EN BANC

[A.M. No. P-97-1247. May 14, 1997]

(Formerly A.M. OCA I.P.I.1 No. P-97-1247)

NARITA RABE, complainant, vs. DELSA M. FLORES, Interpreter III, RTC, Branch IV, Panabo, Davao, respondent.

D E C I S I O N

PER CURIAM:

In an administrative complaint for "Conduct Unbecoming a Government Employee, Acts Prejudicial to the Interest of the Service and Abuse of Authority" dated August 18, 1995, Complainant Narita Rabe,2 by counsel, charged Respondent Delsa M. Flores, Interpreter III at the Regional Trial Court, Branch IV, Panabo, Davao, as follows:3

"(Mrs.) Flores took advantage of her position as a court employee by claiming a stall at the extension of the Public Public (sic) Market when she is (sic) not a member of our client's association and was never a party to Civil Case No. 89-23. She herself knows (sic) that the stalls in the said area had already been awarded to our client's members pursuant to the decision of the court on October 30, 1991. Worse, she took the law into her hands when she destroyed the stall of our client and brought the materials to the police station of Panabo, Davao."

After respondent filed her answer, the Court issued a Resolution dated January 17, 1996, absolving her of the charge. In the same resolution, however, the Court required respondent to explain why she should not be administratively dealt with for the following:4

"x x x a) why she obtained a certification dated June 18, 1991 issued by Atty. Victor R. Ginete, Clerk of Court, same court, that she started performing her duties as (an) interpreter on May 16, 1991 when (1) according to a certification dated June 17, 1991 issued by Mr. Jose B. Avenido, Municipal Treasurer, Panabo Davao, she was employed in the office of the Municipal Assessor as Assessment Clerk I since February 1, 1990 to June 3, 1991 with her last salary being paid by said office on June 3, 1991; and (2) she took her oath of office before Judge Mariano C. Tupas only on June 17, 1991;

b) why she did not report said business interest in her sworn statement of Assets, Liabilities and Net Worth, Disclosure of Business Interests and Financial Connections, and Identification of Relatives in the Government Service for the years 1991, 1992, 1993, and 1994;

c) why she has not divested herself of her interest in said business within sixty (60) days from her assumption into (sic) office; and

d) why she has indicated in her DTRs for August 1995 that she worked on August 15-18, 21, 23-25 and 28-31 and for September, 1995 that she worked for all its twenty one (21) working days when her Contract of Lease with the Municipal Government of Panabo for the market stall in its Section 7 clearly states that she has to personally conduct her business and be present at the stall otherwise the same would be canceled as per its Section 13."

Respondent Flores, in a letter dated February 13, 1996, explains that, as stated in the certification of Atty. Ginete, she assumed her job in the Regional Trial Court, Branch IV, Panabo, Davao on May 16, 1991, in compliance with the directive from this Court for her to start working on the said date. Respondent further states that "even prior to said date (May 16, 1991)" she already reported to the court in order to familiarize herself with the scope of her duties.5

Respondent Flores also admits that she had received from the municipality a salary for the period May 16 1991 May 31, 1991, notwithstanding her transfer to the judiciary on May 16, 1991. She submits, however, the following justification:6

"I admit that I received my last salary in the amount of One Thousand and 80/100 (P1,000.80) Pesos from the Local Government Unit from May 16-31, 1991 but farthest from my mind is the intent to defraud the government. It was my desire all the time to refund the amount the moment my salary is received from the Supreme Court, unfortunately more often than not (the salary) is received three or four months after assumption of office.

As we all know the month of May and June is the time we enroll our children in school thus the money I got that month from the Local Government Unit came handy in defraying registration expenses of my four children. The passage of time coupled with some intervening events, made me oblivious of my obligation to refund the money. However, when my attention was called on the day I received the copy of the resolution, I took no time in refunding the same."

Respondent alleges that the certification of Municipal Treasurer Jose V. Avenido is inaccurate because it was on January 25, 1990 that she was appointed as Assessment Clerk I.7According to respondent, she took her oath on June 17, 1991, simply because it was on that date that she received a copy of her oath form.8

Respondent avers that she did not divulge any business interest in her Sworn Statement of Assets and Liabilities and Financial Disclosure for the years 1991-1994 because she "was never engaged in business during said period although I had a stall in the market."9

Respondent further avers that her Daily Time Record indicated that she held office on August 15, 18, 21, 23 to 25 and 28, 31 and all the working days of September, 1995 "because in truth and in fact x x x (she) did hold office on those days." This was because her contract of lease with the Municipal Government of Panabo was never implemented as it became the subject of "Civil Case No. 95-53 -- Panabo Public Market Vendors Assn. Inc. and Pag-ibig Ng Gulayan Ass. Inc. Vs. Municipality of Panabo, et al., for Declaration of Nullity of Mun. Ord. No. XLV, Series of 1994."10

The Court referred the matter to the Office of the Court Administrator for evaluation, report and recommendation. In its report, the OCA found respondent guilty of dishonesty and failure to report her business interest, and recommended that the penalty of dismissal be imposed on her. The Court finds that the report and recommendation of the OCA is in accord with the evidence and the law. We hold the explanation of respondent unsatisfactory. Respondent's misconduct is evident from the records.

By her own admission, respondent had collected her salary from the Municipality of Panabo for the period of May 16-31, 1991, when she was already working at the RTC. She knew

that she was no longer entitled to a salary from the municipal government, but she took it just the same. She returned the amount only upon receipt of the Court Resolution dated January 17, 1996, or more than five (5) years later. We cannot countenance the same. Respondent's conduct is plain dishonesty.

Her explanation, as observed earlier, is unsatisfactory. Her overriding need for money from the municipal government, aggravated by the alleged delay in the processing of her initial salary from the Court, does not justify receipt of a salary not due her. We sympathize with respondent's sad plight of being the sole breadwinner of her family, with her husband and parents to feed and children to send to school. This, however, is not an acceptable excuse for her misconduct. If poverty and pressing financial need could justify stealing, the government would have been bankrupt long ago. A public servant should never expect to become wealthy in government.

But there is really more to respondents' defense of poverty. If respondent was just driven by dire pecuniary need, respondent should have returned the salary she had obtained from the Municipal Government of Panabo as soon as she obtained her salary from the court. However, she returned the money only after receipt of the Court's Resolution dated January 17, 1996, saying that she forgot all about it. Forgetfulness or failure to remember is never a rational or acceptable explanation.

In Macario Flores vs. Nonilon Caniya, Deputy Sheriff, RTC, Imus, Cavite,11 this Court ruled that a sheriff who failed to issue an official receipt for the money entrusted to him for the purpose of satisfying a judgment debt, "had really wanted to misappropriate the said amount." Inevitably, he was dismissed from service with forfeiture of all retirement benefits and accrued leave credits, with prejudice to re-employment in any branch or instrumentality of

the government, including government-owned or controlled corporations.

It is well to stress once again the constitutional declaration that a "(p)ublic office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives."12

We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary. Personnel in the judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency.13

This Court, in JPDIO vs. Josephine Calaguas, Records Officer, OCC, MTCC, Angeles City,14 held:

"The Court must reiterate that a public office is a public trust. A public servant is expected to exhibit, at all times, the highest degree of honesty and integrity and should be made accountable to all those whom he serves."

Respondent's malfeasance is a clear contravention of the constitutional dictum that the State shall "maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."15

Under the Omnibus Rules Implementing Book V of EO No. 292 known as the

"Administrative Code of 1987" and other pertinent Civil Service Laws, the penalty for dishonesty is dismissal, even for the first offense.16 Accordingly, for respondent's dishonesty in receiving and keeping what she was not lawfully entitled to, this Court has the duty to impose on her the penalty prescribed by law: dismissal.

Apart from the above finding, we also note the contradiction between the certification issued by Municipal Treasurer Jose Avenido stating that respondent had worked as an assessment clerk in his office up to June 3, 1991, and the certification of Clerk of Court Victor Ginete stating that respondent started working as an interpreter on May 16, 1991. Although specifically asked by the Court to explain this contradiction, respondent could only state that the certification of the treasurer is inaccurate because she assumed her position as Assessment Clerk on January 25, 1990 and not on February 1, 1990 as written in the said certification. Respondent, however, failed to explain the gravamen of the inquiry, i.e., that she was certified to be still connected with the Municipal Government of Panabo on June 3, 1991, notwithstanding her assumption of her post in the Regional Trial Court as early as May 16, 1991. To the mind of the Court, respondent's inability to explain this discrepancy is consistent with her failure to satisfactorily explain why she knowingly received and kept a salary she was not entitled to. Worse, it may be indicative of a conscious design to hold two positions at the same time.

Aside from dishonesty, however, respondent is also guilty of failure to perform her legal obligation to disclose her business interests. Respondent herself admitted that she "had a stall in the market." The Office of the Court Administrator also found that she had been receiving rental payments from one Rodolfo Luay for the use of the market stall. That respondent had a stall in the market

was undoubtedly a business interest which should have been reported in her Sworn Statement of Assets and Liabilities. Her failure to do so exposes her to administrative sanction.

Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Section 11 of the same law prescribes the criminal and administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him."

In the present case, the failure of respondent to disclose her business interest which she herself admitted is inexcusable and is a clear violation of Republic Act No. 6713.

The respondent's claim that her contract of lease of a market stall was never implemented because it became the subject of a civil case, fails to convince us. We agree with the finding of the OCA on respondent's guilt for this separate offense. It is a finding, which further supports its recommendation for respondent's dismissal, to wit:17

"The case respondent is referring to was filed in 1995. This can be seen from the number of the case which is 95-93. Earlier than the filing of the case, respondent was already collecting rentals -- as early as February 22, 1991 -- from one Rodolfo Luay who was operating a business without the necessary license.

Respondent should have, therefore, indicated in her 'Sworn Statement of Assets, Liabilities and Net Worth, Disclosure of Business Interests and Financial Connections, and Identification of Relatives in the Government Service' for the years 1991, 1992, 1993, 1994 and 1995 that she had a market stall in the Public market of Panabo, Davao.

She admits that she never indicated such in her sworn statements.

As this Office had earlier stated in its Memorandum dated November 10, 1995 filed in connection with the instant complaint:

'Such non-disclosure is punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand (P5,000.00) pesos, or both. But even if no criminal prosecution is instituted against the offender, the offender can be dismissed from the service if the violation is proven. Respondent 201 file speaks for itself.

Furthermore, respondent should have divested herself of her interest in said business within sixty (60) days from her assumption into (sic) office. She has not. The penalty for non-disclosure of business interests and non-divestment is the same."' (Citations omitted.)

