Transcript 2014 Oversight and Quasi-Judicial Functions of the Sanggunian

OVERSIGHT FUNCTIONS
OF THE SANGGUNIAN
By: Atty. Enrique V. dela Cruz, Jr.
Oversight on
Ordinances
Legislative Oversight
• SEC. 56. Review of Ordinances by the Sangguniang
Panlalawigan. - (a) Within three (3) days after approval,
the secretary to the sanggunian panlungsod or sangguniang
bayan shall forward to the sangguniang panlalawigan for
review, copies of approved ordinances and the resolutions
approving the local development plans and public
investment programs formulated by the local development
councils.
• (b) Within thirty (30) days after receipt of copies of such
ordinances
and
resolutions,
the
sangguniang
panlalawigan shall examine the documents or transmit them
to the provincial attorney, or if there be none, to the
provincial prosecutor for prompt examination.
Legislative Oversight
• SEC. 56. Review of Ordinances by the Sangguniang
Panlalawigan. • (c) If the sangguniang panlalawigan finds that such an
ordinance or resolution is beyond the power conferred
upon the sangguniang panlungsod or sangguniang bayan
concerned, it shall declare such ordinance or resolution
invalid in whole or in part. The sangguniang panlalawigan
shall enter its action in the minutes and shall advise the
corresponding city or municipal authorities of the action it
has taken.
• (d) If no action has been taken by the sangguniang
panlalawigan within thirty (30) days after submission of
such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.
Legislative Oversight
• SEC. 57. Review of Ordinances by the Sangguniang
Panlungsod or Bayan. - (a) Within ten (10) days
after its enactment, the sangguniang barangay shall
furnish copies of all barangay ordinances to the
sangguniang panlungsod or sangguniang bayan
concerned for review as to whether the ordinance is
consistent with law and city or municipal ordinances.
• (b)
If
the
sangguniang
panlungsod
or
sangguniang bayan, as the case may be, fails to
take action on barangay ordinances within thirty
(30) days from receipt thereof, the same shall be
deemed approved.
Legislative Oversight
• SEC. 57. Review of Ordinances by the Sangguniang
Panlungsod or Bayan. - (c) If the sangguniang
panlungsod or sangguniang bayan, as the case
may be, finds the barangay ordinances inconsistent
with law or city or municipal ordinances, the
sanggunian concerned shall, within thirty (30)
days from receipt thereof, return the same with
its comments and recommendations to the
sangguniang
barangay
concerned
for
adjustment, amendment, or modification; in
which case, the effectivity of the barangay
ordinance is suspended until such time as the
revision called for is effected.
• Q: May the Sanggunian declare a local
ordinance under review as void and illegal?
• A: NO.
• The only ground upon which a provincial board
may declare any municipal resolution, ordinance,
or order invalid is when such resolution,
ordinance, or order is 'beyond the powers
conferred upon the sanggunian making the
same.'
• Absolutely no other ground is recognized by the
law.
• Moday v. CA, Feb 20, 1997; DILG Opinion No. 32005 (January 21, 2005)
• Q: May the Sanggunian exceed the 30-day period of
review because of time spent in referral to its committee
or legal office?
• A: NO.
• The Sanggunian is required to take action on the ordinance
on review within thirty (30) days after its submission.
• The phrase "take action" should be construed as either
approval or disapproval of the ordinance and not just any
other action of the reviewing sanggunian, such as referral to
a committee.
• After the lapse of such period, and no official and/or formal
document, such as a resolution, was issued by the
Sanggunian, it can be validly stated that the Sanggunian
failed to act within thirty (30) days and the ordinance or
resolution under review can be presumed consistent with law
and therefore valid. [DILG Opinion No. 19-2009 (April 28,
2009)] DILG Opinion No. 62-2012 (November 7, 2012)]
Oversight on the
Local Budget
Review of Appropriation Ordinance
• "SEC. 327.
Review
of
Appropriation
Ordinances of Component Cities and Municipalities.
— The sangguniang panlalawigan shall review the
ordinance authorizing annual or supplemental
appropriations of municipalities in the same manner
and within the same period prescribed for the review
of other ordinances.
• If within ninety days (90) within receipt of copies
of such ordinance, the sangguniang panlalawigan
takes no action thereon, the same shall be
deemed to have been reviewed in accordance with
law and shall continue to be in full force and
effect.
Review of Appropriation Ordinance
• "SEC. 327.
Review
of
Appropriation
Ordinances
of
Component
Cities
and
Municipalities.
• The sangguniang panlalawigan shall within the
same 90-day period advise the … sangguniang
bayan concerned through the local chief executive
of any action on the ordinance under review.
• Upon receipt of such advice, the . . . municipal
treasurer concerned shall not make further
disbursements of funds from any of the items of
appropriate declared inoperative, disallowed or
reduced.
Review of Appropriation Ordinance
• SEC. 333. Review of the Barangay
Budget. - (a) Within ten (10) days from
its approval, copies of the barangay
budget shall be furnished the sangguniang
panlungsod or the sangguniang bayan, as
the case may be.
• If within sixty (60) days after the receipt
of the ordinance, the sanggunian
concerned takes no action thereon, the
same shall continue to be in full force and
effect.
Review of Appropriation Ordinance
• SEC. 333. Review of the Barangay Budget. - (b) Within
the 60-day period, the sangguniang panlungsod or
sangguniang bayan concerned shall return the barangay
budget to the punong barangay with the advice of action
thereon for proper adjustments, in which event, the barangay
shall operate on the ordinance authorizing annual
appropriations of the preceding fiscal year until such time
that the new ordinance authorizing annual appropriations
shall have met the objections raised.
• Upon receipt of such advice, the barangay treasurer or
the city or municipal treasurer who has custody of the
funds shall not make further disbursement from any
item of appropriation declared inoperative, disallowed,
or reduced.
Who prepares the budget?
• The Local Development Council (LDC) prepares
the Local Development Plan (LDP) (Section 109, LGC);
• The sanggunian will then approve or disapprove
the LDP thru a Resolution (Section 114, LGC);
• The LDP will then be submitted to the mayor, who
may approve or veto the same (Section 55, LGC);
• The approved LDP will then be submitted to the
Local Finance Committee (LFC) for budget
preparation (Art. 410, IRR, LGC);
• The proposed budget will be submitted by the local
chief executive to the sanggunian for enactment
into an ordinance. (Section 316, LGC) (DILG Opinion No. 1372003)
Can the Sanggunian reduce the
proposed budget?
• Article 415 of the IRR states that: "the local
sanggunian may not increase the proposed
amount in the executive budget nor include new
items except to provide for statutory and
contractual obligations but in no case shall it
exceed the total appropriations in the executive
budget".
• Considering that the only prohibition is against any
increase, the sanggunian may reduce the
executive budget proposed by the LCE, provided,
however, that the requirements as well as the
general limitations in the use of govt funds
provided for under Sections 324 and 325 of the
Code are complied with.
Is there any penalty for an LCE who fails
to prepare and submit the annual budget
on time?
• Yes. Pursuant to Sec. 318 of R.A. No.
7160, an LCE who fails to submit the
budget on or before October 16 of
the current year shall be subject to
such criminal and administrative
penalties as may be provided by the
Local Government Code and other
applicable laws.
What is the period for enactment of the
annual budget (Re-enacted Budget)
• Under Section 323 of the LGC, If the sanggunian fails
to enact the annual budget after ninety (90) days
from the beginning of the fiscal year, the ordinance
authorizing the appropriations of the preceding year
shall be deemed reenacted and shall remain in force
and effect until the ordinance authorizing the proposed
appropriations is passed by the sanggunian
concerned.
• However, only the annual appropriations for salaries
and wages of existing positions, statutory and
contractual obligations, and essential operating
expenses authorized in the annual and supplemental
budgets for the preceding year shall be deemed
reenacted and disbursement of funds shall be in
accordance therewith.
Effectivity of Budget
• Section 320 of the LGC, provides that:
• The ordinance enacting the annual budget shall
take effect on the ensuing calendar year.
• An ordinance enacting a supplemental budget,
however, shall take effect upon its approval or on
the date fixed therein.
