IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE ON VIGOR D. MENDOZA II, BOARD MEMBER, LAND TRANSPORTATION FRANCHISING AND REGULATORY BOARD, DEPARTMENT OF TRANSPORTATION AND C…

This resolves the complaint filed with the Presidential Commission
Against Graft and Corruption (“PCAGC” or “Commission”) on November 3,
1998, by one Isagani C. Reyes, charging Vigor D. Mendoza II, a board
member of the Land Transportation Franchising and Regulatory Board
(LTFRB) and at that time its Officer-in-Charge, with violation of
Section 3(a), Republic Act (R.A.) No. 3019, as amended, and Section
4(c), R.A. No. 6713, for issuing a memorandum dated October 29, 1998,
under his sole signature, ordering the respective heads of the Technical
and Legal Divisions, LTFRB, to receive all PUB applications for
Certificate of Public Convenience (CPC) for routes entering Metro Manila
and to set for hearing all pending cases, contrary to the Board’s
existing moratorium policy thereon.

Finding sufficient basis to commence an administrative investigation
against respondent, the PCAGC issued an order dated November 11, 1998,
requiring him to file his answer/counter-affidavit.

On December 29, 1998, respondent filed his counter-affidavit averring the following:

1. The Memorandum in question is merely an internal office order
directed to the Board’s Legal and Technical Evaluation Divisions. It
merely formalizes a practice which is already being done even before he
sat in office.

2. There has been no amendment to the moratorium policy. It is very
much in place and effective. The questioned memorandum merely levels
the playing field and establishes equality in the treatment of
applications. (P. 25, Records)

3. After over a month in office, he noticed that some applications
for provincial bus routes entering Metro Manila have been treated
differently. There were some that were refused acceptance, others were
accepted but hearing was suspended, while others were heard and
eventually decided. All these were done despite the effectivity of the
moratorium policy. (Ibid.)

4. In order to establish transparency in the handling of these
cases and to afford all applicants the basic right of due process and
equal protection, he issued the questioned Memorandum. (Ibid.)

5. Considering that the Board has in effect amended its policy by
accepting, hearing and at times granting CPCs for certain cases, the
Memorandum merely formalizes this practice. (Ibid.)

6. In summary, being an internal office order, it was sell within
respondent’s authority, as OIC, to issue the questioned Memorandum. It
was not violative of any LTFRB or DOTC policy or circular as it never
opened any provincial route nor did it lift the moratorium policy in
Metro Manila. It merely formalized an ongoing practice and enforced the
constitutional rights of the applicants, whether big or small operators,
to due process and equal protection which can never be subservient to
any circular. It is not irregular nor illegal as the practice of the
Chairperson signing Office Orders by themselves have long been in place
and unquestioned. (p. 26, Records)

7. The questioned office order cannot be said to be advantageous to
anyone as no one was given a CPC by virtue of the order. It only gave
everybody the opportunity to be heard on the issue of the applicability
of moratorium policy to their respective cases. Once the explanation is
unjustified, however, the proceeding of the case are suspended. (Ibid.)

In its report, styled “Resolution”, the PCAGC stated as follows:

“The only issue in this case is whether or not the act of
respondent in issuing the memorandum in question, referred to as Memo
hereafter, violated RA No. 3019, as amended and RA No. 6713.

“Excepted from the coverage thereof were (a) applications for
extensions of validity for valid and subsisting CPCs; (b) applications
for approval of the sales and transfers of valid and subsisting CPCs;
(c) applications for CPCs on bus routes in Metro Manila other than EDSA
or any portion thereof determined by the DOTC, LTFRB and the MMDA as
still deficient in transport services and not traffic congested or
adversely affected by ongoing traffic rationalization policies, projects
and measures (P. 6, Records)

“Subsequently, in its . . . (MC) No. 97-009 dated August 6, 1998,
the LTFRB reimposed the aforecited moratorium ‘on the acceptance,
processing and resolution of all applications, including those pending,
for certificates of public convenience for the operation of buses in
Metro Manila and on provincial routes whether entering Metro Manila or
terminating outside the periphery of the metropolis, given the fact that
those issued CPCs terminating outside Metro Manila have been entering
Metro Manila as far as Cubao and other points inside Metro Manila and
also the difficulty of monitoring their operations to insure compliance
with the terms and conditions of their franchises.’ It was also provided
therein that the exceptions under MC-No. 95-013 shall remain. (Pp. 7
and 8, Records).

“The two (2) issuances involving policy matter were signed by
Board Chairman Dante M. Lantin and Board Member Nabor C. Gaviola (MC No.
95-013) and by all three Board Members (MC No. 97-009), the Board being
a collegial body.

