Re: Appointment; Appeal
RESOLUTION No. 000702
Amelita S. Navarro, Vice Mayor, Santiago City, Isabela, appeals the approval by the Civil Service Commission Isabela Field Office, Ilagan, Isabela, of the appointments of the following personnel made by the City Mayor Joel Miranda:
Name Position 1. Errol Ambatali Driver II 2. Reynaldo Ramos Utility Worker II
Appellant Navarro is assailing the approval of the appointments of Ambatali, et al., on the following grounds:
"II. The appointment to the Driver II position is void for not having been issued the proper appointing authority.
"It appears that the positions, Driver II, to which Errol Ambatali was appointed to was one of the positions created under Ordinance No. 98-02 entitled "AN ORDINANCE CREATING SEVEN POSITIONS OF DRIVER II FPR THE SERVICE VEHICLES OF THE CITY GOVERNMENT. . . .
"(I)t is clear that the positions of Driver II were created for the legislative department of the City Government, meaning the Sangguniang Panlungsod. It is incontrovertible that when it comes to positions under the Sangguniang Panlungsod, it is the City Vice Mayor and not the City Mayor who is the appointing authority.
"Considering that the appointment to the Driver II position was done by the City Mayor and not the City Vice mayor, the approval of the said appointment is void for not having been issued by the proper appointing authority.
III. Appointments to the various positions under the Office of the City Vice Mayor are ministerial on the part of the City Vice Mayor determining the persons who will be appointed thereto.
"IV. The approval of the appointments to the various positions under the Office of the City Vice Mayor by the Isabela Provincial Office of the Civil Service Commission is void ab initio."
On the other hand, Director Paggao commented on the appeal as follows:
"Listed hereunder are the justifications on why such contested appointments were approved by this Office, to wit:
"1. That the approval of the appointments were based on the Plantilla submitted
to this Office.
"2. That said position as per-plantilla does not indicate that they are all under the
personal staff of the Vice Mayor.
"3. That there is no provision on the Local Government Code that the duty of the
Mayor is only Ministerial in appointing the staff of the Vice Mayor.
"4. That position in the Career Service declared as confidential co-terminous by
the declaration of a resolution, approval from the Central Office is still
required . . . before positions in the Career Service may be declared highly
confidential or co-terminous . . . .
"5. That these appointments were submitted and approved in accordance with all
pertinent requirements needed for appointment."
With regard to the appointment of Errol Ambatali to the position of Driver II, records show that this position was created through Ordinance No. 98-02, An Ordinance Creating Seven Positions of Driver II for the Service Vehicles of the City Government. Of the seven newly created positions, five driver positions were for the legislative department and the other two were for the executive department. Said Driver positions were also classified as regular and permanent under Ordinance No. 98-02. Moreover, under the plantilla of the city government, the appointment issued to Ambatali was for Driver II, plantilla item no. 21.09, under the Office of the Vice Mayor.
The same is true for the appointment of Reynaldo Ramos to the position of Utility Worker II. Records show that said position also belongs to the Office of the Vice Mayor.
Considering that both positions belong to the Office of the Vice Mayor, Navarro is assailing the validity of the appointments of Ambatali and Ramos on the ground that although it is the Mayor who remains the appointing authority, as Vice Mayor, she exercises a certain degree of discretion in the appointment of staff belonging to the Office of the Vice Mayor. Likewise, she invoked CSC Resolution No. 98-2506 dated September 23, 1998, which held that:
"Be that as it may, however, the Commission takes note of the fact that the positions belonging to the personal or confidential staff of the Vice Mayor are coterminous and therefore require a high degree of trust and confidentiality. As such, the City Mayor shall merely exercise a ministerial duty for purposes of appointments to personal and confidential positions in the Office of the City Vice Mayor. That is, the City Vice Mayors preference on who should be the proper appointee after all the requirements for appointments have been satisfied, must be respected and given due consideration, for to do otherwise would result to absurdity.
x x x
"To settle the matter, this Commission hereby posits that the City Mayor remains to be the proper authority to appoint personnel in the Office of City Vice Mayor. However, the exercise of discretion should be relaxed as regards appointments of primarily confidential personnel in the same office . . . .
