GENERAL PRINCIPLES OF PUBLIC CORPORATION AND LOCAL GOVERNMENT UNIT

I. Corporation

A corporation is an artificial being created by operation of law having the right of succession and the powers, attributes and properties expressly authorized by law or incident of to its existence.

II. Public Corporation

It is formed or organized for the government of a portion of the State either by general or special act for purposes of administration of local government or rendering service in the public interest.

A public is a corporation created by the State as the latter’s own agency or instrumentality to help it in carrying out its governmental functions. (The Philippine Society for the Prevention of Cruelty to Animals vs COA, G.R. No. 169752)

The criterion to determine whether a corporation is public is the relationship of the corporation to the State, if createdby the State as its own agency to help the State in carrying out itsgovernmental functions then it is public, otherwise, it is private.

The mere fact however, that a corporation has been created by virtue of a special law does not necessarily qualify it as a public corporation. (supra)

III. Classes of Corporations

1. Quasi Corporations- private corporations created as agencies of State for narrow and limited purposes without the powers and liabilities of self-governing corporations.

2. Municipal Corporations- body politic and corporate constituted by the incorporation of inhabitants for purposes of local government. It is established by law partly as an agency of the State to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated.

a. Elements of Municipal Corporation:1. A legal creation or incorporation.2. A corporate name by which the artificial personality or legal entity is known and in

which allcorporate acts are done.3. Inhabitants constituting the population who are invested with the political and

corporate powerswhich are executed through duly constituted officers and agents.4. A place or territory within which the local civil government and corporate functions

are exercised.b. Dual Nature of Municipal Corporations:

a. Governmental or Public- the municipal corporation acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits.

b. Proprietary or Private- it acts in a similar category as a business corporation performing functions not strictly governmental or political, those exercised for the special benefit and advantage of the community.

IV. Local AutonomyIn constitutional sense, it means to polarize Local Government Units from over dependence of central government. Local Government Units (LGUs)have certain powers given by the Constitution which may not be curtailed by the national government, but outside of these, local governments may not pass ordinances contrary to statute.

Kinds of Autonomy:

1. Decentralization of Administration- central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process make LGUs more responsive and accountable and ensure their fullest development as self-reliant communities and make them effective partners in the pursuit of national development and social progress.

2. Decentralization of Power- involves abdication of political power in favor of LGUs declared autonomous and amounts to “self-immolation”, because the autonomous region becomes accountable not to the central authorities but to its constituency.

V. DevolutionIs an act by which the national government confers power and authority upon various LGUs to perform specific functions and responsibilities.(LCG, Sec. 17, Par. E)

VI. Declaration of Policy1. Territory and subdivisions of the State shall enjoy genuine and meaningful autonomy to

enable then to attain fullest development and make them more effective partners in attaining national goals.

2. Ensure accountability of LGUs through institution of effective mechanisms of recall, initiative and referendum.

3. Require all national agencies and offices to conduct periodic consultations with appropriate LGUs, NGOs and People’s Organizations (POs) and other concerned sector of the community before any project or program is implemented in their respective jurisdictions. (Sec 2, LGC)

VII. Interpretation of the Provision Local Government CodeAny doubt or question on a power of a local government shall be resolved in favor of the devolution of powers and in favor of the lower local government unit. Exceptions are tax measures enacted by local government shall be considered strictly/against the local government and liberally in favor of the taxpayer.

VIII. Authority to Create Local GovernmentAn LGU may be created, divided, merged, abolished, or its boundaries substantially altered.1. For province, city, municipality or any other political subdivisions- only by Act of

Congress2. For barangays- ordinance passed by SangguniangPanlalawigan or

SangguniangPanglungsod concerned in the case of any barangay within its territorial jurisdiction.

IX. Creation and Conversion of Local Government Units

SECTION 7.Creation and Conversion. - As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators ofviability and projected capacity to provide services, to wit:(a) Income - It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of itspopulation, as expected of the local government unit concerned;(b) Population - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land Area - It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes andbounds with technical descriptions; and sufficient to provide for such basic services andfacilities to meet the requirements of its populace. Compliance with the foregoing indicatorsshall be attested to by the Department of Finance (DOF), the National Statistics Office(NSO), and the Lands Management Bureau (LMB) of the Department of Environment andNatural Resources (DENR).

X. Essential Requisites for the Creation and Conversion of Municipal Corporation

1. Law or ordinance.2. Income sufficient to provide for all essential government facilities and services

commensurate with the size of its population.3. Population or the total number of inhabitants within the territory.4. Land Area or Territory that must be contiguous except for islands or when divided or

separated by an LGU independent of the others.5. Attestation given by the Department of Finance for income, NSO for population and

LMB of DENR for land area6. Plebiscite subject to the approval by the majority votes by unit or units directly

affected.

XI. Conditions Precedent for the Creation and Conversion of Municipal Corporation1. Extent of the area proposed to be incorporated.2. Nature of the territory.3. Character of the land and the uses to which it may be devoted.4. Number of inhabitants.5. Destiny and location of the area to be incorporated.

XII. Division and Merger of Local Government Units

The requirements for the division and merger of LGUs are the same as those of their creation, provided that:

1. It shall not reduce the income, population or land area of LGUs concerned to less than the minimum requirements prescribed;

2. The income classification of the original LGU shall not fall below its current income classification prior to division;

3. A plebiscite be held in LGU affected;4. The assets and liabilities of creation shall be equitably distributed between the LGUs

affected and new LGU. When a municipal district of other territorial divisions is converted or fused into a municipality all property rights vested in the original territorial organization shall become vested in the government of the municipality. (LGC, Sec.8)

XIII. Beginning of Corporate Existence

SECTION 14.Beginning of Corporate Existence. - When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chiefexecutive and a majority of the members of its Sanggunian, unless some other time is fixedtherefor by the law or ordinance creating it.

POWERS OF LOCAL GOVERNMENT UNITS

Sources of Power1. Section 25, ArticleII and Section 5 to 7, Article 10 of the 1987 Constitution2. Republic Act 7160 The Local Government Code3. Charter4. Doctrine of the Right to Self- Government

In the execution of powers, where the statute prescribes the manner of exercise, the procedure must be followed. However, is the statute is silent, the local government units have discretion to select reasonable means and methods of exercise.

Governmental Powers

I. General Welfare (Section 16, R.A. 7160): Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among its residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

a. As to nature, the police power of a municipal corporation extends to all great public needs, and includes all legislation and functions of the municipal government. The drift is towards social welfare legislation geared towards state policies to provide adequate social services, the promotion of general welfare and social justice. (Binayvs Domingo, G.R. # 92389 September 11, 199)

b. As to public use, the public in general should have equal or common rights to use the land or facility involved on the same terms and that the number of users is not the yarkstick in determining whether property is properly reserved for public use or benefit. (Republic of the Philippines vs Gonzales, G.R. # L-45338-39, July 31, 1991)

c. There are two branches of General Welfare Clause, the general legislative power, which authorizes municipal councils to enact ordinances and make regulations not repugnant to law and may be necessary to carry into effect and discharge the powers and duties conferred upon it by law. The police power, which authorizes the municipality to enact ordinances as may be proper and necessary for the health and safety, prosperity, morals, peace, good order, comfort and convenience of the municipality and its inhabitants, and for the protection of their property. (Rural Bank of Makati vs Municipality of Makati, G.R. # 150763 July 7, 2004)

d. The limitations on the exercise of power under the General Welfare Clause:i. It is exercisable only within territorial limits of the local government unit,

except for protection of water supply.ii. Equal protection clause. The interest of the public in general, as

distinguished from those of a particular class, require the exercise of the power.

iii. Due process clause. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals.

iv. Must not be contrary to the Constitution and the laws. Prohibited activities may not be legalized in the guise of regulation; activities allowed by law cannot be prohibited, only regulated.

In Magtajasvs Pryce Properties, G.R. # 111097, July 20, 1994, the Supreme Court reiterated its ruling in Tatelvs Municipality of Virac, Catanduanes 207 Scra 157,that to be valid,an ordinance to be valid (a) must not contravene the Constitution and any Statute; (b) must not be unfair or oppressive; (c) must not be partial or discriminatory; and (d) must be general in application and consistent with public policy.

II. Eminent Domain (Section 19, R.A. 7160). A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the constitution and pertinent laws: Provided, however, that the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, that the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, that the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

It is the right or power of the sovereign state to appropriate private property within the territorial sovereignty for public purpose.

a. As to its nature, the exercise of eminent domain is necessarily in derogation of private rights, hence the authority to exercise such must be strictly construed. (Heirs of Suguitanvs City of Mandaluyon, G.R. No. 135087, March 14, 2000)

b. Requisites for valid expropriation (Section 19, Local Government Code):i. Ordinance enacted by the local legislative council authorizing the local Chief Executive to exercise eminent domain.ii. For purpose of public use, public purpose, or welfare for the benefit of the poor and landlessiii. Payment of just compensation based on the fair market value of the property at the time of takingiv. Valid and definite offer was previously made to the owner of the property, but the offer was not accepted.

According to the case of National Power Corporation vsLleto, G.R. No. 171558 July 11,2012, the determination of just compensation in eminent domain cases is a judicial function.

Under the Urban Development and Housing Act (Socialized Housing R.S. 7279), expropriation by an LGU for purposes of socialized housing projects shall occur only as a last resort. It must be shown by the LGU that other methods of acquisition have been exhausted: mortgage, land swapping, land consolidation, donation, joint venture agreements, and negotiated purchase.

