City

    Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:chanrob1es virtual 1aw library

    Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province’s Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Emphasis supplied.)

    Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479.

    Finally, the attorney’s fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the "P214 million" claim of the Province against NPC amounts to P38.5 million. The word "unconscionable", as applied to attorney’s fee, "means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him." (Moran, Comments on the Rules of Court, Vol. 6, p. 236.)

    The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC’s petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million.

    Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:chanrob1es virtual 1aw library

    SECRETARY CORONA:chanrob1es virtual 1aw library

    May I ask a question Governor, what was your basis for choosing this particular Law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it?

    GOVERNOR SALALIMA:chanrob1es virtual 1aw library

    Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.

    SECRETARY CORONA:chanrob1es virtual 1aw library

    Were you classmates?

    GOVERNOR SALALIMA:chanrob1es virtual 1aw library

    No.

    SECRETARY CORONA:chanrob1es virtual 1aw library

    How many years apart were you?

    GOVERNOR SALALIMA:chanrob1es virtual 1aw library

    Two (2) years.

    SECRETARY CORONA:chanrob1es virtual 1aw library

    So, you knew each other from the law school?

    GOVERNOR SALALIMA:chanrob1es virtual 1aw library

    Yes.

    SECRETARY CORONA:chanrob1es virtual 1aw library

    Were you members of the same fraternity in San Beda?

    GOVERNOR SALALIMA:chanrob1es virtual 1aw library

    Yes.

    (TSN 12 July 1992, pp. 27-29.)

    It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney’s fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney’s fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority.

    Parenthetically, the retainer contract containing such exorbitant attorney’s fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

    Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1) of the Local Government Code.

    In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following:chanrob1es virtual 1aw library

    1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479:chanrob1es virtual 1aw library

    2. Disbursing public money in violation of COA rules and regulations;

    3. Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case:chanrob1es virtual 1aw library

    4. Authorizing an unconscionable and grossly disadvantageous attorney’s fees of P38.5 million; and

    5. Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago. thus exceeding his authority under Resolution No. 01-90 passed by the Sangguniang Panlalawigan.

    After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out:chanrob1es virtual 1aw library

    a. Respondents Salalima — six (6) months

    and Azaña each; and

    b. All the other

    respondents four (4) months

    each.

    III. OP Case No. 5471

    This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for "abuse of authority and oppression" under Sec. 60(c) and (e) of RA No. 7160.

    The antecedent facts are as follows:chanrob1es virtual 1aw library

    On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azaña for abuse of authority, misconduct in office and oppression. This administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8- 93), arose from the refusal of said respondents to remit Tiwi’s share in the P40,724,471.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 5479 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas.

    Subsequently, Mayor Corral became the subject of several administrative and criminal complaint; filed by certain individuals with the following offices:chanrob1es virtual 1aw library

    a. Achilles Berces v. Mayor Naomi Corral

    (1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92

    (2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92

    (3) Office of the Ombudsman, OMB Adm. Case No. 1930163

    (4) Office of the Ombudsman, OMB Case No. 0930682

    (5) Office of the Ombudsman, OMB-092-3008

    b. Muriel Cortezano v. Mayor Naomi Corral

    (6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93

    (7) Office of the Ombudsman, OMB-0-92-3000

    c. Amelia Catorce v. Mayor Naomi Corral

    (8) Albay Sangguniang Panlalawigan, Adm. Case No 09-93

    d. Aida Marfil v. Mayor Naomi Corral

    (9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93

    (10) Office of the Ombudsman, OMB Case No. 5-93-0110)

    e. Rodolfo Belbis v. Mayor Naomi Corral

    (11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93

    (12) Office of the Ombudsman, OMB Case No. 0-93-0093

    f. Kin. Juan Victoria, Et. Al. v. Mayor Naomi Corral

    (13) Office of the Prosecutor, I.S. No. 93-046 (for Libel). Legaspi City

    g. Governor Romeo Salalima, Et. Al. v. Mayor Naomi Corral

    (14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City

    (15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City

    or a total of fifteen (15) cases.

    On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18).

    On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18).

    On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus:chanrob1es virtual 1aw library

    Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter’s refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined.

    In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted.

    On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that "the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence," placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2).

    Respondent Salalima subsequently sought the reversal of the OP Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled "Salalima v. the Hon. Executive Secretary," G.R. No. 108585 (Exh. E).

