ARTURO M. ECIJA, LUZVIMINDA G. BIBAR, MEONILO C. REFORZADA, RICARDO M. EFREN AND ALFREDO P. CANONIGO, PETITIONERS, VS. OFFICE OF THE OMBUDSMAN (VISAYAS) AND RUSTICO B. BALDERIAN…
INGLES, G. T., J.:
Before this Court is a Petition for Review with Prayer for the Issuance of Temporary Restraining Order or Writ of Preliminary Injunction[1] filed by petitioners assailing the Decision[2] dated February 10, 2009 and the June 1, 2010 Order[3] of the Office of the Ombudsman (Visayas) in OMB-V-A-08-0055-B.
THE PARTIES
Petitioners Arturo M. Ecija, Luzviminda G. Bibar, Meonilo C. Reforzada, Ricardo M. Efren and Alfredo P. Canonigo are former employees of the Municipality of Tabontabon, Leyte[4] and are the respondents in OMB-V-A-08-0055-B[5].
Private Respondent Dr. Rustico B. Balderian was the former mayor of the Municipality of Tabontabon, Leyte and may be served with pleadings and court processes at Sto. Nino St. Poblacion, Tabontabon, Leyte.
Public Respondent Office of the Ombudsman (OMB) is impleaded in its nominal capacity and may be served with pleadings and Court processes at the Department of Agriculture RO8 Compound, M. Velez St., Guadalupe, Cebu City.[6]
THE ANTECEDENTS
Petitioners are former employees of the Municipality of Tabontabon, Leyte holding the following items:
- Arturo M. Ecija —- Municipal Budget Officer (SG-24)
- Luzviminda G. Bibar —- Municipal Treasurer (SG-24)
- Meonilo C. Reforzado —- Municipal Accountant (SG-11)
- Ricardo M. Efren —- Revenue Collection Officer (SG-7)
- Alfredo P. Canonigo —- Utility Worker (SG-4).[7]
Petitioners, together with former Mayor Priscila R. Justimbaste, Municipal Planning Officer Edgardo E. Cinco and Municipal Auditor Luz D. Yulo constituted themselves as members of the Bids and Awards Committee (BAC) of the Municipality of Tabontabon.[8] Concomitant to their functions as members of the BAC, petitioners received compensation in the form of an honorarium.[9]
On June 30, 2007, private respondent Rustico B. Balderian succeeded as Mayor of the Municipality of Tabontabon.[10] On January 30, 2008, A Complaint-Affidavit[11] for criminal and administrative charges was filed by private respondent against petitioners. The Complaint alleged that as members of the Bids and Awards Committee (BAC), respondents, during their incumbency received compensation in the form of BAC Honoraria contrary to the provisions of Republic Act 9184 (Government Procurement Act) and Republic Act 3019 (The Anti-Graft and Corrupt Practices Act).
The following amounts were received by petitioners:
Attached to the complaint are copies of the Allotment and Obligation Slips (ALOBS)[13] and payrolls[14] to support the disbursement.
On March 24, 2008, finding sufficient basis to proceed with the criminal/administrative investigation, the public respondent Office of the Ombudsman (Visayas) ordered petitioners to file their respective Counter-Affidavits.[15]
Petitioners on their behalf responded that they constituted themselves as members of the BAC pursuant to R.A. 7160, otherwise known as the Local Government Code of 1991 and Circulars from the Commission on Audit (COA), particularly the Government Accounting and Auditing Manual (GAAM). During their incumbency as BAC members, they were of the belief that R.A. 9184 otherwise known as Government Procurement Act and its implementing rules were not yet fully implemented.[16]
Petitioners denied any intention of violating R.A. 9184. They merely proceeded with the honest belief that the said law is not yet in effect. Petitioners manifest, assuming there were any procedural lapses or inadvertent misapplication of pertinent laws regarding the grant of their honoraria as BAC members and should the Commission on Audit disallow the same, they are willing to reimburse the amounts received.[17]
On February 10, 2009, the Office of the Ombudsman found substantial evidence against petitioners for administrative charges of Serious Dishonesty.[18]
In reaching the above conclusion, the Office of the Ombudsman looked into the Municipal Payroll[19] to determine the compensation of petitioners for the period of June 1-15, 2007. Viz:
|
NAME
|
Monthly Rate of Pay
|
Amount Accrued for the Period
|
|||
|
xxx
|
|||||
|
3.