If all the other methods have been exhausted and expropriation to continue, the Local Government Unit shall prioritize expropriation of property of:

a. Government Landsb. Alienable public Landsc. Abandoned lands

d. Areas for priority developmente. Unacquired BLISS sitesf. Private landsFurthermore, small property landowners are similarly exempt from expropriation for purposes

of socialized housing, provided:1. Those owners of real property which consist of residential lands within an area of not more

than 300sq meters in highly urbanized cities, and 800 in other urban cities;2. They do not own real property other than the same.

III. Power to Generate and Apply Resources (Section 18, of R.A. 7160).Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenue and to levy taxes, fees and charges which shall accrue exclusively to their use and disposition and which shall be retained by them; to have a just share in the national taxes which shall be automatically and directly released to them without need of any further action; to have an equitable share in the proceeds from the utilization and development of the national wealth and resources within their lease, encumber, alienate or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply their resources and assets for productive, developmental or welfare purpose, in the exercise or furtherance of their governmental or proprietary powers and functions and thereby ensure their development into self-reliant communities and active participants in the attainment of national goals.

This provision restates and implements Sections 5,6 and 7, of Article X of the 1987 Constitution.

The Fundamental Principles on Taxation by a Local Government Unit (Section 130, Local Government Code)

1. Taxation shall be uniform2. Taxes, fees, and charges shall be equitable and based as far as practicable on the taxpayer’s

ability to pay;3. Levied and collected only for a public purpose;4. Shall not be unjust, excessive, oppressive, or confiscatory;5. The collection of taxes, fees and charges shall in no case be left to any private person;6. The revenue shall insure solely to the LGU, unless otherwise specified;7. Each LGU shall, as far as practicable, evolve a progressive system of taxation8. Shall not be contrary to law, public policy, national economic policy, or in restraint of trade.

Sources of Local Government Unit Funds1. Own sources of revenue2. Taxes, fees and charges which accrue exclusively for their use and disposition3. Just share in national taxes which shall be automatically and directly released to themselves4. Equitable share in the proceeds from utilization and development of national wealth and

resources within their territorial jurisdiction.

Common Limitations on Taxing Power (Section 133, Local Government Code)Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,

municipalities, and barangays shall not extend to the levy of the following: (a) Income tax, except when levied on banks and other financial institutions;(b) Documentary stamp tax;(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except as otherwise provided herein;

(d) Customs duties, registration fees of vessel and wharfage on wharves, tonnage dues, and all other kinds of customs fees, charges and dues except wharfage on wharves constructed and maintained by the local government unit concerned;(e) Taxes, fees and charges and other impositions upon goods carried into or out of, or passing through, the territorial jurisdictions of local government units in the guise of charges for wharfage, tolls for bridges or otherwise, or other taxes, fees or charges in any form whatsoever upon such goods or merchandise; (f) Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers or fishermen; (g) Taxes on business enterprises certified to by the Board of Investments as pioneer or non-pioneer for a period of six (6) and four (4) years, respectively from the date of registration;(h) Excise taxes on articles enumerated under the National Internal Revenue Code, as amended, and taxes, fees or charges on petroleum products;(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or similar transactions on goods or services except as otherwise provided herein; (j) Taxes on the gross receipts of transportation contractors and persons engaged in the transportation of passengers or freight by hire and common carriers by air, land or water, except as provided in this Code;(k) Taxes on premiums paid by way of reinsurance or retrocession;(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds of licenses or permits for the driving thereof, except tricycles;(m) Taxes, fees, or other charges on Philippine products actually exported, except as otherwise provided herein; (n) Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and cooperatives duly registered under R.A. No. 6810 and Republic Act Numbered Sixty-nine hundred thirty-eight (R.A. No. 6938) otherwise known as the "Cooperatives Code of the Philippines" respectively; and (o) Taxes, fees or charges of any kind on the National Government , its agencies and instrumentalities, and local government units.

Section 133 of the Local Government Code provides a limitation on the power of a Local Government Unit to levy taxes, fees, or charges on the national government, its agencies and instrumentalities, unless otherwise provided. Section 234 on the other hand, grants Local Government Units the power to impose real property tax on properties of the Republic of the Philippines and its political subdivisions when its beneficial use is granted to a taxable person.

Fundamental Principles on the Financial Affairs of a Local Government Unit(a) No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law;(b) Local government funds and monies shall be spent solely for public purposes;(c) Local revenue is generated only from sources expressly authorized by law or ordinance, and collection thereof shall at all times be acknowledged properly;(d) All monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law;(e) Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received;(f) Every officer of the local government unit whose duties permit or require the possession or custody of local funds shall be properly bonded, and such officer shall be accountable and responsible for said funds and for the safekeeping thereof in conformity with the provisions of law;(g) Local governments shall formulate sound financial plans, and the local budgets shall be based on functions, activities, and projects, in terms of expected results; pment plans, goals, and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources;

(i) Local budgets shall operationalize approved local development plans;(j) Local government units shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units;(k) National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the local government units in their respective local development plans are considered in the formulation of budgets of national line agencies or offices;(l) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of the local government units; and (m) The local government unit shall endeavor to have a balanced budget in each fiscal year of operation.

In the case of BascovsPagcor, 197 scra 52, Congress has the power of control over local governments. If Congress can grant a municipal corporation the power to tax certain maatters, it can also provide for exemptions or even take back the power, xxx The power of local governments to impose taxes and fees is always subject to limitations which Congress may provide by law xxx Local governments have no power to tax instrumentalities of the National Government; PAGCOR being an instrumentality of the National Government is therefore exempt from local taxes.

IV. Basic Services and Facilities (Section 17, R.A.7160). Local Government units shall endeavor to be self-reliant and shall continue exercising the powerrs and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this code.

The public works and infrastructure projects and other facilities, programs and services funded by the national government under the General Appropriations Act and other laws, are not covered under this section, except where the local government unit is duly designated as the implementing agency for such projects, facilities, programs and services.

V. Closure and Opening of Roads (Section 21, R.A. 7160). A local Government unit may, pursuant to an ordinace, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided.

The requisites for temporary closure:1. Via ordinance2. May be done due to:

a. Actual Emergencyb. Fiesta celebrationsc. Public ralliesd. Agricultural or industrial fairse. Undertaking of public works and highways, telecommunications, and waterworks

projects3. Duration of closure must be specifically stated in the order of closure4. If for thepurpose of athlectic, cultural, or civil activites; these must be officially sponsored,

recognized, or approved by the local government.

The requisites for permanent closure:1. Via Ordinance approved by at least two-thirds (2/3) of all members of the Sanggunian2. Such ordinance must have provisions for the maintenance of public safety therein

3. Such property withdrawn may be used or conveyed for any purpose for which other real property belonging to the local government may be lawfully used or conveyed

4. When necessary, an adequate substitute for the public facility that is subject to closure should be provided

5. If a freedom park is permanently closed, there must be a provision for its transfer or relocation to a new site.

For closure by Cities, Municipalities and Barangays1. Via ordinance2. May temporarily close and regulate the use of any local street, road, or any other public place3. For shopping malls, Sunday flea, or night markets, or shopping areas for the sale of goods,

merchandise, foodstuffs and commodities.

LOCAL LEGISLATIVE POWER PRODUCTS OF LEGISLATIVE ACTION:1. ORDINACE- prescribes a permanent rule of conduct.2. RESOLUTION- prescribes a temporary character, or express sentiment. GENERAL REQUIREMENT: Exercised by (Sec. 48)1. sangguniangpanlalawigan for the province2. sangguniangpanlungsod for the city3. sangguniangbayan for the municipality4. sangguniang barangay for the barangay

CONSTITUTIONAL REQUIREMMENT: 1) it must not contravene the Constitution or any statute;2) it must not be unfair or oppressive;3) it must not be partial or discriminatory;4) it must not prohibit but nay regulate trade;5) it must be general and consistent with public policy6) it must not be unreasonable Magtajasvs Pryce Properties, Inc. [234 SCRA 255](Municipal Corporation – Tests of a Valid Ordinance)Facts: The Philippine Amusement and Gaming Corporation (PAGCOR) is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government.PAGCOR decided to expand its operations to Cagayan de Oro City by leasing a portion of a building belonging to Pryce Properties Corporation Inc. for its casino.On December 7, 1992, SangguniangPanlungsod of CDO enacted ordinance 3353, prohibiting the issuance of business permit and cancelling existing business permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of a casino.On January 4, 1993, it enacted Ordinance 3375-93, prohibiting the operation of casino and providing penalty for violation therefore.Pryce assailed the ordinances before the CA, where it was joined by PAGCOR as intervenor.The Court found the ordinances invalid and issued the writ prayed for to prohibit their enforcement. CDO City and its mayor filed a petition for review under Rules of Court with the Supreme Court.

Issue: WON the SangguniangPanlungsod can prohibit the establishment of casino operated by PAGCOR through an ordinance or resolution.

Held: No. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. In the exercise of its own discretion, the Congress may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient.Under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, “gambling and other prohibited games of chance.”Ordinances should not contravene a statue as municipal governments are only agents of the national government. Local councils exercise only delegated powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.The tests of a valid ordinance are well established. A long line of decisions has held that to be valid, an ordinance must conform to the following substantive requirements:1) It must not contravene the constitution or any statute.2) It must not be unfair or oppressive.3) It must not be partial or discriminatory.4) It must not prohibit but may regulate trade.5) It must be general and consistent with public policy.6) It must not be unreasonable.

