MERTO, Beau Henry
Re: Appointment; Concurrence of Sangguniang Panlalawigan

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RESOLUTION No. 97-3353

Orlando V. Remollo, Member, Sangguniang Panlalawigan (SP), Province of Negros Oriental appeals the action of Clarita A. Jumalon, Head-Civil Service Provincial Office, Negros Oriental, approving the appointment of Beau Henry Merto as Provincial Agriculturist, Negros Oriental.

Records show that in a letter dated July 15, 1996, Remollo requested Jumalon to disapprove the appointment of Merto. Remollo's letter reads, in part, as follows:

"This has reference to the appointment of Mr. Beau Henry L. Merto as provincial Agriculturist of the Province vice Mr. Banogon which was submitted tot he Sangguniang Panlalawigan on June 19, 1996, by Governor Emilio C. Macias II, for concurrence pursuant to the provisions of Section 463(d) of the Local Government Code of 1991.

"On July 10, 1996, the Office of the Sangguniang Panlalawigan received communication from Governor Macias dated July 10, 1996, address (sic) to the Honorable Sangguniang Panlalawigan requesting to retrieve the appointment of Mr. Merto for submission to the Civil Service Commission. Said original appointment of Mr. Merto was returned to the Honorable Governor on July 12, 1996, per 1st Indorsement of Mr. Adolfo D. Amor, Board Secretary IV without the knowledge and permission of the Members of the Sangguniang Panlalawigan. The original appointment of Mr. Merto to the Office of the Governor was actually returned to the Office of the Governor few minutes before the Sangguniang Panlalawigan started the regular session in the afternoon of July 12, 1996 and one of the matters to be considered is the concurrence or rejection of the appointment of Mr. Merto which was agreed upon by the Board during the regular session on June 28, 1996 because the Sanggunian has still to search and scrutinize the records of Mr. Merto when he was the Project Manager of the NEGORMO.

"The records of the Sanggunian per our minutes of January 19, 1993 and The Report of the Legislative Inquiry Involving NEGORMO, chaired by Honorable Saleto Erames, and your humble representation and Honorable Serafin Albito as members dated January 15, 1993 was derogatory and unfavorable to Mr. Merto as a public servant x x x.

x x x

"The records would show that the appointment of Mr. Merto was received by the Office of the Secretary of the Sanggunian on June 19, 1996. It was officially deliberated in the Agenda of June 28, 1996, No. 4. Honorable Member Exequiel Besario moved for the concurrence of the appointment of Mr. Merto, duly seconded. Hon. Remollo, moved for the deferment of the consideration of this appointment of Mr. Merto considering that back in 1992 and 1993, that Mr. Merto has been charged of cases regarding NEGORMO, about the cattles that was bought and has a thorough investigation in this Body. He needs time to dig into the records of Mr. Merto. The Committee on Rules was authorized to render a report regarding this matter and the report was derogatory and not favorable to Henry Merto.

"As a consequence of said comment, Honorable Besario withdraw the motion for concurrence and the matter of consideration was deferred to July 12, 1996. There was no session on July 5, 1996, so that no action can be taken regarding the appointment of Mr. Merto and the next session was only last Friday, July 12, 1996 as scheduled. It is the view of this representation, that the fifteen (15) days period upon which the Sanggunian has to act on the appointment of Mr. Merto has not prescribed because the Sanggunian took cognizance and action of Mr. Merto asking more time to deliberate on his case which was on July 12, 1996 , and unanimously approved by the Sanggunian in session. That the fifteen (15) days period upon which to consider the appointment of Mr. Merto was suspended from June 28, 1996 to July 12, 1996.

"The withdrawal of the original appointment of Mr. Merto by the Governor together with the pertinent papers attached therewith without authority of the Sanggunian was highly irregular and illegal hence it is tantamount to no withdrawal or not retrieved at all, hence the action of the Sanggunian in taking consideration of his appointment by a vote of four (4) votes for rejection and five (5) votes for concurrence and three (3) abstention was legal. x x x

"In view of the foregoing premises, we respectfully pray to the Honorable Director to disapproved the appointment of Mr. Merto."

x x x

Jumalon denied the request of Remollo in a letter dated July 17, 1996, which reads, in part, as follows:

"Section 7, Rule V of the Omnibus Rules Implementing Book V of EO 292 states:

'The Commission shall disapproved the appointment of person who:

'(a) does not meet the qualification for the position, or

'(b) has been found guilty of a crime involving moral turpitude, or in infamous, disgraceful conduct or addiction to narcotics, or dishonesty; or

'(c) has been dismissed from the service for cause, unless an executive clemency has been granted; or

'(d) has intentionally made false statement of any material fact or has practiced or attempted to practice any deception or fraud in connection with his appointment; or

'(e) has been issued such appointment in violation of Civil Service Law, rules and regulation.'

