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THE SCHOOL OF SOCIAL SCIENCES SCHOOL BOARD, CHIEF PROSECUTOR CLYDE MARAMBA, PROSECUTORS BEATRIZ BEATO, ROBERT MARI IBAY, JULIA DARYL LENARZ, MAGDALENA MARIE PINEDA, JIEGO MICHAEL TANCHANCO, CRISTINE MARIE VILLARUEL, SPECIAL PROSECUTOR JAYVY GAMBOA, AND DEPUTY CLERK OF COURT PATRICK JOSEPH NG xx URGENT MOTION FOR RECONSIDERATION URGENT OMNIBUS MOTIONS FOR RECONSIDERATION, POSTPONEMENT OF HEARING, AND DISMISSAL Marvin Lagonera (Mr. Lagonera), by counsels, respectfully states:
That the Court, on January 8, 2014 promulgated Resolution No. 01082014 In Re: The Cancellation of the Hearing on the Charge of Mismanagement which states:
“Given the reasons submitted by both parties, the Court has decided that, through its discretionary power of deciding whether to hold hearings, not to push through with the hearing. Since the 21school day period for resolving the complaint as set
in the Constitution is to expire on the 10th of January (Friday), the Court therefore found that holding another hearing would be logistically impossible because both parties no longer have a common time.
In lieu of the hearing, the Court requests both parties to send in their statements and arguments regarding the Mismanagement case. The Court has decided to judge the case based on the parties’ statements and the affidavits of the witnesses which was submitted during the pretrial conference.”
That the dispositive portion of the abovecited Resolution reads:
“WHEREFORE, the hearing set for the Mismanagement case is hereby cancelled due to logistical constraints that render it impossible to meet with both parties at a common time. Moreover, both parties are ordered to submit their final statements and arguments on the charge of Mismanagement by 6 pm on Thursday, January 9.
The defendant would like to argue that not having a trial at this point in the case will be extremely prejudicial to the right of the defendant to a speedy and impartial trial. It is in the interest of the student body, the defendant, as well as the Court that the trial be concluded through the proper processes. The highlypublicized and novel nature of this impeachment case simply cannot be ignored by the Court. Handing out a mere summary judgment on the charge of mismanagement would be to deny the defendant his right to substantive and procedural due process. This impeachment process takes on the novel character under the current situation, and public interest requires that due process of
the law be followed, lest the Court be accused of railroading this entire process of impeachment. The Court should see to it that the defendant sees his day in Court, for “in all controversial questions, [the Courts should] render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it.”1
Thus, the defendant prays that the Court reconsider its decision to cancel the trial for mismanagement and set another time and date for the trial.
However, the defense will still comply with the order of the Court to submit its substantive arguments regarding the mismanagement case. The defense, however, submits the reply in protest of the Court’s decision to cancel the trial and to simply decide the case in a summary proceeding. The defense strongly believes that the defendant should be given his day in court. The defendant is a public official, and it is in the interest of the student body that an elected public official subjected to an impeachment case be given the right to defend himself and his office.
Defendant Marvin Lagonera, by counsel and before this Honorable Court, most respectfully submits the arguments of the Defense as regards the charge of mismanagement and incompetence on the basis of Case 2013001 Decision 12112013 on the impeachment case for failure of keep correspondence with the SecretaryGeneral, and following the promulgated Court Resolution No 01022014 which states that:
Ang Tibay v. CIR and NLRC, G.R. No. L46496
“In lieu of the hearing, the Court requests both parties to send in their statements and arguments regarding the Mismanagement case. The Court has decided to judge the case based on the parties’ statements and the affidavits of the witnesses which was submitted during the pretrial conference.”
