OVERSIGHT FUNCTIONS OF THE SANGGUNIAN By: Atty. Enrique V. dela Cruz, Jr

OVERSIGHT FUNCTIONS OF THE SANGGUNIAN

By: Atty. Enrique V. dela Cruz, Jr.

Oversight on Ordinances

Legislative Oversight• SEC. 56. Review of Ordinances by the Sangguniang

Panlalawigan. - (a) Within three (3) days after approval, the secretary to the sanggunian panlungsod or sangguniang bayan shall forward to the sangguniang panlalawigan for review, copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils.

• (b) Within thirty (30) days after receipt of copies of such ordinances and resolutions, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for prompt examination.


Panlalawigan. -• (c) If the sangguniang panlalawigan finds that such an

ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken.

• (d) If no action has been taken by the sangguniang panlalawigan within thirty (30) days after submission of such an ordinance or resolution, the same shall be presumed consistent with law and therefore valid.


Panlungsod or Bayan. - (a) Within ten (10) days after its enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan concerned for review as to whether the ordinance is consistent with law and city or municipal ordinances.

• (b) If the sangguniang panlungsod or sangguniang bayan, as the case may be, fails to take action on barangay ordinances within thirty (30) days from receipt thereof, the same shall be deemed approved.


Panlungsod or Bayan. - (c) If the sangguniang panlungsod or sangguniang bayan, as the case may be, finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within thirty (30) days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay concerned for adjustment, amendment, or modification; in which case, the effectivity of the barangay ordinance is suspended until such time as the revision called for is effected.

• Q: May the Sanggunian declare a local ordinance under review as void and illegal?

• A: NO.

• The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is 'beyond the powers conferred upon the sanggunian making the same.'

• Absolutely no other ground is recognized by the law.

• Moday v. CA, Feb 20, 1997; DILG Opinion No. 3-2005 (January 21, 2005)

• Q: May the Sanggunian exceed the 30-day period of review because of time spent in referral to its committee or legal office?

• A: NO.• The Sanggunian is required to take action on the ordinance

on review within thirty (30) days after its submission. • The phrase "take action" should be construed as either

approval or disapproval of the ordinance and not just any other action of the reviewing sanggunian, such as referral to a committee.

• After the lapse of such period, and no official and/or formal document, such as a resolution, was issued by the Sanggunian, it can be validly stated that the Sanggunian failed to act within thirty (30) days and the ordinance or resolution under review can be presumed consistent with law and therefore valid. [DILG Opinion No. 19-2009 (April 28, 2009)] DILG Opinion No. 62-2012 (November 7, 2012)]

Oversight on the Local Budget

Review of Appropriation Ordinance• "SEC. 327. Review of Appropriation Ordinances of

Component Cities and Municipalities. — The sangguniang panlalawigan shall review the ordinance authorizing annual or supplemental appropriations of municipalities in the same manner and within the same period prescribed for the review of other ordinances.

• If within ninety days (90) within receipt of copies of such ordinance, the sangguniang panlalawigan takes no action thereon, the same shall be deemed to have been reviewed in accordance with law and shall continue to be in full force and effect.

Review of Appropriation Ordinance• "SEC. 327. Review of Appropriation Ordinances

of Component Cities and Municipalities.• The sangguniang panlalawigan shall within the

same 90-day period advise the … sangguniang bayan concerned through the local chief executive of any action on the ordinance under review.

• Upon receipt of such advice, the . . . municipal treasurer concerned shall not make further disbursements of funds from any of the items of appropriate declared inoperative, disallowed or reduced.

Review of Appropriation Ordinance

• SEC. 333. Review of the Barangay Budget. - (a) Within ten (10) days from its approval, copies of the barangay budget shall be furnished the sangguniang panlungsod or the sangguniang bayan, as the case may be.

• If within sixty (60) days after the receipt of the ordinance, the sanggunian concerned takes no action thereon, the same shall continue to be in full force and effect.

Review of Appropriation Ordinance• SEC. 333. Review of the Barangay Budget. - (b) Within

the 60-day period, the sangguniang panlungsod or sangguniang bayan concerned shall return the barangay budget to the punong barangay with the advice of action thereon for proper adjustments, in which event, the barangay shall operate on the ordinance authorizing annual appropriations of the preceding fiscal year until such time that the new ordinance authorizing annual appropriations shall have met the objections raised.

• Upon receipt of such advice, the barangay treasurer or the city or municipal treasurer who has custody of the funds shall not make further disbursement from any item of appropriation declared inoperative, disallowed, or reduced.

Who prepares the budget?

• The Local Development Council (LDC) prepares the Local Development Plan (LDP) (Section 109, LGC);

• The sanggunian will then approve or disapprove the LDP thru a Resolution (Section 114, LGC);

• The LDP will then be submitted to the mayor, who may approve or veto the same (Section 55, LGC);

• The approved LDP will then be submitted to the Local Finance Committee (LFC) for budget preparation (Art. 410, IRR, LGC);

• The proposed budget will be submitted by the local chief executive to the sanggunian for enactment into an ordinance. (Section 316, LGC) (DILG Opinion No. 137-2003)

Can the Sanggunian reduce the proposed budget?

• Article 415 of the IRR states that: "the local sanggunian may not increase the proposed amount in the executive budget nor include new items except to provide for statutory and contractual obligations but in no case shall it exceed the total appropriations in the executive budget".

• Considering that the only prohibition is against any increase, the sanggunian may reduce the executive budget proposed by the LCE, provided, however, that the requirements as well as the general limitations in the use of govt funds provided for under Sections 324 and 325 of the Code are complied with.

Is there any penalty for an LCE who fails to prepare and submit the annual budget

on time?• Yes. Pursuant to Sec. 318 of R.A. No.

7160, an LCE who fails to submit the budget on or before October 16 of the current year shall be subject to such criminal and administrative penalties as may be provided by the Local Government Code and other applicable laws.

What is the period for enactment of the annual budget (Re-enacted Budget)

• Under Section 323 of the LGC, If the sanggunian fails to enact the annual budget 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.

Effectivity of Budget

• Section 320 of the LGC, provides that: • The ordinance enacting the annual budget shall

take effect on the ensuing calendar year. • An ordinance enacting a supplemental budget,

however, shall take effect upon its approval or on the date fixed therein.

• The review of the budget by the sangguniang panlalawigan is not a requisite for validity or effectivity. (DILG Opinion No. 90-2000 dated 21 August 2000)

Supplemental Budget• No ordinance providing for a supplemental budget

shall be enacted except: • (a) when supported by funds actually available as

certified by the local treasurer, which shall refer to the amount of money actually collected during a given fiscal year that is over and above the realized estimated income of that year; or

• (b) in times of public calamity by way of budgetary realignment to set aside appropriations for the purchase of supplies and materials or the payment of services which are exceptionally urgent or absolutely indispensable to prevent imminent danger to, or loss of, life or property, in the jurisdiction of the LGU or in other areas declared in a state of calamity by the President. (Art. 417, IRR).

Intelligence Fund• Section 325(h) of RA 7160 provides in part that

". . . annual appropriations for discretionary purposes of the local chief executive shall not exceed two percent (2%) of the actual receipts derived from basic real property tax in the next preceeding calendar year.