“As respondent admitted in his counter-affidavit, there has been
no amendment to the moratorium policy of the Board under Memorandum
Circular Nos. 95-013 and 97-009 and ‘(It) is very much in place and
effective’.

‘Notwithstanding said admission, respondent still issued the memorandum in question under his sole signature.

“A closer look at said memorandum disclosed that whether it is an
internal office order or otherwise, its net effect is a policy change
effectively lifting the moratorium policy since the Board can now accept
applications for CPCs routes entering Metro Manila and hold hearings
for the pending applications for CPCs for said routes.

“Sec. 3 (a) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corruption Practices Act, provides as follows:

‘Sec. 3. Corrupt practices of public officers. — . . . , the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

‘(a) Persuading, inducing or influencing another public
officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority. . . .’

“Likewise, it is provided in Sec. 4 (c) of R.A. No. 6713,
otherwise known as the ‘Code of Conduct and Ethical Standards for Public
Officials and Employees’, to wit

‘Sec. 4. Norms of Conduct of Public Officials and Employees.
— (A) Every public official and employee shall observe the following as
standards of personal conduct in the discharge and execution of
official duties’

‘(c) Justness and sincerity — Public officials and employees x
x x shall refrain from doing acts contrary to law, good morals, good
customs, public policy, public order, public safety and public
interest.x.x.x.’

“Now, we shall peruse respondent’s justifications for issuing said memorandum.

“1. It merely formalizes an ongoing practice of the
board which refused to accept some applications, accepted others but
hearing was suspended, while others were heard and eventually decided
despite the effectivity of the moratorium.

“To support the foregoing, respondent cited the cases of Crow
Transport Services, Inc., vs. BLTB, et al. which were granted CPCs on
January 13, 1998 and April 2, 1998, respectively, when the moratorium
was in effect.) Pp. 34-49, Records)

“However, a reading of the Decision of the Crow case revealed that
one of the considerations thereof is the recommendation of the DOTC,
through Undersecretary Primitivo C. Cal, to give said application and other pending applications similarly situated favorable action.
(Underscoring supplied) This shows that the action thereof was in line
with the allowable exceptions under Memorandum Circular No. 95-013
rather than a disregard or effective amendment of the moratorium policy
as respondent alleged.

“2. As OIC, it was within respondent’s authority to issue the memorandum in question.

“The Copies of Board issuances that respondent annexed in his
counter-affidavit in support thereof (Pp. 30-32, Records), involved
routine procedures of established policies unlike the memorandum in
question in subject of which is in conflict with an existing moratorium
policy.

“3. To establish transparency in the handling of
these cases and afford all applicants the basic right of due process and
equal protection clause.

“The moratorium policy as provided in Memorandum Circular Nos.
95-013 and 97-009 is clear on its coverage and exceptions. If respondent
saw the need for transparency and due process, what he should have done
was to issue a memorandum enjoining strict adherence to the provisions
of the two memorandum circulars, if it was really his intention to keep
effective the moratorium policy.

“4. It was not a violation of any LTFRB or DOTC
policy as it never opened any provincial route nor did it lift the
moratorium policy.

“This is an idle, if not irresponsible, statement of respondent
because it is so bereft of truth. His memorandum, which was a direct
order to the heads of the Board’s Technical Evaluation and Legal
Divisions, effectively lifted the existing moratorium policy by opening
bus routes to Metro Manila through acceptance of applications for CPC
and holding of hearings therefor.

“5. It cannot be said to be advantageous to anyone as no one was given a CPC by virtue of the order.

“Respondent’s reason is beside the point. His precipitate action
in issuing the memorandum in question paves the way for a climate
favorable to the commission of graft to creep in as numerous bus
operators fight it out over the lucrative but congested Metro Manila
route, thereby compounding the already chaotic traffic situation
thereat.

“It is clear from the foregoing that respondent’s justifications
were far from plausible, much less credible, and that this act of
issuing under his sole signature the memorandum dated October 29, 1998,
which effectively amended an existing policy of the LTFRB, a collegial
body, was irregular and unlawful, and constitutes grave misconduct in
violation of Sec. 3 (a). R.A. No. 3019, as amended and Sec. 4 (c), R.A.
No. 6713.”

In the light of the foregoing considerations, the PCAGC recommended that the respondent be dismissed from the service.

After a careful review of the records of the case, I am inclined to
agree with the recommendation of the PCAGC and the premises upon which
it is based.

WHEREFORE, and as recommended by the Presidential Commission against
Graft and Corruption, respondent VIGOR D. MENDOZA II, Board Member,
Land Transportation Franchising and Regulatory Board, Department of
Transportation and Communications, is hereby DISMISSED from service,
effective upon his receipt of this order.

SO ORDERED.

Adopted: 23 Nov. 1999

By the President:

(SGD.) RONALDO B. ZAMORA
           Executive Secretary