Last December 11 2013, the Court released a consolidated decision on the impeachment complaint filed by the Petitioners and the motion to dismiss filed by the Respondent. The Court accepted the sixth impeachment case with heading “failing to keep the records of the School Board transparent and falsification of official School Board documents in the course of the investigation” on the following grounds:
“WHEREFORE, the Court accepts the impeachment complaint of “failing to keep the records of the School Board transparent and falsification of official School Board documents in the course of the investigation”, solely on the grounds that there are discrepancies between the documents submitted by the Respondent who is a party in interest, and the documents submitted by the official scribe Ms.Lazaro, the discrepancies being substantiated by written testimonies from SOSS SB officers, and that the Petitioners can offer evidence showing that the Respondent had failed to keep appropriate correspondence with the SecretaryGeneral, which is mandated by the Sanggu SB CIP.” [emphasis ours]
Last December 19 2013, the Petitioners decided to drop the falsification charge. With the falsification charge dropped, the first of two grounds which states that it is the burden of the Petitioner to prove that “there are discrepancies between the documents submitted by the Respondent who is a party in interest, and the documents submitted by the official scribe Ms.Lazaro” has been dropped together with it.
Hence, the only acceptable ground of impeachment that remains based on Court decision
Case 2013001_Decision 12112013 is if “the Petitioners can offer evidence showing that the Respondent had failed to keep appropriate correspondence with the SecretaryGeneral, which is mandated by the Sanggu SB CIP.” [emphasis ours]
Accused through counsel comes before the Honorable Student Court and pleads not guilty of the mismanagement charge against the Respondent for “failing to keep appropriate correspondence with the SecretaryGeneral, under the Articles of Impeachment on the following arguments: I. Lack of Specification of Deadlines and Time Frame for the Submission of Minutes of the Meeting to the SecretaryGeneral in the School Board CIP II. Argument of Precedence to fill in the gaps in the School Board CIP III. There is no Correspondence on the part of the SecretaryGeneral. IV. The de facto Chairperson and SecretaryTreasurer have conflicting function V. It is not the appropriate relief prayed for.
I. Lack of Specification of Timeframe for the Submission of Minutes of the Meeting to the SecretaryGeneral in the School Board CIP
Title III Section 24 of the Sanggunian SB CIP states that:
“Section 24. Minutes of the Meeting. The SecretaryTreasurer together with his/her deputies is tasked to prepare the minutes of all the meetings of the School Board and ExeCom. He/she is required to transmit a soft copy of the minutes to the egroup of the ExeCom 2 days after the meeting in PDF file.The SecretaryTreasurer is tasked to submit a soft copy of the approved minutes to the SecretaryGeneral for compilation. A hard copy of the minutes shall be kept at the Sanggunian Room. He/she is also tasked to send soft copies of the
approved minutes to all members of the Board within 2 school days after its approval. Other Protocols regarding minutes, attendance, reports and status reports from the Code of Internal Procedures of the Sanggunian Secretary General will also be followed. [emphasis ours]
It is specifically stated in the Title III Section 24 of the Sanggunian SB CIP that the SecretaryTreasurer is tasked to submit a softcopy of the approved minutes to the SecretaryGeneral [emphasis ours]. Given the sentence immediately preceding this, approval refers to the minutes having to be formally approved by the Executive Committee as a prerequisite before the submission to the SecretaryGeneral. Without the formal approval of the Executive Committee, it is no longer within the capacity or power of the SecretaryTreasurer to move and submit the approved minutes of the meetings to the SecretaryGeneral.
Both the testimonies of Mr Marvin Lagonera and Mr Altheo Catalo would have revealed that the Executive Committee has not yet initiated the process to approve the minutes of the meetings. The testimony of Mr Theo Catalo would have shown that, even if Mr Catalo had obtained copies of the minutes of the meetings of the SOSS ExeCom and School Board, he had not yet approved any of the minutes of the meetings for furnishing to the SecretaryGeneral [emphasis ours].