|
Arturo M. Ecija
|
–
|
P17, 326.00
|
P8,663.00
|
|
|
4.
|
Luzviminda G. Bibar
|
–
|
14,874.00
|
7,437.00
|
|
|
5.
|
Meonilo C. Reforzado
|
–
|
7,374.00
|
3,687.00
|
|
|
6.
|
Ricardo M. Efren
|
–
|
6,288.00
|
3,144.00
|
|
|
7.
|
Alfredo P. Canonigo
|
–
|
4, 227.00
|
2,113.50
|
Pursuant to Section 15 of R.A. 9184[20], petitioners as members of the BAC are merely entitled to 25% of their basic monthly salary as their monthly honoraria in the following amounts:
Hence, for a period of five (5) months dating from January to May 2007, petitioners are only entitled to the following amounts:
The Office of the Ombudsman found no merit in petitioners’ claim that they were merely mistaken in thinking that the applicable law R.A. 9184 and its implementing rules were not yet implemented. The public respondent found petitioners’ claim that they had no intention of violating the law self-serving.
In holding so, public respondent declared that petitioners cannot feign ignorance on the effectivity of the law since it has been in existence from the time of its approval on January 2003 while Its Implementing Rules (IRR-A) took effect on October 8, 2003.
The public respondent likewise noted that by virtue of their work as public officials, they ought to have been aware of such development.
The Office of the Ombudsman also took note that as early as March 23, 2004, the Department of Budget and Management (DBM) has issued Budget Circular (BC) No. 2004-5 entitled “Guidelines on the Grant of Honoraria to Government Personnel Involved in Government Procurement” in relation with Sec. 15, R.A. 9184. In the said Budget Circular, the DBM identified the funding source for the BAC Members’ Honoraria.[23]
The public respondent likewise took notice of the issuance of Budget Circular No. 2004-5A amending the Budget Circular No. 2004-5. This time, the Budget Circular limited the payment of honoraria to procurement which involves competitive bidding. The OMB then observed that nothing in the records would demonstrate that petitioners received their honoraria in accordance with the guidelines above. Neither is there any showing that petitioners, as members of the BAC engaged in competitive bidding which would entitle them to an honoraria.[24]
The OMB also found peculiar the fact that petitioners each received an honorarium twice as much as the monthly salary appropriated for the municipal Mayor. Curious even to the OMB is the presence of petitioner Alfredo Canonigo in the composition of the BAC. Canonigo, holding the item of a utility worker, was receiving an honorarium sixfold his basic monthly salary.[25]
Thus, the public respondent disposed:
WHEREFORE, premises considered, finding substantial evidence that the administrative infraction of Serious Dishonesty has been committed, the following officials and employees of the Municipality of Tabontabon, Leyte are hereby meted the penalty of DISMISSAL FROM THE SERVICE with the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service:
1. Edgardo E. Cinco – Municipal Planning and Development Coordinator Arturo M. Ecija Luzviminda G. Bibar Municipal Treasurer Luz D. Yulo Municipal Auditor Meonilo C. Reforzado Municipal Accountant Ricardo M. Efren Revenue Collection Officer Alfredo P. Canonigo Utility Worker I xxx[26]
On the same day, the public respondent likewise resolved to file Informations with the Sandiganbayan against petitioners for five (5) counts of Violation of Sec 3 (e) of R.A. 3019, as amended.[27]
From the above Decision, petitioners filed an Omnibus Motion for Reconsideration[28] as well as a Supplemental Motion for Reconsideration.[29]
On June 1, 2010, the public respondent found no cogent reason to disturb its earlier Decision and denied the motions for reconsideration of petitioners.[30]
On August 12, 2010, petitioners wrote the Incumbent Mayor Priscila R. Justimbaste expressing their intent to return the honoraria they received while serving as BAC Members. In the said letter, petitioners proposed a payment scheme of two thousand pesos (P2,000.00) payable in eighteen monthly installments to commence on August 2010. Petitioners however qualified that such decision should not however be considered as an indication or admission of guilt on their part. [31]
As recourse to their failed Omnibus Motion for Reconsideration, petitioners now come before this Court armed with several grounds.