Presided by(sec. 49): 1.Vice-governor or vice-mayor or punong barangay hewill vote only in case of a tie (because he is not a member of the Sanggunian Perez v. De la Cruz [1969]) 2. Inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer What is the effect of the enforcement of a disapproved ordinance or resolution? A: It shall be sufficient ground for the suspension or dismissal of the official or employee (Sec. 58, R.A. 7160) When is the effectivity of ordinances or resolutions?

A: GR: Within 10 days from the date a copy is posted in a bulletin board and in at least 2 conspicuous spaces. (Sec. 59(a) R.A. 7160)

XPN: Unless otherwise stated in the ordinance or resolution. (Sec. 59(a) R.A. 7160) What ordinances require publication for its effectivityA:1. Ordinances that carry with them penal sanctions. (Sec. 59(c) R.A. 7160)2. Ordinances and resolutions passed by highly urbanized and independent component cities. (Sec. 59(d) R.A. 7160) What are the instances of approval of ordinances?1. If the chief executive approves the same, affixing his signature on each and every page thereof2. If the local chief executive vetoes the same, and the veto is overridden by 2/3 vote of all members of the sanggunian. Note: Local Chief Executive may veto the ordinance only once on the ground that the ordinance is ultra viresand prejudicial to public welfare. The veto must be communicated to the sanggunian within

a. 15 days = provinceb. 10 days = city or municipality Note: Local Chief Executive may veto the ordinance only once on the ground that the ordinance is ultra viresand prejudicial to public welfare. The veto must be communicated to the sanggunian withina. 15 days = provinceb. 10 days = city or municipality Ordinances enacted by the sangguniang barangay shall, upon approval by the majority of all its members, be signed by the punong barangay. (Sec. 54, LGC)REVIEW OF ORDINANCES/RESOLUTIONS

Component City or Municipality Ordinances and Resolutions

Barangay Ordinances

Reviewed by SangguniangPanlalawigan SangguniangPanlungsod or Sangguniang Bayan

Furnish copies of ordinance or resolution within

3 days after approval of ordinance or resolution approving the local devopment plans and public investment programs formulated by the local development councils

10 days after enactment of ALL ordinances

Period to examine/review documents

30 days after receipt of copies, after which the ordinance or resolution is presumed valid if no action is taken

30 days after receipt of copies, after which the ordinance is presumed valid if no action is taken

within the 30 days, it may also be transmitted to the provincial attorney or prosecutor for examination; said atty. or prosecutor shall give his written recommendations within 10 days from receipt of document

Ground to invalidate ordinance or resolution

ordinance or resolution is beyond the power conferred upon the Sanggunian concerned

ordinance is inconsistent with law and city or municipal ordinancesin such case, the sangguniang barangay may adjust, amend or modify the ordinance within 30 days from receipt from the sangguniangpanlungsod or sangguniangbayan

Judicial Intervention

RULES OF COURT, Rule 63Section 4. Local Government Ordinances. – In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.

Perez v. De la Cruz, 27 SCRA 587 (1969) The vice-mayor, as presiding officer of the sanggunian, may not vote to create a tie, and then vote again to break the deadlock. This is because the presiding officer is not a member of the sanggunian. Thus, he can only vote in case of a tie. However, a member of the sanggunian acting as chairman may vote as a member and as chairman, to break the tie. Homeowner’s Association of the Phil., Inc. v. Municipal Board of City of Manila, 24 SCRA 856 (1968) The failure of the Solicitor General to appear in the lower court to defend the constitutionality of an ordinance is not fatal to the case. The determination of the question of WON the Sol-Gen should be required to appear “in any action involving the validity of any treaty, law, executive order, rule or regulation” is a matter left to the discretion of the Court pursuant to the Rules of Court. Inasmuch as the said requirement is not mandatory, but discretionary, non-compliance therewith affected neither the jurisdiction of the trial court nor the validity of the proceedings therein. Ortega vs. QC Government, GR 161400, September 2, 2005

Consti provides that SC may Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts cases where the validity of an ordinance is questioned. There must be a decision by an inferior court before the SC can assume jurisdiction. Also, SC cannot have original jurisdiction over actions for declaratory relief. No factual issues should be discussed by the Supreme Court What is the quorum in the sanggunian?

A: A majority of all the members of the sanggunian who have been elected and qualified. (Sec. 53(a) R.A. 7160) SESSION:1. Regular sessions: fixed by resolution on 1st day of the session immediately following the election of its members2. Minimum numbers of regular sessions: once a week (panlalawigan, panlungsod, bayan) and twice a month for the sangguniang barangay 3. Special session: may be called by the local chief executive or by a majority of the members of the sanggunian cause: when public interest demands Written notice: served personally at the member's usual place of residence at least 24 hours before the session Unless otherwise concurred in by 2/3 vote of the sanggunian members present, there being a quorum, no other matters may be considered except those stated in the notice o Open to the public UNLESS a closed-door session is ordered by an affirmative vote of a majority of the members present (there being a quorum) in the public interest or for reasons of security, decency, or morality. o No 2 sessions may be held in a single day INITIATIVE AND REFERENDUM INITIATIVEThe legal process whereby the registered voters of a LGU may directly propose, enact or amend any ordinance. (Sec. 120 R.A. 7160)

REFERENDUM

The legal process whereby the registered voters of the LGU may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126 R.A. 7160) Who may exercise — all registered voters of the provinces, cities, municipalities and barangays Requirements —a. referendum or initiative affecting a resolution or ordinance passed by the legislative assembly of a province or city: petition must be signed by at least 10% of the registered voters in the province or city, of which every legislative district must be represented by at least 3% of the registered voters therein; Provided, however, That if the province or city is composed only of 1 legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein.b. referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3% of the registered voters thereinc. referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay Procedure in Local Initiative —a. not less than 1,000 registered in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolutionb. if no favorable action thereon is made by local legislative body within 30 days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concernedc. 2 or more propositions may be submitted in an initiatived. proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signaturese. the petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the LGUf. if the required number of the signatures is obtained, the COMELEC shall then set a date for the initiative for approval of the proposition within 60 days from the date of certification by the COMELEC in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays Effectivity of Local Propositions — If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC Limitations on Local Initiatives —a. the power of local initiative shall not be exercised more than once a yearb. initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enactc. if at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided Limitations Upon Local Legislative Bodies — Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within 6 months from the date therefrom, and may be amended, modified or repealed by the local legislative body within 3 years thereafter by a vote of 3/4 of all its members: Provided, however, that in case of barangays, the period shall be 18 months after the approval thereof Local Referendum — Any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved

Courts are not precluded from declaring null and void any proposition approved for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. Garcia v. COMELEC, 237 SCRA 279 (1994) A resolution is a proper subject of an initiative. This is based on Sec. 32, Art. VI of the Constitution, which directs Congress to provide a system of initiative and referendum where the people can directly propose and enact laws or approve or reject any act or law passed by Congress or local legislative body. An act includes a resolution. The LGC did not limit the coverage of local initiatives to ordinances alone. Sec. 120 merely defines the concept of legal initiative but does not deal with the subjects that can be taken up in a local initiative. The correct provision would be Sec. 124 which does not limit the application of the initiatives to ordinances, but to all subjects or matters which are within the legal powers of the sanggunian to enact. SBMA v. COMELEC, 262 SCRA 492 (1996) There is a difference between initiative and referendum. Initiative is the power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly. Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become law. These law-making powers belong to the people and the COMELEC only exercises administration and supervision of the process. Hence, COMELEC cannot control or change the substance or the content of the legislation. CORPORATE POWERS

What are the corporate powers of an LGU? 1.To have continuous succession in its corporate name ;2. To sue and be sued ; Note: Only the Provincial Fiscal or the Municipal Attorney can represent a province or municipality in lawsuits. This is mandatory. Hence, a private attorney cannot represent a province or municipality.3. To have and use a corporate seal; Note: Any new corporate seals or changes on such shall be registered with DILG.4. To acquire and convey real or personal property;5. To enter into contracts; and6. To exercise such other powers as granted to corporations (Sec. 21, R.A. 7160) Requisites of valid municipal contracts:1. LGU has express, implied or inherent power to enter into a particular contract;2. Entered into by proper department, board, committee, or agent;3. must comply with substantive requirements;4. must comply with formal requirements;5. in case entered into by local chief executive on behalf of LGU, prior authorization by Sanggunian concerned is needed 

Difference Between the Political Nature and Corporate Nature of LGUs

Political/Governmental

Corporate/Municipal

Political subdivision of national government Corporate entity representing inhabitants of its territory

Administering the powers of state and promoting public welfare

Exercised for special benefit and advantage of the community

Includes the legislative, judicial, public and political Includes those which are ministerial, private and corporate

LGU cannot be held liableExcept:if statute provides otherwiseArt. 2189, CC

Can be held liable ex contractu or ex delicto

What are ultra vires contracts?A: These are contracts entered into without the first and third requisites. Such are null and void and cannot be ratified or validated.

NAWASA v. Dator, 21 SCRA 355 (1967)

The authority of a municipality to fix and collect rents for water supplied by its waterworks system is expressly granted by law. However, even without these provisions, the authority of the municipality to fix and collect fees from its waterworks would be justified from its inherent power to administer what it owns privately. The municipality enjoys the attributes of ownership under the Civil Code, i.e. the right to use or enjoy the property. NAWASA may regulate and supervise the water plants owned and operated by cities and municipalities, the ownership thereof is vested in the municipality and I the operation thereof, the municipality acts in its proprietary capacity. If a governmental entity, like NAWASA, were allowed to collect the fees that the consuming public pay for the water supplied to them by the municipality, the latter, as owner, would be deprived of the full enjoyment of its property.

