Republic of the Philippines OFFICE OF THE OMBUDSMAN Quezon City REDENTOR A. ZAPATA, Jr. Complainant -versusJESSALEE JACOBO, et.al.

Respondents. x---------------------------------------x POSITION PAPER RESPONDENT, Jane Seveses, most respectfully submits this position paper to this Honorable Office and further respectfully avers that: THE CASE This case stemmed from the sworn complaint filed by the complainant against the herein respondent for allegedly having committed some irregularities in the handling of the Professional Regulations Commission- Bids and Awards Committee, herein referred to as PRC-BAC for brevity, trust fund and for allegedly withholding from the complainant his honorarium. THE PARTIES 1. Complainant , Redentor A. Zapata, Jr. is of legal age, Filipino and a former PRC service contractor and a former member of the PRC-BAC Secretariat; 2. Herein Respondent, Jane Seveses is likewise of legal age, Filipino and maintains her regular office at the Professional Regulation Commission, P. Paredes St., Cor. N. Reyes Street, Sampaloc Manila. She is the Chief Accountant with Salary Grade 24 and currently designated as the Officer-in-Charge of the Budget and Management Division of the Professional Regulations Commission; OMB-C-C-12-0144-C For: Grave Misconduct

THE ANTECEDENT FACTS 3. Respondent was a former member of the Bids and Awards Committee of the Professional Regulations Commission during the time that this controversy arose. The complaint on the other hand was a member of the PRC-BAC Secretariat during the same period; 4. The complainant, sometime in May 25, 2011, through an Office Memorandum, submitted to the office of Commissioner Jennifer Jardin Manalili, a request for guidance on the proper action to be taken in the pending payment of honorarium of the members of the Bids and Awards Committee, of whom he is a BAC Secretariat member. Complainant raised the issues involving the alleged Violation of Sec 6.2 of DBM Budget Circular 2004-5A due to the consistent charging against the BAC funds with the operating expenses of the BAC. He further alleged that due to said charges, it cause the depletion of the BAC trust fund in 2008 and 2009 resulting in the nonpayment of the 2009 BAC members honoraria, but mainly pertaining to himself. Please refer to the attachment of the complaint marked by the complainant as Annex A for reference; 5. Commissioner Jennifer Jardin Manalili then issued an order requiring the herein Respondent, Jane Seveses, as the PRCs OIC Budget Officer together with the PRCs Accounting Division OIC to submit their explanation or comment on the aforementioned memorandum of the complainant. Please refer to the attached memorandum in the complaint executed by commissioner manalili for reference. 6. Respondents submitted their explanation or comment via their first memorandum, dated June 16, 2011, explaining and belying some of the claimed facts of the complaint as appearing in his earlier submitted memorandum. Two memoranda were submitted by the Respondents, the latter one, which was submitted on June 17, 2011 was merely submitted to clarify some statements earlier mentioned under Respondents first memorandum, dated June 16, 2011. Moreover, in said memorandum, the respondents sought guidance from the Commissioner on matters regarding the treatment of BAC Miscellaneous Expenses vis--vis the BAC Trust Fund. Please refer to the attached memorandum in the complaint executed by the respondents dated June 16, 2011; 7. The complainant then was asked by the PRC Chairperson Hon. Teresita R. Manzala to submit his comments on the memoranda issued by the Respondents. Complainant thereafter submitted his comment; 8. However, due to the claimed inaction of the PRC to Complainants claims, the complainant filed his complaint with this Honorable Office of the Ombudsman and taking as attachments all of the documents or memoranda above described; 9. This Honorable Office then directed the Respondents to submit their Counter-Affidavits and their controverting pieces of evidences to the complaint of the Complainant to which the herein

Respondent timely complied. Please refer to the submitted counter-affidavit of the herein respondent to your Honorable Office for your reference; 10. Eventually, on July 16, 2012. This Honorable Office ordered the herein Respondent to file her Position Paper, hence this Position Paper.

