Republic of the Philippines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A, Francisco Gold Condominium I Bldg, EOSA ‘corner Mapagmahal St, Dillman, Quezon City OFFICE OF THE UNDERSECRETARY FOR LOCAL GOVERNMENT DILG OPINION NO, 27S. 2010 (09 March 2010, MAYOR EFREN U. DE SAN JOSE, DMD Flora, Apayao Dear Mayor De San Jose: This has reference to your earlier letter asking for this Department's kind intercession to correct the adverse situation involving the enactment of your Municipality's Appropriation Ordinance for the Fiscal Year 2009 and related matters. Per your letter and its attachments, it appears that on 04 March 2009, the Sangguniang Bayan of Flora enacted Resolution No. 04-2009, entitied: “Resolution Re-enacting the Preceding Year's (2008) Budget Appropriation,” which shall take effect yntil such time that the annual appropriation for the FY 2009 will be approved. On the following day, this Resolution was forwarded to your office for consideration. On even date, you vetoed said Resolution on the ground that it was ultra vires using as basis thereto Section 323 of the Local Government Code of 1991 (RA 7160) which provides that, by operation of law, the Ordinance authorizing the appropriations of the preceding year shall be deemed reenacted and shall remain in force and effect ninety (90) days after failure of the sanggunian to enact the annual appropriation from the start of the ensuing fiscal year. ‘Thereafter, on 18 March 2009, the Sangguniang Bayan of Flora passed Resolution No. 05-2009, entitled "Resolution Overriaing the Veto Made on Resolution No. 04-2009 of the Sangguniang Bayan of Flora, Apayao.” Hence, under the circumstances, we find these two (2) issues for resolution: 1) Whether or not the Sangguniang Bayan of Flora may validly enact a resolution re-enacting the preceding year's (2008) budget appropriation even before the lapse of the 90-day period from the beginning of FY 2009 provided under Section 323 of the Local Government Code of 1991; 2) Whether or not the resolution re-enacting the preceding year's (2008) budget appropriation is subject to the ‘approval/veto of the Municipal Mayor and, accordingly, to the overriding power of the Sangguniang Bayan. With regard to the first issue, may we invite your attention to the following provisions of the Local Government Code of 1991, thus:-2- “SECTION 319. Legislative Authorization of the Budget.-On or before the end of the current fiscal year, the sanggunian concerned shall enact, through an ordinance, the annual budget of the local government unit for the ensuing fiscal year on the basis of the estimates of income and expenditures submitted by the local chief executive.” “SECTION 323. Failure to Fnact the Annual Appropriations. - In case the sanggunian concerned fails to ass the ordinance authorizing the annual appropriations at the beginning of the ensuing fiscal year, it shall continue to hold sessions, without additional remuneration for its members, until such ordinance is approved, and no other business may be taken up during such sessions. If the ‘sanggunian still fails to enact such ordinance after ninety (90) days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the preceding year shall be deemed reenacted and shall remain in force and effect until ‘the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned. However, only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith. Based on the aforequoted Section 319 of the Code, the sanggunian concerned shall enact the ordinance authorizing the annual appropriations, in your case, for the FY 2009, on or before the end of the FY 2008. However, if the sanggunian concerned fails to pass the ordinance authorizing the annual appropriations at the beginning of the FY 2009, the aforequoted Section 323 of the Code provides that said August Body shall thereafter continue to hold sessions for ninety (90) days from the beginning of the FY 2009, without additional remuneration for its members, until such ‘ordinance is approved, and no other business may be taken up during such sessions. If the aforesaid 90-day period has already lapsed and still the Sanggunian concerned fails to enact such ordinance, the ordinance authorizing the appropriations of the previous year (2008) shall already be deemed reenacted and shall remain in force and effect until the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned. Clearly therefore, the ordinance authorizing the appropriations of the preceding year (2008) shall be deemed re-enacted, meaning by operation of law ‘or automatic, only after ninety (90) days from the beginning of FY 2009. Notwithstanding this clear statutory mandate, according to you, the ‘Sangguniang Bayan passed SB Resolution No. 04-2009 re-enacting the Budget Appropriation for the Preceding Year (2008) on 04 