LEGAL OPINIONS

(Compilation 2019)
DILG LEGAL OPINION
NO. 40, S. OF 2019
 Issue
Validity of ordinance entitled:
“AN ORDINANCE PROVIDING AN OFFICE SPACE
AT THE LAPU-LAPU CITY HALL AS DISTRICT
OFFICE OF THE MEMBER OF THE HOUSE OF
REPRESENTATIVE FOR THE LONE
CONGRESSIONAL DISTRICT OF LAPU-LAPU
CITY”
3
 Section 59. Effectivity of Ordinances and Resolutions.
(d) In the case of highly urbanized cities, the main features of the
ordinance or resolution duly enacted or adopted shall, in addition
to being posted, be published once in a local newspaper of
general circulation within the city: Provided, That in the absence
thereof the ordinance or resolution shall be published in any
newspaper of general circulation.”
 Section 455(b)(ix) of the LGC
Section 455. Chief Executive; Powers, Duties and Compensation.
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code, the city mayor shall:
(1) Exercise general supervision and control over all programs, projects,
services, and activities of the city government. and in this connection, shall:
(ix) Allocate and assign office space to city and other officials and
employees who, by law or ordinance, are entitled to such space in the
city hall and other buildings owned or leased by the city government;

5
 Department’s Opinion

The law is very clear that the power to allocate

and assign office space should be exercised by
the Mayor, not by the Sanggunian, and should
cover officials and employees of the city
government only.

6
 Department’s Opinion

Also, it should be by authority of law or an

ordinance. In this case, since the ordinance is
ineffective, the same should not be the basis of
for allocation of the said space.

7
 Department’s Opinion
Obviously, it is clear case of a midnight
ordinance considering the circumstance that it
was passed last June or shortly before the end of
the former Mayor’s term, and its design to favor
the former Mayor who is now the sitting
congresswoman.
8
 Department’s Opinion
Accordingly, for an ordinance to be valid and
effective, the same should not violate the
Constitution and existing laws, such as the LGC. For
clearly ignoring Sections 59(d) and 455(b)(ix) of the
LGC, this Department believes that the subject
ordinance is ineffective and invalid, therefore, should
not be implemented.
9
 Issue
Is the ordinance entitled “AN ORDINANCE PROVIDING AN
OFFICE SPACE AT THE LAPU-LAPU CITY HALL AS
DISTRICT OFFICE OF THE MEMBER OF THE HOUSE
OF REPRESENTATIVE FOR THE LONE
CONGRESSIONAL DISTRICT OF LAPU-LAPU CITY”
VALID?
10
DILG LEGAL OPINION
(on MC 2010-101)
 Legal Issue:
Whether it is allowed to put the image of the
Municipal Mayor together with the
President on the business plate.

12
 MEMO CIRCULAR
Prohibits the practice of putting up billboards and
signages and other information materials bearing the
NO. 2010-101
names, initials or pictures of government personalities
on all government projects, and government properties.

dated 23 Sept 2010

The premise for such violation was even laid down as:
1. To refrain from associating the President’s personality
BANNING NAMES
and identity OR INITIALS
in government AND/OR
programs IMAGES
and projects;
OR PICTURES
and OF GOVERNMENT OFFICIALS IN
BILLBOARDS ANDlocal
2. To uphold good SIGNAGES
governance.OF GOVERNMENT
PROGRAMS, PROJECTS AND PROPERTIES
13
 “
The issuance of a Business
Relative
LicensetoPlate
this,is itpart
cannot
of the be
argued that theofMayor
implementation and the
a government
Presidentintended
program are to be government
displayed
officials
by businesswhose images and
establishments;
names
hence,are notBusiness
said to be displayed
Plate is in
such Business
within License Plate
the contemplation of
pursuant andtootherthe
“signages same
information
Memorandum Circular.
materials”

14
 Legal Issue:
Whether it is allowed to put the image of the
Municipal Mayor together with the
President on the business plate.

15
 “
“Government projects and
properties x x x must only
contain the official seal or
name of the local government
unit.”

