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FIRST DIVISION

DR. ROGER R. POSADAS and G.R. Nos. 168951 & 169000


DR. ROLANDO P. DA YCO,
Petitioners, Present:

BERSAMIN, J,
Acting Chairperson,
ABAD,*
-versus- VILLARAMA, JR.,
MENDOZA,** and
REYES, JJ.

SANDIGANBA YAN and Promulgated:


PEOPLE OF THE PHILIPPINES,
Respondents. JUL 1 7 2013
X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DECISION

VILLARAMA, JR., J.:

Petitioners assail their conviction for Violation of Section 3(e) of


Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act)
and Section 7(b) of R.A. No. 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees) under Decision 1 dated June
28, 2005 of the Sandiganbayan in Crim. Case Nos. 25465-66.

The Facts

Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in Relativity


Physics graduate from the University of Pittsburgh, is a longtime professor
and former Dean of the College of Science at the University of the
Philippines-Diliman Campus (UP Diliman). He was appointed by the Board
of Regents (BOR) of the University of the Philippines System as UP
Diliman Chancellor for a three-year term starting November 1, 1993 and
ending October 31, 1996.

Designated additional member per Raffle dated July I, 2013.


Designated additional member per Raffle dated May 27, 2013.
Rollo, pp. 48-71. Penned by Associate Justice Jose R. Hernandez with Associate Justices Gregory S.
Ong and Rodolfo A. Ponferrada concurring.
Decision 2 G.R. Nos. 168951 & 169000

During his term as Chancellor, Dr. Posadasisone of the leading figures


in the emerging inter-disciplinary field of technology management in the
Philippines.Upon the recommendation of the UP Diliman Task Force on
Science and Technology Assessment, Management and Planning composed
of deans and professors from the various colleges in UP Diliman, the BOR
on February 23, 1995 approved the establishment of the Technology
Management Center (TMC) under the direct supervision of the Office of the
Chancellor, UPDiliman.When the TMC became operational in June 1995,
the Task Force on Science and Technology Assessment, Management and
Planning wrote then UP President Dr. Emil Q. Javier, nominating Dr.
Posadas for the position of TMC Director. For undisclosed reason, Dr.
Posadas declined the nomination and instead he (Dr. Posadas) designated
Prof. Jose Tabbada of the College of Public Administration as Acting
Director of TMC.

On July 26, 1995, Dr. Posadas submitted to the National Economic


and Development Authority (NEDA) an Application for Fundingof his
proposed project entitled“Institutionalization of Technology Management at
the University of the Philippines in Diliman” (TMC Project). The TMC
Project, to be funded by a grant from the Canadian International
Development Agency (CIDA), aimed to design and develop ten new
graduate courses in technology management for the diploma, master’s and
doctoral programs to be offered by TMC.2

On September 18, 1995, a Memorandum of Agreement3 (MOA) was


executed between Dr. Posadas, on behalf of UP-Diliman, and the Philippine
Institute for Development Studies (PIDS) as the Local Executing Agency of
the Policy, Training and Technical Assistance Facility (PTTAF) of CIDA.
Under the MOA, CIDA shall provide the funding for the total project cost
(P5,442,400.00), with the NEDA as the designated PTTAF Project
Implementor for the Government of the Philippines, while UPDiliman shall
direct, manage and implement all activities under the approved project with
counterpart funding in the amount of P4,228,524.00.

In a letter dated July 30, 1995, the President of Hua Qiao University
in Fujian Province, China invited Dr. Posadas and a delegation from UP
Dilimanto visit on October 30 to November 6, 1995. On October 5, 1995,
then Senior Deputy Executive Secretary Leonardo A. Quisumbing (retired
Member of this Court) issued the Authority toTravel for the UP Diliman
delegationheaded by Dr. Posadas. Among those who joined the delegation
were Dr. Amaryllis Torres and Dr. Rosario Yu, UPDiliman’s Vice-
Chancellor for Academic Affairs and Vice-Chancellor for Student Affairs,
respectively.4Under Administrative Order (AO) No. 95-170 dated October
24, 1995, Dr. Posadas designated petitioner Dr. Rolando P. Dayco (Dr.
Dayco), Vice-Chancellor for Administrative Affairs, as Officer-In-Charge

2
Exhibits “2” – “2-a,” folder of exhibits (Defense).
3
Exhibit “24,” id.
4
Exhibit “5,” id.
Decision 3 G.R. Nos. 168951 & 169000

(OIC) of UPDiliman effective October 30, 1995 until November 6, 1995.


This was followed by AO No. 95-170-A dated October 27, 1995, which
amended the previous order by extendingthe OIC designation of Dr. Dayco
to November 7, 1995.5

On November 7, 1995, Dr. Dayco appointedDr. Posadas as Project


Director of UP TMC effective September 18, 1995 up to September 17,
1996.In another undated “Contract for Consultancy Services” signed by Dr.
Dayco, Dr. Posadas was hired as Consultant for the TMC Project for the
same period.6As evidenced by disbursement vouchers and admitted by Dr.
Posadas, the latter received his “honoraria”(P30,000.00 per month) and
consultancy fees (totaling P100,000.00) as Project Director and Consultant
of the TMC Project until May 1996 when the Commission on Audit (COA)
raised questions on the legality of the said fees.7

In August 1996, payment of the subject “honoraria” and fees was


suspended by COA Resident Auditor Romeo J. Pulido who noted the
following deficiencies:
1. Honoraria were in excess of the rates provided for under the National
Compensation Circular No. 73, dated March 1, 1996, x x x.

2. Legal basis for designating the incumbent Chancellor as Project


Director by the Officer-In-Charge (OIC), considering that the latter
can assume the post only in the absence of the former. An OIC cannot
validly designate since the authority to designate/appoint is among the
functions of the Chancellor which cannot be delegated as provided in
the University Charter. Moreover, the authority to appoint can never
be delegated since it involves discretion.

3. On the assumption that the designation of the Chancellor as Project


Director and Consultant is valid, collecting the remuneration for both
positions amount to double compensation which is contrary to existing
auditing rules and regulations.8

In a Memorandum9 dated September 16, 1996, UP’s Chief Legal


Officer Marichu C. Lambino addressed the foregoing concerns of COA
Auditor Pulido.Atty. Lambino stated that (a) the compensation received by
Dr. Posadas are in the nature of consultancy fees and hence expressly
exempted by Department of Budget and Management (DBM)National
Compensation Circular (NCC) No. 75 dated March 11, 1995; (b) the TMC
Project, being a training program, is likewise exempted from the coverage of
NEDA Guidelines on the Procurement of Consulting Services for
Government Projects; and (c) under Civil Service Commission (CSC)
Memorandum Circular (MC) No. 43, series of 1993 “Streamlining and
Deregulating Human Resource Development Functions” UP is authorized,
5
Exhibits “7” and “8,” id.
6
Exhibits “C-4” and “C-5,” folder of exhibits (Prosecution).
7
Joint Stipulation of Facts, records, Vol. I, p. 284; Exhibits “D-2,” “E-2” to “E-4,” folder of exhibits
(Prosecution).
8
Exhibit “12,” folder of exhibits (Defense).
9
Exhibit “13,” id.
Decision 4 G.R. Nos. 168951 & 169000

without prior approval from the CSC, to determine the rates of honorarium
for government personnel participating as resource persons, coordinator, and
facilitator, in training programs. On the issue of double compensation, Atty.
Lambino pointed out that Dr. Posadas was appointed Project Director
because of managerial expertise, and his skills in supervising personnel who
are involved in an academic undertaking, and as Consultant because of his
expertise in technology management. Finding these
explanations/justifications acceptable, Auditor Pulido lifted the notices of
suspension in September 1997.

