i ke ue Lace 1 Te Diliman, Qed uo. ? Ls, 296 14, 2009 YOR AMELITA 5. NAVARRO MYLAGG CIEY ® Re 2 Whether or not ie the City Mayor who ts anthoriaed by Faw to ihe struvel of and issue travel orders for the Viceawayor enc ihe Me Sumyguniing Partungsod. Madam : In reply to Your ahove-cafffioned query, please be apprised that, in t exerciss of tha mayor's poweriof general supervision amd cantrel 0% aeevices and activities of the city, it shail only be the Gty Mayer who could authorize official trips of city officials and employees outside of the chy fara pariod not exceeding thirty (30) days, including the corresponding travel orders therefor. This is evident {rom on & (Bh) CY (a) of the Charter of Santiago, City (Ra 7720, se smentod which ply al venteduction of Section 455 (b) (1) Qw) of the Local Governrmast Cora oF T3G1 yea 7%), Since the vicemayor and members of ean seqpiaitt ntungsed eie also city officials, their officigt trips oulside the city at vad. However, taking into accourtt the vica-moyor’s stvtulosy fall warrants drain on the city treasury for all “tod iar the operation @f the sangguniang paniungsod ste G56 fj Uh RA 71}, it's our considered opinion thet ir nggunian members are concefned, the prior recomn lation of the vic jayer may be necessary where the expenses for such clficial travel and chargeable to the sangguniang penlungsod. wis COVE We hope to have guided you accordingly. Very tnily yours, of yr } desi! L Se 4 ho, mR Uuderseetttary y y ce: EIREGTOR MANUEL ¥. BIASON. IG Regional Office Wo. ugierones, Ce Lse JAY B PACSELLA, JR. House. of Reprasentathves Astasang Pambansa Complex Quezon City Alither of can stnultoneonste bef offies = an dd perma edb sogguaiang Barangay sdvised thal the 1 being appointed < et position durir as H covers afi nai, be iL in the career on his erREPUBLIC OF THE PHILIPPINES DEP. STi OF THE INTERIOR AND LOCAL GOVERNMENT <20 Gold Condominium Tf Edsa Cor.3 Diliman, Quezon City OFFICE OF THE SECRETARY i Sa MLS OFT 25.4880 —— 31 January 2000 BGY. CHAIRMAN NORVIC D. SOLIDUM. Bgy. Sun Vicente, San Pedro, Laguna Sir ‘This refers to your request for legal opinion on the following query: in case the proposed creation of seven (7) barangays out of that mother barangay would take effect via a favorable result in a plebiscite, who would become the barangay officials in the newly-created barangays as well as in the mother barangey and how would those offices be filled up? Please be apprised that the Local Govemment Code of 1991 (RA 7160) and lementing rules and regulations fait to yield any specific provision reyarding ‘ihe mode of selecting the new set of elective barangay officials in a newly-created barangay. However, what is specifically provided for under the Coae is the “Beginning of Corporate Existence” of newly-created local government units. Thus, i4 thereoi, as Implemented by Article 14 (8 of its rules and new local government unit is created, its corporaie shall commence upon the election and quaiification of its chief executive and a ty of the bers of its sanggunian, unless some other time is fixed there! aw OF OF ce, creating iL 7 it can thus be inferred fiom the aforectied provision that the mode upcn th barangay officals shall be selected is govemed by the law or oidinance creating such new barangays. in relation the:eio, it is expressly provided“ais for under Section 5 of Provincial Ordinance No. 8, s. 1997 (An O:dinance Approving the Greation of Seven (7) New Barangays as Separate and Dislinct Barangays {rom ts Mother Barangay San Vieenie, San Pedro, Laguna} that an election for the punong barangay and the sangguniang barangay members shall be held, under the supenision of the Ce <, within forly-ive (45) days after the plebiscite raiifying the creation of said ew barangays. Accordir ince the corporate existence of the seven (7) newsy- 3 barangays will begin only upon the election and qualification of the arangay and a majoiily of the Member: of the Sangguniang angey pursuant to Section 14 of the Local Government Code of 1991, the incurabent sei of barangay elective officials of the mother barangay (Bgy, San ~ Vicente) shall still continue in their respective offices unt! such time that the speciai \ ek * have beer in provided for under Section 5 of the aforesaid Provincia! Ordinai n conducted ar shail the aforesaid barangay officials shall have been duly cf until the expiration of their term of office, » whichever comes We hope to have enlightened you on the maiter. yaters,REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condomi Corer Mapagmahal St, LEGAL SERVIER, pinion nowlY s, 2980. 09 February 2000 DIRECTOR RENATO L BRION Planning Service ‘This Department Re: Query on solicitation letter for NCPW Celebration. Dear Dir. Brion: In reply thereto, this level is of the view that your plan to solicit from sponsors to fund the Motorcade and Float Contest is legally permissible. In DOJ Opinions Numbered 5i, s. 1999, and 115, s. 1984, it was ruled that as long as the solicitation activities are not conducted by a public officer in his personal or-private capacity even though arising from or connected with the performance of his official duty; that such solicitation is not prohibited by law; that the solicitation is conducted in the exigencies of public service; and that for as long as the government or its agencies is the direct recipient and beneficiary of a gift, present, share, percentage or benefit, the same cannot come within the purview of the prohibition under Section 47, Chapter 12, Book Iof the 1987 Administrative Code, Section 7 of RA 6713, Code of Conduct and Ethical Standards for Public Officials and Employees, and the Anti-Graft Act which ratiocinated that a public office should not be used by public officers for their personal gain or advantage. In the absence of any prohibition to solicit found in Proclamation No. 461 and considering further that it is the Department which shall directly benefit in the solicitation as it would help defray the cost of the activity, the same is thus legally feasible. It has to be understood, however, that the prospective sponsors from which we may ask financial or material support are not those persons or entities who may have transactions with the Department which may be affected by the functions of our office as it may constitute a violation of the An#i-Graft Law, We hope we have enlightened you on the matter. Very truly yours,DEI NT 04 February 2000 COUNCILOR NELSON O. YAP. Majority Floor Leader Sangguniang Panlungsod Lapu-Lapu- City Dear Councilor Yap This is in response to your query on whether or not Resolution No. 1926-2000 (A Resolution Recalling the Variance and Locational Clearance Earlier issued to Lapu-Lapu Eternal Gardens and Magellan Memorial Park to Construct and Develop a Cemetery) passed by the Sangguniang Panlungsod is subject to the veto power of the local chief executive. In reply thereto, please be apprised that the general power of the local chief executive to veto a legislative measure in its entirety pertains only to ordinances. However, with regard to resolutions, his veto power is governed by Section 55 (b) of the Local Government Code of 1991 which states that he shall have the power to veto “any particular item or items of ...a resolution adopting a local development plan and public investment program”. It can be readily discerned therefrom that the mayor's veto power over resolutions can be exercised only over a particular item or items of local development plans and public investment programs initially formulated and approved by the Local Development Council and adopted by the Sangguniang Panlungsod for legislative authorization. Simply stated, the mayor can only “item veto" resolutions adopting local development plans and public investment programs.Although, Section 55 (c) of the Local Government Code states that the “local chief executive may: veto an ordinance or resolution only ce," the words “ordinance” and “resolution” thereat should be ferpreted or given meaning ‘in. the context that they are used in paragraphs (a) and (b) of the said Section 55. Accordingly, since SP Resolution No. 1926-2000 cannot be considered as the local development plan contemplated under Section 55 (b) of the Code, as the said resolution pertains merely to the issuance of a variance and locational clearance, it is our considered opinion that the same is not within the veto power of the mayor. We hope that you have been clarified on the matter. Very truly yours, Mee Vass UR. Undersecret ce: DIRECTOR ROBERTO P. ABEIERO DILG Regional afce No Vt Cebu Cup ws77 3 Ss x eH * an 1 Say iDEI TENT Diliman, Quezon City KALAYAAN vILG OP isioy wo tes. 2060 January 12, 2000 HON. GAUDENCIO A. MENDOZA, JR. Assistant Executive Secretary for Legal Affairs Office of the President Malacaiang, Manila Dear AES Mendoza, Jr: This is in connection with your letter of indorsement dated January 11, 2000, requesting for appropriate action regarding the conflicting positions taken by Representative Victor R. Sumulong of Antipolo City and Governor Casimiro M. Ynares of Rizal on the issue of whether or not the Province of Rizal is still entitled to share in the real property taxes collected by the City of Anupolo alter the date when the Cityhood of Antipolo was ratified in a pleviscite by a majority of its duly registered voters. At the outset, we would like to inform your good office that 1n view of the conflicting positions respectively taken by Rep. Sumulong and Gov. Ynares, the matter was initially referred to the Oversight Committee for possible resolution Nonetheless, in deference to but without necessarily pre-empting the said Committee, may we just submit our position/opinion thereon In reply to the above-captioned issue, it is our considered view that notwithstanding the cityhood of Antipolo on April 4, 1998, the proceeds from the collection of the real property tax for 1998 should still accrue to the Province of Rizal. This is so because the real property tax for any yeur accrues on the first day of January and from that date, it shall constitute a lien on the property which shall be superior to any other lien (Section 246, Local Government Code of 1991 [RA 7160]. The collection in four (4) installments. does not mean that the City of Antipolo is entitled to the taxes for the third and fourth installments because, as herein stated, the real property tax had already accrued on the first day of January 1998, albeit the same may be collected in four installments. In that regard, distinction has to be made between “ac “time for payment’, the former referring to the tax becoming due or to beg have existence; Hence, the accrual of the tax refers to the time it becomes