EN BANC

 

LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Mayor, HON. JEFFREY P. FERRER,* and the SANGGUNIANG PANLUNGSOD OF LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Vice-Mayor, HON. DEMIE JOHN C. HONRADO,**

Petitioners,

 

 

 

 

 

 

 

- versus -

 

 

 

 

ATTY. REX G. ROJO,

Respondent.

G.R. No. 181367

 

Present:

 

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

 

 

 

Promulgated:

April 24, 2012

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D E C I S I O N

 

 

CARPIO, J.:

 

This petition for review assails the 14 September 2007 Decision1 and the 18 January 2008 Resolution2 of the Court of Appeals in CA-G.R. CEB-SP No. 01377. The Court of Appeals affirmed Resolution Nos. 0506543 and 0516464 of the Civil Service Commission, which affirmed the Decision dated 20 September 2004 of the Civil Service Commission Regional Office (CSCRO) No. VI, Iloilo City, approving the appointment of respondent Atty. Rex G. Rojo (respondent) as Sangguniang Panlungsod Secretary under a permanent status.

 

The Facts

 

The facts as found by the Court of Appeals are as follows:

 

On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros Occidental appointed Atty. Rex G. Rojo (or Rojo) who had just tendered his resignation as member of the Sangguniang Panlungsod the day preceding such appointment, as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The next day, March 19, 2004, the Vice-Mayor submitted Rojo’s appointment papers to the Civil Service Commission Negros Occidental Field Office (CSCFO-Negros Occidental) for attestation. In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to inform him of the infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel Selection Board and the Human Resource Management Officer did not sign the certifications, the latter relative to the completeness of the documents as well as to the publication requirement. In view of the failure of the appointing authority to comply with the directive, the said CSCFO considered the appointment of Rojo permanently recalled or withdrawn, in a subsequent Letter to Jalandoon dated April 14, 2004.

 

Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter to the CSC Regional Office No. 6 in Iloilo City, by way of an appeal. He averred that the Human Resource Management Officer of La Carlota City refused to affix his signature on Rojo’s appointment documents but nonetheless transmitted them to the CSCFO. Such transmittal, according to Jalandoon, should be construed that the appointment was complete and regular and that it complied with the pertinent requirements of a valid appointment. Before the said CSC Regional Office No. 6 [could resolve the appeal], the City of La Carlota represented by the newly elected mayor, Hon. Jeffrey P. Ferrer and the Sangguniang Panlungsod represented by the newly elected Vice-Mayor, Hon. Demie John C. Honrado, collectively, the petitioners herein, intervened. They argued that Jalandoon is not the real party in interest in the appeal but Rojo who, by his inaction, should be considered to have waived his right to appeal from the disapproval of his appointment; that the appointment was made within the period of the election ban prior to the May 14, 2004 national and local elections, and finally, that the resignation of Rojo as member of the Sangguniang Panlungsod is ineffective having not complied with the provision on quorum under Section 82(d) of R.A. No. 7160.

 

In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside the CSCFO’s earlier ruling. On the argument of the intervenors that the former Vice-Mayor lacked legal personality to elevate the case on appeal, the regional office cited settled jurisprudence that the disapproval of an appointment affects the discretionary authority of the appointing authority. Hence, he alone may request for reconsideration of or appeal the disapproval of an appointment. The regional office likewise ruled that Rojo’s appointment on March 18, 2004 was made outside the period of the election ban from March 26 to May 9, 2004, and that his resignation from the Sangguniang Panlungsod was valid having been tendered with the majority of the council members in attendance (seven (7) out of the thirteen councilors were present). Considering that the appointment of Rojo sufficiently complied with the publication requirement, deliberation by the Personnel Selection Board, certification that it was issued in accordance with the limitations provided for under Section 325 of R.A. 7160 and that appropriations or funds are available for said position, the regional office approved the same. x x x

 

Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional Office No. 6 to the Civil Service Commission (or Commission). On May 17, 2005, the Commission dismissed said appeal on the ground that the appellants were not the appointing authority and were therefore improper parties to the appeal. Despite its ruling of dismissal, the Commission went on to reiterate CSC Regional Office’s discussion on the appointing authority’s compliance with the certification and deliberation requirements, as well as the validity of appointee’s tender of resignation. x x x

 

It likewise denied the motion for reconsideration thereafter filed by the petitioners in a Resolution dated November 8, 2005.5

 

Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of Appeals denied the petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service Commission, dated 17 May 2005 and 8 November 2005, respectively. Petitioners filed a Motion for Reconsideration, which the Court of Appeals denied in its Resolution dated 18 January 2008.

 

Hence, this petition for review.

 

The Ruling of the Court of Appeals

 

Citing Section 9(h), Article V of Presidential Decree No. 8076 or the Civil Service Decree, the Court of Appeals held that “in the attestation of an appointment made by a head of agency, the duty of the Civil Service Commission does not go beyond ascertaining whether the appointee possesses the appropriate civil service eligibility and the minimum statutory qualifications.”7 In this case, the Court of Appeals found that respondent met the minimum qualifications for the position of Secretary of the Sanggunian, as enumerated under Section 469(b), Article I, Title V of the Local Government Code.8 In fact, the Court of Appeals held that respondent is more than qualified for the position considering that respondent is a lawyer and an active member of the bar. Furthermore, the requirements for the appointment of respondent have been substantially complied with: (a) publication; (b) Personnel Selection Board deliberation; and (c) certification from the appropriate offices that appropriations or funds are available for the position. Thus, the Court of Appeals ruled that there was no sufficient reason for the Commission to disapprove respondent’s appointment.

 

On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on respondent’s appointment papers, the Court of Appeals held that such refusal of the officer to affix his signature should not affect the validity of the appointment. Otherwise, “it would be tantamount to putting the appointing power under the mercy of a department head who may without reason refuse to perform a ministerial function, as what happened in the instant case.”9

 

The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate the election ban period which was from 26 March to 9 May 2004. Furthermore, there was no substantial evidence to show that the appointment was a “midnight appointment.”

 

Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for the position of Sangguniang Panlungsod Secretary, and the appointing authority has adequately complied with the other requirements for a valid appointment, then the Civil Service Commission’s approval of the appointment was only proper.

 

The Issues

 

Petitioners raise the following issues:

 

1.      WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG PANLUNGSOD SECRETARY VIOLATED THE CONSTITUTIONAL PROSCRIPTION AGAINST ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT DURING HIS TENURE; and

2.      WHETHER RESPONDENT’S APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY WAS ISSUED CONTRARY TO EXISTING CIVIL SERVICE RULES AND REGULATIONS.10

 

 

The Ruling of the Court

 

Petitioners allege that respondent’s appointment as Sangguniang Panlungsod Secretary is void. Petitioners maintain that respondent’s irrevocable resignation as a Sangguniang Panlungsod member was not deemed accepted when it was presented on 17 March 2004 during the scheduled regular session of the Sangguniang Panlungsod of La Carlota City, Negros Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang Panlungsod member when then Vice Mayor Jalandoon appointed him as Sangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7, Article IX-B of the Constitution.11

 

The resolution of this case requires the application and interpretation of certain provisions of Republic Act No. 7160 (RA 7160), otherwise known as the Local Government Code of 1991. The pertinent provisions read:

 

Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities;

(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in case of sanggunian members; and

 

(4)The city or municipal mayor, in the case of barangay officials.

(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of Interior and Local Government.

(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working days from receipt thereof.

(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however,That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

 

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

 

Section 52. Sessions. (a) On the first day of the session immediately following the election of its members, the sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular sessions shall be once a week for the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and twice a month for the sangguniang barangay.

(b) When public interest so demands, special session may be called by the local chief executive or by a majority of the members of the sanggunian.