March 2009 or before the lapse of the 90-day period from the beginning of FY 2009 provided under Section 323 the Local Government Code of 1991.In this regard, we concur with your view that the passage of SB Resolution No. 04-2009 is an ultra vires act of the Sangguniang Bayan as it is contrary to the mandate of Section 323 of the Code that it is only after ninety (90) days from the beginning of FY 2009 that there will be an automatic re~ enactment of the ordinance authorizing the appropriations of the preceding year (2008). The phrase “deemed re-enacted” means that the re-enactment shall be by operation of law or automatic, meaning there is no more need for the doing of an operative act, like the passage of a resolution, to cause the re-enactment Of the ordinance authorizing the appropriations of the preceding year (2008). In our opinion, such passage of SB Resolution No. 04-2009 may even be a sufficient ground to warrant disciplinary action for dereliction of duty against the members of the Sangguniang Bayan of Flora. Let it be noted that the members of the Sangguniang Bayan are mandated to hold sessions, without additional remuneration within the 90-day period from the beginning of FY 2009, until the ordinance authorizing the appropriations for the FY 2009 is approved, and no other business may be taken up during such sessions. To our mind, the passage of the aforesaid SB Resolution No. 04-2009 has no other objective but to cut short the 90-day period or such period mandated by the Local Government Code of 1991 to be exclusively devoted by the Sangguniang Bayan of Flora for the enactment of the ordinance authorizing the appropriations for the FY 2009. With regard to the second issue, time and again, this Department Consistently opines that not all legislative measures passed by the Sangguniang Bayan should be subject to the approval or veto of the Municipal Mayor. The sscope of the approval or veto power of the local chief executive is limited only to (1) ordinances, and (2) resolutions approving local development plans and public investment programs. Allow us to explain our legal basis thereto. Section 54 of the Local Government Code of 1991 is explicit that every ‘ordinance shall be subject to the approval of the local chief executive but it ‘seems uncertain in the case of resolutions. No mention was made with respect to resolutions but the third sentence of the same section authorizes the sanggunian concerned to override the veto of the governor or mayor "thereby making the ordinance or resolution effective". Let it be noted that where the veto power is exercisable, as an alternative, the approval of the measure is also required. later provision, that is, Paragraph (b), Section 55 of the Code, has made ‘more specific in empowering the mayor to veto any ordinance or resolution adopting a local development plan and public investment program. Thus, generally, only ordinances are subject to veto. The Code, however, under Section 55 (b), allows the local chief executive to veto resolutions when they deal with local development plans and public investment programs. The reason is that resolutions of that kind involve the investment of public money and are in effect ordinances (Pimentel, Aquilino Q., The Local Government Code of 1991. The Key to National Development, 1992, p. 165). ‘Thus, by the language of Section 55 of the Code, it leaves us no room to doubt that the municipal mayor's veto power extends only to ordinances and, insofar as resolutions are concerned, only those which deal with localdevelopment plans and public investment programs formulated by the local development councils. In the case at hand, SB Resolution No. 04-2009 is entitled "Resolution Re- enacting the Preceding Year's (2008) Budget Appropriation’. Obviously, it is not @ resolution which deal with local development plans and public investment Programs formulated by the local development councils so that the Sangguniang Bayan, in passing the same, merely expresses their sentiment to re-enact the Preceding year’s budget appropriation. Such being the case and applying our discussion above, SB Resolution No. 04-2009 is no longer required to be presented to you, as the municipal mayor, for approval or veto and, accordingly, to the overriding power of the Sangguniang Bayan. However, since the SB Resolution No. 04-2009 was actually vetoed and, accordingly, overridden by the Sangguniang Bayan, the same will produce no legal force and effect since such veto and exercise of the overriding power of the Sangguniang Bayan is not legally required by the Code. We hope that we have addressed your concern accordingly. Very truly yours, By Authority of the Secretary: ATTY, JESUB)B. v Directo 111 egal Selvi copy turished Regional Decor Pack D, Onus Oueear Brgy, Center, Baguio Cty Lsn7