Assuming arguendo, that the minutes of the meeting were to be submitted regardless of whether they have been approved or not, there is no mention of a specific time frame or deadline in which these approved minutes must be submitted to the SecretaryGeneral in Title III Section 24 of the School Board CIP. While the relevant provision indicates that the minutes have to be submitted for review to the ExeCom after 2 days, the same provision does not mention whether or not the SecretaryTreasurer is supposed to submit the minutes of the meeting to the SecretaryGeneral, and if it should be done on a regular basis. A careful reading of Title III Section 24 of the School Board
CIP clearly suggests that the approved minutes of the meetings can be submitted at any point during the elected term of the SecretaryTreasurer, which can be as late as the end of his term. Since there is no mention of specific deadlines in Title III Section 24, the SB CIP gives the SecretaryTreasurer the discretion to submit the minutes of the meetings anytime, which includes having the right to submit compilation of minutes of the meetings at the end of the school year. Given the lack of an extant provision in the School Board CIP specifying a requirement for regular submission of the minutes of the meetings, the defendant’s inability to submit minutes so far in the school year cannot be faulted as a violation of the School Board CIP and therefore, does not constitute a willful and repetitive violation of the constitution.
Furthermore, the SecretaryGeneral did not promulgate the Code of Internal Procedures of the Sanggunian SecretaryGeneral because no such official document exists or has ever existed, according to the previous SecretaryGeneral Ms Catherine Sison and nowhere can it be found in the records of Sanggunian (and likely, the Court). The last sentence of Title III Section 24 is very specific in referencing the Code of Internal Procedures as the basis for protocols: “Other Protocols regarding minutes, attendance, reports and status reports from the Code of Internal Procedures of the Sanggunian Secretary General will also be followed [emphasis ours]”. Assuming arguendo that Mr. Elicano created such protocols, the Court cannot use this as a basis for judgment because these protocols were not promulgated and are therefore not legally recognized regulations. They should hold no value or weight.
II. Argument of Precedence to fill in the gaps in the School Board CIP
Not submitting the minutes of the meetings has become a common institutional practice in the School Board in the Sanggunian. Both Ms Kayla Torres, SOSS SecretaryTreasurer of SY 20122013 and Mr. Bryan Chua, the SOSS SecretaryTreasurer of SY 20112012 submitted written affidavits during the pretrial conferences explaining that not once during
their respective terms did they furnish copies of the approved minutes of the ExeCom and School Board meetings to the SecretaryGeneral. No such official document the Code of Internal Procedures of the Sanggunian Secretary General that specifically the authorizes any of them regarding specific ways of corresponding with the SecretaryGeneral.
Both SecretaryTreasurers attest to the common practice in the evidence presented during the pretrial conference. This common institutional practice in Sanggunian must have been influenced by the lack of specificity in the SB regarding deadlines for submission of the minutes of the meetings to the SecretaryGeneral and the absence of a Code of Internal Procedures of the Sanggunian Secretary General.
However, failure to submit of minutes of the meetings to the SecretaryGeneral did not pose the danger of mismanagement and incompetence that hindered the School Board from fulfilling its functions under the during the administration of both Ms Kayla Torres and Mr Bryan Chua, SOSS SecretaryTreasurer. Similarly, nonsubmission to the SecretaryGeneral has not resulted in a negative impact on the SOSS School Board to carry out its functions under the administration of Mr Lagonera.
Hence, Mr Lagonera given the gaps in the School Board CIP in terms of correspondence with the SecretaryGeneral and the absence of a Code of Internal Procedures of the Sanggunian Secretary General merely acted based on precedence and in good faith.
III. There is no Correspondence from the SecretaryGeneral.
Mr Lagonera, in the written affidavit he submitted during the exchange of evidence in the pretrial, narrated that not once did the SecretaryGeneral ever communicate or correspond with him.
The Respondent is highly suspicious of the claim of the Prosecution that that
SecretaryGeneral has promulgated the “minutes of the meeting multiple times” in the list of witnesses it submitted. According to Mr Lagonera, the SecretaryGeneral never asked him for the minutes of the meetings or clarifications regarding the SecretaryTreasurer’s role in any medium available, be it in an official Sanggunian meeting (such as the Central Board or Top 55 meeting) or via nontraditional means such as online social media or Facebook.
