BIYAHEROS MART LIVELIHOOD ASSOCIATION, INC., COMPLAINANT, VS. BENJAMIN L. CABUSAO, JR., SHERIFF III, METROPOLITAN TRIAL COURT, BRANCH 68, PASIG, METRO MANILA, RESPONDENTS.

In a verified complaint filed with the Office of the Court
Administrator on 29 April 1993, the complainant, a domestic non-stock
corporation, charges the respondent sheriff with grave misconduct and serious
irregularity in the performance
of his official duties by accepting a “private job or undertaking as the
administrator/trustee of Biyaheros Mart owned by Mr. Jerry Chua.” The
complaint alleges that the respondent, as such administrator or trustee,
“spent most of his government time of the day in the Biyaheros Mart
premises exercising his powers and
function,” thus “clearly moonlighting as he is using government time
in the performance of his private business or undertaking” to the
prejudice of public service; that the respondent “instituted various
complaints for ejectment against members of Biyaheros Mart Livelihood
Association, Inc. before the Barangay Chairman of Malinao, Pasig, Metro Manila
and in pursuing the same used government time in attending various Barangay
hearings and confrontations”; and that the respondent “subsequently
instituted court actions for ejectment against various vendors/members of
Biyaheros Mart Livelihood Association, Inc. before the Metropolitan Trial
Court, Branches 69, 71, 72 of Pasig, Metro Manila as well as with the Regional
Trial Court, Pasig, Metro Manila, but in doing so he used his official time as
Sheriff of the Metropolitan Trial Court, Pasig, Metro Manila in personally
preparing various complaints and attending hearings and trials in courts as
well as following-up the result and development of said cases,” without
filing “the necessary leave of absence.”

In his Comment filed on 9 July 1993, the respondent admits that
he is the “trustee and/or administrator of Jer-Speedways Manpower and
Transport Services” or of Biyaheros Mart (now Pasig Fruits and Vegetables
Plaza)^[1]
but denies having spent or used government time in the performance of his
duties and functions as trustee or administrator whose “most taxing
activity” involves collection. He
alleges that activities at the Biyaheros Mart start at five o’clock and end at
exactly seven o’clock in the morning; that the confrontations before the
barangay captain were done on non-working days; that the ejectment suits were
covered by the Rules on Summary Procedure where there is no need for a
full-blown trial; that he never attended a single trial when he filed “a
string of cases” against certain stallholders of Biyaheros Mart; and that
“the result and development of cases were usually followed-up”
through telephone calls. He avers that
“it would be the height of naivette [sic] for the complainant to require
[him] to file a leave of absence whenever [he] attended hearings for cases …
filed at the different branches of the Metropolitan Trial Court because the
sala where [he] work[s] for (Branch 68) is also located in the same building
and at the same floor and is actually adjacent to the courtrooms where said
hearing are conducted”;^[2] and
that he prepared the various complaints and similar pleadings in the evening or
on non-working days. Finally, he claims
that the complainant has filed a similar complaint against him with the
Ombudsman and that the cases “are pure harassment suits filed by the
complainant on the belief that [he] may be cowed or intimidated by it.”

In the Resolution of 4 October 1993, we required the parties to
manifest if they would submit this case for resolution on the basis of their
pleadings, directed the respondent to immediately cease and desist from acting
as the administrator/trustee of the Biyaheros Mart (now Pasig Fruits and
Vegetables Plaza), and allowed the complainant to file a Reply to the
respondent’s Comment.^[3]

In his Manifestation and Motion for Reconsideration filed on 19
October 1993,^[4]
the respondent manifested that he is submitting this case for resolution on the
basis of the pleadings but moved for the reconsideration of the
cease-and-desist order because it is “improper, unjustified and
oppressive” considering that “just like many low-paid government
employees, [he] was constrained to engage in business and other source of
income as a way to augment his small salary of about P5,000.00 per month as
deputy sheriff to fully support his family.” He also reveals therein that
as a countercharge to the ejectment suits he had filed against four
stallholders of the Biyaheros Mart, the aggrieved parties filed fabricated
complaints against him for grave misconduct with the Ombudsman, for illegal
dismissal with the National Labor Relations Commission (NLRC), for perjury (3
cases) with the Office of the Provincial Prosecutor of Rizal, for grave threats
(2 cases) with the Metropolitan Trial Court (MeTC) of Pasig, and for grave
slander with the MeTC of Pasig.

In the Resolution of 15 December 1993, we denied with finality the motion to set aside the
cease-and-desist order and referred this case to the Office of the Court
Administrator for evaluation, report, and recommendation. In the meantime, the complainant filed its
Reply to the respondent’s Comment.^[5] The
respondent then filed a Rejoinder to the Reply.^[6]

In its Memorandum of 10 March 1994, the Office of the Court
Administrator submits the following evaluation, findings, and conclusion:

“It is to be noted that the respondent accepted his position
as administrator/trustee of Biyaheros Mart without seeking approval from this
Court.

