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Category: Regional Legal Opinions

Published: 15 May 2013

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25 February 2013

HON. RONALDO T. FLORES
Municipal Mayor
Doña Remedios Trinidad
Bulacan

Dear Mayor Flores,

This has reference to your letter seeking Department’s legal opinion a propos various issues involving some of the Sangguniang Bayan members of the Municipality of Doña Remedios Trinidad, Bulacan.

Regarding your first concern or the frequent failure to attend session of some members of the sanggunian resulting to lack of quorum to transact business (enact or pass legislative measures) particularly the approval of Annual Budget, your own Internal Rules of Procedure may directly address this situation.  You are of the opinion that said pattern of alternate absences is a political maneuver in order not to transact business in the sanggunian.  In this kind of situation, proper administrative charges may be filed for the absentee sanggunian member before the Office of the Ombudsman.  Further, a review of the existing IRP is needed in order to address this issue if still not treated therein.  Likewise, the Local Government Code lays a provision regarding the absences of the sanggunian members during sessions without justifiable cause/s.  As provided under the LGC, the absentee member may be disciplined for absences without justifiable cause for four (4) consecutive sessions.  Said sanggunian may be reprimanded censured or excluded from the session, suspended for a period of not more than sixty (60) days, or expelled with the concurrence of at least two-thirds (2/3) votes of all the sanggunian member.   But this is not the case, as you put it, the strategy of the sanggunian is an alternating absence of some members resulting to failure to muster quorum.  The remedy therefore is the filing of appropriate charges or negligence and/or misconduct if the pattern is obvious.

If resorting to filing of administrative charges is not your option, you may assert one of the express powers granted to local chief executive by the Code.  You may call for a meeting to discuss the pending matter considering that the enactment of Annual Budget is important for the promotion of the general welfare of the local government unit and your inhabitants.  It is allowed under Section 444 (b)(2)(ii) of the Local Government Code.  It is pursuant to the corporate powers provided under Section 22 of the same Code.

If said available remedies failed, then pursuant to the same Code, the previous budget shall be re-enacted until the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned.  If the sangguniang bayan still fails to enact the annual appropriation, they shall continue to hold sessions without additional remuneration for its members until such ordinance is approved and no other business may be taken up during the sessions.  Only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith.   

This opinion is without prejudice to any legal opinion that may be rendered by the DILG Central Office.

Hope this treats your concerns.

Very truly yours,

(sgd.)
FLORIDA M. DIJAN, DPA, CESO III
Regional Director

Copy Furnished:

Atty. Jesus B. Doque IV        Mr. Darwin D. David         Ms. Nicanora A. Geronimo    
Director, Legal Service        OIC-Provincial Director        LGOO V-DILG DRT
DILG Central Office                       DILG Bulacan                 DRT, Bulacan

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Category: Regional Legal Opinions

Published: 15 May 2013

Hits: 919

03 January 2013

Hon. REYNALDO S. WAJE
Sangguniang Bayan Member
Orion, Bataan

Dear SBM Waje,

This pertains to your letter seeking answers on questions stated therein.

Anent your first query on whether or not the Mayor can enter into a contract sans prior authority from the sangguniang bayan, we attached herewith Legal Opinion No. 09, s. 2006 dated 17 February 2006 treating a relevant issues such as the one presented to us.

Anent your second query, in order to address the same, we have to relate the answer based on your representation that the donated funds amounting to Php 600,000.00 which is equivalent to one (1) unit of school bus is booked under trust fund.  Trust Fund as defined under the LGC consists of private monies and public monies which have officially come into the possession of the local government or of local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation.  A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government unit.  In this regard, the donated funds intended for the purchase of school bus can never be utilized into some other purpose than the sole purpose to which it was intended by the donor.  Ergo, no need to appropriate the funds for the purchase of that vehicle as the fund is already saved for that specific purpose.

On the other hand, as also stated in the attached opinion, R.A. 9184 is the governing law.

That law made no mention that the Head of the Procuring Entity still needs to secure authorization from the sanggunian.  It is noteworthy that the fund is not a public fund and not appropriated by the sanggunian; thus, the first requisite is not met.  However, as represented, the donated fund was booked as trust fund, hence, cannot be spent to any other purpose than that intended by the donor.  Considering that the fund is a private donation and the purpose of which is for the purchase of school bus, we are of the belief that prior authorization from the sanggunian is no longer required.  It is significant to point, at this juncture, that the procedural guidelines laid by R.A. 9184 were observed.  The head of the procuring agency which is the mayor, needs no prior authorization from the sanggunian to enter into a contract with the winning bidder as it could not be the intent of the Congress to paralyze local government projects/contracts through circuitous or redundant process.  It must be noted that the authority of the Mayor was pursuant to an existing law i.e., R.A. 9184.

With regard to your fifth query, ratification is always an option for the sangguniang bayan in order to cure any defect of an unenforceable contract.  The exercise of the power and authority of the local chief executive is being regulated by the sangguniang bayan thru the issuance of an appropriate resolution granting the LCE to enter into any contracts; however, as discussed elsewhere above, such prior authorization is not a hard and fast rule.  As long as there is either a law or ordinance, the authorization is no longer required.  Further, the general welfare provision shall be liberally interpreted to give more powers to the LGUs in accelerating economic development and upgrading the quality of life for the people in the community.  Also, as you correctly opined, ratification of defective contracts is possible only when there is non-compliance with the second and fourth requirements stated in your letter.  It does not provide, however, that the absence of an appropriation ordinance ipso facto makes a contract entered into by a LGU null and void.  Public funds may be disbursed not only pursuant to an appropriation law, but also pursuant to other specific statutory authority.  (underlining ours for emphasis).