16
DILG LEGAL OPINION
NO. 8, S. OF 2019
 Legal Issue:
Manner of filling-up the position in the
Sangguniang Bayan of San Ricardo,
Southern Leyte

18
FACTS:

19
Query No. 1:

Who will recommend and/or endorse to the

appointing authority to fill-up the vacant position?
Will it be the SB or the political party?

20
 Sec. 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;
(2) The governor, in the case of Sangguniang Panlungsod of
component cities and the Sangguniang Bayan;
(3) The city or municipal Mayor, in the case of Sangguniang
Barangay, upon the recommendation
21
of the SB concerned.
Sec. 45. Permanent Vacancies in the Sanggunian
(b) Except for the Sangguniang Barangay, only the nominee 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 from the
same political party as that of the Sanggunian member who
caused the vacancy and shall serve the unexpired term of the
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 shall be a ground for administrative action
against the official responsible therefor.
22
Sec. 45. Permanent Vacancies in the Sanggunian
(c) In 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.
(d) In case of vacancy in the representation of the
youth and the Barangay in the Sanggunian, said
vacancy shall be filled automatically by the official next
in rank of the organization concerned.
23
Query No. 2:

Who caused the vacancy in the SB and what political

party should nominate following S. 45 of LGC.

24
 Navarro
Navarro vs.
Navarro CA
vs.vs.
CA CA
Legal Issue:
The SC ratiocinated that the reason behind the right given
“Neither the vacancy caused by the elevation of the VM
to a political party to nominate a replacement where a
to the Office of the Mayor
Accordingly, in the nor the vacancy
Navarro case, theleft by the party
political last
permanent vacancy occurs in the sanggunian is to
ranking sangguniang
nomination shouldmember when
be issued he political
by the was elevated
partytoof the
maintain the party representation as willed by the people
` 17Who
the caused
stthranking
ranking the
position,
sanggunian LAST
butmemberVACANCY?
rather itbecause
is that vacancy
he was the one
in the election. This Departmentstbelieves that in electoral
caused by the elevation
who caused of the 1in ranking
the last vacancy sanggunian
the sanggunian due to his
democracy, conscientious people may choose the
memberelevation
to the next higher
to the rank i.e.
position Vice
of the Mayor, by
Vice-Mayor.”
candidate not only because of their personal attributes and
reasons of succession.
qualifications but also because of their party affiliation.

25
 “
Applying the foregoing, your
elevation to the position of Vice-
Mayor gave way to the last
vacancy. In short, you have
caused the vacancy. Hence in this
case, Section 45(b) in relation to
paragraph (c) of the LGC
governs. Considering that you run
under a political party, that is, the
Liberal Party, then the appointee
to the 8th ranking position should
also belong to Liberal Party.
26
Query No. 3:

W/N the appointment of Mr. Buba is valid?

27
Per Section 45(b) of the LGC, the requisites or conditions
sine qua non for the appointment of a person who will fill
in the vacancy are as follows:
(1) Nomination from the political party concerned;
(2) Certificate of membership of the appointee from the
highest official of the political party concerned.

In this case, records show that Mr. Buba had obtained the
above-mentioned requisites/conditions for appointment.
Therefore, to us, the appointment of Mr. Buba is valid.
28
 LESSONS FOR THE WEEK:
1. In case of permanent vacancy in the Sangguniang
Bayan where succession can no longer apply, the
Governor shall appoint the person to fill in the vacancy.
2. The appointee shall come from the same political
party as that of the Sanggunian member who caused the
vacancy or recommended by SB if last person who
caused vacancy has no political party.
29
 LESSONS FOR THE WEEK:
4. IfThe
3. 1st rankingorSBconditions
the requisites member issineelevated
qua nonto the
fornext
the
higher rank i.e.
appointment of Vice-Mayor
a person whobywillreason
fill in
of the
succession,
vacancyforare
in follows:
as the application of S. 45 of the LGC, it is he who
caused the last vacancy
(1) Nomination from theNOT the vacancy
political left by the last
party concerned;
ranking sangguniang
(2) Certificate of member when
membership of the he was elevated
appointee from to
the
7th ranking
the highest position.
official of the political party concerned.

