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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
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21 February 2012
HON. RODELIO MAMAC, SR.
Punong Barangay
Barangay Balibago
Angeles City
Dear PB Mamac,
This pertains to your letter seeking our legal opinion on the following issues:
- Whether or not is within the power of a city council, in the exercise of its legislative power, to adopt a local ordinance regulating the imposition of fees imposed by a Barangay Council?
- May we also be enlightened to the proper interpretation of Section 66 of RA 7160, “Form and Notice of Decision”, whether or not the “decision”so contemplated by the said provision is in the form of a document entitled a “decision” or can perhaps be substituted to a “resolution” and whether or not said decision requires an affirmative signature of the majority of the members concurring or a mere approval of the Presiding Officer attested by the secretary of the city council.
Anent the first issue, an examination of Section 57 of the Local Government Code is indispensable, which reads:
“Sec. 57. Review of Barangay Ordinance by the Sangguniang Panlungsod or Sangguniang Bayan – (a) Within ten (10) days after its enactment, the Sangguniang Barangay shall furnish copies of all barangay ordinances to the Sangguniang Panlungsod or Sangguniang Bayan concerned for review as to whether the ordinance is consistent with law and city or municipal ordinance.”
It can be gleaned from the foregoing provision that is does not expressly vest upon the Sangguniang Panlungsod or Sangguniang Bayan authority to adopt a local ordinance regulating the imposition of fees imposed by Barangay Council; the limitations are already stated in the Local Government Code itself.
Thus, the reviewing function of the sangguniang concerned does not carry with it the authority to adopt ordinance or resolution forwarded before it. Neither is the reviewing sanggunian given authority to replace the content of the said Ordinance.
In Legal Opinion No. 182, series of 1994 and DILG Opinion No.64, series of 1995, this Department opined that barangay ordinances are subject to review by the city or municipal councils and not the other way around. To say otherwise would defeat the supervisory authority of municipalities and cities over its component barangays.
The supervisory authority of the higher sanggunian does not carry with it the authority to control lower sanggunian. Thus, we rule in the negative.
Along this line, Section 17 of the LGC provides for the devolved functions of basic services a barangay should deliver. Important to note is the last paragraph of Section 17 which empowers LGUs to raise revenue by imposing reasonable fee to cover cost of the delivery of basic services or facilities enumerated therein. In DILG Opinion 26, series of 2012, if services are being rendered by a barangay, then it can impose reasonable fees pursuant to Sec. 153 of the LGC.
In your second query, we defer to render opinion on that matter considering that same issue was included in your Memorandum of Appeal already filed before the Office of the President. Rendering an opinion regarding that matter would be violative of the sub judice rule.
This is without prejudice to any other opinion of higher authorities.
We hope that we have properly addressed your concerns.
Very truly yours,
(sgd.)
FLORIDA M. DIJAN, DPA, CESO IV
Regional Director
Copy Furnished:
Ms. Myrvi M. Apostol-Fabia
City Director
DILG Angeles City
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01 March 2012
Hon. Melanio R. Pronto
Hon. Wilson P. Pamintuan
Sangguniang Barangay Members
Brgy. Sta. Lucia, Magalang, Pampanga
Dear Messrs. Pronto & Pamintuan,
This has reference to your letter requesting our legal action on matters raised therein.
The first issue may well be treated by rendering legal opinion on the issue of the legality of appointment of a brother-in-law of the Punong Barangay as your Barangay Secretary.
As clearly mandated by the Local Government Code of 1991, such appointment is prohibited. Hence, the appointment is void ab initio. However, before an appointment must be issued by the Punong Barangay, the concurrence of the Sangguniang Barangay Members must be obtained first. The purpose of obtaining the concurrence of the August Body is to determine whether or not the recommended person is qualified. This is the sole function of the Sangguniang Barangay in the appointing process.
Be that as it may, whether such appointment garnered the concurrence of your August Body, is of no moment considering that the appointment is prohibited by law and as such is void. The person who appointed and even those who might have concurred to such appointment may be criminally charged for Unlawful Appointment punishable under Art. 244 of the Revised Penal Code and is even susceptible to administrative liability.
