Atty. Anthony P.

Vitor

UPDATES ON LOCAL
GOVERNANCE
LOCAL GOVERNMENT DEFINED

A local government unit is a political subdivision of a nation or
state which is constituted by law and has substantial
control of local affairs (Basco et al. v. Pagcor, 197 SCRA
52,65 (1991).

it is an intra sovereign subdivision of one sovereign
nation

not an empire within an empire

PURPOSE OF THE LGU

They serve as an instrumentality of the State in carrying on
the functions of the government; and

They act as an agency of the inhabitants of the community
in the regulation and the operation of municipal affairs.
(Surigao Electric Co. Inc. vs. Municipality of Surigao, 24
SCRA 898)

Policy setting for the entire country lies with the President
and Congress

Municipal Governments are still agents of the national
government (Pimentel vs. Aguirre, 336 SCRA 201 (2000))

LGU CREATION
Congress wields the vast power of creating political
subdivisions, surely it can exercise the lesser authority of
requiring a set of criteria, standards, or ascertainable
indicators of viability for their creation. (League of Cities of
the Philippines vs. COMELEC, et.al., G.R. Nos. 176951,
177499, 178056, December 21, 2009)

Sec. 2, Art. 9 of the IRR stating that the land area
requirement shall not apply where the proposed province is
composed of one (1) or more islands is null and void.
Nowhere in the Local Government Code is the said
provision stated or implied. (Navarro, et. al. vs. Ermita,
180050, February 10, 2010)

The census of population must certified by the National
Statistics Office (Navarro, et. al. vs. Ermita, 180050, February
10, 2010)

NATURE OF LOCAL LEGISLATIVE POWERS

Municipal ordinances are superior in status and subordinate
to the laws of the state. An ordinance in conflict with a state
law of general character and statewide application is
universally held to be invalid (Batangas CATV vs. Court of
Appeals, GRN 138810 (September 29, 2004)

Local legislative bodies exercise only delegated legislative
powers conferred on them by Congress. As mere agents,
local governments are vested with the power of subordinate
legislation (Magtajas vs. Pryce Properties, GRN 111097, july
20, 1994)
A 3
rd
party has the burden of proving that the municipal
council did not comply with the condition of the Local
Government Code (Leynes vs. COA, GRN 143596, Dec. 11,
2003)

A party asserting that no public hearing was made has the
burden of proof (Figuerres vs. Court of Appeals, GRN
119172, March 25, 1999)

Courts must assume that the validity of a statute was fully
considered by the legislature when adopted (U.S. vs. Ten Yu,
GRN 7482, Dec. 28, 1912)

Framers of the ordinance are presumed to be familiar with
the necessities of their particular municipality or city and
with all the facts and circumstances which surround the
subject (Ermita-Malate Hotel and Motel Operations
Association vs. City Mayor of Manila (GRN L-24693, July 31,
1967)
Municipal corporations cannot prohibit the operation of
night clubs (De La Cruz vs. Paras, GRN L-42571-72, J uly 25,
1983)

Public plaza is beyond the commerce of man and so it
cannot be the subject of lease or any other contractual
undertaking (Villanueva et. al. v. Castaeda, 154 SCRA 142).

A public street is a property for public use; hence outside
the commerce of man (Francisco U. Dacanay v. Mayor
Macario Asistio, J r. e. at. G.R. No. L-93654, May 6, 1992
The sanggunian has no contempt nor subpoena power to
compel non-members to attend public hearing or
investigations in the exercise of its legislative powers.
(Negros Oriental II Electric Cooperative, Inc. v. Sangguniang
Panglungsod of Dumaguete, 153 SCRA 421)

the powers of the Land Transportation Franchising
Regulatory Board (LTFRB) to regulate the operation of
tricycles-for-hire and to grant franchises for the operation
thereof have been devolved to local governments under the
Local Government Code. (LTO vs. City of Butuan, G. R. No.
131512, J anuary 20, 2000)



Ordinance may, through its provision, require a qualified
majority for its modification or repeal (Casino vs. Court of
Appeals, GRN 91192, Dec. 2, 1991)

