JOINT COUNTER AFFIDAVIT (SB-BOTOLAN) 1

OMB-L-A-14-0575 (NEGLECT OF DUTY)

Republic of the Philippines

OFFICE OF THE OMBUDSMAN
OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON
3rd Floor, Ombudsman Bldg., Agham Road,
Diliman, Quezon City

JOSE A. DUERME,
Complainant,
OMB-L-A-14-0575
-versus- For:
NEGLECT OF DUTY
NICK MANZO, ET., AL.,
Respondents.
x--------------------x

JOINT COUNTER AFFIDAVIT

WE, COUNCILOR ATTY. NOEL S. FERRER, COUNCILOR

MARLO THOMAS D. DOBLE, COUNCILOR GREGORIO D.
JARING and COUNCILOR ARTHUR R. DARIA, all Members of
Sanggunian Bayan, Municipality of Botolan, Zambales and with office
address at Office of the Sanggunian Bayan Members, Municipality of
Botolan, Zambales, after having been duly sworn to in accordance with law,
do hereby depose and state that:

1. We, Councilor Atty. Noel S. Ferrer (COUN. FERRER),

Councilor Marlo Thomas D. Doble (COUN. DOBLE), Councilor
Gregorio D. Jaring (COUN. JARING) and Councilor Arthur R. Daria
(COUN. DARIA) are among the respondents in the OMB-L-A-14-0575
for Neglect of Duty which is now pending preliminary investigation
before this Honorable Office;

2. On 08 August 2014, We received the Order of this Honorable

Office dated 01 August 2014 with the Complaint Affidavit filed by Jose
A. Duerme (COMPLAINANT) and further directing us to file our
Counter Affidavit within Ten (10) days from receipt thereof or until 18
August 2014;

3. We are the duly elected and are currently holding the position
of Members of the Sanggunian Bayan (SB) of the Municipality of
Botolan, Zambales;

4. We specifically and vehemently deny the accusations being

hurled against us by the complainant considering that those are
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OMB-L-A-14-0575 (NEGLECT OF DUTY)

concocted, false, unfounded and malicious, the truth being those

explained hereunder;

5. The accusation of complainant against herein respondents for

Neglect of Duty originated from the following factual circumstances, viz:

5.1. On 10 July 2013 Regular Session of the SB, COUN. JARING and
COUN. DARIA were present while COUN. FERRER and COUN.
DOBLE were absent. In the said session of the SB, SB Secretary
Gladys D. De Vera (DE VERA) indorsed an administrative complaint
against Punong Barangay (PB) Eden D. Fronda (FRONDA) to the SB
for appropriate action;

5.2. And in the same public session, the Presiding Officer (PO) Vice
Mayor Nick L. Manzo ( V.M. MANZO), Councilor Luis D. Tabligan,
Jr. (COUN. TABLIGAN, JR.) and Councilor Anselmo S. Nalicat
(COUN. NALICAT) made some exchanges/discussions and decided
the aforementioned endorsement as follows, viz:

PO: Ano ang masasabi ninyo?

Hon. Tabligan: I-refer na lang ito sa tamang committee tapos kung
anuman ang mapagusapan nila ay i-report sa en banc.
PO: Sa ABC President ba ito o yung committee sa Sanggunian?
Hon. Tabligan: Sa Sangguniang Bayan.
Hon. Nalicat: Nire-refer natin and ganitong kaso sa proper committee.
PO: Pag-usapan natin ito ulit next session kapag nandito na si Attorney. 1

5.3. Yet, thereafter, same complaint was not included in the next
scheduled Public and Regular Session of the SB and it was again
tackled and discussed in public session when complainant again
submit a follow up letter on 22 October 2013.

