Anda di halaman 1dari 130


By: Atty. Enrique V. dela Cruz, Jr.

Internal Structure of
The Sanggunian

Sanggunian Committees
The manner of selecting the Chairman
and Members of various committees is
through election. (Sec. 50, LGC)
The majority can prepare a list and the
sanggunian can vote to approve it,
provided this is indicated in the IRP.
DILG Opinion No. 112-98 (09-07-1998)

Ex-Officio members and the

selection of committee chairs
SK Chairmen and Punong Barangays are non-partisan.
Thus, they cannot participate in the election of officers
and the selection of chairmen and members of various
committees because this is mainly dependent on the
majority and minority party affiliation in the sanggunian.
However, these ex-officio members are assured of the
chairmanship of the corresponding sectors that they
are representing in the sanggunian, that is, the youth
and barangay affairs, respectively.

DILG Opinion No. 112-98 (09-07-1998)

Can the vice mayor chair a committee?

The vice-mayor may chair a special
committee created for a special
purpose (DILG Opinions Nos. 2431992; 156-1994) but cannot head a
regular committee. (DILG Opinions
Nos. 243-1992; 29-1993)

What is quorum?

A majority of all the

members of the sanggunian
who have been elected and
qualified shall constitute a
quorum to transact official
business (Section 53, LGC)

What is meant by majority?

50% plus one of the entire

membership of the sanggunian;
The closest number to more
than one-half of the total
membership of the sanggunian;
(La Carlota City vs. Atty. Rex Rojo,
G.R. No. 181367, April 24, 2012)

Is the vice-mayor included in the

determination of quorum?
Yes. The Vice Mayor is a member of
the sanggunian.
He will thus be included in the total
number of sanggunian members for
purposes of determining quorum.
(DILG Opinion No. 28-2000, dated 17 April 2000;
La Carlota City vs. Atty. Rex Rojo, G.R. No.
181367, April 24, 2012)

Determining Quorum
19 members = 19/2 = 9.5 + 1 = 10.5
The quorum for a sanggunian with
19 members is therefore 10
11 members = 11/2 + 1 = 6.5
The quorum for a sanggunian with
11 members is therefore 6 (DILG
Opinion No. 60-2004, dated 19 July

Vote Required in Sessions

Ordinary measures shall be

decided by a simple majority of
the members present at any
meeting there being a quorum.
(DILG Opinions Nos. 26-1996;

Two-Thirds (2/3) Vote Required

Extending Loans or entering into
Issuance of bonds or securities;
Authorizing the lease of public
Grant of franchises;
indebtedness; (DILG Opinion No. 1072003, dated 15 August 2003)

Two-Thirds (2/3) Vote Required

Over-ride the veto of the Mayor;

Grant of Tax exemptions;
Levy of taxes;
Discipline / suspend a member of the
Opening or closing of roads;
Selection and transfer of govt site or
Concurrence in the appointment of
personnel; (DILG Opinion No. 107-2003,
dated 15 August 2003)

Regular v. Special Session

Regular session is that indicated in the
IRP as the usual day of meeting. Notice
may be dispensed with and other matters
not in the agenda may be discussed.
Special session is any other session
outside of the regular schedule. It may be
called by the local chief executive or a
majority of sanggunian members.
Notice required. Only matters in the
agenda may be discussed.

Can a Sanggunian agree to a recess of

two weeks or more?
NO. Section 52 of the LGC provides that
the MINIMUM number of regular sessions
Under Section 53 of the LGC, a recess is
valid only for a short period of time or
when there is no quorum.
A recess of two weeks or more is invalid
even if approved by a majority of the
sanggunian because it will violate section
52 of the LGC. (DILG Opinion No.104-2002, July 17, 2002)

Requisites for a Valid Special Session

There must be a CALL for a special
session either by the mayor or a majority
of the sanggunian;
Written notice of the special session must
be personally served upon all sanggunian
members at their usual place of
The notice must be served AT LEAST 24
HOURS BEFORE the special session.
(DILG Opinion No.76-2002, May 13, 2002)

Vice-Mayor as Presiding Officer

Being the presiding officer of the council, a
vice-mayor is considered a regular member
of the local legislative council concerned,
(DILG Opinion Nos. 138, 342 - 1992; 81-1995)

But a vice-mayor acting as mayor cannot

preside over the council until the mayor reassumes his/ her position since this will
violate the local separation of powers.
(Gamboa v. Aguirre)
In such situation, the senior councilor may
preside. (DILG Opinions Nos. 142, 174 - 1994)

Presiding Officer as member

As presiding officer, he can only vote to break
a tie;
As a member, he may participate in the
deliberations, vote, sponsor or co-author a bill
or chair a special committee.
He/ she may temporarily relinquish his/ her
chair -- as presiding officer -- to the majority
floor leader or to any sanggunian member.
(DILG Opinion No. 65-1995)

If he will participate in the session as a

member, he may choose the temporary
presiding officer. (DILG Opinions Nos. 29, 132 1993)

Temporary Presiding Officer

In case of temporary absence of the

presiding officer, the members present
and constituting a quorum shall elect
from among themselves a temporary
presiding officer.
He shall certify within 10 days from the
passage of ordinances / resolutions
adopted by the sanggunian in the
session over which he temporarily
presided.(Art. 102-IRR, LGC)

Permanent vacancy: Presiding Officer

In case of permanent vacancy in

the position of vice mayor, the
member will succeed as vice
mayor /presiding officer.
The vacancy shall be filled by the
other members of the sanggunian
in accordance to their ranking.
(Section 44, LGC)

Permanent vacancy: sanggunian

In case the permanent vacancy was

caused by a member who belongs to a
political party, the party will nominate
and the president will appoint the
If he does not belong to any political
party, the other members of the
sanggunian will nominate and the
replacement. Section 45, LGC

Sanggunian Secretary
The secretary to the sanggunian is a
career public official with rank and salary
equal to a head of a department. (DILG
Opinions Nos. 91, 253, 286 - 1992; 781995;)
automatically continue in office despite
the lapse of 3-year terms of elective
officials unless otherwise removed for
cause. (DILG Opinion No. 176-1992)

Appointment of Sanggunian Secretary

It is the vice mayor, not the mayor,

who is authorized to appoint the
secretary to the sanggunian (CSC En
Banc Resolutions Nos. 94-7153
December 29, 1994, 92-111 August 20,
1992; DILG Opinions Nos. 348-1992; 7,
155, 236, 245 - 1993; 85-1995) with
the concurrence of the sanggunian
concerned. (DILG Opinion No. 8-1995)

Q: Under the Local Government Code, what are

the prohibitions against the practice of other
1. Local Chief Executives (governors, city and
municipal mayors) are prohibited from practicing
their profession;
2. Sanggunian members may practice their
profession, engage in any occupation, or teach in
schools except during session hours;
3. Doctors of medicine may practice their profession
even during official hours of work in cases of
emergency provided that they do not derive
monetary compensation therefrom.