A resolutions (ordinance) may be passed by a sanggunian
providing financial assistance to qualified families
benefiting only a limited number of persons (Binay vs.
Domingo, GRN 92389, Sept. 11, 1991)
Rules are always within the power of the Batasan to modify,
change or replace any time. They do not have the force of
law but are merely in the nature of by-laws prescribed for
the orderly and convenient conduct of proceedings before
the Batasan. (Romulo v. Yniguez, GRN L-719908, February 4,
1986)


There is nothing in the law, however, which prohibits that
the three readings of a proposed ordinance be held in just
one session day. [Malonzo et al. vs. Zamora et al., GRN
137718, J anuary 28, 2000]


Where the statute or municipal charter requires the
municipality to act by ordinance, if a resolution is passed in
a manner and with the statutory formality required in the
enactment of an ordinance, it will be binding an effective as
an ordinance (Favis vs. City of Baguio, GRN L-29910, April
25, 1969)

A city mayor has the authority to file suits for the recovery
of funds and property on behalf of the city, even without the
prior authorization from the Sanggunian x x x he must sign
the certification against forum shopping not the city legal
officer (City of Caloocan vs. Court of Appeals, GRN 145004,
May 3, 2006)
The authority of the punong barangay to accept a donation
on behalf of the barangay is deemed ratified when through
the years, the sanggunian did not repudiate the acceptance
of the donation and when the barangay and the people of
the barangay have continuously enjoyed the material and
public service benefits arising from the infrastructure
projects put up the subject property (Dolar vs. Brgy. Lublub,
GRN 152663, Nov. 18, 2005)
An appropriation ordinance signed by the LCE authorizes
the release of public funds. A valid appropriation of public
funds lifts its exemption from execution (Caloocan City vs.
Allarde, GRN 107271, Sept. 10, 2003)
SUPERVISION VS. CONTROL
Consistent with the principle of local autonomy, the
Constitution confines the Presidents power over the local
government units to one of general supervision, which
provision has been interpreted to exclude the power of
control. (Province of Batangas vs. Romulo, 429 SCRA 736)

Congress retains control of the local government units
although significantly reduced degree now than under the
previous Constitutions. (Magtajas vs. Pryce Properties
Corporation, Inc. 234 SCRA 255)

QUESTION OF RESOLUTIONS/ACTS
OF THE BARANGAYS
It is the Mayor who can best review the Sangguniang
Barangays actions to see if it acted within the scope of its
prescribed powers and functions. Indeed, this is a local
problem to be resolved within the local government.

Section 32 of the Local Government Code, which
provides:

Section 32. City and Municipal Supervision over Their
Respective Barangays. - The city or municipality, through
the city or municipal mayor concerned, shall exercise
general supervision over component barangays to ensure
that said barangays act within the scope of their prescribed
powers and functions.

MANDATORY CONSULTATION

Two requisites before a national project that affects the
environmental and ecological balance of local
communities can be implemented:

Prior consultation with the affected local communities,
and

Prior approval of the project by the appropriate
sanggunian. (Province of Rizal vs. Executive Secretary,
GR. No. 129546, December 13, 2005)
LIABILITY OF THE LGU
For liability to arise under Art. 2189 of the Civil Code,
ownership of the roads, streets, x x x and other public works
is not a controlling factor, it being sufficient that a province,
city or municipality has control or supervision thereof. On
the other hand, a municipalitys liability under Section 149 of
the LGC of 1983 for injuries caused by its failure to regulate
the drilling and excavation of the ground for the laying of
gas, water, sewer, and other pipes, attaches regardless on
whether the drilling or excavation is made on a national or
municipal road, for as long as the same is within its
territorial jurisdiction. (Municipality of San J uan vs. CA,
G.R> No. 121920, August 9, 2005)

FISCAL AUTONOMY

Power to create their own sources and power to allocate
their resources in accordance with their own priorities
(Province of Batangas vs. Romulo, G.R. No. 152774, May 27,
2004)

