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Republic of the Philippines

OFFICE OF THE OMBUDSMAN


Office of the Deputy Ombudsman for Mindanao
Cor. Earth & Libra Sts., GSIS Heights, Matina, Davao City

DAPITAN CITY
Represented by Rosalina Garcia Jalosjos
Complainant,
Docket No.: OMB-M-A-17-0594
-versus- For: Grave Misconduct; Gross
Neglect Of Duty
ROBERTO Y. UY
Provincial Governor
Office of the Provincial Governor
Capitol Bldg., Dipolog City
Zamboanga del Norte

LEVY H. LAGUTIN, JR.


Officer-in-Charge
Office of the Provincial Environment
Mangament Office,
Dipolog City, Zamboanga del Norte

ALFONSO S. GORRE JR.


Officer-in-Charge

MARVIN D. PANGILINAN
Area Engineer

DRIVER OF ISUZU DUMP TRUCK


WITH MARKING DT-PG-1606
DRIVER OF ISUZU DUMP TRUCK
WITH MARKING DT-PG-1609
DRIVER OF ISUZU DUMP TRUCK
WITH MARKING DT-PG-1611
DRIVER OF ISUZU DUMP TRUCK
WITH MARKING DT-PG-1613
DRIVER OF GREEN MITSUBISHI DUMP
TRUCK WITH MARKING DT-PG-0330
OPERATOR OF PAY LOADER
WITH MARKING FL-PG-1602
OPERATOR OF PAY LOADER
WITH AMRKING FL-PG-1605
Respondents.
x------------------------------------------------x

VERIFIED POSITION PAPER


RESPONDENT ROBERTO Y. UY, by counsel, and unto the
Office of the Ombudsman for Mindanao, most respectfully submits his
verified position paper in the above-entitled cases, and states–

THE PARTIES
The complainant DAPITAN CITY (hereinafter referred to as
”complainant" for brevity), is a local government unit represented by
City Mayor Rosalina G. Jalosjos;

Respondent ROBERTO Y. UY (hereinafter referred to as


“respondent Uy” for brevity), is of legal age, Filipino, married, and a
resident of Central Barangay, Dipolog City;

STATEMENT OF FACTS

1. That respondent is the incumbent Provincial


Governor/local chief executive of the Province of Zamboanga del
Norte, charged as one of the respondents in the above-captioned
criminal and administrative cases filed by the City of Dapitan
represented by its Mayor, Rosalina Garcia Jalosjos;

2. That respondent received on February 9, 2018 a Joint Order


from the Honorable Office of the Ombudsman for Mindanao requiring
him and co-respondent Levy H. Lagutin, Jr. to file Counter-Affidavits
on the above-captioned cases. A copy of the Complaint-Affidavit was
attached to the Joint Order. On February 19, 2018, respondents filed a
Joint Motion for Extension of Time of ten (10) days to file Counter-
Affidavits or until March 01, 2018;
3. That as required respondents were able to submit their
Counter-Affidavits before this Honorable Office on March 01, 2018;

4. That on March 8, 2018, respondents received another Joint


Order from Hon. Marco Anacleto P. Buena, Officer-in-Charge,
Evaluation and Investigation Bureau-B, of the Office of the Deputy
Ombudsman for Mindanao, dated 21 February 2018 again requiring
them to file Counter-Affidavits on the above-captioned cases within
ten (10) days from receipt thereof. Attached to the Joint Order are
copies of the above-captioned Complaint-Affidavit and a
Supplemental Complaint-Affidavit filed by herein complainant. This
time, complainant impleaded other respondents in their Supplemental
Complaint-Affidavit namely: Engr. Alfonso S. Gorre Jr., Engr. Marvin
D. Pamgilinan, Driver of Isuzu Dump Truck with Marking DT-PG-
1606, Driver of Isuzu Dump truck with Marking DT-PG-1609, Driver
of Isuzu Dump Truck with Marking DT-PG-1611, Driver of Isuzu
Dump Truck with Marking DT-PG-1613, Driver of Green
Mitsubishi Dump Truck with Marking DT-PG-0330, Operator of
Pay Loader with marking FL-PG-1602, and Operator of Pay Loader
with Marking FL-PG-1605;

