Creating Pockets of Excellence in the

Sanggunian

ATTY. EMETERIO S. MORENO, JR.

Outline of Presentation

A. Intergovernmental Relations

B. Administrative Investigation Procedure for Elected Local Officials

C. Legislative Oversight

D. Jurisprudence in Local Legislation

“INTERGOVERNMENTAL RELATIONS”

CONSTITUTION

Executive Legislative Judiciary

Execution of Laws Enactment of Laws Interpretation of Laws

President Congress Supreme Court

DILG, DPWH, DSWD, etc.

All LGUs: Provinces

Cities Municipalities

Barangays

Governor/Mayor Perform all executive functions

Vice-Gov./Vice-Mayor /Sanggunian

All lower courts

Vice Governor/Vice Mayor / Sanggunian Perform the following functions:

1. Local Legislation (Sec. 48-59, LGC) 2. Quasi-Judicial: investigation of administrative cases; (Sec. 60-68, LGC) 3. Quasi-judicial: Settlement of barangay/municipal boundary disputes

as the case maybe (Sec. 118, LGC) 4. Authorize the Mayor to enter into contract (Sec .22 ( c ), LGC) 5. Confirm appointments of department heads issued by the

Mayor/Governor (found in different sections of LGC) 6. Power to review ordinances and resolutions approving the local

development plan and local investment program passed by lower LGU 7. Power to declare portion or whole of the local territory as under the

state of calamity (RA 8185 as amended by RA10121)

• Local legislation (ordinance making) function vs administrative investigation (quasi- judicial) function

• Sec 48 - 59 (local legislation); Sec 60-68 (administrative investigation) all of the Local Government Code.

• Product in local legislation function is ORDINANCE (Sec 54 , LGC) while the product in administrative investigation function is DECISION (Sec 66, LGC).

• Power of the Sanggunian to compel attendance of any person before it if in the exercise of local legislation function and if in the exercise of administrative investigation.

• Case : Negros Oriental Electric Cooperative VS. Sanggunian Panlungsod of Dumaguete City. (1987)

• Ordinance is submitted to higher Sanggunian for review while Decision is not.

• The power to exercise legislation in general is vested by the Constitution to Congress.

• Congress, not being expected to be familiar with local affairs of local government units, delegated the exercise of local legislative powers to the different sanggunians via Sec 48 LGC. The product of Congress is called "Law" while the product of sanggunians is called " Ordinance"

• Congress is principal while sanggunians are agents of Congress; agent cannot rise above his principal; hence, "ordinance" cannot rise above "law“.

PRINCIPLES IN ORDINANCE MAKING POWER; SUBSTANTIVE ASPECT( Laman) IN LOCAL LEGISLATION

BASIC GUIDE • Ordinance must not contravene "law", “constitution" and "

national policies"; • Ordinance cannot allow what is prohibited by law; • Ordinance cannot prohibit what is allowed by law, but can

only regulate it; • Regulation must be reasonable; • Ordinance must not limit itself to the present conditions in

relation to the purpose it seeks to achieve; and • The subject matter of the ordinance is within the enumerated

powers of the Sanggunian concerned. To determine this, examine the powers of the Sanggunian.

PRINCIPLES IN ORDINANCE MAKING POWER; SUBSTANTIVE ASPECT( Laman) IN LOCAL LEGISLATION

“ADMINISTRATIVE INVESTIGATION PROCEDURE FOR ELECTED LOCAL

OFFICIALS”

Sec. 61, LGC RA 6770 Ombudsman Act

Civil Service Commission

LCE Sec. 87, LGC

• Office of the President • Sangguniang

Panlalawigan • Sangguniang

Panlungsod/Bayan • VS Elective Official • Administrative Case • Local Position

• Preventive suspension

is 60 days

• Ombudsman Luzon • Ombudsman Visyas • Ombudsman

Mindanao • VS Elective and

Appointive Official • Administrative and

criminal cases • National and local

officials • Preventive suspension

is 6 months

• Central Office • Regional Offices

• VS Appointive Official • Administrative case • National and local

officials

• Preventive suspension

is 60 days

• Governor • City/Municipal Mayor • Punong Barangay

• VS. Appointive Official • Administrative Case • Local officials except: Local Treasurer –

