OPINION, J. Vicente R. M.
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Dr. Soledad B. Acidre, Ed.D., Schools Division Superintendent, Division of Borongan, Eastern Samar, Department of Education Regional Office (Dep. Ed. RO) No. VIII, requests a clarificatory ruling on the propriety of entering into a retainership agreement with a member of the Sangguniang Panlalalwigan (SP), who has a law firm.
The present request was prompted by the adverse opinion of the Civil Service Commission Regional Office (CSCRO) No. VIII on an earlier request of Dr. Acidres predecessor for exemption from the policy on service contracts (CSC Memorandum Circular No. 17, s. 2002) regarding the hiring of Atty. J. Vicente R.M. Opinion. The said opinion is, as follows:
This has reference to your 1st Indorsement dated May 19, 2003 relative to the request for exemption of Mr. Leoncio C. Macatimpag, School Division Superintendent, Division of Eastern Samar, Borongan, Eastern Samar, to hire Atty. J. Vicente R.M. Opinion as Special Attorney of that division under a Contract of Services or Job Order.
In this connection, please be informed that the authority granted to the CSC Regional Office No. 8, to act on request for exemption is limited to the contracting of services of licensed teachers, licensed nurses and other allied medical personnel. Hence, the authority to act on the instant request is governed by the 2nd paragraph of Section of CSC Resolution No. 021480 dated November 12, 2002, x x x
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A careful perusal of the instant request disclosed that it does not contain an explanation why the issuance of a contractual or casual appointment is not feasible under the circumstances. Moreover, Atty. J. Vicente M. Opinion is an incumbent Member of the Sangguniang Panlalawigan of the Province of Eastern Samar. While Sangguniang members may practice their professions, engage in any occupation, or teach in schools except during session hours, however, the hiring of Atty.Opinion as Special Attorney for the Division of Eastern Samar might contravene the constitutional and statutory proscriptions, that (a) no elective official shall be eligible for appointment in any capacity to any public office or position during his tenure, and (b) no elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. x x x
Based on the foregoing, we regret to inform you that this Office cannot favorably recommend the granting of the instant request to the Commission en banc.
In her letter, Dr. Acidre contests the opinion of the regional office. It is her position that the hiring of Atty. Opinion is necessitated by the exigency of the service. According to her, the Division Office would greatly benefit from the legal expertise of Atty. Opinion. Not only that. In engaging the services of Atty. Opinion, the Division Office would also be getting the services of Atty. Opinions own law firm, which would come in handy in aiding the Division Office in resolving administrative cases as well as settling boundary disputes between and among school territories with relative dispatch.
Dr. Acidre takes exception from the conclusion of the regional office that the hiring of Atty. Opinion, who is an SP member at the same time, would contravene the Constitution, particularly its provisions on the non-eligibility of elective officials to be appointed to a public office, and on the prohibition on additional double or indirect compensation. For one, she argues that the engagement of Atty. Opinion is not an appointment to a public office. Rather, it is by virtue of a retainership contract or agreement. A contract, however, is different from a public office since the latter is a creation incident of sovereignty, while the former originates from the will of the contracting parties. Consequently, it cannot be said that the contracting of the service of Atty. Opinion amounts to an appointment to a public office.
With regard to the prohibition on additional, double or indirect compensation, Dr. Acidre is of the view that the same does not apply with respect to Atty. Opinion. To her, additional compensation constitutes the giving of an extra reward to an incumbent in addition to what is fixed by law to his office. On the other hand, double compensation arises when there is paid two sets of compensation for two different offices held concurrently by one public officer. However, what is to be paid to Atty. Opinion shall be in the form of a general retaining fee, which is given to a lawyer to ensure and secure his future services for a particular case or work and to remunerate him for being deprived, by being retained by one party, of the opportunity of rendering services to the other party.
