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    DILG LO No. 01-103S OF 2001-Compressed

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    £7 DEPARAMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominiurn It Eda Cor: Mapagneshal St Diliman, Quezon City DILG OPINION NO.1 S.2001 05 January 2001 MS. CONSTANCIA |. DONES Barangay Captain Sta. Cruz, Sta. Rosa Dear Bgy. Capt. Bones: This has reference to your letter requesting for legal opinion on whether or not a barangay captain may be granted additional incentive allowance as Lupong Tagapamayapa Chairman aside from the regular honorarium he is regularly receiving as barangay captain. In reply thereto, please be informed that Lupon or Pangkat members shall serve without compensation, except as provided for in Section 393 (Sec. 406, RA 7160). Under Section 393 of RA 7160, barangay officials, including barangay tanods and members in the Lupong Tagapamayapa, shall receive honoraria, allowances and such other emoluments as may be authorized by law or barangay, municipal or city ordinance. It may be noted that barangay officials under Local Budget Circular No. 66-A dated 28 August 2000, received compensation in the form of an honorarium which is attached to the performance of the reqular functions of the position for which it is intended. Honorarium is defined by the Supreme Court in the case of Santiago v. Commission on Audit (G.R. No. 92284, 12 July 1991), as something given not as a matter of obligation but in appreciation for services rendered, a voluntary donation in consideration of services which admit of no compensation in money. Being both honorarium, there is no violation of double compensation should the Punong Barangay, while in the performance of their duties as Chairman of the Lupon, be given an honorarium or allowance as Lupon Chairman, provided it must be through an appropriate barangay or municipal ordinance, as required under Section 393 [a] of the Local Government Code. We hope that we have enlightened you on the matter. Very truly yours, A iboo stm vg Secretary isi73fa % REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT. A. Francisco Gold Condominium If Edsa Cor. Mapagmahal St Diliman, Quezon City DILG OPINION NO.2 S.2001 01 February 2001 DIR. CARLITO M. RODAJE DILG Provincial Field Office Sarangani Province Dear Dir. Rodaje: This refers to your letter seeking legal opinion on the vice-mayoralty controversy in the Municipality of Glan, that province. You stated that the proclamation of late Mayor Enrique Yap, St. of ality last 1998 local elections has been the subject of a7 election protest filed by Ms. Flora Benzonan. During the pendency of said exe, Mayor Yap died. Consequently, Vice-Mayor Leoncio Caballero assumed office as mayor and SB Member Venancio Wata (1 ranking) Sesumed office as vice-mayor by virtue of the law on succession. In view of the resultant vacancy in the sanggunian caused by the assumption of SB Member Wata to office as vice-mayor, Ms. Vivien Yap was appointed as Member of the sanggunian. In the meantime, the Regional Trial Court (Branch 38) of Sarangani rendered a decision in the aforesaid election protest cas” in favor of Ms. Flora Benzonan and deciared the proclamation of Mayor Yap null and void. n the basis of said decision, Mrs, Benzonan took her ‘cath of office and assumed as mayor thereat. By reason thereof, successor Mayor Caballero Tem intends to go back to his former position as vicemayor. However. SB Member Wata does not seem interested to relinquish his position 2 ‘successor vice-mayor without 4 see eedes or opinion trom:this Bepartmer™ OF the matter. He contends {fete assumed said office in a permanent capacity. You now pose the following queries, to wit 1. Can successor Mayor Leoncio Caballero go back fo is former position as vice-mayor? ——————————— 2. If $0, can successor Vice-Mayor Venancio Wata also go back to his former position as member of the sanggunian? 3. If in the affirmative, what will happen to the appointment of Ms, Vivien Yap? In reply to your first query, a reiteration of the hereunder common Principles of electoral protests are of great significance. To begin with, the purpose of an election protest is to ascertain whether the candidate Prociaimed elected by the board of canvassers is really the lawful choice of the electorate (De Castro vs. Ginete, G.R. No. 30058, 27 SCRA 623). The determination of who has in fact been elected is a matter clothed with Public interest. For this reason, public policy demands that an election Protest, duly commenced, be not abated by the death of either the protestant or the protestee (Lomugdong vs. Javier, G.R. No. 27535, 21 SCRA 402) or the cessation in office due to the resignation of the protestee (De Mesa vs. Mencias, 16 SCRA 933), Hence, the pendency of an election protest will make the occupant thereto (protestee) only a presumptive winner until the election protest is finally resolved (Camilian vs. Comelec, G.R. No. 124169, 18 April 1997). Relatively, being the presumptive winner, late Mayor Yap was then the lawful occupant of the office pending resolution of the election protest. Consequently, when Mayor Yap died, Vice-Mayor Caballero, being the vice- mayor, shall succeed to the office of the mayor by operation of law. But since the death of Mayor Yap would not result to the termination of the electoral protest, the assumption of Vice-Mayor Caballero, while in the nature of a permanent succession having been made to a vacant higher office due to the