1.
An erring elective local officials has rights akin to the constitutional rights of an accused. These are essentially part of procedural due process. The local elective official has the (1) right to appear and defend himself/ herself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him/ her; and (3) the right to compulsory attendance of witness and the production of documentary evidence. Thus, the official’s right to a formal investigation was not satisfied when the complaint against him/ her decided on the basis of position papers. Theprovisions for administrative disciplinary actions elective local officials are markedly different from appointive officials. The rules on the removal and suspension of elective local officials are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive officials but not to those elected. An elective official, elected by popular vote, is directly responsible to the community that elected him/ her. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the services of the official they had elected. (Joson v. Torres, GR 131255, 05.20.98)
2.
The essence of procedural due process isembodied in the basic requirement of notice and a real opportunity to be heard. In administrative proceedings, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of. Procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. Kinship alone does not establish bias and partiality. Bias and partiality cannot be presumed. In administrative proceedings, no less than substantial proof is required. Mere allegation is not equivalent to proof. Mere suspicion of partiality is not enough. There should be hard evidence to prove it, as well as manifest showing of bias and partiality stemming from an extrajudicial source or some other basis.
(Casimiro v. Tandog, GR 146137, 06.08.2005)
3.
An administrative complaint against an erring elective official must be verified and filed with the proper government office. A complaint against an elective provincial or city must be filed with the Office of the President. A complaint against an elective municipal official must be filed with the SangguniangPanlalawigan while that of a barangay official must be filed before the Sangguniang Panlungsod or Sangguniang Bayan.
(Mendoza v. Laxina, GR 146875, 07.14.2003)
4.
The lack of verification in a letter-complaint may be waived, the defect being not fatal. Verification is a formal, not jurisdictional requites. (Joson v. Torres GR 131255,05.20.98)
5.
Decisions of the Office of the President are final and executory. No motion for reconsideration is allowed by law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay the execution of the decision. The Secretary of the Interior and Local Government may validly move for its immediate execution. (Calingin v. Court ofAppeals, GR 154616, 07.12.2004)
6.
Direct recourse to the courts without exhausting administrative remedies is not permitted. Thus, a mayor who claims that the imposition of preventive suspension by the governor was unjustified and politically motivated, should seek relief first from the Secretary of the Interior and Local Government, not from the courts. (Espiritu v.Melgar, GR 100874, 02.13.92)
7.
The 1991 Local Government Code does not preclude the filing of an appeal of a decision of a sangguniang panlungsod involving an elective barangay official. Section 68 of the Code specifically allows a party to appeal to the Office of the President. The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be. (Mendoza v. Laxina, GR 146875,07.14.2003)
8.
Under Section 61 of the 1991 Local Government Code, 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. When appeal to the Office of the President is available, resort to filing a petition for certiorari, prohibition and mandamus with the Court of Appeals under Rule 65, 14 was inapt. The availability of the right of appeal precludes recourse to the special civil action for certiorari. (Balindong v.Dacalos, GR 158874, 11.10. 2004)
9.
No notice of the session where a decision of the sanggunian is to be promulgated on the administrative case is required to be given to the petitioner. The deliberation of the sanggunian is an internal matter. In order torender a decision in administrative cases involving elective local officials, the decision of the sanggunian must be writing stating clearly and distinctly the facts and the reasons for the decision. Thus, the voting following the deliberation of the members of the sanggunian did not constitute the decision unless this was embodied in an opinion prepared by one of them and concurred in by the others. Until the members have signed the opinion and the decision is promulgated, they are free to change their votes. (Malinao v. Reyes, GR 117618,
03.29.96)
10.
The filing of motion for reconsideration before the supervising local government concerning a disciplinary case involving an elective official of the supervised unit prevents the decision of the former from becoming final. Thus, there is thus no decision finding the official guilty to speak of which would disqualify said official. (Lingating v. Comelec,GR 153475, 11.13.2002)
11.
Under the 1991 Local Government Code, an elective local official must be citizen of the Philippines. One who claims that a local official is not has the burden of proving his/ her claim. In administrative cases and petitions for disqualification, the quantum of proof required is substantial evidence.(Matugas v. Comelec, GR 151944, 01.20.2004)
12.
