July 29, 2002

DILG OPINION NO. 124-02

Messrs. Ariel P. Coronado, et al.

Sangguniang Bayan Members
Nagcarlan, Laguna

Sirs:

This pertains to your letter requesting for a legal opinion on issues concerning the appointment of a
Municipal Administrator.

You stated that Mayor Rosendo Corales appointed Mr. Rodolfo Angeles as Municipal Administrator during
his 1998-2001 term of office. Said appointment, however, was questioned during the Personnel Selection
Board's (PSB) deliberation for the reason that it was covered by the prohibition on nepotism. For lack of
proper documents to prove the fact that Mr. Angeles is related to Mayor Corales within the fourth civil
degree, the PSB required Mayor Corales to issue a certification that he is not in any way related to Mr.
Angeles. In his CSC Form 212, Mr. Angeles answered "No" to the question on whether or not he is related
to the appointing authority (Item No. 23 [b]). The sanggunian approved Mr. Angeles' appointment on the
strength of Mayor Corales' certification.

During his present term of office, Mayor Corales reappointed Mr. Angeles to the same position. At this
time, the sanggunian did not anymore issue its concurrence in the appointment on the following grounds,
first, documents showed that Mayor Corales and Mr. Angeles are related within the fourth civil degree,
and second, Mr. Angeles was not efficient in the discharge of his duties and functions as Municipal
Administrator. Despite the non-concurrence, Mayor Corales reappointed Mr. Angeles. Thereafter, the
reappointment and the corresponding nonconcurrence thereto became a vicious cycle. In the meantime,
Mr. Angeles has continued to act as Municipal Administrator.
You now raise the following issues, to wit:

1. Is the continued discharge of powers by Mr. Angeles, as Municipal Administrator, valid?

2. Is Mr. Angeles entitled to receive salary notwithstanding the sanggunian's non-concurrence in his
appointment?

3. Are the acts of Mr. Angeles in relation to his office valid?

4. Is the fact that Mr. Angeles gave false information in his CSC Form 212 of his relation to Mayor
Corales a ground for the disapproval by the sanggunian of his appointment?

5. Is Mr. Angeles liable for the false information he gave in CSC Form 212 that he is not related to
Mayor Corales within the 4th civil degree?

6. Is Mayor Corales liable for the false certification he issued that he is not related to Mr. Angeles?
7. Is there a legal remedy to put an end to the vicious cycle of reappointment and disapproval of the
appointment of Mr. Angeles?

8. Can the DILG adjudicate on the issues raised above?

In reply to your first, second, third, and fourth queries, please be informed that the continued discharge
of the powers by Mr. Angeles as Municipal Administrator appears to have no legal basis. A person may
assume public office once his appointment is already effective. Appointment to public office becomes
effective only once it is completed. The Supreme Court in one case (Atty. David B. Corpuz vs. Court of
Appeals, et al., G. R. No. 123989, 26 January 1998) held that where the assent or confirmation of some
other office or body is required, the appointment may be complete only when such assent or confirmation
is obtained. Until the process is completed, the appointee can claim no vested right in the office nor invoke
security of tenure. Since the appointment of a Municipal Administrator requires sanggunian concurrence
(Section 443 (d), RA 7160) and considering that the appointment of Mr. Angeles was not concurred in by
the sanggunian, his appointment never became effective. As such, his assumption and continued holding
of the office of the Municipal Administrator find no legal basis.

However, Mr. Angeles may claim salary for the services he has actually rendered. As held in one case (Civil
Liberties Union vs. Executive Secretary, 194 SCRA 317), a de facto officer is entitled to emoluments of the
office for the actual services rendered. Here, Mr. Angeles can be considered as a de facto officer. A de
facto officer is one who has the reputation of being the officer that he assumes to be, and yet he is not a
good officer in point of law (Torres vs. Ribo, 81 Phil. 44). Corollarily, as held in the Corpuz case cited above,
the Supreme Court ruled that a public official who assumed office under an incomplete appointment is
merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed
office under color of a known appointment which is void by reason of some defect or irregularity in its
exercise. The Supreme Court in the case of Menzon vs. Petilla, 197 SCRA 251, ratiocinated the entitling of
a de facto officer to the salary attached to the office by declaring that under the principle of public policy,
on which the de facto officer doctrine is based and on basic considerations of justice, it would be iniquitous
to deny him the salary due him for services he actually rendered.

It is worthy to emphasize along that line that while Mr. Angeles may be entitled to the salary as a de facto
officer, the municipality cannot be made liable to pay his salaries. Instructive on this point is Article 169
(I) of the Rules and Regulations Implementing the Local Government Code of 1991 which explicitly
provides, thus:

"The appointing authority shall be liable for the payment of salary of the appointee for actual services
rendered if the appointment is disapproved because the appointing authority issued it in willful violation
of applicable laws, rules and regulations thereby making the appointment unlawful".

Corollarily, Section 5 of Rule IV of the Omnibus Rules of Appointments and Other Personnel Actions
provides, thus:

"The services rendered by any person who was required to assume the duties and responsibilities of any
position without appointment having been issued by the appointing authority shall not be credited nor
recognized by the Commission and shall be the personal accountability of the person who made him
assume office".

Hence, Mayor Corales shall pay the salaries of Mr. Angeles for the services the latter has actually rendered.
As to the acts of Mr. Angeles as Municipal Administrator, please be informed that as a de facto officer his
acts are valid. The Supreme Court in the case of Monroy vs. Court of Appeals, 20 SCRA 620, held that the
acts of the de facto officer, insofar as they affect the public, are valid, binding and with full legal effect.
The doctrine is intended not for the protection of the public officer, but for the protection of the public
and individuals who get involved in the official act of persons discharging the duties of a public office.

As to whether or not the fact that Mr. Angeles gave false information in his CSC Form 212 of his relation
to Mayor Corales is a ground for the disapproval by the sanggunian of his appointment, please be
informed that we are of the view that it may qualify as a ground. Moral character of an appointee is among
those qualifications required of him under the Code. Worthy of consideration is Section 480 of the Local
Government Code which provides, thus:

"No person shall be appointed administrator unless he is . . . of good moral character . . ."

In reply to your fifth and sixth queries, please be informed that any misrepresentation or false
representation in a document done by a public official in the discharge of his official duties may be a basis
for administrative and criminal actions as the evidence may warrant.

In reply to your seventh query, please be informed that there is no hard and fast rule on the matter. The
power of the sanggunian to concur complements the power of the mayor to appoint. Practically, the
mayor can reappoint for a number of times corresponding to the number of times the sanggunian
disapproves the appointment. The appointing authority enjoys a wide latitude of discretion as to who to
appoint such that being vested with said authority, it is only he who may exercise said discretion. In the
same token, the sanggunian has the plenary power to concur or not to concur. The whole process,
therefore, is subject to the sound exercise of the powers pertaining to each office and as such the
obligation devolves upon the concerned officials. It has to be stressed, however, that the mere
appointment without the required concurrence will not complete the process of appointment. Hence,
even if already appointed, but no concurrence was secured from the sanggunian, the appointee cannot
in the meantime be allowed to already assume the office and discharge the duties, responsibilities,
functions and power appurtenant thereto.

In reply to your eight query, please be informed that this Department is without authority to adjudicate
the issues under consideration as the same is lodged with the proper court of justice.

We hope to have enlightened you on the matter.

Very truly yours,

(SGD.) JOSE D. LINA, JR.

Secretary