DILG Opinion No.

18 S, 2010
March 03, 2010
MARILOU B. GESLANI
Municipal Local Government Operations Oicer
Malasi!ui, "an#asinan
Dear Ms. Geslani$
%his pertains to &our letter re!uestin# this Department's le#al opinion on the
ollo(in# !ueries, (hich (e !uote$
)* One o the +aran#a& Mem,ers o +aran#a& "o,lacion
resi#ne- on .e,ruar& 1/, 2000. )ccor-in# to source, the
person to ,e recommen-e- ,& the +aran#a& 1ouncil is the
son o the Ma&or an- please ,e inorme- also that the
"unon# +aran#a& o sai- ,aran#a& is the son also o the
ma&or.
M& !uestion is, can the Ma&or appoint his son to replace
the vacate- position in the San##unian# +aran#a&2 Is it not
covere- ,& nepotism2
+* One o the mem,ers o the San##unian# +aran#a& o
+aran#a& "a&ar resi#ne- on Decem,er 31, 2000. %he
San##unian# +aran#a& then recommen-e- Mr. Samuel
Macarae# an- su,mitte- their resolution sometime in 3anuar&
to the Municipal Ma&or.
%he Ma&or -i- not act on the recommen-ation o the
+aran#a& 1ouncil. It is speciie- in the Local Government
1o-e o 1001 that there shoul- ,e no vacant position in the
San##unian. 4hat (ill the +aran#a& 1ouncil -o (ith the
situation state- a,ove25
In repl& to &our irst !uer&, please ,e inorme- that 6Nepotism5 has ,een -eine-
,& the 1ivil Service La( as ,esto(al o patrona#e ,& pu,lic oicers in appointin# others
to positions ,& reason o ,loo- or marital relationships to the appointin# authorit&. %his
is prohi,ite- ,& la( an- the prohi,ition has ,een reiterate- in the Local Government
1o-e (ith respect to appointments o local oicials an- emplo&ees. %hus, Section 70 o
the Local Government 1o-e provi-es an- (e thereore !uote$ 6No person shall ,e
appointe- in the career service o the local #overnment i he is relate- (ithin the ourth
civil -e#ree o consan#uinit& or ainit& to the appointin# authorit&.5
%he a,ove8!uote- provision o the la( on nepotism e9pressl& an- clearl& applies
onl& to positions in the career service. :n-er the 1ivil Service La(, elective oicials are
consi-ere- an- em,race- in the non8career service. ) San##unian# +aran#a&
Mem,er is an elective position, thereore ,ein# an elective position, it (ill not ,e
covere- ,& the la( on nepotism.
%hus, i the appointment to ,e ma-e ,& the Ma&or to his son as San##unian#
+aran#a& Mem,er is challen#e- onl& or ,ein# nepotic, (e are o the vie( that such
appointment is still vali- consi-erin# that appointment to elective positions is not
covere- ,& the la( on nepotism.
)nent &our secon- !uer&, ma& (e irst invite &our attention to the e9press
provision o Section ;< =a* =3* o the Local Government 1o-e, to (it$
6Sec. ;<. "ermanent >acancies in the San##unian. ?
=a* "ermanent vacancies in the San##unian (here
automatic successions provi-e- a,ove -o not appl& shall ,e
ille- ,& appointment in the ollo(in# manner5
999 999 999
=3* %he cit& or municipal ma&or, in case o the San##unian#
+aran#a&, upon recommen-ation o the San##unian#
+aran#a& concerne-.5
.rom the aore8!uote- provision o la(, it is clear that the Municipal Ma&or is the
one veste- (ith the po(er to appoint a San##unian# +aran#a& Mem,er to ill up in
case a permanent vacanc& occurs in the San##unian# +aran#a&. Such po(er to
appoint, is su,@ect to the re!uirement o recommen-ation rom the San##unian#
+aran#a& (here the vacanc& occurre-.
"lease ,e it note- that the Ma&or cannot reuse to appoint (hen the
recommen-ee possesses all the !ualiications an- none o the -is!ualiications. )n&
(ithhol-in# on the part o the ma&or shall ,e consi-ere- (himsical, ar,itrar&, an-
un@ustiia,le an- (ill thus ,e tantamount to a,use o authorit&. .urther, the o,@ections
to ,e ma-e ,& the Ma&or shall ,e put in (ritin# citin# clearl& the ,asis o his o,@ections
thereto.
In case o inaction, ,& the Ma&or, to the appointment o Mr. Macarae#, (ithout
an& e9planations in (ritin# to the mem,ers o the San##unian# +aran#a&, then the
San##unian# +aran#a& Mem,ers ma& ile a petition or Man-amus in the 1ourt o
#eneral @uris-iction in or-er to compel the Ma&or to act on the matter.
Aope (e have a--resse- &our concern on the matter.
>er& trul& &ours,
+& )uthorit& o the Secretar&$
ATTY. JESUS B. DOQUE IV
Director III
1c$
Manuel >. +iason, 1BSO III
Ce#ional Director, Ce#ion 01