5.4. Thus, in 22 October 2013 SB Regular Session, DE VERA

indorsed a follow-up letter from complainant against PB FRONDA
and COUN. FERRER, upon knowledge and information for the first
time of said complaint, immediately informed the complainant in that
public session that and to quote “With regards to the complaint of Mr.
Jose Duerme, we cannot act on this because of the election ban. Gusto
niya may hearingagadtayo after election. I move that this be referred
to my committee.”2;

5.5. Subsequently thereafter and after the barangay election on 28

October 2013, complainant made a follow up of the same complaint in
the SB Regular Session dated 05 November 2013. And in the same
1
Page 3 the Minutes of SB Regular Session dated 10 July 2013 and marked as Annex “1”, series of this
Joint Counter Affidavit
2
Page 7 of the Minutes of Regular Session of SB dated 22 October 2013 and marked as Annex “2”, series
of this Joint Affidavit
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OMB-L-A-14-0575 (NEGLECT OF DUTY)

public session PO V. M. MANZO asked COUN. FERRER regarding

said complaint where the latter replied “Ako na po ang bahala doon.”3;

5.6. Thus, immediately after aforementioned public session, We

informed the complainant that PB FRONDA lost in the recently held
barangay election and COUN. FERRER told him that because of that
the administrative case filed by him against PB FRONDA became
moot and academic;

5.7. COUN. FERRER further explained to herein complainant the

consequence of the losing of PB FRONDA in the 28 October 2013
barangay election and told him to instead file a criminal case before
the Office of the Ombudsman against PB FRONDA;

5.8. Still and with strong insistence, complainant demanded the

conduct of the investigation against PB FRONDA and had it
terminated before he stepped down of his office on 31 December 2013.
Again, COUN. FERRER informed complainant that PB FRONDA
would be in his office as PB only until 30 November 2013 and it
would be impossible for us to finish the same investigation,
considering the records involved therein, before the end of November
2013;

5.9. Yet, complainant keep on insisting and we, again, advised

complainant to just lodge his criminal case against PB FRONDA
before the Office of the Ombudsman, so as not to waste his time and
that of the SB. Thereafter, because we had our own separate and
equally important public functions to attend to on that same day, we
left the Municipal Hall of Botolan, Zambales;

5.10. Subsequently, on 08 August 2014, we were surprised to receive

an Order from this Honorable Office to file our counter affidavit in the
above entitled administrative case.

6. Relatively, the disciplinary powers of the Sangguniang Bayan

over its respective Barangay Elective Officials are embodied in Sections
60 and 61 of the Local Government Code of 1991 (R.A. 7160) and are
hereby quoted as follow:
Section 60.Grounds for Disciplinary Actions. - An elective local
official may be disciplined, suspended, or removed from office
on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;

3
Page 7 of the Minutes of Regular Session of SB dated 05 November 2013 and marked as Annex “3”, series
of this Joint Affidavit
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OMB-L-A-14-0575 (NEGLECT OF DUTY)

(d) Commission of any offense involving moral turpitude or

an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniangpanlalawigan, sangguniangpanlungsod,
sangguniangbayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and
other laws.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.

Section 61.Form and Filing of Administrative Complaints. - A

verified complaint against any erring local elective official shall
be prepared as follows:
xxx
(c) A complaint against any elective barangay official shall be
filed before the sangguniangpanlungsod or sangguniangbayan
concerned whose decision shall be final and executory.

7. While the prohibition as to the conduct of investigation in

connection with the foregoing disciplinary action during the election
period is provided in Section 62 (c) of the same R.A. 7160, viz:

Section 62.Notice of hearing. –

xxx
(c) However, no investigation shall be held within ninety (90)
days immediately prior to any local election, and no preventive
suspension shall be imposed within the said period. If
preventive suspension has been imposed prior to the 90-day
period immediately preceding local election, it shall be deemed
automatically lifted upon the start of aforesaid period.

8. Clearly from the foregoing, the complaint was filed and

indorsed before the SB on its 10 July 2013 public/regular session and
thus made known to COUN. JARING and COUN. DARIA while it was
made known to COUN. FERRER and COUN. DOBLE only on 22
October 2013 because they were not present in 10 July 2013
public/regular session.