This claim made by the SecretaryGeneral should alert the Court. It is the burden of the Prosecution to provide compelling evidence to show that the SecretaryGeneral has indeed promulgated the collection of minutes of the meetings in any of the official channels of the Sanggunian, specifically during the Central Board or School Board meetings.
In light of such, the Defense has immediately furnished copies of the minutes of the meetings in the Central Board meetings and submitted covers of these during the exchange of evidence during the pretrial conference.
Official announcements from members of the Central Board and Top 55 meetings, which includes the SecretaryGeneral and the SOSS SecretaryTreasurer Mr Lagonera as having official observer status, are made during the Central Board and Top 55 meetings, usually towards the end of the meeting that is specifically allocated for official announcements. These meetings are crucial because this is the only avenue or instance when the SecretaryGeneral and representatives from the Schoolboards, including the SecretaryTreasurer, are in their official capacity in an official meeting to make such announcements. The School Board CIP specifically gives observer status to the representatives of Schoolboard for the board to meet the Legislative branch (which includes the SecretaryGeneral) in the Central Board and Top 55 meetings.
It must be noted that nowhere in the Central Board meetings did the SecretaryGeneral ever make an official announcement regarding minutes of the meetings. The full copies of these transcripts can be accessed at http://www.scribd.com/sanggusecgen, a publicly
available official Scribd account of the SecretaryGeneral where the Defense derived and printed the proof of the covers of the minutes of the Central Board and Top 55 meetings. The following are the all dates of the Central Board and Top 55 meetings: August 16 (Top 55 Joint Session), August 23 (CB), August 28 (Curriculum Report), August 30 (CB), September 6 (CB), September 20, 27 and 28 (Budget Hearings) and November 22 (CB meeting). In all these Central Board and Top 55 meetings since the start of Lagonera’s election the SecretaryGeneral made no announcement regarding minutes of the meetings.
The Court must also be alerted that only during the Central Board meeting on December 13 2013 did the SecretaryGeneral actually make an official announcement regarding minutes of the meetings which reflected in the minutes. This can be accessed through (https://www.dropbox.com/s/32jjtatvrzyutqo/Sanggu1314_Minutes_CB_121313.docx). In
page 8 of the December 13 2013 CB minutes of the meetings, the SecretaryGeneral makes a final announcement:
“Elicaño: Send your minutes.” [emphasis ours]
This announcement was made a day after the Prosecution had submitted the impeachment cases, and four days after, Mr Lagonera had to take a Leave of Absence (LOA) as mandated by the 2005 Sanggunian Constitution in light of the acceptance for trial of the Court of the impeachment case. Certainly, the SecretaryGeneral has never made such similar announcement before in any of the minutes of the meetings of the Central Board, and that such sudden announcement in the middle of the impeachment case should be a warning to the Court to speculate the actions of the SecretaryGeneral. This clear action to manipulate or influence the facts in the course of the impeachment trial must alert the Court.
Finally, it is the burden of proof of the Petitioners to show that the SecretaryGeneral
indeed made any correspondence in an official meeting on a regular basis. Mr Lagonera, however, insists that in the course of his term, Mr Lagonera was never contacted by the SecretaryGeneral regarding his duties as SecretaryTreasurer. Furthermore, no such evidentiary material was submitted by the Petitioners. There is no sufficient evidentiary material that was attached to show that indeed, the SecretaryGeneral promulgated the minutes of the meetings several times together with his affidavit.
IV. The de facto Chaiperson and SecretaryTreasurer have conflicting function.
Mr Lagonera holds an extraordinary case of being the de facto Chairperson and SecretaryTreasurer at the same time due to the massive failure of elections in the School Board.
There may be, however, a possibility of a confusion and conflict function between the two responsibilities vested by the 2005 Sanggunian Constitution on the two positions.