"Records of this Office show that Mr. Merto satisfies the prescription of the above-quoted provision. Also, there is no showing that he has been convicted of any administrative and/or criminal offense.

x x x

"It appears that the appointment of Mr. Merto was forwarded to the SP on June 19, 1996 for concurrence. On June 28, 1996 the SP simple deferred its action to July 12, 1996. Hence, on July 10, 1996 twenty-one (21) days after submission, Gov. Macias retrieved the appointment and transmitted it this Office for action on July 12, 1996 obviously to avoid violating the 30-days reglementary period of submission of appointments as provided in Section 11, Rule V of the Omnibus Rules.

"We wish to point that the 'action' contemplated in Sec. 463, Par. (d) of RA 7160 Is for the SP either to concur or not concur the appointment in a form of Resolution. The mere deferment of action is construed as inaction. Even if on July 12, 1996 the SP passed a Resolution not concurring the appointment, such is already moot and academic because the 15 days requirement for the SP to act on the appointment of Mr. Merto has already lapsed and the same was deemed confirmed.

"It is along this line that the appointment of Mr. Henry Merto as Provincial Agriculturist as Approved effective not earlier than July 5, 1996, 15 days after the appointment was not acted by the SP.

"In view thereof, it is with regret to deny your request."

In his appeal, Remollo alleges, as follows:

x x x

For the purpose of this appeal, it s most respectfully submitted that there are two sub-issues involved, first and foremost is the issue on the fifteen (15) days reglamentary period and second and last is on the phrase 'concurrence of the majority of all the sangguniang panlalawigan members.

x x x

"First Issue

'whether or not the 15-days reglamentary period for the SP to act has already lapsed.

x x x

"Appellant respectfully begs to disagree with the ruling for said opinion has no legal, factual and philosophical bases to lean [sic] support on except for its literal deduction.

"1. The terms 'shall act' 'within fifteen (15) days from date of its submission' should have been taken within the context of paragraph (a), Section 5 of R.A. 6713 (Code of Conduct and Ethical Standards for Public Official and Employees), x x x

"Section 5 of R.A. 6713 has not been expressly repealed by R.A. 7160, neither is said section inconsistent with Section 463(d) of R.A. 7160 and jurisprudence guides us to have them reconciled to give effectual meaning to the laws. It is noteworthy that the phrase 'shall act' have referential discernment on the two similar phrases in Section 5 of R.A. 6713 which are: 'act promptly', 'respond to letters' and 'action taken'.

"It is also of paramount consideration that in this same section the phrase 'working days' succinctly provided the full import to the phrase 'fifteen (15) days" to be that as a 'fifteen (15) working days" in a government agency's action or response to communication by the public which in the instant case takes the representation of the appointee and the appointing authority.

"2. The terms 'shall act' shall likewise be interpreted in the light of the SP's unique constitution and work system and the SP's peculiar characteristics action of incoming officials communication and other legislative actions on legislative measures. Parliamentary actions of the SP shall also be respected, honored and upheld for as long as actions and transactions with SP concerned are not contrary to existing laws, rules and regulations. Section 50 of R.A. 7160 is hereby reprinted for correlation of the preceding statements.

'Sec. 50 (of R.A. 7160) - Internal Rules of Procedures - on the first regular session the Sanggunian concerned shall adopt its existing rules of procedure.'

"3. If the literal interpretation of Director Jumalon on the fifteen (15) days from receipt thereof is to be upheld and adopted by the CSC, the same would simply result to making and institutionalizing the SP as a rubber-stamp and a robot machine. It will also hereon, adopted by the CSC, the same would simply result to making and institutionalizing the SP as a rubber-stamp and a robot machine. It will also hereon allow and enable municipal/citiy ordinances and resolutions of the 22 municipalities and three cities to pass illegal measures because the literal interpretation of 'within fifteen (15) days from receipt thereof', must necessarily be expanded to apply to a similar reglamentary period in paragraph (d) of Section 56 of R.A. 7160 which provides:

