Later on, he designated his brother to the position of Provincial Administrator a position in the Career Civil Service. Laurel contends that he did not violate the law on nepotism because he merely designated his brother not appointed him. Designation presupposes that he has already been appointed and merely given additional function.
SC: The appointment or designation as Acting Provincial Administrator was violative of the prohibition against nepotism, then embodied in Section 49 PD No. 807. Moreover, the Court emphatically agrees with the CSC that although what was extended to Benjamin was merely a designation and not an appointment xxx the prohibitive mantle on nepotism would include designation because what cannot be done directly cannot be done indirectly.
We cannot accept petitioner‘s view. His specious and tenuous distinction between appointment and designation is nothing more than either a play ingeniously conceived to circumvent the rigid rule on nepotism or a last ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. ―Designation‖ is also defined as all appointment or assignment to a particular office, and ―to designate‖ means to indicate, select, appoint, or set apart for a purpose of duty.
*for purposes of the law on nepotism, appointment and designation are the same.
7. Section 90, LGC – ―Practice of Profession –
(a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours, Provided, that sanggunian members who are also members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official;
and
(4) Use property and personnel of the Government except when the Sanggunian member concerned is defending the interest of the government.
(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency. Provided, that officials concerned do not derive monetary compensation therefrom.
Q: Can a mayor practice his profession?
A: No.
Q: Can members of the sanggunian practice their profession?
A: Yes, except during session hours.
Q: Can Vice mayor exercise his profession?
A: Yes. Vice Mayor belongs to the legislative, while sanggunian members must be interpreted in general terms. There is no prohibition. Hence, the Vice Mayor can e belongs to the legislative, while sanggunian members must be interpreted in general terms. There is no prohibition. Hence, the Vice Mayor can exercise or practice his profession. However, in case the Vice Mayor becomes acting mayor or acting governor, he cannot practice or exercise his profession because in such case then, he exercises an executive position.
(Atty. Sandoval) JAVELLANA vs. DILG
Atty. Javellana is a member of the Sanggunian Panlalawigan. Two of the employees of the Provincial Engineer‘s Office were removed. They asked for his assistance and so Atty. Javellana appeared in their behalf. He was prohibited from appearing on the ground that the same is prohibited by the LGC where the adverse party is the government. He went to the Supreme Court and challenged the constitutionality of Section 90, LGC on two grounds: 1) the provision is unconstitutional because it encroached the power of the Supreme Court to regulate the practice of law; and 2) the provision violates the equal protection clause because the law profession was singled out.
SC: There is no encroachment on the power of the SC to regulate the practice of law. Section 90 LGC is a reasonable regulation designed to ensure that there shall be no conflict of interest in the
exercise of his functions as a sanggunian member and his function as a lawyer.
There is no violation of the equal protection clause. Under the equal protection clause, not all classifications are invalid. There is a substantial distinction between the law profession and the other professions. Of all the professions, it is this profession that is most likely to affect the area of public service.
Moreover, Section 90 LGC does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged n any occupation. It explicitly provides that Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours. If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.
8. SEC. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
VACANCIES AND SUCCESSIONS (Section 44-45, LGC)
Section 44, LGC – ―Permanent vacancies in the offices of the Governor, Vice Governor, Mayor and Vice Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member shall become the governor, vice governor, mayor or vice mayor as the case may be. Subsequent vacancies in the said offices shall be filled automatically by the other sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sangguniang barangay member or in case of his permanent inability, the second highest ranking sanggunian member shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuse to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this chapter, 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 local election.
*In case of permanent vacancy (section 44) automatic succession applies, so in case of death of mayor, the vice mayor succeeds, in case of the vice mayor, the highest ranking sangguniang member succeeds.
Illustration:
Q: For purposes of succession, how do you determine ranking?
A: For purposes of succession, 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 local election (sec 44, LGC last par)
*Therefore Mario is the highest ranking member.
