alonzo v.

Zamora 323 SCRA 875 FACTS: A supplemental budget was passed by the councilors upon three readings held on the same day. They were charged with misconduct. HELD: There is no law prohibiting the holding of the three readings of a proposed ordinance in one session day.

[G.R. No. 137718. July 27, 1999]

REYNALDO O. MALONZO, in his capacity as City Mayor of Caloocan City, OSCAR MALAPITAN, in his capacity as Vice-Mayor of Caloocan City, CHITO ABEL, BENJAMIN MANLAPIG, EDGAR ERICE, DENNIS PADILLA, ZALDY DOLARTE, LUIS TITO VARELA, SUSAN PUNZALAN, HENRY CAMAYO, in their capacities as Members of the Sangguniang Panlungsod of Caloocan City, petitioners, vs. HON. RONALDO B. ZAMORA, in his capacity as Executive Secretary, HON. RONALDO V. PUNO, in his capacity as Under-secretary of the Department of Interior and Local Government, and EDUARDO TIBOR, respondents.

DECISION
ROMERO, J.:

Consistent with the doctrine that local government does not mean the creation of imperium in imperii or a state within a State, the Constitution has vested the President of the Philippines the power of general supervision over local government units.[1] Such grant of power includes the power of discipline over local officials, keeping them accountable to the public, and seeing to it that their acts are kept within the bounds of law. Needless to say, this awesome supervisory power, however, must be exercised judiciously and with utmost circumspection so as not to transgress the avowed constitutional policy of local autonomy. As the facts unfold, the issue that obtrudes in our minds is: Should the national government be too strong vis--vis its local counterpart to the point of subverting the principle of local autonomy enshrined and zealously protected under the Constitution? It is in this light that the instant case shall now be resolved. During the incumbency of then Macario A Asistio, Jr., the Sangguniang Panlungsod of Caloocan City passed Ordinance No. 0168, S. 1994,[2] authorizing the City Mayor to initiate proceedings for the expropriation of Lot 26 of the Maysilo Estate registered in the name of CLT Relaty Development Corporation (CLT). The lot, covering an area of 799,955 square meters, was intended for low-cost housing and the construction of an integrated bus terminal, parks and playgrounds, and related support facilities and utilities. For this purpose, the said ordinance

appropriated the amount of P35,997,975.00,[3] representing 15% of the fair market value of Lot 26 that would be required of the city government as a deposit prior to entry into the premises to be expropriated. It turned out, however, that the Maysilo Estate straddled the City of Caloocan and the Municipality of Malabon, prompting CLT to file a special civil action[4] for Interpleader with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction on August 6, 1997, before the Caloocan City Regional Trial Court, branch 124. The complaint specifically sought to restrain the defendants City of Caloocan and Municipality of Malabon from assessing and collecting real property taxes from CLT and to interplead and litigate among themselves their conflicting rights to claim such taxes. On December 11, 1997, the Caloocan City Sangguniang Panlungsod, under the stewardship of incumbent Mayor Reynaldo O. Malonzo, enacted Ordinance No. 0246, S. 1997,[5] entitled AN ORDINANCE AMENDING AND SUPPLEMENTING THE PROVISIONS OF CITY ORDINANCE NO. 0168, SERIES OF 1994 AND FOR OTHER RELATED PURPOSES.[6] Under this ordinance, certain amendments were introduced, foremost of which was the city councils decision to increase the appropriated amount of P35,997,975.00 in the previous ordinance to P39,352,047.75, taking into account the subject propertys current fair market value. After failing to conclude a voluntary sale of Lot 26, the city government commenced on March 23, 1998, a suit for eminent domain[7] against CLT before the Caloocan City Regional Trial Court, Branch 126, to implement the subject propertys expropriation. Apparently disturbed by this development, the Caloocan City Legal Officer informed the City Mayor through a letter-memorandum[8] dated April 7, 1998, of the pending interpleader case covering Lot 26 and that the same was a Prejudicial Question which must be resolved first by the proper court in order not to put the expropriation proceedings in question. He therefore recommended that pending the final determination and resolution of the court on the issue (territorial jurisdiction) raised in Civil Case No. C-18019 before Branch 124 of the Regional Trial Court of Caloocan City, the expropriation of the subject property be cancelled and/or abandoned. In the meantime, after the successful re-election bid of Malonzo, Vice-Mayor Oscar G. Malapitan wrote him a letter[9] dated June 4, 1998, requesting the immediate repair and renovation of the offices of the incoming councilors, as well as the hiring of additional personnel and the retention of those currently employed in the offices of the councilors. Malonzo acted on said letter and endorsed the same to the Office of the City Treasurer. The latter in turn manifested through a memorandum[10]dated June 26, 1998, that since the expropriation of CLT Property is discontinued, the appropriation for expropriation of FIFTY MILLION PESOS (P50M)[11] can be reverted for use in a supplemental budget stating further that he certifies (F)or its reversion since it is not yet obligated, and for its availability for re appropriation in a supplemental budget. Pursuant to the treasurers certification on the availability of funds to accommodate ViceMayor Malapitans request, Malonzo subsequently endorsed to the Sangguniang Panlungsod Supplemental Budget No. 01, Series of 1998, appropriating the amount of P39,343,028.00. The city council acted favorably on Malonzos endorsement and, thus,

