Republic of the Philippines Department of the Interior and Local Government CORDILLERA ADMINISTRATIVE REGION Barangay Center, Baguio

City

DILG-CAR OPINION NO. 02-01

Series of 2002.

DISCIPLINARY ACTIONS AGAINST LOCAL ELECTIVE OFFIALS/ PREVENTIVE SUSPENSION -ANTECEDENT FACTS AS REPRESENTED IN THE LETTER-QUERYA verified complaint for Grave Abuse of Authority was filed with the Sangguniang Bayan (SB) of Alfonso Lista, Ifugao against the respondent barangay officials. However instead of submitting a verified answer as required by the SB, the respondents, thru counsel, moved for the dismissal of the case invoking that the complaint was not referred to the barangay lupon as prescribed under RA 7160 or the Local Government Code of 1991 and, that the complaint is criminal in nature and therefore not within the jurisdiction of the SB but of the regular courts. The preventive suspension of the respondents for a period of sixty (60) days is likewise being questioned by their lawyers. Hence, the request for legal opinion.

-QUERIES1. Whether or not the case filed with the Sangguniang Bayan of Alfonso Lista, Ifugao should be dismissed on such grounds as invoked by the respondent barangay officials? 2. Whether or not the preventive suspension for 60 days of the respondents is valid?

-OPINIONAnent the first issue, we answer in the NEGATIVE. It must be noted that a charge against elective public officials in connection to the performance of their official functions and duties is of such nature that it includes both the administrative and criminal or civil aspects. The administrative aspect of the case shall be filed with the Office of the President or with the sanggunian concerned, in accordance with the provision of Sec. 61 of the Local Government Code and Art. 125, Rule XIX of its IRR (in the instant case, the complaint should be filed with the Sangguniang Bayan of Alfonso Lista). On the other hand, the criminal or civil aspect thereof shall be filed with the regular courts and proceeded with in accordance with the Rules of Court. Stated differently, the administrative aspect of the case is separate and distinct from the criminal or civil aspect, hence, should proceed independently of the latter. Thus, in the case at bar, the claim of the counsel for the respondents that the complaint is criminal in nature and therefore not within the jurisdiction of the SB but of the regular courts is untenable. It is also our considered view that the complaint filed with the SB relative to the administrative aspect of the case need not be referred to the barangay lupon. This is so because there is no provision in the Code on Disciplinary Actions, specifically, under Secs. 60-68, Chapter 4, Title II, Book I thereof, that requires such referral to the barangay lupon. What the Code clearly and unequivocally states under Sec. 61 is that verified complaint against any erring local elective official shall be filed before the Office of the President or to the sanggunian concerned. Moreover, careful perusal of the Code provisions on Katarungang Pambarangay indicates that it is the criminal or civil aspect of the case that falls under the jurisdiction of such lupon. This is so because the primary purpose of such referral to the lupon is to give the disputing parties an opportunity to settle amicably their case through conciliation or mediation proceedings conducted by the lupon. In other words, the administrative aspect of a case is not subject to amicable settlement, as this is against public policy. As a matter of fact, even in the criminal or civil aspect of a case where one of the parties is a public officer and the charge against him relates to the performance of his official functions or duties, the same does not fall under the jurisdiction of the barangay lupon (Sec. 408, (b), LGC). Thus, to reiterate, the complaint filed with the SB is an administrative complaint the sole purpose of which is to impose disciplinary actions against the erring barangay officials, hence, the same is not required to pass through the barangay lupon. Such administrative complaint is within the jurisdiction of the SB and not of the regular courts. It is the criminal or civil aspect of the case that falls under the jurisdiction of the regular courts.

As to the second issue, we opine in the POSITIVE. Based on prevailing legal provisions and settled jurisprudence, preventive suspension may be imposed upon local elective officials but not to go beyond sty (60) days for ery single ension. Under Sec. 63 (b) of the Code, it is explicitly enunciated that preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. Also, in some cases, the Supreme Court held that : Preventive suspension is allowed so that the respondent may not hamper the normal cuase of the investigation through the use of his influence and authority over possible witnesses (Lacson vs. Roque, 92 Phil. 456). There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence (Nera vs. Garcia and Elicao 106 Phil. 1031). Preventive suspension is not violative of the Constitution as it is not a penalty. . . . What the Constitution abhors is an indefinite preventive suspension as it violates the due process and equal protection clauses, and the right of public officers and employees to security of tenure ( Gonzaga v. Sandiganbayan (First Division) et al., 201 SCRA 417, 426). Thus, for as long as the preventive suspension is in accordance with the aforecited provision of Sec. 63 of the Code, the same is valid. Take note, however, that under paragraph (a) of the aforesaid Section, such preventive suspension may be imposed only by the President, Governor and Mayor, as the case may be. As to who would recommend the preventive suspension, the law is silent on this. However, it may be inferred from the provision of paragraph (b), Sec. 63, Ibid, that it should be the Office of the President or the sanggunian concerned where the complaint was filed should be the one to make the recommendation. This is so, because they are the ones which would determine whether or not the evidence of guilt is strong, or, whether or not the continuance in office of the respondent elective official could influence the witnesses or pose a threat to the safety and integrity of the records and evidence. We hope to have enlightened you on the matters at issue. Our opinion, however, is without prejudice to an opinion from a higher body or to a ruling from a competent tribunal. __________________ Opinion rendered on 08 January 2002 in response to a letter-query, dated January 03, 2001, of HON. CHARLES L. CATTILING, Municipal Vice Mayor, Alfonso Lista, Ifugao.

Prepared By:

Reviewed By:

TOMAS A. KIWANG, JR. Regional Legal Counsel

PATRICK D. ONUS Assistant Regional Director

Approved:

EVERDINA ECHALAR-DOCTOR Regional Director

/opinion 02-01