Republic of the Philippines

COURT OF APPEALS
Mindanao Station
Cagayan de Oro City

ERLINDA V. CASTAÑARES1 CA G.R. No. SP No.

Punong Barangay 08649-MIN
DIOSIFINA M. ARANGCON
Barangay Treasurer FOR: Petition for
RUTH G. BALORE Review under
Barangay Kagawad Rule 43 of the Rules
(all of) Barangay Silae, Malaybalay, of Court
Bukidnon
Petitioners,

-versus-

RODOLFO M. ELMAN,
in his capacity as the Deputy Ombudsman
for Mindanao,
Respondent,
x------------------------------------------------------------------x

MEMORANDUM/POSITION PAPER OF
PETITIONERS

COME NOW, Petitioners, Erlinda V. Castañares, Diosifina M.

Arangcon and Ruth G. Balore, through the undersigned counsel and unto
this Honorable Court of Appeals, most respectfully submit this
memorandum/position paper to amplify the arguments as found in the
Petition:

BRIEF STATEMENT OF FACTS

1. This case stemmed from a complaint filed by Gerlie Primentel

against the herein petitioners before the Office of the
Ombudsman – Mindanao Station (hereinafter referred to as
Respondent). Petitioner Erlinda V. Castañares, is the former
Punong Barangay of Barangay Sila-e, Malaybalay City,
Bukidnon, while petitioners Diosifina M. Arangcon and Ruth G.

1 Petitioner Erlinda V. Castañares, formerly Erlinda V. Inocando, recently entered into marriage and now
using the last name of his husband.
 Balore, are the secretary and one of the barangay kagawads of
Barangay Sila-e, respectively;

2. Primentel alleged that on several dates ranging from January

2011 to July 2015, the petitioners engaged in barangay payroll
paddling since the on-call drivers Edwin Cantorne and
Joyraldine Castañares were ghost employees of the barangay;

3. In the decision dated December 22, 2017 of the respondent, the

petitioners were found guilty of grave misconduct on the ground
that there was no resolution authorizing the hiring of drivers
Cantorne and Castañares;

4. A joint motion for reconsideration to the said decision of the

respondent was filed by the petitioners but the same was denied
by the former in an Order dated February 26, 2018. The
respondent meted the petitioners with a penalty one (1) year
suspension without pay;

5. Hence, a Petition under Rule 45 of the Rules of Court was

seasonably filed by the petitioners before this Honorable Court
of Appeals questioning the said decision and resolution.

ISSUE

WHETHER OR NOT THE PETITIONERS SHOULD BE HELD

ADMINISTRATIVELY LIABLE FOR GRAVE MISCONDUCT.

ARGUMENTS

1. Respondent in its decision found petitioners guilty of grave

misconduct on the ground that the petitioners paid the services of
Cantorne and Castañares absent any authority by way of a
resolution, thereby giving them unwarranted benefits;

2. To start with, misconduct, as defined in a catena of cases2 decided

by the Supreme Court, is a transgression of some established and
definite rule of action, more particularly, unlawful behavior or grave
negligence, by a public officer. In grave misconduct, as
distinguished from simple misconduct, the elements of

2 OFFICE OF THE OMBUDSMAN, Petitioner, vs. AVELINO DE ZOSA and BARTOLOME DELA
CRUZ, Respondents, G.R. No. 205433, January 21, 2015; Vertudes v. Buenaflor, G.R. No. 153166,
December 16, 2005; Imperial, Jr. vs. GSIS, G.R. No. 191224, October 4, 2011
 corruption, clear intent to violate the law or flagrant disregard of
the rules must be manifest and established by substantial
evidence. Grave misconduct means willful, intentional neglect
and failure to discharge the duties of the office. Something which
is wrong, improper conduct. Grave means flagrant or shameful.
Therefore, to qualify a misconduct as grave, it is essential that
corruption, clear intent to violate the law or flagrant disregard of
the rules is present;

3. Corruption, as an element of grave misconduct, consists in the

official or employees act of unlawfully or wrongfully using his
position to gain benefit for one’s self. It is the using of one’s position
to gain or benefit with depraved motives;

4. An act is done willfully if it is done intentionally and with the

specific intent to do something which the law forbids. (US vs.
Greenup 1999 U.S. App. LEXIS 12027 (6th Cir. Tenn. June 7,
1999). Willful means “voluntarily and purposely committing an
act with the specific intent of disobeying or disregarding the law
(US vs. Hoffman 918 F. 2d 44, 36 (6th Cir. Ky. 1990);

