MALABANAN, Jr., Mariano C.
AQUINO, Vicky E.
REYES, Efren L.
TORDICILLA, Jojo Domingo C.

Re: Appointment; Personnel Selection Board-Appeal
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RESOLUTION NO. 98-0317

 

            Nolasco K. Reyes, Vice Mayor, Municipality of Lemery, Batangas, appeals the decision of then Civil Service Regional Office (CSRO) No. IV Director Teresita R. Ochoco declaring as null and void the appointments issued to four (4) personnel of the Sangguniang Bayan of said municipality.

            Director Ochoco stated in part, as follows:

            "This pertains to your letter relative to the composition of the Personnel Selection Board (PSB) in said municipality. Specifically, you want to be clarified on whether the appointments of Jojo Domingo Tordecilla, Efren Reyes, Mariano Malabanan, Jr. and Vicky Aquino, all assigned at the Sangguniang Bayan, that municipality, could be considered valid considering that certification at the back of their appointment papers were signed by Vice-Mayor Nolasco Reyes instead of the Mayor.

x x x

            "Article 166 (b) of the 1991 Local Government Code states that ‘Personnel Selection Board shall be composed of the Local Chief Executive or his duly authorized representative as Chairman and Members to be determined by resolution of the Sanggunian concerned in accordance with pertinent civil service law, rules and regulation.’

            "There is no provision in the Local Government Code which authorizes the Vice Mayor to act as Chairman of the PSB unless he is duly authorized by the Mayor. By exercising such authority vested in another official, the Vice Mayor acted beyond and outside his mandate, thus, the effect or result of said act must be declared null and void."

            The relevant portions of Vice Mayor Reyes’ appeal reads as follows:

            "This pertains to the letter of Director Teresita R. Ochoco dated 21 November 1996 in reply to the alleged query of Mayor Roman H. Rosales regarding the appointment of the four (4) employees of the Sangguniang Bayan of Lemery, Batangas namely:

x x x

which she (Teresita R. Ochoco) advised that the appointment must be declared null and void and was made the basis for the said Mayor to issue a memorandum to Mr. Reynante P. Valencia, Human Resource Management Officer of this Municipality, …

"Ms. Ochoco might have overlooked the provision of Art. 166(a) in relation to Art. 168(b) of the Implementing Rules and Regulations of the Local Government Code to quote as follows:

x x x

"Therefore, the power to appoint all officials and employees of the Sangguniang Bayan is vested to (sic) the Vice Mayor who is also the disciplining authority of all officials and employees of the Sangguniang Bayan and likewise can suspend and dismiss his employees or recommend the suspension of their salaries as well. Assuming just for the sake of argument that Art. 166 (b) which was mentioned by the Honorable Director in rendering her opinion adverse to the interest of the said four (4) employees casted (sic) doubt to the authority of the Vice Mayor to chair the Personnel Selection Board pursuant to Art. 166 (a) of the IRR, it is the humble and honest belief of the undersigned that the doubt should be resolved in favor of the intention of the law. The purpose of the Code in giving the Vice Mayor the authority to preside (sic) the session of the Sanggunian, the prerogative to maintain separate funding, to appoint employees of the Sanggunian and the co-signor of the Municipal Treasurer in the disbursement of funds appropriated for his office and the Sanggunian as well. The principle behind is to make the offices of the Vice Mayor and the Sanggunian Bayan co-equal with the Office of the Mayor will not be made subservient to the pressure and demand of the mayor if ever there may be and to erase doubt that the Sanggunian Bayan is a mere rubber stamp to the whims and caprice of the local chief executive.

"All of the prerogatives and privileges of the Sangguniang Bayan will be useless if in the process of hiring staff to fill up the vacant positions in the Office of the Sangguniang Bayan will (sic) be vested on the Mayor who will chair the Personnel Selection Board."

