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Montebon vs.

Comelec Research Notes government official, the non-performance of which exposes said official to
possible administrative and criminal charges of dereliction of duty and
Facts: neglect in the performance of public functions. It is therefore more
compulsory and obligatory rather than voluntary.
Montebon had been elected for three consecutive terms as municipal
councilor of Tuburan, Cebu in 1998, 2001, and 2004 elections. However, in In this case, a permanent vacancy occurred in the office of the vice-mayor
January 2004, or during his second term, he succeeded and assumed the due to the retirement of Vice Mayor Mendoza. Montebon, being the highest
position of vice-mayor of Tuburan when the incumbent vice-mayor retired. ranking municipal councilor, succeeded him in accordance with law.
When he filed his certificate of candidacy again as municipal councilor for Thus, Montebon's assumption of office as vice-mayor in January 2004 was
2007 elections, a petition for disqualification was filed against him based on an involuntary severance from his office as municipal councilor, resulting in
the three-term limit rule. In his answer, Montebon argued that he cannot be an interruption in the service of his 2001-2004 term. It cannot be deemed to
disqualified on the ground of the 3-term limit rule because his second term have been by reason of voluntary renunciation because it was by operation of
was interrupted when he assumed the position of vice-mayor due to the law. (Montebon vs. Comelec, G.R. No. 180444. April 9, 2008)
retirement of elected vicemayor Petronilo Mendoza. Petitioners maintained
that Montebon's assumption of office as vice-mayor in January 2004 should Note:
not be considered an interruption in the service of his second term since it
was a voluntary renunciation of his office as municipal councilor. ● Since the law no less allowed Montebon to vacate his post as councilor in
order to assume office as vicemayor, his occupation of the higher office
Issue: cannot, without more, be deemed as a voluntary renunciation of his position
as councilor.
Was Montebon's assumption to the vice-mayoralty position considered an
involuntary severance or interruption?

Held:

Yes. Succession in local government offices is by operation of law. Section


44 of Republic Act No. 7160, provides that if a permanent vacancy occurs in
the office of the vice mayor, the highest ranking sanggunian member shall
become vice mayor.
The legal successor is not given any option under the law on whether to
accept the vacated post or not. Section 44 of the Local Government Code
makes no exception. Only if the highest-ranking councilor is permanently
unable to succeed to the post does the law speak of alternate succession.
Under no circumstances can simple refusal of the official concerned be
considered as permanent inability within the contemplation of
law. Essentially therefore, the successor cannot refuse to assume the office
that he is mandated to occupy by virtue of succession. He can only do so if
for some reason he is permanently unable to succeed and occupy the post
vacated.

Thus, succession by law to a vacated government office is characteristically


not voluntary since it involves the performance of a public duty by a