CAPÍTULO II: MARCO TEÓRICO
2.2 BASES TEÓRICAS
2.2.5 Clasificación de las cavidades
Elective Officials Administrative Action
AO 23, as amended by AO 159 (1994) and AO 66 (1999): Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Coverage: administrative disciplinary charges against:
(1) the governors, and members of the sangguniang panlalawigan;
(2) the mayors, vice mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent component cities, and component cities; and
(3) the mayors, vice mayors, and members of the sangguniang panlungsod or bayan of cities or municipalities in Metropolitan Manila
Disciplining Authority — The President, who may act through the Executive Secretary
May still constitute a Special Investigating Committee in lieu of the DILG Secretary;
Nothing shall prevent the President from assuming jurisdiction at any stage of the proceedings over cases to be preliminarily investigated by the DILG; in such an event, the same shall immediately be forwarded to the Special Investigating Committee after it may have been constituted by the Disciplining Authority.
Investigating Authority — DILG Secretary
(1) may constitute an Investigating Committee in the DILG for the conduct of investigation
Grounds
Grounds for administrative action (discipline, suspension, removal): MAD-VAD-CO
(1) Disloyalty to the Republic of the Philippines;
(2) Culpable violation of the Constitution;
(3) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(4) Commission of any offense involving moral turpitude or any offense punishable by at least prision mayor, which is from 6 years and 1 day to 12 years imprisonment;
(5) Abuse of authority;
(6) Unauthorized absence for 15 consecutive working days in case of local chief executives and 4 consecutive sessions in the case of members of the sanggunian;
(7) Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of another country; and
(8) Such other grounds as may be provided by the Local Government Code of 1991;
Republic Act No. 6713; Republic Act No.
3019; Administrative Code of 1987; Revised
Penal Code; and all other applicable general and special laws.
How Initiated
(1) by any private individual or any government officer or employee by filing a sworn Provincial or city official Office of the President Municipal official Sangguniang
Panlalawigan
Barangay official Sangguniang Panlungsod or Sangguniang Bayan Jurisprudence
Supervision and discipline. The President is not devoid of disciplinary powers because he merely has supervisory powers under the Constitution.
Supervision is not incompatible with disciplining authority. [Ganzon vs CA (1991)]
Valid delegation. Under AO 23, the delegation of the power to investigate to the Sec of Interior is valid.
What cannot be delegated is the power to discipline.
[Joson vs Torres, 290 SCRA 279]
Prejudicial question? The administrative investigation can proceed even during the pendency of an appeal of audit findings to the Commission on Audit [Salalima vs Guingona, 257 SCRA 55]
Jurisdiction Power of Tribunals
(1) The Ombudsman (Asked in 1999, 2003)
The Ombudsman and the Office of the President have concurrent jurisdiction to conduct administrative investigations over local elective officials. The LGC did not withdraw the power of the Ombudsman under RA 6770. [Hagad v. Gozo-Dadole (1993)]
Preventive Suspension
under RA 6770 Preventive Suspension under the LGC 1. the evidence of guilt
is strong; AND
1. there is reasonable ground to believe
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from office; or c. the respondent‘s
continued stay in office would prejudice the case filed against him
witnesses or pose a threat to the safety and integrity of the records and other evidence
Maximum period: 6 mos. Maximum period: 60 days It is not only the Ombudsman, but also his Deputy, who may sign an order preventively suspending officials. Also, the length of the period of suspension within the limits provided by law and the evaluation of the strength of the evidence both lie in the discretion of the Ombudsman. It is immaterial that no evidence has been adduced to prove that the official may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility. [Castillo-Co v.
Barbers (1998)]
(2) The Courts
RA 3019: The term ―office‖ in Sec. 13 of RA 3019 (pertaining to mandatory preventive suspension) applies to any office which the officer might currently be holding and not necessarily the particular office in relation to which the official is charged. The imposition of the suspension, though mandatory, is not automatic or self-operative. A pre-condition is the existence of a valid Information, determined at a pre-suspension hearing. [Segovia v.
