22 March 2012
Hon. JOSE TOMAS C. MADRIA
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:
- Whether or not a Punong Barangay may create positions without the concurrence of an ordinance enacted by the Barangay Sanggunian;
- 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,
FLORIDA M. DIJAN, DPA, CESO IV