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ADMINISTRATIVE LAW QUIZZLERS - VILLAROMAN

THE OMBUDSMAN AND THE SANDIGANBAYAN PRELIMINARIES

Pertinent Laws: RA 3019: Anti-Graft and Corrupt Practices Act RA 6713: Code of Conduct and Ethical Standards for Public Officials and Employees RA 7080: Plunder Law RA 1379: Forfeiture Law/Unexplained Wealth Act

1. Why is it important to define the term public officers?

The definition of public officer is important in graft and corruption cases because being one is an essential element of most violations of anti-corruption laws

In fact, an accused may attempt to seek the dismissal of the case against him on the ground that:

o He is not a public officer to begin with o He occupies an ad hoc/temporary office o He receives nominal salary o He performs proprietary functions o His position is that of a private entity

1.1 Can a private individual still commit graft and

corruption? YES

Sec 4(b) and 5 of RA 3019

Article 222 of the RPC: A private individual who has in his charge any of the public funds or property enumerated in 217-221 can be penalized the same way as public officers

2. What are the definitions of a public officer as per the

law?

RPC: Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Republic of the Philippines, or shall perform in said government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or class. (Basically, anyone who works in the Government)

RA 3019: The term public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation from the Government

RA 6713: The term public officials includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, w/n they receive compensation

RA 7080: The term public officer means any person holding any public office in the Government by virtue of an appointment, election or contract

RA 1379: A public officer means any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise

Note: Senate Committee on Accountability of Public Officers and Investigations Jurisdiction: All matters relating to, including investigation of, malfeasance, misfeasance and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities; implementation of the provision of the Constitution on nepotism; and investigation of any matter of public interest on its own initiative or brought to its attention by any member of the Senate.

3. What is the definition of public officer as per

jurisprudence? Azarcon v. Sandiganbayan

REQUISITES: A person must be: a) Taking part in the performance of public functions in

the government, or performing in said government any of its branches public duties as an employee, agent, or subordinate official of any rank or class

b) That his authority to take part in the performance of public functions or to perform public duties must be:

a. By direct provision of law (Law) b. By popular election (Election) c. By appointment by competent authority

(Appointment) 4. What is the most important characteristic which

distinguishes a public office from employment/contract? Laurel v. Garcia

The delegation to the individual of some sovereign functions of the government, to be exercised by him for the benefit of the public (broad: legislative, executive or judicial functions) It was further held that the length of time this function is exercised is IMMATERIAL in determining whether or not he/she is a public officer.

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Query: Assuming the Truth Commission is still valid, are its members public officers? YES. Being the creation of the President, the TC exercises sovereign function of the government (Executive; Fact finding) 4.1 Does a person have to be under the payroll of the

government for him to be a public official?

No. It is a usual but NOT a necessary criterion for determining the nature of the position. It is not conclusive. At most, compensation is not an essential element of public office.

4.2 Is the first gentleman or first lady a public officer?

Not necessarily. He must still exercise some sovereign function. Query: During GMAs time, Mike Arroyo worked in the OP by appointment of the President. At the time he was exercising these functions, was a public officer? YES. By appointment, he was exercising sovereign functions (charity, etc)

4.3 Is the private sector representative to the governing

board of any government agency a public officer? Javier v. Sandiganbayan

Yes. The fact that the person was appointed from the public sector and not from some other branches or agencies of the government does not take his/her position outside of the meaning of a public office. The crucial test is still the performance of sovereign function.

4.4 Is a private individual called upon to assist in performing a governmental function a public officer?

No, as held in the Azarcon case (p10)

4.5 As said beforehand, a private individuals who has in

his charge funds or property of the government is held to be liable under 217-221. Does this mean that individual is deemed a public officer? No. The provision only PENALIZES the private individual the same way a public officer is penalized. Nowhere is it stated that he is deemed a public officer.

5. What is the three-fold responsibility of a public officer?

a) Criminal b) Civil c) Administrative

This merely means that a public officer can be held liable for all three separately, alternately, simultaneously or successively. The only thing that differs is the quantum of proof required. Criminal: PBRD Civil: Preponderance Admin: Substantial It was held in Ferrer v. Sandiganbayan that just because an administrative case against B was dismissed, it doesnt necessarily mean that the criminal case (which involves the same facts and allegations) should be dismissed also. 5.1 If that is the case, then when can a dismissal of an

admin case lead to an acquittal?

