HURLEY D. SALIG, PETITIONER-APPELLANT, V. OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON, RESPONDENT-APPELLEE.
GALAPATE-LAGUILLES, J:
WHEREFORE, judgment is hereby rendered finding respondent Hurly D. Salig GUILTY of Grave Misconduct, Serious Dishonesty and violation of Section 8 of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. Respondent Hurley D. Salig is hereby meted the penalty of DISMISSAL FROM THE SERVICE with accessory penalties of Cancellation of Eligibility, Forfeiture of Retirement Benefits and Perpetual Disqualification for Re-employment in the Government Service pursuant to Section 10, Rule III, Administrative Order No. 07, as amended by Administrative Order No. 17 in relation to Section 25 of Republic Act No. 6770.
The Secretary of the Department of Environment and Natural Resources (DENR), Visayas Avenue, Quezon City, is hereby directed to implement this DECISION immediately upon receipt thereof pursuant to Section 7, Rule III of Administrative Order No. 07, as amended by Administrative Order No. 17 (Ombudsman Rules of Procedure) in relation to Memorandum Circular No. 1, Series of 2006 dated 11 April 2006, and to promptly inform this Office of the action taken hereon.
SO DECIDED.[3]
The facts follow.
On September 26, 2005, an unidentified person writing in the style of “Concerned Citizen of Cavite” sent a letter[4] to the Chairman of the Presidential Anti-Graft Commission, Constancia De Guzman, accusing Hurley D. Salig, then Officer-In-Charge – PENRO of Trece Martires, Cavite, of corrupt practices and amassing unexplained wealth. Considering that Salig was not a presidential appointee, the PACG indorsed the letter to the Office of the Ombudsman for appropriate action.[5] Believing that the letter warranted investigation, the Public Assistance and Corruption Prevention Office (PACPO) of the Office of the Deputy Ombudsman for Luzon conducted a lifestyle check against Salig, docketed as CPL-L-05-2245.
On June 27, 2007, Associate Graft Investigation Officer Lorna T. Sitjar submitted a Fact-Finding Report[6] recommending that an administrative proceeding for violation of Republic Act No. 1379 (Unexplained Wealth) be conducted against Salig. The said report contained the list of real properties and business interests of Salig and/or his family, as certified by various government agencies, which were summarized as follows:
1. Letter-reply from the LTO disclosed that PENRO Salig owns three (3) utility vehicles, to wit:
(a) MITSUBISHI STRADA 2006 MODEL
(b) HYUNDAI STAREX GOLD CRD 2005 MODEL; and
(c) MITSUBISHI-UTILITY VEHICLE 2002 MODELAnother vehicle, a HONDA CITY 1998 MODEL, is registered under the name of [Salig’s] wife, Mrs. Elenita Tamisin Salig;
2. The Office of the City Assessor, Calamba City, Laguna submitted two (2) Declarations of Real Property in the name of Spouses Salig, to wit:
(a) TD No. 04534- RESIDENTIAL LOT (168 square meters), acquired on April 26, 2000 for P117,600.00, covered by TCT No. T-461154, located at Sta. Cecilia Subdivision, Barangay Parian, Calamba City, Laguna; and
(b) TD No. 04898- RESIDENTIAL LOT (267 square meters), Block 3, Lot 6, Sta. Cecilia Subd., Barangay Parian, Calamba City, Laguna, with a Market Value of P1,629,175.25;3. The sworn Statement of Assets, Liabilities and Networth (SALN) of respondent Salig for the years 2002 to 2005 disclosed that he has a total networth of Five Million [pesos], more or less;
4. xxx
5. The records of the Department of Trade and Industry reveal that respondent’s wife, Elenita Tamisin Salig, is engaged in the following business ventures:
On the same date, Wilbert L. Candelaria, Director of PACPO-Luzon formally filed before the Office of the Deputy Ombudsman for Luzon (public respondent) a Complaint-Affidavit based on the facts set forth in the Fact-Finding Report. The case was docketed as OMB-L-A-0481-G. Subsequently, the public respondent directed Salig to submit his counter-affidavit, affidavit of his witness and other controverting evidence in support of his defense against the charges against him.[8]
Accordingly, on October 23, 2007, Salig filed his Counter-Affidavit (with Motion to Dismiss) arguing that his properties and family businesses were lawfully acquired. He explained that he obtained a Real Estate Loan in the amount of P3,102,699.05 from RCBC Savings Bank on September 30, 2003, as shown in the Certification[9] issued by the said Bank, in order “to pursue and make profitable the following business ventures:
- Twin-Queen Travel and Tours
- Salig Management and Consultancy Services
- Flawless Videoke Bar and Disco
- Flawless 2 Cafe Bar and Videoke
Salig contended that these businesses augmented their family income. As to the utility vehicles registered in his name, Salig also averred that these were acquired through car loans from various banks, such as RCBC Saving Bank,[10] Philippine National Bank[11] and EastWest Bank,[12] to support the car rental of their travel-and-tour business. As regards the real properties, Salig explained that the house and lot in Los Baños, Laguna was inherited from his parents while the property in Calamba City was acquired through a bank loan. Salig thus prayed that the complaint against him be dismissed for lack of merit or for insufficiency of evidence.
