REPUBLIC OF THE PHILIPPINES

^anblsantiapattQUEZON CITY

SEVENTH DIVTSTON

PEOPLE OF THE PHILIPPINES,Plaintiff,

Case No. SB-15-CRM-0146

Present:

-versus -

AVELEVO JUDILLA' GUNGOB,SR.,

Accused.

Gomez-Estoesta, J., ChairpersonTrespeses, J, andHidalgo, J.

Promulgated:

nn^ufst IL J.

DECISION

GOMEZ-ESTOESTA,

The Mountain Highway Project of the Municipality of Carcar, Cebu,would have spearheaded a road construction project to uplift the classificationstandard of the municipality but when the application for an EnvironmentalCompliance Certificate (ECC) extended to a private venture known as the"Consolacion Heights Residential Subdivision", accused Avelino JudillaGungob ["Mayor Gimgob"] bore the brunt of the accusation when he alonewas charged \mdQT disi Amended InformatiorP' alleging, as follows:

That on December 17, 2007, or sometime prior or subsequentthereto, in the Municipality of Consolacion, Province of Cebu, Philippines,and within the jurisdiction of this Honorable Court, accused AVELINO J.GUNGOB, SR., a high-raking public officer, being the Municipal Mayor ofConsolacion, Cebu, committing the offense in such capacity and while inthe performance of his official administrative functions, with evident badfaith and manifest partiality,'did then and there willfully, unlawfully and

^ As amended per Order dated August 8,2016; Record, Volume 1, pp. 142-1432 Record, Volume 1, pp. 1-3 (Original Information); pp. 166-168 (Amended Information). The coriginally raffled to the Second Division \

/ye was

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People v.AvelinoJ.Gungob 2|PageSB-15-CRM-0146

DECISION

criminally apply in the name of the Municipality of Consolacion for anEnvironment Compliance Certificate (ECC) with the EnvironmentalManagement Bureau of the Department of Environment and NaturalResources Region VII for "Consolacion Heights Residential Subdivision"project, a private subdivision owned by Spouses Bienvenido Padillo andJosefina Palang, and Jacinto Timonio, which application was subsequentlygranted to the Municipality of Consolacion, thereby giving unwarrantedbenefits, advantage or preference to said subdivision owners.

CONTRARY TO LAW.

The charge was initiated upon the filing of a Complaint-Affidavit by thePublic Assistance and Corruption Prevention Office (PACPO) of the Officeof the Ombudsman (Visayas) which purportedly acted upon an unsigned lettercomplaint of one Bienvenido Padillo.^ The same complaint identified thelocation of the Consolacion Heights Residential Subdivision in Brgy.Tilhaong, Consolacion, Cebu, with an area of98,222 square meters, registeredin the name of Spouses Bienvenido Padillo and Rosalina Palang. Theexistence of a Memorandum of Agreement between the Spouses Padillo andthen Mayor Gungob was alluded to which apparently authorized the latter toapply for the necessary permits relative to the road construction of theproject."^

A warrant for the arrest of the accused was issued on October 22,2015,followed by the issuance of a Hold Departure Order on the same date.^

On December 28,2015, Mayor Gungob voluntarily surrendered to thisCourt, through the Sheriff and Security Services Division, and posted cashbail in the recommended amount of P30,000.00, resulting in the recall of thewarrant.^

At the outset. Mayor Gungob filed a Motion for Bill of Particularscarping that the allegations in the Information were ambiguous, equivocal, orunclear, when it should have specified the exact date of the commission of thecrime, and what particular act constituted evident bad faith, manifestpartiality, or the giving of unwarranted benefit, advantage or preference.^ Theprosecution's Opposition thereto argued that it was not necessary to allege theprecise date of the offense and that the way with which the offense wascommitted (second mode) was sufficiently alleged in the Information.^ In theCourt's Resolution dated May 31, 2016,^ the Motion was denied. TheInformation was found sufficient in form and substance to fully apprise theaccused of the charge against him.

^ Record, Volume 1, pp. 23-48; See Exhibit "B"^Ibid., pp. 29-30® Ibid., pp. 57-58®lbid., pp. 66-75^ Ibid., pp. 87-918 Ibid., pp. 107-1199 Ibid., pp. 127-130

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DECISION

At this instance, the unloading of subject case to this Division W2is madepursuant to R.A. No. 10660 to effect the assignment and distribution of casesamong the newly increased seven (7) Divisions of the Court, per Notice of

dated April 7,2016.*®

Called for arraignment. Mayor Gungob, after having been informed ofthe nature and cause of the accusation against him contained in theInformation which was read to him in English, entered a plea of not guilty. Hewas assisted by own coimsel, Atty. Juanito R. Lim, Jr.^^

The preliminary conference held on September 26, 2016 started withthe pre-marking of prosecution's Exhibits "A", "B", "C", "D", "E", "F", "G","H", "H-1" to H-36", and "I" and accused's Exhibits "1", "2", "3", and "4."Names of witnesses were listed and trial dates agreed upon.*^

On December 7, 2016, the prosecution filed a Motion for Leave toAmend Information^^ to effect a formal amendment of the name of the agencyDepartment of Environment and Management Resources to Department ofEnvironment and Natural Resources, and attached thereto the AmendedInformation. This met no opposition from the accused. In the Court'sResolution dated January 10, 2017,^^ the Motion for Leave to AmendInformation was granted and the Amended Information admitted.

Pre-trial was terminated on March 9, 2017*^ with only the followingadmitted facts:

1. The identity of accused Avelino J. Gungob, Sr. (Gungob).2. That at the time material to this case, accused is a public officer

being the Municipal Mayor of Consolacion, Cebu.

Trial thereafter ensued.

EVIDENCE FOR THE PROSECUTION

Prosecution evidence was built from the testimonies of the following:

1. ELMER A. GUTIERREZ,Associate Graft InvestigationOfficer m of the Office of the

Ombudsman

"ibid., p. 122"Ibid., p. 142-143

" Ibid., p. 147 and dorsal portion (Constancia)Ibid., pp. 162-165" See Manifestation dated December 30,2016 at pp. 181-18313 Record, Volume 1, p. 184

i®Vlde: Order dated March 9,2017; Record, Volume 1, p. 208

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DECISION

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The initial testimony of AGIO III Elmer A. Gutierrez ["AGIOGutierrez"] was the subject of the following stipulations:^^

1. That if presented, he will testify that he is the investigator assignedin this case;

2. That as the result of the investigation, he executed the complaint-affidavit which [was] marked as Exhibit "A" and he can identify the same, aswell as the signature appearing therein and attest as to the truthfulness andveracity of the allegations set therein;

3. That in the course of his investigation, the witness was able to gatherthe following documents:

Exhibit Description

"C" Environmental Compliance Certificate No. 0707-12-28-0442-212 dated December 28,2007

"D" Memorandum of Agreement dated December 5,2007executed between Spouses Bienvenido Padillo /Rosalina Palang and the Municipality of Consolacion,represented by Avelino J. Gungob

"E" Letter dated December 17,2007 of Avelino J. Gungobaddressed to Alan C. Arranguez, OIC-RegionalDirector of the Environment Management Bureau oftheDENR

ttp»» Letter dated December 28, 2007 Alan C. Arranguezthe Environment Management Bureau of the DENRaddressed to Avelino J. Gungob

"G" Swom Statement of Owner of Avelino J. Gungob filedwith the Department of Environment and NaturalResources, Environmental Management Bureau,Region 7

"H" Application for Environment Compliance Certificate

In the above stipulations, it was noted that the defense was only willingto make a conditional stipulation of Exhibits "C", "E", and "F" but that it waswilling to stipulate on the existence of Exhibits "B", "G" and "H".