Foregoing considered it is with more reason that an authority is no longer necessary considering that the donated fund is a private one and specifically intended for the purchase of school bus.

We hope we have enlightened you on the matter.

Very truly yours,

(sgd.)                       
FLORIDA M. DIJAN, DPA, CESO IV
Regional Director

Copy Furnished:

Atty. Jesus B. Doque IV        Ms. Amada T. Dumagat
Director-Legal Service         OIC-Provincial Director
    DILG Central                             DILG Bataan

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Category: Regional Legal Opinions

Published: 16 April 2012

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13 March 2012

Hon. LEONARDO E. CRUZ
Municipal Vice-Mayor
DInalupihan, Bataan

Dear VM Cruz,

This pertains to your query contained in a letter dated 12 March 2012 and received by this Level on 13 March 2012.  Before your letter, this level is also in receipt of copies of the Sangguniang Panlalawigan Resolution No. 19 increasing the penalty imposed against PB Alfredo Santos, Jr., of Brgy. Luakan, Dinalupihan [from reprimand to six months and one (6 and 1) day punitive suspension] and Sangguniang Bayan Resolution No. 28-2012, ordering MLGOO Yvette R. Cosio to implement the same.

    Before dwelling on your query, allow us first to discuss some points in the above-mentioned Resolutions with a hope to somehow shed light on your queries.  However, this opinion is not in any way intended to rule on the validity of the aforesaid Resolutions.

    Per SP Resolution No. 119, the Sangguniang Bayan of Dinalupihan was found to have gravely erred in imposing the penalty of reprimand only taking into consideration the alleged gravity of the offense.  Thus, the penalty of suspension for a period of six (6) months and one (1) day without pay is substituted with the penalty of reprimand, as ordered by the Sangguniang Panlalawigan of Bataan.

    The Local Government Code lays the jurisdiction in Administrative Appeals, to wit:

“Section 67.  Administrative Appeals. – Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following:

(a)    The sangguniang panlalawigan, in the case of decision of the sangguniang panlungsod of component cities and the sangguniang bayan; xxx

Based on the foregoing provision, it is correct that the Sangguniang Panlalawigan assumed jurisdiction over the case.  The only question is whether or not it is proper for the complainant, being the aggrieved party to appeal in administrative case.  It has been the usual scenario that it is the respondent who appeals the case.  Be that as it may, the Sangguniang Panlalawigan already rendered its Decision via Resolution; thus, we defer to comment on the same because the propriety of every Resolution and Ordinance must properly be questioned before the regular court.  With regard to the imposition of the penalty of suspension, the Sangguniang Panlalawigan adopted the Opinion rendered by the Provincial Legal Officer, imposing the penalty of six (6) months and one (1) day against PB Santos. 

This is somehow objectionable if the provision of the Local Government Code would be followed, particularly, Section 66 (b) thereof, which reads:

“Section 66.  Form and Notice of Decision. – (a)xxx; (b)  The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, xxx.”

With all due respect to the Legal Opinion of the Provincial Legal Officer, the cases cited being used as the basis for imposing the penalty of six (6) months and one (1) day are cases involving appointive public officials and not elective officials.  The Legal Service of this level conducted a research on the cited cases so as to verify whether or not they are applicable to the instant case.  However, this level is not questioning the propriety of the penalty imposed by the Sangguniang Panlalawigan, for to do so, we would be interfering with the functions of the LGUs which are enjoying local autonomy.  The respondent can raise the issue before the regular court.

With regard to the Resolution of the Sangguniang Bayan ordering our field officer to implement the Resolution of the Sangguniang Panlalawigan, we are of the opinion that it is quite inappropriate.  Please be informed that the DILG has supervisory functions over LGUs and does not carry with it the power or authority to discipline elective officials.  It is the Local Chief Executive who instills discipline upon elective barangay officials.  Further, we are of the belief that our field officers act on matters according to the instructions of the Hon Secretary of the Interior and Local Government.  Thus, before our field officers act on such matters, we believe that it is but proper for the sanggunian concerned to accord respect to the Hon. SILG by requesting before the Hon. Secretary an authority to send our field officers to execute the Decision of the local sanggunian. 

Based on the foregoing premises, we regret to inform you that Ms. Yvette Cosio cannot implement the same without the imprimatur of the Hon. SILG.  As a sign of courtesy to the SILG, the Sangguniang Bayan should have sent a request to the Central Office thru channel, requesting our field officer to implement the said local sanggunian Decision.

With regard to your queries as to the interpretation of your IRP and the Resolution of the Sangguniang Panlalawigan together with the imposition of new penalty, we defer to comment on said matters as respective Resolutions to that effect have been passed and only a court action could interpret the same by filing a petition for Declaratory Relief under the Rules of Court.

Hope to have enlightened you.
                           
Very truly yours,


(sgd.)
FLORIDA M. DIJAN, DPA, CESO IV
Regional Director

Copy Furnished:
Ms. Amada T. Dumagat            Ms. Yvette R. Cosio
OIC-Provincial Director             MLGOO
Bataan                                  Dinalupihan, Bataan