LOCAL GOVERNMENT REVIEWER FOR FINALS Leoni Francis G. Lagrama EMINENT DOMAIN: Section 19 LGC.

Expropriation has to be done in pursuant to an ordinance ( Municipality of Parañaque vs V.M Realty) Requisites of Exercise of Eminent Domain by LGU: a. an ordinance has been enacted authorizing the expropriation b. expropriation is for public use, or for the benefit of the poor and landless c. there is payment of just compensation d. a previous offer has been made to the owner of the property sought to be expropriated. - RA 7279 exempts residential lots owned by small property owners from expropriation. Section 11 of the law states: “All idle lands in urban and urbanizable areas, as defined and identified in accordance with this Act, shall be expropriated and shall form part of the public domain. These lands shall be disposed of or utilized by the Government for such purposes that conform with their land use plans. Expropriation proceedings shall be instituted if, after the lapse of one (1) year following receipt of notice of acquisition, the owner fails to introduce improvements as defined in Section 3(f) hereof, except in the case of force majeure and other fortuitous events. Exempted from this provision, however, are residential lands owned by small property owners or those the ownership of which is subject of a pending litigation. “

- Small property owners" refers to those whose only real property consists of residential lands not exceeding three hundred square meters (300 sq.m.) in highly urbanized cities and eight hundred square meters (800 sq.m.) in other urban areas - "Small-property owners" are defined by two elements: (1) those owners of real property whose property consists of residential lands with an area of not more than 300 square meters in highly urbanized cities and 800 square meters in other urban areas; and (2) that they do not own real property other than the same. ( City of Mandaluyong vs Francisco )

- Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or -controlled corporations and their subsidiaries; (b) (c) Alienable lands of the public domain; Unregistered or abandoned and idle lands;

(d) Those within the declared Areas for Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement of Sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands.

RECLASSIFICATION OF LANDS Section 20 of the LGC. Pertinent provisions: Paragraph A. A city or municipality,through an ordinance, may reclassify agricultural lands after public hearing. Pargagraph A. Lands shall be reclassified under the following cases: 1. when the land ceases to become economically feasible and sound for agricultural purposes as determined by DAR. 2. when the land has greater economic value for residential, commercial and industrial purposes as determined by the sanggunian concerned. - Reclassification of lands shall be limited to the following percentages of the total agricultural land area: a. 15% ( highly urbanized and independent component cities) b. 10% ( component cities and 1st to 3rd class municipalities ) c. 5% ( 4th to 6th class municipalities ) - Reclassification shall not include those agricultural lands covered by CARL.

- Reclassification of lands in excess of the percentage limit provided shall be done by the president upon recommendation of NEDA. - A tax declaration is not conclusive of the nature of the property for zoning purposes. ( Patalinghug vs C.A ) - Local Government Units need not obtain the approval of DAR to reclassify lands from agricultural to non-agricultural use. (Fortich vs Corona) CLOSURE AND OPENING OF ROADS Section 21 of the LGC. Pertinent Provisions Paragraph A. Closure of local road, alley, park or square maybe done through: a. an ordinance approved by at least 2/3 of the members of the sanggunian. b. adequate substitute for the property subject for closure, if necessary. Paragraph B. No way or place or any part shall be closed without providing for the maintenance of public safety therein. A property withdrawn from public use may be conveyed. No freedom park shall be closed without provisions for its transfer or relocation. Paragraph C. Any national or local road, alley park or square may be temporarily closed during actual emergencies, fiesta, public rallies, industrial fair, public works, telecommunications and waterways undertakings. Its duration must be specified by the local chief executive in a written order. Properties of public dominion are outside the commerce of men and cannot be disposed of or leased to private persons by LGU’s. ( Macasiano vs Diokno ) One whose property does not abut on the closed section of the street has no right to compensation for the closing of the street if he still has access to the general system of streets. ( Cabrera vs C.A ) After a street or road is declared abandoned, it becomes a patrimonial property and maybe a valid object of a contract of sale. ( Cebu Oxygen and Acetylene Co., vs Bercilles ) A camino vecinal is a municipal road, therefore, its closure or abandonment is the sole prerogative of the municipality. ( Pilapil vs C.A) The fact that a survey, lay-out and actual construction of an unfinished public road do not convert said roads after construction a private road. ( Calapan Lumber vs Community Sawmill )

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Recovery of expenses of a private entity in construction of a public road maybe done by converting such road into a toll road until such time the private entity has been paid all its expenses. However, conversion of a road into a toll road must be done after a recommendation of the secretary of public works and authorization of the president. ( Calapan Lumber vs Community Sawmill, infra.)

