ARMANDO F. CHAN, PETITIONER, VS. HON. SIMEON V. MARCELO, IN HIS CAPACITY AS OMBUDSMAN, ANTONIO A. ODEJERTE, BORONGAN, EASTERN SAMAR, DAVID P. ADONGAY, JR., AND VIRGILIO G. ALERI…

Chan versus Marcelo

The Case

This is a petition for review on certiorari brought by Armando Chan against the Ombudsman and several officials of the Department of Public Works and Highways of the Northern Samar Engineering District. Chan had charged these officials with grave misconduct and conduct prejudicial to the best interest of the service over a barangay sports facilities project, and when the Ombudsman provisionally dismissed his complaint, he sought relief in the Court of Appeals and then in the Supreme Court. The case matters for two reasons: it fixes the remedy for questioning an Ombudsman decision that exonerates a respondent, and it teaches that such a judgment of exoneration is final and unappealable, so that the only door left open is a petition for certiorari on the ground of arbitrariness or oppressiveness.

Procedural History

Chan filed an affidavit-complaint with the Office of the Ombudsman against District Engineer Antonio Odejerte, Assistant District Engineer Serafin Perez, Construction Section Chief David Adongay, Junior, and Assistant Construction Engineer Virgilio Aleria. After trial, the Overall Deputy Ombudsman approved a decision dated the first of March 2001 provisionally dismissing the complaint against Odejerte, Adongay, and Aleria, without prejudice to refiling depending on the result of a post-audit examination, and dismissing the complaint against Perez as moot and academic. Chan went to the Court of Appeals by a petition for certiorari under Rule 65. The Court of Appeals dismissed the petition in a decision dated the twenty-ninth of August 2002, holding that the proper remedy was a petition for review under Rule 43 and that, in any event, the petition was premature for lack of a motion for reconsideration before the Ombudsman. Chan's motion for reconsideration was denied in a resolution dated the twenty-fifth of July 2003. He then came to the Supreme Court by a petition for review on certiorari under Rule 45.

Facts

Chan alleged that public funds for a five-seater public toilet in Sitio Barikig, Barangay San Miguel, Lavezares, Northern Samar, were realigned to a barangay sports facilities project in Sitio Barikig, Barangay Urdaneta, of the same municipality. He claimed the realignment was irregular because the project site was the private property of Nonilon Ebdane and Moises Parane, as shown by tax declarations in their names. He also claimed that the project cost of 239,126 pesos and ninety-five centavos was excessive and unconscionable, since the work consisted of mere excavation and filling and was finished in fifteen days, or half of the contract period. Finally, he claimed that a photograph taken on the twenty-eighth of August 1998 showed the project did not exist, contrary to the Statement of Time Lapsed and Work Accomplished and the Certificate of Completion issued by Aleria, and the Certificate of Acceptance issued by Bienvenido Cagsawa, who was chairman of Barangay Enriqueta and not of Barangay Urdaneta.

The respondents answered that the realignment was supported by official documents, including a letter of a Department of Budget and Management undersecretary stating that the department did not object to it. They claimed the site was government property because Moises Parane had sold it to Raymundo Daza, who donated it to Barangay Urdaneta by a deed of donation in October 1997, accepted by Barangay Chairman Donato Parina. They explained that the contract covered only the first phase, limited to site development through excavation and filling, and that the cost reflected the volume of cutting and filling required by the topography. To prove completion and turnover, they presented photographs and a Certificate of Acceptance issued by Parina.

In his reply, Chan produced a second set of donation documents, also registered as Document Number 638, Page Number 27, Book Number II, Series of 1997, of the same notary, but materially different: his deed named Barangay Enriqueta as donee, cited a different barangay resolution, and showed acceptance by Cagsawa as chairman of Barangay Enriqueta. The two sets of documents thus conflicted on who the donee was.

