Rubenecia vs. CSC
244 SCRA 640
may 31, 1995, Feliciano
Petitioner Ruble Rubenecia assails Civil Service Commission ("CSC" or "Commission") Resolution No. 94-0533, dated 25 January 1994, acquitting him of a charge of insubordination but finding him guilty of several other administrative charges and imposing upon him the penalty of dismissal from the service. He also questions the validity of CSC Resolution No. 93-2387 dated 29 June 1993, which allegedly abolished the Merit System Protection Board ("MSPB") and authorized the elevation of cases pending before that body to the Commission.
FACTS:
-Teachers of Catarman National HS filed before MSPB administrative complaint against petitioner Rubenecia, the School Principal:
>dishonesty
>nepotism
>oppression
>violation of Civil Service Rules
*MPSB investigation: charged Rubenecia, required him to answer. Rubenecia did not file answer, requested instead to be furnished with copies of the documents submitted by complainants. CSC Regional Director invited him to visit their office to identify and pick up the document that he might need but he deferred, saying he still had enrollment problems. Later, CSC Regional Office reiterated that he answer but he reiterated request that he be provided with copies of supporting documents.
-hearing scheduled but complainants did not appear, nor did he file his answer though he was there. On the same day, Regional director issued order that the case was deemed submitted for resolution on the basis of the documents filed (and hellurh, the only documents with CSC Regional Office are those of the complainants)
-Rubenecia wrote to Chairman of CSC for dismissal of his
-Regional Director submitted to MSPB the investigation report but before MSPB could render a decision, CSC issued RESOLUTION 93-2387 which provided, among other things, that cases then pending before the MSPB were to be elevated to the Commission for decision. In accordance with the Resolution, Rubenecia’s case was elevated to CSC.
*CSC: GUILTY, dismissed from service. MR (lack of jurisdiction), denied
"I. VIOLATION OF CIVIL SERVICE RULES AND REGULATIONS
The records show that Rubenecia committed the said offense. He himself admitted that he did not accomplish his DTR but this was upon the suggestion of the Administrative Officer. Rubenecia cannot use as an excuse the alleged suggestion of an Administrative Officer. As the principal of a national high School, he is expected to know the basic civil service law, rules and regulations.
II. DISHONESTY
The Commission finds Rubenecia liable. He was charged for misrepresenting that he was on 'Official Travel' to Baguio City to attend a three-week seminar and making it appear in his CSC Form No. 7 for the month of October 1988 that he has a perfect attendance for that month. Rubenecia in order to rebut the same simply reiterated previous allegation that he attended the SEDP Training in Baguio City during the questioned months without even an attempt on his part to adduce evidence documentary or testimonial that would attest to the truth of his allegation that he was indeed in Baguio during those weeks for training purposes. A mere allegation cannot obviously prevail over a more direct and positive statement of Celedonio Layon, School Division Superintendent, Division of Northern Samar, when the latter certified that he had no official knowledge of the alleged 'official travel' of Rubenecia. Moreover, verification with the Bureau of Secondary Schools reveals that no training seminar for school principal was conducted by DECS during that time. It was also proven by records that he caused one Mrs. Cecilia Vestra to render service as Secondary School Teacher from January 19, 1990 to august 30, 1991 without any duly issued appointment by the appointing authority.
III. NEPOTISM
With respect to the charge of Nepotism, Rubenecia alleged that he is not the appointing authority with regard to the appointment of his brother-in-law as Utilityman but merely a recommending authority. With this statement, the commission finds Rubenecia guilty. it should be noted that under the provision of Sec. 59, of the 1987 Administrative Code, the recommending authority is also prohibited from recommending the appointment to non-teaching position of his relatives within the prohibited degree.
IV. OPPRESSION
Rubenecia is also guilty of Oppression. He did not give on time the money benefits due to Ms. Leah Rebadulla and Mr. Rolando Tafalla, both Secondary Teachers of CNHS, specifically their salary differentials for July to December 1987, their salaries for the month of May and half of June 1988, their proportional vacation salaries for the semester of 1987-1988, and the salary of Mr. Tafalla, for the month of June, 1987. Rubenecia did not even attempt to present countervailing evidence. Without being specifically denied, they are deemed admitted by Rubenecia.