CORPORATE POWERS Section 22 of LGC. Pertinent Provisions: Every Local Government Unit has the following powers: 1. Have continuous succession in its corporate name;2. Sue and be sued; 3. Have and use a corporate seal;4. Acquire and convey real or personal property;5. Enter into contracts. A municipality may be obligated to pay an implied contract to pay the reasonable value of the benefits accepted or appropriated by it. ( Province of Cebu vs IAC ) The award of back salaries includes and absorbs the moral damages that a municipal corporation may be held liable to pay for illegal separation of an employee. (Enciso vs Remo )

LIABILITY FOR DAMAGES Section 24 of LGC. It is not necessary that for liability to attach, a city or municipality owns a defective road or street. It is sufficient that it has either control or supervision over the defective street or road. ( City of Manila vs Teotico ) The holding of a town fiesta is an exercise of proprietary function. Therefore, municipalities are liable for any injury sustained in occasion thereof. ( Torio vs Fontanilla ) The Local Government is not entitled to pay the services of a private lawyer who represented such local government in litigations without authority of law ( De Guia vs Auditor General )

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QUALIFICATIONS Section 39 of the LGC. Citizenship Cases. Citizenship requirement under the Local Government Code shall be possessed by the candidate at least as of the time he was proclaimed and at the start of the term of office to which he has been elected. Repatriation is retroactive from the date of its filling. ( Frivaldo vs COMELEC )

Age requirement cases. Not more than 21 shall not be construed to mean less than 22. 21 years old means a completion of 21 365 day cycle therefore, after 365 days, the 1st day of the 22nd 365-day cycle begins. ( Garvida vs Sales )

DISQUALIFICATIONS Section 40 of LGC. Disqualification Cases LGC has no retroactive effect with respect to those administratively removed from office. It only applies to those removed from office after the code’s effectivity. Lex prospicit, non respicit. ( Grego vs COMELEC ) Fugitive from justice refers to those persons who flee after conviction to avoid punishment or to those who fled after being charged to avoid conviction. ( Rodriguez vs COMELEC ) Dual Citizenship under the LGC means dual allegiance. ( Mercado vs Manzano ) Three term limit covers only elective officials. Thus, those who, by virtue of succession, ascends to a higher post by vacancy, his assumption cannot be counted as part of the three term limit. ( Borja vs COMELEC ) Judgement for any administrative charge against a public official must be rendered final and executor during the term by which such misconduct are committed before such alleged public official is deemed disqualified to run for reelection. ( Reyes vs COMELEC ) Fencing is a crime of moral turpitude,therefore a ground for disqualification. ( Dela Torre vs COMELEC )

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VACCANCIES AND SUCCESSION Section 44 of the LGC. Pertinent Provisions: Paragraph C. A tie between the highest ranking sanggunian members may be drawn by lot.

Vacancies and Successions cases: The sanggunian member who receives the highest ranking on the basis of of the proportion of votes obtained by each candidate to the total number of registered voters in each district should assume the office of the vice governor. ( Victoria vs COMELEC )

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Vaccancy created by a sanggunian bayan member who do not belong to any political party shall be appointed by the governor upon recommendation by the sangguniang bayan. ( Fariñas vs Barba ) Though the law is silent on the succession in case of temporary vacancy in the vicegovernor, the mode of succession of permanent vacancies shall be observed. ( Menzon vs Petilla ) The term last vacancy refers to the vacancy created by a sanggunian member formerly occupying the next higher in rank which in turn also had become vacant by any cause. ( Navarro vs Court of Appeals )

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DISCIPLINARY ACTIONS Section 60 of LGC. Pertinent Provisions Grounds for any disciplinary action or removal may be the following: a. disloyalty to the republic;b. culpable violation of the constitution;c. dishonesty,oppression, misconduct in office, gross negligence, or dereliction of duty;d. commission of offense involving moral turpitude;e. abuse of authority;f. unauthorized absence for 15 consecutive working days;g. Application or acquisition of foreign citizenship.

