Bersamin Cases 51 to 53 By Donna Bollos

51. Alleged Loss of Various Boxes of Copy Paper During Their Transfer From the Property Division, Office of Administrative Services (OAS), to
Various Rooms of the Philippine Judicial Academy, 737 SCRA 176,September 30, 2014
Facts:
A financial audit of the books of accounts of MTC, Bulan, Sorsogon covering the period July 28, 1993 to August 31, 2004 disclosed that:
(1) some collections were not properly and accurately recorded in the cashbooks;
(2) there were shortages in the Judiciary Development Fund (JDF) and Special Allowance for the Judiciary Fund in the amounts of P48,207.10
and P5,l 16.00, respectively;
(3) the financial reports on the JDF, General/Special Allowance for the Judiciary Fund (SAJF) and Fiduciary Fund (FF) were not regularly submitted to
the Accounting Division of the Office of the Court Administrator (OCA);
(4) the records control is not systematic;
(5) no legal fees forms were attached to the case records;
(6) daily transactions in the FF account were not duly recorded in the cashbooks; and,
(7) documents needed to validate withdrawals of cash bonds from the Municipal Treasurers Office (MTO) of Bulan were missing.

The OCA concluded that Guan was remiss in the performance of his duties and is administratively liable for:
1) failing to properly remit his cash collections in contrast with the requirements set forth in the Commission on Audit (COA) and Department of
Finance (DOF) Joint Circular 1-81 and in Administrative Circular No. 13-92 dated March 1, 1992 as amended by Administrative Circular(A.C.) No. 32000 dated June 15, 2000; and,
2) failing to remit FF collections, in complete derogation of Administrative Circular No. 50-95 dated October 11, 1995.

ISSUE 1: WON Guan is guilty of Gross Neglect?

RULING1:
Yes. Here, Guans shortages with respect to the JDF in the total amount of 49,609.10 and to the SAJF totaling to 5,824.00 were both due to
unreported and undeposited collections.
Guans transgressions did not merely consist of delay in the remittance of his collections but to his total failure to deposit the same as well.
This is a clear case of gross neglect of duty. As held, "Gross neglect is such neglect which, from the gravity of the case or the frequency of
instances, becomes so serious in its character as to endanger or threaten the public welfare."
In this case, the frequency of the instances alone, i.e., for two separate periods of accountability, Guan was both found to have incurred shortages
with respect to the JDF and SAJF due to unreported and undeposited collections, makes respondents neglect of duty so serious in its character as
to threaten the public welfare.
"Gross neglect of duty is classified as a grave offense and punishable by dismissal even if for the first offense pursuant to Section 52(A)(2) of Rule IV
of the Uniform Rules on Administrative Cases in the Civil Service."

ISSUE 2: WON Guan is administratively liable?

Ruling 2:
Yes. While Guan had already been dropped from the rolls for being absent without official leave (AWOL) in A.M. No. 06-5-171-MTC, he still remains
administratively liable, although the penalty of dismissal cannot be imposed upon him. "A fine can be imposed, instead, and its amount is
subject to the sound discretion of the Court. Section 56 (e) of Rule IV of the Revised Uniform Rules provides that fine as a penalty shall be in an
amount not exceeding the salary for six months had the respondent not resigned [or been dropped from the rolls] the rate for which is that obtaining
at the time of his resignation. The fine shall be deducted from any accrued leave credits, with the respondent being personally liable for any
deficiency that should be directly payable to this Court. He is further declared disqualified from any future government service."

Note:
Clerks of Court are the custodians of the courts funds and revenues, records, properties, and premises. They are liable for any loss, shortage,
destruction or impairment of those entrusted to them. Any shortages in the amounts to be remitted and the delay in the actual remittance constitute
gross neglect of duty for which the clerk of court shall beheld administratively liable.