demise of its lawful occupant, will always be subject to the ultimate outcome of the election protest. This pronouncement finds support in a Supreme Court ruling which held that upon the death of the Protestee municipal mayor, the vice-mayor who succeeded him by ‘operation of law is the proper party to be substituted as legal representative of the deceased protestee as he is the person most interested in the outcome of the litigation as he will be unseated as mayor if the protest prevails (Silverio vs. Castro, 19 SCRA 520). Corollary to the foregoing, when later on Ms. Benzonan was declared and installed by the court as the duly elected mayor and as a consequence thereof, successor Mayor Caballero was unseated, sense of reason, fairness and equity would dictate that successor Mayor Caballero should be allowed to go back to his position prior to the succession, that is, as vice-mayor. The 332 principle of abandonment should not be made to apply to his case since his succession as mayor was involuntary having been made pursuant to a legal mandate which Is obligatory for reasons of public policy, otherwise, he could have been lawfully charged of dereliction of duty. He should not now be made to suffer for having in fact assumed his duty under the law. In reply to your second query, akin to the reasons given in the foregoing, successor Vice-Mayor Wata should also be allowed to go back to his former position as the number one kagawad of the sangguniang bayan. In reply to your third query, the appointment extended to Ms. Vivien Yap should now be considered as of no more force and effect since the purpose for which the same was issued has already ceased to exist. While the appointment issued was undoubtedly valid, said appointment, however, can be considered to have been issued subject to the outcome of the electoral protest which was then pending at the time of the issuance of said appointment. The vacancy then in the sanggunian was obviously contingent to the outcome of the electoral protest such that when the protestant was declared winner and successors would go back to their Previous positions prior to the succession, no vacancy would exist in the sanggunian which would justify and legalize the appointment. Settled is the rule that appointment shall only be issued to a vacant office. We hope that we have enlightened you on the matter. Very truly yours, poe (Siro 7 Secretary 42 PUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A, Francisco Gold Condominium II Edsa Cor Mapagmahal St Diliman, Quezon City DILG OPINION NO.3 5.2001 31 January 2001 ATTY. MANUEL C. LIM Provincial Legal Officer Provincial Capitol Masbate, Masbate Dear Atty. Lim: This refers to your letter requesting legal opinion on the following queries, to wit: 1. What is the effect of the filing of certificate of candidacy for the position of mayor by Acting Mayor Evangelista on his position as vice mayor? 2. If he is considered resigned upon the start of the campaign period, can he still continue assuming the position of acting mayor? 3. If he cannot continue as acting mayor, who will act as the acting mayor or mayor? You posed your query under the following backdrop: on account of the suspension for six (6) months of Mayor Amado E. Lazaro of San Pascual, Masbate, effective 29 December 2000 by the Sangguniang Panlalawigan in Resolution No. 178, s. 2001, Vice-Mayor Rafael N. Evangelista assumed office as Acting Municipal Mayor on 03 January 2001. Later, Acting Mayor Evangelista filed his certificate of candidacy for the position of mayor. In reply to your first query, please be informed that when Acting Mayor Evangelista filed his certificate of candidacy for the position of municipal mayor, he is deemed resigned upon the start of the campaign period, which as set by Comelec Resolution No. 3322 dated 15 November 2000, is on 30 March 2001. This is so because under the law, any local elective official running for any office other than the one which he/she is holding in a permanent capacity shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running (Sec. 11, RA 8436; DILG Opinion No. 53, s. 1998). The fact that he is the acting mayor will not alter the situation because his holding the office of the mayor as acting mayor is only temporary in character in view of the temporary vacancy of the mayor's office due to the six (6) months suspension of the incumbent mayor. Significantly, for the purpose of determining whether an elective official is resigned or not as a result of his filing a certificate of candidacy for any elective post, the reckoning point is the position or office which the official concerned is holding in a permanent capacity at the time of the filing of the certificate of candidacy (Monroy 2. C.A. and del Rosario, 20 SCRA 620). In reply to the second query, please be informed that upon the start of the campaign period, Vice-Mayor Evangelista is no longer eligible to assume the office of the municipal mayor because he is already deemed resigned by then. Consequently, he would also lose the right to succeed the office of the municipal mayor should a temporary vacancy in the office of the local chief executive occurs (Sec. 46 [a], RA 7160). In reply to the third query, our answer has to be qualified. If the suspended mayor will not run for any office or will file a certificate of candidacy for the same office, he can reassume as mayor upon the expiration of his suspension, but not to go beyond noon of 30 June 2001, which is the expiration of the term