BRIONES, Antonio V., Jr.
Re: Appointment; Co-Terminus; Concurrence
      of the Sanggunian
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            Mayor Elpidio E. Tenorio of Labo, Camarines Norte, seeks reconsideration of the opinion of Assistant Commissioner Adelina B. Sarmiento, in connection with a query of Labo Vice Mayor Amado S. Herico relative to the validity of the appointment of Antonio V. Briones, Jr., as Municipal Administrator.

            The letter of Assistant Commissioner Sarmiento reads as follows:

            "This has reference to your request for a definite ruling on whether there is a need to issue a new appointment as Municipal Administrator of Labo, Camarines Norte to Mr. Antonio V. Briones who was previously appointed by the reelected Mayor.

            "The ruling is sought in view of the divergent opinions of Director Elmer C. Bartolata and Field Officer Armenio Montales, both from CSC-Region Office No. V.

            "It appears that in a letter dated 18 January 1996, Director Bartolata gave the opinion that ‘Considering that the Municipal Mayor does not have to resign when he ran for the same office, his tenure in office continues upon reelection so does his appointee in a coterminous position x x x.’ This was reiterated by Director Bartolata in the last paragraph of his letter dated 30 April 1996 when he stated that ‘there is no need on the part of the reelected local Chief Executive to issue an appointment to the incumbent Administrator without prejudice to elevating the matter to the Commission on appeal.’

            "You allege that Director Montales approved the appointment issued to Mr. Briones as Municipal Administrator on 1 July 1995 and received by the CSC-Field Office in Daet, Camarines Norte on December 28, 1995, which you consider as violative of the civil service rules regarding the 30-day reglementary period for submission of appointments.

            "Section 67 of Batas Pambansa Blg. 881 (Omnibus Election Code of the Philippines) considers any elective official running for any office other than the one which he is holding a permanent capacity, except for President and Vice President, as ipso facto resigned form his office upon the filing of his certificate of candidacy. In the case, Mayor Elpidio F. Tenorio ran for the same mayoralty post so that he continues to be in office notwithstanding his filing of the certificate of candidacy. Upon his reelection, Mr. Briones whom he previously appointed as Municipal Administrator and whose term is coterminous with him, also continues in the same position likewise in a coterminous capacity. If no appointment is issued to him then he is deemed to be on a hold-over capacity. It is a general rule of law that an incumbent of an office will hold over after the conclusion or expiration of his term until the appointment of his successor. When he remains in office after his title has ended, he is a de facto officer or employee because he exercises and discharges the duties and functions of his office under color of an appointment thereto. But he cannot forever remain a de facto officer. To make him a de jure officer, he should be issued a new appointment in accordance with existing Civil Service Law and rules and pursuant to the requirement of the Local Government Code of 1991.

The material allegations of Mayor Tenorio are as follows:

"x x x

            "Mr. Biones was issued an original appointment as Municipal Administrator on 8 April 1994 (Annex B) which was concurred in by the Sangguniang Bayan on March 21, 1994 in SB Res. No. 041A-94 (Annex C). On July 1, 1995, he was issued a re-appointment (Annex D), albeit without the concurrence of the Sangguniang Bayan, which was approved by the Civil Service Commission, Daet, Camarines Norte, and to be truthful about it, which reappointment was submitted on December 28, 1995. The delayed submission was caused by the following:

1. The municipality had originally planned to implement its New Staffing Pattern on July 1, 1995, but the same was revised to take effect August 1, 1995. The issued reappointment, therefore, had to be replaced with a new one.

The Civil Service Commission Field Officer had earlier informed our Personnel Division that reappointment of co-terminus employees was optional-accordingly as a result of a CSC Director’s Conference, however, to allay fears of a violation, a new appointment may be issued even beyond the reglementary period.

            "On August 1, 1995, a new appointment was issued again to Mr. Briones as a result of reorganization (Annex E). It was my honest intention then that the concurrence of the Sangguniang Bayan was not necessary since it was only a reappointment and that the Local Government Code refers only to original appointment (entrance to duty). Regional Director Elmer R. Bartolata not only upheld my position on this but also opined that reappointment as a result of reorganization simply means that the services of an incumbent employee are only being retained (Annex F). Moreover, it was also the contention of the undersigned that Supplemental Budget No. 3 under SB Res. No. 092-95 dated July 12, 1995 (Annex G) which approved the reorganization, confirmed, for all practical purposes, Mr. Briones reappointment since the Plantilla of Personnel which was attached to Supplemental Budget No. 3, included Mr. Briones as Municipal Administrator.