On additional questions propounded, AGIO Gutierrez divulged that inthe course of his fact-finding investigation, he was able to gather documentsfor his review and evaluation where he foimd out that this complaint involvedseveral parcels of land with corresponding tax declarations under the name ofthe Spouses Bienvenido Padillo and Rosalina Palang ["Spouses Padillo"]. Forthe construction of a barangay road, a 15-meter wide lot was donated in favorof the Municipality which then became the subject of a Memorandum ofAgreement.^®

The Memorandum of Agreement ["MOA"] read, in full:

" Order dated May 29,2017; Record, Volume 1, pp. 234-235; TSN dated May 29,2017, pp. 7-;^®TSN dated May 29,2017, p. 16; Exhibit "D" common with Exhibit "9"

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DECISION

KNOW ALL MEN BY THESE PRESENTS:

This AGREEMENT is made and executed by and between:

Spouses BIENVENIDO PADILLO and ROSALINA PALANG,both of legal age, with residence and postal address at Guizo, MandaueCity, herein referred to as the FIRST PARTY;

- and-

MUNICIPALITY OF CONSOLACION, a local government unitorganized and existing under the laws of the Philippines, represented inthis instance by Hon. AVELINO J. GUNGOB, SR., Municipal Mayor,herein referred to as the SECOND PARTY;

WITNESSETH:

That the FIRST PARTY is the absolute owner of a certain parcelof land. Lot 2420 situated at Tilhaong, Consolacion, Cebu, containing anarea of SDCTYTOUR THOUSAND THREE HUNDRED SEVENTY

NINE (64,379) SQUARE METERS, more or less covered by TaxDeclaration No. 24628-A declared in the names of the FIRST PARTY;

That the SECOND PARTY is constructing a 15.0 meter widemountain highway which traversed on the above described parcel of landofthe FIRST PARTY;

That the FIRST PARTY had already executed the Deed ofDonation in favor of the Municipal Government the portion of the landwhich will be used exclusively as road;

That there is necessity to scrape the surface of the land to obtainthe desired elevation of the road to conform with engineering design ofnot more than forty (40) degrees inclination from the ground level;

That the FIRST PARTY by virtue of this agreement hadauthorized and granted the Municipality of Consolacion, thru theMunicipal Mayor, full authority to do and perform the constructionworks including scrapping or earth moving of the surface of the landwhich the FIRST PARTY may check from time to time to the end thatthe required road standard and safety are met;

That the FIRST PARTY and the SECOND PARTY had alreadyagreed that reasonable compensation be paid to the damage sustained bythe FIRST PARTY;

That by virtue of this agreement, the FIRST PARTY herebygrants power and authority to the SECOND PARTY to apply, fileand/or comply with all requirements with any government agenciesthe necessary permits relative to the said road construction and shallfree the FIRST PARTY from any liability, civil or criminal arisingtherefrom; [Emphasis supplied]

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DECISION

That the SECOND PARTY may request the FIRST PARTY tosign any addendum and/or modification that may be required by theMunicipal Council in connection with this agreement;

That both parties shall faithfully comply [with] the terms andconditions of this agreement.

IN WITNESS WHEREOF, we hereunto affix our signatures onDecember 5,2007 at the Municipality of Consolacion, Cebu, Philippines.

It was this agreement which thus became the basis of Mayor Gungob'sapplication for an Environmental Compliance Certificate ["ECC"]. However,instead of applying for an ECC for the construction of a single road lot, MayorGungob applied for an ECC for the construction of a private residentialsubdivision, which thus exceeded his authority under the MOA.^^ The proofthat it was Mayor Gungob who applied for the ECC could be gauged jfrom theApplication^® itself and its accompanying documentation:

(i) letter dated December 17, 2007 sighed by Mayor Gungob himselfaddressed to OIC Regional Director Alan C. Arranguez of the EnvironmentalManagement Bureau of the DENR;^'

(ii) letter dated December 28, 2007 of OIC Regional Director Alan C.Arranguez addressed to Mayor Gungob granting the ECC;^^ and

(iii) Sworn Statement of Owner signed by Mayor Gungob.^^

Environmental Compliance Certificate No. 0707-12-28-0442 212 wasthus granted.^"^ In view of such findings, AGIO Gutierrez prepared hisinvestigation report and initiated the filling of a complainl?^ against MayorGungob for violation of Section 3 (e) of R.A. 3 Oil 9 for the unwarranted benefitgiven the subdivision developer.^®

On cross examination, AGIO Gituerrez admitted that the investigationwas triggered by an unsigned letter complaint supposedly by the ownersSpouses Padillo and then incumbent Mayor Teresa Alegado. Since it wasunsigned, he proceeded to make his own investigation. He did not, however,make an ocular visit to the site and hence, would not have known that the ECCwas later withdrawn and never actually used, there being no subdivisionproject to work on.^^

" TSN dated May 29,2017, pp. 19-2020 Exhibits "H" to "H-36"

21 Exhibit "E"

22 Exhibit "F"

23 Exhibit "G"

2nSN dated May 29,2017, p. 21; Exhibit "C"23 Exhibit "A"

Ibid., p. 21 ^ibid., pp. 23-24 /27

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People v.AvelinoJ.Gungob 7lPageSB-15-CRM-0146

DECISION

On re-direct examination, the witness admitted that while he was awarethat the use of the ECC was later withdrawn, he has never seen its formalcancellation.^®

2. WILLIAM P. CUNADO,Regional Director of theEnvironmental ManagementBureau, DENR - Region VII

The Judicial Affidavit of Regional Director William P. Cunado took theplace of his direct examination where the defense readily admitted on theexistence and due execution of its only attachment thereto. Exhibit "I", whichreferred to a letter dated February 9,2017 stating that ''the original copies ofthe documents relative to the application for Environmental ComplianceCertificate (ECC) for Consolacion Heights Residential Subdivision Projectwith attachments, xxx despite due diligence xxx cannot he founds Hisintended testimony was thus considered stipulated.^^

Pertinent to his allegations in the Judicial Affidavit are the basic rulesand procedures in the application for an ECC which were alleged, thus:

Q8: What are the basic rules and procedure in application for EnvironmentalCompliance Certificate (ECC)?

A8: First, is compliance of the list of requirements for application of ECC.Second, accomplish the initial examination check list. Third, attach the necessarydocuments to the initial environmental examination check list, such as proof ofownership, tax declaration, memorandum of agreement if there is any.Accountability Statement of project proponent. Accountability Statement of lEEPreparer, topographic maps, colored panoramic pictures of the site applied for,processing fee, letter request asking for approvi of ECC and the purpose forwhich the ECC is applied for and other documents relating to the application.

The witness alleged that these are mandatory requirements before theECC is approved.

3. ANECITA DEVOY, ChiefEnvironmental Monitoring, andEnforcement Division of the

Environmental ManagementBureau, Department of Environmentand Natural Resources, Region VII

Testifying through her Judicial Affidavit,^® Anecita Dinoy ["Dinoy"]alleged that in January 2013, she then occupied the position OlC-Chief of

»Ibid., pp. 26-27TSN dated August 7,2017, pp. 6-9; Hearing heid at the Haii of Justice, Cebu City, Regionai Trial Court,

Branch 20

Record, Volume 1, pp. 418-530; TSN dated August 7,2017, pp. 10-15

People v.AvelinoJ.Gungob ' 8 | P a g eSB-15-CRM-0146

DECISION

Administration and Finance Division of the Environmental ManagementBureau, Department of Environment and Natural Resources, Region VII,where among her functions was to take custody of the official records anddocuments of the Environmental Management Bureau, which include, amongothers, applications for Environmental Compliance Certificates and itsattachments, office written communications and other official documentssubmitted to and issued by the office.^ ̂

A subpoena was sent by the Office of the Ombudsman-Visayas toFormer Regional Director Fernando P. Quililan which required thesubmission of a certified copy of the application documents of then MayorAvelino Gungob for the issuance of an ECC. In compliance therewith, afterthe subpoena was forwarded to her, Dinoy retrieved the originals from FrancisPhilip Escalante ["Escalante"], an Environmental Impact AssessmentTeclmical Staff, who was thereafter instructed to produce photocopies thereof.It was the same photocopies on which Dinoy stamped "certified Xerox copy"after having verified and compared the same firom the originals. She ̂ ensubmitted the certified documents to Former Regional Dircetor Quililan wholater endorsed the same to the Office of the Ombudsman-Visayas.^^