The Office of the President is authorized to stay the execution of a decision against a municipal mayor issued by the Sangguniang Panalawigan pending appeal. Reviewing officials are not deprived of their authority to order a stay an appealed decision. Supervising officials are given such discretion. (Berces v. Guingona, 241 SCRA539)
14. Complaints
1.
A verified complaint against provincial, highly urbanized city or independent component city elective official, shall be filed before the Office of the President.a)
It may be noted that the Constitution places local governments under the supervision of the Executive. Likewise, the Constitution allows Congress to include in the Local Government Code provisions for removal of local officials, which suggest that Congress may exercise removal powers. So, the Local Government Code has done and delegated its exercise to the President. Note also that legally, supervision is not incompatible with disciplinary authority. (Ganzon v. CA, 200 SCRA 271)b)
Under Administrative Order No. 23, thePresident has delegated the power to investigate complaints to the Secretary of
Interior and Local Government. This is valid delegation because what is delegated is only the power to investigate, not the power to discipline. Besides, the power of the Secretary of Interior and Local Government to investigare is based on the alter ego principle. (Joson v. Torres, 290 SCRA 279)
c)
The respondent has the right to formal investigation under Administrative Order No. 23 which includes the right to appear and defend himself in person or by counsel, the right right to confront the witnesses against him and the right to compulsory process for the attendance of witnesses and the production of documents. Thus, in this case, where the Secretary denied the petitioners motion for a formal investigation and decided the case on the basis of position papers, the right f the petitioner was violated (Joson v. Torres) In Salalima v. Guingona, 257SCRA 55, the SC said that the administrative
investigation can proceed even during the pendency of an appeal of audit findings to the Commission on Audit.
2.
A verified complaint against elective municipal officials, shall be filed before the sangguinian panlalawigan, whose decision may be appealed to the Office of the President.a)
Administrative Order No. 18 dated February 12, 1987, which provides that on appeal from the decision of the Sangguniang Panlalawigan, the President may stay execution of the appealed decision, was deemed not to have been repealed by RA 7160 did not expressly repeal the administrative order, and implied repeals are frowned upon. (Berces v. Executive Secretary, 241 SCRA 539)b)
The decision of the sanggunian panlalawigan in administrative cases involving elective officials may be in writing stating clearly and distinctly the facts and the reasons for the decision, and must be signed by the requisite majority of the sanggunian. (Malinao v. Reyes, 256 SCRA 616)3.
A valid complaint against elective barangay officials, shall be filed before the sangguniang panglungsod os sagguniang bayan concerned, whose decision shall be final and executor. 15. Preventive Suspension (Agra Notes)1.
Nature. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation.Purpose. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him.If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. Not being a penalty, the
period within which one is under preventive suspension is not considered part of the actual penalty of suspension. Thus, service of the preventive suspension cannot be credited as service of penalty. (Quimbo v. Gervacio,
GR 155620,08.09.2005)
2.
Pre-requisites. A preventive suspension may be imposed by the Disciplinary Authority at any time (a) after the issues are joined i.e. respondent has filed an answer; (b) when the evidence of guilt is strong; and (c) given the gravity of the offenses, there is great probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. These are the pre-requisites. However, the failure of respondent to file his/ her answer despite several opportunities given him/ her is construed as a waiver of his/ her right to present evidence in his/ her behalf. In this situation, a preventive suspension may be imposed even if an answer has not been filed. (Joson v. Torres, GR 131255, 05.20.98)3.
Section 63 of the Local Government Code which provides for a 60 day maximum period for preventive suspension for a single office does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government. The Ombudsman’s power of preventive suspension is governed by Republic Act No. 6770 otherwise known as “The Ombudsman Act of 1989”. Under the Act, the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months. (Miranda v. Sandiganbayan, GR154098, 07.27.2005)
4.
Under the 1991 Local Government Code, a single preventive suspension of local elective officials should not go beyond 60 days. Thus, the Sandiganbayan cannot preventively suspend a mayor for 90 days. (Rios v.Sandiganbayan, GR 129913, 09.26.97)
5.
