FAUNA

46)

Permanent Vacancies- A permanent vacancy

arises when an elective local officials fills higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is permanently incapacitated to discharge the functions of his office. If a permanent vacancy occurs in the office of:

1. Governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor.

2.

Vice-governor or vice-mayor, the highest ranking sanggunian member or, in case of permanent inability, the second highest ranking sanggunian member, and subsequent vacancies shall be filled automatically by the other sanggunian members according to their ranking. Ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding election.

a)

In Victoria v. Comelec, 229 SXRA 269, the SC rejected the contention that this provision be interpreted by factoring the number of the voters who actually voted, because the law is clear and must be applied— and the courts may not speculate as the probable intent of the legislature apart form the words used in the law.

b)

In Menzon v. Petilla, 197 SCRA 251, it was held that this mode of succession for permanent vacancies may also be observed in the case of temporary vacancies in the same office.

3. Punong barangay, the highest- ranking sanggunian barangay member, or in case of his permanent inability, the second highest ranking barangay member. [Note: A tie between or among the highest ranking sanggunian members shall be resolved by drawing of lots.]

4.

Sangguniang member, where automatic succession provided above do not apply: filled by appointment by the President, through the Executive Secretary in the case of the Sanggunian Panlalawigan or sanggunian panlungsod of highly urbanized cities and independent component cities; by the Governor in the case of the sangguniang panlungsod of component cities and sangguniang bayan; and by the city or municipality mayor in the case of sangguniang barangay upon recommendation of the sangguniang barangay concerned.

However, except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed.

A nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certificate shall be null and void and shall be a ground for administrative action against the official concerned.

In case the permanent vacancy is caused by a sangguniang member who does not belong to any political party, the local chief executive shall upon the recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.

a)

The reason behind the right given to a political party to nominate a replacement when a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. (In this case, with the elevation of Tamayo, who belonged to Reforma-LM to the position of Vice Mayor, a vacancy occurred in the Sangguninan that should be filled up with someone who belongs to the political party of Tamayo. Otherwise, Reforma-LM’s representation in the Sanggunian would be diminished. To argue that the vacancy created was that formerlyheld by the 8th _{Sanggunian member, a Lakas-}

NUCD-Kampi member, would result in the increase in that party’s representation in the Sanggunian at the expense of Reforma-LM. (Navarro v. CA, 2001)

b) The appointment to any vacancy caused by the cessation from office of a member of the sangguniang barangay must be made by the mayor upon the recommendation of the sanggunian. The recommendation by the

sanggunian takes the place of nomination by the political party (since members of the sangguniang barangay are prohibited to have party affiliations) and is considered as a condition sine qua non for the validity of the appointment.

In Farinas v. Barba, 256 SCRA 396, where vacancy to be filled was that of a member of the Sangguniang Bayan who did not belong to any political party, the SC held that neither the petitioner nor the respondent was validly appointed. Not the petitioner, because although he was appointed by the Governor, he was not recommended by the Sanggunian Bayan. Neither the respondent, because although he was recommended by the Sanggunian Bayan, he was not appointed by the Governor.

5. Vacancy in the representation of the youth and the barangay in the sanggunian: filled automatically by the official next in rank of the organization concerned.

In Garvida v. Sales, 271 SCRA 767, the SC pointed out that under the LGC, the member of the Sangguniang Kabataan who obtained the next highest number of votes shall succeed the Chairman if the latter refuses to assume office, fails to qualify, is convicted of a crime, voluntary resigns, dies is permanently incapacitated, is removed from office, or has been absent without leave for more than three consecutive months. Ineligibility is not one of causes enumerated in the Local Government Code. Thus, to avoid hiatus in the office of the Chairman, the vacancy should be filled by the members of the Sangguniang Kabataan chosen by the incumbent SK members by simple majority from among themselves. Other Cases on “Succession”

1.

Vice-governor acting as governor cannot continue to preside over sangguniang panlalawigan sessions while acting as such.

(Gamboa v. Aguirre, GR 134213, 07.20.99)

2.

Under Section 444(b)(1)(xiv) of the 1991 Local Government Code,applications for leave of municipal officials and employees appointed by the Mayor shall be acted upon by him/her, not by the Acting Vice-Mayor. (Civil

Service Commission v. Sebastian, GR 161733, 10.11.2005)

3.

In case of vacancy in the Sangguniang Bayan, the nominee of the party under which the member concerned was elected and whose elevation to the higher position created the last vacancy will be appointed. The last vacancy refers to that created by the elevation of the councilor as vice-mayor. The reason behind the rule is to maintain party representation. (Navarro v.

The ranking in the sanggunian shall be determined on basis of the proportion of the votes obtained by each winning candidate to the total number of registered voters. The law does not provide that the number of votes who actually voted must be factored in the ranking.

