ACTING MAYOR LUCERO CORTES AND RICARDO VALENTIN, PETITIONERS, VS. FERNANDICO BARTOLOME, RESPONDENT.

Cortes versus Bartolome

The Case

This is a petition for review brought by Acting Mayor Lucero Cortes and Ricardo Valentin against Fernandico Bartolome, the Secretary of the Sangguniang Bayan of Piddig, Ilocos Norte. The respondent filed an action for mandamus and quo warranto after the Acting Mayor terminated his services. The case matters because it settles two questions every local government lawyer must know: whether a position in the non-career service still enjoys security of tenure, and whether an Acting Mayor may dismiss employees during the temporary incapacity of the elected Mayor.

Procedural History

Bartolome filed his action for mandamus and quo warranto before the Court of First Instance of Ilocos Norte, Branch Six, in Laoag City. After hearing on the merits, the trial court rendered judgment in his favor on December 8, 1976, declaring his termination illegal and void, ordering his reinstatement, the payment of back salaries from May 7, 1976 to the date of reinstatement, and attorney's fees of 700 pesos plus costs. The case was originally appealed to the Supreme Court on questions of law, and the petitioners were required to file a Petition for Review, which they did.

Facts

Generoso Aquino was the duly elected Municipal Mayor of Piddig, Ilocos Norte, in the 1971 general elections for a term of four years. By Letter of Instruction Number 356, elective officials were allowed to hold over until their successors were appointed or they were sooner removed. On December 31, 1975, at the expiration of the 1971 term, Mayor Aquino appointed Fernandico Bartolome, a civil service eligible, as Secretary of the Sangguniang Bayan effective January 1, 1976. The appointment was silent on whether it was permanent or temporary, and it was approved by the Civil Service Commission on May 11, 1976. Bartolome had been the Municipal Secretary of Piddig continuously since January 1, 1968, under an appointment characterized as non-competitive or unclassified.

It is undisputed that on January 1, 1976, there was no existing position of Sangguniang Bayan Secretary in the municipal organizational set-up, and no appropriation for it in the 1975-1976 budget, although the appropriation for Municipal Secretary was retained. Bartolome took his oath on February 1, 1976. On February 23, 1976, the Sangguniang Bayan passed a resolution creating the position as a vital position and another resolution revalidating his appointment. The Regional Director of the Department of Local Government and Community Development authorized the filling of the revalidated position on March 22, 1976.

Mayor Aquino was suspended on April 7, 1976 pending investigation of administrative charges, and petitioner Lucero Cortes was designated Acting Mayor, assuming office on April 13, 1976. On May 3, 1976, the Acting Mayor sent a letter terminating Bartolome's services for alleged deliberate refusal to cooperate with his administration. Meanwhile, petitioner Ricardo Valentin signed the minutes of the May 11, 1976 session as Acting Secretary and signed a communication as Municipal Secretary for the Acting Mayor. Bartolome then filed his action on May 31, 1976.

Issues

• Whether or not the appointment of the respondent as Secretary of the Sangguniang Bayan was valid.
• Whether or not the respondent, holding a position in the non-career service, enjoys security of tenure and may be removed only for cause.
• Whether or not the Acting Mayor had the power to terminate the respondent's services.
• Whether or not the respondent's recourse to mandamus and quo warranto was proper despite the principle of exhaustion of administrative remedies.

Applicable Provisions

Section 5 of Republic Act Number 2260, the former Civil Service Law, provides:

The following specific officers and employees shall be embraced in the non-competitive service: (f) secretaries of provincial, city and municipal boards or councils and secretaries of provincial governors, city mayors and municipal mayors.

This classifies the respondent's position in the non-competitive or unclassified service, which the petitioners invoke to argue that he served at the pleasure of the appointing authority.

Section 6 of Presidential Decree Number 807, the new Civil Service Decree, provides:

SEC. 6. The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff.

This provision defines the non-career service and identifies who belongs to it, which bears on whether the respondent was a confidential employee of the Mayor.