passed Ordinance No. 0254, S. 1998[12] entitled AN ORDINANCE PROVIDING PAYMENTS FOR APPROVED ITEMS IN THE SUPPLEMENTAL BUDGET NO. 1 CALENDAR YEAR 1998 AND APPROPRIATING CORRESPONDING AMOUNT WHICH SHALL BE TAKEN FROM THE GENERAL FUND (REVERSION OF APPROPRIATION-EXPROPRIATION OF PROPERTIES). Alleging, however, that petitioners conspired and confederated in willfully violating certain provisions of the Local Government Code of 1991 (hereinafter the "Code") through the passage of Ordinance No. 0254, S. 1998, a certain Eduardo Tibor, by himself and as a taxpayer, filed on July 15, 1998, an administrative complaint for Dishonesty, Misconduct in Office, and Abuse of Authority against petitioners before the Office of the President (OP).[13] After the complaint was given due course, petitioners filed on October 15, 1998 their Consolidated Answer,[14] pointing out, among other things, that said complaint constituted collateral attack of a validly enacted ordinance whose validity should only be determined in a judicial forum. They also claimed that the assailed ordinance was enacted strictly in accordance with Article 417 of the Rules and Regulations Implementing the Local Government Code of 1991 (hereinafter, the Rules), as amended by Administrative Order No. 47 dated April 12, 1993. After several exchanges of pleadings,[15] petitioners, citing Section 326 of the Code and Article 422, Rule XXXIV of the Rules, filed on February 7, 1999, a Motion to Refer the Case to the Department of Budget and Management (DBM) on the ground that the DBM has been granted power under the Code to review ordinances authorizing the annual or supplemental appropriations of, among other things, highly urbanized cities such as Caloocan City. This motion, however, remained unresolved. Two days later, after learning that a certain Teotimo de Guzman Gajudo had filed an action for the Decalaration of Nullity of Ordinance No. 0254, Series of 1998, before the Caloocan City Regional Trial Court,[16]petitioners filed with the OP a Manifestation and Very Urgent Motion to Suspend Proceedings on the ground that the determination of the validity of said ordinance was a prejudicial question. Likewise, this motion was not acted upon by the OP. Thus, without resolving the foregoing motions of petitioners, the OP rendered its assailed judgment[17] on March 15, 1999, the decretal portion of which reads:

WHEREFORE, herein respondents Mayor Reynaldo Malonzo, Vice-mayor Oscar G. Malapitan and Councilors Chito Abel, Benjamin Manlapig, Edgar Erice, Dennis Padilla, Zaldy Dolatre, Susana Punzalan, Henry Camayo, and Luis Tito Varela, all of Caloocan City, are hereby adjudged guilty of misconduct and each is meted the penalty of SUSPENSION[18] from office for a period of three (3) months without pay to commence upon
receipt of this Decision. This Decision is immediately executory.

SO ORDERED.
On even date, the Department of Interior and Local Government (DILG) administered Macario E. Asistio IIIs oath of office as Acting Mayor of Caloocan City.

Without moving for reconsideration of the OPs decision, petitioners filed before this Court on March 22, 1999, the instant Petition for Certiorari and Prohibition With Application for Preliminary Injunction and Prayer for Restraining Order, With alternative Prayer for Preliminary Mandatory Injunction.[19] In a resolution of this Court dated April 5, 1999, we resolved to set the case for oral argument[20] on April 20, 1999 while at the same time directed the parties to maintain the status quo before March 15, 1999. To support their petition, petitioners contend that on account of the filing of an action for interpleader by CLT, the expropriation proceedings had to be suspended pending final resolution of the boundary dispute between Malabon and Caloocan City. Due to his dispute, the P50 million appropriation for the expropriation of properties under current operating expenses had not been obligated and no security deposit was forthcoming. It was not at the time a continuing appropriation. This unavoidable discontinuance of the purpose for which the appropriation was made effectively converted the earlier expropriation of P39,352,047.75 into savings as defined by law. They argue further that there is no truth in the allegation that Ordinance No. 0254, S. 1998 was passed without complying with Sections 50 and 52 of the Local Government Code requiring that on the first regular session following the election of its members and within 90 days thereafter, the Sanggunian concerned shall adopt or update its existing rules of procedure. According to them, the minutes of the session held on July 2, 1998 would reveal that the matter of adoption or updating of the house rules was taken up and that the council arrived at a decision to create an ad hoc committee to study the rules.[21] Moreover, even if the Sanggunianfailed to approve the new rules of procedure for the ensuing year, the rules which were applied in the previous year shall be deemed in force and effect until a new ones are adopted. With respect to the OPs assumption of jurisdiction, petitioners maintained that the OP effectively arrogated unto itself judicial power when it entertained a collateral attack on the validity of Ordinance No. 0254, S. 1998. Furthermore, primary jurisdiction over the administrative complaint of Tibor should have pertained to the Office of the Ombudsman, as prescribed by Article XI, Sections 13 and 15 of the Constitution. They also asserted that the declaration in the OPs decision to the effect that Ordinance No. 0254, S. 1998 was irregularly passed constituted a usurpation of the DBMs power of review over ordinances authorizing annual or supplemental appropriations of, among others, highly-urbanized cities like Caloocan City as provided under Section 326 of the Local Government Code of 1991. In light of said statutory provision, petitioners opined that respondents should have deferred passing upon the validity of the subject ordinance until after the DBM shall have made are view thereof. Finally, petitioners complained that respondents violated the right to equal protection of the laws when Vice-Mayor Oscar Malapitan was placed in the same class as the rest of the councilors when in truth and in fact, as Presiding Officer of the council, he did not even vote nor participate in the deliberations. The violation of such right, according to petitioners, made the OPs decision a nullity. They concluded that the administrative complaint was anathema to the States avowed policy of local autonomy as the threat of harassment suits could become a sword of Damocles hanging over the heads of local officials.