• The review of the budget by the sangguniang
panlalawigan is not a requisite for validity or
effectivity. (DILG Opinion No. 90-2000 dated 21 August 2000)
Supplemental Budget
• No ordinance providing for a supplemental budget
shall be enacted except:
• (a) when supported by funds actually available as
certified by the local treasurer, which shall refer to
the amount of money actually collected during a
given fiscal year that is over and above the realized
estimated income of that year; or
• (b) in times of public calamity by way of budgetary
realignment to set aside appropriations for the
purchase of supplies and materials or the payment
of services which are exceptionally urgent or
absolutely indispensable to prevent imminent
danger to, or loss of, life or property, in the
jurisdiction of the LGU or in other areas declared in
a state of calamity by the President. (Art. 417, IRR).
Intelligence Fund
• Section 325(h) of RA 7160 provides in part that
". . . annual appropriations for discretionary
purposes of the local chief executive shall
not exceed two percent (2%) of the actual
receipts derived from basic real property tax
in the next preceeding calendar year.
• Pursuant to DILG Memorandum Circular No.
99-65 to determine the amount to be utilized
for intelligence and confidential purposes, it
shall be based on the: (a) 30% of the peace
and order allocation, or 3% of the annual
appropriations, whichever is lower. "
• Q: May the Sanggunian modify or reduce a
local budget ordinance under review?
• A: YES.
• Expressly included in the sanggunian’s power to
review the local budget ordinance of a lower LGU
is the clipping power to disallow or reduce
accordingly and even declare the ordinance
inoperative in part or in its entirety if the
appropriations are found to be excess of the
amounts prescribed or if it does not comply with
budgetary requirements and limitations under the
law.
• DILG Opinion No. 101-1995 (August 31, 1995)
• Q: What are the grounds or questions that the reviewing
Sanggunian can use to assail a local budget under
review?
• A: Sec. 325, LGC
• The total appropriations, whether annual or supplemental,
for personal services of a local government unit for one (1)
fiscal year shall not exceed forty-five percent (45%) in the
case of first to third class provinces, cities and municipalities,
and fifty-five percent (55%) in the case of fourth class or
lower, of the total annual income from regular sources
realized in the next preceding fiscal year.
• The appropriations for salaries, wages, representation and
transportation allowances of officials and employees of the
public utilities and economic enterprises owned, operated,
and maintained by the local government unit concerned shall
not be included in the annual budget or in the computation of
the maximum amount for personal services.
• Q: What are the grounds or questions that the
reviewing Sanggunian can use to assail a local
budget under review?
• A: Sec. 325, LGC
• No official or employee shall be entitled to a salary rate
higher than the maximum fixed for his position or other
positions of equivalent rank by applicable laws or rules
and regulations issued thereunder;
• The creation of new positions and salary increases or
adjustments shall in no case be made retroactive; and
• The annual appropriations for discretionary
purposes of the local chief executive shall not
exceed two percent (2%) of the actual receipts
derived from basic real property tax in the next
preceding calendar year.
• Q: What are the grounds or questions that the reviewing
Sanggunian can use to assail a local budget under
review?
• A: Sec. 324, LGC
• The aggregate amount appropriated shall not exceed the
estimates of income;
• Full provision shall be made for all statutory and contractual
obligations of the local government unit concerned:
Provided, however, That the amount of appropriations for
debt servicing shall not exceed twenty percent (20%) of
the regular income of the local government unit
concerned;
• Five percent (5%) of the estimated revenue from regular
sources shall be set aside as an annual lump appropriation
for unforeseen expenditures arising from the occurrence of
calamities.
• Q: What are the restrictions on disbursement of Funds?
• A:
• SEC. 335. Prohibitions Against Expenditures for Religious or
Private Purposes. - No public money or property shall be
appropriated or applied for religious or private
purposes.
• SEC. 337. Restriction Upon Limit of Disbursements. Disbursements in accordance with appropriations in the
approved annual budget may be made from any local fund in
the custody of the treasurer, but the total disbursements
from any local fund shall in no case exceed fifty percent
(50%) of the uncollected estimated revenue accruing to
such local fund in addition to the actual collections: Provided,
however, That no cash overdraft in any local fund shall be
incurred at the end of the fiscal year.
• Q: What are the restrictions on disbursement of Funds?
• A:
• SEC. 338. Prohibitions Against Advance Payments. - No
money shall be paid on account of any contract under which
no services have been rendered or goods delivered.
• SEC. 339. Cash Advances. - No cash advance shall be
granted to any local official or employee, elective or
appointive, unless made in accordance with the rules and
regulations as the Commission on Audit may prescribe.
• SEC. 343. Prohibition Against Expenses for Reception
and Entertainment. - No money shall be appropriated,
used, or paid for entertainment or reception except to the
extent of the representation allowances authorized by law or
for the reception of visiting dignitaries of foreign
governments or foreign missions, or when expressly
authorized by the President in specific cases.
• Q: What are the restrictions on disbursement of
Funds?
• A:
• SEC. 344. Certification on, and Approval of, Vouchers. No money shall be disbursed unless the local
budget officer certifies to the existence of
appropriation that has been legally made for the
purpose, the local accountant has obligated said
appropriation, and the local treasurer certifies to the
availability of funds for the purpose.
• Vouchers and payrolls shall be certified to and
approved by the head of the department or office who
has administrative control of the fund concerned, as to
validity, propriety, and legality of the claim involved.
• Q: Can the local chief executive declare savings and
transfer it to augment other expenses (DAP)?
• A: NO.
• SEC. 336. Use of Appropriated Funds and Savings. Funds shall be available exclusively for the specific
purpose for which they have been appropriated.
• No ordinance shall be passed authorizing any
transfer of appropriations from one item to another.
• However, the local chief executive or the presiding
officer of the sanggunian concerned may, by
ordinance, be authorized to augment any item in the
approved annual budget for their respective offices from
savings in other items within the same expense class of
their respective appropriations.
• Q: How can the Sanggunian monitor that the funds
are properly disbursed?
• A:
• SEC. 346. Disbursements of Local Funds and
Statement of Accounts. - Disbursements shall be
made in accordance with the ordinance authorizing
the annual or supplemental appropriations without
the prior approval of the sanggunian concerned.
• Within thirty (30) days after the close of each
month, the local accountant shall furnish the
sanggunian with such financial statements as
may be prescribed by the Commission on AuditIn
the case of the year-end statement of accounts, the
period shall be sixty (60) days after the thirty-first
(31st) of December.
• Q: Who will be held liable for improper
disbursement of funds?
• A:
• "SEC. 340.
Persons accountable for Local
Government Funds. — Any officers of the local
government unit whose duty permits or requires the
possession or custody of local government funds shall
be accountable and responsible for the safekeeping
thereof in conformity with the provisions of this Title.
• Other local officers who, though not accountable by
the nature of their duties, may likewise be similarly
held accountable and responsible for local
government funds through their participation in the
use or application thereof ." (Emphasis supplied)
• Q: Who will be held liable for improper
disbursement of funds?
• A:
• SEC. 342. Liability for Acts Done Upon Direction of
Superior Officer, or Upon Participation of Other
Department Heads or Officers of Equivalent Rank. –
• Unless he registers his objection in writing, the local
treasurer, accountant, budget officer, or other
accountable officer shall not be relieved of liability for
illegal or improper use or application or deposit of
government funds or property by reason of his having
acted upon the direction of a superior officer, elective or
appointive, or upon participation of other department
heads or officers of equivalent rank.
• Q: Who will be held liable for improper
disbursement of funds?
• A:
• SEC. 342. Liability for Acts Done Upon Direction of
Superior Officer, or Upon Participation of Other
Department Heads or Officers of Equivalent Rank. –
• The superior officer directing, or the department
head participating in such illegal or improper use or
application or deposit of government funds or
property, shall be jointly and severally liable with
the local treasurer, accountant, budget officer, or
other accountable officer for the sum or property so
illegally or improperly used, applied or deposited.
Internal Oversight
Sanggunian Committees
• The manner of selecting the Chairman
and Members of various committees is
through election. (Sec. 50, LGC)
• The majority can prepare a list and the
sanggunian can vote to approve it,
provided this is indicated in the IRP.
• DILG Opinion No. 112-98 (09-07-1998)
Can the vice mayor chair a committee?
• NO.