of office of all local elective officials. If the suspended mayor, however, should file a certificate of candidacy for another office, then he shall likewise be deemed resigned at the start of the campaign period pursuant to Section 11 of RA 8436. In such case, the highest ranking sangguniang bayan member who will not run for any elective office or will merely seck re-election as sanggunian member shall assume as mayor not only in an acting capacity but in a permanent capacity pursuant to the rule of succession mandated under Sections 44 and 45 of the Local Government Code (RA 7160). It may be stressed further in that regard, that the certificate of candidacy filed by the said sanggunian member who merely sought re- election to the same office shall not be affected by his assumption as mayor pursuant to the rule on succession. This is the doctrine enunciated in the case of Castro v. Gatuslao, G.R. No. 9688, 19 January 1956. We hope that we have guided you accordingly. Very truly yours, nage » ED. UNACAR.. HysSecretary n° Lsi73ta REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTEPTOR AND LOCAL GOVERNMENT A. Francisco Gold Condominiuin Il Edsa Cor, Mapagmahal St., Diliman, Quezon City DILG OPINION NO.5 $.2001 14 February 2001 HON. PRIMO T. MURILLO Provincial Governor Capito! Building Tandag, Surigao del Sur Dear Sir: This pertains to your letter seeking legal opinion on whether the approval given by then President Joseph Estrada exempting the appropriated amount for Intelligence Funds (CY 2001) of that province from the ceiling prescribed under DILG MC No. 99-65 and pertinent DBM Circulars, could still be used as basis for the disbursement of said funds. In reply thereto, please be informed that said authority remains to be valid and enforceable unless modified or abrogated by the incumbent President. This finds basis in law that final actions of administrative officers or bodies within the scope of their authority are binding on their successors (73 C.J.S. 308, citing Lane vs. Watts 34 S. Ct. 968). We hope to have enlightened you on the matter. Very truly yours, 4 Secretary =, isesa REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GO¥ERNMENT A. Francisco Gold Condominium Il Edsa Cor. Mapagmahal St. Diliman, Quezon City BILG OPINION NO.6 S.2001 412 February 2001 ATTY. DANILO P. RUBIO Provincial Attorney Misamis Oriental Provincial Capitol Cagayan de Oro City Dear Atty. Rubio: This pertains to your letter seeking reconsideration of this Department's Opinion No. 118, s. 2000, dated 13 November 2000. It may be recalled that in DILG Opinion No. 118, s. 2000, the Department had the occasion to render an opinion that in a session conducted where all the 14 members of the sanggunian were present, including the vice-governor as presiding officer, a resolution can be validly passed only if approved by a majority of the members present, there being a quorum. For that matter, the majority of 14 members present is obviously 8 members. In this instant letter-request for reconsideration, you maintain that the vote should only be 7 based on the following arguments: You aver that the determination of majority in order to determine a quorum is separate and distinct from the determination of majority of the sanggunian in order for it to pass or approve a legislative measure. To the former issue, we have no disagreement that in a sanggunian of 14 members, including the vice-governor, 8 is the required number of members present to constitute a quorum. To the latter Issue, however, you maintain that in a sanggunian with 14 members, including the vice- governor, conducting a session attended by all of the 14, 7 affirmative votes is sufficient to validly approve a measure as this is equivalent to a simple majority; and that the presiding officer should not be included in the determination of the base number for purposes of computing the majority vote in such case because there is no need to break a tle of the result. Therefore, you assert that in order for the subject Resolution to be passed, only a simple majority is required and definitely 7 affirmative votes is a majority vote against 6 negative votes. With all due respect, we beg to disagree. The law is clear. No ordinance or resolution passed by the sanggunian in a regular or special session duly called for the purpose shall be valid unless approved by a-majority of the members present, there being a quorum (Art. 107 [g], Implementing Rules and Regulations of RA 7160). Considering that in the given situation, 14 members were present, the majority number then required to pass a measure is certainly 8, which Is also the simple majority of those present. That the presiding officer shall not be included in the determination of the base number for purposes of computing and determining whether or not the majority vote is met is untenable because to do so would run contrary to the vivid provision that in order to be valid, a resolution or ordinance must be approved by a majority of the members present (Ibid). Thusly, since the presiding officer is a member of the sanggunian, per the case of Gamboa vs. Aquirre and Araneta (G.R. No. 134213, 20 July 1999) and since during that particular session he was present, he is to be included in the determination of whether or not the simple majority vote was met. Finally, for purposes of clarity, please allow us to discuss the terms “simple majority” as well as “qualified majority”. \n your previous and instant letters, it appears that you wanted to