5. That as required, respondents were able to file their Joint


Counter-Affidavit on March 19, 2018;

6. That on March 20, 2018, respondents received another Joint


Order dated March 7, 2018 requiring them to file their respective
Position Papers within ten (10) days from receipt thereof. The tenth
(10th) day, however, falls on a national holiday. Thus, the filing of this
Position Paper on the next working day, Monday, or on April 2, 2018;

(A copy of the above-mentioned Joint Order dated March 7, 2018 is


hereto attached as Annex "A")

7. That complainant filed similar cases involving the same set


of facts and circumstances with the same issues before this Honorable
Office docketed as OMB-M-A-17-0245 for Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service and OMB- M-C-
17-0225 for Violation of Section 3 (e) R.A. No. 3019 both against
respondents Alfonso Silvano Gorre, Jr. and Marvin Dagpin
Pangilinan;
7.1 That OMB-M-A-17-0245 has already been resolved by
this Honorable Office through its Decision dated September 15,
2017 which reprimanded respondents Gorre, Jr. and Pangilinan
(Annex B of the Complaint-Affidavit);

7.2 That OMB-M-C-17-0225 was dismissed by this


Honorable Office through its Decision dated September 15, 2017
(Annex C of the Complaint-Affidavit);

ISSUES
8. Respondent presents the main issues to be resolved before
this Honorable Office of the Ombudsman, i.e.:

I.

Whether or not respondent Uy may be held liable for Grave


Misconduct and Gross Neglect of Duty;

II.

Whether or not the filing of the above-cited complaint is barred by


by the principle of res judicata;

III.
Whether or not complainant committed forum-shopping by filing
the present charges against respondents;

ARGUMENTS/DISCUSSION

I. Respondent Uy may NOT be


held liable for Grave Misconduct
and Gross Neglect of Duty;

9. "Misconduct has a legal and uniform definition. Misconduct has


been defined as an intentional wrongdoing or a deliberate violation of a rule
of law or standard of behavior, especially by a government official.1 A
misconduct is grave where the elements of corruption, clear intent to violate
the law or flagrant disregard of established rule are present.2

1
Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA 210, 233.
2
Id. at 233-234.
Flagrant disregard of rules is a ground that jurisprudence has already
touched upon. It has been demonstrated, among others, in the instances when
there had been open defiance of a customary rule;3 in the repeated voluntary
disregard of established rules in the procurement of supplies;4 in the practice
of illegally collecting fees more than what is prescribed for delayed registration
of marriages;5 when several violations or disregard of regulations governing
the collection of government funds were committed;6 and when the employee
arrogated unto herself responsibilities that were clearly beyond her given
duties.7 The common denominator in these cases was the employees
propensity to ignore the rules as clearly manifested by his or her
actions."8

On the other hand, gross neglect of duty or gross negligence


refers to negligence characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently
but willfully and intentionally, with a conscious indifference to consequences
insofar as other persons may be affected.9 It is the omission of that care which
even inattentive and thoughtless persons never fail to take on their own
property.10 In cases involving public officials, there is gross negligence when
a breach of duty is flagrant and palpable.11

Evidently, the complainant failed to present substantial evidence


to support the elements of corruption, clear intent to violate the law or
flagrant disregard of established rule that must be present to
characterize the misconduct as grave. Likewise, the imputation of
Gross Neglect of Duty was not supported with any substantive proof;

10. That as admitted by complainant, the City Government of


Dapitan thru its City Administrator Wilberth G. Magallanes, City
ENRO George T. Olario, Jr., Members of the SP and members of the
Dapitan City Police Station ordered the stoppage of the quarry
activities on November 15, 2016. Complainant, however, failed to
establish under what authority the above-mentioned personalities

