G.R. No. 181367

G.R. No. 181367 LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Mayor, HON. JEFFREY P. FERRER, ET AL., petitioners versus ATTY. REX G. ROJO, respondent.

Promulgated:

April 24, 2012

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CONCURRING OPINION

(In the Result)

BRION, J.:

The constitutional issue before us is whether Atty. Rex Rojos (Rojo) appointment violated the constitutional ban on appointment.[1] The answer to this question depends on the resolution of the prior and underlying question of whether petitioner Rojo effectively resigned from his post as sanggunian member before he was appointed as sanggunian secretary. This question, in turn, hinges on the much prior issue of the number of sanggunian members needed to validly act on Rojos tender of resignation.

While I concur with the conclusion reached by the ponencia, I wish to emphasize that the Vice-Mayor as presiding officer is considered a member of the sanggunian for purposes of quorum determination only. In particular, the majoritys ruling should by no means be interpreted as including the Vice-Mayor (as presiding officer) as sanggunian member, where the Local Government Code (LGC) itself prescribes a specific voting requirement that makes quorum determination irrelevant.

Brief Factual Antecedents

On March 10, 1994, Rojo, a member of the Sanggunian Panlungsod (SP) of La Carlota City, applied for the vacant position of SP Secretary. On the March 17, 2004 session of the SP, Rojo tendered his irrevocable resignation as SP Member. At that time, Vice-Mayor Rex Jalandoon (Jalandoon), as presiding officer, and six members of a twelve-member sanggunian were present.

On March 18, 2004, Jalandoon appointed Rojo as SP Secretary and the latter immediately took his oath of office. On March 26, 2004, the appointment ban for the May 2004 elections took effect. On April 27, 2004, the Civil Service Commission (CSC) Field-Office disapproved Rojos appointment due to incomplete requirements. Jalandoon appealed the disapproval to the CSC Regional Office.

The 2004 elections resulted in changes in the La Carlota local government. The newly elected Mayor and Vice-Mayor of La Carlota City sought to affirm the disapproval of Rojos appointment, alleging that there had been no quorum when Rojo tendered his resignation before the SP. Since Rojos resignation could not have been validly accepted for lack of quorum, it was argued that Rojo continued to be an elective official who was ineligible for appointment to a public office under the Constitution.[2]

Core Issue

I submit that the quorum issue in this case can be decided by approaching the problem from the point of the question: to whom does the LGC vests the power to accept the resignation of a member of the sanggunian?

My Position

Article 82 of the LGC reads:

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

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

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

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

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

x x x x

(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.

This Article lays down the rule on resignations and identifies the authorities with the power to accept the resignation of particular local government officials. In the case of sanggunian members, that authority is the local legislative body the sanggunian concerned of which the resignee is a member.

Before determining what the law exactly means in making reference to the sanggunian concerned, Section 53 of the LGC prescribes a quorum requirement before the sanggunian can validly transact its regular official business.

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.

x x x x

On the other hand, Article 457 of the LGC identifies the composition of the sanggunian for the purpose of determining the sanggunian concerned authorized to accept the resignation of its member. Article 457 reads:

Section 457. Composition. (a) The Sanggunian 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.

Based on these provisions, I believe that it is absurd not to include the presiding officer in determining whether a quorum exists since (i) the law includes him as part of the body authorized to accept an elective local officials resignation and (ii) this body - the sanggunian concerned - can validly act only if there is a quorum.

Moreover, while the Vice-Mayor as presiding officer cannot vote except in case of tie,[3] the determination of the quorum for purpose of accepting a resignation of a sanggunian member does not require an active participation on the part of any member of the sanggunian.

Under the LGC, the only express prohibition against the resignation of an elective local official is when he is the subject of an on-going recall process.[4] Under the Anti-Graft and Corrupt Practices Act, a public officer who is the subject of a pending investigation (administrative or criminal) or prosecution[5] is likewise prohibited from resigning. This prohibition, however, is for the sole purpose of preventing him from frustrating the ongoing investigation or prosecution, i.e., in order to be consistent with an individuals constitutional right against involuntary servitude,[6] a public official may resign from the service but his act will not cause the dismissal of the on-going proceeding against him.[7] In other words, in accepting a resignation, the sanggunian, as a body, simply takes a passive stance on a matter that relates to the administrative duties of the Vice-Mayor himself.