However, even before the issuance of the suspension notices, then UP


President Dr. Emil Q. Javier, ordered an investigation on the basis of an
administrative complaint filed by Mrs. Ofelia L. Del Mundo, a staff of the
University Library who was detailed at the TMC as its Administrative
Officer. On July 24, 1996, President Javier created a Fact-Finding
Committee to gather, review and evaluate pertinent documents regarding
certain transactions of the TMC.10 After the conduct of a preliminary
investigation and finding a prima facie case against the petitioners, President
Javier issued the formal charges11 for Grave Misconduct and Abuse of
Authority. Pursuant to the University’s “Rules and Regulations on the
Discipline of Faculty Members and Employees approved at the 704th
Meeting of the Board of Regents on January 11, 1963,”12 an Administrative
Disciplinary Tribunal (ADT) was constituted, chaired by Atty. Arturo E.
Balbastro, a faculty member of the UP College of Law.

On August 21, 1998, the ADT submitted its Report13 (ADT Case 96-
001) to President Javier. The ADT found petitioners guilty of serious or
grave misconduct and recommended the penalty of dismissal in accordance
with CSC Memorandum Circular No. 30, series of 1989, as well as Article
250 of the University Code. The Report likewise stated that the acts of
petitioners for which they were held administratively liable may warrant
prosecution under Section 3(h) and (i) of R.A. No. 3019. Under the Order14
dated August 25, 1998 signed by President Javier, petitioners were
dismissed from the service.

On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity


as General Counsel of UP formally endorsed the findings and
recommendations of the ADT to the Ombudsman.15 The case was docketed
as OMB-0-98-1843.

Meanwhile, the BOR at its 1126th meeting on November 26, 1998,


resolved petitioners’ appeal in ADT Case 96-001, as follows:

10
Exhibit “50,” id.
11
Exhibits “A-4” and “A-5,” folder of exhibits (Prosecution).
12
Exhibit “A-2,” id.
13
Exhibit “A-6,” id.
14
Exhibit “A-3,” id.
15
Exhibit “A,” id.
Decision 5 G.R. Nos. 168951 & 169000

1. The Board affirmed the ADT decision finding the respondents guilty
of grave misconduct and imposed on them the penalty of forced
resignation with the accessory penalties defined in the Omnibus Rules
Implementing Book V of Executive Order 292 and other Pertinent
Civil Service Laws – i.e., cancellation of eligibility, forfeiture of all
leave credits and retirement benefits, and disqualification from
government service for one year.

2. If after one year they should reapply to the University, they must
render an apology to the University and their reappointments will be
subject to Board approval.

3. The respondents are permanently disqualified from holding any


administrative position in the University.

4. The decision takes effect immediately.16

Satisfied with the BOR’s action, petitioners caused the withdrawal of


their appeal before the CSC.17

On June 9, 1999, the Evaluation and Preliminary Investigation Bureau


of the Office of Ombudsman recommended the dismissal of the charges
against petitioners for insufficiency of evidence. However, said
recommendation was disapproved by then Ombudsman Aniano A. Desierto
who ordered that petitioners be indicted for violation of Section 3(e) of R.A.
No. 3019 and Section 7(b) in relation to Section 11 of R.A. No. 6713.18

The corresponding Informations19were thus filed against the


petitioners before the Sandiganbayan (Criminal Case Nos. 25465-66), as
follow:
Criminal Case No. 25465

That on or about 7 November 1995, or sometime prior or subsequent


thereto, in Quezon City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, both high-ranking public
officers, ROGER DELA ROSA POSADAS, being then the Chancellor
and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-
Chancellor of the said university and Officer-In-Charge of the Office of
the Chancellor, committing the crime herein charged in relation to, while
in the performance and taking advantage of their official and
administrative functions,and conspiring and confederating with and
mutually helping each other, did then and there willfully, unlawfully and
criminally give unwarranted benefits, privilege or advantage to accused
POSADAS, when accused DAYCO appointed or designated accused
POSADAS as a Project Director of the lone project, Institutionalization of
the Management of Technology at U.P. Diliman, of the Technology
Management Center (TMC) of the Office of the Chancellor, U.P. Diliman,
which enabled or caused the disbursement and payment of monthly salary
of P30,000.00 of accused POSADAS, duly received by the latter, for the
16
Exhibit “G,” id.
17
Exhibit “H,” id.
18
Records, Vol. I, pp. 3-11.
19
Records, Vol. III, pp. 1-4.
Decision 6 G.R. Nos. 168951 & 169000

period 18 September 1995 to 17 September 1996, with accused


POSADAS also receiving his salaries as Chancellor and faculty member
of U.P. Diliman during this period, and both accused knowing fully well
that the appointment of accused POSADAS was beyond the power or
authority of accused DAYCO as an OIC and likewise violative of the law,
rules and regulations against multiple positions, double compensation and
retroactivity of appointment, thereby causing undue injury to the
Government in the amount of PESOS: THREE HUNDRED SIXTY
THOUSAND (P360,000.00), to the damage and prejudice of the
Government.

CONTRARY TO LAW.

Criminal Case No. 25466

That on or about 7 November 1995, or sometime prior or subsequent


thereto, in Quezon City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, both high-ranking public
officers, ROGER DELA ROSA POSADAS, being then the Chancellor
and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-
Chancellor of the said university and Officer-In-Charge of the Office of
the Chancellor, committing the crime herein charged in relation to, while
in the performance and taking advantage of their official and
administrative functions, and conspiring and confederating with and
mutually helping each other, did then and there willfully, unlawfully and
criminally engage in the unauthorized private practice of accused
POSADAS’s profession as a technology manager, when accused DAYCO
appointed or designated accused POSADAS as a consultant to the project,
Institutionalization of the Management of Technology at U.P. Diliman, of
the Technology Management Center (TMC) of the Office of the
Chancellor, U.P. Diliman, which enabled or caused the disbursement and
payment of consultancy fees in the amount of P100,000.00 to accused
POSADAS, duly received by the latter, with respondent POSADAS also
receiving his salaries as Chancellor and faculty member of U.P. Diliman,
and both accused knowing fully well that the appointment to and
acceptance of the position of consultant by respondent POSADAS was
without authority from the latter’s superior(s) or the U.P. Board of
Regents, to the damage and prejudice of the Government service.

CONTRARY TO LAW.

Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 and
May 28, 2001, respectively, both pleading not guilty to the charges against
them.20

Ruling of the Sandiganbayan

After due proceedings, the Sandiganbayan rendered its Decision21


dated June 28, 2005, the decretal portion of which reads:

20
Records, Vol. I, pp. 89 and 219.
21
Rollo, pp. 48-71.
Decision 7 G.R. Nos. 168951 & 169000

ACCORDINGLY, this Court finds both accused Roger R.