Local legislative bodies may provide for additional
allowances and other benefits to national government
officials stationed or assigned to their municipality or city
(Villarea vs COA, G.R. No. 155383-84, Aug. 6, 2003)

A DBM LBC which provides a maximum limit to allowances
that may be given by local governments to judges is null
and void since the LGC of 1991 does not prescribed a limit
(Dadole vs. COA, G.R. No. 125350, December 3, 2002)

VALIDITY OF THE ORDINANCE

An ordinances must be presumed valid in the absence of
evidence showing that it is not in accordance with the law.
(Leynes vs. COA, G.R. No. 143596, December 11, 2003)

An ordinance prohibiting the operation of all bus and
jeepney terminals including those already existing, allows
the operation of only one common terminal located outside
the city, the franchise for which was granted to another
person (Lucena Grand Central Terminal vs. J AC Liner, G.R.
No. 148339, February 23, 2005)



Sections 50 and 52 of LGC of 1991 do not mandate that no
other business may be transacted on the first regular session
except to take up the matter adopting or updating rules
(Malonzo vs. Zamora, G.R. No. 137718, J uly 27, 1999)

There is nothing in the LGC which provides the three readings
of a proposed ordinance from being held in just one session
day (Malonzo vs. Zamora, G.R. No. 137718, J uly 27, 1999)


SANGGUNIAN REVIEW POWER

The only ground upon which a provincial board may declare
any ordinance or resolution is invalid is when such
ordinance or resolution is beyond the powers conferred
upon the council making the same. Absolutely, no other
ground is recognized by law x x x If the provincial board
passes these limits, it usurps the legislative functions of the
municipal council or present. (Moday v. CA, G. R. No.
107916, February 20, 1997).
ADMINISTRATIVE ACTIONS
When the crime involving moral turpitude is not linked with the
performance of official duties, conviction by final judgment is
required as a condition precedent to administrative action
(Palma v. Fortich, G.R. NO. L-59679, J anuary 29, 1987).

The purpose of administrative proceedings is to mainly protect
the public service based on the time-honored principle that a
public office is a public trust. (De J esus vs. Guerrero, G.R. No.
171491, September 4, 2009)
Administrative offenses do not prescribe. (Floria vs. Sunga,
A.M. C.A. No. 01-10-P, November 14, 2001)


The withdrawal of the complaint or the desistance of a
complainant does not warrant the dismissal of an
administrative complaint. (Escalona vs. Padillo, A.M. No. P-
10-2785, September 21, 2010}

In an administrative case, the complainant is a mere witness
(Gonzales v. De Roda, 64 SCRA 120).

VERIFICATION
Verification mainly intended to secure an assurance that the
allegations therein made are done in good faith or are true
and correct and not mere speculation. The lack of
verification is a mere formal defect. (J oson vs. Torres, G.R.
No. 131255, May 20, 1998)
CERTIFICATION OF NON-FORUM SHOPPING
The rule against forum shopping applied only to judicial
cases or proceedings, not to administrative cases. Thus,
even if complainants filed in the Ombudsman and the
sangguniang bayan identical complaints against private
respondent, they did not violate the rule against forum
shopping because their complaint was in the nature of an
administrative case. (Office of the Ombudsman vs.
Rodriiguez, G.R. No. 172700, J uly 23, 2010)
AGUINALDO DOCTRINE
Is Aguinaldo Doctrine or Doctrine of Condonation applicable
if the respondent is elected to another position?

Negative. For condonation to apply, reelection should be to
the same position for misconduct committed during a
prior term (OMB Letter to Atty. Arturo L. Sicat dated March
9, 2012)



Is Aguinaldo Doctrine or Doctrine of Condonation if the case
was filed when the respondent official was still holding an
appointive position?

Negative. The Doctrine of Condonation exclusively applies
to elective officials who were subsequently reelected (OMB-
OLA Letter to DILG RD QML dated August 21, 2010)

VALIDITY OF THE ORDINANCE
Test of a valid ordinance

It must not contravene the Constitution or any
statute;

It must not be unfair or oppressive;

It must not be partial and discriminatory;

It must not prohibit but may regulate trade;

It must be general and consistent with public policy;
and

It must not be unreasonable.