On March 26, 2012, the Office of the Deputy Ombudsman for Luzon rendered the assailed Decision, the fallo of which We have quoted at the outset, holding that the evidence against Salig clearly and convincingly proved that the latter acquired properties that were manifestly disproportionate to his salary and lawful income. According to the public respondent, this constituted Grave Misconduct “since the elements of corruption, clear intent to violate the law and flagrant disregard of established rule are present in the instant case.”[13] Salig was further held liable for violation of Section 8 of Republic Act No. 6713 and Dishonesty for his failure to declare in his SALN for the years 2002 to 2005 some of his properties and his wife’s business ventures and properties. For these reasons, Salig was dismissed from service.
Aggrieved, Salig filed a Motion for Reconsideration maintaining his innocence of the offense charged and averring that the severe penalty of dismissal is not warranted under the circumstances. He further posited that the public respondent should have dismissed the complaint outright for want of proper verification and certification against forum shopping, a mandatory requirement under the Rules of Procedure of the Office of the Ombudsman.
The public respondent was unconvinced and denied Salig’s Motion for Reconsideration in its Order[14] dated May 2, 2013. It ruled that Salig utterly failed to prove by substantial evidence the allegations in his Counter-affidavit. Also, the public respondent brushed aside the alleged procedural error because the complaint was filed by PACPO-Luzon, and not by an anonymous person, after conducting a records verification to determine whether there were existing or pending administrative cases filed against Salig. According to the public respondent, this substantially complied with the verification and certification of non-forum shopping requirements. According further to the public respondent, Salig was already estopped from raising this issue as he failed to do so at the earliest opportune time, such as when he filed his Counter-Affidavit.
In his unwavering quest for exoneration, Salig comes before Us through the instant Petition for Review alleging that:
1.THE COMPLAINT-AFFIDAVIT FILED AGAINST PETITIONER BY THE OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON THRU PACPO-LUZON WAS NOT VERIFIED AND DID NOT CONTAIN CERTIFICATION OF NON-FORUM SHOPPING WHICH IS A VIOLATION OF ADMINISTRATIVE ORDER NO. 07 OF THE RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN.
2. RESPONDENT COMMITTED (SIC) GRAVELY ERRED IN FINDING THAT PETITIONER WILFULLY AND MALICIOUSLY MADE UNTRUTHFUL STATEMENTS OF HIS SALN FOR THE YEARS 2002-2005.
3. RESPONDENT COMMITTED GRAVE ERRORS IN LAW IN FINDING THE DISMISSAL OF PETITIONER FROM SERVICE WITH ACCESSORY PENALTIES OF CANCELLATION OF ELIGIBILITY, FORFEITURE OF RETIREMENT BENEFITS AND PERPETUAL DISQUALIFICATION FOR RE-EMPLOYMENT IN THE GOVERNMENT SERVICE.[15]
The petition proffers both procedural and substantive issues. Anent the procedural aspect, petitioner Salig asserts that the complaint against him should have been dismissed outright for want of verification and certification against forum shopping.
We do not agree.
As aptly noted by the public respondent, the complaint-affidavit against Salig was initiated by the PACPO Luzon which is an integral component of the Office of the Deputy Ombudsman. Rule III, Section 3 of the Rules of Procedure of the Office of the Ombudsman authorizes the Ombudsman or his Deputy to order an administrative proceedings, on his initiative, against erring public officials, viz:
Section 3. How initiated. – An administrative case may be initiated by a written complaint under oath accompanied by affidavits of witnesses and other evidences in support of the charge. Such complaint shall be accompanied by a Certificate of Non-Forum Shopping duly subscribed and sworn to by the complainant or his counsel. An administrative proceeding may also be ordered by the Ombudsman or the respective Deputy Ombudsman on his initiative or on the basis of a complaint originally filed as a criminal action or a grievance complaint or request for assistance.