Under the Local Government Code, can the members of

Sanggunian engage in the practice of law?
A: GR: Yes.
1. Cannot appear as counsel in any civil case where in a
local government unit or any office, agency or instrumentality
of the Govt. is the adverse party;
2. Cannot appear as counsel in any criminal case wherein
an officer or employee of the national or local Govt. is
accused of an offense committed in relation to his office;
3. Shall not collect any fee for their appearance in
administrative proceeding involving the LGU of which he is
an official; and
4. May not use property and personnel of the Govt., except
when defending the interest of the Govt.

Temporary vacancy: Mayor

A mayor may designate in writing an
councilor, any
appointive official or employee) to assume
the office but only for three (3) days.
On the 4th day, the vice-mayor assumes
the post regardless of the nature of the
absence of the mayor. (DILG Opinions Nos. 22,
30, 87-A - 1993; 52, 53 - 1994)

Henceforth, the designation of the officer-incharge ceases. (DILG Opinion No. 87-A 1993)

Powers: Acting Mayor

A vice-mayor acting as mayor possesses the
powers incidental to the office, including the
authority to solemnize marriages, during the
period of temporary incapacity
Opinion No. 25-1994)
An acting mayor can exercise the power
to appoint and to discipline only after the
lapse of 30 working days from the time
the mayor is temporarily incapacitated.
(CSC En Banc Resolution Nos. 94-0959 February 15,
1994, 94-6892 December 20, 1994)

Acting Mayor CANNOT:

administer oaths (DILG Opinion No. 136-1994);
the power to approve or disapprove ordinances
and resolutions enacted by the council (DILG
Opinion No. 149-1993);
preside over council sessions (DILG Opinions
Nos. 270-1992; 142, 174 -1994);
appoint, suspend or dismiss employees within
30 days except when the cause of the
temporary incapacity of the mayor is suspension
for more than 30 days.

Is the signature of the Vice mayor on an

enacted ordinance necessary?

No. Section 469 (c)(3) of the LGC

provides that enacted ordinances
must be certified by the presiding
officer before they are submitted
to the mayor for his approval.
However, any presiding officer
may certify an enacted ordinance.
(DILG Opinion No. 16-2005, dated 15 Feb. 2005)

May an ordinance become valid even

without the signature of the mayor?

Yes. If he fails to act on an

ordinance submitted to him for
his review within 10 days from
his receipt thereof;
When the sanggunian overrides
the veto of the mayor by 2/3 vote.
(DILG Opinion No. 22-2003, dated 27 Feb. 2003)

Veto Power by the Punong Barangay

By express provision of law, a punong

barangay has no power to veto ordinances
approved by the sangguniang barangay.
This is so since he is a member of the
Thus, the action of the sanggunian binds
the punong barangay and all that remains
for him to do is to sign and implement said
DILG Opinions Nos. 128-1995; 15-1996


May an LGU alter the zoning classification of a

portion of its territory and order the transfer of
businesses located therein?

Yes. The power to establish zones for

industrial, commercial and residential uses is
derived from the police power itself and is
exercised for the protection and benefit of
the residents of a locality.
Social Justice Society v. Atienza, Jr., 517
SCRA 657 (2007) and 545 SCRA 92 (2008)

An aggrieved resident of the City of Manila
filed mandamus proceedings against the city
mayor and the city engineer to compel these
officials to remove the market stalls from certain
city streets which they had designated as flea
Portions of the said city streets were leased or
licensed by the respondent officials to market
stallholders by virtue of a city ordinance. Decide
the dispute.

Suggested Answer:
The petition should be granted.
In accordance with Macasiano v.
Diokno. 212 SCRA 464 [1992], since
public streets are properties for public
use and are outside the commerce of
man, the City Mayor and the City
Engineer cannot lease or license
portions of the city streets to market

May an LGU prescribe a central terminal for

public utility vehicles within its territory?

No. Since the compulsory use of the

terminal would subject the users thereof
to fees, rentals and charges, such
measure is unduly oppressive.
Lucena Grand Central Terminal, Inc. v.
JAC Liner, Inc., 452 SCRA 174 (2005)

May an LGU regulate the subscriber rates charged by

CATV operators within its territorial jurisdiction?

No. Regulation of CATV subscriber

rates is lodged in the NTC, not LGUs.
LGUs, likewise, have no authority to
grant franchises for such undertakings.
Batangas CATV, Inc. v. Court of
Appeals, 439 SCRA 326 (2004)

May an LGU enact an ordinance to phase out

motels, night clubs, and other establishments to
protect public morals?

