Repub of he Phitpinas DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT DILGNAPOLCOM Contr, EDSA cunt Ouszon Avene, West Tangle, Quezon Cy it va din govsh 17 AUG 2017 Zone 4, Bulan Sorsogon MR. LUIS C. DELMONTE BILG OPINION No. 14 5. 9913 Dear Mr. Delmonte: ‘This has reference to your letter dated 22 June 2017 requesting the Central Office’s assistance on the filling-up of the position in the Sangguniang Bayan of Bulan, Sorsogon as a result of the previous dismissal of Mayor Helen C. De Castro of said municipality by the Office of the Ombudsman. Based on the documents submitted to the Central Office, Mayor Helen C. de Castro of Bulan, Sorsogon was dismissed from public office by virtue of an Ombudsman Decision. As a result thereof, the elected vice-mayor assumed as municipal mayor, the 1*-ranking sangguniang bayan member (Hon. Joefrey Azur) as vice-mayor, and so on until there was a resultant vacancy in the last position in the sangguniang bayan. ‘Thereafter, Hon. Azur sought our DILG-Sorsogon’s legal opinion on these issues: 1) Does the vacancy created by the Ombudsman Dismissal be considered as permanent or temporary, and does such vacancy needs to be filled up immediately despite the appeal of the respondent, former Mayor Helen C: De Castro? 2) Who will recommend and/or endorse to the appointing authority to fill-up the vacant position? Will it be the Sangguniang Bayan or the political party? 9) Who caused the vacancy in the Sangguniang Bayan and what political party should nominate following Section 45, of the Local Government Code of 1991 (RA 7160); 4) In the event that the Ombudsman reverses its raling in favor of the respondent, former Mayor Helen C. De Castro, what will be its effect to the appointed SB Member?Ina letter dated 05 January 2017, Atty. Arnaldo Escober, Jr., Provincial Director, DILG-Sorsogon/OIC-ARD for Operations exhaustively answered the above-enumerated concerns of Hon. Azur. In gist, Atty. Escober opined that: 1, The vacancy created as a result of the implementation of the Ombudsman Decision against Mayor De Casto was permanent; 2. With regard to the one who caused the last vacaney, Atty. Escober stated that it was the 1* ranking sangguniang bayan member, citing the case of Navarro vs. Court of Appeals! and DILG Opinion No. 44, series of 2015; 3. As to the manner of filling up the vacant position, Atty. Escober cited Section 45 (a)(2) and (b) of Republic Act No. 7160 or the Local Government Code of 1991. However, Atty. Escober added that “xxx there is no explicit provisions as to when such vacancy should be filled up since the matter is apparently left with the confines of the interested parties, that is, to the recommending political party or the sanggunian concerned. In other words, whether such vacancy should be filled up immediately or within a reasonable period rests within the discretion of those parties concerned."; 4. As to the effect of the possible reversal of the dismissal order against Mayor De Castro by the Office of the Ombudsman on the appointment of a new Sangguniang Bayan Member, Atty. Escober opined that “xxx in the event that the Ombudsman reverses its earlier decision exonerating and reinstalling the respondent to his/her position as Municipal Mayor, you (Hon. Joetrey Azur) and is there is already an appointed Sangguniang Bayan Member, will have no other recourse but to relinquish your positions, since your statuses are subject to the ourcome of the said administrative case.” Impelled by the aforesaid legal opinion of Atty. Escober, in a letter dated 30 March 2017, you transmitted pertinent documents to Governor Robert A. Rodrigueza of Sorsogon for your nomination to the position of Sangguniang Bayan Member in Bulan, Sorsogon. Ina letter dated 18 April 2017, Atty. Gavino L., Barlin, Provincial Legal Officer of Sorsogon, informed you that the Office of the Governor cannot yet appoint you as member of the Sangguniang Bayan of Bulan, Sorsogon since the timely filing of the Motion for Reconsideration with the Office of the Ombudsman and the Petition for Certiorari and Injunction with the Court of Appeals by respondent Helen de Castro effectively stayed the finality of the Ombudsman Decision dismissing her and as such, there can be no permanent. vacancy to speak of, 1G.R. No. M1807, 28 March 2001In a letter dated 30 April 2017, you reiterated your concern to the Office of the Governor. Ina letter dated 01 June 2017, Auy. Barlin replied to you in this wise: We have sufficiently explained the position of the Office of the Governor in our letter of April 18, 2017 in simple language. Hence, there is no need to belabor the same. With due