G.R. No.

102549 August 10, 1992

EDWIN B. JAVELLANA, petitioner, vs. DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS, SECRETARY, respondents.

violation of *LG 0emorandum #ircular $o. ),+ 1) which provides0 0%RA$*=0 #<R#=LAR $%. ),+1) T% ALL- 8R%><$#<AL G%> R$%RS, #<T? A$* 0=$<#<8AL<T? 0A?%RS, @LG#* R G<%$AL *<R #T%RS A$* ALL #%$# R$ * S=!" #T- A0 $*<$G 0 0%RA$*=0 #<R#=LAR $%. ),+') %$ SA$GG=$<A$ S SS<%$S, 8 R *< 0S, ALL%AA$# S, STABB<$G A$* %TC R R LAT * 0ATT RS <n view of the issuance or #ircular $o. &+A by the "oint #ommission on Local Government 8ersonnel Administration which affects certain provisions of 0# ),+ '), there is a need to amend said 0emorandum #ircular to substantially conform to the pertinent provisions of #ircular $o. (+A. DDD DDD DDD #. 8ractice of 8rofession The Secretary .now 0inister/ of "ustice in an %pinion $o. 35 Series of '(21 stated inter alia that 7members of local legislative bodies, other than the provincial governors or the mayors, do not 6eep regular office hours.7 7They merely attend meetings or sessions of the provincial board or the city or municipal council7 and that provincial board members are not even re:uired 7to have an office in the provincial building.7 #onse:uently, they are not therefore to re:uired to report daily as other regular government employees do, eDcept when they are delegated to perform certain administrative functions in the interest of public service by the Governor or 0ayor as the case may be. Bor this reason, they may, therefore, be allowed to practice their professions provided that in so doing an authority . . . first be secured from the Regional *irectors pursuant to 0emorandum #ircular $o. 23+&), provided, however, that no government personnel, property, e:uipment or supplies shall be utilized in the practice of their professions. Ahile being authorized to practice their professions, they should as much as possible attend regularly any and all sessions, which are not very often, of their Sanggunians for which they were elected as members by their constituents eDcept in very eDtreme cases, e.g., doctors who are called upon to save a life. Bor this purpose it is desired that they always 6eep a calendar of the dates of the sessions, regular or special of their Sanggunians so that conflicts of attending court cases in the case of lawyers and Sanggunian sessions can be avoided. As to members of the bar the authority given for them to practice their profession shall always be subEect to the restrictions provided for in Section 5 of Republic Act &')&. <n all cases, the practice of any profession should be favorably recommended by the Sanggunian concerned as a body and by the provincial governors, city or municipal mayors, as the case may be . . mphasis ours,

Reyes, Lozada and Sabado for petitioner.

GRIO-AQUINO, J.: This petition for review on certiorari involves the right of a public official to engage in the practice of his profession while employed in the Government. Attorney rwin !. "avellana was an elected #ity #ouncilor of !ago #ity, $egros %ccidental. %n %ctober &, '()(, #ity ngineer rnesto #. *ivinagracia filed Administrative #ase $o. #+',+ (, against "avellana for- .'/ violation of *epartment of Local Government .*LG/ 0emorandum #ircular $o. ),+1) dated "une ',, '(), in relation to *LG 0emorandum #ircular $o. 23+&) and of Section 2, paragraph b, $o. 4 of Republic Act $o. 52'1, otherwise 6nown as the 7#ode of #onduct and thical Standards for 8ublic %fficials and mployees,7 and .4/ for oppression, misconduct and abuse of authority. *ivinagracia9s complaint alleged that "avellana, an incumbent member of the #ity #ouncil or Sanggunian 8anglungsod of !ago #ity, and a lawyer by profession, has continuously engaged in the practice of law without securing authority for that purpose from the Regional *irector, *epartment of Local Government, as re:uired by *LG 0emorandum #ircular $o. ),+1) in relation to *LG 0emorandum #ircular $o. 23+ &) of the same department; that on "uly ), '()(, "avellana, as counsel for Antonio "aviero and Rolando #atapang, filed a case against #ity ngineer rnesto #. *ivinagracia of !ago #ity for 7<llegal *ismissal and Reinstatement with *amages7 putting him in public ridicule; that "avellana also appeared as counsel in several criminal and civil cases in the city, without prior authority of the *LG Regional *irector, in

pp. 4)+1,, Rollo./

%n August '1, '((,, a formal hearing of the complaint was held in <loilo #ity in which the complainant, ngineer *ivinagracia, and the

respondent, #ouncilor "avellana, their respective evidence.