NO. Businesses may only be regulated but

cannot altogether be prohibited.
Simply because there are no pure places
where there are impure men.
That these motels and clubs are used as
venues for prostitution is of no moment.
sexual immorality may take place in the most
innocent of places
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

May an LGU regulate the short time periods and wash rates
of motels, to protect public morals?
NO. Individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands
of public interest or public welfare.
However well-intentioned the Ordinance may be, it is in
effect an arbitrary and whimsical intrusion into the rights of
the establishments as well as their patrons.
The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights
of their patrons without sufficient justification.
The Ordinance rashly equates wash rates and rentingout a
room more than twice a day with immorality without
accommodating innocuous intentions.
White Light Corp., vs. City of Manila, 576 SCRA 416 (2009)

May an LGU validly use public funds to undertake the

widening, repair and improvement of the sidewalks of
a privately-owned subdivision?
In May 1999, the City of Marikina undertook a public works
project to widen, clear and repair the existing sidewalks of
Marikina Greenheights Subd.
It was assailed as an illegal use of public funds.
The SC ruled that subdivision streets belong to the owner
until donated to the government or until expropriated upon
payment of just compensation.
The use of LGU funds for the widening and improvement of
privately-owned sidewalks is unlawful as it directly
contravenes Section 335 of RA 7160.
Albon v. Fernando, 494 SCRA 141 (2006)

LGU Power to Grant License to Cockpits

It is the sanggunian bayan concerned alone which has the
power to authorize and license the establishment, operation
and maintenance of cockpits, and regulate cockfighting and
commercial breeding of gamecocks within its territorial
Nevertheless, while the sanggunian retains the power to
authorize and license the establishment, operation, and
maintenance of cockpits, its discretion is limited in that it
cannot authorize more than one cockpit per city or
municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two
cockpits may be established.
Tan v. Perea, 452 SCRA 53 (2005)

Can the Governor Issue Small-Scale Mining Permits?

NO. Pursuant to Republic Act No. 7076, which took effect on
18 July 1991, approval of the applications for mining permits
and for mining contracts are vested in the Provincial/City
Mining Regulatory Board.
Composed of the DENR representative, a representative
from the small-scale mining sector, a representative from the
big-scale mining industry and a representative from an
environmental group, this body is tasked to approve smallscale mining permits and contracts.
Considering that the governor is without legal authority to
issue said mining permits, the same permits are null and
Calanza v. Paper Industries Corporation of the
Philippines (PICOP), 586 SCRA 408 (2009)

Consultation and Sanggunian

Approval for Infrastructure projects

27 Prior Consultations
Required --- No project or program
shall be implemented by government
authorities unless the consultations
mentioned in Sections 2(c) and 26
hereof are complied with, and prior
concerned is obtained


Can a Sanggunian prohibit the

operation of Lotto in their LGU?
NO. Section 27 of the LGC applies only to national
programs and/or projects which are to be
implemented in a particular local community.
Lotto is neither a program nor a project of the
national government, but of a charitable institution,
the PCSO.
Besides, the PCSO charter is statute.
ordinance cannot amend or modify a statute.
Lina vs. Pano, 364 1 SCRA 76 (2001)

If the MMDA seeks to establish a sanitary landfill

in an LGU, is the prior approval of the
Sanggunian Bayan required?
YES. Section 27 of the LGC mandates two
requisites that must be met before a national
project that affects the environmental and
ecological balance of local communities can be
implemented: prior consultation with the affected
local communities, and prior approval of the project
by the appropriate sanggunian.
Absent either of these mandatory requirements,
the projects implementation is illegal.
Province of Rizal v. Executive Secretary, 477 SCRA 436 (2005)


1. An expropriation suit is incapable of pecuniary
estimation. Barangay San Roque v. Heirs of Pastor,
334 SCRA 127 (2000)
2. Section 19 of the LGC requires an ordinance, not a
resolution, for the exercise of eminent domain.
Suguitan v. City of Mandaluyong, 328 SCRA 137
3. A valid and definite offer to acquire the property is
necessary prior to the exercise of the power of
eminent domain. The offer must not be accepted.
Jesus is Lord Christian School Foundation, Inc. vs.
Municipality of Pasig, GR 152230, August 9, 2005

Procedure for Eminent Domain

The land must be a private property;

It must be for a public purpose;
There must be genuine necessity;
There must be a previous valid and
definite offer to buy the private property
in WRITING. It shall specify the
property sought to be acquired, the
reasons for the acquisition, and the
price offered.
The offer is denied or rejected;

Procedure for Eminent Domain

If the owner rejects the offer, the LGU can then

file a complaint for expropriation in the RTC.
The LGU must then deposit the amount
equivalent to 15% of the fair market value of
the property to be expropriated based on its
current tax declaration.
The LGU may then enter the property.
The Court will determine the amount of just
compensation for the property expropriated.

May an LGU expropriate a property for the benefit of a

specific homeowners association?
NO. A local government unit cannot use the power of
eminent domain to expropriate a property merely for the
purpose of providing a sports and recreational facility to a
small group of persons, such as those belonging to
homeowners association.
Where the taking by the State of private property is done
for the benefit of a small community which seeks to have its
own sports and recreational facility, notwithstanding that
there is such a recreational facility only a short distance
away, such taking cannot be considered to be for public
use. Its expropriation is not valid.
Masikip v. City of Pasig, 479 SCRA 391 (2006)

May an LGU expropriate a property to provide a

right-of-way to a specific community?
In this case, a barangay sought to expropriate private lands
to secure a right-of-way for residents of a subdivision.
The SC declared that the failure of the subdivision owner to
provide an access road does not shift the burden to
barangay itself.
To deprive the private persons of their property instead of
compelling the subdivision owner to comply with its
obligation under the law is an abuse of the power of eminent
domain and is patently illegal, which misuse of public funds
for a private purpose could amount to a possible case of
Barangay Sindalan, San Fernando, Pampanga v. Court
of Appeals, 518 SCRA 649 (2007)


Q: Define taxation.
A: It is an inherent power by which the
1. through its law-making body
2. raises income to defray the necessary expenses
of government
3. by apportioning the cost among those who, in
some measure are privileged to enjoy its benefits
and, therefore, must bear its burdens. (51 Am.Jur.
Note: Simply stated, the power of taxation is the
power to impose burdens on subject and
objects within its jurisdiction.

Q: In order to raise revenue for the repair and

maintenance of the newly constructed City Hall of
Makati, the City Mayor ordered the collection of
P1.00, called elevator tax, every time a person
rides any of the high-tech elevators in the City Hall
during the hours of 8am to 10am and 4pm to 6pm. Is
the elevator tax a valid imposition?

A: No. The imposition of a tax, fee or charge or the

generation of revenue under the Local Government
Code, shall be exercised by the Sanggunian of the local
government unit concerned through an appropriate
ordinance [Sec. 132, LGC]. The city mayor alone could
not order the collection of the tax; as such, the elevator
tax is an invalid imposition.