Posadas and Rolando P. Dayco GUILTY beyond reasonable doubt of
violating Section 3(e) of RA 3019 and Section 7(b) of RA 6713 and are
sentenced to suffer the following penalties:

For violation of Section 3(e) of RA 3019: accused Posadas and


Dayco are sentenced to suffer in prison the indeterminate penalty of nine
(9) years and one day as minimum and twelve (12) years as maximum,
with the accessory penalty of perpetual disqualification from public office.
Both accused are directed to jointly and severally indemnify the
Government of the Republic of the Philippines the amount of THREE
HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00).

For violation of Section 7(b) of RA 6713: accused Posadas and


Dayco are sentenced to suffer in prison the maximum penalty of five (5)
years and disqualification to hold public office.

SO ORDERED.22

The Sandiganbayan held that the evidence supports a finding of


evident bad faith on the part of petitioners who, knowing very well the
limitations of Dr. Dayco’s power as OIC, effected the appointment of Dr.
Posadas as TMC Project Director and Consultant. These limitations are
based on the nature of the power to appoint which is merely delegated to the
Chancellor by the BOR, Section 204 of the Government Accounting and
Auditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of
appointments.

The Sandiganbayan concluded that petitioners’ acts caused undue


injury to the Government with the receipt by Dr. Posadas of salaries and
consultancy fees. Petitioners’ contention that the Government did not suffer
loss or damage since the funding for the TMC Project came from CIDA was
rejected by the Sandiganbayan which stated that from the moment UP
received the CIDA funds intended for the TMC Project, said funds became
“impressed with public attributes or character,” as in fact it was subjected to
the control of UP and audited by the COA.

The Sandiganbayan likewise found no merit in petitioners’ claim that


they were just victims of “university politics”as they were staunch critics of
President Javier. Petitioners adduced documentary and testimonial evidence
to show that Ms. Del Mundo’s filing of a complaint against petitioners was
triggered by the fact that it was Dr. Posadas who ordered an administrative
investigation against her and recalled her to the University Library, which
incident led to the resignation of Prof. Tabbada from TMC. However, the
Sandiganbayan stressed that regardless of the reason for the filing of the
cases against petitioners at the university level, these cases would not have
come into being if no law has been violated in the first place.

22
Id. at 70.
Decision 8 G.R. Nos. 168951 & 169000

Petitioners filed a motion for reconsideration but it was denied due


course for the reason that it has not been set for hearing as required by the
rules, hence the motion ispro forma.

In this petition for certiorari, petitioners allege grave abuse of


discretion and blatant violation of their constitutionally guaranteed right to
due process.

The Issues

The Court is asked to resolve whether the Sandiganbayan committed


grave abuse of discretion amounting to lack of or in excess of jurisdiction:
(1) in denying petitioners’ motion for reconsideration on the ground that it
was not set for hearing; and (2) in convicting petitioners of Violation of
Section 3(e) of R.A. No. 3019 and Section 7(b) of R.A. No. 6713 on the
basis of facts not supported by evidence and on inapplicable rules and
principles.

Petitioners’ Arguments

Petitioners argue that the July 19, 2005 Resolution denying their
motion for reconsideration is not only baseless, but capricious, arbitrary and
most unjust because the Revised Internal Rules of the Sandiganbayan does
not require that the motion for reconsideration be set for hearing. They cite
the case of Alvarez v. Sandiganbayan23 where this Court ruled that motions
for reconsideration of decisions or final orders of the Sandiganbayan are not
governed by Rule 15 of the Rules of Court, as these may be filed within 15
days from promulgation or notice of the judgment or final order “upon the
grounds, in the form and subject to the requirements, for motions for new
trial in criminal cases under Rule 121 of the Rules of Court.”

On the charges of graft, petitioners assert that they did not act with
bad faith, manifest partiality or gross inexcusable negligence. They reiterate
that Dr. Dayco’s designation as OIC Chancellor was adjusted for one day
merely to accommodate the change in the official travel schedule of Dr.
Posadas to China. The appointment of Dr. Posadas as TMC Project Director
and Consultant was a valid appointment and was made retroactive for no
other reason than to synchronize the activities relative to the TMC Project
with the project schedule as approved by the funding agency. The power of
appointment was within the power of the Chancellor to delegate to the OIC
Chancellor, it not being expressly prohibited by the University rules. Such
practice, in fact, is not an unusual occurrence in UP.

23
278 Phil. 566, 577 (1991).
Decision 9 G.R. Nos. 168951 & 169000

Petitioners also contend that no injury was caused to the government


because the TMC Project budget came from foreign funds, hence not an
expense incurred by the Government and neither did UP incur any expense
in relation to the said project, its counterpart funding was not in the form of
money.Consequently, there can be no conviction under the law in the
absence of real or actual damage suffered.

On the “honoraria” and fees received by Dr. Posadas as Project


Director and Consultant, petitioners insist they cannot be held liable for
double compensation because these were given for separate services
rendered by Dr. Posadas. As opined by the UP Chief Legal Officer, the
compensation were in the nature of consultancy fees being received by UP
personnel in their capacity as private persons for services to a project outside
of their official time, hence it is not covered by the DBM NCC No. 75.
Moreover, petitioners stress that Dr. Posadas did not receive any
unwarranted benefit, advantage or preference in his appointment as TMC
Project Director and Consultant. Dr. Posadas possesses the superior
qualifications and expertise in the field of technology management necessary
to ensure that the project was a success. In fact, his colleagues were
expecting him to head the TMC Project and did not oppose his appointment.

As to the charge of unauthorized outside employment, petitioners


point out that the University rules do not require clearance from the UP
President to engage in consultancy work and the same rules do not prohibit
him from performing consultancy work for a project such as TMC.
Therefore, Dr. Posadas’ appointment as TMC Project Director and
Consultant were not prohibited outside employment.

Petitioners reiterate their“university politics” defense, claiming that


President Javier at the time chose to champion Del Mundo’s complaint
motivated by vengeance and spite against two of his staunch critics. Thus,
despite knowledge of the opinion of the UP Chief Legal Officer clearing
petitioners of any wrongdoing, President Javier underhandedly caused the
filing of administrative charges in the ADT.

Petitioners further submit that the complainant before the


Ombudsman, Atty. Carmelita Yadao, was incompetent as she had no
personal knowledge of the contents thereof, which were merely narrated or
reported to her in her capacity as General Counsel of UP at that time. The
letter-complaint should not have been given due course as it was based on
pure hearsay and its main proponent suffered from conflicting interests
because she had earlier endorsed the MOA which included the compensation
package for TMC Project Director and Consultant.

Finally, petitioners deny having acted in conspiracy as there was no


evidence to prove it. The only assumed fact considered by the
Sandiganbayan is based on its erroneous hypothesis – the alleged act of
“extending” the period of OIC Chancellor for one day to accommodate Dr.
Decision 10 G.R. Nos. 168951 & 169000

Posadas. Dr. Dayco did not even gain anything from his designation of Dr.
Posadas. Thus, in the absence of clear and convincing proof, petitioners
cannot be held liable as conspirators.

Our Ruling

The petition has no merit.

Notice of Hearingin Motions


forReconsiderationIs Mandatory

Contrary to petitioners’ stance, the 2002 Revised Internal Rules of the


Sandiganbayan requires a motion for reconsideration to be set for hearing, as
it provides under Rule VII:
SECTION 1. Motion Day. - Except for motions which may be
acted upon ex parte, all motions shall be scheduled for hearings on a
Friday, or if that day is a non-working holiday, on the next working day.