• The vice-mayor may chair a special
committee created for a special
purpose (DILG Opinions Nos. 2431992; 156-1994) but cannot head a
regular committee. (DILG Opinions
Nos. 243-1992; 29-1993)
What is quorum?
• “A majority of all the
members of the sanggunian
who have been elected and
qualified shall constitute a
quorum to transact official
business…” (Section 53, LGC)
What is meant by “majority”?
• 50% plus one of the entire
membership of the sanggunian;
• The closest number to more
than one-half of the total
membership of the sanggunian;
(La Carlota City vs. Atty. Rex Rojo,
G.R. No. 181367, April 24, 2012)
Is the vice-mayor included in the
determination of quorum?
• Yes. The Vice Mayor is a member of
the sanggunian.
• He will thus be included in the total
number of sanggunian members for
purposes of determining quorum.
(DILG Opinion No. 28-2000, dated 17 April 2000;
La Carlota City vs. Atty. Rex Rojo, G.R. No.
181367, April 24, 2012)
Determining Quorum
• 19 members = 19/2 = 9.5 + 1 = 10.5
• The quorum for a sanggunian with
19 members is therefore “10”
• 11 members = 11/2 + 1 = 6.5
• The quorum for a sanggunian with
11 members is therefore “6” (DILG
Opinion No. 60-2004, dated 19 July
2004)
Vote Required in Sessions
• Ordinary measures shall be
decided by a simple majority of
the members present at any
meeting there being a quorum.
• (DILG Opinions Nos. 26-1996;
183-1994)
Two-Thirds (2/3) Vote Required
• Extending Loans or entering into
contracts;
• Issuance of bonds or securities;
• Authorizing the lease of public
property;
• Grant of franchises;
• Creation
of
LGU
liability
or
indebtedness; (DILG Opinion No. 1072003, dated 15 August 2003)
Two-Thirds (2/3) Vote Required
•
•
•
•
Over-ride the veto of the Mayor;
Grant of Tax exemptions;
Levy of taxes;
Discipline / suspend a member of the
sanggunian;
• Opening or closing of roads;
• Selection and transfer of gov’t site or
offices;
• Concurrence in the appointment of
personnel; (DILG Opinion No. 107-2003,
dated 15 August 2003)
Vice-Mayor as Presiding Officer
• Being the presiding officer of the council, a
vice-mayor is considered a regular member
of the local legislative council concerned,
(DILG Opinion Nos. 138, 342 - 1992; 81-1995)
• But a vice-mayor acting as mayor cannot
preside over the council until the mayor reassumes his/ her position since this will
violate the local separation of powers.
(Gamboa v. Aguirre)
• In such situation, the senior councilor may
preside. (DILG Opinions Nos. 142, 174 - 1994)
Presiding Officer as member
• As presiding officer, he can only vote to break
a tie;
• As a member, he may participate in the
deliberations, vote, sponsor or co-author a bill
or chair a special committee.
• He/ she may temporarily relinquish his/ her
chair -- as presiding officer -- to the majority
floor leader or to any sanggunian member.
(DILG Opinion No. 65-1995)
• If he will participate in the session as a
member, he may choose the temporary
presiding officer. (DILG Opinions Nos. 29, 132 1993)
Temporary Presiding Officer
• In case of temporary absence of the
presiding officer, the members present
and constituting a quorum shall elect
from among themselves a temporary
presiding officer.
• He shall certify within 10 days from the
passage of ordinances / resolutions
adopted by the sanggunian in the
session over which he temporarily
presided.(Art. 102-IRR, LGC)
Permanent vacancy: Presiding Officer
• In case of permanent vacancy in
the position of vice mayor, the
highest
ranking
sanggunian
member will succeed as vice
mayor /presiding officer.
• The vacancy shall be filled by the
other members of the sanggunian
in accordance to their ranking.
(Section 44, LGC)
Permanent vacancy: sanggunian
• In case the permanent vacancy was
caused by a member who belongs to a
political party, the party will nominate
and the president will appoint the
replacement;
• If he does not belong to any political
party, the other members of the
sanggunian will nominate and the
president
will
appoint
the
replacement. Section 45, LGC
Sanggunian Secretary
• The secretary to the sanggunian is a
career public official with rank and salary
equal to a head of a department. (DILG
Opinions Nos. 91, 253, 286 - 1992; 781995;)
• A
sanggunian
secretary
shall
automatically continue in office despite
the lapse of 3-year terms of elective
officials unless otherwise removed for
cause. (DILG Opinion No. 176-1992)
Appointment of Sanggunian Secretary
• It is the vice mayor, not the mayor,
who is authorized to appoint the
secretary to the sanggunian (CSC En
Banc Resolutions Nos. 94-7153
December 29, 1994, 92-111 August 20,
1992; DILG Opinions Nos. 348-1992; 7,
155, 236, 245 - 1993; 85-1995) with
the concurrence of the sanggunian
concerned. (DILG Opinion No. 8-1995)
Temporary vacancy: Mayor
• A mayor may designate in writing an
officer-in-charge (e.g. councilor, any
appointive official or employee) to assume
the office but only for three (3) days.
• On the 4th day, the vice-mayor assumes
the post regardless of the nature of the
absence of the mayor. (DILG Opinions Nos. 22,
30, 87-A - 1993; 52, 53 - 1994)
• Henceforth, the designation of the officer-incharge ceases. (DILG Opinion No. 87-A – 1993)
Powers: Acting Mayor
• A vice-mayor acting as mayor possesses the
powers incidental to the office, including the
authority to solemnize marriages, during the
period of temporary incapacity
(DILG
Opinion No. 25-1994)
• An acting mayor can exercise the power
to appoint and to discipline only after the
lapse of 30 working days from the time
the mayor is temporarily incapacitated.
(CSC En Banc Resolution Nos. 94-0959 February 15,
1994, 94-6892 December 20, 1994)
Acting Mayor CANNOT:
• administer oaths (DILG Opinion No. 136-1994);
• the power to approve or disapprove ordinances
and resolutions enacted by the council (DILG
Opinion No. 149-1993);
• preside over council sessions (DILG Opinions
Nos. 270-1992; 142, 174 -1994);
• appoint, suspend or dismiss employees within
30 days except when the cause of the
temporary incapacity of the mayor is suspension
for more than 30 days.
Is the signature of the Vice mayor on an
enacted ordinance necessary?
• No. Section 469 (c)(3) of the LGC
provides that enacted ordinances
must be certified by the presiding
officer before they are submitted
to the mayor for his approval.
• However, any presiding officer
may certify an enacted ordinance.
(DILG Opinion No. 16-2005, dated 15 Feb. 2005)
May an ordinance become valid even
without the signature of the mayor?
• Yes. If he fails to act on an
ordinance submitted to him for
his review within 10 days from
his receipt thereof;
• When the sanggunian overrides
the veto of the mayor by 2/3 vote.
(DILG Opinion No. 22-2003, dated 27 Feb. 2003)
OVERSIGHT ON
POLICE POWER
• Q: Can the Mayor be compelled by writ of Mandamus to
issue a business permit?
• A: NO.
• A mayor cannot be compelled by mandamus to issue a
business permit since the exercise of the same is a
delegated police power hence, discretionary in nature.
• Section 444(b)(3)(iv) of the Local Government Code of
1991, whereby the power of the respondent mayor to issue
license and permits is circumscribed, is a manifestation of
the delegated police power of a municipal corporation.
• Necessarily, the exercise thereof cannot be deemed
ministerial. As to the question of whether the power is validly
exercised, the matter is within the province of a writ of
certiorari, but certainly, not of mandamus.
• RIMANDO V. NAGUILAN EMISSION TESTING CENTER,
G.R. NO. 198860. JULY 23, 2012
SAMPLE PROBLEM
An aggrieved resident of the City of Manila
filed mandamus proceedings against the city
mayor and the city engineer to compel these
officials to remove the market stalls from certain
city streets which they had designated as flea
markets.
Portions of the said city streets were leased or
licensed by the respondent officials to market
stallholders by virtue of a city ordinance. Decide
the dispute.
Suggested Answer:
The petition should be granted.
In accordance with Macasiano v.