Q: Who determines the legality or propriety of a local

tax ordinance or revenue measure?
A: It is the Secretary of Justice who shall determine
questions on the legality and constitutionality of ordinances
or revenue measures.
Such questions shall be raised on appeal within thirty (30)
days from the effectivity thereof to the Secretary of Justice
who shall render a decision within sixty (60) days from the
date of receipt of the appeal: Provided, however, That such
appeal shall not have the effect of suspending the effectivity
of the ordinance and the accrual and payment of the tax,
fee, or charge levied therein: Provided, finally, That within
thirty (30) days after receipt of the decision or the lapse of
the sixty-day period without the Secretary of Justice acting
upon the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction (RTC).
(Sec. 187 R.A. 7160)

Is the MIAA subject to real property tax?

NO. MIAA is not a GOCC but an instrumentality of the
National Government, and, (b) the real properties of MIAA
are owned by the Republic of the Philippines and thus
exempt from real estate tax.
What about the collection of terminal fees and other
charges? (Mactan Cebu vs. Judge Marcos, 1996)
The fact that the MIAA collects terminal fees and other
charges from the public does not remove the character of the
Airport Lands and Buildings as properties for public use.
The Airport Lands and Buildings of MIAA are devoted to
public use and thus are properties of public dominion. As
properties of public dominion, the Airport Lands and
Buildings are outside the commerce of man.
MIAA vs. CA, 495 SCRA 591 (2006)

Is the GSIS a GOCC, therefore subject to real property tax?

NO. GSIS is not a GOCC but an instrumentality of the
National Government. GSIS capital is not divided into unit
shares. Also, GSIS has no members to speak of.
The real properties under GSISs name are likewise owned
by the Republic. The GSIS is but a mere trustee of the
subject properties which have either been ceded to it by the
Government or acquired for the enhancement of the system.
This particular property arrangement is clearly shown by the
fact that the disposal or conveyance of said subject
properties are either done by or through the authority of the
President of the Philippines.
GSIS v. City Treasurer, 23 December 2009
NOTE. This overturns the ruling in City of Davao v. RTC,
467 SCRA 280 (2005), wher the SC declared the GSIS
liable for real property taxes.

LGU Power to Impose Franchise Tax

In this case, Smart, contends that its telecenter in Davao City
is exempt from payment of franchise tax to the City, because
its franchise (R.A. No. 7294 [1992]) includes the clause in
lieu of all taxes (9).
Smart alleges that the in lieu of all taxes clause in its
franchise exempts it from all taxes, both local and national.
The Local Government Code, which allowed the imposition
of franchise tax by LGUs, took effect 2 months ahead of
Smarts franchise.
The SC ruled that the in lieu of all taxes clause applies only
to national internal revenue taxes and not to local taxes.
Smart Communications, Inc. v. City of Davao, 565 SCRA
237 (2008)

On The Grant of Tax Incentives

Article 282 of the Implementing Rules of the LGC provides:

The tax incentive shall be granted only to

new investments in the locality and the
ordinance must prescribe the terms and
conditions that must be complied with;
The grant of tax incentive shall be for a
definite period not exceeding one (1) year;
(BLGF Opinion dated 31 January 2003)

On The Grant of Tax Incentives

Article 282 of the Implementing Rules of the LGC provides:

The grant of tax incentive shall be by

ordinance passed prior to the first (1st)
day of January of any year; and
Any tax incentive granted to a type or kind of
business shall apply to all businesses
similarly situated.

Tax on Jeeps and Buses

An LGU cannot impose a tax on the gross
receipts/income of public utility vehicles
(Section 133-J, LGC);

However, an LGU can impose a business

tax on operators of PUVs maintaining
booking office, terminal or waiting stations
wihin its territory provided that the tax is
based on the number of units of
vehicles.(BLGF Opinion dated 28 April 2003)

May the Sanggunian investigate the

local water district?
Yes. A local water district is a
corporation. (OGCC Opinion Nos. 2681995).
Its employees, however, are
covered by the Civil Service Law.
It is an offspring corporation of the local
government forming it, to operate
basically as a public utility for public
service. (LWUA Opinion September 21,

3% in-lieu shares from the

local water district
In-Lieu Shares. --- As an incident to the
acquisition of the existing water system of a
city, municipality, or province, a district may
enter into a contract to pay in lieu of taxes
on such utility plant, an annual amount not
exceeding three (3%) percent of the districts
gross receipts from water sales every year.
(Sec. 30-b, PD 198)

Power of Sanggunian to
dissolve local water district
If the local water district refuses to
enter into a contract with the LGU for
the payment of in-lieu shares, the
Sanggunian may cause
dissolution, thru the LWUA, and the
LGU may then take-over its
unnumbered January 19, 1995)

Oversight on

What are the conditions under which

a local executive may enter into a contract
in behalf of his government unit?
a. The local government unit must have the power to
enter into the particular contract.
a. Pursuant to Section 22(c) of the Local Government
Code, there must be a prior authorization by the
sanggunian concerned;
b. If the contract involves the expenditure of public
funds, there must be an appropriation therefore and a
certificate of availability of funds by the treasurer of
the local government unit.
c. The contract must conform with the formal requisites
of written contracts prescribed by law.

Q: What documents must support the contract of sale

entered into by the LGU?
Resolution of the sanggunian authorizing the local chief
executive to enter into a contract of sale. The resolution
shall specify the terms and conditions to be embodied in the
Ordinance appropriating the amount specified in the
Certification of the local treasurer as to availability of funds
together with a statement that such fund shall not be
disbursed or spent for any purpose other than to pay for the
purchase of the property involved. (Jesus is Lord Christian
School Foundation, Inc. vs. Municipality of Pasig, G.R. No.
152230, August 9, 2005)

Q: Can the Annual Budget be used as continuing

authority for the LCE to enter into contracts without
prior authorization from the Sanggunian?
A: NO.
Sec. 22 of the LGC states: Unless otherwise provided in
this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit
without prior authorization by the sanggunian
Should the appropriation ordinance, however, already
contain in sufficient detail the project and cost of a capital
outlay such that all that the local chief executive needs to do
after undergoing the requisite public bidding is to execute
the contract, no further authorization is required, the
appropriation ordinance already being sufficient.
Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008.