"WHEREFORE, the Commission hereby rules that the City Vice Mayor is granted a certain degree of discretion in the determination of who should be appointed to primarily confidential positions in the Office of the City Vice Mayor as determined by existing laws, policies and regulations. Accordingly once an appointee to the personal and confidential position in the Office of the City Vice Mayor is determined by the City Vice Mayor, the issuance of appointment pertaining thereto is a ministerial duty on the part of the City Mayor."
From the language of the abovequoted Resolution, it is obvious that the Commission distinguished between the staff of the Office of the Vice Mayor and staff of the Sangguniang Panlungsod.
Under the existing legal precedents in the Commission, the Office of the Vice Mayor is distinct and separate from the Sangguniang Panlungsod. Thus, with regard to appointments, although the Vice Mayor heads both offices, it does not mean that the two offices and the personnel assigned to each of them are one and the same. More importantly, it does not mean that the Vice Mayor has the power to appoint the staff of both offices. In CSC Resolution No. 98-0163 dated February 3, 1998, (Edgardo Gloriane, et al.) the Commission has categorically stated that the two offices are distinct and separate, to wit:
"Finally, the claim of Vice Mayor Guyala that the staff of his Office belong to the Sangguniang Bayan and therefore under his power to appoint is without merit. Although the Local Government Code does not specifically state the separation of the Office of the Vice Mayor and its personnel therein from the Sangguniang Bayan, the Commission is of the opinion that the two offices are indeed separate and distinct from one another. Hence, the employees of the Office of the Vice Mayor are and should be appointed by the Mayor."
In CSC Resolution No. 95-3413 dated May 30, 1995 (Johnson Andrade), the Commission also held that:
"There is no provision in the Local Government Code which authorizes the Vice Mayor to appoint officials and employees in the Office of the City Vice Mayor. It is incontestable therefore that the Mayor has appointing authority over the employees in the Office of the Vice Mayor. . ."
These rulings of the Commission highlighted the difference and the distinctness between the Office of the Vice Mayor and that of the Sangguniang Panlungsod. Although both offices are headed by the Vice Mayor, for positions in the Office of the Vice Mayor, it is the Mayor who is the appointing authority, subject to a qualification that when the position is primarily confidential, the Vice Mayor exercises a certain degree of discretion in the issuance of said appointment. On the other hand, for appointments to Sangguniang Panlungsod positions, it is the Vice Mayor who is the appointing authority.
However, in view of recent jurisprudence in the field of local government, the Commission sees fit to re-examine its previous rulings. The decision of the Supreme Court (en banc) in the case of Gamboa, Jr. v Aguirre, et al. (G.R. No. 134213 dated July 20, 1999) clarified the separation of powers within a local government unit. In the said case, the Supreme Court resolved the issue whether or not the Vice Governor, when he is temporarily acting as the Governor, temporarily relinquishes the powers, functions, duties and responsibilities of the Vice Governor, including the power to preside over the sessions of the Sangguniang Panlungsod. The issue was resolved in the affirmative. What is interesting in this case is the reasoning employed by the Court to arrive at such a conclusion. The pertinent portions of the decision read as follows:
"[A] Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is because the authority vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. Unlike under the old Code, where the Governor is not only the provincial Chief Executive, but also the presiding officer of the local legislative body, the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. This is clear from the law, when it provides that "local legislative power shall be vested in the SP, which is "the legislative body of the province," and enumerates therein its membership consisting of the:
- Vice Governor, as presiding officer,
- regular elective SP members,
- three elective sectoral representatives, and
- those ex-officio members, namely:
- president of the provincial chapter of the liga ng mga barangay,
- president of the panlalawigang pederasyon ng mga
- president of the provincial federation of sanggunian members of municipalities and component cities.