V. INSUBORDINATION
He is not liable for Insubordination arising from his alleged refusal to obey the 'Detail Order' by filing a sick leave and vacation leave successively. The records show that the two applications for leave filed by Rubenecia were duly approved by proper official, hence it cannot be considered an act of Insubordination on the part of Rubenecia when he incurred absences based on an approved application for leave of absence.
Rubenecia is therefore found guilty of Dishonesty, Nepotism, Oppression and Violations of Civil Service Rules and Regulations.
WHEREFORE, foregoing premises considered, the Commission hereby resolves to find Ruble Rubenecia guilty of Dishonesty, Nepotism, Oppression and Violation of Civil Service Rules and Regulations. Accordingly, he is meted out the penalty of dismissal from the service."
ISSUES
(1) WON the CSC had authority to issue its Resolution No. 93-2387 and assume jurisdiction over the administrative case against petitioner; and
(2) Whether or not petitioner had been accorded due process in connection with rendition of CSC Resolution No. 94-0533 finding him guilty and ordering his dismissal from the service.
HELD
(1)YES it has authority to issue the said resolution and YES it has jurisdiction over the administrative case
RUBENECIA: Since MSPB was a creation of law, it could only be abolished by law and not by CSC
…the questioned resolution in sum does the following:
1. decision in administrative cases appealable to the Commission pursuant to Section 47 of the present Civil Service Law may now be appealed directly to the Commission itself and not to the MSPB.
2. Administrative cases already pending on appeal before the MSPB or previously brought directly to the MSPB, at the time of the issuance of Resolution No. 93-2387, were required to be elevated to the Commission for final resolution.
\The functions of the MSPB relating to the determination of administrative disciplinary cases were, in other words, re-allocated to the Commission itself.
WHY RELOCATE: to "streamline the operation of the CSC" which in turn required the "simplication of systems, cutting of red tape and elimination of [an] unnecessary bureaucratic layer." The previous procedure made it difficult for cases to be finally resolved within a reasonable period of time. The change, theretofore, was moved by the quite legitimate objective of simplifying the course that administrative disciplinary cases, like those involving petitioner Rubenecia, must take. We consider that petitioner Rubenecia had no vested right to a two-step administrative appeal procedure within the Commission, that is, appeal to an office of the Commission, the MSPB, and thereafter a second appeal to the Civil Service Commission itself (i.e., the Chairman and the two (2) Commissioners of the Civil Service Commission), a procedure which most frequently consumed a prolonged period of time.
>>>it did not abolish the Merit System Protection Board, and if it did, he is not an employee of MSPB to be a real-party-in interest.
>>>he cannot argue that he was not notified that his case was elevated to CSC because (a) CSC Resolution 93-2387 did not require individual written notice sent by mail to parties in administrative cases pending before the MSPB; (b) CSC Resolution 93-2387 was published in the Manila Standard so it would be deemed substantially complied; and (c) it was Rubenecia himself who insisted on pleading before the Commissioner (he filed MTD before commissioner and not before MSPB)
History of the Merit System Protection Board
- PD 1409 created in the CSC the Merit Systems Board and gave it power to hear and decide administrative cases. If the Board orders the removal of the public officer, it would be subject to automatic review of the CSC. All other decisions of the Board are subject to appeal to the CSC
-1987 Admin Code re-created the Merit System Board as Merit System Protection Board (MSPB) which was intended to be an office of the Commission like any other 13 offices in the CSC. MSPB was made a part of the internal structure and organization of the CSC and thus a proper subject of organizational change which CSC is authorized to undertake under SECTION 17 of the CIVIL SERVICE LAW.
(2) YES
Due Process = Notice + Opportunity to be heard
NOTICE: Formal charge which contained the essence of the complaint and the documents in support thereof that had been furnished to Rubenecia + testimony of the principal witnesses against him given during the preliminary hearing.
ON THE NONFURNISH OF SUPPORTING DOCUMENTS: he was given the opportunity to obtain those documents but he did not avail of it + he sent a formal letter-answer to CSC Chair controverting the charges against him and submitted voluminous documents in support of his claim of innocence.