duc and collectible. Qn the other hand, the time for payment of tux refers to the date when the tax is payable without penalty, beyond which the tax 1s subject to surcharges and penalties for late payment. (Ursal, Local Govermucms Faxenn 1992, p 388)19 Section 232 of the Local Geer 1991 (RA 7160), the real property tax is an imposiile! aby alities within the Metropolitan Manila Arca Cari the municipal ae eee gecrue exclusively to the local government i) veal property tax: for FY 1998 would tus 45h © mitngeity ~ the Province of Rizal under which juris svumicipality of Antipolo belongs. Be that ae it may the pry real property tax, including interests thereon, should be distr? province, municipality and barangay where the real proper ceordance with the sharing provided [or ‘under Section 27! of the Government Code. Corollanly, pursuant t hited amony yo 1ydu and thereaker hid vey and 19 to levy the real property tx for f Antipolo which shall accrue exclusively 1” pehatabuted as follows: seventy percent (70%) to the gener sad unrty percent (30°) to be shared equally among the con Vhrere the property is located (Sec 271, KA TIN) ‘The power belongs to the City-o! wetenst of the We hope to have clarified the matter accor Very tnuly yours DO S. Lim Secretary uhREPUBLIC OF THE PHILIPPINES DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT Francisco Gold Condominium 11 Bldg. Edsa cor, Mapagmahal St., Diliman, Quezon City 07 «2600 February 16, 2000 DIRECTOR ROBERTO C. ABEJERO DILG Regional Office No. Vil Sudion, Lahug, Cebu City Sir: This is in connection with the earlier letter-query of Councilor Nelson O. Yap of the Sangguniang Panlungsod of Lapu-Lapu City on whether or not Resolution No. 1926-2000 1A Resolution Recalling the Variance and Locational Clearance Earlier Issued to Lapu-Lapu Eternal Gardens and Magellan Memorial Park to Construct. and Develop a Cemetery) is subject to the veto power of the local chief executive. In regard thereto, please be informed that in DILG OPINION NO. 05 dated 04 February 2000, this Department had the occasion to delineate the veto power of the mayor by stating that “te mayor’s veto power over resolutions can be exercised only over @ particular item or items of local development plans and public investment programs initially formulated and approved by the Local Development Council and adopted by the Sangguniang Panlungsod for legislative authorization. Simply stated, the mayor can only ‘item veto” resolutions adopting (LDPs) and (PIPs).” Accordingly, we opined therein that SP Resolution No. 1926-2000 is not within the veto power of the mayor since it cannot be considered as the local development plan contemplated under Section 55 (b) of the LGC as the said Resolution pertains merely to the issuance of a variance and locational clearance. This Opinion is, in effect, a modification or further amplification of earlier opinions issued by this Department. Apparently, that Regional Office held a contrary view, briefly discussed in your 3° Indorsement dated February 4, 2000. Hence, Atty. Emigdio S. Tanjuatco, Jr. of the Law Firm Tanjuatco Sta. Maria Tanjuatco has requested us to clarify that Office’s contradictory opinion which, as represented, "might be unscrupulously used without indicating that a higher authority had reversed the same”,“2- We are thus furnishing your end of your official copy of DILG OPINION NO. 05 dated February 4, 2000, hereto attached, for your guidance and ready reference. For clarity and records purposes, the said Opinion shall now be the official stand of this Department and you are thus advised to forthwith conform therewith in order to avoid any further confusion on matters of such concerns. Please be guided accordingly. Very truly yours, 2 emowse cea ‘neo seeee ‘eget tease Oem ancien ase keep er ve lenigocy saan sae {ina eee rave engine ny ‘exon Liege elgeGywy 7 Goorin} fag , Wi Jp tro REPUBLIC OF THE PHILIPPINES r TOR AND LOCAL GOVE! 08 February 2000 MAYOR ROMULO S. RODRIGUEZ JR. Giy Hall, Gingoog City Dear Mayor Rodriguez: This refers lo your query on whether the govenor can already issue an appointment pursuant to Section 45 (b) of RA 7160 bending formal declaration of a permanent vacancy in the Sangguniang Panlungsod occasioned by the incapacity of Sangguniang Panlungsod Member Nicanor U. Magsacay, Please be informed that while the Local Government Code provides that Permanent incapacity to discharge the functions of one’s office, as what may now be the case of Sangguniang Panlungsod Member Nicanor U Magsacay who ts allegedly in a state of coma for six (6) months now, would give rise to permanent vacancy (2"! Paragraph, Section 44 (<), RA 7160), il, however, failed to calegorically stale as to who should determine whether a sanggunian member is permanently incapacitated and Consequently declare the permanent vacangy therein, In view ofthe absence of zn express provision In the Local Goveinment Code, Is submited that the competent authorily to declare permanent vacaney occasioned by @ permanent incapacity of an elective loca official lies within the power of the regular courts invoking the pertinent provisions of the Rules of Court Alematively, we are also of the: view that perhaps the Sangguniang Panlungsod concemed, by invoking Ils authority o adopt its own intemal rules of procedures relative lo ils power 10 ciscipling its thembers and ensure their attendance in sessions (Seclion 50 (05), Local Governmenit Code}, may create a committee which shall delermine the true stalePige 2 of 2 (Roctigues) of plysical and mental health of Sangguniang Panlungsod Member Magsacay. The Teport of sail committee may then be used by the said Sangguniang Panlunasod a basis in declaring whether Sangguniang Pa physically incapacitated or nol as nlungsod Member Magsacay is Thus, sincé in the meantime, there is yetno such formal declaration of physical incapacily so as to give tise to a permanent vacancy in the sanggunian and Considering that the power of appointment of the Sovernor pursuant to Section 45 (b) of the Local Government Code may only be exetcised if there exists permanent vacancy, the Governor cannot as yet issue ary appointment relative thereto, This ig in accord wih seltled jurisprudence that ‘No person‘no matter how qualied and eligible for a certain position, may be appointed to an office which is not yet vacant An appolniment to an office nat vacant is null and void ab init’ (Gayatao v Gil Service Commission, 210 SCRA 183 M992, Morato v: Ce our of Appeals, LI SCRA 42 1196 5)) We hope to have guided you accordingly, Very truly yours, ainkbers iM Secretap(y) AdsIBLIC OF THE PESLIPPINES © ™ DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT Francisco Gold Condominiuen IT EDSA cor. Mapagmahal St. Diliman, Quezon City one npreet ve 8s, x90 25 January 2000 MR. SERAFIN Y. BERNARDINO President, Liga ng mga Barangay Marikina City Dear Mr. Bernardino: This is in response to your query on whether or not a Barangay Chairman who is at the same time the President of the Liga ng mga Barangay is entitled to receive the whole amount of honoraria as a barangay chairman as well as the compensation as ex-officio member of the sangguniang panlungsod; ,and if so, whether he is entitled to the back payment of such honoraria which was suspended last March 1998. You stated in your letter that the local auditor has already rendered a negative opinion on the matter. In that regard, please be informed that this level does not review or revise opinions of the Commission on Audit. Be that as it may, considering that the query involves a local government matter, it is believed that this Department on its own may render its opinion for the guidance and reference of all concerned. In this regard, it is our considered view that you are entitled to the salary of a sangguniang | panlungsod member since you are an ex-officio member thereof (par. [bj, ~4 Section 458, RA 7160). As Punong Barangay, you are also entitled to receive an honoraria from the barangay government which you represent but the same cannot exceed the minimum amount of P1,000.00 provided for in the Local Government Code and Local Budget Circular No. 63 because as Punong/ Barangay and at the same time ex-officio member of the sangguninag panlungsod/ you are not entitled to adjustments that may be authorized in excess of the minimum honoraria (Item 3.5 of Local Budget Circular No. 66 dated 04 March 1998). Regarding your second query, please be advised that since you are rightfully entitled to receive such honoraria, you should be paid such honoraria as long as you have actually rendered services thereto. We hope that we have enlightened you on the matter. Very truly yours, mteice im ome10th Floor, Francisco Gold Condominiur: Bldg. Edsa cor. Mapagmahal St., Diliman, Qu.zon City OFFICE OF THE SECRETARY r DILG OP lois wo tO_s, 290-2 02 March 2000 r VICE MAYOR VICTORIO V, MIRANDA JR Presiding Officer, Sangguniang Panlungsod Santiago City Dear Vice Mayor Miranda This refers to your letter, contesting the propriety of the appointment issued by Governor Benjamin G. Dy in favor of Mr. MIGUEL N. AGUSTIN to fill-up the permanent vacangy In the Sangguniang Panlungsod thereat, alleging that the provincial governor is not the proper appointing authority and that said appointee. does not belong to the same political party as that of the sanggunian member who caused the vacancy, In connection therewith, we would like to invite your attention to the attached a photocopy of the letter dated January 25, 2000 signed by Executive Secretary Ronaldo : 8, Zamora, the pertinent portion of which reads: “It appearing that the governor had the authority to fill the permanent vacancy at the time the appointment was issued, this Office finds no legal objection thereto and the appointment is hereby CONFIRMED” In that regard, please be apprised that an appointment to office is final and complete when the last act of the appointing authority has been accomplished. Al this stage of completion, the appointment cannot be reconsidered and revoked and the appointee becomes entitled to the office. Moreover, the weight of authority holds that an appointment to an office cannot be recalled after the appointing power has once . exercised its functions (22 RCL 423)'and where appointment to office is regarded as | an execullve function, as here, an appointment once made cannot be revoked or cancelled by the appointing executive in the absence of a statutory or constitutional power of removal (Mc Chesney v. Sampson, 23 SW..2d, 584, cited in Aylona vs Castillo, GR, No, L-19313, January 19, 1962). But where the appointment is limited so that only a person having certain prescribed qualifications may