            "It is very clear then that Mr. Briones was issued two (2) new appointments, one effectively July 1, 1995 and the other effective August 1, 1995 both of which were approved by the Civil Service Commission.


            "Again with all due respect, it is very unfortunate that the Hon. Asst. Commissioner seems to have changed her position regarding the question of reappointment for an administrator. During her visit to Camarines Norte with the Honorable Chairman only last March 14-16, 1996, before a jam-packed crowd at Mega Star Hotel in the capital town of Daet, Mrs. Sarmiento declared that:

‘That opinion of the CSC is to the effect that if a reelectionist is the one who previously appointed the administrator, then there is no need to give that administrator a new appointment. Kung hold over siya. But it is another story kung iba ang lumabas na Local Executive.’

            "Her remarks were contained in the official minutes of the conference-dialogue and which were made the basis of Director Bartolata’s stand in a letter to Vice Mayor Herico on April 30, 1996 (Annex H). Previous to that, Mr. Bartolata consistently maintained that reappointment for a co-terminus employee was not necessary as long as the appointing authority remains the same.

            "On the other hand, CSC Res. No. 93-432 dated February 11, 1993 (Annex I), declares the position of a local administrator as career position. The resolution concludes that:

‘Precisely because the Local Government Code explicitly provided the qualification standards for the position including the required eligibility thereof, the intent that the Municipal Administrator position is a career position cannot be overlooked. Were the intention otherwise, the eligibility requirement would have been dismissed altogether.’


            "As an immediate consequence of Mrs. Sarmiento’s letter, Vice Mayor Herico is now moving for the withholding of Mr. Briones’ salary and other benefits allegedly because of the alleged illegality of Mr. Briones’ appointment of July 1, 1995, which is not contemplated in the Hon. Asst. Commissioner’s reply to him (Annex J)."

            Records show that when Briones was appointed during the first term of Mayor Tenorio, the same was concurred in by the Sangguniang Bayan. When Mayor Tenorio was re-elected for another term starting July 1, 1995, Briones was not immediately re-appointed. It was only on August 1, 1995 that a new appointment was issued him. Said appointment was not concurred in by the Sangguniang Bayan.

            The issue is whether or not the appointment issued on August 1, 1995 to Briones as Municipal Administrator needs the concurrence of the Sangguniang Bayan.

            Relevant to this issue is Section 443 (d) of the Local Government Code of 1991 which provides, in part, as follows:

            "SEC. 443. Officials of the Municipal Government.

            "(d) Unless otherwise provided herein, heads of department and offices shall be appointed by the municipal mayor with the concurrence of the majority of all the sangguniang bayan members, subject to civil service law, rules and regulations. The sangguniang bayan shall act on the appointment within fifteen (15) days from the date of its submission; otherwise, the same shall be deemed confirmed."

            In applying the foregoing provision to a similar case, the Commission, in CSC Resolution No. 96-8280 dated December 23, 1996 (Joselinda Elizalde) held as follows:

            "It should be noted that the Sangguniang Bayan must either concur in or reject an appointment to department head positions within fifteen (15) days from the date of submission otherwise, the same shall be deemed confirmed. x x x."

         Since Briones was originally occupying a position which is co-terminus in nature, his appointment was considered automatically lapsed upon the expiration of the term of office of Mayor Tenorio on June 30, 1995. The re-election of Mayor Tenorio does not revive the lapsed appointment of Briones. In order for him to qualify to his former position, a new appointment must be issued and the same must be concurred in by the Sangguniang Bayan of Labo, Camarines Norte.

            WHEREFORE, the approval by Armenio Montales, Head, Civil Service Staff, of the appointment of Antonio V. Briones as Municipal Administrator without the concurrence of the Sangguniang Bayan was without any legal basis. However, said appointment may be resubmitted to the CSFO for approval if it already has the concurrence of the Sangguniang Bayan of Labo, Camarines Norte. The opinion of Assistant Commisioner Adelina B. Sarmiento is hereby affirmed.

            Quezon City, JUL 24 1997


  Attested by:

Board Secretary VI