9. While the local barangay election was held on 28 October 2013

and thus, the complaint was filed within the Ninety (90) day
prohibition/election ban period. Thus, we informed the complainant in an
open and public session that no investigation might be conducted against
PB FRONDA during said 90 – day prohibition/election ban period.
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10. Further, complainant was informed and even advised on what

other possible legal action he could take with regards to his complaint
considering that because of the advent of the 2013 local barangay
election and the lost of PB FRONDA therein, complainant’s
administrative case filed against PB FRONDA became moot and
academic.

11. Evidently from the foregoing facts, herein respondents did not
fail to give proper attention to the complaint and concern of herein
complainant, although their actions might not be what herein complainant
expected or asked for, yet the same was not due to carelessness or
indifference on our part but pursuant to a positive mandate of the law,
rules and jurisprudence.

12. Hence, in the case of Salumbides, et. al., vs. Ombudsman, et.
al., G.R. No. 180917, April 23, 2010 citing the case of Galero v. Court
of Appeals, G.R. No. 151121, July 21, 2008, 559 SCRA 11, the
Supreme Court held and we quote:

“Simple neglect of duty is defined as the failure to give proper

attention to a task expected from an employee resulting from
either carelessness or indifference.” (Underlined Ours)

13. Furthermore, herein respondents, in an open and public session,

were able to give proper attention to the complaint of herein complainant
by informing him that his request for investigation was not yet feasible
and could not be allowed until after the 90 – day prohibition period/
election ban brought about by the local barangay election.

14. And after the expiration of said 90 – day prohibition, as much

as herein respondents would like to investigate the alleged corruption
committed by PB FRONDA, yet they could not do so due to the fact that
PB FRONDA lost in said local barangay election and consequently the
administrative case filed against him automatically became moot and
academic.

15. Yet, respondents, for wanting to be of help to the seemingly

hopeless plight of complainant’s administrative case against PB
FRONDA before the SB, even gave him advice as to the possible
alternative legal action, the filing of criminal case before the Office of the
Ombudsman.

16. Foregoing acts and advices of respondents, specifically COUN.

FERRER, were not only founded on the aforementioned sections of RA
7160 but also on jurisprudence. Thus, in the case of Aguinaldo vs.
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DILG, et., al., G.R. No. 94115 August 21, 1992, the Supreme Court
held and to quote:

“Clear then,the rule is that a public official cannot be removed

for administrative misconduct committed during a prior term,
since his re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the
right to remove him therefor. The foregoing rule, however,
finds no application to  criminal cases pending against
petitioner for acts he may have committed during the failed
coup.” (Underline Supplied)

17. Finally, it is worth mentioning that respondents are just

members of the SB. We are not the Presiding Officer or Head of SB who
is duty bound to act and lead the August Body in a case requiring
collective action or to act as one SB or August Body, just like subject
complaint. Thus, being members thereof, We were able to take proper
action on the concern and complaint of herein complainant.

18. We are executing this JOINT COUNTER AFFIDAVIT to

refute all allegations of the complainant and to prove primarily the total
absence of “probable cause” which would reasonably indict us of said
charges and We humbly pray before this Honorable Office to finally
DISMISS these unfounded charges of Neglect of Duty against us.

IN WITNESS WHEREOF, We have hereunto set our hands this 18 th

day of August 2014 at Iba, Zambales.

COUNCILOR ATTY. NOEL S. FERRER,

Affiant/Respondent

COUNCILOR MARLO THOMAS D. DOBLE

Affiant/Respondent

COUNCILOR GREGORIO D. JARING

Affiant/Respondent

COUNCILOR ARTHUR R. DARIA

Affiant/Respondent
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CERTIFICATION

SUBSCRIBED AND SWORN to before me this 18th day of August

2014 in Iba, Zambales. Further, I hereby certify that I have personally
examined the affiants herein and I am fully convinced and satisfied that they
voluntarily executed and understood of their own personal knowledge and
belief the contents of the same.

Administering Officer

Cc. Jose A. Duerme

Tampo, Botolan, Zambales