Disciplinary Action cases The power to remove local officials from service is lodged in the courts. ( Pablico vs Villapando )

PREVENTIVE SUSPENSIONS Section 63 of LGC. Pertinent Provisions Who may impose preventive suspension Cases The DILG Secretary, being an alter-ego of the president, may suspend local elective officials. ( Ganzon vs Court of Appeals ) The president, if the respondent is an elective official of a province, a highly urbanized city or an independent component city. ( Sec.63,par.A[1] ) The governor, if the respondent is an elective official of a component city or municipality. ( Sec.63, par A[2] ) The mayor if the respondent is an elective barangay official. ( Sec.63, par A[3] )

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The authority to impose suspension upon a local government official is shared concurrently by the Ombudsman and the Office of the president. ( Hagad vs GozoDadole )

Difference between the suspension by office of the president and Office of the Ombudsman. SUSPENSION BY OFFICE OF THE PRESIDENT Based on the Local Government Code Not more than sixty days Evidence of culpability is strong Extends only to Elective Officials More on administrative charges Continuance in Office of the respondent may influence witness After the issues has been joined SUSPENSION BY THE OFFICE OF THE OMBUDSMAN Based on the Ombudsman Act May extend until 6 months Evidence of Guilt is strong Includes Appointive Officials If the charge involved warrants removal from office or oppression or grave misconduct. Continuance in office of the respondent may prejudice the case filed against him Any complaint of any form

Limitations on Preventive Suspensions ( Sec.63b ) Any single preventive suspension shall not exceed more than 60 days Suspension shall not exceed more than 90 days within a single year on the same ground or grounds if several administrative charges are filed against an elective official.

Additional Cases on Preventive Suspensions If during his suspension, or after its expiration, a local elective official commits another or other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preentively suspended again. ( Ganzon vs CA, supra.) A preventive suspension is not meant to be a penalty but a means taken to insure the proper and impartial conduct of investigation. ( Yabut vs Ombudsman ) Reelection of an elective official is a condonation of the administrative charges filed against him during his previous term. ( Aguinaldo Doctrine ) Removal cannot extend beyond the term during which the alleged misconduct was conducted. ( Reyes vs COMELEC )

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APPEALS ON ADMINISTRATIVE CHARGES Section 67 of LGC. When to appeal Appeals shall be made within 30 days from the receipt of the decision.

Where to appeal To the Sangguniang Panlalawigan in case of decisions of sangguniang panlungsod of component cities and sangguniang bayan ( Sec.67a ) To the Office of the president in case of decisions of sangguniang panlalawigan or sangguniang panlungsod of highly urbanized cities. Decisions of the office of the president shall be final and executory.( Sec 67b ) EXECUTION PENDING APPEAL An appeal does not prevent a decision from becoming final and executory. In the event the respondent is exonerated, he shall be paid his salary and such other emoluments during the pendency of the appeal. Related Cases: Appeals in administrative cases decided by the sangguniang panlalawigan shall only be filed within the office of the president. ( Malinao vs COMELEC ). An oath of office is a qualifying requirement for a public office;a prerequisite to the full investiture with the office. It is only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Once proclaimed and duly sworn into office, a public officer is entitled to assume office and to exercise functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Unless the election is annulled by a final and executory decision, or a valid execution of an order unseating him pending appeal is issued, he has the lawful right to assume and perform the duties of the office to which he has been elected. ( Mendoza vs Laxina, supra.) Re taking of an oath of office is a mere formality and is not a condition sine qua non to the validity of re assumption into office.( Mendoza vs Laxina )

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PROHIBITED OFFICES, APPOINTMENTS, BUSINESSES, ETC. Prohibited Business and Pecuniary interest Section 89 of LGC

Local Government official or employee is prohibited from Engage in any business transaction with the local government unit in which he is an official employee or over which he has the power of supervision ( Sec. 89a[1] ). Holding interest in any cockpit or other games licensed by a local government unit.( Sec 89a[2] )

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Purchasing any real estate or other property forfeited in favor of such local government unit for unpaid taxes or assessment. ( Sec 89a[3] ) Being a surety for any person contracting or doing a business with a local government unit for which a surety is required. ( Sec 89a[4] ) Possessing or using any public property of the local government unit for private purposes. ( Sec 89a[5] )