            Records disclose that on August 1, 1996, Vice Mayor Reyes appointed four (4) personnel of the Sangguniang Bayan, Lemery, Batangas namely:

1. Mariano C. Malabanan, Jr. - Legislative Assistant
2. Vicky E. Aquino - Legislative Assistant
3. Efren L. Reyes - Messenger
4. Jojo Domingo C. Tordecilla - Utility Worker

            At the back of their respective appointments, Vice Mayor Reyes, despite no legal authority to do so, signed as the supposed Chairman of the Personnel Selection Board (PSB).

            On August 20, 1996, the appointments of the abovementioned employees were approved by the Civil Service-Batangas Field Office.

            Subsequently, Lemery Mayor Ramon H. Rosales sought from the CSRO No. IV clarification on the validity of these appointments. In her letter-reply, Director Ochoco opined that said appointments were null and void since there being no expressed provision in the Local Government Code authorizing the Vice Mayor to act as Chairman of the Personnel Selection Board, his actions as such are vitiated with nullity.

            On the basis of this opinion, Mayor Rosales directed the suspension of the payment of salaries of the abovementioned employees, in his memorandum to the Municipal Human Resource Management Office. Said memorandum reads as follows:

            "Pursuant to the letter of Ms. Teresita R. Ochoco, Director IV, Civil Service Commission Regional Office No. IV (copy attached), you are hereby advised to suspend the payment of the salaries of the following employees effective today, 10 December 1996:

‘1. Mariano C. Malabanan, Jr. - Legislative Assistant
‘2. Vicky E. Aquino - Legislative Assistant
‘3. Efren L. Reyes - Messenger
‘4. Jojo Domingo C. Tordecilla - Utility Worker

            "Compliance is hereby enjoined."

            However, in an order dated January 10, 1997, Director Ochoco advised that the employees concerned should be paid their salaries pending the nullification of their appointment by competent authority. Said order states, in part, as follows:

            "This Office finds the instant complaint impressed with merit. It reiterates and adopts as part of this decision its Letter dated December 23, 1996 (Re: Rosales, Roman H. – Query – Lemery, Batangas) pertinent portions of which state (sic) as follows:

            ‘In this regard, please be informed that this Office has NOT declared the appointments of the four (4) employees null and void. The Letter-Opinion dated November 21, 1996 of this Office was rendered in answer to the query posed by, and based on the representation of, Mayor Rosales. Mayor Rosales could have filed a request for reconsideration, or appeal from, the action of Director Gulim approving said appointments if he has reasons to believe that the same were issued in violation of the Civil Service Law, Rules and Regulations. Only then can this Office review said appointments and render after due process, a decision of the request for reconsideration or appeal from the approval thereof.

            ‘Not until finally declared to be null and void by a competent authority, said appointments are presumed to be in order. Appointees thereto are therefore entitled to receive their salaries if they have assumed the duties of the position.’

            "WEHREFORE, in view of the foregoing, this Office hereby rules that Vicky L. Aquinas, Mariano C. Malabanan, Jr., Efren L. Reyes, and Jojo Domingo C. Tordecilla, all of Lemery, Batangas, are entitled to their salaries and directs the immediate payment thereof."

            Director Elmer Bartolata, who succeeded Director Ochoco upon her retirement, later confirmed to the Commission that "the abovementioned employees were able to draw their salaries per OM Order (sic) dated January 10, 1997.

            Upon the other hand, Vice Mayor Ryes wrote to the Commission that "the query of Mayor Rosales and director Ochoco’s opinion rendered (sic) moot and academic considering that the former recognizes our employees considering that he affixed his signature in their respective identification cards…"

            The issues presented in the instant case are follows:

1. Whether or not the Vice Mayor automatically assumes the Chairmanship of the Personnel Selection Board (PSB) when it acts on appointments of individuals considered for positions in the Sangguniang Bayan; and

2. Whether or not the appointments issued by Vice Mayor Reyes to the four (4) appointees are valid in the absence of a certification by the Mayor who is mandated under the Local Government Code of 1991.