Province of Zamboanga v. City of Zamboanga, 22 SCRA 133 (1968)

If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it; if the property is owned in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control, in which case, the municipality cannot be deprived of it without due process and payment of just compensation.

Rabuco v. Villegas, 55 SCRA 656 (1974)

Petitioners assail the authority of the Manila Mayor to demolish their houses or eject them as tenants of a parcel of land in Malatek, citing RA 3120 as authority. The lots in question are manifestly owned by the city in its public and governmental capacity and are therefore public property over which Congress has absolute control as distinguished from patrimonial property owned by it in its private or proprietary capacity of which it could not be deprived without due process and without just compensation. It was not an exercise of the power of eminent domain without just compensation but simply as a manifestation of its right and power to deal with state property.

Municipal Board of Cebu City v. CTA, 12 SCRA 645 (1964)

The city constitutes a political body corporate created by a special charter endowed with the power which pertains to a municipal corporation. As such it is authorized to levy real estate taxes for its support. Moreover, the city can validly appeal the decision of the Board of Assessment of Appeals exempting lots from real property tax, as no entity is more adversely affected by such decision.

MUNICIPAL LIABILITY

RULE: Local government units (LGUs) and their officials are not exempt from liability for death or injury to persons or damage to property (Sec. 24, R.A. 7160)

1. Specific provisions of law making LGUs liable:

a. Art. 2189, NCC: Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.

The City of Manila was held liable for damages when a person fell into an open manhole in the streets of the city. (City of Manila vs. Teotico, 22 SCRA 267)

Despite a management and operating contract with Asiatic Integrated Corporation over the Sta. Ana Public Market, the City of Manila is solidarily liable for injuries sustained by an individual who stepped on a rusted nail while the market was flooded. (Jimenez vs. City of Manila, 150 SCRA 510)

Liability of the City for injuries due to defective roads attaches even if the road does not belong to the LGU, as long as the City exercises control or supervision over said road. (Guilatco vs. City of Dagupan, 171 SCRA 382)

b. Art. 2180 (6th par.), NCC: The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.

Merritt vs. Government of the Philippine Islands, 34 Phil 311

FACTS: E. Merritt was a constructor who was excellent at his work. One day, while he was riding his motorcycle along Calle Padre Faura, he was bumped by a government ambulance. The driver of the ambulance was proven to have been negligent. Because of the incident, Merritt was hospitalized and he was severely injured beyond rehabilitation so much so that he could never perform his job the way he used to and that he cannot even earn at least half of what he used to earn.

In order for Merritt to recover damages, he sought to sue the government which later authorized Merritt to sue the government by virtue of Act 2457 enacted by the legislature (An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit). The lower court then determined the amount of damages and ordered the government to pay the same.

ISSUE: Whether or not the government is liable for the negligent act of the driver of the ambulance.

HELD: No. By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the damages suffered by private individuals in consequence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed on the part of the state in the organization of branches of public service and in the appointment of its agents. The State can only be liable if it acts through a special agent (and a special agent, in the sense in which

these words are employed, is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him.

In the case at bar, the ambulance driver was not a special agent nor was a government officer acting as a special agent hence, there can be no liability from the government. “The Government does not undertake to guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, difficulties and losses, which would be subversive of the public interest.”

c. Art. 34, NCC: When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

The LGU is subsidiarily liable for damages suffered by a person by reason of the failure or refusal of a member of the police to render aid and protection in case of danger to life and property.

2. Liability for Tort

Despite the clear language of Sec. 24, RA 7160, that the local government units and their officials are not exempt from liability for death or injury to persons or damage to property, it is still unclear whether liability will accrue when the local government unit is engaged in governmental functions. Supreme Court decisions, interpreting legal provisions existing prior to the effectivity of the Local Government Code, have come up with the following rules on municipal liability for tort:

a. If the LGU is engaged in governmental functions, it is not liable.

In Palafox vs. Province of Ilocos Norte, 102 Phil 1186, as well as in Palma vs. Garciano, it was held that the prosecution of crimes is a governmental function, and thus, the LGU may not be held liable therefor.

The Municipality was not held liable for torts committed by a regular employee, even if the dump truck used belonged to the municipality, inasmuch as the employee was discharging governmental (public works) functions. (Municipality of San Fernando vs. Firme 195 SCRA 692)

b. If engaged in proprietary functions, LGU is liable.

Operation of a ferry service is a proprietary function. The municipality is negligent and thus liable for having awarded the franchise to operate ferry service to another notwithstanding the previous grant of the franchise to the plaintiff. (Mendoza vs. de Leon, 33 Phil 508)

Holding a town fiesta is a proprietary function. The Municipality of Malasigue, Pangasinan, was held liable for the death of a member of the zarzuela group when the stage collapsed, under the principle of respondeat superior. (Torio vs. Fontanilla, 85 SCRA 599)

Liability for illegal dismissal of an employee.

Inasmuch as there is no finding that malice or bad faith attended the illegal dismissal and refusal to reinstate respondent Gentallan by her superior officers, the latter cannot be held personally

accountable for back salaries. (Municipality of Jasaan vs. Gentallan, G.R. No. 154961, May 9, 2005)

A Municipal corporation, whether or not included in the complaint for recovery of back salaries due to wrongful removal from office is liable. (City of Cebu vs. Judge Piccio, 110 Phil 558)

Local officials may also be held personally liable.

Where the city officials ordered the construction of a drug rehabilitation center on the open space donated by the subdivision owner in violation of PD 1216, the cost of demolition of the drug rehabilitation center should be borne by the city officials who ordered the construction because they acted beyond the scope of their authority and with evident bad faith. (City of Angeles vs. CA, 261 SCRA 90)

The Provincial Governor and the members of the Provincial Board were held liable for damages in their personal capacity arising from the illegal act of dismissing employees in bad faith. (Rama vs. Court of Appeals, 148 SCRA 496)

Mayor Sabillano was adjudged personally liable for payment of back salaries of a policeman who was illegally dismissed. According to the Supreme Court: “The Mayor cannot hide behind the mantle of his official capacity and pass the liability to the Municipality of which he is a Mayor.” (Nemenzo vs. Sabillano, 25 SCRA 1)

3. Liability for Violation of Law

When the Mayor refused to abide by a TRO issued by the court, he may be held in contempt. (Moday vs. CA, 1997)

When the LGU does not pay the statutory minimum wage (mandated by law) even if there is lack of funds. (Racho vs. Municipality of Ilagan, Isabela, 1968)

4. Liability for Contracts

General Rule: Local government unit is liable only for contracts that are intra vires.

Intra vires means “within the powers” Ultra vires means beyond the powers"

If an act requires legal authority and it is done with such authority, it is characterized in law as intra vires ("within the powers"). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".

Doctrine of Implied Municipal Liability

A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract (Province of Cebu vs. IAC, 147 SCRA 447). It applies to all cases where money or other property of a party is received under such circumstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same.

Province of Cebu vs. IAC, 147 SCRA 447

FACTS: On 1964, while then incumbent Governor Espina was on official business in Manila, the Vice-Gov, Almendras and 3 members of the Provincial Board enacted A Resolution donating to the City of Cebu an area of over 380 hectares. The deed of donation was immediately executed in behalf of the

Province of Cebu by Vice-Governor Almendras and accepted in behalf of the City of Cebu by Mayor Sergio Osmeña, Jr. The document of donation was prepared and notarized by a private lawyer.

The donated lots were to be sold by the City of Cebu to raise funds that would be used to finance its public improvement projects. Upon his return from Manila, Governor Espina disagreed with the donation and to prevent the sale of the lots, the officers and members of the Cebu Mayor's League along with some taxpayers, including Atty. Garcia, filed a case seeking to have the donation declared illegal, null and void Named defendants in the suit were the City of Cebu, City Mayor Sergio Osmeña, Jr. and the Cebu provincial officials responsible for the donation of the province-owned lots.

After the city announced the sale of the lots, Governor Espina, engaged the services of respondent Garcia, for the annulment of the deed of donation

The Provincial Board passed a resolution authorizing the Provincial Attorney, Baguia, to enter his appearance for the Province of Cebu and for the incumbent Governor, Vice-Governor and members of the Provincial Board in this case.

For services rendered Atty. Garcia filed a Notice of Attorney's Lien, praying that his statement of claim of attorney's lien in said case be entered upon the records. To said notice, petitioner Province of Cebu opposed: the payment of attorney's fees are not allowed by law.

ISSUE: whether the governor may validly engage the services of a private lawyer and whether the province may be held liable to pay the fees.

HELD: Collaboration of a private law firm with the fiscal and the municipal attorney is not allowed. Sec. 1683 Revised Administrative Code:”The provincial fiscal shall represent the province and any municipality when the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.”

The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it.

Ratio: (1) local government should not be burdened with the expenses of hiring a private lawyer; (2) the interests of the municipal corporation would be best protected if a government lawyer handles its litigations.

However, the circumstances obtaining in the case at bar are such that the rule (governor must be authorized by resolution to hire private lawyer) cannot be applied. The Provincial Board would never have given such authorization. The present case, the controversy involved an intramural fight between the Provincial Governor on one hand and the members of the Provincial Board on the other hand. The Provincial Board would not adopt a resolution authorizing the Governor to employ Atty. Garcia to act as counsel for the Province of Cebu for the purpose of filing and prosecuting a case against the members to the same Provincial Board According to the claimant.