Contending that the OP decison judiciously applied existing laws and jurisprudence under the facts obtaining in this case, the Office of the Solicitor General (OSG)[22] disputed petitioners claims contending that the appropriation of P39,352,047.75 contained in an earlier ordinance (Ord. NO. 0246 S. 1997) for the expropriation of Lot 26 of the Maysilo Estate was a capital outlay as defined under Article 306 (d) of the Code and not current operating expenditures. Since it was a capital outlay, the same shall continue and remain valid until fully spent or the project is completed, as provided under Section 322 of the Code. The OSG asserted further that the filing on August 6, 1997 of an interpleader case by CLT which owns Lot 26 should not be considered as an unavoidable discontinuance that automatically converted the appropriated amount into savings which could be used for supplemental budget. Since the said amount was not transformed into savings and, hence, no funds were actually available, then the passage of Ordinance No. 0254, S. 1998 which realigned the said amount on a supplemental budget violated Section 321 of the Code requiring an ordinance providing for a supplemental budget to be supported by funds actually available as certified by the local treasurer or by new revenue sources. Petitioners were likewise faulted for violating Sections 50 and 52 of the Code requiring the Sangguniang Panlungsod to adopt or update its existing rules of procedure within the first 90 days following the election of its members. The Sanggunian allegedly conducted three readings of Ordinance No. 0254, S. 1998 in one day and on the first day of its session (July 2, 1998) without the Sanggunian having first organized itself and adopted its rules of procedure. It was only on July 23, 1998 that the Sanggunian adopted its internal rules of procedure. As regard petitioners contention that the administrative complaint of Tibor should have been filed with the Office of the Ombudsman instead of the OP, the OSG pointed out that under Section 60 and 61 of the Code, the OP is vested with jurisdiction to discipline, remove or suspend a local elective official for, among other things, misconduct in office. The Ombudsman has never been vested with original and exclusive jurisdiction regarding administrative complaints involving government officials. Finally, the OSG sought to dismiss the petition on the grounds of non-exhaustion of administrative remedies before the OP and for failure to follow Section 4, Rule 65 of the 1997 Rules of Civil Procedure which prescribes that if it [the subject of the petition] involves the acts or omissions of a quasi-judicial agency, and unless provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. The petition is impressed with merit. Preliminarily, we find a need to resolve a couple of procedural issues which have a bearing on the propriety of this Courts action on the petition, to wit: (1) whether the Supreme Court is the proper forum which can take cognizance of this instant petition assailing the decision of the OP, and (2) whether the Supreme Court may entertain the instant petition despite the absence of a prior motion for reconsideration filed by petitioners with the OP. After a very careful and meticulous review of the parties respective positions on these matters, we find that this Court possesses the requisite power to assume jurisdiction and rule on the petition.

It is not the first time that similar procedural challenges have been brought before this Court. Just recently, in the case of Fortich, et al. v. Corona, et al.,[23] we again had an occasion to clarify our position on these questions. By way of backgrounder, said case involved the socalled Win-Win Resolution of the OP which modified tha approval of the conversion to agro industrial area of a 144-hectare land located in San Vicente, Sumilao, Bukidnon. As in this case, the OSG opposed said petition on the ground that the same should have been filed with the Court of Appeals since what was sought to be reviewed was the OPs decision. Facing said issues squarely, we explained that we did not find any reason why such petition should not have been filed in this Court, holding that:

But the Supreme Court has the full discretionary power to take cognizance of the petition filed directly to it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et al., Torres vs. Arranz, Bercero vs. De Guzman, and Advincula vs. Legaspi, et al. As we have further stated inCuaresma: x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations (sic) so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, as will be discussed later, we find the assailed resolution wholly void and requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon v. Court of Appeals: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper

procedure that should have been taken by the parties involved and proceed directly to the merits of the case. [Underscoring supplied, citations omitted].
In like manner, it is our considered view now that the instant petition has been properly brought before us in light of the importance of the subject matter and the transcendental nature of the issues raised. Realignment, as explained in the pleadings, is a common practice borne out of necessity and sanctioned by law. Just how such a common practice may be carried out within the bounds of law, considering the fact that public funds are at stake, is, we believe, an issue that is not only one of the first impression, but likewise of considerable significance as a guide to local governance. Furthermore, as will be discussed later, the assailed decision of the OP has been tainted with grave abuse of discretion, thus, requiring the immediate exercise of this Courts corrective power lest public welfare, more particularly that of the Caloocan City constituents, be jeopardized by a more circumlocutory procedure which respondents are now insisting upon. With respect to the alleged non-exhaustion of administrative remedies, we do not see the same as a fatal procedural lapse that would prevent us from entertaining the more pressing questions raised in this case. In any event, jurisprudence is replete with instances instructing us that a motion for reconsideration is neither always a prerequisite nor a hard-and-fast rule to be followed where there are particularly exceptional attendant circumstances such as, in the instant case, patent nullity of the questioned act and the necessity of resolving the issues without further delay.[24] Having therefore disposed of the procedural questions, we now turn our attention to the more crucial substantive issues, namely:
1. Whether the Office of the President gravely abused its discretion when it found petitioners guilty of misconduct for the reason that Ordinance No. 0254, Series of 1998, was allegedly tainted with irregularity; 2. Whether Ordinance No. 0254, Series of 1998, violated Section 326 of the Local Government Code of 1991 on reversion of unexpended balances of appropriations; 3. Whether Ordinance No. 0254, Series of 1998, complied with Section 321 of the Local Government Code of 1991 requiring that changes in the annual budget should be supported by funds actually available; and 4. Whether Ordinance No. 0254, Series of 1998, was valid considering that prior to its passage there was as yet no formal adoption of rules of procedure by the Caloocan City Sangguniang Panlungsod.