A reading of the above-cited provisions would ostensibly show that an administrative proceeding initiated by the Office of the Ombudsman does not require a Certificate of Non-Forum Shopping as the said requirement is necessary only in a written complaint filed by a complainant other than the said Office. Suffice it to state that the Office of the Ombudsman has capacity to verify whether there is a complaint, administrative or criminal, that is pending against a government official being investigated. Thus, We stamp with approval the following ratiocination of the public respondent:
It must be noted that the complainant in the instant administrative case is the PACPO-Luzon, which is part of the organizational unit of this Office. It must also be stressed that before the filing of the instant administrative case, the PACPO-Luzon had already made the records verification on June 26, 2007, pursuant to Office Order No. 008, Series of 2004, dated February 10, 2004, issued by then Deputy Ombudsman for Luzon Victor C. Fernandez, and it was found out that at that time, there is no existing or pending administrative case filed before this Office against the respondent/movant involving the same issues or subject matter. Considering that the instant complaint was filed after the verification was made advising that no similar case was filed against the respondent/movant before this Office, the requirement for a “Certificate of Non-Forum Shopping” is deemed satisfied.[16]
At any rate, any procedural irregularity in the complaint is deemed waived when Salig failed to raise the same seasonably in his Counter-Affidavit. Well-entrenched is the rule that no question will be entertained for the first time on appeal, or in the motion for reconsideration, unless it has been raised in the proceedings below as this would contravene the basic rules of fair play and justice.
As regards the substantive aspect of the case, Salig vehemently denies that he acquired his property and the business ventures of his family through illegal or unlawful means. He insists that he acquired real properties and several vehicles through bank loans and the businesses managed by his wife. The Ombudsman, however, ignored Salig’s explanation and held him liable for grave misconduct for allegedly amassing wealth that is manifestly disproportionate to his income and dishonesty and violation of Section 8 of Republic Act 6713 for his alleged failure to include all his properties and business interests in his SALN for the years 2002-2005.
We hold a different view and find partly in favor of petitioner Salig.
Grave Misconduct
Well-settled is the rule that for gross or grave misconduct to exist, there must be substantial evidence to prove the elements of corruption, clear intent to violate the law and flagrant disregard of established rule.[17] In the case of Largo v. Court of Appeals,[18] the Supreme Court categorically instructed that to constitute misconduct, the complained act or omission must have a direct relation and be linked to the performance of official duties, thus:
In Manuel v. Calimag, Jr., it was held that:
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: “Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer x x x. It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office x x x More specifically, in Buenaventura v. Benedicto, an administrative proceeding against a judge of the court of first instance, the present Chief Justice defines misconduct as referring ‘to a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer.”
x x x
In Salcedo v. Inting we also ruled –
It is to be noted that the acts of the respondent judge complained of have no direct relation with his official duties as City Judge. The misfeasance or malfeasance of a judge, to warrant disciplinary action must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of said judge. (Emphasis Ours; citations omitted)
More importantly, in Gupilan-Aguilar v. Office of the Ombudsman,[19] the Supreme Court applied the above-mentioned pronouncements and ruled that acquiring unexplained wealth and failing to include several properties in the SALNs do not amount to grave misconduct since the said acts do not deter the public official in the dispensation of his public function. It explained the raison d’être as follows:
Owning properties disproportionate to one’s salary and not declaring them in the corresponding SALNs cannot, without more, be classified as grave misconduct. Even if these allegations were true, we cannot see our way clear how the fact of non-declarations would have a bearing on the performance of functions by petitioner Aguilar, as Customs Chief of the Miscellaneous Division, and by petitioner Hernandez, as Customs Operations Officer. It is non-sequitur to assume that the omission to declare has served, in some way, to hinder the rendition of sound public service for there is no direct relation or connection between the two. Without a nexus between the act complained of and the discharge of duty, the charge of grave misconduct shall necessarily fail. (Emphasis Ours)
Accordingly, the public respondent erred in finding Salig guilty of grave misconduct.
Dishonesty and
Violation of Section 8
of RA 6713
Dishonesty, as juridically understood, implies the disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty or probity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. It is a malevolent act that puts serious doubt upon one’s ability to perform duties with the integrity and uprightness demanded of a public officer or employee.[20] It requires malicious intent to conceal the truth or to make false statements; otherwise, the government employee may only be liable for negligence, not for dishonesty.