30
DILG LEGAL OPINION
NO. 12, S. OF 2019
 Legal Issues:
1. Whether or not JO/COS personnel can
still be retained in his/her employment with
a government office considering that he/she
has already been elected as SK Councilor,
SK Chairperson, Brgy. Kagawad or Brgy.
Captain?
32
 Although services rendered under Job Order contracts
are not considered government services as there is no
employer-employee relationship created between the
government and the job order employee, the
compensation received out of the contract is sourced
from government funds and the honorarium received by
a Punong Barangay/Kagawad is sourced from the
government which is proscribed under Section 8, Article
IX(B) of the Constitution and Section 95 of the LGC.
33
 Even if it was established that JO and COS has no
employer-employee relationship with the government, being
a JO or COS in the government is still an “employment in
the government” or he is considered “holding a public
office”. Therefore, we find the herein principle applicable,
viz: “What cannot be legally done directly cannot be done
indirectly. This rule is basic and, to a reasonable mind, does
not need explanation. Indeed, if acts that cannot be legally
done directly can be done indirectly, then all laws would be
illusory.
34
 Legal Issues:
2. Whether or not a JO/COS employee can
still be retained in his/her employment if that
latter is a member of the “Lupon ng
Tagapamayapa” in the barangay?

35
It is noteworthy that the Lupong Tagapamayapa is
composed of the punong barangay, as chairman, and
ten (10) to twenty (20) members chosen from those
residing or working within the barangay pursuant to
Section 399 of RA No. 7160. The requirement for a
member thereof is residency or work within the
barangay. Those members, except in the case of the
Punong Barangay, may be employed or not.

36
The fact that the requirement is “working within the
barangay” shows that they can work other than being a
member of the Lupong Tagapamayapa. The law does
not preclude them to be employed privately or in the
government, as long as they possess integrity,
independence of mind, sense of fairness, and
reputation for probity, pursuant to Section 399(b) of RA
No. 7160. Hence, there is no reason for a JO/COS
employee not to be retained in his/her employment
merely by reason of being appointed as member of
the Lupong Tagapamayapa. 37
 Legal Issues:
1. Whether or not JO/COS personnel can
still be retained in his/her employment with
NO!
a government office considering that he/she
has already been elected as SK Councilor,
SK Chairperson, Brgy. Kagawad or Brgy.
Captain?
38
 Legal Issues:
2. Whether or not a JO/COS employee can

YES!
still be retained in his/her employment if that
latter is a member of the “Lupon ng
Tagapamayapa” in the barangay?

39
DILG Opinion
No. 51 S. 2019
 ISSUES:
Whether or not there
was a quorum when the
Sanggunian of the
MLGU of Rizal, Kalinga
passed SB Resolution
No. 2019-11 and SB
Resolution No. 2019-20
which seeks to affirm
SB Resolution No. 2019-
11? 41
What kind of majority
vote is required in
passing a Resolution that
will authorize the Acting
Municipal Mayor of Rizal,
Kalinga to enter into a
MOA with the DA-RFO-
CAR?
 FACTS:

In the case of Rizal, Kalinga, it was

represented that the Sanggunian Bayan
(SB) was originally composed of ten (10)
members including the Vice Mayor.
However, three (3) SB members were
dismissed from Office while the Mayor was
suspended by the Office of the
Ombudsman.
42
 FACTS:
Thus, the Vice Mayor assumed temporarily the
Office of the Mayor while the “most senior” SB
sits as the Acting Vice Mayor. It was further
represented that after the Sangguniang
Kabataan (SK) Elections, the SK Pederasyon
President sits as an ex officio member of the
SB, thereby resulting to seven (7) total
members in the Sanggunian including the
Acting Vice Mayor.
43
 FIRST ISSUE:

Whether or not there was a quorum

when the Sanggunian
Additional fact: of the MLGU
of
OnlyRizal,
four (4) SBKalinga passed SB
members, including
the Presiding Officer, were present
Resolution No.
during the session 2019-11
when these and SB
resolutions were passed and
Resolution No. 2019-20 which seeks
approved.
to affirm SB Resolution No. 2019-11?
44
 Sec. 53. Quorum

“
(a) A majority of all the members of the sanggunian who
have been elected and qualified shall constitute a quorum
to transact official business. Should a question of quorum be
raised during a session, the presiding officer shall immediately
proceed to call the roll of the members and thereafter
announce the results.
45
Based on the above-cited provision,
the law requires that the majority of
all members of sanggunian who
have been duly elected and qualified
should constitute the same.