As stated earlier, the OP found petitioners guilty of misconduct on the ground that they failed to strictly comply with certain provisions of the Code relating to the passage of the ordinance in question. It justified its position, thus:

By respondents (sic) very own admission --- and these facts are a matter of record --the P39,352,047.75 appropriated in Ordinance 0254 to fund the approved items listed therein was merely a portion of the P50 Million included and appropriated in the 1998 Annual Budget for expropriation purpose and that the judicial action for expropriation --- earlier filed by the city and for which an allocation of P39,352,047.75 out of the P50 Million appropriation for expropriation of properties --- is still pending with the

court. This being so, the amount allocated for the expropriation cannot be reverted or be deemed as savings to serve as funds actually available for the supplemental budget. It cannot be argued that the unexpected turn of events mentioned by the respondents --- referring to the filing by CLT Realty on August 6, 1997 of a complaint against the Municipality of Malabon and the City of Caloocan for interpleader amounts to an unavoidable discontinuance of the expropriation project, and thus effectively converted the earlier expropriation (sic) of P39,352,047.75 into SAVINGS. For one, it was only on March 23, 1998, that the City of Caloocan filed an expropriation case against CLT Realty (docketed as Special Case No. 548 Regional Trial Court, Caloocan City). If, as respondents argue, the August 6, 1997interpleader suit amounted to the unavoidable discontinuance of the expropriation project, thus effectively turning the earlier appropriation of P39,352,047.75 into savings, then how explain the March 23, 1998expropriation case? For another, the records do not indicate --- not even an allegation to this effect-- that the City of Caloocan has withdrawn the expropriation case aforementioned which is, ordinarily, the legal route taken in the event of abandonment of discontinuance of the expropriation project. On the contrary, the city government, as indicated in its judicial pleadings that now form part of the records, even sought the issuance of a writ of possession. In this light, it is all too clear that Ordinance No. 0254 was enacted without funds actually available as required by Section 321 of the Local Government Code of 1991, which pertinently reads --xxx xxx xxx

The words actually available are so clear and certain that interpretation is neither required nor permitted. The application of this legal standard to the facts of this case compels the conclusion that, there being no reversion, as above-explained, the supplemental budget was not supported by funds actually available, by funds really in the custody or possession of the treasurer. Stated differently, it may be that the City Treasurer of Caloocan, vis-a-vis Ordinance No. 0254, issued a certificate of availability of funds (Annex 9, answer). The issuance, however cannot alter the reality that the funds referred to therein are not funds actually available because they are sourced or are to be sourced from an appropriation for a capital outlay which cannot be validly reverted or converted into savings, as respondents put it, on ground of unavoidable discontinuance of the expropriation project.

Adding significance to the conclusion reached herein is the fact that the enactment by the respondents of the supplemental budget was clearly tainted with undue haste. The sangguniang panlungsod conducted the three (3) readings (the 1 st the 2nd and 3rd) on the same day, July 2, 1998, its first day of session, adopted it on July 7, 1998, and approved by respondent mayor on the following day, July 8, 1998, without first having itself organized and its rules of procedure adopted and without first electing its officers and chairmen and the members of the different committees in accordance with [the] provisions of the LGC (see Secs. 50 & 52, RA 7162). This undue haste implies willful failure to respond to or comply with what the law requires which is the essence of bad faith.
xxx xxx xxx

We are thus one with the DILG in finding respondents guilty of violating Section 321 in relation to Section 332 of the Local Government Code of 1991. This violation constitutes misconduct, an offense implying a wrongful intent, an unlawful behavior in relation to the office, one that usually involves a transgression of some established and definite rule of action, more particularly unlawful behavior by the public officer. [Citations omitted].[25]
We cannot, however, agree with the above disquisition. The OPs premise, in our opinion, rests upon an erroneous appreciation of the facts on record. The OP seems to have been confused as to the figures and amounts actually involved. A meticulous analysis of the records would show that there is really no basis to support the OPs contention that the amount of P39,352,047.75 was appropriated under Ordinance No. 0254, S. 1998, since in truth and in fact, what was appropriated in said ordinance was the amount of P39,343,028.00. The allocation of P39,352,047.75 is to be found in the earlier Ordinance No. 0246, S. 1997 which is a separate and distinct ordinance. This point of clarification is indeed very critical and must be emphasized at this juncture because any further discussion would have to depend upon the accuracy of the figures and amounts being discussed. As will be explained below, this faulty appreciation of the facts by the OP caused it to arrive at the wrong conclusion even if it would have correctly interpreted and applied the pertinent statutory provisions. Section 322 of the Code upon which the OP anchored its opinion that petitioners breached a statutory mandate provides:

SEC 322. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations. Unexepended balances of appropriations authorized in the annual appropriations ordinance shall revert to the unappropriated surplus of the general funds at the end of the fiscal year and shall not thereafter be available for expenditure except by subsequent enactment. However, appropriations for capital outlays shall continue and remain valid until fully spent, reverted or the project is

completed. Reversions of continuing appropriations shall not be allowed unless obligations therefor have been fully paid or otherwise settled.
Based on the above provision, the OP reached the determination that Ordinance No. 0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which was previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since such appropriation was in the nature of a capital outlay until fully spent, reverted; or the project for which it is earmarked is completed. The question, however, is not whether the appropriation of P39,352,047.75 could fall under the definitions of continuing appropriation[26] and capital outlays,[27] considering that such amount was not the subject of the realignment made by Ordinance No. 0254, Series of 1998. Rather, the issue is whether petitioners are liable for their actions in regard to said ordinance which actually realigned a position of the P50 million which was simply denominated in a general manner as Expropriation of Properties and classified under Current Operating Expenditures in the 1998 Annual Budget of Caloocan City. Clearly, these are two distinct amounts separate from each other. That this is the case has likewise been clarified in the pleadings and during the oral argument where petitioners adequately explained that the P50 million was NOT appropriated for the purpose of purchasing Lot 26 of the Maysilo Estate but rather for expenses incidental to expropriation such as relocation of squatters, appraissal fee, expenses for publication, mobilization fees, and expenses for preliminary studies.[28] This position appears to us more convincing than that of the interpretation of respondents. The appropriation of P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we believe, still a subsisting appropriation that has never been lumped together with other funds to arrive at the sum of P50 million allocated in the 1998 budget. To be sure, denomination of the P50 million amount as Expropriation of Properties left much to be desired and would have been confused with the appropriation for expropriation under Ordinance No. 0246, S, 1997, but had respondents probed deeper into the actual intention for which said amount was allocated, then they would have reached an accurate characterization of the P50 million. Bearing in mind, therefore, the fact that it is the P50 million which is now being realigned, the next logical question to ask is whether such amount is capable of being lawfully realigned. To this, we answer in the affirmative. No less than respondents themselves argued, citing Sections 321 and 322 in relation to Section 306 (d) and (e) of the Code, that realignment shall not be allowed when what is involved are continuing appropriations or capital outlays. But this argument becomes clearly inapplicable in view of our disquisition above that the realignment being complained of had nothing to do with the P39,352,047.75 appropriation for the purchase of Lot 26 of the Maysilo Estate which is clearly the one that is classifiable as a capital outlay or a continuing appropriation. The realignment, as we have earlier discussed, pertained to the P50 million which was classified as Current Operating Expenditures. Having been determined as such by the local council upon which legislative discretion is granted, then the statutory proscription does not, therefore, apply and respondents cannot insist that it should. Moreover, in view of the fact that what is being realigned is the P50 million appropriation which is classified, neither as a capital outlay nor a continuing appropriation, then respondents position that Ordinance No. 0254, S. 1998 was enacted without funds actually available and in