It is true that the failure to file a truthful SALN puts in doubts the integrity of the officer and would normally amount to dishonesty. In fact, the filing of a complete and truthful SALN is mandated by the Constitution[21] to promote transparency in the civil service and operates as a deterrent against government officials bent on enriching themselves through unlawful means. One of the statutory measures that implement this constitutional mandate is Section 8 of RA 6713, also known as the Code of Conduct and Ethical Standards for Public Officials and Employees, viz:
Section 8. Statements and Disclosure. – Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
xxx
Likewise, RA 3019, also known as the Anti-Graft and Corrupt Practices Act was enacted in order to curb corruption in the bureaucracy. Section 7 thereof also requires full disclosure of the government employee’s statement of assets and liabilities, thus:
Section 7. Statement of assets and liabilities. — Every public officer, within thirty days after assuming office, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of department or Chief of an independent office, with the Office of the President, a true, detailed sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the fifteenth day of April following the close of the said calendar year. (As amended by RA3047, PD 677, January 24, 1978).
Based on the foregoing rules, the public respondent accused Salig that he did not include the following properties and business ventures in his SALNs:
A. Vehicles
- Hyundai Starex Gold CRD 2005 – not declared in the 2005 SALN
- Honda City 1998 – not declared in 2002- 2005 SALN
- Mitsubishi Adventure – not declared in the SALN for 2003
B. Real Properties
- House and Lot – Lot 6, Block 3 located in Cecilia Subdivision Calamba City, covered by Tax Declaration No. 04898 with market value P1,629,175.24 (acquisition cost/purchase price was not indicated) – not declared in 2002-2005 SALN
- Lot – Lot 4, Block 3 located in Cecilia Subdivision, Calamba City, covered by Tax Declaration No. 04534 with an acquisition cost of P117,600.00 – not declared 2002-2005.
C. Business Interests
- Salig Management Consultancy and Services 2005
- Twin-Queen Travel and Tours 2005
- Joval Billiard Hall 2002
We emphasized that mere misdeclaration in the SALN does not automatically amount to dishonesty.[22] Indubitably, malicious intent is an essential element in dishonesty and without which, the accused government employee or official cannot be declared guilty of the said offense. In addition, it is only when the accumulated wealth becomes manifestly disproportionate to the employee’s income or other sources of income and the public officer/employee fails to properly account or explain his other sources of income and acquisitions, does he become susceptible to dishonesty.[23]
We pore over the evidence on records and find that the element of intent on the part of Salig to commit serious dishonesty and malicious concealment of his assets were not substantially established. There is no quibble that Salig religiously filed his SALNs. A summary of his SALN for the period of 2002-2005 showed the following:
House and Lot in Los Baños House and Lot in Calamba City Lot in Bay Endeavor Mitsubishi Mitsubishi Adventure
2001
(2004)
(2004)Liabilities House and Lot Loand RCBC Car Loan RCBC GSIS Salary Loan Total Liabilities Net Worth Business Interests
Flawless Disco and Restaurant Tri E Lending
Flawless Disco and Restaurant Tri E Lending
Flawless Disco and Restaurant (Los Baños) Flawless Disco and Restaurant (Calamba) Tri E Lending
Flawless Disco and Restaurant (Los Baños) Flawless Disco and Restaurant (Calamba) Tri E Lending
Indeed, as regards the vehicles, it is true that the Hyundai Starex was not declared in Salig’s SALNs for the years 2002-2005 but there is no showing that it was done to defraud the government or to conceal unexplained wealth. Besides, there is no evidence indicating that the vehicle was acquired on the same period as the SALNs on record. The only basis of the public respondent in stating that Salig failed to declare the Hyundai Starex in his 2002-2005 SALNs was the letter dated November 29, 2006 from the Land Transportation Office verifying the items of vehicles registered in the names of the Salig and his wife, Elenita. The letter did not disclose the year that the said vehicle was registered in the name of Salig or the year in which he acquired the same. We cannot thus assume that Salig acquired the Hyundai Starex between 2002-2005 which would give rise to his duty to declare the same in his SALN in that given period. As to the Honda City 1998 model, the records show that it was registered to Elenita, and Salig explained that the same was not included in his SALN since it was already sold through a car broker. Anent the Mitsubishi Adventure, while it is correct that Salig failed to declare the same in 2003, however, his intent to conceal the same was negated when he declared it in his SALNs for 2004-2005.
We also go over Tax Declaration Nos. 04534 and 04898 which described the real properties covered therein as Lot 4 and Lot 6 of Block 3, respectively, of Sta. Cecilia Subdivision in Calamba City and were adjacent and contiguous to each other. Moreover, the acquisition cost of the property covered by TD No. 04534 was only P117,600.00 and while that of the property covered by TD No. 04898 was not indicated, its market value already amounted to P1,629,175.25. We notice that Salig’s SALNs described a house and lot in Calamba City under the column “Real Properties” with an acquisition cost of P7,000,000.00. The properties covered by TD Nos. 04534 and 04898 would ineluctably correspond to the property in Calamba City which Salig declared in his 2002-2005 SALNs. Simply put, Lots 4 and 6, Block 3 of Sta. Cecilia Subdivision are the same properties as the “Calamba property” that Salig declared in his SALNs although he did not specify therein that it consists of two lots. Hence, it is erroneous to state that these properties covered by TD Nos. 04534 and 04898 were undeclared.