Sandiganbayan (1999)]
(3) Sandiganbayan
PD 1606, as amended by RA 8249
It is the official‘s grade that determines his or her salary, and not the other way around. An official‘s grade is not a matter of proof but a matter of law which the court must take judicial notice. Under Sec. 444(d) of the LGC, the municipal mayor shall receive a minimum monthly compensation corresponding to SG 27. Thus, the cases filed against the petitioner are within the exclusive jurisdiction of the Sandiganbayan. [Llorente v. Sandiganbayan (2000)]
If the law states that a certain officer is within the jurisdiction of the Sandiganbayan, the fact that the officer's SG is below 27 does not divest jurisdiction.
[Inding v. Sandiganbayan (2004)]
RA 8249 provides that as long as one of the accused is an official of the executive branch occupying the position otherwise classified as SG 27 and higher, the Sandiganbayan exercises exclusive original jurisdiction. To vest Sandiganbayan with jurisdiction, public office must be an element of the crime OR that without the public office, the crime could not have been committed. [Rodriguez v. Sandiganbayan (2004)]
Preventive Suspension [Sec. 63, LGC]
(Asked in 1990, 1996)
Sole Objective: to prevent the accused official from hampering the investigation with his influence and authority over possible witnesses and keep him off
the records and other evidence. [Ganzon v. CA, (1991)]
[cf. suspension as a penalty]
It may be imposed by the Disciplining Authority in cases where the respondent is an elective official:
Local Elective Official of: Who may impose:
provinces
highly urbanized cities
independent component cities
President, through the DILG Secretary
municipalities
component city
Provincial Governor
barangay Mayor
The governor shall, upon the direct order of the Disciplining Authority, preventively suspend an elective official of a component city, who is under formal administrative investigation by the Office of the President.
When imposed: May be imposed at any time after the issues are joined (after respondent has answered the complaint)
BUT no preventive suspension shall be imposed within 90 days immediately prior to any local election. If the preventive suspension has been imposed prior to the 90-day period immediately preceding a local election, it shall be deemed automatically lifted upon the start of the period.
Grounds for Preventive Suspension:
(1) when the evidence of guilt is strong and, (2) given the gravity of the offense, there is a
great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence Period: Any single preventive suspension of local elective officials shall not extend beyond 60 days;
Provided that, in the event that several administrative cases are filed against an elective official:
he cannot be preventively suspended for more than 90 days within a single year
on the same ground or grounds existing and known at the time of the first suspension.
Expiration: the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him [which shall be terminated within 120 days from formal notice of the case]. HOWEVER, if the delay in the proceeding of the case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. [Sec.
63 (c)]
Compensation: officer shall receive no salary or compensation during such suspension; BUT, upon subsequent exoneration and reinstatement, he shall
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be paid his full salary or compensation, including such emoluments accruing during such suspension.
[Sec. 64, LGC]
The provincial governor is authorized to preventively suspend the municipal mayor any time after the issues have been joined and any of the following grounds were shown to exist:
(1) When there is reasonable ground to believe that the respondent has committed the act or acts complained of
(2) When the evidence of culpability is strong
(3) When the gravity of the offense so warrants
(4) When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.
There is nothing improper in suspending an officer before the charges are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. When a local government official believes that he has been wrongfully suspended, the proper procedure is to exhaust administrative remedies, i.e. seek relief from the DILG Secretary, and not to file a case in court. [Espiritu v. Melgar (1992)]
Piecemeal suspensions should not be issued. If there are several administrative cases against a public official, these cases should be consolidated for the purpose of ordering preventive suspension, instead of issuing an order of suspension for each case. Elective local officials should be given the benefit of simultaneous service of suspension. [Ganzon v.
CA (1991)]
NOTE: The ruling in this case as to simultaneous service of suspension is more of an exception than the rule, because of the following circumstances:
Three separate orders of 60-day preventive suspension were issued against Ganzon
Another order of preventive suspension was issued before the SC promulgated the decision ruling that suspension should not be issued piecemeal
The simultaneous service of suspension will lessen the harsh effects of whatever ill motive may be behind the successive suspension orders issued Rights of the Respondent Official: Full opportunity to:
(1) Appear and defend himself in person or by counsel
(2) Confront and cross-examine the witnesses against him
(3) Require attendance of witnesses and the production of documentary evidence in his favor through subpoena or subpoena duces tecum. [Sec. 65, LGC]
Due process. The petitioner has the right to a formal investigation under AO 23. Where the Sec denied the motion for a formal investigation and decided the case on the basis of position papers, the right of the petitioner was violated. [Joson vs Torres, 290 SCRA 279]
Form and Notice of Decision
(1) Shall be terminated within 90 days from start thereof.