It is gathered from the records of the case that in 2002, the Office of the Solicitor General (OSG) deputized Atty. J. Vicente R.M. Opinion, an SP member, as its Special Atty. for Dep. Ed., Eastern Samar. However, when his deputization was about to end, a request for extension was interposed but the OSG opined that prior exemption from the policy on service contracts be secured. Dr. Acidres predecessor, School Superintendent Leoncio C. Macatimpag, interposed forthwith a request to that effect before the Civil Service Commission Regional Office (CSCRO) No. VIII. The request carried the indorsement of Dep. Ed. RO No. VIII Regional Director Sol F. Matugas, CESO III.
Invoking the provision of CSC MC No. 17, s. 2002, the regional office declared that it could not favorably recommend the request to the Commission en banc because the same did not specify the reason why it is not feasible to issue a contractual or a casual appointment. As well, the hiring of Atty. Opinion would violate the constitutional and statutory proscriptions that (a) no elective official shall be eligible for appointment in any capacity to any public office or position during his tenure, and (b) no elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law.
From the aforesaid opinion, Dr. Acidre has come to the Commission seeking clarification. Her action shall be treated as an appeal from the opinion of the regional office.
The Policy Guidelines for Contracts of Service as enunciated in CSC MC No. 17, s. 2002, and further clarified in CSC MC No. 24, s. 2002, defines contract of service as the engagement of the services of a person, private firm, non-governmental agency or international organization to undertake a specific work or job requiring special or technical skills not available in the agency to be accomplished within a period not exceeding one (1) year. As maybe gleaned from the above definition, the application of service contracts is generally limited to undertakings that call for special skills or high-level technical expertise.
Nevertheless, a government agency may, in the exigency of the service, still contract for services that are regular, clerical or administrative, provided that it is not feasible for the agency to hire said services under a casual or a contractual appointment. In the latter case, it is necessary for the agency to obtain the requisite exemption from the Commission or its regional office, depending on the nature of the services to be contracted Section 8 of CSC MC No. 24, s. 2002, provides on this point, as follows:
Section 8. Grant of Exemption. The CSCRO may grant exemption with respect to the contracting of the services of licensed teachers, licensed nurses, and other allied medical personnel under contracts of service or job orders upon the request of the concerned agency. The agency must also submit, together with its request, an explanation why the issuance of a contractual or casual appointment is not feasible under the circumstances. Nevertheless, copies of the contracts of service or job orders will still be required to be submitted and the services rendered will not be considered as government service.
Requests for exemption of other services under contracts of services or job orders other than those mentioned in the preceding paragraph shall be granted by the Commission en banc upon favorable recommendation of the CSCRO concerned.
In the case at bar, what is involved is the hiring of a lawyer. It cannot be gainsaid that the work of a lawyer entails a high-degree of professional and technical proficiency. It requires deep knowledge of law and training in the technicalities of procedure, which can only be acquired through years of specialized learning. Consequently, the law profession belongs to the class of services that may properly be the subject of service contracts. That the Division of Borongan, Eastern Samar, may enter into contract for legal service is, thus, not open to doubt, subject, of course, to the requirements of the policy on service contracts. Nevertheless, the crux of the controversy raised by the instant case is whether the contract may comprehend the services of a lawyer, who happens to be a local elective official.
The regional office maintains that it is not in view of the constitutional provisions already adverted to, which, for reasons of clarity, are hereunder reproduced:
Sec. 7. No elective official shall be eligible for appointment or designation in any capacity to any public office, or position during his tenure.
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Sec. 8. No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. (Sections 7 and 8, Article IX-B, The 1987 Philippine Constitution)
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As above-quoted, Section 7 of Article IX-B disqualifies elective officials from being appointed or designated to any public office in whatever capacity. Of material significance in the application of this constitutional provision is the proper construction to be given to the words appointment and designation.
However, the words appointment and designation have well-defined significations in law. Appointment is commonly understood as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. On the other hand, designation imports the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election. A mere designation does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only. (Binamira vs. Garrucho, 188 SCRA 158; Sevilla vs. Court of Appeals, 209 SCRA 637)
That these are the meanings of the words in question, which the framers of the Constitutional had in mind, are clearly manifested by the transcript of the deliberations of the Constitutional Commission of 1986, to wit:
MR. SUAREZ. But when we use the phrase temporary or acting capacity, this might give the impression that an elective official may be eligible for appointment or designation in a permanent capacity.