Diokno. 212 SCRA 464 [1992], since
public streets are properties for public
use and are outside the commerce of
man, the City Mayor and the City
Engineer cannot lease or license
portions of the city streets to market
stallholders.
May an LGU prescribe a central terminal for
public utility vehicles within its territory?
• No. Since the compulsory use of the
terminal would subject the users thereof
to fees, rentals and charges, such
measure is unduly oppressive.
• Lucena Grand Central Terminal, Inc. v.
JAC Liner, Inc., 452 SCRA 174 (2005)
May an LGU regulate the subscriber rates charged by
CATV operators within its territorial jurisdiction?
• No. Regulation of CATV subscriber
rates is lodged in the NTC, not LGU’s.
• LGUs, likewise, have no authority to
grant franchises for such undertakings.
• Batangas CATV, Inc. v. Court of
Appeals, 439 SCRA 326 (2004)
May an LGU enact an ordinance to phase out
motels, night clubs, and other establishments to
protect public morals?
• NO. Businesses may only be regulated but
cannot altogether be prohibited.
• Simply because there are no ‘pure’ places
where there are impure men.”
• That these motels and clubs are used as
venues for prostitution is of no moment.
sexual immorality may take place in the most
innocent of places
• City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)
May an LGU regulate the short time periods and wash rates
of motels, to protect public morals?
• NO. “Individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands
of public interest or public welfare.
• However well-intentioned the Ordinance may be, it is in
effect an arbitrary and whimsical intrusion into the rights of
the establishments as well as their patrons.
• The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights
of their patrons without sufficient justification.
• The Ordinance rashly equates wash rates and rentingout a
room more than twice a day with immorality without
accommodating innocuous intentions.
• White Light Corp., vs. City of Manila, 576 SCRA 416 (2009)
May an LGU validly use public funds to undertake the
widening, repair and improvement of the sidewalks of
a privately-owned subdivision?
• In May 1999, the City of Marikina undertook a public works
project to widen, clear and repair the existing sidewalks of
Marikina Greenheights Subd.
• It was assailed as an illegal use of public funds.
• The SC ruled that subdivision streets belong to the owner
until donated to the government or until expropriated upon
payment of just compensation.
• The use of LGU funds for the widening and improvement of
privately-owned sidewalks is unlawful as it directly
contravenes Section 335 of RA 7160.
• Albon v. Fernando, 494 SCRA 141 (2006)
LGU Power to Grant License to Cockpits
• It is the sanggunian bayan concerned alone which has the
power to authorize and license the establishment, operation
and maintenance of cockpits, and regulate cockfighting and
commercial breeding of gamecocks within its territorial
jurisdiction.
• Nevertheless, while the sanggunian retains the power to
authorize and license the establishment, operation, and
maintenance of cockpits, its discretion is limited in that it
cannot authorize more than one cockpit per city or
municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two
cockpits may be established.
• Tan v. Pereña, 452 SCRA 53 (2005)
Can the Governor Issue Small-Scale Mining Permits?
• NO. Pursuant to Republic Act No. 7076, which took effect on
18 July 1991, approval of the applications for mining permits
and for mining contracts are vested in the Provincial/City
Mining Regulatory Board.
• Composed of the DENR representative, a representative
from the small-scale mining sector, a representative from the
big-scale mining industry and a representative from an
environmental group, this body is tasked to approve smallscale mining permits and contracts.”
• Considering that the governor is without legal authority to
issue said mining permits, the same permits are null and
void.”
• Calanza v. Paper Industries Corporation of the
Philippines (PICOP), 586 SCRA 408 (2009)
Consultation and Sanggunian
Approval for Infrastructure projects
27 – Prior Consultations
Required --- No project or program
shall be implemented by government
authorities unless the consultations
mentioned in Sections 2(c) and 26
hereof are complied with, and prior
approval
of
the
sanggunian
concerned is obtained…”
• “Section
Can a Sanggunian prohibit the
operation of Lotto in their LGU?
• NO. Section 27 of the LGC applies only to national
programs and/or projects which are to be
implemented in a particular local community.
• Lotto is neither a program nor a project of the
national government, but of a charitable institution,
the PCSO.
• Besides, the PCSO charter is statute.
An
ordinance cannot amend or modify a statute.
• Lina vs. Pano, 364 1 SCRA 76 (2001)
If the MMDA seeks to establish a sanitary landfill
in an LGU, is the prior approval of the
Sanggunian Bayan required?
• YES. Section 27 of the LGC mandates two
requisites that must be met before a national
project that affects the environmental and
ecological balance of local communities can be
implemented: prior consultation with the affected
local communities, and prior approval of the project
by the appropriate sanggunian.
• Absent either of these mandatory requirements,
the project’s implementation is illegal.”
• Province of Rizal v. Executive Secretary, 477 SCRA 436 (2005)
Q: The Province of Aklan intends to develop the port
in Caticlan, is the prior approval of the Sanggunian
Bayan required?
• YES. “Section 27 of the LGC establishes the
duties of national government agencies and
provincial governments in the maintenance of
ecological balance, and requires them to
secure prior public consultation and
approval of local government units for the
projects described therein.
• Boracay Foundation, Inc. v. Province of
Aklan, G.R. No. 196870. June 26, 2012
EMINENT
DOMAIN
EMINENT DOMAIN
1. An expropriation suit is incapable of pecuniary
estimation. Barangay San Roque v. Heirs of Pastor,
334 SCRA 127 (2000)
2. Section 19 of the LGC requires an ordinance, not a
resolution, for the exercise of eminent domain.
Suguitan v. City of Mandaluyong, 328 SCRA 137
(2000)
3. A valid and definite offer to acquire the property is
necessary prior to the exercise of the power of
eminent domain. The offer must not be accepted.
Jesus is Lord Christian School Foundation, Inc. vs.
Municipality of Pasig, GR 152230, August 9, 2005
Procedure for Eminent Domain
•
•
•
•
•
The land must be a private property;
It must be for a public purpose;
There must be genuine necessity;
There must be a previous valid and
definite offer to buy the private property
in WRITING. It shall specify the
property sought to be acquired, the
reasons for the acquisition, and the
price offered.
The offer is denied or rejected;
Procedure for Eminent Domain
•
•
•
•
If the owner rejects the offer, the LGU can then
file a complaint for expropriation in the RTC.
The LGU must then deposit the amount
equivalent to 15% of the fair market value of
the property to be expropriated based on its
current tax declaration.
The LGU may then enter the property.
The Court will determine the amount of just
compensation for the property expropriated.
May an LGU expropriate a property for the benefit of a
specific homeowners association?
• NO. A local government unit cannot use the power of
eminent domain to expropriate a property merely for the
purpose of providing a sports and recreational facility to a
small group of persons, such as those belonging to
homeowners’ association.
• “Where the taking by the State of private property is done
for the benefit of a small community which seeks to have its
own sports and recreational facility, notwithstanding that
there is such a recreational facility only a short distance
away, such taking cannot be considered to be for public
use. Its expropriation is not valid.”
• Masikip v. City of Pasig, 479 SCRA 391 (2006)
May an LGU expropriate a property to provide a
right-of-way to a specific community?
• In this case, a barangay sought to expropriate private lands
to secure a right-of-way for residents of a subdivision.
• The SC declared that the failure of the subdivision owner to
provide an access road does not shift the burden to
barangay itself.
• To deprive the private persons of their property instead of
compelling the subdivision owner to comply with its
obligation under the law is an abuse of the power of eminent
domain and is patently illegal, which misuse of public funds
for a private purpose could amount to a possible case of
malversation.
• Barangay Sindalan, San Fernando, Pampanga v. Court
of Appeals, 518 SCRA 649 (2007)
May an LGU alter the zoning classification of a
portion of its territory and order the transfer of
businesses located therein?
• Yes. The power to establish zones for
industrial, commercial and residential uses is
derived from the police power itself and is
exercised for the protection and benefit of
the residents of a locality.
• Social Justice Society v. Atienza, Jr., 517
SCRA 657 (2007) and 545 SCRA 92 (2008)
• Q: May an LGU Reclassify an agricultural land to nonagricultural use?
• A: Yes. Under ARTICLE 38, IRR of LGC: — (a) A city or
municipality may reclassify agricultural lands through an
ordinance enacted by the sanggunian after conducting public
hearings for the purpose provided that there exists an
approved
zoning
ordinance
implementing
its
comprehensive land use plan.