THE ISSUE The respondent submits that the only issue to be resolved in this case is: Whether or not the herein Respondent is liable for gave Misconduct as charged. To resolved this, a query as to whether there was indeed a mismanagement done on the PRC-BAC Trust Fund and wether the herein Respondent had intended to violate the provisions of laws pertinent to the disbursing of BAC funds, is thus in order. As far as the other issues are concerned, the same should be addressed to the BAC Chairperson or the commission en Banc for its proper resolution. ARGUMENTS AND DISCUSSIONS The Respondent strongly and most respectfully believes that the allegations imputing fault to the herein Respondent of having mismanaged the PRC-BAC Trust Fund is purely founded on the mere speculations and caprices of the complainant and has no legal basis as shall be discussed below. In addition to following arguments and discussions, the herein Respondent repleads her arguments as contained in her earlier submitted counter-affidavit to this Honorable Office, as part of this Position Paper. I. THE CHARGING OF MISCELANEOUS EXPENSES AGAINST THE BAC-TRUST FUND WAS MADE WITHIN THE PURVIEW OF THE LAW Complainant is of the view that charging of meals, snacks and other miscellaneous fees against the BAC Trust Fund was not within the authority of the BAC. He based this argument on his interpretation of the DBM Budget Circulars and the Government Procurement Reform Act that only Honorarium for the BAC Members could be deducted from the said BAC Trust Fund. Notwithstanding the above interpretation of the Complaint, it should be noted that Sec. 6.2 of the DBM BC 2004-5A which states that: Pursuant to the DOF-DBM-COA Permanent Committee Resolution No. 2005-2 dated June 2005, all agencies are authorized to treat the collections from the sources identified in item 6.1 hehof as trust receipts to be used as exclusively for the payment for honoraria and overtime pay herein authorized. Agencies may utilize up to 100% of the said collections for the

payment of honoraria and overtime pay subject to the guidelines in item 5.0 of this circular. Any excess in the amount collected shall be remitted by NGAs to the Bureau Treasury xxx (emphasis supplied) The above provision merely authorizes government agencies to use the BAC trust fund exclusively for the payment of honoraria. Contrary to the interpretation of the complainant, Sec. 6.2 does not limit the use of the BAC Trust Fund for payment of honoraria. It is most respectfully forwarded that perusal of the said provision of said circular would mean that; all of the BAC trust fund could be utilized only to pay the honorariums of BAC members. The exclusivity mentioned is conditioned to the sound prerogative or practice of the concerned government agency, on whether or not it chooses or opts to use said BAC trust fund only for the payment of BAC members Honorariums. In line with this, the government agency concerned has still the discretion to determine whether the trust fund will be used only for honoraria or for other legitimate as it may deem proper. Neither Sec. 6.2 nor any issuance of the Commission prohibits the use of the trust fund for legitimate expenses of the BAC. Moreover, this view of the herein Respondent is strengthened and finds support to the above emphasized clause of Sec. 6.2 since it states therein that agencies may use 100% of such BAC trust fund as honorarium or overtime pay. Under statutory construction, the word may means optional and not mandatory in contrast to the word must. Hence by said provision of law and by the said statutory construction, it does not give a mandate among BACs to use its BAC members. (Emphasis supplied) Charging the BAC meals against the BAC trust funds was made as a matter of expenditure sharing and due to an accepted practice within PRC in consonance to the above interpretation. If and when there was any violation of the rules, the same could have been raised by the Commission or the BAC itself. Even as today, there exist no record that this issue was raised by thee BAC members or the BAC Chairman and Vice Chairman themselves. Moreover, no audit findings in the form of an Audit Query, Audit Observation Memo, Notice of Suspension or Disallowances that have been issued for the disbursements BAC meals from the BAC funds. It therefore bears stressing that even the COA had allowed previously and had continuously allowed up to the present the deduction of miscellaneous expenses from the BAC Trust Funds. In addition, the act of charging the BAC meals to the BAC fund was prompted merely by the observation of the COA resident auditor Mila Deauna. She noted the fact that the actual expenses for Representation Expenses from which meals during official meetings (including BAC meetings) were charged always exceeded the allotment from the General Appropriations, hence the same COA auditor suggested that it be charged against the BAC trust fund as it is likewise observed that this is also a practice in other government agencies. On the other hand, BAC funds always carried a significant balance at every year end. Records would validate the auditors observation as shown below, viz:

Year

2007 2008 2009 2010

Representation Actual Expenses per Representation GAA Expenses Incurred P 700,000 P 1,020,574.85 P 700,000 P 1,020,764.04 P 700,000 P 1,002,635,79 P 700,000 P 909,236.44