DOF Officials and

employees of the Sanggunian - Vice Governor, Vice Mayor

• Preventive suspension

is 60 days

Note: Very important to know the different offices where to file administrative cases in order to avoid violation of the non-forum shopping rule Note: THREE-FOLD LIABILITY RULE OF PUBLIC OFFICIAL

Chart where Administrative Cases can be Filed

• Administrative Investigation vs. investigation in aid of local legislation

• Grounds for Administrative disciplinary action against local elective officials

• The administrative investigation function involves the power to “Hear” and “Decide”.

• Power to hear can be delegated to a committee; power to decide cannot be delegated to a committee. It has to be exercised by the Sanggunian as a whole.

“Section 60. Grounds for disciplinary actions – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

a. Disloyalty to the Republic of the Philippines;

b. Culpable violation of the Constitution;

c. Dishonesty, oppression, misconduct in office, gross negligence or dereliction of duty;

d. Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

e. Abuse of authority;

f. Unauthorized absence for fifteen (15) days, except in the case of members of the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan and Sangguniang Barangay;

g. Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and such other grounds as may be provided in this Code and other laws

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”

• Paragraph F above has been clarified by Art. 124, (6) of the IRR of the LGC. It says “Unauthorized absences for fifteen (15) days in case of LCE and four (4) consecutive sessions in case of Sanggunian Members

• Pablico Vs. Villapardo (July 31, 2002)

• Sangguniang Barangay of Don Mariano Marcos, Bayombong Nueva Vizcaya Vs. Punong Barangay Martinez (March 3, 2008)

• Ground ( c ) should have been committed while in the performance of the functions of the office

• Misconduct, to be a ground, must affect the performance of his office as an officer and not only as affects his character as a private individual (Lacson vs. Roque, 92 Phil. 456)

• Moral turpitude – conduct contrary to justice, honesty, modesty, or good morals (De la Torre v. Comelec, July 5, 1996), but whether a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute

• Some of the particular crimes which have been held to involve moral turpitude are adultery, concubinage, rape, arson, evasion of income tax, barratry, bigamy, blackmail, bribery, criminal conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent proof of loss on insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under promise of marriage, estafa, falsification of public documents, estafa thru falsification of public documents

• See Palma v. Fortich, January 29, 1987

• When the crime involving moral turpitude is not linked with the performance of official duties, conviction by final judgment is required as a condition precedent to administrative action

• Administrative complaints against city and provincial elective officials, including municipal elective officials within Metro Manila are filed before the Office of the President.

• Administrative complaints against municipal elective officials are filed before the Sangguniang Panlalawigan.

• Administrative complaints against barangay elective officials are filed before the Sangguniang Bayan/Panlungsod

• The administrative complaint must be verified; but see case of Joson vs. Torres May 20, 1998

• In Hagad v. Gozo-Dadole (December 12, 1995) – the Local Government Code did not repeal the Ombudsman Act (RA 6770). Hence, the disciplining authority of the Ombudsman over local elective officials is concurrent with the disciplining authority of the President, Sangguniang Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan under Sec 61 of the LGC. Whichever first acquired jurisdiction shall exclude the other by applying the non-forum shopping rule.

Conferment of Jurisdiction (Section 61, LGC)

• If expressly conferred with jurisdiction, it is also deemed vested with the implied power to promulgate its own administrative investigation rules of procedure provided they are consistent with law and the Constitution. For this purpose, the rules of procedure may be adopted by the Sangguniang in their internal rules.

• Administrative investigations do not strictly adhere to the technical observance of Rules of procedures and evidence under the Rules of Court. It is sufficient that substantive due process requirements of fairness and reasonableness be observed (Manuel v. Villena, February 27, 1971)

Conferment of Jurisdiction (Section 61, LGC)

• Administrative due process (Ang Tibay vs. CIR, February 27, 1940; Casimiro vs. Tandog, June 8, 2005)

Right to hearing

Tribunal must consider evidnece presented

Decision must be supported by evidence

Supporting evidence must be substantial

Decision must be based on the evidence presented, or at least contained in the record and disclosed to the parties.