    On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondent-members of the Sangguniang Panlalawigan assuming jurisdiction over the cases.

    After conducting marathon hearings, respondent- members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension:chanrob1es virtual 1aw library

    1. In Adm. Case No. 02-92 — suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]):chanrob1es virtual 1aw library

    2. In Adm. Case No. 05-92 — suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. G to G-2]);

    3. In Adm. Case No. 06-93 and 07-93 — suspension for one (1) month (see Resolution dated 8 July 1993, (Exhs. H to H-3]); and

    4. In Adm. Case No. 10-93 — suspension for the period of unexpired term (see Resolution dated 9 July 1993, (Exhs. I to 1-2]).

    On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending Mayor Corral "by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adhere thereto.’’

    Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed.

    On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to J-2).

    Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions, in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-1).

    Also, with respect to Adm. Case Nos. 6-93 and 7- 93, the Civil Service Commission (CSC) issued Resolution Nos. 93-005 (dated 5 January 1993) and 92- 817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases. The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2).

    In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q t. Q-2).

    In determining whether respondents are guilty of the charges leveled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent- members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority?

    "Oppression" has been defined as an "act of cruelty, severity, unlawful exaction, domination or excessive use of authority." (Ochate v. Ty Deling, L- 13298, March 30, 1959, 105 Phil.. 384, 390.)

    "Abuse" means "to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one’s authority" (Black’s Law Dictionary <5th Ed.>, 11). It includes "misuse" (City of Baltimore v. Cornellsville & S.P. Ry, Co., 6 Phils. 190, 191, 3 Pitt 20, 23).

    Moreover, Section 63(d) of RA No. 7160 expressly states that," [a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority."cralaw virtua1aw library

    Now, does the above narration of facts show commission by respondents of the administrative offenses complained of?

    A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.

    Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed.

    Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, Respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases.

    The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 61(b) of RA No. 7160," [a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President."cralaw virtua1aw library

    WHEREFORE, the charges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60(c) and (e) of RA No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay.chanrobles virtual lawlibrary

    IV. OP Case No. 5450

    This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of — Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended.

    This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450

    The facts as found by this Committee are as follows:chanrob1es virtual 1aw library

    On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1).

    On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh. 37).

    On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1).

    On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days.

    The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41).

    On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. I) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days.

    Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42).

    In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of PD No. 1594 as RYU incurred delay with respect to the first contract.

    We find merit in the complaint:chanrob1es virtual 1aw library

    Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of the Implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read:chanrob1es virtual 1aw library

    CI 3 — LIQUIDATED DAMAGES

    1. Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for liquidated damages, and not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government:chanrob1es virtual 1aw library

    x       x       x


    2. To be entitled to such liquidated damages, the Government does not have to prove that it has incurred actual damages. Such amount shall be deducted from any money due or which may become due the contractor under the contract and/or collect such liquidated damages from the retention money or other securities posted by the contractor whichever is convenient to the Government.

    CI 1 — Extension of Contract time

    1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extent of the delay and shall extend the contract time for completing the contract work when, in the Government’s opinion, the finding of facts justify an extension.

    x       x       x


    IB 10.4.2 — By Negotiated Contract

    1. Negotiated contract may be entered into only where any of the following conditions exists and the implementing office/agency/corporation is not capable of undertaking the project by administration:chanrob1es virtual 1aw library

    x       x       x


    c. Where the subject project is adjacent or contiguous to an ongoing project and it could be economically prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Emphasis supplied)

    x       x       x


    A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government.

    Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992.

    This is confirmed by the COA through SAO Report No. 93-11 (Exh. N), thus —

    x       x       x


    . . .The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation

    Billing As of Days Lapsed % Accomplishment

    First Dec. 2, 1991 130 26.48

    Second Jan. 8, 1992 187 53.19

    Third Feb. 10, 1992 100 75.23

    Final June 2, 1992 202 100.00

    In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not attached to the claims of the contractor or paid vouchers. Unfortunately, the Provincial Engineer could not provide said document as the Engineering Office had not issued any. In effect, there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [Emphasis supplied]

    Respondent Salalima failed to submit an evidence concerning any order issued by the Provincial Government extending RYU Construction’s contract.