3
Narvasa v. Sanchez, Jr., G.R. No. 169449, March 26, 2010, 616 SCRA 586, 592.
4
Roque v. Court of Appeals, G.R. No. 179245, July 23, 2008, 559 SCRA 660, 674.
5
Bulalat v. Adil, A.M. No. SCC-05-10-P, October 19, 2007, 537 SCRA 44, 49.
6
Valera v. Office of the Ombudsman, G.R. No. 167278, February 27, 2008, 547 SCRA 42, 64.
7
Re: Letter of Judge Lorenza Bordios Paculdo, MTC, Branch 1, San Pedro, Laguna, A.M. No. P-07-2346,
February 18, 2008, 546 SCRA 13, 21.
8
Monico K. Imperial, Jr. vs. GSIS, G.R. No. 191224, October 4, 2011.
9
Brucal v. Desierto, G.R. No. 152188, 8 July 2005, 463 SCRA 151, 166.
10
Id.
11
Id.
acted when they prevented the personnel of the Provincial
Engineering Office from carrying on with their tasks;

11. Be it noted that the above-named personalities did not


possess the necessary Deputation Order which must be issued by the
Department of Environment and Natural Resources (DENR) as
provided under DENR Administrative Order No. 2008-22 (Annex
"A"). This fact is bolstered by the Office Report of Mr. George T. Olario
dated November 17, 2016 which made recommendations to Hon.
Rosalina G. Jalosjos, City Mayor fo Dapitan, and Mr. Wilberth G.
Magallanes, City Administrator, in this manner:

xxx

RECOMMENDATION:

xxx

"2. The LGU-Dapitan City, through this Office will request the
Mines and Geosciences Bureau, Regional Office IX, to DEPUTIZE
City ENRO personnel and certain Barangay Officials in relation to
quarry operations so this office can legally enforce pertinent laws
on mineral and sand and gravel operations." (emphasis and
underscoring supplied)

12. That even Mr. Alfredo T. Relampagos, the OIC- Regional


Director of the Mines and Geosciences Bureau, in his letter addressed
to Mr. Olario, Jr. dated September 5, 2016 stated that: "As regards your
query, your authority to supervise and monitor all quarrying activities
within your jurisdiction is legal as per Memorandum Order from your
City Mayor. However, the scope of your authority is limited only to
supervision, monitoring and assistance in enforcement of
environmental laws provided there is proper coordination with
concerned agencies that are authorized and deputized to enforce the
same within your jurisdiction." (emphasis and underscoring supplied)

13. That the preliminary investigation on the alleged


extraction of sand and gravel located at the Piňan River of Barangay
Aseniero conducted by the Provincial Environment and Natural
Resources Office, a Memorandum concerning the said investigation
having been attached as Annex L of the Supplemental Complaint-
Affidavit, was made without giving any notice to respondent Uy or
other parties who are directly concerned with the activities sought to
be investigated and verified;

13.1 That “Illegal Quarry” is a very serious accusation which


if proven might result in the loss of a man’s prized liberty. As
such, the requirements of due process must be strictly observed.
However, as stated, no formal notice was given in order for
respondent to formulate his answer to the investigation;

13.2 That in item no. 12 of the Complaint-Affidavit, it was


stated that respondent was allegedly furnished a copy of the
report of the Investigation and Validation made by the MGB. If
indeed such report was furnished, the same already contained the
conclusion of the investigation without having afforded him an
opportunity to comment. Thus, any result thereof is patently one
sided;

14. That further, the report failed to attach any sworn


affidavits of supposed residents who complained of the damage
caused to the river. Such being the case, any allegations of such nature
contained in the subject Memorandum are pure hearsay and bereft of
any evidentiary value;

15. That respondent Levy H. Lagutin, Jr. denied the veracity


of the report embodied in item number 2, page 3 of Annex F of the
Supplemental Complaint-Affidavit which provides in part:

"2. Subsequently, the undersigned proceeded to the


Provincial Environment and Management Office (PEMO-
Zamboanga del Norte). xxx Mr. Lagutin also added that per
his knowledge and available records, there were no
Gratuitous Permits ever since granted by the Office of the
Governor/Provincial Mining Regulatory Board (PMRB) to
the Provincial Engineering Office (PEO) in the implementation
of government funded infrastructure project in the
province."