According to Article 8 Section 2 (B) (d) of the 2005 Sanggunian Constitution, the Chairperson has the following responsibility: “(d) To maintain the autonomy of the School Board;”
This particular line in the Constitution requires the Chairperson to keep the School Board autonomous. While autonomy can have various interpretations, keeping correspondence with an outside officer is certainly almost opposite to the function to maintain autonomy of the School Board.
This runs contrary to, and inevitably brings in confusion to the real responsibility of the SecretaryTreasurer, to keep in constant correspondence with the SecretaryGeneral. In this case, the choice of the SecretaryTreasurer to remain loyal and accountable to a higher position lodged into him as de facto Chairperson, which is to maintain the autonomy
of the School Board, has to be given greater premium given this extraordinary case following the failure of elections in the School of Social Sciences Sanggunian.
V. It is not the appropriate relief prayed for.
The defense herein once again submits that a careful reading of the Articles of Impeachment regarding the falsification charges prays visavis the failure of Respondent to submit the minutes to the SecretaryGeneral only prays that the Court apply “appropriate sanctions”. Title XI Section 66 of The Sanggunian Code of Internal Procedures (CIP) states that the failure to abide by its provisions must first be dealt with through the imposition of prior penalties (i.e. written reprimands), by the President of the Sanggunian. In the Respondent’s case, there is absolutely no evidence to suggest that such written notices were ever given to Mr. Lagonera over the course of his tenure. It is clear in the abovementioned provision that a call for impeachment can only be filed upon the third infraction of the CIP. Thus, the Respondent prays that this Honorable Court recognize the improper relief initiated by the Prosecution.
The Prosecutor failed to exhaust all available administrative remedies and instead chose to tax this Honorable Court with the burden to sit as an Impeachment Court when there are more legally efficient, practical, and proper means of making the defendant accountable, if such charges prove to have any semblance of merit. Specifically, Section Title XI of the Sanggunian Internal Procedures recommend the issuance of two written reprimands before the filing of a final reprimand together with an impeachment case. The submission of minutes and all regulations appurtenant to this duty are in the same document, under Title III, placing it within the ambit of Section 66, following the principle that provisions of laws must be harmonized. No such reprimand was issued to the defendant before the filing of this case.
However, in Case 2013001 Decision 010614, the Court kept the mismanagement case
despite this argument for the reason that it is the duty of the SecretaryTreasurer to be the caretaker of the School Board CIP.
However, it still should have been the duty of the SecretaryGeneral to advise the President regarding the issuance of a written reprimand in the case of Mr Lagonera violating the SB CIP in accordance with Title XI Section 64 of the School Board CIP:
“Section 64. Any infraction to this code must be informed to the SecretaryGeneral and the President through the SecretaryTreasurer for immediate action. [emphasis ours]
In this case, the responsibility of exhausting administrative remedy is still lodged within the SecretaryGeneral, even if the School Board CIP mentions that it is the responsibility of the SecretaryTreasurer to keep track of the School Board CIP. To assume that the SecretaryTreasurer will never deserve the right to receive written reprimand just because he or she is the caretaker of the School Board CIP is unjust on his or her position. If read in its entirety, the SB CIP still provides checksandbalance on the performance of the SecretaryTreasurer through the SecretaryGeneral who should have used administrative remedy to penalize him. Hence, the impeachment case is not the appropriate relief prayed for because the administrative remedies have not been exhausted.
RELIEF WHEREFORE, with the above submissions on substantive and procedural grounds, the defendant requests for his acquittal on the charges against him under the Articles of Impeachment, in view of the prosecution’s failures and oversights in relation thereto.
SecretaryTreasurer Marvin Lagonera further prays for such other relief as may be just and equitable under the premises.
Quezon City, 9 January 2014 Respectfully Submitted by Counsel for SecretaryTreasurer Marvin Lagonera
(sgd.) ANDRE MIKO ALAZAS Lead Counsel
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