iil Republic of the Philippines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condominium II Bldg, EDSA ‘Comer Mapagmahal St, Dilman, Quezon Cty OFFICE OF THE UNDERSECRETARY FOR LOCAL GOVERNMENT DILG OPINION NO. 13 $. 2010 09 February 2010 GOVERNOR JESUS N. SACDALAN VICE-GOVERNOR EMMANUEL F. PINOL Provincial Capitol Building Province of Cotabato Gentlemen: This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain to one subject matter. Per your letters, the Sangguniang Panialawigan held its regular session on 12 January 2010 where that August Body embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of the Sangguniang Panialawigan attended said session, namely: fen (10) regular Sangguniang Panialawigan Members, three (3) ex-officio Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that when said approval of the Annual Budget was submitted for votation of said ‘August Body, the result was: seven (7) members voted for the approval of the Annual Budget and six (6) voted against. Specifically, you want us to shed light on the following issues: “1)__ Whether or not the august body has reached the required majority of all the members of the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the ‘Local Government Code and in relation to Article 107 (g) of its implementing Rules and Regulations? 2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of all the members of the sangguniang panlalawigan to validly Pass an appropriation ordinance? 3) _ Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval thereof? 4) Im the event that the Province operates under a re-enacted budget, what are those expenditures included in the term “essential operating expenses” that may be incurred by the Province?”-2- We shall answer your first, second and third queries in one (1) discussion Considering that they are interrelated, Appropriation Ordinance. In a follow-up made to this Department ‘by the Provincial Legal Officer ofthat Province, it was represented thet oe basis for this view is Article 107, 2% sentence of paragraph (Q) of the Implementing Rules and Regulations of the Local Government Code of 1991, (RA 7160), which provides Pome ony ordinance or resolution authorising ‘or’ dieting oe Brn mao ney OF sreating lability, shall require the affiractios wnt Of a majority of all the sangguaian members for ite Passage”. Hence, with this representation, it appears that they consider the ‘Appropriation Ordinance as Fre wainance authorizing or directing the payment of money se thee it requires the vote of a majority of all the Sangguniang Panlalawigan Members for its passage. On the other hand, as could be gleaned from Vice-Governor Pifo's letter, he is of the view that a two-thirds (2/3) vote is Necessary to pass an APeropriation Ordinance. In fact, he himself declared in the can regular session that 2 2/3 vote is necessary to’ pass the Appropriation Ordiwace Considering that there were only seven (7) members of the ‘Sangguniang Panialawigan who Beste oy, the @Pproval ofthe Appropriation Ordinance, Vice-governey Pifiol also ‘declared in that Session that the Appropriation Ordinance was vor approved. Jt was also mentioned in this letter of Vice-Governor Pifol that still another camp, Sangguniang Panlalawigan Member Celestino Rapacon, the Chairman of the Committee on Laws and Rules, holds snother view that since For purposes of clarity, please allow us to discuss the terms quorum, “simple majority,” and “qualified majority.” For the sanggunian to offically transact business, there should be a Toot me AauoTUm Is defined by Section 53 of the Local Government Codes cr ¢lected and qualified. This is what we call approval by the qualified majority of, tie Sanggunian. In this case, the approval i to be voted not just by the majority of those present in a session there being a quorum but by the majority of all the ‘mramibers of the sanggunian duly elected and qualified regardless of wheter all of them were present or not in a particular session, there being a quorum.3- Having these definitions in mind, may we now invite your attention to the following provisions of the Local Government Code of 1991, viz: “BECTION 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 468. Powers, Duties, Functions and Compensation. {a) The sangguniang panlalawigan, as the legislative body of the province, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the province and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the province as provided for under ‘Section 22 of this Code, and shall: xxx {2) Generate and maximize the use of resources and revenues for the development plans, program objectives and priorities of the province as provided for under Section 18 of this Code, with particular attention to agro-industrial development and country-wide growth and progress and relative thereto, shall: () Ensct the annual and supplemental appropriations of the provincial government and appropriate funds for specific programs, projects, services and activities of the province, or for other purposes not contrary to law, in order to Based on the foregoing, on or before the end of the current fiscal year, the sanggunian concemed (the Sangguniang Panlalawigan in your case) shalt enact, through an ordinance, the annual budget of the Province of Cotabato for the ensuing fiscal year on the basis of the estimates of income and expenditures submitted by Governor Sacdalan. The legislative instrument authorizing the ‘budget is known as an Appropriation Ordinance. Please note that Section 468 (21) of the Local Government Code of 1991, providing for the powers of the Sangguniang Panlalawigan vests unto said sanggunian the power to appropriate the annual and supplemental appropriations of the provincial government, and appropriate funds for specific programs, projects, services and activities of the province, and for other purposes not contrary to law. It is to be noted that with respect to the enactment of the annual and supplemental appropriations, the law is silent as to what kind of majority vote Is required of that sanggunian, unlike succeeding Provisions which specifically require qualified majority vote of that sanggunian {for their passage. In its silence, the presumption is, the same is to be enacted only by a simple majority vote.4. As to the argument that the Appropriation is an ordinance authorizing or directing the payment of money so that it requires the vote of a majority of all the Sangguniang Panlalawigan Members for its passage, Section 55 of the Local Government Code of 1991 would bolster the position that the Appropriation ‘Ordinance and an Ordinance directing the payment of money or creating liability