MUNICIPALITY OF PILILLA, RIZAL vs. COURT OF APPEALS, 233 SCRA 484

FACTS: Atty. Felix E. Mendiola served as counsel for the Municipality of Pililia in a collection suit for unpaid business taxes, storage permit fee, mayor’s permit fee, sanitary inspection fee, and the cost of the suit against private respondent Philippine Petroleum Corporation (PPC). The municipality won in the trial court, and when PPC elevated the case to the Supreme Court, the SC affirmed the aforesaid judgment. The judgment became final and executory and the records were remanded to the trial court for execution.

In connection with the execution of said judgment, Atty. Felix E. Mendiola filed a motion in behalf of the municipality for the examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of computing business tax. Defendant corporation filed a manifestation that Pililla Mayor NicomedesPatenia received from it the sum of P11,457,907.00 as full satisfaction of the above-mentioned judgment of the Supreme Court, as evidence by the release and quitclaim documents executed by said mayor. The RTC denied the municipality's motion for examination and execution of judgment on the ground that the judgment had already been satisfied.

It was when the case was only when the case was brought before to the CA that respondent PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner municipality.The Court of Appeals dismissed the petition for having been filed by a private counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality of Pililla through the proper provincial or municipal legal officer.

Issue: Whether or not Atty. Mendiola can represent the Municipality of Pilila

Held: No. The Court of Appeals is correct in holding that Atty. Mendiola has no authority to file a petition in behalf of and in the name of the Municipality of Pililla. Section 1683 of the Revised Administrative Code provides:

Section 1683.Duty of fiscal to represent provinces and provincial subdivisions in litigation. — The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province.

When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.

Only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it.

Exception: LGU may not be estopped in order to validate a contract which the LGU is not authorized to make even if it has accepted the benefits thereunder (San Diego vs. Municipality of Naujan, 1960)

A private individual who deals with a LGU is imputed with constructive knowledge of the extent of the power or authority of the LGU to enter into contracts. Thus, ordinarily, the doctrine of estoppel does not lie against the LGU.

Mancenido vs. Court of Appeals, G.R. No. 118605, April 12, 2000

FACTS: Petitioners, who are public school teachers, filed a case against the provincial officials to compel them to pay their claims for unpaid salary increases. In this petition for review on certiorari, they argue that the CA erred in recognizing the authority of the council of the provincial officials to file a notice of appeal.

HELD: The SC held that in resolving whether a local government official may secure the services of private counsel in an action filed against him in his official capacity, the nature of the action and the relief sought are to be considered. In view of the damages sought in the case at bar which, if granted, could result in personal liability, respondents could not be

LOCAL OFFICIALS

Provisions Applicable to Elective and Appointive Officials

A. Prohibited Business and Pecuniary InterestSection 89 of Republic Act 7160 provides that; it shall be unlawfull for any local government official or employee, directly or indirectly, to:1. Engage in any business transaction with the local government unit in which he is an official

or employee or over which he has the power of supervision, or with any of its authorized boards, officials, agents, or attorneys whereby money is to be paid, or property or any other thing of value isto be transferred, directly or indirectly, out of the resources of thelocal government unit to such person or firm;

2. Hold such interest in any cockpit or other games licensed by a local governemtn unit;3. Purchase any real estate or other property forfeited in favor of such local government unit

for unpaid taxes or assessment, or by virtue of a legal process at the instance of the said local government nuit;

4. Bea surety for any person contracting or doing business with the local government unit for which a surety is required; and

5. Possess or use any public property of the local government unit for private purposes.

B. Practice of ProfessionSection 90 of R.A. 7160 states that:1. 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;

2. Saggunian members may practice their profession, 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:

a. 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;

b. Appear as counsel in any criminal case whrein an officer or employee of the national or local government is accused of an offense committed in relation to his office.

c. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and

d. Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the government.

3. Doctors of medicine may practice their profession even during official hours of work only on occassions of emergency: provided, That the officials concerned do not derive monetary compensation therefrom.

C. Prohibition against Appointment1. Section 7, Article IX-B of the Constitution states that, no elective official shall be eligilbefor

appointment or designation in any capacity to any public office or position during his tenure.Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment n the Govenrment or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

2. Also Section 6, of Article IX-B of the 1987 Constitution provides that, no candidate who has lost in any election shall, within one year after such election, be appointed to any office in

the Government of any government-owned or controlled corporations or in any of its subsidiaries.

However, a losing candidate in barangay elections are not included in the prohibition.

Elective Local Officials

Qualifications and Disqualifications

Section 39 of Republic Act 7160 provides for the qualifications of an Elective Local Official:

(a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniangpanlalawigan, sangguniangpanlungsod, or sangguniangbayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice-governor, or member of the sangguniangpanlalawigan, or mayor, vice-mayor or member of the sangguniangpanlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day.

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

(d) Candidates for the position of member of the sangguniangpanlungsod or sangguniangbayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniangkabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day.

In the case of Garvidavs Sales, 271 scra 767 petitioner who was over 21 years of age on the day of the election was ordered disqualified by the Supreme Court when the latter rejected the contention of the petitioner that she was qualified because she was less then 22 years old. The phrase “not more than 21 years old” is not equivalent to “less than 22 years old”.

Section 40 under the same Act provides for the 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 non-political 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.

Manner of Election

(a) The governor, vice-governor, city mayor, city vice-mayor, municipal mayor, municipal vice-mayor, and punong barangay shall be elected at large in their respective units by the qualified voters therein. However, the sangguniangkabataan chairman for each barangay shall be elected by the registered voters of the katipunanngkabataan, as provided in this Code.

(b) The regular members of the sangguniangpanlalawigan, sangguniangpanlungsod, and sangguniangbayan shall be elected by district as follows:

First and second-class provinces shall have ten (10) regular members; third and fourth-class provinces, eight (8); and fifth and sixth-class provinces, six (6): Provided, That in provinces having more than five (5) legislative districts, each district shall have two (2) sangguniangpanlalawigan members, without prejudice to the provisions of Section 2 of Republic Act No. 6637. Sangguniang barangay members shall be elected at large. The presidents of the leagues of sanggunian members of component cities and municipalities shall serve as ex officio members of the sangguniangpanlalawigan concerned. The presidents of the ligangmga barangay and the pederasyonngmgasangguniangkabataan elected by their respective chapters, as provided in this Code, shall serve as ex officio members of the sangguniangpanlalawigan, sangguniangpanlungsod, and sangguniangbayan.

(c) In addition thereto, there shall be one (1) sectoral representative from the women, one (1) from the workers, and one (1) from any of the following sectors: the urban poor, indigenous cultural communities, disabled persons, or any other sector as may be determined by the sanggunian concerned within ninety (90) days prior to the holding of the next local elections as may be provided for by law. The COMELEC shall promulgate the rules and regulations to effectively provide for the election of such sectoral representatives. (Section 41, R.A. 7160)

Date of ElectionEvery three years on the second Monday of May, unless otherwise provided by law.

Term Limits (Terms of Office)Length of Term

For elective local officials, except barangay officials:o Three (3) years, starting from noon of June 30, 1992, or such date as may be provided by

law. For elective barangay officials and members of the SangguniangKabataan:

o Three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994. (R.A. 9164: Synchronized Barangay and SangguniangKabataan Elections 2002)

No elective local official shall serve for more than three (3) consecutive terms in the same position.

a. Reckoned from the 1994 barangay electionsb. Voluntary renunciation of office for any length of time shall not be considered as an

interuption.

The three-term limit on a local official is to be understood to refer to terms for which the official concerned was elected. Thus a person who was elected Vice Mayor in 1988 and who, because of the death of the Mayor, became mayor in 1989, may still be eligible to run for the position of mayor in 1998, even if elected as such in 1992 and 1995. ( Borja vs. Comelec, G.R.No. 133495, September 3, 1998).

Consequently, it is not enough that an individual has served three consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. (Adormeo v. Comelec, G.R.No. 147927, February 4, 2002). Also citing the case of Ongvs, Alegre, G.R. Nos. 163296 & 163354, January 23,

2006, for the three term limit for elective local government officials to apply, two conditions must concur: (a) the official concerned has been elected for three consecutive terms in the same local government post; and (b) he has served three consecutive terms.

Rules for FULLY SERVED term1. Voluntary renunciation of the office for any length of time shall not be considered as an

interruption in the continuity of service.2. The conversion of a municipality to a city without interruption of the term of an elective

official is not considered an iterruption in the continuity of service. (Latasa vs. COMELEC, G.R. No. 154829, december 10, 2003)

3. Election via recall election does not satisfy a fully-served term. (Lonzanidavs COMELEC, G.R. No. 135150, July 28, 1999)

4. The imposition of preventive suspension should not be considered an interruption that allows an elective official to stay in office for more than three terms. (Aldovino vs. COMELEC, G.R. No. 184836, december 23, 2009)

In the case of Socrates vs COMELEC, G.R. No. 154512, November 12, 2002, after three consecutive terms, an elective official cannot run for immediate re-election for a fourth term. The prohibited election refers to the next regular election for the same office following the same office following the third consecutive term. Any subsequent election, like recall election, is no longer covered by the prohibition for two reasons: (1) a subsequent election like recall election, is no longer an immediate re-election after three consecutive terms; and (2) the intervening period constitutes an involuntary interruption in the continuity of service.

The constitution does not require that the interruption be a full term of 3 years. The clear intent of the framers of the law is that iterruption for any length of time is sufficient to break an elective local official’s continuity of service.

In the case of Latasavs COMELEC G.R. No. 154829, December 10, 2003, the mayor of a municipality held his post for three terms. During his last term, the municipality became a city and ge was declared hold-over mayor by the charter. The said mayor should not be allowed to run again. If he were allowed to do so, he would have served the same people for a term more than what is allowed by law.