Motions requiring immediate action may be acted upon on shorter


notice.

In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997


Rules of Civil Procedure, as amended, on Motions shall apply. (Emphasis
supplied.)

Under the Rules of Sandiganbayan, effective January 10, 1979, a


petition for reconsideration of a judgment or final order may be filed upon
the grounds, in the form and subject to the requirements, for motions for new
trial in criminal cases under Rule 121 of the Rules of Court.24 In the case of
Alvarezv. Sandiganbayan25 decided in 1991, the Court upheld the
Sandiganbayan in not considering “the failure of the movant to fix the place,
date and time of the hearing of his motion a substantial defect, for instead of
giving the motion a short shrift, it set the incident for hearing, and even
granted the prosecution ten days from [notice] within which to
oppose/comment.” The Court noted what was then the practice of the
Sandigabayan itself, rather than the movant, to determine the date and time
of hearings of motions. The peculiar circumstances of said case
heavilyweighed in favor of relaxation of the rules, with the Court’s finding
that the evidence presented against the petitioner does not fulfill the test of
moral certainty and may not be deemed sufficient to support a conviction.
Hence, the Court was not prepared “to declare that [petitioner’s] omission to
set his motion for hearing is so grievous an error as to foreclose the award to
him of the relief to which he is otherwise entitled.”

24
Rule XII.
25
Supra note 23, at 576-578.
Decision 11 G.R. Nos. 168951 & 169000

In any event, the mandatory setting for hearing a motion for


reconsideration to reverse or modify a judgment or final order of the
Sandiganbayan is already settled. This Court categorically ruled in the
recent case of Flores v. People26
Flores filed a motion for the reconsideration. As the motion did
notcontain any notice of hearing, the Prosecution filed its Motion to
Expungefrom the Records Accused’s Motion for Reconsideration.”

In its Resolution, dated November 29, 2007, the


Sandiganbayandenied the motion for being a mere scrap of paper as it did
not contain anotice of hearing and disposed as follows:

WHEREFORE, in view of the foregoing, the


Motion for Reconsiderationof accused Flores is considered
pro forma which did not toll the running of the period to
appeal, and thus, the assailed judgment of this Court has
become FINALand EXECUTORY.

SO ORDERED.

xxxx

Flores claims that the outright denial of his motion for


reconsiderationby the Sandiganbayan on a mere technicality amounts to a
violation of hisright to due process. The dismissal rendered final and
executory the assaileddecision which was replete with baseless conjectures
and conclusions thatwere contrary to the evidence on record. He points out
that a relaxation ofprocedural rules is justified by the merits of this case as
the facts, viewedfrom the proper and objective perspective, indubitably
demonstrate self-defenseon his part.

Flores argues that he fully complied with the requirements of


Section2 of Rule 37 and Section 4 of Rule 121 of the Rules of Court when
themotion itself was served upon the prosecution and the latter, in
fact,admitted receiving a copy. For Flores, such judicial admission
amounts togiving due notice of the motion which is the intent behind the
said rules. Hefurther argues that a hearing on a motion for reconsideration
is not necessaryas no further proceeding, such as a hearing, is required
under Section 3 ofRule 121.

Flores’ argument fails to persuade this Court.

Section 5, Rule 15 of the Rules of Court reads:

SECTION 5. Notice of hearing. – The notice of


hearing shallbe addressed to all parties concerned, and shall
specify the time anddate of the hearing which must not be
later than ten (10) days afterthe filing of the motion.

Section 2, Rule 37 provides:

SEC. 2. Contents of motion for new trial or


reconsiderationand notice thereof. – The motion shall be
made in writing statingthe ground or grounds therefore, a

26
G.R. No. 181354, February 27, 2013.
Decision 12 G.R. Nos. 168951 & 169000

written notice of which shall beserved by the movant on the


adverse party.

xxxx

A pro forma motion for new trial or reconsideration shallnot toll


the reglementary period of appeal.

Section 4, Rule 121 states:

SEC. 4. Form of motion and notice to the


prosecutor. – The motion for a new trial or reconsideration
shall be in writing and shall state the grounds on which it is
based. x x x. Notice of the motion for new trial or
reconsideration shall be given to the prosecutor.

As correctly stated by the Office of the Special Prosecutor (OSP),


Sec.2 of Rule 37 and Sec. 4 of Rule 121 should be read in conjunction
with Sec.5 of Rule 15 of the Rules of Court. Basic is the rule that every
motion mustbe set for hearing by the movant except for those motions
which the courtmay act upon without prejudice to the rights of the adverse
party. Thenotice of hearing must be addressed to all parties and must
specify the timeand date of the hearing, with proof of service.

This Court has indeed held, time and again, that under Sections 4
and5 of Rule 15 of the Rules of Court, the requirement is mandatory.
Failure tocomply with the requirement renders the motion defective.
“As a rule, amotion without a notice of hearing is considered pro
forma and does notaffect the reglementary period for the appeal or
the filing of the requisitepleading.”

In this case, as Flores committed a procedural lapse in failing to


include a notice of hearing, his motion was a worthless piece of paper with
no legal effect whatsoever. Thus, his motion was properly dismissed by
theSandiganbayan.27 (Emphasis supplied.)

We thus find no grave abuse of discretion committed by the


Sandiganbayan when it denied due course to petitioners’ motion for
reconsideration on the ground that it “has not been set for hearing as
required by the rules” and the same is “deemed pro forma.”

Violation of Section 3(e)of R.A. No.


3019

The essential elements of the crime defined in Section 3(e) of R.A.


No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act,
are:
1. The accused must be a public officer discharging administrative,
judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith or


inexcusable negligence; and

27
Id. at 6-8.
Decision 13 G.R. Nos. 168951 & 169000

3. That his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his functions.28

There is no question regarding the presence of the first requisite


considering that at the time the subject appointments were made, both
petitioners were faculty members and holding administrative positions in UP
Diliman. What petitioners dispute is the existence of the second and third
requisites.

In Criminal Case No. 25465, the information charged that petitioners


willfully, unlawfully and criminally gave unwarranted benefits to Dr.
Posadas in appointing him as TMC Project Director, in violation of the
prohibition against multiple positions and the rule on non-retroactivity of
appointments, thereby causing undue injury to the Government.

In Cabrera v. Sandiganbayan,29 this Court explained that there are


two (2) ways by which a public official violates Section 3(e) of R.A. No.
3019 in the performance of his functions, namely: (a) by causing undue
injury to any party, including the Government; or (b) by giving any private
party any unwarranted benefits, advantage or preference. The accused may
be charged under either mode or under both. Moreover, in Quibal v.
Sandiganbayan,30 the Court held that the use of the disjunctive term“or”
connotes that either act qualifies as a violation of Section 3(e) of R.A. No.
3019.31 Here, petitioners were charged with committing the offense under
both modes.

Upon the entire evidence on record, the Sandiganbayan was


convinced that petitioners were guilty of causing undue injury to the
Government. In Llorente, Jr. v. Sandiganbayan,32 this Court said that to
hold a person liable for causing undue injury under Section 3(e), the
concurrence of the following elements must be established beyond
reasonable doubt by the prosecution:
(1) that the accused is a public officer or a private person charged in
conspiracy with the former;

(2) that said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her
public positions;

(3) that he or she causes undue injury to any party, whether the
government or a private party; and

(4) that the public officer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence.

