Republic of the Philippines A. Francisco Gold Condominium I EDSA Cor. Mapagmahal St., Diliman Quezon City LEGAL SERVICE DILG OPINION No. 23 s, 2014 JUN 4.0 2011 HON. SADEKA G. TOMANENG Municipal Mayor Tubay, Agusan del Norte Dear Mayor Tomaneng, This has reference to your letter dated 27 May 2011 addressed to Atty. Mar Angelo G. delos Santos, this Service, presenting the stand and justification of your good office for the issuance of the Order for Preventive Suspension against Punong Barangay Aliore P. Page (Hon. Page) of La Fraternidad, Tubay, Agusan del Norte. In your letter, you averred that you were not in agreement with Atty. delos Santos’ letter to Hon. Page dated 11 May 2011 wherein it was stated that your good office cannot order the preventive suspension of Hon. Page in the absence of a recommendation for such suspension coming from the Sangguniang Bayan of Tubay to which Hon. Page’s administrative case is pending. In support of your stand, you attached a copy of Resolution No. 2011-01 (Resolution 2011-01) dated 23 February 2011 adopted by the Sangguniang Bayan of Tubay entitled “RESOLUTION RECOMMENDING THE APPROVAL TO THE OFFICE OF HON. SADEKA G. TOMANENG, MUNICIPAL MAYOR, THIS MUNICIPALITY, FOR THE IMPOSITION OF SIXTY (60) DAYS PREVENTIVE SUSPENSION UPON PUNONG BARANGAY ALIORE P. PAGE OF BARANGAY LA FRATERNIDAD, TUBAY, AGUSAN DEL NORTE.” Likewise, you alleged that the Order for Preventive Suspension in question did not mention the above SB Resolution because the Local Government Code and its Implementing Rules and Regulations do not require the same. In reply thereto, please be informed that the principles laid down in Legal Opinions issued by this Department are mainly based on the factual allegations contained in the communications sent by the requester/s and the attachments included thereto. With this in mind, let it be noted that Hon. Page’s request for a Legal Opinion dated 04 May 2011 was received by the undersigned via email from Honorable Secretary Jesse M. Robredo, this Department on 06 May 2011. The attachments forwarded by Hon. Page were PDF files of the following: 1, Administrative Complaint of Elani M. Agapay and Analie P. Ebe against Hon. Page dated 13 January 2011 with all its supporting pieces of evidence; 2. Letter of Sangguniang Bayan of Tubay to Hon. Page dated 24 January 2011 requiting the latter to file his Answer to the complaint; Hon, Page’s Answer dated 07 February 2011; and 4, Letter dated 29 April 2011 issued by your good office ordering Hon. Page’s preventive suspension.Resolution No. 2011-01 was not attached by Hon, Page in his request. Instead, the latter’s, letter contained a direct allegation that it was your good office which personally made the determination of merit and weight of evidence against him and which arrived at the conclusion that preventive suspension was warranted. The foregoing having been considered, the Legal Opinion dated 11 May 2011 signed by Atty, delos Santos was focused on the sole issue of whether or not a Municipal Mayor has the power to determine the conditions upon which preventive suspension may be imposed under Section 63 (b) of the Local Government Code of 1991 (LGC), and correspondingly impose such preventive suspension on the basis of his/her own findings. Said query was answered in the negative in that legal opinion. Based on the facts already presented, we hereby clarify that the Legal Opinion signed by Atty, delos Santos merely reiterated the well-settled rule that the determination of the conditions upon which preventive suspension may be imposed under the law is vested exclusively with the sanggunian concerned, On the basis of DILG Legal Opinion No. 41, s. 2009, citing DILG Legal Opinion No. 38 s. 2003, the main reason for the rule is that since the disciplining and investigating authority over erring barangay and municipa/component city elective officials is the Sangguniang Bayan/Sangguniang Panlungsod and the Sangguniang Panlalawigan, respectively, it follows therefore that the sanggunian concerned has the sole power and discretion to determine whether or not preventive suspension so warrants against the respondent. Preventive suspension is thus said to be an incident to jurisdiction and/or tool for the disciplining authority, that is, the sanggunian concerned, to make use in the course of its administrative investigation. The Legal Opinion of Atty. delos Santos simply affirmed the fact that based on Hon. Page’s allegation that it was your good office which personally determined the conditions upon which preventive suspension may be imposed, such determination is legally infirm since it is the Sangguniang Bayan of Tubay which has authority to make such determination, Otherwise stated, the Sangguniang Bayan of Tubay must first determine the conditions upon which preventive suspension may be imposed against Hon. Page and then recommend to your good office to order such preventive suspension if warranted. At this instant, since it is apparent that Resolution No. 2011-01 recommending the preventive suspension of Hon. Page had already been issued by the Sangguniang Bayan of Tubay as early as 23 February 2011, then it is the duty of your good office to implement the said recommendation notwithstanding the Legal Opinion made by Atty. delos Santos. Let it be noted that based on DILG Legal Opinion No. 44, s. 2004, after the sanggunian shall have determined the necessity to warrant the imposition of preventive suspension, it becomes the ministerial duty of the local chief executive to cause the implementation thereof. It should be made clear that the Legal Opinion of Atty. delos Santos was not issued with the view of preventing your good office from carrying out the preventive suspension of Hon. Page, as only courts have jurisdiction to order such prohibition. Rather, it only answered the query of Hon. Page, and ruled that on the basis of the his allegations, preventive suspension would not be proper since it was made to appear in the request for legal opinion that the Sangguniang Bayan of Tubay has not yet determined that preventive suspension of Hon. Page is warranted, Finally, it is not correct to imply that the legal opinion in question made it a requirement for the local chief executive to incorporate the resolution of the sanggunian concerned recommending preventive suspension with the order for preventive suspension.While it is true that the LGC and its Implementing Rules and Regulations do not require that the sanggunian resolution recommending the preventive suspension of the respondent be attached to or mentioned in the local chief executive's order for preventive suspension, fundamental administrative due process requires that the respondent should be properly informed of the basis for his preventive suspension, whatever the form of the same may be. The Jaw is silent regards the proper method of informing the respondent of the basis for his preventive suspension, but it has been customary to attach a copy of the sanggunian resolution to the order for preventive suspension since the said resolution is a confirmation that the determination of its imposition was made by the disciplining authority, i.e., the sanggunian concerned. In the case of Hon. Page, the Order for Preventive Suspension issued by your good office dated 29 April 2011 failed to adequately inform the former of the legal basis for such suspension. On the contrary, the said order gave the impression that it was you, and not the Sangguniang Bayan of Tubay who personally determined that the conditions provided for under Section 63 (b) of the LGC were present, which prompted Hon. Page to inquire to this Department and on the basis of which the questioned legal opinion was issued We hope to have clarified you on the matter. Very truly yours, “PY. JESUS)S-DOQDE IV rector IIT