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective official’s stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within suspension period. The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. (Aldovinovs COMELEC)

SUCCESSION OF ELECTIVE OFFICIALS

Permanent VacancyUnder Section 44 of the Local Government Code, permanent vacancy occurs when an

elective local official:1. Fills a higher vacant office2. Refuses to assume office3. Fails to qualify4. Dies5. Is removed from office

6. Voluntarily resigns7. Otherwise permanently incapacitated from discharging the functions of his office.

Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. – (a) 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 or, in case of his permanent inability, the second highest ranking sanggunianmember, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office 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 sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunianmember, shall become the punong barangay.

A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots

The successors as defined herein shall serve only the unexpired terms of their predecessors

Permanent Vacancies in the Sanggunian. – (a) Permanent vacancies in the sanggunian where automatic succession 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 sangguniangpanlalawigan and the sangguniangpanlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniangpanlungsod of component cities and the sangguniangbayan;

(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 hereinabove 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 herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a 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.

General Rule: the appointee under Section 45 must be a nominee of the political party under which the sanggunian member had been elected.

Conditions sine qua non: There must be a nomination and certificate of membership from the highest official of the political party or else the appointment is:

1. Null and Void ad inito; and2. a ground for administrative action against the responsible official.

If sanggunian member who caused vacancy does not belong to any political party, the local chief executive shall appoint a qualified person, upon recommendation of the sanggunian.

The right behind the right given to a political party to nominate a replacement when a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. (Navarro vs Court of Appeals, G.R. No. 141307, March 28, 2001)

Temporary VacancyTemporary vacancy occurs when the local chief executive is due to:

Leave of absence Traveling abroad Suspension from office

Extent of duty exercised by Temporary SuccessorGeneral Rule: The successor shall automatically exercise the powers and perform the duties and

functions of the local chief executive.Exception: The power to appoint/suspend/dismiss employees can be exercised on ly if the

period of incapacity exceeds 30 working days; or if the successor is appointed in writing, if the authorization specifies such powers to the successor.

If the local chief executive is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days, he may designate in writing the officer-in-charge.

General Rule: the local chief executive cannot authorize any local official to assume the powers, or duties or the functions of his office, other than the vice-governor, city or municipal vice-mayor, or highest ranking sangguniang barangay member.

The authorization shall specify the powers and functions that the officer-in-charge shall exercise.If the local chief executive fails or refuses to issue the authorization, the vice-governor, city or

municipal vice-mayor, or highest ranking sangguniang barangay member has right to assume the powers, duties, and functions of the office on the fourth say of absence.

Exception: the power to appoint, suspend and dismiss employees.

Termination of Temporary IncapacityUpon submission to the sanggunian of a written declaration that he has reported back to office.

If the temporary incapacity is due to legal causes, he must also submit the necessary documents showing that the legal causes no longer exist.

COMPENSATION

The compensation of local officials and personnel shall be determined by the sanggunian concerned: Provided, That the increase in compensation of elective local officials shall take effect only after the terms of office of those approving such increase shall have expired: Provided, further, That the increase in compensation of the appointive officials and employees shall take effect as provided in the ordinance authorizing such increase: Provided, however, That said increases shall not exceed the limitations on budgetary allocations for personal services provided under Title Five, Book II of this Code: Provided, finally, That such compensation may be based upon the pertinent provisions of Republic Act

Numbered Sixty-seven fifty-eight (R.A. No 6758), otherwise known as the “Compensation and Position Classification Act of 1989”.

The punong barangay, the sangguniang barangay members, the sangguniangkabataan chairman, the barangay treasurer, and the barangay secretary shall be entitled to such compensation, allowances, emoluments, and such other privileges as provided under Title One, Book III of this Code.

Elective local officials shall be entitled to the same leave privileges as those enjoyed by appointive local officials, including the cumulation and commutation thereof. (Section 81, LGC)

RECALLThe ground for recall is loss of confidence upon the local government official.The right to recall is given to the registered voters of the Local government unit to which the

local elective official subject to recall belongs.Commencement of Recall Process:

By a petition of a registered voter supported byo 25% of registered voters if local government unit has population not more than 20,000o 20% of registered voters if local government unit has voting population of 20,000 to

75,000. In no case shall petitioners be less than 5,000o 15% of registered voters if the local government unit has voting population of 75,000 to

300,000. In no case shall petitioners be less than 15,000.o 10% of registered voters if the local government unit has voting population of more

than 300,000. In no case shall petitioners be less than 45,000.

Election on Recall Barangay, city or municipal officials: not later than 30 days from completion Provincial officials: not later than 45 days from compleyion.

Effects to official sought to be RecalledNot allowed to resign while recall process is in process. And automatically considered as

candidate and is entitled to voted upon.

Effectivity of RecallUpon election and proclamation of a successor. If the official sought to be recalled receive the

highest number of votes, confidence in him is affirmed and he shall continue in office.

Limitation on RecallLocal elective official may be subject of a recall election only once during his term of office for

loss of confidence. No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election.

RESIGNATION

Resignation of Elective Local Officials. – (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities;

(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in the case of sanggunian members; and

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

(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of the Interior and Local Government.

(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working days from receipt thereof.

(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

Grievance procedureIn every local government unit, the local chief executive shall establish a procedure to inquire

into, act upon, resolve or settle complaints and grievances presented by local government employees.

DISCIPLINE OF ELECTIVE OFFICIALSGrounds 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) consecutive working days, except in the case of members of the sangguniangpanlalawigan, sangguniangpanlungsod, sangguniangbayan, and sangguniang barangay;(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and(h) 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.

Also, under Section 58 of the Local Government Code, any attempt to enforce and disapproved ordinance or resolution on local development plans or public investment programs, shall be sufficient ground for the suspension or dismissal of the officer or employee concerned.

Jurisdiction of administrative complaints ( Section 61, LGC):

(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sangguniangpanlalawigan whose decision may be appealed to the Office of the President; and

(c) A complaint against any elective barangay official shall be filed before the sangguniangpanlungsod or sangguniangbayan concerned whose decision shall be final and executory.

If the penalty is removal, it must be order of the proper court. The Sanggunians cannot order the removal of an erring elective official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code.

If the acts allegedly committed by the official are of grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. If it is found that the penalty will be lower than removal, the court still retains its jurisdiction. (Sangguniang Barangay of Don Mariano Marcos vs Martinez 2008)

The ombudsman have primary jurisdiction on acts or omissions of a public officer or employee in cases cognizable by the Sandiganbayan, with a salary grade of 27 or higher. (Section 15 of R.A. 6770)

The ombudsman exercises concurrent jurisdiction over administrative cases against officials occupying positions below salary grade 27. Even if filed in the Ombudsman and the Sanggunian concerned, identical complaints will not violate the rule against forum shopping because the complaints are in the nature of an administrative case.

PREVENTIVE SUSPENSION

Preventive Suspension under the Local Government CodeIt will be imposed at any time the issues are joined, when the evidence of guilt is strong, and

that any of the following are present: The charge against the officer or employee should involve dishonesty, oppression or grave

misconduct or neglect in the performance of duty; The charges should warrant removal from office; or The respondent’s continued stay in office would prejudice the case filed against him.

Rules on length of Preventive Suspension Not longer than 60 days Cannot be imposed 90 days before an election; if imposed before said period but extends to

such, automatically lifted upon start of the 90 day period Cannot be suspended for more than 90 days within a single year on the same fround

existing and known at the time of the first suspension; Once lifted, official is deemed reinstated without prejudice to the continuance of the

proceedings against him.

Pending preventive suspension No salary shall be paid during period of suspension, but if subsequently exonerated and

reinstated, he shall be paid full that accrued during such suspension; Accorded full opportunity to appear and defend himself, to confront witnesses, and require

attendance of witnesses and production of evidence.

While Preventive Suspension under Republic Act 6770 (Ombudsman)The Ombudsman or his Deputy may preventively suspend any officer or employee under his

authority pending an investigation: Is there is a reasonable ground to believe that the respondent has committed the act or acts

complained of; The evidence of culpability is strong The gravity of the offense so warrants; 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.

Length of Preventive Suspension:Until the case is terminated by the Office of the Ombudsman but not more than six months, (a)

without pay; and (b) when the delay in the disposition of the case by the Ombudsman is due to the fault, negligence or petition of the respondent, the period of such delay shall not be counted in computing the period of suspension herein proviced.

REMOVAL

An elective official may be removed by order of the proper court.The penalty of removal from office as a result of an administrative investigation shall be

considered a bar to the candidacy of the respondent for any elective position. (Section 66, LGC)

ADMINISTRATIVE APPEAL

Decisions may, within 30 days from receipt thereof, be appealed to.

To Whom Appealable Decisions of SangguniangPAnglungsod of component cities, and Sangguniang Bayan, may be

appealed to SangguniangPanlalawigan Decisions of SangguniangPanlalawigan and SangguniangPanglungsod of highly urbanized cities

or independent component cities, may be appealed to the Office of the President Decisions of the Office of the President, is final and executor.

The appeal shall not prevent a decision from being final and executory.

Doctrine of CondonationA public official cannot be removed for administrative misconduct committed during a prior

term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases, as these are violations against the state itself. (Aguinaldo vs Santos 1992).

According to the case of Malinaovs Reyes, 255 scra 616, the re-election of a local official bars the continuation of the administrative case against him, inasmuch as the re-election of the official is tantamount to condonation by the people of whatever past misdeeds he may have committed.