be selected, the courtsmay, in an appropriate proceeding, determine whether the one appointed has the requisite. qualifications and, if fs found that he has not, declare his tile to the office void (42 Am. Jur, 985-986). Taking into account the foregoing premises, it Is indubitable that the appointment of Mr. Miguel Agustin had become final and complete, for which reason he had already acquired security of tenure in the said position and could thus be removed thereftom only for any of the causes provided for by law and conformably with the procedure prescribed under the Local Government Code of 1991 and the Rules of Court. Let it be emphasized that the Sangguniang Panlungsod of Santiago City does not at all have the power or discretion to rule on the validity of the appoointment of Mr. Agustin. Neither has the sanggunian any right and authoriy to resolve the matter at ils own instance. This being so, any question on the legalily or illegality of the said appointment would require judicial action. For thal purpose, the proper party or parties may initiate the appropriate proceeding before the proper court in accordance with law and the 1997 Rules on Civil Procedure. For the foregoing reasons and pursuant to the aforesaid letter of the Executive Secretary, the Honorable Members of the Sangguniang Panlungsod of the City of Santiago are hereby enjoined to accord due recognition to the appoinment of Mr, Miguel N. Agustin as the tenth (LOth) Member of the Sangguniang Panlungsod, that «iy, unless and until the proper court in an appropriate proceeding insliluled before iL rules or decides otherwise, Please be guided accordingly. Very truly yours, wane: lim . Secretay GY oa cei MIGUEL AMOR 8. AGUSTIN Sangguniang Parlrigs, Sontioge Gy DIRECTOR MANUEL V. BUASOW PUG Regions! fice Ne Tapiegarse.Cagayn NAYOR AMEUITA & NAVARRO Santiago tyDEPARTMENT OF INTERIOR AND LOCAL GOV;RNMENT 10th Floor, Francisco Gold Condominium Il Bldg. Edsa cor. Mapagmahal St., Diliman, Quezon City OFFICE OF THE SECRETARY 14 February 2000 VICE MAYOR ALAN S. FRAYCO Angono, Rizal Dear Vice Mayor Frayco: This refers to your query as to whether a Vice Mayor can legally continue with his work In a private company as Building Administrator. Please be apprised that Section 90 (b) of the Local Government Code of 1991 (RA 7160) has granted the authority for sanggunian members, including vice mayors, to practice their professions, engage in any occupation or leach in schools, except during session hours, provided, further, that such practice will nol conflict or tend to contlict with the performance of official functions {Section 7 (b)(2), Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713). However, while being authorized by law to practice your profession, itis incumbent upon you to regularly atiend any and-all sessions of the sanggunian, to faithfully perform your duties, functions and responsibilities as an elected public official, and to avoid any conflict of interest We hope to have enlightened you on the matter. Very truly yours, watléos.um Secretapy MME, ye epineniteycoREPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisee Gold Condominium Il Edsa Cor. Mapagmahal St., Diliman, Quezon City bee eri co PAS, 19a 0 March 14, 2000 VICE-MAYOR VICTORIO V. MIRANDA, JR. Presiding Officer, Sangguniang Panlungsod Santiago City Dear Vice-Mayor Miranda: This refers to your letter, requesting for a reconsideration of this Department’s directive/legal opinion dated 02 March 2000, which enjoined the Sangguniang Panlungsod of that city to accord due recognition to the appointment of Mr. Miguel N. Agustin as the 10" Member of that Sangguniang Panlungsod. It is, however, with much regret to inform you that we find no cogent reason to disturb our directive/legal opinion subject of your request for reconsideration. To begin with, may it be noted that this Department never passed upon the issue on the validity or invalidity of the questioned appointment vis-a-vis our previous legal opinions on similar matters. We had merely expressed in our directive/legal opinion of March 2, 2000 that the appointment of Mr. Agustin as Sangguniang Panlungsod Member thereat “had become final and complete”, considering that Executive Secretary Ronaldo B. Zamora, thru his letter dated January 25, 2000, had already confirmed the questioned appointment earlier issued by Governor Benjamin G. Dy. That the Executive Secretary should have instead issued an appointment, and not just a confirmatory letter, is not for this Department to pass upon, not only because it is already a fait accompli but also because prudence and official courtesy dictate that we refrain from questioning the wisdom of the said action.In that regard, please take note that the Office of the Executive Secretary is an auxiliary unit which assists the President and under our constitutional set-up, the Executive Secretary acts for and in behalf of the President and by authority of the President. He has undisputed jurisdiction to affirm, modify or even reverse any order of other cabinet secretaries and where the Executive Secretary acts by authority of the President, his decision is presumed to be that of the President (Laccontagatanes vs. aro, 21 SCRA 805, cited in Echoche ws. Cour of Appaals, GR. No, 22828, June 27, 1991}, Furthermore, may we all be reminded that official acts and declarations issued by a public official in the discharge of his constitutional and statutory powers conferred by the sovereign deserves respect and compliance. Any perceived illegality in the Issuance of said official acts or declarations cannot legally justify any defiance thereof under the pretext of adherence to the rule of law. On the contrary, his perception of illegality notwithstanding, that same basic principle of “rule of law” would even dictate the person aggrieved or affected thereby to resort only to remedies as may be made available to him by law, rules and regulations. Accordingly, any question on the appointment of Mr. Miguel N. Agustin and its subsequent confirmation by the Executive Secretary, has to be threshed out In the proper forum which is the court. Please be guided accordingly. Very truly yours, ce DIRECTOR MANUEL. BIAGON DILG Resional fie No “Tuguegarae, Cageser MAYOR AMELITA 6. NAVARRO Santiaga Cry [DIEUTIVE GECRETARY RONALDO. ZAMORA Office ef the Pride, Malacatiana, MariaDEPARTMENT OF RIOR AND LOCAL GOVERNMENT 10¢h Floor, Francisco Gold Condominium II Bldg, Edsa cor. Mapagmahal St., Diliman, Quezon City OFFICE OF THE SECRETARY DVILG OPINION NO, 14 February 2000 Ree MS. ATADZHAR S. ANNI % Kakuyagan Village, Phase II Jolo, Sulu Dear Ms. Anni: ‘This refers to your request for clarification on Unnumbered DILG Opinion dated 23 April 1992 and DILG Opinion No. 15, s. 1991. At the outset, may it be emphasized that while this Department, as a matter of policy, does not normally interfere with matters within the jurisdiction of the Autonomous Region for Muslim Mindanao (ARMM), we are, however, constrained to act on your request since it involves clarification of opinions previously rendered by the Department In this regard, you wish to be clarified on the phrase ‘Senices she had actually rendered” contained in our Unnumbered DILG Qpinion dated 23 April 1992. Particularly, you asked whelher said phrase would include the period during which a public officer was prevented to discharge the functions of his office through no fault of his own. In reply thereto, please be apprised thal in one case, ‘the Supreme Court held that when.a government official or employee has been illegally dismissed, and his reinstatement has later. on been ordered, for all legal purposes, he is considered as not_having-left_hisoffice (de Guzman v. CSG 231 SCRA 169) Along that line, it was also ruled by the Supreme Court that where it has been sufficiently shown that a public official was wrongfully prevented from entering the office and canying out his duties, then he may recover his salary for the duration that he was thus prevented from assuming his post (Celerian v. Tantuico Jr, GR. No. 72427, 24 September 1990)page 2 of 2 (Armi) Hence, applying analogously these cases to your case, the petiod during which you were barred from performing the duties and functions of a sangguniang bayan member through no fault of your own cannot be considerea ‘as an interruption of your services actually rendered. a As to DILG Opinion No. 15, s. 1991 dated 07 February 1991, please be informed that this has already been superseded by a Supreme Court ruling in the case of Menizon v. Petilla, GR. No, 90762 decided on May 20, 1991 where the Court held that in case of temporary vacancy in the office of the vice mayor, the rule on \ permanent vacancy in the vice mayors office provided for under Section 44 of the Local Government Code of 1991 (RA 7160) shall analogously apply. We hope that we have enlightened you on the matter. Very truly yours, s Secretay ceDEPARTMENT OF INTERIOR # ND LOCAL GOVERNMENT 10th Floor, Francisco Gold Condominium IBIdg, Edsa cor. Mapagmehal St., Diliman, Quezon City | OFFICE OF THE SECRETARY vine opimion Now! _s, 798-2 14 March 2000 MAYOR ARIEL G. DE GUZMAN Mabini, Pangasinan _ Dear Mayor de Guzman: This has reference to your earlier leltér, requesting for guidance as to where that municipality can charge its monthly amortizations payable to the Philippine National Bank (PNB) in connection with a loan secured from the latter for the construction of a public market thereat and its limitations therefor. In reply thereto, that municipality may charge ils monthly amortizations as a capital outlay expense to the general fund. It may, likewise, charge the same to the twenty (20%) percent of the Inlernal Revenue Allotment (IRA) earmarked for local development projects pursuant to Section 287 of the Local Government Code, subject to the guidelines set forth under DILG Memorandum Circular No. 99-66 (Policies and Guidelines on the Utilization of the Tv wenly Percent Development Fund) In addition thereto, il is mandatory under the Code (Section 303 thereof) for that municipality to appropriate in its annual budget sufficient amount to pay its total monthly amortizations, This is, however, subject to the budgelary limilations under Section 324 (a) of the Code that the amount of appropriations for debt servicing shall not exceed twenty (20%) percent of the regular income of that municipality. As to what constitutes regular income, the Supreme Court in one case (Alvarez vs Guingona, 252 SCRA 695) held that It consists of the proceeds from local revenues, IRA and the equitable share in the utilization and developmeni of its national wealth. We hope that we have enlightened you on the matter. Very