(2) Office of the President or Sanggunian concerned to render decision
Within 30 days from end of investigation
In writing
Stating clearly facts and reasons (3) Furnish copies to respondent and interested
parties. [Sec. 66(a), LGC]
NOTE: Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. [Nachura]
Penalty of Suspension
Limitations: The penalty of suspension:
(1) shall not exceed the unexpired term of the respondent
(2) shall not exceed a period of 6 months for every administrative offense
(3) shall not be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. [Sec. 66, LGC]
When the respondent has been meted 2 or more penalties of suspension for 2 or more administrative offenses, such penalties shall be served successively [AO No. 159, Amending AO 23, Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials, 1994]
Removal
An elective local official may be removed by order of the proper court. [Sec. 60, LGC]
The penalty of removal from office as a result of administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. [Sec. 66(c), LGC]
[cf. effect of penalty of suspension]
Proper court order
Local legislative bodies and/or the Office of the President cannot validly impose the penalty of dismissal or removal from service on erring local elective officials. It is clear from Sec. 60 of LGC that an elective local official may be removed from office
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on the grounds enumerated above only by order of the proper court.
Art. 124 (b), Rule XIX of the Rules and Regulations Implementing the LGC, which states that ―an elective local official may be removed from office by order of the proper court or the Disciplining Authority whichever first acquires jurisdiction to the exclusion of the other‖ is void for being repugnant to Sec. 60, LGC.
But if it‘s appointive, the OP may remove. [Pablico v. Villapando (2002)]
Petitioners contest the administrative action as being violative of Sec. 60, which mandates that an elective local official may be removed from office only by order of the court, since the duration of the suspension being 12-20 months exceeded their remaining terms. The suspension was allegedly tantamount to a removal.
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.
Assuming for the moment that the Office of the President is correct in its decisions in each of the subject four administrative cases:
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.
What is important is that the suspension imposed for each administrative offense did not exceed six months. [Salalima v. Guingona (1996)]
Administrative Appeal
Within 30 days from receipt of decisions:
Decisions of: May be appealed before:
Sangguniang Panlungsod of component cities
Sangguniang Bayan
Sangguniang Panlalawigan
Sangguniang Panlalawigan
Sangguniang Panlungsod of:
- highly urbanized cities - independent
component cities
Office of the President
Office of the President final and executory; may not be appealed [Sec.
67, LGC]
An appeal shall not prevent a decision from becoming final or executory.
If respondent wins the appeal, he shall be considered as having been placed under preventive suspension during the pendency of the appeal.
If the appeal results in an exoneration, he shall be paid his salary and other emoluments during the pendency of appeal. [Sec. 68, LGC]
Sec. 68 of the LGC merely provides that an ―appeal shall not prevent a decision from becoming final or executory.‖ As worded, there is room to construe the provision as giving discretion to the reviewing officials to stay the execution of the appealed decision. [Berces v. Guingona (1995)]
The phrase ―final or executory‖ in Secs. 67 and 68 simply means that administrative appeal will not prevent the enforcement of the decision. [Mendoza vs Lacsina (2003)]
Effect of Re-election (Asked in 2000)
Re-election renders the administrative complaint against the local official moot and academic. A public official cannot be removed for administrative misconduct committed during a prior term, since the re-election to office operates as a condonation of the officer‘s previous misconduct to the extent of cutting off the right to remove him therefore. But this rule is applicable only to administrative cases, not to criminal cases. [Aguinaldo v. Santos (1992)]
Doctrine of Condonation
When re-election considered a condonation: if the proceedings are abated due to elections. In this case, there is no final determination of misconduct [Malinao v. Reyes (1996)]
Subsequent re-election cannot be deemed a condonation if there was already a final determination of his guilt before the re-election [Reyes v. COMELEC (1996)]
Appointive Officials
The appointing authority is generally the disciplining authority.