52. Re: Anonymous Letter-Complaint on the Alleged Involvement and for Engaging in the Business of Lending Money at Usurious Rates of Interest of
Ms. Dolores T. Lopez, SC Chief Judicial Staff Officer, and Mr. Fernando M. Montalvo, SC Supervising Judicial Staff Officer, Checks Disbursement
Division, Fiscal Management and Budget Office, 737 SCRA 195, September 30, 2014

Facts: An undated letter-complain addressed to the Complaints and Investigation Division (CID) of the Office of Administrative Services (OAS) of the
Supreme Court triggered this administrative matter. The letter complaint, purportedly sent by a concerned employee who chose to remain
anonymous, assailed the profitable money-lending with usurious interest scheme engaged in by respondents Dolores T. Lopez, an SC Chief Judicial
Staff Officer, and Fernando M. Montalvo, an SC Supervising Judicial Staff Officer, both of the Checks Disbursement Division of the Courts Fiscal
Management and Budget Office (FMBO).
It stated that the respondents had been involved in the money-lending activities targeting the low-salaried employees of the Court like the drivers and
employees of the janitorial services; that such money-lending had been going on with the help of the personnel of the Checks Disbursement Division
of FMBO by enticing employees of the Court to pledge forthcoming benefits at a discounted rate; and that around 300 Automated Teller Machine
(ATM) cards were surrendered by the borrowers to the respondents as collateral for the individual borrowings.
Lopez denied the allegation that she had lent money to around 300 court employees, and that she had held their ATM cards in her custody as
collateral; but admitted having lent money to only about 20 personnel of the janitorial agency and to some low-ranking employees of the Court, like
the utility workers and messengers for a period of two years. She said that she would receive only P10.00 for every P100.00 borrowed that she did
not consider as interest. She insisted that she did not require her borrowers to pay her the P10.00 for every P100.00 borrowed because they
voluntarily gave her the amount; and that she did not engage in money lending because she did not offer to lend money to anyone.

Issue: WON Lopez and Montalvo is guilty of lending money with usurious interest rates?
Ruling:
The respondents are both responsible fiduciary officers in the FMBO, the office that is in charge of all the financial transactions of the Court, including
the preparation and processing of vouchers to cover the payment of salaries, allowances, office supplies, equipment and other sundry expenses,
utilities, janitorial, and security services, and maintenance and other operating expenses, and the issuance of corresponding checks therefor. The
respondents discharge the delicate task of handling the payment of employees salaries and allowances.
Re: Montalvo: the complaint against Montalvo should be dismissed for no factual basis .His involvement in money lending was not shown to be
habitual, going on only as far as accommodating his friends during their personal emergencies without imposing any interests. The statement in the
letter-complaint to the effect that both respondents have been in the forefront of syndicated lending activities was not supported by any proof. It is
notable that Montalvo firmly denied the allegations against him, and that Lopez corroborated his denial.
RE: Lopez: Ms. Lopez is guilty of lending money with interest which at most would reach up to 10% of the total amount borrowed. While she denied
that the loan is somewhat like the famously known "5-6" loan.
She is the Chief of the Checks Disbursement Division that handles the preparation and issuance of checks to court employees. It is beyond question
that her official functions consist of, among others, the supervision of office staff. This gives us the impression that she took advantage of her position
and abused the confidence reposed in her office, thus, placing at risk the integrity of the division and the whole Fiscal Management and Budget
Office (FMBO). As an officer of the FMBO she can be privy of the benefits which may be given. From there, employees can borrow and/or advance
money from her and where she may easily accede knowing that after all there will be benefits forthcoming.
Her actuation although not related to her official functions as division chief, has undeniably fell short of the high standards of propriety expected of
employees of the Judiciary. It is considered as conduct unbecoming of an official of the Judiciary.

Issue 2: Did Lopezs money-lending activities render her administratively liable?

Ruling 2: Yes. "moonlighting" activities : Although many "moonlighting" activities were themselves legal acts that would be permitted or tolerated had
the actors not been employed in the public sector, moonlighting, albeit not usually treated as a serious misconduct, can amount to a malfeasance in

office by the very nature of the position held. In the case of Lopez, her being the Chief of the Checks Disbursement Division of the FMBO, a major
office of the Court itself, surely put the integrity of the Checks Disbursement Division and the entire FMBO under so much undeserved suspicion. She
ought to have refrained from engaging in money lending, particularly to the employees of the Court. We do not need to stress that she was expected
to be circumspect about her acts and actuations, knowing that the impression of her having taken advantage of her position and her having abused
the confidence reposed in her office and functions as such would thereby become unavoidable. There is no doubt about her onerous lending
activities greatly diminishing the reputation of her office and of the Court itself in the esteem of the public. She plainly disregarded the Constitution.
Misconduct in office refers to any unlawful behavior by a public officer in relation to the duties of his office that is willful in character. The term
embraces acts that the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. The
Court has invariably imposed commensurate sanctions upon court employees found and declared to be violating Administrative Circular No. 5.