'Section 56(d) if no action has been taken by the Sangguniang Panlalawigan within thirty (30) days after submission of such ordinance or resolution, the same shall be presumed consistent with law and therefore valid.'

x x x

"4. The submission of the appointment and bio data of the appointee, Beau Henry Merto, was received only by the SP Secretariat on the 19th of June 1996. The SP Secretariat did not calendar the same on that day in the absence of 'certification of urgency by the LCE' as provided for under Article 107(d) of the IRR of R.A. 7160. It was only on the 28th of June 1996 that the appointment was in the agenda under Item No. 4 in the order of business. Since, the SP took notice and cognizance of it 28th of June 1996 and for which the SP took official action to defer consideration of the appointment of 12th of July, the first working day of the Sangguniang Panlalawigan was supposed to be that day of June 28, 1996. It stands to reason therefore that July 12, 1996 regular session of SP relative to its action to defer the matter pending was the reckoning day in counting the fifteen (15) days period.

"The Honorable Director Clarita Jumalon declared however that 'mere deferment of action is construed as inaction'. It is most respectfully argued however that a motion to defer is actually a subsidiary motion to postpone definitely in the parliamentary sense of the phrase. Postponement to a later definite session is valid under the rules of order when the matter is not certified to as urgent of the Local Chief Executive.

"Granting, without admitting, that the fifteen (15) day period under Section 463(d) is to be literally interpreted inclusive of Saturdays, Sundays and Holidays, from June 28, 1996 to July 12, 1996, is therefor the 14th day of the reglamentary period. Hence final action on the appointment by the SP on the 12th of July is within the reglamentary period, valid and legitimate, and thereby suspends the running of the 15-day period.

x x x

"Appellant maintains however, that the interpretation shall be that the fifteen (15) working days be only the working days of the month corresponding to the actual regular and special sessions a sangguniang panlalawigan has held for a given period for the reason that the SP is a collegiate body and can not stand to act with official validity if it is not in session and in quorum. x x x

"In either case, the literal and the technical interpretation of the phrase 'within fifteen (15) days', can not render the action of the SP on the appointment of Mr. Beau Henry Merto on the 12th of July moot and academic as that date was well within the fifteen (15) days reglamentary period. Hence action of the SP on the resolution to concur was still valid and effective on July 12, 1996.

x x x

"Second Issue

'Whether or not the July 12, 1996 final action of the Sangguniang Panlalawigan on the resolution to concur was effective and valid.'

x x x

"Discussion

"it is mist respectfully submitted that the July 12, 1996 final action of the SP on the appointment of appointee, Beau Henry Merto, was valid and effective and its legal effects was rejection or disconcurrence.

"The twelve (12) members of the SP of the 12th of July 1996 was in quorum and proceeded its session officially. Since on July 12, 1996, Governor Emilio C. Macias II retrieved the accomplished appointment and bio-data, the order of business on July 12, 1996 did not include the consideration of the appointment of Mr. Beau Henry Merto. x x x

x x x

"Since the voting on the motion to concur by the SP on the 12th of July failed to obtain the qualified or special majority of eight (8), the total SP members being fourteen (14), the motion to concur was lost and as consequence 'negative votes had it' which in effect was the rejection of the appointment of appointee, Mr. Beau henry Merto. x x x

x x x

"Wherefore, above premises considered, it is most respectfully prayed by undersigned appellant that the ruling of the Honorable Director of the CSC of Negros Oriental be reversed, and that an order be issued by the Honorable Director of the CSC Region 7, Cebu City to revoke the appointment of Mr. Beau Henry Merto as Provincial Agriculturist."

The Provincial Governor of Negros Oriental commented, as follows:

x x x

"The appeal of Atty. Orlando Remollo raises the following issues:

'1. Whether or not the 15-days reglamentary period for the SP to act on the appointment of Mr. Merto has already lapsed.'

'2. Whether or not the July 12, 1996 final action f the Sangguniang Panlalawigan on the resolution to concur was effective and valid.'

"We however, would also raise the issue of Appellant's personality to file the appeal.

DISCUSSION

"1. On the issue of the 15 day reglamentary period, the material dates to be considered are: June 19, 1996, the date of appointment was submitted to the Sangguniang Panlalawigan for their concurrence; and July 12, 1996, the day the Sangguniang Panlalawigan supposedly acted on the appointment.