In her explanation, respondent maintains the position that she has no business interest, implicitly contending that there is nothing to divulge or divest from. As discussed above, respondent had a business interest. We do not find her administratively liable, however, for failure to divest herself of the said interest. The requirement for public officers, in general, to divest themselves of business interests upon assumption of a public office is prompted by the need to avoid conflict of interests.18 In the absence of any showing that a business interest will result in a conflict of interest, divestment of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a conflict of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A court, generally, is not engaged in the regulation of a public market, nor does it concern itself with the activities thereof. While respondent may not be compelled to divest herself of her business interest, she had the legal obligation of divulging it.

WHEREFORE, in conformity with the recommendations of the Office of the Court Administrator, Interpreter III Delsa M. Flores is hereby DISMISSED from service with FORFEITURE of all retirement benefits and accrued leave credits and with PREJUDICE to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

1 Office of the Court Administrator, Informal Preliminary Inquiry.

2 In Complainant Rabe's separate affidavit, she made the following allegations:

"x x x x x x x x x

That on August 14, 1995 at around 4:00 o'clock in the afternoon, Mrs. Delsa Flores, a Court Interpreter at the Regional Trial Court of Panabo, Davao, went to the stall I occupied and while there, she made several defamatory utterances against me in a very menacing, arrogant and threatening manner and in the visayan dialect, as follows:

'Putang ina mo ka, akoa nin pwesto, wala kay ulaw, wala kay batasan, mangingilog ug pwesto'

That Mrs. Flores attempted to inflict injury upon me by scratching my face but I was able to evade and with the timely intervention of Mr. Espiridion Vivas;

That Mrs. Flores made the foregoing remarks and other remarks of the same import for several times in a very loud voice while walking to and fro;

That Mrs. Flores challenged me to a fist fight and destroyed the stall I occupied by removing the wooden fence and the GI sheets with the help of her husband; loaded the materials on a motor vehicle; and brought them to the police station of Panabo;

That Mrs., Flores committed the aforementioned acts during office hours and in such conduct unbecoming a government employee;

x x x x x x x x x"

3 Rollo, p. 2.

4 Ibid., p. 25.

5 Ibid., p. 38.

6 Ibid., p. 39.

7 Ibid.

8 Ibid.

9 Respondents explanation, p. 2; rollo, p. 50.

10 Ibid.

11 A.M. No. P-95-1133, April 26, 1996.

12 Section 1, Article XI, 1987 Constitution.

13 Legaspi vs. Garrete, 242 SCRA 679, 701, March 27, 1995 citing Montemayor vs. Collado, Adm. Matter No. 2519-MJ, September 10, 1981, 107 SCRA 258, 264; Association of Court Employees of Panabo, Davao vs. Tupas, Adm. Matter No. RTJ-87-141, July 12, 1989, 175 SCRA 292, 296; Leynes vs. Veloso, Adm. Matter No. 689-MJ and Virrey vs. Veloso, Adm. Matter No. 809-MJ, the two latter cases promulgated on April 13, 1978, 82 SCRA 352, 328.

14 A.M. No. P-95-115, May 15, 1996.

15 Section 27, Article II, 1987 Constitution.

16 Section 23 (a), Rule XIV, Omnibus Rules Implementing Book V of EO No. 292 Known as the "Administrative Code of 1987" and other Pertinent Civil Service laws.

17 Pages 6-7 of the Memorandum of the Court Administrator dated November 27, 1996. on this case.

18 Section 9 of RA 6713 provides: "A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and or divest himself of his shareholdings or interest within sixty (60) days from such assumption."

EN BANC

[A.M. No. P-99-1342. June 8, 2005]

CONCERNED TAXPAYER, complainant, vs. NORBERTO V. DOBLADA, JR., Sheriff IV, Branch 155, Regional Trial Court, Pasig City, respondent.

D E C I S I O N

PER CURIAM:

The instant administrative case arose from a letter-complaint dated December 8, 1993 filed by a concerned taxpayer with the Office of the Ombudsman, charging Norberto V. Doblada, Jr., Sheriff IV of the Regional Trial Court (RTC) of Pasig, Branch 155, of having acquired properties during his incumbency as sheriff, the values of which are manifestly out of proportion to his salary as such public employee and to his other lawful income or incomes from legitimately acquired property.[1]

In an Indorsement dated August 22, 1997, the complaint was referred by the Office of the Ombudsman to the Office of the Court Administrator (OCA) of this Court.[2]

Upon report and recommendation of the OCA, dated February 8, 1999, this Court issued a Resolution dated March 17, 1999 requiring respondent to comment on the complaint. In the same resolution, the National Bureau of Investigation (NBI) was directed to conduct a discreet investigation of this case and to submit a report within thirty days from notice.[3]

On April 29, 1999, respondent filed his Comment contending that aside from the two parcels of land mentioned in the Fact-Finding Report of the Office of the Ombudsman which are registered in the name of his wife, the other

real properties mentioned in said report are not actually his properties because they belong to his father, having been registered in the name of the latter. Respondent surmises that the instant complaint may have been politically motivated and may have been instigated by those who did not get his support in past local elections. Respondent claims that a similar anonymous complaint was filed against him in the 1980s wherein he submitted himself for investigation by the NBI.

In a Resolution dated September 20, 1999, respondent was required to inform this Court if he is willing to submit the case for resolution or to elect a formal investigation of the case.[4]On October 22, 1999, respondent submitted his Compliance to the above-cited Resolution, manifesting that he is willing to submit the case for resolution based on records available to this Court.[5]

On March 7, 2000, this Court received a report of the investigation conducted by the NBI, pertinent portions of which read as follows:

9. Analysis of the assets, liabilities, net worth and yearly salary of Subject for the period 1989, 1991, 1993, 1995, 1996 and 1998 shows that there is prima facie evidence that Subject acquired unexplained wealth (Annexes I to I-13) during his tenure as Court Sheriff in 1995. Increase in salary and increase in liabilities are apparent. However, increase in assets far exceeds increase in salary. Net worth also increased after assumption to office as Deputy Court Sheriff in 1977.

Subject also failed to submit his sworn statement of assets and liabilities for the years 1975 to 1988, 1990, 1992, 1994 and 1997 as said documents were not submitted to the NBI by the Records Control Division of the Supreme Court.

A court order to secure the income tax returns of Subject NORBERTO DOBLADA, JR. and his spouse, EDITH, who is employed at the Department of Education, Culture and Sports, in Binangonan, as Superintendent would determine whether Subject had other legitimate sources of income.

Subject has to justify his acquisition of fishpens acquired at P2,500,000.00 in 1993 and Civic Honda at P435,000.00 in 1995 where his legitimate income as Court Sheriff is at P44,652 per annum and P65,496.00 per annum respectively. His earnings as jeepney operator with one unit as reported in 1982 would not suffice further acquisition of wealth such as residential lots 1982-1988 ranging from P8,670 to P125,000.00. Loans from creditors would not be sufficient to cover acquisition of real and personal properties in 1992, 1994, 1995, 1996 and 1998.

x x x x x x x x x

F. AGENTS FINDINGS

11. The results of the investigation reveal that there is sufficient evidence to charge Subject for violation of Sec. 2 of RA 1379 (Law of Forfeiture of Ill-Gotten Wealth) and non-compliance with Sec. 8 of RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) for failure to accomplish and submit declarations under oath of the assets and liabilities, net worth and financial business interests for the above-mentioned years during tenure of Subject as Court Sheriff.[6]

In its Resolution of May 29, 2002, this Court referred the instant case to the OCA for evaluation, report and recommendation.[7] In compliance therewith, Deputy Court Administrator Christopher O. Lock submitted a report, dated April 29, 2003, with the endorsement of Court Administrator Presbitero J. Velasco, Jr., pertinent portions of which read as follows:

A careful examination of the NBI Investigation Report on respondents alleged real properties enumerated in the Fact-Finding Report of the Office of the Ombudsman reveals that only one (1) property was found to be registered under respondents name and this is as co-owner of an agricultural land along Janosa, Binangonan, Rizal covered by TCT No. 46607. TCT No. M-23480 and TCT No. M-17315 are both registered in the name of respondents wife, Edith Doblada while Tax Declaration ARP #28-0032, covering a residential lot along Janosa, Binangonan, Rizal discloses the name Norberto Doblada as the owner. A perusal of respondents Sworn Statement of Assets, Liabilities and Networth filed before this Office however discloses his ownership of several other properties, real and personal which, clearly,

contributed to an unimaginable increase of his assets during his incumbency as court sheriff. With this information on hand, it cannot be ignored that such would be a factor in the proper evaluation of the instant administrative case. Respondent, therefore, should be accorded the opportunity to explain the increase of his assets from P6,000 in 1974 to P7 million, more or less, in 1995.

Respondents records also disclose that he had not been submitting his Statement of Assets, Liabilities and Networth particularly for the years 1975, 1977 to 1988, 1990, 1992, 1994, 1999 and 2000 as mandated under R.A. 6713.

x x x x x x x x x

Considering, therefore the gravity of the penalty imposed on a public officer who is found to have violated Sec. 7, R.A. 3019 and Sec. 8, R.A. 6713, respondent should be given the opportunity to explain his failure to submit his Sworn Statement of Assets, Liabilities and Networth.

IN VIEW OF THE FOREGOING, it is hereby respectfully recommended that respondent Sheriff Norberto Doblada, Jr. be DIRECTED to EXPLAIN within ten (10) days from notice his failure to submit his Sworn Statement of Assets, Liabilities and Networth for the years 1975, 1977 to 1988, 1990, 1992, 1994, 1999 and 2000, and the significant increase of his assets from P6,000.00 in 1974 to 7 million by 1995.[8]

This Court, in a Resolution dated July 16, 2003, directed respondent to explain in writing his failure to submit his Sworn Statement of Assets and Liabilities and Networth (SAL) for the years 1975, 1977 to 1988, 1990, 1992, 1994, 1999 and 2000, and the significant increase of his assets from P6,000.00 in 1974 to P7,000,000.00 in 1995.[9]

On September 5, 2003, respondent submitted his Explanation[10] contending that contrary to what had been stated in the Courts Resolution of July 16, 2003, he had been religiously filing his SAL, including the years mentioned in the Resolution when he supposedly failed to file said Statements. He admits that he does not have copies of these Statements and claims that he might have accidentally disposed of the same during the various times that he transferred office. As to the increase of his assets from P6,000.00 in 1974 to P7,000,000.00 in 1995, respondent explains that the significant improvement of his assets was brought about by inheritance and largely, through business ventures which are financed through loans.

On September 24, 2003, this Court issued a resolution referring the instant case to the OCA for evaluation, report and recommendation.[11]

On December 21, 2004, respondent filed a Motion for Early Resolution, alleging that he has complied with the directives of the Court and the case is now ripe for resolution.[12]

In a Memorandum dated February 3, 2005, the OCA submitted a report with the following findings:

The determination of whether or not respondent Doblada acquired properties with a valuation manifestly out of proportion to his salary and that of his wife and their additional earnings requires a comparison of the respective values of the properties with the salaries, benefits, other lawful income and additional revenues from legitimately acquired properties or businesses of the said spouses. The deficient and insufficient documents submitted to the OCA cannot serve as bases for such comparison. Absent complete documentation and information on the properties acquired by the spouses Doblada and their respective earnings, we are not ready to state

that the allegations in the anonymous letter-complaint dated 8 December 1993 have been shown by sufficient and convincing proof.