truly yours, pil,DEPARIMENT OF INTERIOR AND LOCAL GO’ 10th Floor, Francisco Gold Condominium I Bldg. “Bdsa cor. Mapagmahal St, Diliman, Quezon City BARAYAAN OFFICE OF THE SECRETARY se “LG OPINION wo. [4 5.1002 14 March 2000 MR. REYMAR R. MANSILUNGAN 53 Ermin Garcia Street Cubao, Quezon City Dear Mr, Mansilungan: This pertains to your letter dated 17 February 2000, requesting for an opinion on whether or not Resolution No. 126-92 of the Sangguniang Bayan of Mercedes, Camarines Norte, entitled “Resolution Confirming the Prior Concurrence of Teresita Velas as Municipal Assessor” would serve asa resolution of non-concurrence to the appointment of Leoniza T. Dy, and If so, would the veto of the mayor on the said resofution render it ineffective. In reply thereto, please be informed that itis our view that Sangguniang Bayan Resolution No. 126-92 cannot be interpreted to mean as the resolution of non-concurrence to the appointment of Leoniza T. Dy as Municipal Assessor. Under Section 443 (d) of the Code, when the appointment of Leoniza T. Dy was presented to the concerned sanggunian for its concurrence, the same should be acted upon by that sanggunian within fifteen (15) days from the date of its submission. The word “act” here means either expressly concurring or not concurring to the appointment of Leoniza T. Dy, upon determining whether or not the said appointee possesses all the required qualifications and none of the disqualifications for the said office (DILG Opinions Nos. 154, 157,s. 1999). Instead, however, of acting on the said appointment, the sanggunian, through Resolution No. 126-92, confirmed their prior concurrence to Ms. Velas, a person whose appointment is not being presented for their deliberation and action. Such passage of Resolution No. 126-92 being not the “act” contemplated by the aforecited Provision of law, the sanggunian is deemed to have not acted on the said appointment. Your second query need not be answered anymore as the issue is moot and academic. We hope that we have enlightened you on the matter. Very truly yours, AubN RIOR AND LOCAL GOVERNMENT 10th Floor, Francisco Gold Condominium Bldg. Edsa cor. Mapagmahal St., Diliman, Quezon City OFFICE OF THE SECRETARY oiLG eprint wold . 5,798.0 _. 16 March 2000 MR. ROBERTO A. BALONKITA Secretary to the Sangguniang Panlalawigan Bayombong, Nueva Vizcaya Dear Mr. Balonkita: This refers to Resolutions Numbered 99-446 and 99-447 of the Sangguniang Panlalawigan of Nueva Vizcaya respectively requesting for fegal opinion as to whether or not a Sangguniang Panlalawigan Member could be designated by the local chief executive as Officer-in-Charge of his office during his absence and whether or not itis proper to expand the membership of the Local Finance Committee by an Executive Order or any other issuance. In reply thereto, please be informed that under Section 46 (e) of the Local Government Code, ihe governor shall in no case authorize any local official to assume the powers, duties and functions of his office other than the vice governor. However, as an exception thereto, the governor is vested with the power to designate in wrifing another official other than the vice governor as officer-in-charge of his office during his absence provided that such absence does not exceed three (3) consecutive days, thal said absence is by reason of his travel outside his territorial jurisdiction but within the country, and that the written authorization shall specify the powers and functions that the local official as designated shall exercise except the power to appoint, suspend or dismiss employees [par. (0), tbid]. As regards the second queyy, please be advised that the law is very explicit that a local finance committee of a local government unit shall be composed of the local planning and development officer, the local budget officer and the local treasurer (Section 316, RA 7160), ie, three (3) members only. Hence, being a body duly created by law whose membership is likewise provided for and specified therein, the local finance committee cannot be expanded by the mere expedience of an executive fiat. We hope that we have enlightened you on the matter. Very truly yours, wiihcal | i F INTERIOR AND LOCAL GOVERNMENT | 2 , Francisco Gold Condominium II Bldg. | “Edsa cor. Mepagmahal St, Diliman, Quezon City | OFFICE OF THE SECRETARY > vite opwion Noes, 2002. 07 March 2000 VICE MAYOR HERNANI Z. DELOS SANTOS Kapatagan, Lanao del Norte Dear Vice Mayor delos Santos: This refers to IndorsementiReferral No, 011-2000 of that sanggunian, - requesting opinion as to the legality of continuing the implementation of Municipal Ordinance No, 2, s. 1993, entitled “An Ordinance regulating - , Motorcycle/tricycle-for-hire in the Municipality of Kapatagan, Province of -jLanao del Norte; Goveming the issuance of Franchises or Licenses in & accordance with the devolved functions of the Land Transportation Franchising and Regulatory Board (LTFRB) on motorcycles and motorized tricycles under RA 7160 and for other purpose,” in the light of the recent Supreme Court decision on the matter, - In reply thereto, please be informed that the recent Supreme Court decision relative to your query is the case of Land Transportation Office (LTO) v, City of Butuan, G.R. No. 131512, promulgated by its Third Division on 20 January 2000, the dispositive portion of which reads: _ “WHEREFORE, the assailed decision which enjoins the LIO from requiring the due registration of ticycles and a license for the dtiving thereof is REVERSED and SET ASIDE —_ Let coples of this decision be likewise furnished the DILG, the DPWH and the DOTC SO ORDERED.” In the said case, the Supreme Court ruled that “the newly delegated Powers (to the LGUs) pertains to the franchising and regulatory powerstheretofore exercised by the LIFRB and“ nof to the functions of the LTO relative to the registration of motor vehicles and issuance of licenses for the driving thereof. Clearly unaffected by the Local Government Code are the powers of the LTO under RA No. 4136 requiring the registration of all Kinds of motor vehicles ‘used or operated on or upon any public highway’ in the country” * More importantly, the Supreme Court declared that “the power over » hicycles granted under Section 458 (a) (3) (vi) of the Local Government Code to LGUs is the power fo regulate their operation and to grant franchises for the operation thereat” Hence, considering that Municipal Ordinance No. 2, s. 1993, of your municipality merely regulates the operation and provide for the guidelines in the granting of franchises for the operation of motorcycles/tricycles-for hire, we are of the considered view that the same is in harmony with the aforesaid recent Supreme Court ruling on the matter and thus could still be given full force and effect. We hope that we have enlightened you on the matter. Very truly yours, ALI Ss. LIM Secretar ee cc PD FERNANDO M VALDEZ DILG Provincial Office Tebod, Lanao del Norte DIR. BUAGAS B SULAIK DILG Regional Office No. Xi! Cotabato CyT OF INTERIOR AND LOCAL GOVERNMENT 10th Floor, Francisco Gold Condominium IKBldg, Edsa cor. Mapagmahal St,, Diliman, Quezon City BALAYAAN OFFICE OF THE SECRETARY ois opinion xow!7_ 5, 2992 04 April 2000 MR. ANDRES M. DAQUIOAG JR. Sangguniang Bayan Member Sto. Nifio, Cagayan Dear Sir: This has reference to your letter seeking legal opinion as to the required number of sanggunian members to be present in order to constitute a quorum where the actual members of the sanggunian are eleven. In reply thereto, please be informed that the determination of a majority to constitute a quorum may come in two (2) ways, i., (1) that which is fify Percent (50%) plus one of the entire membership, or (2) that which is simply more than one-half of the membership thereof. Either way, however, would give us the same result (DILG Opinion No. 48, s. 1996). This is so because While its true that a mathematical computation in determining the majority of eleven (11) members would yield the result to be 6.5, a fraction cannot be considered as one whole vote since it is physically and legally impossible to Count or divide a person or even his vote into a fractional part (DILG Opinion No. 123, s, 1999). In this regard, if a sanggunian composed of eleven (11) members, including the vice-mayor, the required majority number of sanggunian members who should be present to constitute a quorum to officially transact business shail be six (6) members. We hope that we have enlightened you on the matter. Very truly yours, ‘ xebcor ‘ ALI . LIE Secretary @ dint WeRPUBLIC OF THE APPT . DEPARTMENT OF INTEKIOR AND LOCAL GOVERNMENT 10th Floor, Francisco Gold Condominium Il Bldg. Edsa cor, Mapagmahal St, Diliman, Quezon City BARAYAAN ° OFFICE OF THE SECRETARY ne option NoLZ_s, 199.0 05 April 2000 MR. FRANCISCO T. PEDRAZA and MR. JOSELITG 5. GENECIRAN Sangguniang/PBAC Members Paluan, Occidental Mindoro Gentlemen: ‘This refers to your letter requesting for legal opinion on the manner of conducting the public bidding for the grant of the privilege to gather bangus fry and other species within the territorial waters of that municipality. You state that the municipal waters where the activity of gathering bangus fry and other species will be conducted was divided and classified into zones. You now pose the query on whether the public bidding for the grant of the subject franchise shall be conducted on @ per zone basis or taken collectively as a whole. In reply thereto, may we invite your attention to Section 149 of the Local Government Code \Which provides that in relation tothe grant of fishery privieges, the sangguniang bayan may require a public bidding in conformity with and pursuant to an ordinance for the grant of such privilege. In that regard, while Municipal Ordinance No. 11; s. 1988, as amended by ‘Municipal Ordinance Nos. 1 and 5, s. 1994 and 1998, respectively, entitied “An Ordinance “Regulating Fishing and/or Fisheries in the Municipality of Paluan, Occidental Mindoro and for Other Purposes’, mandated that a public bidding shall be conducted for the purpose of choosing the grantee, it failed, however, to expressly provide whether the same shall be conducted on a per zone basis or taken collectively as a whole. The fact that said ordinance classified the municipal waters into different zones would not necessarily give us the conclusion that the public bidding should be conducted on a per zone basis.an PJ Consequently, in the absence of a clear and categorical pronouncement under the said ordinance, the determination as fo the specie manner by which the public bidding shall be conducted is best left at the sound discretion of the Committee on Auction, acting as a collegial