"Appellant agues that the provisions of R.A. 6657 [sic] should be read in connection with the provisions of R.A. 6713, which is acceptable because these two laws treat of different matters. Under statutory construction, the provisions of a special law shall apply only to the matters covered under the said law and shall not have suppletory effect to another special law unless specific reference is made in the latter law, and if ordinary words are used in law, they should be interpreted in their ordinary meaning.

"Since the R.A. 6657 [sic] used the word 'days' without any qualification, then it should be interpreted to comprehend its ordinary meaning which is, regular days.

"Nevertheless, whether regular days or working days will be used, still the period to act in the appointment has already lapsed. There is no argument that from June 19, 1996 to July 12, 1996, there are 23 regular days or 17 working days, and the Sangguniang Panlalawigan has only 15 days or 17 working days, and the Sangguniang Panlalawigan has only 15 days to act on it. Clearly, their failure to act within the reglamentary period can already be considered as concurrence by inaction.

'On the question of when the running of the period to act should start, there is nothing in R.A. 7160, or any law for that matter, giving the Sangguniang Panlalawigan the special privilege to take cognizance of official communications only when it is placed in its calendar of business. Rather, our jurisprudence is replete with decisions of the Supreme Court to the effect that notice is considered to be received from the time it is delivered to the addressee's secretary or even if it is only left with a responsible person in the addressee's office.

"2. On the issue of validity of the alleged concurrence made on July 12, 1996, it was already sufficiently answered by Ms. Jumalon's opinion. Regardless of its validity, the fact still remain that the appointment was already impliedly concurred by the Sangguniang Panlalawigan when it allowed the 15 day period to lapse. x x x

"3. On the question of Appellant's personality, the undersigned stresses the fact that Atty. Remollo appears to have no personality to file the appeal in representation of the whole Sangguniang Panlalawigan of Negros Oriental, since he was not specially authorized under a valid Resolution to the file the same."

The issue to be resolved in this case is whether or not the appointment of Beau Henry Merto as Provincial Agriculturist was deemed concurred in by the Sangguniang Panlalawigan of the Province of Negros Oriental.

Records disclose that the appointment of Merto was forwarded to the Sangguniang Panlalawigan (SP) for concurrence on June 19, 196. On June 28, 1996, the SP deferred its action on said appointment to July 12, 1996 or twenty one (21) days after submission of Merto's appointment to the SP, Governor Macias retrieved said appointment and transmitted it to the Civil Service Provincial Office, Negros Oriental for approval. On July 12, 1996, or twenty three (23) days after submission, the SP decided to reject the appointment of Merto.

The argument of Remollo that the fifteen (15) day period within which the SP shall act on the appointment should be interpreted as the actual regular and special session of the SP and therefore, the same commenced on June 28, 1996, the first working day of the SP, is untenable.

Section 443 (d) of the Local Government Code of 1991 explicitly provides, as follows:

"It should be noted that the Sangguniang Bayan must either concur in or reject an appointment to department head positions within 15 days from the date of submission, otherwise, the same shall be deemed confirmed. However, if the Sangguniang Bayan returns an appointment to the appointing authority without final action within the 15-day period with an explanation of its reason(s) the 15-day period will stop running. The period will run again only upon the resubmission of said appointment."

There is nothing in Section 443 (d) of the Local Government Code of 1991 that expressly provides that the fifteen-day requirement for submission of appointments by the department heads for concurrence of the SP shall correspond to the actual regular and special sessions of the SP.

Well-settled is the rule that when the law does not speak categorically of working days, it shall be understood to mean calendar days. Hence, the fifteen (15) day requirement under Section 443 (d) of the Local Government Code of 1991 should refer to 15 calendar days and not 15 working days.

In the case at bar, the Sangguniang Panlalawigan failed to act on Merto's appointment within fifteen (15) days from its submission on June 19, 1996. Thus, Merto's appointment is deemed confirmed by operation of law.

WHEREFORE, the appeal of SP Member Orlando V. Remollo is dismissed. Accordingly, the approval of the appointment of Beau Henry Merto as Provincial Agriculturist is affirmed.

Quezon City, July 7, 1997

 

                                          (Signed)
                                             JOSE F. ERESTAIN, JR.
                                            Commissioner

 

                  (Signed)
CORAZON ALMA G. DE LEON
               Chairman

 

                (Signed)
THELMA P. GAMINDE
           Commissioner

 

Attested by:

                           (Signed)                                

CARMENCITA GISELLE E.B. BRINGAS
                 Board Secretary VI