• (b) Agricultural lands may be classified in the following
cases:
• (1) When land ceases to be economically feasible and
sound for agricultural purposes as determined by the
Department of Agriculture; or
• (2) Where the land shall have substantially greater
economic value for residential, commercial, or industrial
purposes as determined by the sanggunian.
• Q: May an LGU Reclassify an agricultural land to
non-agricultural use without limits?
• A: NO.
• ARTICLE 39. Limitations. — (a) Reclassification
shall be limited to the following percentage of the
total agricultural land area at the time of the
passage of the ordinance:
• (1) For
highly-urbanized
and
independent
component cities, fifteen percent (15%);
• (2) For component cities and first to third class
municipalities, ten percent (10%); and
• (3) For fourth to sixth class municipalities, five
percent (5%).
• Q: May an LGU Reclassify and convert an
agricultural land to non-agrcultural use without DAR
Approval?
• A: NO.
• It was held in the case of Chamber of Real Estate &
Builders Assoc. v. Sec. of Agrarian Reform, G.R. No.
183409 , 18 June 2010, that:
• Conversion and reclassification differ from each other.
Conversion is the act of changing the current use of a
piece of agricultural land into some other use as
approved by the DAR while reclassification is the act of
specifying how agricultural lands shall be utilized for
non-agricultural uses such as residential, industrial, and
commercial, as enacted by the Sanggunian.
• Q: May an LGU Reclassify and convert an
agricultural land to non-agrcultural use
without DAR Approval?
• A: NO.
• It was held in the case of Chamber of Real
Estate & Builders Assoc. v. Sec. of Agrarian
Reform, G.R. No. 183409 , 18 June 2010, that:
• A mere reclassification of an agricultural
land does not automatically allow a
landowner to change its use.
• He has to undergo the process of conversion
under DAR Rules before he is permitted to use
the agricultural land for other purposes.
TAXATION
• Q: What are the kinds of Local Tax
Ordinances?
• A:
• 1. Those imposing a fee or tax specifically
authorized by the Local Government Code for
the local government units to impose.
• 2. Those imposing a fee or tax not specifically
enumerated under the LGC or taxed under
the provisions of the NIRC or other applicable
laws (Sec. 186, LGC)
• Q: Who determines the legality or propriety of a
local tax ordinance or revenue measure?
• A: It is the Secretary of Justice who shall determine
questions on the legality and constitutionality of
ordinances or revenue measures.
• The appeal must be filed within thirty (30) days
from the effectivity of the tax ordinance.
• The Secretary of Justice has sixty (60) days from the
date of receipt of the appeal to issue a ruling;
otherwise, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction
(RTC).
• The appeal shall not have the effect of
suspending the effectivity of the ordinance. (Sec.
187 R.A. 7160)
• Q: What are the requisites of a valid tax ordinance?
• A:
• 1. The procedure applicable to local government
ordinances in general should be observed. (Sec. 187,
LGC)
• 2. Public hearings are required before any local tax
ordinance is enacted (Sec. 187, LGC)
• 3. Within 10 days after their approval, publication in full
for 3 consecutive days in a newspaper of general
circulation. In the absence of such newspaper in the
province, city or municipality, then the ordinance may be
posted in at least two conspicuous and publicly
accessible places (Sec. 188 & 189, LGC)
• Q: What is the effect if the tax
ordinance was not published in full
(only excerpts / summary)?
• A: The requirement of publication in full
for 3 consecutive days is mandatory for
a tax ordinance to be valid.
• The tax ordinance will be null and
void if it fails to comply with such
publication requirement. (Coca-Cola v.
City of Manila, G.R. No. 161893 June
27, 2006)
• Q: May LGU’s prescribe penalties for tax
violations?
• A: YES.
• 1. Limited as to the amount of imposable fine as well as
the length or period of imprisonment;
• 2. The Sanggunian is authorized to prescribe fines or
other penalties for violations of tax ordinances, but in no
case shall fines be less than P1,000 nor more than
P5,000 nor shall the imprisonment be less than one (1)
month nor more than six (6) months;
• 3. Such fine or other penalty shall be imposed at the
discretion of the court;
• 4. The Sangguniang Barangay may prescribe a fine of
not less than P100 nor more than P1,000. (Sec. 516,
LGC)
• Q: May LGUs grant exemptions?
• A: Yes. Local government units may,
through ordinances duly approved, grant
tax exemptions, incentives or reliefs
under such terms and conditions as they
may deem necessary. (Sec. 192, LGC)
• The power to grant tax exemptions,
tax incentives and tax reliefs shall not
apply to regulatory fees which are
levied under the police power of the
LGU.
• Q: What are the guidelines for granting tax
exemptions, incentives and reliefs? (Rules
and Regulations Implementing the LGC, Sec.
282[b])
• A:
• 1. Tax Exemptions and Reliefs
• a. May be granted in cases of natural
calamities, civil disturbance, general failure of
crops or adverse economic conditions such
as substantial decrease in prices of
agricultural or agri-based products;
• b. The grant shall be through an ordinance;
• Q: What are the guidelines for granting tax
exemptions, incentives and reliefs?
• A:
• c. Any exemption or relief granted to a type or
kind of business shall apply to all business
similarly situated;
• d. The same may take effect only during the
calendar year not exceeding 12 months as may
be provided in the ordinance; and
• e. In case of shared revenues, the relief or
exemption shall only extend to the LGU granting
such.
• Q: What are the guidelines for granting tax
exemptions, incentives and reliefs?
• A: For Tax incentives:
• a. Shall be granted only to new investments in the
locality and the ordinance shall prescribe the terms
and conditions therefore;
• b. The grant shall be for a definite period not
exceeding 1 calendar year;
• c. The grant shall be through an ordinance passed
prior to the 1st day of January of any year; and
• d. Tax incentive granted to a type or kind of
business shall apply to all businesses similarly
situated.
• Q: Does the LGU have the power
to adjust local tax rates?
• A: Yes, provided that the adjustment
of the tax rates be prescribed in an
ordinance but should not be oftener
than once every five (5) years, and
in no case shall such adjustment
exceed ten percent (10%) of the
rates fixed under the LGC. (Sec.
191, LGC)
LGU Power to Impose Franchise Tax
• In this case, Smart, contends that its telecenter in Davao City
is exempt from payment of franchise tax to the City, because
its franchise (R.A. No. 7294 [1992]) includes the clause “in
lieu of all taxes” (§9).
• Smart alleges that the “in lieu of all taxes” clause in its
franchise exempts it from all taxes, both local and national.
• The Local Government Code, which allowed the imposition
of franchise tax by LGUs, took effect 2 months ahead of
Smart’s franchise.
• The SC ruled that the ‘in lieu of all taxes’ clause applies only
to national internal revenue taxes and not to local taxes.
• Smart Communications, Inc. v. City of Davao, 565 SCRA
237 (2008)
• Q: Sample Problem:
• The Local Government Code took effect
on January 1, 1992. PLDT’s legislative
franchise was granted sometime before
1992. Its franchise provides that PLDT will
pay only 3% franchise tax to the BIR in
lieu of all taxes.
• The legislative franchise of Smart and
Globe Telecoms were granted in 1998.
Their legislative franchises state that they
will pay only 5% franchise tax to the BIR in
lieu of all taxes.
• Q: Sample Problem:
• The Province of Zamboanga del Norte
passed an ordinance in 1997 that imposes a
local franchise tax on all telecommunications
companies operating within the province.
• The tax is 50% of 1% of the gross annual
receipts of the preceding calendar year based
on the incoming receipts, or receipts realized,
within its territorial jurisdiction.
• Is the ordinance valid? Are PLDT, Smart and
Globe liable to pay franchise taxes to the
Province of Zamboanga?
• A: YES
• The ordinance is valid. The Local Government
Code explicitly authorizes provincial governments,
notwithstanding any law or other special law, to
impose a tax on business enjoying a franchise at
the rate of 50% of 1% based on the gross annual
receipts during the preceding year within the
province. (Section 137, LGC)
• PLDT is liable to the franchise tax levied by the
province of Zamboanga del Norte. The tax
exemption privileges on franchises granted before
the passage of the Local Government Code are
effectively repealed by the latter law. (PLDT v. City
of Davao, G.R. No. 143867, Aug. 22, 2002)
• A: While Smart and Globe’s franchises were enacted
after the Local Government Code, still Smart and
Globe are also liable to pay franchise tax to the
province.