The documents with the stamp "certified Xerox copy" are:

Exhibit Description"C" Environmental Compliance Certificate No. 0707-12-

28-0442-212 dated December 28,2007

"D" Memorandum of Agreement dated December 5,2007executed between Spouses Bienvenido Padillo /Rosalina Palang and the Municipality of Consolacion,represented by Avelino J. Gungob

«p" Letter dated December 28,2007 of Alan C. Arranguezof the Environment Management Bureau of the DENRaddressed to Avelino J. Gungob

"G" Sworn Statement of Owner of Avelino J. Gungob filedwith the Department of Environment and NaturalResources, Environmental Management Bureau,Region 7

"H"to"H-36" Application for Environment Compliance Certificatewith attachments for "Consolacion HeightsResidential Subdivision Project"

Dinoy further instructed Escalante to scan the original documents andsave the file in the computer. All the while, the originals were taken underthe custody of Escalante.^^

Later, another subpoena was received by Dinoy this time, from theOffice of the Special Prosecutor, directing her to submit the originals ofExhibits "C", "D", "E", "F", "G", and "H" and all its attachments. The

"Judicial Affidavit of Aneclta Q. Dinoy, 07A7"lbld.,Q9A9toQ15A15

" Ibid., Q19A19 to Q20A20

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DECISION

originals, however, could not be produced by Escalante, who retained custodyover the same. Dinoy confronted Escalante about this and she was told thatsomeone borrowed'' the documents from Escalante sometime in 2013 but the

latter could no longer recall who. Despite diligent efforts to find the same,however, the originals could no longer be found. Compliance with thesecond subpoena was thus made on the basis of the computer data fileproduced from scanned copies of the originals.^"^

Dinoy was thus able to send printed scan copies of the documentssubject'of the subpoena, which were identified as:

Exhibit Description

"K" Borrower's Clearance Slip"I-l"to"I-54" Environmental Compliance Certificate No.

0707-12-28-0442-212 dated December 28,2007 and its attachments

A Certification dated February 6,2017 was issued by Dinoy stating thaton the basis of the Borrower's Clearance Slip, Escalante borrowed the folderscontaining the original file from the Records Unit and has not returned themto date; and that scanned copies of the same are available on the server towhich she could attest to their authenticity.^^ The scanned file was likewisesaved on a compact disc submitted as Exhibit "N".

On cross examination, Dinoy was asked of the diligent efforts sheresorted to in looking for the originals. Since there was no Records Officeryet appointed, she assumed the functions of a Records Officer concurrent withher position as Chief of Administration and Finance. All along, it wasEscalante who safe-kept the originals, following the instruction of formerRegional Director Quililan to retrieve the same from the Records Unit andhave the same photocopied. It was Escalante who likewise scanned theoriginals and had the same burned in a compact disc. It was likewise he whoprinted hard copies from the scanned copies.^^ The scanning of documentsis a standard practice in the office.^^

4. FRANCIS PHILIP

ESCALANTE, EnvironmentalManagement Specialist,Environmental Impact Division ofthe Environmental ManagementBureau, Department of Environmentand Natural Resources, Region VII

Ibid., Q22A22 to Q29A2935 Ibid., Q30A30 to Q34A34; Exhibit "J"3s TSN dated August 7,2017, pp. 15-20

37 Ibid., p. 22

People V. Avelino J. Gungob 101 P a g eSB-15-CRM-0146

DECISION

Through his Judicial Affidavit, Francis Philip Escalante ["Escalante"]alleged that in January 2013, he recalled having complied with a subpoenaissued by the Office of the Ombudsman addressed to the former RegionalDirector Quililan by submitting certified copies of the application documentsof then Mayor Gungob for the issuance of an Environmental ComplianceCertificate. He was able to retrieve copies of the originals jfrom the RecordsUnit. Since Anecita Dinoy was then head and custodian of the Administrativeand Finance Division, she brought the matter of the subpoena to her.Escalante was thereafter instructed to photocopy the originals of the requesteddocuments and bring them to Dinoy for her to certify. He was likewiseinstructed to scan the originals and save them in the computer files forrecording and future reference purposes. Meantime, he kept the original fileand submitted the certified copies to Director Quililan for submission to theOffice of the Ombudsman.^^ These are the marked Exhibits "C", "D", "F","G", and "H" and its attachments."*®

In January 2017, Escalante was asked by Dinoy of the originals of thefile. He mentioned that someone borrowed them firom him sometime in 2013

but could no longer recall who. He searched everywhere and asked everyemployee of the file but could not come up with it. Hence, to respond toanother subpoena fi*om the Office of the Special Prosecutor, he printed outfirom the official computer data the scanned copy of the documents requested.These were the ones submitted to the Office of the Special Prosecutor, markedas Exhibits "K" and "I" to "1-54".^* A compact disc containing data of thescaimed copy of the documents was likewise submitted.^^ To substantiate theloss of the original file, he executed an Affidavit of Loss for the purpose."*^

On cross examination, Escalante revealed that it was AdministrationChief Anecita Dinoy who instructed him to scan the original file. Since theoffice was already using a digital file, it was standard procedure to scan alloutgoing documents, to be made by the releasing section. The scanning of theentire original file, however, was upon special instruction of AdministrationChief Dinoy."*"* On keeping the originals in his custody, Escalante averred thatit was likewise an internal office policy that the one who borrowed thedocument should hold it in one's custody. After scanning the original file, hestill kept the originals in his custody since he treated the file as "active", therequest for copies being only recent. To date, after transferring to a newoffice, the best he could do to locate the file was to ask around and physicallylocate it. Someone borrowed the files firom him but he never asked that one

to also sign a borrower's slip to hold him or her accoimtable since it was notthe practice of the office."*^

^ Record, Volume 1, pp. 304-417 TSN dated August 7,2017, pp. 4-6Judicial Affidavit of Francis Philip Escalante, Q8A8 to Q20A20 ^

^ Ibid., Q24A24; See tabulation of the same under Anecita Q. Dlnoy's testimonySee tabulation of the same under Anecita Q. Dlnoy's testimony %

"2 Ibid., Q26A26 to Q35A35; Exhibit "N"

Ibid., Q37A37 to Q39A39; Exhibit "M"

TSN dated August 7,2017, pp. 8-10

^ Ibid;, pp. 10-14

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People V. Avelino J. Gungob 111 P a g eSB-15-CRM-0146

DECISION

Two subpoenas were sent to his office. The first one received in 2013was complied with by photocopying the original file and having it certified.It was at this instance that the file was scanned. The second subpoena receivedin 2017 was complied with by printing hard copies jfrom the scanned file."*^

5. MARIBEL LAWAS,Administrative Officer Ill/Records

Officer of the Environmental

Management Bureau, Department ofEnvironment and Natural

Resources, Region VII

Through her Judicial Affidavit,"^^ Administrative Officer III MaribelLawas ["Lawas"] alleged that a subpoena was received by her office directingher to produce tihie folder containing the original documents relative to theapplication for ECC for Consolacion Heights Residential Subdivision Projectof the Municipality of Consolacion. She thus proceeded to check from theofficial records logbook"*^ the requested documents and asked the filer tolocate the documents, only to discover later that such were missing from theirfiles. The borrower's clearance slip was checked and it was the name ofFrancis Philip Escalante who appeared as the borrower. She confrontedEscalante about the missing files who then told her that "someone borrowed"the files but could no longer remember who and could no longer find the samedespite continuous search. Escalante likewise informed her that the samerequested documents were already submitted to the Office of the SpecialProsecutor. Hence, it was needless for her to send another file.'^^

On cross examination, she revealed that she only joined theEnvironmental Management Bureau in July 27, 2015 as Records Officer. Itwas a standard procedure in the office to scan the approved documents.^®