Q: Who is ranking between Pedro and Jose?
A: A tie between or among the highest ranking Sanggunian members shall be resolved by the drawing of lots. (Sec. 44 par c, LGC)
Q: Let us assume that 8 sanggunian members, the last ranking died. What happens?
A: Apply sec. 45 LGC, not the rule on automatic succession.
Section 45, LGC – ―Permanent vacancies in the Sanggunian – (a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner:
(1) The President, through the executive secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities;
(2) The governor, in the case of the sangguniang panlungsod of component cities and sanggunian bayan;
(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned.
(b) 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 in the manner herein after provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment therein mentioned, a nomination and 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 certification shall be null and void ab initio and shall be ground for administrative action against the official responsible therefor.
(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.
Q: Who shall appoint?
A: (1) Sangguniang Bayan
Governor
Sangguniang PAnglungsod in component cities (2) Sangguniang Panglungsod of Highly Urbanized Cities
Sangguniang Panglungsod of Independent Component Cities President
Sangguniang Panlalawigan
*If one who will be replaced belongs to a political party, the successor must come from the same political party.
If he does not belong to a political party then apply Sec. 45(c) Q: Who shall appoint?
A: Local chief executive upon the recommendation of the sanggunian concerned.
FARIÑAS vs. BARBA
The last ranking sanggunian bayan member who did not belong to any political party resigned. To fill the vacancy, both the mayor and the governor appointed their own choice.
SC: Neither of the two appointees should assume position.
Sec 45 (c) LGC must be read together with Sec 45 (a). Since this is a municipality, the governor should appoint but with the recommendation of the sanggunian concerned which is the sanggunian bayan where the 6th Sanggunian Member……….. Lakas NUCD 7th Sanggunian Member……….. Reporma 8th Sanggunian Member……….. Lakas NUCD Therefore in the Sanggunian, there were 6 Reporma and 2 Lakas.
The mayor died. The Vice mayor became the Mayor. The last ranking position became vacant so the governor appointed someone from Reporma.
Lakas protested because the vacancy came from Lakas.
SC: Governor is correct. What is crucial is the interpretation of Sec. 45 (6). The reason behind the right given to the political party to nominate a replacement is to maintain the party representation as willed by the people in the election.
With the elevation of Tamayo (Reporma) as the Vice Mayor it diminished the Reporma‘s representation in the Sanggunian. Hence, the one appointed should come from Reporma.
GAMBOA JR. vs. AGUIRRE JR. July 20, 1994
The governor went abroad. He was away for 3 months. Governor issued an administrative order designating the Vice governor as acting governor. The acting governor wants to preside in the session of the sanggunian.
SC: Being the acting governor, he cannot simultaneously exercise the functions of his office. The power of the vice governor to preside over sanggunian session is suspended as long as he is the acting governor.
The creation of temporary vacancy in the office of the governor creates a corresponding vacancy in the office of the vice governor.
Q: Then who will preside in the meantime?
A: Under sec. 49 (b) LGC – ―In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.― Hence, the members present and constituting a quorum shall elect from themselves the temporary presiding officer. Do not apply the rule in permanent vacancy.
Q: Who appoints the barangay treasurer, secretary and other appointive officials of the barangay?
A: Punong barangay appoints barangay secretary, treasurer, and other appointive official with the approval of the majority of the members of the sangguniang barangay. (ALGUIZOLA vs. GALLARDO)
The power of appointment is exercised with approval of sanggunian, therefore in removing or replacing an appointive official, there must also be approval of the majority of sanggunian barangay members.
Sec. 388, LGC – ―Persons in authority – For purposes of the RPC, the punong barangay, sanggunian barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdiction, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment and any barangay member who comes to the aid of persons in authority shall be deemed agents of persons in authority.
RECALL
- Provided in Section 69-75, LGC. This is a mode of removing a local elective official before the expiration of his term.