(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered by an affirmative vote of a majority of the members present, there being a quorum, in the public interest or for reasons of security, decency, or morality. No two (2) sessions, regular or special, may be held in a single day.

(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the member’s usual place of residence at least twenty-four (24) hours before the special session is held. Unless otherwise concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice.

(e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the sanggunian concerned.

 

 

 

Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

 

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing supplied)

 

Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached to constitute a quorum, then no business could have validly been transacted on that day including the acceptance of respondent’s irrevocable resignation.

 

On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. Citing the Department of Interior and Local Government (DILG) Opinion No. 28, s. 2000,12 dated 17 April 2000, respondent asserts that the vice-mayor, as presiding officer, should be included in determining the existence of a quorum. Thus, since there were six (6) members plus the presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

 

The 1987 Constitution mandates Congress to enact a local government code which provides, among others, the powers, functions and duties of local officials and all other matters relating to the organization and operation of the local government units. Section 3, Article X of the 1987 Constitution states:

 

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied)

 

 

Thus, the Local Government Code “shall x x x provide for the x x x powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.” In short, whether a vice-mayor has the power, function or duty of a member of the Sangguniang Panlungsod is determined by the Local Government Code.

 

On 10 October 1991, the Congress approved RA 7160 or the Local Government Code. Under RA 7160, the city vice-mayor, as presiding officer, is a member of the Sangguniang Panlungsod, thus:

 

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

 

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

 

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

 

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

 

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing and underscoring supplied)

 

 

RA 7160 clearly states that the Sangguniang Panlungsodshall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.” Black’s Law Dictionary defines “composed of” as “formed of” or “consisting of.” As the presiding officer, the vice-mayor can vote only to break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a “member” of the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the presiding officer who votes to break a tie during a Sanggunian session is not considered a “member” of the Sanggunian.

 

The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the Legislature to treat the vice-mayor not only as the presiding officer of the Sangguniang Panlungsod but also as a member of the Sangguniang Panlungsod. The pertinent portions of the deliberations read:

 

Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I reiterate this observation, that changes in the presiding officership of the local sanggunians are embodied for the municipality where the vice-mayor will now be the presiding officer of the sanggunian and the province where the vice-governor will now be the presiding officer. We did not make any change in the city because the city vice-mayor is already the presiding officer.

 

The President. All right.

 

Senator Rasul, Senator Lina, and Senator Gonzales.

 

Senator Gonzales. May I just add something to that statement of Senator Pimentel?

 

The President. All right.

 

Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that the provincial governor, the city mayor, the municipal mayor, as well as, the punong barangay are no longer members of their respective sanggunian; they are no longer members. Unlike before, when they were members of their respective sanggunian, now they are not only the presiding officers also, they are not members of their respective sanggunian.

 

Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)

 

 

 

 

During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of 1991, clearly agrees with Senator Gonzales that the provincial governor, the city mayor, and the municipal mayor who were previously the presiding officers of their respective sanggunian are no longer the presiding officers under the proposed Local Government Code, and thus, they ceased to be members of their respective sanggunian.13 In the same manner that under the Local Government Code of 1991, the vice-governor, the city vice-mayor, and the municipal vice-mayor, as presiding officers of the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan, respectively, are members of their respective sanggunian.

 

In the 2004 case of Zamora v. Governor Caballero,14 the Court interpreted Section 53 of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan. The Court held:

 

“Quorum” is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act. “Majority,” when required to constitute a quorum, means the number greater than half or more than half of any total. In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that “majority of each House shall constitute a quorum,” Section 53 of the LGC is more exacting as it requires that the “majority of all members of the sanggunian . . . elected and qualified” shall constitute a quorum.

 

The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of sanggunian

members present when there is no quorum.


A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session.15

 

 

In stating that there were fourteen (14) members of the Sanggunian,16 the Court in Zamora clearly included the Vice-Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

 

DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to determine the quorum of the sanggunian, have consistently conformed to the Court’s ruling in Zamora.