• The SC ruled that the ‘in lieu of all taxes’ clause
applies only to national internal revenue taxes and
not to local taxes.
• The “in lieu of all taxes” clause in a legislative
franchise should categorically state that the
exemption applies to both local and national taxes;
otherwise, the exemption claimed should be strictly
construed against the taxpayer and liberally in favor of
the taxing authority. (Smart Communications, Inc.,
v. The City of Davao, G.R. No. 155491, Jul. 21,
2009)
Are local water districts exempt
from taxation?
• Yes. Under PD 198, local water districts
are tax exempt government-owned and
controlled corporations. (OGCC Opinion
Nos. 268-1995).
• Its employees, however, are covered by the
Civil Service Law.
• It is an offspring corporation of the local
government forming it, to operate basically
as a public utility for public service. (LWUA
Opinion September 21, 1995).
Are local water districts exempt from taxation?
• SEC. 46, PD 198. Exemption from Taxes. -
• A district shall (1) be exempt from paying income
taxes, and (2) shall be exempt from the payment
of (a) all National Government, local
government and municipal taxes and fees,
including any franchise, filing, recordation, license
or permit fees or taxes and any fees, charges or
costs involved in any court of administrative
proceeding in which it may be a party and (b) all
duties or imposts on imported machinery,
equipment and materials required for its operations.
(As amended by Sec. 20, PD 768)
May the Sanggunian investigate the
local water district?
• Yes. A local water district is a
government-owned
and
controlled
corporation. (OGCC Opinion Nos. 2681995).
Its employees, however, are
covered by the Civil Service Law.
• It is an offspring corporation of the local
government forming it, to operate
basically as a public utility for public
service. (LWUA Opinion September 21,
1995).
What may LGU’s collect from
local water districts
• “In-Lieu Shares. --- As an incident to the
acquisition of the existing water system of a
city, municipality, or province, a district may
enter into a contract to pay in lieu of taxes
on such utility plant, an annual amount not
exceeding three (3%) percent of the
district’s gross receipts from water sales
every year.” (Sec. 30-b, PD 198)
• Q: May the LGU impose “pass through” fees?
• A: NO.
• Pass through fees are TAXES, FEES, CHARGES
AND OTHER IMPOSITIONS UPON GOODS
CARRIED INTO OR OUT OF, OR PASSING
THROUGH the territorial jurisdiction of the LGUs in
the guise of a toll, charges for wharfage or others
taxes, fees, or charges in any form upon goods or
merchandise.
• Local ordinances imposing/collecting PASS
THROUGH taxes, fees or charges are
considered illegal and runs counter to Section 133
(e) of the Code. DILG LEGAL OPINION NO. 05912 (October 15, 2012)
• Q: May the LGU impose “pass through” fees?
• A: NO.
• "SECTION 133.
Common Limitations on the
Taxing Powers of Local Government Units. — Unless
otherwise provided herein, the exercise of the taxing
powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the
following:
• (e) Taxes, fees and charges and other
impositions upon goods carried into or out of, or
passing though, the territorial jurisdictions of
local government units in the guise of charges for
wharfage, toll for bridges or otherwise, or other taxes,
fees or charges in any form whatsoever upon goods
or merchandise;"
• Q: Are “pass through” fees the same as
toll fees?
• A: NO.
• Toll fees are legal. LGUs may regulate the
USE of its roads or other public facilities as
provided under Section 155 of the Code
through the imposition of toll fees or charges
thereon PROVIDED THAT THE ROADS
ARE FUNDED AND CONSTRUCTED BY
THE
LOCAL
GOVERNMENT
UNIT
concerned. [DILG LEGAL OPINION NO.
059-12 (October 15, 2012)]
• Q: What are toll fees?
• A:.
• SEC. 155. Toll Fees or Charges. — The sanggunian
concerned may prescribe the terms and conditions and fix
the rates for the imposition of toll fees or charges for the
use of any public road, pier or wharf, waterway, bridge,
ferry or telecommunication system funded and
constructed by the local government unit concerned:
Provided, That no such toll fees or charges shall be
collected from officers and enlisted men of the Armed
Forces of the Philippines and members of the Philippine
National Police on mission, post office personnel delivering
mail, physically-handicapped, and disabled citizens who are
sixty-five (65) years or older. When public safety and
welfare so requires, the sanggunian concerned may
discontinue the collection of the tolls, and thereafter the
said facility shall be free and open for public use."
• Q: The Sangguniang Bayan of Bamban, Tarlac
enacted an ordinance imposing regulatory fees on
all public and private haulers of garbage traversing
the roads of said municipality. Is this legal?
• A: Yes.
• Garbage is not considered “goods” within the purview
of Section 133 of the LGC.
• This is not also a pass though fee because no goods
are subjected to tax.
• This is a valid toll fee, provided that the imposition
applies only to ROADS THAT ARE FUNDED AND
CONSTRUCTED BY THE LOCAL GOVERNMENT
UNIT concerned. [DILG LEGAL OPINION NO. 007-12
(January 30, 2012)]
• Q: The Sangguniang Bayan of Carrascal,
Surigao Del Sur enacted Municipal Ordinance
No. 02-2012 imposing environmental hazard fee
on all commercial vessels loading mineral ores
within its municipal waters. Is this legal?
• A: Yes.
• This is not a pass though fee because what is
taxed is the commercial vessels’ loading of mineral
ores in order to regulate the environmental hazard
thereof.
• This is valid provided that there are specific acts of
regulation (like inspection, registration, and
monitoring) to justify the imposition. [DILG LEGAL
OPINION NO. 037-13 (November 21, 2013)]
Oversight on
Contracts
What are the conditions under which
a local executive may enter into a contract
in behalf of his government unit?
a. The local government unit must have the power to
enter into the particular contract.
a. Pursuant to Section 22(c) of the Local Government
Code, there must be a prior authorization by the
sanggunian concerned;
b. If the contract involves the expenditure of public
funds, there must be an appropriation therefore and a
certificate of availability of funds by the treasurer of
the local government unit.
c. The contract must conform with the formal requisites
of written contracts prescribed by law.
• Q: What documents must support the contract of sale
entered into by the LGU?
• A:
• Resolution of the sanggunian authorizing the local chief
executive to enter into a contract of sale. The resolution
shall specify the terms and conditions to be embodied in the
contract;
• Ordinance appropriating the amount specified in the
contract
• Certification of the local treasurer as to availability of funds
together with a statement that such fund shall not be
disbursed or spent for any purpose other than to pay for the
purchase of the property involved. (Jesus is Lord Christian
School Foundation, Inc. vs. Municipality of Pasig, G.R. No.
152230, August 9, 2005)
• Q: Can the Annual Budget be used as continuing
authority for the LCE to enter into contracts without
prior authorization from the Sanggunian?
• A: NO.
• Sec. 22 of the LGC states: “Unless otherwise provided in
this Code, no contract may be entered into by the local
chief executive in behalf of the local government unit
without prior authorization by the sanggunian
concerned.”
• Should the appropriation ordinance, however, already
contain in sufficient detail the project and cost of a capital
outlay such that all that the local chief executive needs to do
after undergoing the requisite public bidding is to execute
the contract, no further authorization is required, the
appropriation ordinance already being sufficient.
• Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008.
Basic Rules on Government Contracts
• The absence of any of the three legal
requirements
— an appropriation
law, a certificate of appropriation
and fund availability, and public
bidding — renders any contract
entered into by the government as void
from the beginning.
• Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book
V of the Administrative Code of 1987
First Requisite: Appropriation Law
• The Administrative Code of 1987 expressly prohibits
the entering into contracts involving the expenditure of
public funds unless two prior requirements are
satisfied.
• First, there must be an appropriation law authorizing
the expenditure required in the contract.
• Second, there must be attached to the contract a
certification by the proper accounting official and
auditor that funds have been appropriated by law and
such funds are available.
• Failure to comply with any of these two
requirements renders the contract void.