In fact, he executed an Affidavit controverting the above-quoted


statement attached as Annex 2 of his Counter-Affidavit dated March
1, 2018 earlier submitted to this Honorable Office;
16. That Annexes M-M41 of the Supplemental Complaint-
Affidavit failed to show with certainty where the photographs were
taken. Complainant merely averred that said photographs were of
various equipment owned by the Provincial Government of
Zamboanga del Norte allegedly extracting sand and gravel at the
Piňan River of Barangay Aseniero, Dapitan City without any permit;

17. That the accusation of complainant of double standard,


bias and partiality in item number 19 of the Supplemental Complaint-
Affidavit is unfair and misleading. First, because the circumstances
surrounding the seizure of the dump truck owned by the Municipality
of Piňan for quarrying without pemit is different from that of the
present controversy. The local chief executive of the Municipality of
Piňan is not lodged with the authority to issue government gratuitous
permits. Such authority is lodged exclusively with the Provincial
Governor. Thus, the belief that the issuance of a gratuitous permit by
the Provincial Governor in favour of the Provincial Government which
he himself represents is a superfluity. Where then is the conflicting
stand, double standard, bias, and partiality painted by complainant?
At any rate, the subject case was already dismissed by the Municipal
Trial Court of Piňan;

18. That complainant presented the Journal of the Committee


Hearing by the Committee Hearing of the Whole of SP Dapitan City
dated October 11, 2016 as proof that there were complaints from the
residents of Barangay Aseniero against the conduct of quarry by the
Provincial Engineering Office (PEO). The subject residents were
supposedly represented by Hon. Paradiang and Hon. Dawat of the
Sangguniang Bayan of Barangay Aseniero. However, it is relevant that
the said Sangguniang Bayan as a whole issued its Resolution No. 028
series of 2017 dated September 22, 2017 entitled “A RESOLUTION
ATTESTING THAT THE EXTRACTION OF SAND AND GRAVEL
AT PINAN RIVER, BARANGAY ASENIERO, DAPITAN CITY BY
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
NORTE THROUGH THE PROVINCIAL ENGINEERING OFFICE
(PEO) CAUSED NO DESTRUCTION TO SAID RIVER” which
belied the allegation that damage was caused to the subject river. In
said resolution, the Sanggunian members, including Hon. Dawat and
Paradiang, even declared their support for the Provincial Government
of Zamboanga del Norte in the concreting of a five (5) kilometer
provincial road. (Annex “A” of the Counter-Affidavit of respondent
Uy filed on March 01, 2018)

18.1 That attention must also be brought to the fact that the
subject Resolution was passed with the attendance of Joselito C.
Paradiang, and concurred by Ronilo Bulay-og Dawat, Meredion
Baid Sapalleda, Fe Chona Zason, Gemma Eguia Anghog, Genelyn
Jaralve Sasuman, and Genavie Del Rio Laab, all Sangguniang
Bayan members, who incidentally happens to be the supposed
witnesses of the complainant. In fact, attached to the Complaint
are their Affidavits marked as Annex "K", Annex “K-1”, and
Annex “K-2”, respectively, wherein they pronounced that
damage and injury was caused because of the illegal quarry of
aggregates by the Provincial Government and/or Provincial
Engineering Office. Their completely contradicting stand on this
matter unavoidably casts doubt as to their credibility and incites
suspicion as to their true motives and intentions along with the
complainant in filing the present charges against respondent;