Section 36 of Presidential Decree Number 807 provides:

SEC. 36. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.

This is the protective mantle the Court applies to the respondent despite his non-career classification.

Section 17, paragraph 3 of Republic Act Number 6388, the Election Code of 1971, provides:

In the event of temporary incapacity of a local officer to perform the duties of his office on account of effective absence, sickness, suspension or any other temporary incapacity, the officer next in rank shall perform the duties and exercise the power of the officer temporarily incapacitated except the power to appoint, suspend or dismiss employees; Provided, That in the event said temporary incapacity or disability exceeds six months, the official assuming said office shall exercise all the prerogatives and power appurtenant thereto.

This provision, applied by analogy to the Acting Mayor, negates his claim of a power to remove.

Ruling

On the first issue, the Court held the appointment valid. A telegram of the Secretary of Finance showed that the position of Secretary of the defunct Municipal Council and that of Secretary of the Sangguniang Bayan was intended to be a continuing position, except that beginning January 1, 1976, a reappointment and a revalidation by the Sangguniang Bayan were necessary. Those requisites were met: the respondent was appointed on December 31, 1975 by the Mayor with competent authority, and his appointment was revalidated by the Sangguniang Bayan on February 23, 1976. Whatever defect there was initially was cured by the subsequent creation of the position and the revalidation, and the appointment became final upon approval by the Civil Service Commission.

On the second issue, the Court ruled that the respondent could not be dismissed without cause. He did not belong to the personal or confidential staff of the Mayor, because he was Secretary not of the Mayor but of the Sangguniang Bayan itself, which revalidated his appointment. The Court quoted Section 2212 of the Revised Administrative Code:

A municipal Secretary is the clerk of the municipal council (now 'Sangguniang Bayan') and performs such duties as the council shall by ordinance prescribe.

The fact that his position falls under the unclassified or non-career service does not remove him from the protective mantle of the Civil Service Law. Persons in the unclassified service are merely so designated because the nature of their work and qualifications are not subject to classification. Employees in the civil service, regardless of status, are entitled to security of tenure and cannot be removed at the mere caprice of the appointing power. Even granting that the appointment was coterminous with that of the Mayor, the Mayor's term had not yet ended; he was merely suspended.

On the third issue, the Court held that the Acting Mayor had no power of removal. Having served less than a month as Acting Mayor, he was bereft of the power to appoint, suspend or dismiss employees under the Election Code provision applied by analogy.

On the fourth issue, the Court held that mandamus and quo warranto were proper. The principle of exhaustion of administrative remedies need not be adhered to when the question is purely legal, when the act complained of was done without or in excess of jurisdiction, or when due process is clearly violated, as where the respondent was dismissed without any administrative charges or investigation.

Doctrine

Employees in the civil service, regardless of their status, are entitled to security of tenure and cannot be removed except for cause and after due process. The fact that a position falls under the unclassified or non-career service does not remove the holder from the protective mantle of the Civil Service Law. A Secretary of the Sangguniang Bayan is the clerk of that body, not a confidential employee of the Mayor, and so is not subject to removal at the latter's pleasure. An Acting Mayor designated during the temporary incapacity of the elected Mayor does not exercise the power to appoint, suspend or dismiss employees unless the incapacity exceeds six months. The principle of exhaustion of administrative remedies does not apply when the question is purely legal, when the act complained of was done without or in excess of jurisdiction, or when due process is clearly violated.

Disposition

The Supreme Court affirmed the judgment of the trial court, except for the elimination of the award of attorney's fees, since the Acting Mayor was sued in his official and not his personal capacity.

Remember This

Memorize this line: employees in the civil service, regardless of their status, are entitled to security of tenure and cannot just be removed at the mere caprice of the appointing power. Examiners use this case to test the non-career service and security of tenure, the distinction between a confidential staff member and an employee of the Sangguniang Bayan, and the limits on the powers of an Acting Mayor.