body, taking into consideration other relevant factors that would render the choice most advantageous to that municipality. Among other things, the Committee on Auction may be guided by the provision in the Invitation to Bid dated 18 February 2000 which provides that, for justifable reason, the Committee on Auction reserves the right to reject any or all bids and fo accept such bid that may be considered advantageous to the Municipal Government of Paluan. It bears emphasis that a reservation in the advertisement for bids of the right to reject any bid generally vests in the authorities a wide discretion as to who is the best and most advantageous bidder. The exercise of such discretion involves inquiry, investigation, comparison, deliberation and decision, which are quasi-judicial functions, and when honestly performed, may not be reviewed by the courts. In such cases, there is no binding obligation to award the contract to any bidder and in the exercise of such discretion the award may be made validly to whoever among the participating bidders has submitted the most advantageous bid (Fernandez Jr., Bartolome, A Treatise on Government Contracts under Philippine Law citing Virata v. Booar, 50 SCRA 458]. We hope to have enlightened you on the matter. Very truly yours, aurteeS. Lia f a8REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium If Edsa Cor. Mapagmahal St Difimas, Quezon City 9 April 17, 2000 Mir, GEROLIN E. PIEDAD General Manager Kalayaan Development Cooperative KDC Nationwide Office, Fort Del Pilar St. Luzon Avenue, Quezon City Sir: ‘This refers to your request for clarification on whether DILG Memorandum Circulars Nos. 98-234 (2iporsing And Wortoring Barangay Actions To Prove “The Proliferation OF Squatters in Their Communities, dated December 1, 1998) and 98-202 (Enjaring Al inong Barangays To Adapt Measures Keith To The Prolteration OF Siuatters In Tr Respective Jarod dated Never 3, 1998), ave applicable to private and/or government land. In reply thereto, please be apprised that the aforecited Memorandum Circulars were issued by this Department to remind the concerned local elective officials of their statutorily mandated duty to prevent/curtail the proliferation of squatters in their respective areas of responsibility as provided for under Section 27 of RA 7279, otherwise known as the Urban Development and Housing Act of 1992. Said section mandates local government units, in cooperation with the PNP, the PCUP and the PCUP-accredited urban poor organization in the area, to adopt measures to identify and effectively curtail the nefarious and illegal activities of professional squatters and squatting syndicates. “Professional squatters’ are those individuals or groups who occupy lands without the express consent of the landowner and who have sufficient income for legitimate housing. ‘The term shall also apply to persons who have previously been awarded homelots of housing units by the Government but who sold, leased or transferred the same to settie illegally in the same place or in another urban area, and non-bona fide occupants and intruders of lands reserved for socialized housing but the term shall not apply to individuals or groups who simply rent land anda Bw housing from professional squatters or squatting syndicates (ection 3 [n}. RA ve), In fact, under the last sentence of the Section 27 of RA 7279, it is provided that public officials who tolerate or abet the commission of the acts enumerated thereunder shall be dealt with in accordance with existing laws. It bears stress that the same Act does not distinguish whether the squatting activities are done in private or public land. Hence, the responsibilities of subject local elective officials equally apply whether the land is private or public/government land. We, therefore, answer your query in the affirmative. Very truly yours, abet Secretary O 1s710th Floor, Francisco Gold Condominium II Bldg, Edsa cor. Mapagmahal St., Diliman, Quezon City OFFICE OF THE SECRETARY vILG OPINION KOO $, 299 O_ 07 March 2000 VICE MAYOR TITO S. SARION Daet, Camarines Norte Dear Sir: This has reference to your letter seeking legal opinion and clarification on the following issues, to wit: 1. What undertakings of LGUs are subject to public hearing under the Local Government Code? 2. Who will initiate the public hearing; and ¥ 3. Whether or not contracting of loans by LGUs necessitates public hearing. In reply to the first issue, please be informed that under the Code, prior Public hearings are required where (1) local government site, offices and facilities are to be transferred [par. b and par. c, Sec. 11, RA 7460]; (2) reclassification of agricultural lands [Sec. 20, Ibid]; (3) contribution of funds, real estate, equipment, and other kinds of property and appointment or assignment of personnel in support of undertakings commonly beneficial to local government units which have grouped themselves, consolidated or coordinated their efforts, services and resources [Sec. 33, Ibid; (4) levy of taxes, fees or charges on any base or subject not otherwise specifically enumerated in the Local Government Code or taxed under the NIRC, as amended, or other applicable laws [Sec. 186, Ibid]; and (5) enactment of iocal tax ordinances and revenue measures [Sec. 187, Ibid] {DILG Opinion No. 126, s. 1998}.As regards the second issue, please be apprised that since the enactment of ordinances is a function belonging to the sanggunian, it is incumbent upon said body to initiate public hearings as a requisite for the passage of certain ordinances. However, nothing precludes the local chief executive and the sanggunian concemed to coordinate and consolidate their efforts in initiating the public hearing especially so if the proposed ordinance where public hearing is required is a legislative proposal of the local chief executive. In the conduct of public hearing, you may adopt the procedure of public hearing on proposed tax ordinances found in Art. 277 (b), Implementing Rules and Regulations of the Local Government Code. With regard to the third issue, please be informed that nowhere in Sec. 297 (a) of RA 7160, the specific provisions of the Code empowering an LGU to contract (loans,vcredits and /other forms of indebtedness with any government or domestic private banks and other lending institutions to finance the xxx improvement xxx or maintenance of public facilities, is it required that a public hearing for the purpose must be conducted. What, however, is required by the Code is that the LGU should enter into such contract of loan through the municipal mayor, duly authorized by a majority of all the members of the concerned sangguniang bayan [Sec. 447 (a)(2\{iii), R.A 7160]. We hope that we have enlightened you on the matter. Very truly yours, 2 0 Ss. LIM Secretary @ S85 O17DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT 10th Floor, Francisco Gold Condominium IIBldg. Edsa cor. Mapagmabal St., Diliman, Quezon City 00 Isanarean | OFFICE OF THE SECRETARY vine opinion wow2 | s,909 2 21 March 2000 VICE MAYOR FELICISIMO T. VILLARAZA. Baras, Catanduanes Dear Vice Mayor Villaraza: This refers to your query as to whether the vice mayor, in his capacity as acting municipal mayor, can still preside over the hearing of administrative cases. In reply thereto, please be informed that the vice mayor, while discharging the functions of an acting mayor, cannot continue to preside over hearings of administrative cases filed before the sanggunian because, pursuant fo Sections 46 (a) and 445 (a) of the Local Government Code, the municipal vice mayor is mandated to exercise the powers and perform - the duties, functions and responsibilities of the mayor in case of temporary vacancy in the laters office. Relevant to this query is the pronouncement of the Supreme Court in Gamboa vs. Aguirre (GR. No. 134213, July 20, 1999) wherein it was ~ held that the vice governor, in his capacity as Acting Governor, cannot continue to simultaneously exercise the duties of the Vice Governor's office a since the nature of the duties of the governor calls for a full-time occupant fo discharge them, Such is not only consistent with but appears to be the clear rationale of the new Local Government Code wherein the policy of performing dual function in both offices has already been abandoned when the new Code did not anymore make the Governor the presiding officer of the sangguniang panlalawigan. We hope that we have enlightened you on the mater, Very truly yours,“1898 DEPA RS = bt -ranrcrsco COW COMTOMIMIUN TT BTEE. FICE OF THE SECRETARY SHIEH 0) VILG OPINION NOWZ2Z_s, 24 March 2000 Ms. ALICIA R. BENZON Punong Barangay, Boy. Merville Daly Road, South Admiral Village Merville, Paraftaque City Dear Madam: This refers to your request for legal opinion on the following queries: ) With respect tothe appointment of the barangay secretary and barangay treasurer, which should prevail between Section 389 (b) (6) and Sections 394 (a) & 395 (a) ofthe Local Government Code of 1994? a b) When shall the appointment of the barangay secretary and treasurer be effective? With respect to your fist query, it seems that what appears to you to be conflicting are the phraseologies used in the aforecited sections of the Local Government Code of 1991, Section 389 (b) (5) provides that "Upon approval by the majority of all the members of the sangguniang barangay, the punong barangay shall appoint the barangay treasurer, the barangay secretary xxx." On the other hand, Sections 394 (a) of the Code provides that “The barangay secretary shall be appointed by the punong barangay with the concurrence of the ‘major ofall the sengguniang barangay members.” Section 395 (a) of the Code, pertaining to the barangay treasurer, provides similarly. In this connection, we are of the considered view that the supposed conflict is more imaginary than real. “Concurrence” has been defined as fo approve, affirm or consent [Webster's Third International Dictionary, p. 472]. On the other hand, “approval” has also been defined as to confirm, ratify, sanction or consent to some act or thing done by another [De Jesus vs, Daza, 77 Phil. 152]. Taking cue from these definitions, itis only logical to conclude thal the appointment process under the aforecited sections of the Code involves two stages The first stage pertains to the issuance by the punong barangay of the appointment of the 98 ~" OO Edsa cor. Mapagmahal St, Diliman, Quezon Citybarangay secretary and barangay treasurer and the second stage is the submission of such appointment papers to the sangguniang barangay for its concurrence or approval. Clearly, the punong barangay must first perform an operative act (issuance of the