• Pursuant to DILG Memorandum Circular No. 99-65 to determine the amount to be utilized for intelligence and confidential purposes, it shall be based on the: (a) 30% of the peace and order allocation, or 3% of the annual appropriations, whichever is lower. "

• Q: May the Sanggunian modify or reduce a local budget ordinance under review?

• A: YES.

• Expressly included in the sanggunian’s power to review the local budget ordinance of a lower LGU is the clipping power to disallow or reduce accordingly and even declare the ordinance inoperative in part or in its entirety if the appropriations are found to be excess of the amounts prescribed or if it does not comply with budgetary requirements and limitations under the law.

• DILG Opinion No. 101-1995 (August 31, 1995)

• Q: What are the grounds or questions that the reviewing Sanggunian can use to assail a local budget under review?

• A: Sec. 325, LGC• The total appropriations, whether annual or supplemental, for

personal services of a local government unit for one (1) fiscal year shall not exceed forty-five percent (45%) in the case of first to third class provinces, cities and municipalities, and fifty-five percent (55%) in the case of fourth class or lower, of the total annual income from regular sources realized in the next preceding fiscal year.

• The appropriations for salaries, wages, representation and transportation allowances of officials and employees of the public utilities and economic enterprises owned, operated, and maintained by the local government unit concerned shall not be included in the annual budget or in the computation of the maximum amount for personal services.


• A: Sec. 325, LGC

• No official or employee shall be entitled to a salary rate higher than the maximum fixed for his position or other positions of equivalent rank by applicable laws or rules and regulations issued thereunder;

• The creation of new positions and salary increases or adjustments shall in no case be made retroactive; and

• The annual appropriations for discretionary purposes of the local chief executive shall not exceed two percent (2%) of the actual receipts derived from basic real property tax in the next preceding calendar year.


• A: Sec. 324, LGC• The aggregate amount appropriated shall not exceed the

estimates of income; • Full provision shall be made for all statutory and contractual

obligations of the local government unit concerned: Provided, however, That the amount of appropriations for debt servicing shall not exceed twenty percent (20%) of the regular income of the local government unit concerned;

• Five percent (5%) of the estimated revenue from regular sources shall be set aside as an annual lump appropriation for unforeseen expenditures arising from the occurrence of calamities.

• Q: What are the restrictions on disbursement of Funds?• A:• SEC. 335. Prohibitions Against Expenditures for Religious or

Private Purposes. - No public money or property shall be appropriated or applied for religious or private purposes.

• SEC. 337. Restriction Upon Limit of Disbursements. - Disbursements in accordance with appropriations in the approved annual budget may be made from any local fund in the custody of the treasurer, but the total disbursements from any local fund shall in no case exceed fifty percent (50%) of the uncollected estimated revenue accruing to such local fund in addition to the actual collections: Provided, however, That no cash overdraft in any local fund shall be incurred at the end of the fiscal year.

• Q: What are the restrictions on disbursement of Funds?• A:• SEC. 338. Prohibitions Against Advance Payments. - No

money shall be paid on account of any contract under which no services have been rendered or goods delivered.

• SEC. 339. Cash Advances. - No cash advance shall be granted to any local official or employee, elective or appointive, unless made in accordance with the rules and regulations as the Commission on Audit may prescribe.

• SEC. 343. Prohibition Against Expenses for Reception and Entertainment. - No money shall be appropriated, used, or paid for entertainment or reception except to the extent of the representation allowances authorized by law or for the reception of visiting dignitaries of foreign governments or foreign missions, or when expressly authorized by the President in specific cases.

• Q: What are the restrictions on disbursement of Funds?

• A:

• SEC. 344. Certification on, and Approval of, Vouchers. - No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose.

• Vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned, as to validity, propriety, and legality of the claim involved.

• Q: Can the local chief executive declare savings and transfer it to augment other expenses (DAP)?

• A: NO.

• SEC. 336. Use of Appropriated Funds and Savings. - Funds shall be available exclusively for the specific purpose for which they have been appropriated.

• No ordinance shall be passed authorizing any transfer of appropriations from one item to another.

• However, the local chief executive or the presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any item in the approved annual budget for their respective offices from savings in other items within the same expense class of their respective appropriations.

• Q: How can the Sanggunian monitor that the funds are properly disbursed?

• A:

• SEC. 346. Disbursements of Local Funds and Statement of Accounts. - Disbursements shall be made in accordance with the ordinance authorizing the annual or supplemental appropriations without the prior approval of the sanggunian concerned.

• Within thirty (30) days after the close of each month, the local accountant shall furnish the sanggunian with such financial statements as may be prescribed by the Commission on AuditIn the case of the year-end statement of accounts, the period shall be sixty (60) days after the thirty-first (31st) of December.

• Q: Who will be held liable for improper disbursement of funds?

• A:

• "SEC. 340. Persons accountable for Local Government Funds. — Any officers of the local government unit whose duty permits or requires the possession or custody of local government funds shall be accountable and responsible for the safekeeping thereof in conformity with the provisions of this Title.

• Other local officers who, though not accountable by the nature of their duties, may likewise be similarly held accountable and responsible for local government funds through their participation in the use or application thereof ." (Emphasis supplied)


• A:

• SEC. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of Other Department Heads or Officers of Equivalent Rank. –

• Unless he registers his objection in writing, the local treasurer, accountant, budget officer, or other accountable officer shall not be relieved of liability for illegal or improper use or application or deposit of government funds or property by reason of his having acted upon the direction of a superior officer, elective or appointive, or upon participation of other department heads or officers of equivalent rank.


• A:

• SEC. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of Other Department Heads or Officers of Equivalent Rank. –

• The superior officer directing, or the department head participating in such illegal or improper use or application or deposit of government funds or property, shall be jointly and severally liable with the local treasurer, accountant, budget officer, or other accountable officer for the sum or property so illegally or improperly used, applied or deposited.

Internal Oversight

Sanggunian Committees

• The manner of selecting the Chairman and Members of various committees is through election. (Sec. 50, LGC)

• The majority can prepare a list and the sanggunian can vote to approve it, provided this is indicated in the IRP.

• DILG Opinion No. 112-98 (09-07-1998)

Can the vice mayor chair a committee?

• NO.

• The vice-mayor may chair a special committee created for a special purpose (DILG Opinions Nos. 243-1992; 156-1994) but cannot head a regular committee. (DILG Opinions Nos. 243-1992; 29-1993)

What is quorum?

• “A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business…” (Section 53, LGC)

What is meant by “majority”?

• 50% plus one of the entire membership of the sanggunian;

• The closest number to more than one-half of the total membership of the sanggunian; (La Carlota City vs. Atty. Rex Rojo, G.R. No. 181367, April 24, 2012)

Is the vice-mayor included in the determination of quorum?

• Yes. The Vice Mayor is a member of the sanggunian.