In Constantino v. Sandiganbayan, it was held that if the admin case was dismissed due to the finding that the act from which the liability is anchored does not exist, the criminal case should likewise be dismissed. The SC heavily relied on the principle of res judicata in ruling that the criminal case should be dismissed. 5.2 When can the dismissal of an admin case lead to an

acquittal?

In Larin v. Executive Secretary, the accused was acquitted in the criminal case and the SC later upheld the dismissal of the administrative case. This was because the very basis of the admin case agains the accused was his conviction in the criminal action.

6. When may issues in a civil case have a bearing in a

criminal case arising from the same facts?

When prejudicial questions arise, the suspension of the criminal action may be availed of due to the pendency of PJQ in a civil action.

Rule 112 Sec 7: Elements of PJQ: a) Previously instituted civil action involves an issue

similar or intimately related to the issue raised in the SUBSEQUENT criminal action

b) The resolution of such issue determines w/n the criminal action may proceed

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Chapter 1: OMB and the Sandiganbayan 7. Does the OMB have investigatory power? YES

General Investigatory Power: The OMB shall investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient

7.1 What may the OMB do in the exercise of its

investigatory power?

a) Direct the officer concerned to come up with the copies of documents concerning the contracts/transactions entered into by his office involving the disbursement of funds/property. He may report any irregularity to the Commission on Audit for appropriate action

b) Request any administrative agency for assistance and information necessary in the discharge of its responsibilities and if necessary, examine pertinent records

c) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry

d) Investigate IMPEACHABLE officials (but not discipline them) for the purpose of filing a verified complaint for impeachment

In RA 6770, the OMB can investigate and prosecute on its own or on the complaint of any persn, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sangdiganbayan and in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government, the investigation of such cases. Further, the OMB even has contept power in accordance with the RoC.

8. Does the OMB have administrative disciplinary

authority? YES

The OMB shall have disciplinary authority over: a) all elective and appointive officials of the government

and its subdivisions, instrumentalities and agencies b) members of the Cabinet, c) members of local government, d) members of GOCCs and their subsidiaries

Except: a) Officials who may removed only be impeachment

b) or over the members of the Congress and c) the members of the judiciary. d) Public school teachers OMB v. Galicia

9. Granting that the OMB has disciplinary authority, does

this mean he is usurping the power of the head of the office of the public officer concerned?

No. This is because the power of the OMB to investigate and prosecute any illegal act/omission of any public official is NOT exclusive BUT is shared with the head of office/body concerned. In fact, if an OMB recommends a sanction, the proper officer concerned must be the one to implement it. 9.1 Can an OMB directly impose the administrative

penalties of removal, suspension, demotion, fine, censure?

Yes. He has the power to dismiss erring public servants on the basis of his administrative disciplinary authority.

9.2 What are the grounds for an administrative

complaint?

a) Acts contrary to law/regulations b) Unreasonable, unfair, oppressive or discriminatory c) Inconsistent with the general course of an agencys

functions though lawful d) Acts based on a mistake of law, arbitrary

ascertainment of facts e) Acts in the exercise of discretionary powers but for an

improper purpose f) Irregulat, immoral or unjustified acts g) Refusal to comply/delay in compliance with the

directive of the OMB h) Other grounds of EO 292

9.3 How is an admin complaint filed?

Initiated by a written complaint under oath accompanied by affidavits of witnesses. An admin proceeding may also be ordered by the OMB/his deputy on his initiative or on the basis of a complaint originally filed as a criminal action or request for assistance Query: Can this admin proceeding be compelled by mandamus? No. Discretionary functions. 9.4 What is the remedy of a public officer who is

sanctioned by the OMB?

Rule 43: Resolutions of the OMB in admin disciplinary cases should be taken to the CA. 9.5 When are the decisions of the OMB final?

