,-4?

ts,

Republic of the PhiliPPines

DEPARTMENT OF THE INTERIOR AND TOCAL GOVERNMENT
A. Francisco Gold Condominium ll Bldg, EDSA
corner Mapagmahal St., Diliman, Quezon City

LEGAIT 5ERVIICE
DILG OPTNTON NO- lo0 s- 20lo
' lut{ tlzet
PUNONG BARANGAY LEO C. MOLINA
Barangay Cuintigbasan, Santa Fe
Romblon '

Dear Punong Barangay Molina:

This pertains to your letter seeking the DePartment's legal opinion on the
following and we quote:
,?

"a) ls a Barangay l(agazuatl qlIoTDeLl to resign if she has a pending

crdrninistratiae case in the Sttngguniang Barlan?

b) WIru is rcspotrsiblc lor r'tllouting a Barangay Kagautad Io

res ign?

c) ls tlrcre a penna e t ottclrttcy in tlrc Sanggunian if one of the

Barangay Kagawad resigncd zttith a pending 'ailministrstioe
case?

d) Are the remaining Snngguniang Barangay can hazte a session

eaen if tIrc (5) of the (7) I@gautnd(s) ate suspeniled?"

ln reply to your first and second queries, please be informed that the law
doesnotprohibitanyelectiveofficialtoresignfromofficeevenifhe/shehasa
pending administrative case in the sangguniang Bayan, provided that the
,."quirui,"nt, ,nder Section 82 of the Local Covernment Code had been complied
with, thus:

"SEC. Resigwrtiorr of Electiae Local Officials'- @)

82.
Resignottion by electizte local oflicials slnll be deemed effectiae
only rtpon acceptance by tlrc follozttitrg authotities:

(
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(4) 'l'lrc citrl or ururricilttl uttrryor, iu tlrt, case ol.btrangay oJficials.,,

In addition. we wourd rike to invite your attenton
to the caJe of ortiz v5.
COMELEC (162 SCRA 812). where the Supreme
C"urt aurin"J';&;;";;#;
"act oJ' gizting up or the tct ol ntr ofJ,icar br1 which
hc declincli i,i, )"a
:ltro,trc(s
tlrc fttrt.lrcr
_r.iglLt
to t.ts? it. It is a,, a;tprursio,r of tltc incrrmbcii "|i*'
in ronr"
Io'tL a.\'r',1'ss tr itrrpricd, of thc iutctttiott t. surrcncrer,
renouncc and -" ' -""'tz"J
rerinqti,sh
tlrc oflicc ntLl trrc ncc(ptanca bry cotrrpetL,ut ortd
rawfrtr ou tt,ol:ity;'.--'

case of sanggu-iang Bayen of san Andres, catanduanes

.the vs. court of
Appeali (G'R' No' t883, 16 January tsss), tfre supreme
court herd that,,f,
corrstrttrtc n co,tpretc atd opartriut: rt:si3truri'rr
frotn officc, therc nrttst be: (a)
arr intcrrtiorr to relinqrtish tt
ltnrt o.l' tlrc tci.trr; (lt) in act of relinqrtislnncnt; and lc)
trtr ttcct:lttnrrce bry thc proper arr tlt oril.r1,l.

Moreover, in punzalan vr. Mgndaze (l4O SCRA 153), the Supreme Coun
.held
. .' .
implicit' but no ress crearry, thatlhe effectivity of a puLric oni.iur;,
resignation depends not on such much on its terms,
e.g. ,,effcctiz,te'at the pleasu.re
of'tlre lrrcsidcnt", or ot a pnrl.it:ult.tr tinta or on the lutltpcning
of n piriiruto,
corrtirrg.crrcy,,b t as .t legal proposition, tn ncceptauce'tlteril
authorittl. For qritc obzti.,sly, strclt appropriati authority ,in t y itr" propu
tenns ol tlrc oJfici,l's resign.atiotr, ntrd us ensilry reject
iirugiriii,
it as accept rf ...,;lcited in
Joson vs. Nario lll, 187 SCRA 453).