(Victoria v. Comelec, GR 109005, 01.10.94)

4.

The prohibition on midnight appointments only applies to presidential appointments. There is no law that prohibits local elective officials from making appointments during the last days of his/ her tenure. (De Rama v. Court of Appeals, 353

SCRA 94)

In accordance with Section 44 of the 1991 Local Government Code, the highest ranking sangguniang barangay member, not the second placer, who should become the punong barangay in case the winning candidate is ineligible. (Bautista v. Comelec,

GR 154796, 10.23.2003; Toral Kare v.

Comelec, GR 157526/ 157527, 04.28.2004) Temporary Vacancies

1.

When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad and suspension form office, the vice governor, city or municipal vice mayor, or the highest ranking sanggunian barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can be exercised only if the period of temporary incapacity exceeds thirty working days. (Said temporary incapacity shall terminate upon submission to the appropriate sanggunian of a written declaration that he has reported back to office. In case the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that the legal causes no longer exists.)

2. When the local chief executive is travelling within the country but outside this territorial jurisdiction for a period not exceeding three consecutive days, he may designate in writing the officer-in-charge of the said office. Such authorization shall specify the powers and functions that the local official shall exercise in the absence of the local chief executive, except the power to appoint, suspend or dismiss employees. (If the local chief executive fails or refuses to issue such authorization, the vice-governor, city or municipal vice-mayor, or the highest ranking sanggunian barangay member, as the case may be , shall have the right to assume the

powers, duties and functions of the said office on the fourth day of absence of the local chief executive, except the power to appoint., suspend or dismiss employees.)

7. Compensation (RA 7160, Section 81)

The compensation of local officials and personnel shall be determined by the sanggunian concerned, subject to the provisions of RA 6758 [Compensation and Position Classification Act of 1989). The elective barangay officials shall be entitled to receive honoraria, allowances and other emoluments as may be provided by law or barangay, municipal or city ordinance, but in no case less than 1,000 per month for the punong barangay and P600.00 for the sanggunian members.

Elective officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials, including the cumulation and commutation thereof.

8. Recall

Recall is the termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of electorate.

1.

Initiating the process of recall through the convening of the Preparatory Recall Assembly (PRA) is constitutional. The Constitution empowers Congress to provide effective means of recall. The adoption of the PRA resolution is not the recall itself. (Garcia

v. Comelec, GR 111511, 10.05.93)

2.

Loss of confidence as a ground for recall is a political question. (Garcia v.

Comelec, GR 111511, 10.05.93)

3.

Another resolution by the Preparatory Recall Assembly must be adopted to initiate the recall of a vice-mayor who, before the recall election, became the mayor. (Afiado v.

Comelec, GR 141787, 09.18.2000)

4.

The Preparatory Recall Assembly is distinct from liga ng mga barangay. Barangay officials who participated in recall did so not as members of the liga but as PRA members.

(Malonzo v. Comelec, GR 127066, 03.11.97)

5.

Notice to all members of the Preparatory Recall Assembly is a mandatory requirement. (Garcia v. Comelec, GR

111511, 10.05.93)

6.

Notice may be served by president of the liga ng mga barangay who is also a member of the Preparatory Recall Assembly.

(Malonzo v. Comelec, GR 127066, 03.11.97)

7.

Service of notice may be effected under any of the modes of service of pleadings – personal, by registered mail.

8.

The 1-year ban (from assumption and next election) refers to the holding of the recall election, not the convening of the PRA.

(Claudio v. Comelec, GR 140560/ 714, 05.04.2000)

9.

The ‘regular recall election’ mentioned in the 1-year proscription refers to an election where the office held by the local elective official sought to be recalled will be contested and filled by the electorate. (Paras

v. Comelec, GR 123169, 11.04.96; Jariol v. Comelec, GR 127456, 03.20.97)

10.

A party aggrieved by the issuance of Comelec en banc resolution (calendar of activities for recall election) when he/ she had sufficient time, must file a motion for reconsideration with Comelec en banc.

(Jariol v. Comelec, GR 127456, 03.20.97) 9. Resignation (RA 7160, Section 82)

Resignation of elective local officials shall be deemed effective only upon acceptance by the following authorities:

a) The President, in case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities.

b) The governor, in the case of municipal mayors and vice-mayors, city mayors and vice-mayors of component cities. c) The sanggunian concerned, in case of sanggunian members.

d) The city or municipal mayor, in the case of barangay officials.

[Note: The resignation shall be deemed accepted if not acted upon by the authority concerned within 15 working days from receipt thereof. Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records, except where the sanggunian members are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.]

In document INDICE 1. ANTECEDENTES DE LA GESTIÓN DEL MONTE NORMATIVA APLICABLE EVOLUCIÓN DEL ESTADO LEGAL ORDENACIÓN Y EVOLUCIÓN DE (página 74-77)