The dichotomy (i.e., the counting of the Presiding Officer for purpose of quorum but without giving him the right to vote except in case of a tie) can be better appreciated if it is considered that, unlike in the old LGC, the presiding officer is empowered, as a rule, to appoint all officials and employees of the sanggunian.[8] In the present case, at issue is petitioner Rojos resignation as a sanggunian member for the express purpose of applying for the position of sanggunian secretary whom the Vice-Mayor can appoint. In other words, woven into the question of resignation is the function of appointment that the law expressly assigned to the Vice-Mayor. These circumstances add to the reasons justifying the conclusion that the Vice-Mayors presence in accepting the resignation is material.

Refutation of the dissents reliance on Perez

Justice Del Castillos Dissent relies on the 1969 case of Perez v. Hon. Dela Cruz.[9] The use of the Perez ruling, in my view, is misplaced.

In Perez, the Naga Vice-mayor Virginia Perez wanted to vote in the selection of (i) the secretary of the municipal board of Naga and (ii) the chairmen of the boards various standing committees. The Court held that Perez does not possess any voting right considering that she was not a member of the municipal board.

In order to fully appreciate Perez, proper consideration of its legal setting is critical. The pertinent laws then were:

a. Republic Act (RA) 305 (the Charter of Naga). This law did not provide for the position of Vice-Mayor; and

b. RA No. 2259 (An Act Making Effective the Offices of Mayor, Vice-Mayor and Councilors in Chartered Cities xxx). This law created the position of vice-mayor in Naga, among others. Section 3 of this law, however, simply provides that the Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities.

Based on these laws, Perez noted that [RA 2259] does not decree that the vice-mayor is a member of the city council or municipal board. Necessarily, not being a member, she could not have any direct and active participation in filling the local appointive positions in Naga.

First, RA No. 2259, the applicable law at that time, did not provide for a similar provision under the LGC on the composition of the sanggunian, aside from stating that the Vice-Mayor shall be the presiding officer of the city council or municipal board of chartered cities. In fact, under RA No. 2259, the powers of the Vice-Mayor clearly show that aside from being the presiding officer of the city council he was merely a spare tire[10] who could assume the powers of the Mayor only in case of the latters inability:[11]

Section 3. x x x

The Vice-Mayor shall perform the duties and exercise the powers of the mayor in the event of the latters inability to discharge the powers and duties of his office. In the event of a permanent vacancy in the office of mayor, the vice-mayor shall become mayor for the completion of the unexpired term. x x x

Second, Perez resolved the question of whether the presiding officer could vote in the selection of local appointive officials. In order to resolve this issue, the Court had to determine whether the presiding officer was also a member of the municipal board/city council. As previously discussed, the present case does not involve the active role of the sanggunian as a body, exercising discretion whether to favorably vote or not; only the sanggunians passive role in accepting the resignation of a sanggunian member is involved. Recall in this regard that under Section 82 of the LGC, the authority to accept a resignation resides in the sanggunian concerned, and that under Article 457, the Vice-Mayor is part of the composition of the sanggunian. These distinctions can only lead to the conclusion that the Dissent cannot draw strength from Perez in determining whether there was quorum for the purpose of acting on petitioner Rojos resignation.

Contrary to the Dissents posture, we are not here giving additional role and prerogative to a presiding officer. Nor does our interpretation purport to give an active role to a presiding officer aside from what inheres to his position. We only resolve the issue of whether he should be counted for purposes of quorum on an administrative matter which relates to his duties and inheres to his position a passive participation in the affairs of the body over which he actually presides and which he presumably influences for the common good.

The case of Zamora v. Caballero

In Zamora v. Caballero,[12] the Court was confronted with the question of whether a regular sanggunian member, who filed a leave of absence and whose alleged departure overseas was not proved, should be considered in determining whether there was quorum at the time the sanggunian transacted official business. The Court ruled in the affirmative, holding that -

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 sanggunianelected and qualified shall constitute a quorum.