Body must act on its own judgment

Decide in such manner that parties can know the various issues involved and the reason for the decision

• Go vs. Napolcom, April 18, 1997; Decision must be supported by evidence. Non-compliance is violation of due process

Conferment of Jurisdiction (Section 61, LGC)

• The periods provided in Section 62 within which to dispose an administrative case are only directory and not jurisdictional. Decision rendered beyond the reglementary period within which to promulgate the same are still valid decisions. The delay if attributable to the sanggunian will just expose its members to administrative disciplinary actions

• The reglementary periods within which to file answers or appeal shall be construed strictly against the filer or pleader to prevent needless delays (Valdez vs. Ocumen, January 29, 2960)

• But periods to file answer may, upon motion of respondent on meritorious ground be extended

• Unreasonable failure of the respondent to file his verified answer within the period provided by law or the period therefor having lapsed without any answer having been filed, shall be considered a waiver of his rights to present evidence in his behalf (Article 126, IRR of the LGC)

• In the preliminary conference, the parties shall be summoned to consider whether respondent desires a formal investigation. Denial of the same despite assertion, shall constitute a violation of due process available to respondents (Joson vs. Torres, Ibid)

• Malinao vs. Reyes, March 29, 1996; Estuesta vs. Municipal Mayor, Agoo, La Union, June 25, 1963 – investigation of the case may be delegated to a committee. See also Art. 130 of the IRR of RA 7160

NOTICE AND HEARING

• Not a penalty but merely a tool to aid investigation; In Quimbo vs. Gervacio, August 9, 2005, the Supreme Court ruled that the period within a public official is under preventive suspension is not considered part of the actual penalty of suspension.

• Sec. 63, LGC – Requisites for Preventive Suspension: Must Concur:

Issues are joined

Evidence of guilt is strong

There is threat of suppression of evidence

• Requisites must concur, meaning, all must be present before it can be imposed

Preventive Suspension – Section 63, LGC

• Evidence of guilt is strong – where the same is a requisite for preventive suspension, the disciplining authority is given the discretion to decide when the evidence of guilt is strong (Nera vs. Garcia)

• Mere pendency of a criminal case will not justify the imposition of a preventive suspension

• Miranda vs. Sandiganbayan (July 27, 2005), Sec. 63, LGC does not govern the preventive suspension imposed by the Ombudsman since the latter has its own law on the matter, i.e. RA 6770, or “The Ombudsman Oct. of 1989”

Preventive Suspension – Section 63, LGC

Be accorded full opportunity to appear and defend himself in person or by counsel

To confront and cross-examine the witness against him – relate the power of the Sanggunian to issue subpoena

To require attendance of witnesses and production of documents through compulsory process of subpoena

Any violation of the foregoing rights constitutes denial of due process rendering the decision null and void

Rights of the Respondents (Sec 65, LGC)

Decision must be in writing, stating clearly and distinctly the facts and the reasons for such decision.

See Malinao VS. Reyes, March 29, 2996; Estueta vs. Municipal Mayor of Agoo, La Union, June 29, 1963.

Investigation may be conducted by the Committee.

The recommendation of the committee is not, however, the decision of the Sanggunian as contemplated under Se. 66, LGC

The recommendation should be submitted to the Sanggunian as a whole for approval

Penalty of suspension is not a bar to the candidacy of the respondent in the next election.

Removal from office is a bar to candidacy of the respondent in the next election as ground for disqualification under Sec. 40, LGC

Form and Notice of Decision (Sec 66, LGC)

Thirty (30) days from receipt of the decision, appeal can be taken to the higher level Sanggunian

The effects of lapses of the reglementary period within which to appeal under the Rules of Court shall also apply to decisions of the Sanggunian whether rendered in its original jurisdiction or appellate jurisdcition

Reconcile Sec. 61 and 67 of the LGC

Only the parties can file appeal

Appeals – Section 67, LGC

Appeal shall not prevent a decision from becoming executory

The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal.