28
Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).
29
484 Phil. 350, 360(2004).
30
314 Phil. 66 (1995).
31
Velasco v. Sandiganbayan, 492 Phil. 669, 677(2005).
32
350 Phil. 820, 837 (1998).
Decision 14 G.R. Nos. 168951 & 169000

We sustain the decision of the Sandiganbayan holding petitioners


liable for causing undue injury to the Government in appointing Dr. Posadas
as TMC Project Director with evident bad faith.

Bad faith does not simply connote bad judgment or negligence; it


imputes a dishonest purpose or some moral obliquity and conscious doing of
a wrong; a breach of sworn duty through some motive or intent or ill will; it
partakes of the nature of fraud.33It contemplates a state of mind affirmatively
operating with furtive design or some motive of self interest or ill will for
ulterior purposes.34Evident bad faith connotes a manifest deliberate intent on
the part of the accused to do wrong or cause damage.35

In Pecho v. Sandiganbayan,36 the Court en banc defined injury as


“any wrong or damage done to another, either in his person, or in his rights,
reputation or property; the invasion of any legally protected interests of
another.” It must be more than necessary or are excessive, improper or
illegal. It is required that the undue injury caused by the positive or passive
acts of the accused be quantifiable and demonstrable and proven to the point
of moral certainty.37“Undue” means illegal, immoral, unlawful, void of
equity and moderations.38

In this case, that petitioners acted in evident bad faith was duly
established by the evidence. We recall that the MOA was executed on
September 18, 1995 and became effective upon the signature of the parties.39
Between that date and the China trip scheduled in the first week of
November (the invitation was dated July 30, 1995), Dr. Posadas could have
already appointed the Project Director and Consultant as indeed the
retroactive appointment was even justified by them because supposedly
“project activities” have already started by September 18, 1995. And yet,
he waited until the China trip so that in his absence the designated OIC
Chancellor, Dr. Dayco, would be the one to issue the appointment.
Apparently, Dr. Posadas’ appointment by Dr. Dayco in an OIC capacity was
pre-conceived. Prof. Jose Tabbada testified that when he was summoned by
Dr. Posadas to his office, the latter asked him how he (Posadas) could be
appointed TMC Project Director. He then suggested that Dr. Dayco as OIC
Chancellor can appoint him to the position and even drafted the memo for
this purpose. He admitted that he gave such advice with some reservations
but it turned out to have been pursued by petitioners.40

33
Llorente, Jr. v. Sandiganbayan, id. at 843, citing Spiegel v. Beacon Participations, 8 NE 2nd Series,
895, 1007.
34
Id., citing Air France v. Carrascoso, No. L-21438, September 28, 1966, 18 SCRA 155, 166-167.
35
Id., citing Marcelo v. Sandiganbayan, G.R. No. 69983, May 14, 1990, 185 SCRA 346.
36
G.R. No. 111399, November 14, 1994, 238 SCRA 116, 133.
37
Cabrera v. Sandiganbayan, supra note 29, at 364-365, citing Jacinto v. Sandiganbayan, supra note 28,
at 27 and Llorente v. Sandiganbayan, supra note 32, at 838.
38
Id. at 364.
39
MOA, Sec. 19, Exhibit “24,” folder of exhibits (Defense).
40
TSN, January 7, 2002, pp. 14-16, 18-19.
Decision 15 G.R. Nos. 168951 & 169000

However, the Sandiganbayan ruled that the delegated authority of the


OIC Chancellor has limitations and did not include the power to appoint.

Section 204 of the Government Accounting and Auditing Manual


(Volume I on Government Auditing Rules and Regulations) provides:
Sec. 204. Appointment issued by an officer-in-charge. -- A person
designated in an acting capacity may be differentiated from one who is
designated merely as an Officer-in-Charge (OIC). In the latter case, the
OIC enjoys limited powers which, are confined to functions of
administration and ensuring that the office continues its usual activities.
The OIC may not be deemed to possess the power to appoint employees as
the same involves the exercise of discretion which is beyond the power of
an OIC (CSC Res. 1692, Oct. 20, 1978).

To prove the alleged practice in the University of an OIC appointing a


Chancellor to a certain position, petitioners presented copies of temporary
appointment papers issued by OIC Chancellor Paz G. Ramos to former
Chancellor Ernesto G. Tabujara who was appointed Consultant-In-Charge of
the Campus Planning, Development and Maintenance Office, UP Diliman
with P2,000.00 monthly honorarium effective January 1, 1986 to December
31, 1986. It must be noted, however, that the said appointment was made
by the OIC “by authority of the Board of Regents” and these were actually
approved and signed by then Secretary of the University, Prof. Martin V.
Gregorio, while the renewal appointment was approved by Secretary of the
University Prof. Emerlinda R. Roman. Both Gregorio and Roman signed the
Notification of Approval of Temporary Appointment.41

Petitioners nonetheless argue that the appointments made by Dr.


Dayco were valid on the basis of Section 9(a) of the Resolution of the BOR
reorganizing UP into the UP System adopted at its 828th meeting on
December 21, 1972, as amended at its 863rd meeting on July 31, 1975.
Under said resolution, the BOR authorized the Chancellor of an autonomous
university of the UP System to delegate his functions and responsibilities
which have been assigned or delegated to him by the BOR, unless instructed
otherwise by the BOR. It also enumerated those functions that may not be
delegated, among which is:
B. Functions That May Not Be Delegated
xxxx

f. Authority to approve the following appointments –

(1) those covered in II, C, 1, and e of the President’s Memorandum


Circular No. 30 dated August 28, 1975; and

(2) those covered in II, C, 4, a through c of the aforecited


memorandum circular of the President;

x x x x42

41
Exhibits “19,”“19-A,”“19-B,”“20,”“20-A,”“20-B,”“21” and “21-A,”folder of exhibits (Defense).
42
Exhibit “25,” id.
Decision 16 G.R. Nos. 168951 & 169000

MC No. 30 dated August 28, 1975 issued by former UP President


Onofre D. Corpuz providedfor “Operating Guidelines on Appointments and
Related Personnel Transactions in the University System,” which
specifically delineated the authority to appoint of university officials.

The pertinent provisions of said MCNo. 30 read:


C. Delegated Authority of the Chancellor to Appoint

1. The Chancellor of an autonomous University approves appointments


to the following positions:

a. directors or heads and assistant directors or assistant heads of


units supervised by or attached to principal units, except those
whose starting salaries are equal to or higher than that of
associate professor;

b. program or project directors;

xxxx

5. The Chancellor approves the appointment of personnel, regardless


of rank or salary range, incidental to employment in research
projects, study and training programs and other programs or
projects undertaken in collaboration with, or with the support
of, public or private institutions or persons.

TYPES OF APPOINTMENT/PERSONNEL ACTION


COVERED:

Appointment as used in II, C, 5 above includes all


types of appointment and personnel action pertaining
to appointment, except transfer to permanency of
faculty members. (Emphasis supplied.)