46
 JAVIER VS. CADIAO
GR No. 185369, August 3, 2016

“Verily, the Vice Governor, as the SP’s

Presiding Officer, should be counted for
purposes of ascertaining the existence
of a quorum, x x x.”

47
 SANTIAGO VS. GUINGONA, ET.AL.
GR No. 134577, November 18, 1998

“The term “majority” has been judicially

defined a number of times. When referring
to a certain number out of a total or
aggregate, it simply “means the number
greater than half or more than half of any
total.”
48
 TWO (2) WAYS
You canTO
alsoDETERMINE
split your contentMAJORITY

7/2 = 3.5 (3.5 is the 50%)

Simply more
50%+1 3.5 +of
1 = the
4.5 or can than one
be reduced to 4half

entire (1/2) of the

It was shown that 4 is more than half (i.e. 3.5).
membership.
Hence, the total number required entire
to constitute a
quorum is only 4 and not 4.5 or 5.
membership.
49
 FIRST ISSUE:

Whether or not there was a quorum

when the Sanggunian of the MLGU
of Rizal, Kalinga passed SB
Resolution No. 2019-11 and SB
Resolution No. 2019-20 which seeks
to affirm SB Resolution No. 2019-11?
50
 SECOND ISSUE:

What kind of majority vote is required

in passing a Resolution that will
SIMPLE
authorize the Acting Municipal
MAJORITY
Mayor
of Rizal, Kalinga to enter into a MOA
with the DA-RFO-CAR?
51
 Sec. 22 (c). Corporate Powers (LGC)

“
(c) Unless otherwise provided in this Code, no contract may be
entered into by the local chief executive in behalf of the local
government unit without prior authorization by the sanggunian
concerned. A legible copy of such contract shall be posted at a
conspicuous place in the provincial capitol or the city, the
municipal or barangay hall.
52
 Art. 107 (g). Ordinances and
Resolutions (IRR)

“
(g) No ordinance or resolution passed by the
sanggunian in a regular or special session duly
called for the purpose shall be valid unless
approved by a majority of the members present,
there being a quorum.
53
 Based on the above-cited provisions of the LGC and
the IRR, the general rule is that ordinance or
resolution should only be approved by a majority of
the members of the sanggunian present, there being
a quorum. The exception provided by the IRR is
when it directs payment of money or creates liability,
the required vote is qualified majority, that is, majority
of all the SB members.

54
 In the letter, former Gov. Baac represented that the
questioned project is a downloading by the
Department of Agriculture (DA) of the amount of Two
Hundred Forty Million Pesos (Php 240,000,000.00) to
the LGU of Rizal, Kalinga for the rehabilitation of
various Farm-to-Market Roads (FMRs) in the said
municipality.

55
 In line with this, it appears that the MOA pertains to
the project granted by the National Government , thru
the DA, to the LGU of Rizal, Kalinga. Hence, it does
notHenceforth,
create indebtedness by thethat
we reiterate LGUthetovote
the DA.
Accordingly, second paragraph of Article 107 of the
required is only majority of the members
IRR of LGC, which requires qualified majority for
present, provided there is a quorum.
ordinance or resolution authorizing or directing the
payment of money or creating liability is not
applicable herein.

56
 JAVIER VS. CADIAO
GR No. 185369, August 3, 2016

“Verily, the Vice Governor, as the SP’s

Presiding Officer, should be counted for
purposes of ascertaining the existence of a
quorum, but not in the determination of the
required number of votes necessary to
uphold a matter before the SP.”
57
In sum, the Presiding Officer is counted
in the determination of the quorum but
during the counting of votes for the
passage of a resolution or an
ordinance, his/her vote should not be
counted, unless there is a tie.

