The order did not state if it was final and immediately executory even as Montero has served the three-month suspension order by the Ombudsman.

The decision was penned by the Chairman, Special Twelfth Division, Associate Justice Apolinario D. Bruselas, Jr. and concurred by Associate Justices Pablito A. Perez and Rafael Antonio M. Santos.

However, Atty. Ma. Evaneliza Cloma-Lucero, counsel of Montero, in a text message to the Chronicle belied the rumor circulating about the genuineness of the CA decision “Yes, there is a CA Decision promulgated on June 28, 2018. Mayor Montero has the certified true copy. I can only send you the last page with the signatures.”

FULL-FLEDGED MAYOR

A visibly irked Mayor Pedro Fuertes, in a hastily called press conference, condemned the move as an apparently deliberate attempt of Montero’s followers to sow confusion leading to her rumored imminent return to reclaim her seat.

Fuertes has filed a motion for Leave of Court to Intervene before the CA Special Twelfth Division manifesting that his assumption for the position of Mayor and is currently discharging his duties and functions should be taken under consideration in the resolution of the petition for its consequent legal implications.

Fuertes took his oath as acting Mayor on January 10, 2018, when the Ombudsman suspended Montero and again took his oath on March 8, 2018, but this time as full-fledged Mayor following Montero’s dismissal.

CONSTITUTIONAL VIOLATION  

Montero was initially suspended by the Ombudsman on October 24, 2017 for simple misconduct but was later dismissed from public service three months later on January 19, 2018 for grave misconduct and conduct prejudicial to the best interest of the service.

She was banned for life to hold public office by the Ombudsman, her eligibilities were canceled and retirement benefits forfeited.

Cloribel, a resident of Barangay Lourdes, Panglao accused Montero before the Ombudsman on August 14, 2015, for appointing four candidates who lost in the May 2013 elections.

Cloribel claimed in his complaint-affidavit that the appointments by Montero violated section 6, Article IX-B of the 1987 Constitution and section 94 (b) of the Local Government Code (LGC) which prohibit the appointment to any office in the government of a candidate who loses in an election within one year after such election.

Montero hired the services of her defeated Vice Mayoralty candidate Noel Hormachuelos as Municipal Administrator/Consultant for Administrative Services, three losing candidates for municipal councilors – Danilo Reyes as public information officer, Apolinar Fudalan, employment coordinator/Livelihood, TESDA/IT consultant and Fernando Penales, a consultant  on infrastructure and engineering services.

Hormachuelos, Reyes and Fudalan ran under the Partido Demokratiko Pilipino (PDP) party led by Montero while Penales ran as United Nationalist Alliance (UNA) candidate for councilor with Pedro Fuertes as his vice-mayor who took over as mayor upon the dismissal of Montero.

FLIPPED FLOPPED

In the original decision which was ordered reinstated by the CA decision, the Ombudsman suspended Montero for three months without pay for appointing the four losing candidates to positions in the Local Government Unit (LGU) of Panglao which tantamounts to simple misconduct.

The Ombudsman did not find corruption in the appointment of the four losing candidates and a clear intent to violate the law on the part of Montero.

However, upon reconsideration, the Ombudsman was persuaded by the arguments of Cloribel that a heavier penalty should be imposed on Montero since her appointments violated a constitutional provision and even a Commission on Audit report gave a negative recommendation on the matter.

Subsequently, the Ombudsman reversed its original decision and ruled that Montero should be dismissed from the service for grave misconduct and conduct prejudicial to the best interest of the service.

REVERSAL OF FORTUNES

On appeal by Montero, the CA overturned the dismissal order ruling that no substantial evidence was presented by Cloribel to support the element of corruption, clear intent to violate the law, or flagrant disregard of an established rule to characterize the misconduct as grave.

According to the CA “the Ombudsman was correct in its original decision that petitioner is guilty of simple misconduct.”

The CA described the Ombudsman’s order finding Montero guilty of grave misconduct “as an afterthought”.

In the court’s view, the acts of Montero of appointing the four losing candidates violated the “all-embracing” prohibition under section 6, Article IX-B of the 1987 Constitution including job orders and contracts of services.

According to the CA, the spirit of the prohibition is to prevent winning elective candidates from favoring their defeated party-mates who are considered lame ducks and insulate the public service from the evils of the spoils system.

But the determination of the legality of Montero’s appointments falling within the scope of the prohibition under the constitutional provision is hampered by the absence of an “exact, authoritative jurisprudence on the issue”, according to the CA.

Therefore, according to the CA, reliance by Montero on the varying issuances from different executive bodies and agencies “could not be faulted” since “there is no definite jurisprudential pronouncement yet on the matter.”

The CA also ruled that the Aguinaldo Doctrine which Montero invoked does not apply to her case since the Supreme Court abandoned the doctrine of condonation and held that the rule should no longer hold and may no longer be authoritative.

Also, the CA found that the accusations of Cloribel that Montero’s acts were considered conduct prejudicial to the best interest of the service were “unsubstantiated and without merit.”

The CA even considered the fact that the four appointees “were not remiss in their duties and responsibilities” assigned to them by Montero.

INTRIGUING DECISIONS

The purported CA decision created a state of confusion among the residents of Panglao after copies of the alleged CA decision suspected by some as dubious started circulating in the municipality.  

The authenticity of the CA decision was raised by several sectors of the community as two versions of the photocopy of the dispositive portion showed one with “original signed” printed above the names of the associate justices and the absence of the certification of the clerk of court that the copy was a certified true copy.

The other photocopy showed the signatures of the three associate justices above their names and a certification that the decision was a certified true copy signed by Atty. Teresita R. Marigomen, Clerk of Court. (Chito M. Visarra)