6. ALAN C. ARRANGUEZ,retired OIC Regional Director of theEnvironmental ManagementBureau, Department of Environmentand Natural Resources, Region VII

In his Judicial Affidavit,^^ OIC Regional Director Alan C. Arranguez["Director Arranguez"] stated that in 2007, he has reviewed and approved theapplication for Environmental Compliance Certificate of the Municipality ofConsolacion, represented by Mayor Gungob for Consolacion Heights

Ibid., pp. 15-16

Record, Volume 1, pp. 269-279; TSN dated August 8,2017, pp. 27-28^ Exhibit "O"

Judicial Affidavit of Maribel M. Lawa, Q8A8 to Q21A21

®®TSN dated August 8,2017 (morning session), pp. 33-34; Hearing held at the Hall of Justice, Cebu City,Regional Trial Court, Branch 20Record, Volume 1, pp. 253-268; TSN dated August 8,2017 (a.m.), pp. 16-18 r

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DECISION

12 I P a g e

Residential Subdivision Project. The documents submitted to review theapplication were:

Exhibit Description of Document"E" Letter-request dated December 17,2007 of Mayor

Avelino J. Gungob to OIC Regional DirectorAlan C. Arranguez

"1-8" - do -«p» Letter dated December 28, 2007 of Alan C.

Arranguez of the Environment ManagementBureau of the DENR addressed to Avelino J.

Gungob

"I-l" - do -

On the basis of said documents, he issued Environmental ComplianceCertificate No. 0707-12-28-0442-212 dated December 28,2007.^^ After thedefense manifested that it was only willing to stipulate on Exhibits "E" and"F" (same as "1-8" and "I-l"), no cross examination was conducted on saidwitness.^^

7. MARILOU HERRERA,

Municipal Assessor of theMunicipality of Consolacion, Cebu

The intended testimony of Municipal Assessor Marilou Herreralikewise became the subject of the following stipulations:^"^

1. That the witness is currently the Municipal Assessor of theMunicipality of the Local Government Unit of Consolacion, Cebu;

2. That if the witness be asked, she will testify on her duties andfunctions as Municipal Assessor;

3. That in connection with her duties as Municipal Assessor, she hascustody of the original duplicate copies of all the tax declarations pertainingto the real properties within the territorial jurisdiction of the municipality ofConsolacion, Cebu;

4. That in compliance with the subpoena issued to her by the Office ofthe Special Prosecutor, she brought and submitted certified true copies of TaxDeclaration No. 24678, Tax Declaration No. 18570, Tax Declaration No.18569, and Tax Declaration No. 18571;

5. The she can identify and testify on the existence of the abovementioned documents as Municipal Assessor.

Witness identified the document marked as Exhibits "\" to "i-5"

TSN dated August 8,2017 (morning session), pp. 18-21®^TSN dated August 8,2017 (afternoon session), pp. 5-8; Order dated August 8,2017; Record, Voiume 2,pp. 19-20

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DECISION

13 I P a g e

8. BIENVENIDOM.PADILLO,

lot owner

Accused Padillo testified that he entered into a Memorandum of

Agreement^^ with the Municipality of Consolacion, through Mayor Gungob,where he donated part of his lot, upon the request of Mayor Gungob, for theconstruction of a mountain highway, which would bypass said property.^^

On cross-examination, he explained that he donated part of his propertyso that Itis property would be on the side of the road when the project wouldbe finished.^^ He was not assisted by a lawyer when he signed theMemorandum of Agreement.^^

The Prosecution filed its Formal Offer of Evidence^^ on September 18,2017, listing its documentary exhibits, viz.:

Exhibit Description

"A" Complaint-Affidavit dated February 14, 2013executed by AGIO III Elmer A. Gutierrez of PACPO,Office of the Ombudsman -Visayas

"B" Unsigned letter complaint of Bienvenido Padillo, et al.received by the Office of the Ombudsman on March3,2008

"C" Environmental Compliance Certificate No. 0707-12-28-0442-212 dated December 28,2007

"D" Memorandum of Agreement dated December 5, 2007executed between Spouses Bienvenido Padillo /Rosalina Palang and the Municipality of Consolacion,represented by Avelino J. Gungob

"E" Letter dated December 17,2007 of Mayor Avelino J.Gungob addressed to OIC Regional Director Alan C.Arranguez of EMB, DENR

«p" Letter dated December 28,2007 of Alan C. Arranguezof the Environment Management Bureau of the DENRaddressed to Avelino J. Gungob

"G" Sworn Statement of Owner of Avelino J. Gungob filedwith the Department of Environment and NaturalResources, Environmental Management Bureau,Region 7

"H"to"H-36" Application for Environment Compliance Certificatewith attachments for "Consolacion HeightsResidential Subdivision Project"

CtJ»> Compliance to the Subpoena with attachments"J" Certification of Anecita Q. Dinoy

"K" Borrower's Clearance Slip"M" Affidavit of Loss executed by Francis Philip Escalante

55 Exhibit "D''

5® TSN dated August 9, 2017, pp. 9-135' Ibid, p. 1455 Ibid., p. 1955 Record, Volume 2, pp. 30-158 i

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DECISION

Compact disc containing the data of scanned copy ofapplication for EGG and other attachments

"0" Official logbook of records of EMB-DENR VII

Exhibit "N", or the original disc supposedly containing the file of thescanned documents, however, had no file. Hence, the Prosecution filed aMotion to Allow the Prosecution to Submit New Copy of its Exhibit "N." Thiswas allowed by Order dated October 27, 2017 for proper authenticationprocess.^^

On November 16, 2017, Francis Philip Escalante was recalled on thewitness stand for purposes of identifying and authenticating Exhibit "N".Instead, the following stipulations were made: (i) the duties, responsibilitiesand the position of the witness; (ii) that in compliance with the subpoenaissued by the Office of the Ombudsman, witness brought the new soft copy ofthe seamed documents of the application of accused Gungob, Sr.; and (iii)that he can identify and authenticate the soft copy.^^

Accused's Comment to the formal offer was submitted on November

21,2017. In the Resolution dated January 3,2018 of this Court, Exhibits "A","C", "D", "E", "F", "H" to "H-29", "H-30", "I", "J", "K", "M", "N", and "O"were admitted. The photocopies were deemed sufficiently offered assecondary evidence and were thus admitted. Exhibit "B" was initiallyexcluded for lack of proper identification,^^ but upon Motion forReconsideration, was admitted, but only as to its existence.^

Accused subsequently filed a Motion for Leave of Court to FileDemurrer to Evidence which was denied for failure to specifically allegethe grounds therefor.^^

EVIDENCE FOR THE ACCUSED

In his defense. Mayor Gungob presented five (5) witnesses, whotestified through their respective Judicial Affidavits, as follows:

1. ADELITA S. GAVIOLA,

Housing & Homesite RegulationOfficer III, designated RecordsOfficer

This empty disc containing no data was substituted via a Motion to Allow the Prosecution to Submit NewCopy of Its Exhibit "N". To allow proper authentication, this Court granted the Motion.Record, Volume 2, p. 176

Order dated November 16,2017; Record, Volume 2, pp. 182-183

Ibid., pp. 196-199,

^ Order dated May 11,2018, Ibid., p. 267® Ibid., pp. 202-204®® Resolution dated January 23,2018, Ibid., pp. 215-217 , i

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People V. Avelino J. Gungob 15 | P a g eSB-15-CRM-0146

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Gaviola testified^^ that she issued the Certification dated January 12,2015 stating that the HLURB has not issued any permit or license to sell toConsolacion Heights Subdivision Project, and that Consolacion Heights didnot have any pending application for Registration or License to Sell.^^

On cross-examination, Gaviola related that she issued said Certificationin response to a letter-request by Mayor Gungob, which she showed to theCourt. She acted on the request conceming Consolacion.Heights ResidentialSubdivision, notwithstanding that it was from Mayor Gungob, as all theyrequired was a formal request.^^