Entitled to salary during pendency of an appeal in case respondent is exonerated

Decisions are immediately executory. But on appeal, the Office of the President may stay the execution thereof per the Rules of Procedure of the Office of the President on appealed cases. (Berces vs. Guingona, 241 SCRA 539, February 21, 1995)

Execution Pending Appeal – Section 68, LGC

Malinao vs. Reyes, March 29, 1996.

Salalima vs. Guingona, May 22, 1996 – the re-election of a local official bars continuation of an administrative case against him.

Condonation Principle – Aguinaldo vs. Santos

Condonation extends only to the administrative liability of the respondent.

Effect of Re-election

Procedure in Administrative Investigation

COMPLAINT

HEARING

DECISION

APPEAL

ANSWER

Sec. 63 – Imposition of Preventive Suspension

Sec. 62 – within 7 days from receipt of administrative complaint, respondent should be required to submit verified answer within 15 days from receipt of order

Sec. 67 – within 30 days from receipt, decision can be appealed to the higher Sanggunian. Only the parties to the case are allowed to file appeal. Sec. 68 – Execution Pending Appeal

Sec. 61

Procedure in Administrative Investigation

COMPLAINT

HEARING

DECISION

APPEAL

ANSWER

Sec. 63 – Imposition of Preventive Suspension

Sec. 62 – within 7 days from receipt of administrative complaint, respondent should be required to submit verified answer within 15 days from receipt of order

Sec. 67 – within 30 days from receipt, decision can be appealed to the higher Sanggunian. Only the parties to the case are allowed to file appeal. Sec. 68 – Execution Pending Appeal

Section 62.

• Hearing / investigation of the case shall commence within 10 days from receipt of ANSWER.

• NO INVESTIGATION AND PREVENTIVE SUSPENSION WITHIN 90 days prior to any election. If preventive suspension has been issued the same is automatically lifted.

• Investigation / hearing shall be terminated within 90 days from start thereof. (Sec. 66, LGC)

• Proceedings shall be terminated within 120 days from the time respondent is notified of the complaint against him.

•Sec. 66 – must be in writing stating clearly the facts and law involved

•Parties must be immediately furnished copies of decision so that aggrieved party can appeal the decision

•The decision shall be implemented / served by whomsoever is ordered by the Sanggunian

•Officially notify concerned offices of the Decision and the Service thereof to the respondent so that they may become aware .

•Highest penalty is suspension of six (6) months

•Reyes vs. Comelec 1996 – if decision cannot be served due to the acts of respondent, the same is deemed served in accordance with the law.

Sec. 61

“JURISPRUDENCE IN LOCAL LEGISLATION”

MAGTAJAS VS. PRYCE PROPERTIES AND PAGCOR, (en banc July 20, 1994)

• Local legislative bodies exercise only delegated legislative powers conferred on them by Congress. As mere agents, local governments are vested with the power of subordinate legislation.

BATANGAS CATV VS. COURT OF APPEALS, (en banc September 29, 2004)

• It is fundamental principle that ordinances are inferior in status and subordinate to the laws of the State. An ordinance in conflict with law or repugnant to the general policy of the State is universally held to be invalid. In every passage of an ordinance, there is always an implied restriction that the ordinance shall be consistent with general law.

LEYNES VS. COA, (en banc December 11, 2003)

• An ordinance must be presumed valid in the absence of evidence showing that it is not in accordance with law. A third party has the burden of proof that a municipal council did not comply with the conditions set forth by the local code for the passage of subject ordinance or it erroneously approved said ordinance despite its non- compliance with the requirements of law.

GAMBOA VS. AGUIRRE, ( July 20, 1999)

• A Vice- Governor who is concurrently an Acting Governor is actually considered a quasi- governor. Such being the case, he is, for the time being, prohibited to continue to preside over the session so as not to violate the principle of separation of power and check and balance.

MALONZO VS. ZAMORA ( en banc ,July 27, 1999)

• While Sections 50 and 52 of the Local Government Code mandates that during the first regular session, the sanggunian shall take up the adoption or updating of the internal rules of the sanggunian, there is, however, no prohibition that other matters shall be taken up.

