Department of the Interior and Local Government Regional Office No. 5 Rizal St.

, Legazpi City 4500

Opinion No. 2010- 05 26 August 2010 To : Ms. ZENAIDA Y. CABARLE, et al. Barangay Camambugan Daet, Camarines Norte PD ROBIN M. MERCADO DILG- Camarines Norte Provincial Office Provincial Capitol, Daet, Camarines Norte

Thru :

Facts: Last May 10, 2010 elections, one of the Barangay Council members was elected Municipal Councilor, thus causing a permanent vacancy in the Sangguniang Barangay. The Barangay council then conducted an election thru a secret balloting held on a special session dated July 5, 2010, declared Mrs. Mary Ann Echano as winner against two others who applied for recommendation. Thereafter, a resolution recommending her for appointment of the Municipal Mayor was submitted, resulting to her appointment as Barangay Kagawad. Issues:
1. Mayroon na po bang Guidelines na nagsasaad ng pamamaraan sa filling-up of permanent vacancy sa Sangguniang Barangay? 2. May bias ba ang isinagawang botohan ng Sangguniang Barangay sa pagpili samantalang ang pamamaraan nito ay labag sa Sec. 42 Rule VIII ng kanilang Internal Rules of Procedure, kung saan nakasaad dito na (a) No ordinance or resolution passed by the sanggunian shall be valid unless approved by a majority of the member present, there being a quorum, (b) upon the passage of all Ordinances or Resolution the sanggunian secretary shall record the YEAS and NAYS sa kabila nito, isinagawa and botohan sa pamamagitan ng secret balloting, at (k) naaayon ba sa kanilang rules na payagang mag-abstain and isang miyembro ng Sangguniang Barangay; 3. Naaangkop po ba kay SK Chairman Echano (anak ng isa sa mga pinagpiliang i-aappoint na kagawad) ang DILG OP. No. 26, s. 2005? 4. May legal po bang basehan kung hihilingin naming na mag-inhibit si SK Chairman Echano sa pagdedesisyon sa isyung ito dahil sa conflict of interest? 5. Maaari bang maitalaga bilang Barangay Kagawad si Gng. Echano matapos na siya ay iterminate for cause ni PB Yarte? 6. Ang pag-appoint po ba ng Punong Bayan sa inirekomenda ng Sangguninag Barangay alinsunod sa Sec. 45 ng Local Governmentr Code of 1991 ay ministerial o discretionary? At sakali pongtumanggi ang Punong Bayan na i-appoint ang inirekomenda ng
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Sangguniang Barangay maaari po ba itong magkabisa at ituring na deemed Approved dahil sa inaction?

Opinion: On issues No. 1 and 2, may we invite your attention to the express provisions of Section 45 (a) (3) of the Local Government Code which generally provides for the manner of filling-up vacancies in the sangguniang barangay, to wit: SEC. 45. Permanent Vacancies in the Sanggunian.- (a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: xxx xxx xxx

