Opinion No. 01, s.

2005

20 January
2005

MAYOR LEON C. ARCILLAS

Santa Rosa City, Laguna

Re: Whether or not you, as City Mayor of Santa

Rosa, have the authority to appoint the regular
and sectoral councilors in the Sangguniang
Panlungsod due to the conversion of Santa
Rosa from a municipality to a city.

Dear Sir:

Relative to your query, it appears that there are three (3)

very important facts to be stated anent Santa Rosa’s
conversion into a city, to wit:

1. On 10 March 2004, HEPGMA signed into law RA 9264,

entitled: “An Act Converting the Municipality of Santa Rosa in the
Province of Laguna into a Component City to be known as the City of Santa
Rosa” and in Section 10 thereof, it was provided that the
Sangguniang Panlungsod of Santa Rosa shall be composed
of “xxx ten regular sanggunian members xxx and the sectoral representatives
xxx” with the latter comprising of three members (Sec. 10
[a], RA 9264);

2. On 10 May 2004, the National and Local Elections were

held, whereby the electorate of Santa Rosa voted for only
eight (8) councilors based on the old Charter “and as
provided by COMELEC”; and

3. On 10 July 2004, the COMELEC conducted a plebiscite to

ratify the conversion of Santa Rosa into a city, whereby the
affirmative votes prevailed.

Basing from your position paper, it appears that you have

contemplated on two (2) schools of thought anent the
appointing authority of two (2) regular members and three (3)
sectoral representatives to complete the membership of the
Sangguniang Panlungsod per Section 10 (a), RA 9264, viz:

a) The Mayor appoints, pursuant to Section 455 (a) (1) (v) of

RA 7160, which pertains to the City Mayor’s power to
“appoint all officials and employees whose salaries and wages are wholly or
mainly paid out of city funds and whose appointments are not otherwise
provided for in this Code (RA 7160), as well as those he may be authorized by
 law to appoint”, which finds similar import in Section 8 (1) (3)
of your city’s Charter; and

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b) The Governor appoints, pursuant to Section 45 (a) (2) of

the Local Government Code.

However, you have likewise counter-argued the second

school of thought (the Governor appoints) by stating that the
Governor’s authority to appoint arises only when a vacancy
occurs through the instances enumerated under Section 44,
last paragraph of the Local Government Code. Such being the
case, it appears that you are more comfortable with the first
school of though, since the vacancy in the Sangguniang
Panlungsod was caused by Santa Rosa’s conversion and not
through any of the instances enumerated under Section 44 of
the same Code.

THE DEPARTMENT’s POSITION

At the outset, please be informed that Santa Rosa City’s

corporate existence only began on 10 July 2004, the date of
the plebiscite, when the electorate ratified its creation per
Section 52 of RA 9264. Thus, the city’s corporate existence
cannot be reckoned from 10 March 2004, the date HEPGMA
signed RA 9264.

As regards the first school of thought you have

presented, we regret to inform you that Section 455 (b) (1) (v)
of RA 7160 and Section 8 (1) (e) of RA 9264 cannot be made to
apply for appointments to “elective positions”. These provisions
contemplate the City Mayor’s authority to appoint only those
“appointive officials and employees” whose appointments are not
provided for by RA 7160 or RA 9264.

Regular and sectoral members of the sanggunian are

elective officials, not appointive officials, so as to bring them
under the cited provisions above.

Anent the second school of thought, we agree with your

counter-argument that the Governor’s authority to appoint
members of the Sangguniang Panlungsod in component cities
can only arise if a vacancy occurs in the latter through any of
the instances enumerated under Section 44 of RA 7160.
Hence, since the vacancy in the Sangguniang Panlungsod of
Santa Rosa was not caused by any of the instances provided
under Section 44 of RA 7160, the Governor cannot exercise
this power to appoint.

Corollary thereto, sectoral representatives in the local

sanggunian are, pursuant to Section 41 (c) of RA 7160 and
Section 10 (B) of RA 9264, to be elected “in a manner as may be
provided for by law”. Unfortunately, Congress has yet to enact a
law providing for sectoral representation at the local level and
the COMELEC, on the other hand, has yet to promulgate rules
 and regulations to effectively provide for the election of such
sectoral representatives.

Foregoing considered, three (3) options are available to

your city to address the vacancy in your sanggunian, insofar as
the two (2) regular membership, to wit:

I. To petition the COMELEC for the conduct of a special

elections to fill up

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the two (2) vacant regular posts;

II. To request HEPGMA to appoint the two (2) regular

members, in view of the power of the President of the
Republic to appoint “all other officers of the government whose
appointments are not provided for by law” (Sec. 16, Art. VII, 1987
Constitution). It may be well to note that the vacancy in your
Sangguniang Panlungsod is of peculiar nature and no existing
statute addresses this vacancy, which thus warrants an extra-
ordinary, but legal remedy; or

III. For you to wait until the local elections in 2007 in order
that the 10-regular membership may now be filled up by
election. This option is legally viable in view of Section 53 of
RA 9264 which provides that “the present elective officials of the
Municipality of Santa Rosa shall continue to exercise their powers and
functions until such time that a new election is held and the duly elected
officials shall have already qualified and assume their offices xxx”.

Thus, until 2007, your Council can operate with only eight
(8) regular members.

Hoping that we have addressed your concern accordingly.

Very truly
yours,

ANGELO T.
REYES
Secretary

Legal:87/La

cc: Director Leonilo B. Lariosa

DILG Region IV-A
Calderon Bldg., EDSA
Diliman, Quezon City