MANDATORY PUBLIC HEARINGS

Transfer of local government site, offices and facilities;

Reclassification of agricultural lands;

Contribution of funds, real estate, equipment, and other
kinds of property and appointment or assignment of
personnel in support of undertakings commonly beneficial
to local government units which have group themselves,
consolidated or coordinated their efforts, services and
resources;


Levy of taxes, fees and charges on any base or subject not
otherwise specifically enumerated in the LGC or taxed
under the NIRC, as amended, or other applicable laws; and

Enactment of local tax ordinances and revenue measures

Are the views of interested parties during public
hearing binding to sanggunian?

The views of the interested parties may not necessarily be
binding to the local legislative body (Hagonoy Market
Vendor Association vs. Municipality of Hagonoy, G.R. No.
137621, February 6, 2002)

TRAVEL AUTHORITY
Mayors approval on travel authority depends on the
source of funds;

if travel is chargeable to sanggunian funds, vice
mayor recommendation is necessary and the
approval of the mayor is ministerial;

if travel is chargeable to general fund of the
municipality, the approval of the mayor is
discretionary (DILG Opinion No. 05, s. of 2004
SANGGUNIAN AUTHORIZATION
R.A. No. 9184 never stated that the Head of the Procuring
Entity still needs to secure an authorization from his/her
sanggunian, rather, the law mandated the head of the
procuring entity to act accordingly within the given periods
of time. However, this is only applicable if the particular
contract is already authorized by the sanggunian in an
annual or supplemental ordinance (DILG Opinion No. 9, s.
2006, dated February 17, 2006)

SANGGUNIAN AUTHORIZATION
The question of whether a sanggunian authorization separate from
the appropriation ordinance is required should be resolved
depending on the particular circumstances of the case. x x x
Should the appropriation ordinance, x x x, already contain in
sufficient detail the project and cost of a capital outlay such that all
that the local chief executive needs to do after undergoing the
requisite public bidding is to execute the contract, no further
authorization is required, the appropriation ordinance already
being sufficient, but if the appropriation ordinance describes the
projects in generic terms such as infrastructure projects, inter-
municipal waterworks, drainage and sewerage, flood control,
irrigation systems projects, reclamation projects, roads and
bridges, there is an obvious need for a covering contract for every
specific project that in turn requires approval by sanggunian.
(Quisumbing vs. Garcia, G.R. No. 175527, December 8, 2008)



ACTING PRESIDING OFFICER
An acting presiding officer, may not, at the same time, be
allowed to exercise the rights of a regular board member
including that of voting even when there is no tie to break. A
temporary presiding officer who merely steps into the shoes of
the presiding officer could not have greater power than that
possessed by the latter who can vote only in case of a tie.
(Zamora vs. Caballero, G.R. No. 147767, J anuary 14, 2004)
THREE TERM LIMIT

While the city acquired a new corporate existence separate
and distinct from that of a municipality, this does not mean
that for the purpose of applying the constitutional provision
on term limitations, the office of the municipal mayor would
construed as different from that of the office of the city
mayor (Latasa vs. COMELEC, GRN 154829, Dec. 10, 2003)
QUALIFICATIONS


Qualifications for public office are continuing requirements
and must be possessed not only at the time of appointment
or election or assumption of office but during the officers
tenure; once any of the required qualification is lost, his/her
title may be seasonable challenged. (Republic vs. De La
Rosa, G.R. No. 104654, J une 6, 1994)

LUPON/PANGKAT
Referral to the Pangkat is mandatory only in those cases
where both parties have submitted themselves to the Lupon
for conciliation and conciliation has failed but not when one
of the party failed to appear without justifiable reason
(Alinsugay vs. Cagampang, G.R. No. L-69334, J uly 28, 1986)