BAC Meals charged to GAA P 53,419 P 35,062 P 33,687 -

BAC Meals charges to BAC Funds P 15,141 P 9,934 P 16,787

BAC Funds Balance at Year End P 161,054.80 P 162,765.98 P 67,043.35 P 57,056.31

For reference please refer with the attached annexes. Analyzing the above table would reveal that: a. From 2007-2010, allotment from the GAA for Representation expenses amounted to P700,000, while the actual Representation Expense incurred was over and above its budget, i.e P1,020,574 in 2007, P1,020,764 in 2008, P1,002,635 in 2009 and P909,236 in 2010. This resulted in the yearly realignment of funds to augment the budget for Representation expenses; (ANNEX A and B) b. BAC meals were consistently charged to the general fund until COA called my attention in 2008. Hence, in 2008 we started charging BAc meals to the Trust Fund; and c. Per general ledger, the BAC funds had remaining balance at year end i.e., P161,054 in 2007, P162,765 in 2008, P67,043 in 2009 and P57,056 in 2010. (ANNEX C)

In fact, this was even manifested during the COA exit Conference with the Commission held in May 30, 2012 when the Chairperson inquired on the use of BAC trust fund. Nonetheless, it is also worthy to mention that in the COA exit Conference held last May 30, 2012, the Commissions Chairperson issued a standing order to the BAC Chairperson to come up with internal guidelines for the use of BAC trust fund. However, as of today, the commission had still not issued any statement and no guidelines have yet been promulgated by the same for the use of BAC trust funds. Thus, given all of the above, the herein Respondent acting in good faith with other BAC Members and without any intention of violating the aforementioned law, deemed it just to deduct the amount of meals and snacks of the BAC against the BAC-Trust Fund. With the belief that the deduction of miscellaneous expenses from the BAC Trust Fund is feasible and with color of legality due to the continued practice and due to lack of any warning or other signs to dissuade this practice from the COA, the herein Respondent continued with this practice.

Finally, with the above arguments, there cannot be a blot of culpability against the herein Respondent for acting in accordance with law. On the contrary, it is ludicrous to claim that Complainants reason for filing this case was driven by his devotion and commitment to the BAC and to give the BAC members their hard earned Honorarium, which according to him was unjustifiably withheld by the Respondents. II. THE COMPLAINANT WAS NOT UNJUSTIFIABLY DENIED HIS HONORARIUM AS BAC MEMBER: As of BAC Trust Funds year end balance for the year 2010, where the Complainant was still a member of the BAC Secretariat, it shows that there was still Php 57,056 ready available fund which is sufficient to pay the honorarium claimed by the complainant. However, the complainant failed to comply with the requirements his honorarium could be released. Just like any procedures for payment of other obligations, release of honoraria requires supporting documents which include but not limited to Disbursement Vouchers, certification of the BAC Secretary, approval of payment from the chairman of the BAC, and payroll duly signed by the BAC Secretary certifying the participation of the claimant. None of these documents were submitted to the herein Respondent even after the alleged May 25, 2011 inquiry of the complainant to register his demand for the payment of the alleged unpaid honoraria. Ironically, as a BAC member then, the herein Respondent was one of those who were not paid their honoraria. If the herein respondent was driven by personal gain, she would have aggressively pursued the payment without regard to any ensuing directive that will be issued by the commission as a result of the complainants query. On the contrary, the complainants desire to claim such reward shows his appalling immodesty since he knew for himself that he was not able to discharge his duties and responsibilities in the BAC secretariat faithfully. Records will show how delinquent complainant was in attendance and was therefore inefficient in the performance of his duties. III. THIS COMPLAINT WAS MERELY FILED TO HARASS THE RESPONDENT. IT WAS FILED UNDER SINISTER CIRCUMSTANCES AND UNDER THE ILL MOTIVATION OF THE COMPLAINANT TO DISCREDIT AND DESTROY THE REPUTATION OF THE RESPONDENT: It is being pointed out that the herein Complainant, sometime in May of 2011 resigned from the PRC, however in some suspicious circumstances; he thereafter reapplied again with the PRC in August 1, 2011. Commissioner Alfredo Y. Po through a memorandum dated August 09,2011 to the PRC Chairperson manifested his strong objection to re-hire the complainant due to his poor attendance record. Nonetheless, the commissioner in another memorandum dated October 27, 2011 manifested that he will no longer belabor the issue and will abstain from signing the check for the salary of complainant. Subsequently, the herein Complainant severed his services to the commission even prior to the end of his service contract which was on December 2011. Attached hereto as Annex D is a record providing the above.