(3) The city or municipal mayor, in case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. From the said provision, it is clear that the city or municipal mayor is the one vested with the power to appoint a Sangguniang Barangay Member to fill up a permanent vacancy in the Sangguniang Barangay. Such power to appoint, however, is subject to the requirement of recommendation from the Sangguniang Barangay where the vacancy occurred. Please note however, that the law does not specifically provide for a particular form by which the recommendation of the Sangguniang Barangay concerned has to be expressed. Measures enacted by Sanggunians, including the Sangguniang Barangay for that matter, could either be in the form of an ordinance or a resolution. An ordinance has been defined as that measure enacted by the Sanggunian which provides for a permanent rule of conduct within its territorial jurisdiction. On the other hand, a resolution is one enacted by the Sanggunian translating its expression of opinions, views or sentiments. Generally, therefore, since a recommendation is an expression of opinion and sentiment of the Sanggunian, the same has to be done in the form of a resolution. As to the manner on how the decision of whom to recommend was made, strict compliance with their IRP may not be required, because the sanggunian council may decide among them the process of selection. Thus, where the resolution recommending the appointment of the new Barangay Kagawad is a joint and collective action of the Sanggunian thru a vote of majority by the members present there being a quorum, the same would already be a substantial compliance on the requirement of recommendation as mandated under the Local Government Code. The right to abstain of a member of the sanggunian cannot be restrained. The right to abstain from voting for a position deserves the same respect as the exercise of the right to vote.(G.R. No. 105214 August 30, 1993, CARAM vs COMELEC et al.) On issue No. 3, DILG Op. No. 26, s. 2005 which provides for the right of the SK Chairman to participate in the deliberations during the sessions of the Sangguniang Barangay, will apply to SK Chairman Echano notwithstanding any considerations whether he is related or not to any of the candidates for recommendation. Thus it is clear As an
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ex-officio member of the sanggunian, the SK Chairman is entitled to participate in the sessions and vote on any questions or measure brought before the sangunian, even to break a tie, as well as exercise the same rights and privileges available to a regular member. On issue No. 4, Sec. 3 (i) of RA 6713 otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees defines "Conflict of interest" as, one which arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty. Nothing in the said definition prohibits one to participate in the deliberation and/or in choosing the better candidate to be recommended for appointment in the vacant position. In fact even the appointment by the mayor of his son as recommended by the sanggunian concerned was not invalidated, as exemplified in DILG Op. 18, s. 2010, to wit: Thus, if the appointment to be made by the Mayor to his son as Sangguniang Barangay Member is challenged only for being nepotic, we are of the view that such appointment is still valid considering that appointment to elective positions is not covered by the law on nepotism. While it is ideal that the SK Chairman should not participate in the deliberation and voting where her mother is one of the applicants, the propriety is better left to the discretion of the SK Chairman herself. On issue No. 5, it was not clear whether the termination for cause of Mrs. Echano by PB Yarte was in accordance with Section 84-88 of RA 7160, wherein a penalty of removal or dismissal may carry with it the accessory penalty of disqualification from appointment to the government. One of the reasons why a recommendation from the sanggunian concerned is required before one can be appointed by the LCE, is to check whether the recommendee possesses all the qualifications and none of the disqualifications of a public official as provided under Sec. 39 and 40 of the LGC and other applicable laws. Thus, before the sanggunian can decide on who to recommend it should have examined Mrs. Echanos credentials. On issue no. 6, the Mayor should not refuse an appointment when the recommendee possesses all the qualifications and none of the disqualifications. Any withholding on the part of the mayor may be considered whimsical, arbitrary, and unjustifiable and will thus be tantamount to abuse of authority. Should there be objections, the Mayor should put them in writing citing clearly the basis of his objections thereto. Thus, in case of inaction, by the Mayor, without any explanations in writing to the members of the Sangguniang Barangay, then the Sangguniang Barangay Members may file a petition for Mandamus in the Court of general jurisdiction in order to compel the Mayor to act on the matter. (DILG Op 18, s. 2010) May it be emphasized however, that without necessarily dwelling on whether or not the recommendation was proper, the Mayor has already issued an appointment in favor of
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Mrs. Echano as Sangguniang Barangay Member to fill up the permanent vacancy in your Sangguniang Barangay. Along this line, it is not amiss to point out that the appointment issued by the Mayor, under the Rules on Evidence, enjoys the presumption of regularity and, therefore, has to be given effect and respect. Thus, any person questioning the appointment for being legally infirmed or having made not in accordance with law, has to go to court for its invalidation. Hence, unless the court shall declare it to be void, such appointment has to be afforded respect and efficacy and the Punong Barangay thereat, regardless of her impression as to the legality of the appointment, is not at liberty to unilaterally construe it to be invalid sans the court declaration to that effect. If the Punong Barangay believes that the appointment is invalid, recourse is to be had before the court for its invalidation. Meantime, adhering to the rule of law, the Punong Barangay has to respect and give effect to the appointment. (DILG OP 31, s. 2007) Hence, the appointment made by the Hon. Tito S. Sarion to Mrs. Mary Ann Echano as Barangay Kagawad of Barangay Camambugan shall be considered valid unless invalidated in a case filed before the proper forum. For your guidance.

BLANDINO M. MACEDA, CESO III Regional Director

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