• He will thus be included in the total number of sanggunian members for purposes of determining quorum. (DILG Opinion No. 28-2000, dated 17 April 2000; La Carlota City vs. Atty. Rex Rojo, G.R. No. 181367, April 24, 2012)

Determining Quorum

• 19 members = 19/2 = 9.5 + 1 = 10.5

• The quorum for a sanggunian with 19 members is therefore “10”

• 11 members = 11/2 + 1 = 6.5

• The quorum for a sanggunian with 11 members is therefore “6” (DILG Opinion No. 60-2004, dated 19 July 2004)

Vote Required in Sessions

• Ordinary measures shall be decided by a simple majority of the members present at any meeting there being a quorum.

• (DILG Opinions Nos. 26-1996; 183-1994)

Two-Thirds (2/3) Vote Required

• Extending Loans or entering into contracts;

• Issuance of bonds or securities;• Authorizing the lease of public

property;• Grant of franchises;• Creation of LGU liability or

indebtedness; (DILG Opinion No. 107-2003, dated 15 August 2003)

Two-Thirds (2/3) Vote Required• Over-ride the veto of the Mayor;• Grant of Tax exemptions;• Levy of taxes;• Discipline / suspend a member of the

sanggunian;• Opening or closing of roads;• Selection and transfer of gov’t site or

offices;• Concurrence in the appointment of

personnel; (DILG Opinion No. 107-2003, dated 15 August 2003)

Vice-Mayor as Presiding Officer

• Being the presiding officer of the council, a vice-mayor is considered a regular member of the local legislative council concerned, (DILG Opinion Nos. 138, 342 - 1992; 81-1995)

• But a vice-mayor acting as mayor cannot preside over the council until the mayor re-assumes his/ her position since this will violate the local separation of powers. (Gamboa v. Aguirre)

• In such situation, the senior councilor may preside. (DILG Opinions Nos. 142, 174 - 1994)

Presiding Officer as member

• As presiding officer, he can only vote to break a tie;

• As a member, he may participate in the deliberations, vote, sponsor or co-author a bill or chair a special committee.

• He/ she may temporarily relinquish his/ her chair -- as presiding officer -- to the majority floor leader or to any sanggunian member. (DILG Opinion No. 65-1995)

• If he will participate in the session as a member, he may choose the temporary presiding officer. (DILG Opinions Nos. 29, 132 - 1993)

Temporary Presiding Officer

• In case of temporary absence of the presiding officer, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.

• He shall certify within 10 days from the passage of ordinances / resolutions adopted by the sanggunian in the session over which he temporarily presided.(Art. 102-IRR, LGC)

Permanent vacancy: Presiding Officer

• In case of permanent vacancy in the position of vice mayor, the highest ranking sanggunian member will succeed as vice mayor /presiding officer.

• The vacancy shall be filled by the other members of the sanggunian in accordance to their ranking. (Section 44, LGC)

Permanent vacancy: sanggunian

• In case the permanent vacancy was caused by a member who belongs to a political party, the party will nominate and the president will appoint the replacement;

• If he does not belong to any political party, the other members of the sanggunian will nominate and the president will appoint the replacement. Section 45, LGC

Sanggunian Secretary

• The secretary to the sanggunian is a career public official with rank and salary equal to a head of a department. (DILG Opinions Nos. 91, 253, 286 - 1992; 78-1995;)

• A sanggunian secretary shall automatically continue in office despite the lapse of 3-year terms of elective officials unless otherwise removed for cause. (DILG Opinion No. 176-1992)

Appointment of Sanggunian Secretary

• It is the vice mayor, not the mayor, who is authorized to appoint the secretary to the sanggunian (CSC En Banc Resolutions Nos. 94-7153 December 29, 1994, 92-111 August 20, 1992; DILG Opinions Nos. 348-1992; 7, 155, 236, 245 - 1993; 85-1995) with the concurrence of the sanggunian concerned. (DILG Opinion No. 8-1995)

Temporary vacancy: Mayor

• A mayor may designate in writing an officer-in-charge (e.g. councilor, any appointive official or employee) to assume the office but only for three (3) days.

• On the 4th day, the vice-mayor assumes the post regardless of the nature of the absence of the mayor. (DILG Opinions Nos. 22, 30, 87-A - 1993; 52, 53 - 1994)

• Henceforth, the designation of the officer-in-charge ceases. (DILG Opinion No. 87-A – 1993)

Powers: Acting Mayor

• A vice-mayor acting as mayor possesses the powers incidental to the office, including the authority to solemnize marriages, during the period of temporary incapacity (DILG Opinion No. 25-1994)

• An acting mayor can exercise the power to appoint and to discipline only after the lapse of 30 working days from the time the mayor is temporarily incapacitated. (CSC En Banc Resolution Nos. 94-0959 February 15, 1994, 94-6892 December 20, 1994)

Acting Mayor CANNOT:

• administer oaths (DILG Opinion No. 136-1994);

• the power to approve or disapprove ordinances and resolutions enacted by the council (DILG Opinion No. 149-1993);

• preside over council sessions (DILG Opinions Nos. 270-1992; 142, 174 -1994);

• appoint, suspend or dismiss employees within 30 days except when the cause of the temporary incapacity of the mayor is suspension for more than 30 days.

Is the signature of the Vice mayor on an enacted ordinance necessary?

• No. Section 469 (c)(3) of the LGC provides that enacted ordinances must be certified by the presiding officer before they are submitted to the mayor for his approval.

• However, any presiding officer may certify an enacted ordinance. (DILG Opinion No. 16-2005, dated 15 Feb. 2005)

May an ordinance become valid even without the signature of the mayor?

• Yes. If he fails to act on an ordinance submitted to him for his review within 10 days from his receipt thereof;

• When the sanggunian overrides the veto of the mayor by 2/3 vote. (DILG Opinion No. 22-2003, dated 27 Feb. 2003)

OVERSIGHT ON POLICE POWER

• Q: Can the Mayor be compelled by writ of Mandamus to issue a business permit?

• A: NO.• A mayor cannot be compelled by mandamus to issue a

business permit since the exercise of the same is a delegated police power hence, discretionary in nature.

• Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation.

• Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.

• RIMANDO V. NAGUILAN EMISSION TESTING CENTER, G.R. NO. 198860. JULY 23, 2012

SAMPLE PROBLEM

An aggrieved resident of the City of Manila filed mandamus proceedings against the city mayor and the city engineer to compel these officials to remove the market stalls from certain city streets which they had designated as flea markets.

Portions of the said city streets were leased or licensed by the respondent officials to market stallholders by virtue of a city ordinance. Decide the dispute.

Suggested Answer:

The petition should be granted.

In accordance with Macasiano v. Diokno. 212 SCRA 464 [1992], since public streets are properties for public use and are outside the commerce of man, the City Mayor and the City Engineer cannot lease or license portions of the city streets to market stallholders.

May an LGU prescribe a central terminal for public utility vehicles within its territory?

• No. Since the compulsory use of the terminal would subject the users thereof to fees, rentals and charges, such measure is unduly oppressive.

• Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., 452 SCRA 174 (2005)

May an LGU regulate the subscriber rates charged by CATV operators within its territorial jurisdiction?

• No. Regulation of CATV subscriber rates is lodged in the NTC, not LGU’s.

• LGUs, likewise, have no authority to grant franchises for such undertakings.

• Batangas CATV, Inc. v. Court of Appeals, 439 SCRA 326 (2004)

May an LGU enact an ordinance to phase out motels, night clubs, and other establishments to

protect public morals?

