REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condy Ditin tun 11 als Cor, Mapaagiatal Si. Queron Cy OFFICE OF THE SECRETARY AILS OPINION NO._22__S. 2003. TUNONG BARANGAY DOMINGO A. PALAGANAS Barangay 173, Congress Village North Caloocan City Dear Sir, This pertains to your letter seeking our legal opinion regarding the propriety of Proposed Resolution No. 40 of the Sangguniang Barangay of Barangay 173, Congress Village, North Caloocan City, entitled "RESOLUTION RECOMME? DING TO THE HONORABLE CITY MAYOR ENRICO “RECOM ECHIVERRI THE APPOINTMENT OF PELAGIO V. BALUBAR AS KAGAWAD TO REPLACE FORMER KAGAWAD EMMA BAFUL.” it appears from your letter that since November 2002, Kagawad Emma Baful has not attended the Sanggunian Barangay's sessions and until now, her whereabouts are still unknown. This prompted the said sanggunian to file an administrative charge against her for abandonment. of official duties. through Resolution No. 08-203 dated 8 February 2003. The case is still pending with the Sangguniang Panlungsod of Caloocan City as of this time You so attached in your letter a copy of Resolution No. 64 of your Sanggunian Barangay, dated 24 August 2004, resolving not to fill up the position held by Kagawad Baful in the event that the same is to be declared vacant by the Sangguniang Panlungsod of Caloocan City. However, on September 2004, the Sangguniang Barangay of Barangay 173 issued Resolution No. 40 recommending Mr. Pelagio V. Balubar as replacement of Kagawad Baful allegedly without your prior nomination. ‘You now posit the following queries 1) Is the position vacant? 2) ‘s Resolution No. 40 valid and proper considering that the members of the Sanggun’ ng Barangay recommended a certain person (Mr. Pelagio V. Balubar) without the nomination of the Punong Barangay? 3) Is it not the Punong Barangay authorized to submit his nominee to the Sangguniang Barangay for confirmation? 4) Is Section 45(3) which provides that “the city or municipal mayor, in the case of Sangguniang Barangay, uponrecommendation of the Sangguniang Barangay concerned,” vague considering that such can be susceptible of conflicting interpretations?" Anent your first query, we are of the considered view that such position is vacant but only temporary. There exists a temporary vacancy in said position in view of the fact that the prolonged unauthorized absence of Kagawad Baful can only be deemed as “temporary incapacity to perform duties for physical reasons" por Section 46(a) of the Local Government Code. The situation will not qualify as a permanent vacancy under Section 44 of RA 7160 (Local Government Code of 1991), because “permanent vacancy arises when an elected local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns, or is otherwise permanently incapacitated to discharge the functions of his office.” Kagawad Baful’s situation does not fall under any of the above-mentioned circumstances. Even assuming arguendo that Kagawad Baful's act can be deemed as refusal to assume office, for it to qualify as a permanent vacancy, such refusal must be categorically declared and clearly shown, not merely implied from the acts of the local official. Neither can it be deemed as “removal from office” as such requires an order of the proper court as a result of an administrative adjudication on grounds provided by RA 7160 (Section 60) as declared in the case of Pablico v. Villapando (385 SCRA 601). It is well to note that the administrative case filed against Kagawad Baful is still pending as of the present. Hence, the act of the Sangguniang Barangay of recommending Mr. Pelagio Balubar as Kagawad Bafu'’s replacement is premature in view of the fact that there exists no permanent vacancy yet. Appointment to a vacant position is proper only in case a permanent vacuum in the position exists. Thus, with respect to your second query, Resolution No. 40 is not valid and proper, not because there was no recommendation given by the Punong Barangay since the same is not required by law, but because such act is premature there being no permanent vacancy yet in the Sangguniang Barangay that would call for the application of Section 45(a)(3). Corollarily, your third question must also be answered in the negative, because granting arguendo that a permanent vacancy exists, what is provided for by law under Section 45(a)(3) of RA 7160, is that the appointment in case of vacancy in the Sangguniang Barangay, must be made by the city mayor concemed upon the recommendation of the Sangguniang barangay concemed (underscoring ours). Nothing in the law provides for the Punong Barangay to issue such nomination before the nominee be recommended by the sangguniang barangay or be appointed by the local chief executive (the city mayor), In relation thereto, as to your fourth contention that Section 45(a)(3) is susceptible of various interpretations, we are of the considered view that the above-cited provision is clear and unambiguous. Section 45(a)(3) of RA 7160 provides: . “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: 200 XXX OX(3) The city or municipal mayor in the case of sangguniang barangay, upon recommendation of the sangquniang barangay concerned.” (underscoring ours) From the foregoing, it is clear that in cases wherein automatic succession does not apply, a permanent vacancy in the sangguniang barangay is to be filled by appointment by the mayor, upon prior recommendation of the sangguniang barangay concemed. We must emphasize that the required prior recommendation is a collective act of the sanggunian, and we see no provision that the Punong Barangay shall first nominate whereupon such recommendation is to be based. Hence, the questioned provision does not suffer from ambiguity. We hope we have enlightened you on the matter. Veryruly yours, ) a ANGELO fT. REYES Secretary oe te ceed wmv Legal 86/Merle