Besides, it would be absurd to entertain the idea that Salig intended to conceal his wealth when on records he even bloated the value of his property. Also, if that was his intention altogether, he should not have included his property in Bay, Laguna in his SALN considering that the same was not yet registered in his name as indicated in the Certification dated November 29, 2006 of the municipal assessor of the area.[28]
In the same vein that We could not consider as dishonesty the failure of Salig to specify all the business ventures managed by his wife Elenita. It is very apparent in the face of his SALN that his wife, as an entrepreneur, was engaged in business or several businesses. By declaring the occupation of his wife as an entrepreneur, Salig professed his wife’s business interests although he failed to name all of them. As enunciated in Pleyto v. Philippine National Police Criminal Investigation and Detection Group:[29]
Neither can petitioner’s failure to answer the question, “Do you have any business interest and other financial connections including those of your spouse and unmarried children living in your house hold?” be tantamount to gross misconduct or dishonesty. On the front page of petitioner’s 2002 SALN, it is already clearly stated that his wife is a businesswoman, and it can be logically deduced that she had business interests. Such a statement of his wife’s occupation would be inconsistent with the intention to conceal his and his wife’s business interests. That petitioner and/or his wife had business interests is thus readily apparent on the face of the SALN; it is just that the missing particulars may be subject of an inquiry or investigation.
An act done in good faith, which constitutes only an error of judgment and for no ulterior motives and/or purposes, does not qualify as gross misconduct, and is merely simple negligence. Thus, at most, petitioner is guilty of negligence for having failed to ascertain that his SALN was accomplished properly, accurately, and in more detail.
In light of the foregoing, We cannot sustain the public respondent’s findings of grave misconduct and serious dishonesty against Salig for lack of substantial evidence of intent to deceive the authorities and conceal his other sources of income or any of the real properties in his and his wife’s names. Salig is only guilty of simple neglect for his failure to thoroughly fill out his SALN in accordance with Section 8 of RA No. 6713. Under the Revised Rules on Administrative Cases in the Civil Service,[30] Simple Neglect of Duty is a less grave offense punishable by suspension of one month and one day to six months for the first offense, and by dismissal from service for the second offense. Considering that this is Salig’s first offense, it is reasonable to impose upon him the penalty of suspension of six months without pay.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decision dated March 16, 2012 and Order dated May 2, 2013 of the Office of the Deputy Ombudsman for Luzon are MODIFIED to the effect that the findings of Grave Misconduct and Dishonesty against Hurley Salig are hereby SET ASIDE and in lieu thereof, the latter is hereby found guilty of Simple Negligence and shall suffer the penalty of suspension of six months without pay.
SO ORDERED.
Punzalan Castillo (Chairperson) and Paredes,[*] JJ., concur.
[*] Vice Justice Ramon A. Cruz per Office Order No. 228-14-ABR dated May 21, 2014
[1] Rollo, pp. 98-115.
[2] Id., pp. 24-32.
[3] Id., pp. 113-114.
[4] Id., p. 43.
[5] Id., p. 41.
[6] Id., pp. 38-40.
[7] Id., pp. 99-100.
[8] Order dated August 10, 2007. Id., p. 36.
[9] Id., p. 90.
[10] Id., p. 97.
[11] Id., p. 95.
[12] Id., p. 96.
[13] Id., p. 110.
[14] Id., pp. 27-35.
[15] Id., pp. 6-7.
[16] Id., pp. 29-30.
[17] Betguen v. Masangcay, 238 SCRa 473 (1994); Pleyto v. Philippine National Police Criminal Investigation and Detection Group, G.R. No. 169982, November 23, 2007.
[18] G.R. No. 177244, November 20, 2007.
[19] G.R. No. 197307, February 26, 2014.
[20] Gupilan-Aguilar v. Office of the Ombudsman, supra.
[21] Art. XI, Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.
[22] See Office of the Ombudsman v. Racho, G.R. No. 185685, January 31, 2011.
[23] Ibid.
[24] Rollo, pp. 59-60.
[25] Id., pp. 57-58.
[26] Id., p. 55-56.
[27] Id., pp. 53-54.
[28] Id., p. 70.
[29] Supra.
[30] Rule 10, Section 46 (D).