appointment) to which the sangguniang barangay wil signify its concurrence or approval, unless it disapproves. There is therefore no legal significance in the use of the words *approval" and “concurrence” in the aforecited sections. Anent your second query, please be informed that the appointment of the barangay secretary and barangay treasurer shall become complete only upon the concurrence or approval by a majority ofall the members of the sangguniang barangay, considering the well- settled rule that where the assent or confirmation of some other officer or body is required, the appointment may be complete only when such assent or confirmation is obtained [Mechem, Law of Public Office and Officers, Sec. 112; cited in Corpuz vs. Court of Appeals, 285 SCRA 23 (1998) and Mitra vs. Subido, 21 SCRA 127, 140 (1267)]. The effectivity thereof should not, however, be understood that the said appointive barangay officials cannot immediately assume their respective offices and perform the duties, responsibliies and functions pertaining thereto right after the issuance of their appointment. It should be noted that, unlike the appointment of department heads in the municipal, city and provincial governments, the Local Government Code does not specify a prescriptive period within which the sangguniang barangay has to act on the appointment of the barangay secretary and barangay treasurer, otherwise thereafter, itis deemed approved and effective. It may then be inferred that Congress did not intend to leave the barangay government without a barangay secretary and treasurer while their appointment are yet under consideration by the sangguniang barangay since that would result to a hiatus and paralysis in the delivery of basic services and facilities in the barangay, taking into account the nature of the functions of these appointive barangay officials. In the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no coger reason why we should prevent the immediate assumption to office of the barangay secretary and barangay treasurer upon the issuance of their respective appointment, without prejudice to the possible disapproval or non-concurrence thereto by the sangguniang barangay. We hope that we have clarified the matter accordingly. Very truly yours, cheles uM Seer ym, 9 co THE SANGGUNIANG BARANGAY MEMBERS Barangay Mev, Daly Roed South Adie! Vilege, Merdii, Parafiaque City DIRECTOR SFRAFIN M BENALDObin Tog. Gpasen [ft og [ylanenes / REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A, Franciseo Gold Condominium 1 Cor: Mapagmahal St., Diliman, Quezon City OILG OPINION NO. 23s, ao. April 27, 2000 The HONORABLE MEMBERS: of the SENGGUNIANG BAYAN @iunicipal Hail, Castillejos, Zambales ‘e ne’ CORDS lies Thru: VICE-MAYOR WILMA D. BLA es e™ Gentlemen and Ladies : This refers to your Joint-Letter, requesting for assistance in the installation of Vice-Mayor Wilma D. Billman and Councilor Reynaldo V. Misa as Acting Mayor and Acting Vice-Mayor, respectively, of that municipality in view of the Decision dated April 3, 2000 of the Sangguniang Panlalawigan of Zambales in Administrative Case No. 99- 01 to 99-04, imposing upon respondent, Mayor Teofilo G. Pantaleon, 3r., the penalty of suspension from office “for a period of two (2) months for each of the herein offenses or for a total of eight (8) months”. It appears from the records that a copy of the aforesaid Decision was immediately served, by personal service, to Mayor Pantaleon on April 3, 2000 and acknowledged to have been received by a certain Eric Joseph Pantaleon on even date, as evidenced by the Affidavit of Service of the designated Messenger of the Sangguniang Panlalawigan and the letter of transmittal of the Secretary to the Sangguniang Panlalawigan of Zambales. In that regard, please be apprised that Section 66 (a) of the Local Government Code of 1991 makes it mandatory that “copies of the decision [of the sangguniang panlalawigan) shail immediately be furnished to respondent and all interested parties”. It is, therefore, the Sangguniang Panlalawigan’s duty to serve it upon the parties without unnecessary delay (Reyes ve. Conder and Ds Casta, 254 ockA sia). This duty of the Sangguniang Panlalawigan even includes its obligation to ensure that its decision is duly complied with. It may even be noted that if a judgment or decision is not delivered to a party for reasons attributable to’ him, service is deemed completed and the judgment or decision will be considered validly served as" long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel’s refusal to receive it. The purpose of the rules on service is to make sure thatthe party being served with the pleading. order or judgmentMg = DILG Provincial Office is duly informed of the same so that he can take steps to protect his interests, i.e., enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final (Reyes va. comeles & De Ceoto, supe), Even assuming that respondent mayor timely files an appeal from the Decision of the Sangguniang Panlalawigan within the thirty (30) days from receipt of a copy of said decision, Section 68 of the Code is clear in providing that an appeal shall not prevent a decision from becoming final or executory, and the respondent shail be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. Based on the foregoing premises, this Department finds that, since the SP Decision has already been validly served to respondent Mayor Pantaleon, there is thus no legal impediment to the assumption to office of Vice-Mayor Billman and Councilor Misa as Acting Mayor and Acting Vice-Mayor, respectively, during the temporary legal incapacity of the municipal mayor thereat. Said temporary legal incapacity shall, however, terminate upon submission to the sangguniang bayan of a written declaration by the municipal mayor that he has reported back to office, together with the submission of the necessary documents showing that said legal cause no longer exists (o.. 46 (}}.169. Let copy of this Opinion be furnished the Sangguniang Panlalawigan of Zambales for their guidance. Please be guided accordingly. Very truly yours, d {Vice GOVERNOR CHERYL P. DELOSO AND THE ie p Vebe Ply yaa NOQUNUANG PanuaLatTTOAN REAEBERS a] acti een a a Sant i ~ DIRECTOR RODOLFO S, FuRAREN amaulit> s]y ~ Dis tagonet opps Wott ‘San Fernando, Pampanga by C= Cem rammeus nse or Iba, Zambales * c sANAGER “Land Bank of the Prlippines Olongapo CityREPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condominium Il Edsa Cor. Mapagmahal St,, Diliman, Quezon City DILG OPINION NO. 24, s. 2000 April 17, 2000 GOVERNOR ANTONIO P. CALINGIN Province of Misamis Oriental Provincial Capitol, Cagayan de Oro City VICE-GOVERNOR DANILO P. LAGBAS and BOARD MEMBER CROMWELL G. GENERALAO Sangguniang Panlalawigan of Misamis Oriental Provincial Capitol, Cagayan de Oro City Gentlemen: This refers to your respective request for legal opinion, which we have herein consolidated as they refer to the same following issues, to wit: J. Whether or not the Notice of Special Session called by only seven (7) of the total fourteen (14) Sangguniang Panlalawigan Members is valid. If in the negative, will the voluntary attendance and presence of all the sangguniang panlalawigan members on the date and time specified in said. Notice be considered as a waiver on the part of the sanggunian of whatever defect that may have attende: such call for a special session? 2. Whether the session held and attended by eight (8) SP Members at four thirty (4:30) o'clock in the afternoon of March 10, 2000, after the earlier scheduled 2:00PM special session was adjourned, was valid.Eee 3. Whether the session referred to in the immediately preceding paragraph could be considered as the second SP session of the same day. Is the said 4:30 pm session held at the office of one of the SP Members valid? 4. Whether or not the Ordinance purportedly approved on second reading during the aforesaid 4:30pm session held at the office of one of the SP Members, is valid. 5. Is the three-reading requirement under the Internal Rules of Procedure of the Sangguniang Panlalawigan of Misamis Oriental necessary in the enactment of the proposed Ordinance No. 220-2000? In reply to your first query, please be apprised that Section 52 (b) of the Local Government Code of 1991 (ea\7i60) mandates that when public interest so demands, special sessions may be called either by the local chief executive(or by a majority of the members of the sanggunian. In determining what constitutes a majority of the sanggunian, its entire composition should be reckoned with and that includes the vice-governor as presiding officer since he is included in the enumeration as to who composes the said legislative body. As a matter of fact, in the case of GAMBOA VS. AGUIRRE AND ARANETA (6. 8. No. 134213, July 20, 1999), the Supreme Court recognized the membership of the vice-governor in the sangguniang panlalawigan. Hence, given the entire membership of the Sangguniang Panlalawigan of Misamis Oriental, which is composed of a total of fourteen (14) members, including the Vice-Governor, a special session may only be validly called by at least eight (8) members which is the majority of a 14-member sanggunian. However, the defect that may have attended in the call for such special session, i.e., only seven sanggunian members called for a special session, was cured and/or waived by the other members of the sanggunian when all of its members voluntarily appeared and participated in the deliberations held on the date and time specified in the Notice. In answer to your second and third queries, Section 52 (c) of the Code is categorically clear in providing that “no two (2) sessions, regular or special, may be held in a single day”. It must be emphasized that an adjournment is the time when a meeting or session is closed andterminated. Accordingly, when the special session originally called and held at 2:00 o'clock in the afternoon was later on adjourned, a second special session at 4:30 o’clock in the afternoon of the same day cannot anymore be legally conducted in view of the proscription provided for under RA 7160. Relatively, a special session should not be conducted in a place other than that specified in the resolution passed pursuant to Section 52 (a) of the Code providing for the day, time and place of its regular session, Precisely, under Article 105 (2) of the Rules and Regulations Implementing the Local Government Code of 1991, the written notice shall contain only the date, time and purpose of the special session. The place need not be provided for therein because the same should be that where the session of the sanggunian is regularly conducted as provided for in the Internal Rules of that