impress upon us that the term “simple majority” Is relevant only insofar as the sanggunian approves an ordinance or resolution. On the other hand, qualified majority is relevant only in determining a quorum. With all due respect, may we hereunder elucidate for academic discussion, the foregoing terminologies and voting requirements required by law. For the sanggunian to officially transact business, there should be a quorum__A quorum is defined by Section 53 of the Local_Government Cade as_referring to the majority of all the members of the sanggunian who have been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the approval of a simple majority of the sanggunian members present, there being a quorum. These pertains to the normal transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On.the other hand, there are certain measures where the Local Government Code requires for its approval the vote of majority of all the members who were duly elected and qualified. This is what we call approval by the qualified majority of the sanggunian. In this case, the approval Is to be voted not just by the majority of those 36 present in a session there being a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless whether all of them were present or not in a particular session, there being a quorum. An example of this, among others, scatteredly found under the Code, is the concurrence to be extended by the sanggunian to appointments of department heads. Hence, in a session attended by 10 members of a 14-member sanggunian, ordinarily, the simple majority here for ordinary transction is the approval of 6 members. However, if the law requires a qualified majority for the approval of a measure, 8 of the 10 members present must vote affirmatively to validly confirm the appointment because 8 is the majority not only of those present but of all the members of the sanggunian. Relatively, if the session is attended by all the 14 members, the votes of 8 members are required to approve even ordinary transactions because obviously, 8 is the simple majority of those 14 members present. We hope that with the foregoing explanation, we have now convinced you that DILG Opinion No. 118, s. 2000, is in order. Very truly yours, po SE D. LINA,SR. 7% Secretary 2,4 Ls:19/La REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium I Edsa Cor. Mapagmabal St., Diliman, Quezon Cit DILG OPINION NO.7 S.2001 February 19, 2001 VICE-MAYOR LAZARO Kalayaan, Palawan Dear Vice-Mayor Del Rio: ‘This pertains to your letter seeking legal opinion on who is the proper countersigning authority of checks drawn by the municipal treasurer for the expenditures of the sangguniang bayan, In reply thereto, please be informed that the Local Government Code. is explicit in providing that all warrants drawn on the municipal treasury for all expenditures appropriated for the operation of the sangguniang bayan are to be signed by the vice mayor (Section 445(a)(1) RA 7160) Corollarily, the third sentence of Sec. 43 of COA Circular No. 92-382 dated July 3, 1992 (Prescribing the Accounting and Auditing Rules and Regulations Implementing the Provisions of the Local Government Code) provides that in the case of expenditures approptiated for the operation of the sanggunian, checks drawn thereon shall be countersigned by the municipal vice mayor. We hope to have enlightened you on the matter. Very truly yours, Arn Secretarycc LS68:Sm REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium II Edsa Cor. Mapagmahal St, Diliman, Quezon City DILG OPTNTON NO.8 S.2001 27 February 2001 MR. LOLITO V. ABENIO Barangay Kagawad Barangay 816, Zone 88 District V, Manila Dear Mr. Abenio: ~> This has reference to your letter requesting for legal opinion. You stated that on 12 October 2000, you executed a letter of resignation as barangay kagawad of that barangay addressed and submitted to Punong Barangay Arturo Lantin, On 18 November 2000, you attended the council session but was informed by the latter that your resignation letler was submitted to the Legal Counsel of the Barangay Bureau then fo the Vice-Mayor of Manila and as such, your resignation was already effective and that you are no longer entitled to your honorarium. Hence, the following queries, to wit: 1. Whether your resignation is valid and effective. 2. Whether you con sill withdraw your resignation. 3. Whether you can no longer participate in the session and not enfiled to your honorarium as barangay kagawad. In reply to your first query, please be informed that resignation by elective barangay officials shall be deemed effective only upon acceptance by the proper accepting authority, in this case, the city mayor (Sec. 82 [a] [4], RA 7160). For resignation to be valid, the same should be submitted to the proper of authorized to accept the resignation (Joson v. Nario, 187 SCRA 453). Therefore, your resignation not having been properly addressed and submitted to the city mayor, did not produce any legal effect. ln reply to your second query, having opined that your resignation -2- addressed and submitted to the Punong Barangay produced no legal force and effect, discussion of its withdrawal is immaterial. In reply to your third query, considering that there was no valid and ‘effective resignation, you can still continue to discharge and perform the duties and functions as member of the Sangguniang Barangay, and thus shall be entiled to your honorarium as such. Sense of fairness and equity would even dictate that you should also be ented to