    The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any "delay" after the contract expires.

    Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public Market being the signatory to the first contract.

    Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction.

    Going to the second charge, we find that respondent Salalima unmistakably violated the provisions of PD No. 1594, as amended.

    Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of PD No. 1594, construction projects shall generally be undertaken by contract after "competitive bidding." By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the award of the contract which otherwise might prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil.., Inc. v. Delgado Bros. 96 Phil.. 368; San Diego v. Municipality of Naujan, 107 Phil.. 118; and Matute v. Hernandez, 66 Phil.. 68).

    This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance.

    And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation works for the Tabaco Public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal.

    Finally, said contract may also be violative of the following: (a) COA Circular No. 85-55-A. (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3(e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

    Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondent Salalima for five (5) months. (pp. 2-35)

    The President then concluded and disposed as follows:chanrob1es virtual 1aw library

    After a careful review of the cases, I agree with and adopt the findings and recommendations of the Ad Hoc Committee, supported as they are by the evidence on record.

    WHEREFORE, the following penalties are meted out on each of the respondents, to wit:chanrob1es virtual 1aw library

    In OP Case No. 5470 —

    a. Governor Romeo Salalima — suspension without pay for five (5) months:chanrob1es virtual 1aw library

    b. Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas — suspension without pay for four (4) months.

    In OP Case No. 5469 —

    a. Governor Romeo Salalima and Vice-Governor Danilo Azaña — suspension without pay for six (6) months; and

    b. Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao — suspension without pay for four (4) months;

    In OP Case No. 5471 —

    a. Governor Romeo Salalima and Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao — suspension without pay for four (4) months;

    In OP Case No. 5450 —

    a. Governor Romeo Salalima — suspension without pay for five (5) months.

    The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66(b) of the Local Government Code.

    It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. OP Case No. 5471 is the administrative complaint filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition.

    As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise:chanrob1es virtual 1aw library

    I. Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the petitioners for periods ranging from twelve to twenty months?

    II. Did the Office of the President commit grave abuse of discretion in deciding O.P. Cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners’ appeal to the COA en banc from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)?

    III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful share in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement?

    IV. Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989?

    V. Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60(e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government Code of 1991, thereby depriving them of due process of law?

    We shall take up these issues in the order they are presented.

    I


    Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process. Their suspensions ranging from twelve months to twenty months or for the entire duration of their unexpired term, which was then only seven months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court.

    The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners’ term of office, did not change its nature as to amount to removal.

    Section 66(b) of R.A. No. 7160 expressly provides:chanrob1es virtual 1aw library

    SEC. 66. Form and Notice of Decision. —. . .

    (b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meet the qualifications for the office.

    This provision sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. 1 An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads:chanrob1es virtual 1aw library

    SEC. 60. Grounds for Disciplinary Action. — An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:chanrob1es virtual 1aw library

    (a) Disloyalty to the Republic of the Philippines;

    (b) Culpable violation of the Constitution;

    (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

    (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

    (e) Abuse of authority;

    (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

    (g) Acquisition for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

    (h) Such other grounds as may be provided in this Code and other Laws.

    An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

    Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners’ term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. 2 And this Court is not prepared to rule that the suspension amounted to the petitioners’ removal from office. 3 3a

    II


    Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93-11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB.

    This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows:chanrob1es virtual 1aw library

    It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

    Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

    Respondents’ contention that COA’s factual findings, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

    Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

    Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint.

    The alleged appeal from the CSB is unclear from the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised.chanrobles virtual lawlibrary

    We agree with, the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of the administrative cases.

    It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2., Subdivision D, Article IX of the Constitution "to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters" and its "exclusive authority . . . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." 4

    III.


    As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and not of a tax, which debt "arose from and was a consequence of, the Memorandum of Agreement dated July 29, 1992." They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) 5 is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SEF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province.