A municipal official placed under preventive suspension by a sangguniang panlalawigan must file a motion for reconsideration before the said sanggunian before filing a petition for certiorari with the Court of Appeals. Such motion is a condition sine qua non before filing a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. (Flores v. SangguniangPanlalawigan of Pampanga, GR 159022, 02.23.2005)
6.
There is nothing improper in placing an officer in preventive suspension before charges against him/ her are heard and before he/she is given an opportunity to prove his/her innocence. This is allowed so that such officer may not hamper the normal course of the investigation through the use of his/ her influence and authority. (Espiritu v. Melgar,GR 100874, 02.13.92)
7.
The Ombudsman pursuant to Republic Act No. 6770 and the President are both authorized to place under preventive suspension erring local officials of highly- urbanized cities, independent cities and provinces. The Ombudsman may impose a longer period of preventive suspension than the President may. In order to justify the preventive suspension of a public official under Section 24 of Republic Act No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent’s continued stay in office would prejudice the case filed against him/her. The Ombudsman can impose the 6-month preventive suspension on all public officials, whether elective or appointive, who are under investigation. On the other hand, in imposing the shorter period of sixty (60) days of preventive suspension under the 1991 Local Government Code on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed that act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) 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. (Hagad v. Gozo-dadole, GR108072, 12.12.95)
Who may impose preventive suspension. Preventive suspension may be imposed by the President, the governor, or the mayor [as the case may be] at any tome after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is 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; provided that any single preventive suspension shall not extend beyond 60 days, and in the event several administrative cases are filed against the respondent, he cannot be 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.
1. The authority to preventively suspend is exercised concurrently by the Ombudsman, pursuant to RA 6770; the same law authorizes a preventive suspension of six months. (Hagad v. Gozo-Dadole, 1995)
The preventive suspension of an elective local official (in this case the Mayor of San Fernando, Romblon) by the Sandignabayan on a charge of violation of RA 3019, shall likewise be only for a period of 60 days, not 90 days, consistent with Section 63, RA 7160, which provides that “any single preventive suspension of local elective officials shall not extend beyond 60 days.” (Rios v. Sandiganbayan, 1997)
2. Upon expiration of the preventive suspension, the respondent shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within 120 days from the time he was formally notified of the case against him. 3. Any abuse of the exercise of the power of
preventive suspension shall be penalized as abuse of authority.
16. Penalty (Agra Notes)
1.
Under Section 60 of the 1991 Local Government Code, the penalty of dismissal from service upon an erring local official may be declared only by a court of law. Thus, Article 124(b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, which grants the disciplinary authority the power to remove elective local officials, is a nullity. (Pablico v.Villapando, GR 147870, 07.31.2002)
2.
A sanggunian panlalawigan may cause the removal of a municipal mayor who did not appeal to the Office of the President within the reglemantary period the decision removal him/ her from office. If a public official is not removed before his/ her term of office expires, he/ she can no longer be removed if he/she thereafter re-elected for another term. Therefore, a decision removing an elective local official, which has become final before the election, constitutes a disqualification.(Reyes v. Comelec, GR 120905, 03.07.96)
3.
The President may suspend an erring provincial elected official who committed several administrative offenses for an aggregate period exceeding 6 months provided that each administrative offense, the period of suspension does not exceed the 6- month limit. (Salalima v. Guingona, GR117589-92, 05.22.96)
4.
Dishonesty , oppression, misconduct in office, gross negligence, or an offense punishableby at least prison mayor constitute grounds for removal upon order of the proper court. (Castillo-Co v. Barbers GR 129952, 06.16.98) The penalty of suspension imposed upon the respondent shall not exceed his unexpired term, or a period of 6 months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent as long as he meets the qualifications required for the office.
1.
In Pablico v. Villapando, 2002, it was held that by virtue of Section 60 of the LGC, which provides that “an elective local official may be removed from office on grounds enumerated above by order of the proper court,” the penalty of dismissal form the service may be imposed upon an erring local elective official only by a court of law. The provision of the Implementing Rules and Regulations granting the disciplining authority the power to remove an elective local official administratively are invalid.2. Note that under Section 40 of the Local Government Code, the penalty of removal form office as a result of an administrative case shall be a bar to the candidacy of the respondent for any elective local office.