2. BBENVENIDO PADBLLO,lot owner

Padillo testified^® that he donated a portion of his land, which wascovered by Tax Declaration No. 24678, to Ae Municipality of Concolacionfor the Mountain Highway Project, a road project initiated by Mayor Gungob.For this purpose, he entered into a Memorandum of Agreement with theMunicipality of Consolacion.^^

Padillo disclaimed any knowledge about the Consolacion HeightsProject. He also maintained that he has never filed any complaint againstMayor Gungob with the Office of the Ombudsman.^^

On cross-examination, Padillo explained that when he receiveddocuments from the Office of the Ombudsman alleging that he filed acomplaint against Mayor Gungob, he executed an Affidavit stating otherwise.He prepared such affidavit with the help of his lawyer, but not at the behest ofMayor Gungob.^^ He related that he and Mayor Gungob knew each other, sohe agreed when Mayor Gungob asked if he could donate part of his land forroad construction, although he could no longer remember where the Deed ofDonation was.^"* Padillo asserted that the road project indeed pushed through,and was in fact already being used.^^

Judicial Affidavit dated March 22,2018, Record, Volume 2, pp. 234-238; TSN dated April 4,2018, pp. 13-

15

^ Exhibit "2"; Judicial Affidavit of Adeiita Gaviola, Q6A6 to QIOAIOTSN dated April 4,2018, pp. 18-20

^Judicial Affidavit dated April 20,2018, Record, Volume 2, pp. 245-251; TSN dated May 2,2018, pp. 18-19

Judicial Affidavit of Bienvenido Padillo, Q2A2 to Q12A12; Exhibit "9"

^Judicial Affidavit of Bienvenido Padillo, Q13A13 to Q17A17; Exhibit "10"^ TSN dated May 2, 2018, pp. 36-38

Ibid., pp. 44-45

^ Ibid., p. 50 f7 \

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3. AVELINO J. GUNGOB, SR.,accused, former Municipal Mayor ofConsolacion, Cebu

Accused Gungob, who was the Mimicipal Mayor of Consolacion,Cebu from 2001 to 2010, denied having applied for the ECC in favor ofConsolacion Heights Subdivision. According to him, what he was authorizedby the Sangguniang Bayan to do was to open roads to different mountainbarangays and to negotiate with the landowners of affected properties.^' Thiswas the "Mountain Highway Project" or the "Road-Opening Project", thedocuments for which were prepared by the municipality's long-termconsultant, T&M Planning and Environmental Management Consultant("T&M"), and reviewed by then Municipal Administrator, Jerson Marafio,and his staff.'^

Mayor Gimgob claimed that Marafio presented to him an application,which was among die documents necessary for the Mountain Highway Projectand recommended that he sign it. He was told that everything was in order ashis staff had already reviewed all the necessary documents. Thus, relying onMarafio's word, he signed the application for ECC, which was later submittedto the Environmental Management Bureau (EMB) of the DENR. Heexplained that his time as Mayor was mostly spent in dialogues with hisconstituents, and he barely had time to review all the documents presented tohim for his signature.'^ He considered signing the application a ministerialduty.^o

Sometime in the latter part of December 2007, Marafio informed himof the issuance of one of the ECCs for the Road-Opening Project; however,there had been a mistake, as the ECC was issued instead for ConsolacionHeights Subdivision, a private project, which angered him, as he thought hehad been deceived. Marafio apologized, and explained that he only relied onhis staffs review of the documents, and couldn't understand how T&M couldhave made a mistake, since one of its senior officers was an employee ofEMB. Upon Marafio's suggestion, Mayor Gungob conferred with Mr. Padilloand Mr. Timonio, who appeared to be the owners of the land covered byConsolacion Heights Subdivision. Padillo and Timonio were surprised by theissuance of the ECC, as they never authorized the use of their property for thesubdivision, or authorized anyone to apply for an ECC. Mayor Gungob askedthem to consider the ECC as never having been issued, and told them that hewould not issue a business permit for the project.®*

Judicial Affidavit dated July 4,2018, Record, Volume 2, pp. 297-309; TSN dated July 16,2018 (morningsession), pp. 25-27; Hearing held at the Hall of Justice, Cebu City, Regional Trial Court, Branch 20^ Brgy. Resolution No. 195, Series of 2004, Exhibit "1"^ Judicial Affidavit of Avelino Gungob, Q3A3 to 08A8; QllAll to Q13A13^ Ibid., Q9A9 to Q15A15TSN dated July 16,2018 (a.m.), p. 38Judicial Affidavit of Avelino Gungob, Q16A16 to Q22A22 f

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After almosjt five (5) years, Mayor Gungob received a Notice from theOffice of the Ombudsman regarding a complaint filed by the PACPO, basedon an unsigned letter from Bienvenido Padillo, among others. In his Counter-Affidavit, he denied that Padillo had any hand in the letter, and alleged thatthe Consolacion Heights Subdivision Project never materialized, and no onewas given unwarranted benefits. In fact, at present, Consolacion HeightsSubdivision does not exist.^^ He knew this because he went to the site toinspect it, at a time when there were already problems with documentation.®^

During cross-examination. Mayor Gungob was asked who he felt"deceived" him. He named a certain Sally Palang, Municipal PlanningOfficer, who was formerly employed by Mayor Teresa Alegado. She wasresponsible for infrastructure projects, and while he did not completely trusther, he did not see the need to review the documents coming from her, as hetrusted his administrator. He did not think it was Maraho who deceived him,even if he was the one that gave him the wrong document to sign. He said healways signed documents without reading them.®"^ He understood that theSangguniang Bayan Resolution only authorized him to apply an ECC for theconstruction of roads, and not subdivisions.®^

4. JERSON MARANO, formerMunicipal Administrator of Consolacion,Cebu

Marano's testimony was partly subject of the following stipulations:

1. That discretionary judicial notice is given on the fact thatvoluminous documents passed through the office of Jerson Maraho in hiscapacity as Municipal Administrator;

2. That it was Mr. Maraho himself in his capacity as MunicipalAdministrator who indorsed the application for Environmental ComplianceCertificate to Mayor Gungob which was eventually granted in the name ofConsolacion Heights Subdivision.®®

Maraho proceeded to testify that it was only after the ECC for theConsolacion Heights Subdivision Project was issued that they learned that itwasn't issued for a government project as intended. He reported this to MayorGungob, who was furious, never having authorized the application of an ECCfor the Consolacion Heights Subdivision Project. Upon his advice, and withhis assistance. Mayor Gungob went to see Bienvenido Padillo and JacintoTimonio, the apparent owners of the lots covered by the ECC, who were

Ibid., Q23A23 to Q24A24; Q32A32

®'TSN dated July 16,2018 (a.m.), p. 54TSN dated July 16, 2018 (a.m.), pp. 40-41,47Ibid., pp. 41-44 ^Order dated July 16,2018, Record, Volume 2, pp. 355-356 w

'■ I

People V. Avelino J. Gungob 18 | P a g eSB-15-CRM-0146

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likewise shocked when they heard of the issuance as they never applied for anECC for any subdivision project within their property. Mayor Gungob toldJacinto and Timonio that the ECC was to be treated as never having beenissued at all.^^

On cross-examination, Marano laid the blame on the MunicipalPlanning Office, saying he merely relied on their indorsements andcertifications. When the documents reached his office, he did not read thedocuments, but only checked the indorsements of the Municipal Planning andDevelopment Coordinator (MPDC) and TM Planning. It was the task of theMPDC to prepare the applications. While Marano went over the documents,he did not go into their details. This was enough to convince him that all thedocuments were proper. He did not find any mistake in the documents, so heindorsed them to Mayor Gimgob.^^

Answering questions from the Court, Marano conceded that it was partof his duty to review and ascertain that all the documents were proper beforeindorsing them to the Mayor; however, this was during the time when theywere busy with the Mountain Highway Project, among others.^^ He alsoconceded that while the Mountain Highway Project was a big project, he didnot read the documents relative thereto.^^