Practice of profession Section 90 of LGC. All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their function. ( Sec 90a ) Sanggunian Members may practice their professions, engage in any occupation, or teach in schools except during session hours ( Sec 90b ) Members of the bar shall not appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party. ( Sec.90b[1] ) Members of the bar shall not appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense related to his office. ( Sec 90b[2] ) Members of the bar shall not collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official. ( Sec 90b[3] ) Use property and personnel of the government except when the sanggunian concerned is defending the interest of the Government ( Sec 90b[4] ) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency. Provided that they do not derive monetary compensation therefrom. ( Sec 90c )

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Related Cases The local government code simply regulates the practice of the law profession. It does not prohibit its practice. ( Javellana vs Executive Secretary )

Prohibition on appointments Sec 94 of LGC No elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. ( Sec 94a )

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No elective or appointive local official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations or their subsidiaries unless provided by law or by primary functions of his position. ( Sec 94a,par.2 ) No candidate who lost in the election shall be appointed to any office in the government or GOCCs or their subsidiaries, except for losing candidates in barangay elections. ( Sec 94b )

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Related Cases Appointment of any elective official must be incidental to his office for it to be valid. That means, no other office is created for the appointment. ( Flores vs Drilon )

Prohibition on double compensation Sec 95 of LGC No elective or appointive official or employee shall receive double, additional, or indirect compensation unless specified by law. No elective official shall accept without the consent of congress, any present, emoluments, office or title of any kind from foreign government. Pensions or gratuities are exemptions.

Limitation of other appointments Sec 79 of LGC No person shall be appointed in the career civil service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority.

Other prohibitions provided under Republic Act 6713 or The Code of Conduct and Ethical Standards for Public Officials Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office. Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not: (1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law;

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(2) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office. - (c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. - Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. DISCIPLINE OF SANGGUNIAN MEMBERS Sec 50a[5] of the LGC Sanggunian members may be reprimanded, censured, excluded from session, suspended by not more than 60 days or expelled for disorderly behavior or unjustified absences for 4 consecutive sessions. Penalty of expulsion must be approved by 2/3 of all the members. A member convicted by final judgment of 1 year for any crime involving moral turpitude shall be automatically expelled.

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APPROVAL OF ORDINANCES Sec 54a of the LGC Ordinances are deemed approved after the local chief executive concerned have affixed his signature in every page thereof. In case of veto from the local chief executive, it is deemed approved by 2/3 of all its members.

Communication of vetoes The veto shall be communicated by the local chief executive within 15 days in the case of a province, and 10 days in the case of a city or municipality. If the periods elapsed, then the ordinance is deemed approved as if he had signed it. ( Sec 54b )

VETO POWER OF LOCAL CHIEF EXECUTIVES Sec 55a of the LGC

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The local chief executive may veto an ordinance on the following grounds:1. It is ultra vires;2. It is prejudicial to the public welfare and interest.

CONTRACTS Relative to Sec 22 of the LGC Cases The Doctrine of Estoppel cannot be applied as against a municipal corporation to validate a contract which it has no power to make or which it is authorized to make under prescribed conditions. Also, where a contract is violative of public policy, the municipality executing it cannot be estopped from asserting the invalidity of the contract. ( San Diego vs Municipality of Naujan ) Contracts requiring public bidding affect public interest, and to change them without complying with that requirement would indeed be against public policy. ( San Diego vs Municipality of Naujan ) Police power must prevail over the non-impairment clause ( Ortigas and Company vs Feati Bank ) No contract shall be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. ( Sec 22c )

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DOCTRINE OF IMPLIED MUNICIPAL LIABILITY The doctrine of implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same. If the city obtain money of another by mistake, or without authority of law, it is her duty to refund it - not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons, whether natural or artificial. If the city obtain other property which does not belong to her, it is her duty to restore it; or if used by her, to render an equivalent to the true owner, from the like general obligation: the law, which always intends justice, implies a promise.

REQUISITES OF A VALID CONTRACT There must be an authority to contract It must be the proper agency that will enter into the contract There must be compliance with substantive requirements ( ordinance, appropriation ) The contract must be in written form

Ultra Vires Contracts

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Contracts without compliance of the 1st and 3rd requisites of a valid contract As an effect, ultra vires contract is null and void and cannot be ratified

Law Students, remember………………….. ____________________________________________________________________________

Quae nocent, saepe docent - What hurts, often instructs. One learns by bitter/adverse experience.
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