presented

0inistry .*epartment/ or agency in accordance with Section '4, Rule F><<< of the Revised #ivil Service Rules, which provides, in part, that$o officer shall engage directly in any . . . vocation or profession . . . without a written permission from the head of the *epartment- 8rovided, that this prohibition will be absolute in the case of those officers . . . whose duties and responsibilities re:uire that their entire time be at the disposal of the Government-8rovided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office should be fiDed by the #hief of the agency to the end that it will not impair in anyway the efficiency of the officer or employee . . . subEect to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as eDpressed in the various issuances of the #ivil Service #ommission.

0eanwhile, on September ',, '((,, "avellana re:uested the *LG for a permit to continue his practice of law for the reasons stated in his letter+re:uest. %n the same date, Secretary Santos replied as follows'st <ndorsement September ',, '((, Respectfully returned to #ouncilor rwin !. "avellana, !ago #ity, his within letter dated September ',, '((,, re:uesting for a permit to continue his practice of law for reasons therein stated, with this information that, as represented and consistent with law, we interpose no obEection thereto, provided that such practice will not conflict or tend to conflict with his official functions. L=<S T. SA$T%S Secretary. .p. 5,, Rollo./

#onformably with the foregoing, the following guidelines are to be observed in the grant of permission to the practice of profession and to the acceptance of private employment of local elective officials, to wit'/ The permission shall be granted by the Secretary of Local Government; 4/ 8rovincial Governors, #ity and 0unicipal 0ayors whose duties and responsibilities re:uire that their entire time be at the disposal of the government in conformity with Sections '3', '2' and 4,1 of the Local Government #ode .!8 112/, are prohibited to engage in the practice of their profession and to accept private employment during their incumbency1/ %ther local elective officials may be allowed to practice their profession or engage in private employment on a limited basis at the discretion of the Secretary of Local Government, subEect to eDisting laws and to the following conditionsa/ That the time so devoted outside of office hours should be fiDed by the local chief eDecutive concerned to the end that it will not impair in any way the efficiency of the officials concerned; b/ That no government time, personnel, funds or supplies shall be utilized in the pursuit of one9s profession or private employment; c/ That no conflict of interests between the practice of profession or engagement in private employment and the official duties of the concerned official shall arise thereby; d/ Such other conditions that the Secretary deems necessary to impose on each particular case, in the interest of public service. . mphasis supplied, pp. 1'+14, Rollo./

%n September 4', '((', Secretary Luis T. Santos issued 0emorandum #ircular $o. (,+)' setting forth guidelines for the practice of professions by local elective officials as followsT%- All 8rovincial Governors, #ity and 0unicipal 0ayors, Regional *irectors and All #oncerned. S=!" #T8ractice of 8rofession mployment of Local lective %fficials

and

8rivate

Section 2 of Republic Act $o. 52'1 .#ode of #onduct and thical Standards for 8ublic %fficials and mployees/, states, in part, that 7<n addition to acts and omission of public officials . . . now prescribed in the #onstitution and eDisting laws, the following shall constitute prohibited acts and transactions of any public officials . . . and are hereby declared to be unlawful- . . . .b/ 8ublic %fficials . . . during their incumbency shall not- .'/ . . . accept employment as officer, employee, consultant, counsel, bro6er, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless eDpressly allowed by law; .4/ ngage in the private practice of their profession unless authorized by the #onstitution or law, provided that such practice will not conflict or tend to conflict with their official functions- . . . DDD DDD DDD =nder 0emorandum #ircular $o. '2 of the %ffice of the 8resident dated September 3, '()5, the authority to grant any permission, to accept private employment in any capacity and to eDercise profession, to any government official shall be granted by the head of the