5. Based on the above cited jurisprudential definitions, the act done by

the petitioners – failure to secure a resolution for the hiring of the
drivers - could not be considered as grave misconduct because none
of the qualifying circumstances are present;

6. As argued by the petitioners in the Petition, there is no evidence that

petitioners profited pecuniarily from the act imputed upon them. It
was even done in order to address the needs of the constituents of
the barangay. Without the hiring of the driver, it would be
impossible for the residents of Barangay Silae to have a vehicle in
cases of emergency. The foremost consideration was the welfare of
the people and never the personal interests of the petitioners;

7. Moreover, the lack of authority in hiring the drivers, by way of

resolution from the Barangay Council of Silae, cannot be equated
to or said to correspond to grave misconduct. Grave misconduct, as
previously defined, connotes willful intent. In the present
circumstances, there is no willful intent to violate the prevailing
laws since it has been the practice of barangay to hire drivers
without the authority since the drivers are hired on “on-call” basis.
Several circumstances militate in favor of this conclusion;
 8. Petitioner Castañares merely responded to the clamor of the
barangay residents to have a vehicle easily accessible by the
constituents in cases when lives are at stake. Knowing that
requesting for a serviceable emergency would take time to be
approved and absence of which would be detrimental to public
service, Castañares took the initiative of offering her private vehicle,
free of charge. It is this sense of public service that pushed her to
hire the services of the drivers, although without authority.
Castañares’s good intentions are apparent and this resulted to
immediate responses in instances of emergency. Lives were saved
and the purpose for which the Barangay local government was
established is accomplished. It is a fact that Barangay Sila-e is one
of the far-flung barangays of Malaybalay City and an emergency
service vehicle is a must. An emergency vehicle could not possibly
run without a driver. How can this act for public service now be
interpreted as grave misconduct? This is plainly contrary to the
decision that there was willful intent to violate the law or disregard
of established rules. These qualifying circumstances of willful intent
to violate the law or disregard of established rules must also be
established by substantial evidence separate from the showing of the
misconduct itself. In this regard the Deputy Ombudsman failed to
touch upon;

9. The Deputy Ombudsman also failed to consider the affidavits

executed by former and present barangay officials who attested that
the hired drivers rendered services to the barangay and its
constituents. In the said affidavits, the affiants attested that the
hiring of the drivers was merely an answer to the needs of the
constituents. Nothing more, nothing less;

10. Additionally, it is also undeniable that the money disbursed to the

drivers as compensation are for actual services rendered by them. To
deny them of such compensation would result to unjust enrichment
which the law never intended to happen;

11. Again, it is clear from the foregoing that the elements of corruption,
clear intent to violate the law or flagrant disregard of the rules are
absent in this case since the hiring of the drivers was done in good
faith and with the end view of public service. Plain and simple;

12. Apart from the lack of authority, through a resolution, in the

hiring of Cantorne and Castañares, there was no specific act which
showed or indicated or, at the very least, implied that the
petitioners were motivated by corruption, clear intent to violate
the law or disregard of the rules. The non-securement of the
 resolution was a mere error of judgment or can be no more than
simple negligence, for which admonition and/or reprimand would be
the proper imposable penalty. Having been suspended since February
2018 up to present, the same period shall already constitute more than
enough to pay whatever transgression the petitioners may have made.
It cannot also be denied that the issuance of a resolution is a collegiate
act or a joint decision by the whole Barangay Sanggunian and does
not depend on the petitioners;

13. Based on the foregoing arguments, the alleged act of the petitioners
cannot be equated or considered as ground for taking disciplinary
administrative action, since the elements qualifying the charges to
grave misconduct are absent. The act was also done in good faith and
at most merely an error of judgment. The records of the case do not
reveal any bad faith on the petitioners not evidence tending to show
intent to, or actual, profit in the hiring of the drivers. How can an act
done in good faith, which, at most, constitutes only as an error of
judgment, and done not for any ulterior motives and/purposes,
satisfy the definition of grave misconduct?