Basic Rules on Government Contracts

The absence of any of the three legal

an appropriation
law, a certificate of appropriation
and fund availability, and public
bidding renders any contract
entered into by the government as void
from the beginning.
Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book
V of the Administrative Code of 1987

First Requisite: Appropriation Law

The Administrative Code of 1987 expressly prohibits
the entering into contracts involving the expenditure of
public funds unless two prior requirements are
First, there must be an appropriation law authorizing
the expenditure required in the contract.
Second, there must be attached to the contract a
certification by the proper accounting official and
auditor that funds have been appropriated by law and
such funds are available.
Failure to comply with any of these two
requirements renders the contract void.

First Requisite: Appropriation Law

Section 46, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:

Entering into Contract. (1) No contract
involving the expenditure of public funds
shall be entered into unless there is an
appropriation therefore, the unexpended
balance of which, free of other obligations, is
sufficient to cover the proposed expenditure;

2nd Requisite: Availability of Funds

Section 47, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:
SECTION 47. Certificate Showing Appropriation to
Meet Contract. no contract involving the expenditure
of public funds by any government agency shall be entered
into or authorized unless the proper accounting official
of the agency concerned shall have certified to the
officer entering into the obligation that funds have been
duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the
current calendar year is available for expenditure on
account thereof

Effect of Non Compliance

Section 48, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:

SECTION 48. Void Contract and Liability of

Officer. Any contract entered into contrary to
the requirements of the two (2) immediately
preceding sections shall be void, and the officer
or officers entering into the contract shall be liable
to the Government or other contracting party for
any consequent damage to the same extent as if
the transaction had been wholly between private

Q: Is Public bidding required when LGUs

enter into contracts?
A: Yes, in the award of government
contracts, the law requires competitive public
bidding. It is aimed to protect the public
interest by giving the public the best possible
advantages thru open competition. It is a
mechanism that enables the government
agency to avoid or preclude anomalies in the
execution of public contracts. (Garcia
vs.Burgos, G.R. No. 124130, June 29, 1998)

Q: When is there a failure of bidding?

A: when any of the following occurs:
There is only one offeror
When all the offers are non-complying
Committee on Privatization, G.R. No.
112399 July 14, 1995 )

Q: Can a municipal contract be


A: No, when the local chief executive

enters into contracts, he needs prior
authorization or authority from the
(Vergara vs. Ombudsman, G.R. No.
174567, March 12, 2009)

Oversight on

What is the period for the Sanggunian to

concur on appointments?
When an appointment is presented before the sanggunian
for its concurrence, that sanggunian is mandated to act
thereon within fifteen (15) days from the date of its
submission (Sec. 463, Ibid).
The word "act" in said provision means either expressly to
concur or not to concur on the appointment upon
determining whether or not the appointee possesses all the
qualifications and none of the disqualifications for the said
office (DILG Opinion No. 40, s. 2000).
For as long as the appointee possesses the required
qualifications and none of the disqualifications, it is a
ministerial duty which the law enjoins on the part of the
Sangguniang Panlalawigan to concur your appointment.

When is the appointment deemed effective?

Appointment to a public office becomes
effective only once it is completed.
The Supreme Court, in the case of Atty.
David B. Corpuz vs. Court of Appeals, et. al.,
G.R. No. 123989 dated January 26, 1998,
held that where the assent or confirmation of
some other offices or body is required, the
appointment may be complete only when
such assent or confirmation is obtained.

Hiring of Consultants
Can the Mayor hire consultants for the LGU
No. The hiring of a consultant requires the
execution of a consultancy contract or MOA
with a prescribed payment for the contracted
services by the LGU.
Under Section 22 (c) of the LGC, the mayor
can neither enter into this contract nor hire
consultants without prior authorization from
the Sanggunian. (DILG Opinion No. 40-2003 dated 26 March

Can The Vice Mayor Hire Consultants

Yes. But he must first be authorized by the
Sanggunian to enter into the Consultancy contract
(Section 22-C, LGC).
Under Section 456 of R.A. 7160, there is no inherent
authority on the part of the city vice-mayor to enter into
contracts on behalf of the local government unit, unlike
that provided for the city mayor.
Thus, the authority of the vice-mayor to enter into
contracts on behalf of the city is strictly circumscribed
by the ordinance granting it.
The ordinance is valid only for a specific period and
with a specific contract. (ARNOLD D. VICENCIO VS. HON.
REYNALDO A. VILLAR, ET AL. , G.R. NO. 182069. JULY 3, 2012)

May LGUs hire elected officials or government

employees as consultants?
YES. Pursuant to Section 2(a), Rule 11 of CSC Memo
Circular No. 40 dated 14 December 1998,
consultancy services are not considered
government services and no employer-employee
relationship exists between the LGU and the

Thus, the position of consultant cannot be

considered as an appointment or designation in
any capacity to a public office or position. Also
the honorarium received from such consultancy
agreement cannot be considered double or
additional compensation since no employeremployee relationship exists. (DILG Opinion No.
26 s. 2001 dated 16 April 2001)

May LGUs hire private counsel?

In the case of Ramos vs. CA (108 SCRA 728), the
Supreme Court declared that a private lawyer cannot
represent a local government unit even if the services
rendered was gratis.
Moreover, in the case of Edgar Mancenido, et. al., vs.
Court of Appeals (330 SCRA 419), the Supreme Court
stated that an LGU may only hire a private attorney
when the provincial fiscal is disqualified.
However, the LGU may hire a private lawyer as a legal
officer under a consultancy agreement, duly
approved by the local sanggunian. Such
sanggunian resolution will clothe him with the
authority to act as the legal officer of the LGU.
(DILG Opinion No. 26 s. 2004 dated 03 February 2004)

Is the rule prohibiting midnight appointments applicable

to local governments?

Sales vs. Carreon 515 SCRA 597 (2007)

Here, what is involved is the appointment of 83
employees by the outgoing mayor during his last
month in office.
The incoming mayor revoked such appointments on the
ground that they are midnight appointments.
The SC held that the constitutional ban on midnight
appointments and NOT to local governments.
In truth and in fact, there is no law that prohibits local
elective officials from making appointments during the last
days of his or her tenure.