Also, another point to consider to show the dubious nature of this complaint are some indicators on the Complaint which was submitted to this Honorable Office. It is very clear in the complaint that it was subscribed and attested to on June 10, 2011. But interestingly, his complaint articulate of alleged facts and events which transpired on June 16, 17, and 26, 2011. It then comes into mind that how could one attest to an alleged fact or event today when such fact or event would still happen in the future. There is also no explanation why the respondents in this complaint were singled out, when the act complained of was not the single act of the impleaded respondents, but by the entire BAC of the PRC. Please refer on the item 3 of the complaint and its verification for reference. Moreover, this complaint by-passed several processes, which if complied with would had probably resolved this case without wasting the precious time of this Honorable Office. The complainant should have left this matter to be resolved first by the PRC BAC and the Commission En Banc before proceeding to this Honorable Office so that with the expertise and with the latters first hand engagement with the issue that affects its internal operations, it could had determined this issue with utmost caution considering their awareness and utmost familiarity with said operations. Complaint however ignored this processes but instead, rushly and directly proceeded to this Honorable Office and alleged that the Honorable Office of the PRC Chairperson was not able to act on this matter. Contrary to this claim, the Honorable PRC Chairperson was prudently directing the parties to explain their own respective positions on this issue before a decision can be made. NO\o concrete reason, but only the plain assertion of inaction of the PRC was forwarded by the Complainant as if suggesting that this honorable Office must swiftly act to do injustice against the herein Respondents. Had the complainant afforded and given due regard and respect to the proper process in airing any grievances or complaints and to the actions of the PRC Chairperson, there could had been no cause for this. Given all the above facts and observations, there could only be one conclusion that could be clearly drawn, and that is; the complainant bore ill will towards the herein Respondent. This is the primary ulterior motive why this complaint was filed in the first place. This ulterior motive of the complainant is a strong indica why the Complainant was and up to this date, is still stubbornly and incessantly inventing and bloating lies as well as digging any detail, even how minute or irrelevant it is, just to pin down the herein Respondent. CONCLUDING STATEMENT The supreme Court had the occasion to define the offense of grave misconduct. According to the Honorable Supreme Court; The misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law, or to disregard established rules, which must be established by substantial evidence (Office of the Court Administrator vs. Claudio Lopez, A.M. No. P-10-2788). In the case at bar, the complainant failed to adduce any evidence capable of proving any ill will and violation of any law on the part of the herein Respondent. Moreover, the Complainant also in his attempt to provide substance to this unmeritorious case.

PRAYER WHEREFORE, the Respondent respectfully prays befor this Honorable Office that Judgement be rendered dismissing the complaint for lack of merit. Other reliefs just and equitable under the premises are likewise prayed for. Quezon City, July 25, 2012. JANE SEVESES Respondent Copy Furnished: REDENTOR A. ZAPATA Complainant The Residence Tower P. Campa, Sampaloc Manila TRICIA D. CAMARA and JESSALEE P. JACOBO Co-respondents PRC, P. Paredes Street Sampaloc, Manila EXPLANATION Due to distance and unavailability of messengerial service, the filing of the foregoing Verified Position Paper was made by registered mail in lieu of the preferred mode of personal service. JANE SEVESES

VERIFICATION AND CERTIFICATION I, JANE SEVESES, of legal age, Filipino, single and of_______________________________, under oath, herby depose and state that: a resident

1. I have prepared of the foregoing position paper; and 2. I have read the same and hereby acknowledge the truth and correctness of all the allegations therein based on my personal knowledge and on authentic records. 3. Further, I certify further that I have not commenced any other action or proceeding involving the same issues in the Supreme Court, Court of Appeals, any other court, tribunal or agency and that to the best of my knowledge and belief, no such action or proceeding is pending before the Supreme Court, Court of Appeals, other court, tribunal or agency. Moreover, I hereby undertake to notify this Honorable Court within five (5) days from notice should I learn that a similar action or proceeding has been filed or is pending with the Supreme Court, Court of Appeals, other court, tribunal or agency. IN WITNESS WHEREOF, I have hereunto set my hands on this ____day of ___________ at ________________, Philippines.

Jane Seveses Affiant ____________________ SUBSCRIBED AND SWORN to before me this _____ day _____________at_________________ Philippines, affiant exhibiting to me __________________ the details of which are written below his name and signature. of his

Doc. No. Page No. Book No. Series of 2012.