According to petitioners, since appointments falling under II, C, 5 was


not specifically mentioned in the enumeration of those functions of the
Chancellor that may not be delegated, it follows that such appointments may
be validly delegated, as in this case, the appointments issued by OIC
Chancellor Dayco to Dr. Posadas as TMC Project Director and Consultant.
Moreover, it is argued that in the BOR Resolution itself, the designated OIC
Chancellor was granted full powers:
E. Extent of Authority of One Appointed in an Acting/Officer-in-Charge
Capacity

One appointed/designated, in an acting or officer-in-charge


capacity, to the office of chancellor shall discharge all the functions of
the position unless instructed otherwise by the regular incumbent, and
in any case, subject to the latter’s instructions, to the policies of the
Board of Regents and to the provisions of D hereinabove and of F
hereinbelow; provided, that “all the functions of the position” as used
in and for purposes of this resolution shall be construed as inclusive of
all the functions assigned to the position by competent University
authority and all such functions as usually pertain, or are “inherent,” to
Decision 17 G.R. Nos. 168951 & 169000

the position although not expressly assigned thereto by competent


University authority.

Petitioners’ argument fails to persuade.

It must be emphasized that the subject appointments involve not an


ordinary personnel or faculty member but the Chancellor himself who was
also vested with administrative supervision over the institution
implementing the TMC Project, TMC. Note that while II, C, 5 in MCNo. 30
speaks of “personnel, regardless of rank or salary range, incidental to
employment,” the same could not possibly refer to the Chancellor himself.
This is evident from the exception provided in II, B, 1where it is the
President himself who approves the appointment, viz:
B. Delegated Authority of the President to Appoint

1. The President approves the appointment of officers and employees


(including faculty members if there are any) who are not included
in or covered by the enumerations in II, A above and of those who
are covered in II, C, 5 below who are:

a. in or directly under the Office of the President; or


b. in University-wide units; or
c. in other offices or units, academic or non-academic, that are
not part of any autonomous University;

to the same extent and under the same conditions stipulated in II, C
below for the delegated authority of the Chancellor of an
autonomous University to appoint.

TYPES OF APPOINTMENT/PERSONNELACTION
COVERED:

Appointment as used in II, B, 1 above includes all types of


appointment and personnel action pertaining to appointment,
except transfer to permanency of faculty members. (Emphasis
supplied.)

Considering that it is the Chancellor himself who is being appointed


to a project covered in II, C, 5, the BOR resolution on the authority of the
Chancellor to delegate his functions may not be invoked because the
situation is covered by II, B, 1, the Chancellor being directly under the
administrative supervision of the UP President as the Chief Executive
Officer of the University. The Chancellor, on the other hand, is the executive
officer and the head of the faculty of the Constituent University, who
likewise performs other functions that the BOR or the President may
delegate to her/him. This is clearly indicated in the organizational structure
of the UP Diliman, sourced from the Faculty Manual of the University of the
Philippines Diliman43:

43
Published in 2003.
Decision 18 G.R. Nos. 168951 & 169000

Board of Regents

President

Chancellor University Council

Vice Chancellor Vice Vice Vice Chancellor Vice Chancellor


for Academic Chancellor for Chancellor for for Community for Research and
Affairs Administration Student Affairs Affairs Development

Deans

Faculty

Thus, even granting that the subject appointments in UP Diliman, an


autonomous educational institution, are not covered by Section 204 of the
Government Accounting and Auditing Manual, they are still invalid and
illegal, because the delegated authority to appoint in this case, involving as it
does the Chancellor himself, pertains to the President of the University.
Indeed, the Chancellor cannot exercise the delegated authority to appoint in
the situations covered by II, C, 5 when he himself is the appointee. The
designated OIC likewise had no authority to make the appointment.

As to the prohibition on government officials and employees, whether


elected or appointed, from holding any other office or position in the
government, this is contained in Section 7, Article IX-B of the 1987
Constitution, which provides:
xxxx

Unless otherwise allowed by law or by the primary functions of his


position, no appointive 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. (Emphasis supplied.)

The prohibition on dual employment and double compensation in the


government service is further specified under Sections 1 and 2, Rule XVIII
of the Omnibus Rules Implementing Book V of E.O. No. 292,44 as follows:

44
See Re: Gross Violation of Civil Service Law on the Prohibition Against Dual Employment and
Double Compensation in the Government Service Committed by Mr. Eduardo V. Escala, SC Chief
Judicial Staff Officer, Security Division, Office of Administrative Services, A.M. No. 2011-04-SC, July
5, 2011, 653 SCRA 141, 149-150.
Decision 19 G.R. Nos. 168951 & 169000

Sec. 1. No appointive official shall hold any other office or


employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations with original charters or their subsidiaries, unless otherwise
allowed by law or by the primary functions of his position.

Sec. 2. No elective or appointive public officer or employee shall


receive additional, double, or indirect compensation, unless specifically
authorized by law, xxx.

Under Section 2(d), Rule III of the Revised Omnibus Rules on


Appointments and Other Personnel Actions,45 appointments of personnel
under Foreign-assisted projects shall be issued and approved as coterminous
with the project. The MOA itself provides that the “services of the
contractual personnel of the University for the Project shall be discontinued
upon its completion or termination.” The appointment of Dr. Posadas as
TMC Project Director falls within the prohibition against holding of multiple
positions since there is no distinction in Section 7, Article IX-B as to the
employment status, i.e., whether permanent, temporary or coterminous.
Petitioners failed to cite any law to justify Dr. Posadas’ holding of
concurrent positions as Chancellor and TMC Project Director.

Another legal infirmity in the appointment of Dr. Posadas as TMC


Project Director is the fact that it was made retroactive, in violation of CSC
MC No. 38, Series of 1993, the Omnibus Guidelines on Appointments and
Other Personnel Actions. Section II, 5 B (7) thereof reads:
7. Effectivity of Appointment

a. The effectivity of an appointment shall be the date of actual


assumption by the appointee but not earlier than the date of issuance of
the appointment, which is the date of signing by the appointing
authority.

b. No appointment shall be made effective earlier than the date of


issuance, except in the case of change of status in view of qualifying in
written examination, the effectivity of which is the date of release of
the result of the examination. However, the issuance of such
appointments shall be within the period of the temporary appointment
or provided the temporary appointment has not yet expired.

xxxx

Petitioners assert that appointment as TMC Project Director is not


covered by the above rule because it is in the nature of consultancy which is
no longer required to be submitted to the CSC.

A perusal of the duties and responsibilities of the TMC Project


Director reveals that the latter is tasked to perform the following:

45
CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s.
1998.
Decision 20 G.R. Nos. 168951 & 169000

 Provide overall direction to the Project;


 Exercise supervision over Project personnel, including the visiting
experts;
 Approve the recruitment of personnel, disbursement of Project
funds, and changes in the Project activities and schedule;
 Coordinate with other persons, agencies and institutions involved
in technology management;
 Perform such other functions as may be necessary to ensure the
efficient, orderly and effective management and timely completion
of the Project.46

The foregoing duties and responsibilities are not susceptible of partial


performance or division into parts as would justify its classification into
lump sum work. Neither are these advisory in nature as would make it fall
under the scope of a consultancy service.47 The status of Dr. Posadas’
employment as TMC Project Director is a coterminous one. Under civil
service rules, appointments of personnel under foreign-assisted projects shall
be issued and approved as coterminous with the project,48 that is, they are
considered employees for the duration of the project, in which case, the
name of the project and its completion date shall be indicated in the
appointment.49 This status of employment is to be distinguished from
contract of services which covers lump sum work or services such as
janitorial, security or consultancy services, whose appointments need not be
submitted to the CSC for approval.