GARCIA vs. COMELEC
- There is no need for a criminal charge before a recall may be initiated.
- There is only one ground, loss of confidence EVARDONE vs. COMELEC
Hence, he is prohibited from resigning.
* There is only one way of initiating a recall – through a petition signed by at least:
25% of registered voters – below or 20,000 total registered voters of LGU concerned
20% of registered voters – more than 20,000 but less than 75,000
total registered voters of LGU
concerned
15% of registered voters – more than 75,000 but less than 300,000
total registered voters of
A was a mayor, a year after his election was sought to be recalled.
There was a recall process initiated by only one person. The COMELEC approved the petition and assigned a signing day. Angubong went to the SC alleging grave abuse of discretion.
SC: The petition for recall signed by only one person is a violation of the 25% statutory requirement. The law is plain and unequivocal as to what constitutes a recall proceeding.
LIMITATION ON RECALL (SEC.74)
a. An elective official can be subjected to recall only once
b. No recall shall take place within one year from the assumption of office or one year immediately preceding a regular local election.
PARAS vs. COMELEC
Paras was a punong barangay. There was a petition for recall. The SK election was scheduled during that year when the petition was filed. The contention of PAras was that there would be a regular election; hence the recall cannot push through.
SC: The term regular local election refers to one where the position of one sought to be recalled is actually to be contested and filled by the electorate.
ANGOBUNG vs. COMELEC
The limitation on recall shall not apply if the official sought to be recalled is a Mayor and the forthcoming election is a barangay election.
CLAUDIO vs. COMELEC
The issue in this case is the interpretation of ―within one year from the date of assumption to office.‖ Claudio was elected as Mayor. His term started 30 June 1998. On 19 May 1999, members of the then Preparatory Recall Assembly convened on their plans to initiate a petition for recall against Claudio. On 29 May 1999, majority of the members of the PRA adopted a resolution calling for the recall of Mayor Claudio. It was submitted 2 July 1999. The Comelec scheduled a special recall election.
SC: the resolution was validly adopted. The recall refers to the election itself wherein the voters themselves decide whether or not to retain the official concerned. It does not refer to the initiation proceedings.
SOCRATES vs. COMELEC
On May 2001, the governor elected was Socrates. 2 July 2002, members of the Preparatory Recall Assembly adopted a resolution calling for the recall of Governor Socrates. 24 September 2002 there would be a recall election. On 15 July 2002, there was a barangay election. Most of the members who signed the recall resolution lost in the election. Hence, it was contended that those who signed have no mandates because they lost in the election.
SC: The contention is not correct, when the members adopted the resolution, their term of office have not yet expired. They were still de jure officers with no legal disqualification to participate.
AFIALDO vs. COMELEC
Miranda was elected Mayor. On the other hand, Navarro was elected the Vice Mayor. Members of the Preparatory Recall Assembly adopted a resolution calling for the recall of Vice mayor Navarro. Mayor Miranda was removed by SC. The Vice mayor assumed office.
SC: The recall elections become moot and academic. It is clear from the resolution that they wanted to remove him from being a vice mayor.
AFIALDO vs. COMELEC
Before vice mayor Amelita Navarro assumed mayorship, Joel Miranda was still mayor. Decision in MIRANDA vs. ABAYA was not yet promulgated. When she was vice mayor, the members of the PRA of Santiago City adopted a resolution calling for the recall of vice mayor. This resolution was submitted to Comelec. A special recall election was then scheduled. Meanwhile the decision in the Miranda vs. Abaya was promulgated. Vice mayor Navarro assumed the mayorship upon the removal of Joel Miranda as mayor. What happens now to the special recall election for vice mayor?
SC: it has been rendered moot and academic. It is clear from the resolution of the members of the preparatory center of Santiago City that they wanted to recall her as vice-mayor. They got what they wanted. She is no longer the Vice-mayor. She is now the Mayor.