• NO. Businesses may only be regulated but cannot altogether be prohibited.

• Simply because there are no ‘pure’ places where there are impure men.”

• That these motels and clubs are used as venues for prostitution is of no moment. sexual immorality may take place in the most innocent of places

• City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

May an LGU regulate the short time periods and wash rates of motels, to protect public morals?

• NO. “Individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare.

• However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons.

• The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification.

• The Ordinance rashly equates wash rates and rentingout a room more than twice a day with immorality without accommodating innocuous intentions.

• White Light Corp., vs. City of Manila, 576 SCRA 416 (2009)

May an LGU validly use public funds to undertake the widening, repair and improvement of the sidewalks of a privately-owned subdivision?

• In May 1999, the City of Marikina undertook a public works project to widen, clear and repair the existing sidewalks of Marikina Greenheights Subd.

• It was assailed as an illegal use of public funds.• The SC ruled that subdivision streets belong to the owner

until donated to the government or until expropriated upon payment of just compensation.

• The use of LGU funds for the widening and improvement of privately-owned sidewalks is unlawful as it directly contravenes Section 335 of RA 7160.

• Albon v. Fernando, 494 SCRA 141 (2006)

LGU Power to Grant License to Cockpits

• It is the sanggunian bayan concerned alone which has the power to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks within its territorial jurisdiction.

• Nevertheless, while the sanggunian retains the power to authorize and license the establishment, operation, and maintenance of cockpits, its discretion is limited in that it cannot authorize more than one cockpit per city or municipality, unless such cities or municipalities have a population of over one hundred thousand, in which case two cockpits may be established.

• Tan v. Pereña, 452 SCRA 53 (2005)

Can the Governor Issue Small-Scale Mining Permits?

• NO. Pursuant to Republic Act No. 7076, which took effect on 18 July 1991, approval of the applications for mining permits and for mining contracts are vested in the Provincial/City Mining Regulatory Board.

• Composed of the DENR representative, a representative from the small-scale mining sector, a representative from the big-scale mining industry and a representative from an environmental group, this body is tasked to approve small-scale mining permits and contracts.”

• Considering that the governor is without legal authority to issue said mining permits, the same permits are null and void.”

• Calanza v. Paper Industries Corporation of the Philippines (PICOP), 586 SCRA 408 (2009)

Consultation and Sanggunian Approval for Infrastructure projects

• “Section 27 – Prior Consultations Required --- No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained…”

Can a Sanggunian prohibit the operation of Lotto in their LGU?

• NO. Section 27 of the LGC applies only to national programs and/or projects which are to be implemented in a particular local community.

• Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO.

• Besides, the PCSO charter is statute. An ordinance cannot amend or modify a statute.

• Lina vs. Pano, 364 1 SCRA 76 (2001)

If the MMDA seeks to establish a sanitary landfill in an LGU, is the prior approval of the

Sanggunian Bayan required?

• YES. Section 27 of the LGC mandates two requisites that must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian.

• Absent either of these mandatory requirements, the project’s implementation is illegal.”

• Province of Rizal v. Executive Secretary, 477 SCRA 436 (2005)

Q: The Province of Aklan intends to develop the port in Caticlan, is the prior approval of the Sanggunian Bayan required?

• YES. “Section 27 of the LGC establishes the duties of national government agencies and provincial governments in the maintenance of ecological balance, and requires them to secure prior public consultation and approval of local government units for the projects described therein.

• Boracay Foundation, Inc. v. Province of Aklan, G.R. No. 196870. June 26, 2012

EMINENT DOMAIN

EMINENT DOMAIN

1. An expropriation suit is incapable of pecuniary estimation. Barangay San Roque v. Heirs of Pastor, 334 SCRA 127 (2000)

2. Section 19 of the LGC requires an ordinance, not a resolution, for the exercise of eminent domain. Suguitan v. City of Mandaluyong, 328 SCRA 137 (2000)

3. A valid and definite offer to acquire the property is necessary prior to the exercise of the power of eminent domain. The offer must not be accepted. Jesus is Lord Christian School Foundation, Inc. vs. Municipality of Pasig, GR 152230, August 9, 2005

Procedure for Eminent Domain

• The land must be a private property;• It must be for a public purpose;• There must be genuine necessity;• There must be a previous valid and

definite offer to buy the private property in WRITING. It shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered.

• The offer is denied or rejected;

Procedure for Eminent Domain

• If the owner rejects the offer, the LGU can then file a complaint for expropriation in the RTC.

• The LGU must then deposit the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration.

• The LGU may then enter the property.• The Court will determine the amount of just

compensation for the property expropriated.

May an LGU expropriate a property for the benefit of a specific homeowners association?

• NO. A local government unit cannot use the power of eminent domain to expropriate a property merely for the purpose of providing a sports and recreational facility to a small group of persons, such as those belonging to homeowners’ association.

• “Where the taking by the State of private property is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid.”

• Masikip v. City of Pasig, 479 SCRA 391 (2006)

May an LGU expropriate a property to provide a right-of-way to a specific community?

• In this case, a barangay sought to expropriate private lands to secure a right-of-way for residents of a subdivision.

• The SC declared that the failure of the subdivision owner to provide an access road does not shift the burden to barangay itself.

• To deprive the private persons of their property instead of compelling the subdivision owner to comply with its obligation under the law is an abuse of the power of eminent domain and is patently illegal, which misuse of public funds for a private purpose could amount to a possible case of malversation.

• Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)

May an LGU alter the zoning classification of a portion of its territory and order the transfer of

businesses located therein?

• Yes. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality.

• Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007) and 545 SCRA 92 (2008)

• Q: May an LGU Reclassify an agricultural land to non-agricultural use?

• A: Yes. Under ARTICLE 38, IRR of LGC: — (a) A city or municipality may reclassify agricultural lands through an ordinance enacted by the sanggunian after conducting public hearings for the purpose provided that there exists an approved zoning ordinance implementing its comprehensive land use plan.

• (b) Agricultural lands may be classified in the following cases:

• (1) When land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture; or

• (2) Where the land shall have substantially greater economic value for residential, commercial, or industrial purposes as determined by the sanggunian.

• Q: May an LGU Reclassify an agricultural land to non-agricultural use without limits?

• A: NO.• ARTICLE 39. Limitations. — (a) Reclassification

shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance:

• (1) For highly-urbanized and independent component cities, fifteen percent (15%);

• (2) For component cities and first to third class municipalities, ten percent (10%); and

• (3) For fourth to sixth class municipalities, five percent (5%).

• Q: May an LGU Reclassify and convert an agricultural land to non-agrcultural use without DAR Approval?

• A: NO.

• It was held in the case of Chamber of Real Estate & Builders Assoc. v. Sec. of Agrarian Reform, G.R. No. 183409 , 18 June 2010, that:

• Conversion and reclassification differ from each other. Conversion is the act of changing the current use of a piece of agricultural land into some other use as approved by the DAR while reclassification is the act of specifying how agricultural lands shall be utilized for non-agricultural uses such as residential, industrial, and commercial, as enacted by the Sanggunian.