Quirog vs. Aumentado,

GR No. 163443, 11 November 2008

Outgoing Bohol Provincial Governor Rene L.

Relampagos made 97 permanent appointments,
including Liza M. Quirog as Provincial Government
Department Head of the Bohol Provincial Agriculture
Office on 28 May 2001 (two weeks after he lost the
elections and 30 days before the end of his term).
Incoming Governor Erico Aumentado revoked all the
appointments on the ground that they were null and
void for being midnight appointments.
The CSC and the CA affirmed the revocation on the
ground that CSC Resolution No. 010988 specifically
prohibited outgoing local chief executives from
making appointments after the elections and until the
end of their term.

Quirog vs. Aumentado,

GR No. 163443, 11 November 2008


NO. The Supreme Court held that there is no law
prohibiting outgoing local chief executives from
making appointments after the elections and until
the end of their term.

The said CSC Resolution No. 010988 was issued only on

June 4, 2001. Evidently, the appointments made prior to
said date should not have been subjected to the
requirements under said resolution, as its application is
against the prospective application of laws. Having no
provision regarding its retroactive application to
appointments made prior to its effectivity, CSC Resolution
No. 010988 must be taken to be of prospective

Nazareno et al. vs City of Dumaguete

G.R. No. 181559. 2 October 2009
Petitioners Nazareno et al. (103 employees) were appointed and
promoted by the out-going Dumaguete City Mayor Felipe Antonio
B. Remollo in June 2001, after he had lost the May 2001 local
elections and 30 days before he vacates the office.
On 2 July 2001, the newly-elected Mayor Agustin R. Perdices
announced that he would not honor the appointments made by
former Mayor Remollo, instructing the City Administrator
Dominador Dumalag Jr. to direct the Asst. City Treasurer Erlinda
Tumongha to refrain from making any cash disbursements for
payments of petitioners salaries and salary differentials.
On 1 August 2001, the Civil Service Commission (CSC) Field
Office in Dumaguete City revoked and invalidated the petitioners
appointments and promotions for being in violation of CSC
Resolution No. 010988 dated 4 June 2001.

Nazareno et al. vs City of Dumaguete

G.R. No. 181559. 2 October 2009
Yes. The Supreme Court held that while there exists no
constitutional prohibition against mass appointments
by defeated local government officials prior to the end
of their term, being the central personnel agency of the
government, the CSC has the statutory authority to
establish rules and regulations to promote efficiency
and professionalism.
In order to discourage, nay, even preclude, losing
candidates from issuing appointments merely for partisan
purposes thereby depriving the incoming administration of
the opportunity to make the corresponding appointments in
line with its new policies.

BUDGET Oversight

Who prepares the budget?

The Local Development Council (LDC) prepares
the Local Development Plan (LDP) (Section 109, LGC);
The sanggunian will then approve or disapprove
the LDP thru a Resolution (Section 114, LGC);
The LDP will then be submitted to the mayor, who
may approve or veto the same (Section 55, LGC);
The approved LDP will then be submitted to the
Local Finance Committee (LFC) for budget
preparation (Art. 410, IRR, LGC);
The proposed budget will be submitted by the local
chief executive to the sanggunian for enactment
into an ordinance. (Section 316, LGC) (DILG Opinion No. 1372003)

Can the Sanggunian reduce the

proposed budget?
Article 415 of the IRR states that: "the local
sanggunian may not increase the proposed
amount in the executive budget nor include new
items except to provide for statutory and
contractual obligations but in no case shall it
exceed the total appropriations in the executive
Considering that the only prohibition is against any
increase, the sanggunian may reduce the
executive budget proposed by the LCE, provided,
however, that the requirements as well as the
general limitations in the use of govt funds
provided for under Sections 324 and 325 of the
Code are complied with.

Is there any penalty for an LCE who fails

to prepare and submit the annual budget
on time?

Yes. Pursuant to Sec. 318 of R.A. No.

7160, an LCE who fails to submit the
budget on or before October 16 of
the current year shall be subject to
such criminal and administrative
penalties as may be provided by the
Local Government Code and other
applicable laws.

What is the period for enactment of the

annual budget
Under Section 323 of the LGC, If the sanggunian fails
to enact the annual budget after ninety (90) days from
the beginning of the fiscal year, the ordinance
authorizing the appropriations of the preceding year
shall be deemed reenacted and shall remain in force
and effect until the ordinance authorizing the proposed
appropriations is passed by the sanggunian
However, only the annual appropriations for salaries
and wages of existing positions, statutory and
contractual obligations, and essential operating
expenses authorized in the annual and supplemental
budgets for the preceding year shall be deemed
reenacted and disbursement of funds shall be in
accordance therewith.

What is the period for the review of the budget?

The LGU budget should be reviewed by the

Sangguniang Panlalawigan within 30 days
upon receipt of the appropriation
ordinance from. (Section 56, LGC)
If no action is taken, the ordinance is
deemed approved.
Action taken means approval or disapproval.
Referral to a committee is not a proper

DILG Opinion No. 17-2004 (09 February 2004)

Effectivity of Budget
Section 320 of the LGC, provides that:
The ordinance enacting the annual budget shall
take effect on the ensuing calendar year.
An ordinance enacting a supplemental budget,
however, shall take effect upon its approval or on
the date fixed therein.
The review of the budget by the sangguniang
panlalawigan is not a requisite for validity or
effectivity. (DILG Opinion No. 90-2000 dated 21 August 2000)

Supplemental Budget
No ordinance providing for a supplemental budget
shall be enacted except:
(a) when supported by funds actually available as
certified by the local treasurer, which shall refer to
the amount of money actually collected during a
given fiscal year that is over and above the realized
estimated income of that year; or
(b) in times of public calamity by way of budgetary
realignment to set aside appropriations for the
purchase of supplies and materials or the payment
of services which are exceptionally urgent or
absolutely indispensable to prevent imminent
danger to, or loss of, life or property, in the
jurisdiction of the LGU or in other areas declared in
a state of calamity by the President. (Art. 417, IRR).