5. CARMELO R. SEGUI,^^ Chief ofthe Environmental Management Bureau(EMB)'s Legal Division

Segui identified^^ the legal opinion dated April 20,2018^^ rendered byhis office in response to a request by Lim & Yutatco-Sze Law Firm, whichhis office received on April 12,2018.^"^

On cross-examination, Segui testified that he rendered his opinionbased on the letter-request, and has not reviewed the other documentspertaining to this case. He reiterated his view, as stated in the opinion, that anECC is not transferrable by regulation. He cited two circulars in his opinion,namely: EMB Memorandum 2014-005 and DENR Administrative Order2003-30. However, when asked, Segui could not locate in either circular theparticular provision on non-transferability of the ECC.^^

TSN dated July 16,2018 (afternoon session), pp. 34-37®8 Ibid., pp. 37-44,46

ibid., p. 44

Ibid., p. 48Mayor Gungob filed a Motion for Leave of Court to Allow the Presentation of Additional Documents,

i.e., the documents to be identified by Carmelo Segui. While the Motion was initially denied by this Courtin its Order dated July 17,2018 (Record, Volume 2, p. 360), it was later reconsidered and granted In aResolution dated August 10,2018 (Ibid., pp. 385-389)'^Judicial Affidavit dated July 12,2018, Record, Volume 2, pp. 339-346; TSN dated September 24,2018,pp. 6-7

Exhibit "8"

Exhibit "7"

®®TSN dated September 24,2018, pp. 10-15 f

People V. Avelino J. GungobSB-15-CRM-0146

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19 I P a g e

When confronted on paragraph 9 of the subject ECC, which provides,"In case of transfer of ownership of this project, the same conditions andrestrictions shall apply and the transferee shall be required to notify the EMBRegional Office concerned within fifteen (15) days as regards to (sic) thetransfer of ownership," Segui conceded that transfer of ownership can behad.^^ Segui also confirmed that he based the five-year lifetime of the ECCfrom its issuance, not its implementation, as provided under Section 5.4 ofDepartment Administrative Order No. 2003-30, and that he did not review theproponent's work plan in issuing the opinion.^^

Clarifying matters raised by the Court, Segui explained that an ECC isaddressed to the project, not the owner.^® In this case, what made theConsolacion Heights Residential Subdivision an environmentally criticalproject was not the area, but the nature of the project.^^

Mayor Gungob then proceeded to offer the following exhibits:

Exhibit DescriptionSangguniang Bayan Resolution No. 195, series of2004

"2" HLURB Certification dated January 12,2016tt2»» 100 Enyironmental Compliance Certificate No. 07 06 09-

25 201 208 dated September 25,2006101 Environmental Compliance Certificate No. 0707 10-

03 0202 120-D dated October 3,2007

"5" Environmental Compliance Certificate No. 07 09010037 210 dated March 16,2009

"6" Environmental Compliance Certificate No. 0707-12-28-0442-212 dated December 28,2007 (Exhibit "C")

ttyjj 102 Letter-request for legal opinion dated April 11,2018103 Legal opinion of the EMB dated April 20,2018

ttp»» 104. Memorandum of Agreement dated December 5,2007executed between Spouses Bienvenido Padillo /Rosalina Palang and the Municipality of Consolacion,represented by Avelino J. Gungob (Exhibit "D")

"10" Unsigned letter complaint received by the Office ofthe Ombudsman on March 3,2008 (Exhibit "B")

In its Resolution dated January 7,2019,^®^ this Court admitted Exhibits"6", "9", and "10", and excluded Exhibits "3", "4", and "5" for not bearing

Ibid., pp. 15-20

^ ibid., pp. 22-24ibid., p. 20

Ibid., pp. 28-29

As re-marked

As re-marked

As re-marked

As re-marked

As re-marked

As re-marked

Record, Volume 2, pp. 469-471 f7

People V. Avelino J. Gungob 20 | P a g eSB-15-CRM-0146

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the proper markings of the Court, as well as Exhibits "1", "2", "7", and "8"for violation of the Best Evidence Rule.

With the filing of the parties' respective Memoranda, this case wassubmitted for decision.

THE COURTIS RULING

There is no dispute that Mayor Gvmgob, knowingly or otherwise, signedan application for an Environment Clearance Certificate in behalf of a privateentity, i.e., the Consolacion Heights Subdivision Project, which wassubsequently granted by the EMB-DENR. For this act, he has been chargedwith violation of Section 3(e) of R.A. 3019, which prohibits causing anyundue injury to any party, including the Government, or giving any privateparty any unwarranted benefits, advantage or preference in the discharge ofhis official administrative or judicial functions through manifest partiality,evident bad faith or gross inexcusable negligence.

To be liable for violation of Sec. 3(e) of R.A. 3019, the followingelements must be established:

(1) the offender is a public officer;(2) the act was done in the discharge of the public officer's

official, administrative or judicial functions;(3) the act was done through manifest partiality, evident bad

faith, or gross inexcusable negligence; and(4) the public officer caused any undue injury to any party,

including the Government, or gave any unwarranted benefits, advantage orpreference.'®^

That accused Gungob was a public officer, being the Municipal Mayorof Consolacion, Cebu at the time material to this case, has been stipulated.'®^It is in such capacity that he signed the application for ECC in behalf ofConsolacion Heights Subdivision, for which he now stands charged.

The third and fourth elements will be jointly discussed below.

The Arias doctrine does not apply toMayor Gungob.

Mayor Gungob insists that he did not act with evident bad faith ormanifest partiality in affixing his signature on the application for ECC, as henever intended to apply for an ECC for Consolacion Heights SubdivisionProject. According to him, as Municipal Mayor, his workload made it

10' Prosecution's Memorandum dated April 8,2019, Record, Volume 3, pp. 27-69; Memorandum for the

Accused dated April 10,2019, Ibid., pp. 70-92100 valencerina vs. People, G.R. No. 206162, December 10,2014

Joint Stipulation of Facts and Issue, Record, Volume 1, pp. 197-205; Pre-Trial Order, Ibid., pp. 209-214

People V. Avelino J. Gungob 211 P a g eSB-15-CRM-0146

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impossible for him to read everything that he had to sign, so he wasconstrained to rely on his subordinates and trust that the documents given tohim for signature were in order. He maintains that he signed the applicationfor ECC for Consolacion Heights believing in good faith that it was for theMountain Highway Project, which was a government project.

To shield himself from accountability. Mayor Gungob relies on AriasV. Sandiganbayan^^^, where the Supreme Court held:

We would be setting a bad precedent if a head of office plagued byall too common problems — dishonest or negligent subordinates, overwork,multiple assignments or positions, or plain incompetence — is suddenlyswept into a conspiracy conviction simply because he did not personallyexamine every single detail, painstakingly trace every step frominception, and investigate the motives of every person involved in atransaction before affixing his signature as the final approvingauthority.

To clarify, the Arias doctrine is not an absolute rule. It is not a magiccloak that can be used as a cover by a public officer to conceal himself in theshadows of his subordinates and necessarily escape liability.^ It must beemphasized that Arias involved the culpability of a final approving authorityon the basis of criminal conspiracy, or where, in the performance of hisofficial duties, the head of an office is being held to answer for his act ofrelying on the acts of his subordinate.^

However, this case does not even involve a complicated process thatrequires painstaking scrutiny of detailed documents. The document signed byMayor Gungob, a very short letter, clearly and distinctively states that theapplication for the ECC was for "Consolacion Heights", a residentialsubdivision project located at Brgy. Tilhaong, Consolacion, Cebu."**^

Mayor Gungob testified:

CHAIRPERSON

Q: But, Mayor Gungob, isn't it that you were the one who asked yourstaff for an ECC to be issued?

A: Yes, your Honor.

Q: So, when it was presented to you, what did you do, did you not evenread it?

A: Well, they presented it to me to sign. My Administrator indorsed itto me to sign since that is my ministerial duty.