With regard to the other request, we deem it proper to refer the same to our Provincial Director and MLGOO to investigate on that concern.
We hope to have enlightened you on this matter.
Very truly yours,
(sgd.)
FLORIDA M. DIJAN, DPA, CESO IV
Regional Director
Copy Furnished:
ATTY. JESUS B. DOQUE, IV PD ANGELINA S. BLANCO
Director-Legal Service (DILG Central) Provincial Director-DILG Pampanga
MLGOO Marites C. Miranda Hon. Ferdinand O. Sotto
DILG Magalang, Pampanga Punong Barangay-Sta. Lucia
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30 January 2012
Hon. LEONORA C. WONG
Municipal Mayor
San Simon, Pampanga
Dear Mayor Wong,
This has reference to your letter seeking our opinion regarding the merit of your deeds in collecting fees from Haulers and Truckers which are actually doing business in the jurisdiction of your Municipality and not merely passing through your roads/streets. Said suspension was brought about by the ruling of Regional Trial Court Branch 54, Macabebe, Pampanga, by declaring some portions of the Revenue Code of your municipality as invalid, in Civil Case No. 10-157 (M), particularly Sections 3U.01 and 3U02 of the 2008 Revised Revenue Code of San Simon, Pampanga.
Basic and elementary is the rule that the Judicial Branch has the sole authority to interpret laws, ordinances and resolutions and to rule whether the same is Constitutional or not. Administrative agencies are ought to respect the decisions of the courts. However, said Decision may still be questioned by filing a Motion for Reconsideration and/or Appeal within the reglementary period provided by the Rules of Court. Since the Regional Trial Court already rendered a Decision unto the said issue, this level can no longer render an opinion as to the validity of the said Ordinance. Moreso, if a Motion for Reconsideration has been filed, this level cannot render an opinion to that matter as it would be violative of the sub judice principle.
Be that as it may, you are not left without recourse. The Local Government Code expressly provides guidance as to what taxes, fees and/or charges may be levied by the municipality, as follows:
- Taxes, fees, and charges not otherwise levied by provinces (Sec. 142, LGC);
- Fees and charges on business and occupation and practice of profession or calling (Sec. 147, ibid.);
- Fees for sealing and licensing of weights and measures. (Sec. 148, Ibid.); and
- Fishery rentals, fees and charges. (Sec. 149, Ibid.)
The municipality may also impose taxes on the following businesses as laid under Sec. 143 of the same Code:
- On manufacturers, assemblers, repackers, processors, brewers, distillers, rectifiers, and compounders or liquors, distilled spirits, and wines or manufacturers of any article of commerce of whatever kind or nature, in accordance with the prescribed schedule;
- On wholesalers, distributors, or dealers in any article of commerce of whatever kind or nature in accordance with the prescribes schedule; xxx
- On any business, not otherwise specified in the preceding paragraphs, which the sanggunian concerned may deem proper to tax; on any business subject to the Internal Revenue Code, as amended, the rate shall not exceed 2% of gross sales or receipts of the preceding calendar year.
However, Sec. 150 of the same Code, which deals with the “situs of the tax”, must be observed.
Foregoing considered, your local sanggunian may still levy taxes, fees and charges which are expressly allowed by the Code.
Allow us to emphasize that we defer to render an opinion concerning your deed in imposing tax because the Regional Trial Court has rendered a Decision on that matter. Let us also be clear in stating that this recommendation has nothing to do with the on-going case filed before the regular court.
Please be informed that this level requested the Legal Service of the Central Office for their comments and recommendations.
We hope that we have properly addressed your concerns.
Very truly yours,
(sgd.)
FLORIDA M. DIJAN, DPA, CESO IV
Regional Director
Copy Furnished:
ATTY. JESUS B. DOQUE, IV PD ANGELINA S. BLANCO
Director-Legal Service (DILG Central) Provincial Director-DILG Pampanga