respect, the Otfice of the Governor is not bound by the legal opinion of the DILG Legal Officer. We will wait for the finality of the decision of the Ombudsman against Mayor Helen de Castro belore the Office of the Governor will entertain filling up the vacant position at the SB Bulan, unless there is an order from the higher authority to process the appointment of the qualitied replacement of the vacant position at the SB Bulan. In the event that there isa final decision on the case of Mayor De Castro, the Olfice of the Governor will consult the local political leadership in Bulan whom they will recommend and endorse to the vacant position at the SB Bulan, Hence, your subject letter asking the Central Office’s assistance on the matter. In this regard, we deem it prudent to make clarifications on certain issues. First, with all due respect to the position of Atty. Escober on the nature of vacancy created as a result of the implementation of the Ombudsman Decision dismissing Mayor De Castro, while it is true that Section 44 of Republic Act No. 7160 or the Local Government Code of 1991 (hereinafter, the “Local Government Code of 1991’) categorically mentions “removal from office”as one of the grounds that will give Way to a Permanent vacancy, per the documents forwarded to the Central Office, Mayor De Castro thereafter availed of various legal remedies before the Office of the Ombudsman and the Court of Appeals assailing her dismissal order. Said remedies are still for resolution by the said office/court to this date. While the Central Office is cognizant of Section 44, we find it prudent to apply Section 46 of the Local Government Code of 1991 on temporary vacancy in the Office of the Mayor due to legal reasons since the elected vice-mayor’s assumption to the Office of the Mayor is still subject to the outcome of the aforesaid remedies availed of by Mayor De Castro before the Office of the Ombudsman and the Court of Appeals. * SECTION 44. Permanent Vacancies in the Offices ofthe Governor, Vice- Governor; Mayor: and Vice-Mayor. For purposes ofthis Chapter, a permanent vacancy arises when an elective offical ill higher vacant ofc, refuses to assume fice als to quality, dies, removed from office, voluntarily resigns or i otherstine permanently incapacitated to discharge the functions of his office,Under Section 46 (a) of the Local Government Code of 1991, when a temporary vacancy exists in the Office of the Mayor, the same shall be automatically filled up by the vice-mayor’, Notably, the Local Government Code of 1991 is bereft of any provision delineating the procedure in the filling up of temporary vacancy/ies in the vice-mayor and. in the sanggunian, Section 45 (a) of the Local Government Code of 1991 delineates the procedure in the filling up of permanent vacancies in the office of the vice-mayor and in the sanggunian. However, in Menzon vs. Petilla', the Supreme Court held that the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. ‘Thus, applying the rule on succession which is the procedure in filling up of subsequent vacancies in the office of the vice-mayor and in the sanggunian, the highest- ranking Sangguniang Bayan member shall become the Acting Vice-Mayor. ‘The 2- ranking Sangguniang Bayan Member shall become the 1*-ranking and so forth. The resultant vacancy shall be filled-up in accordance with Section 45 of the Local Government Code of 1991, thus: SECTION 45. Permanent Vacancies in the Sanggunian.—(a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities; sox ox xox (b) Except for the sangguniang barangay, only the nomince of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term ofthe vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and > Section 46 Temporary Vacaney inthe Office of the hocal Chief Executive: () When the governor, city or municipal mayor, o punong barangay is temporarily incapacitated to perform his dates for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension the vice-governor, city or municipal viee-mayer, or the highest ranking sanggyniang, barangiy ‘member shall automatically exercise the powers and perform the duties and functions of the loc chit seative concerned, except the power to appoint, suspend, or dismiss employees which can only he exercised ifthe period of temporary incapacity exceeds thirty 0) working days. (Emphasis Supplied) No. 90762, 20 May 1991shall be a ground for administrative action against the official responsible therefor. (© Im case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. sox 0 xxx (Emphasis Supplied) Based on the foregoing, the appointee shall, therefore, come from the same political party