• Q: May an LGU Reclassify and convert an agricultural land to non-agrcultural use without DAR Approval?

• A: NO.

• It was held in the case of Chamber of Real Estate & Builders Assoc. v. Sec. of Agrarian Reform, G.R. No. 183409 , 18 June 2010, that:

• A mere reclassification of an agricultural land does not automatically allow a landowner to change its use.

• He has to undergo the process of conversion under DAR Rules before he is permitted to use the agricultural land for other purposes.

TAXATION

• Q: What are the kinds of Local Tax Ordinances?

• A:

• 1. Those imposing a fee or tax specifically authorized by the Local Government Code for the local government units to impose.

• 2. Those imposing a fee or tax not specifically enumerated under the LGC or taxed under the provisions of the NIRC or other applicable laws (Sec. 186, LGC)

• Q: Who determines the legality or propriety of a local tax ordinance or revenue measure?

• A: It is the Secretary of Justice who shall determine questions on the legality and constitutionality of ordinances or revenue measures.

• The appeal must be filed within thirty (30) days from the effectivity of the tax ordinance.

• The Secretary of Justice has sixty (60) days from the date of receipt of the appeal to issue a ruling; otherwise, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction (RTC).

• The appeal shall not have the effect of suspending the effectivity of the ordinance. (Sec. 187 R.A. 7160)

• Q: What are the requisites of a valid tax ordinance?

• A:

• 1. The procedure applicable to local government ordinances in general should be observed. (Sec. 187, LGC)

• 2. Public hearings are required before any local tax ordinance is enacted (Sec. 187, LGC)

• 3. Within 10 days after their approval, publication in full for 3 consecutive days in a newspaper of general circulation. In the absence of such newspaper in the province, city or municipality, then the ordinance may be posted in at least two conspicuous and publicly accessible places (Sec. 188 & 189, LGC)

• Q: What is the effect if the tax ordinance was not published in full (only excerpts / summary)?

• A: The requirement of publication in full for 3 consecutive days is mandatory for a tax ordinance to be valid.

• The tax ordinance will be null and void if it fails to comply with such publication requirement. (Coca-Cola v. City of Manila, G.R. No. 161893 June 27, 2006)

• Q: May LGU’s prescribe penalties for tax violations?

• A: YES.• 1. Limited as to the amount of imposable fine as well as

the length or period of imprisonment;

• 2. The Sanggunian is authorized to prescribe fines or other penalties for violations of tax ordinances, but in no case shall fines be less than P1,000 nor more than P5,000 nor shall the imprisonment be less than one (1) month nor more than six (6) months;

• 3. Such fine or other penalty shall be imposed at the discretion of the court;

• 4. The Sangguniang Barangay may prescribe a fine of not less than P100 nor more than P1,000. (Sec. 516, LGC)

• Q: May LGUs grant exemptions?

• A: Yes. Local government units may, through ordinances duly approved, grant tax exemptions, incentives or reliefs under such terms and conditions as they may deem necessary. (Sec. 192, LGC)

• The power to grant tax exemptions, tax incentives and tax reliefs shall not apply to regulatory fees which are levied under the police power of the LGU.

• Q: What are the guidelines for granting tax exemptions, incentives and reliefs? (Rules and Regulations Implementing the LGC, Sec. 282[b])

• A:

• 1. Tax Exemptions and Reliefs

• a. May be granted in cases of natural calamities, civil disturbance, general failure of crops or adverse economic conditions such as substantial decrease in prices of agricultural or agri-based products;

• b. The grant shall be through an ordinance;

• Q: What are the guidelines for granting tax exemptions, incentives and reliefs?

• A:

• c. Any exemption or relief granted to a type or kind of business shall apply to all business similarly situated;

• d. The same may take effect only during the calendar year not exceeding 12 months as may be provided in the ordinance; and

• e. In case of shared revenues, the relief or exemption shall only extend to the LGU granting such.

• Q: What are the guidelines for granting tax exemptions, incentives and reliefs?

• A: For Tax incentives:

• a. Shall be granted only to new investments in the locality and the ordinance shall prescribe the terms and conditions therefore;

• b. The grant shall be for a definite period not exceeding 1 calendar year;

• c. The grant shall be through an ordinance passed prior to the 1st day of January of any year; and

• d. Tax incentive granted to a type or kind of business shall apply to all businesses similarly situated.

• Q: Does the LGU have the power to adjust local tax rates?

• A: Yes, provided that the adjustment of the tax rates be prescribed in an ordinance but should not be oftener than once every five (5) years, and in no case shall such adjustment exceed ten percent (10%) of the rates fixed under the LGC. (Sec. 191, LGC)

LGU Power to Impose Franchise Tax

• In this case, Smart, contends that its telecenter in Davao City is exempt from payment of franchise tax to the City, because its franchise (R.A. No. 7294 [1992]) includes the clause “in lieu of all taxes” (§9).

• Smart alleges that the “in lieu of all taxes” clause in its franchise exempts it from all taxes, both local and national.

• The Local Government Code, which allowed the imposition of franchise tax by LGUs, took effect 2 months ahead of Smart’s franchise.

• The SC ruled that the ‘in lieu of all taxes’ clause applies only to national internal revenue taxes and not to local taxes.

• Smart Communications, Inc. v. City of Davao, 565 SCRA 237 (2008)

• Q: Sample Problem:

• The Local Government Code took effect on January 1, 1992. PLDT’s legislative franchise was granted sometime before 1992. Its franchise provides that PLDT will pay only 3% franchise tax to the BIR in lieu of all taxes.

• The legislative franchise of Smart and Globe Telecoms were granted in 1998. Their legislative franchises state that they will pay only 5% franchise tax to the BIR in lieu of all taxes.

• Q: Sample Problem:

• The Province of Zamboanga del Norte passed an ordinance in 1997 that imposes a local franchise tax on all telecommunications companies operating within the province.

• The tax is 50% of 1% of the gross annual receipts of the preceding calendar year based on the incoming receipts, or receipts realized, within its territorial jurisdiction.

• Is the ordinance valid? Are PLDT, Smart and Globe liable to pay franchise taxes to the Province of Zamboanga?

• A: YES• The ordinance is valid. The Local Government

Code explicitly authorizes provincial governments, notwithstanding any law or other special law, to impose a tax on business enjoying a franchise at the rate of 50% of 1% based on the gross annual receipts during the preceding year within the province. (Section 137, LGC)

• PLDT is liable to the franchise tax levied by the province of Zamboanga del Norte. The tax exemption privileges on franchises granted before the passage of the Local Government Code are effectively repealed by the latter law. (PLDT v. City of Davao, G.R. No. 143867, Aug. 22, 2002)

• A: While Smart and Globe’s franchises were enacted after the Local Government Code, still Smart and Globe are also liable to pay franchise tax to the province.

• The SC ruled that the ‘in lieu of all taxes’ clause applies only to national internal revenue taxes and not to local taxes.

• The “in lieu of all taxes” clause in a legislative franchise should categorically state that the exemption applies to both local and national taxes; otherwise, the exemption claimed should be strictly construed against the taxpayer and liberally in favor of the taxing authority. (Smart Communications, Inc., v. The City of Davao, G.R. No. 155491, Jul. 21, 2009)

Are local water districts exempt from taxation?

