RESOLUTION NO. 020316
Mayor Rogelio M. Gatpolintan, Municipality of Mainit, Surigao del Norte requests legal opinion on whether the appointment of Virgentina Garrido as Municipal Agriculturist, and wife of the Vice Mayor, the Presiding Officer of the Sangguniang Bayan, is nepotic in character.
In a letter dated September 7, 2001, Mayor Gatpolintan represents, as follows:
"The Local Government Unit of Mainit, Surigao del Norte of whom the undersigned is the Local Chief Executive is intending to appoint Mrs. Virgentina Garrido now the acting Municipal Agriculturist, Chief of Office of said unit. However, her husband is our present Vice Mayor, the Presiding Officer of the Sangguniang Bayan, by which said SB will concur to said appointment.
"Considering the above premise, if and when we will act on said appointment after the Selection Board has deliberated on said promotion, can we legally act on this case at bar or is this not nepotic appointment?"
Verification with Mayor Rogelio M. Gatpolintan shows that the position of Municipal Agricultural Officer has been left vacant for two (2) years due to the retirement of the incumbent and there is a need to fill-up the position by a most qualified personnel. Thus, on November 12, 2000, publication of the vacancy was filed before the Civil Service Commission Office and was posted in three (3) conspicuous places to ensure widest dissemination of the vacancy.
There were two (2) applicants to the said position, namely: Virgentina Garrido and Luciana Rolliquette and their pertinent papers were given to the members of the Promotion/Personnel Selection Board (P/PSB). The said body come up with a comparative result of the qualifications of the proposed appointee by giving percentage score in every criterion and such criteria were based on the approved LGU Merit Promotion /Personnel Selection Plan Pursuant to CSC Memorandum Circular No. 1, series of 2001.
After deliberation, evaluation and analysis of the papers presented, the Board recommended Virgentina Garrido for the position of Municipal Agricultural Officer. As noted in the Minutes dated December 7, 2001 of the PSB, Garrido is recommended to said position "not just because of her merit and fitness in terms qualification possessed based on the criteria, but also due to the findings, that the recommendee is a present employee of local unit holding a position of Agricultural Technologist".
Further, Mayor Gatpolintan claimed that Garrido has been the Municipal Agricultural Officer, Officer-in-Charge, for two (2) years now and has been a recipient of three (3) awards as proof of her efficiency and effectiveness.
For appointment to the position of Municipal Agricultural Officer, Title V, Article 12, Book III of the Local Government Code of 1991 provides, as follows:
"(a) No person shall be appointed agriculturist unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree in agriculture or any related course from a recognized college or university; and a first grade civil service eligible or its equivalent. He must have practiced his profession in agriculture or acquired experience in a related field for at least five (5) years in the case of the provincial and city agriculturist, and three (3) years in the case of the municipal agriculturist."
Records show that Garrido is a Bachelor of Science in Agricultural Education graduate and a first grade civil service eligible. She has been an Agriculture and Food Technologist for fourteen (14) years. She has been appointed as Municipal Agricultural Officer, Officer-in-Charge for two (2) years now and has attended several training and seminars in Agriculture. Thus, with all these qualifications, Mayor Gatpolintan believes that Garrido is the person who can best fill the post and discharge its function, being most familiar with the organizational structure and environmental circumstances of the municipality.
The pivotal issue, however, hindering the issuance of appointment to Garrido and haunting the mind of Mayor Gatpolitan is whether the eventual appointment of Virgentina Garrido to the position of Municipal Agriculturist is nepotic in character, considering her appointment needs the concurrence of the Sangguniang Bayan where her husband who is the Vice-Mayor, sits as the Presiding Officer.
Relevant to this is Section 79, Title III, Book I of Republic Act No. 7160 (The Local Government Code of 1991) which provides that:
"Section 79. Limitation on Appointments. - No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority."
Under the abovementioned law, the prohibition against nepotism encompasses appointments issued to relatives within the fourth civil degree of consanguinity or affinity but limited only between the appointing authority or recommending authority.
There is no dispute that the appointing authority for the position of Municipal Agriculturist is the Municipal Mayor of Mainit, Surigao del Norte. However, for appointment to said position, concurrence of the Sangguniang Bayan is a pre-requisite considering that said position is classified as a department head position.
Pertinent is Article 119 of the Rules and Regulations Implementing the Local Government Code of 1991 (RA 7160) which reads, as follows:
"Art. 119. Appointment of appointive Local Officials. - (a) Unless otherwise provided in this Rule, heads of offices and departments in the LGUs shall be appointed by the local chief executive concerned with the concurrence of a majority of all the members of the sanggunian, subject to civil service laws, rules and regulations."
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Fundamental is the rule that appointment is an essentially discretionary power and must be performed by the officer in whom it is vested according to his best lights, the only condition being that the appointee shall possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide (Espaņol vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, 206 SCRA 715). On the other hand, concurrence connotes a meeting or coming together, agreement or union in action; meeting of minds; union in design, consent (Blacks Law Dictionary).
The Sanggunians role in the appointing process is merely confined in confirming or rejecting the appointment made by the Local Chief Executive such that the Sangguniang Bayan cannot substitute its own judgment to that of the appointing authority. In fact, if the Sanggunian fails to act on the appointment, within fifteen (15) days from the submission to the Sanggunian, the same is deemed approved by operation of law (CSC Resolution No. 94-4003).
Also relevant is Article 102 of the Implementing Rules of the Local Government Code of 1991, which provides for the role of the Municipal Vice Mayor as the presiding officer of the Sangguniang Bayan, as follows:
"Art. 102. Presiding Officer. (a) The vice governor shall be the presiding officer of the Sangguniang panlalawigan, the city vice mayor, of the Sangguniang panlungsod; the municipal vice mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay.
"(b) The presiding officer shall vote only to break a tie.
"(c) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided."
Based on the foregoing, the vice mayor is neither the appointing nor recommending authority of his wife, Virgentina Garrido. Further, Vice Mayor Garrido, as the presiding officer of the Sangguniang Bayan, will only vote, in case there is a tie. Thus, it goes without saying that normally he has no voting right to the concurrence or non-concurrence of a particular appointment. It is only in case of a tie that he will exercise the same. On this score, the danger of exerting pressure and undue influence over the subject appointment is put to naught because in case there is failure on the part of the vice-mayor to preside at a sanggunian session, the members of sanggunian can always find his replacement. In other words, the law provides a safeguard in that members of the sanggunian can always choose who among themselves will act as the presiding officer, provided there is a quorum. Thus, the presence of the Vice Mayor is not a controlling factor in the approval/concurrence of Virgentina Garridos appointment as it is the vote of the majority of the members of the Sanggunian that matters.
In fine, the Commission finds that there will be no nepotism on the appointment to be issued to Virgentina Garrido.
WHEREFORE, in view of the foregoing, the Commission rules that the appointment of Virgentina Garrido as Municipal Agriculturist, which is subject to the concurrence of the Sangguniang concerned in which her husband sits as the Presiding Officer, is not nepotic in character.
Quezon City, FEB 28 2002
JOSE F. ERESTAIN, JR.
J. WALDEMAR V. VALMORES