are different when said provision treated them separately. Section 55 (b) of the same Code provides that: “The local chief executive, except the punong barangay, shall have the power to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local development plan and public investment program, or an ordinance directing the payment of money or creating ability 2000”, ‘As already mentioned, the Appropriation Ordinance is the legislative instrument authorizing the annual budget. Hence, what is there to be authorized by the sanggunian is the Annual Budget. An Annual Budget does not provide for the direction to pay or create a liability but it refers to a financial plan embodying the estimates of income and expenditures for one (1) fiscal year operation of @ local government unit. We are of the opinion that what is being referred to under Article 107, 2"! sentence of paragraph (g) of the Implementing Rules and Regulations of the Local Government Code of 1991 which requires the approval of a qualified ‘majority vote is an ordinance or resolution (specific appropriations) authorizing or directing the payment of money or creating a liability. Having determined the vote required in the enactment of the ‘Appropriation Ordinance, which is simple majority, allow us to illustrate the ‘computation of a simple majority based on the facts you represented in your letter. According to you, all fourteen (14) members of the Sangguniang Panialawigan were present in the subject regular session, namely: fen (10) regular Sangguniang Panlalawigan Members, three (3) ex-officio Sangguniang Pantalawigan Members and the Vice-Governor as the Presiding Officer. In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have ‘been elected and qualified shall constitute a quorum. Along this line, it bears to emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang Panialawigan is a composite body wnere the Vice-Governor as. Presiding Officer is a composite member thereof. As a composite member in the sangguniang pantalawigan, he is therefore included in the determination of a quorum. “Majority” has been defined by the Supreme Court in Santiago vs. Guingona, et al (G.R. No. 134577, 18 November 1998) as that which is Greater than half of the membership of the body or that number which Is 50% + 4 of the entire membership. We note, however, that using either formula will ‘give us the same result. To illustrate, using the 50% + 1 formula, the 50% of a Sanggunian composed of 14 members is 7. Hence, 7+1 will give us a sum of 8. (On the other hand, if we use the second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the latter. The simple Y-5- majority of the sangguniang panlalawigan with fourteen (14) members where all of them were present in that particular session is therefore 8, jLet it be noted that, in the instant case, the actual result of the votation as to the approval of the budget is 7-in favor and 6-against so that the 7 votes ir favor, obviously, fell one (1) vote short to satisfy the simple majority, which is eight (8). However, it has been represented by your Provincial Legal Officer that Your Internal Rules of Procedure provides under Section 15 thereof, that: “SECTION 15. DISSENTING VOTE. A committee member, unless he/she has entered his/her objections to the committee report or, in lien thereof, has filed with the Secretary to the Sangguniang Panlalawigan his dissenting ote in writing before the report is submitted to the Body in According to said Provincial Legal Officer, one (1) of the six (6) Sangguniang Panjalawigan Members who voted against the approval of the Ordinance Budget is a member of the committee which favorably ‘endorsed the same. “It was not mentioned that said Sangguniang Panialawigan Member has entered his objection to the committee report recommending gpProval of the annual budget nor has filed with the Secretary to’ the ‘Sangguniang Panlalawigan his dissenting vote in writing before the report is submitted to the August Body in open session. Hence, it was argued by the Provincial Legal Officer that, applying the aforequoted rule in your IRP, the said ang Panlalawigan Member should be presumed to have concurred for ‘the approval of your Appropriation Ordinance. We concur with this view of your Provincial Legal Officer that the Sangguniang Panlalawigan Member who is a member of the committee, which favorably endorsed the Annual Budget, is precluded from voting against the approval of the Annual Appropriation Ordinance on the floor. Hence, ‘notwithstanding the fact that this Sangguniang Panlalawigan Member voted of the approval of your Annuai Appropriation Ordinance to give into effect Section 15 of your IRP. Thus, in sum, there were eight (8) votes in favor of the” approval of your Annual Appropriation Ordinance. Foregoing considered, we are Of the view that your Annual Appropriation Ordinance was duly approved, Finally, with respect to your fourth query, please be informed that there are two classes of expenditures namely, Current Operating Expenditures and Capital Outlay. Current Operating Expenditures are of two kinds namely, Personal Services and Maintenance Operating and Other Expenses (MOOE). old Governr I and COA, Circular No, 2002.-6- MOOE includes expenses necessary for the regular operations of an agency. It Particularly includes expenses for local or foreign travel, communication services, government vehicles, transportation services, supplies and materials, rents, interests, awards and indemnities, loan ‘repayments and sinking fund Contributions, losses, depreciation, depletion, water, illumination and power ‘Service social security benefits, rewards and other aims, auditing services, training and seminars, extraordinary and miscellaneous expenses, confidential and inteligence expenses, anti-insurgency, contingency, emergency expenses, taxes and other duties, trading/production, advertising and Publication expenses, fidelity bond and insurance Premiums, loss on foreign exchange, commitment fees, and other charges. ‘As could be gleaned from the enumeration, we could logically conclude that there are items in the MOOE which, though may be necessary for the the local government unit, but may not at all necessary for ‘Accordingly, the expenses referred to by the phrase “essential operating expenses" could refer to some items in the MOOE which are essential for the continued basic operation and existence of a local government unit. We hope that we have addressed your concern accordingly. Very truly yours, aus ‘A. PANADERO See wna Director uagas B. Sul DILG- Region xi Marafon Vilage, Block 4 oronadal Cy, South Cotabato c-Provincal Director Al 8. Aba Province of Coubato