violation of Section 321 of the Code likewise falls flat on its face. This is notwithstanding respondents assertion that the unaviodable discontinuance of the expropriation proceedings for Lot 26 could not have automatically converted the appropriated amount therefor into savings. For one thing, the Code appears silent and respondents themselves have not shown how unexpected balances of appropriations revert to the general fund. Likewise, it would be pointless to belabor this matter because it has been brought out precisely on the assumption that the amount of P39,352,047.75, has no more leg to stand on, as explained earlier. As to the alleged violation of Sections 50 and 52 of the Code requiring the adoption of house rules and the organization of the council, we believe that the same hardly merits even cursory consideration. We cannot infer the mandate of the Code that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules. All that the law requires is that on the first regular session the sanggunian concerned shall adopt or update its existing rules or procedure. There is nothing in the language thereof that restricts the matters to be taken up during the first regular session merely to the adoption or updating of the house rules. If it were the intent of Congress to limit the business of the local council to such matters, then it would have done so in clear and unequivocal terms. But as it is, there is no such intent. Moreover, adoption or updating of house rules would necessarily entail work beyond the day of the first regular session. In fact, it took the members of the Sangguniang Panlungsod of Caloocan City until July 23, 1998 to complete the task of adopting their house rules. Does this mean that prior thereto, the local councils hands were tied and could not act on any other matter? That would certainly be absurd for it would result in a hiatus and a paralysis in the local legislatures work which could not have been intended by the law. Interpretatio talis in ambiguis semper frienda est, ut evitatur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted.[29] We believe that there has been sufficient compliance with the Code when on the first regular session, the Sanggunian took up the matter of adopting a set of house rules as duly evidenced by the KATITIKAN NG KARANIWANG PULONG NG SANGGUNIANG PANLUNGSOD NA GINANAP NOONG IKA-2 NG HULYO, 1998 SA BAGONG GUSALI NG PAMAHALAANG LUNGSOD NG CALOOCAN[30] where Item No. 3 thereof specifically mentioned the request for creation of an ad hoc committee to study the existing house rules. The foregoing explanation leads us to the ineluctable conclusion that, indeed, respondents committed grave abuse of discretion.[31] Not only are their reasoning flawed but are likewise lacking in factual and legal support. Misconduct, being a grave administrative offense for which petitioners stood charged, cannot be treated cavalierly. There must be clear and convincing proof on record that petitioners were motivated by wrongful intent,[32] committed unlawful behavior in relation to their respective offices,[33] or transgressed some established and definite rules of action.[34] But as we have stressed above, petitioners were acting within legal bounds. Respondents seem to have turned a blind eye or simply refused to consider facts that would have enlightened them and exculpated herein petitioners to such an extent that they arrived at their erroneous conclusion. In view hereof, this Court is justified in striking down the impugned act of the Office of the President. Two motions filed in accordance with procedural rules were ignored by the Office of the President and left unresolved: first, the February 7, 1999 Motion to Refer the Case to the DBM

and second, the Manifestation and Very Urgent Motion to Suspend Proceedings on the ground that the determination of the validity of said ordinance was a prejudicial question. Motions need not necessarily grant what movant is asking for, but they must be acknowledged and resolved. The Office of the President, being the powerful office that law and tradition have endowed it, needs no mighty blows on the anvil of authority to ensure obedience to its pronouncements. It would be more in keeping with its exalted stature if its actions could safeguard the very freedoms so sedulously nurtured by the people. Even what it may deem minor lapses, emanating as it does from such an exalted office, should not be allowed to go unchecked lest our democratic institutions be gradually eroded. WHEREFORE, the instant petition is hereby GRANTED. The assailed decision of the Office of the President in O.P. Case No. 98-H-8520 dated March 15, 1999 is ANNULLED and SET ASIDE for having been rendered with grave abuse of discretion amounting to lack and/or excess of jurisdiction. Consequently, respondents, their subordinates, agents, representatives, and successors-in-interest are permanently enjoined from enforcing or causing the execution in any manner of the aforesaid decision against herein petitioners. No pronouncement as to costs. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Purisima, Buena, and Gonzaga-Reyes, JJ., concur.

LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Mayor, HON. JEFFREY P. FERRER,*and the SANGGUNIANG PANLUNGSOD OF LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Vice-Mayor, HON. DEMIE JOHN C. HONRADO,**

Petitioners, The Facts

The facts as found by the Court of Appeals are as follows:

On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros Occidental appointed Atty. Rex G. Rojo (or Rojo) who had just tendered his resignation as member of the SangguniangPanlungsod the day preceding such appointment, as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The next day, March 19, 2004, the ViceMayor submitted Rojosappointment papers to the Civil Service Commission Negros Occidental Field Office (CSCFO-Negros Occidental) for attestation. In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to inform him of the infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel Selection Board and the Human Resource Management Officer did not sign the certifications, the latter relative to the completeness of the documents as well as to the publication requirement. In view of the failure of the appointing authority to comply with the directive, the said CSCFO considered the appointment of Rojopermanently recalled or withdrawn, in a subsequent Letter to Jalandoon dated April 14, 2004.

Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter to the CSC Regional Office No. 6 in Iloilo City, by way of an appeal. He averred that the Human Resource Management Officer of La Carlota City refused to affix his signature on Rojos appointment documents but nonetheless transmitted them to the CSCFO. Such transmittal, according to Jalandoon, should be construed that the appointment was complete and regular and that it complied with the pertinent requirements of a valid appointment. Before the said CSC Regional Office No. 6 [could resolve the appeal], the City of La Carlota represented by the newly elected mayor, Hon. Jeffrey P. Ferrer and the Sangguniang Panlungsod represented by the newly

elected Vice-Mayor, Hon. Demie John C. Honrado, collectively, the petitioners herein, intervened. They argued that Jalandoon is not the real party in interest in the appeal but Rojo who, by his inaction, should be considered to have waived his right to appeal from the disapproval of his appointment; that the appointment was made within the period of the election ban prior to the May 14, 2004 national and local elections, and finally, that the resignation of Rojo as member of the Sangguniang Panlungsod is ineffective having not complied with the provision on quorum under Section 82(d) of R.A. No. 7160.

In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside the CSCFOs earlier ruling. On the argument of the intervenors that the former Vice-Mayor lacked legal personality to elevate the case on appeal, the regional office cited settled jurisprudence that the disapproval of an appointment affects the discretionary authority of the appointing authority. Hence, he alone may request for reconsideration of or appeal the disapproval of an appointment. The regional office likewise ruled that Rojos appointment on March 18, 2004 was made outside the period of the election ban from March 26 to May 9, 2004, and that his resignation from the Sangguniang Panlungsod was valid having been tendered with the majority of the council members in attendance (seven (7) out of the thirteen councilors were present). Considering that the appointment of Rojo sufficiently complied with the publication requirement, deliberation by the Personnel Selection Board, certification that it was issued in accordance with the limitations provided for under Section 325 of R.A. 7160 and that appropriations or funds are available for said position, the regional office approved the same. x x x

Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional Office No. 6 to the Civil Service Commission (or Commission). On May 17, 2005, the Commission dismissed said appeal on the ground that the appellants were not the appointing authority and were therefore improper parties to the appeal. Despite its ruling of dismissal, the Commission went on to reiterate CSC Regional Offices discussion on the appointing authoritys compliance with the certification and deliberation requirements, as well as the validity of appointees tender of resignation. x x x

It likewise denied the motion for reconsideration thereafter filed by the petitioners in a Resolution dated November 8, 2005.5

Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of Appeals denied the petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service Commission, dated 17 May 2005 and 8 November 2005, respectively. Petitioners filed a Motion for Reconsideration, which the Court of Appeals denied in its Resolution dated 18 January 2008.

Hence, this petition for review.

The Ruling of the Court of Appeals

Citing Section 9(h), Article V of Presidential Decree No. 8076 or the Civil Service Decree, the Court of Appeals held that in the attestation of an appointment made by a head of agency, the duty of the Civil Service Commission does not go beyond ascertaining whether the appointee possesses the appropriate civil service eligibility and the minimum statutory qualifications.7 In this case, the Court of Appeals found that respondent met the minimum qualifications for the position of Secretary of the Sanggunian, as enumerated under Section 469(b), Article I, Title V of the Local Government Code.8 In fact, the Court of Appeals held that respondent is more than qualified for the position considering that respondent is a lawyer and an active member of the bar. Furthermore, the requirements for the appointment of respondent have been substantially complied with: (a) publication; (b) Personnel Selection Board deliberation; and (c) certification from the appropriate offices that appropriations or funds are available for the position. Thus, the Court of Appeals ruled that there was no sufficient reason for the Commission to disapprove respondents appointment.

On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on respondents appointment papers, the Court of Appeals held that such refusal of the officer to affix his signature should not affect the validity of the appointment. Otherwise, it would be tantamount to putting the appointing power

under the mercy of a department head who may without reason refuse to perform a ministerial function, as what happened in the instant case.9

The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate the election ban period which was from 26 March to 9 May 2004. Furthermore, there was no substantial evidence to show that the appointment was a midnight appointment.

Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for the position of Sangguniang Panlungsod Secretary, and the appointing authority has adequately complied with the other requirements for a valid appointment, then the Civil Service Commissions approval of the appointment was only proper.

The Issues

Petitioners raise the following issues:

1. WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG PANLUNGSOD SECRETARY VIOLATED THE CONSTITUTIONAL PROSCRIPTION AGAINST ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT DURING HIS TENURE; and 2. WHETHER RESPONDENTS APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY WAS ISSUED CONTRARY TO EXISTING CIVIL SERVICE RULES AND REGULATIONS.10

The Ruling of the Court

Petitioners allege that respondents appointment as Sangguniang Panlungsod Secretary is void. Petitioners maintain that respondents irrevocable resignation as a SangguniangPanlungsod member was not deemed accepted when it was presented on 17 March 2004 during the scheduled regular session of the Sangguniang Panlungsod of La Carlota City, Negros Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang Panlungsod member when then Vice Mayor Jalandoon appointed him asSangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7, Article IX-B of the Constitution.11

The resolution of this case requires the application and interpretation of certain provisions of Republic Act No. 7160 (RA 7160), otherwise known as the Local Government Code of 1991. The pertinent provisions read:

Section 82. 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 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 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.

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of thesangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie. (b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 52. Sessions. (a) On the first day of the session immediately following the election of its members, the sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular sessions shall be once a week for the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and twice a month for the sangguniang barangay. (b) When public interest so demands, special session may be called by the local chief executive or by a majority of the members of the sanggunian. (c) All sanggunian sessions shall be 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. No two (2) sessions, regular or special, may be held in a single day. (d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the members usual place of residence at

least twenty-four (24) hours before the special session is held. Unless otherwise concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice. (e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the sanggunian concerned.