Issues

• Whether or not the Court of Appeals committed grave abuse of discretion in upholding the Ombudsman's decision despite the alleged capricious and whimsical findings.
• Whether or not the Court of Appeals erred in ruling that certiorari under Rule 65 was not the proper remedy from the Ombudsman's decision.
• Whether or not the Court of Appeals correctly applied the rule that a petition for certiorari will fail unless a motion for reconsideration is first filed.

Applicable Provisions

Section 27 of Republic Act Number 6770, the Ombudsman Act of 1989, provides:

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.

This is the statutory anchor of the ruling: it makes certain Ombudsman decisions final and unappealable, and the Court reads exoneration into that class.

Section 7 of Rule III of Administrative Order Number 07, as amended by Administrative Order Number 17, provides:

Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable.

This rule expressly names absolution, confirming that a judgment of exoneration is immediately final and executory.

Ruling

On the second and third issues, which the Court resolved first, it held that the Court of Appeals was not entirely correct. Following its earlier ruling in Fabian versus Desierto, the Ombudsman had amended its rules so that a decision absolving the respondent is final, executory, and unappealable. The Court noted that exoneration is not mentioned in Section 27 as final and unappealable, but that its inclusion is implicit, for if a sentence of censure, reprimand, or one-month suspension is final and unappealable, so should exoneration be. Being final and unappealable, a judgment of exoneration is not correctible by motion for reconsideration. With more reason, it cannot be appealed by a petition for review under Rule 43. Nonetheless, settled jurisprudence allows a judgment exonerating the respondent to be questioned for arbitrariness or oppressiveness by a petition for certiorari under Rule 65. The remedy Chan took was therefore proper, and it was seasonably filed even without a prior motion for reconsideration, since no such prior recourse is allowed under the rule.

On the first issue, however, the Court found no merit. Chan did not question the dismissal as to Perez, and the Ombudsman had rejected the claims of overpricing and non-existence of the project. On overpricing, the Ombudsman held that the mere allegation, without supporting proof, must fail, and that a project completed ahead of time should be lauded rather than condemned. On existence, the Ombudsman relied on the Statement of Time Elapsed and Work Accomplished, the Certificate of Completion, the Certificate of Acceptance, the Inspection Report, and photographs of the completed phases, all of which negated the claim that the facilities never existed, and the respondents enjoyed the presumption of regularity in the performance of duty. The Court held that the Court of Appeals correctly sustained these views, as Chan's evidence was overwhelmingly controverted and he no longer traversed these points in his petition.

On the remaining question of whether the site was private or public, the Court found the two sets of donation documents conflicting, but held that the disparity could not be resolved in that proceeding, because the issue of whether the donee was Barangay Enriqueta or Barangay Urdaneta is purely factual and best left to the post-audit jurisdiction of the Commission on Audit. There was no necessity to look into it, because regardless of which set should prevail, one conclusion was inevitable: at the time the project was implemented, the site had already become public property by virtue of the donation effected. Chan's objection that the project was built on private property was therefore specious.

Doctrine

A Bar candidate should retain these rules. First, a decision of the Ombudsman in an administrative case absolving the respondent of the charge is final, executory, and unappealable, by force of Section 27 of Republic Act Number 6770 and Section 7 of Rule III of Administrative Order Number 07, as amended. Second, because it is final and unappealable, such a judgment of exoneration cannot be corrected by a motion for reconsideration, and with more reason cannot be appealed by a petition for review under Rule 43. Third, the lone exception is that a judgment of exoneration may be questioned for arbitrariness or oppressiveness by a petition for certiorari under Rule 65, which may be filed seasonably without a prior motion for reconsideration. Fourth, findings of fact of the Ombudsman supported by substantial evidence are conclusive, and the presumption of regularity in the performance of duty stands unless overcome.

Disposition

The petition was denied for lack of merit, with no costs, so the Ombudsman and the respondent officials prevailed and the dismissal of the administrative complaint stood.

Remember This

Memorize this line: an Ombudsman decision exonerating a respondent is final and unappealable, and may be attacked only by certiorari for arbitrariness or oppressiveness. Examiners use this case to test the proper remedy from an Ombudsman decision and the finality of exoneration.