 

In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-mayor is included in the determination of a quorum in the sanggunian. The DILG Opinion reads:

 

DILG Opinion No. 46, s. 2007

02 July 2007

 

MESSRS. JAMES L. ENGLE,

FEDERICO O. DIMPAS, JR.,

MARIFE G. RONDINA,

PORFERIO D. DELA CRUZ, and

WINSTON B. MENZON

Sangguniang Bayan Membership

Babatngon, Leyte

 

Dear Gentlemen and Lady:

 

This has reference to your earlier letter asking our opinion on several issues, which we quoted herein in toto:

 

“(1) What is the number that would determine the quorum of our sanggunian that has a total membership of eleven (11) including the vice-mayor?

 

(2) Are the resolutions adopted by a sanggunian without quorum valid?

 

In reply to your first query, may we invite your attention to Section 446 (a) of the Local Government Code of 1991 (RA 7160) which provides and we quote:

 

 

“SECTION 446. Composition. – (a) The Sangguniang bayan, the legislative body of the municipality, shall be composed of the municipal vice-mayor as the presiding officer, the regular sangguniang members, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.”

 

Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8) regular members, the Liga ng mga Barangay President, the SK Federation President, the Vice-Mayor as Presiding Officer and the sectoral representatives.

 

Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer then of the sanggunian was the Mayor. Thus, there was a dilemma as to whether or not the Vice-Mayor, as Presiding Officer, is to be included in the determination of quorum in the Sangguniang Bayan. This issue was, however, resolved with the advent of the new Local Government Code of 1991 (RA 7160) providing the aforequoted provision. Hence, the vice-mayor is included in the determination of a quorum in the sanggunian.

 

Based on the aforequoted provision, sectoral representatives are also included in the determination of quorum in the sangguniang bayan. Let it be noted however that sectoral representatives in the local sanggunian are, pursuant to Section 41 (c) of RA 7160 and Section 10 (b) of RA 9264, to be elected “in a manner as may be provided for by law.” Meantime however, Congress has yet to enact a law providing for the manner of electing sectoral representatives at the local sanggunians. Such being the case, sectoral representatives are not, in the meantime, included in the determination of quorum in the local sanggunians.

 

In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members, the Liga ng mga Barangay President and the SK Federation President as ex-officio members, and the Vice-Mayor as Presiding Officer. The total membership in that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. “Majority” has been defined in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body. Following the said ruling, since the total membership of the sanggunian being 11, 11 divided by 2 will give us a quotient of 5.5. Let it be noted however that a fraction cannot be considered as one whole vote, since it is physically and legally impossible to divide a person or even his vote into a fractional part. Accordingly, we have to go up to the next whole number which is 6. In this regard, 6 is more than 5.5 and therefore, more than one-half of the total membership of the sangguniang bayan in conformity with the jurisprudential definition of the term majority. Thus, the presence of 6 members shall already constitute a quorum in the sangguniang bayan for it to conduct official sessions.

 

x x x x

 

Very truly yours,

(signed)

AUSTERE A. PANADERO

OIC, OUSLG17

In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that the Vice-Governor, as a Presiding Officer of the Sangguniang Panlalawigan, is a composite member thereof and is included in the determination of the quorum. DILG Opinion No. 13, s. 2010 reads:

 

DILG Opinion No. 13, s. 2010

09 February 2010

 

GOVERNOR JESUS N. SACDALAN

VICE-GOVERNOR EMMANUEL F. PIÑOL

Provincial Capitol Building

Province of Cotabato

 

Gentlemen:

 

This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain to one subject matter.

 

Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010 where the August Body embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of the Sangguniang Panlalawigan attended said session, namely: ten (10) regular Sangguniang Panlalawigan Members, three (3) ex-officio Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that when said approval of the Annual Budget was submitted for votation of said August Body, the result was: seven (7) members voted for the approval of the Annual Budget and six (6) voted against.