receive the honoraria for the period during which you were prevented from discharging the duties and functions of your office through no fault of your own but by the Sangguniang Barangay’s refusal to recognize you despite having been informed that a query on the mater has already been sent to the DILG, We hope that.we have enlightened you on the matter. Very truly yours, 4 secretary, 1s:56/Lo An. J. Ramos CAT REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Franciseo Gold Condominiuoy HI Edsa Cor Mapapmahal St DILG OPINION NO.10 S.2001 16 February 2001 KAG. FRANCIS FREDERICK P. PALANCA Majority Floor Leader, Sangguniang Panlungsod City Hall, Victorias City Negros Occidental Sir: This has reference to your letter requesting legal opinion relative to the action of the nine (9] members of that sanggunian who voted for the continuation of their regular session of 28 November 2000 at the City Hall Lobby beside the SP session hall after their Presiding Officer unilaterally adjourned the session due to an alleged chaos in the session hall. You further requested to be guided as to the proper course of action to be taken by that august body against the presiding officer. As represented, the Presiding Officer of the Sangguniang Panlungsod of Victorias during your regular session on 28 November 2000 in the SP session hall refused to rule on the motion to adopt the minutes of your previous regular session held on 20 October 2000. Said refusal resulted to a prolonged floor deliberation among the members thereof. The presiding officer then adjourned the session on the ground of alleged chaos. The call for adjournment was objected to but the Presiding Officer succeeded in adjourning the 28 November 2000 regular session inside the SP session hall The nine (9) SP members who believed that the adjournment was invalid, continued their regular session outside the SP session hall but within the building and was adjourned at 12 p.m. of same day. You now inquire as to the validity of said continuation and what action to take against your presiding officer. In resolving the query, we find it imperative to study the pertinent provisions of the Local Government Code and the Internal Rules of that sanggunian pertaining to adjournment. In that regard, our study of the Local Government Code yields nothing with respect to the rules of adjournment of sanggunian sessions as none in that respect is provided therein. However, Section 50 of the same Code authorizes the sanggunian to adopt its own Internal Rules of Procedure treating thereunder any matter of procedure which the sanggunian may deem fit and necessary for the orderly conduct of the session. Since the Local Government Code failed to provide an answer to your query, we shall now examine the Internal Rules of that sanggunian. Relevantly, Section 2, Rule I! of the Internal Rules of that sanggunian provides for the powers and duties of the presiding officer. Among his powers and duties is “to declare the session adjourned to some other date, time incontrollable disorder, public disturbance and other unavoidable circumstance” (a faithful reproduction of paragraph [L], Ibid). It Is thus obvious, that by using his sound discretion, the presiding officer is indeed vested by the Internal Rules the power to declare the session adjourned under certain circumstances. To our mind, however, the exercise of such discretion is not without limits as in fact, the presiding officer can declare adjournment only under the specific instances enumerated. Therefore, the determination of the facts and circumstances surrounding the declaration of adjournment becomes imperative in order to find out whether the presiding officer properly exercised that discretion. In this regard, it may be noted that your query involves a determination of facts and not merely an interpretation of law or rule. Hence, we regret to inform you that this Department cannot render an opinion thereon based on the facts as it is bereft of any adjudicatory power. It is thus suggested that you bring the matter to the proper court, specifically for the determination of the issue as to whether or not the presiding officer gravely abused the exercise of his discretion in declaring the adjournment. On your second query, should there be a finding by the court that there was grave abuse of discretion committed by the presiding officer, as warranted by the attendant circumstances, he may be administratively charged for abuse of authority under paragraph [e], Section 60 of the Local Government Code (RA 7160). We hope that we have enlightened you on the matter. Very truly yours, Ps D. LINAZIR. REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT fold Condominium I Fdsa Cor Mapagmahal St A. Francisca Diliman, Quezon City DILG OPINION NO.11 s.2001 12 February 2001 MESDAMES FATIMA CABANAG and TERESITA R. SOLIS. MESSRS. DARIO MONDIDO and RAMON FERNANDO Sangguniang Barangay Members Bay. Pasong Putik Proper Novaliches, Quezon City Ladies and Gentlemen: This pertains to your letter seeking legal opinion on issues involving the appointment of Ms. Consolacion Camacho as Barangay Treasurer thereat. You stated that Ms. Camacho’s appointment was concurred in by four (4) members of that sanggunian including the punong barangay exercising his right to break a tie. Records show that initially, there were three (3) members who voted in favor of the confirmation of the appointment of Ms. Camacho as against three G) members who opposed said appointment. Thus, the punong barangay exercised his right to break the tie. One (1) sanggunian member, however, later objected to the result of the voting as according to him, he voted against the appointment of Ms. Camacho instead of having abstained therein, Specifically, you raise the following issues, to wit: 1. Is the appointment of Ms. Camacho valid? * When shall the same be deemed effective? 