legislative body. With regard to your fourth query, the legality and validity of the ordinance purportedly approved on second reading after the special session called was earlier adjourned is highly questionable considering that, as we have hereinabove stated, the sanggunian cannot conduct two special sessions in a single day. Further, as a collegial body, the sangguniang panlalawigan must not act separately but collectively as a duly organized legislative body. Hence, where eight members of that sanggunian proceeded to hold a second special session on the same day after the one earlier called was adjourned, their act or any legislative measure passed during their so-called special session will not in any bind the sangguniang panlalawigan as a legislative body as the same was conducted in violation of the clear and unmistakable language of Section 52 (c) of the Local Government Code. With regard to your fifth query, please be apprised that the procedural requirements in the passage of local legislative measures has to be governed primarily by the Local Government Code of 1991 and its implementing rules and procedures and secondly, by the internal rules of procedure adopted by the sanggunian pursuant to Section 50 of the said Code. It bears emphasis to state that the sanggunian’s internal rules of procedure do not have the imprints of permanence and obligatoriness during their effectivity since it does not have the force of law but are merely in the nature of by-laws designed for the orderly and convenient conduct of proceedings. They may even be waived or disregarded upon the concurrence of the majority of the members adopting them (Santiago & Tatad versus Guingona & Fernan, supra.; Arroyo us. De Venecia, G. R. No, 12755, June 26, 1998).But while inférfial rules are generally waivable by the sanggunian, the rules provided for by the Constitution or statutes are non-waivable. Thus, unless the Constitution or the statute is violated, the court will not interfere therewith and a legislative act will not be declared invalid if the violation in the cnactment of a legislative measure were simply for non- compliance with the internal rules, rather than any constitutional or statutory requirement (Santiago & Tatad us. Guingona & Feman, GR. No. 134577, November 18, 1998). Accordingly, the three-reading requirement in the passage of an ordinance is not, however, merely provided for in your sanggunian’s internal rules but is even an indispensable requirement. This can be discerned from a closer examination of Article 107 (c) of the Rules and Regulations Implementing the Local Government Code af 1991 which partly provides that “a resolution shall be enacted in the same manner prescribed for an ordinance, except that it need not go through a third reading for its final consideration®. In one case, the Supreme Court farther ruled that a third readirig is necessary for an ordinance but not for a resolution unless decided otherwise by a ‘majority of all the sanggunian members (Municipality of Paranaque vs. V. M. Realty Corporation, G. R. Ko. 127820, July 20, 1998). - We hope to have enlightened you on the matter. Very truly yours, autdosum Secretary 0 “4 ce: rescror RopoLe 2. azn De Regma opie Ro X Upper Carmen, Cagayan de Oro Cty ier bp-00 1503,_. for] F3 ‘ faim [fs Oe arti ya ae 1000 April 3, 2000 Air, SENEN S, RAZAL, Virae, Catanduanes Dear Mr. Razal : This has reference to your letter seeking our legal opinion ‘oir tha’ following issues, to wit: 1. Whether or not prior approval from the Sangguniang Panlalawigan is still required for consultancy contract entered into by the Governor with another person considering that Article 168 of the Implementing Rules and Regulations of the Local Government Code of 1991, referring to contractual appointments, does not so expressly require? 2, May the Sangguniang Panlalawigan assail the validity of said consultancy contract? 3. Who should shoulder the compensation of said consultant? In reply to your first query, please be informed that a contractual appointment is not the same as a consultancy contract. The former is governed by Section 2 (e), Rule 11 of CSc Memorandum Circular No. 40, 5. 1998 (omnitus Rules on Appointmente and Other Personnel Actions), a , While the latter is governed by Section 1, Rule XI of the same Omnibus Rules as a contract of services. Article 168 of the Implementing Rules and Regulations of the Local Government Code refers to contractual appointments in local government units covered under Section 2 (e), Rule I of the Omnibus Rules.Accordingly, being a Contract of Services, Such Services rendered Pursuant to a consultancy Contract is not Considered as 90Vvernment Service because no nutbloyer-employag relationship exists therein, eat 7 Therefore, IN Ordinary Tact, it shout With the usual rigor Prescribe, by the faw that NO coni; d into hy e local chi ’xeCutive ji behalf of the K 90Vernment unit without the prior authorization by the Sanggunian ned ¢; [61 RA neo), laving ntey to fthout ‘quisite 99unian authorizatio, » the herein tract, under the law, j Unenforeceable Contract whic cannot Orced ang Prod e et e en lu 10 as of unless ang Until it is Fatified by the Sangguniang Panlalawigan Articie 1903 07, New Cui Code oF the Phitppines), With respect to your secong query, since the saig consultancy Contract would Consequentiy bind the Provincia! Sovernment as it would entail ©xpenses for the Payment of the Consideration Of the Contract, thus creating 3 Nabllity ‘on the part of the Province, the @Ngguniang Panlalawigan May, therefore, assail the Validity of Said consultancy contract, it being a Proper ang interesteg Party thereon, Anent Your third query, Considering that the Local Government Code Fequires the Prior Suthorization Of the Sangguniang Pantalawigan before the Provincial govemor Enters into any Contract, the non- conformity with the Said Tequirement set by jaw Would render the Consultancy Contract unenforceable, Hence, any liability arising thereunder would Merely be a Personal lability Of the 90Vernor, We hope to have enlighteneq YOu on the Matter, Very truty Yours, 2 ant - wy OF iRecrOR Joseriva cASTUA NG Renal Ofce in Leaacpt Cy (Siena h Moke hry Ur. attachesREPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium 0 Edsa Cor Mapagmahal St, Diliman, Quezan City OTLG OPINION NOW24_S,2062_ April 17, 2000 ATTY. FAUSTINO S. TUGADE, JR. Wl Mabuhay St, Central District Diliman, Quezon City sar: This refers to your request for legal opinion on whether or not the Municipal Mayor can lawfully transfer or assign the duties and responsibilities of the Municipal Engineer to the Municipal Planning and Development Coordinator. In reply thereto, please be apprised that the powers and duties of appointive local government officials/department heads are clearly defined under the Local Government Code of 1991 (RA 7160) and each of whom are allocated their respective area of responsibility. In addition thereto, they may exercise “such other powers and perform such other duties and functions as may be prescribed by law or ordinance”. Thus, their exercise and performance of additional powers, duties and functions must be prescribed and/or imposed upon them by /aw or ordinance, In that regard, considering that the ordinance-making power is vested in the sanaguniang bayan as the legislative body of the municipality, we are thus of the considered opinion that the municipal mayor cannot, by himself alone thru a mere executive order, transfer or assign the duties and responsibilities prescribed by the Local Government Code unto the Municipal Engineer to that of the Municipal Planning and Development Coordinator for that would be an encroachment into the powers vested by law in the sanggunian. This is evident from Section 447 (a) (1) (vii) of the Code which vests in the sangguniang bayan the authority to “determine the powers and duties of officials and ‘employees of the municipality” as well as Section 443 (c)empowering the same sanggunian to “consolidate the functions of any office with those of another in the interest of efficiency and economy’. Since local officials, both elective and appointive, have been granted by law their respective powers, duties and responsibilities, one may not, therefore, intrude into the other, except as may be prescribed by law or ordinance. We hope to have guided you accordingly. Very truly yours, mrtalosum ee’ ee: ENGR GLICERIO M, ALMERO, ‘Mamivurao, Ovcidenial Mindoro [MAYOR ALAN T. AQUINO ‘Mamburao, Oocicierual Mindoro srr ‘0003x REPUBLIC OF THE PHILIPPINES tase; 1008 {WinNT OF INEERTOR AND LOCAL 6G a /-Soth tor, Francisco Gold Condominiums I Bldg Edsa cor, Mapagmabal St., Diliman, Quezon City ISbLAYOAN OFFICE OF THE SECRETARY —— oe opinion wo2 7 5, 3G. Apsil 17, 2000 MAYOR MARIA CLARA L. LOBREGAT Zamboanga City Dear Mayor Lobregat: ‘This refers to your query on whether or not a private individual, using his own money and resources, may undertake the repair or rehabilitation of barangay roads located within the g such private the same is not icy. Governmental ly permissible as it would be delivery of al government unit acting as a political subdivision of the national government whose powers are to be exercised by it in conformity with law [Section 15, Looal Government Code of 1991 (RA 7760)). Thus, while it may be true that the Local Government Code encourages the participation of the private sector, particularly in the delivery of basic services [Section 3 (), RA 7160], such participation, however, cannot be let to and done directly by the private sector but should stil be properly coordinated with the concerned local government unit and that is the barangay, Precisely, Section 17, paragraph (b) of the Code requires that the designs, plans, specifications, testing of materials, and the procurement of equipment and materials fram both foreign and local sources necessary for the provision of the services and facilities enumerated under the same Section “shall be undertaken by the focal government unit concemed”, based on national policies, standards and guidelines.HHenee, the proper procedure would be for the barangay government accept the donation in kind pursuant to its power under Section 22 (4) of the Local Government Code of 1991 ‘or negotiate the donation in kind in accordance with Section 23 of the same Code which provides that the local chief exocutive may, upon authority ofthe sanggunian, negotiate and secure financial grants or donations in kind in support of the basic services or facilities enumerated under Section 17 of the Code, from local or foreign assistance agencies usthout necessity of securing clearance of approval therefor from any department, agency