Respondent admitted the fact that he is holding the position of an
administrator/trustee of Biyaheros Mart, which is a private entity, but
clarifies that he is performing his functions as such only after office
hours. However, his defense that he is
not using government time in doing his duties as an administrator of a public
[sic] entity is not tenable considering that there is a prohibition for all
officials and employees of the judiciary to engage directly in any private
business, vocation or profession even outside office hours. Administrative Circular No. 5, dated October
4, 1988 (re: Prohibition for All
Officials and Employees of the Judiciary to Work as Insurance Agents), clearly
provides that the provisions of Memorandum Circular No. 17, issued by the
Executive Department on September 4, 1986, which authorizes the heads of the
government offices to grant employees permission to engage directly in private
business, vocation or profession outside office hours, are not applicable to
officials and employees of the courts considering the express prohibition in
the Rules of Court and the nature of their work which requires them to serve
with the highest degree of efficiency and responsibility, in order to maintain
public confidence in the judiciary. The
said administrative circular likewise states that the entire time of Judiciary
officials and employees must be devoted to government service to insure
efficient and speedy administration of justice.

Moreover, in Circular No. 6, dated April 10, 1987, all Judges,
Clerks of Courts, and Sheriffs are disqualified to accept the position of
director or any other position in any electric cooperative and other
enterprises or to resign immediately from such position if already holding the
same.

The act of the respondent in accepting the position of an
administrator/trustee of a private entity and for continuously holding the same
for a considerable long period of time (since December 1991), aside from being
violative of the aforesaid circulars, can be properly called as ‘moonlighting.’
While ‘moonlighting’ is not normally considered as a serious misconduct, nonetheless,
by the very nature of the position held by the respondent, it obviously amounts
to malfeasance in office. Respondent,
in engaging in other irrelevant activities, failed to observe and maintain that
degree of dedication to the duties and responsibilities required of him as a
deputy sheriff (Mirasol Hipolito vs. Elmer Mergas, Deputy Sheriff, RTC, Branch
46, Manila A.M. No. P-90-412, March 11, 1991, per curiam).”

and recommends that:

“respondent Benjamin Cabusao, Jr.,
Deputy Sheriff, MeTC, Branch 68, Pasig, Metro Manila, be suspended from office
for a period of one (1) month without pay, effective immediately, with a stern
warning that a repetition of similar acts in the future will be dealt with more
severely and that he be directed to resign from his position as
administrator/trustee of Biyaheros Mart (now Fruits and Vegetables
Plaza).”

We find the foregoing evaluation, findings, conclusion, and
recommendation to be well taken. We
thus adopt them as our own.

We further note that the respondent admitted in his comment that
he appeared in court at the hearings of the ejectment cases during office hours
and that he did not secure any leave of absence on those occasions simply
because the sala where he holds office is “located in the same building
and at the same floor and is actually adjacent to the courtrooms” where
the hearings on the said cases were conducted by the different branches of the
MeTC. In addition to the cases which he
filed, he is himself facing several cases before the Ombudsman, NLRC,
Provincial Prosecutor of Rizal, and various branches of the MeTC, all of which
would necessarily require time and effort in the preparation of his defense and
his attendance during hearings.

We are not impressed by his plea that he was constrained to engage
in business to augment his “small salary of P5,000.00 per month.”
Government service demands great sacrifice. One who cannot live with the modest salary of a public office has no
business staying in the service. He is
free to seek greener pastures. The
public trust character of the office proscribes him from employing its
facilities or using official time for private business or purposes.

WHEREFORE, for misconduct and conduct prejudicial to the
best interest of the service, respondent BENJAMIN L. CABUSAO, JR. is hereby
SUSPENDED from office for a period of one (1) month without pay, effective on
the day following service on him of a copy of this decision, and STERNLY WARNED
that further commission of similar or related acts will be dealt with more severely. He is further DIRECTED to resign, within
three (3) days from such service, as administrator/trustee of Biyaheros Mart
(now Pasig Fruits and Vegetables Plaza) and to submit proof of his resignation
to this Court within a non-extendible period of five (5) days from such
resignation.

A copy of this decision shall be personally served by a process
server of the Office of the Court Administrator on the respondent.

SO ORDERED.

Bellosillo and Quiason,
JJ., concur.

Cruz, (Chairman), and Kapunan,
JJ., on official leave.

^[1]
In his Manifestation and Motion for Reconsideration filed on 19 October 1993,
the respondent clarified that Jer Speedways Manpower and Transport Services is
a business entity organized and existing under Philippine laws and owned and
operated by him. It is the appointed
administrator and trustee of the Pasig Fruits and Vegetables Plaza, a
franchised private market owned by Jerry Chua.

^[2]
Rollo, 83.

^[3]
Id., 111.

^[4]
Id., 113-117.

^[5]
Rollo, 129-134.

^[6]
Id., 167 et seq.