G.R. Nos. 81563 & 82512, December 19,1989

Rivera v. People, G.R. Nos. 156577,156587 & 156749, December 3,2014

Cedeffo v. People, etal., G.R. Nos. 193020 & 193040-193042; 193349-54, November 8,2017

Exhibit "E" /«

) '

People V. Avelino J. Gungob 22 | P a g eSB-15-CRM-0146

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QUESTION FROM THE COURTAJJACINTO

Q: Did you read the document before signing them?

A: I have no time to read, your Honor, because of too much visitors.'

Yet, Mayor Gungob himself knew of the nature of limit of the ECCApplication his office was supposed to undertake. As revealed on cross-examination:

PROSEC. TAN

Q: You were authorized by Sangguniang Resolution to file forResolution No. 195 which is attached to your affidavit, correct Sir?

XXX

May you read into the records of this case your authority. Sir?

What is your authority, you were authorized to apply for what?

XXX

A: 1 am authorized to undertake the road opening of more farm tomarket roads as such infi-astructure projects.

Q: So, your authorization is limited. Sir, to application of ECC forroad?

A: Yes, Sir.

XXX

Q: You understand. Sir, that you are only limited to application of ECCfor roads?

A: For roads.

Q: And not for subdivision?

A: Yes, Sir, not for subdivision which is private.'' ̂

For Mayor Gungob to now hide under the Arias doctrine rather appearslame. Arias considers the inability of heads of office to scrutinize every detailin the documents they sign. But it clearly does not apply to heads of officewho sign documents without reading what is plainly written therein, as in thiscase. Mayor Gungob cannot blindly adhere to the findings and opinions ofhis subordinates, lest he be reduced to a mere clerk who has no authority over

"^TSN dated July 16,2018 (a.m.), pp. 38-39ibid., pp. 41-44 f

) •

People V. Avelino J. Gungob 23 | P a g eSB-15-CRM-0146

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his subordinates.*^^ Clearly, Arias does not insulate heads of office who failto exercise the due diligence expected of them.

In Typoco v. People the Supreme Court explained:

Thus, the irregularities are very apparent on the face of thedocuments. Had petitioner Typoco exercised the due diligence expected ofhim, he would have easily noticed the irregularities on the documents. Asheld in Cesa v. Office ofthe Ombudsman, when there are facts that point toan irregularity and the officer failed to take steps to rectify it, even toleratingit, the Arias doctrine is inapplicable, (emphases supplied)

Be that as it may, that the application for ECC signed by Mayor Gungobwas for Consolacion Heights is so hard to miss that this Court entertains nodoubt that Mayor Gungob signed it with full knowledge of what it really was.Not only did the application letter clearly state that it was for ConsolacionHeights, the documents attached to it likewise clearly indicated^'Consolacion Heights Subdivision Project", leaving no room for anyliterate person to mistake it for any other project.

With the finding that Mayor Gimgob filed an application for ECC forConsolacion Heights, a private subdivision, the question is, does such actconstitute a violation of Sec. 3(e) of R.A. 3019?

There is insufficient evidence that manifestpartiality or evident badfaith attended suchapplication for ECC for ConsolacionHeights Subdivision,

The second element provides the modalities by which a violation ofSection 3 (e) of Republic Act No. 3019 may be committed. "Manifestpartiality," "evident bad faith," or "gross inexcusable negligence" are notseparate offenses, and proof of the existence of any of these three (3) "inconnection with the prohibited acts ... is enough to convict."**®

The Information charges Mayor Gungob with having acted withevident bad faith and manifest partiality in applying for an ECC forConsolacion Heights in the name of the Municipality of Consolacion.

The Supreme Court has defined manifest partiality and evident badfaith thus:

Cf. Ombudsman, etal. v. Espina, G.R. No. 213500, March 15,2017G.R. Nos. 221857 & 222020, August 16, 2017

Abubotor V. People, G.R. Nos. 202408,202409 & 202412, June 27,2018 f

• \

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X X X In Coloma, Jr. v. Sandiganbayan}^^ the Court defined theforegoing terms as follows:

"Partiality** is synonymous with **bias** which **excites adisposition to see and report matters as they are wished forrather than as they are.** **Bad faith does not simply connotebad judgment or negligence; it imputes a dishonest purpose orsome moral obliquity and conscious doing of a wrong; a breachof sworn duty through some motive or intent or ill will; itpartakes of the nature of fraud.'* "Gross negligence has been sodefined as negligence characterized by the want of even slight care,acting or omitting to act in a situation where there is a duty to act,not inadvertently but wilfully and intentionally with a consciousindifference to consequences in so far as Other persons may beaffected. It is the omission of that care which even inattentive and

thoughtless men never fail to take on their own property."

In other words, there is "manifest partiality" when there is a clear,notorious, or plain inclination or predilection to favor one side or personrather than another. On the other hand, "evident bad faith" connotes notonly bad judgment but also palpably and patently fraudulent and dishonestpurpose to do moral obliquity or conscious wrongdoingfor some perversemotive or ill will. It contemplates a state of mind affirmatively operatingwith furtive design or with some motive or self-interest or ill will or forulterior purposes. (Boldface in the original, italics supplied)

Partiality, whether taken in its general sense or in the context of Section3(e) of R.A. 3019, implies favoring one thing over another. It denotes apreference between or among choices. It is taking one side in a level playingfield.

The application for ECC was made in favor of Consolacion Heightswithout other subdivisions or properties in consideration. True, in takingpains to apply for a private subdivision in the name of the mimicipality,accused Gungob, as Mayor, acted for the benefit of Consolacion Heights, butnot to the detriment of anybody else who were similarly situated.

In Giangan, et al. v. People, the petitioners were charged withviolation of Sec. 3(e) of R.A. 3019 for removing illegal constructionspurportedly without authority, and were found to have acted with manifestpartiality in favor of the other illegal constructions which they spared. Inreversing this Court, the Supreme Court held:

The Sandiganbayan further erred in finding the presence of manifestpartiality on the basis that there had been other allegedly illegalconstructions that the accused did not similarly remove in their capacitiesas barangay officials. Bias should still not be imputed against them becausethey were acting on the complaint against the inconvenience brought aboutby the obstruction erected on the access road. Manifest partiality should

"9 744 Phil. 214 (2014)

"0 Fuentes v. People, G.R. No. 186421, April 17,2017G.R. No. 169385, August 26, 2015

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be inferred only if there was a clear showing that there had been otherswho had been bothered by the similar allegedly illegal constructionsand had complained, but the accused, in their capacities as barangayofficials, did not deal with such complaint with the same alacrity.Indeed, in People v. AtienzaJ^^ the Court affirmed the findings of theSandiganbayan that there was no manifest impartiality or bad faith onthe part of the accused public officials where the evidence adduced didnot show that they had favored other persons similarly situated,(emphases supplied)

An Environmental Compliance Certificate (ECC) is a document issuedby the DENR/EMB after a positive review of an ECC application, certifyingthat based on the representations of the proponent, the proposed project orundertaking will not cause significant negative environmental impact. TheECC also certifies that the proponent has complied with all the requirementsof the Environmental Impact Statement (EIS) System and has committed toimplement its approved Environmental Management Plan. The ECC containsspecific measures and conditions that the project proponent has to undertakebefore and during the operation of a project, and in some cases, during theproject's abandonment phase to mitigate identified environmental impacts.'^^

The fact that this case is before this Court speaks of the irregularity ofa municipal mayor applying for an ECC in favor of a private entity. Exactly,neither Consolacion Heights nor any other subdivision is entitled to the localchief executive's aid in applying for an ECC. Granted that Mayor Gungobknew that he indeed applied for an ECC for a private subdivision, as is thepersistent stand of the Prosecution, there is none to satisfactorily establish howaccused Gungob's application as Mayor affected the grant of the ECC in favorof Consolacion Heights, to make it more favorably situated than otherapplicants.

Not only did the Prosecution fail to establish manifest partiality, it alsofailed to establish evident bad faith on the part of Mayor Gimgob.