However, our evaluation indicates that the incompleteness of the documents, in terms of filings of Statements and of entries therein, is attributable to respondent Doblada. The submitted Statements and information or incomplete or lack of information in these Statements fully evince violations of the provisions of the Anti-Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards for Public Officials and Employees and the CSC rules implementing the said Code. We find that respondent Doblada as shown by the instances (not merely a single instance) herein discussed contravened the provisions of the Anti-Graft and Corrupt Practices Act requiring the submission of a true, detailed and sworn statement of assets and liabilities (Section 7). As particular example, respondent Doblada excluded from Statements for 1974 and 1976 the real properties he already had during those years and which he claimed he acquired in 1965 in the 1989 Statement he filed. Respondent Doblada violated the provisions of the Code of Conduct and Ethical Standards for Public Officials and Employees and the CSC rules implementing the said Code when he did not include information on his business interest in and financial connection with ELXSHAR in the 1989, 1991 and 1993 Statements. The violations are not isolated episodes. They had been repeatedly committed by respondent Doblada as can be culled from the different Statements filed in various years.[13]

and recommendations, to wit:

1. That Sheriff Norberto V. Doblada, Jr., be found administratively liable for violations of the Anti-Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards for Public Officials and Employees and the CSC rules

implementing the provisions of the said Code; and

2. That Sheriff Doblada be meted the penalty of removal from the service, with forfeiture of his retirement benefits, and with prejudice to re-employment in any branch of the government or any of its agencies or instrumentalities, including government-owned or controlled corporations and government financial institutions.[14]

We agree with the OCA.

After a perusal of the records on hand, we find that complainants charge against respondent is not sufficiently substantiated. We agree with the observation of the OCA that the evidence presented in the instant case, consisting of the documents submitted by the complainant and those which were compiled by the investigating agent of the NBI, are not adequate to establish complainants allegation that respondent had acquired assets which are manifestly out of proportion to his legitimate income.

Moreover, we find no sufficient evidence to prove that respondent failed to file his SAL for the years 1975, 1977 to 1988, 1990, 1992, 1994, 1997, 1999 and 2000. Respondent maintains that he has consistently filed his SAL for the said years. To prove his contention, respondent submitted a copy of a letter dated May 7, 2001 sent by Remegio C. Aosa, Acting Branch Clerk of Court of Branch 155, RTC, Pasig City, stating therein that attached to said letter are the sworn SAL of the staff of RTC Pasig City, Branch 155, including that of respondents, for the year 2000. The letter was sent to and duly received by the OCA but the SAL of respondent for 2000 is one of those missing in the files of OCA. On this premise, one cannot readily conclude that respondent failed to file his sworn SAL for the years 1975, 1977 to 1988, 1990, 1992, 1994, 1997, 1999 and 2000 simply because these documents are missing in

the files of the OCA. Even in the report of the Court Administrator dated February 3, 2005, there was no categorical statement that respondent failed to file his SAL for the years earlier mentioned. The report of the OCA simply stated that it does not have on its file the subject SAL of respondent.

Nonetheless, we agree with the OCA in finding that respondent is guilty of violating Republic Act Nos. 3019 (Anti-Graft and Corrupt Practices Act) and 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) for having failed to submit a true, detailed and sworn statement of his assets and liabilities.

Section 7 of R.A. No. 3019, as amended, provides:

Sec. 7. Statement of Assets and Liabilities. Every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or Chief of an independent office, with the Office of the President, a true, detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the fifteenth day of April following the close of the said calendar year.

Section 9(b) of the same Act provides:

(b) Any public officer violating any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year and six months, or by both such fine and imprisonment, at the discretion of the Court.

The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. (emphasis supplied)

In the same manner, Section 8 of R.A. No. 6713 provides:

SEC. 8. Statements and Disclosure. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.

(A) Statements of Assets and Liabilities and Financial Disclosure. All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statements of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.

The two documents shall contain information on the following:

(a) real property, its improvements, acquisition costs,

assessed value and current fair market value;

(b) personal property and acquisition cost;

(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like;

(d) liabilities, and;

(e) all business interests and financial connections.

The documents must be filed:

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and

(c) within thirty (30) days after separation from the service.

All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year

when they first assumed any office in the Government.

Husband and wife who are both public officials or employees may file the required statements jointly or separately.

x x x x x x x x x

Section 11 of R.A. No. 6713 provides for the penalties:

SEC. 11. Penalties. (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000.00), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him. (emphasis ours)

x x x x x x x x x

As to the business interests and financial connections of public officials and employees, Section 1(a)(2), Rule VII of the Rules implementing R.A. No. 6713 states:

(2) The Disclosure of Business Interests and Financial Connections shall contain information on any existing interests in, or any existing connections with, any business enterprises or entities, whether as proprietor, investor, promoter, partner, shareholder, officer, managing director, executive, creditor, lawyer, legal consultant or adviser, financial or business consultant, accountant, auditor, and the like, the names and addresses of the business enterprises or entities, the dates when such interests or connections were established, and such other details as will show the nature of the interests or connections.

In the present case, we find that there are discrepancies, inconsistencies and non-disclosures in the SAL filed by respondent for the years 1974, 1976, 1989, 1991, 1993, 1995 and 1998, to wit:

1. In his SAL for 1989, respondent indicated therein that he owns a residential lot located in the province of Rizal which he acquired through inheritance in 1965. Respondent also declared in the same SAL that he owns a house which he inherited in 1967. He also acknowledged therein that he owns a residential lot in Baguio City which he acquired through purchase in 1965. However, in his SAL for the years 1974 and 1976, respondent did not declare ownership of any real property.

2. In his SAL for 1989 and 1993, respondent declared that he owns a house and lot acquired through inheritance in 1965. However, in his SAL for 1991, 1995, 1996 and 1998, he declared that the house and lot he inherited was acquired in 1985.

3. Respondent acknowledged in his SAL for 1991, 1993, 1995 and 1996 that he acquired a house and lot by purchase in 1985. However, he failed to declare said property in his SAL for 1989.

4. In his Explanation submitted to the Court on September 5, 2003, respondent contends that one of the reasons why his assets increased significantly from 1974 to 1995 is that he was appointed as company director of ELXSHAR PTY LTD (ELXSHAR), a company based in Australia. He reasoned out that his appointment was brought about by his daughters connections in Australia, wherein the latter is a resident. However, we agree with the observation of the OCA that nowhere in respondents SAL for 1989, 1991 and 1993 did he declare his business and financial connections with ELXSHAR. It was only in his SAL for 1995, 1996 and 1998 that he included his directorship in ELXSHAR as part of his business and financial interests.

5. Respondent also acknowledged in his Explanation that he constructed a two-hectare fish cage in January 1989 by obtaining a loan in the amount of P300,000.00. However, an examination of the SAL of respondent for 1989 and 1991 reveals that he failed to declare either his ownership of or his financial interests in the said fish pens. Respondent also explained that as security for his loan of P300,000.00, obtained in January 1989, he executed a real estate mortgage in favor of the person who loaned him the money. However, his SAL for 1989 does not contain any declaration of a real estate mortgage for the said amount.

6. Respondent declared his ownership of a fish pen worth P2,500,000.00 in his SAL for 1995 and 1996. He claims that his ownership of the said fish pen was acquired in 1993. However, a perusal of his SAL for 1993 shows that while respondent declared his being a fish pen operator as part of his business interests, he failed to include said fish pen among his assets. It was only in 1995 that he began to declare the fish pen as part of his assets.

On the basis of the foregoing discrepancies, inconsistencies and omissions,

we find respondent guilty of violating Section 7 of R.A. No. 3019 and Section 8 of R.A. No. 6713 for his failure to declare a true and detailed statement of his assets and liabilities for the years 1974, 1976, 1989, 1991, 1993, 1995 and 1998 and should be meted out the penalty of dismissal from service pursuant to Section 9(b), R.A. No. 3019 and Section 11, R.A. No. 6713. Furthermore, in Rabe vs. Flores,[15] one of the reasons why the Court dismissed a court employee from the service is her failure to disclose her business interests for a continued period of four years. In this case, respondent failed to disclose his business interests from 1974 to 1994 or a period of twenty years.

WHEREFORE, respondent Norberto V. Doblada, Jr., Sheriff IV, Regional Trial Court of Pasig City, Branch 155, is found GUILTY of violation of Section 7, R.A. No. 3019 and Section 8, R.A. No. 6713 and is DISMISSED from the service, effective immediately, with FORFEITURE of all benefits, except accrued leave credits, if any, with prejudice to his reemployment in any branch or service of the government including government-owned and controlled corporations.

SO ORDERED.

Davide, Jr., C.J., Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ., concur.

Puno, J., on official leave.

Ynares-Santiago, J., no part.

Tinga, J., no part. Close association with the party.

SPECIAL THIRD DIVISION

 

HON. WALDO Q. FLORES, in his capacity as Senior Deputy Executive Secretary in the Office of the President, HON. ARTHUR P. AUTEA, in his capacity as Deputy Executive Secretary in the Office of the President, and the PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC),

Petitioners,

- versus -

G.R. No. 170146

Present:

CARPIO MORALES, J.,

Chairperson,

VELASCO, JR.,*

DEL CASTILLO,**

VILLARAMA, JR., and

SERENO, JJ.

ATTY. ANTONIO F. MONTEMAYOR,

Respondent.

Promulgated:

June 8, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

 

RESOLUTION

 

VILLARAMA, JR., J.:

This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the October 19, 2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004 of the Office of the President in O.P. Case No. 03-1-581, which found the respondent administratively liable for failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two expensive cars registered in his name, in violation of Section 7, Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A. No. 6713. The OP adopted the findings and recommendations of the Presidential Anti-Graft Commission (PAGC), including the imposition of the penalty of dismissal from service on respondent, with all accessory penalties.

The motion is anchored on the following grounds:

1. Respondent was subjected to two (2) administrative/criminal Investigations equivalently resulting in violation of his constitutional right against double jeopardy.

2. Who to follow between conflicting decisions of two (2) government agencies involving the same facts and issues affecting the rights of the Respondent.

3. Respondents constitutional right to due process was violated.

4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged offense committed/omitted.[1]

On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge involving non-declaration in his 2001 and 2002 SSAL was already the subject of investigation by the Ombudsman in OMB-C-C-04-0568-LSC, along with the criminal complaint for unexplained wealth, the former can no longer be pursued without violating the rule on double jeopardy.

Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[2] We have held that none of these requisites applies where the Ombudsman only conducted a preliminary investigation of the same criminal offense against the respondent public officer.[3] The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial.[4]

With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the criminal and administrative complaints against him, including the charge subject of the proceedings before the PAGC and OP. It is argued that the Office of the Ombudsman as a constitutional body, pursuant to its mandate under R.A. No. 6770, has primary jurisdiction

over cases cognizable by the Sandiganbayan, as against the PAGC which is not a constitutional body but a mere creation of the OP. Under said law, it is the Ombudsman who has disciplinary authority over all elective and appointive officials of the government, such as herein respondent.

The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil, administrative and criminal liabilities. We held in Tecson v. Sandiganbayan[5]:

[I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. (Italics in the original.)

Dismissal of a criminal action does not foreclose institution of an administrative proceeding against the same respondent, nor

carry with it the relief from administrative liability.[6] Res judicata did not set in because there is no identity of causes of action. Moreover, the decision of the Ombudsman dismissing the criminal complaint cannot be considered a valid and final judgment. On the criminal complaint, the Ombudsman only had the power to investigate and file the appropriate case before the Sandiganbayan.[7]

In the analogous case of Montemayor v. Bundalian,[8] this Court ruled:

Lastly, we cannot sustain petitioners stance that the dismissal of similar charges against him before the Ombudsman rendered the administrative case against him before the PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGCs investigation of petitioner was administrative in nature, the doctrine ofres

judicata finds no application in the case at bar. (Emphasis supplied.)

Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the Ombudsman, respondents objection on jurisdictional grounds cannot be sustained.

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations. Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on his own or upon complaint by any person when such act appears to be illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate disciplinary actions against erring public officials and employees.

The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public

officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive.

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not exclusive but is shared with other similarly authorized government agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to investigate complaints against local elective officials.[9] (Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority to investigate presidential and also non-presidential employees who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned x x x.[10] On this score, we do not agree with respondent that the PAGC should have deferred to the Ombudsman instead of proceeding with the administrative complaint in view of the pendency of his petition for certiorari with the CA challenging the PAGCs jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.[11]

It may be recalled that at the time respondent was directed to submit his counter-affidavit under the Ombudsmans Order dated March 19, 2004, the PAGC investigation had long commenced and in fact, the PAGC issued an order directing respondent to file his counter-affidavit/verified answer as early as May 19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction divests another of its own jurisdiction.[12] Having already taken cognizance of the complaint against the respondent involving non-declaration in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents administrative case notwithstanding the subsequent filing of a supplemental complaint before the Ombudsman charging him with the same violation.

As to the third ground raised by respondent, we find no merit in his reiteration of the alleged gross violation of his right to due process. Records bear out that he was given several opportunities to answer the charge against him and present evidence on his defense, which he stubbornly ignored despite repeated warnings that his failure to submit the

required answer/counter-affidavit and position paper with supporting evidence shall be construed as waiver on his part of the right to do so.

The essence of due process in administrative proceedings is the opportunity to explain ones side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.[13] What is offensive to due process is the denial of the opportunity to be heard.[14] This Court has repeatedly stressed that parties who choose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process.[15] Having persisted in his refusal to file his pleadings and evidence before the PAGC, respondent cannot validly claim that his right to due process was violated.

In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the CAs finding that respondents right to due process was violated by the unilateral investigation conducted by the PAGC which did not furnish the respondent with a copy of the prejudicial PAGC resolution. The dissent also agreed with the CAs observation that there was a rush on the part of the PAGC to find the respondent guilty of the charge. This was supposedly manifested in the issuance by the PAGC of its resolution even without taking into consideration any explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit to challenge the PAGCs jurisdiction to investigate him. On the other hand, the dissent proposed that the non-submission by respondent of his counter-affidavit or verified answer as directed by the PAGC should not be taken against him. Respondents refusal was not motivated by bad faith, considering his firm belief that PAGC did not have jurisdiction to administratively or disciplinarily investigate him.

We do not share this view adopted by the dissent.

Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No. 77285 dismissing respondents petition challenging the jurisdiction of the PAGC. Respondents motion for reconsideration was likewise denied by the CA. Upon elevation to this Court via a petition for review on certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First Divisions Resolution dated January 26, 2004, the petition was denied for failure of the petitioner (respondent) to show that the CA committed any reversible error in the assailed decision and resolution. Said resolution became final and executory on April 27, 2004. Thus, at the time respondent submitted his counter-affidavit before the Ombudsman on May 21, 2004, there was already a final resolution of his petition challenging the PAGCs investigative authority.

On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding respondent guilty as charged and recommending that he be dismissed from the service, after the expiration of the 60-day temporary restraining order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285. The OP rendered its Decision adopting the PAGCs findings and recommendation on March 23, 2004. As thus shown, a period of ten (10) months had elapsed from the time respondent was directed to file his counter-affidavit or verified answer to the administrative complaint filed against him, up to the rendition of the OPs decision. It cannot therefore be said that the PAGC and OP proceeded with undue haste in determining respondents administrative guilt.

Still on respondents repeated claim that he was denied due process, it must be noted that when respondent received a copy of the OP Decision dated March 23, 2004, his petition for review filed in this Court assailing the CAs

dismissal of CA-G.R. SP No. 77285 was already denied under Resolution dated January 26, 2004. However, despite the denial of his petition, respondent still refused to recognize PAGCs jurisdiction and continued to assail the same before the CA in CA-G.R. SP No. 84254, a petition for review under Rule 43 from the OPs March 23, 2004 Decision and May 13, 2004 Resolution.[16] In any event, respondent was served with a copy of the OP Decision, was able to seek reconsideration of the said decision, and appeal the same to the CA.

We also find nothing irregular in considering the investigation terminated and submitting the case for resolution based on available evidence upon failure of the respondent to file his counter-affidavit or answer despite giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the PAGC. The PAGC is also not required to furnish the respondent and complainant copy of its resolution.

The dissent of Justice Bersamin assails the OPs complete reliance on the PAGCs findings and recommendation which constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court of Industrial Relations[17]. Among others, it is required that [T]he tribunal or any of its judges must act on its or his own independent consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision. Justice Bersamin thus concludes that the OP should have itself reviewed and appreciated the evidence presented and independently considered the facts and the law of the controversy. It was also pointed out that the OPs statement that the respondents arguments in his Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint were a mere reiteration of matters previously considered, was a patent untruth.

We disagree.

The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted the same with a brief statement preceding the dispositive portion:

After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.[18]

The relevant consideration is not the brevity of the above disquisition adopting fully the findings and recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a court but an administrative body determining the liability of respondent who was administratively charged, in the exercise of its disciplinary authority over presidential appointees.

In Solid Homes, Inc. v. Laserna,[19] this Court ruled that the rights of parties in an administrative proceedings are not violated by the brevity of the decision rendered by the OP incorporating the findings and conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the constitutional requirement of due process has been satisfied. Thus:

It must be stated that Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings, as in the case a[t] bar. Said section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is titled Judiciary, and all of its provisions have particular concern only with respect to the judicial branch of government.Certainly, it would be error to hold or even imply that decisions of executive departments or administrative agencies are oblige[d] to meet the requirements under Section 14, Article VIII.

The rights of parties in administrative proceedings are not violated as long as the constitutional requirement of due process has been satisfied. In the landmark case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in administrative proceedings, as follows:

1)      The right to a hearing, which includes the right to present ones case and submit evidence in support thereof.

2)      The tribunal must consider the evidence presented.

3)      The decision must have something to support itself.

4)      The evidence must be substantial.

5)      The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected.

6)      The tribunal or body or any of its judges must act on its or his own independent

consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision.

7)      The board or body should, in all controversial question, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

As can be seen above, among these rights are the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; and that the decision be rendered in such a manner that the parties to the proceedings can know the

various issues involved, and the reasons for the decisions rendered. Note that there is no requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is based. For as long as the administrative decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the factual and legal bases of the decision, the due process requirement is satisfied.

At bar, the Office of the President apparently considered the Decision of HLURB as correct and sufficient, and said so in its own Decision. The brevity of the assailed Decision was not the product of willing concealment of its factual and legal bases. Such bases, the assailed Decision noted, were already contained in the HLURB decision, and the parties adversely affected need only refer to the HLURB Decision in order to be able to interpose an informed appeal or action for certiorari under Rule 65.

x x x x

Accordingly, based on close scrutiny of the Decision of the Office of the President, this Court rules that the said Decision of the Office of the President fully complied with both administrative due process and Section 14, Article VIII of the 1987 Philippine Constitution.

The Office of the President did not violate petitioners right to due process when it rendered its one-page Decision. In the case at bar, it is safe to conclude that all the parties, including petitioner, were well-informed as to how the Decision of the Office of the President was arrived at, as well as the facts, the laws and the issues involved therein because the Office of the President attached to and made an integral part of its Decision the Decision of the HLURB Board of Commissioners, which it adopted by reference. If it were otherwise, the petitioner would not have been able to lodge an appeal before the Court of Appeals and make a presentation of its arguments before said court without knowing the facts and the issues involved in its case.[20]

(Emphasis supplied.)

Since respondent repeatedly refused to answer the administrative charge against him despite notice and warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by the OP, attaching the same to his motion for reconsideration. That the OP denied the motion by sustaining the PAGCs findings without any separate discussion of

respondents arguments and belatedly submitted evidence only meant that the OP found the same lacking in merit and insufficient to overturn its ruling on respondents administrative liability.

On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the service is justified as no acceptable explanation was given for the non-declaration of the two expensive cars in his 2001 and 2002 SSAL.

Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him. Respondents deliberate attempt to evade the mandatory disclosure of all assets acquired during the period covered was evident when he first claimed that the vehicles were lumped under the entry Machineries/Equipment or still mortgaged, and later averred that these were already sold by the end of the year covered and the proceeds already spent.

Under this scheme, respondent would have acquired as many assets never to be declared at anytime. Such act erodes the function of requiring accuracy of entries in the SSAL which must be a true and detailed statement. It undermines the SSAL as the means to achieve the policy of accountability of all public officers and employees in the government through which the public are able to monitor movement in the fortune of a public official; [as] a valid check and balance mechanism to verify undisclosed properties and wealth.[21]

IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.

 

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

ChairpersonPRESBITERO J. VELASCO, JR.

Associate JusticeMARIA LOURDES

Associate Justice

 

 

A T T E S T A T I O N

 

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

 

* Designated Additional Member per Raffle dated April 12, 2011.

** Designated Additional Member per Raffle dated May 6, 2011.

[1] Rollo, p. 477.

[2] Almario v. Court of Appeals, G.R. No. 127772, March 22, 2001, 355 SCRA 1, 7.

[3] Apolinario v. Flores, G.R. No. 152780, January 22, 2007, 512 SCRA 113, 122.