MR CURED WHATEVER PROCEDURAL DUE PROCESS DEFECT: MR gave him opportunity to be heard
ON FINDINGS OF THE CSC: “The settled rule in our jurisdiction is that the finding of fact of an administrative agency must be respected, so long as such findings of fact are supported by substantial evidence, even if such evidence might not be overwhelming or even preponderant. It is not the task of an appellate court, like this Court, to weigh once more the evidence submitted before the administrative body and to substitute its own judgment for that of the administrative agency in respect of sufficiency of evidence.” In the present case, in any event, after examination of the record of this case, we conclude that the decision of the Civil Service Commission finding Rubenecia guilty of the administrative charges prepared against him, is supported by substantial evidence.
DISPOSITION: DISMISS petition
Geronga vs. Varela
546 SCRA 429
February 22, 2008 AUSTRIA-MARTINEZ
Nature: Petition for review on Certiorari
FACTS
Sojor, an Engineer IV at General Services Department of Cadiz, was involved in 2 admin cases:
1) Administrative Case No. 96-04[5] for Unjust Vexation, Contempt, Insubordination, Conduct Unbecoming a Public Officer, and Alarm and Scandal; and
2) Administrative Case No. 96-05[6] for Grave Misconduct and Engaging in Partisan Political Activity
*City Legal Officer (for investigation): recommended DISMISSAL FOR GRAVE MISCONDUCT (2 cases) and for partisan politics. City Mayor approved both recommendations, issued Memo addressed to Geronga meting him with the penalty of dismissal. Geronga filed w/ CSC a NOTICE OF APPEAL (w/o counsel), and further filed a Joint Memo in w/c he discussed only 1 of the 2 admin cases against him (still w/o counsel)
*CSC: Appeal granted. Petitioner (and the 2 others) reinstated. Varela filed MR, pointed out that Geronga could no longer be reinstated as he failed to appeal the other civil case (w/c dismissed Geronga), thus it became final.
*CSC on MR: partly granted, reversing earlier CSC decision on Geronga (thus Geronga would NOT BE REINSTATED). MR (by both) DENIED. Appeal w/ CA.
*CA: DENIED. MR by Geronga. DENIED.
ISSUES AND RULINGS
1. Whether or not the Civil Service Commission acted properly and within the bounds of its own rules and regulations in entertaining the motion for reconsideration of Mayor Varela from its Resolution No. 990714 dated March 25, 1999;
YES. W/ CSC v. Dacoycoy, even decisions exonerating an employee may be appealed by the appointing authority who has disciplinary power over said employee.
Sections 37(a) and 39 of PD 807 (Philippine Civil Service Law) and Section 47 of EO 292 (Admin Code):
Section 37. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a
*penalty of suspension for more than thirty days, or
*fine in an amount exceeding thirty days salary,
*demotion in rank or salary or transfer,
*removal or dismissal from office x x x.
Section 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days x x x.
Section 47, Admin Code: CSC may entertain appeals only from: (same as Section 37(a))
SC IN PREVIOUS DECISIONS:
>cannot appeal decision EXONERATING EMPLOYEE
>only said employee who is “party adversely affected” could appeal; other persons, such as the appointing or disciplining authority, CANNOT APPEAL
BUT NOW: As was held in CSC v. DACOYCOY, a judgment of exoneration in an administrative case is appealable by CSC and/or the appointing authority who exercises the power to discipline or remove an erring employee.
2. Whether or not the Court of Appeals erred in upholding the dismissal of the petitioner (related: WON dismissal of petitioner became final for failure to appeal)
YES. CSC and CA merely declared that the decision dismissing Geronga is FINAL AND EXECUTORY for the latter’s failure to seasonably appeal. They failed, however, to see that what Geronga was appealing was in fact the Memo of Varela which sought to implement the decision of both admin cases where Geronga was sentenced to be dismissed. So GERONGA DID NOT FAIL TO APPEAL.