Issue 3: WON the Court unfairly selective in causing their investigation upon the anonymous complaint but ignoring the "far more serious
accusations" against "employees, officials and justices even." Their accusation has tended to diminish the publics faith and confidence
in the Court itself.
Ruling 3: No. In ordering the administrative investigation of the respondents, the Court was moved only by the most laudable of purposes.
The investigation would never be unfair because they would thereby be accorded the full opportunity to be heard in order to clear themselves. The
Court accords to Montalvo and Lopez the reasonable opportunity to show cause why they should not be disciplined or otherwise sanctioned for their
censurable statements.
They were not being singled out because the Court has always acted upon every appropriate complaint or grievance anonymous or not brought
against officials and employees of the Judiciary without regard to their ranks or responsibilities, including any of its sitting Members, the incumbent
Justices of the third-level courts, and other active judges of the first and second levels of the courts.
Verily, everyone who works in the Judiciary answers to the exacting standards of conduct in order to maintain the integrity of the Judiciary and to
preserve the esteem of the public for the courts, for the very image of the Judiciary is inescapably epitomized in the official conduct and the nonofficial demeanor of judicial officers and court personnel. To accuse the Court of unfairness and discrimination was, therefore, censurable.

Notes:
Anonymous complaint is always received with great caution, originating as it does from a source unwilling to identify himself or herself. It is suspect
for that reason. But the mere anonymity of the source should not call for the outright dismissal of the complaint on the ground of its being baseless or
unfounded provided its allegations can be reliably verified and properly substantiated by competent evidence, like public records of indubitable
integrity, "thus needing no corroboration by evidence to be offered by the complainant, whose identity and integrity could hardly be material where the
matter involved is of public interest," or the declarations by the respondents themselves in reaction to the allegations, where such declarations are,
properly speaking, admissions worthy of consideration for not being self-serving. the anonymous complaint has to be dealt with, and its veracity
tested with utmost care, for it points the finger of accusation at two employees of the Court for engaging in money-lending activities at
unconscionable rates of interest, with low-ranking employees of the Court as their targets.

53. Funa vs. Duque III, 742 SCRA 166, November 25, 2014

The independence of the Civil Service Commission (CSC) is explicitly mandated under Section 1 of Article IX-A of the 1987 Constitution.
Section 2, Article IX-A of the 1987 Constitution prohibits its Members, during their tenure, from holding any other office or employment.
Facts: On January 11, 2010, then President Arroyo appointed Duque as Chairman of the CSC. The Commission on Appointments confirmed
Duques appointment on February 3, 2010. Pursuant to EO 864, Duque was designated as a member of the Board of Directors or Trustees of the
following government-owned or government- controlled corporations (GOCCs): (a) GSIS; (b) PHILHEALTH;(c) ECC; and (d) HDMF.
Petitioner: Funa, in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of EO 864, as
well as Section 14, Chapter 3, Title I-A, Book V of Executive Order No. 292 (EO 292), otherwise known as The Administrative Code of 1987, and the
designation of Duque as a member of the Board of Directors or Trustees of the GSIS, PHIC, ECC and HDMF for being clear violations of Section 1
and Section 2, Article IX-A of the 1987 Constitution.
Petitioner asserts that these provisions violate the independence of the CSC, which was constitutionally created to be protected from outside
influences and political pressures due to the significance of its government functions. Such independence is violated by the fact that the CSC is not a