[4] Trinidad v. Office of the Ombudsman, G.R. No. 166038, December 4, 2007, 539 SCRA 415, 424, citing Vincoy v. Court of Appeals, G.R. No. 156558, June 14, 2004, 432 SCRA 36, 40.

[5] G.R. No. 123045, November 16, 1999, 318 SCRA 80, 87-88.

[6] Office of the Court Administrator v. Enriquez, A.M. No. P-89-290, January 29, 1993, 218 SCRA 1, 10; Office of the Court Administrator v. Caete, A.M. No. P-91-621, November 10, 2004, 441 SCRA 512, 520.

[7] Apolinario v. Flores, supra note 3.

[8] G.R. No. 149335, July 1, 2003, 405 SCRA 264, 272-273.

[9] Office of the Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339, citing Panlilio v. Sandiganbayan, G.R. No. 92276, June 26, 1992, 210 SCRA 421; Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226; Honasan II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004, 427 SCRA 46; and Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 242.

[10] Sec. 4 (b).

[11] Office of the Ombudsman v. Estandarte, G.R. No. 168670, April 13, 2007, 521 SCRA 155, 173, citing Deltaventures Resources, Inc. v. Hon. Cabato, 384 Phil. 252, 261 (2000).

[12] See Panlilio v. Salonga, G.R. No. 113087, June 27, 1994, 233 SCRA 476, 482.

[13] Medina v. Commission on Audit (COA), G.R. No. 176478, February 4, 2008, 543 SCRA 684, 696-697, citing Montemayor v. Bundalian, 453 Phil. 158, 165 (2003).

[14] Octava v. Commission on Elections, G.R. No. 166105, March 22, 2007, 518 SCRA 759, 764, citing Garments and Textile Export Board v. Court of Appeals, G.R. Nos. 114711 & 115889, February 13, 1997, 268 SCRA 258, 299.

[15] Garcia v. Pajaro, G.R. No. 141149, July 5, 2002, 384 SCRA 122, 138.

[16] Rollo, pp. 100-104.

[17] 69 Phil. 635 (1940).

[18] Rollo, p. 90.

[19] G.R. No. 166051, April 8, 2008, 550 SCRA 613.

[20] Id. at 626-627 and 629.

[21] Ombudsman v. Valeroso, G.R. No. 167828, April 2, 2007, 520 SCRA 140, 150.

EN BANC

 

BRICCIO Ricky A. POLLO,

Petitioner,

- versus -

CHAIRPERSON KARINA CONSTANTINO-DAVID,

G.R. No. 181881

Present:

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,*

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,

DIRECTOR IV LYDIA A.

CASTILLO, DIRECTOR III

REYES, and

PERLAS-BERNABE, JJ.

ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION,

Respondents.

Promulgated:

October 18, 2011

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DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employees personal files stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision[1] dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the proceedings conducted by the

Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked Confidential and sent through a courier service (LBC) from a certain Alan San Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked Confidential are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman

Civil Service Commission

Batasan Hills, Quezon City

 

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

 

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted.

 

Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions.[4] After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director

Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better.

All PCs Of PALD and LSD are being backed up per memo of the chair.

CO IT people arrived just now for this purpose. We were not also informed about this.

We cant do anything about it its a directive from chair.

Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via mms[5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: Sir may mga taga C.O. daw sa

kuarto natin.[6] At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters[7] in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order[8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the

CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he lawyering for people with cases in the CSC. He accused CSC officials of conducting a fishing expedition when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal

files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being fruits of a poisonous tree.[10]

On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that

those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.[15] Since he failed to attend the pre-

hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsels non-appearance.[17] This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioners motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted

the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.[21]

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of OConnor v. Ortega[22] as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the probable cause or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded

a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that

I

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A   MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL

HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]

Squarely raised by the petitioner is the legality of the search conducted on his office computer and

the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,[27] which provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and seizures.[28] But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin

in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts

which are considered doctrinal in this jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a search and seizure. Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus recognized that employees may have a reasonable expectation of privacy against intrusions by police.

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v. Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets.

In that case, the Court categorically declared that [i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.[35] A plurality of four Justices concurred that the correct analysis has two steps: first, because some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable, a court must consider [t]he operational realities of the workplace in order to determine whether an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.[36]

On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches:

x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply

put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individuals office. We agree with JUSTICE SCALIA that [c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer, x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.[37] (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed an expectation of privacy that society is prepared to consider as reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and

effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the searchwas not a reasonable search under the fourth amendment. x x x [t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search.A determination of the standard of reasonableness applicable to a particular class of searches requires balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees legitimate expectations of

privacy against the governments need for supervision, control, and the efficient operation of the workplace.

x x x x

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the common-sense realization that government offices could not function if every employment decision became a constitutional matter. x x x

x x x x

The governmental interest justifying work-related

intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from the normal need for law enforcement. x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work

of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agencys work, and ultimately to the public interest. x x x

x x x x

In sum, we conclude that the special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable, x x x for legitimate, work-

related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness   under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was

reasonably related in scope to the circumstances which justified the interference in the first place, x x x

Ordinarily, a search of an employees office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

In OConnor the Court recognized that special needs authorize warrantless searches involving public employees for work-related

reasons. The Court thus laid down a balancing test under which government interests are weighed against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.[40]

OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of these cases involved a government employers search of an office computer, United States v. Mark L. Simons[41] where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access.The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the contents of Simons computer;

computer diskettes found in Simons desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced inOConnor because at the inception of the search, the employer had reasonable grounds for suspecting that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy

in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x

x x x x

x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would audit, inspect, and/or monitor employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, as deemed appropriate. x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the

Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment.

x x x x

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.

x x x x

In the final analysis, this case involves an employees supervisor entering the employees government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy equipment that the employer knew contained evidence of

crimes committed by the employee in the employees office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer might engage. x x x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent

circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the employees relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item. These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.[44] Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.[45]

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy

either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as full of people, his friends, unknown people and that in the past 22 years he had been discharging his functions at the PALD, he is personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer.[46] Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

 

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

1.      The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.

 

2.      Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs.

 

3.      Use of the Computer Resources is a privilege that may be revoked at any given time.

 

x x x x

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential

examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network.Users understand that the CSC may use human or automated means to monitor the use of its   Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of   a   User  to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.

x x x x

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or

given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another Users password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that   Users   have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular Users password. Only members of the Commission shall authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure

that the computer resources were used only for such legitimate business purposes.

One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation.Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the affirmative.

The search of petitioners computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil

Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, selling cases and aiding parties with pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x[50]

A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that

it will turn up evidence that the employee is guilty of work-related misconduct.[51] Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.[52]

Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was lawyering for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of lawyering for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an

impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission

effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.[53]

Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners

computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and

seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount

of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the

Commission. Worse, the appearance in one of the retrieved documents the phrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo,lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money a legal mercenary selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some

of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He

was, in effect, acting as a principal by indispensable cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed.Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases

initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment.

x x x x

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.[58] Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

* No part.

[1] Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with Associate Justices Mariano C. Del Castillo (now a Member of this Court) and Arcangelita M. Romilla-Lontok concurring.

[2] Id. at 85.

[3] Id. at 306.

[4] Id. at 305.

[5] CA rollo, p. 56.

[6] Id.

[7] Id. at 21-24.

[8] Id. at 20-25.

[9] Id. at 25.

[10] Id. at 55-62.

[11] Id. at 26-33. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that a prima facie case existed against petitioner while Commissioner Cesar D. Buenaflor dissented [see Memorandum (OCOM-C Memo No. 14, s. 2007, CA rollo, pp. 431-434).

[12] CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the omnibus motion while Commissioner Cesar D. Buenaflor reiterated his dissent.

[13] CA rollo, pp. 2-19.

[14] Id. at 288-294, 321-325.

[15] Id. at 336-340.

[16] Id. at 373.

[17] Id. at 376-378.

[18] Id. at 388-392.

[19] Id. at 457-463. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in denying the motion while Commissioner Cesar D. Buenaflor dissented stating that based on his dissenting position, any subsequent proceedings in this case is of no moment since the initiatory proceedings was in violation of a persons fundamental rights enshrined in the Bill of Rights of the Constitution. (Id. at 465.)

[20] Id. at 586-618. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that petitioner is guilty as charged while Commissioner Cesar D. Buenaflor maintained his dissent.

[21] Id. at 618.

[22] 480 U.S. 709 (1987).

[23] 206 F.3d 392 (4th Cir. 2000).

[24] Id. at 560-585.

[25] Id. at 707-719. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the motion for reconsideration while Commissioner Cesar D. Buenaflor reiterated his dissent under his Addendum to the Dissenting Position Under OCOM-C Memo No. 14, S. 2007. (Id. at 720.)

[26] Rollo, p. 19.

[27] Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658, November 3, 2008, 570 SCRA 410, 427, citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169.

[28] Joaquin Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 2003 ed., p. 162.

[29] G.R. No. 81561, January 18, 1991, 193 SCRA 57.

[30] Id. at 63.

[31] 389 U.S. 437 (1967).

[32] Id.

[33] 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968).

[34] Supra note 22.

[35] Id. at 717.

[36] City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.

[37] Supra note 22 at 717-718.

[38] Id. at 718-719.

[39] Id. at 719, 722-725.

[40] Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.

[41] Supra note 23.

[42] Id.

[43] Supra note 27 at 432-433.

[44] U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.), April 3, 2007, citing United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998).

[45] U.S. v. Ziegler, 474 F.3d 1184 C.A.9 (Mont.), January 30, 2007.

[46] CA rollo, pp. 42, 61.

[47] Id. at 440-443.

[48] Biby v. Board of Regents, of the University of Nebraska at Lincoln, 419 F.3d 845 C.A.8 (Neb), August 22, 2005.

[49] Id.

[50] CA rollo, p. 639.

[51] U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.

[52] Id.

[53] CA rollo, pp. 611-612.

[54] A.M. Nos. P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA 361.

[55] Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA 210, 230, citing Rosario v. Victory Ricemill, G.R. No. 147572, February 19, 2003, 397 SCRA 760, 766 and Bagong Bayan Corp., Realty Investors and Developers v. NLRC, G.R. No. 61272, September 29, 1989, 178 SCRA 107.

[56] CA rollo, pp. 616-617.

[57] G.R. No. 147009, March 11, 2004, 425 SCRA 394, 401.

[58] Rollo, p. 299.

[59] See Taada v. Hon. Tuvera, 230 Phil. 528, 535 (1986).

SUPREME COURTManila

EN BANC

 

G.R. No. 100874 February 13, 1992

GOVERNOR BENJAMIN I. ESPIRITU, petitioner, vs.NELSON B. MELGAR and HON. JUDGE MARCIANO T. VIROLA, respondents.

Luna, Sison & Manas for petitioner.

Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for private respondent.

 

GRIÑO-AQUINO, J.:

The issue in this special civil action of certiorari and prohibition is the jurisdiction of respondent Judge of the Regional Trial Court of Oriental Mindoro to stop the provincial governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter.