Referral of a dispute to a lupon is required only where
parties thereto are individuals (natural persons) and not
where any of the parties is a juridical person (De Borromeo
vs. Pogoy, G.R. No. 63277, November 29, 1983)
While no pangkat was constituted, it is not denied that the
parties met at the office of the barangay chairperson for
possible settlement. The efforts of the chairperson proved futile
as no agreement was reached. Although no pangkat was
formed, there was substantial compliance with the law.
(Lumbuan vs. Ronquillo, G.R. No. 155713, May 5, 2006)

Lupon conciliation alone, without the proceeding before the
Pangkat, does not contravene the law on Katarungang
Pambarangay. Holding several conciliation meetings with the
punong barangay, head of the Lupon is substantial compliance
with the law (Zamora vs. Heirs of Izquierdo, G.R. No. 146195,
November 18, 2004)


APPOINTMENT OF BARANGAY OFFICIALS
Functions and duties of appointive barangay officials (other
than those mentioned in the LGC) shall be governed by
barangay ordinances in a legislative process.

Whether the employment is contractual or permanent
depends on the wisdom of the barangay ordinance.

The power to appoint, remove or replace barangay
secretary, barangay treasurer and other barangay
appointive officials explicitly vests unto the punong
barangay, upon approval by a majority of all the members of
the sangguniangay barangay (Alquzola Sr. vs. Ocol, GRN
132413, August 27, 1999)
The appointment of barangay treasurer is immediately
executory and that the latter can already enter into the office
and discharge the functions thereof pending concurrence
by the sanggunian concerned. (DILG Opinion 99-2007; MC
150-02-A)

Can the brgy. secretary refuse to make drafts of
resolutions/ordinances that were earlier enacted or adopted
by the sanggunian.

Yes. It is not one of the functions of brgy. secretary as
provided under Sec. 469 of the LGC nor any ordinance or
law has been passed providing such duty (DILG Opinion No.
59 s. 2008)
Can an elected official validly refuse acceptance of
responsibilities delegated by the sanggunian and punong
barangay?

No. Other duties of a sanggunian kagawad is to perform
such other duties and functions as the punong barangay
may delegate. It is considered a dereliction of duty (DILG
Opinion No. 66 s. of 2007
COMPENSATION OF BARANGAY OFFICIALS
Barangay officials are compensated in the form of
honorarium (LBC No. 66 dated March 4, 1998)

Honorarium is something give not a matter of obligation not
in appreciation or services rendered, a voluntary donation in
consideration of services which admit of no compensation
in money while salary is something given as a matter of
right in recompense for services rendered. (Santiago v.
COA, GRN 92284, July 12, 1991)



Barangay appointive officials are paid by way of honoraria,
thus are not entitled to separation and retirement pay (DILG
Opinion 102 dated November 9, 2007)

The basic consideration in measuring the services actually
rendered by an elective barangay official shall be his
attendance in regular and special sessions. Thus an
elective official will suffer a proportionate reduction of his
honoraria should he be absent in a session. DILG Opinion
No. 35, dated April 18, 2007)



Whether or not the barangay kagawads who incurred
absences during regular sessions can be deprived of their
honorarium.

Yes. Honorarium is a compensation for the services
actually rendered. (DILG Opinion 26 s. 2009)

Can he be removed from payroll? No. There is no
permanent vacancy.
VETO POWER
Only the governor and the mayor have the veto power, the
punong barangay has no such power since he exercises
dual capacity as barangay chief executive and presiding
officer of the sangguniang barangay.

Grounds for veto are:
a) the ordinances or parts thereof are ultra vires; or

b) the ordinances or parts thereof are prejudicial to the
public interest.


The veto may apply to:

entire ordinances or

particular items of certain ordinances such as:

appropriation ordinances;

ordinances adopting local development plans and public
investment program, and

ordinances directing payment of money or creating liability.



Veto power, a discretionary act. Veto power is not
a ministerial act. (De los Reyes v. Sandiganbayan,
November 13, 1997).