First Requisite: Appropriation Law
• Section 46, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:
• “SECTION 46.
Appropriation
Before
Entering into Contract. — (1) No contract
involving the expenditure of public funds
shall be entered into unless there is an
appropriation therefore, the unexpended
balance of which, free of other obligations, is
sufficient to cover the proposed expenditure;
2nd Requisite: Availability of Funds
• Section 47, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:
• “SECTION 47. Certificate Showing Appropriation to
Meet Contract. — … no contract involving the expenditure
of public funds by any government agency shall be entered
into or authorized unless the proper accounting official
of the agency concerned shall have certified to the
officer entering into the obligation that funds have been
duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the
current calendar year is available for expenditure on
account thereof…”
Effect of Non Compliance
• Section 48, Chapter 8, Subtitle B, Title I, Book V of the
Administrative Code of 1987 provides:
• “SECTION 48. Void Contract and Liability of
Officer. — Any contract entered into contrary to
the requirements of the two (2) immediately
preceding sections shall be void, and the officer
or officers entering into the contract shall be liable
to the Government or other contracting party for
any consequent damage to the same extent as if
the transaction had been wholly between private
parties.”
• Q: Is Public bidding required when LGUs
enter into contracts?
• A: Yes, in the award of government
contracts, the law requires competitive public
bidding. It is aimed to protect the public
interest by giving the public the best possible
advantages thru open competition. It is a
mechanism that enables the government
agency to avoid or preclude anomalies in the
execution of public contracts. (Garcia
vs.Burgos, G.R. No. 124130, June 29, 1998)
• Q: Can a municipal contract be
ratified?
• A: No, when the local chief executive
enters into contracts, he needs prior
authorization or authority from the
Sanggunian
and
not
ratification.
(Vergara vs. Ombudsman, G.R. No.
174567, March 12, 2009)
Oversight on
Appointments
What is the period for the Sanggunian to
concur on appointments?
• When an appointment is presented before the sanggunian
for its concurrence, that sanggunian is mandated to act
thereon within fifteen (15) days from the date of its
submission (Sec. 463, Ibid).
• The word "act" in said provision means either expressly to
concur or not to concur on the appointment upon
determining whether or not the appointee possesses all the
qualifications and none of the disqualifications for the said
office (DILG Opinion No. 40, s. 2000).
• For as long as the appointee possesses the required
qualifications and none of the disqualifications, it is a
ministerial duty which the law enjoins on the part of the
Sangguniang Panlalawigan to concur your appointment.
When is the appointment deemed effective?
• Appointment to a public office becomes
effective only once it is completed.
• The Supreme Court, in the case of Atty.
David B. Corpuz vs. Court of Appeals, et. al.,
G.R. No. 123989 dated January 26, 1998,
held that where the assent or confirmation of
some other offices or body is required, the
appointment may be complete only when
such assent or confirmation is obtained.
Hiring of Consultants
• Can the Mayor hire consultants for the
LGU without prior authorization by the
sanggunian?
• No. The hiring of a consultant requires the
execution of a consultancy contract or MOA
with a prescribed payment for the contracted
services by the LGU.
• Under Section 22 (c) of the LGC, the mayor
can neither enter into this contract nor hire
consultants without prior authorization from
the Sanggunian. (DILG Opinion No. 40-2003 dated 26 March
2003)
Can The Vice Mayor Hire Consultants
• Yes. But he must first be authorized by the
Sanggunian to enter into the Consultancy contract
(Section 22-C, LGC).
• Under Section 456 of R.A. 7160, there is no inherent
authority on the part of the city vice-mayor to enter into
contracts on behalf of the local government unit, unlike
that provided for the city mayor.
• Thus, the authority of the vice-mayor to enter into
contracts on behalf of the city is strictly circumscribed
by the ordinance granting it.
• The ordinance is valid only for a specific period and
with a specific contract. (ARNOLD D. VICENCIO VS. HON.
REYNALDO A. VILLAR, ET AL. , G.R. NO. 182069. JULY 3, 2012)
May LGU’s hire elected officials or government
employees as consultants?
YES. Pursuant to Section 2(a), Rule 11 of CSC Memo
Circular No. 40 dated 14 December 1998,
consultancy services are not considered
government services and no employer-employee
relationship exists between the LGU and the
consultant.
Thus, the position of consultant cannot be
considered as an appointment or designation in
any capacity to a public office or position. Also
the honorarium received from such consultancy
agreement cannot be considered double or
additional compensation since no employeremployee relationship exists. (DILG Opinion No.
26 s. 2001 dated 16 April 2001)
May LGU’s hire private counsel?
In the case of Ramos vs. CA (108 SCRA 728), the
Supreme Court declared that a private lawyer cannot
represent a local government unit even if the services
rendered was gratis.
Moreover, in the case of Edgar Mancenido, et. al., vs.
Court of Appeals (330 SCRA 419), the Supreme Court
stated that an LGU may only hire a private attorney
when the provincial fiscal is disqualified.
However, the LGU may hire a private lawyer as a legal
officer under a consultancy agreement, duly
approved by the local sanggunian. Such
sanggunian resolution will clothe him with the
authority to act as the legal officer of the LGU.
(DILG Opinion No. 26 s. 2004 dated 03 February 2004)
QUASI-JUDICIAL
POWERS OF THE
SANGGUNIAN
• Q: Where should an administrative complaint
against elective officials be filed?
•
• A: A verified complaint shall be filed with the
following:
• Office of the President – against elective official of
provinces, HUC, ICC, component cities.
• Sangguniang Panlalawigan – elective officials of
municipalities; and
• Sangguniang Panglunsod or Bayan – elective
barangay officials. (Sec. 61, LGC)
What are the grounds to discipline local officials?
• 1. Disloyalty to the Republic;
• 2. Culpable Violation of the Constitution;
• 3. Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of duty;
• 4. Commission of any offense involving moral
turpitude or an offense punishable by at least
prision mayor;
• 5. Abuse of Authority;
• 6. Unauthorized Absences for 15 consecutive
days (3 consecutive sessions);
• 7. Acquisition of foreign citizenship or status of
an immigrant in another country;
• 8. Such other grounds. (Section 60, LGC)
Power to Discipline
• A Sanggunian may only discipline erring
subordinate officials.
• A council cannot, by mere resolution, remove
a local chief executive.
Such power is
exercised by a higher council. (DILG Opinions
Nos. 281-1993; 38-1995)
• A vice-mayor, despite his/ her unauthorized
absences, remains to be vice-mayor and may
not be disciplined by his own Sanggunian.
(DILG Opinion No. 179-1994)
Contempt Powers of the Sanggunian
• A sanggunian cannot cite in contempt a
person who fails to appear before it since
there is no law which authorizes local
legislative councils from doing so. (DILG
Opinion No. 3-1994)
• Neither can it issue compulsory processes.
Thus, a local legislative council cannot
compel attendance in committee hearings.
(DILG Opinion No. 212-1993)
How should the Sanggunian try
disciplinary cases?
• Cases involving barangay officials must be
commenced by filing a formal notarized
complaint before the Sanggunian.
• The appropriate Committee will conduct a
preliminary study and its report will then be
heard by the whole Sanggunian.
• The Sanggunian will then conduct hearings.
• A Decision will then be prepared containing a
summary of the facts and the issues resolved.
(Malinao vs. Reyes G.R. No. 117618 March 29, 1996)
Procedures in disciplinary cases?
• Within 7 days after the complaint is filed,
the Sanggunian shall send a Notice to the
respondent requiring him to submit his
answer within 15 days from his receipt of
the Notice;
• The Sanggunian will then commence the
investigation within 10 days from receipt
of respondent’s answer. (Section 62, LGC)
Abuse of Authority as a ground for
disciplinary action
• Local
government
officials
who
pass
ordinances or resolutions which are contrary to
law may be disciplined for abuse of authority.
(DILG Opinion No. 90-1994)
• Local
officials
are
presumed
to
be
knowledgeable of existing laws. (OGCC Opinion
No. 093-1996 March 29, 1996)
• Incurring excessive cash advances constitutes
abuse of authority and/ or dishonesty. (DILG
Opinion No. 60-1994)
Gross Negligence as a ground for
disciplinary action
• Refusal of a mayor to honor and enforce
ordinances
duly
enacted
by
the
Sanggunian is gross negligence.(DILG
Opinion No. 181-1994)
• Failure to attend council sessions due to
members’ drinking sprees amounts to
gross negligence. (DILG Opinion No.