On April 11, 1991, one Ramir Garing of Naujan, Oriental Mindoro, filed a sworn letter-complaint with Secretary Luis Santos of the Department of Interior and Local Government charging Mayor Nelson Melgar of Naujan, Oriental Mindoro, with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service. The charge against Mayor Melgar reads:

On or about 4:30 in the afternoon of March 26, 1991, in the Municipality of Naujan, Oriental Mindoro, the aforementioned person, Nelson Melgar, being the Municipal Mayor of Naujan, Oriental Mindoro, with abuse of official function, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Ramir Garing, by then and there boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his body and not being contented ordered his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without filing any charges until he was released the following day March 27, 1991 at about 8:30 in the morning. (p. 30, Rollo.)

An identical letter-complaint was filed by Garing with the Provincial Governor of Oriental Mindoro (herein petitioner Governor Benjamin I. Espiritu) accusing Mayor Melgar of the same violations of law and requesting that the mayor be placed under preventive suspension pending investigation of the charges.

A third complaint filed by Garing with the Presidential Action Center, Office of the President of the Philippines, was forwarded to Governor Espiritu with a request for prompt action (Annex "C", p. 36, Rollo).

On April 22, 1991, the Sangguniang Panlalawigan of Oriental Mindoro required Mayor Melgar to answer the complaint, which was docketed as Adm. Case No. 91-01 (Annex "D", p. 37, Rollo).

On May 22, 1991, Mayor Melgar submitted his answer in which he recounted the events of March 26, 1991 that led to the filing of Garing's complaint against him:

At around 6:30 in the evening of 26 March 1991, while I was in the middle of my speech at the Naujan Public Gymnasium, this Municipality, where the Jose L. Basa Memorial graduation ceremonies were then being held, a prolonged but nonetheless loud and intermittent clapping suddenly erupted from one of the numerous people then in attendance. I paused. The handclapping stopped. I resumed my speech. The fellow started all over again.

The audience was visibly disturbed and I found myself unable to proceed not because I could not collect my thoughts but because I felt the solemnity of the occasion had irreversibly been shattered by a rudeness so totally unexpected.

I ended my speech and instructed a policeman to investigate the culprit who turned out to be Ramir Garing. He was drunk. I did not hurt him as can be gathered from his medical certificate (Annex "B" to the complaint) which palpably contradicts his affidavit (Annex "A" to the complaint).

I was informed that said Ramir Garing was momentarily placed

in custody for his own protection because he was drunk. An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he was told to go home, but he refused to go and only did so the following morning.

Certainly under the circumstances, charges could have been filed against Ramir Garing under the provisions of Article 153 of the Revised Penal Code and also for possession and concealment of a deadly weapon. Still, as a local Chief Executive, who to most people represent (sic) a sovereign government, and who, at the cost of foregoing personal vindication must avoid any appearance of vindictiveness, I instructed my policemen not to file charges against him.

Attached hereto for your further reference are the joint affidavit of teachers of the J.L. Basa Memorial School as Annex "A", the joint affidavit of the Municipal Jailer and the Police Investigator as Annex "B", the affidavit of Fireman 1st Class Roy Lomio as Annex "C", and a xerox copy of the pages in the Police Blotter where the incident in question was entered. (pp. 40-41, Rollo).

After evaluating the complaint and its supporting documents, as well as the Mayor's answer and the affidavits of his witnesses, the Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55 on May 9, 1991, recommending to the Provincial Governor that

respondent Mayor be preventively suspended for forty-five (45) days pending the investigation of the administrative complaint (Annex "H, p. 49, Rollo).

On May 23, 1991, Mayor Melgar filed a motion to dismiss the administrative complaint (Annex "I", pp. 51-55,Rollo). It was opposed by Garing.

On June 6, 1991, the Sangguniang Panlalawigan denied the motion to dismiss (Res. No. 72, p. 62 Rollo; Annex "L" to the Petition).

Meanwhile, pursuant to the recommendation of the Sangguniang Panlalawigan in its Resolution No. 55, Governor Espiritu placed Mayor Melgar under preventive suspension on May 28, 1991 on the ground that:

. . . there is reasonable ground to believe that respondent Mayor Nelson B. Melgar of Naujan, Oriental Mindoro, has committed the acts stated in the complaint and affidavit of Ramir Garing and corroborated by the affidavits (Exhibits A, C & D) of his witnesses, namely: Lydia V. Garing, Nelson Tabor and Javier Dagdagan, all of Poblacion II, Naujan, Oriental Mindoro. (p. 63, Rollo)

On June 3, 1991, Mayor Melgar received the Order of Suspension (Annex "M", p. 63, Rollo). He forthwith filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the Regional Trial Court of Oriental Mindoro (Spl. Civil Action No. R-5003) alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor (pp. 68-69, Rollo).

On June 24, 1991, RTC Judge Virola issued a writ of preliminary injunction enjoining Governor

Espiritu from implementing the Order of suspension against Mayor Melgar for:

The Court is more inclined to believe the answer under oath of the respondent and the sworn statements of his witnesses attached to the Answer in the administrative case than the complaint under oath in the administrative case which are the evidence to be considered in determining whether or not the order of preventive suspension was issued in accordance with law. There is no reason to doubt the sworn statements of the numerous public school teachers and members of the PNP. Besides, the medical certificate issued in connection with the treatment of the complainant in the administrative case tends to corroborate the theory of the respondent and contradict that of the complaint in the administrative case. The abrasions on the right arm of the complainant in the administrative case tend to show that said complainant was held tightly by the hands by the PNP because he was then drunk, in possession of a balisong knife and causing serious disturbance and not because he was boxed and kicked by herein petitioner. (pp. 75-76, Rollo.)

Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied on July 16, 1991. Hence, this petition for certiorari and prohibition.

Without giving due course to the petition, we required the private respondent to comment and we issued a Temporary Restraining Order commanding respondent Judge to cease and desist from further proceeding in Special Civil Action No. R-5003 (pp. 106-107, Rollo). On August 22, 1991, Mayor Melgar filed an "Urgent Motion to Lift Temporary Restraining Order" which the petitioner opposed and the Court denied (p. 127-155, Rollo).

Petitioner submits that respondent Judge Virola acted without jurisdiction or with grave abuse of discretion in issuing: (1) the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive suspension, and (2) in denying petitioner's motion to dismiss Special Civil Action No. R-5003, for:

a Petitioner, as Provincial Governor, is empowered by Section 63 of the Local Government Code to place an elective municipal official under preventive suspension pending decision of an administrative case against the elective municipal official:

b) Petitioner did not commit a grave abuse of discretion in placing respondent mayor under preventive suspension; if at all, his error was an error of judgment which is not correctible bycertiorari;

c) By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has jurisdiction over complaints against any elective municipal official; on the other hand, Section 19(c) of the Judiciary

Reorganization Act of 1980 withdraws from regional trial courts jurisdiction over cases within the exclusive jurisdiction of any person, tribunal or body exercising judicial or quasi-judicial functions. Thus, by practically deciding the administrative case on the merits, the respondent court acted without jurisdiction; and

d) Respondent Mayor had a remedy of appeal under Section 66 of the Local Government Code.

Section 63, Chapter IV of the Local Government Code provides:

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at anytime after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to

the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty-days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of the suspension.

Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist:

1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of;

2. When the evidence of culpability is strong;

3. When the gravity of the offense so warrants; or

4. When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence (Nera vs. Garcia and Elicaño, 106

Phil. 1031). Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses (Lacson vs. Roque, 92 Phil. 456).

Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature (Aboitiz & Co. Inc. vs. Collector of Customs, 83 SCRA 265; Garcia vs. Teehankee, 27 SCRA 937; Manuel vs. Jimenez, 17 SCRA 55; Bongcawil vs. Provincial Board of Lanao del Norte, 10 SCRA 327; The Phil Veterans Affairs Office vs. Fariñas, et al., AC-G.R. SP No. 05937, July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9). The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case.

There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause ( 17 R.C.L. Sec. 233 cited in Attorney General vs. Doherty, 13 Am. Rep. 132). So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed.

However, in this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to

the continuation of the administrative investigation of the charges against him (Sec. 63, subpar. 3, Local Government Code).

WHEREFORE, the petition for certiorari and prohibition is granted. The writ of preliminary injunction dated June 24, 1991 in Special Civil Action No. R-5003 is hereby annulled and set aside. Said Special Civil Action No. R-5003 is dismissed.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 75025 September 14, 1993

VICENTE GARCIA, petitioner, vs.THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.

Eulogio B. Alzaga for petitioner.

The Solicitor General for respondents.

 

BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim.

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and

Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged.

Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency.

On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service.

It appears that petitioner was recalled to the service on 12 March 1984 but the records do not

show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court is the proper forum to take cognizance of the appeal oncertiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).

Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability;

(b) petitioners unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule.

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. 3

Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances:

Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. 4

From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening:

In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia.

Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that —

instead of coming forward to the defense of the accused who actually was authorized to uproot or

recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission.

In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. InMonsanto v. Factoran, 6 we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. 7 When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt.

In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial

court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission.

The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency.

Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. 9 There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter."10 In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages.

After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as it does circumstances that

impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification.

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

 

# Footnotes

1 Rollo, p. 62.

2 Rollo, p. 16.

3 59 Am Jur 2d, Pardon and Parole, Sec. 1.

4 Art. VII, Sec. 19, 1987 Constitution.

5 Rollo, pp. 21-22.

6 G.R. No. 78239, 9 February 1989, 170 SCRA 190.

7 Ibid.

8 Sabello v. Department of Education, Culture and Sports, G.R. No. 87687, 26 December 1989, 180 SCRA 623.

9 Ibid.

10 Mondano v. Silvosa, 97 Phil 143 (1955).

11 Macabuhay v. Manuel, No. L-40872, 29 December 1980, 101 SCRA 834; Cristobal v. Melchor, No. L-43203, 29 December 1980, 101 SCRA 857; Tañala v. Legaspi, No. L-22537, 31 March 1965, 13 SCRA 566.

12 Ginzon v. Municipality of Murcia, No. L-46585, 8 February 1988, 158 SCRA 1; Gementiza v. Court of Appeals, Nos. L-41717-33, 12 April 1982, 113 SCRA 477; Balquidra v. CFI, No. L-40490, 28 October

1977, 80 SCRA 123; Cristobal v. Melchor, supra.