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If the penalty is public censure, reprimand or suspension of not more than one month, it shall be final and unappeasable. In all other cases, the right to appeal is given within 10 days from receipt

10. Does the OMB have the power of preventive suspension?

YES

Yes, the OMB and his deputy can preventively suspend a public officer pending investigation PROVIDED: a) The charge involves dishonesty, oppression, grave

misconduct or neglect of duty b) The charges would warrant removal c) The respondents continued stay in office may

prejudice the case filed against him (Logically, how will the OMB investigate if hes still around the office? Respondent can definitely hamper the investigation)

The preventive suspension shall not be more than 6 months but prior notice and hearing is NOT required for the issuance of the order of preventive suspension

11. Does the OMB have power to prosecute? YES

Yes, generally, he can prosecute any public officer. The exception would be presidents, directors/trustees, or managers of GOCCs that were incorporated under the corporation code. The DOJ prosecutors have that power. The OMB also has the power to grant immunity from criminal prosecution to any person whose testimony/document may be necessary to determine the truth.

12. Does the OMB have the power to recover ill-gotten

wealth? YES He can investigate/initiate the proper action for the recovery of ill-gotten wealth amassed after 2/25/86 After the cut-off date, the SOLGEN shall file the action for forfeiture.

13. What are the other lesser powers of the OMB?

a) Power to receive complaints in any form or manner. a. OMB must act promptly on these

complaints and if it finds the same baseless, it shall dismiss the same and inform the complainant

b. If it finds a reasonable ground to investigate further, the public officer/employee will be furnished with the complaint and will be

required to submit an answer within 72 hours. If the answer is found satisfactory, the OMB shall dismiss

b) Power to refer complaints to proper disciplinary

authorities. a. The referral would be for the proper

disciplinary authority for the institution of appropriate administrative proceedings

c) Power to deputize investigators, prosecutors and government lawyers

d) Power to recommend policy

14. When can the courts interfere with the OMBs exercise of his investigatory/prosecutor powers?

GR: The filing or non-filing of the information (it requires the finding of probable cause) is DISCRETIONARY on the OMBs part therefore it cannot be compelled by mandamus EXCEPTION: The SC can review the OMBs action when there is grave abuse of discretion on his part more particularly: a) To afford protection to the Consti rights of the

accused b) Necessary for the orderly administration of justice c) Prejudicial questions which is sub judice d) When his actions is in excess of his authority e) When he is prosecuting based on an ivalid law f) When double jeopardy is clearly apparent g) When the court has no jurisdiction h) When it is persecution and the charges are manifestly

false 15. What are the remedies available against resolution of

OMB in admin cases?

OMBs decision in admin cases: Rule 43, appeal to the CA OMBs decision finding probable cause and filing the information: Rule 65 with the SC OMBs decision in finding LACK of probable cause: Rule 65 with the SC

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16. What crimes and offenses are under the exclusive original

jurisdiction of the SB?

a) Violations of RA 3019, Direct bribery, indirect bribery, qualified bribery and corruption of public officials

b) Other offenses or felonies whether simple or complexed with crimes committed by public officials

c) Civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14 and 14-A

d) Other violations as long as committed in relation to office: namely robbery, murder, falsification of public documents, homicide

17. Who are the public officers who may be charged before

the SB?

SB has EOJ where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

"(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads; "(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors engineers and other city department heads; "(c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or -controlled corporations, state

universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade'27'and higher under the Compensation and Position Classification Act of 1989.

Note: Inding v. Sandiganbayan: 5 groupings:

a) Officials of the executive branch, with SG27 or higher a. Further specification (1[a]-1[g] of the list

above) b. IMPORTANT: These officials are within EOJ

of SB regardless of salary grade b) Members of Congress and officials classified as SG27

or higher c) Members of the judiciary d) Charimen and members of Consti Commissions e) All other national and local officials classified as SG27

and higher 18. Lacson v. Executive Secretary: The following requisites

must concur to fall under the EOJ of the SB:

1) The offense committed is a: a. Violation of RA 3019 b. Violation of RA 1379 c. RPC: Law on bribery d. EO 1, 2, 14, 14-A e. Other offenses or felonies whether simple

or complexed with other crimes 2) The offender committing offenses in A, B and E is a

public official or employee holding any of the positions enumerated in the list above

3) The offense committed is in relation to his/her office a. EXCEPTIONS to this requisite (in other

words, it doesnt have to be in relation to office to fall under SB EOJ)

i. Sequestration cases filed against Marcos his family and cronies

ii. Private individuals who are charged as co-principals, accomplices or accessories with the PO/employees (however, the PO they are charged with must have

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committed it in relation to their office)

iii. Violation of election laws 19. What is the meaning of the term, in relation to office?