as that of the sanggunian member who caused the last vacancy and who was elevated to the position next higher in rank. In the landmark case of Navarro vs. Court of Appeals', the Supreme Court ruled that the ‘Yase vacancy” mentioned in Section 45 (b) of the Local Government Code of 1991 is neither the vacancy caused by the elevation of the Vice Mayor to the Office of the Mayor nor the vacancy left by the last ranking sanggunian member when he was elevated to the 7*-ranking position, but rather itis that vacancy caused by the elevation of the 1*-ranking sanggunian member to the next higher rank, ie., the Vice Mayor, by reason of succession ‘The Supreme Court ratiocinated that the reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the sanggunian is to maintain the party representation as willed by the people in the election. This Department believes that in electoral democracy, conscientious people may choose candidates not only because of their personal attributes and qualifications but also because of their political party affiliation. Accordingly, in the Navarro case, the political party nomination should be issued by the political party of the senior sanggunian member because he was the one who caused the last vacancy in the sanggunian due to his elevation as Acting Vice- Governor. Second, as to the period within which to fill-up such vacancy, Auy. Escober opined and we quote: xx However, there is no explicit provisions as to when such vacancy should be filled up since the matter is apparently left within the confines of the interested parties, that is, to the recommending political party or the sanggunian concerned. In other words, whether such vacancy should be filled up immediately or within a reasonable period rests within the discretion of those patties concerned. The foregoing opinion of Atty. Escober should be read in relation to the pronouncement of the Supreme Court in the same case of Menzon vs. Petilla, thus: +G.R. No, 41307, 28 March 2001A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. Jaa republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence ofa Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the Judiciary to adjudicate, As shown in this case where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filing the vacancy in the Office of the Vice-Governor to free the sands of the acting Governor to handle provincial problems and to serve as the buffer_in_case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice- Governor. Service to the public is the primary concern of those in the government. It isa continuous duty unbridled by any political considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the ‘intent to provide for continuity in the performance of the duties of the Vice- Governor. ‘The Local Government Gode provides for the mode of succession in case ofa permanent vacancy, viz: Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to quality, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan ... member who obtained the highest number of votes in the election immediately preceding, shall assume the office for the unexpired term of the Vice Governor. By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The DepartmentSecretary acted correctly in extending the temporary appointment. (Emphasis Supplied) Per the Compliance Report dated 16 November 2016 submitted by Atty. Zalman Uddin of DILG-Region V, the Ombudsman Decision dated 12 February 2015 in OMB-L~ ‘A-13-0006 entitled “ROMEO H. VALERIANO VS. HELEN C. DE CASTRO, ET AL.” dismissing Mayor De Castro was fully implemented on 14 November 2016 or about eight (8) months already. As such, the Office of the Governor, which is the appointing authority over vacancies in the sangguniang bayan, may already consider the urgency of filling the vacancy so as not to compromise the delivery of basic services to your constituencies. Finally, as to the weight of the Department's legal opinions, while our courts are not bound by them, they may have persuasive effect on issues involving Republic Act No.7160 or the Local Government Code of 1991 because the Department is the implementing agency of the said law. The legal opinion, in proper cases, can also be a source of good faith on the part of the public official who acted based thereon or bad faith on those who acted contrary thereto. bon le AUSTERE A. PANADERO ‘ntesceuny We hope to have guided you accordingly. sir copy frit HON. ROBERT A. RODRIGUEZA Governor Province of Sorsogon DIR. ELOUISA T. PASTOR DILG-Region V Rizal St, Legupi C ATTY. ARNALDO ESOOBER, JR. Provincial Director/OIC- Assistant Regional Director for Operations DILG:-Sorsogon