14. As held in Malonzo vs. Zamora 3 , misconduct, being a grave

administrative offense for which petitioners stood charge, cannot be
treated cavalierly. There must be clear and convincing proof on
record that the petitioners were motivated by wrongful intent,
committed unlawful behavior in relation to their respective offices, or
transgressed some established and definite rule of action;

15. Even assuming, for the sake of argument, that there were valid
grounds for the imposition of the penalty, the one (1) year suspension
cannot be applied in its entirety because it will violate Sec. 66 (b) of
the Local Government Code of 19914. Under the said provision the
penalty of suspension shall not exceed the unexpired term of the
respondent or a period of six (6) months for each administrative
offense;

16. In the present case, the term of office of the petitioners ended in the
morning of June 30, 2018. Therefore, the petitioners should no longer
be suspended for the remainder of their one-year suspension after
their term ended. This holds most true with regard to petitioner
Castañares since she was re-elected 5 as the Punong Barangay of

3 G.R. No. 137718. July 27, 1999

4 Sec. 66. xxx
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of
six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.
5 Attached herewith is the certified true copy of the Oath of Office of Erlinda V. Castañares and a
Certification from the Commission of Elections as Annexes “A” and “B”, respectively
 Barangay Sila-e. Castañares could no longer be made to suffer the
penalty which have already been cut-off because her term has already
ended;

17. Moreover, Castañares was not precluded from running for a public
office since suspension is not one of the grounds for barring someone
from seeking public office. This would necessarily mean that since a
suspended public official can run from office, he can assume office
once he is elected for another term. To interpret it otherwise would
mean that Sec. 66 (b) of the LGC would be set to naught. The
legislative branch of our government in enacting the Local
Government of Code did not intend to allow a public official to
run in an election and win the same but to thereafter disallow him
to assume office. By no stretch of legal logic can this provision be
construed in this manner. In connection to Sec. 66 (b) of the LGC is
Sec. 40 (b) 6 of the LGC which provides that those removed from
office shall not be eligible for any public post. Removed public
officials because of an administrative offense are disqualified from
running in any local elective official. This is not the case of suspension
because as long as the suspended official has all the qualifications
and none of the disqualifications required in the public office
sought, he could run and eventually could assume office in case of
a victory in the elections;

18. In the Implementing Rules and Regulations of the Local

Government Code of 1991, Sec. 130 (c) thereof reiterated the above-
cited provision of the LGC. Also, Administrative Order No. 159
dated November 25, 1994 provided that “[t]he penalty of suspension
shall not exceed the unexpired term of the respondent, or a period of
six (6) months for every administrative offense, nor shall said penalty
be a bar to the candidacy of the respondent so suspended as long as
he meets the qualifications required for the office.";

6 Section 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

 19. The above-cited provision is mentioned in the case of Carpio-
Morales vs. Court of Appeals and Binay7. In that case, the Supreme
Court has to say:

“In contrast, Section 66 (b) of the LGC states that the penalty
of suspension shall not exceed the unexpired term of the elective local
official nor constitute a bar to his candidacy for as long as he meets
the qualifications required for the office. Note, however, that the
provision only pertains to the duration of the penalty and its effect
on the official's candidacy. Nothing therein states that the
administrative liability therefor is extinguished by the fact of re-
election;

20. In Office of the Ombudsman vs. Mayor Julius Cesar Vergara 8

which was decided only by the Supreme Court on December 6, 2017
provided that, “[a]t best, Section 66 (b) of the LGC prohibits the
enforcement of the penalty of suspension beyond the unexpired
portion of the elective local official's prior term, and likewise
allows said official to still run for reelection;

21. Furthermore, the Supreme Court in the case of Salimama vs.

Guingona, Jr. 9 held that [Sec. 66 (b) of the Local Government
Code] sets the limits to the penalty of suspension, viz., it should not
exceed six months or the unexpired portion of the term of office of
the respondent for every administrative offense;

22. Additionally, even though the petitioners were penalized under the
Rules of Procedure of the Office of the Ombudsman and the Revised
Rules on Administrative Cases, this does not mean that the
provisions of the Local Government Code cannot be made to apply.
The provisions of the aforesaid rules should be construed in relation
to the provisions of the Local Government Code consistent with the
principles of statutory construction. If the applicable provisions of the
said rules were to be construed in such a manner that the penalty of
suspension may exceed the term of office of the public official
suspended, it will render nugatory the provisions of the LGC and
would be in direct collision course with each other. This was, for sure,
never intended when the Rules of Procedure of the Office of the
Ombudsman and the Revised Rules on Administrative Cases were
formulated.