Petitioners assert, the February 10, 2009 Decision and June 1, 2010 Order of the Office of the Ombudsman (Visayas) are tainted with grave and serious errors which are contrary to evidence, law, and settled jurisprudence.
Petitioners assert that their act of receiving honoraria in accordance with the provisions of the Local Government Code and with the imprimatur of the Commission on Audit fail to constitute Serious Dishonesty. Petitioners stress, they have no deliberate intent to commit falsehood. In fact, they were candid enough to admit of their shortcoming in constituting themselves as members of the BAC under R.A. 7160.[32]
Petitioners emphasize that they merely relied in good faith in receiving their honoraria pursuant to the 1981 National Budget Circular (NBC) No. 338.[33] Petitioners argue, if NBC No. 338 were controlling, the honoraria they received would well be within the limit imposed.
Petitioners also raise that a representative of the COA was even present during the biddings conducted and did not object to the release of the honoraria to them.
Petitioners maintain that their actions were done in good faith without any ill motive to enrich themselves or willfully violate any existing laws.[34] Their good faith is demonstrated by the fact of return of the received honoraria.[35]
Petitioners argue that the penalty of dismissal is too severe for the unintentional lapses committed by them. Petitioners invoke their claim of lack of deliberate intent to commit falsehood and the number of years of service to the Municipality of Tabontabon to mitigate their liability.[36]
Petitioners also contest the finding of probable cause for violation of Section 3(e) of Republic Act 3019 hinging their protest on their lack of bad faith in committing the said acts.[37]
Thus, petitioners prayed, in the interim for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction to enjoin the assailed Decision.
Finally, petitioners pray that the assailed Decision and Order be reversed and set aside. In lieu thereof, a Decision be rendered dismissing the charges against them and order their reinstatement to their respective positions.[38]
On August 10, 2011, this Court resolved to deny petitioners’ application for a Temporary Restraining Order and/or Writ of Preliminary Injunction.
A Comment/Opposition dated June 17, 2013 was filed by Private Respondent Balderian. In his comment, private respondent insisted that no error was made by the public respondent in its findings and the penalty imposed.[39] Hence, Balderion prayed that the petition be denied for lack of merit.[40]
The public respondent Office of the Ombudsman, too filed its Comment[41] praying for the denial of the petition. It echoed the same arguments presented by the public respondent while adding that petitioners erred in assailing the criminal aspect of their charges before this Court.[42]
The OMB reiterated that petitioners opted to constitute themselves as BAC members in defiance of Republic Act No. 9184 and its implementing rules and regulations. As BAC members, they are tasked with the procurement of supplies for the Municipality. Given this responsibility, it is their duty to determine the applicable laws, rules and regulations on procurement. Thus, petitioners cannot feign ignorance on the evolution of laws pertinent to procurement.[43]
Public Respondent submits, in addition to the evidence on record, petitioners admitted that the honoraria they received were equivalent to fifty percent (50%) of their monthly salary. Their receipt of the disbursed amounts without any showing of compliance with DBM guidelines evinces their disposition to defraud the government.[44] Further, the alleged lack of disallowance by the COA on the release of the honoraria does not negate petitioners’ actions.[45]
Public Respondent submits, the act of returning the honoraria received is not an indication of good faith but a ploy to evade administrative sanctions. It may not be deemed as a voluntary act on their part for they were only compelled to return the same in view of the pending criminal cases before the Sandiganbayan and the Office of the Ombudsman’s Decision of dismissal from service.[46]
Finally, public respondent presents that petitioners erred in assailing the Resolution rendered by it in the criminal case docketed as OMB-V-C-08-0075-B. The appropriate remedy for appeals from decisions of the Office of the Ombudsman in criminal cases is a Petition for Certiorari under Rule 65 of the Rules of Court directly filed before the Supreme Court.[47] Hence, it is grave error for the petitioners to discuss before this Court the issue of lack of probable cause concerning their criminal case.[48]
Thus, the public respondent prays for the dismissal of the petition.