RECOMMENDATION TO DISMISS VS. ADMIN DECISION/RESOLUTION SENTENCING TO DISMISSAL:
| Recommendation to Dismiss | Decision/resolution sentencing Dismissal |
| -That contained in a formal investigation report issued by a hearing or investigating officer, submitted to the disciplining authority for approval -merely states the findings of probable cause that petitioner is guilty of the admin charges filed against him and recommendation that he be dismissed -not a proper subject matter of an appeal | -rendered by the disciplining authority after receipt of the recommendation of the investigating/hearing officer and on the basis of his independent assessment of the case -while it may incorporate by reference the recommendation, it goes further by categorically declaring petitioner guilty of the administrative charges and imposing penalty of dismissal. -appealable or subject of execution if already final |
Ulit:
-there are 2 admin cases, 2 decisions
-1 memo from Varela enforcing the decisions which sentenced Geronga to dismissal
-Geronga appealed the MEMO, not the decisions, so he effectively included in his appeal BOTH ADMIN DECISIONS.
BUT: Geronga failed to raise an issue or argument against the failure of both CSC and CA to look into the merits of the decision. So he is deemed to have waived it.
BUT ULIT: Apply equity where the security of tenure of labor is at stake. Should there be doubt in the legality of either cause or mode of dismissal, public interest demands the resolution of the doubt wholly on its substance, rather than solely on technical minutiae.
>>>Geronga was UNAIDED BY LEGAL COUNSEL when he appealed so he may have omitted to raise specific grounds against the decision.
3. WON Geronga was denied due process
YES. Resolution as for 1st admin case void.
2 fundamental requisites of due process:
a. Duly informed of the charges against him
b. Cannot be convicted of an offense or crime w/ w/c he was not charged
>>>BUT GERONGA WAS DISMISSED FOR AN ACT W/C WAS NOT ALLEGED IN THE ADMINISTRATIVE CHARGE FILED AGAINST HIM
-Charges concerned his refusal to comply with several orders issued by Varela and Mateo for the filing of daily time records and his having challenged Mateo to a fistfight (NO GRAVE MISCONDUCT CHARGE). BUT RECOMMENDATION pertains solely to the alleged defamatory statements which Geronga made in his Letter-Answer to the sworn complaint.
*As for the other admin case, leave prerogative to the primary disciplining authority (incumbent mayor of Cadiz)
DISPOSITION. Grant petition. Reverse and Set Aside CA Joint deci insofar as Geronga is concerned. Annul CSC Resolution. Remand admin case to mayor.
CSC v. Sojor
544 SCRA 160
May 22, 2008, REYES
FACTS
-Sojor, president of Central Visayas Polytechnic College. Pursuant to the Higher Education Modernization Act of 1997, A Board of Trustees (BOT) was formed as the governing body in state colleges. BOT of CVPC appointed Sojor for 2 terms.
-CVPC was converted into the Negros Oriental State University. BOT was transformed into BOR.
-3 separate administrative case were filed vs. Sojor by CVPC faculty members before CSC Regional Office in Cebu:
1. ADMC DC No. 02-20(A) - Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the absence of the required Plantilla and Salary Adjustment Form and valid appointments.
2. ADM DC No. 02-20 - Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of their academic ranks.
3. ADM DC No. 02-21 - Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism under the Administrative Code.
-Sojor filed MTD on first 2 on the ff grounds:
(1) lack of jurisdiction: he is a presidential appointee, part of the non-competitive or unclassified service, thus exclusively under the disciplinary jurisdiction of the OP, not the CSC
(2) bar by prior judgment;
(3) forum shopping
*CSC-RO: denied MTD. MR DENIED. Thus formally charged of the 3 admin cases. Appealed
*CSC: dismissed appeal, proceeded w/ investigation, Sojor preventively suspended for 90 days
…it ruled that CSC had concurrent jurisdiction w/ BOT of the CVPC, he being appointed by the BOT/BOR and not by the president
…CSC Categorized Sojor as a 3rd level official who are under the jurisdiction of the CSC
…Sojor appealed to CA:
(1) GAD
(2) Encroached upon academic freedom of CVPC
(3) Power to remove, suspend and discipline was exclusively lodged in the BOT of CVPC
*CA: issued writ of preliminary injunction so CSC would cease formal investigation. Subsequently ruled in favor of SOJOR.