APPOINTIVE LOCAL OFFICIALS

Responsibility for human resources and development – the local chief executive shall be responsible for human resources and development in his unit and shall take all personnel actions in accordance with the Constitution, pertinent laws, including such policies, guidelines and standards as the Civil Service Commission may establish; Provided that the local chief executive may employ emergency or casual employees or laborers paid on a daily wage or piecework basis and hired through job orders for local projects authorized by the sanggunian concerned, without need of approval or attestation by the Civil Service Commission, as long as the said employment shall not exceed sis months.

In the case of De Rama vs Court of Appeals, G.R. No. 131136, February 28, 2001, it was held that the constitutional prohibition on so-called “midnight appointments”, specifically those made within two months immediately prior to the next presidential elections, applies only to the President or to the Acting President. There is no law that prohibits local elective officials from making appointments during the last days of their tenure absent fraud on their part, when such appointments are not tainted by irregularities or anomalies which breach laws and regulations governing appointments.

Discipline of Appointive OfficialsThe power to discipline is specifically granted by the Revised Administrative Code to

heads of departments, agencies, and instrumentalities, provinces, and cities. The appointing authority is generally the disciplinary authority.

JurisdictionExcept as otherwise provided by law, the local chief executive may impose the penalty:

of removal from service, demotion in rank, suspension for not more than one (1) year without pay, fine in an amount not exceeding six (6) months salary, or reprimand and otherwise discipline subordinate officials and employees under his

jurisdiction. If the penalty imposed is suspension without pay for not more than thirty (30) days, his

decision shall be final. If the penalty imposed is heavier than suspension of thirty (30) days, the decision shall

be appealable to the Civil Service Commission, which shall decide the appeal within thirty (30) days from receipt thereof.

Resignation of Appointive OfficialsRequisites to Constitute Resignation

Intention to relinquish a part of the term Act of relinquishment Acceptance by the proper authority

Elements of Abandonment: Intent to abandon And overt act by which the intention is to be carried into effect.

INTERGOVERNMENTAL RELATIONS

I. National Government and Local Government Unitsi. National Supervision over Local Government Units

ii. Duty of National Government Agencies in the Maintenance of Ecological Balance

II. Relations with the Philippine National Policei. Powers of Local Chief Executives over the Units of the Philippine National Police

III. Inter-Local Government Relationsi. Provincial Relations with Component Cities and Municipalities

ii. Review of Executive Ordersiii. Submission of Municipal Questions to the Provincial Legal Officer or Prosecutoriv. City and Municipal Supervision over their respective Barangaysv. Cooperative Undertakings among Local Government Units

IV. Relations with People’s and Nongovernmental Organizationsi. Role of People’s and Non-governmental Organizations

ii. Linkages with People’s and Non-Governmental Organizationsiii. Assistance to People’s and Non-Governmental Organizations

V. Mandated Local Agenciesi. Local School Board

ii. Local Health Boardiii. Local Development Counciliv. Local Peace and Order Council

VI. Settlement of Boundary Disputesi. Jurisdictional Responsibility for Settlement of Boundary Dispute

ii. Appeal

I. NATIONAL GOVERNMENT AND LOCAL GOVERNMENT UNITSi. National Supervision over the Local Government Units –

The President shall exercise general supervision over local government units to ensure that their acts are within the scope of their prescribed powers and functions

The President shall exercise supervisory authority directly over:a. Provinces;b. Highly Urbanized Cities;c. Independent Component Cities;d. Through the province with respect to component cities and

municipalities; ande. Through the city and municipality with respect to Barangays.

As to Project Implementation Functions, National Agencies and offices shall coordinate with one another and with the local government units concerned in the discharge of these functions. They shall ensure the participation of the local government units both in the planning and implementation of said National Projects.

As to provide Financial, Technical, or other forms of assistance to the local government unit, upon request of the local government, The President may direct the appropriate national agency to provide assistance. Such assistance shall be extended at no cost to the local government concerned.

For information and guidance, The National Agencies and offices including GOCC’s with field units or branches in the province, city or municipality shall furnish monthly reports including duly certified budgetary allocations and expenditures.

ii. Duty of National Government Agencies in the Maintenance of Ecological Balance –

It shall be the duty of every national agency or GOCC authorizing or involved in the planning and implementation of any project or program that may cause pollution, climate change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover and extinction of animal or plant species to CONSULT with the LGUs, Nongovernmental Organizations and other sectors concerned:

a. To explain the goals and objectives of project or programs;b. Its impact upon the people and the community in terms of

environmental or ecological balance; andc. To measure that will be undertaken to prevent or minimize the

adverse effect thereof.

iii. Prior Consultation Required –

No project or program shall be implemented by government authorities unless consultations in Sec. 25 (c) and Sec 26 of the LGC are complied with and prior approval of the Sanggunian concerned is obtained: Provided, that occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

II. RELATIONS WITH THE PHILIPPINE NATIONAL POLICEi. Powers of Local Chief Executives over the Units of the Philippine National Police

– The extent of operational supervision and control of local chief

executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdiction shall be governed by the provisions of RA No. 6975 (DILG Act of 1990) and the rules and regulations issued pursuant thereto.

III. INTER-LOCAL GOVERNMENT RELATIONS

i. Provincial Relations with Component Cities and Municipalities –

The province through the governor shall ensure that every competent city and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and functions. Highly urbanized cities and independent component cities shall be independent of the province.

ii. Review of Executive Orders –

Except as otherwise provided under the Constitution and special statutes. The governor shall review all executive orders promulgated by the component city or municipal mayor within his jurisdiction. The city or municipal mayor shall review all executive orders promulgated by the punong barangay within his jurisdiction. If the governor or the city or the municipal mayor fails to act on said executive orders within 30 days from submission, the same shall be deemed consistent with law and therefore valid.

iii. Submission of Municipal Questions to the Provincial Legal Officer or Prosecutor –

In the absence of a municipal legal officer, the municipal government may secure the opinion of the provincial legal officer, and in the absence of the latter, that of the provincial prosecutor on any legal question affecting the municipality.

iv. City and Municipal Supervision over their respective Barangays –

The city or municipality, through the city or municipal mayor, shall exercise general supervision over component barangays to ensure that said Barangays act within the scope of their prescribed powers and functions.

v. Cooperative Undertakings among Local Government Units –

Local government units may, through appropriate ordinances, group themselves, consolidate, or coordinate their efforts, services and resources for purposes commonly beneficial to them. In support of such undertakings, the local government units may, upon approval by the sanggunian after a public hearing conducted for the purpose, contribute funds, real estate, equipment and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating local units.

IV. RELATIONS WITH PEOPLE’S AND NONGOVERNMENTAL ORGANIZATIONSi. Role of People’s and Non- governmental Organizations –

LGUs shall promote the establishment and operation of people’s and non-governmental organizations to become active partners in the pursuit of local autonomy.

ii. Linkages with People’s and Non-governmental Organizations –

LGUs may enter into joint ventures and such other cooperative arrangements with people’s and nongovernmental organizations to engage in the delivery of certain basic services, etc.

iii. Assistance to People’s and Non-Governmental Organizations

LGUs may, through its local chief executive and with the concurrence of the sunggunian concerned, provide assistance, financial or otherwise, to such people’s and nongovernmental orgs. For economic, socially-oriented, environmental or cultural projects tp be implemented within its territorial jurisdiction.

V. MANDATED LOCAL AGENCIESi. Local School Board - There shall be established in every province, city, or

municipality a provincial, city or municipal school board, respectively.

1. The composition of local school boards shall be as follows:

a. The provincial school board shall be composed of the governor and the division superintendent of schools as co-chairmen; the chairman of the education committee of the SangguniangPanlalawigan, the provincial treasurer, the representative of the pederasyonngmgaSangguniangkabataan in the SangguniangPanlalawigan, the duly elected president of the provincial federation of parents-teachers association, the duly elected representative of the teachers' organization in the province, and the duly elected representative of the non-academic personnel of public schools in the province, as members;

b. The city school board shall be composed of the city mayor and the city superintendent of schools as co-chairmen; the chairman of the education committee of the SangguniangPanlungsod, the city treasurer, the representative of the pederasyonngmgaSangguniangkabataan in the SangguniangPanlungsod, the duly elected president of the city federation of parents-teachers associations, the duly elected representative of the teachers' organizations in the city, and the duly elected representative of the non-academic personnel of public schools in the city, as members; and

c. The municipal school board shall be composed of the municipal mayor and the district supervisor of schools as co-chairmen; the chairman of the education committee of the Sangguniangbayan, the municipal treasurer, the representative of the pederasyonngmgaSangguniangkabataan in the Sangguniangbayan, the duly elected president of the municipal federation of parents-teachers associations, the duly elected representative of the teachers' organizations in the municipality, and the duly elected representative of the non-academic personnel of public schools in the city, as members;

2. Functions of Local School Boards –The provincial, city or municipal school board shall:

a. Determine, in accordance with the criteria set by the Department of Education, Culture and Sports, the annual supplementary budgetary needs for the operation and maintenance of public schools within the province, city or municipality, as the case may be, and the supplementary local cost of meeting such needs, which shall be reflected in the form of an annual school board budget corresponding to its share in

the proceeds of the special levy on real property constituting the Special Education fund and such other sources of revenue as this Code and other laws or ordinances may provide;

b. Authorize the provincial, city or municipal treasurer, as the case may be, to disburse funds from the Special Education fund pursuant to the budget prepared and in accordance with existing rules and regulations;

c. Serve as an advisory committee to the Sanggunian concerned on educational matters such as, but not limited to, the necessity for and the uses of local appropriations for educational purposes; and

d. Recommend changes in the names of public schools within the territorial jurisdiction of the local government unit for enactment by the Sanggunian concerned.