ISSUE
Whether or not the Office of the Ombudsman erred in issuing the February 10, 2009 Decision and the June 1, 2010 Order;
THE COURT’S RULING
The Supreme Court has too often declared that any act that falls short of the exacting standards for public office shall not be countenanced.[49] The Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.[50]
Petitioners stand indicted of administrative charges of Dishonesty.
Black’s Law Dictionary defines dishonesty as the “disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity.”[51]
In Civil Service Commission vs. Cayobit,[52] the Supreme Court described dishonesty as the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty. It is a serious offense, which reflects on the person’s character and exposes the moral decay which virtually destroys his honor, virtue and integrity.[53] Its immense debilitating effect on the government service cannot be overemphasized.
Petitioners have admitted receiving more than the monetary compensation allowed by law for their services as BAC members. Petitioners however deny any intentional appropriation for self-gain. Rather, they put up the defense of good-faith.
In common usage, the term “good faith” is ordinarily used to describe that state of mind denoting “honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious.” (Emphasis Original)[54]
We now ask, did petitioners act in good faith in appropriating for themselves the honoraria they received?
In Gabriel vs. Mabanta,[55] the Supreme Court held that good faith is actually a question of intention. Although this is something internal, We can ascertain a person’s intention by relying not on his own protestations of good faith, which is self-serving, but on evidence of his conduct and outward acts. Good faith is actually a question of intention.(Emphasis Original)
Putting petitioners’ conduct and outward acts to test, We find their claim of good faith to be self-serving. As observed by the public respondent, petitioners constituted themselves as BAC members; as a committee whose responsibility involves procurement, it is expected that the members which comprised it would be knowledgeable of the applicable laws relevant to it.
Petitioners constituted themselves in 2007. Republic Act 9184 became effective in 2003. Despite the four (4) years of effectivity of the law, petitioners claim they were unaware that the law had already become effective.
In appropriating for themselves the amounts received, petitioners assert they acted within the limits sanctioned by National Budget Circular (NBC) No. 338. It bears noting that petitioners did not find it curious at all to verify if a Budget Circular issued in 1981 might no longer be the controlling statute in the year 2007. As BAC members, these circumstances should have caught petitioners’ attention and spark interest to verify its current applicability.
Petitioners’ claim that if NBC No. 338. were applied, they would have been within the limit of no more than than 50% of their basic salary. However, the figures above fail to support their assertion.
The records show that petitioners each received P10,000.00 for April 2007 and P7,000.00 for May 2007. Comparing the amounts received with the basic salary of petitioners for the period of June 1-15, 2007, even if We peg the limit of their honoraria to 50% of their basic salary, it would appear that petitioners Bibar, Reforzado, Efren and Canonigo received more than half of their basic salary for April 2007. The same circumstance is repeated in the case of Reforzado, Efren and Canonigo for the month of May 2007.
From the foregoing, We find petitioners’ conduct and outward acts to be wanting of good faith. Not even petitioners’ restitution of the honoraria received be indicative of good faith. Although petitioners manifested their willingness to return any excess amount that may have been received, it was only after the public respondent’s assailed decision was promulgated that petitioners actually returned the amounts in question. If indeed petitioners were ignorant of the effectivity of R. A. 9184 and were willing to return their honoraria, they could have done so immediately upon being made aware of R. A. 9184’s implementation. Rather, petitioners waited for the public respondent’s verdict before deciding on restitution. As pointed out by the Office of the Ombudsman, petitioners merely did so on account of their criminal charges pending before the Sandiganbayan. If at all, the restoration was merely a ploy to avoid possible sanctions.
Ignorance of the law is not an excuse for everyone is presumed to know the law.Ignorantia legis neminem excusat.[56] If everyone is presumed to know the law, all the more reason that public servants such as petitioners may not be excused for being allegedly unaware of the effectivity of the law. In this case, not only are petitioners public servants, but they hold a unique position and are charged with the Municipality’s procurement system. By occupying such position, it must be assumed that petitioners possessed the necessary knowledge to properly function at their task.