58
Applying this principle in the case at hand,
sinceTHEREFORE,
there is a quorum with(3)
IF THREE theVOTED
presence
of 4 members (1 presiding officer
IN THE AFFIRMATIVE, THEN and
THE 3 SB
members) thus, the
RESOLUTION HAD required number of
BEEN VALIDLY
votesPASSED
to passBYtheTHE
resolution is only OF
SANGGUNIAN 2 {1.5
RIZAL,orKALINGA.
(50% of 3)+1=2.5 only 2 because it is
more than 50%)}.
59
DILG LEGAL OPINION
NO. 18, S. OF 2014
 LEGAL ISSUE:
(DILG Opinion No. 18-2014)

Whether or not an appeal from the Order of

Suspension of the Mayor to the Office of the
President STAYS the implementation of the
same with consideration to Section 9 of AO
22 and Section 68 of RA 7160
61
 Section 68, RA 7160
“Execution Pending Appeal. An appeal shall not prevent a decision
from becoming final or executory. The respondent shall be considered
as having been placed under preventive suspension during the
pendency of an appeal in the event he wins such appeal. In the event
the appeal results in an exoneration, he shall be paid his salary and
such other emoluments during the pendency of the appeal.

62
 AO 22, S. 2011
(Prescribing the rules and regulations governing appeals to the office of the
president of the philippines)
“Stay of execution. The execution of the decision/resolution/order
appealed from is STAYED upon the filing of the Notice of Appeal
within the period prescribed herein, provided that the stay of
execution shall not apply (a) where provided by special law, and (b)
in decisions/resolutions/order of the Department of Interior and Local
Government pursuant to AO No. 23 (s. 1992), as amended. x x x”

63
 DOJ’s LEGAL OPINION
(November 28, 2012)
“Basic is the rule in statutory interpretation that when the law
is clear, plain and free from ambiguity, it must be given its
literal meaning without attempted interpretation. Known as
the plain meaning rule, or verta egis non est recedendum, or
from the words of a statute there should be no departure.”

64
“Evidently, the execution of the decision / resolution / order issued by
the Sangguniang Panlalawigan on appeal to the Office of the
President is STAYED upon the filing of the Notice of Appeal within
the prescribed period. The stay of execution provided above shall,
however, not apply to the following cases, to wit: (a) where provided
by special law; and (b) in decisions / resolutions / order of the DILG
pursuant to A.O. No. 23 (s.1992), as amended.”

65
“In other words, the decision of the Sangguniang Panlalawigan on
appeal to the Office of the President is DEFERRED during the
pendency of appeal as it may deem just and reasonable, except in
cases under special law and under A.O. No. 23.”

66
 “
DOJ’s LEGAL OPINION
(May 7, 2013)

“Nonetheless, for your information and guidance only, the

Supreme Court, in Berces vs. Guingona, Jr., 241 SCRA 539,
has had occasion to pass upon Section 68, in relation to then
Section 6 of Administrative Order No. 18, s. 1987, the
predecessor of A.O. No. 22 on the effect of the perfection of
the appeal to the O.P., thus:

67
 “
“The first sentence of Section 68 merely provides that an appeal
shall not prevent a decision from becoming final and executory.
As worded, there is a room to construe said provision as giving
the reviewing officials to stay the execution of the appealed
decision. There is nothing to infer therefrom that the reviewing
officials are deprived of the authority to order a stay of the
appealed order. x x x"

68
 LEGAL ISSUE:
(DILG Opinion No. 18-2014)

Whether or not an appeal from the Order of

Suspension of the Mayor to the Office of the
YES!
President STAYS the implementation of the
same with consideration to Section 9 of AO
22 and Section 68 of RA 7160
69
UPDATES
 MEMO dated JANUARY 16, 2019
“APPEAL TO THE OFFICE OF THE
PRESIDENT FROM DECISION /
RESOLUTION / ORDER OF SANGGUNIANG
PANLALAWIGAN OR SANGGUNIANG
PANLUNGSOD”

71
“A reading of Section 9 above would suggest that the filing of the
Notice of Appeal STAYS EXECUTION, if the same was filed
within the prescribed period. However, to determine
timeliness, an expressed declaration from the Office of the
President to that effect is a condition sine qua non.

72
Thus, after seeking guidance from the Office of the President
(OP), the Department was advised to require the party
claiming a timely appeal to obtain a certification with an
order from OP stating that such appeal was filed within the
period AND that the remedy has the effect of staying the
implementation of the decisions / resolutions / order issued
against him/her.”

73
74