. ]n view of the foregoing, it is clear that to be a valid resignation, the tender

thereof must be in writing and must be accepted by the pubric
officer authorizeo
Dy raw to accepi the same. In this case, the resignation
of the Barangay Kagawad
(5an6guniang Barangay Member) shal be deemed
effective onry upo-n u.."itun."
by the Municipal Mayor of Santa Fe, Romblon.

As to ihe issue on who is responsible for allowing

a Barangay Kagawad to
resign, please be informed that since the raw doei not provide
for a piohibition
for any elective officiar with pending case to resign, the Municipar
Mayor, who is
authorized by law to accept the said resignation, is not riabre
for ariowing the
Barangay Kagawad, who has a pending case, to resign.
However, the said
Kagawad with pending case, who will reiign from office,
will not be allowed to
receive his benefits pending resolution of his case.

ln reply to your third query, prease be informed that section 44 of the

Local. covernment code provides rhat "u p(,rttutrcnt .)dcaflcy ari.scs uthen
an
clectiztc Iocrrl oflicinl J Is a Itigrrt'r ztncirrt .ffice, rafi.rscs io
assurrte office,
 -.t-
uolutrtuil! rasigls, or is otlrcrzuis.' p(nlttrttcnl incapacitatcd to discharge the
furrctio rts o.f lris o.fJ'ica".

ln reply to your fourth query, please be informed that you have two
options for which to remedy the temporary vacancy in your Sanggunian, to wit:

1. By applying Supreme Court jurisprudence, the remaining

Sangguniang Barangay Members may still transact official
business or conduct session since quorum is effectively reduced as
a result of the suspension of other members. or

2. In order to maintain as much ai possible the widest

representation in the 5angguniang Barangay, to request
HEPCMA or the incoming President of the Philippines to appoint
temporarily five individuals as Members of the Sangguniang
Barangay in view of the power of the President to appoint "d//
otlrcr oJficers of tlrc gottc rrrrrrt'rt t tulnse appointments are not
ltroztidad J'or by laut" (Section 16, Article Vll, l9B7 Constitution).

With regard to the first option, well-settled is the rule that the 5anggunian
shall transact official business only when there is the presence, in a particular
JeJJion, of at least a majority of all the members who have been elected and
qualified. The majority shall constitute the ro-called quorum under Section 53 (a)
of the Local Government Code.

In tie case of Avelino vs. Cuenca (83 Phil. l7), the Supreme Court excluded
a Member of the Senate in the determination of quorum in the sessions of the
Senate since the excluded Senator was in the United States and, therefore, outside
the coercive jurisdiction of the senate. ln effect, ihis situation would effectively
reduce, for the time being, the quorum of the Senate.

Applying this case law in your Jituation, the suspension ordered against the
five Sangguniang Barangay Members would bring the concerned officials outside
the coercive jurisdiction of the Sanggunian found in Section 53 (b) and (c) of the
Local Covernment Code since their suspension would constitute a legal reitriction
for them to discharge their powers, duties and functions- We are of the view,
therefore, that the remaining Sangguniang Barangay Members shall be the basis in
determining your Sanggunian's quorum.

As to the second option, if only to maintain the widest representation in

the Sangguniang Barangay, you may instead submit a written request to the
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President of the philippines to. appoint temporarily

the five regular members
in-voking thereof the power of-the president
oi the nepuotic to appoint ,,arl other
officers of tlrc gozternment utlrcse nppointnrctrts
olu' ,rot proz.tided for by lau,,
('ec' 16' Art' Vt' lggT constitution)-' The vacanry
in your Sangguniang Barangay
isof peculiar nature and no existing statute a;dress this
warrants an extra-ordinary, but legal remedy.
vi-ancy irf,U, ,iri
Hope that we have addressed your concern accordingly.

Very truly yours,

By Authority of the Secretary:

JESUS $ DOQU
Director lll
Legal:f!/La
,6
cc: ) Diector Rolando Calabazaron
DILG Region tV-B
/4r'
Z Santor & Sonj Bld8., Aurora Blvd.
Cubao, Quezon City

The ML6OO
DILG Municipal Field Office
Santa Fe, Romblon