Elementary is the rule that the findings of fact of the Ombudsman are conclusive when supported by substantial evidence and are accorded due respect and weight, especially when they are affirmed by the CA.It is only when there is grave abuse of discretion by the Ombudsman that a review of factual findings may aptly be made.[57]
From the foregoing We find no reason to depart from the rulings of the public respondent. It goes without saying that We too are in accord with the penalty imposed by the Office of the Ombudsman. Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, dishonesty is classified as a grave offense punishable by dismissal even for the first offense.[58]
Petitioners plea of a mitigating circumstance in consideration of their length of service and devotion to the service of the Municipal Government of Tabontabon.[59]
We are unpersuaded. Petitioners cannot invoke their supposed length of service to mitigate the imposable sanctions. The allegation of petitioners’ length of service remains to be unsubstantiated. In the present petition, petitioners merely alleged that “they have been in the service for a long time now, honestly devoted their life to serve the Municipal Government of Tabontabon and its people.”[60] In petitioners’ Memorandum of Authorities, they stated, “… the supreme penalty of dismissal from the service is too harsh as penalty for humanitarian and equitable reasons as well as the fact that there are several mitigating circumstances present in the instant case.”[61]
To support the above argument, petitioners cited several cases demonstrating the relaxation of the Supreme Court of the imposable penalty in consideration of the respondents’ length of service. While the cases cited may be noteworthy, We find the same not in all fours with the instant case.
In the case of Re: Administrative Case for Dishonesty Against Elizabeth Ting, Court Secretary I, and Angelita C. Esmerio, Clerk III, Office of the Division Clerk of Court,[62] the respondent Esmerio had served for 38 years while Ting’s length of service had reached 21 years.
In In Re: Irregularities in the Use of Logbook and Daily Time Records by Clerk of Court Raquel D.J. Razon, Cash Clerk Joel M. Magtuloy and Utility Worker Tiburcio Morales, MTC-OCC, Guagua, Pampanga[63], the Court took note of Razon’s 27 years in government service to mitigate to her liability.
In the case of Floria v. Sunga[64], in tempering the penalty imposed on Floria, the Supreme Court considered that she has been employed in the Court of Appeals for a period of 29 years.
In the case at bar, the records fail to disclose the number of years petitioners have served the Municipality of Tabontabon to merit the same treatment.
Dishonesty has always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office.[65] To rule otherwise would be to take lightly the acts committed and the damages consequent thereof. Having found petitioners guilty of the charges, the penalty of dismissal from service may not be considered too severe.
It cannot be stressed enough that public servants must be held at a higher standard for they are reposed of the public’s faith and confidence in the government. If We sustain the excuse of ignorance of the law and the lack of objection or disallowance from the COA, We would be encouraging a system that is doomed to fail. We would be developing a system of government tolerant of error. Restitution cannot undo the damage done to the interest of the people. The government is not a banking institution from which petitioners can simply take from and later propose for an installment plan of restitution if caught with an anomalous transaction. To simply dismiss petitioners’ actions as a mistake of fact or an error of judgment would lead to a precarious precedence and a culture cultivating corruption.
Finally, with regard to the raised issue of lack of probable cause in the criminal charges against petitioners, this Court shall decline to rule on the matter as We are without jurisdiction to act on it. It is the nature of the case that determines the proper remedy to be filed and the appellate court where such remedy should be filed by a party aggrieved by the decisions or orders of the Office of the Ombudsman. If it is an administrative case, appeal should be taken to theCourt of Appeals under Rule 43of the Rules of Court.If it is acriminalcase, the proper remedy is to file with theSupreme Court an original petition for certiorari under Rule 65.[66] (Italics Original)
WHEREFORE, premises considered, the Petition for Review is hereby DENIED for lack of merit. The Decision[67] dated February 10, 2009 and the June 1, 2010 Order[68] of the Office of the Ombudsman (Visayas) in OMB-V-A-08-0055-B are AFFIRMED.
