a Creme OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium I EDSA Cor. Mapagmahal St., Diliman Quezon City LEGAL SERVICE DILG Legal Seige iy? HON. DIOSDADO A. CUNANAN First City Councilor Malabon City Dear Councilor Cunanan: This has reference to your 02 March 2012 letter requesting the Department's opinion on whether the highest ranking member of the Sangguniang Panlungsod can immediately take ‘over and perform the functions and duties of the Vice Mayor as a result of the exercise of the powers and performance of the duties and functions of mayor by the Vice-Mayor on account of the indefinite leave of absence of the elected Mayor due to illness. We answer in the affirmative. The exercise of the powers and performance of the duties and functions of the Mayor by the Vice-Mayor during the time when the former is temporarily incapacitated to do the same creates a corresponding temporary vacancy in the latter's office during such contingency which may be paralleled to the case of Gamboa vs. Aguirre (G.R. No. 134213. July 20, 1999), which discusses the effects of vacancy in the office of the Governor, viz.: “Ithas been held that if @ Mayor who i ou ofthe country is considered “efloctvely absent, the Vice Mayor should clscharge the duties of the mayor during the latter's absence. This doctrine should equally epply othe Vice-Governor shoe he is simiary sivated as the Vice-Mayor. Although itis dificult to lay down a defite rule as to what 1, yet this form should be reasonably construed to mean “effective” absence" that is, on concomed powerless, for tho time being, fo discharge the powers and prerogatives of ‘is office." There is no vacaney whonever tho office is occupied by a legally qualified incumbent. A sonsu ontario, tere is vacancy when there Is no person lawfully authorized to assume and exorcise at present the ‘duties of the office/""By virve ofthe foregoing definition, it can be said thatthe designation, appointment or ‘zssumption ofthe Viee-Governor as the Acting Governor creates a corresponding temporary vacancy in the ‘office ofthe Vice uring such contingency. Consideri 2 the mode ‘bf succession provided for permanent vacancies, under the new Code, in the office of the Vce-Governor may [Tkowise bo observed in tho event of temporary vacancy occurring Inthe same office This Is so bocauso inthe 2y0s ofthe law, th office fo which he Was lft barron of a legally qualified person fo oxorcso the tis oe ofceof the Vice- Governor. Being the Acting Governor, the Vie-Goveror cannot continue fo simultaneously exercise the dus of the lator office, since the nature ofthe duties ofthe provincial Governor cal for @ fume occupant fo discharge them! Such is not ony consistent wth but aso appears fo be the clear rationale ofthe new Code wherein te paliy of performing dual function in both fies fas aready been abandoned. To repeat, the creation of a temporary vacancy in the. ‘of the Governor ereates a corresponding vacancy in tho offic of the Viee-Governor whonvor the latter acts as Governor by virtue of such vacancy. This evant consitules an “i ‘onthe part of the reqular presiding officer (Vieo Gove 'SP_sossions, which thus calls for the ration ofthe remedy sot in Ariele 49(5) of tho Local Government Code — concerning the election of @ rary presiding officer. The continuity of the Acting Governor's (Vce-Governor) powers as_presidin officer of the SP is suspended so long as he i in such 1 Under Section 49(5.“ the reqular presiding officer fo preside at the sanggunian session, the stituting@ quorum shall elect from among themselves @ siding officer. [Eimphasis and underscoring, ours] eo CW CAP) 4. Coan, (92-2 I~This now leads to the application of the case of Menzon vs. Petilla (G.R. No. 90762. May 20, 1991), where the Supreme Court ruled that to obviate the dilemma resulting from an interregnum created by the temporary vacancy in the Office of the Vice Governor, there being no provision of law governing the mode of succession in case of a temporary vacancy in said office, the mode of succession for permanent vacancy in the Office of the Vice Governor may be analogously applied. Accordingly, the highest ranking sanggunian member shall now assume temporarily as Acting Vice Mayor. Applying the Menzon case to the case at hand, while the Vice-Mayor is the Acting Mayor, you (as the highest ranking sangguniang panlungsod member) are authorized by law to automatically exercise the powers and perform the duties and functions of the Vice Mayor also in an Acting capacity and no order/authorization from the Department is necessary to make such assumption effective. While acting as Acting Vice Mayor, you can perform all the duties and powers pertaining to the Office of the Vice Mayor. Let it be noted however that the Presiding Officership function is not automatically given to you in view of the ruling of the Supreme Court in the case of Gamboa vs. Aguirre stating that the issue of Presiding Officership in this kind of situation shall be resolved by applying Section 49 (b) of the Local Government Code, in which case, the majority of those present members there being a quorum shall elect from among themselves the temporary Presiding Officer for that session. We hope to have enlightened you on the foregoing. Very truly yours, Director III Bites pero a commun ‘Norbert Blip, #2 East Ave, comer EDSA Barangay Pinyahan, Quezon City cLeoo ‘Malabon city