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Category: Regional Legal Opinions

Published: 16 April 2012

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22 March 2012

Hon. JOSE TOMAS C. MADRIA
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,

(sgd.)

FLORIDA M. DIJAN, DPA, CESO IV
Regional Director

       


    

 


 
 

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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

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Category: Regional Legal Opinions

Published: 16 April 2012

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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