SO ORDERED.
Maxino, P.A.A., and Francisco, R.C., JJ., concur.
[1] Rollo, page 3.
[2] Ibid. page 36.
[3] Id., page 83.
[4] Id., page 5.
[5] Id., page 4.
[6] Id.
[7] Supra, Note 4.
[8] Id., page 28.
[9] Id., page 31.
[10] Id., page 32.
[11] Id., page 205.
[12] Id., pages 177-178.
[13] Id., page 208.
[14] Id., page 208-219.
[15] Id., page 27.
[16] Id., page 29.
[17] Id.
[18] Id., page 43.
[19] Id., page 218.
[20] Section 15. Honoraria of BAC Members.-The Procuring Entity may grant payment of honoraria to the BAC members in an amount not to exceed twenty five percent (25%) of their respective basic monthly salary subject to availability of funds. For this purpose, the Department of Budget and Management (DBM) shall promulgate the necessary guidelines.
[21] Id., page 37.
[22] Id., page 37.
[23] 5.0 Funding Source
Agencies may retain fifty (50%) of their collections from:
-Sale of Bid Documents
-Fees from contractor/ Supplier Registry-Fees charged for copies of minutes of bid openings, BAC resolutions and other BAC documents;-Protest Fees;-Liquidated Damages; and-Proceeds from bid/performance security forfeiture.
[25] Id., page 41.
[26] Id., page 43.
[27] Id., page 53.
[28] Id., page 55.
[29] Id., page 73.
[30] Id., page 88.
[31] Id., page 89.
[32] Id., page 8.
[33] Officials and employees who are on assignment to more than one special project may be allowed to enjoy the honorarium of all those projects, provided, that the total amount received shall not exceed fifty percentum (50%) of their basic salaries (2.3.6 Section B.2.4.(3), National Budget Circular No. 338 dated February 23, 1981);
[34] Id., page 10.
[35] Id., page 11.
[36] Id., page 13.
[37] Id., pages 14-15.
[38] Id., page 16.
[39] Id., pages 169-170.
[40] Id., page 172.
[41] Id., page 182.
[42] Id., page 184.
[43] Id., page 187.
[44] Id., page 189.
[45] Id., page 193.
[46] Id.
[47] Id., page 198.
[48] Id., page 200.
[49] Pablejan v. Calleja, A.M. No. P-06-2102, January 24, 2006, 479 SCRA 562, 569.
[50] Sec. 1 of Article XI of the 1987 Constitution.
[51] Black’s Law Dictionary, 6th Ed. (1990).
[52] G.R. No. 145737, September 3, 2003, 410 SCRA 357.
[53] Prieto vs. Cariaga, 242 SCRA 315, 1995.
[54] Black’s Law Dictionary, sixth edition, 1990 at 693 (underscoring supplied), citing Efron vs. Kalmanovitz, 249 Cal.App. 187, 57 Cal.Rptr. 248, 251; Leung Yee vs. Frank L. Strong Machinery Co., 37 Phil. 644 (1918); Fule vs. Legare, 117 Phil. 368 (1963).
[55] G.R. No. 142403. March 26, 2003.
[56] Eduardo P. Manuel vs. People of the Philippines, G.R. No. 165842, November 29, 2005.
[57] Tolentino v. Loyola, G.R. No. 153809, July 27, 2011.
[58] Lily O. Orbase vs. Office Of The Ombudsman, G.R. No. 175115, 2009 December 23.
[59] Id., page 13.
[60] Id.
[61] Id., page 287.
[62] A.M. No. 2001-7-SC & 2001-8-SC, 22 July 2005, 464 SCRA 1
[63] A.M. No. P-06-2243, 23 September 2006, 503 SCRA 52, 62-63.
[64] 420 Phil. 637, 651, 2001.
[65] Nera v. Garcia, 106 Phil. 1031, 1035-36 (1960).
[66] Kuizon vs. Ombudsman Desierto, 354 SCRA 158 [2001]; Mendoza-Arce vs. Ombudsman, 380 SCRA 325 [2002].
[67] Ibid. page 36.
[68] Id., page 83.