Intelligence Fund
Section 325(h) of RA 7160 provides in part that
". . . annual appropriations for discretionary
purposes of the local chief executive shall
not exceed two percent (2%) of the actual
receipts derived from basic real property tax
in the next preceeding calendar year.
Pursuant to DILG Memorandum Circular No.
99-65 to determine the amount to be utilized
for intelligence and confidential purposes, it
shall be based on the: (a) 30% of the peace
and order allocation, or 3% of the annual
appropriations, whichever is lower. "

Budget Limitations
For LGUs, the budget limitations for
Personal Services (PS) is provided
under Section 325 (a) of the Local
Government Code (RA No. 7160),
which sets the limit of 45 percent, in
case of first to third class provinces,
cities and municipalities;
And 55 percent, in case of fourth class
or lower, of the total income from
regular sources realized in the next
preceding fiscal year.

Q: What is the difference between the

suability and liability of the Local
A: Where the suability of the state is
conceded and by which liability is
ascertained judicially, the state is at liberty to
determine for itself whether to satisfy the
judgment or not. (Municipality of Hagonoy
Bulacan vs. Hon. Simeon Dumdum, G.R. No.
168289 March 22, 2010)

Q: May LGU funds and properties be seized under writs

of execution or garnishment to satisfy judgments
against them?
A: No, The universal rule that where the State gives its consent to
be sued by private parties either by general or special law, it may
limit claimants action only up to the completion of proceedings
anterior to the stage of execution and that the power of the Courts
ends when the judgment is rendered, since government funds
and properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious
considerations of public policy.
Disbursements of public funds must be covered by the
corresponding appropriations as required by law.
The functions and public services rendered by the State cannot
be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects. (Traders Royal
Bank v. Intermediate Appellate Court, G.R. No. 68514, December
17, 1990)

Q: What is the exception to the above

stated rule?
A: The rule on the immunity of public
funds from seizure or garnishment does
not apply where the funds sought to be
levied under execution are already
allocated by law specifically for the
satisfaction of the money judgment
against the government. In such a case,
the monetary judgment may be legally
enforced by judicial processes. (City of
Caloocan v. Allarde, G.R. No. 107271, September
10, 2003)


Q: Where should an administrative complaint

against elective officials be filed?

A: A verified complaint shall be filed with the

Office of the President against elective official of
provinces, HUC, ICC, component cities.
Sangguniang Panlalawigan elective officials of
municipalities; and
Sangguniang Panglunsod or Bayan elective
barangay officials. (Sec. 61, LGC)

What are the grounds to discipline local officials?

1. Disloyalty to the Republic;
2. Culpable Violation of the Constitution;
3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of duty;
4. Commission of any offense involving moral
turpitude or an offense punishable by at least
prision mayor;
5. Abuse of Authority;
6. Unauthorized Absences for 15 consecutive
days (3 consecutive sessions);
7. Acquisition of foreign citizenship or status of
an immigrant in another country;
8. Such other grounds. (Section 60, LGC)

Power to Discipline
A Sanggunian may only discipline erring
subordinate officials.
A council cannot, by mere resolution, remove
a local chief executive.
Such power is
exercised by a higher council. (DILG Opinions
Nos. 281-1993; 38-1995)
A vice-mayor, despite his/ her unauthorized
absences, remains to be vice-mayor and may
not be disciplined by his own Sanggunian.
(DILG Opinion No. 179-1994)

Contempt Powers of the Sanggunian

A sanggunian cannot cite in contempt a
person who fails to appear before it since
there is no law which authorizes local
legislative councils from doing so. (DILG
Opinion No. 3-1994)
Neither can it issue compulsory processes.
Thus, a local legislative council cannot
compel attendance in committee hearings.
(DILG Opinion No. 212-1993)

How should the Sanggunian try

disciplinary cases?
Cases involving barangay officials must be
commenced by filing a formal notarized
complaint before the Sanggunian.
The appropriate Committee will conduct a
preliminary study and its report will then be
heard by the whole Sanggunian.
The Sanggunian will then conduct hearings.
A Decision will then be prepared containing a
summary of the facts and the issues resolved.
(Malinao vs. Reyes G.R. No. 117618 March 29, 1996)

Procedures in disciplinary cases?

Within 7 days after the complaint is filed,
the Sanggunian shall send a Notice to the
respondent requiring him to submit his
answer within 15 days from his receipt of
the Notice;
The Sanggunian will then commence the
investigation within 10 days from receipt
of respondents answer. (Section 62, LGC)

Abuse of Authority as a ground for

disciplinary action
ordinances or resolutions which are contrary to
law may be disciplined for abuse of authority.
(DILG Opinion No. 90-1994)

knowledgeable of existing laws. (OGCC Opinion
No. 093-1996 March 29, 1996)

Incurring excessive cash advances constitutes

abuse of authority and/ or dishonesty. (DILG
Opinion No. 60-1994)

Gross Negligence as a ground for

disciplinary action
Refusal of a mayor to honor and enforce
Sanggunian is gross negligence.(DILG
Opinion No. 181-1994)
Failure to attend council sessions due to
members drinking sprees amounts to
gross negligence. (DILG Opinion No.

Gross Negligence as a ground for

disciplinary action
The members of the sangguniang
panlalawigan may be disciplined if they
fail to act, on review, the ordinances
enacted by the sangguniang bayan.
(DILG Opinion No. 157-1994)
A vice mayor who refuses to sign
ordinances approved by a majority of the
sanggunian is guilty of gross negligence
or abuse of authority (DILG Opinion
dated 28 June 2011).

Absences as a ground for

disciplinary action.
Absence for more than 15 consecutive
days without the filing of a formal leave
of absence constitutes a ground for
disciplinary action.
Travel abroad without due notice to the
absence. (DILG Opinion No. 24-1993)

May the Sanggunian suspend a sanggunian

Secretary or other appointive official?