 

Specifically, you want us to shed light on the following issues:

 

“1) Whether or not the august body has reached the required majority of all the members of the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the Local Government Code and in relation to Article 107 (g) of its Implementing Rules and Regulations?

 

2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of all the members of the sangguniang panlalawigan to validly pass an appropriation ordinance.

 

3) Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval thereof?

 

4) In the event that the Province operates under a re-enacted budget, what are those expenditures included in the term “essential operating expenses” that may be incurred by the Province?”

 

x x x x

 

For the sanggunian to officially transact business, there should be a quorum. A quorum is defined by Section 53 of the Local Government Code of 1991 as referring to the presence of the majority of all the members of the sanggunian who have been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the approval of a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On the other hand, there are certain measures where the Local Government Code requires for its approval the vote of majority of all the members who were duly elected and qualified. This is what we call approval by the qualified majority of the sanggunian. In this case, the approval is to be voted not just by the majority of those present in a session there being a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless of whether all of them were present or not in a particular session, there being a quorum.

 

x x x x

 

In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum. Along this line, it bears to emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang Panlalawigan is a composite body where the Vice-Governor as Presiding Officer is a composite member thereof. As a composite member in the sangguniang panlalawigan, he is therefore included in the determination of a quorum.

 

“Majority” has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire membership. We note, however, that using either formula will give us the same result. To illustrate, using the 50% +1 formula, the 50% of a sanggunian composed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other hand, if we use the second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the latter. The simple majority of the sangguniang panlalawigan with fourteen (14) members where all of them were present in that particular session is therefore 8.

 

x x x x

 

Very truly yours,

(signed)

AUSTERE A. PANADERO

Undersecretary18

In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition of the Sangguniang Panlungsod. In this case, the Sangguniang Panlungsod of La Carlota City, Negros Occidental is composed of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. A majority of the 13 “members” of the Sangguniang Panlungsod, or at least seven (7) members, is needed to constitute a quorum to transact official business. Since seven (7) members (including the presiding officer) were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

 

The Perez19 case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution, and prior to the enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case was decided even prior to the old Local Government Code which was enacted in 1983. In ruling that the vice-mayor is not a constituent member of the municipal board, the Court in the Perez case relied mainly on the provisions of Republic Act No. 305 (RA 305) creating the City of Naga and the amendatory provisions of Republic Act No. 225920 (RA 2259) making the vice-mayor the presiding officer of the municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or Municipal Board in chartered cities. However, RA 305 and 2259 were silent on whether as presiding officer the vice-mayor could vote. Thus, the applicable laws in Perez are no longer the applicable laws in the present case.

 

On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted Section 5322 of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of the Sangguniang Panlalawigan, was decided under the 1987 Constitution and after the enactment of the Local Government Code of 1991. In stating that there were fourteen (14) members of the Sangguniang Panlalawigan of Compostela Valley,23 the Court in Zamora clearly included the Vice- Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

 

On the issue that respondent’s appointment was issued during the effectivity of the election ban, the Court agrees with the finding of the Court of Appeals and the Civil Service Commission that since the respondent’s appointment was validly issued on 18 March 2004, then the appointment did not violate the election ban period which was from 26 March to 9 May 2004. Indeed, the Civil Service Commission found that despite the lack of signature and certification of the Human Resource Management Officer of La Carlota City on respondent’s appointment papers, respondent’s appointment is deemed effective as of 18 March 2004 considering that there was substantial compliance with the appointment requirements, thus:

 