Section 53. Quorum . (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results. (b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session. (c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons. (c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing supplied)

Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached to constitute a quorum, then no business could have validly been transacted on that day including the acceptance of respondents irrevocable resignation.

On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. Citing the Department of Interior and Local Government (DILG) Opinion No. 28, s. 2000,12 dated 17 April 2000, respondent asserts that the vice-mayor, as presiding officer, should be included in determining the existence of a quorum. Thus, since there were six (6) members plus the presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

The 1987 Constitution mandates Congress to enact a local government code which provides, among others, the powers, functions and duties of local officials and all other matters relating to the organization and operation of the local government units. Section 3, Article X of the 1987 Constitution states:

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied)

Thus, the Local Government Code shall x x x provide for the x x x powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. In short, whether a vice-mayor has the power, function or duty of a member of the Sangguniang Panlungsod is determined by the Local Government Code.

On 10 October 1991, the Congress approved RA 7160 or the Local Government Code. Under RA 7160, the city vice-mayor, as presiding officer, is a member of the SangguniangPanlungsod, thus:

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of thesangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing and underscoring supplied)

RA 7160 clearly states that the Sangguniang Panlungsod shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members. Blacks Law Dictionary defines composed of as formed of or consisting of. As the presiding officer, the vice-mayor can vote only to break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a member of the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the presiding officer who votes to break a tie during aSanggunian session is not considered a member of the Sanggunian.

The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the Legislature to treat the vice-mayor not only as the presiding officer of theSangguniang Panlungsod but also as a member of the Sangguniang Panlungsod. The pertinent portions of the deliberations read:

Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I reiterate this observation, that changes in the presiding officership of the local sanggunians are embodied for the municipality where the vice-mayor will now be the presiding officer of the sanggunian and the province where the vice-governor will now be the presiding officer. We did not make any change in the city because the city vicemayor is already the presiding officer.

The President. All right.

Senator Rasul, Senator Lina, and Senator Gonzales.

Senator Gonzales. May I just add something to that statement of Senator Pimentel?

The President. All right.

Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that the provincial governor, the city mayor, the municipal mayor, as well as, the punong barangay are no longer members of their respective sanggunian; they are no longer members. Unlike before, when they were members of their respective sanggunian, now they are not only the presiding officers also, they are not members of their respective sanggunian.

Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)

During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of 1991, clearly agrees with Senator Gonzales that the provincial governor, the city mayor, and the municipal mayor who were previously the presiding officers of their respective sanggunian are no longer the presiding officers under the proposed Local Government Code, and thus, they ceased to be members of their respective sanggunian.13 In the same manner that under the Local Government Code of 1991, the vice-governor, the city vice-mayor, and the municipal vice-mayor, as presiding officers of the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan, respectively, are members of their respective sanggunian.

In the 2004 case of Zamora v. Governor Caballero,14 the Court interpreted Section 53 of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan. The Court held:

Quorum is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act. Majority, when required to constitute a quorum, means the number greater than half or more than half of any total. In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that majority of each House shall constitute a quorum, Section 53 of the LGC is more exacting as it requires that the majority of all members of the sanggunian . . . elected and qualified shall constitute a quorum.

The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority ofsanggunian members present when there is no quorum. A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session.15

In stating that there were fourteen (14) members of the Sanggunian,16 the Court in Zamora clearly included the Vice-Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to determine the quorum of the sanggunian, have consistently conformed to the Courts ruling in Zamora.

In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-mayor is included in the determination of a quorum in the sanggunian. The DILG Opinion reads:

DILG Opinion No. 46, s. 2007 02 July 2007

MESSRS. JAMES L. ENGLE, FEDERICO O. DIMPAS, JR., MARIFE G. RONDINA, PORFERIO D. DELA CRUZ, and WINSTON B. MENZON Sangguniang Bayan Membership Babatngon, Leyte

Dear Gentlemen and Lady:

This has reference to your earlier letter asking our opinion on several issues, which we quoted herein in toto:

(1) What is the number that would determine the quorum of our sanggunian that has a total membership of eleven (11) including the vice-mayor?

(2) Are the resolutions adopted by a sanggunian without quorum valid?

In reply to your first query, may we invite your attention to Section 446 (a) of the Local Government Code of 1991 (RA 7160) which provides and we quote:

SECTION 446. Composition. (a) The Sangguniang bayan, the legislative body of the municipality, shall be composed of the municipal vice-mayor as the presiding officer, the regular sangguniangmembers, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8) regular members, the Liga ng mga Barangay President, the SK Federation President, the Vice-Mayor as Presiding Officer and the sectoral representatives.

Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer then of the sanggunian was the Mayor. Thus, there was a dilemma as to whether or not the Vice-Mayor, as Presiding Officer, is to be included in the determination of quorum in the Sangguniang Bayan. This issue was, however, resolved with the advent of the new Local Government Code of 1991 (RA 7160) providing the aforequoted provision. Hence, the vice-mayor is included in the determination of a quorum in the sanggunian.

Based on the aforequoted provision, sectoral representatives are also included in the determination of quorum in the sangguniang bayan. Let it be noted however that sectoral representatives in the local sanggunianare, pursuant to Section 41 (c) of RA 7160 and Section 10 (b) of RA 9264, to be elected in a manner as may be provided for by law. Meantime however, Congress has yet to enact a law providing for the manner of electing sectoral representatives at the local sanggunians. Such being the case, sectoral representatives are not, in

the meantime, included in the determination of quorum in the local sanggunians.