3. May Ms. Camacho claim compensation from the time she was appointed? In reply to your first query, please be informed that we fully concur with the opinion (dated 02 May 2000) of the Quezon City Legal Officer that the appointment of Ms. Camacho appears to be not valid, the same not having been Concurred in by the majority of all the sangguniang barangay members. Section 395 La] of the Local Government Code is explicit in providing that the barangay treasurer shall be appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. Hence, that sanggunian having a total membership of nine (9), said appointment should be concurred in by at least five (5) members thereof. The numerical requirement set forth in Section 395 [a] of the Code is otherwise known as qualified majority. This has to be distinguished from the so-called simple majority which requires only the majority of all the members present constituting quorum, in which case, majority {s one half plus one of those present, there being a quorum. Corollarily, said appointment having failed to meet the required number of votes for its confirmation, discussion on the propriety of the objection of one (1) member of that sanggunian relative to the issue as to whether he abstained or voted against the appointment becomes irrelevant. In reply to your second query, please be informed that an appointment to a public office becomes effective only once it is completed. The Supreme Court, in the case of Corpuz vs. C.A., G.R. No. 123989 dated 26 January 1998, held that where the assent or confirmation of some other offices or body is required, the appointment may be complete only when such assent or confirmation is obtained. Since the appointment of a barangay treasurer requires sanggunian concurrence (Secs. 389 [b] [5] and 395 [a], RA 7160), the appointment of Ms. Camacho would be completed only upon the concurrence by the majority of the members of the sangguniang barangay. In reply to your third query, please be informed that Ms. Camacho may claim compensation on the basis that she could be considered a de facto officer. A de facto officer is one who, while in actual possession of the office, is not holding such in a manner prescribed by law (Trost v. Tynatishon 12 Ill. App 3d 406, 299 NE 2d 14 cited in Black's Law Dictionary, p. 416, 1990 Fd.). In the absence of a de jure officer, the officer de facto is entitled to the salaries prescribed by law for the given office during the period when he actually discharged the functions of said office (Nachura, Antonio. Reviewer in Political Law. pp. 249 1998 Ed.). We hope that we have enlightened you on the matter. Very truly yours, Qrfe c, JOSE D. LINA,AR. MW. Secretat fe isisaita REPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL, A. Francisco Gold Condominium Il Edsa Cor. Map Diliman, Quezon City mahal St DILG OPINION NO.13 S.2001 08 March 2001 MR. EDUARDO M. TADEO, SR. Barangay Kagawad Leleman, Manaoag Pangasinan Dear Kagawad Tadeo: This has reference to your query on whether or not you are entitled to receive the honorarium of the Punong Barangay during the time you performed the functions thereof from March to November 2000. You stated that Punong Barangay Alexander Nitor of Leleman, Manaoag, Pangasinan, was dismissed by the Sangguniang Bayan of Manaoag in an administrative case on March 2000. As a consequence thereof, being the number one kagawad of said barangay, you assumed the position of Punong Barangay thereat. However, an appeal was filed by Punong Barangay Nitor with the Sangguniang Panlalawigan of Pangasinan. On appeal, the Sangguniang Panialawigan affirmed the decision but modified the penalty to four (4) months suspension which ended in November 2000. In reply thereto, please be informed that decisions of a sangguniang bayan or sangguniang panlungsod in administrative cases against an elective barangay official are immediately final and executory (Sec. 61 [c], RA 7160). As such, when Punong Barangay Alexander Nitor of Leleman, Manaoag, Pangasinan, was dismissed by the Sangguniang Bayan of Manaoag, said dismissal became effective immediately. Consequently, permanent vacancy ensued and being the number one kagawad of said barangay, you rightfully assumed the position of the Punong Barangay not only in an acting capacity but in a permanent capacity by operation of law (Sec. 44 [b], RA 7160). This is true despite the appeal filed by Punong Barangay Nitor with the Sangguniang Panlalawigan of Pangasinan because pursuant to Section 68 of the Local Government Code, an appeal shall not prevent a decision from becoming final and executory. However, when on appeal, the Sangguniang Panlalawigan affirmed the decision of the Sangguniang Bayan but modified the penalty to four (4) months suspension which ended in November 2000, from the time said decision has been rendered until Punong Barangay Nitor reassumed office, you were considered to be performing the functions of the punong barangay in an acting capacity. Foregoing considered, we are of the opinion that you are entitled to receive the honorarium of a punong barangay in view of the services you rendered as punong