Records show that Atty. Rojo’s appointment was transmitted to the CSC Negros Occidental Field Office on March 19, 2004 by the office of Gelongo without his certification and signature at the back of the appointment. Nonetheless, records show that the position to which Atty. Rojo was appointed was published on January 6, 2004. The qualifications of Atty. Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended by Vice Mayor Jalandoon as Chairman and Jose Leofric F. De Paola, SP member and Sonia P. Delgado, Records Officer, as members. Records likewise show that a certification was issued by Vice Mayor Jalandoon, as appointing authority, that the appointment was issued in accordance with the limitations provided for under Section 325 of RA 7160 and the said appointment was reviewed and found in order pursuant to Section 5, Rule V of the Omnibus Rules Implementing Executive Order No. 292. Further, certifications were issued by the City Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor that appropriations or funds are available for said position. Apparently, all the requirements prescribed in Section 1, Rule VIII in CSC Memorandum Circular No. 15, series of 1999, were complied with.24

Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he was considered resigned as Sangguniang Panlungsod member effective 17 March 2004; (2) he was fully qualified for the position of Sanggunian Secretary; and (3) there was substantial compliance with the appointment requirements.

 

WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18 January 2008 Resolution of the Court of Appeals in CA-G.R. CEB-SP No. 01377.

 

 

SO ORDERED.

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

TERESITA J. LEONARDO-

DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

 

 

 

 

DIOSDADO M. PERALTA

Associate Justice

 

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

ROBERTO A. ABAD

Associate Justice

 

 

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

JOSE C. MENDOZA

Associate Justice

 

 

 

 

 

 

BIENVENIDO L. REYES

Associate Justice

 

 

 

 

ESTELA M. PERLAS-BERNABE

Associate Justice

 

 

CERTIFICATION

 

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

*Now the Representative of the 4th District of Negros Occidental. See footnote 1 of the Petition for Review, rollo, p. 12.

**Now the Mayor of La Carlota City, Negros Occidental. See page 1 of the Petition for Review, id.

1Penned by Associate Justice Agustin S. Dizon, with Associate Justices Francisco P. Acosta and Stephen C. Cruz, concurring; id at 64-70.

2Penned by Associate Justice Francisco P. Acosta, with Associate Justices Pampio A. Abarintos and Amy C. Lazaro-Javier, concurring; id. at 72-73.

3Id. at 48-55.

4Id. at 58-62.

5CA Decision, pp. 1-4; id. at 64-67.

 

6Section 9(h), Article V of PD 807 reads:

Section 9. Powers and Functions of the Commission. The Commission shall administer the Civil Service and shall have the following powers and functions:

x x x x

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. x x x

7Rollo, p. 68.

8Under Section 469(b), “[n]o person shall be appointed secretary to the sanggunian unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in law, commerce or public administration from a recognized college or university, and a first grade civil service eligible or its equivalent.”

9Rollo, p. 69.

10Petitioners’ Memorandum dated 7 November 2008, pp. 5-6; id. at 132-133.

11Section 7, Article IX-B of the Constitution provides that “[n]o elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.”

12Rollo, p.179. The DILG Opinion No.28, s. 2000, dated 17 April 2000 reads:

 

Opinion No.28, s. 2000

17 April 2000

 

Councilors JUVY M.MAGSINO, REUEL P.

LAYGO, SOLOMON J. LUMALANG, JR.

WILSON A. VIRAY, and JAIME C.

GUTIERREZ, JR.

Sangguniang Bayan of Naujan

Oriental Mindoro

 

Dear Councilors:

 

This refers to your query on how many members of the Sangguniang Bayan of Naujan, composed of eight (8) regular and two (2) ex-officio members and the vice mayor as presiding officer, must be present before the sanggunian can declare the presence of a quorum to legally transact official business.

 

In reply thereto, please be apprised that, for quorum to exist, the Sangguniang Bayan of Naujan must have the presence of at least six (6) of its members including the vice-mayor, which is the majority of eleven (11), in order to legally transact official business.