GR: For an offense to be committed in relation to the office, the relation between the crime and the office must be direct, meaning, the offense cannot and could not have existed without the office. Montilla vs. Hilario EX: Although public office is not an element of an offense charged, as long as the offense charged in the information is intimately connected with the office and is alleged to have been perpetrated while the accused was in the performance of his official functions, there being no personal motive to commit the crime (had he not held that office) People vs. Montejo

Illustrative cases of offenses committed in relation to office

1. Crisostomo vs. Sandiganbayan: Commission of murder by jail guard against the prisoner-victim. The function of a jail guard is to insure safe custody of persons detained in the jail. The information in this case alleges that the victim was a detention prisoner when Crisostomo, jail guard, conspired with inmates to kill him

2. Esteban vs. Sandiganbayan: Acts of lasciviousness were committed in relation to petitioners office as a presiding judge because as presiding judge, he is vested with the power to recommend the appointment of a bookbinder. His imposition of a condition that the one he would appoint as bookbinder (complainant) would have to be his girlfriend and report to his office everyday for a kiss shows that petitioner used his official position in committing acts of lasciviousness.

3. Alarilla vs. Sandiganbayan: Municipal mayor (petitioner) committed grave threats against the municipal councilor (complainant) when mayor aimed a gun and threatened to kill councilor during a public hearing, after the councilor had rendered a privileged speech which was critical of mayors administration. If he was not mayor, he would not have been irritated or angered by whatever the complainant might have said during his privilege speech.

20. When must the information contain specific allegations

showing the intimate connection between the crime charged and the public office held by the accused? Barriga v. Sandiganbayan

There are actually two classes of public office-related crimes or offenses namely:

a) Constituent Element: Crimes or felonies in which the public office is a constituent element as defined by statute, meaning that the crime cannot exist without the office-> SB has original jurisdiction, no need to state specific factual allegations

b) Intimately Connected: Such offenses or felonies which are intimately connected with the public office and are perpetrated by the public officer while in the performance of his official functions -> SB has original jurisdiction but information must contain specific factual allegations showing the intimate connection

When the accuseds public office is not a constituent element of the crime charged, bare allegation in the information that the accused committed the crime charged in relation to office is not sufficient for a valid information. The specific allegations of facts that show the intimate connection between the commission of the offense charged and the discharge of official functions of the public officers determine the jurisdiction of Sandiganbayan (Soller et al. vs. Sandiganbayan) 21. May private individuals be charged before the SB? YES. 2

situations

a) When private individuals are criminally charged as co-principals, accomplices, accessories with the public officers or employees (who must be under the enumeration)

b) Sequestration cases filed under EO 1, 2, 14 and 14-A to recover ill-gotten wealth

22. Does SB have jurisdiction over officers of GOCCs

incorporated under the Corporation Code?

YES. SB has jurisdiction over both types of corporations whether it be incorporated under the Corp Code or by law (an original charter) However, OMB will prosecute if GOCC has original charter while normal prosecutors will prosecute if under the Corp code.

People vs. Sandiganbayan held that Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of GOCCs with original charters and those incorporated under the Corporation Code whenever charges of graft and corruption are involved, since the legislature has refrained from making any distinction with respect to the manner of their creation.

o Who will prosecute when said officers are charged before Sandiganbayan?

o Original charter: Ombudsman o Under the Corporation Code:

Regular prosecutors Why the distinction: Based Art. XI Sec. 13 (2) of the 1987 Constitution, the Office of the Ombudsman exercises

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jurisdiction over public officials/employees of GOCCs with original charters.

23. Is salary grade important in determining if SB has EOJ?

Not necessarily. Reference has to be made on the list. This is important because an officer may be an officer with a salary grade below 27 but still expressly included in SBs jurisdiction.