7 G.R. Nos. 217126-27, November 10, 2015

8 G.R. No. 216871
9 G.R. Nos. 117589-92. May 22, 1996
 23. Also, since LGC is an invention of the legislative branch of our
government, it must necessarily prevail should there be an
irreconcilable conflict between the LGC and the provisions of Rules
of Procedure of the Office of the Ombudsman and the Revised Rules
on Administrative Cases consistent with the basic rules on statutory
construction. Correspondingly, the provisions of Rules of Procedure
of the Office of the Ombudsman and the Revised Rules on
Administrative Cases shall be construed not only to be consistent
with itself but also to harmonize with other statues on the same
subject matter, as to form a complete, coherent and intelligible
system;

24. It is always worthy to note that the nature of Sec. 66 (b) of the LGC
is not to condone or totally extinguishes the administrative liability
but only limits the imposition of the entirety of penalty because the
term of office of the public official has already ended. How can
someone be suspended when his term has already concluded?

25. In sum, Sec. 66 (b) of the LGC sets the limits to the penalty of
suspension, viz., it should not exceed 6 months or the unexpired
portion of the term of office of the respondent for every administrative
offense. Stated differently, the penalty of suspension cannot exceed
six months or the unexpired portion of the petitioners’ term. Since
their term ended on the morning of June 30, 2018, they should not be
made to comply with the remaining penalty;

26. It cannot also be denied that despite the knowledge of the electorate
of the pendency of this present case, they still elected petitioner
Castañares. This is a manifestation that the electorate still trusts
Castañares and a unanimous favor of the excellent reputation of
Castañares;

27. Jurisprudence also teaches us that laws on suspension or removal of

elective public officials must be strictly construed and applied, and
the authority in whom such power of suspension or removal is vested
must exercise it with utmost good faith, for what is involved is not
just an ordinary public official but one chosen by the people through
the exercise of their constitutional right of suffrage.10;

28. In addition to the above arguments, the condonation doctrine as

ruled in the case of Aguinaldo vs. Santos11 is applicable in this case.
The condonation doctrine absolves the public official from any
liability arising out of any administrative case. Although the

10 G.R. No. 147870. July 31, 2002

11 G.R. No. 94115, August 21, 1992
 condonation doctrine has already been abandoned in the case of
Morales vs. Binay12, the abandonment is prospective in effect. The
allegations in the complaint of the so-called payroll paddling was
done sometime starting on January 2011 up to June 2015. The
condonation doctrine was abandoned on November 10, 2015. Since
the alleged acts were done prior to the abandonment of the
condonation doctrine, the doctrine still applies to the present
controversy. The re-election of petitioner Castañares in the recent
2018 Barangay elections effectively condoned the alleged payroll
paddling.

PRAYER

WHEREFORE, in view of all the foregoing and in the interest of

substantial justice, petitioners respectfully pray of this Honorable Court
that:

1. The above decision of the respondent Ombudsman, finding

the petitioners guilty of Grave Misconduct and suspending them for one (1)
year without pay be REVERSED and SET ASIDE; and

2. An order be issued ABSOLVING the petitioners from the

charges.

Petitioners further pray for such other and further reliefs as this
Honorable Court may deem just and proper under the premises.

Other just and equitable remedies are likewise prayed for.

RESPECTFULLY SUBMITTED this 31st day of October, 2018 at

the Malaybalay City, Bukidnon, Philippines.

LAGAMON AND ASSOCIATES LAW OFFICE

2nd Floor, Jamstar Bldg., corner
Judge Carillo-San Isidro St.
Brgy 5 Poblacion, Malaybalay City Bukidnon
Counsel for the Petitioners

By:

DENCE CRIS L. RONDON

Roll of Attorneys’ No. 67495
PTR No. 6933714/10-JAN-2018/BUK.
IBP O.R. No. 23742/15-JAN-2018/BUK.
Tax Identification No. 496-556-017-000
MCLE Compliance No. VI-00011496

12 G.R. No. 217126-27, November 10, 2015

Copy furnished:

RODOLFO M. ELMAN
Deputy Ombudsman for Mindanao
Office of the Deputy Ombudsman
Earth corner Libra Streets, GSIS Heights, Matina, Davao City

SIEGFRED L. ABANG
Field Investigation Unit
Office of the Deputy Ombudsman for Mindanao
Earth corner Libra Streets, GSIS Heights, Matina, Davao City

OFFICE OF THE SOLICITOR GENERAL

OSG Building, 134 Amorsolo St.,
Legaspi Village, Makati City, Metro Manila

GERLIE G. PRIMENTEL
Sila-e, Malaybalay City,
Bukidnon

EXPLANATION

Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil

Procedure, copies of the foregoing pleading were filed with the Honorable
Court of Appeals and served to the other party/parties via registered mail
at its above-indicated addresses, personal service not being practicable due
to great distance, time constraints, and lack of personnel.

DENCE CRIS L. RONDON