 

It must be emphasized that Section 53 of the Local Government Code of 1991 (RA7160) mandates that a majority of all the members of the sanggunian who have been duly elected and have qualified shall constitute a quorum. With the phrase “majority of all the members of the sanggunian”, it is thus evident therefrom that the reckoning point should be the entire composition of the [of] the sangguniang bayan. In that regard, Section 446(a) of the Code enumerates the membership of the sangguniang bayan, consisting of “the municipal vice-mayor as presiding officer, the regular (elective) sanggunian members, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.” Clearly then, the vice-mayor, as presiding officer , is also a member of the sangguniang bayan and should, therefore,be included in determining the existence of a quorum since he is included in the enumeration as to who composes the said legislative body. As a matter of fact, in the case of GAMBOA VS. AGUIRRE AND ARANETA (G.R. No 134213, July 20, 1999), the Supreme Court recognized the membership of the vice-governor (vice-mayor) in the sangguniang panlalawigan (sangguniang bayan). Accordingly, since the Sangguniang Bayan of Naujan is composed of a total [of] eleven (11) member who have been duly elected and have qualified, at least six (6) of its members, including the vice-mayor, must be present during any session to be able to be able to muster a quorum and to legally transact official business.

 

 

Hoping that we have clarified the matter accordingly.

 

Very truly yours,

 

ALFREDO S. LIM

Secretary

13Prior to the enactment of RA 7160, there was already in existence a local government code enacted under Batas Pambansa Blg. 337, which was approved on 10 February 1983 by the Batasang Pambansa. The pertinent provisions read:

Title Two – The Municipality

CHAPTER 3. – OFFICIALS AND OFFICES COMMON

TO ALL MUNICIPALITIES

 

Sec. 141. Powers and Duties [Municipal Mayor]. – (1) The mayor shall be the chief executive of the municipal government and shall exercise such powers, duties and functions as provided in this Code and other laws.

(2) He shall:

x x x

(e) Preside over the meetings of the sangguniang bayan with the right to vote only to break a tie;

x x x

 

Sec. 145. Functions[Municipal Vice Mayor]. – (1) The vice-mayor shall be an ex-officio member of the sangguniang bayan with all the rights and duties of any other member.

(2) He shall:

x x x

(c) Act as temporary presiding officer of the sangguniang bayan in the event of disability of the mayor to preside over a regular or special session on account of a trip on official business, absence on leave, sickness or any temporary incapacity; and

x x x

 

Sec. 146. Composition [The Sangguniang Bayan]. – (1) The sangguniang bayan shall be the legislative body of the municipality and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large, and the members appointive by the President consisting of the president of the katipunang bayan and the president of the kabataang barangay municipal federation.

(2) In addition thereto, there shall be one representative each from the agricultural and industrial labor sectors who shall be appointed by the President of the Philippines whenever, as determined by the sangguniang bayan, said sectors are of sufficient number in the municipality to warrant representation, after consultation with associations and persons belonging to the sector concerned.

 

Sec. 147. Session. – (1) The sangguniang bayan shall hold at least two regular sessions a month on the days which shall be fixed by resolution. Special sessions may be called by the mayor or a majority of the members of the sangguniang bayan as often as necessary. Not two sessions shall be held in one day.

(2) In the event of inability of the vice-mayor to act as temporary presiding officer on account of a trip on official business, absence on leave, sickness, or any temporary incapacity, the members constituting a quorum shall choose from among themselves the temporary presiding officer.

(3) The temporary presiding officer shall not vote even in case of a tie but he shall certify within ten days to all ordinances and resolutions enacted or adopted. If within said period the ordinances and resolutions were not signed by the temporary presiding officer,said ordinances and resolutions shall be deemed to have been signed and the municipal secretary shall forward them to the mayor for such action as may be authorized by law.

x x x x

Sec. 148. Quorum. – A majority of all the members of the sangguniang bayan shall constitute a quorum for the transaction of business. A smaller number may adjourn from day to day but may compel the immediate attendance of any member absent without good cause by issuing to the Integrated National Police assigned in the area an order for his arrest and production at the session, or impose a fine upon him in such amount as shall have been previously prescribed by ordinance.