We also find no merit in petitioners’ argument that the element of


injury caused to the Government is lacking since the budget for TMC
Project came from a foreign source and hence no public funds are involved.
Under the MOA, UP shall be “principally accountable for the project funds”
which shall be released to and properly managed by it to ensure the
attainment of the Project’s objectives. Clearly, these funds are in the nature
of “trust fund” which is defined by Presidential Decree No. 1445 as “fund
that officially comes in the possession of an agency of the government or of
a public officer as trustee, agent or administrator, or that is received for the
fulfillment of some obligation.50 A trust fund may be utilized only for the
“specific purpose for which the trust was created or the funds received.”51
The Sandiganbayan thus correctly held that the funds received for the TMC
Project were impressed with public attributes or character from the time it
came into UP’s possession.

The disbursement and payment of the P30,000.00 monthly salary as


TMC Project Director to Dr. Posadas was improper, in view of his invalid
appointment. Said amount represents the actual injury to the

46
Exhibit “55-A,”folder of exhibits (Defense).
47
See CSC Resolution No. 030102 dated January 22, 2003 (Edmundo R. Calo).
48
Chua v. Civil Service Commission, G.R. No. 88979, February 7, 1992, 206 SCRA 65, 74.
49
Rule III, Sec. 2,d (e), CSC Memorandum Circular No. 40, Series of 1998.
50
Sec. 3(4), P.D. No. 1445.
51
Sec. 4(3), id.
Decision 21 G.R. Nos. 168951 & 169000

Government.The third requisite of Section 3(e) of R.A. No. 3019, therefore,


was sufficiently established by the prosecution.

Violation of Section 7(b),R.A. No.


6713

In Criminal Case No. 25466, the charge involves the private practice
of profession prohibited under Section 7(b) of R.A. No. 6713, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials
and Employees, by appointing Dr. Posadas as Consultant of the TMC
Project. Said provision reads:
SEC. 7. Prohibited Acts and Transactions. – In addition to acts
and omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby
declared to be unlawful:

xxxx

(b) Outside employment and other activities related thereto. –


Public officials and employees during their incumbency shall not:

xxxx

(2) Engage in the private practice of their profession unless


authorized by the Constitution or law, provided that such practice will not
conflict or tend to conflict with their official functions; or

xxxx

Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a


contract for consultancy services is not covered by Civil Service Law, rules
and regulations because the said position is not found in the index of
position titles approved by DBM. Accordingly, it does not need the
approval of the CSC.52CSC MC No. 38, series of 1993 expressly provides
that consultancy services are not considered government service for
retirement purposes.A “consultant” is defined as one who provides
professional advice on matters within the field of his special knowledge or
training. There is no employer-employee relationship in the engagement of
a consultant but that of client-professional relationship.53

Consultancy is deemed private practice of profession. Under CSC


Resolution 02126454 dated September 27, 2002, accepting a consultancy job
under a part-time status is subject to the following conditions:

52
See COA Circular No. 95-001 dated January 20, 1995 citing Office Memorandum No. 55, series of
1993 of the CSC relative to the new policies on appointment.
53
CSC Resolution No. 95-6939 (Pagaduan v. Malonzo) dated November 2, 1995, cited in Justice Arturo
D. Brion’s Dissenting Opinion in A.M. No. 10-9-15-SC, Re: Request of (Ret.) Chief Justice Artemio V.
Panganiban for Recomputation of His Creditable Service for the Purpose of Re-computing His
Retirement Benefits, February 12, 2013.
54
Query re: Consultancy, Mayumi Juris A. Luna.
Decision 22 G.R. Nos. 168951 & 169000

1. It must not violate the rule against holding multiple positions;

2. The employee/officer must obtain permission or authority from his/her


head of agency as the same constitutes private practice of profession;

3. The consultancy job must not conflict or tend to conflict with his/her
official functions; and

4. It must not affect the effective performance of his/her duty.

In convicting petitioners, the Sandiganbayan cited Article 250 of the


University Code, which provides:
Art. 250. No member of the academic staff, officer or employee of
the University shall, without permission from the President or the
Chancellor, as the case may be, practice any profession or manage
personally any private enterprise which in any way may be affected by the
functions of his office, nor shall he be directly financially interested in any
contract with the University unless permitted by the Board. Violation of
this provision shall be punishable by reprimand, suspension, or dismissal
from the service. (Emphasis supplied.)

Since Dr. Posadas and Dr. Dayco entered into the contract for
consultancy services for the TMC Project without prior permission from the
University President, the Sandiganbayan ruled that they violated Section
7(b) of R.A. No. 6713.

Petitioners contend that the section of the University Code cited by


the Sandiganbayan had already been superseded by the guidelines on outside
activities promulgated by the BOR at its 1031st Meeting on June 28, 1990.
Thus, in the Faculty Manual of the University of the Philippines Diliman
while the consultancy at TMC Project falls under the coverage of “outside
activities,” prior authorization by the University President is no longer
required. The pertinent provisions of the manual read:
10.3 Guidelines on Outside Activities [1031st BOR meeting, June 28,
1990]

10.3.1 Coverage

Outside activities of University personnel shall include:


limited practice of profession, management of private enterprises,
outside consultancy, secondment, teaching in other educational or
training institutions with which the University has a Memorandum
of Agreement, as well as research and other activities or projects
under the auspices of outside agencies which are not considered
integral functions of the University. Such activities shall not be
considered part of the regular workload of the personnel
concerned.

10.3.2 Prior Authorization

No member of the University personnel shall engage in


outside activities without prior authorization from the
Decision 23 G.R. Nos. 168951 & 169000

Chancellor, upon endorsement by the Dean, Director, or head of


office concerned, subject to the exigencies of the service.
xxxx
10.3.5 Penalties
Violation of any of the rules on outside activities shall be
ground for disciplinary action. The immediate superior of the
faculty/staff member shall immediately submit a report on any
violation of the rules to the Office of the Chancellor, through
channels.
Disciplinary action on any faculty/staff member may be
imposed, but only in accordance with the law, and after due
process.
10.3.6 Types
xxxx
c. Limited/private practice of profession
Permission to engage in private practice of the profession of
faculty members may be granted only if such private practice may
enhance their usefulness to the University or improve their
efficiency. [Art. 252]
The privilege of private practice, when granted, shall be for
a definite period of one (1) year, renewable at the discretion of the
Chancellor for one-year periods, and under such conditions as may
be prescribed by him/her regarding the nature of the work, the time
of performance, and other circumstances. [Art. 253; amended at
BOR meetings: 839th, Nov. 29, 1973; 1031st, June 28, 1990]