MR. MONSOD. Madam President, I believe the intent of the Committee by the phrase for appointment or designation is this: appointment refers to permanent capacity and designation to a temporary or acting capacity. However, to clarify the intent of the Committee, we are willing to entertain an amendment. (Record of the Constitutional Commission, Proceedings and Debates [Vol. One], p. 549)
The aforesaid interpretation precisely dovetails with the rationale of the constitutional provision, as stated in the case of Flores vs. Drilon (223 SCRA 568), thus:
The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication, and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union vs. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. vs. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, x x x should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency.
Particularly as regards the first paragraph of Sec. 7, (t)he basic idea really is to prevent a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constituents xxx.
It is true that the intent of the convention is not controlling by itself, but as its proceeding was preliminary to the adoption by the people of the Constitution, the understanding of the convention on what was meant by the terms of the constitutional provision which was the subject of the deliberation, goes a long way toward explaining the understanding of the people when they ratified it. (Aquino, Jr. vs. Enrile, 59 SCRA 183)
In the case before the Commission, Atty. Opinion, who is a provincial board member, is being contracted to render legal services to the Division of Borongan, Eastern Samar, on a retainer basis. A contract of service, as a rule, does not give rise to an employment tie as between the contracting agency and person being contracted. Hence, the hiring of the legal services of Atty. Opinion on a retainer basis cannot, strictly speaking, amount to an appointment in a public office. For, appointment, to reiterate, is the selection by the proper authority of an individual who is to exercise the functions of an office. Here, Atty. Opinion is not being named to a particular office or position to exercise its functions.
Neither can Atty. Opinion be deemed to be designated, in strict legal standpoint, to a public office or position. As previously mentioned, designation presupposes imposition of additional duties. This is not the case with Atty. Opinion since the work he shall be rendering to the Division of Borongan arises out of a mutually-agreed upon arrangement embodied in a contract of service. Moreover, no public office or position is involved, since the notion of public office implies a right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by that individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192)
Notwithstanding the above finding, there are still some considerations that constrain the Commission from yielding to the position that the contract of service of Atty. Opinion does not contravene Section 7, Article IX-B.
It should be noted that on its face, the language of Section 7, Article IX-B is prohibitory. It is the rule that whenever the language used in the Constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. (Civil Liberties Union vs. Executive Secretary, 194 SCRA 317) Consequently, Section 7 Article IX-B must be viewed as imposing a positive and unequivocal negation of the privilege of elective officials to be appointed or designated to another post during their tenure.
To breathe life into this positive and unequivocal negation, it must be applied with obligatory force. This basically calls into play the rule that what cannot be done directly cannot be done by indirection. For to allow indirection would be to render inutile the mandatory character of the constitutional provision.
Hence, while no actual appointment or designation to a public office or position is involved in retaining the services of Atty. Opinion as discussed above, it needs no stretching of imagination, however, to conclude that the service contract between him and the Division of Borongan, Eastern Samar, results in an indirect circumvention of Section 7, Article IX-B. As a retained lawyer of the Division Office, he would inevitably be attending to governmental duties and functions that may weigh heavily on his being an elective official. Ultimately, the discharge of his sworn responsibilities to his constituents might unduly suffer. And the fact that his expertise might be most beneficial to the higher interest of the body politic is of no moment. (Flores vs. Drilon, supra.)
It may be argued, however, that as a sanggunian member, Atty. Opinion is authorized to engage in the private practice of profession, as provided for under the Local Government Code of 1991, specifically Section 90 (b). Title Three, Book I thereof, which states, as follows:
Sec. 90. Practice of Profession. xxx
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(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative proceedings involving the local government unit which he is an official; and
(4) Use property and personnel of the Government, except when the sanggunian member concerned is defending the interest of the Government.
To this argument, it only needs to be pointed out that where the Constitution or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void. (Ala.State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445, as cited in Flores vs. Drilon, supra.)