19. That taking all of the above matters into consideration,


herein respondent cannot be held liable for grave misconduct or gross
neglect of duty. Furthermore, complainant failed to support the
charges with any substantial evidence;

II. The present complaints filed


by Dapitan City is barred by res
judicata;

20. That the filing of the instant criminal and administrative


complaint is barred by the prior judgment rendered by this Honorable
Office in OMB-M-A-17-0245 and OMB-M-C-17-0225 involving the
same facts, issues, charges, and reliefs prayed for by complainant as
that of the present complaint;

20.1 In Judge Abelita III v. P/Supt. Doria, et al., the Court


explained the two aspects of res judicata, thus:

There is "bar by prior judgment" when, as between the first case


where the judgment was rendered and the second case that is
sought to be barred, there is identity of parties, subject matter,
and causes of action. xxx Otherwise put, the judgment or decree
of the court of competent jurisdiction on the merits concludes
the litigation between the parties, as well as their privies, and
constitutes a bar to a new action or suit involving the same cause
of action before the same or other tribunal.

xxx

For res judicata under the first concept, bar by prior judgment, to
apply, the following requisites must concur, viz: (a) finality of the
former judgment; (b) the court which rendered it had jurisdiction
over the subject matter and the parties; (c) it must be a judgment
on the merits; and (d) there must be, between the first and second
actions, identity of parties, subject matter and causes of action.12
(underscoring supplied)

20.2 That the manifestation of the first and second element in


the present case cannot be disputed. The third element is likewise
extant for it has been held that: "For as long as the parties had full
legal opportunity to be heard on their respective claims and
contentions, the judgment is on the merits.13 Additionally, the
fourth element is prevailing. "The principle of res judicata may
not be evaded by the mere expedient of including an additional
party to the first and second action. Only substantial identity is
necessary to warrant the application of res judicata. The addition
or elimination of some parties does not alter the situation. There
is substantial identity of parties when there is a community of
interest between a party in the first case and a party in the
second case albeit the latter was not impleaded in the first case.14
Absolute identity of parties is not a condition sine qua non for res
judicata to apply; substantial identity of parties would suffice.
Privity or a shared identity of interest between a party in the
first case and the party in the second case, as here, is sufficient
to invoke the coverage of the principle.15
(emphasis supplied)

20.3 That the first complaint filed against herein respondents


Gorre and Pangilinan docketed as OMB-M-A-17-0245 and OMB-

12
Spouses Mario Ocampo and Carmelita F. Ocampo vs. Heirs of Bernardino U. Dionisio represented by
Artemio SJ. Dionisio, G.R. No. 191101 dated October 1, 2014.
13
Mendiola v. CA, 327 Phil. 1164,1165 (1996).
14
G.R. No. 122202, May 26, 2005, 459 SCRA 27, 38-39.
15
Lanuza v. Court of Appeals, G.R. No. 131394, March 28, 2005, 454 SCRA 54.
M-C-17-0225 has the same subject matter and cause of action as
the present complaint, that is, the alleged illegal quarrying of sand
and gravel supposedly committed by the Provincial Engineering
Office with the knowledge of the OIC-Provincial Environment
and Management Office, Mr. Levy H. Lagutin, Jr. and the
Provincial Governor, Roberto Y. Uy. In fact, the allegations
contained in the present complaint are basically a mere rehash of
those submitted by complainant in the previous case;

21. That decisions rendered by the Office of the Ombudsman


are covered by the doctrine of res judicata. In fact, no less that the
Supreme Court declared that, "The suggestion that decisions or orders of
the Ombudsman and other quasi-judicial bodies cannot attain the force of res
judicata is simply specious. For, as jurisprudence teaches, public policy
demands that, even at the risk of occasional errors, judgments of courts as well
as administrative decisions should become final at some definite time fixed by
law and that parties should not be permitted to litigate the same issues over
again.16 This is the raison detre upon which the doctrine of res judicata rests.
The rule of non quieta movere prescribes that what was already terminated
should not be disturbed or altered at every step. And as we articulated in
Macailing v. Andrada,17 citing a host of cases, the rule which forbids the
reopening of a matter once judicially determined by competent authority
applies as well to the judicial and quasi-judicial acts of public, executive, or
administrative officers and boards acting within their jurisdiction.