24. What is the extent of SBs jurisdiction?

Sandiganbayan has exclusive original jurisdiction over the accused if the accused belongs to any of the five (5) categories enumerated in Sec. 4(a) from (1) to (5) of PD 1606 (Revising PD 1486 Creating A Special Court To Be Known As SANDIGANBAYAN):

Section 4. Jurisdiction- The Sandiganbayan shall exercise original jurisdiction in all cases involving: (A) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corruption Practices Act, and Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurer, assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.

* Geduspan et al. vs. Sandiganbayan held that it is of no moment that the position of petitioner (Department Director A of PhilHealth [GOCC]) is merely classified as salary grade 26 since the second part of Section 4(a) of PD 1606 specifically includes other executive officials whose positions may not be of grade 27 and higher but who are by express provision of law placed under the jurisdiction of said court. It is the position that petitioner holds, not her salary grade, that determines the jurisdiction of Sandiganbayan.

*Inding vs. Sandiganbayan states that the specific inclusion of the foregoing officials constitutes an exception to the general qualification relation to officials of the executive branch occupying the positions with salary grade 27 or higher.

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25. What is Sandiganbayans exclusive appellate jurisdiction

Section 4 of PD 1606, as amended by RA 8249, provides that the Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of RTCs whether in the exercise of their own original jurisdiction or of their appellate jurisdiction over graft and corruption cases

Modes of appeal: Rule XI Sections 1 and 2 of Revised Internal Rules of Sandiganbayan provide: SECTION 1. Ordinary Appeal.- Appeal to the Sandiganbayan from a decision rendered by a Regional Trial Court in the exercise of its original jurisdiction shall be by ordinary appeal under Rules 41 and 44 of the 1997 Rules of Civil Procedure or Rules 122 and 124 of the Rules of Criminal Procedure as amended, as the case may be. SEC. 2. Petition for Review.- Appeal to the Sandiganbayan from a decision of the Regional Trial Court in the exercise of its appellate jurisdiction shall be by Petition for Review under Rule 42 of the 1997 Rules of Civil Procedure. 26. What happens when an appeal is erroneously brought to CA instead of Sandiganbayan Estarija vs. People et al. provides that erroneously filing an appeal with the CA instead of to the Sandiganbayan does not toll the running of the period for him to perfect his appeal to the Sandiganbayan. Melencion vs. Sandiganbayan held that an appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissed right away.

27. What is the effect of the ruling in People vs. Mateo on Sandiganbayans appellate jurisdiction

The rationale of the Mateo ruling is that there must be an intermediate review by a subordinate appellate court before the case is elevated to the SC in order that all possible avenues to determine his guilt or innocence must be accorded an accused if the penalty imposed is death (now abolished), reclusion perpetua or life imprisonment.

Supposing RTC, in its original jurisdiction, imposes a penalty of reclusion perpetua in a qualified bribery case against a police officer with a salary grade 14. Said case requires a mandatory review. Where can the police officer appeal his conviction to the CA or to Sandiganbayan? It must be appealed to the Sandiganbayan because PD 1606 has conferred upon it an exclusive appellate jurisdiction over decisions and final orders of RTCs in cases involving graft and corruption

28. What is the jurisdiction of the regular courts over graft and corruption cases?

Exclusive original jurisdiction shall be vested in the proper RTC, MeTC, MTC, MCTC pursuant to their respective jurisdictions as provided in BP 129:

(a) Violations of RA 3019 (Anti-Graft and Corrupt Practices Act) and Chapter II, Section 2, Title VII, Book II of the RPC; and

(b) Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office,

Provided that, (i) None of the accused is a public

officer belonging to any of the five categories enumerated in Section 4(a) from (1) to (5) of PD 1606; or

(ii) The only accused is a private individual or individuals in appropriate cases.

Suppose the accused is a stockholder of a private entity negotiating with LTO and brother-in-law of the President of the Republic. During negotiations, accused intervened and convinced the President to order the LTO to sign the contract. Accused was charged with violation of RA 3019 which prohibits certain relatives of high-ranking government officials to intervene, directly or indirectly, in any business, transaction with the Government. Which court has jurisdiction over the case, Sandiganbayan or regular courts? Sandiganbayan does not have jurisdiction because accused is a private individual (who cannot commit an offense in relation to office) and he is not charged as a co-principal, accomplice or accessory with any public officer. If the regular court convicts the accused, he can appeal his conviction to the CA.