No. The power to discipline

appointive officials is lodged with
the Civil Service Commission only.
However, the local chief executive,
as head of agency, may impose
disciplinary sanctions on appointive
officials after due process. (DILG
Opinion No. 132-2003)

Preventive Suspension
This is not a penalty.
This may be imposed by the
subordinate official immediately
upon filing of the complaint even
before the answer is filed; (DILG
Opinion No. 132-2003)

Procedures for Preventive Suspension

This may be imposed by the mayor /

governor upon recommendation by
the Sanggunian;
Maximum of 60 days per case but
not exceeding 90 days suspension in
one year;
The suspended official is deemed
automatically reinstated after the
period of suspension (Section 63,

Preventive Suspension
The authority of the local chief executives
(Governor/Mayor) to impose preventive
suspension is purely ministerial since the
disciplinary authority over erring municipal
or barangay elective officials is the
Sangguniang Panlalawigan, Sangguniang
Panlungsod or Sangguniang Bayan, as the
case may be.
Hence, after the sanggunian shall have
determined the necessity to warrant the
imposition of preventive suspension, the
same only need to be implemented by the
local chief executive concerned. (DILG
Opinion No. 56-11, Sept. 2, 2011)

Salary During Preventive Suspension

An elected official preventively

suspended from office shall receive
no salary during such suspension;
But upon reinstatement, he shall be
paid full salary including all
emoluments accruing during such
suspension. (Section 64, LGC)

Penalty of Suspension
An elected official may be suspended by the
Sanggunian for a period of not more than six
(6) months;
This can only be imposed after due notice and
The investigation must be terminated within 90
days from the start of the proceedings.
The sanggunian must decide the case within 30
days after the case is submitted for decision.
(Section 66, LGC)

Can a local sanggunian remove an

elected official of the LGU?
NO. The Sangguniang Panlungsod or
Sangguniang Bayan cannot order the
removal of an erring elective barangay
official from office, as the courts are
exclusively vested with this power under
Section 60 of the Local Government Code.
MARTINEZ, G.R. No. 170626 March 3, 2008

Q: What is the Doctrine of Administrative

The rule that public official cannot be removed for
administrative misconduct committed during a
prior term, since his re-election to office operates
as a condonation of the officers previous
misconduct to the extent of cutting off the right to
remove him therefore.
Note that this has no application to pending
criminal cases. (Aguinaldo v. Santos, G.R. No.
94115, Aug. 21, 1992)

Q: When is subsequent re-election considered a

A: If the decision of the administrative disciplinary authority
penalizing the respondent local elective official had
become final and executory before the election, then the
principle of condonation for a misconduct during a prior
term will not apply.
On the other hand, if the said adverse decision against the
respondent was not yet final and executory on the day of
election as for instance there was a timely and pending
appeal on said date, then the principle of condonation will
apply. (Malinao v Reyes, GR 117618 Mar.29, 1996)
Note: Subsequent re-election cannot be deemed a
condonation if there was already a final determination of
his guilt before the re-election. (Reyes v. COMELEC, G.R.
No. 120905 March 7, 1996)

May the Sanggunian continue hearing a

case even after the respondent has been
re-elected to office?
No. An administrative case becomes
moot and academic as a result of the
expiration of term of office of an elective
barangay official during which the act
complained of was allegedly committed.
respondent are barred by his/ her reelection. (Malinao vs. Reyes G.R. No.
117618 March 29, 1996)

May the Sanggunian hear a case involving

acts committed in a prior term?

No. A public official cannot be

misconduct committed during a prior
term since his re-election to office
operates as a condonation or
misconduct. (Aguinaldo v. Santos) (DILG
Opinions Nos. 177-1992; 42, 107 - 1995)

May the Sanggunian hear a case when the

respondent already resigned?

No. A Sanggunian loses jurisdiction

over administrative proceedings
against a barangay official who has
already resigned since official
relations have been terminated by
such act. (DILG Opinion No. 323-1992)

Signature of the Mayor

The decision of the Sanggunian to suspend a
The mayor, however, will be the one to
implement the penalty of suspension;
The mayor cannot sit on the decision or refuse
to implement the suspension.
If he does, he can be charged with abuse of
authority or dereliction of duty. (DILG Opinion
No. 14-2002; Opinion No. 9-2004)

May the Mayor veto a decision of

the sanggunian?
The decision of the Sanggunian to
suspend a brgy. Official IS NOT A
The power to discipline brgy. officials is
an exercise of quasi-judicial power that is
exclusive to the sanggunian. (DILG Opinion
No. 19-2002; Opinion No. 9-2004)

Q. Is appeal available in administrative disciplinary cases?

A: It depends on the penalty imposed:
Appeal is available if the penalty is:
Demotion, Dismissal, or Suspension for more than 30 days or
fine equivalent to more than 30 day salary (P.D. 807, Sec.37
par [a]).

Appeal is not available if the penalty is:

Suspension for not more than 30 days
Fine not more than 30 day salary
Censure; Reprimand; or Admonition
Note: In the second case, the decision becomes final and
executory by express provision of law.

Motion for Reconsideration

A brgy. Official suspended by the
Sanggunian may file a motion for
reconsideration but this will not stay
the execution of the suspension.
The decision of the sanggunian in
executory even pending appeal. But the
reviewing authority may issue a stay
order pursuant to its review authority.
The decision of the sanggunian bayan
may be appealed to the sangguniang
panlalawigan. (Section 66, LGC)

Stay of Execution
The first sentence of Section 68 merely provides that
an "appeal shall not prevent a decision from becoming
final or executory."
As worded, there is room to construe said provision as
giving discretion to the reviewing officials to stay the
execution of the appealed decision.
There is nothing to infer therefrom that the reviewing
officials are deprived of the authority to order a stay of
the appealed order.
The execution of decisions pending appeal is
procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the
authority to order a stay of execution, such authority
can be provided in the rules and regulations governing
the appeals of elective officials in administrative cases.
Berces v. Guingona, G.R. No. 112099. February 21, 1995.

Will the filing of a Motion for Reconsideration or an
appeal stay the execution of a decision of the
Ombudsman in an administrative case?

Appeals from decisions of the
Ombudsman in administrative cases do not stay the
execution of the penalty imposed.
This is pursuant to Section 7, Rule III of the Rules of
Procedure of the Ombudsman which explicitly states that
an appeal shall not stop the decision from being
No vested right is violated because pending appeal the
appellant is considered as preventively suspended and
will be paid backwages in case he wins in his appeal.
(Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)