In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members, the Liga ng mga Barangay President and the SK Federation President as ex-officio members, and the Vice-Mayor as Presiding Officer. The total membership in that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Majority has been defined in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body. Following the said ruling, since the total membership of the sanggunian being 11, 11 divided by 2 will give us a quotient of 5.5. Let it be noted however that a fraction cannot be considered as one whole vote, since it is physically and legally impossible to divide a person or even his vote into a fractional part. Accordingly, we have to go up to the next whole number which is 6. In this regard, 6 is more than 5.5 and therefore, more than one-half of the total membership of the sangguniang bayan in conformity with the jurisprudential definition of the term majority. Thus, the presence of 6 members shall already constitute a quorum in the sangguniang bayan for it to conduct official sessions.

xxxx

Very truly yours, (signed) AUSTERE A. PANADERO OIC, OUSLG17 In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that the Vice-Governor, as a Presiding Officer of

the Sangguniang Panlalawigan, is a composite member thereof and is included in the determination of the quorum. DILG Opinion No. 13, s. 2010 reads:

DILG Opinion No. 13, s. 2010 09 February 2010

GOVERNOR JESUS N. SACDALAN VICE-GOVERNOR EMMANUEL F. PIOL Provincial Capitol Building Province of Cotabato

Gentlemen:

This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain to one subject matter.

Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010 where the August Body embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of the Sangguniang Panlalawigan attended said session, namely: ten (10) regular Sangguniang Panlalawigan Members, three (3) exofficio Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that when said approval of the Annual Budget was submitted for votation of said August Body, the result was: seven (7) members voted for the approval of the Annual Budget and six (6) voted against.

Specifically, you want us to shed light on the following issues:

1) Whether or not the august body has reached the required majority of all the members of the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the Local Government Code and in relation to Article 107 (g) of its Implementing Rules and Regulations?

2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of all the members of the sangguniang panlalawigan to validly pass an appropriation ordinance.

3) Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval thereof?

4) In the event that the Province operates under a re-enacted budget, what are those expenditures included in the term essential operating expenses that may be incurred by the Province?

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For the sanggunian to officially transact business, there should be a quorum. A quorum is defined by Section 53 of the Local Government Code of 1991 as referring to the presence of the majority of all the members of the sanggunian who have been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the approval of a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On the

other hand, there are certain measures where the Local Government Code requires for its approval the vote of majority of all the members who were duly elected and qualified. This is what we call approval by the qualified majority of the sanggunian. In this case, the approval is to be voted not just by the majority of those present in a session there being a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless of whether all of them were present or not in a particular session, there being a quorum.

xxxx

In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum. Along this line, it bears to emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang Panlalawigan is a composite body where the Vice-Governor as Presiding Officer is a composite member thereof. As a composite member in the sangguniang panlalawigan, he is therefore included in the determination of a quorum.

Majority has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire membership. We note, however, that using either formula will give us the same result. To illustrate, using the 50% +1 formula, the 50% of a sanggunian composed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other hand, if we use the second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the latter. The simple majority of the sangguniangpanlalawigan with fourteen (14) members where all of them were present in that particular session is therefore 8.

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Very truly yours, (signed) AUSTERE A. PANADERO Undersecretary18 In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition of the Sangguniang Panlungsod. In this case, the SangguniangPanlungsod of La Carlota City, Negros Occidental is composed of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. A majority of the 13 members of the Sangguniang Panlungsod, or at least seven (7) members, is needed to constitute a quorum to transact official business. Since seven (7) members (including the presiding officer) were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

The Perez19 case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution, and prior to the enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case was decided even prior to the old Local Government Code which was enacted in 1983. In ruling that the vice-mayor is not a constituent member of the municipal board, the Court in the Perez case relied mainly on the provisions of Republic Act No. 305 (RA 305) creating the City of Naga and the amendatory provisions of Republic Act No. 225920 (RA 2259) making the vice-mayor the presiding officer of the municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or Municipal Board in chartered cities. However, RA 305 and 2259 were silent on whether as presiding officer the vice-mayor could vote. Thus, the applicable laws in Perez are no longer the applicable laws in the present case.

On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted Section 5322 of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of the Sangguniang Panlalawigan, was decided under the 1987 Constitution and after the enactment of the Local Government Code of 1991. In stating that there were fourteen (14) members of the Sangguniang Panlalawigan of Compostela Valley,23 the Court in Zamora clearly

included the Vice- Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

On the issue that respondents appointment was issued during the effectivity of the election ban, the Court agrees with the finding of the Court of Appeals and the Civil Service Commission that since the respondents appointment was validly issued on 18 March 2004, then the appointment did not violate the election ban period which was from 26 March to 9 May 2004. Indeed, the Civil Service Commission found that despite the lack of signature and certification of the Human Resource Management Officer of La Carlota City on respondents appointment papers, respondents appointment is deemed effective as of 18 March 2004 considering that there was substantial compliance with the appointment requirements, thus:

Records show that Atty. Rojos appointment was transmitted to the CSC Negros Occidental Field Office on March 19, 2004 by the office of Gelongo without his certification and signature at the back of the appointment. Nonetheless, records show that the position to which Atty. Rojo was appointed was published on January 6, 2004. The qualifications of Atty. Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended by Vice Mayor Jalandoon as Chairman and Jose Leofric F. De Paola, SP member and Sonia P. Delgado, Records Officer, as members. Records likewise show that a certification was issued by Vice Mayor Jalandoon, as appointing authority, that the appointment was issued in accordance with the limitations provided for under Section 325 of RA 7160 and the said appointment was reviewed and found in order pursuant to Section 5, Rule V of the Omnibus Rules Implementing Executive Order No. 292. Further, certifications were issued by the City Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor that appropriations or funds are available for said position. Apparently, all the requirements prescribed in Section 1, Rule VIII in CSC Memorandum Circular No. 15, series of 1999, were complied with.24 Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he was considered resigned as Sangguniang Panlungsod member effective 17 March 2004; (2) he was fully qualified for the position of Sanggunian Secretary; and (3) there was substantial compliance with the appointment requirements.

WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18 January 2008 Resolution of the Court of Appeals in CA-G.R. CEB-SP No. 01377.

SO ORDERED.