The difference in the wordings of the Constitution and the LGC is not merely a matter of style and writing as respondents would argue, but is actually a matter of meaning and intention. The qualification in the LGC that the majority be based on those elected and qualified was meant to allow sanggunians to function even when not all members thereof have been proclaimed. And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.

Read in light of Zamora, the fact that the Vice-Mayor is elected and, by virtue of his position, qualifies as the sanggunians presiding officer assumes added significance.

I submit, however, that the force of Zamora should not go beyond what the Court decreed in that case. The legality of the Vice-Mayors (as presiding officer) inclusion as member of the sanggunian did not confront Zamora, which simply assumed that the presiding officer was included in the determination of the number of members required to constitute a quorum. For emphasis, Zamora resolved the issue of whether an absent regular member should be included in quorum determination; it did not rule on the inclusion of the Vice-Mayor, as presiding officer, in the sanggunian membership. The latter issue is what the Court now resolves.

The sanggunian is a collegial body performing several legislative and non-legislative functions.[13] Under the LGC, the voting requirement for an affirmative action on the part of the sanggunian varies depending on the particular power to be exercised or the measure to be adopted. The voting requirement could be (i) two-thirds (2/3) of all its members;[14] or (ii) two-thirds (2/3) vote of the members present, there being quorum;[15] or (iii) three-fourths (3/4) of all its members;[16] or (iv) majority vote of all the members;[17] or (vi) simply concurrence of the sanggunian concerned;[18] or (vii) affirmative vote of a majority of the members present, there being a quorum;[19] or (viii) unanimous vote of the sanggunian concerned.[20]

If the voting level required would engage the entirety of the sanggunian as a collegial body, making the quorum requirement least significant, there is no rhyme or reason to include the presiding officers personality at all. The possibility of that one instance where he may be allowed to vote is nil. To include him in sanggunian membership without this qualification would adversely affect the statutory rule that generally prohibits him from voting.

To illustrate, in disciplining members of the sanggunian where the penalty involved is suspension or expulsion, the LGC requires the concurrence of two-thirds (2/3) of all the members of the sanggunian.[21] If the Sanggunian has thirteen (13) regular members (excluding the presiding officer), the votes needed to impose either of the penalty is eight. However, should the presiding officer be also included, therefore raising the membership to fourteen (14), on the premise that he is also sanggunian member even if he cannot vote in this instance, an additional one vote is required i.e., nine votes are required before the penalty is imposed. The presiding officers innocuous inclusion as sanggunian member negatively impacts on the prohibition against him from voting since his mere inclusion affects the numerical value of the required voting level on a matter where generally and by law he has no concern.

For the foregoing reasons and qualifications, I vote to DISMISS the petition and join the result of Justice Carpios ponencia.

ARTURO D. BRION

Associate Justice

[1] Article IX-B, Section 7, 1987 Constitution.

[2] Article IX-B, Section 7, par. 1, 1987 Constitution.

[5] For an offense under Republic Act No. 3019 or under the Revised Penal Code provisions on Bribery, (RA 3019, Section 12).

[6] Section 18 (2), Article III of the 1987 Constitution.

[7] Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001, 353 SCRA 452, 506-507.

[8] Local Government Code, Section 456 (a) 2 and Section 463 (a).

[10] Page 649 of The Local Government Code Revisited 2007 by Sen. Aquilino Nene Pimentel, Jr.

[11] Under the Local Government Code, the Vice-Mayor is empowered to appoint all officials and employees of the Sanggunian Panlungsod [Section 456(a)2]. He can also exercise such other powers and functions as may be prescribed by law or ordinance.

[14] Local Government Code, Section 11, Section 50 b(5), Section 54 a, Section 447 a(2)(xii) and Section 458.

[17] Id., Section 447 a(2)ii, Section 447 a(2)iii, Section 447 a(2)iv, Section 447 a(2)v, Section 447 a(3)vii, Section 443 d; Section 458 a(2)ii, Section 458 a(2)iii, Section 458 a (2)iv, Section 458 a(2)v, Section 458, a(3) vii, Section 454 d; and Section 468 a(2)ii, Section 468 a(2)iii, Section 468 a(2)iv, Section 468, a(2)v, Section 463 d.