The Department of Education shall consult the local school board on the appointment of division superintendents, district supervisors, school principals, and other school officials.

ii. Local Health Board

1. Creation and Composition. - There shall be established a local health board in every province, city or municipality. The composition of the local health boards shall be as follows:

a. The provincial health board shall be headed by the governor as chairman, the provincial health officer as vice-chairman, and the chairman of the committee on health of the SangguniangPanlalawigan, a representative from the private sector or non-governmental organizations involved in health services, and a representative of the Department of Health in the province, as members;

b. The city health board shall be headed by the city mayor as chairman, the city health officer as vice-chairman, and the chairman of the committee on health of the SangguniangPanlungsod, a representative from the private sector or non-governmental organizations involved in health services, and a representative of the Department of Health in the city, as members; and

c. The municipal health board shall be headed by the municipal mayor as chairman, the municipal health officer as vice-chairman, and the chairman of the committee on health of the Sangguniangbayan, a representative from the private sector or non-governmental organizations involved in health services, and a representative of the Department of Health in the municipality, as members;

2. The functions of the local health board shall be:

a. To propose to the Sanggunian concerned, in accordance with standards and criteria set by the Department of Health, annual budgetary allocations for the operation and maintenance of

health facilities and services within the municipality, city or province, as the case may be.

b. To serve as an advisory committee to the Sanggunian concerned on health matters such as, but not limited to, the necessity for, and application of, local appropriations for public health purposes; and

c. Consistent with the technical and administrative standards of the Department of Health, create committees which shall advise local health agencies on matters such as, but not limited to, personnel selection and promotion, bids and awards, grievances and complaints, personnel discipline, budget review, operations review and similar functions.

iii. Local Development Council - Each local government unit shall have a comprehensive multi-sectoral development plan to be initiated by its development council and approved by its Sanggunian. For this purpose, the development council at the provincial city, municipal, or Barangay level, shall assist the corresponding Sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction.

1. Composition of Local Development Councils. - The composition of the local development council shall be as follows:

a. The Barangay development council shall be headed by the Punong Barangay and shall be composed of the following members:

i. Members of the Sangguniang Barangay;

ii. Representatives of non-governmental organizations operating in the Barangay, who shall constitute not less than one fourth (1/4) of the members of the fully organized council;

iii. A representative of the congressman.

b. The city or municipal development council shall be headed by the mayor and shall be composed of the following members:

i. All Punong Barangays in the city or municipality;

ii. The chairman of the committee on appropriations of the SangguniangPanlungsod or Sangguniangbayan concerned;

iii. The congressman or his representative; and

iv. Representatives of non-governmental organizations operating in the city or municipality, as the case may be, who shall constitute not less than one-fourth (1/4) of the members of the fully organized council.

c. The provincial development council shall be headed by the governor and shall be composed of the following members:

i. All mayors of component cities and municipalities;

ii. The chairman of the committee on appropriations of the SangguniangPanlalawigan;

iii. The congressman or his representative; and

iv. Representatives of nongovernmental organizations operating in the province, who shall constitute not less than one-fourth (1/4) of the members of the fully organized council.

d. The local development councils may call upon any local official concerned or any official of national agencies or offices in the local government unit to assist in the formulation of their respective development plans and public investment programs.

2. Functions of Local Development Councils. - (a) The provincial, city, and municipal development councils shall exercise the following functions:

a. Formulate long-term, medium-term, and annual socioeconomic development plans and policies;

b. Formulate the medium-term and annual public investment programs;

c. Appraise and prioritize socioeconomic development programs and projects;

d. Formulate local investment incentives to promote the inflow and direction of private investment capital;

e. Coordinate, monitor, and evaluate the implementation of development programs and projects; and

f. Perform such other functions as may be provided by law or competent authority.

The Barangay development council shall exercise the following functions:

a. Mobilize people's participation in local development efforts;

b. Prepare Barangay development plans based on local requirements;

c. Monitor and evaluate the implementation of national or local programs and projects; and

d. Perform such other functions as may be provided by law or competent authority.

iv. Local Peace and Order Council

1. Organization. - There is hereby established in every province, city and municipality a local peace and order council, pursuant to Executive Order Numbered Three hundred nine (E.O. No. 309), Series of 1988. The local peace and order councils shall have the same composition and functions as those prescribed by the said executive order.

VI. SETTLEMENT OF BOUNDARY DISPUTESi. Jurisdictional Responsibility for Settlement of Boundary Dispute. - Boundary

disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

1. Boundary disputes involving two (2) or more Barangays in the same city or municipality shall be referred for settlement to the SangguniangPanlungsod or Sangguniangbayan concerned.

2. Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the SangguniangPanlalawigan concerned.

3. Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the Sanggunians of the provinces concerned.

4. Boundary disputes involving a component city or municipality on the one hand and a highly urbanized city on the other, or two (2) or more highly urbanized cities, shall be jointly referred for settlement to the respective Sanggunians of the parties.

5. In the event the Sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the Sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

ii. Appeal. - Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the Sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.

LOCAL INITIATIVE AND REFERENDUM

I. Mandated by: A. The 1987 Constitution Article X, Sec. 3B. Local Government Code Sections 120-127C. RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM

II. Definitions

A. Local Initiative - A legal process whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance.

B. Local Referendum - A legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian.

III. Statutory RequirementsA. Who may exercise - all registered voters of the provinces, cities, municipalities and barangays.B. Referendum or initiative affecting a resolution or ordinance passed by the legislative assembly

of a province or city: 1. The petition must be signed by at least 10% of the registered voters in the province or city; 2. of which every legislative district must be represented by at least 3% of the registered voters

therein; 3. Provided, however, that if the province or city is composed only of 1 legislative district, then

at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein. Referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3% of the registered voters therein.

C. Referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay.

IV. Local Initiative Procedure (LGC, Sec. 122)A. Number of voters who should file petition with Sanggunianconcerned (Regional Assembly in

cases of Autonomous Regions, Sec. 13, R.A. 6735)1. Autonomous Regions - at least 2000 registered voters (Sec. 13, R.A. 6735)2. Provinces and cities - at least 1000 registered voters3. Municipality - at least 1004. Barangay - at least 50

B. Sanggunianconcerned has 30 days to act on the petition. If the Sangguniandoes not take any favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian.

C. Proponents will have the following number of days to collect required number of signatures1. Provinces and cities - 90 days2. Municipalities - 60 days3. Barangays - 30 days

D. Signing of petitionE. Date for initiative set by Comelec if required number of signatures has been obtained.

V. Effectivity of Local Propositions (LGC, Sec. 123)A. If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after

certification by the COMELEC.B. If it fails to obtain required number of votes, it is considered defeated.

VI. Limitations on Initiatives (LGC, Sec. 124)A. The power of local initiative shall not be exercised more than once a year. B. Initiative shall extend only to subjects or matters which are within the legal powers of the local

legislative bodies to enact. C. If at any time before the initiative is held, the local legislative body shall adopt in totothe

proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided.

VII. Limitations Upon Local Legislative Bodies (LGC, Sec. 125)

A. Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall:

1. Not be repealed, modified or amended, by the local legislative body concerned within 6 months from the date therefrom, and;

2. May be amended, modified or repealed by the local legislative body within 3 years by a vote of 3/4 of all its members.

3. For barangays, the applicable period is 18 months.

VIII. Local Referendum(LGC, Sec. 126)A. Any local legislative body may submit to the registered voters of autonomous region,

provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved.

B. A local referendum shall be held under the control and direction of the COMELEC within 60 days in case of provinces and cities, 45 days in case of municipalities and 30 days in case of barangays. The COMELEC shall certify and proclaim the results of the said referendum.

IX. Authority of Courts(LGC, Sec. 127)Courts are not precluded from declaring null and void any proposition approved for violation of the Constitution or want of capacity of the local legislative body to enact the said measure.

X. Jurisprudence

A. Garcia v. COMELEC 237 SCRA 279 (1994) “A resolution may be the subject of an initiative or referendum.”

Facts: The Sangguniang Bayan (SB) ngMorong, Bataan passed Resolution No. 10 wherein agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accordance with RA 7227. Private citizen Enrique Garcia and friends filed a petition with the SB to annul the said resolution. When their petition went unheeded, Garcia resorted to the power of initiative under the LGC of 1991. The COMELEC however denied the petition for local initiative on the ground that under the LGC of 1991 the subject of local initiative refers only to an ordinance and not a resolution.

Issue: Whether or not COMELEC is correct.

Held: No.

1) Sec. 32 of Article VI of the Constitution says that initiative and referendum is a system wherein the people can directly propose and enact laws or approve or reject any act or law. The word “act” makes it clear that resolutions are also included initiatives.

2) RA 6735 defines 3 system of initiative, one of them being initiative on local legislation which included, among others, resolution.

3) In the LGC itself, Section 124 says, “Initiatives shall extend only to subjects or matters which are within the legal powers of the Sanggunian to enact.” Definitely, the scope of Sanggunian’s powers includes resolutions which make them covered under initiatives.

B. SBMA v. COMELEC 262 SCRA 492 (1996)

“An Initiative is power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly. A Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become law. These law-making powers belong to the people and the COMELEC only exercises administration and supervision of the process. Hence, COMELEC cannot control or change the substance or the content of the legislation. COMELEC should have prepared for an initiative, not a referendum.”