            Anent the first issue, Section 80 of the Local Government Code of 1991 provides as follows:

            "SEC 80. Public Notice of Vacancy; Personnel Selection Board. (a) Whenever a local chief executive decides to fill a vacant career position, there shall be posted notices of the vacancy in at least three (3) conspicuous public places in the local government unit concerned for a period of not less than fifteen (15) days.

            "(b) There shall be established in every province, city or municipality a personnel selection board to assist the local chief executive in the judicious and objective selection of personnel for employment as well as for promotion, and in the formulation of such policies as would contribute to employee welfare.

            "(c) The personnel selection board shall be headed by the local chief executive and its members shall be determined by resolution of the sanggunian concerned. A representative of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned shall serve as ex officio members of the board." (Underscoring supplied)

            The aforequoted provision indubitably mandates that the PSB in local government units shoud be headed by local chief executives, which in the instant case is the Mayor. True, the Vice-mayor is granted a certain amount of power to appoint employees of the Sanggunian (see Sec. 445 [2] of the Local Government Code). But this does not automatically vest him with prerogative of sitting as chairman of the PSB when it comes to such appointments. Nowhere is there any stipulation in the Code to that effect.

            This being so, when Vice Mayor Reyes assumed the chairmanship of the PSB without prior permission from Mayor Rosales, he went beyond the mantle of his authority. Consequently, the appointments of the four (4) employees bearing his signature, are inefficacious, notwithstanding the approval by the Field Office. Section 20, Rule VI of the Omnibus Rules Implementing Book V of the Administrative Code of 1987, is in point:

            "Section 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:

x x x

            (b) Failure to pass through the agency’s Selection/Promotion Board

x x x

            Further, inasmuch as the appointments of Malabanan, et al. lack the required certification of the Mayor, in patent contravention of existing Civil Service Law and Rules, the same should be disapproved. Apropos to this is Section 7, Rule V of the Omnibus Rules, thus:

            "Section 7, Rule V

            "Section 7. The Commission shall disapprove the appointment of a person who:

x x x

            (e) has been issued such appointment in violation of existing Civil Service Laws, rules and regulations."

            Finally, it should be pointed out that in cases of appointments illegally issued, the person/s responsible for their issuance should be held personally liable for the payment of salaries of the affected employees. Such was the ruling of the Court of Appeals in the case of GAB vs. CSC, Ca-G.R. SP No. 43993, August 25, 1997. to wit:

            "Section 65, Chapter 10, Book V of the Revised Administrative Code of 1987 expressly provides:

            ‘SEC. 65, Liability of Appointing Authority. – No person employed in the Civil Service in violation of the Civil Service Law and Rules shall be entitled to receive pay from the government; but the appointing authority responsible for such unlawful employment shall be personally liable for the pay that would have accrued had the employment been lawful, and the disbursing officials shall make payment to the employee of such amount from the salary of the officers so liable.’

            "From the above provision of law, it is clear that Roman being unlawfully employed by Chairman Cepeda of petitioner GAB is not entitled to receive pay from the funds of the Government but from the salary of the appointing authority responsible for such unlawful employment… The Government should not be made to suffer for the inexcusable mistake of its officials in appointing people to non-existing government positions, and the Government should not be required to pay the salary of a non-government employee."

            WHEREFORE, the appeal of Vice Mayor Nolasco K. Reyes is hereby denied. Accordingly, the appointments of Mariano C. Malabanan, Jr., and Vicky E. Aquino as Legislative Assistants; Efren L. Reyes and Jojo Domingo C. Tordecilla as Messenger and Utility Worker, respectively, are revoked. This is without prejudice to the appointment of said employees in accordance with existing civil service law and rules. All the salaries received by them shall be deducted from the salaries of Vice Mayor Nolasco Reyes.

            Quezon City, February 10, 1998



  (Signed)
CORAZON ALMA G. DE LEON
Chairman
(Signed)
THELMA P. GAMINDE
Commissioner


(O.B.)
JOSE F. ERESTAIN, JR.
Commissioner
  Attested by:


(Signed)
CARMENCITA GISELLE B. BORILLO
Board Secretary VI