VG Balite, five others denied injunction, suspension stays

The sixty-day Temporary Restraining Order (TRO) that gave six top provincial government officials the legal basis to continue serving in their respective elective and appointed positions despite a nine-month suspension expired yesterday, August 12, 2017.

The fate of former Provincial Board Members now Vice Governor Dionisio Balite, Maribojoc and Loay Vice Mayors Jose Veloso and Brigido Imboy, Executive Assistant IV Tomas Lopez and Provincial Administrator Alfonso Damalerio hinges on the resolution of their petition for review filed before the Court of Appeals (CA) on the Ombudsman decision suspending them for nine months without pay.

The Court of Appeals (CA) Special Eighteenth Division in Cebu City turned down their application for the issuance of a Writ of Preliminary Injunction in a resolution on July 27, 2017, and declared the case as submitted for decision.

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The seven-page resolution was signed by Associate Justice Geraldine C. Fiel-Macaraig and concurred by Associate Justices Edgardo L. Delos Santos and Edward B. Contreras.

NO VESTED RIGHT

The position of the OSG and the Ombudsman Legal Affairs Office were adopted by the CA in its’ resolution denying the application for writ of preliminary injunction on the grounds that the decision of the Ombudsman is “immediately executory pending appeal and may not be stayed by the filing of an appeal or the issuance of an injunctive writ.”

The CA also gave weight to the Ombudsman Circular No. 17 issued on May 11, 2016 that it will no longer honor the defense of condonation on administrative cases remaining open and pending as of April 12, 2016.

The circular pointed out that “after all, there is no vested right to public office.”

The resolution also stressed that if an erring official committed misconduct, they must be held accountable, regardless of how many time they are re-elected into office.

REVERSAL

Buoyed by the CA’s recognition of the applicability of the “Aguinaldo Doctrine” or the Principle of Condonation in the grant of their TRO, Balite, et al., strongly disagreed with both the positions of the Office of the Solicitor General (OSG) and the Office of the Legal Affairs of the Ombudsman that “the condonation doctrine is no longer applicable in the present case.”

Balite, et al., maintained that the Supreme Court decision emphasized that the abandonment of the condonation principle should be applied prospectively as clearly stated and “cannot prevail over the existing jurisprudence.”

The 56-year old condonation doctrine popularly known as the Aguinaldo doctrine has been used by elected officials to protect them from alleged administrative offenses.

Under the condonation doctrine, an administrative offense committed by an elected official are considered forgiven when the electorate decides to re-elect him or her for another term.

However, the SC en banc, voting 7-3 decided on November 10, 2015 in the Jejomar Erwin Binay, Jr and CA 6th Division vs Ombudsman Conchita Carpio Morales case to strike down the condonation doctrine which was abused by elected officials facing administrative cases.

But the SC also ruled that the abandonment of the condonation doctrine is prospective in nature and only applicable to future cases.

Balite, et al., pointed out that the condonation doctrine was ruled by the High Court on November 10, 2015, and that they were already re-elected before the decision was promulgated.

IRREGULAR

The cases involving Balite, Veloso, Imboy and Uy stemmed from a resolution approved by the 2006 Sanggunniang Panlalawigan (SP) authorizing the opening of a letter of credit (LC) by then Governor Erico Aumentado with the Philippine National Bank, Cebu Branch in the amount of PhP9.4 million.

The amount was used for the importation of a backhoe with breaker and was also approved by then SP members Concepcion Lim, Amalia Tirol, Corazon Galbreath, Godofreda Tirol, Ma. Fe Camacho Lejos and Sangguniang Kabataan (SK) President Frances Bobeth Cajes-Auza.

Lopez and Damalerio were implicated when they approved on April 28, 2009 an SP resolution authorizing Aumentado to open a PhP147.5 million LC with the Land Bank of the Philippines for the purchase of 26 units of heavy equipment.

The SP members who approved the 2009 resolution included A. Tirol, Galbreath, Camacho-Lejos, Josil Trabajo, Aster Apalisok-Piollo and Jane Censoria Cajes-Yap representing the SK.

The  Ombudsman found Balite, Veloso, Imboy, Lopez and Damalerio liable for conduct prejudicial to the best interest of the service and were meted the suspension for a period of nine months without pay.

Those who were out of government service at the time of the decision were fined equivalent to their salary of six months payable to the Ombudsman.

The charge against Aumentado who was the Head of the Procuring Entity (HOPE) was not pursued in view of his death on December 25, 2012.

BACK TO SUSPENSION

According to Atty. Teodoro Lagang of the Villas, Lagang and Tumanda Law Offices, counsel for petitioners, his clients are now awaiting orders from the Department of Interior and Local Government (DILG) to vacate their positions to avoid claims of abandonment of duty.

The 60-day TRO was issued on May 25, 2017, and was served by the DILG on June 14, 2017 and will be reckoned on the date of receipt by the officials concerned, according to Lagang.

Balite, et al., started serving their nine-months suspension after DILG Regional Director Atty. Rene K. Burdeos directed DILG Provincial Director Ma. Loisella E. Lucino to immediately serve the implementation order of DILG Undersecretary Austere A. Panadero together with the original copy of the Ombudsman decision not later than May 10, 2017.

However, the suspension was cut short when Balite, Veloso, Imboy and Lopez secured a TRO based on the “Aguinaldo Doctrine”.

In their defense, the 2006 SP members stressed that the opening of the LC was both “upon the instance” of Aumentado in 2006 and OIC Governor Julius Cesar Herrera in 2009 with their assurance that the procurement process “underwent a judicious and careful verification.”

But the Ombudsman rebuked the 2009 SP members for “utter disregard of their duties” of verifying if provisions of the law were followed before passing the assailed resolution evidently causing undue injury to the province.

Following the succession provisions of the Local Government Code, 1st District Board Member Venzencio Arcamo will sit as vice governor, Councilors Atty. Lahar Ayuban and Abraw Arocha for Loay and Maribojoc respectively. 

Provincial Legal Officer Mitchell John Boiser is now the OIC Provincial Administrator while the replacement of Lopez is still in the process. (Chito M. Visarra)



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