The limited practice of one’s profession shall be governed


by the following guidelines:
1) No member of the academic staff, officer or employee
of the University shall, without prior permission from
the Chancellor, practice any profession or manage
personally any private enterprise which in any way may
be affected by the functions of her/his office; nor shall
s/he be directly financially interested in any contract
with the University unless permitted by the Board.
Violation of this provision shall be punishable by
reprimand, suspension, or dismissal from the service.
[Art. 250; amended at 1031st BOR meeting, June 28,
1990]
2) Permission to engage in private practice of profession
may granted provided that such practice:
 is NOT ADVERSE to the interests of the
University;
 shall NOT be conducted on official time;
 will improve the person’s efficiency and usefulness
to the University; and
 shall be subject to such other requirements as may
be imposed by law or University rules and
regulations. (Emphasis supplied.)
Decision 24 G.R. Nos. 168951 & 169000

Notwithstanding the supposed amendment of the rule on limited


practice of profession as contained in Article 250 of the University Code, we
sustain the Sandiganbayan in holding that petitioners should have obtained
prior permission from the University President for the contract for
consultancy services in the TMC Project. As with our conclusion on the
issue of authority to appoint the TMC Project Director, considering that it is
the Chancellor himself who was engaged as TMC Project Consultant, the
contract for consultancy services of Dr. Posadas should have been
authorized by the University President as the chief executive officer of the
UP System. To hold otherwise is to leave the matter of determining the
criteria or conditions for allowing the private practice of profession provided
in the University rules entirely to Dr. Posadas himself as then UP Diliman
Chancellor. Consistent with the Civil Service rules that prior authorization
by the head of the agency or institution must be sought by the government
officer or employee who desires to accept a consultancy job, it is no less
than the University President who should have given permission to Dr.
Posadas, the latter being directly under his administrative supervision.

Upon the established facts and applicable law and jurisprudence, we


hold that no grave abuse of discretion was committed by the Sandiganbayan
in convicting petitioners for violation of Section 7(b) of R.A. No. 6713.

Conspiracy

A conspiracy is proved by evidence of actual cooperation; of acts


indicative of an agreement, a common purpose or design, a concerted action
or concurrence of sentiments to commit the felony and actually pursue it.55For
the accused to be held as conspirators, it is not necessary to show that two or
more persons met together and entered into an explicit agreement setting out
the details of an unlawful scheme or the details by which an illegal objective
is to be carried out.” Therefore, if it is proved that two or more persons aimed
by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal association and
a concurrence of sentiment, then a conspiracy may be inferred though no
actual meeting among them to concert means is proved.56

The Sandiganbayan’s finding of conspiracy rests on firm factual


support. Although Dr. Dayco tried to downplay his participation, statingthat
he did not benefit from the subject appointments and that there were many
other appointment papers he had signed in the absence of Dr. Posadas,it is
clear as daylight that he had a principal and indispensable role in effecting
the said appointments. To stress the point, the Sandiganbayan quoted the
relevant portions of the Report submitted by the ADT, as follows:
55
Lazarte, Jr. v. Sandiganbayan (First Division), G.R. No. 180122, March 13, 2009, 581 SCRA 431, 450.
56
Guy v. People, G.R. Nos. 166794-96, 166880-82 & 167088-90, March 20, 2009, 582 SCRA 107, 125,
citing People v. Quinao, et al., 336 Phil. 475, 488-489 (1997) and People v. Layno, 332 Phil. 612, 629
(1996).
Decision 25 G.R. Nos. 168951 & 169000

It would be the height of naiveté to assume that before making the


two (2) appointments of respondent Posadas as Director of the TMC
Project and as Consultant to the TMC, respondent Dayco did not, in any
manner, confer with respondent Posadas about the matter. To believe the
claim of respondent Posadas that he just saw his appointment papers at his
desk when he came back from his trip is to tax human credulity too much.
Under the said circumstances, the natural course of events
necessarily points to connivance between respondent Posadas and
respondent Dayco in the making of the questioned appointments.
Despite the claim of respondent Posadas that he just saw the
appointment papers on his desk when he returned from his trip, the
admitted fact is that respondent Dayco made those appointments for
respondent Posadas and the latter acted upon the same favourably as he
(respondent Posadas) collected the compensation therein (Exhibits :E” and
“E-1”). In fact, as Chancellor, respondent Posadas approved his own
Disbursement Voucher for payment from the coffers of the University,
covering his honoraria and consultancy fees as Project Director for the
TMC Project and as consultant to the TMC, respectively (Exhibit “E-2”).57

Penalty

Any person guilty of violating Section 3(e) of R.A. No. 3019 is


punishable with imprisonment for not less than six (6) years and one (1)
month nor more than fifteen (15) years and perpetual disqualification from
public office.58Thus, the penalty imposed by the Sandiganbayan which is an
indeterminate penalty of nine (9) years and one day as minimum and twelve
(12) years as maximum, with the accessory penalty of perpetual
disqualification from public office, is in accord with law. Petitioners shall
also indemnify the Government of the Republic of the Philippines the
amount of THREE HUNDRED THIRTY SIX THOUSAND PESOS
(P336,000.00) representing the compensation/salaries paid to Dr. Posadas as
TMC Project Director.

As to the offense defined in Section 7(b) of R.A. No. 6713, Section 11


of said law provides that violations of Section 7 shall be punishable with
imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000), or both, and, in the discretion of the court,
disqualification to hold public office. The Sandiganbayan imposed the
maximum penalty of five (5) years imprisonment and disqualification to
hold public office.

The Court is aware of the sentiments of the succeeding BOR who


agonized while deliberating whether to readmit petitioners into the faculty of
UP Diliman, with majority of the Regents lamenting the loss of two of its
distinguished intellectuals and scientists who had served the University for
so long despite the meager compensation UP has to offer compared to

57
ADT Report in re: ADT Case No. 96-001, p. 15, Exhibit “A-6,” folder of exhibits (Prosecution).
58
Sec. 9, R.A. No. 3019;Sison v. People, G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA
670, 682.
Decision 26 G.R. Nos. 168951 & 169000

private educational institutions. 59 The BOR eventually allowed them to


teach part-time in the TMC even waiving the conditions the previous BOR
had imposed -- a move perceived to be a first step in the healing process for
the academic community that was "torn into pieces" by the issue.

However, this Court's mandate is to uphold the Constitution and the


laws. Our Constitution stresses that a public office is a public trust and
public officers must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives. 60 These constitutionally-
enshrined principles, oft-repeated in our case law, are not mere rhetorical
flourishes or idealistic sentiments. They should be taken as working
standards by all in the public service. 61

WHEREFORE, the petition is DISMISSED. The Decision dated


June 28, 2005 of the Sandiganbayan in Criminal Cases Nos. 25465-66 is
hereby AFFIRMED and UPHELD.

With costs against the petitioners.

SO ORDERED.
.......

~~.V::::-1-L-'~~L-----:~
Associate

WE CONCUR:

ENDOZA

BIENVENIDO L. REYES
Associate Justice

59
Transcription on the case of Dr. Roger Posadas, 11501h BOR meeting, May 24, 200 I, Exhibit "53,"
folder of exhibits (Defense)
60
Duque Ill v. Veloso, G.R. No. 196201, June 19, 2012, 673 SCRA 676, 687, citing Japson v. Civil
Service Commission, G.R. No. 189479, April 12,2011,648 SCRA 532,545.
61 ld.
Decision 27 G.R. Nos. 168951 & 169000

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitutim1 and the
Division Acting Chairperson's Attestation, I cer1ify that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SEHENO


Chief Justice

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