More so, it does not escape the attention of the Commission that it has previously promulgated a resolution, i.e., CSC Resolution No. 01-1096, dated June 29, 2001, allowing government lawyers to privately practice their profession on a limited basis. Nevertheless, it should be emphasized that the said resolution is not to be construed as conceding government lawyers the indiscriminate right to engage in the practice of profession in contravention of the fundamental law of the land. It should only apply in cases where the private practice of profession does not collide with constitutional injunctions. The resolution recognizes this when it espoused in two of its whereas clauses that:
WHEREAS, Section 7, paragraph b (2) of the Code of Conduct and Ethical Standards for Public Officials and Employees (R.A. 6713) allows public officials and employees to engage in the private practice of their profession provided they are authorized by the Constitution or by law;
WHEREAS, Rule X, Section 1, paragraph c of the Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees also allows public officials and employees to engage in the private practice of their profession provided they are authorized by the Constitution, law or regulation.
As heretofore explained, the act of contracting the legal service of Atty. Opinion is fraught with constitutional infirmity, for which reason the resolution cannot be invoked.
Furthermore, there is a need to clarify that the salutary application of the above resolution of the Commission cannot be extended to elective officials. This is because elective government officials are bound more stringently when it comes to the holding of multiple offices or employment. This is explained in the case of Flores vs. Drilon, supra., to wit:
In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to other government posts. xxx.
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus:
MR. MONSOD. In other words, what the Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because the case of appointive officials, there may be a law that will allow them to hold other offices.
MR. FOZ. Yes, I suggest that make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions.
The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph. (underscoring supplied)
How about the rule on double compensation?
The Constitution prohibits any government official or employee to receive additional, double or indirect compensation, unless he is specifically authorized by law. The reason for the prohibition, as explained by the Court in the case of Peralta vs. Mathay (38 SCRA 256), is that:
1. It is expressly provided in the Constitution: No officer or employee of the government shall receive additional or double compensation unless specifically authorized by law. This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a government official or employee that keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of course entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration. The intrusion of the thought of private gain should be unwelcome. The temptation to further personal ends, public employment as a means for the acquisition of wealth, is to be resisted. That at least is the ideal. There is then to be an awareness on the part of an officer or employee of the government that he is to receive only such compensation as may be fixed by law. With such realization, he is expected not to avail himself of devious or circuitous means to increase the remuneration attached to his position. It is an entirely different matter if the legislative body would itself determine for reasons satisfactory to it that he should receive something more. If it were to be thus though, there must be a law to that effect. So the Constitution decrees.
In other words, the prohibition is designed to counter the evils of double compensation. Consequently, it does not apply in the following cases:
(1) The payment of additional, double or indirect compensation to a particular officer or employee is specifically authorized by law in individual instances where the payment of such compensation appears not only just but necessary. The prohibition is aimed against the giving of extra compensation by executive or administrative order;
(2) The additional compensation is received not from the government or any of its entities; and
(3) There are two distinct offices, each of which has its own duties and compensation, in which case both may be held by one person at the same time. He is in the eyes of the law two officers. The prohibition refers to double compensation and not double appointments and the performance of functions of more than one office. But the officer may draw the salary attached to the second position only when he is specifically authorized by law. (de Leon, The Law on Public Officers and Election Law [2nd Ed.], p. 170)
Note that in the second exception above, the additional compensation should not come from the government. In the case of Atty. Opinion, he shall be receiving his additional compensation in the form of retainers fee from the Division of Borongan, Eastern Samar, which is a government office. Thus, there is a case of double or additional compensation, which runs counter to the constitutional proscription.
WHEREFORE, foregoing premises considered, the Commission hereby rules that a contract of service involving a government office and a member of a local sanggunian for the rendition of legal services is violative of the constitutional proscription against the appointment or designation of an elective official to a public office or position, and the receipt of double, additional and indirect compensation, as decreed in Sections 7 and 8, Article IX-B, respectively, of the 1987 Philippine Constitution. Accordingly, any contract of service entered into between the Division of Borongan, Eastern Samar, and Atty. J. Vicente R.M. Opinion would be invalid.
Quezon City, April 02, 2004
J. WALDEMAR V. VALMORES
TOMAS B. ABAYAN
(For) REBECCA A. FERNANDEZ
Commission Secretariat and Liaison Office