    It must be recalled that in August 1992, Governor Salalima and NPC President, Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774 72. 6 But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P129,609,859.20. 7 Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province. His reply reads as follows:chanrob1es virtual 1aw library

    September 9, 1992

    Hon. Pablo V. Malixi

    President, National Power

    Corporation

    Diliman, Quezon City

    Dear President Malixi:chanrob1es virtual 1aw library

    As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:chanrob1es virtual 1aw library

    (a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4, whose Section I, provides:jgc:chanrobles.com.ph

    "There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent of the assessed value of real property."cralaw virtua1aw library

    (b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:jgc:chanrobles.com.ph

    "That the tax rate of real property shall be one-half of one percent of the assessed value of real property."cralaw virtua1aw library

    (c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:jgc:chanrobles.com.ph

    "Rates of Levy — The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of the real property."cralaw virtua1aw library

    These tax ordinances were in pursuance to Sec. 39 (1)(3) of PD 464, the applicable law during the period 1984 to 1987. By adding the one half percent imposed in the tax Ordinance of Tiwi to the one half percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi.

    On the real properties in Daraga, we also added the one half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance.

    The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of PD 464, which provides as follows:jgc:chanrobles.com.ph

    "There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code. . ."cralaw virtua1aw library

    We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEF in arriving at P207,375,774.72. 8 (Emphasis supplied).

    The petitioners even emphasized in the instant petition that "Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations." In other words, the original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned.

    Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound to collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. 9

    Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon.

    It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. 10 He is the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. 11 He is also the one authorized to effect the resale at public auction of the delinquent property. 12 Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter.

    The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement:chanrob1es virtual 1aw library

    WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, Et Al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987;

    WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY;

    WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P214,845,184.76;

    NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter provided, the parties hereto have agreed as follows:chanrob1es virtual 1aw library

    1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby acknowledged.

    2. The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992.

    3. Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable.

    4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991.

    5. In consideration of settlement of NAPOCOR’s tax liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR’ properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY. 13 (Emphasis supplied).

    The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties "in consideration of settlement of Napocor’s tax liability."cralaw virtua1aw library

    Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price.

    The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC’s tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads:chanrob1es virtual 1aw library

    Date: July 29, 1992

    Received from National Power Corp.

    Manila

    In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,000.00.

    In payment of the following:chanrob1es virtual 1aw library

    For Partial Payment = P17,763,000.00

    of Realty Tax Delinquency of Case No. 87479, NPC

    vs. Province of Albay

    Total P17,763,000.00

    (Sgd.) Abundio M. Nuñez

    Provincial Treasurer 14

    Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: "That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay." chanrobles.com:cralaw:red

    Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows:chanrob1es virtual 1aw library

    WHEREAS, by virtue of the Memorandum Agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay;

    WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and Tagoytoy in Malinao to P981.00;

    WHEREAS, these tax benefits due then are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation. 15 (Emphasis supplied).

    As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears. Additionally, there would have been no need for the parties "to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184.76."cralaw virtua1aw library

    Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears.

    It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property. The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered o repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the NPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in regular course conformably with Section 87(c) of the Real Property Tax Code, which provides:chanrob1es virtual 1aw library

    (c) the proceeds of all delinquent taxes and penalties as well as the income realized from the use lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province city or municipality in the same proportion as if the tax or taxes had been paid in regular course.

    As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P17,763,000.00 was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA.

    The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that "Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations."cralaw virtua1aw library

    When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in the province’s general fund, P35,803,118.30 was disbursed or spent by the Province."cralaw virtua1aw library

    If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust 16 pursuant to Section 309(b) of the Local Government Code of 1991, which provides:chanrob1es virtual 1aw library

    Trust funds shall consist of private and public monies which have officially come into the possess on of the local government or of a local government official as trustee, agent or administrator . . . . A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit.

    As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President:chanrob1es virtual 1aw library

    It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province’s general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended).

    Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

    However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as ‘surplus adjustment’ (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

    We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC.

    IV.


    We agree with the petitioners that Governor Salalima could no longer be held administratively liable in O.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual v. Provincial Board of Nueva Ecija 17 and Aguinaldo v. Santos. 18 In Pascual, this Court ruled:chanrob1es virtual 1aw library

    We now come to one main issue of the controversy — the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office.

    In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe.

    Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2d. 401; Montgomery v. Nowell, 40 S.W. 2d 418; People ex rel. Bagshaw v. Thompson, 130 P. 2d 237; Board of Com’rs. of Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fudula, 147 A. 67; State v. Ward, 43 S.W. 2d. 217).

    The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. p. 45, citing Atty. Gen. v. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. As held on Conant v. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —

    The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregard or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people.

