25 February 2013

Municipal Mayor
Doña Remedios Trinidad

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,

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

03 January 2013

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,

Regional Director

Copy Furnished:

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




22 March 2012

Punong Barangay
Gordon Heights
Olongapo City

Dear PB Madria,

This has reference to your letter seeking legal opinion concerning the four administrative positions you created.

We will address all the issues raised in one discussion as they are interrelated.  The answer on one issue will definitely give clarification as to the legality of the other issues. The issues you have raised are summed up as follows:

  1. Whether or not a Punong Barangay may create positions without the concurrence of an ordinance enacted by the Barangay Sanggunian;
  2. Whether or not the created positions by the Punong Barangay may be abolished lawfully by the actions of the Sanggunian Barangay.

With regard to the first issue, this level would like to point out the powers, duties and functions of a Punong Barangay as expressly pronounced by the Local Government Code specifically section 389. The Punong Barangay as the Local Chief Executive in the Barangay Level has the power and duty to enforce all laws and ordinances which are applicable within the barangay and to promote the general welfare of the barangay. The sangguniang barangay, on the other hand, is the legislative body of the barangay with the Punong Barangay as its presiding officer. As its presiding officer, the Punong Barangay cannot vote on any legislative question except only for the purpose of breaking a tie.  The action of the majority of all the members binds the punong barangay. All that remains for him to do is sign and implement the ordinances. The same rule applies to barangay resolution. (Legal Dessection, DILG, Region XI, Third Edition, p31. Neither can he veto barangay ordinances; the LGC does not confer to him such power.  As such, the Punong Barangay is not empowered to create positions without having conflict with the powers of the sanggunian. The power to legislate in the barangay level is expressly bestowed with the sanggunian. Hence, the creation of a new office is within the powers of the barangay, provided, that the sanggunian barangay must first pass the appropriate ordinance creating such office before the item is therefore incorporated in the annual budget. Therefore, with the above premises considered, a Punong Barangay may not create positions without the concurrence of an ordinance enacted by the Barangay Sanggunian.

Anent the second issue, we opine in the affirmative. The creation of a new position, as already discussed above, is within the authority of the Barangay Sanggunian with the passing of an ordinance sanctioning the same. It is not within the express powers of the Punong Barangay to create a new position in the said Local Government Unit. The creation of such positions without the concurrence of an ordinance by the sanggunian is contrary to the proper interpretation of the law

For SK Chairperson to be removed, a proper complaint must be filed before the Office of the President of the SK Federation of the place where the respondent is.  With respect to the prayer for SK Dianne’s removal, it is clearly stated in 2001 Sangguniang Kabataan Constitution and By-Laws that you are authorized to do so but as member of your federation only and provided, reasonable ground exists.  Let us remind you that, in administrative cases, only substantial evidence is required.  However, the removal from public office of an elective official must be by proper court order .

In exercising your quasi-judicial power, please be reminded that you have to act as a collegial body to determine whether probable cause exists based on evidence presented.  Your Federation’s SK CBL or the SK 2001 SK CBL will answer whether or not the penalty of removal (from the federation only) is appropriate.  The legality therefore, of your act will be guided by existing CBL.

We hope that we have properly addressed your concerns.

Very truly yours,


Regional Director





13 March 2012

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,

Regional Director

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

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,

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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