SECOND DIVISION

 

NIETO A. RACHO,

Petitioner,

- versus -

HON. PRIMO C. MIRO, in his capacity as Deputy Ombudsman for the Visayas, HON. VIRGINIA PALANCA-SANTIAGO, in her capacity as Ombudsman Director, and HON. ANTONIO T. ECHAVEZ, in his capacity as Presiding Judge of the Regional Trial Court - Cebu City, Branch 8,

Respondents.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

This petition for certiorari and mandamus under Rule 65 of the Rules of Court seeks the annulment of the Joint Order[1] dated April 1, 2005 of the Office of the Ombudsman (OMB) in the Visayas. The OMB had denied reconsideration of its Reinvestigation Report[2] in OMB-V-C-02-0240-E and its Resolution in OMB-C-C-03-0729-L, both datedJanuary 10, 2005. Petitioner herein also assails both issuances of the OMB.

The factual antecedents of this case are as follows.

On November 9, 2001, DYHP Balita Action Team (DYHP) of the Radio Mindanao Network, Inc. addressed a letter[3] on behalf of an anonymous complainant to Deputy Ombudsman for the Visayas Primo C. Miro. The letter accused Nieto A. Racho, an employee of the Bureau of Internal Revenue (BIR)-Cebu, of having accumulated wealth disproportionate to his income. Photocopied bank certifications disclosed that Racho had a total deposit of P5,793,881.39 with three banks.

Pio R. Dargantes, the Graft Investigation Officer I (GIO) assigned to investigate the complaint, directed DYHP to submit a sworn statement of its witnesses. Instead, the latter filed a Manifestation[4] dated October 16, 2002 withdrawing its complaint for lack of witnesses. Consequently, GIO Dargantes dismissed the case. He ruled that the photocopied bank certifications did not constitute substantial evidence required in administrative proceedings.[5]

Then, in two separate Memoranda dated May 30, 2003,[6] Ombudsman Director Virginia Palanca-Santiago disapproved GIO Dargantess Resolution. In OMB-V-A-02-0214-E, Director Palanca-Santiago held Racho administratively liable for falsification

and dishonesty, and meted on him the penalty of dismissal from service with forfeiture of all benefits and perpetual disqualification to hold office.[7] In OMB-V-C-02-0240-E, Director Palanca-Santiago found probable cause to charge Racho with falsification of public document under Article 171(4)[8] of the Revised Penal Code.[9] The latter moved for reconsideration but it was denied by the Deputy Ombudsman.

On May 30, 2003, Racho was charged with falsification of public document, docketed as Criminal Case No. CBU-66458 before the Regional Trial Court (RTC) of Cebu City, Branch 8. The Information alleged:

That on or about the 7th day of February, 2000, and for sometime subsequent thereto, at Cebu City, Philippines, and within the jurisdiction of this Honorable Court, above-named accused NIETO A. RACHO, a public officer, being the Chief, Special Investigation Division, Bureau of Internal Revenue (BIR), Regional Office No. 13, Cebu City, in such capacity and committing the offense in relation to [his] office, with deliberate intent, with intent to falsify, did then and there willfully, unlawfully and feloniously falsify a public document, consisting of his Statement of Assets, Liabilities and Networth, Disclosure of Business Interest and Financial Connections; and Identification of Relatives In The Government Service, as of December 31, 1999, by stating therein that his cash in bank is only FIFTEEN

THOUSAND PESOS (P15,000.00), Philippine Currency and that his assets minus his liabilities amounted only to TWO HUNDRED THREE THOUSAND SEVEN HUNDRED FIFTY EIGHT PESOS (P203,758.00), Philippine Currency, when in truth and in fact, said accused has BANK DEPOSITS or cash in banks amounting to FIVE MILLION SEVEN HUNDRED NINETY THREE THOUSAND EIGHT HUNDRED ONE PESOS and 39/100 (P5,793,801.39),[10] Philippine Currency, as herein shown:

1) Metropolitan Bank and Trust Company Cebu, Tabunok Branch:

Unisa No. Amount

3-172-941-10 P1,983,554.45

3-172-941-11 949,341.82

Total - P2,932,896.27

2) Philippine Commercial International Bank Magallanes Branch, Cebu City:

Account No. Amount

Equalizer 29449-29456 P1,000,000.00

PCC Fund 99-0095-0-0020-clf.b 200,000.00

Optimum Savings 00-8953-06860-9 28,702.53

Total - P1,228,702.53

3) Bank of the Philippine Islands - Cebu (Mango) Branch, Gen. Maxilom Avenue, Cebu City:

Account No. Amount

Gold Savings 1023-2036-49 P1,632,282.59

thus deliberately failed to disclose an important fact of which he has the legal obligation to do so as specifically mandated under Section 8 of Republic Act No. 6713 (The Norms of Conduct and Ethical Standards for Public Officials and Employees) and Section 7 of Republic Act No. 3019, As Amended (The Anti-Graft and Corrupt Practices Act), thereby making untruthful statement in a narration of facts.

CONTRARY TO LAW.[11]

Racho appealed the administrative case and filed a petition for certiorari under Rule 65 with the Court of Appeals to question the ruling in OMB-V-C-02-0240-E. In a Decision[12] dated January 26, 2004, the appellate court annulled both Memoranda and ordered a reinvestigation of the cases against petitioner. Thereafter, petitioner filed a Motion to Dismiss[13] dated July 21, 2004. The same was denied for lack of merit in an Order[14] dated August 24, 2004.

On reinvestigation, petitioner submitted a Comment[15] dated January 4, 2005 along with supporting documents. On January 10, 2005, the OMB issued the assailed Reinvestigation Report, the dispositive portion of which states:

With all the foregoing, undersigned finds no basis to change, modify nor reverse her previous findings that there is probable cause for the crime of FALSIFICATION OF PUBLIC DOCUMENT, defined and penalized under Article 171 of the Revised Penal Code, against respondent Nieto A. Racho for making untruthful statements in a narration of facts in his SALN. As there are additional facts established during the reinvestigation, re: failure of Mr. Racho to reflect his business connections, then the Information filed against him should be amended to include the same. Let this Amended Information be returned to the court for further proceedings.

SO RESOLVED.[16]

Petitioner sought reconsideration but was denied by the OMB in the Joint Order dated April 1, 2005. It decreed:

The Motion for Reconsideration of respondent did not adduce any new evidence, which would warrant a reversal of our findings; neither did it present proof of errors of law or irregularities being committed.

This being so, this Motion for Reconsideration of respondent is hereby DENIED. The findings of this Office as contained in the two (2) REINVESTIGATION REPORTS (in OMB-V-C-02-0240-E and OMB-V-A-02-0214-E) and RESOLUTION (in OMB-C-C-03-0729-L) stand.

SO ORDERED.[17]

In the instant petition, Racho cites the following issues:

I.

WHETHER OR NOT RESPONDENT OMBUDSMAN DIRECTOR, AS WELL AS RESPONDENT DEPUTY OMBUDSMAN FOR THE VISAYAS WHO SANCTIONED HER DEED, COMMITTED GRAVE ABUSE OF DISCRETION EQUIVALENT TO LACK OR IN EXCESS OF JURISDICTION WHEN SHE REFUSED OR FAILED TO INHIBIT HERSELF FROM CONDUCTING THE SUPPOSED REINVESTIGATION;

II.

WHETHER OR NOT HEREIN PETITION[ER] WAS DENIED DUE PROCESS OF LAW IN THE SUPPOSED REINVESTIGATION;

III.

WHETHER OR NOT RESPONDENT OMBUDSMAN DIRECTOR, AS WELL AS RESPONDENT DEPUTY OMBUDSMAN FOR THE VISAYAS WHO SANCTIONED HER DEED, COMMITTED GRAVE ABUSE OF DISCRETION EQUIVALENT TO LACK OR IN EXCESS OF JURISDICTION WHEN SHE HELD THAT PETITIONERS MOTION FOR RECONSIDERATION DID NOT ADDUCE PROOF OF ANY IRREGULARITY IN THE REINVESTIGATION; AND

IV.

WHETHER OR NOT BY REASON OF THIS HONORABLE COURTS INHERENT POWER TO DO ALL THINGS REASONABLY NECESSARY FOR THE ADMINISTRATION OF JUSTICE, EVEN IF NOT PRAYED FOR IN THE INSTANT PETITION, THE SUBJECT OMBUDSMAN CASES OMB-V-C-02-0240-E AND OMB-C-C-03-0729-L CAN BE DISMISSED.[18]

Stated simply, the issues now for determination are as follows: (1) Whether Ombudsman Director Palanca-Santiago gravely abused her discretion when she did not inhibit herself in the reinvestigation; (2) Whether petitioner was denied due process of law on reinvestigation; and (3) Whether there was probable cause to hold petitioner liable for falsification under Article 171(4) of the Revised Penal Code.

Petitioner ascribes grave abuse of discretion on the part of Ombudsman Director Palanca-Santiago since she did not inhibit herself in the reinvestigation. He claims a denial of due process because of the fact that Director Palanca-Santiago handled the preliminary investigation as well as the reinvestigation of the cases. In both instances, the latter found probable cause to indict petitioner for falsification. For this reason, petitioner believes that Director Palanca-Santiago has turned hostile to him. He insists that respondent director had lost the cold neutrality of an impartial judge when she found probable cause against him on preliminary investigation. Petitioner penultimately questions the haste with which the reinvestigation was concluded and the lack of hearing thereon. In essence, he insists on the dismissal of his cases before the OMB.

On November 6, 2006, the OMB thru the Office of the Special Prosecutor (OSP) filed a Memorandum[19] dated October 23, 2006 for respondents. The OSP avers that the instant petition stated no cause of action since it did not implead the Hon. Ombudsman Simeon Marcelo as a respondent. That Director Palanca-Santiago resolved the investigation adverse to petitioner, the OSP contends, did not necessarily indicate partiality. The OSP explains that the Reinvestigation Report was merely recommendatory and the finding of probable cause was done in line with official duty. It points out further that petitioner failed to cite specific acts by which Director Palanca-Santiago showed hostility towards him. Finally, the OSP charges petitioner with forum shopping since he had already raised the issue of respondent directors impartiality in his petition assailing the Memorandum dated May 30, 2003, before the Court of Appeals.

After considering the contentions and submissions of the parties, we are in agreement that the instant petition lacks merit.

The prosecution of offenses committed by public officers is vested primarily in the OMB. For this purpose, the OMB has been given a wide latitude of investigatory and prosecutory powers under the Constitution and Republic Act No. 6770[20] (The Ombudsman Act of 1989). Its discretion is freed from legislative, executive or judicial intervention to ensure that the OMB is insulated from any outside pressure and improper influence.[21] Hence, unless there are good and compelling reasons to do so, the Court will refrain from interfering with the exercise of the Ombudsmans powers, and will respect the initiative and independence inherent in the latter who, beholden to no one, acts as the champion of the people and the guardian of the integrity of the public service.[22]

The Ombudsman is empowered to determine whether there exists reasonable grounds to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.[23] Such finding of probable cause is a finding of fact which is generally not reviewable by this Court.[24] The only ground upon which a plea for review of the OMBs resolution may be entertained is an alleged grave abuse of discretion. By that phrase is meant the capricious and whimsical exercise of judgment equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and so gross as to amount to an evasion of a positive duty; or to a virtual refusal to perform a duty enjoined by law; or to act at all in contemplation of law, as when the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[25]

Considering the facts and circumstances of this case, we find no grave abuse of discretion on the part of respondents. As already well-stated, as long as substantial evidence supports the Ombudsmans ruling, his decision will not be overturned.[26] Here, the finding of the Ombudsman that there was probable cause to

hold petitioner liable for falsification by making untruthful statements in a narration of facts rests on substantial evidence.