• Three readings allowed in one day.

ZAMORA VS. CABALLERO, (January 14, 2004)

•The sanggunian is a collegial body. As such, the discharge of the duties, functions , and powers of the sanggunian requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only part of the sanggunian done outside the parameters of the legal provisions are legally infirmed and are thus null and void. •-"Majority" when required to constitute a quorum, means the number greater than half, or more than half of the total.

FIGUERRES VS. COURT OF APPEALS ( March 25, 1999)

•Ordinances have to be posted in the manner provided for under Section 59 of The Local Government Code. Thus posting is done at prominent places in the provincial capitol, city, municipal , or barangay hall, as the case may be, for a minimum period of three (3) consecutive weeks. If with penal sanctions, in addition to the posting as stated, the same shall also be published in a newspaper of general circulation, where available, within the territorial jurisdiction of the local government unit concerned, except the barangay.

DRILON VS. LIM, ( August 4, 1994)

• The omission of the posting in conspicuous places of the tax ordinance does not affect its validity considering that the ordinance was published in three successive issues of a newspaper of general circulation. The requirement of translation to tagalog applies to approval of local development plan and public investment program of LGU and not to tax ordinance.

PARANAQUE VS. V.M. REALTY CORP. (July 20, 1998)

• The enabling instrument authorizing the mayor to exercise the power of eminent domain and to file the expropriation case in court must be contained in an ordinance and not in a resolution. This is the specific requirement under Section 19 of the Local Government Code.

LINA VS. PANO , ( August 30 , 2001)

• An ordinance cannot prohibit what is allowed by law. The Province Of Laguna passed an ordinance prohibiting lotto and the establishment of lotto ticket sales outlet in any part of the province. The Supreme Court declared it invalid saying that lotto is a numbbers game managed by the Philippine Charity Sweepstake Office (PCSO). The PCSO on the other hand is an entity created by Congress through a Law and said law authorized PCSO to operate numbers game throughout the country. What the " LAW" allows, "ORDINANCE" cannot prohibit but can only regulate.

WHITE LIGHT CORP. VS. CITY OF MANILA, (January 20, 2009)

• The City of Manila passed a City Ordinance prohibiting short- time admission and wash-up schemes in hotels, motels, inns, lodging houses, pension houses and similar establishment in the City of Manila. The Supreme Court declared the said ordinance invalid for being unreasonable and confiscatory. Owners of hotels etc are unduly deprived of legitimate income , and that legitimate users were also deprived of their right of liberty.

SOURCES OF PARLIAMENTARY RULES

1. Constitution

2. Law – Sec. 48-59, LGC

3. Judicial Decision (Decision of the Supreme Court)

4. Adopted Internal Rules of Procedure

5. Parliamentary Practice

6. Parliamentary Authors

7. Customs and Usage

LA CARLOTA CITY, NEGROS OCCIDENTAL VS ATTY. REX ROJO (APRIL 24, 2012)

• The Vice-Mayor is included in the determination of quorum of the Sanggunian.

ATIENZA VS VILLAROSA (MAY 10, 2005)

• The governor issued two memoranda, namely, 1) Directing that all Purchase Order for the supplies etc. for the operation of the Sanggunian shall be signed by the Governor, 2) Terminating/cancelling all appointments issued by the vice-governor for the employees of the Sanggunian Panlalawigan and the Office of the Vice-Governor. The Supreme Court declared both memoranda as null and void. As to the first, the SC said that applying the doctrine of necessary implication, the powers of the vice-governor to sign all warrants drawn from the expenditure of the Sanggunian would necessarily include the power to sign purchase order directing payment of money charged from Sanggunian fund. This doctrine means the express power would necessary include such power as can be implied thereform. As to power of appointment, if salary is charged against sanggunian fund, the power to appoint employees of sanggunian and the office of the vice-governor is with the vice-governor. On the other hand, if charged against provincial general fund, the power to appoint is with the governor even if in the meantime the employee is assigned with the sanggunian.