"Not being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested alone in the Governor. Consequently, the union of legislative-executive powers in the office of the local chief executive under the former Code has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two.
x x x
"Being the Acting Governor, the Vice Governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the provincial Governor call for a fulltime occupant to discharge them. Such is not only consistently with but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions in both offices has already been abandoned. . . . ." (Emphasis and underscoring supplied)
The Supreme Court very clearly delineated the executive and the legislative powers within a local government unit. The Governor or the Mayor exercises executive powers while the Vice Governor or Vice Mayor, together with the other Sanggunian members, exercise the legislative powers. The non-intermingling of personalities is aimed to ensure better delivery of public service and to provide a system of check and balance between the two branches/departments.
Taking this further, the former situation contemplated in previous decisions of the Commission, that the Office of the Vice Mayor is separate from the Sanggunian, is simply no longer tenable. This is because if the two are indeed different, there is an intermingling of both the executive (as Vice Mayor) and the legislative (as Presiding Officer) powers in the person of the Vice Mayor. The Vice Mayor and his staff under the Office of the Vice Mayor, would presumably be performing executive functions because otherwise, there would be no need to distinguish it from the sanggunian. Also, if no executive functions are involved, then the Mayor would not have any appointing and disciplinary authority over them and the issue of who is the appointing authority would no longer arise.
Moreover, under Section 456 of the Local Government Code of 1991, the City Vice Mayor has the following powers and duties:
"(1) Be the presiding officer of the sangguniang panlungsod and sign all warrants drawn on the city treasury for all expenditures appropriated for the operation of the sangguniang panlungsod;
"(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlungsod, except those whose manner of appointment is specifically provided in this Code;
"(3) Assume the office of the city mayor for the unexpired term of the latter in the event of permanent vacancy as provided for in Section 44, Book I of this Code;
"(4) Exercise the powers and perform the duties and functions of the city mayor in cases of temporary vacancy as provided for in Section 46, Book I of this Code; and
"(5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance."
It can be seen that the Vice Mayor, acting as the Vice Mayor and not as Mayor, has no executive functions at all. As enumerated, his function is limited to the Sanggunian as its presiding officer. With the exception of the catch-all provision (number 5), there is nothing in the enumeration of the functions of the Vice Mayor which authorizes him to perform executive functions within the local government unit, while the Mayor is present and capacitated. It is only in cases of permanent and temporary vacancy (numbers 3 and 4) that the Vice Mayor is called on to perform executive functions. And, as ruled by the Supreme Court in the Gamboa case, once he acts as the local chief executive, he in turn, relinquishes his powers and duties as part of the legislative department.
Thus, the distinction between the Office of the Vice Mayor and the Office of the Sanggunian is more apparent than real. So is the distinction between the Staff of the Vice Mayor and the Staff of the Sanggunian. They are one and the same. As such, only the Vice Mayor has the power to appoint the staff of both offices.
This being so, the proper appointing authority for the positions of Driver II and Utility Worker II, Office of the Vice Mayor, is the Vice Mayor. Thus, the appointments issued by Mayor Joel G. Miranda in favor of Errol Ambatali and Reynaldo Ramos to the positions of Driver II and Utility Worker II, respectively, are void.
WHEREFORE, the appeal of Vice Mayor Amelita Navarro is granted. The approval of the appointments of Errol Ambatali and Reynaldo Ramos to the positions of Driver II and Utility Worker II, respectively, are hereby annulled. The Civil Service Commission-Isabela Field office is ordered to reflect this in the service records of Ambatali and Ramos.
Quezon City, MAR 15 2000
JOSE F. ERESTAIN, JR.
CORAZON ALMA G. DE LEON
ARIEL G. RONQUILLO