The OMB evaluated petitioners Statement of Assets, Liabilities and Networth (SALN) for the year 1999[27] against certified true copies of his bank deposits during the same year. In his SALN, petitioner declared P15,000 cash in bank as of December 31, 1999. The bank certifications of petitioners deposits, however, confirmed that he had an aggregate balance of P5,793,881.39 in his accounts with three banks. Original certifications dated June 17, 1999 issued by the Bank of the Philippine Islands (BPI)[28] and Equitable PCI Bank (Equitable PCIB)[29] revealed accounts for P1,632,282.59 and P1,228,702.53, respectively. A photocopied certification dated June 16, 1999 from Metrobank[30] indicated a deposit of P2,932,896.27.

The OMB did not accord weight to the Joint Affidavit[31] submitted by petitioner. In said Affidavit, Vieto and Dean Racho, petitioners brothers, stated that they entrusted to petitioner P1,390,000 and P1,950,000 respectively. On the other hand, petitioners nephew, Henry Racho, claimed that he delivered the amount of P1,400,000 to petitioner. These sums were purportedly their contribution as stockholders of Angelsons Lending and Investors, Inc. (Angelsons) and Nal Pay Phone Services (NPPS) - businesses managed by the spouses Racho. Ironically, Dean Racho was not listed as a stockholder of the lending company. Moreover, the Articles of Incorporation[32] of Angelsons reflected that Vieto, Henry and the spouses Racho individually paid only P12,500 of the subscribed shares of P50,000 each. Petitioner did not present proofs of succeeding contributions made and their amounts. Curiously, affiants allegedly tendered their additional contributions during family reunions.[33] Neither did the affiants

describe the extent of their interest in NPPS. Petitioner merely presented NPPS Certificate of Registration of Business Name[34] secured by his wife Lourdes B. Racho. Yet, said certificate did not operate as a license to engage in any kind of business, much more a proof of its establishment and operation. Even assuming that said businesses exist, petitioner should have similarly reported his interests therein in his SALN.

Petitioner argues that his culpability should not be ascertained on the basis of photocopied bank certifications. Apparent from the records, however, is the Order[35] dated August 27, 2004 of the OMB which required petitioner to comment on the certified true copies of bank certifications issued by BPI and Equitable PCIB. All the same, even if we exclude his deposit in Metrobank, a significant disparity between his declared cash on hand of P15,000 and cash in bank of P2,860,985.12 subsists when compared to his total bank deposits duly certified for the same year.

Indeed, the determination of probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt.[36] It is enough that it is believed that the act or omission complained of constitutes the offense charged. The trial of a case is conducted precisely for the reception of evidence of the prosecution in support of the charge.[37] A finding of probable cause merely binds the suspect to stand trial. It is not a pronouncement of guilt.[38]

Moreover, we are unable to agree with petitioners contention that he was denied due process when no hearing was conducted on his motion for reinvestigation. In De Ocampo v. Secretary of Justice,[39] we ruled that a clarificatory hearing is not required during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part of the investigating officer as evidenced

by the use of the term may in Section 3(e) of Rule 112, thus:

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine.[40]

This rule applies equally to a motion for reinvestigation. As stated, the Office of the Ombudsman has been granted virtually plenary investigatory powers by the Constitution and by law. As a rule, the Office of the Ombudsman may, for every particular investigation, whether instigated by a complaint or on its own initiative, decide how best to pursue such investigation.[41] In the present case, the OMB found it unnecessary to hold additional clarificatory hearings. Notably, we note that a hearing was conducted during preliminary investigation where petitioner invoked his right to remain silent and confront witnesses who may be presented against him, although there was none presented.

Besides, under the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07), particularly Rule II, Section 7(a),[42] in relation to Section 4(f),[43] a complainants active participation is no longer a matter of right during reinvestigation. Admittedly, technical rules of procedure and evidence are not strictly applied in administrative proceedings. Thus, it is settled that administrative due process cannot be fully equated with due process in its strict judicial sense.[44]

Petitioner complains of how quickly the reinvestigation proceedings were terminated. The OMB issued the Reinvestigation Report

on January 10, 2005, barely a week after petitioner filed his Comment dated January 4, 2005. Thus, the latter surmises that no reinvestigation was actually made. However, a review of the facts would reveal that after the Court of Appeals directed a reinvestigation of the case, the OMB issued an Order dated August 27, 2004 requiring petitioner to submit a comment within 10 days from receipt. The latter failed to comply. On December 1, 2004, petitioner filed a Motion for Extension of Time to File Comment[45] of 30 days; the OMB granted the same for 15 days. OnDecember 17, 2004, petitioner asked for another extension of 30 days reckoned from December 19, 2004 within which to submit a comment; the OMB gave him up to December 28, 2004. On December 28, 2004, petitioner moved for a third extension. Then, without waiting for the OMBs resolution of his latest motion, petitioner filed his Comment on January 4, 2005. But with his repeated motions for extensions, he already contributed to palpable delay in the completion of the reinvestigation.

Clearly, the requirements of due process have been substantially satisfied in the instant case.[46] In its Order[47] dated December 22, 2004, the OMB warned petitioner that no further extension will be given such that if he fails to file a comment on December 28, 2004, the cases against him will be submitted for resolution. Even so, the OMB considered petitioners belatedly-filed Comment and the documents attached therewith in its Reinvestigation Report. In our view, petitioner cannot successfully invoke deprivation of due process in this case, where as a party he was given the chance to be heard, with ample opportunity to present his side.[48]

Equally clear to us, there was no manifest abuse of discretion on the part of Director Palanca-Santiago for her refusal to inhibit herself in the reinvestigation. Even if a preliminary investigation resembles a realistic judicial

appraisal of the merits of the case,[49] public prosecutors could not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged.[50] They are not considered judges, by the nature of their functions, but merely quasi-judicial officers.[51] Worth-stressing, one adverse ruling by itself would not prove bias and prejudice against a party sufficient to disqualify even a judge.[52] Hence, absent proven allegations of specific conduct showing prejudice and hostility, we cannot impute grave abuse of discretion here on respondent director. To ask prosecutors to recuse themselves on reinvestigation upon every unfavorable ruling in a case would cause unwarranted delays in the prosecution of actions.

Finally, we note that petitioner failed to attach a certified true copy of the assailed Resolution in OMB-C-C-03-0729-L in disregard of paragraph 2[53] of Section 1, Rule 65 on certiorari. As previously ruled, the requirement of providing appellate courts with certified true copies of the judgments or final orders that are the subjects of review is indispensable to aid them in resolving whether or not to give due course to petitions. This necessary requirement cannot be perfunctorily ignored, much less violated.[54] In view, however, of the serious matters dealt with in this case, we opted to tackle the substantial merits hereof with least regard to technicalities.

WHEREFORE, the instant petition is DISMISSED for lack of merit. The Regional Trial Court of Cebu City, Branch 8 is hereby ORDERED to proceed with the trial of Criminal Case No. CBU-66458 against petitioner.

Costs against petitioner.

SO ORDERED.

[1] Rollo, pp. 32-37.

[2] Id. at 55-71.

[3] Records, p. 4.

[4] Id. at 41.

[5] Id. at 59-61.

[6] Rollo, pp. 90-97 and 98-105.

[7] Id. at 97.

[8] ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. The penalty of prisin mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:

x x x x

4. Making untruthful statements in a narration of facts;

x x x x

[9] Rollo, pp. 104-105.

[10] The total amount should be five million seven hundred ninety three thousand eight hundred eighty one pesos (P5,793,881.39).

[11] Records, pp. 71-72.

[12] Rollo, pp. 73-79. Penned by Associate Justice Arsenio J. Magpale, with Associate Justices Conrado M. Vasquez, Jr. and Bienvenido L. Reyes concurring.

[13] Records, pp. 82-83.

[14] Id. at 94.

[15] Id. at 110-112.

[16] Rollo, p. 71.

[17] Id. at 36-37.

[18] Id. at 223-224.

[19] Id. at 247-266.

[20] AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES, approved on December 13, 1989.

[21] Presidential Commission on Good Government (PCGG) v. Desierto, G.R. No. 139675, July 21, 2006, 496 SCRA 112, 121.

[22] Id.

[23] Id.

[24] Galario v. Office of the Ombudsman (Mindanao), G.R. No. 166797, July 10, 2007, 527 SCRA 190, 205.

[25] Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322, 337.

[26] Presidential Commission on Good Government (PCGG) v. Desierto, supra note 21, at 122.

[27] Records, p. 12.

[28] Id. at 7.

[29] Id. at 6.

[30] Id. at 5.

[31] Id. at 113-115.

[32] Id. at 117-123.

[33] Id. at 114.

[34] Id. at 133.

[35] Id. at 95.

[36] Galario v. Office of the Ombudsman (Mindanao), supra note 24, at 204.

[37] Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581, 605.

[38] Galario v. Office of the Ombudsman (Mindanao), supra note 36.

[39] G.R. No. 147932, January 25, 2006, 480 SCRA 71.

[40] Id. at 80.

[41] Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495 SCRA 461, 469.

[42] Sec. 7. Motion for reconsideration.

a)       Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the same to be filed within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with corresponding leave of court in cases where the information has already been filed in court. (As amended by Administrative Order No. 15 entitled Re: Amendment of Section 7, Rule II of Administrative Order No. 07, signed by Tanodbayan Aniano A. Desierto on February 16, 2001.)

x x x x

[43] Sec. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

x x x x

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be, conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.

x x x x

[44] Espinosa v. Office of the Ombudsman, G.R. No. 135775, October 19, 2000, 343 SCRA 744, 753.

[45] Records, pp. 96-98.

[46] Filipino v. Macabuhay, G.R. No. 158960, November 24, 2006, 508 SCRA 50, 59.

[47] Records, pp. 100-101.

[48] Filipino v. Macabuhay, supra note 46, at 58.

[49] Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001, 369 SCRA 293, 301.

[50] Gallardo v. People, G.R. No. 142030, April 21, 2005, 456 SCRA 494, 507.

[51] Sales v. Sandiganbayan, supra note 49, at 302.

[52] Republic v. Gingoyon, G.R. No. 166429, December 19, 2005, 478 SCRA 474, 543.

[53] SECTION 1. Petition for certiorari. .

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

[54] Go v. Court of Appeals, G.R. No. 163745, August 24, 2007, 531 SCRA 158, 166.