    This Court reiterated this rule in Aguinaldo and explicitly stated therein:chanrob1es virtual 1aw library

    Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioners for acts he may have committed during the failed Coup.

    However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official’s reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected.

    The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for act, alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

    We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not be held administratively liable in O.P. Case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet.

    Having thus held that the petitioners could no longer be administratively; liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue.

    WHEREFORE, the instant special action for certiorari is hereby partly GRANTED. That part of the challenged Administrative Order No. 153 imposing the penalty of suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo Azaña and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE, without prejudice to the filing of appropriate civil or criminal actions against them if warranted by the attendant circumstances.

    No pronouncement as to costs.

    SO ORDERED.

    Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, JJ., concur.

    Regalado, J., took no part.

    Endnotes:



    1. See also Article 131, Rules and Regulations Implementing the Local Government Code of 1991.

    2. Section 2, Article XVXII, 1987 Constitution; Section 43, Local Government Code of 1991.

    3. The Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60. Parenthetically, it may be observed that Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991 grants to the disciplining authority the power to remove an elective local official. Paragraph (b) of the said Article provides as follows:chanrob1es virtual 1aw library

    (b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, The Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. (Emphasis supplied)

    This grant to the "disciplining authority" of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. It is settled that no rule or regulation may alter, amend, or contravene a provision of law, like the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. (Regidor v. Chiongbian, 173 SCRA 507 [1989]. See also Teoxol v. Members of the Board of Administrators, PVA, 33 SCRA 585 [1970]; Manuel v. General Auditing Office, 42 SCRA 660 [1971]). No less than then principal author of the Local Government Code of 1991, Senator Aquilino Q. Pimentel, Jr., expresses doubts on the validity of this power of removal on the part of the disciplining authority which the Oversight Committee inserted in the Rules and Regulations. (AQUILINO Q. PIMENTEL, JR., The Local Government Code of 1991, The Key to National Development 171 [1993 ed.]).

    The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for involved is not just an ordinary public official out one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove by arbitrarily exercising the power to suspend in a manner that results in the removal of an elected official from office. As we aptly stated in Lacson v. Roque (92 Phil.. 456, 464 [1953]):chanrob1es virtual 1aw library

    [T]he abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove.

    The rationale against indefinite preventive suspension decreed in Layno v. Sandiganbayan (136 SCRA 536 C1985]) and in Ganzon v. Court of Appeals (200 SCRA 271 [1991]) may equally apply to the imposition of suspension as a penalty and must guide the action of disciplining authorities in imposing the penalty of suspension on elective local officials.

    4. See Caltex v. Commission on Audit, 208 SCRA 726 [1992].

    5. 70 O.G. No. 26 [1 July 1974], 5272-5313.

    6. Annexes "N" and "O" of Petition; Rollo, 147-148.

    7. Annex "P" Id.; Id., 149.

    8. Annex "Q" of Petition; Rollo, 151-152.

    9. Section 75, Real Property Tax Code.

    10. Section 81, Id.

    11. Section 78, Id.

    12. Section 81, Real Property Tax Code.

    13. Annex "K" of Petition; Rollo, 143-144.

    14. Annex "5" of Respondents’ Comment; Rollo, 325.

    15. Annex "10" of Respondents’ Comment, Rollo, 328.

    16. Fortunately, the Municipalities of Tiwi and Daraga and the National Government eventually received their respective shares, which were paid directly to them by the NPC pursuant to the directive of the Office of the President issued after the NPC requested clarification regarding the right of the municipalities concerned to share in the realty tax delinquencies. But this fact does not detract from the administrative liability of the petitioners. Notably, when the NPC advised the Province of Albay on 9 December 1992 that starting with the January 1993 installment it would pay directly to the Municipality of Tiwi by applying the sharing scheme provided by law, the petitioners passed on 19 December 1992 an ordinance declaring as forfeited in favor of the Province all the payments made by the NPC under the MOA and authorizing the sale of the NPC properties at public auction. This actuation of the petitioners reveals all the more their intention to deprive the municipalities concerned of their shares in the NPC payments.

    17. 106 Phil. 466 [1959].

    18. 212 SCRA 768 [1992].

    G.R. Nos. 117589-92   May 22, 1996 - ROMEO R. SALALIMA, ET AL. v. TEOFISTO T. GUINGONA, ET AL.


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