or office of the National Government or from any higher local government unit. But while acceptance or negotiation of subject donation shall not require approval from the city government, the Implementation of development projects, as in the case of the maintenance and repair of barangay roads, should be properly coordinated with the city government, not only because the later exercises supervisory powers over its component id but also and more importantly, because resolutions adopting public investment programs, wherein repair of barangay ro ction 56, Very truly yours, mers Lit Secretary @ Lye ce: DIRECTOR RENE K. BURDROS = DILG Regional Ofee Bo. 18 Zamboanga Cty o50hDEVARTMENT OF INTERIOR AND LOCAL GOVERNMENT Ga (Oth Floor, Francisco Gold Condominium Il Bldg. Edsa cor. Mapagmahal St, Diliman, Quezon City OFFICE OF THE SECRETARY L 17 April 2000 ‘S$ JUVY M. MAGSINO EVEL P. LAYGO _ SOLOMON J. LUMALANG JR. WILSON A. VIRAY /| || JAIME C, GUTTIERREZ JR. ~ Sangguniang Bayan of Naujan Oriental Mindoro ~ Dear Sirs: This refers to your query on how many members of the Sangguniang Bayan of Naujan, Oriental Mindoro, composed of eight (8) regular and two (2) ex officio members and the vice mayor as presiding ‘officer, must be present before the sanggunlang can declare the presence of a quorum to legally transact official business. In.reply thereto, please be apprised that, for quorum to exist; the Sangguniang Bayan of Naujan must have the Presence of at least six (6):of its'members, including the vice mayor, which is the majority of eleven (11), in order to legally transact official business. It must be emphasized that Section 53 of the Local Government Code of 1991 (RA 7160) mandates that a majority of all the members the sanggunian who have been duly elected and have qualified shall Constitute a: quorum. With the phrase “majority of all the members of the'sanggunian”, it is thus evident therefrom that the reckoning point should be the entire composition of the sanggunlang bayan. In that regard, Section 446 (a) of the Code enumerates the membership of the sangguniang bayan, consisting of “the municipal vice mayor as presiding officer, the regular (elective) sanggunlan members, the’ president of the municipal chapter of the liga Hg mga rangay; the president of the pambayang bederasyon ng mga Sangguhiang’ kabataan, and the sectoral representatives, as members’. Clearly then, the vice mayor, as presiding officer, Is also a membei 1@ Sangguniang bayan and should, therefore, be thcluded inde le existence of a quorum since he Is included in the babahaly wig orwton wo28 5, 2002enumeration as to who composes the said legislative body. As a matter of fact, in the case of GAMBOA VS. AGUIRRE AND ARANETA (G.R. No. 134213, July 20, 1999), the Supreme Court recognized the membership of the vice governor (vice mayor) in the sangguniang Panlalawigan (sangguniang bayan). Accordingly, since the Sangguniang Bayan of Naujan is composed of a total of eleven (44) members who have been duly elected and have qualified, including the vice mayor, at least six (6) of its members must be present during any session to be able to muster a quorum and to legally transact official business, We hope that we have clarified the matter accordingly. Very truly yours, Al F Secretary €C: MAYOR NORBERTO M. MENDOZA Naujan, Oriental Mindoro THE HONORABLE MEMBERS Sangguniang Panlalawigan Calapan City DIRECTOR JUAN B. VOLFANGO JR. DILG Regional Office No. 1V Calderon Bidg., EDSA, Diliman, Quezon City wstmemesccmay-st0 D4 AeREPUBLIC OF THE PHILIPPINES. DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condominium I Fda Cor Mapagmahal St OFFIC: = SECRETARY 28 April 2000 HON. MAXIMIANO P. MARQUEZ, et. al. Barangay Kagawad, San Vicente San Pedro, Laguna BOD} Gentlemen: This refets fo your request for legal opinion on a) rule of suecessfon and filling Up of permanent vacancies in the sangguniang bayan; b) distinclion between elecive anid appointive officals, and «) ranking of appointed sangguniang barangay members (number 1 or number 7) Please be informed that a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office (Section 44, RA 7160). fa permanent vacancy occuis in the office of the puneng barangay, the highest tanking sangguniang barangay member of, in case of his peimanent disabiliy, the second highest ranking sanggunian rember, shall become the punong barangay (Section 44 (b), RA 7160), The subsequent vacancies therein shall be filled Up by succession by the other sanggunian members according to their ranking, The resulting vatdncy in the sangguniang barangay where the rule of succession Is no longer applicable (referring to the number seven position) shall be filed up by appointment to be issued by the municipal mayor upon the recommendation of the sangguniang barangay concerned (Section 45 (a)(3) of the Local Government Code) eye mg oruies 0 29 s 1992 “oy geAs to the distinction between elective and appointive officials, an elective official I Is one who acquited official relations to his office by way of election while an appointive official is one who acquited official relation to his office by way of ( appointment in accordance with law, Elective positions are thus occupied by elective officials. However, there are elective positions where the law mandates that the same | be filled up by appointment in case of vacancy therein, An example of that Is the appointment of a sanggunian member to fil up a permanent vacangy in the Sanggunian as provided for in Section 45 of the Local Government Code. In such case, though the replacement acquired his official relation to the office through : appointment he ts considered as an elective official becouse he Is occupying an 1 elective position/office. With respect to your query on ranking, please be advised that the sangguniang barangay kagawad appointed pursuant to Section 45 (a)(3) of the Local Government Code shall occupy the number seven position, ‘This is evident from the opening statement of Section 45, Ibid, which vests unta the appointing authorities enumerated therein the power to appoint a sanggunian member only when the law of succession does not apply. This means that since the vacancy in the office of the punong barangay shall be filled up through succession by the highest ranking sanggunlang - barangay member and the subsequent vacancies thereon to be filled up also by Succession by the olher sangguniang barangay members according to thelt ranking, the power to appoint a replacement inthe sangguniang barangay pertains oniy to the number seven position because it Is in the latter position that the tule of succession can ho longer apply, there being nobody to succeed anymore. | We hope to have enlightened you on the matter. Very truly yours, | Gry Secretay @ Me ak aREPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT . A. Francisco Gold Condeminiun Il Edsa Cor. Mapagmahal St. Diliman, Quezon City YILG opINtON NO.3P_s: 4090 _ 17 April 2000 MAYOR ENERITO B.ACAIN,JR. | Initao, Misamis Oriental Dear Sir: ‘This has reference to your query on the proper procedure of filling up a Permanent vacancy in the sangguniang barangay. You state that the Sangguniang Barangay of Apos, thot municipality, recommended Mr. Nicolas |. Tacbobo to fill up a permanent vacancy in that sanggunian due to the demise of Hagawad Fely J. Gulane, Said recommendation was, however, formally opposed by more than fifty (50%) percent of the registered voters in the said barangay. To resolve the matter, a consultative assembly was called and was attended by the barangay residents who strongly indorsed the appointment of Mr. Nestor Quijano to fill up the vacancy. As o result, the sangguniang barangay of Apas then passed another Resolution recommending Mr. Nestor Quijano to fill up the Permanent vacancy in the somggunian and declaring the previous Resolution recommending Mr. Tacbobo as null and void. Hence, this query. In reply thereto, please be informed that every iegislative body has the inherent power to modify, alter, revise, or repeal any measure or act passed by it. Accordingly, considering that the appointing authority, in this case the municipal mayor, has not yet issued an appointment in favor of Mr. Tacbobo, the sangguniang barangay is still at liberty and well within the bounds of law to change, as in fact it did, its recommendee to the vacomt seat in the sangguniang barangay, The resolution recommending him having been declared ‘riull and void before he could have been isued any appointment, Mr. Tacbobo cannot legally assert any vested right to be appointed. The foregoing considered, your plan to appoint the second recommendee, Mr, Quijano, is legal and in accordance with Section 45 (a) (3) of the Local Government Code. We hope we have enlightened you on the matter, LsseiLa_ tn « Shan [SK REPUBLIC OF THE PHILIPPINES DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT Francisco Gold Condominium Bldg, Edsa cor. Mapagmahal St,, Diliman, Quezon City OFFICE OF THE UNDERSECRETARY ue A a o7 oe DIRECTOR EVERDINA ECHALAR-DOCTOR DILG CAR Regional Office Barangay Center, Baguio City Dear Director Echalar-Doctor: This refers to your Regional Opinion dated 03 December 1999 addressed to the Punong Barangay of Poblacion East, Lagawe, Ifugao, wherein you opined that an SK Chairman may practice his profession as Classroom Teacher under the DECS-Lagawe District, anchored on the premise that the officials of the Sangguniang Kabataan are not elective barangay officials In this connection, we are constrained to take exception to the opinion given by that Regional Office that the SK Chaitiman and ex officio member of the Sangguniang Barangay 's entitled to practice his profession and/or teach In schools." With due respect, we find the aforesaid Regional Opinion to be contrary to Article 7L of the Rules and Regulations Implementing the Local Gavernment Code of 1991 and the latest pronouncements of the Supreme Court While it may be true thal the Supreme Court ruled in Mercado vs. Board of _ Election Supervisors of Ibaan, Balangas (243 SCRA 422 at 434) [hat “his (SK Chairman) being an ex officio member of the sangguniang barangay does not make him one (elective barangay officla)’, it must, however, be noted that the said pronouncement was preceded wilh the discussion that ‘no law in effect prior to the ratification of the Constitution had made the SK Chairman an elective barangay official” As a matter of fact, in the recent case of MARQUEZ VS. COMELEC (GR No. 127318, August 25, 1999), the Supreme Court held that the doctrine laid down in the aforecited Mercadg case is no longer controlling, Since the Court already ruled in the Marquez case that election contests involving the