• Yes. Under PD 198, local water districts are tax exempt government-owned and controlled corporations. (OGCC Opinion Nos. 268-1995).

• Its employees, however, are covered by the Civil Service Law.

• It is an offspring corporation of the local government forming it, to operate basically as a public utility for public service. (LWUA Opinion September 21, 1995).

Are local water districts exempt from taxation?

• SEC. 46, PD 198. Exemption from Taxes. -

• A district shall (1) be exempt from paying income taxes, and (2) shall be exempt from the payment of (a) all National Government, local government and municipal taxes and fees, including any franchise, filing, recordation, license or permit fees or taxes and any fees, charges or costs involved in any court of administrative proceeding in which it may be a party and (b) all duties or imposts on imported machinery, equipment and materials required for its operations. (As amended by Sec. 20, PD 768)

May the Sanggunian investigate the local water district?

• Yes. A local water district is a government-owned and controlled corporation. (OGCC Opinion Nos. 268-1995). Its employees, however, are covered by the Civil Service Law.

• It is an offspring corporation of the local government forming it, to operate basically as a public utility for public service. (LWUA Opinion September 21, 1995).

What may LGU’s collect from local water districts

• “In-Lieu Shares. --- As an incident to the acquisition of the existing water system of a city, municipality, or province, a district may enter into a contract to pay in lieu of taxes on such utility plant, an annual amount not exceeding three (3%) percent of the district’s gross receipts from water sales every year.” (Sec. 30-b, PD 198)

• Q: May the LGU impose “pass through” fees?• A: NO.• Pass through fees are TAXES, FEES, CHARGES

AND OTHER IMPOSITIONS UPON GOODS CARRIED INTO OR OUT OF, OR PASSING THROUGH the territorial jurisdiction of the LGUs in the guise of a toll, charges for wharfage or others taxes, fees, or charges in any form upon goods or merchandise.

• Local ordinances imposing/collecting PASS THROUGH taxes, fees or charges are considered illegal and runs counter to Section 133 (e) of the Code. DILG LEGAL OPINION NO. 059-12 (October 15, 2012)

• Q: May the LGU impose “pass through” fees?• A: NO.• "SECTION 133. Common Limitations on the Taxing

Powers of Local Government Units. — Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following:

• (e) Taxes, fees and charges and other impositions upon goods carried into or out of, or passing though, the territorial jurisdictions of local government units in the guise of charges for wharfage, toll for bridges or otherwise, or other taxes, fees or charges in any form whatsoever upon goods or merchandise;"

• Q: Are “pass through” fees the same as toll fees?

• A: NO.

• Toll fees are legal. LGUs may regulate the USE of its roads or other public facilities as provided under Section 155 of the Code through the imposition of toll fees or charges thereon PROVIDED THAT THE ROADS ARE FUNDED AND CONSTRUCTED BY THE LOCAL GOVERNMENT UNIT concerned. [DILG LEGAL OPINION NO. 059-12 (October 15, 2012)]

• Q: What are toll fees?• A:.• SEC. 155. Toll Fees or Charges. — The sanggunian

concerned may prescribe the terms and conditions and fix the rates for the imposition of toll fees or charges for the use of any public road, pier or wharf, waterway, bridge, ferry or telecommunication system funded and constructed by the local government unit concerned: Provided, That no such toll fees or charges shall be collected from officers and enlisted men of the Armed Forces of the Philippines and members of the Philippine National Police on mission, post office personnel delivering mail, physically-handicapped, and disabled citizens who are sixty-five (65) years or older. When public safety and welfare so requires, the sanggunian concerned may discontinue the collection of the tolls, and thereafter the said facility shall be free and open for public use."

• Q: The Sangguniang Bayan of Bamban, Tarlac enacted an ordinance imposing regulatory fees on all public and private haulers of garbage traversing the roads of said municipality. Is this legal?

• A: Yes.• Garbage is not considered “goods” within the purview

of Section 133 of the LGC.• This is not also a pass though fee because no goods

are subjected to tax.• This is a valid toll fee, provided that the imposition

applies only to ROADS THAT ARE FUNDED AND CONSTRUCTED BY THE LOCAL GOVERNMENT UNIT concerned. [DILG LEGAL OPINION NO. 007-12 (January 30, 2012)]

• Q: The Sangguniang Bayan of Carrascal, Surigao Del Sur enacted Municipal Ordinance No. 02-2012 imposing environmental hazard fee on all commercial vessels loading mineral ores within its municipal waters. Is this legal?

• A: Yes.• This is not a pass though fee because what is

taxed is the commercial vessels’ loading of mineral ores in order to regulate the environmental hazard thereof.

• This is valid provided that there are specific acts of regulation (like inspection, registration, and monitoring) to justify the imposition. [DILG LEGAL OPINION NO. 037-13 (November 21, 2013)]

Oversight on Contracts

What are the conditions under which a local executive may enter into a contract in behalf of his government unit?

a.The local government unit must have the power to enter into the particular contract.

a.Pursuant to Section 22(c) of the Local Government Code, there must be a prior authorization by the sanggunian concerned;

b.If the contract involves the expenditure of public funds, there must be an appropriation therefore and a certificate of availability of funds by the treasurer of the local government unit.

c.The contract must conform with the formal requisites of written contracts prescribed by law.

• Q: What documents must support the contract of sale entered into by the LGU?

• A:• Resolution of the sanggunian authorizing the local chief

executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract;

• Ordinance appropriating the amount specified in the contract

• Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disbursed or spent for any purpose other than to pay for the purchase of the property involved. (Jesus is Lord Christian School Foundation, Inc. vs. Municipality of Pasig, G.R. No. 152230, August 9, 2005)

• Q: Can the Annual Budget be used as continuing authority for the LCE to enter into contracts without prior authorization from the Sanggunian?

• A: NO.• Sec. 22 of the LGC states: “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.”

• Should the appropriation ordinance, however, already contain in sufficient detail the project and cost of a capital outlay such that all that the local chief executive needs to do after undergoing the requisite public bidding is to execute the contract, no further authorization is required, the appropriation ordinance already being sufficient.

• Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008.

Basic Rules on Government Contracts

• The absence of any of the three legal requirements — an appropriation law, a certificate of appropriation and fund availability, and public bidding — renders any contract entered into by the government as void from the beginning.

• Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987

First Requisite: Appropriation Law

• The Administrative Code of 1987 expressly prohibits the entering into contracts involving the expenditure of public funds unless two prior requirements are satisfied.

• First, there must be an appropriation law authorizing the expenditure required in the contract.

• Second, there must be attached to the contract a certification by the proper accounting official and auditor that funds have been appropriated by law and such funds are available.

• Failure to comply with any of these two requirements renders the contract void.

First Requisite: Appropriation Law

• Section 46, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987 provides:

• “SECTION 46. Appropriation Before Entering into Contract. — (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefore, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure;

2nd Requisite: Availability of Funds


• “SECTION 47. Certificate Showing Appropriation

to Meet Contract. — … no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof…”

Effect of Non Compliance


• “SECTION 48. Void Contract and Liability of Officer. — Any contract entered into contrary to the requirements of the two (2) immediately preceding sections shall be void, and the officer or officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties.”