157-1994)
Gross Negligence as a ground for
disciplinary action
• The members of the sangguniang
panlalawigan may be disciplined if they
fail to act, on review, the ordinances
enacted by the sangguniang bayan.
(DILG Opinion No. 157-1994)
• A vice mayor who refuses to sign
ordinances approved by a majority of the
sanggunian is guilty of gross negligence
or abuse of authority (DILG Opinion
dated 28 June 2011).
Absences as a ground for
disciplinary action.
• Absence for more than 15 consecutive
days without the filing of a formal leave
of absence constitutes a ground for
disciplinary action.
• Travel abroad without due notice to the
council
constitutes
unauthorized
absence. (DILG Opinion No. 24-1993)
May the Sanggunian suspend a sanggunian
Secretary or other appointive official?
• No. The power to discipline
appointive officials is lodged with
the Civil Service Commission only.
• However, the local chief executive,
as head of agency, may impose
disciplinary sanctions on appointive
officials after due process. (DILG
Opinion No. 132-2003)
Preventive Suspension
• This is not a penalty.
• This may be imposed by the
Sanggunian
on
any
elected
subordinate official immediately
upon filing of the complaint even
before the answer is filed; (DILG
Opinion No. 132-2003)
Procedures for Preventive Suspension
• This may be imposed by the mayor /
governor upon recommendation by
the Sanggunian;
• Maximum of 60 days per case but
not exceeding 90 days suspension in
one year;
• The suspended official is deemed
automatically reinstated after the
period of suspension (Section 63,
LGC)
Preventive Suspension
• The authority of the local chief executives
(Governor/Mayor) to impose preventive
suspension is purely ministerial since the
disciplinary authority over erring municipal
or barangay elective officials is the
Sangguniang Panlalawigan, Sangguniang
Panlungsod or Sangguniang Bayan, as the
case may be.
• Hence, after the sanggunian shall have
determined the necessity to warrant the
imposition of preventive suspension, the
same only need to be implemented by the
local chief executive concerned. (DILG
Opinion No. 56-11, Sept. 2, 2011)
Salary During Preventive Suspension
• An elected official preventively
suspended from office shall receive
no salary during such suspension;
• But upon reinstatement, he shall be
paid full salary including all
emoluments accruing during such
suspension. (Section 64, LGC)
Penalty of Suspension
• An elected official may be suspended by the
Sanggunian for a period of not more than six
(6) months;
• This can only be imposed after due notice and
hearing;
• The investigation must be terminated within 90
days from the start of the proceedings.
• The sanggunian must decide the case within 30
days after the case is submitted for decision.
(Section 66, LGC)
Can a local sanggunian remove an
elected official of the LGU?
• NO. The Sangguniang Panlungsod or
Sangguniang Bayan cannot order the
removal of an erring elective barangay
official from office, as the courts are
exclusively vested with this power under
Section 60 of the Local Government Code.
• THE
SANGGUNIANG
BARANGAY
OF
BARANGAY DON MARIANO MARCOS vs.
MARTINEZ, G.R. No. 170626 March 3, 2008
• Q: What is the Doctrine of Administrative
Condonation?
• A:
• The rule that public official cannot be removed for
administrative misconduct committed during a
prior term, since his re-election to office operates
as a condonation of the officer’s previous
misconduct to the extent of cutting off the right to
remove him therefore.
• Note that this has no application to pending
criminal cases. (Aguinaldo v. Santos, G.R. No.
94115, Aug. 21, 1992)
• Q: When is subsequent re-election considered a
condonation?
• A: If the decision of the administrative disciplinary authority
penalizing the respondent local elective official had
become final and executory before the election, then the
principle of condonation for a misconduct during a prior
term will not apply.
• On the other hand, if the said adverse decision against the
respondent was not yet final and executory on the day of
election as for instance there was a timely and pending
appeal on said date, then the principle of condonation will
apply. (Malinao v Reyes, GR 117618 Mar.29, 1996)
• Note: Subsequent re-election cannot be deemed a
condonation if there was already a final determination of
his guilt before the re-election. (Reyes v. COMELEC, G.R.
No. 120905 March 7, 1996)
May the Sanggunian continue hearing a
case even after the respondent has been
re-elected to office?
• No. An administrative case becomes
moot and academic as a result of the
expiration of term of office of an elective
barangay official during which the act
complained of was allegedly committed.
• Further,
proceedings
against
the
respondent are barred by his/ her reelection. (Malinao vs. Reyes G.R. No.
117618 March 29, 1996)
May the Sanggunian hear a case involving
acts committed in a prior term?
• No. A public official cannot be
removed
for
administrative
misconduct committed during a prior
term since his re-election to office
operates as a condonation or
forgiveness
of
his
previous
misconduct. (Aguinaldo v. Santos) (DILG
Opinions Nos. 177-1992; 42, 107 - 1995)
May the Sanggunian hear a case when the
respondent already resigned?
• No. A Sanggunian loses jurisdiction
over administrative proceedings
against a barangay official who has
already resigned since official
relations have been terminated by
such act. (DILG Opinion No. 323-1992)
Signature of the Mayor
• The decision of the Sanggunian to suspend a
brgy. Official DOES NOT REQUIRE THE
SIGNATURE OF THE MAYOR TO BE VALID;
• The mayor, however, will be the one to
implement the penalty of suspension;
• The mayor cannot sit on the decision or refuse
to implement the suspension.
• If he does, he can be charged with abuse of
authority or dereliction of duty. (DILG Opinion
No. 14-2002; Opinion No. 9-2004)
May the Mayor veto a decision of
the sanggunian?
• The decision of the Sanggunian to
suspend a brgy. Official IS NOT A
LEGISLATIVE ACT. THEREFORE IT IS
NOT SUBJECT TO THE VETO POWER OF
THE MAYOR.
• The power to discipline brgy. officials is
an exercise of quasi-judicial power that is
exclusive to the sanggunian. (DILG Opinion
No. 19-2002; Opinion No. 9-2004)
Q. Is appeal available in administrative disciplinary cases?
A: It depends on the penalty imposed:
Appeal is available if the penalty is:
Demotion, Dismissal, or Suspension for more than 30 days or
fine equivalent to more than 30 day salary (P.D. 807, Sec.37
par [a]).
Appeal is not available if the penalty is:
Suspension for not more than 30 days
Fine not more than 30 day salary
Censure; Reprimand; or Admonition
Note: In the second case, the decision becomes final and
executory by express provision of law.
Motion for Reconsideration
• A brgy. Official suspended by the
Sanggunian may file a motion for
reconsideration – but this will not stay
the execution of the suspension.
• The decision of the sanggunian in
disciplinary
cases
is
immediately
executory even pending appeal. But the
reviewing authority may issue a stay
order pursuant to its review authority.
• The decision of the sanggunian bayan
may be appealed to the sangguniang
panlalawigan. (Section 66, LGC)
Stay of Execution
• The first sentence of Section 68 merely provides that
an "appeal shall not prevent a decision from becoming
final or executory."
• As worded, there is room to construe said provision as
giving discretion to the reviewing officials to stay the
execution of the appealed decision.
• There is nothing to infer therefrom that the reviewing
officials are deprived of the authority to order a stay of
the appealed order.
• The execution of decisions pending appeal is
procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the
authority to order a stay of execution, such authority
can be provided in the rules and regulations governing
the appeals of elective officials in administrative cases.
• Berces v. Guingona, G.R. No. 112099. February 21, 1995.
Q.
Will the filing of a Motion for Reconsideration or an
appeal stay the execution of a decision of the
Ombudsman in an administrative case?
Answer:
No.
Appeals from decisions of the
Ombudsman in administrative cases do not stay the
execution of the penalty imposed.
This is pursuant to Section 7, Rule III of the Rules of
Procedure of the Ombudsman which explicitly states that
an appeal shall not stop the decision from being
executory.
No vested right is violated because pending appeal the
appellant is considered as preventively suspended and
will be paid backwages in case he wins in his appeal.
(Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)