barangay thereat in a permanent as well as in an acting capacity from the time Punong Barangay Nitor was dismissed from the service until the time his dismissal was modified to suspension and again reassumed the Office of the Punong Barangay. Honorarium has been defined as something given not as a matter of obligation but in appreciation for services rendered, a voluntary donation in consideration for services which admit of no compensation in money (Santiago vs. Commission on Audit, 199 SCRA 125). Moreover, as earlier opined by this Department, it is justifiable to grant ‘the honorarium of the Punong Barangay to the person performing the functions thereto even in an acting capacity, otherwise, it would be highly iniquitous to deny him the honorarium due for services actually rendered as Acting Punong Barangay (DILG Opinion No. 66-94, citing Menzon v. Petilla, G.R. No. 90762, 20 May 1991; Castillo v. Arietta, 61 SCRA 55). It is noted, however, that when you assumed as Acting Punong Barangay, you were receiving the honorarium of a barangay kagawad. Consequently, you may only claim the difference between the honorarium of the punong barangay and that of a barangay kagawad. We hope that we have enlightened you on the matter. Very truly yours, cae a On, Ls:85/ta cc: The Barangay Treasurer Barangay Leleman Manaoag, Pangasinan ‘The Regional Director DILG Regional Office No. 01 ‘San Fernando City La Union REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium I Edsa Cor Mapagiahal St ou DILG UPINION NO.15 S.2001 22 March 2001 MS. ADELEEN O’S BEA SK City Federation President City Hall, Mandaluyong Dear Ms. Bea: This refers to your letter seeking legal opinion on the following issues, to wit: 1, Whether or the recall clection held against the SK City Federation officials thereat _on 05 February 2001 after the expira of the 72-hour Temporary Restraining Order issued on OL February 2001 is vali 2. Whether or not the absence of the Chairman of the SK Recall Board of Election Supervisors during the recall election despite notice nullifies the recall clecti 3 Whether or ‘not the proclamation of the newly elected SK City Federation Officers, duly certified to by the majority of the Board at Election Supervisors is valid, In reply to your first query, please be i of the opinion that the recall election was vali done when the lifetime of the temporary restr It should be noted that the effectivity of a extendible and a: lomatically termina need of any judicial dec the Rules of Court). As regards yor cry, please be advised that this Department is ikewise of the view that despite the absence of one of the three members of the SK City Board of Election Supervisors (BES), a recall clection has been a composite body, it can validly conduct majority of the members thereof were Under the foregoing discussion, your third query then would have to be answered affirmatively for as long as the per of winners in an election under the SK Const complied with. tution and By Laws were duly Very truly yours, Sig a SI DAA AY Secretary 4, LS:9/La REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT wahal St A, Franeisen Gold Condominium Il Edsa Cor Mapas: Diliman, Quezon City DILG OPINION NO.16 S.200T 20 March 2001 MR. NORMAN F. SUBIDO Barangay Kagawad Concepcion Dos, Marikina City Dear Kagawad Subido: This refers to your inquiry on whether or not you were deemed resigned as Barangay Kagawad when you filed your certificate of candidacy last 28 February 2001 for the position of Councilor of that city. At the outset, please be informed that Section 67 of the Omnibus Election Code (BP 881), provided that “any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy”. This section was later on modified by Section 11 of Republic Act No. 8436, otherwise known as “An Act Authorizing the Commission on Elections to Use ‘an Automated Election System in the May 11, 1998 National and Local Elections and in Subsequent National and Local Electoral Exercises”, by providing that “sax (A)ny elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running xxx.” Recently, RA 9006, otherwise known as the “Fair Election Act” was enacted and approved by President Gloria Macapagal-Arroyo on 12 February 2001. Section 14 of RA 9006 expressly repealed Section 67 of the Omnibus Election Code and likewise declared the 3" paragraph of Section 11 as aforecited, of RA 8436 to be already ineffective. As such, there is now no law which provides for the resignation of an =2- elective official as a consequence of his filing of certificate of candidacy for another elective position from that which he is holding in a permanent capacity. On 01 March 2001, the Commission on Elections pursuant to its mandate to issue the Implementing Rules and Regulations of RA 9006, promulgated Resolution No, 3636, wherein Section 26 thereof states that: “SEC, 26. Effect of filing of certificate of candidacy by elective officials. Any elective official, whether national or local, who has filed a certificate of candidacy for the same or any other office, shall not be considered resigned from his office.” The foregoing considered, we are of the view that you are not considered resigned when you filed your certificate of candidacy as City Councilor of Marikina City in the forthcoming elections. Consequently, you are still a kagawad of your barangay and in the event that you are unsuccessful in your bid for city councillorship, you can still continue to discharge and perform the duties and functions as barangay kagawad until the expiration of your term as such in the year 2002. If, however, you will be elected as City Councilor, your oath of office and assumption thereto shall cause the abandonment of your position as barangay kagawad. This is the logical conclusion since the positions of City Councilor and Barangay Kagawad are incompatible offices. We hope that we have enlightened you on the matter. Very truly yours, lon SED. LINAAR. 