• Q: Is Public bidding required when LGUs enter into contracts?

• A: Yes, in the award of government contracts, the law requires competitive public bidding. It is aimed to protect the public interest by giving the public the best possible advantages thru open competition. It is a mechanism that enables the government agency to avoid or preclude anomalies in the execution of public contracts. (Garcia vs.Burgos, G.R. No. 124130, June 29, 1998)

• Q: Can a municipal contract be ratified?

• A: No, when the local chief executive enters into contracts, he needs prior authorization or authority from the Sanggunian and not ratification. (Vergara vs. Ombudsman, G.R. No. 174567, March 12, 2009)

Oversight on Appointments

What is the period for the Sanggunian to concur on appointments?

• When an appointment is presented before the sanggunian for its concurrence, that sanggunian is mandated to act thereon within fifteen (15) days from the date of its submission (Sec. 463, Ibid).

• The word "act" in said provision means either expressly to concur or not to concur on the appointment upon determining whether or not the appointee possesses all the qualifications and none of the disqualifications for the said office (DILG Opinion No. 40, s. 2000).

• For as long as the appointee possesses the required qualifications and none of the disqualifications, it is a ministerial duty which the law enjoins on the part of the Sangguniang Panlalawigan to concur your appointment.

When is the appointment deemed effective?

• Appointment to a public office becomes effective only once it is completed.

• The Supreme Court, in the case of Atty. David B. Corpuz vs. Court of Appeals, et. al., G.R. No. 123989 dated January 26, 1998, held that where the assent or confirmation of some other offices or body is required, the appointment may be complete only when such assent or confirmation is obtained.

Hiring of Consultants

• Can the Mayor hire consultants for the LGU without prior authorization by the sanggunian?

• No. The hiring of a consultant requires the execution of a consultancy contract or MOA with a prescribed payment for the contracted services by the LGU.

• Under Section 22 (c) of the LGC, the mayor can neither enter into this contract nor hire consultants without prior authorization from the Sanggunian. (DILG Opinion No. 40-2003 dated 26 March 2003)

Can The Vice Mayor Hire Consultants

• Yes. But he must first be authorized by the Sanggunian to enter into the Consultancy contract (Section 22-C, LGC).

• Under Section 456 of R.A. 7160, there is no inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local government unit, unlike that provided for the city mayor.

• Thus, the authority of the vice-mayor to enter into contracts on behalf of the city is strictly circumscribed by the ordinance granting it.

• The ordinance is valid only for a specific period and with a specific contract. (ARNOLD D. VICENCIO VS. HON. REYNALDO A. VILLAR, ET AL. , G.R. NO. 182069. JULY 3, 2012)

May LGU’s hire elected officials or government employees as consultants?

YES. Pursuant to Section 2(a), Rule 11 of CSC Memo Circular No. 40 dated 14 December 1998, consultancy services are not considered government services and no employer-employee relationship exists between the LGU and the consultant.

Thus, the position of consultant cannot be considered as an appointment or designation in any capacity to a public office or position. Also the honorarium received from such consultancy agreement cannot be considered double or additional compensation since no employer-employee relationship exists. (DILG Opinion No. 26 s. 2001 dated 16 April 2001)

May LGU’s hire private counsel?In the case of Ramos vs. CA (108 SCRA 728), the

Supreme Court declared that a private lawyer cannot represent a local government unit even if the services rendered was gratis.

Moreover, in the case of Edgar Mancenido, et. al., vs. Court of Appeals (330 SCRA 419), the Supreme Court stated that an LGU may only hire a private attorney when the provincial fiscal is disqualified.

However, the LGU may hire a private lawyer as a legal officer under a consultancy agreement, duly approved by the local sanggunian. Such sanggunian resolution will clothe him with the authority to act as the legal officer of the LGU. (DILG Opinion No. 26 s. 2004 dated 03 February 2004)

QUASI-JUDICIAL POWERS OF THE

SANGGUNIAN

• Q: Where should an administrative complaint against elective officials be filed?

• • A: A verified complaint shall be filed with the

following:• Office of the President – against elective official of

provinces, HUC, ICC, component cities.• Sangguniang Panlalawigan – elective officials of

municipalities; and• Sangguniang Panglunsod or Bayan – elective

barangay officials. (Sec. 61, LGC)

What are the grounds to discipline local officials?

• 1. Disloyalty to the Republic;• 2. Culpable Violation of the Constitution;• 3. Dishonesty, oppression, misconduct in

office, gross negligence, or dereliction of duty;• 4. Commission of any offense involving moral

turpitude or an offense punishable by at least prision mayor;

• 5. Abuse of Authority;• 6. Unauthorized Absences for 15 consecutive

days (3 consecutive sessions);• 7. Acquisition of foreign citizenship or status of

an immigrant in another country;• 8. Such other grounds. (Section 60, LGC)

Power to Discipline

• A Sanggunian may only discipline erring subordinate officials.

• A council cannot, by mere resolution, remove a local chief executive. Such power is exercised by a higher council. (DILG Opinions Nos. 281-1993; 38-1995)

• A vice-mayor, despite his/ her unauthorized absences, remains to be vice-mayor and may not be disciplined by his own Sanggunian. (DILG Opinion No. 179-1994)

Contempt Powers of the Sanggunian

• A sanggunian cannot cite in contempt a person who fails to appear before it since there is no law which authorizes local legislative councils from doing so. (DILG Opinion No. 3-1994)

• Neither can it issue compulsory processes. Thus, a local legislative council cannot compel attendance in committee hearings. (DILG Opinion No. 212-1993)

How should the Sanggunian try disciplinary cases?

• Cases involving barangay officials must be commenced by filing a formal notarized complaint before the Sanggunian.

• The appropriate Committee will conduct a preliminary study and its report will then be heard by the whole Sanggunian.

• The Sanggunian will then conduct hearings.• A Decision will then be prepared containing a

summary of the facts and the issues resolved. (Malinao vs. Reyes G.R. No. 117618 March 29, 1996)

Procedures in disciplinary cases?

• Within 7 days after the complaint is filed, the Sanggunian shall send a Notice to the respondent requiring him to submit his answer within 15 days from his receipt of the Notice;

• The Sanggunian will then commence the investigation within 10 days from receipt of respondent’s answer. (Section 62, LGC)

Abuse of Authority as a ground for disciplinary action

• Local government officials who pass ordinances or resolutions which are contrary to law may be disciplined for abuse of authority. (DILG Opinion No. 90-1994)

• Local officials are presumed to be knowledgeable of existing laws. (OGCC Opinion No. 093-1996 March 29, 1996)

• Incurring excessive cash advances constitutes abuse of authority and/ or dishonesty. (DILG Opinion No. 60-1994)

Gross Negligence as a ground for disciplinary action

• Refusal of a mayor to honor and enforce ordinances duly enacted by the Sanggunian is gross negligence.(DILG Opinion No. 181-1994)

• Failure to attend council sessions due to members’ drinking sprees amounts to gross negligence. (DILG Opinion No. 157-1994)

Gross Negligence as a ground for disciplinary action

• The members of the sangguniang panlalawigan may be disciplined if they fail to act, on review, the ordinances enacted by the sangguniang bayan. (DILG Opinion No. 157-1994)

• A vice mayor who refuses to sign ordinances approved by a majority of the sanggunian is guilty of gross negligence or abuse of authority (DILG Opinion dated 28 June 2011).