…CSC had no jurisdiction. BOT had the power to do so. General law (Admin Code) does not prevail over a special law (RA 9299)
Issues
1. WON CSC had jurisdiction over the admin charges
2. WON BOR has exclusive jurisdiction over admin charges or concurrent
3. WON there was violation of academic freedom
HELD: For CSC
1. CSC has jurisdiction
*Consti: CSC has jurisdiction over the entire civil service
*Scope of Civil Service
-COnsti: every
>branch,
>agency,
>subdivision, and
>instrumentality of the government,
>including every government-owned or controlled corporation.
*CSC: Career and non-career
I. Career service positions:
A. Qualifications:
1. entrance is based on merit and fitness or highly technical qualifications;
2. there is opportunity for advancement to higher career positions; and
3. there is security of tenure.
B. Scope
1. Open Career positions for appointment to which prior qualification in an appropriate examination is required
2. Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems
3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;
4. Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs;
5. Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;
6. Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service
7. Permanent laborers, whether skilled, semi-skilled, or unskilled
C. Levels
1. First Level: clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;
2. Second Level: professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level
3. CESO Level
II. NON-CAREER
A. Characteristics
1. Entrance not by the usual tests of merit and fitness
2. Tenure limited to a period
a. Specified by law
b. Coterminous w/ appointing authority
c. Limited to duration of project for which he was hired
B. Scope
1. Elective officials and their personal or confidential staff
2. Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s)
3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;
4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency;
5. Emergency and seasonal personnel
>>>CSC granted jurisdiction over all civil service positions in the government service.
*Revised Uniform Rules on Administrative Cases in Civil Service provides that CSC is the final authority to pass upon all matters relating to the conduct, discipline and efficiency of civil service officers and employees
>>> SOJOR, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC.
2. CSC has concurrent jurisdiction with BOR over a president of a state university
-RA 8292 (Higher Education Modernization Act of 1997) provides that the school’s governing board shall have the general powers of administration granted to a corporation, and also grants it the power to remove school faculty members, administrative officials, and employees for cause. BOR has sole power of administration over the university BUT NOT THE EXCLUSIVE POWER TO DISCIPLINE AND REMOVE ITS EMPLOYEES AND OFFICIALS. RA 9299 which grants specific power to BOR to discipline its employees and officials do not show that this power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter. This was already resolved in the similar case of UP vs. Regino, Camacho vs. Gloria
3. NO VIOLATION OF ACADEMIC FREEDOM: may not be invoked for alleged violations of civil service laws and rules
-Academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom.
4. NO CONDONATION. Salalima vs. Guingona and Aguinaldo vs. Santos does not apply as this case involves an appointive official.
DISPOSITION. Petition granted.
CSC v. Dacoycoy
306 SCRA 425
April 29, 1999, PARDO, J.:
Nature: Appeal via certiorari
FACTS
-Suan, Citizens Crime Watch VP, filed w/ CSC QC a complaint vs. Dacoycoy, the Vocational School Administrator for Balicuatro College of Arts and Trade, for HABITUAL DRUNKENESS, MISCONDUCT AND NEPOTISM.
-on Nepotism: His two sons were recommended by Mr. Daclag, Head of the Vocational Department of BCAT, was recommended by Dacoycoy, then approved by DECS Regional Director Dioko, w/ provision that such shall be under the immediate supervision of Daclag. As for Ped Dacoycoy’s appointment as casual utility worker, Dacoycoy was the one who certified that “funds are available for the proposed appointment of Rito Dacoycoy” and even rated his performance as “very satisfactory”. Ped stated in his position description form that his father was “his next higher supervisor”.
*CSC Regional Office (fact-finding): issued corresponding formal charge, found no substantial evidence to support charge of habitual drunkenness and misconduct but GUILTY OF NEPOTISM on 2 counts: appointment of 2 sons as driver and utility worker, and their assignment under his immediate supervision and control, DISMISSED. MR DENIED. APPEALED to CA
*CA: reverse and set aside CSC: HE DID NOT APPOINT OR RECOMMEND HIS TWO SONS, so NOT GUILTY.