part of the Executive Branch of Government while the concerned GOCCs are considered instrumentalities of the Executive Branch of the
Government. In this situation, the President may exercise his power of control over the CSC considering that the GOCCs in which Duque sits as
Board member are attached to the Executive Department.
It violates the prohibition imposed upon members of constitutional commissions from holding any other office or employment. A conflict of interest
may arise in the event that a Board decision of the GSIS, PHILHEALTH, ECC and HDMF concerning personnel-related matters is elevated to the
CSC considering that such GOCCs have original charters, and their employees are governed by CSC laws, rules and regulations.
Respondents: Respondents insist that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292, as well as the charters of the GSIS,
PHILHEALTH, ECC and HDMF, are consistent with each other. While the charters of these GOCCs do not provide that CSC Chairman shall be a
member of their respective governing Boards, there islikewise no prohibition mentioned under said charters. EO 864, issued in conformity with
Section 14, Chapter 3, Title I-A, Book V of EO 292, could not have impliedly amended the charters of the GSIS, PHILHEALTH, ECC and HDMF
because the former relates to the law on the CSC while the latter involve the creation and incorporation of the respective GOCCs. As their subject
matters differ from each other, the enactment of the subsequent law is not deemed to repeal or amend the charters of the GOCCs, being considered
prior laws.

Issue: Does the designation of Duque as member of the Board of Directors or Trustees of the GSIS, PHILHEALTH, ECC and HDMF, in an ex officio
capacity, impair the independence of the CSC and violate the constitutional prohibition against the holding of dual or multiple offices for the Members
of the Constitutional Commissions?

Held: The Court upholds the constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292, but declares unconstitutional EO 864 and the
designation of Duque in an ex officio capacity as a member of the Board of Directors or Trustees of the GSIS, PHILHEALTH, ECC and HDMF.
Section 1 and Section 2, Article IX-A of the 1987 Constitution, which provide: Section 1. The Constitutional Commissions, which shall be
independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
Section 2, Article IX-A of the Constitution certain inhibitions and disqualifications upon the Chairmen and members to strengthen their integrity, to wit:

(a) Holding any other office or employment during their tenure;

(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any business which in any way may be affected by the functions of his office; and
(d) Being financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its
subdivisions, agencies or instrumentalities, including government-owned or controlled corporations or their subsidiaries.
The issue herein involves the first disqualification abovementioned, which is the disqualification from holding any other office or employment during
Duques tenure as Chairman of the CSC. The Court finds it imperative to interpret this disqualification in relation to Section 7, paragraph (2), Article
IX-B of the Constitution Section 7, paragraph (2),Article IX-B reads:
Section 7.
Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when
such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the VicePresident, Members of the Cabinet, their deputies and assistants.
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to
this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment.
Being an appointive public official who does not occupy a Cabinet position (i.e., President, the Vice-President, Members of the Cabinet, their deputies
and assistants), Duque was thus covered by the general rule enunciated under Section 7, paragraph (2), Article IX-B. He can hold any other office or
employment in the Government during his tenure if such holding is allowed by law or by the primary functions of his position.

The Court also notes that Duques designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to
receive per diem, a form of additional compensation that is disallowed by the concept of an ex officio position by virtue of its clear contravention of
the proscription set by Section 2, Article IX-A of the 1987 Constitution. This situation goes against the principle behind an ex officio position, and
must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duques designation as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF impairs the independence of the CSC. Under Section 17, Article VII of the Constitution, the President exercises
control over all government offices in the Executive Branch. An office that is legally not under the control of the President is not part of the Executive
Branch.
The Court holds that all official actions of Duque as a Director or Trustee of the GSIS, PHILHEAL TH, ECC and HDMF, were presumed valid, binding
and effective as if he was the officer legally appointed and qualified for the office. This clarification is necessary in order to protect the sanctity and
integrity of the dealings by the public with persons whose ostensible authority emanates from the State. Duque's official actions covered by this
clarification extend but are not limited to the issuance of Board resolutions and memoranda approving appointments to positions in the concerned
GOCCs, promulgation of policies and guidelines on compensation and employee benefits, and adoption of programs to carry out the corporate
powers of the GSIS, PHILHEAL TH, ECC and HDMF.

Notes:

Power of judicial review in cases otherwise rendered moot and academic by supervening events on the basis of certain recognized
exceptions, namely:

(1) there is a grave violation of the Constitution;

(2) the case involves a situation of exceptional character and is of paramount public interest;
(3) the constitutional issue raised requires the formulation of controlling principles to guide the Bench, the Bar and the public; and
(4) the case is capable of repetition yet evading review.

A de jure officer is one who is deemed, in all respects, legally appointed and qualified and whose term of office has not expired.

A de facto officer is one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face. He may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent is not a mere
volunteer.

Consequently, the acts of the de facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public or third persons who
are interested therein are concerned.