The acting mayor has a veto power (DILG Legal
Opinion No. 2, s. 2006)

If the mayor approved the ordinance, can he recall/revoke
his signature afterwards? (DILG Legal Opinion 9 s. 2008)

Veto power, a discretionary act. Veto power is not a
ministerial act. (De los Reyes v. Sandiganbayan, November
13, 1997).

The acting mayor has a veto power (DILG Legal Opinion No.
2, s. 2006)

DISCIPLINARY ACTION

An elective official cannot be removed or suspended for an
administrative misconduct committed during a prior term
since his re-election to office operates as a condonation of
his previous misconduct to the extent of cutting off the right
to remove him thereof (Salalima vs. Guingona, GRN 117589-
92, May 22, 1996)
SANGGUNIAN REVIEW POWER

The only ground upon which a provincial board may declare
any ordinance or resolution is invalid is when such
ordinance or resolution is beyond the powers conferred
upon the council making the same. Absolutely, no other
ground is recognized by law x x x If the provincial board
passes these limits, it usurps the legislative functions of the
municipal council or present. (Moday v. CA, G. R. No.
107916, February 20, 1997).
DISCIPLINARY ACTIONS
Misconduct has been defined as "such as affects his
performance of his duties as an officer and not only as
affects his character as a private individual. In such cases, it
has been said at all times, it is necessary to separate the
character of the man from the character of the officer."
(Lacson v. Roque, et al., 92 Phil. 456)

Moral Turpitude. When the crime involving moral turpitude
is not linked with the performance of official duties,
conviction by final judgment is required as a condition
precedent to administrative action (Palma v. Fortich, G.R.
NO. L-59679, J anuary 29, 1987).

the mayor has the authority to file suits "for the recovery of
funds and property" on behalf of the city, even without the
prior authorization from the Sanggunian. This conclusion is
strengthened by the fact that nowhere in the enumerated
powers and duties of the Sanggunian can one find the
requirement of such prior authorization in favor of the
mayor for the purpose of filing suits on behalf of the city
(City of Caloocan v. Court of Appeals, 489 SCRA 45, GRN
145005, May 3, 2006)

The power to remove erring elective local officials from
service is lodged exclusively with the courts. (Pablico vs.
Villapando, GRN 147870, J uly 31, 2002))

x x x if the acts allegedly committed by the barangay official
are of a grave nature and, if found guilty, would merit the
penalty of removal from office, the case should be filed with
the regional trial court. (Sangguniang Barangay of Brgy.
Don Mariano Marcos, Bayombong, Nueva Viscaya vs. PB
Martinez, GRN 170626, March 3, 2008)

The Local Government Code did not repeal the Ombudsman
Act (R.A. No. 6770). Hence, the discipline authority of the
Ombudsman over the local elective officials is concurrent
with the disciplining authority of the President under
Section 61 of the Code. Whichever first acquired
jurisdiction shall exclude the other (Hagad v. Gozo-Dadole,
G.R. No. 108072, J anuary 12, 1995).

Verification is a formal, not jurisdictional requisite (J oson v.
Torres, GRN 131255, May 20, 1998)

PRACTICE OF PROFESSION

A punong barangay is not forbidden to practice his
profession but he should procure prior permission or
authorization from the Secretary of Interior and Local
Government before he enters his appearance as counsel for
any party. His failure to comply with Section 12, Rule XVIII of
the Revised Civil Service Rules constitutes a violation of his
oath as a lawyer-to obey the laws. (Catu vs. Rellosa, 546
SCRA 209)

BOUNDARY DISPUTE

It is not only the Regional Trial Court that has appellate
jurisdiction over judgment of the Sangguniang Panlalawigan
in a boundary dispute B.P. Blg. 129, as amended, which is
supplemented by Rules 42 of the Rules of Civil Procedure,
gives the CA the authority to entertain appeals of such
judgment and final orders rendered by the RTC in the
exercise of its appellate jurisdiction. (Municipality of Nueva
Era, Ilocos Norte vs. Municipality of Marcos, Ilocos Norte,
547 SCRA 71)
Daghang Salamat