22. That the Highest Tribunal emphatically pronounced,


"xxx. We will not breathe life to issues which have been properly
resolved in accordance with law. Otherwise, the Pandoras Box
that the doctrine of res judicata seeks to contain will be opened.
The evils that the doctrine seeks to prevent would be set loose to
wreak havoc on the orderliness and efficiency of our justice
system."18

III. Complainant committed


forum-shopping by filing the

16
DIino A. Crucillo vs. Office of the Ombudsman and the Presidential Commission on Good Government,
G.R. No. 159876 , June 26, 2007, Jose R. Tengco, Jr. vs. Hon. Simeon V. Marcelo in his capacity as the
Ombudsman and the Presidential Commission on Good Government G.R. No. 159877, June 26, 2007.
17
G.R. No. L-21607, January 30, 1970, 31 SCRA 126, citing cases.
18
Heirs of Igmedio Maglaque and Sabina Payawal et. Al. vs. Hon. Court of Appeals, Planters Development
Bank and Angel Beltran and Estate of Erlinda C. Beltran, G.R. No. 163360, June 8, 2007.
present charges against
respondents;

23. That with all due respect complainants engaged in


forum-shopping when they filed the present case against
respondents substantially rehashing their allegations in the
previous complaint filed against respondents Gorre, Jr. and
Pangilinan, the issues involved therein having been resolved and
delved upon by the Office of the Ombudsman;

23.1 That having been dissatisfied with the outcome of the


previous complaints, complainant now seeks to obtain a different
conclusion by filing another administrative and criminal case
under the guise of adding new respondents;

23.2 Citing an earlier case, the Supreme Court reiterated the


three ways forum shopping may be committed: 1) through litis
pendentia— filing multiple cases based on the same cause of
action and with the same prayer, the previous case not having
been resolved yet; 2) through res judicata— filing multiple cases
based on the same cause of action and the same prayer, the
previous case having been finally resolved; and 3) splitting of
causes of action— filing multiple cases based on the same cause
of action but with different prayers — the ground to dismiss being
either litis pendentia or res judicata; 19 (emphasis supplied)

23.3 Thus, the complainant committed forum-shopping


when the second complaint was filed before this Honorable
Office, albeit with additional respondents, but substantially
raising the same issues, arising out of the same facts, and seeking
the same relief;
PRAYER

WHEREFORE, foregoing premises considered, it is most


respectfully prayed of the Office of the Deputy Ombudsman for
Mindanao, Office of the Ombudsman, that the instant cases be
DISMISSED for utter lack of merit.

19
Spouses Silvestre O. Plaza and Elena Y. Plaza vs. Guillermo Lustiva et al.; G.R. No. 1172909; March
5, 2014
Respondent Uy prays for such other reliefs and remedies just
and equitable under the premises.

Dipolog City (for Davao City), Philippines, April 2, 2018.

PROVINCIAL LEGAL OFFICE


Province of Zamboanga del Norte
ZN Convention & Exhibition Center
Dipolog City
Counsel for Respondents
Tel. No. : (065) 212-2597

By:

RAFAEL R. OSABEL, JR.


Assistant Provincial Legal Officer
IBP Lifetime Member No. 03861
PTR No. 5487225, 1/3/17, Zamboanga del Norte
Roll of Attorney’s No. 46678
MCLE Compliance No. IV-0000485, 8/26/16

CAROLINE SOCORRE L. RUIZ-BACHO


OIC-Provincial Legal Officer
IBP NO. 1072233
PTR No. 6122006, 01/26/18, Zamboanga del Norte
Roll of Attorney’s No. 64078
MCLE Compliance No. V – 0023725, valid until April 14, 2019

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