ISSUE: SCOPE of BAN ON NEPOTISM: WON a public official could be liable for nepotism even if he did not appoint his relative (but his relative is under his immediate supervision)
HELD: YES. GUILTY OF NEPOTISM
>>>The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent’s two sons and placed them under respondent’s immediate supervision serving as driver and utility worker of the school. Both positions are career positions.
Applicable law: Sec.59 (see de leon for the copy)
Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.
ON WON CSC is the party to appeal when CA reverses its judgment: YES. Now expressly abandon and overrule extant jurisprudence that:
a. “the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office” and
b. not included are “cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an amount not exceeding thirty days salary” or
c. “when the respondent is exonerated of the charges, there is no occasion for appeal.”
…In other words, we overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges”
DEBULGADO vs. CSCS NOT APPLICABLE: The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 “means exactly what it says in plain and ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.”
-Remember that NEPOTISM BAN was meant to be comprehensive!
DISPOSITION. GRANT PETITION, REVERSE CA DECISION
Quimbo vs. Gervacio
466 SCRA 277
August 9, 2005 CARPIO MORALES
Nature: Petition for review on certiorari
FACTS
-Quimbo, the Provincial Engineer of Samar, was administratively charged for HARASSMENT AND OPPRESSION by Padoan, a general foreman who was detailed to the Motor Pool Division, Provincial Engineering by then Prov. Gov. Quimbo was placed under preventive suspension w/o pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond 6m. He began serving it on March 18, 1998 but it was lifted April 27, 1998 after presenting 2 witnesses on direct examination.
*OFFICE OF DEPUTY OMBUDSMAN: GUILTY of OPPRESSION, suspended from office for 8 months w/o pay. Approved by Ombudsman. MR DENIED. Elevated to CA
*CA: GUILTY OF SIMPLE MISCONDUCT, suspension of 2 months w/o pay.
-CA deci became final so Ombudsman ordered Provincial Governor its implementation. Quimbo filed MR/Motion for modification of said order, calling to attention the fact that he was on preventive suspension from March 18 to June 1, 1998 (so in effect, he wanted his 2m17d suspension previously served to be credited for his penalty, thus he won’t serve it anymore)
-Provincial Governor sought clarification w/Ombudsman. *Ombudsman clarified that since preventive suspension is not a penalty, but a preliminary step in the investigation. If investigated then found guilty, imposition of penalty warranted. Quimbo appealed to CA.
*CA: dismiss petition. AFFIRM OMBUDSMAN
ISSUE: WON the preventive suspension should be credited for his penalty
HELD: NO. Preventive suspension is not a penalty. Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension.
-this is EXPRESSLY PROVIDED UNDER SEC25, RULE XIV:
SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty.
NATURE OF PREVENTIVE SUSPENSION: merely a preventive measure, a preliminary step in an administrative investigation
-purpose: prevent accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper w/ records w/c may be vital in the prosecution of the case against him
-not a penalty: RULE XIV, Section 21, OMNIBUS RULES IMPLEMENTING BOOK V OF THE ADMIN CODE
ON NON-APPLICATION OF GLORIA: It involves 2 kinds of preventive suspension which is relevant in determining
>the entitlement of the employee to compensation during the period of suspension
> the crediting of preventive suspension to the final penalty of suspension
| PENDING INVESTIGATION | PENDING APPEAL |
| (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]) | if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law) |
| Not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation | A penalty, BUT: *if subsequently exonerated: considered under preventive suspension, should be reinstated w/ full pay for period of suspension *if conviction affirmed: period of suspension becomes part of final penalty of suspension (so credited) |
>>>as QUIMBO’s suspension is pending investigation,IT CANNOT BE CREDITED TO FORM PART OF THE FINAL PENALTY OF SUSPENSION
NON-APPLICATION OF CREDITING IN CRIMINAL LAW: Not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit.
NONAPPLICATION OF EQUITY: law expressly provides that rules on crediting of preventive suspension to final penalty of suspension is not allowed.
Disposition: DENIED
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