4 Secretary %, LsesiLa REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNM A. Francisco Gold Condominium 1 Edsa Cor Mapagmahal St Diliman, Queron City DILG OPINION NO.17 S.2001 26 March 2001 GOVERNOR TERESITA S. LAZARO Provincial Capitol Santa Cruz, Laguna Dear Governor Lazaro: Recently, we were informed that on 20 March 2001, you appointed Guillermo L. Entredicho as Sangguniang Bayan Member of Cabuyao, Laguna, vice Atty. Rommel Gecolea, by virtue of Pambayang Kapasiyahan Big. 048-2001 which declared that the latter,being an appointive member of the Sangguniang Bayan and havitig filed a certificate of candidacy was considered ipso facto resigned. Please be informed that Sangguniang Bayan Members are chosen by way of election (Sec. 41 [b], RA 7160) and as such, the Sangguniang Bayan Members are holding an elective office However, in case of a permanent vacancy therein, the same is filled up by way of appointment (Sec. 45 [al [2], RA 7160). Such situation, however, does not convert the office of a sangguniang bayan member into an appointive office. While it is admitted that the assumption of Atty. Gecolea, as a member of the Sangguniang Bayan, was by virtue of an appointment. made by the undersigned pursuant to Section 45 [a] [2] of RA 7160, with the foregoing discussion, however, Section 66 of the Omnibus Election Code which states that “any person holding a public appointive office or position xxx shall be considered ipso facto resigned from office upon the filing of his certificate of candidacy”, is not applicable. <2 The applicable law is Comelec Resolution No. 3636 dated’O1 March 2001, wherein Section 26 thereof provides that: “SEC. 26. Effect of filing of certificate of candidacy by elective officials. Any elective official, whether national or local, who has filed a certificate of candidacy for the same or any other office, shall not be considered resigned from his office.” Hence, we are of the view that Councilor Gecolea was not considered resigned when he filed his certificate of candidacy as Municipal Councilor of Cabuyao, Laguna, in the forthcoming elections. As such, he can still continue to discharge and perform the duties and functions thereof until the expiration of his term on 30 June 2001. Foregoing considered, since there is no vacancy in the Sangguniang Bayan concerned, any appointment extended pursuant to Section 45 [a] [2] of RA 7160 to any person is considered void ab initio. Please be guided accordingly. Very truly yours, WR inizon. Secretary LsesiLa ce The Sangguniang Panlalwigan Thruz The Presicing Officer Provincial Capitol Santa Cruz, Laguna The Sangguniang Bayan ‘Thru: The Presiding Officer Cabuyao, Laguna REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL G A. Francisco Gold Condominium II Edsa Cor Mapagmahal St Diliman, Quezon City DILG OPINION NO.17 A S.2001 26 March 2001 ATTY. ROMMEL GECOLEA Municipal Councilor Cabuyao, Laguna Dear Councilor Gecolea: This refers to your inquiry on whether or not you were deemed resigned as Municipal Councilor of Cabuyao, Laguna, when you filed your certificate of candidacy last 28 February 2001 for the same position of Councilor of that municipality. e In reply thereto, please be informed that Sangguniang Bayan Members are chosen by way of election (Sec. 41 [b], RA 7160) and as such, the position of Sangguniang Bayan Member is an elective office. However, in case of a permanent vacancy therein, the same is filled up by appointment (Sec. 45 [a] [2], RA 7160). Such situation, however, does not convert the office of a sangguniang bayan member into an appointive office. While it is admitted that your assumption as a member of the Sangguniang Bayan was by virtue of an appointment made by the undersigned pursuant to Section 45 [a] [2] of RA 7160, with the foregoing discussion, Section 66 of the Ommibus Election Code which states that “any person holding a public appointive office or position xxx shall be considered ipso facto resigned from office upon the filing of his certificate of candidacy”, 1 inapplicable to you. ’ The applicable law is Comelec Resolution No. 3636 dated 01 March 2001, wherein Section 26 thereof provides that: By -2- “SEC. 26. Effect of filing of certificate of candidacy by elective officials. Any elective official, whether national or lecal, who has filed a certificate of candidacy for the same or any other office, shall not be considered resigned from his office.” Hence, we are of the view that you were not considered resigned when you filed your certificate of candidacy as Municipal Councilor of Cabuyao, Laguna, in the forthcoming elections. As such, you can still continue to discharge and perform the duties and functions thereof until the expiration of your term on 30 June 2001, | Foregoing considered, since there is no vacancy in the Sangguniang Bayan concerned, any appointment extended pursuant to Section 45 [a] [2] of RA 7160 to any person is considered void ab initio. | We hope that we have enlightened you on the matter. Very truly yours, eee Secretary a LsesiLa

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