 

Title Three. – The City

CHAPTER 3. – OFFICIALS AND OFFICES COMMON

TO ALL MUNICIPALITIES

 

Sec. 172. Functions and Compensation [The Vice-Mayor]. – The vice-mayor shall:

(a) Be the presiding officer of the sangguniang panglungsod;

x x x x

 

Sec. 173. Composition and Compensation [The Sangguniang Panglungsod]. – The sangguniang panglungsod, as the legislative body of the city, shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panglungsod members, and the members who may be appointed by the President of the Philippines consisting of the presidents of the katipunang panlungsod ng mga barangay and the kabataang barangay city federation.

 

Sec. 175. The Presiding Officer of the Sangguniang Panglungsod. – (1) The vice-mayor, as presiding officer of the sangguniang panglungsod, shall not vote except in case of a tie. He shall sign within ten days from their adoption all ordinances, resolutions and motions enacted or adopted by the said sanggunian. If after the period of ten days an ordinance or resolution is not signed by the presiding officer, the city secretary shall forward the same to the city mayor for appropriate action.

(2) If the vice-mayor cannot preside over a regular or special session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.

Sec. 176. Quorum. – A majority of all the members of the sangguniang panglungsod shall constitute a quorum for the transaction of business, but a smaller number may adjourn from day to day and compel the immediate attendance of any member who is absent without good cause by issuing to the Integrated National Police assigned in the area an order for his arrest and production at the session, subject to penalties prescribed by law.

 

Title Four. – The Province

CHAPTER 3. – OFFICIALS AND OFFICES COMMON

TO ALL PROVINCES

Sec. 203. Provincial Governor as Chief Executive of the Province; Powers and Duties. – (1) The governor shall be the chief executive of the provincial government and shall exercise such powers and duties as provided in this Code and other laws.

x x x

 

Sec. 204. Powers, Duties and Privileges [The Vice-Governor]. – (1) The vice-governor shall be an ex-officio member of the sangguniang panlalawigan with all the rights, duties and privileges of any member thereof.

(2) He shall:

x x x

(c) Act as temporary presiding officer of the sangguniang panlalawigan in the event of inability of the governor to preside over a regular or special session on account of a trip on official business, absence on leave, sickness or any other temporary incapacity;

x x x

 

Sec. 205. Composition. – (1) Each provincial government shall have a provincial legislature hereinafter known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines.

x x x

 

Sec. 206. Sessions. – x x x

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.

x x x

 

Sec. 207. Quorum. – A majority of all the members of the sangguniang panlalawigan shall constitute a quorum for the transaction of business. A smaller number may adjourn from day to day but may compel the immediate attendance of any member absent without good cause by issuing to the Integrated National Police of the city or municipality where the provincial capital is situated, an order for his arrest and appearance at the session hall under pain of penalty as prescribed by ordinance.

14 464 Phil. 471 (2004).

15Id. at 488-490.

16Aside from the presiding officer, there were thirteen (13) other members of the Sangguniang Panlalawigan of Compostela Valley, making a total of fourteen (14) members.

17DILG Website, www.dilg.gov.ph/PDF_File/issuances/legal_opinions/LO046S2007.pdf (visited 18 November 2011). (Boldfacing supplied)

18DILG Website, www.dilg.gov.ph/PDF_File/issuances/legal_opinions/DILG-Legal_Opinions-2011318-92df7c2541.pdf (visited 18 November 2011). (Boldfacing supplied)

19137 Phil. 393 (1969).

20An Act Making Elective the Offices of Mayor, Vice-Mayor and Councilors in Chartered Cities, Regulating the Election in Such Cities and Fixing the Salaries and Tenure in Such Offices. Approved, 19 June 1959.

21Supra note 14.

22Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

23Aside from the presiding officer, there were thirteen (13) other members of the Sangguniang Panlalawigan of Compostela Valley, making a total of fourteen (14) members.

24Civil Service Commission (Regional Office No. 6) Decision, pp. 3-4; rollo, pp. 46-47.