MARY SUSAN MAE P. TORRES, PETITIONER, VS. SPS. FILOLOGO C. FELIX & ANNIE L. FELIX, RESPONDENTS.

Torres versus Felix

The Case

This is a petition for review brought by Mary Susan Mae Paco Torres, the Municipal Engineer of Cabangan, Zambales, against the spouses Filologo and Annie Felix, who own a parcel of land along the shores of the South China Sea. The spouses complained to the Office of the Deputy Ombudsman for Luzon that Torres failed to issue a cease and desist order against a construction being undertaken on their property without a building permit. The case matters because it fixes the administrative liability of a local building official who knows of an unpermitted construction yet does nothing, and because it clarifies the Ombudsman's concurrent jurisdiction and the proper mode of appeal from its administrative decisions.

Procedural History

The spouses Felix filed a complaint before the Office of the Deputy Ombudsman for Luzon, charging Torres with grave misconduct and gross neglect of duty. The Office of the Deputy Ombudsman rendered a decision finding Torres guilty of simple neglect of duty and imposing suspension from work for three months without pay. Torres moved for reconsideration, but the motion was denied in an order dated May 29, 2014. Torres then elevated the matter to the Supreme Court by a petition for review under Rule 43 of the Revised Rules of Court, assigning errors against the Ombudsman's decision and order.

Facts

The spouses Felix own a parcel of land covered by a tax declaration, which they acquired by accretion, located along the shores of the South China Sea. On February 2, 2009, Billy Domil, acting on the orders of the spouses White, with the cooperation of several workers, commenced the construction of a residential building on that land. Upon learning of the construction, the spouses Felix sent a letter calling the attention of the Office of the Municipal Mayor of Cabangan, Zambales and of Torres, and inquired whether a building permit had been issued.

On February 24, 2009, Torres, acting as Municipal Engineer, wrote Filologo Felix admitting that as of that date no building permit had been issued for the construction. The spouses Felix repeatedly requested Torres to issue a cease and desist order against the spouses White, but no action was taken despite her full knowledge that the requirements of the National Building Code had not been complied with.

In her defense, Torres averred that she had written the District Engineer of the Department of Public Works and Highways for information on whether certain documents could be considered substantial compliance in lieu of the certificate of title; that she informed the counsel of Mitos White that no building permit could be issued without the required title; and that she told the counsel of the spouses Felix she could not issue a cease and desist order because the ownership issue was not within her jurisdiction. She added that when she later inspected the building, no construction was ongoing, so there was nothing to stop.

Issues

• Whether or not the Office of the Ombudsman erred in finding Torres guilty of simple neglect of duty and in ordering her suspension for three months without pay.
• Whether or not the proper remedy of the spouses Felix lay before the competent court because of a question of ownership, and whether or not they failed to exhaust administrative remedies.

Applicable Provisions

Section 301 of Presidential Decree Number 1096, the National Building Code of the Philippines, provides:

No person, firm or corporation, including any agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure or cause the same to be done without first obtaining a building permit therefor from the building official assigned in the place where the subject building is located or the building work is to be done.

This is the provision that made the construction illegal from the start and gave rise to Torres's duty to act.

Section 205 of the same decree provides:

The Building Official shall be responsible for carrying out the provisions of this Code in the field as well as enforcement of orders or decisions pursuant thereto.

This fixes on Torres, as building official, the duty to enforce the Code, which she failed to discharge.

Section 22, Rule XIV of the Omnibus Civil Service Rules and Regulations classifies simple neglect of duty as a less grave offense punishable by suspension for one month and one day to six months for the first offense, and dismissal for the second offense. This supplied the range within which the three-month suspension was imposed.

Ruling

On the first issue, the Court held that the Ombudsman did not err. Neglect of duty implies the failure to give proper attention to a task expected of an employee, arising from either carelessness or indifference. Torres knew that an illegal construction was being done on the property of the spouses Felix, that it had started without the required building permit, and yet she took no appropriate action to stop it. She should have issued a cease and desist order, since building permits are a condition precedent to all constructions, and she conducted no formal investigation. As Municipal Engineer she was bound to know the functions of her office. Her argument that she was not obliged to issue the order because the matter did not concern plans and specifications was untenable, because the authority to issue a work stoppage order is incumbent upon her under the implementing rules of the National Building Code. Since simple neglect of duty is a less grave offense and this appeared to be her first offense, the three-month suspension was correct.

On the second issue, the Court held that Torres was in a quandary, for going to court and exhausting administrative remedies involve two different fora and are inconsistent with each other. Exhaustion of administrative remedy was not applicable, because the Ombudsman has the power to investigate both elective and appointive officials, and this power to determine and impose administrative liability is not merely recommendatory but actually mandatory. The Court quoted with approval the rule that:

In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body where the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction.

Thus the filing of the case before the Ombudsman excluded other offices, and jurisdiction once acquired continues until the case is terminated.

Doctrine

A municipal engineer, as building official, is bound to enforce the National Building Code; when he or she knows that a construction has begun without the required building permit, the failure to investigate and to issue a work stoppage or cease and desist order constitutes simple neglect of duty, a less grave offense under the Civil Service Rules. The Ombudsman's power to determine and impose administrative liability is mandatory, not merely recommendatory, and the body first taking cognizance of a complaint acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. Exhaustion of administrative remedies does not apply where the Ombudsman has already taken cognizance of the complaint.

Disposition

The petition was denied for lack of merit and dismissed, so the spouses Felix prevailed and Torres's three-month suspension without pay stood.

Remember This

The one line to memorize: a building official who knows of an unpermitted construction and issues no work stoppage order is guilty of simple neglect of duty. Examiners use this case on the Ombudsman's mandatory and concurrent jurisdiction, and on the proper mode of appeal from its administrative decisions.