"Bad faith" does not simply connote bad moral judgment or negligence.There must be some dishonest purpose or some moral obliquity and consciousdoing of a wrong, a breach of a sworn duty through some motive or intent orill will. It partakes of the nature of fraud. It contemplates a state of mindaffirmatively operating with furtive design or some motive of self-interest orill will for ulterior purposes.

There is a paucity of proof as to Mayor Gungob's purpose for applyingfor an ECC for Consolacion Heights in his capacity as Municipal Mayor, orwhat he stood to gain fi*om it. Obviously, Mayor Gungob wanted an ECC tobe granted to Consolacion Heights enough to take it upon himself, using his

"2 g.R. No. 171671, June 18,2012

^ Section 3(d), DENR Administrative Order No. 30-03 [Implementing Rules and Regulations for thePhilippine Environmental Impact Statement System (P.O. 1586)]

Baylon v. Ombudsman, G.R. No. 142738, December 14,2001 . I

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position, to secure it. This was no doubt indecorous, but not in itself indicativeof evident bad faith. He could have had numerous reasons, good or bad, to soact, and on this, the Court cannot conclude. It must be stressed that it is goodfaith, not bad faith, which is presumed, as the chapter on Human Relations ofthe Civil Code directs every person, inter alia, to observe good faith, whichsprings from the fountain of good conscience. As earlier discussed, theProsecution failed to establish how accused Gimgob's application asmunicipal mayor, could have made any difference in Consolacion Heights'application for an ECC. On the flip side, there is likewise no evidence ofGimgob's affiliation with the owners of the properties, or interest inConsolacion Heights Subdivision.

Bad faith has also been ascribed by the Prosecution to Mayor Gungobin applying for an ECC for the entire Consolacion Heights Subdivision Projectwhen he knew his authority was limited to applying for the necessary permitsfor the Mountain Highway Project by virtue of the Memorandum ofAgreement he signed with accused Gungob as Municipal Mayor ofConsolacion, thus:

That by virtue of this agreement, the FIRST PARTY hereby grantspower and audiority to the SECOND PARTY to apply, file and/or complywith all requirements with any government agencies the necessary permitsrelative to Ae said road construction and shall free the FIRST PARTY from

any liability, civil or criminal arising therefrom;

Again, while it is clear that Mayor Gungob overstepped his authorityunder the MO A, his purpose for so doing was never proved and cannot besubject to this Court's speculation. More importantly, such transgression ofauthority, which would logically cause grievance to the subdivision owners,antithetically resulted in unwarranted benefits in their favor, as charged underthe Information. Mayor Gimgob could also have used such limited authorityas a means of disguising a private venture in a public coat, but that would onlydemonstrate his stealth in applying for Consolacion Heights' ECC, but hismotives for doing so, as discussed, have not been proven.

No unwarranted benefit was given toConsolacion Heights Subdivision or itsowners.

Mayor Gimgob has been charged with giving unwarranted benefits,advantage or preference to the owners of Consolacion Heights ResidentialSubdivision, particularly, Bienvenido Padillo, Josefina Palang, and JacintoTimonio when he applied for an ECC for Consolacion Heights ResidentialSubdivision in the name of the Municipality of Consolacion.

^^Antonino v. Desierto, G.R. No. 144492, December 18,2008.Exhibit "D"

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The word "unwarranted" means lacking adequate or official support;unjustified; unauthorized or without justification or adequate reason."Advantage" means a more favorable or improved position or condition;benefit, profit or gain of any kind; benefit from some course of action."Preference" signifies priority or higher evaluation or desirability; choice orestimation above another.

It bears emphasis that Mayor Gimgob has been charged with applyingfor, not granting, the ECC. It was the EMB-DBNR, which, despite suchglaring irregularity, approved the application without question. TheProsecution xmderscores Mayor Gungob's contradictory defenses, whichactually show his lack of defense. On the one hand. Mayor Gungob claimsthat there was no Consolacion Heights Residential Subdivision, and on theother hand, also claims that the ECC could not be used by ConsolacionHeights Residential Subdivision, because it was not transferrable.

On Mayor Gungob's willful application for an ECC for ConsolacionHeights, this Court shares the same conviction as the Prosecution. TheProsecution is also correct that since the issue is whether or not he applied foran ECC, it does not matter if the subdivision materialized. Neither does itmatter if the ECC is transferable or not. This is because the ECC is not the

unwarranted benefit alleged in the Information.

While the application by Mayor Gungob for an ECC for ConsolacionHeights was itself unwarranted, this Court finds that the mere application foran ECC bestowed no benefit to Consolacion Heights until the same wasapproved by the EMB. An application is a mere request that vests no rights.While the Prosecution claims that Consolacion Heights and its ownersbenefited from the government's effort and resources, the uncertainty of theapplication process stands in the way of benefit in its true sense, as thesewould ultimately translate to nothing if no ECC is issued. To reiterate, thereis no proof that the application filed by accused Gungob as Mayor would havebeen treated more favorably than the owners' own application. On thecontrary, it should have raised questions for the very evident reason that notonly were the owners not the proponents of their subdivision project, it wasactually the municipal mayor.

Moreover, the Prosecution's own evidence shows that Mayor Gungob'sauthority was limited to acquiring permits for the 15-meter-wide road, theaffected portion of which was donated by Bienvenido Padillo under theMemorandum of Agreement; thus, his application for an ECC for theConsolacion Heights Subdivision Project was beyond his authority. Theapplication therefor being unauthorized by them contradicts the sameapplication being an unwarranted benefit in their favor. From the evidencepresented, nothing much could be inferred about the Consolacion HeightsSubdivision; not even that the owners of the lots involved took steps to

Rivera v. People, 6.R. Nos. 156577,156587 & 156749, December 3,2014

People V. Avelino J. Gungob 28 | P a g eS8-15-CRM-0146

DECISION

establish it, much less the reason why Mayor Gungob was even in the picture.None of the concerned owners were presented by die Prosecution to shed lighton the matter. Only Bienvenido Padillo was presented by both parties, butonly to identify the Memorandum of Agreement and to testify that he neverfiled a complaint against Mayor Gungob.

While this Court finds incredible Mayor Gungob's professed lack ofknowledge of the Consolacion Heights Subdivision Project despite signingthe application for its EGG, it is convinced that his indiscretion does notconstitute a violation of Sec. 3(e) of R.A. 3019. The basis of acquittal in thiscase is reasonable doubt which simply means that the evidence of theprosecution was not sufficient to sustain and prove his alleged guilt with moralcertainty or beyond reasonable doubt. An acquittal based on reasonable doubtwill prosper even though the his innocence may be doubted, for a criminalconviction rests on the strength of the evidence of the prosecution and not onthe weakness of the evidence of the defense.*^® The Prosecution left outessential pieces of the puzzle, which gaps this Gourt is in no position to fill,as it decides solely on die basis of evidence presented.

WHEREFORE, for failure of the prosecution to prove the guilt ofaccused AVELINO J. GUNGOB beyond reasonable doubt, he isAGQUITTED of the crime charged.

The cash bond posted by accused Gungob is ordered released subjectto the usual accounting procedures. The Hold Departure Order issued by thisGourt on October 22,2015 is set aside and the Order issued by the Bureau ofImmigration incorporating the name of the accused in the Hold Departure Listis ordered recalled and cancelled.

SO ORDERED.

MA. THERESA DOl^RES C. GOMEZ-ESTOESTAAssociate Justice, Chairperson

WE GONGUR:

ISFESES GEORGINA D. HTOALGO^Associ&te Justice Assoc iate Justice

^ Cf. People V. Leafio, et ai, G.R. No. 138886, October 9,2001

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ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of theCourt's Division.

MA. THERESA DOLdE^S C. GOMEZ-ESTOESTAAssociate Jtdstice, Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and theDivision Chairman's Attestation, it is hereby certified that the conclusions inthe above Decision were reached in consultation before the case was assignedto the writer of the opinion of the Court's Division.

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