Absences as a ground for disciplinary action.

• Absence for more than 15 consecutive days without the filing of a formal leave of absence constitutes a ground for disciplinary action.

• Travel abroad without due notice to the council constitutes unauthorized absence. (DILG Opinion No. 24-1993)

May the Sanggunian suspend a sanggunian Secretary or other appointive official?

• No. The power to discipline appointive officials is lodged with the Civil Service Commission only.

• However, the local chief executive, as head of agency, may impose disciplinary sanctions on appointive officials after due process. (DILG Opinion No. 132-2003)

Preventive Suspension

• This is not a penalty.

• This may be imposed by the Sanggunian on any elected subordinate official immediately upon filing of the complaint even before the answer is filed; (DILG Opinion No. 132-2003)

Procedures for Preventive Suspension

• This may be imposed by the mayor / governor upon recommendation by the Sanggunian;

• Maximum of 60 days per case but not exceeding 90 days suspension in one year;

• The suspended official is deemed automatically reinstated after the period of suspension (Section 63, LGC)

Preventive Suspension

• The authority of the local chief executives (Governor/Mayor) to impose preventive suspension is purely ministerial since the disciplinary authority over erring municipal or barangay elective officials is the Sangguniang Panlalawigan, Sangguniang Panlungsod or Sangguniang Bayan, as the case may be.

• Hence, after the sanggunian shall have determined the necessity to warrant the imposition of preventive suspension, the same only need to be implemented by the local chief executive concerned. (DILG Opinion No. 56-11, Sept. 2, 2011)

Salary During Preventive Suspension

• An elected official preventively suspended from office shall receive no salary during such suspension;

• But upon reinstatement, he shall be paid full salary including all emoluments accruing during such suspension. (Section 64, LGC)

Penalty of Suspension

• An elected official may be suspended by the Sanggunian for a period of not more than six (6) months;

• This can only be imposed after due notice and hearing;

• The investigation must be terminated within 90 days from the start of the proceedings.

• The sanggunian must decide the case within 30 days after the case is submitted for decision. (Section 66, LGC)

Can a local sanggunian remove an elected official of the LGU?

• NO. The Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code.

• THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS vs. MARTINEZ, G.R. No. 170626 March 3, 2008

• Q: What is the Doctrine of Administrative Condonation?

• A: • The rule that public official cannot be removed for

administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefore.

• Note that this has no application to pending criminal cases. (Aguinaldo v. Santos, G.R. No. 94115, Aug. 21, 1992)

• Q: When is subsequent re-election considered a condonation?

• A: If the decision of the administrative disciplinary authority penalizing the respondent local elective official had become final and executory before the election, then the principle of condonation for a misconduct during a prior term will not apply.

• On the other hand, if the said adverse decision against the respondent was not yet final and executory on the day of election as for instance there was a timely and pending appeal on said date, then the principle of condonation will apply. (Malinao v Reyes, GR 117618 Mar.29, 1996)

• Note: Subsequent re-election cannot be deemed a condonation if there was already a final determination of his guilt before the re-election. (Reyes v. COMELEC, G.R. No. 120905 March 7, 1996)

May the Sanggunian continue hearing a case even after the respondent has been

re-elected to office?

• No. An administrative case becomes moot and academic as a result of the expiration of term of office of an elective barangay official during which the act complained of was allegedly committed.

• Further, proceedings against the respondent are barred by his/ her re-election. (Malinao vs. Reyes G.R. No. 117618 March 29, 1996)

May the Sanggunian hear a case involving acts committed in a prior term?

• No. A public official cannot be removed for administrative misconduct committed during a prior term since his re-election to office operates as a condonation or forgiveness of his previous misconduct. (Aguinaldo v. Santos) (DILG Opinions Nos. 177-1992; 42, 107 - 1995)

May the Sanggunian hear a case when the respondent already resigned?

• No. A Sanggunian loses jurisdiction over administrative proceedings against a barangay official who has already resigned since official relations have been terminated by such act. (DILG Opinion No. 323-1992)

Signature of the Mayor

• The decision of the Sanggunian to suspend a brgy. Official DOES NOT REQUIRE THE SIGNATURE OF THE MAYOR TO BE VALID;

• The mayor, however, will be the one to implement the penalty of suspension;

• The mayor cannot sit on the decision or refuse to implement the suspension.

• If he does, he can be charged with abuse of authority or dereliction of duty. (DILG Opinion No. 14-2002; Opinion No. 9-2004)

May the Mayor veto a decision of the sanggunian?

• The decision of the Sanggunian to suspend a brgy. Official IS NOT A LEGISLATIVE ACT. THEREFORE IT IS NOT SUBJECT TO THE VETO POWER OF THE MAYOR.

• The power to discipline brgy. officials is an exercise of quasi-judicial power that is exclusive to the sanggunian. (DILG Opinion No. 19-2002; Opinion No. 9-2004)

Q. Is appeal available in administrative disciplinary cases?

A: It depends on the penalty imposed:

Appeal is available if the penalty is:

Demotion, Dismissal, or Suspension for more than 30 days or fine equivalent to more than 30 day salary (P.D. 807, Sec.37 par [a]).

Appeal is not available if the penalty is:

Suspension for not more than 30 days

Fine not more than 30 day salary

Censure; Reprimand; or Admonition

Note: In the second case, the decision becomes final and executory by express provision of law.

Motion for Reconsideration

• A brgy. Official suspended by the Sanggunian may file a motion for reconsideration – but this will not stay the execution of the suspension.

• The decision of the sanggunian in disciplinary cases is immediately executory even pending appeal. But the reviewing authority may issue a stay order pursuant to its review authority.

• The decision of the sanggunian bayan may be appealed to the sangguniang panlalawigan. (Section 66, LGC)

Stay of Execution• The first sentence of Section 68 merely provides that

an "appeal shall not prevent a decision from becoming final or executory."

• As worded, there is room to construe said provision as giving discretion to 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.

• The execution of decisions pending appeal is procedural and in the absence of a clear legislative intent to remove from the reviewing officials the authority to order a stay of execution, such authority can be provided in the rules and regulations governing the appeals of elective officials in administrative cases.

• Berces v. Guingona, G.R. No. 112099. February 21, 1995.

Q. Will the filing of a Motion for Reconsideration or an appeal stay the execution of a decision of the Ombudsman in an administrative case?

Answer: No. Appeals from decisions of the Ombudsman in administrative cases do not stay the execution of the penalty imposed.

This is pursuant to Section 7, Rule III of the Rules of Procedure of the Ombudsman which explicitly states that an appeal shall not stop the decision from being executory.

No vested right is violated because pending appeal the appellant is considered as preventively suspended and will be paid backwages in case he wins in his appeal. (Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)

Documents

OVERSIGHT FUNCTIONS OF THE SANGGUNIAN By: Atty. Enrique V. dela Cruz, Jr