Disciplinary Jurisdiction [Sec. 87, LGC]
Except as otherwise provided by law, the local chief executive may impose:
(1) Removal from service (cf. elective officials) (2) Demotion in rank
(3) Suspension for not more than 1 year w/o pay
If not more than 30 days—not appealable
If more than 30 days—appealable to the CSC
(4) Fine not exceeding 6 months‘ salary (5) Reprimand
(6) Or otherwise discipline subordinate officials and employees under his jurisdiction.
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No remedy of appeal if the decision of the administrative case exonerated the office or employee. ―Party adversely affected‖ in PD 807 or
―The Philippine Civil Service Law‖ only refers to the government employee against which the case is filed. [Mendez vs. CSC (1991)]
The City Treasurer has authority to discipline his subordinates.
The power to discipline is specifically granted by the Revised Administrative Code to heads of departments, agencies and instrumentalities, provinces and cities.
The power to commence administrative proceedings against subordinate officers is granted by the Omnibus Rules to the secretary of department, head of office, head of LGU, chief of agency, regional director, or person with sworn written complaint.
The City Treasurer may also motu proprio institute disciplinary proceedings against subordinates.
These rules must be reconciled with the LGC, which gives the mayor the authority to institute administrative and judicial proceedings against any official or employee of the city. In cases involving employees of the city treasurer‘s office, the mayor must file his complaint with the treasurer‘s office or with the DOF. [Garcia vs. Pajaro (2002)]
[Sangguniang Bayan of San Andres v. CA (1998)]:
(Asked in 2000)
Requisites to constitute resignation:
(1) Intention to relinquish a part of the term (2) Act of relinquishment (3) Acceptance by the
proper authority
Essential elements of abandonment:
(1) Intent to abandon (2) Overt act by which
the intention is to be carried into effect
Removal
In interpreting its own rules as it did, the CSC was acting within its constitutionally delegated power to interpret its own rules. The CSC, by ruling that the employee took an automatic leave of absence, was merely interpreting its own rule on requirement of approved leave. [City Government of Makati City v.
CSC (2002)]
11. Recall
(Asked in 2002)
Recall is a mode of removal of a public official by the people before the end of his term of office.
[Garcia v. COMELEC, (1993)]
Who has the power of recall: Power of recall for loss of confidence is exercised by the registered voters of the LGU. [Sec. 69, LGC]
Effectivity: Upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election
on recall. Thus, if the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office. [Sec.
72, LGC]
Prohibition on resignation: An Elective local official sought to be recalled is not allowed to resign while the recall process is in progress. [Sec. 73, LGC]
Expenses: The Annual General Appropriations Act contains a provision for a contingency fund at the disposal of the COMELEC. [Sec. 75, LGC]
RA 9244: An Act Eliminating the Preparatory Recall Assembly as a Mode of Instituting Recall of Elective Local Government Officials, Amending for the Purpose sec. 70-71 of the LGC of 1991.
Sec. 70. Initiation of the Recall Process (PCPVA) Petition of a registered voter in the LGU concerned, supported by a percentage of registered voters during the election in which the local official sought to be recalled was elected.
(Percentage decreases as population of people in area increases. Also, the supporting voters must all sign the petition)
Within 15 days after filing, the COMELEC must certify the sufficiency of the required number of signatures. Failure to obtain the required number automatically nullifies the petition.
Within 3 days from certification of sufficiency, COMELEC provides the official with a copy of the petition and causes its publication for 3 weeks (once a week) in a national newspaper and a local newspaper of general circulation. Petition must also be posted for 10 to 20 days at conspicuous places.
PROTEST SHOULD BE FILED AT THIS POINT and ruled with finality 15 days after filing.
COMELEC verifies and authenticates the signatures.
COMELEC announces acceptance of candidates Election on Recall
COMELEC sets election within 30 days upon completion of previous section in barangay/city/municipality proceedings (45 days in case of provinces).
Officials sought to be recalled are automatically
Officials sought to be recalled are automatically