%n 0arch 4&, '((', "avellana filed a 0otion to *ismiss the administrative case against him on

the ground mainly that *LG 0emorandum #irculars $os. ),+1) and (,+)' are unconstitutional because the Supreme #ourt has the sole and eDclusive authority to regulate the practice of law. <n an order dated 0ay 4, '((', "avellana9s motion to dismiss was denied by the public respondents. Cis motion for reconsideration was li6ewise denied on "une 4,, '(('. Bive months later or on %ctober ',, '((', the Local Government #ode of '((' .RA 2'5,/ was signed into law, Section (, of which providesSec. (,. 8ractice of 8rofession. G .a/ All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the eDercise of their functions as local chief eDecutives. .b/ Sanggunian members may practice their professions, engage in any occupation, or teach in schools eDcept during session hours- 8rovided, That sanggunian members who are members of the !ar shall not.'/ 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; .4/ 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; .1/ #ollect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and .3/ =se property and personnel of the Government eDcept when the sanggunian member concerned is defending the interest of the Government. .c/ *octors of medicine may practice their profession even during official hours of wor6 only on occasions of emergency- 8rovided, That the officials concerned do not derive monetary compensation therefrom. . mphasis ours./

Sec. &. powers-

The Supreme #ourt shall have the following DDD DDD DDD

.&/ 8romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the <ntegrated !ar, and legal assistance to the underprivileged. Such rules shall provide a simplified and ineDpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and :uasi+ Eudicial bodies shall remain effective unless disapproved by the Supreme #ourt.

.4/ They constitute class legislation, being discriminatory against the legal and medical professions for only sanggunian members who are lawyers and doctors are restricted in the eDercise of their profession while dentists, engineers, architects, teachers, opticians, morticians and others are not so restricted .RA 2'5,, Sec. (, Hb+'I/. <n due time, the Solicitor General filed his #omment on the petition and the petitioner submitted a Reply. After deliberating on the pleadings of the parties, the #ourt resolved to dismiss the petition for lac6 of merit. As a matter of policy, this #ourt accords great respect to the decisions andJor actions of administrative authorities not only because of the doctrine of separation of powers but also for their presumed 6nowledgeability and eDpertise in the enforcement of laws and regulations entrusted to their Eurisdiction .Santiago vs. *eputy Decutive Secretary, '(4 S#RA '((, citing #uerdo vs. #%A, '55 S#RA 5&2/. Aith respect to the present case, we find no grave abuse of discretion on the part of the respondent, *epartment of <nterior and Local Government .*<LG/, in issuing the :uestioned *LG #irculars $os. ),+1, and (,+)' and in denying petitioner9s motion to dismiss the administrative charge against him. <n the first place, complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by eDpress constitutional mandate, a public office is a

Administrative #ase $o. #+',+(, was again set for hearing on $ovember 45, '(('. "avellana thereupon filed this petition for certioraripraying that *LG 0emorandum #irculars $os. ),+1) and (,+)' and Section (, of the new Local Government #ode .RA 2'5,/ be declared unconstitutional and null void because.'/ they violate Article ><<<, Section & of the '()2 #onstitution, which provides-

public trust. The complaint for illegal dismissal filed by "aviero and #atapang against #ity ngineer *ivinagracia is in effect a complaint against the #ity Government of !ago #ity, their real employer, of which petitioner "avellana is a councilman. Cence, Eudgment against #ity ngineer *ivinagracia would actually be a Eudgment against the #ity Government. !y serving as counsel for the complaining employees and assisting them to prosecute their claims against #ity ngineer *ivinagracia, the petitioner violated 0emorandum #ircular $o. 23+&) .in relation to Section 2Hb+4I of RA 52'1/ prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government. 8etitioner9s contention that Section (, of the Local Government #ode of '((' and *LG 0emorandum #ircular $o. (,+)' violate Article ><<<, Section & of the #onstitution is completely off tangent. $either the statute nor the circular trenches upon the Supreme #ourt9s power and authority to prescribe rules on the practice of law. The Local Government #ode and *LG 0emorandum #ircular $o. (,+)' simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it. Section (, of the Local Government #ode does not discriminate against lawyers and doctors. <t applies to all provincial and municipal officials in the professions or engaged in any occupation. Section (, eDplicitly provides that sanggunian members 7may practice their professions, engage in any occupation, or teach in schools eDpect during session hours.7 <f there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more li6ely than others to relate to, or affect, the area of public service. AC R B%R , the petition is * $< * for lac6 of merit. #osts against the petitioner. S% %R* R *.

$arvasa, #."., Gutierrez, "r., #ruz, Belicia